The first international court to try war crimes was the International Military Tribunal (IMT) which held the Nuremburg Trials, the trial of major Nazi war criminals after World War II. The United Nations General Assembly instructed the International Law Commission (ILC) to develop a code setting out the legal principles behind the IMT, which it did; the ILC also developed in the 1950s a proposal for the creation of a permanent international tribunal to try war crimes in the future, but the General Assembly did not take up the proposal at the time due to the onset of the Cold War.
The world did not see another international court for trying these crimes until after the Cold War ended. In response to the wars in the Former Yugoslavia, and the genocide in Rwanda, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. However, it was desired to create a permanent tribunal, so that an ad hoc tribunal would not have to be created after each occurence of these crimes. Therefore the General Assembly requested the ILC to update its earlier proposal, which it then presented to the General Assembly.
The General Assembly called the United Nations Diplomatic Conference of Plenipotentaries on the Establishment of an International Criminal Court, in Rome, Italy, where the Rome Statute of the International Criminal Court was adopted, July 17 1998. Almost all states participating voted in favour of the Statute; the United States, Israel, China, Cuba, Iran, Libya and North Korea voted against. The United States and Israel went on to sign the Statute just before the deadline to do so, but neither seems likely to ratify it in the near future.
The Statute will enter into force after it recieves 60 ratifications; as of 30 November 2001, it had recieved 47, but it was expected to recieve the required 60 before the end of 2002. The ICC will be established when the Statute enters into force. When established, the ICC will have its headquarters in The Hague, Netherlands; but it is empowered to hold its proceeding anywhere.
The Statute provided that the ICC, once established, would have the power to try individuals for war crimes, crimes against humanity and genocide. It would have jurisdiction over these offences when committed on the territory of a state party, by a national of a state party, or over non-state parties when provided with such jurisdiction by the UN Security Council.
Many states supported providing the ICC with jurisdiction over the crimes of aggression, terrorism and drug trafficking; however other states opposed this, on the grounds that these crimes were difficult to define, and that providing jurisdiction over less serious crimes such as terrorism and drug trafficking would distract from the seriousness of the crimes the ICC was established to deal with. As a compromise, the Statute provides the ICC with jursidiction over aggression, but only once an amendment to the Statute is adopted defining it; and it provides that it may also be amended to expand its jurisdiction to include other crimes. But no amendments can be made until seven years after the Statute's entry into force.
Reasons certain states have for rejecting the Statute
The United States has opposed the Statute based on fears that the American soldiers and political leaders may be subject to frivolous or political motivated prosecutions. Most other states consider that the checks and balances in the ICC make this an unlikely possibility. The United States therefore rejected the Statute. It then attempted to ensure that US nationals could not be tried by the ICC. It signed the ICC Statute at the last minute, primarily so that it could continue to take part in negotiations on the rules of procedure for the new court, in an attempt to obtain an exemption for US nationals.
Israel objects to the Statute because one of the war crimes the ICC is granted jurisdiction over is the war crime of the transfer of parts of the civilian population of an occupying power into occupied territory. Israel fears this provision might be used to prosecute Israeli settlers, or Israeli government officials who support the policy of settlements, for war crimes. But in theory it supports the idea of the ICC, because of the Jewish experience during the Holocaust of being victims of the crimes the ICC is being established to deal with.
China rejects the ICC on the grounds that it considers it an attempt to interfere with the domestic affairs of soverign states.
Is the Statute legal?
It has expressed opposition to even the other states involved going ahead with it, claiming that the Statute is illegal under international law. The United States' objection is that the Statute provides the court with jurisdiction over nationals of non-State parties for crimes committed on the territory of a State Party. The United States claims this amounts to the treaty binding non-State parties, and under international law only parties to a treaty can be bound by it. From a legal perspective however, the United States' argument has little merit. It is universally recognized under international law that States have the right to try foreign nationals for crimes committed on their territory; and if a State has the right to exercise jurisdiction in this case, that state can request an international organization to exercise that jurisdiction on its behalf (by means of the treaty establishing that organization. Remember that traditionally in international law, international organizations are considered to be instruments through which their member states act.) Providing the ICC with jursdiction over US nationals in this case in no way interferes with US soverignity.
In fact, the ICC could legally have been provided with jurisdiction over non-State party nationals even for offences not committed on the territory of a state party. Most of the crimes the ICC has jurisdiction over are recognized under international law as crimes of universal jurisdiction, meaning that any state may try individuals who commit these crimes, even if they are committed by foreign nationals on foreign territory. The State parties could therefore have legally authorised the ICC to exercise this universal jurisdiction on their behalf. The only reason the Statute does not provide for universal jurisdiction for the ICC is political, not legal.