OVERVIEW
It has been 50 years since the United Nations first recognized the need to establish an international criminal court, to prosecute crimes such as genocide. In resolution 260 of 9 December 1948, the General Assembly, "Recognizing that at all periods of history genocide has inflicted great losses on humanity; and being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required", adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Article I of that convention characterizes genocide as "a crime under international law", and article VI provides that persons charged with genocide "shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction . . ." In the same resolution, the General Assembly also invited the International Law Commission "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide . . ."

Following the Commission's conclusion that the establishment of an international court to try persons charged with genocide or other crimes of similar gravity was both desirable and possible, the General Assembly established a committee to prepare proposals relating to the establishment of such a court. The committee prepared a draft statute in 1951 and a revised draft statute in 1953. The General Assembly, however, decided to postpone consideration of the draft statute pending the adoption of a definition of aggression.

Since that time, the question of the establishment of an international criminal court has been considered periodically. In December 1989, in response to a request by Trinidad and Tobago, the General Assembly asked the International Law Commission to resume work on an international criminal court with jurisdiction to include drug trafficking. Then, in 1993, the conflict in the former Yugoslavia erupted, and war crimes, crimes against humanity and genocide -- in the guise of "ethnic cleansing" -- once again commanded international attention. In an effort to bring an end to this widespread human suffering, the UN Security Council established the ad hoc International Criminal Tribunal for the Former Yugoslavia, to hold individuals accountable for those atrocities and, by so doing, deter similar crimes in the future.

Shortly thereafter, the International Law Commission succesfully completed its work on the draft statute for an international criminal court and in 1994 submitted the draft statute to the General Assembly. To consider major substantive issues arising from that draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After the General Assembly had considered the Committee's report, it created the Preparatory Committee on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text for submission to a diplomatic conference. The Preparatory Committee, which has been meeting since 1996, will hold its final session in March and April of 1998 to complete the drafting of the text.

At its fifty-second session, the General Assembly decided to convene the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, to be held in Rome, Italy, from 15 June to 17 July 1998, "to finalize and adopt a convention on the establishment of an international criminal court".

Peace and Justice
One of the primary objectives of the United Nations is securing universal respect for human rights and fundamental freedoms of individuals throughout the world. In this connection, few topics are of greater importance than the fight against impunity and the struggle for peace and justice and human rights in conflict situations in today's world. The establishment of a permanent international criminal court (ICC) is seen as a decisive step forward. The international community will meet in Rome, Italy, from 15 June to 17 July 1998 to finalize a draft statute which, when ratified, would establish such a court.

Why Do we Need an
International Criminal Court?

... To achieve justice for all

An international criminal court has been called the missing link in the international legal system. The International Court of Justice at The Hague handles only cases between States, not individuals. Without an international criminal court for dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights often go unpunished. In the last 50 years, there have been many instances of crimes against humanity and war crimes for which no individuals have been held accountable. In Cambodia in the 1970s, an estimated 2 million people were killed by the Khmer Rouge. In armed conflicts in Mozambique, Liberia, El Salvador and other countries, there has been tremendous loss of civilian life, including horrifying numbers of unarmed women and children. Massacres of civilians continue in Algeria and the Great Lakes region of Africa.

... To end impunity
"A person stands a better chance of being tried and judged for killing one human being than for killing 100,000."
-- José Ayala Lasso, former United Nations High Commissioner for Human Rights

The Judgment of the Nürnberg Tribunal stated that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced" -- establishing the principle of individual criminal accountability for all who commit such acts as a cornerstone of international criminal law. According to the Draft Code of Crimes against the Peace and Security of Mankind, completed in 1996 by the International Law Commission at the request of the General Assembly, this principle applies equally and without exception to any individual throughout the governmental hierarchy or military chain of command. And the Convention on the Prevention and Punishment of the Crime of Genocide adopted by the United Nations in 1948 recognizes that the crime of genocide may be committed by constitutionally responsible rulers, public officials or private individuals.

... To help end conflicts.
"There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."
-- Benjamin B. Ferencz, a former Nürnberg prosecutor

In situations such as those involving ethnic conflict, violence begets further violence; one slaughter is the parent of the next. The guarantee that at least some perpetrators of war crimes or genocide may be brought to justice acts as a deterrent and enhances the possibility of bringing a conflict to an end. Two ad hoc international criminal tribunals, one for the former Yugoslavia and another for Rwanda, were created in this decade with the hope of hastening the end of the violence and preventing its recurrence.

... To remedy the deficiencies of ad hoc tribunals
The establishment of an ad hoc tribunal immediately raises the question of "selective justice". Why has there been no war crimes tribunal for the "killing fields" in Cambodia? A permanent court could operate in a more consistent way.

Reference has been made to "tribunal fatigue". The delays inherent in setting up an ad hoc tribunal can have several consequences: crucial evidence can deteriorate or be destroyed; perpetrators can escape or disappear; and witnesses can relocate or be intimidated. Investigation becomes increasingly expensive, and the tremendous expense of ad hoc tribunals may soften the political will required to mandate them.

Ad hoc tribunals are subject to limits of time or place. In the last year, thousands of refugees from the ethnic conflict in Rwanda have been murdered, but the mandate of that Tribunal is limited to events that occured in 1994. Crimes committed since that time are not covered.

... To take over when national criminal justice institutions are unwilling or unable to act
"Crimes under international law by their very nature often require the direct or indirect participation of a number of individuals at least some of whom are in positions of governmental authority or military command."
-- Report of the International Law Commission, 1996

Nations agree that criminals should normally be brought to justice by national institutions. But in times of conflict, whether internal or international, such national institutions are often either unwilling or unable to act, usually for one of two reasons. Governments often lack the political will to prosecute their own citizens, or even high-level officials, as was the case in the former Yugoslavia. Or national institutions may have collapsed, as in the case of Rwanda.

... To deter future war criminals
"From now on, all potential warlords must know that, depending on how a conflict develops, there might be established an international tribunal before which those will be brought who violate the laws of war and humanitarian law. . . . Everyone must now be presumed to know the contents of the most basic provisions of international criminal law; the defence that the suspects were not aware of the law will not be permissible."
-- Hans Corell, United Nations Under-Secretary-General for Legal Affairs

Most perpetrators of war crimes and crimes against humanity throughout history have gone unpunished. In spite of the military tribunals following the Second World War and the two recent ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda, the same holds true for the twentieth century. That being said, it is reasonable to conclude that most perpetrators of such atrocities have believed that their crimes would go unpunished. Effective deterrence is a primary objective of those working to establish the international criminal court. Once it is clear that the international community will no longer tolerate such monstrous acts without assigning responsibility and meting outappropriate punishment -- to heads of State and commanding officers as well as to the lowliest soldiers in the field or militia recruits -- it is hoped that those who would incite a genocide; embark on a campaign of ethnic cleansing; murder, rape and brutalize civilians caught in an armed conflict; or use children for barbarous medical experiments will no longer find willing helpers.

The International Criminal Court
The preamble of the draft statute now being considered expresses the desire "to further international cooperation to enhance the effective prosecution and suppression of crimes of international concern". It emphasizes that the Court is intended to exercise jurisdiction only over the most serious crimes of international concern and to be complementary to national criminal justice systems. The Court would be established by treaty and would begin to function when enough ratifications by States parties caused the treaty to enter into force.

Structure of the Court
Although the final structure of the Court will be settled at the Conference, there is broad agreement that the Court should consist of three branches -- judicial (the chambers), investigatory and prosecutorial (the procuracy) and administrative (the registry). There is also general agreement that no two judges should be nationals of the same State, and that judges should be selected to represent all principal legal systems.

Major Unresolved Issues Under Consideration
Crimes under the Court's jurisdiction
There is broad agreement that the Court should deal with three categories of crimes, often referred to as "core crimes": genocide, crimes against humanity (including crimes committed during peacetime) and war crimes. The crime of genocide is defined as "acts committed with intent to destroy -- in whole or in part -- a national, ethnical, racial or religious group, as such". These acts may include killing members of the group, causing serious bodily or mental harm to members of the group, imposing measures intended to prevent births within the group, or forcibly transferring children to other groups. Precise definitions of crimes against humanity and war crimes, which largely reflect customary law, are still being refined. Crimes such as rape, sexual slavery, enforced prostitution, enforced pregnancy and other forms of sexual violence may be included in war crimes, and rape or other sexual abuse or enforced prostitution may be included as crimes against humanity.

There is disagreement on whether to include the crime of aggression. This question is connected to the role to be played by the Security Council in relation to the Court. Other crimes under consideration include attacks against UN and associated personnel, acts of international terrorism and drug trafficking.

Complementarity: the ICC's relationship with national courts
States generally agree that alleged criminals should normally be tried by their own national judicial institutions. According to the relevant provisions, the International Criminal Court is intended to perform a complementary role in relation to national courts. It is felt that an international criminal court is needed in only two situations: when national judicial institutions are unable to act, as in situations where such institutions have collapsed due to internal or international conflict, or in situations where they are unwilling to act, as when a State may be reluctant to try its own nationals or when its officials may be implicated in the alleged crime. As long as a State is able and willing to investigate and prosecute a case on its own, the ICC jurisdiction would not be activated. However, many governmental and non-governmental organizations believe that such a limitation would weaken the court.

Trigger mechanisms and the relationship
of the Security Council to the ICC

Trigger by the Security Council
Will the Security Council have the authority to refer situations to the Court for investigation and/or prosecution? As it now stands, the draft statute allows for investigations and prosecutions to be initiated based on a complaint by a State party or a referral by the Security Council. There is a possibility that the prosecutor may also be authorized to initiate investigations. (See "The role of the prosecutor" below.)

- If, under Chapter VII of the United Nations Charter, the Security Council requests the Court to initiate proceedings, all Member States would be required to cooperate with the Court. Consent requirements would not be necessary. Many believe that this would provide the Court with considerable strength. However, there is concern that the Security Council is a political organ and its decisions are not necessarily based solely on legal considerations.

- Still under discussion is the question of whether it would be necessary for the Security Council to make a determination that aggression had been committed by a State before the Court could determine the responsibility of an individual for an act of aggression.

- Also still being discussed is the question of whether based on a State complaint or the prosecutor's initiative in the absence of a Security Council referral, the Court would have the power to investigate and prosecute alleged offenders for crimes arising out of situations of which the Security Council is currently seized. Those who believe that the Court should be able to act in such situations emphasize the importance of maintaining the independence of the Court as a judicial body from the political considerations of the Security Council. Others emphasize that the Security Council is the primary organ responsible for the maintenance of peace and security, and as such should have the power to prevent the Court from acting in specific situations. A suggestion has been made ti the effect that an affirmative vote by the Security Council, including the concurrence of its five permanent members, would be required to prevent rather than to initiate action by the Court.

Trigger by State party complaint
The action of the Court could be triggered by a complaint filed by a State party to the statute. In some instances, this would require the consent of one or more States parties. For example, it may be necessary for the territorial State -- the State where the crime occurred -- to give permission for the Court to act, or it may be necessary for the State of nationality of the accused to give such consent. But if the jurisdiction of the Court is limited to a number of core crimes for which it has inherent jurisdiction -- such as genocide, war crimes and crimes against humanity, consent requirements may not be necessary.

The role of the prosecutor
There is some support for the prosecutor having the power to initiate investigations and prosecutions on his or her own initiative, in addition to the two preceding trigger mechanisms. Such an independent prosecutor is considered by some to be crucial to an independent and effective Court. Others are reluctant to grant such power to an individual. Compromises are under consideration. One such possibility might be a provision whereby the prosecutor may have the power to initiate investigations subject to review by a small chamber of judges.

Entry into force
How many ratifications will be required for the Court's statute to enter into force? In the past, the number required for an international treaty to come into force has ranged from 5 to 65. Proposals before the Preparatory Committee would require from 25 to 90 ratifications. Once the required number of ratifications has been received, the Court would be established. The process may require more time if the number of ratifications needed is high.

Relationship of the Court to the United Nations
There are various possible relationships between the Court and the United Nations. The ICC could be set up as a UN specialized agency, a treaty body financed by the United Nations, or an independent institution. Should the Court be financed by States parties, by the United Nations, or by a combination of the two? One possibility is that the Court could be funded by the United Nations under the UN regular budget. Another is that the Court could be financed by the States parties to its statute, with a UN contribution only in respect of those situations referred by the Security Council.

Penalties
The sentences under consideration include life imprisonment, imprisonment for a specified number of years -- with maximum and minimum terms of imprisonment still under consideration, and/or fines. The death penalty remains a contentious issue.

These and other issues relating to the establishment of the Court are still under discussion and must be resolved before the Convention can be adopted at the June Conference in Rome.