Question: Why are States Parties allowed to withdraw from the treaty for up to seven years?
Answer: The intent is to allow a State time to change its national laws or policy to conform to the provisions of the Statute.
THE INTERNATIONAL CRIMINAL COURT
In July 1998, 160 nations decided to establish a permanent International Criminal Court to try individuals for the most serious offences of global concern, such as genocide, war crimes and crimes against humanity. The agreement was hailed by United Nations Secretary-General Kofi Annan as "a giant step forward in the march towards universal human rights and the rule of law." But some critics think the ICC will be, at best, an ineffective body, and at worst, a dangerous threat to national sovereignty. This fact sheet addresses some common questions and misconceptions
Why have countries decided to set up an International Criminal Court now?
The UN General Assembly first recognized the need for such a Court in 1948, following the Nuremberg and Tokyo trials after World War II, and it has been under discussion at the UN ever since. But recently, the horrific events in the Former Yugoslavia and Rwanda -- for which ad hoc tribunals were established by the UN Security Council -- spurred international interest in the need for a permanent mechanism to prosecute mass murderers and war criminals. A permanent court would be able to act more quickly than ad hoc bodies, and would serve as a stronger deterrent. The indictment of President Slobodan Milosevic of Yugoslavia by the ad hoc tribunal in June 1999 for crimes against humanity in Kosovo has renewed interest in the key role a permanent court could play.
When and where will the Court be set up?
The Statute of the Court -- which was approved by an unrecorded vote of 120 in favour and 7 against, with 21 abstentions -- will enter into force after 60 countries have ratified it. As of mid-May 1999, 3 countries have ratified the Statute and 82 have signed it, showing their intent to seek ratification, which usually requires the approval of the national legislature. The seat of the Court will be at The Hague, in the Netherlands, but it will be authorized to try cases in other venues when appropriate. Practical arrangements for the Court's operation, such as its Rules of Procedure and Evidence, are to be worked out by a Preparatory Commission by June 2000.
What crimes will the Court try?
Crimes within the jurisdiction of the Court are genocide, war crimes and crimes against humanity, such as widespread or systematic extermination of civilians, enslavement, torture, rape, forced pregnancy, persecution on political, racial, ethnic or religious grounds, and enforced disappearances. The Court's Statute lists and defines all these crimes to avoid ambiguity.
What about crimes of aggression, terrorism and drug trafficking?
There was wide support in Rome for including aggression as a crime, but insufficient time to agree on a precise definition. As a result, the Statute provides that crimes of aggression can be prosecuted by the Court when the States Parties reach agreement at a review conference on the definition, elements and conditions under which the Court will exercise jurisdiction over this crime. Since the Statute states that any agreement must be consistent with the UN Charter, it would require prior determination by the Security Council of an act of aggression.
Although there was considerable interest in also including terrorism and drug crimes in the Court's mandate, countries could not agree in Rome on a definition of terrorism, and some countries felt investigation of drug offences would be beyond the Court's resources. They passed a consensus resolution recommending that States Parties consider inclusion of such crimes at a future review conference.
Will the Court prosecute crimes of sexual violence?
Yes. The Statute includes crimes of sexual violence -- such as rape, sexual slavery and forced pregnancy -- as crimes against humanity when they are committed as part of a widespread or systematic attack directed against any civilian population. They are also war crimes when committed in international or internal armed conflicts.
Why do we need an international court for such crimes? Can't domestic courts take care of them? And what about the International Court of Justice?
National courts will always have jurisdiction. Under the principle of "complementarity", the International Criminal Court will act only when national courts are unable or unwilling. Unfortunately, in some countries, in times of conflict or social and political collapse, there may be no courts capable of dealing properly with these types of crimes. It may also be that the Government in power is unwilling to prosecute its own citizens, especially if they are high-ranking. Since those who commit crimes under the Statute often cross borders, it is necessary for States to be able to cooperate to capture and punish them. The International Criminal Court would provide an option in such cases. The International Court of Justice deals only with disputes between States, not criminal acts by individuals.
Who will decide which cases are brought before the Court?
Cases can be referred to the Court by States. The Court's Prosecutor can also initiate an investigation into a crime that has come to his or her attention. In such cases, the Court could only exercise jurisdiction if the State in whose territory the crime was committed, or the State of the nationality of the accused, is party to the Statute. Cases can also be referred to the Court by the UN Security Council, acting under Chapter VII of the UN Charter. In such cases, because the Council's actions under Chapter VII are of a mandatory nature, the Court could exercise jurisdiction even when neither the State in whose territory the crimes have been committed nor the State of nationality of the accused is a Party.
What's to stop the Court from prosecuting criminals for political motivations?
There are checks and balances built into the process. The Prosecutor cannot even start an investigation without permission from a pre-trial chamber of three judges. The suspect and the States concerned also have the right to challenge investigation by the Prosecutor. In addition, States and the accused can challenge the jurisdiction of the Court or the admissibility of the case at the trial stage. The Prosecutor is obligated to defer to States able and willing to pursue their own investigations. Moreover, the UN Security Council can request the Court to defer investigation or prosecution of a particular case for renewable one-year periods. These measures will ensure that cases are substantial and deserve investigation and prosecution by the Court.
What's to assure that trials before the Court will be fair or even that judges will be qualified?
The Court's Statute establishes the highest international standards and guarantees of due process and fair trial. Judges must meet a number of criteria of outstanding professional competence as well as geographical and gender representation. They will be elected by the States Parties to the Court's Statute -- by no less than a two-thirds majority.
What happens if a criminal evades capture? Won't extradition be a problem?
Based on evidence presented by the Prosecutor, the pre-trial chamber can issue an international arrest warrant obligating all States party to the Court's Statute to arrest that individual. In cases referred to the Court by the Security Council under Chapter VII of the UN Charter, which gives the Council enforcement powers binding on all countries, the Court would be able to request the Security Council to use those powers to compel cooperation.
Some countries are prevented by their laws from extraditing a war criminal to another country for prosecution. However, during the negotiations for the Court, many countries stated that their extradition laws would not prevent them from delivering a suspect to an international court. Other countries indicated they would change their laws.
Does the Court's Statute violate international law by giving the Court jurisdiction over national forces or members of peacekeeping missions?
No. Under existing international law, the State in whose territory genocide, war crimes or crimes against humanity have been committed or whose citizens are victims of such crimes is legally obligated to investigate and prosecute persons accused of such crimes. Trial by the Court would, in almost all such cases, serve to raise the standard of due process for soldiers accused of war crimes. The Court's Statute does not violate any existing principle of treaty law, nor has it created any entitlements or legal obligations not already existing under international law.
The Court's Statute serves to protect peacekeepers by outlawing attacks against soldiers or UN personnel involved in humanitarian assistance or peacekeeping. Also, it does not affect existing arrangements with respect to UN peacekeeping missions, since troop-contributing countries continue to retain criminal jurisdiction over their own soldiers on such missions.
Can a citizen be prosecuted from a country that is not party to the agreement establishing the Court?
Yes, provided the country where the alleged crimes occurred is a State Party or the UN Security Council refers the case to the Court. However, under the principle of complementarity, the Court will act only if the national court of the accused does not prosecute him or her.
Why are States Parties allowed to withdraw from the treaty for up to seven years?
The intent is to allow a State time to change its national laws or policy to conform to the provisions of the Statute.
For more information see the ICC website Published by the United Nations Department of Public Information © DPI/2012/Rev.1--June 1999 (http://www.un.org/News/facts/iccfact.htm)