Rome Diplomatic Conference for an International Criminal Court
By Michael P. Scharf
Delegations from 150 countries and dozens of NGOs are meeting at a Diplomatic Conference in Rome this month to finalize the Statute for a permanent international criminal court (ICC). They have set a July 17 deadline by which they hope to have reached consensus on 1,700 bracketed clauses remaining in the draft statute prepared by the International Law Commission in 1994 and revised by a UN Preparatory Committee during three years of meetings. The bracketed text (UN Doc. A/Conf.183/2/Add.1) can be obtained from the Internet website maintained by the NGO Coalition for an International Criminal Court: http://www.igc.apc.org/icc.*
Subject Matter Jurisdiction
The draft statute provides for jurisdiction over genocide, crimes against humanity, and serious violations of international humanitarian law (i.e., war crimes). In addition, there is broad (though not universal) support for including the crime of aggression, subject to the finding of aggression by the Security Council. Other issues that still need to be resolved in Rome include whether crimes against humanity should apply irrespective of the existence of an armed conflict, and whether war crimes should include atrocities committed in purely internal armed conflicts. In addition, a few countries continue to advocate including violations of the anti-terrorism conventions within the ICC's jurisdiction, but support for that position has waned.
As envisaged in the draft statute, the ICC would be a two-track system: the first track would constitute cases referred to the Court by the Security Council; the second track would consist of cases referred to the Court by States Parties or the ICC Prosecutor. The most important debate in Rome concerns how strong or how weak to make the second track. The primary goal of the U.S. Delegation is reported to be to obtain agreement on a text in which protections are built into the second track to limit the potential exposure of U.S. military personnel and officials to the jurisdiction of the ICC.
One way to minimize the possibility of unwarranted or politicized proceedings under the second track is to include a state-consent regime. Four options for such a regime are under consideration in Rome. First, there is the German proposal that would require consent only of non-parties to the Court's Statute who have custody of an alleged offender or of relevant evidence. Second, there is the U.K. proposal that would assign the ICC jurisdiction only where the State of the accused's nationality and the State where the crime was committed are either parties to the ICC Statute or have consented to jurisdiction. Third, there is the option contained in the ILC's 1994 draft statute. This would give the Court jurisdiction over genocide without requiring any State's consent, but for other crimes would require the consent of the State where the crime was committed, the State of the accused's nationality, and of any State that had requested his or her extradition for the crime. Finally, there is the U.S. proposal under which the case-by-case consent regime of the ILC option would apply for all crimes, including genocide, unless the case is referred to the Court by the Security Council.
Another way to diminish the perceived problems presented by the second track is through expanded implementation of the "complementarity principle." Under this principle, the ICC may exercise its jurisdiction under the second track only where the Prosecutor is able to establish to the satisfaction of the Pre-Trial Chamber of the ICC that the national courts are either unwilling or unable to prosecute a case diligently and impartially. The United States has proposed a "double-lock" system whereby, even before the commencement of investigation, the Prosecutor would be required to make a public announcement that it is seized of a situation for investigation. If any State informs the Court that it wishes to exercise its domestic jurisdiction over the matter, the Prosecutor would be required to defer the investigation to that State. Only a preliminary decision of the Pre-Trial Chamber on complementarity can prevent that deferral.
A third approach is to constrain the authority of the ICC Prosecutor to initiate investigations on its own, as opposed to responding only to the assessment of States and of the Security Council. A small number of countries, including the United States, want an ICC Prosecutor with no authority to initiate investigations on its own. The majority of countries advocate a fully independent Prosecutor, subject only to judicial confirmation of indictments at the conclusion of an investigation. A compromise under consideration in Rome (proposed by Argentina and Germany) would provide for judicial review before an investigation can go forward without a State complaint or a Security Council referral.
National Security Information
Another controversial issue is how to allow States to protect national security information requested by the ICC without emasculating the ability of the Court to obtain information that is critical to its proceedings. The United Kingdom has proposed a detailed procedure under which the ICC can evaluate the validity of claims of national security. The United States favors a proposal that would leave it up to each State to determine whether to decline a request for evidence on the basis of a claim of national security. The ICC would not have the authority to make a judicial finding in respect to such a claim.
Three options are under consideration for funding the ICC, which is likely to cost as much as a hundred million dollars annually. The first is to finance the ICC through the regular UN budget. The argument in favor of this option is that the regular UN budget would guarantee a consistent flow of money necessary to maintain the independence of the ICC. On the other hand, this option would require non-parties to pay for an institution they do not necessarily support, and would result in a significant drain on the UN's scarce resources.
It is clear that the ICC that emerges from Rome will be a two-track system. Track One is the Security Council-initiated track, in which the Court would have jurisdiction over situations referred to it by the Security Council. Any of the Permanent Members of the Security Council could veto the Court's jurisdiction. Situations would be defined geographically and temporally (for instance, atrocities committed in the territory of Rwanda from 1994-1995). Once a situation is referred to the ICC by the Security Council, the ICC Prosecutor would have full authority to decide who to investigate and who to charge. Under this track, compliance with the Court's requests for evidence and surrender of indicted persons is mandatory for all countries of the world under Chapter VII of the UN Charter. This track would be enforced by Security Council-imposed sanctions such as economic embargoes and freezing of assets.
The U.S. Delegation in Rome is seeking agreement on various mechanisms that would limit U.S. exposure to the second track of the Court's jurisdiction. As described above, these include variations on the case-by-case State-consent regime, the double-lock system of judicial review of complementarity, limiting the authority of the ICC Prosecutor to launch investigations on its own, and providing a role for the Security Council in the exercise of the Court's jurisdiction under the second track. While many countries see this as an imperialistic impulse on the part of the United States to shield itself and its allies from the rule of law, there is a case to be made for the United States' approach. As the world's strongest military and economic power, the United States is expected to respond to acts of aggression and humanitarian crisis around the world. The United States' unique position renders it uniquely vulnerable to the potential jurisdiction of an ICC.
However, with the U.K. and France recently changing camps, the United States has few remaining allies in Rome to support its position on this all-important issue. Recent history suggests two scenarios for the likely outcome should the U.S. delegation prove unable to achieve its goal:
As with the Ottawa Convention to Ban Landmines, if the United States does not obtain its objective at the Diplomatic Conference, it may refuse to sign the treaty creating the ICC. Indications are that the vast majority of countries will sign and eventually ratify the ICC treaty even without the United States' participation. Under this scenario, the cost of retaining immunity from the vagaries of the second track of the ICC's jurisdiction is that the United States will be prevented from utilizing the Security Council-controlled first track in future cases like Bosnia and Rwanda.
A second outcome might follow the experience with the Kyoto Global Warming Treaty. Though it did not obtain all the concessions it desired, the United States reluctantly decided at the last minute to sign the Kyoto agreement, while stating its intention not to submit the Treaty for Senate ratification any time soon. Such a statement with respect to the ICC would not be unexpected given Jesse Helms' pledge to prevent the Senate from considering the ICC Treaty during his watch. As Chairman of the Senate Foreign Relations Committee, Helms is in a position to single-handedly bottle up the treaty. Under this scenario, the United States probably would be able to utilize the ICC's first track since it had shown support for the ICC by signing (though not ratifying) the Treaty. Until the United States ratifies the Treaty, however, it will not be obligated to cooperate with the ICC under the second track, but could do so at its discretion on the basis of comity.
Professor of Law and Director of the Center for International Law and Policy at the New England School of Law. From 1989-1993, Michael Scharf served as the U.S. State Department official with responsibility for the issue of a permanent international criminal court. He is the author of three books about the Yugoslavia and Rwanda Tribunals, including the Pulitzer Prize nominated Balkan Justice.