The efforts made towards the establishment of the permanent

The most significant progress towards the establishment of a permanent international court occurred in 1989, the year of the fall of the Berlin Wall at the end of the Cold War.¹⁹⁰ In December 1989, a letter issued by Trinidad and Tobago requested the establishment of an international court with jurisdiction over the illicit trafficking in drugs. In response to this letter the UN Security General again asked the ILC to restart its work on the draft code of crime.¹⁹¹ It was only in 1993 that under the guidance of James Crawford, as the Special Rapporteur, that the ILC provided a draft

184 Id.

185 For more detail about Gacaca see at: http://www.inkiko-gacaca.gov.rw/En/EnIntroduction.htm (Accessed, 01/02/2012).

186 Koskenniemi M. Supra note 104, at 9.

187 Simpson G. (2007), Supra note 3, at 29.

188 Id.

189 Id, at 29.

190 Broomhall B. International Justice & the International Criminal Court: Between Sovereignty and the Rule of Law (2003), at 2.

191 UN. GA. Res. 44/39 (4 Dec 1989).

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statute of the International Criminal Court which was submitted to the General Assembly in 1994.¹⁹²

Increasing armed conflict and the shocking reports of war crimes, crimes against humanity and ethnic cleansing in the former Yugoslavia once again focused the attention of the international community on the necessity of establishing an international court. The efforts of many NGOs and reports of widespread human suffering around the world forced the UN SC to establish ad hoc international criminal tribunals for the former Yugoslavia and Rwanda. In fact, the events in the Balkans and Rwanda and the establishment of these two ad hoc tribunals prompted the notion of a permanent international criminal court.¹⁹³ By then, the ILC had completed the first draft Statute, consisting of sixty Articles, in 1994 and submitted to the 49^th Session of the General Assembly.¹⁹⁴ After the submission of the draft in 1994 many issues and questions were raised in conjunction with the structure and procedural processes required for an international court. An intercessional meeting was therefore convened by the Committee to choose six specialised sub-committees.

Simultaneously, the General Assembly established a preparatory committee on the establishment of an International Criminal Court in November 1995. The General Assembly passed a resolution asking a preparatory committee to hold a meeting for the preparation of a draft statute.¹⁹⁵ In 1996 the Commission finally accepted the last draft of the ‘Code of Crimes against the Peace and Security of Mankind’. The draft Statute of 1994 and the Draft Code of Crimes against Peace in 1996 played a significant role in the arrangement of the ICC’s Statute.¹⁹⁶ The remit of the Preparatory Committee was to formulate a widely acceptable draft text for final submission to a diplomatic conference. The Preparatory Committee, after extensive discussion lasting from 1996 to 1998, prepared a draft text and asked the General Assembly to set up a diplomatic conference for the purpose of finalising the draft Statute in treaty form.

Subsequently, the General Assembly decided to convene a meeting of the United Nations Diplomatic Conference of plenipotentiaries on the establishment of an International Criminal Court. A conference of plenipotentiaries was then held in

192 Report of the International Law Commission on the work of Its Forty-Sixth Session, Draft Statute of an International Criminal Court, UN Doc. A/49/10, SUPP, (May 2- July 22 1994).

193 Sadat Nadya L. Supra note142, at 38; Bassiouni C. (1999), Supra note 46, at 64.

194 See the ICL. Report, Sixth Session. Ibid.

195 UN. GA. Res. 50/46 (18 December 1995).

196 Schabas W. An Introduction to the International Criminal Court (2002), at 10.

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Rome from 15 June to 17 July 1998, and after intense negotiation and compromise in many areas, ultimately the ICC Statute, consisting of 128 Articles, and largely resembling the ILC proposal, was signed on 17 July 1998.¹⁹⁷ Among one hundred and forty-eight states who participated in the Rome Conference, one hundred and twenty of them voted in favour of the treaty, 21 states abstained and seven voted against it, namely the US, China, Libya, Iraq, Israel, Qatar, and Yemen.¹⁹⁸

The establishment of the first international criminal court with jurisdiction to try individuals who had committed the most serious international crimes was the culmination of a challenge which started almost a century ago.¹⁹⁹ The creation of this tribunal indicates the continuing trend in the international sphere towards the institutionalisation of international criminal law at the end of the twentieth century. It entailed overcoming many obstacles in its creation and highlights the growing consensus among states that the establishment of a permanent international justice system is desirable and necessary, most notably as a response to the twentieth century, which has been labelled the ‘century of violence’.²⁰⁰

Although the ICC is an independent judicial institution, Article II of the Statute stated clearly that it has a close relationship with the UN. After protracted negotiations between the two institutions, an agreement on the nature of the relationship was signed between the former UN Secretary General Kofi Annan and the President of the ICC Philippe Kirsch, and the agreement came into force on 4^th October 2004. Article 18 of the agreement provides the terms of cooperation between the UN and the Prosecutor of the ICC.²⁰¹

Unlike the ad hoc tribunals, which were created by the SC for a limited time and jurisdiction, the ICC is the first permanent international criminal court based on a multilateral treaty.²⁰² The ICC has jurisdiction over four core crimes, namely genocide, crimes against humanity, war crimes, and aggression.²⁰³ The first three core crimes are defined in the Statute and the last one was defined in the ICC’s first

197 Bantekas L and Nash S. Supra note 178, at 536; Sadat N. L. Supra note 142, at 40.

198 See the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15 June-11 July 1998; see also Kircher A. R. Supra note 142, at 264.

199 McCormack T. Supra note 13, at 31; see also above section about the IMT tribunals.

200 McGoldrick D. ‘Criminal Trials Before International Tribunals: Legality and Legitimacy’, in D.

McGoldrick , P. Rowe & E. Donnelly (eds), The Permanent International Criminal Court (2004), 9, at 40.

201 See Agreement between the International Criminal Court and the United Nations, The Hague (4 October 2004), ICC-CPI-20041004-78.

202 See the Rome Statute Art. 1.

203 Id, Art. 5.

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review conference in Kampala, Uganda in 2010 by the Assembly of States Parties.²⁰⁴ However, the Court will only begin to exercise its jurisdiction over these crimes once the amendment has been passed by the majority of States Parties; the vote will take place on 1 January 2017.²⁰⁵

The ICC’s Statute emphasises that the Court will exercise its jurisdiction over individuals on the basis of the principle of complementarity. Complementarity means that if one of the crimes within the jurisdiction of the ICC happens in the territory of a state party to the Statute or against a citizen of a state party, the priority of jurisdiction will always belong to the state in question, and the ICC’s Prosecutor would only be allowed to initiate any investigation in cases where states are unable or unwilling to prosecute. Accordingly, the Court will not have primary jurisdiction and will not compete with national courts’ jurisdiction.²⁰⁶

The ICC is located at The Hague²⁰⁷ and its judges and prosecutor are elected by the States Assembly under Article 35 and 43 of the Statute. To date, 121 countries have become party to the Statute and 139 countries have signed the Statute.²⁰⁸The Court has opened 16 cases in seven situations so far.²⁰⁹

The crimes that fall within the jurisdiction of the ICC apply to individuals regardless of their official position. The definition of individual criminal responsibility stipulated in Article 25 of the Rome Statute is the most comprehensive one to date.²¹⁰ This Article gives a wide scope to individual criminal responsibility, covering all persons who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime. Generally the ICC has contributed to the development of customary international law by referring to the customary law in its jurisprudence over individuals.²¹¹

204 See the crime of aggression, ICC. RC/Res.6 (11 June 2010).

205 Id.

206 See Art. 1 and 17 of the Rome statute.

207 Id, Art. 3 (1).

208 See the ICC website. Supra note 9.

209 Id, namely the situations in the Democratic Republic of the Congo, Uganda and the Central African Republic; two referrals by the UN Security Council, regarding the situation in Darfur, Sudan, and the current situation in Libya, see the SC Res. 1970 (26 February 2011), and the situation in Kenya, which was initiated by the Prosecutor under the authorisation of the Pre-Trial Chamber in 2009; See also the Pre-Trial Chamber II decision on 31 March 2010, ICC-01/09-19 31-03-2010 1/163CB PT;

and Côte d’Ivoire, which is not party state, but had accepted the jurisdiction of the ICC on 18 April 2003.

210 Bogdan A. ‘Individual Criminal Responsibility in the Execution of a Joint Criminal Enterprise in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia’, 6 International Criminal Law Review (2006),63, at 67.

211 Cryer R & et al. Supra note 80, at 126.

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The main progress in the jurisdiction of the ICC, as reflected in Article 7, has taken place with respect to crimes against humanity.²¹²The Statute provides a comprehensive definition of crimes against humanity as comprising acts ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.²¹³ The origin of this definition lies in general customary international law and in the Nuremberg Charter.²¹⁴ It takes into account the experience of both previous ad hoc tribunals and of domestic conflicts over the last 50 years.²¹⁵ For Example, Article 7 provides for an extensive number of crimes with a sexual nature.²¹⁶ Regarding war crimes, the list of 26 acts as war crimes in Article 8²¹⁷ is derived from the four Geneva Conventions and Protocols and previous international tribunals’ statutes, yet with many new categories of war crimes, such as the protection of the natural environment.

Unlike the ICTY and ICTR, the ICC has permanent jurisdiction after July 1, 2002 when it came into force.²¹⁸ The jurisdiction of the ICC was first developed by codifying serious crimes, and then extending these codified crimes to individual responsibility. Thus, the ICC, by criminalisation of a new code of crimes, promoted individual liability at large. However, the Statute in several instances differed from the customary international law, which may create impunity, i.e. concerning the issues related to obedience to superior orders for war crimes – the distinction between the command and civilian superior responsibility, and etc.

The rule of enforcement for the ICC is different from that of the previous international tribunals. Enforcement of decisions of the ICTY and ICTR is based on mandatory obligation and cooperation by states.²¹⁹ In contrast, because of the treaty-based nature of the Statute, the operation and success of the ICC mainly depends on the support of the SC and the voluntary cooperation of states, which are relied on for matters such as surrendering of fugitives,²²⁰ collecting and securing evidence,²²¹ and

212 Rome Statute Art. 7.

213 Id, Art. 7.

214 See the Nuremberg Charter Art. 6.

215 Greppi E. Supra note 124, at 542.

216 Rome Statute in Art 7^th provides: ‘[I]mprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity, enforced disappearance of person, apartheid…’

217 Id, Art. 8.

218 The Rome Statute Art. 11.

219 The ICTY Statute Art. 29.

220 Rome Statute Art. 89.

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other aspects of international cooperation.²²² Furthermore, there is no mandatory obligation for non-party states. However, an exception is made when a case is referred by the SC to the ICC. Some scholars have criticised the ICC for not having adequate power to exercise its jurisdiction.²²³ This may give rise to impunity due to the lack of adequate cooperation by state parties and non-parties.

2.5. Historical development of the post war tribunals and the question of