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For debate in the Standing Committee - see Rule 47 of the Rules of Procedure
Pour débat à la Commission permanente – Voir article 47 du Règlement
Doc. 8401
6 May 1999
International Criminal Court
Report
Committee on Legal Affairs and Human Rights
Rapporteur: Mr Dick Marty, Switzerland, Liberal, Democratic and Reformers' Group
Summary
The Statute of the International Criminal Court was signed in Rome on 17 July 1998: it represents an historical landmark for humanity which should put an end to the impunity enjoyed by the perpetrators of crimes which are the most unacceptable for the conscience.
The result of a long and difficult compromise, the Statute of the Court contains a number of shortcomings. The Assembly considers that these shortcomings should not be used by states as a pretext to reopen negotiations or to refuse to ratify the Statute. It notes that the 41 member states of the Council of Europe, that is to say, two thirds of the number required for the entry into force of the Statute and of whom 35 have already signed it, have a decisive role to play.
I. Draft recommendation
1. In its Recommendation 1189 (1992), the Assembly called for the establishment of an international criminal court by means of a multilateral convention;
2. It considers that the impunity enjoyed by the perpetrators of the most serious crimes, such as genocide, crimes against humanity and war crimes, is an obstacle to reconciliation, fostering revisionism and depriving future generations of irrefutable evidence.
3. It is therefore with great satisfaction that the Assembly welcomes the adoption, at the end of the diplomatic Conference in Rome on 17 July 1998, of the Statute of an International Criminal Court (ICC), which represents an historical landmark for humanity.
4. However, the Statute adopted in Rome is the result of a difficult compromise. A Preparatory Commission has been instructed to resolve the questions which were left in abeyance before 30 June 2000. In particular, this Commission is to draw up the Court's Rules of Procedure and Evidence.
5. The Statute contains a number of shortcomings, such as the fact that there may be no judgments in abstentia, or that criminals who are nationals of a state which has not ratified the Statute or recognised the competence of the Court fall outside its jurisdiction, as well as the United Nations Security Council's power to give the Court a mandate to investigate and prosecute crimes in certain cases, which would enable member states to exercise their veto.
6. Even more serious is the exemption clause provided for in Article 124 of the Statute, according to which "a State, on becoming a party to [the] Statute, may declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court ".
7. The financing of the Court by contributions made by States Parties and funds provided by the United Nations places it in a precarious situation.
8. However, in spite of these weaknesses, the Assembly considers that this Statute must enter into force as soon as possible. Sixty ratifications are necessary for this. The 41 states which make up the Council of Europe – i.e. two thirds of the necessary number - thus have a decisive role to play in the matter and can make an important contribution to its entry into force.
9. The re-opening of the negotiations on the Statute which certain states would like to prompt at the meeting of the Preparatory Commission in July 1999 should not be permitted, as it would seriously compromise the entry into force of the Statute.
10. The Assembly recommends, therefore, that the Committee of the Ministers invite the member states and the observer states:
i. to ratify as soon as possible the Statute of the International Criminal Court adopted in Rome on 17 July 1998;
ii. to adopt domestic legislation enabling them to cooperate with the Court;
iii. to avoid the re-opening of negotiations on the Statute of the Court;
iv. not to avail themselves of the clause in Article 124 which makes it possible to escape the Court's jurisdiction for seven years;
v. to refuse to enter into agreements with states which are not parties to the Statute aimed at preventing nationals of their country accused of crimes against humanity from being handed over to the Court;
vi. to ensure that the Preparatory Commission fulfils the tasks assigned to it as rapidly as possible;
vii. to make a financial contribution towards the functioning of the Court:
viii. to forward the present recommendation to the Preparatory Commission.
II. Explanatory memorandum by Mr Marty
A. Introduction
1. The Assembly must welcome the adoption, after the diplomatic Conference in Rome on 17 July 1998, of the Statute of the International Criminal Court (ICC). This is the culmination of a long process beginning with the special court, provided for in the Treaty of Versailles but never set up, to try Kaiser Wilhelm II after the first world war and continuing with the Nuremberg and Tokyo Tribunals set up after the second world war, and more recently with the International Criminal Tribunals for the former Yugoslavia and Rwanda.
2. So the process has taken nearly a century, marked by two international conflicts and numerous regional and local conflicts and civil wars, which have shocked the human conscience to such an extent that it has become impossible to continue to accept the impunity enjoyed by the perpetrators of the most serious crimes, including genocide, crimes against humanity and war crimes.
3. Impunity is an obstacle to reconciliation, fostering revisionism and depriving future generations of irrefutable evidence.
4. This is why the International Law Commission has been working ceaselessly for decades to draw up the statute of an international court. However, every former attempt to set up such a court failed, among other things because it was felt necessary to establish a codification for the crimes it would deal with. Nonetheless, definitions of crimes of genocide, war crimes and crimes against humanity were already contained in the London Agreement of 8 August 1945, the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Geneva Conventions of 1949, and others. Probably the main reason for the failure of these attempts was a lack of political resolve.
5. It is also for this reason that the Parliamentary Assembly called for the establishment of an international criminal court in two recommendations prompted by events in the Gulf war and then the war in the former Yugoslavia: Recommendation 1189 (1992) on the establishment of an international court to judge war crimes and Recommendation 1218 (1993) on establishing an international court to try serious violations of international humanitarian law.
6. In Recommendation 1189 (1992), the Assembly recommended the establishment of an international criminal court by means of a multilateral convention to be drafted by an international diplomatic conference convened under the auspices of the United Nations. Accordingly, it recommended that the Committee of Ministers call upon member states to act through the United Nations to secure the convening of an international diplomatic conference to prepare a convention on the setting up of a criminal court, and support such action.
7. It reiterated this request in Recommendation 1218 (1993).
8. It is therefore with great satisfaction that we should welcome the adoption of the Statute of the Court by the conference in Rome by 120 votes for, 7 against and 21 abstentions.
9. We should also welcome the fact that, at the time this report was drafted, eight-two States had signed1 and two (Senegal and Trinidad and Tobago) had ratified the Statute. It is to be hoped that they will ratify it as soon as possible, as the Statute will enter into force following the deposit of the sixtieth instrument of ratification. The ICC’s jurisdiction will not be retroactive. Only crimes committed after the Statute enters into force will be subject to its jurisdiction.
10. However, as is well known, the adoption of this Statute was very difficult; compromises had to be made and certain points were left in abeyance. The choice was between a weak Statute which most states would accept or a strong one which very few states would agree to. The text adopted was the result of a compromise and leaves a number of questions open. A Preparatory Commission has therefore been appointed to carry out the practical tasks left in abeyance by 30 June 2000 and draw up the Rules of Procedure and Evidence of the Court. A Review Conference will be held seven years after the entry into force of the Statute.
11. It is extremely important, therefore, for parliamentarians to make proposals promptly so that they can be taken into account by the Preparatory Commission.
12. This is the object of this report. The first part will deal with the content of the Statute and the second will describe its failings.
B. The content of the Statute of the International Criminal Court2
i. Categories of crime covered
13. The Court will have jurisdiction over four types of crime, the crime of genocide, crimes against humanity, war crimes and the crime of aggression.
14. As mentioned above, and pointed out by the Parliamentary Assembly in its two previous recommendations on the International Criminal Court, the definitions of the first three types of crimes are based on existing texts such as the Geneva Conventions of 1949 and the Convention on Genocide. The definitions are quite detailed and a long list of crimes against humanity and war crimes is given. For war crimes alone, no fewer than twenty-six offences are mentioned. However, as far as the crime of aggression is concerned, the Statute states that: “The Court shall exercise jurisdiction over [this crime] once a provision is adopted […] defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime”.
15. These definitions will not be reproduced here as they can be consulted in the addendum to the present document. However, it is legitimate to ask why the crime of aggression was included in the Statute when it will not be defined until the Review Conference, which is not due to meet until seven years after the Statute enters into force.
ii. The jurisdiction of the Court
16. The jurisdiction of the ICC is subject to the principle of complementarity, that is it is called on to intervene only if the national courts fail to act. Nonetheless, under international criminal law, states have an obligation to apply the law as it stands. They act at the behest of international law.
a. Jurisdiction ratione personae
17. The Court has jurisdiction over individuals who are nationals of the states which have ratified the Statute or have expressed their desire to come within the jurisdiction of the Court. The
crime may have been committed individually or collectively. Persons are criminally responsible if they order, solicit or induce the commission of a crime, facilitate the commission of a crime, assist in its commission or otherwise contribute to its commission or attempted commission.
18. Therefore, perpetrators of crimes can escape the jurisdiction of the Court only if neither the state of which they are nationals nor the state in which they committed their offence recognises the Court’s jurisdiction.
b. Jurisdiction ratione temporis
19. The Court has jurisdiction only with respect to crimes committed after the entry into force of the Statute. In the event that a state ratifies the Statute after its entry into force, the Court may exercise jurisdiction only with respect to crimes committed after the Statute entered into force in that state.
iii. The Prosecutor
20. The Prosecutor may initiate an investigation proprio motu. He or she must be independent though his or her ex officio actions are subject to the review of a pre-trial chamber, which decides whether there is a reasonable basis to proceed with an investigation.
iv. Applicable law
21. The Court will apply the Statute and the Rules of Procedure and Evidence (which will be adopted by the Preparatory Commission), as well as applicable treaties and the principles and rules of international law and, failing that, the general principles of law.
22. The general principles of criminal law to be applied are as follows:
—Nu llum crimen sine lege: the act in question must constitute a crime within the jurisdiction of the Court at the time it takes place.—
—Nu lla poena sine lege: convictions of the Court must be in accordance with the Statute.—
—No n-retroactivity ratione personae: no one shall be responsible for conduct prior to the entry into force of the Statute.—
—In dividual criminal responsibility: the Court has jurisdiction over individuals. The crime may have been committed by an individual or jointly. Persons are criminally responsible if they order, solicit or induce the commission of a crime, facilitate the commission of a crime, assist in its commission or otherwise contribute to its commission or attempted commission.v.
v. Composition of the Court
23. The Court is composed of eighteen judges. However, the Presidency may propose an increase in the number, provided it gives reasons.
24. Judges are chosen from among persons of high moral character, impartiality and integrity who possess the qualifications required in their respective states for appointment to the highest judicial offices. These are more or less the same qualities as are required of judges in the European Court of Human Rights.
25. There follows a list of further requirements, including linguistic knowledge.
26. Each State Party may put forward one candidate, who need not be a national of that State party but must be a national of one of the States parties.
27. Under Article 112 of the Statute, the Assembly of States Parties is made up of one representative appointed by each State Party, who may be accompanied by alternates and advisers. Other States which have signed the Statute or the Final Act may be observers in the Assembly. Article 112 goes on to list the functions of the Assembly.
28. The Assembly of States Parties may decide to establish an Advisory Committee on nominations. Here again, there are similarities with the procedure set up by the Parliamentary Assembly for examining candidatures for the European Court of Human Rights.
29. Judges are elected by secret ballot by the Assembly of States Parties.
30. Account is taken of the need for representation of the main legal systems of the world, equitable geographical representation and fair representation of women and men.
vi. Rights of the accused and penalties incurred
31. The accused has the right to a fair hearing and, in particular, the presumption of innocence.
32. Possible penalties include imprisonment for up to thirty years and, in cases of extreme gravity, life imprisonment.
33. The death penalty was rejected. The Assembly can only approve of the decision to exclude the death penalty from the range of penalties because it considers that executions are inhuman treatment which any self-proclaimed developed society cannot accept.
C. The failings of the Statute
i. No judgments in absentia
34. Article 63 stipulates: “The accused shall be present during the trial”.
35. In other words there can be no trials in absentia. This means that a suspected criminal only has to escape arrest in order not to be judged. Recent history has shown that it is relatively easy to avoid arrest. This clause constitutes a failing because it prevents the court from performing one of its essential functions, which is to establish the truth so as to preclude any attempt at revisionism and permit the duty of remembrance.
ii. Restrictions on the jurisdiction of the Court
36. The Statute says nothing about persons committing one of the crimes it covers who are nationals of a state which has not ratified the Statute and has not recognised the jurisdiction of the Court. It has to be inferred from this that these people are excluded from the jurisdiction of the Court. This amounts to a serious restriction on the Court’s jurisdiction. It is known for example that the United States has not signed the Statute and does not intend to ratify it. And yet the United States has often carried out military operations in various regions and American citizens could well perpetrate one or more of the crimes covered by the Statute.
iii. The role of the Security Council
37. The Statute assigns two functions to the Security Council. Its first function stems from Chapter VII of the United Nations Charter and consists of giving the Court a mandate to investigate and prosecute crimes even in the absence of ratification or consent on the part of the States where the crimes were committed or of which the person charged is a national. However, the United States hopes to make use of its veto within the Security Council to prevent this function from being exercised.
38. The Security Council may also suspend or interrupt proceedings for a maximum period of twelve months. Suspension must be requested unanimously by the permanent members and be approved by nine votes out of fifteen in the Security Council.
iv. The exemption clause in Article 124
39. According to this article, “a State, on becoming a party to this Statute, may declare that, for a period of seven years after the entry into force of the Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in Article 8 when a crime is alleged to have been committed by its nationals or on its territory. A declaration under this article may be withdrawn at any time. The provisions of this article shall be reviewed at the Review Conference convened in accordance with Article 123, paragraph 1.”
40. This article has been described by Amnesty International as a “licence to kill” for seven years. However, it would not be advisable to reopen discussion of the article because this might serve as a pretext for States that wish to reopen negotiation on the entire agreement. But States must be strongly urged not to use this clause.
41. Article 123 relates to the review of the Statute and provides that: “Seven years after the entry into force of this Statute the Secretary General of the United Nations shall convene a Review Conference to consider any amendments to the Statute. Such review may include, but is not limited to, the list of crimes contained in Article 5. The conference shall be open to those participating in the Assembly of States Parties and on the same conditions.”
v. The funding of the Court
42. The expenses of the Court and the Assembly of States Parties are financed from the following sources:
i. contributions made by States parties;
ii. funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred by cases referred to the Court by the Security Council.
43. The risk with this method of funding is that the States that wish to prevent the Court from operating have the possibility to do so.
D. Conclusions
44. While we recognise the historic step that the adoption of the Statute of the International Criminal Court represents, there are still reasons for concern which should prompt all those who believe that there cannot be peace without justice to rally round with a view to achieving the following objectives:
—th e ratification of the Statute by as many States as possible, as soon as possible, bearing in mind that, though only 60 ratifications are necessary for it to enter into force, it would be best for all the States to ratify;—
—th e adoption by the States of domestic legislation enabling them to co-operate with the Court; it should be remembered that the initial responsibility for judging the crimes covered by the Statute lies with the States;—
—en suring that the above-mentioned clause in Article 124, which makes it possible to escape the Court's jurisdiction for seven years, is not used;—
—a refusal to enter into agreements with non-party States to prevent their nationals from being handed over (we know that the United States is intending to make use of such bilateral agreements to exclude its nationals from the jurisdiction of the Court);—
—me asures to ensure that the Preparatory Commission fulfils the tasks assigned to it as quickly as possible.45
45. It is essential that the momentum which led to the adoption of the Statute is not lost.
46. Finally, at a time when the United States has taken the leadership of the intervention in Kosovo, it is shocking that this country has declared that it is not willing to ratify the Statute of Court and its citizens thus escape all control.
*
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Reporting committee: Committee on Legal Affairs and Human Rights
Budgetary implications for the Assembly: none
Reference to committee: Doc 8159, Reference 2313 of 21 September 1998
Draft recommendation adopted unanimously by the Committee on 29 April 1999
Members of the committee: MM Jansson (Chairperson), Bindig, Frunda, Moeller (Vice-Chairpersons), Mrs Aguiar, MM Akçali, Arzilli, Attard Montalto, Bartumeu Cassany, Brand, Bulic, Clerfayt, Columberg, Contestabile (alternate: Mr Besostri), Demetriou, Enright, Mrs Frimansdóttir, Mr Fyodorov, Mrs Gelderblom-Lankhout, Ms Hlavac, Mr Holovaty, Mrs Imbrasiene, MM Jaskiernia, Jurgens, Kelam, Kelemen, Lord Kirkhill, Mr Kresak, Mrs Krzyzanowska, Mr Le Guen, Ms Libane, MM Lintner, Loutfi, Magnusson, Mancina, Mrs Markovic-Dimova, MM Martins, Marty, McNamara, Mozetic, Mrs Näslund, MM Nastase, Pavlov, Pollo, Polydoras, Mrs Pourtaud (alternate: Mr Bordas), MM Rippinger, Robles Fraga (alternate: Lopez Henares), Rodeghiero (alternate: Mr Speroni), Roth, Mrs Roudy, MM Schwimmer, Shishlov, Simonsen, Solé Tura, Solonari, Sungur, Svoboda (alternate: Mr Kroupa), Symonenko (alternate: Mr Khunov), Tabajdi, Verivakis, Vishnyakov, Vyvadil, Weyts, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge
1 Including 35 member States of the Council of Europe: Albania, Andorra, Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Georgia, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, former Yugoslav Republic of Macedonia, Malta, Netherlands, Norway, Portugal, Poland, San Marino, Slovakia, Slovenia, Spain, Sweden, Switzerland, United Kingdom.
2 The text of the Statute is available from the secretariat on request.