To deter and dissuade, and so deny - use of international courts

UN Chronicle, Spring, 1999 by Cherif Bassiouni

The establishment of a permanent International Criminal Court (ICC), which has been in the making since the end of the First World War, is one of the United Nations most significant accomplishments. Before this development, the international community, between 1919 and 1994, established five ad hoc investigative commissions and four ad hoc tribunals. This approach, however, brought to justice only some of the perpetrators of the most heinous international crimes. What the world community needs is a permanent court that is independent, effective and fair.

The League of Nations in 1937 addressed the question of an international criminal court in the context of a convention against terrorism, but the treaty was only ratified by India and never entered into force. In 1947, the United Nations addressed this need through the work of the International Law Commission (ILC) and, in 1979, at the request of the Commission on Human Rights, I prepared a draft statute for an international criminal tribunal to prosecute persons responsible for the crime of apartheid. But it was not until 1994 that United Nations efforts began to bear fruit with an ILC draft statute that was well-received by the General Assembly. With the end of the "cold war" and the more recent tragedies of Cambodia, Yugoslavia and Rwanda, the world community looked forward to a new world order based on justice. A new era thus began for international criminal justice, which was strongly supported by international civil society.

In a historic achievement, a Rome-held Diplomatic Conference for the Establishment of an International Criminal Court on 17 July 1998 adopted the Court's Statute and its Final Act. On 18 July, the "Treaty of Rome" was opened for signature.

The Court is established by a treaty binding only upon the ratifying States and only prospectively. Thus, its jurisdiction will not be retroactive; it is limited to three crimes: genocide; crimes against humanity; and war crimes. Aggression is also a crime within the jurisdiction of the Court, but owing to the States' inability to achieve consensus on the definition, its application is suspended until such time as it can be defined. The three core crimes, however, are well established, and their definitions in the Statute reflect existing law. They are also contained in the statutes of the tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR).

States agreed on the formulation of the crime of genocide, which is the same as the Genocide Convention, but there were some differences concerning crimes against humanity. The final definition, however, filled important gaps with respect to sexual and gender violence.

While there were no questions with respect to the contents war crimes in international conflicts, such were raised by some States as to the inclusion of certain war crimes in non-international conflicts. Additionally, some States questioned how much of the customary law of armed conflict should be included in the war crimes definition, but a satisfactory compromise was ultimately achieved. The Statute ensures against trivial and vexatious prosecutions that could inhibit a Government's use of forces for peacekeeping operations by providing several jurisdictional and procedural safeguards. Indictments must be approved by a panel of judges and other safeguards are also provided to avoid prosecutorial abuse. It also contains detailed rules of procedure and evidence that conform to international standards of due process; additional rules of procedure and evidence are yet to be developed and approved by the Assembly of State Parties once the treaty enters into force with 60 ratifications.

Of greater significance is the fact that no prosecutions before the Court can occur while national courts are able and willing to do so. This gives primacy to national legal systems. The Court is therefore "complementary" to these systems, and this gives comfort to all States with independent functioning legal systems.

As a treaty-created body, the Court will not be an organ of the United Nations, though it will have a close relationship with the Organization. That includes having the Security Council refer situations to the Court and, whenever peace and security are seriously at stake, the Council may ask the Court to postpone certain prosecutions. These Council prerogatives were extensively debated during the negotiations.

Once the treaty enters into force, an Assembly of State Parties will elect judges, the Prosecutor and Registrar, and oversee the Court's operations. The ICC must be politically independent, effective and fair, and in that way provide justice, reinforce international law and offer the world community a fair judicial forum to try the major perpetrators of terrible crimes. Hopefully, it will also provide the necessary deterrence to prevent future victimization. By providing justice, the ICC can also contribute to the preservation, restoration and maintenance of peace.

M. Cherif Bassiouni is Professor of Law, DePaul University, United States. He was Chairman of the Drafting Committee of the Diplomatic Conference on the Establishment of an International Criminal Court. The views presented in this article, which he wrote at our invitation, are his own.