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International Criminal Court

The treaty agreed upon in Rome on July 17 establishing a permanent International Criminal Court (ICC) marked an historic development in the enforcement of international humanitarian law and the advancement of human rights. The court was to be set up when sixty states ratified the treaty, with enormous potential to limit impunity for the most serious international crimes, provide justice for victims, and deter future atrocities. A coalition of more than sixty “like-minded” states from Africa, North and South America, Asia, western and eastern Europe, and Oceania drove the ICC negotiating process to its successful conclusion. The negotiators rejected a consent regime (additional approval by a state for prosecutions after it had ratified the treaty); they limited the possibilities for political interference by a permanent member of the Security Council; they established a prosecutor empowered to initiate investigations on his or her own; and they gave the court future authority over war crimes committed in both international and internal armed conflicts to reflect the reality of contemporary armed conflict. The coalition’s efforts, reinforced by a unique partnership with nongovernmental organizations, represented a major achievement for the international human rights movement asa whole.

The Months Before the Rome Conference

The Rome Conference culminated a four-year high-stakes negotiation characterized by sharp polarization between the United States and a handful of other states on the one side and the diverse group of like-minded states committed to a court with an ex officio prosecutor and the competence to decide, without additional state consent, its jurisdiction over a case. The U.S. government publicly supported the establishment of an ICC and on procedural issues the U.S. delegation made important contributions. However, the Clinton Administration categorically opposed a court that could indict U.S. citizens without prior U.S. approval and its representatives insisted on ironclad guarantees to preclude that possibility regardless of the impact on the ICC’s effectiveness and credibility.

Delegates met in New York for the year’s third and final Preparatory Committee session in early December, 1997. This negotiation was marked by sharp disagreement over the range of war crimes the court would be empowered to prosecute in internal armed conflicts. A determined group of delegates from smaller states successfully resisted efforts to approve a draft that omitted serious violations of the laws of war in these conflicts. The proposed agreement would have sealed the deletion of these crimes from the final text. Given the prevalence of noninternational warfare in the world, the court’s relevance hinged on its ability to prosecute these war crimes. Similarly, there were sharp differences over the nature of a state party’s obligation to comply with a court request for arrest and transfer of those accused or to provide other forms of cooperation with the court, such as surrendering documents. Progress was made in codifying the general obligation to comply fully and without delay. The like-minded, with strong urging from nongovernmental organizations, formulated six broad principles of unity and organized working groups on particularly contentious issues. The political highpoint of the December session, and an important overall turning point, was the announcement by the United Kingdom’s delegation that London was breaking ranks with the other four permanent members of the Security Council to oppose a single permanent member’s ability to veto the investigation of any situation by the court. This break created new strategic possibilities that bore fruit at the Rome Diplomatic Conference.

There was an intense effort to generate a manageable draft text for the Diplomatic Conference in early 1998. Members of the Preparatory Committee Bureau met for two weeks in the Netherlands at the end of January to prepare an accessible draft text and facilitate the work of the March Preparatory Committee session. The meeting in Zutphen produced a greatly streamlined document which formed the basis of the March Preparatory Committee’s negotiations.

Nongovernmental organizations, intergovernmental organizations, and governments sponsored a series of regional conferences that became valuable training sessions on the substantive issues raised by the draft text. In early February, over sixty Senegalese lawyers, human rights activists, academics, and civil servants met for a two day conference in Dakar, Senegal. The session was convened by the African Network for the Defense of Human Rights (RADDHO) in conjunction with the Inter-African Union for Human Rights (UIDH). The participants discussed the need for and the essential features of the proposed ICC. They adopted a strong resolution calling for the establishment of an effective and independent court. The following day Senegal’s President Diop opened a conference in Dakar, cosponsored with the Brussels-based No Peace Without Justice, for representatives of twenty African governments. Ministers of justice, legal advisors, ambassadors, and representatives of domestic, regional, and international nongovernmental organizations attended. This discussion and the accompanying excitement about the court spurred awareness and commitment in the ICC negotiations among governments across Africa and in West Africa especially. The growing African interest in the ICC was reflected in the high level and quality of participation of African delegations at the March 1998 Preparatory Commission the following month.

Two weeks after the Dakar conference, in mid-February, representatives from twenty Latin American states and a number of domestic, regional, and international nongovernmental organizations met in Guatemala City to discuss the draft text. This meeting was convened jointly by the Human Rights Ombudsman of Guatemala and the Inter-American Institute for Human Rights (IIDH). The discussion generated sharp questions over the effect of a court that is unable to examine crimes committed in the past and the possibility of establishing a court independent of United States domination. This meeting, together with the imminence of the Diplomatic Conference spurred awareness and interest on the part of governments throughout the Americas.

Many delegates hoped the March-April Preparatory Committee, as the final session before the Rome conference, would significantly reduce the number of disputed provisions in the text. Unfortunately, however, rather than reducing options and consolidating text, delegates added new proposals and brackets. The session ended with heightened apprehension over the difficulties of completing the statute in the five weeks allotted in Rome.

The pace of regional meetings further intensified in the period between the end of the final Preparatory Committee session and the start of the conference. In early May, the Australian government convened a meeting in Canberra for states from throughout Asia. The German Foreign Ministry sponsored a session with representatives of twelve eastern and central European states. Simultaneously, Bonn had made demarches through its embassies in virtually every capital in the world. Representatives from a number of former Soviet Republics met for two days at the Central European University in Budapest. Nongovernmental organizations worked to reinforce the commitment and strengthen the organization of the like-minded states for the challenges in Rome.

The Rome Diplomatic Conference

The Diplomatic Conference began on June 15 amid great uncertainty. Given the large number of disputed provisions throughout the “consolidated” draft text, there was widespread concern that the delegates would be unable to finish the work in the five weeks allocated. It was clear that a court “worth having” would depend on the firm commitment of the like-minded states to a court withthe competence to decide its own cases, independence from Security Council control, an independent prosecutor, and authority over a list of relevant war crimes. It was also clear that commitment would be tested to the maximum by strong opposition from a few large powerful states seeking to reduce the effectiveness of the ICC and another small group wanting to derail the process entirely.

While they never functioned as a coherent group unified by a common plan, the like-minded group had a decisive impact at the conference. By announcing new additions to their ranks from Africa and eastern Europe during the first few weeks of the conference, they projected a sense of growth and initiative. The diverse nature of the group made clear that support for and opposition to an effective ICC could not be depicted as a North-South dispute. Most important, the like-minded group’s existence served to generate and legitimize support for a strong ICC. The group was a rallying point for previously undecided states whose delegates were drawn to the need for an effective ICC. This “magnet” effect on a crucial bloc of swing states tilted the balance of forces at the crucial moments.

While the U.S. delegation played a constructive role on a number of issues, specifically relating to the rights of the defendants, criminal procedure, and the definition of crimes, the extent of U.S. inflexibility and heavy-handedness on the key political issues surprised many delegates and ultimately backfired. In the run-up to the conference, Washington had made clear its abhorrence of universal jurisdiction (the right of any state, regardless of a direct nexus to the crime, to prosecute accused perpetrators), which it identified with a proposal circulated by the German delegation at the March 1998 Preparatory Committee meeting. The depth of U.S. opposition was underscored in a key speech to the Diplomatic Conference threatening “active opposition” by the U.S. if any “variant of universal jurisdiction” was codified in the statute.

Washington engaged in tactics to exert maximum pressure. In early April officials from the Pentagon convened a meeting with military attaches from embassies in Washington to sound an alarm about the ICC. This had the dual effect of angering and raising concern among delegates. The fact that meetings occurred with the military representatives of governments that had made recent transitions to civilian rule, whose militaries were responsible for widespread violations in the past, was particularly galling. During the Rome Conference, Reuter reported that Secretary of Defense William Cohen had linked the codification of any aspect of universal jurisdiction, by then identified by the U.S. delegation as any jurisdictional proposal but its own, with the viability of U.S. troop deployment in Germany during a meeting with the German minister of defense. Similar linkages were reportedly made in meetings with South Korean officials.

Despite the resentment engendered by its tactics, the U.S. delegation succeeded in securing many concessions to its positions, including a very high degree of deference to national prosecutions, the reformulation of the definition of certain crimes, national security as a ground for refusal to cooperate with the court, superior orders as a defense, diminished powers of the independent prosecutor, and two opportunities for states to challenge and appeal the court’s jurisdiction. In the final hours of the conference, the U.S. delegation sought a special exemption for nationals of non-state parties who were carrying out official duties. This was a proposal that even those states most concerned with mollifying United States hostility could not accept because it would have gutted the ICC’s credibility. It was impossible to accommodate Washington’s demand that a government retain the option to block prosecution of its citizens at will and maintain the appearance of an effective court. In an effort to placate the United States, aspects of the proposal advanced by South Korea, which would have allowed a state with custody of a suspect or whose nationals were victims to empower ICC jurisdiction, were deleted to the detriment of the ultimate effectiveness of the court.

The U.S. delegation was not the only force playing an obstructive role during the conference. At the outset, the member states of the Arab League adopted a coordinated position that sought to limit the court’s ability to prosecute war crimes and crimes against humanity committed in internal armed conflicts, opposed the inclusion of provisions concerning gender-related crimes and their effective prosecution, and insisted on the inclusion of the death penalty. Over the course of the conference their opposition diminished, in line with a global swing toward support for an effective ICC.

The member states of the European Union, with all but France a member of the like-minded group, played an essential role in the face of concerted pressure by the U.S. to compromise on basic principles. A number of eastern European states similarly joined the like-minded forces and provided solid, if less vocal, support. At the start of the Diplomatic Conference France announced its support for an ex officio prosecutor and a position similar to that of the United Kingdom on the Security Council’s ability to control the court’s docket. With the approval of a non-renewable seven-year period during which states could opt out of ICC jurisdiction over war crimes, France felt that its concerns were sufficiently addressed and decided to join the overwhelming majority of states supporting the treaty. This, coupled with the Russian Federation’s vote in support of the Statute of the ICC, created a three-two split among the five permanent members of the Security Council. Latin American states emerged more strongly as supporters of the court, and the Southern African Development Community countries remained true to the commitment they had expressed in the pre-Rome phase. Despite wavering under intense pressure to reverse their progressive stand by the end of the conference, west African states had also played a positive role.

The Treaty

The final treaty fell short of what many supporters of a strong court had hoped, but provided a solid basis for a court that could make a real and lasting difference. The ICC was to be able to investigate and prosecute genocide, crimes against humanity, and war crimes (whether committed in international or noninternational conflicts) where national authorities fail to do so. The prosecutor was, despite much controversy, to be able to take the initiative to investigate allegations ex officio upon receiving information from victims and other reliable sources, without requiring state or Security Council referral. Proposals to require the consent of state parties or of theSecurity Council before the ICC could proceed with an investigation, which would have crippled the court, were ultimately rejected. Similarly, proposals to give the five Security Council permanent members a veto over the court’s docket did not prevail. The rights of suspects and accused persons were unequivocally guaranteed and appropriate provision made for the protection of witnesses and their role in ICC proceedings.

The treaty’s principal weakness lay in the jurisdictional regime which required, in the absence of a Security Council referral, that either the state of territory (in which the crime occurred) or nationality (of the accused) be a party or consent to its jurisdiction. While this requirement was not fatal to the court, it limited its potential effectiveness. A myriad of other provisions, which checked the exercise of prosecutorial discretion, restricted the prosecutor’s powers, and qualified the obligations of states were sufficient to appease states concerned about an all-powerful or overreaching prosecutor. The final balance, while not perfect, managed to garner almost universal support from states and the NGO community alike.

The closing moments of the Committee of the Whole and the subsequent Conference Plenary provided an intense and highly emotional conclusion. Hundreds of delegates were on their feet, clapping rhythmically when first the Indian and then the U.S. amendments, which would have reopened the approved “package” and jeopardized the possibility of concluding the conference, were voted down in “no action” motions in the Committee of the Whole. In the plenary a little later pandemonium erupted when the tally in the final vote, called for by the U.S., was tabulated: 120 in favor, seven against and twenty-one abstaining. Delegates who had poured themselves into this effort for nearly four years were hugging, crying, and applauding, relieved that the court they believed in was to become a reality.

The Role of NGOs
The nongovernmental Coalition for the International Criminal court (CICC) played an extraordinary role, coordinating the 200 plus nongovernmental organizations that attended the conference. Thematic caucuses, such the women’s and children’s caucuses, played a vital role, among other things in ensuring that gender crimes and crimes against children were appropriately addressed in the treaty and that adequate provision was made for victim and witness protection. Every region was represented and regional caucuses, in particular the “Three Continents Alliance” of Latin American, African, and Asian NGO representatives, developed and had a positive influence.

Prior to and throughout the conference, NGOs developed substantive positions and strategic assessments that they shared with delegations. Position papers were well received and quoted in open debate. NGOs also had a great deal of access to delegations during the conference; while not allowed into the closed “informal” negotiating sessions, it was possible to do a tremendous amount of advocacy around these sessions. This positive role was noted and reinforced by numerous speakers—from Kofi Annan to foreign ministers. The press likened NGO influence to that of a major government and, in general, the NGOs were seen as an important contributing force in the negotiations. The extent of “partnering” with governments and the degree of consultation with the U.N. Secretariat provided a model for future multilateral negotiations. In the critical moments, the major international human rights organizations met almost as one, enabling the human rights community to analyze developments and maximize impact with key delegations. The Statute was in part a reflection of the growing strength of an international human rights movement which conducted itself with coordination and skill.

The Road Ahead
The overwhelming support for the treaty demonstrated in the final conference vote was greatly encouraging. Special efforts were, however, necessary to maintain the momentum generated by the conference’s dramatic conclusion and to ensure that the treaty led to the establishment of an effective ICC with the most universal support possible, as quickly as possible. The 1998 session of the General Assembly debated a resolution to convene the Preparatory Commission to deal with matters such as the court’s Rules of Evidence and Procedure. As this work would influence ratification in certain states, it was critically important to begin and schedule the completion of the Preparatory Commission. The struggle continued over the mandate of the Preparatory Commission enumerated by the treaty’s Final Act. At the General Assembly’s Sixth Committee session in October the U.S. delegation circulated language calling for a much broader mandate that would reopen discussion on the most contentious issues settled in the final moments of the Rome Conference. Washington pressed hard for reconsideration of its concerns. This agenda could have a seriously weakening and delaying effect on the ratification effort.

While it was appropriate that Washington participate in the ongoing work of the Preparatory Commission, the United States’ effort to revise the treaty outside of its amendment procedures, or to pressure others states not to sign or ratify the treaty, required firm opposition. A coordinated, multilateral effort in support of the court—involving an expanded like-minded group, regional coordination, and NGO activism—was essential to ensure early and widespread ratification and the treaty’s entry into force. A regional approach would not only enhance ratification but also defuse potential pressure on any one government.

The experience leading up to and during the Rome conference indicated that reaching the threshold of sixty ratifications and going beyond was an achievable objective. The diverse range of states which, within three months of the conclusion of the treaty conference, had already expressed their intention to ratify through signature—including Angola, Chile, France, Georgia, Honduras, the Netherlands, Uganda, Zimbabwe—provided a positive launching point for a successful campaign for urgent global ratification. The people at greatest risk from the crimes, whose fate Human Rights Watch had documented in all too many countries, needed this court to be operational and effective without further delay.

Relevant Human Rights Watch report:
Justice in the Balance: Recommendations for an Independent and Effective International Criminal Court, 6/98


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