On the 14th of November, the Sixth (Legal) Committee of the United Nations concluded
work on a draft resolution which calls for a diplomatic conference in Italy in June 1998 to review
and open for signature a convention to establish an international criminal court (ICC). In
preparation for that meeting, the Committee calls for a continuation of the work of the Preparatory
Committee (Prepcom), with tentative meeting dates in 1997 of February 10-21, August 1-14 and
December 1-12. Another three weeks of meetings will be held before April 1998 to complete
work on the draft.(1) At the second Prepcom, held in New York from August 12-30 of this year,
became clear that "no state is challenging outright the need for an international criminal court, nor
the basic assumption that one will ultimately be created."(2) It is expected that the Sixth
will take formal action on the draft resolution before the end of the year.(3) Thus, all
that a permanent ICC will come into being before the millennium, perhaps becoming the last
major international institution to be created in this century.
This short article will give an overview of the proposed structure and powers of the ICC,
as it is now conceived, and will address some of the major disputes which must be resolved before
the tribunal can come into being. Unless otherwise indicated, the analysis here draws from the
draft Statute for an International Criminal Court, prepared by a working group of the International
Law Commission (ILC),(4) and the Report of the Preparatory Committee meeting held in New
York in August of this year.(5)
II. Crimes Within the Jurisdiction of the ICC.
Much of the effort in the creation of an international criminal court has focused on the
offenses for which it should assume jurisdiction. Historically, it was assumed that the lack of
domestic enforcement capabilities for international crimes such as terrorism, narco-trafficking and
related crimes required the creation of a specialized tribunal with international reach.(6) In
because of the attention given to the statutes of the war crimes tribunals for the former Yugoslavia
and Rwanda, now in operation, the focus of the ICC has shifted discernibly toward crimes which
constitute gross violations of human rights and which often arise in armed conflict. Drawing from what are widely accepted
international crimes under existing treaty law, the
drafters have generally agreed on the inclusion of three groups of offenses: genocide, crimes
against humanity and war crimes. There is less consensus about a second group of crimes which
include aggression and an array of other crimes such as air piracy or highjacking, apartheid, drug
trafficking, hostage taking, torture, or endangering the safety of UN personnel.
A. Genocide -- The definition of the crime of genocide is taken directly from
articles II and III of the Genocide Convention of 1948. It includes the commission of certain acts
-- killing; causing serious bodily or mental harm; destruction of means of survival; preventing
births; transfer of children -- committed with the intent to destroy, in whole or in part, a national,
ethnic, racial or religious group.
B. Crimes Against Humanity -- Although there was general agreement that
crimes against humanity should be included within the ambit of the ICC's powers, there was
concern that there is no generally accepted definition of crimes against humanity under treaty law.
Reference was made to the Nuremberg and Tokyo Charters, the Yugoslavia and Rwanda Tribunal
Statutes and the International Law Commission's draft Code of Crimes against the Peace and
Security of Mankind.(7) It is likely that this offense will include certain acts such as
murder, torture or rape when committed systematically against a segment of the civilian
population in either international or internal armed conflict.(8)
C. Serious Violations of the Laws and Customs Applicable in Armed Conflict
(War Crimes). Again, there was general agreement that such offenses should fall within the
mandate of the ICC, and only minor differences on definitions for such offenses, since much of
this law is embodied in the Geneva Conventions and well-established customary international law.
Nonetheless, there was some serious disagreement among the delegates as to whether this
category of crimes should include violations committed in internal as well as international conflict.
Some used the statute of the Rwanda tribunal, as well as the decision of the Yugoslavia Tribunal
Appeals Chamber in the Tadic case(9), to justify such inclusion, noting that national criminal
systems are ill-equipped to deal with such issues. It is likely that the offenses punishable under
these provisions will include torture of prisoners of war, taking civilian hostages, subjecting
detainees to medical and scientific experiments, and other such offenses.
D. Aggression. Because the crime of aggression was not included in the original
draft statute, and because there is no generally accepted definition for the offense, general
consensus for inclusion began to break down. Some delegations, however, felt quite strongly that
the absence of a crime of aggression would be a significant gap in the jurisdiction of the court, and
that the crime of aggression is one of those which are of greatest concern to the international
community. These delegations felt that the failure to include the offense was an invitation to
impunity for individuals responsible for the crime, and that its inclusion would constitute a
deterrent to such conduct. A typical definition of aggression is that found in article 15 of the draft
Code of Crimes Against the Peace and Security of Mankind. That document states that
aggression is committed by an individual who "as leader or organizer plans, commits or orders the
commission of an act of aggression." Aggression itself is defined as "the use of armed force by a
State against the sovereignty, territorial integrity or political independence of another State, or in
any other manner inconsistent with the Charter of the United Nations." Under the draft's
definition, any unsanctioned first use of armed force constitutes prima facie evidence of an act of
aggression. Typical acts constituting aggression would be invasion, bombardment, blockade, and
land, sea or air attack. The crime raises interesting issues, noted by the delegates, as to actions
taken by countries in self-defense.
A more troubling potential offense is that of "threat of aggression" which the draft Code
defines in article 16 as "declarations, communications, demonstrations of force or any other
measures which would give good reason to the Government of a State to believe that aggression is
being seriously contemplated." That offense, still on the table, implicates issues of free expression
E. Other Crimes. As noted above, the original draft statute included a number of
other treaty-based offenses relating to terrorism and drug trafficking, in part due to heavy media
coverage and the concerns that domestic law was inadequate to combat the phenomena. These
offenses, however, achieved little consensus for inclusion in the statute. The ILC draft had, for
example, included the unlawful seizure of aircraft, as defined under a 1970 convention of the
same name; hostage-taking and related crimes, as defined in the 1979 International Convention
against the Taking of Hostages; and crimes defined as piracy under the Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation of 1988. In addition, the
draft included the offenses of apartheid and crimes against diplomatic personnel, both of which
have been defined by treaty. The major concern of the delegates appeared to be that such crimes,
while defined by treaty, have not been uniformly subscribed to or recognized, and their exclusion
from "core crimes" of the ICC might facilitate the acceptance of jurisdiction of the Court by
States that are not parties to the treaties in question. The view was also expressed that the drafters
had failed to include other important treaty-based offenses such as crimes against the environment.
III. The Establishment and Structure of the Court.
Some of the most contentious issues in the drafting process are the questions of the status
of the court, how it will come into being, and what its relationship will be to the United Nations.
Some support the idea that the court should be an independent judicial institution, while others
prefer that the court form part of the UN, either as a principal or subsidiary organ. The tribunal
for the former Yugoslavia, for example, is a subsidiary organ of the UN.(10) The methods for
establishment of the court would affect its relationship to the UN. Various suggestions have been
made, including an amendment to the Charter of the United Nations making the court a principal
organ, such as is the case with the International Court of Justice; a resolution of the General
Assembly and/or Security Council, as with the Yugoslav tribunal; or the adoption of a multilateral
As currently contemplated, the ICC will be established by means of a multilateral
convention which will be opened for signature as early as 1998. This scheme comports with the
recommendation of the ILC draft, and seems to provide the necessary degree of flexibility and
independence sought for the court. Any party to the treaty will be eligible to participate in the
workings of the court, which would function as a permanent institution. The court would have
jurisdiction, according to ILC draft article 4.2, within the territory of each State party "as may be
necessary for the exercise of its functions and the fulfillment of its purposes." The major issues
left open by the creation of a treaty-based entity are the relationship of the body to the United
Nations when conflicts develop between the two and the financing of the court, which many
delegates to the Prepcom support through the regular budget of the UN.
The basic mechanisms for the court's operation have been agreed to broadly. One central
question was whether the court should reflect the structure and ideology of the civil or common
law traditions. At the August Prepcom, France submitted a draft statute which essentially
replaced that of the ILC draft and adopted the tenets of the civil law as practiced in France. While
discussion of the French proposal took up several days of the meeting, the delegates ultimately
opted for a structure like that proposed by the ILC draft.(11)
The court will operate with a permanent Presidency, Procuracy and Registry. The
Presidency, three presiding officials to be elected from among the membership of the judges,
would perform the administrative duties of the court and would rule on all pre-trial and procedural
matters not undertaken by a chamber of the court. The Procuracy would investigate and prosecute
all offenses within the jurisdiction of the court, while the Registry would carry out the
administrative functions delegated to it by the Presidency. The Prosecutor and Deputy Prosecutor
would be elected by secret ballot of a majority of the States parties, and could not be of the same
nationality, while the Registrar would be elected by ballot of the court on the proposal of the
The court itself would be made up of trial and appellate chambers. The States parties
would nominate and elect 18 judges with criminal trial experience and recognized competence in
international law, with the caveat that no two judges can be nationals of the same state. Six of the
elected judges would sit as an appellate tribunal while the remainder would rotate in trials in
panels of five, as assigned by the Presidency. In general, judges hold office for a term of nine
years, and would not serve on a full-time basis unless the work load of the court justified such
action. The working languages of the court would be English and French.
The Prepcom also devoted significant time and energy to the questions of how a
prosecution would commence, the processes by which trial and appeal would be accomplished,
and the protection of the rights of the accused to a fair trial and due process. Space does not
permit the full development of these issues here, but some of the most important questions which
remain to be resolved are:
* What would constitute a "trigger mechanism" for exercise of the court's
jurisdiction? Should the court have jurisdiction only over offenses specifically
included in its mandate or more general jurisdiction when national systems fail to
prosecute? At minimum, it seems that consent would be required from both the
State where the crime was committed and that in which the accused is found or is
* Who will carry out the functions of the prosecutor with regard to arrest and pre-trial custody of the accused, and
how will the court and its officers gain access to
witnesses and evidence deemed necessary for full and adequate preparation for
* Is the accused entitled to trial in his presence or may trials be conducted in
absentia? What penalties should be imposed for violation of these criminal
statutes, and should they include capital punishment?
While the list of controversial topics seems to be long and potentially divisive, the drafters
appear confident that action on a draft treaty can be completed within the time given, and that a
permanent International Criminal Court can become a reality before the turn of the century.
1. Memorandum from William R. Pace to the NGO Coalition for an International Criminal
Court, Re: Update on ICC negotiations, Nov. 14, 1996.
2. Mark Thieroff, August Preparatory Committee Tentatively Calls for a Diplomatic
Conference in 1998, INT'L CRIM. CT. MONITOR, Oct. 1996, at 1,2.
3. Pace memorandum, supra, n. 1.
4. The definitive draft of the International Law Commission is that of 1 September 1994,
which can be found in the official web site of the ICC, at "http://igc.apc.org/icc". An earlier draft,
with commentary and an introductory note, can be found in International Legal Materials: United
Nations International Law Commission: Report of the Working Group on a Draft Statute for an
International Criminal Court, July 16, 1993, 33 I.L.M. 253 (1994); see also, James Crawford,
Current Developments: The ILC's Draft Statute for an International Criminal Tribunal, 88 AM.
J. INT'L L. 140 (1994).
5. Report of the Preparatory Committee on the Establishment of an International
Criminal Court, Volume I, UN General Assembly, Fifty-First Session, Supp. No.22, A/51/22, 13
September 1996, at the ICC home page.
6. See, e.g., Arlen Specter, International Crime Requires International Punishment, USA
TODAY, May 1990, at 28; William N. Gianaris, The New World Order and the Need for an
International Criminal Court, 16 FORDHAM INT'L L. J. 88 (1992-1993); Joel Cavicchia, The
Prospects for an International Criminal Court in the 1990s, 10 DICKINSON J. INT'L L. 223
(1992). A more cautious view is taken in M. Cherif Bassiouni and Christopher L. Blakesley, The
Need for an International Criminal Court in the New International World Order, 25 VAND. J.
TRANSNAT. L. 151 (1992) and John W. Bridge, The Case for an International Court of
Criminal Justice and the Formulation of International Criminal Law, in INTERNATIONAL
COURTS FOR THE TWENTY-FIRST CENTURY 213 (Mark W. Janis ed. 1992).
7. See, United Nations: International Law Commission Report on the Draft Articles
Adopted at Its Forty-Third Session, 30 I.L.M. 1554, 1584 (1991).
8. It might be noted that the Statute of the International Tribunal for the Former
Yugoslavia, in its article 5 definition of crimes against humanity, fails to require systematic
commission of the enumerated offenses.
9. The Coalition for International Justice, headquartered in Washington, D.C., maintains a
web site called "International Criminal Tribunals: ICTY/ICTR," referring to the International
Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.
It is found at "http://www.cij.org/tribunal/". The site has complete files for all action regarding the
10. See United Nations, Security Council Resolutions 808 and 827 (1993).
11. Thieroff, supra, n. .