The International
Criminal Court Treaty Enters Into Force
By Leila Nadya Sadat
April 2002
On
April 11, 2002, ten countries simultaneously deposited
instruments of ratification to the Rome Statute of the
International Criminal Court, bringing the total number
of States Parties to 66.
[1] A special ceremony was held at the United Nations
to mark the occasion of the 60th ratification,
which, pursuant to article 126 of the Treaty, will cause
the Statute to enter into force on July 1, 2002.
The ceremony took place during the ninth
session of the Preparatory Commission (PrepCom) for
the International Criminal Court. The PrepCom was
established by the Rome Diplomatic Conference that adopted
the ICC Statute to prepare the "implementing legislation"
necessary to bring the Court to life.
[2] During its first eight sessions, the PrepCom
completed, inter alia, draft texts of the Rules
of Procedure and Evidence, the Elements of Crimes, the
Relationship Agreement between the Court and the United
Nations, an agreement on the Privileges and Immunities
of the Court, the Court's Financial Regulations, and
the Rules of Procedure of the Assembly of States Parties.
Issues remaining on the PrepCom's agenda include the
headquarters agreement with the Netherlands, continuing
discussions on the crime of aggression, preparatory
documents for the Assembly of States Parties, other
financial issues, including the budget for the Court's
first year, the remuneration of judges, and the management
and oversight of the Trust Fund for Victims established
by article 79 of the Statute.
A final Preparatory Commission session
will be held in July, 2002, after which time the Court's
management and oversight will devolve upon the Assembly
of States Parties established by article 112 of the
Statute.
[3] Each State Party will have a representative
in the Assembly and Non-States Parties that have signed
the Statute or the Final Act of the Diplomatic Conference,
such as the United States, will be entitled to observe.
It is anticipated that the process for the nomination
and election of judges and the Prosecutor will be finalized
at the first meeting of the Assembly, currently expected
to convene from September 3 to 13, 2002, and that elections
will subsequently be held in January or February of
2003. Later in the year, the inaugural meeting of the
Court will take place at which the judges and the Prosecutor
will be sworn in. The Court will then elect the Presidency
and its Registrar, establish judicial Chambers, and
become fully operational. [4]
The ICC will have jurisdiction over the
crimes of genocide, war crimes and crimes against humanity
committed after July 1, 2002, but only insofar as those
crimes rise to the level of "crimes of concern to the
international community as a whole." [5] Moreover, in each case, the Statute's complex
jurisdictional and complementarity regimes, which limit
the conditions under which cases may be referred to
the Court and be decided by it, must be satisfied.
In particular, the Court may act only when national
systems are unable or unwilling to carry out investigations
or prosecutions of the crimes within the Court's jurisdiction.
Thus, even after establishment of the International
Criminal Court, States will remain primarily responsible
for the investigation and prosecution of international
crimes.
Ambassador David Scheffer signed the
Rome Statute on behalf of the United States on December
31, 2000, the last day the Statute was open for signature. [6] However, the Bush administration has made its opposition to
the ICC clear, and, in addition to stating that the
Treaty will not be submitted to the Senate for ratification,
apparently continues to consider options with regard
to the Treaty that range from a "wait-and-see approach"
to an attempt to "unsign" it.
[7]
About the Author:
Leila Nadya Sadat is a Professor of Law at Washington
University in St. Louis. She is a member of the Executive
Council and of the Executive Committee of the American
Society of International Law and is a Commissioner on
the United States Commission on International Religious
Freedom. She is the author of The International
Criminal Court and the Transformation of International
Law: Justice for the New Millennium (2002), among
other works.
[1] The ten countries were Bosnia-Herzegovina, Bulgaria,
Cambodia, the Democratic Republic of Congo, Ireland,
Jordan, Mongolia, Niger, Romania and Slovakia. [2] Final Act of the United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment
of an International Criminal Court, Annex I, Resolution
F, U.N. Doc. A/CONF.183/10 (1998). [3] Pursuant to Resolution F, the Preparatory Commission
"shall remain in existence until the conclusion
of the first meeting of the Assembly of States Parties."
Id. para. 8. [4] Road map leading to the early establishment
of the International Criminal Court, para. 6, Preparatory
Commission for the International Criminal Court, U.N.
Doc. No. PCNICC/2001/L.2, September 26, 2001. [5] Rome Statute of the International Criminal
Court, United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court,
July 17, 1998, Annex II, U.N.Doc A/CONF. 183/9 (1998),
preamble & art. 5(1). [6] Leila Nadya Sadat, The International Criminal
Court and the Transformation of International Law 43
(2002). [7] Bruce Zagaris, U.S. Continues to Assess
Options as ICC's Start Draws Near, 18 Int'l Enforcement
L. Rep., April 4, 2002.
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