The International Criminal Court—A Brief Introduction

in Max Planck Yearbook of United Nations Law Online
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The International Criminal Court—A Brief Introduction

in Max Planck Yearbook of United Nations Law Online

References

1 120 nations voted in favour, 7 against and 21 abstained. No official record of how states voted exists as no recorded voting was requested. Text of the Rome Statute, Doc. A/CONF.183/13 Vol. I. Reprinted in this Volume, see Annex. 2 Senegal became the first State party to ratify the Rome Statute. As of August 2003 there are 91 countries which had ratified the Statute. 3 Elections were held from 3-7 February 2003. According to article 36 para. 8 (a) (iii) of the Statute there has to be a fair representation of female and male judges. The 18 candidates are the following - (term of office in brack- ets) : R. Blattmann, Bolivia (6); M. Clark, Ireland (9); F. Diarra, Mali (9); A. Fulford, United Kingdom (9); P. Hudson, Trinidad and Tobago (9); C. Jorda, France (6); H.P. Kaul, Germany (3); P. Kirsch, Canada (6); E. Kou-

rula, Finland (3); A. Kuenyehia, Ghana (3); E. Odio Benito, Costa Rica (9); G. Pikis, Cyprus (6); N. Pillay, South Africa (6); M. Politi, Italy (6); T. N. Slade, Samoa (3); S. Song, Republic of Korea (3); S. Steiner, Brazil (9); A. Usacka, Latvia (3). The official inauguration took place on 11 March 2003. Immediately after the judges were sworn in, they conferred in what was their first private meeting as a Court, and elected P. Kirsch as their Presi- dent, and two vice presidents. L.M. Ocampo of Argentina has been elected to be the chief Prosecutor in April 2003. 4 See in this respect article 5 para. 2 of the Statute. 5 Article 227 of the Treaty of Versailles reads: Para. 1 - "The Allied and As- sociated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and

the sanctity of treaties." Para. 2 - "A special Tribunal will be constituted to try the accused, ... " 6 Arts 228 and 229 of the Treaty of Versailles read: Article 228 para. 1 - "The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having com- mitted acts in violation of the laws and customs of war .... " Article 229 para. 1 - "Persons guilty of criminal acts against the nationals of one of the Allied or Associated Powers will be brought before the military tribunals of that Power." 7 The Kaiser sought refuge in the Netherlands and the Allies did not for- mally request his extradition. 8 Article 227 does not refer to any known international crime but seems to refer to the crime of aggression as a political crime. 9 During a speech in 1939 Hitler is reported to have said: "Who after all is today speaking about the destruction of the Armenians?", cf. M. Cherif Bassiouni, "From Versailles to Rwanda in Seventy-Five Years: The Need to establish a Permanent International Criminal Court", in: P. Ungari/ M.P. Pietrosanti Malintoppi (eds), Verso un Tribunale Permanente Internazion- ale sui Crimini contro L'umanita. Precedenti Storici e Prospettive di Isti- tuzione, 1996, 135 et seq. Bassiouni chaired the Committee of the Whole and the Drafting Committee in the Rome conference, see below. 10 L. Weber, "Lausanne Treaty (1923)", in: R. Bernhardt (ed.), EPIL 3 (1997), 147 et seq.

11 For elaboration concerning the time after World War II, see Bassiouni, see note 9, 143 et seq. 12 Cf. United Nations (ed.), The Work of the International Law Commission, 5th edition, 1996, 29-30. t3 A/RES/260 A (III) of 9 December 1948. 14 Article VI of the Convention. 15 A/RES/217 A (III) of 10 December 1948. t6 A/RES/3314 (XXIX) of 14 December 1974. Here one has to note that the General Assembly always wanted to deal first with the Report of the Spe- cial Committee on the Question of Defining Aggression and the ILC's Draft Code of Offences. Therefore the already 1953 submitted Draft Stat- ute for an ICC elaborated by a Special Committee of the General Assem- bly was as well as the already 1954 finished Draft Code of Offences not ta- bled until the final definition of aggression was agreed on. t� 7 A/RES/2200 A (XXI) of 16 December 1966.

18 Doc. A/C.6/44/L. 18 of 20 November 1989. 19 A/RES/44/39 of 4 December 1989. 20 International Criminal Tribunal for the Former Yugoslavia-S/RES/808 (1993) of 22 February 1993 and International Criminal Tribunal for Rwanda-S/RES/955 (1994) of 8 November 1994. 21 GAOR 49th Sess., Suppl. No. 10. 22 A/RES/49/53 of 9 December 1994. 23 A/RES/50/46 of 11 December 1995. 24 As to this problem see the contribution of M. Benzing in this Volume.

25 160 countries participated in the UN Diplomatic Conference of Plenipo- tentiaries on the Establishment of an International Criminal Court. The draft was filled with some 1.400 square brackets - that were points of dis- agreement in connection with the proposed provisions - cf. Doc. A/CONF.183/2/Add. 1 of 14 April 1998. As to the draft as such and the proposed crimes see in detail, A. Zimmermann, "The Creation of a Perma- nent International Criminal Court", Max Planck UNYB 2 (1998), 169 et seq. 26 "Forced Pregnancy" was included both as a crime against humanity (article 7 para. 1 (g)) and as a war crime (article 8 para. 2 (b)(xxii)), and a definition was added to the Statute, see in this respect Zimmermann, see above, 183. 27 But Doc. A/CONF.183/10 of 17 July 1998, Annex I, Resolution E referred to the possibility to include them later on. The issue of weapons of mass destruction where no consensus could be reached was deferred completely later on. See in this respect the article by K. Dormann in this Volume. 28 See below.

29 Concerning e.g. the definition of aggression, see P. Kirsch/ J.T Holmes, "The Birth of the International Criminal Court: The 1998 Rome Confer- ence", CYIL 36 (1998), 3 et seq. (30). 30 Article 5 para. 2 of the Statute. 31 See here the contribution of M. Wagner in this Volume, under II. 4. c. In particular footnote 459. 32 Cf. article 120. 33 Cf. article 123 of the Statute.

34 See note 1. 35 PCNICC/2000/1/Add.l, Report of the Preparatory Commission for the ICC-Addendum, Part I-Finalized draft text of the Rules of Procedure and Evidence of 2 November 2000. 36 PCNICC/2000/1/Add.2, Report of the Preparatory Commission for the ICC-Addendum, Part II-Finalized draft text of the Elements of Crimes of 2 November 2000. See in this respect the contribution of K. Dormann in this Volume. 37 There exists a non exhaustive list of instruments to be developed by the Preparatory Commission, cf. Resolution F in the Annex to the Final Act of the Conference, Doc. A/CONF.183/10 of 17 July 1998. 38 As to the election of the judges see note 3. 39 The United States signed the Treaty on 31 December 2000. But on 6 May 2002 in a letter sent to the United Nations Secretary-General, the Bush administration formally declared its intention not to ratify the Statute and renounced any legal obligations arising from its signature of the Treaty. A United Nations spokesman said "the effect of the notification is a matter for parties to the Statute to decide."

40 As of August 2003 Uzbekistan; Mauritania; the Dominican Republic; East Timor; Israel; the Marshall Islands; Palau; Romania; Tajikistan; Hon- duras ; Afghanistan; Micronesia; Gambia; El Salvador; Sri Lanka; India; Nepal; Djibouti; Tuvalu; Bahrain; Georgia; Azerbaijan; Nauru; Rwanda; Democratic Republic of the Congo; Tonga; Sierra Leone; Gabon; Ghana; Madagascar; Maldives; Albania; Bhutan; Philippines; Bosnia-Herzegovina; Bolivia; Egypt, Thailand; Nicaragua; Uganda; Mongolia; Tunisia; Sey- chelles ; Togo; Mauritius; Panama; Cambodia; Macedonia; Botswana; Sene- gal ; Mozambique; Zambia; Ivory Coast. Not all of them are signatories to the Rome Statute. Concerning the question of immunity, but in a different context, cf. also the United States led text of S/RES/1422 (2002) of 12 July 2002, which requires the ICC, initially for a period of one year, not to commence or proceed with the investigation or prosecution of any case concerning officials or personnel of United Nations operations from a state not party to the Rome Statute. This Resolution was prolonged by S/RES/1487 (2003) of 12 June 2003. Even S/RES/1502 (2003) of 26 August 2003, dealing with the protection of UN workers in conflict zones, does not mention the ICC explicitly, due to US pressure. 41 W Gaddis, A Frolic of his own, 1994.

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