A permanent international court to try people accused of the world’s gravest crimes will come into existence on July 1. The treaty establishing the court – agreed in Rome nearly four years ago – took effect on April 11 after it passed the threshold of being ratified by sixty countries.

The International Criminal Court, which will be based in The Hague, is the first permanent tribunal able to hear cases against individuals of any country for crimes under international law. It has been hailed by its supporters as a landmark in the evolution of international justice. United Nations Secretary General Kofi Annan told a ceremony to mark the occasion that "impunity has been dealt a decisive blow".

The court will initially have jurisdiction over war crimes, crimes against humanity, and genocide. It will be able to try individuals from countries that are parties to its statute, or anyone who is charged with a crime committed on the territory of a country that is a party. The court will not have retrospective power: it will only be able to indict people for crimes committed after it comes into being.

Countries that have not signed the statute include China, India, Indonesia, Iraq, Japan, Pakistan and Turkey. Egypt, Iran, Israel, Russia and the United States have signed the statute but not ratified it, which means they are not bound by the court’s jurisdiction. Citizens of these countries might still be indicted by the court – if the crimes they are alleged to have committed took place in a state that recognises the court – but the country's government would be under no obligation to cooperate with the prosecution.

The International Criminal Court builds on the precedent of the current tribunals for the former Yugoslavia and Rwanda. In one respect, though, it is more modest than these bodies. Under the principle known as "complementarity", it will only be able to hear cases that national courts are unable or unwilling to prosecute. (The Yugoslav and Rwandan tribunals take precedence over national proceedings – a provision that has led to acute friction with the post-genocide Rwandan government.)

These factors mean, according to some experts, that the court’s initial impact may be limited. Professor Alain Pellet of the University of Paris, one of France’s most prominent international lawyers, said in an interview that the creation of the court was "symbolically very important", but that he was less optimistic about the court’s immediate use. In particular, he warned that it was likely that those countries where the court was most needed would also be among those that rejected its jurisdiction: "The danger is that it will be a court for virtuous states, rather than a court for the international community as a whole."

Under the court’s statute, the Security Council will be able to refer cases for trial, even where the country concerned is not a party. However some international lawyers believe such cases will have a political cast that would not be present if the cases had been initiated by the court’s independent prosecutor. Adam Roberts, Professor of International Relations at Oxford University and an authority on international law, warned recently in the Guardian newspaper of the risk "that the ICC may in the end tackle a small number of cases, mainly from third world states. If so, it would add to the damaging perception of the system as dominated by the white North, imposing standards on a reluctant South."

The ICC is supported by all of the major European countries. The United States however has been a consistent opponent of the court as it is constituted. Under the Clinton administration, the US envoy to the Rome conference, David Scheffer, took the lead in arguing for a court of more limited powers; in effect, he wanted to ensure that no American could be prosecuted by the court. Scheffer won some concessions, but not enough to secure this objective. Eventually President Clinton signed the Rome Treaty as one of his final acts in office, but, aware of the strong opposition in the Republican-controlled Senate, he made no attempt to send it to Capitol Hill for ratification.

Since taking office, President Bush has made it clear that he has no intention of ratifying the statute. His administration opposes the court because it believes it could be used to bring politically-motivated prosecutions against American military personnel. Recently, remarks by Bush’s ambassador for war crimes, Pierre-Richard Prosper, have suggested that the US may take a more formal step to underline its opposition to the court. Speaking to a group of US news organizations including the New York Times, he said on April 11: "Our position is that we continue to oppose the treaty and do not intend to become a party…It is important that our position is made clear and that we operate here in good faith and not create expectations in the international community that we will be a party to this process in the near term."

Comments like these have given rise to fears among human rights advocates that the Bush administration plans to "un-sign" the treaty by formally notifying the UN that the United States has no intention of ratifying the statute. According to Bruce Broomhall, director of the International Justice Program at the Lawyers’ Committee for Human Rights, this would be an unprecedented step: "Never has a U.S. President 'unsigned' an international treaty, and nor have other countries." He suggested that such a step would antagonize American allies and encourage autocratic leaders to revoke international commitments, without having any concrete effect on the functioning of the International Criminal Court.

Some foreign observers argue that concessions made to try to secure US approval of the ICC weakened the court unnecessarily, because it was always unrealistic to think that the United States would sign up to a court with any measure of independence. One concession limited the jurisdiction of the court (it had been proposed that the court would also have jurisdiction when the victim of a crime belonged to a country that was a party to the statute, or when the suspect was in the custody of a state party). Another gave the Security Council the right to halt any prosecution for up to a year at a time.

Professor Pellet of the University of Paris said that it was a mistake to go so far to meet American objections "when everybody knew that it would not be enough". He said that it was clear in retrospect that US negotiators had been "dishonest" in trying to extract these concessions, and that other countries had been "silly" to agree to them.

Related chapters from Crimes of War: What the Public Should Know:

Crimes Against Humanity
Genocide
War Crimes

Related Links

Home page of the International Criminal Court

Coalition for the International Criminal Court

Lawyers' Committee for Human Rights

Ratification ceremony at UN paves way for International Criminal Court
United Nations Press Release, April 11

Just the Beginning
By Adam Roberts
The Guardian, April 8 2002

American Opposition to the International Criminal Court
By Jonathan Tepperman

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