The Establishment of a Permanent International Criminal Court: Challenges Ahead

I. Introduction

On 15 December 1997, the UN General Assembly resolved to convene a diplomatic conference of plenipotentiaries in Rome during June–July 1998 for the purpose of establishing a permanent international criminal court. ¹ The idea of a permanent court is not new; it began with the unsuccessful attempt to establish an international tribunal following World War I. Although there have been various attempts and proposals to establish such a court since the inception of the League of Nations, the forthcoming meeting is the first time that prospects have ever seemed so promising for the court to become a reality. ² A brief history of prior efforts follows, in order to provide a proper context for the issues discussed in this article.

II. Historical Context

Following the post-World War II trials in Nuremberg and Tokyo, the idea of a permanent international criminal court arose in the context of the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). ³ Serious UN efforts to create such a court date back to March 1950, when a special rapporteur appointed by the International Law Commission (ILC) to draft a statute for an international criminal court submitted a report on the subject. ⁴ Soon thereafter, the ILC appointed another rapporteur to study the topic further, and another report followed. ⁵

In 1951, the General Assembly appointed a special committee, comprised of representatives from seventeen states, to draft a convention for a court. Although the committee promptly submitted a draft statute, ⁶ any further progress was doomed by the politics of the Cold War; none of the major powers except France supported the establishment of such a body. ⁷ The committee’s draft statute was revised in 1953 ⁸ in order to make it more acceptable to states. The draft statute proposed voluntary participation and provided states with the option of withdrawal from the court’s jurisdiction upon a year’s notice. ⁹ The General Assembly, however, tabled the statute until the ILC agreed to draft a code of offenses to accompany the draft proposal for the court. ¹⁰

No further progress was made until 1989, when the General Assembly requested that the ILC prepare a report on an international criminal jurisdiction for the prosecution of persons involved in drug trafficking. ¹¹ The ILC presented a preliminary report to the General Assembly in 1992, discussing jurisdictional, substantive, administrative, and procedural issues pertaining to the proposed court. ¹² After receiving favorable consideration of the report from the General Assembly, the ILC continued working on the project at its next session. In 1993, the ILC submitted the Draft Statute for an International Criminal Court, ¹³ on which the General Assembly requested comments from governments. After making further revisions, the ILC submitted a comprehensive text in 1994. ¹⁴ The creation of ad hoc war crimes tribunals for the former Yugoslavia and Rwanda shortly thereafter lent further impetus to the establishment of an international criminal court. ¹⁵

The General Assembly responded positively to these developments and took further steps toward creating a permanent International Criminal Court (ICC). ¹⁶ In 1994, the General Assembly formed an ad hoc committee to assess the issues involved in establishing a court based on the ILC’s Draft Statute. The Committee submitted its report in 1995. ¹⁷ Thereafter, there was consensus that the Draft Statute needed further work. Hence, in 1995, the General Assembly called for the creation of a Preparatory Committee (PrepCom)—open to all UN member states, members of the specialized agencies and of the International Atomic Energy Agency—“to discuss further the major substantive and administrative issues arising out of the Draft Statute prepared by the International Law Commission. . . .” ¹⁸ The General Assembly charged the PrepCom with the task of drafting texts “with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries.” ¹⁹

In October 1996, the PrepCom submitted its report to the General Assembly with recommendations, which the...