July 30, 1998
Following the Diplomatic Conference in Rome (June 15 - July 17, 1998) which concluded the Statute for the International Criminal Court (ICC), the following is an overview of the developments leading up to the establishment of the Court and its significance.
The Idea of the Court
International law has long recognised that there are crimes of such severity they should be considered "international crimes". Such crimes have been established in treaties such as the Genocide Convention and the Geneva Conventions.
To date, however, there has been no permanent body capable of bringing individuals suspected of committing such crimes to trial, and the international community has had to rely on occasional ad hoc tribunals such as the Nuremberg and Tokyo tribunals or, more recently, those established in relation to crimes in Rwanda and former Yugoslavia.
The idea of establishing a permanent criminal court has a long history. Following the horrors of the second world war the idea attracted considerable support, including from many Jewish and Israeli leaders. However the Cold War effectively paralysed efforts to establish such a court and it was only in the early 1990s that the concept began to take serious shape.
In 1994 the International Law Commission prepared, at the request of the United Nations, a draft Statute for the ICC. Over the past three years six preparatory conferences were held to try to finalise the provisions of such a Statute. Israel was an active participant in all of these conferences.
In June-July of this year a marathon five-week conference was held in Rome, at the conclusion of which the Statute for the ICC was adopted. In the vote on the Statute, there were 120 in favour, 7 against and 21 abstentions. Israel, together with the United States, was among the seven states which voted against the Statute, for reasons outlined below.
Description of the Court
The Court to be established by the Statute may broadly be described as follows:
The Court is a permanent judicial body, independent from the United Nations, which will have its seat in the Hague. The Statute of the Court, agreed at the Rome Conference, takes the form of an international treaty, and will only enter into force once 60 states have ratified the treaty.
The Court's jurisdiction applies to individuals (not states) who commit any of the crimes listed in the Statute under the following categories: Genocide, Crimes against humanity, Aggression and War Crimes.
Many states, including Israel, viewed the inclusion of aggression in the list of crimes as inappropriate, arguing that this was a political issue, and that there was no satisfactory definition of the proposed crime. The role of the Security Council in defining aggression was also subject to debate. As a compromise, the final Statute refers to the crime of aggression but leaves the definition to be agreed at a later date.
As regards war crimes, the Statute contains a long list of crimes drawn primarily from the Geneva Conventions and other instruments of international law. Among these are such acts as deliberate attacks on civilian targets, the use of prohibited weapons and serious sexual crimes. With the support of a number of Arab states, the "crime" of transferring civilian population to occupied territory (i.e. settlement activity) was also included under this heading.
The Statute gives states the option to opt out of the jurisdiction of the Court with regard to war crimes for a period of 7 years.
In general, it should be noted that the Court's jurisdiction is not retroactive, and that it can only deal with crimes committed after the date of its entry into force.
Preconditions to jurisdiction:
In order for the Court to have jurisdiction in a particular case it requires the consent of either the state in the territory of which the crime was committed, or the state of nationality of the accused. It follows that, where the state in which the crime is committed consents, an individual who is present in a state party may be arrested and transferred to the Court, even where his or her own state of nationality objects.
It should also be noted that the Court operates under the principle of complementarity, i.e. where a state has jurisdiction to try an individual it will have priority over the Court. This will not, however, prevent the Court from trying an individual where it is convinced that the national proceedings were not genuine or did not adequately reflect the seriousness of the crime.
Other key provisions:
The Prosecutor: Under the Statute, the Prosecutor has authority not only to pursue proceedings initiated by a complainant state or by the Security Council, but also to commence proceedings at his or her own initiative, subject to approval by a Pre-Trial Chamber.
Security Council: Where the Security Council is dealing with a matter, it may require the Court not to bring proceeding in relation to that matter for a period of up to one year.
Death penalty: Despite the insistence of many Islamic states, the Court is not authorised to impose the death penalty.
Israel's Position with regard to the Court
Although Israel has been a long-standing advocate of the Court, it was gravely disappointed by the politicization apparent in the course of the negotiations and was eventually forced reluctantly to vote against the Statute.
The following are Israel's primary issues of concern:
- The inclusion of settlement activity as a "war crime" is a cynical attempt to abuse the Court for political ends. The implication that the transfer of civilian population to occupied territories can be classified as a crime equal in gravity to attacks on civilian population centres or mass murder is preposterous and has no basis in international law.
- Many of the other 'crimes' included in the war crimes provision of the Statute represent a distortion of these crimes as they appear in the instruments of international law. Israel, together with a number of other states, was of the view that the Statute should have accurately reflected the existing provisions of international law.
- The jurisdiction given to the Court to try individuals even when their state of nationality is not party to the Statute disregards the fundamental principle that a treaty may only bind its own parties.
Finally, it should be noted that Israel had wanted the voting on the Statute of the Court to be conducted on a section by section basis, a procedure which would have enabled Israel to vote in favour of most of the provisions of the Statute. However, the decision of the conference to present the Statute for a single vote on a 'take it or leave it' basis, together with the fact that the Statute rules out the possibility of reservations, left Israel with no choice but to vote against.