OVERVIEW
It has been 50 yearssince the United Nations first recognized the need to establish an internationalcriminal court, to prosecute crimes such as genocide. In resolution 260of 9 December 1948, the General Assembly, "Recognizing that at all periodsof history genocide has inflicted great losses on humanity; and being convincedthat, in order to liberate mankind from such an odious scourge, internationalco-operation is required", adopted the Convention on the Prevention andPunishment of the Crime of Genocide. Article I of that convention characterizesgenocide as "a crime under international law", and article VI providesthat persons charged with genocide "shall be tried by a competent tribunalof the State in the territory of which the act was committed or by suchinternational penal tribunal as may have jurisdiction . . ." In the sameresolution, the General Assembly also invited the International Law Commission"to study the desirability and possibility of establishing an internationaljudicial organ for the trial of persons charged with genocide . . ."
Following the Commission'sconclusion that the establishment of an international court to try personscharged with genocide or other crimes of similar gravity was both desirableand possible, the General Assembly established a committee to prepare proposalsrelating to the establishment of such a court. The committee prepared adraft statute in 1951 and a revised draft statute in 1953. The GeneralAssembly, however, decided to postpone consideration of the draft statutepending the adoption of a definition of aggression.
Since that time, thequestion of the establishment of an international criminal court has beenconsidered periodically. In December 1989, in response to a request byTrinidad and Tobago, the General Assembly asked the International Law Commissionto resume work on an international criminal court with jurisdiction toinclude drug trafficking. Then, in 1993, the conflict in the former Yugoslaviaerupted, and war crimes, crimes against humanity and genocide -- in theguise of "ethnic cleansing" -- once again commanded international attention.In an effort to bring an end to this widespread human suffering, the UNSecurity Council established the ad hoc International Criminal Tribunalfor the Former Yugoslavia, to hold individuals accountable for those atrocitiesand, by so doing, deter similar crimes in the future.
Shortly thereafter, the International Law Commission successfully completed its work on the draft statute for an international criminal court and in 1994 submitted the draft statute to the General Assembly. To consider major substantive issues arising from that draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After the General Assembly had considered the Committee's report, it created the Preparatory Committee on the Establishment of an International Criminal Court to prepare a widely acceptable consolidated draft text for submission to a diplomatic conference. The Preparatory Committee, which met from 1996 to 1998, held its final session in March and April of 1998 and completed the drafting of the text.
At its fifty-secondsession, the General Assembly decided to convene the UnitedNations Diplomatic Conference of Plenipotentiaries on the Establishmentof an International Criminal Court, subsequently held in Rome, Italy,from 15 June to 17 July 1998, "to finalize and adopt a convention on theestablishment of an international criminal court".
"Inthe prospect of an international criminal court lies the promise of universaljustice. That is the simple and soaring hope of this vision. We are closeto its realization. We will do our part to see it through till the end.We ask you . . . to do yours in our struggle to ensure that no ruler, noState, no junta and no army anywhere can abuse human rights with impunity.Only then will the innocents of distant wars and conflicts know that they,too, may sleep under the cover of justice; that they, too, have rights,and that those who violate those rights will be punished."--Kofi Annan, United Nations Secretary-General
Peaceand Justice
One of the primaryobjectives of the United Nations is securing universal respect for humanrights and fundamental freedoms of individuals throughout the world. Inthis connection, few topics are of greater importance than the fight againstimpunity and the struggle for peace and justice and human rights in conflictsituations in today's world. The establishment of a permanent internationalcriminal court (ICC) is seen as a decisive step forward. The internationalcommunity met in Rome, Italy, from 15 June to 17 July 1998 to finalizea draft statute which, when ratified, will establish such a court.
WhyDo we Need an International Criminal Court?
...To achieve justice for all
"Fornearly half a century -- almost as long as the United Nations has beenin existence -- the General Assembly has recognized the need to establishsuch a court to prosecute and punish persons responsible for crimes suchas genocide. Many thought . . . that the horrors of the Second World War-- the camps, the cruelty, the exterminations, the Holocaust -- could neverhappen again. And yet they have. In Cambodia, in Bosnia and Herzegovina,in Rwanda. Our time -- this decade even -- has shown us that man's capacityfor evil knows no limits. Genocide . . . is now a word of our time, too,a heinous reality that calls for a historic response."--Kofi Annan, United Nations Secretary-General
An international criminalcourt has been called the missing link in the international legal system.The International Court of Justice at The Hague handles only cases betweenStates, not individuals. Without an international criminal court for dealingwith individual responsibility as an enforcement mechanism, acts of genocideand egregious violations of human rights often go unpunished. In the last50 years, there have been many instances of crimes against humanity andwar crimes for which no individuals have been held accountable. In Cambodiain the 1970s, an estimated 2 million people were killed by the Khmer Rouge.In armed conflicts in Mozambique, Liberia, El Salvador and other countries,there has been tremendous loss of civilian life, including horrifying numbersof unarmed women and children. Massacres of civilians continue in Algeriaand the Great Lakes region of Africa.
...To end impunity
The Judgment of the NürnbergTribunal stated that "crimes against international law are committed bymen, not by abstract entities, and only by punishing individuals who commitsuch crimes can the provisions of international law be enforced" -- establishingthe principle of individual criminal accountability for all who commitsuch acts as a cornerstone of international criminal law. According tothe Draft Code ofCrimes against the Peace and Security of Mankind, completed in 1996by the International Law Commission at the request of the General Assembly,this principle applies equally and without exception to any individualthroughout the governmental hierarchy or military chain of command. Andthe Convention on the Prevention and Punishment of the Crime of Genocideadopted by the United Nations in 1948 recognizes that the crime of genocidemay be committed by constitutionally responsible rulers, public officialsor private individuals.
"A person standsa better chance of being tried and judged for killing one human being thanfor killing 100,000."
-- JoséAyala Lasso, former United Nations High Commissioner for Human Rights
...To help end conflicts
In situations such asthose involving ethnic conflict, violence begets further violence; oneslaughter is the parent of the next. The guarantee that at least some perpetratorsof war crimes or genocide may be brought to justice acts as a deterrentand enhances the possibility of bringing a conflict to an end. Two ad hocinternational criminal tribunals, one for the former Yugoslavia and anotherfor Rwanda, were created in this decade with the hope of hastening theend of the violence and preventing its recurrence.
"There can be nopeace without justice, no justice without law and no meaningful law withouta Court to decide what is just and lawful under any given circ*mstance."
-- Benjamin B.Ferencz, a former Nürnberg prosecutor
...To remedy the deficiencies of ad hoc tribunals
The establishment ofan ad hoc tribunal immediately raises the question of "selective justice".Why has there been no war crimes tribunal for the "killing fields" in Cambodia?A permanent court could operate in a more consistent way.
Reference has beenmade to "tribunal fatigue". The delays inherent in setting up an ad hoctribunal can have several consequences: crucial evidence can deteriorateor be destroyed; perpetrators can escape or disappear; and witnesses canrelocate or be intimidated. Investigation becomes increasingly expensive,and the tremendous expense of ad hoc tribunals may soften the politicalwill required to mandate them.
Ad hoc tribunals aresubject to limits of time or place. In the last year, thousands of refugeesfrom the ethnic conflict in Rwanda have been murdered, but the mandateof that Tribunal is limited to events that occured in 1994. Crimes committedsince that time are not covered.
...To take over when national criminal justice institutions are unwillingor unable to act
"Crimesunder international law by their very nature often require the direct orindirect participation of a number of individuals at least some of whomare in positions of governmental authority or military command."Nations agree that criminalsshould normally be brought to justice by national institutions. But intimes of conflict, whether internal or international, such national institutionsare often either unwilling or unable to act, usually for one of two reasons.Governments often lack the political will to prosecute their own citizens,or even high-level officials, as was the case in the former Yugoslavia.Or national institutions may have collapsed, as in the case of Rwanda.
-- Report of theInternational Law Commission, 1996
...To deter future war criminals
"From nowon, all potential warlords must know that, depending on how a conflictdevelops, there might be established an international tribunal before whichthose will be brought who violate the laws of war and humanitarian law.. . . Everyone must now be presumed to know the contents of the most basicprovisions of international criminal law; the defence that the suspectswere not aware of the law will not be permissible."Most perpetrators of warcrimes and crimes against humanity throughout history have gone unpunished.In spite of the military tribunals following the Second World War and thetwo recent ad hoc international criminal tribunals for the former Yugoslaviaand for Rwanda, the same holds true for the twentieth century. That beingsaid, it is reasonable to conclude that most perpetrators of such atrocitieshave believed that their crimes would go unpunished. Effective deterrenceis a primary objective of those working to establish the internationalcriminal court. Once it is clear that the international community willno longer tolerate such monstrous acts without assigning responsibilityand meting outappropriate punishment -- to heads of State and commandingofficers as well as to the lowliest soldiers in the field or militia recruits-- it is hoped that those who would incite a genocide; embark on a campaignof ethnic cleansing; murder, rape and brutalize civilians caught in anarmed conflict; or use children for barbarous medical experiments willno longer find willing helpers.
-- Hans Corell,United Nations Under-Secretary-General for Legal Affairs
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