Introduction
This book was written between 2017 and 2018. These two years also reflect two important anniversaries related to the International Criminal Court. The first one refers to the 15th anniversary of the Rome Statute of the icc entering into force in 2002, following the deposition of 60 instruments of ratification. The second one is more obvious because it reminds us that 20 years ago, in June and July 1998, the Diplomatic Conference on the adoption of the statute of the International Criminal Court took place in Rome. The editor of the present book had the privilege to be a member of the Czech delegation to the Rome Conference. During the long and very difficult negotiations it was not clear at all whether the Conference would finish with a success within the limited time frame. Neither was it clear what the Statute would be like, having in mind a lot of unsettled issues and alternative wordings of some important provisions. Finally, mostly thanks to a group of like-minded States and some compromises, the Conference adopted the Statute which provides a sufficient basis for the functioning of an independent court with the inherent jurisdiction with respect to the core crimes under international law. From a historical perspective, the adoption of the Rome Statute and its entry into force in less than four years from the Conference, earlier than many participants and commentators had expected, was an undeniable success.
However, this book does not intend, in any way, to be just a historical or retrospective publication on the occasion of the anniversary of the icc. On the contrary, it aims at presenting the icc, its achievements and perspectives, in a broader context of the development of international criminal law. Indeed, the existence and growing case law of the icc present an important achievement and enrichment of this branch of law, which is in turn one of the very dynamic areas of contemporary international law. The definitions of crimes in the Rome Statute are generally respected and also serve as a model for other institutions. For example, the UN International Law Commission took over the definition in Article 7 of the Rome Statute when adopting draft articles on crimes against humanity.
One cannot deny that the icc has had not only achievements but has also encountered some problems. The first problem appeared shortly after the adoption and entry into force of the Rome Statute, due to the non-ratification and even open hostility of some important States to the International Criminal Court.
Another challenge to the States parties to the Rome Statute was the adoption of the crime of aggression, while lacking a definition. The definition reached
The icc, as well as other international criminal tribunals, whose previous work informed the permanent Court, each have their own attractions and drawbacks. The authors of the present book selected just some of those aspects. When it comes to the drawbacks, the work of the icc is sometimes hindered by the lack of jurisdiction to face situations where heinous crimes have been committed, such as the situation in Syria. In other cases, the effectiveness of measures, including arrest warrants, is impacted by the lack of cooperation by States, like in the case of Al-Bashir. At the same time, however, it involves difficult issues of interpretation of rules of international law in and outside the Rome Statute, in particular on immunity of State officials.
On the other hand, the emerging case law of the icc seems to show that certain rules of the Rome Statute, such as the principle of complementarity, are interpreted in a way which is much less limiting for the jurisdiction of the Court than it appeared at the Rome Conference 20 years ago.
The book includes 13 chapters written by authors from the Czech Republic, Denmark, Germany, Hungary, and The Netherlands. The project brought together more experienced and young authors, working both in academia and practice. The practical side includes the icc, the Special Tribunal for Lebanon, and Eurojust. The academia is represented by Charles University in Prague, which hosted the conference that gave rise to this project, University of Cologne, University of Copenhagen, Masaryk University in Brno, Palacký University in Olomouc, and West Bohemian University in Plzeň, as well as the Institute of International Relations in Prague.
The difficult task of the editor was to organise chapters in a meaningful way. There are certainly other possible approaches, however, the systematic approach was adopted and the chapters were divided into four larger parts. The first part aims to present a way to the Rome Statute and beyond. In other words, to show the sources of inspiration for the icc, as well as how the Rome Statute informs other projects related to international criminal law. The second part basically deals with substantive law. It addresses the contribution of the icc to the definition and interpretation of international crimes, in particular the crime of aggression, war crimes, and crimes against humanity. The third part includes various issues related to the preliminary examination and investigation before the icc, such as the Prosecutor’s discretion and the principle of complementarity, as well as two situation-related chapters. The last part presents contributions concerning experiences from trials.
In the second part, there are 4 chapters; two of them discuss the crime of aggression. After introducing the historical evolution, Claus Kreß discusses the very current issue of activation of the icc jurisdiction over this particular crime and analyses the recent resolution on activation adopted by the Assembly of State Parties to the icc. Milan Lipovský chose a specific topic, the mental element (mens rea) of the crime of aggression, and introduces the system of mens rea in international law and describes article 30 RS and related case law. Josef Mrázek continues with crimes against humanity and war crimes, particularly focusing on the draft articles on crimes against humanity. Kateřina Uhlířová describes the contribution of the icc to the prosecution of sexual and gender-based crimes. In order to analyse the topic, she introduces the previous developments, particularly in front of the icty and ictr. She concludes that so far, the icc has produced a rather poor record in items of prosecuting these crimes but it has an opportunity to adjudicate on gender-based persecution as the innovative aspect of the Rome Statute.
In the third part, Iryna Marchuk and Aloka Wanigasuriya co-authored a chapter focusing on the icc Prosecutor’s discretion that is placed somewhere between law, politics, strategy, and pragmatism. Jan Lhotský discusses the possibilities of the icc having jurisdiction over the situation in Syria, and the UN institutions monitoring and investigating the situation in Iraq and Syria. Kristýna Urbanová analyses the topic of complementarity, described as the corner stone of the icc, ruling over the relationship between national and icc jurisdiction; she describes how it has in fact been proven to be quite a difficult concept and States have considerable troubles invoking it. Ondřej Svaček concludes the third part with the analysis of the Al-Bashir case which is probably the most famous case currently dealt with by the icc. The author focuses on
In the last part Simon De Smet identifies various procedural models applied in front of the icc and claims that it causes the accused before the icc not to have the same procedural treatment. He discusses for example admissibility of evidence and admissibility of prior recorded testimony. Finally, Ivana Hrdličková introduces the functioning of the Special Tribunal for Lebanon (stl), describes its foundational document and cases before the Tribunal. This view from outside of the icc completes the picture, as the stl is one of the most recent international tribunals, established after the creation of the icc.
In sum, the book tries to shed more light on the developments in international criminal law and justice during the past 20 years which are either linked to the establishment and early activities of the icc, or influenced by its existence. It is our sincere hope that the book, which has no intention to just celebrate the anniversary of the Court, but rather to provide a critical evaluation of the achievements, problems, and perspectives, will find readers interested in such developments which inform the current shape of international law.The research and the conference that gave rise to this book was supported by the Research Centre for Human Rights, Charles University project No. unce/hum/011.