Rome Diplomatic
Conference for an International Criminal Court
By Michael P. Scharf
June 1998
Introduction
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.*
The 1,700 provisions remaining
in brackets reflect four main unresolved
issues: (1) the ICC's subject matter jurisdiction;
(2) the mechanism for triggering the ICC's
jurisdiction; (3) mechanisms to protect
national security information requested
by the ICC; and (4) the manner of financing
the ICC. The most critical of these is the
question of the ICC's triggering mechanism,
which can be broken down into four additional
issues that must be resolved in Rome: (1)
the ICC's inherent jurisdiction and requirement
of State consent; (2) the concept of complementarity
and the ICC's relationship with national
courts; (3) the authority of the Prosecutor
to initiate proceedings; and (4) the role
of the UN Security Council.
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.
Triggering Mechanism
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.
A final method is by creating
a role for the Security Council in the second
track, as well as the first track. The United
States has proposed that Security Council
authorization be required for any case to
reach the ICC. The result would be the establishment
of a permanent ad hoc Tribunal that would
be available to receive cases when none
of the Permanent members of the Security
Council object. The majority of countries
favor no role for the Security Council in
the operation of the second track. A compromise
under consideration in Rome (proposed by
Singapore) would give the Security Council
by an affirmative vote the authority to
order a stay of proceedings for a specified
(but renewable) period.
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.
Financing
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.
The second option,
supported by the United States, is to finance
the ICC through an assessment of States
Parties. But this proposal would delay the
functioning of the ICC, and place a great
financial burden on a potentially small
number of States who are the first to ratify
the Court's Statute.
The third option is to
have the United Nations pay the initial
costs of setting up the ICC, and the States
Parties would assume responsibility only
after a set number of ratifications.
Conclusion
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.
Track Two is the independent
court track, in which the Court's jurisdiction
would be triggered by complaints from member
states as well as by the Court's Prosecutor.
Only the parties to the ICC statute would
be bound to cooperate with the Court under
the second track, and there is no built-in
means of ensuring compliance. Under the
concept of complementarity, the second track
would be utilized only as a last resort
where no country is willing and able to
prosecute a particular case.
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.
It is no exaggeration to
say that the future of international humanitarian
law will be decided in the next few weeks
in Rome. For the ICC to become a reality,
important compromises will have to be made
on both sides. Such compromises will be
possible as long as the delegates in Rome
view the ICC as a first step, which can
be expanded and strengthened as it proves
itself worthy of the international community's
confidence in the years ahead.
______________________
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.
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