After 50 years of effort, the international community on 16 July endorsed the creation of a permanent International Criminal Court (ICC). This historic step took place in Rome at the end of a five-week UN conference, by a vote of 120 for, 7 against and 21 abstentions. Of all African countries, only Libya voted no. It was joined by Iraq, Qatar, Israel, Yemen, China and the US.
The Court is designed to bring to justice those who commit genocide, war crimes, crimes against humanity, and aggression (to be defined later by a special law commission). In order for the ICC to become a reality, its statute, officially entitled the "Rome Statute of the International Criminal Court," must be ratified by 60 states. Ratification by the world community appears likely. As of 9 October, 19 African states had become signatories to the Court's statute, thereby demonstrating their intention to ratify it.
In February 1998, the representatives of 25 African countries, along with delegates from a number of African and international non-governmental organizations, met in Dakar, Senegal, to discuss the kind of ICC they wanted. They issued the Dakar Declaration, calling for a court that would be independent of the UN Security Council or any other political body, that would be fair and effective, that could prosecute major criminals when national courts prove unable or unwilling, and whose statute would guarantee the rights of suspects, defendants, and witnesses. At the closing ceremony, Senegal's then Prime Minister Habib Thiam said that Africa needs a court that can deter and punish genocide and crimes against humanity, since these are major human tragedies and obstacles to Africa's economic and social development.
The Rome Statute meets most of the African demands. The Court's jurisdiction will extend to war crimes committed in both international and internal armed conflicts. It offers the protections of the Geneva Conventions to combatants and prisoners of war, but also addresses the security needs of civilians.
Currently, a number of African countries are experiencing the ravages of war. Amnesty International maintains that such conflicts often are accompanied by "appalling human rights violations," with little accountability for the abuses and with perpetrators able "to act with impunity." An effective ICC can help bring an end to such impunity.
The Rome Statute criminalizes attacks on civilians, rape, and the recruitment of children under 15 years into militias. It prohibits genocidal attacks intended to destroy, in whole or in part, a national, ethnic, racial or religious group. It defines a crime against humanity as any systematic attack against any civilian population, including murder; enslavement or forcible population transfer; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence; and other inhumane acts intentionally causing great suffering or serious injury to mental or physical health.
The war crimes listed in the Statute include destroying or seizing the enemy's property unless imperatively demanded by the necessities of war; denying members of the hostile party due process; compelling nationals to take part in operations of war against their own country; pillaging civilian settlements; employing poison or poisoned weapons; employing weapons that cause unnecessary suffering; and committing outrages upon personal dignity. Genocide and crimes against humanity are currently being prosecuted by the UN Criminal Tribunal for Rwanda, located in Arusha, Tanzania.
Unfortunately, the Statute permits a ratifying state to declare that it will not accept the jurisdiction of the Court for a period of seven years with respect to war crimes committed by its nationals or on its territory. Otherwise, the Statute permits no reservations. Ratifying states must accept it in its totality.
Although the Court will not be fully independent of the Security Council, it will have a degree of autonomous jurisdiction. The Rome Statute offers a two-track system for triggering investigations and prosecutions.
Under track one, the Security Council, acting under Chapter VII of the UN Charter, can refer situations that threaten or disrupt international peace to the Court for investigation. All states would be bound to comply with court orders for evidence or the surrender of indicted persons, and court orders could be enforced by the Security Council through embargoes, freezing the assets of leaders and supporters, and the use of force. This track would most likely be utilized in conflicts similar to those in former Yugoslavia or Rwanda.
Under the second track, situations would be referred to the Court by individual countries or the ICC Prosecutor. This track, which relies on the good-faith cooperation of the parties to the Court's Statute, has a number of restrictions attached:
These restrictions have disappointed many backers of the ICC. Despite its perceived shortcomings, however, they believe the proposed ICC is a solid beginning. Seven years after the ICC Statute comes into force, the ratifying states can amend it and hopefully improve the Court's ability to deal with changing times and crises.
At the signing ceremony in Rome, Angola's Minister of Justice Paulo Tchipilica, expressing his deep concern over the civil war in his country, stressed the need to punish perpetrators of war crimes. He implored the Rome delegates to make the ICC effective.
