idea of the establishment of a permanent international criminal court
emerged for the first time in the aftermath of the First World War.
A provision of the Treaty of Versailles arraigned the former German
Emperor for a supreme offense against international morality
and the sanctity of treaties and envisaged the creation of a special
tribunal to try him. Provision was also made for military tribunals
of international composition to try ...persons guilty of criminal
acts against the nationals of more than one of the Allied and Associated
Powers , but such tribunals were never established. In the aftermath
of the Second World War, two ad hoc international military tribunals
(the International Military Tribunal at Nuremberg and the International
Military Tribunal for the Far East) were established to try individuals
who committed war crimes, crimes against peace and crimes against humanity.
Shortly after the UN was founded, the International Law Commission received
the mandate to codify the legal principles that emerged during the Nuremberg
and Tokyo trials, but progress on this initiative was blocked during
the Cold War years.
Toward the end of the 20th century, new impetus to the quest for a permanent
international criminal jurisdiction with universal scope came from the
end of the Cold War, the establishment of the ICTY and the ICTR, concern
about their ad hoc nature, and strong pressure from public opinion outraged
by the orderly impunity of egregious perpetrators of international crimes.
This lead to the adoption of the Rome Statute of the International
Criminal Court (ICC) in July 1998. According to article 126 of the
Statute, it enters into force 60 days after the deposit of the 60th
instrument of ratification or accession. Accordingly, the Rome Statute
came into force on July 1st, 2002. On February 25th, it had been ratified
by 89 States from all continents. The Court has the power to try persons
accused of the most serious international crimes
(i.e., genocide, crimes against humanity, war crimes and, if and when
agreement on a definition can be reached, the crime of aggression).
Doubtless, the roots of the Rome Statute can be traced back directly
to the ICTY and ICTR, along with a draft statute prepared in 1994 by
the International Law Commission. The ICC, together with the ICTY and
ICTR, form a genus on its own, clearly distinguishable from all other
bodies portrayed in this matrix. However, the ICC differentiates itself
from the ICTY and ICTR in several legal and structural features, some
of which can be briefly addressed. First of all and most obviously,
unlike the Yugoslavia and Rwanda tribunals, the ICC is a permanent judicial
body, the jurisdiction of which is not limited by any time limits (of
course, save the principle of non-retroactivity ) and, at least potentially,
has universal reach. Secondly, although the jurisdiction of the two
ad hoc tribunals is not exclusive, but concurrent with that of national
courts, both have primacy over national courts. At any stage of the
procedure, they may formally request the national courts to defer competence.
Conversely, the judicial activity of the ICC is intended only to complement
that of national courts. It will exercise its jurisdiction only when
national courts are unwilling or unable genuinely to carry out the investigation
or prosecution of a person accused of the crimes defined in the Rome
Another fundamental difference is that while the ICTY and the ICTR are
subsidiary organs of the Security Council, and as such embedded in the
United Nations, the ICC will be much more self-reliant. UN members are
not ipso facto party to the Rome Statute. It is the Assembly
of the State parties, and not the Security Council, as in the case of
the ICTY and ICTR, that will supervise the work of the ICC (except in
those situations which have been referred to the Court by the Security
Council itself). It will review the administration of the Court, approve
its budget and receive reports on its operation and procedure. The Assembly
(not the Security Council) will also address instances of failure on
the part of the States to cooperate with the Court. Again, while the
ICTY and ICTR prosecutor is appointed by the Security Council based
on a nomination by the Secretary-General, in the case of the ICC he
or she is to be elected by the States parties.
Still, the ICC is expected to have significant links with the UN. Indeed,
situations in which one or more crimes appear to have been committed
can be referred to the Prosecutor by the Security Council, acting under
Chapter VII of the UN Charter, or by a State party to the Rome Statute.
Moreover, the Rome Statute provides that the UN will participate in
the funding of the ICC, together with States party, especially in relation
to the expenses incurred in cases initiated through referral by the
A further element that makes the ICC unique in the international judicial
panorama, is that it is the only international judicial body which has
a statutory provision whereby it may receive and utilize (on top of
those made available by the States party and the UN, when applicable)
funds and voluntary contributions from governments, international organizations,
individuals, corporations and any other entities.
Finally, perhaps what makes the Rome Statute significantly different
from all predecessors, and in particular from the two ad hoc tribunals,
is that for the first time victims of crimes and their families can
access the Court to express their views and concerns and to claim reparation
for the wrongs suffered. Indeed, in the Yugoslavia and Rwanda tribunals,
victims can enter the courtroom only as witnesses, providing one of
the means through which evidence may be brought before the tribunal.
In the Rome Statute, however, those who have suffered have been elevated
from a mere aid in the judicial process with no own interest
to protect but that of the criminal justice system into legitimate
participants. Several provisions in the Rome Statute stipulate the involvement
of victims during all phases of the case. Most importantly, victims
of international crimes can claim reparation for the violation of their
rights. They will do so on their own behalf or through their representatives,
not through a state espousing their claims.