The diplomatic conference to establish the International Criminal Court (ICC) is potentially the most significant treaty conference in decades. Almost fifty years after the International Law Commission first concluded that the establishment of an ICC was possible and desirable, delegations have the opportunity to take this crucial and urgently needed step in the enforcement of human rights and humanitarian law. The work of the conference will be assessed by scholars, diplomats, and the public at large well into the next century. Its success will be judged not by whether a treaty emerges from the conference, but whether the institution it creates has the qualities essential to the fulfilment of its critical mandate.
The potential impact of the ICC is enormous. By holding individuals personally accountable, the Court could be an extremely powerful deterrent to the commission of genocide, crimes against humanity and serious war crimes that have plagued humanity during the course of this century. Not only is the establishment of the Court an opportunity to provide critical redress to victims and survivors, but potentially to spare victims from the horrors of such atrocities in the future. If effective, the ICC will extend the rule of law internationally, impelling national systems to themselves investigate and prosecute the most heinous crimes-- thus strengthening those systems-- while guaranteeing that where they fail, the ICC can operate to ensure that justice prevails over impunity. Human Rights Watch urges delegates meeting in Rome not to forfeit this historic opportunity.
If the ICC is to realize this potential, it must, like any credible judicial institution, be independent, fair and effective. At the outset of the Diplomatic Conference, key questions remain in the balance. Will the Court be created with the independence critical to its judicial function; or will it be saddled with an inherent susceptibility to political manipulation by states or the Security Council? Will it be a universal court, with jurisdiction to prosecute egregious crimes wherever and by whomever committed; or will particular states be given the right to unilaterally prevent justice in particular cases? Will it have jurisdiction over a full range of serious crimes; or have a restrictive jurisdiction, excluded from the prosecution of the crimes of most relevance in the modern world? Will states be clearly obliged to comply with the Court's requests and give effect to its judgments, or be entitled to select when to do so and when not? Will the Court observe the highest standards of international justice for suspects and accused persons, and for victims and witnesses; or will it lack legitimacy as an institution charged with the enforcement of international law?
While there is a multitude of complex and overlapping issues involved in these negotiations, we believe that the following seven benchmarks must be met if the ICC is to be an independent, fair and effective judicial institution.
1) The jurisdictional regime must exclude any requirement of state consent. The decision to eliminate the opt-in/opt-out acceptance of jurisdiction over particular crimes, and consent on a case-by-case basis, is the most fundamental choice the conference must make. Requiring state consent would paralyze the Court. It would seriously undermine its independence and credibility.
2) The Court must be independent of the Security Council or any other political body. No court which is seen as an arm of the Security Council will enjoy the credibility it needs to operate effectively. While the Security Council has an important role in referring cases to the Court, it should not be given control of the Court's docket. Virtually every delegation, except four Permanent Members, see Security Council veto over the exercise of the Court's jurisdiction as unacceptable political interference in the exercise of a judicial function.
3) The Court must have an independent prosecutor. He or she must be empowered to initiate investigations on his or her own, in the light of information from any reliable source. In the face of evidence from victims and witnesses, the prosecutor must not be precluded from pursuing an investigation because a state or the Security Council did not do so. If the ICC can only investigate in the light of state complaints or Security Council referrals, it will be dependent on the political motivation of states and the Security Council for the execution of its judicial mandate. Experience demonstrates the reluctance of states to use existing state complaint procedures in human rights mechanisms. Ex officio prosecutorial powers are indispensable to the Court's practical impact and to its independence and legitimacy.
4) The complementarity principle should ensure that the Court will not operate as a supranational institution with the power to substitute itself for national legal systems, but that the ICC is able to investigate and prosecute when national systems fail to do so. The impetus for the establishment of the ICC is the failure of national systems to hold the perpetrators of genocide, crimes against humanity, and war crimes accountable. Unqualified deference to state claims of jurisdiction, without appropriate ICC review and the power to take necessary measures to preserve evidence, will jeopardize the prospect of justice.
5) The ICC must be able to prosecute those responsible for serious war crimes, whether committed in international or internal armed conflicts. The Court's jurisdiction over serious war crimes, is critical to its impact and credibility. In particular, if the ICC is to be relevant and effective in the contemporary world, in which the vast majority of conflicts are non-international, it must have sufficiently broad jurisdiction over crimes committed in this context.
6) The statute must clearly establish the obligation on state parties to comply with requests from the Court, and prohibit unilateral refusal to do so. As the ICC will be entirely reliant on states to carry out indispensable investigative and enforcement functions, cooperation from states and compliance with its requests is essential. While the statute should make provision for dealing with legitimate concerns, such as serious national security concerns, the Court must retain ultimate authority to determine whether an exception to the general rule should be made in any concrete case.
7) The ICC must respect the rights of the suspects and accused persons enshrined in international human rights instruments, and take measures to protect witnesses that testify before the Court.
This commentary focuses on key issues to be resolved at the ICC Diplomatic Conference. It is not exhaustive, but deals with matters which remain particularly critical or contentious. The commentaries prepared by Human Rights Watch for the April 1997, December 1997 and March 1998 preparatory committee sessions address additional issues. Each section of this commentary begins with introductory remarks and offers specific recommendations for the relevant articles of the current draft statute for the International Criminal Court (ICC). The recommendations are followed by comments that explain our underlying reasoning.
This document should be read together with the articles of the current draft statute (UN Doc.A/CONF.183/2/Add.1) to which they relate. Due to the length of the draft statute and the number of options in certain parts of the text, it was not possible to reproduce the text in this document. Alongside the article numbers of the current consolidated text, we have included in brackets the reference to the article number in the earlier draft text (referred to as the "Zutphen" text).
Human Rights Watch looks forward to working with the delegations attending the Diplomatic Conference, and to assisting any delegation. We expect that thepartnership that has evolved between nongovernmental organizations and government delegations during the preparatory phase will develop and consolidate during this final critical stage.
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