The establishment of the International Criminal Court was a major development, rather a giant leap in international law in general, and the enforcement of international criminal law in particular, so that the perpetrators of international crimes would not go unpunished.
However, the idea of creating a permanent international criminal court did not only emerge in the '90s. As a matter of fact, it dates back to the Convention on the Prevention and Punishment of the Crime of Genocide 1948, whereas Article 6 thereof stipulates the creation of such a court, in order to try and punish the perpetrators of the crime of genocide.
In 1992, the United Nations General Assembly requested the International Law Commission (“ILC”) to draft a statute for a permanent international criminal court to try the most serious violations of human rights. Many States, however, stood opposed to the creation of such a court. Later on, views differed as a result of the creation by the Security Council, in 1993, of the International Criminal Tribunal for the former Yugoslavia, in the aftermath of the atrocities committed in that country, and the establishment by the Council, in 1994, of the International Criminal Tribunal for Rwanda, to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in Rwanda and in neighbouring countries. Furthermore, the first judgment of the Yugoslav Tribunal - Tadić jurisdictional decision - elucidated many legal issues, and developed the concept of war crimes law; by stating that crimes against humanity cannot only be committed in wartime, but also in peacetime, and also by setting up the punishability of war crimes during armed conflicts. Moreover, subsequent rulings of the ad hoc tribunals - Yugoslav and Rwandan Tribunals - on a variety of matters fed the debates on the creation of an international criminal court.
By 1994, the ILC completed its work and adopted a draft statute. Subsequently, in 1995, the General Assembly established the Preparatory Committee for an International Criminal Court for the purpose of examining the draft statute, submitted by the ILC, and preparing for an international conference to create a multilateral treaty for an international criminal court.
At the Rome-based Headquarters of the UN Food and Agricultural Organization (FAO), the Diplomatic Conference of Plenipotentiaries on an International Criminal Court was convened from June to July 1998, where 120 States voted for and signed, on 17 July, the Rome Statute of the International Criminal Court. It should be mentioned here that more than 160 States sent delegates to the Conference, in addition to a range of international organisations and literally hundreds of non-governmental organisations.
The United States, Israel and China stated that they had opposed adoption of the statute. Among the abstainers were several Arab and Islamic States, as well as a number of delegations from the Commonwealth Caribbean.
Four years later, the Rome Statute came into force on July 1st, 2002, following the 60th ratification, as provided by the Statute, bringing the International Criminal Court into existence.
According to the Rome Statute, the ICC was established to prosecute the perpetrators of “the most serious crimes of concern to the international community as a whole” and “to put an end to impunity” as these crimes “threaten the peace, security and the well-being of the world”.
However, the ICC must not be regarded as replacing the national jurisdictions of the States Parties. The Rome Statute asserts that this Court functions in accordance with the principle of “complementarity”. In other words, the ICC is complementary to the judicial systems of the States Parties. And the Statute emphasizes that “it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Furthermore, Article 17 of the Statute specifies the situations where the Court can hear cases.
These situations are limited to if the State Party to the ICC is determined to be unwilling or unable to prosecute the alleged criminal activity domestically. If this proves to be right, then the ICC could exercise jurisdiction over the criminal act in question.
Consequently, the crimes that fall within the jurisdiction of the ICC must and will still be prosecuted at the national level, that is to say before the national courts, unless these courts are found or determined to be unwilling or unable to carry out their duty.
In accordance with Article 5(1) of the Rome Statute, the ICC has jurisdiction over the following international crimes:
a) The crime of genocide;
b) Crimes against humanity;
c) War crimes;
d) The crime of aggression.
Concerning the fourth category, Article 5(2) of the Statute states that the ICC shall not be able to exercise jurisdiction over the crime of aggression until the Statute has been amended to define that crime and the conditions under which the ICC may exercise jurisdiction over it. However, this has changed; a definition of the crime of aggression and the conditions for the exercise of jurisdiction over this crime were adopted last year in June, but have not yet come into force.
Furthermore, Articles 6, 7 and 8 of the Statute exhaustively define the acts that constitute the crimes in the first three categories, respectively.
The jurisdiction of the ICC is further limited to territorial jurisdiction and personal jurisdiction. In other words, according to Article 12(2) of the Statute, the jurisdiction of the Court may be invoked only if one, or more, of the crimes (conduct), falling under its jurisdiction, has been committed on the territory of a State Party to the Rome Statute, or on board a vessel or aircraft registered in that State, or by one of its nationals. In the case where neither of them is a State Party, either of them could accept the jurisdiction of the Court on an ad hoc basis, in accodrance with Article 12(3) of the Statute.
As regards the bodies empowered to refer cases before the Court, Article 13 of the Statute states:
“The Court may exercise its jurisdiction with respect to a crime referred to in article 5 in accordance with the provisions of this Statute if:
a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;
b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or
c) The prosecutor has initiated an investigation in respect of such a crime in accordance with article 15”.
As has been previously said, “under (a) and (c), the ICC can exercise jurisdiction only if (1) the state on whose territory the conduct occurred (or if the crime was committed on board a vessel or aircraft, the state of registration) or (2) the state of nationality of the accused person, is a party to the Statute. But if neither state is a party, either can accept the jurisdiction of the ICC, voluntarily and ad hoc (Article 12).
Consequently, in order for the Court to exercise jurisdiction, the accused person does not have to be a national of a State Party if the crime in question was committed on the territory of a State Party, or on board a vessel or aircraft registered in that State.
However, the Security Council, having the “primary responsibility for the maintenance of international peace and security” - in accordance with the UN Charter - is not subject to the above-mentioned limitations. Therefore, it can adopt a decision - acting under Chapter VII of the Charter - to refer situations in which one or more of those crimes over which the ICC has jurisdiction appears to have been committed, whether the State on whose territory the crime or crimes have been committed (or on board a ship or aircraft registered in that State), or of the accused person is a State Party to the Statute or not.