Book Review and Note: The International Criminal Court: The Making of the Rome Statute

Issues, Negotiations, Results. Edited by Roy S. Lee*

The American Journal International Law, January, 2000 (94 A.J.I.L. 218)

By Benjamin B. Ferencz

A statute laying the foundation for a permanent international criminal court (ICC) was adopted by overwhelming vote at a diplomatic conference in Rome on July 17, 1998. The Secretary-General of the United Nations, Kofi A. Annan, hailed the statute as "a gift of hope to future generations," as "one of the finest moments in the history of the United Nations," and as "a giant step forward in the march towards universal human rights and the rule of law" (p. ix). Professor Roy S. Lee, executive secretary of the Rome Conference, has assembled and edited contributions from twenty-eight key players who present an authoritative "insider's view" that explains the statute's 128 articles and how difficult compromises were reached in the process of drafting them. It is an indispensable source book for serious students of the subject.

Managing a conference of 160 participating states and amalgamating vastly divergent viewpoints was a daunting enterprise. Lee's introduction sketches the creation of simultaneous working groups and coordinating mechanisms to reconcile and meld conflicting clauses into one cohesive legal package. Policy questions that could not be settled had to be skillfully deferred for later consideration. Lee, who recently retired as director of the United Nations' Codification Division, maintains that the new court would harmonize national judicial systems and strengthen law enforcement regarding major crimes of concern to the world community. An ICC would help deter those who thought themselves beyond the reach of international justice. He concludes, optimistically: "An effective, functioning International Criminal Court will soon be a reality" (p. 38).

Sixteen explanatory chapters follow the sequence of the statute itself. John T. Holmes, of Canada, surveys the fears of many delegations that an ICC would trespass on national sovereignty. The compromise text confirmed that the court would only complement and not supplant national courts. The ICC could step in only when national courts were unable or unwilling to bring to fair trial those who had committed outrageous crimes; since genocide, crimes against humanity, war crimes, and aggression are usually committed with the connivance of the state itself, however, the ultimate decision whether a local trial, if any, was a sham had to be left to the international judges. Holmes lauds this framework of complementarity as a balanced and valuable approach obliging states to fulfill their obligations under customary and conventional international law.

Which crimes should come within the jurisdiction of the court? The difficulties are reviewed in thoughtful comments by Herman von Hebel of the Netherlands and Darryl Robinson of Canada. It was finally agreed that the court would have jurisdiction over only four "core crimes": genocide, crimes against humanity, war crimes, and the crime of aggression. Genocide, already accepted in binding conventions, was the least contentious. Definitional problems arose concerning crimes against humanity. They were made punishable only if part of a widespread or systematic attack against any civilian population—regardless of the nature of the conflict. The delineation of war crimes, the limits of military necessity, collateral damage, and proportionality were intensively debated. The United States, concerned about restraints on its ability to intervene militarily in humanitarian emergencies, sought to restrict the court's reach by insisting, in particular, that the elements of crimes -- the conditions under which criminality could be imposed—be clearly stipulated. Attempts to criminalize the use of nuclear weapons were doomed to defeat by the nuclear powers.

Punishing the crime of aggression was probably the most contentious issue of the Rome Conference. Many states, recalling that "crimes against peace" had been condemned by the Nuremberg War Crimes Tribunal as "the supreme international crime," [1] insisted that it be subject to trial by the ICC. Others argued that aggression should be omitted; not only had it never been adequately defined for use in a criminal statute, but the Security Council might, for political reasons, prevent prosecutions. The result was a hastily drawn, last-minute compromise. Before aggression could be dealt with by the criminal court, nations would have to agree upon its definition and clarify the role of the Security Council in connection with such a charge. The requisite discussions will have to await a review conference, which can take place no earlier than seven years after the statute is ratified and takes effect. Until that time, aggression will not be within the ICC's jurisdiction. Contrary to the recommendation of the International Law Commission, the inclusion of "treaty crimes," such as torture, drug trafficking, and certain forms of terrorism, was also postponed.

The United Kingdom's veteran negotiator Elizabeth Wilmshurst elaborates on the "trigger mechanism" for bringing cases to the ICC and the consent required from states before the court can act. She describes compromises that left many questions unanswered. Lionel Yee, respected leader of the Singapore delegation, discusses the Security Council's UN-Charter responsibility to determine the existence of aggression by a state (Article 39) and to maintain peace under its Chapter VII authority. The composition and administration of the court, including the process of selecting judges, are described by Medard R. Rwelamira, legal adviser to the South African delegation. Silvia A. Fernandez de Gurmendi, a seasoned diplomat from Argentina, who played a key role in coordinating the draft rules of procedure and evidence for the court, describes the negotiating process and offers a detailed analysis of the powers of the prosecutor. She concludes that a sufficient system of checks and balances has been created to regulate and to prevent abuses by either the prosecutor or the court.

The legislative history of the dozen or so articles dealing with general principles of criminal law, which were needed to assure fair trial by the ICC, is analyzed by Per Saland, the distinguished Swedish diplomat who was also the committee chairman. Included in his discussion are: provisions guaranteeing nonretroactivity of the statute; the requirement of criminal intent (mens rea); the responsibility of commanders; applicable law; and the unique problems that arose in defining "gender crimes." Fabricio Guariglia of Argentina explains the investigation and prosecution procedures, the rules for which are set down in a straightforward way. Hans-Jorg Behrens of the German delegation reviews trial procedures, including the submission of evidence. Hakan Friman of Sweden deals with the rights of the accused and the exclusion of trials in absentia.

Christopher Muttukumaru of the British delegation treads on new ground. He explains Article 75 of the statute, which calls for the "restitution, compensation and rehabilitation" of victims in accordance with principles still to be worked out by the judges. Practical implementation of this elementary axiom of justice was given little consideration, despite important precedents. [2]  A matter of especially intense debate concerned the handling of confidential national security information and how it could be admitted or excluded as evidence. The storm it generated is dramatically described by Donald K. Piragoff of Canada, who concludes that relinquishing the decision to the judges leaves uncertain whether the future will be clear or turbulent. Helen Brady and Mark Jennings of the Australian delegation describe procedures dealing with appeals and the revision of sentences, and also discuss the compromises reached in order to create what they characterize as a workable regime.

International cooperation with the ICC is dealt with by Phakiso Mochochocko of Losotho, who chaired committees on that subject. Despite hard-fought political compromises, the ideal of a perfect regime, one in which all states are legally bound to give the prosecutor all the assistance needed, could not be attained. Rolf Einar Fife, head of the Norwegian delegation, describes problems relating to the penalties that the ICC can impose. The variety of national standards and norms seemed irreconcilable; states that abandoned the death penalty would not sign on to a statute that permitted capital punishment. A consensual solution was ultimately found; namely, that the statute would not prejudice the application of penalties under national laws.

Problems relating to the imprisonment of convicted persons are described by Trevor Pascal Chimimba of Malawi (who pays special tribute to the help received from an American delegate, Mary Ellen Warlow, of the U.S. Department of Justice). Advances in delineating, investigating, and prosecuting crimes of sexual violence are described in detail by Cate Steains of the Australian delegation, who also discusses improved procedural and structural mechanisms to assist female victims and assure gender balance in court administration. The emotionally charged issue of "forced pregnancy" required delicate compromises with Catholic and Arab countries, which feared interference with national laws prohibiting abortion. The adoption of measures to provide greater protection to women -- as a matter of human rights—was a praiseworthy achievement.

Vigorous lobbying by a determined Women's Caucus for Gender Justice played a decisive role  in advancing women's rights beyond what had been achieved by the ad hoc criminal tribunals the Security Council created in order to deal with genocide and crimes against humanity in Yugoslavia and Rwanda. The activities of nongovernmental organizations (NGOs) are described in a chapter by William R. Pace, coordinator of the Coalition for an ICC, and his able assistant Mark Thieroff. Amnesty International and other NGOs monitored the work of the delegations, presented papers in support of various provisions, and kept the public informed; it was a demonstration of the effective mobilization of civil society on behalf of the rule of law. Pace's coalition, supported by hundreds of human rights advocates, continues its campaign at the United Nations and around the world to obtain the ratifications needed for the ICC to become operational.

Institutional measures that must still be completed are ably described by S. Ramo Rao, India's knowledgeable expert on UN legal matters. He analyses issues relating to financing the ICC, the formation and activities of the assembly of state parties that will supervise the court once it starts functioning, and the interim responsibilities of the preparatory commission that met in 1999 and will meet again this year to make recommendations on a number of outstanding matters. He identifies the progress over the years and outlines the major viewpoints expressed. His cautious conclusion is that the statute's viability "will lie in its application on the ground and . . . on the overall acceptability of the Court in the real world" (p. 420). Ambassador Tuiloma Neoni Slade of Samoa and the ebullient Professor Roger S. Clark of Rutgers University, who played an important role in his capacity as adviser to the Samoa delegation, present trenchant comments on the preeamble and final clauses, which deal with the settlement of disputes regarding the statute; the prohibition of reservations; procedures for amendments, accession, or "opting out"; and other transitional provisions.

The book's many detailed chapters are placed in an illuminating perspective by Ambassador Philippe Kirsch, legal adviser to Canada, who skillfully guided the Rome Conference to its successful conclusion. He describes the evolution of the Rome Statute; the negotiating process; the division of labor; and the tributes and credit due to many states and individuals. [3]  He concludes that the international community has a responsibility toward the past and future victims of abominable crimes "to create a Court with workable rules and the tools to fulfill its historic mandate" (p. 461). Adriaan Bos, legal advisor to the Netherlands, who endeared himself to all during years as chairman of preparatory committees, called for the widest possible support for the ICC as an institution of "inestimable importance to the development of the international legal order" (p. 470). In an epilogue, "Looking to the Future," Professor Giovanni Conso, president of the Rome Conference and former minister of justice of the host country, Italy, appeals to the political and moral responsibility of nations "to establish the International Criminal Court on a sound, practical basis, as soon as possible" (p. 477).

The book closes with brief comments by almost one hundred governments (followed by an appendix containing the full text of the Rome Statute). The European Union described itself as "as extremely satisfied" (p. 574). Australia hailed "the realization of a long-standing goal" (p. 575). Canada called the statute "an outstanding example of what the international community could achieve when the necessary political will existed" (p. 579). China had reservations concerning the universal jurisdiction provisions, which, in its view, "infringed on the judicial sovereignty of States" (p. 582). Egypt noted that the "Arab world had need for such a Court" (p. 591). The Holy See welcomed the outcome of the conference. India stressed its disappointment that terrorism was not included within the court's jurisdiction and that the first use of nuclear weapons was not recognized as an international crime (p. 599). Israel expressed concerns about several formulations it considered prejudicial (p. 602); despite that country's support for a body such as the ICC since the 1950s, it was one of the few states that did not vote in favor of the statute. Japan recognized that the court was a major step forward but noted that much still remained to be done (p. 604). Russia saw the statute as being, on the whole, a well-balanced compromise (p. 616). The United Kingdom joined with the European Union in supporting the ICC (p. 631). The United States expressed its support for something like an ICC but concluded that the Rome Statute "contained flaws that rendered it unacceptable" (p. 632).

It is most regrettable that the United States, for reasons not shared by others, felt constrained, for the time being, to reject what most other nations of the world were ready to accept.  After all, it was Elihu Root, the founder and first president of the American Society of International Law, who had espoused the creation of such a court after World War I. And it was the United States that, after World War II, led and inspired the rest of the world with its insistence at Nuremberg that aggression, crimes against humanity, and war crimes were criminal acts that would, in the future, subject all perpetrators to international justice. It was the United States that made possible the creation of the two ad hoc tribunals to punish genocide and crimes against humanity in Yugoslavia and Rwanda. It was America's president who proclaimed to the UN General Assembly on September 22, 1997, that "before the century ends, we should establish a permanent international court to prosecute the most serious violations of humanitarian law." It is to be hoped that these great stepping stones will not be cast aside now.

The implied promise of the Nuremberg that "never again" will crimes against humanity or aggression go unpunished has yet to be fulfilled. It remains to be seen whether powerful states will be willing to yield some of their sovereignty by accepting new rules of the road designed to protect the peace and dignity of humankind. The United States has always led the world in calling for the protection of human rights. It must not fail or falter now by seeking to exclude itself from legal constraints that must bind everyone if we are to have a more peaceful world under law. The President should sign the Rome Statute as a confirmation of his good faith and continuing support for his professed goals. When the treaty is submitted to the Senate for its advice and consent before ratification, all doubts can be debated and the voices of the people can be heard.

The legal community is on the threshold of taking an important step forward in the evolution of international criminal law. An International Criminal Court is now in formation but it has not yet been formed. Many excellent new books dealing with the International Criminal Court have already appeared or are in preparation. They will help lead the way to the new legal thinking that is urgently needed for the new millennium. Roy Lee's compilation, with its comprehensive insights, is well worth studying by all who are concerned with the peace and security of humankind.