The International Criminal Court Treaty Enters Into Force

On April 11, 2002, ten countries simultaneously deposited instruments of ratification to the Rome Statute of the International Criminal Court, bringing the total number of States Parties to 66. [1] th ratification, which, pursuant to article 126 of the Treaty, will cause the Statute to enter into force on July 1, 2002. A special ceremony was held at the United Nations to mark the occasion of the 60

 

The ceremony took place during the ninth session of the Preparatory Commission (PrepCom) for the International Criminal Court.   The PrepCom was established by the Rome Diplomatic Conference that adopted the ICC Statute to prepare the "implementing legislation" necessary to bring the Court to life. [2] During its first eight sessions, the PrepCom completed, inter alia, draft texts of the Rules of Procedure and Evidence, the Elements of Crimes, the Relationship Agreement between the Court and the United Nations, an agreement on the Privileges and Immunities of the Court, the Court's Financial Regulations, and the Rules of Procedure of the Assembly of States Parties.  Issues remaining on the PrepCom's agenda include the headquarters agreement with the Netherlands, continuing discussions on the crime of aggression, preparatory documents for the Assembly of States Parties, other financial issues, including the budget for the Court's first year, the remuneration of judges, and the management and oversight of the Trust Fund for Victims established by article 79 of the Statute. 

 

A final Preparatory Commission session will be held in July, 2002, after which time the Court's management and oversight will devolve upon  the Assembly of States Parties established by article 112 of the Statute. [3]    Each State Party will have a representative in the Assembly and  Non-States Parties that have signed the Statute or the Final Act of the Diplomatic Conference, such as the United States, will be entitled to observe.  It is anticipated that the process for the nomination and election of judges and the Prosecutor will be finalized at the first meeting of the Assembly, currently expected to convene from September 3 to 13, 2002, and that elections will subsequently be held in January or February of 2003.  Later in the year, the inaugural meeting of the Court will take place at which the judges and the Prosecutor will be sworn in.  The Court will then elect the Presidency and its Registrar, establish judicial Chambers, and become fully operational. [4]  

 

The ICC will have jurisdiction over the crimes of genocide, war crimes and crimes against humanity committed after July 1, 2002, but only insofar as those crimes rise to the level of "crimes of concern to the international community as a whole." [5] Moreover, in each case, the Statute's complex jurisdictional and complementarity regimes, which limit the conditions under which cases may be referred to the Court and be decided by it, must be satisfied.  In particular, the Court may act only when national systems are unable or unwilling to carry out investigations or prosecutions of the crimes within the Court's jurisdiction.  Thus, even after establishment of the International Criminal Court, States will remain primarily responsible for the investigation and prosecution of international crimes.

 

Ambassador David Scheffer signed the Rome Statute on behalf of the United States on December 31, 2000, the last day the Statute was open for signature. [6] However, the Bush administration has made its opposition to the ICC clear, and, in addition to stating that the Treaty will not be submitted to the Senate for ratification, apparently continues to consider options with regard to the Treaty that range from a "wait-and-see approach" to an attempt to "unsign" it. [7]

 

About the Author: 

Leila Nadya Sadat is a Professor of Law at Washington University in St. Louis.   She is a member of the Executive Council and of the Executive Committee of the American Society of International Law and is a Commissioner on the United States Commission on International Religious Freedom.  She is the author of The International Criminal Court and the Transformation of International Law:  Justice for the New Millennium (2002), among other works.

[1]    The ten countries were Bosnia-Herzegovina, Bulgaria, Cambodia, the Democratic Republic of Congo, Ireland, Jordan, Mongolia, Niger, Romania and Slovakia.

[2]     Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Annex I, Resolution F, U.N. Doc. A/CONF.183/10 (1998).

[3]     Pursuant to Resolution F, the Preparatory Commission "shall remain in existence until the conclusion of the first meeting of the Assembly of States Parties."  Id. para. 8.

[4]     Road map leading to the early establishment of the International Criminal Court, para. 6, Preparatory Commission for the International Criminal Court, U.N. Doc. No. PCNICC/2001/L.2, September 26, 2001.

[5]     Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998, Annex II, U.N.Doc A/CONF. 183/9 (1998), preamble & art. 5(1).

[6]     Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 43 (2002).

[7]     Bruce Zagaris, U.S. Continues to Assess Options as ICC's Start Draws Near, 18 Int'l Enforcement L. Rep., April 4, 2002.