The International Criminal Court
Questions and Answers
by
Herbert W.Titus, Senior Legal Advisor
The Liberty Commitee

      
What is the International Criminal Court (ICC)?

It is an international court proposed by a United Nations Diplomatic Conference of 
Plenipotentiaries at Rome, Italy on July 17, 1998 to be composed of judges and
prosecutors that asserts world-wide jurisdiction to investigate and to prosecute
individuals who have allegedly committed the crime of genocide, crimes against
humanity, war crimes and the crime of aggression, as defined by the Statute of 
the International Criminal Court and other violations of international humanitarian
law as developed by the court and adopted by its member states.  (See articles
34-35, 4-8,11-14,121,123.)

By what authority did the United Nations Diplomatic Conference act to propose the Statute of the International Criminal Court?

By resolution 51/207 dated December 17, 1996, the United Nations General 
Assembly decided to hold a diplomatic conference of plenipotentiaries in 1998
with a view of finalizing and adopting a convention on the establishment of an 
international criminal court.

By what authority did the U.N. General Assembly act to call this conference?

According to a leading international law spokesman, the conference was 
authorized by "legislation approved by the General Assembly of the United Nations."  According to the Charter of the United Nations, however, the General
Assembly has no legislative authority.  Rather the General Assembly may only
"discuss" issues and "make recommendations to the Members of the United
Nations or to the Security Council" of the United Nations.  (See article 10, Charter
of the United Nations and The Charter of the United Nations:  A Commentary
226-42, B. Simma, ed.: Oxford Press, England:  1995).  By authorizing a 
conference of the United Nations diplomats to confer on the establishment of the
International Criminal Court, the General Assembly acted ultra vires, that is, 
completely without authority.

What United Nations body, if any, had the authority to call such a 
conference?

Only the United Nations Security Council, which alone has the power to call a
conference of member states pursuant to its primary responsibility for the 
maintenance of international peace and security.  (See article 24, Charter of the
United Nations.)  In effect, by calling the conference, the General Assembly 
usurped the function of the Security Council, disregarding article 11 of the charter
which states that the "General Assembly may consider the general principles of
cooperation in the maintenance of international peace and security" but may only
"make recommendations with regard to such principles to the Members or to the
Security Council or to both."

How did the United Nations diplomats at the Rome conference deal with
this limit on the authority of the General Assembly?

It ignored the Charter of the United Nations, just as the General Assembly had.  As
evidenced by the preamble to the Statute of the International Criminal Court, the
Conference of Diplomats usurped the function of the U.N. Security Council, 
justifying its actions proposing the establishment of the International Criminal
Court on the findings that "grave crimes threaten the peace, security and
well-being of the world" and that a court with power to investigate and to
prosecute such crimes was necessary to ensure international peace and security.

What difference did it make for the General Assembly and U.N. diplomats
to bypass the U.N. Security Council?

By ignoring the Security Council's role prescribed by the Charter of the United
Nations, the General Assembly and the Conference of Diplomats evaded the
veto power of the permanent members of the Security Council, in particular, the
veto power of China and the United States, whose representatives at the Rome
conference refused to sign.  Had the proposal for the International Criminal Court
been submitted to the Security Council, as it should have been, it would never
have been proposed, much less established.

Can't the United States, as a permanent member of the U.N. Security
Council, still use its veto power to stop any action take by the ICC?

If established by the approval of 60 member states (which took place on April 11,
2002), article 1 of the Statute of the International Criminal Court declares the court
to be a "permanent institution" and article 4 of the statute declares the court to 
"have international legal personality," governed solely by the provisions of the 
statute.  Accordingly, article 2 of the statute provides that the court, as an 
autonomous international institution, with full rights to forge whatever relationship
with the United Nations as it may be able to negotiate.  The only role provided by
the statute for the Security Council is to refer for prosecution anyone guilty of a
crime, as defined by the statute.  Presumably, the United States could exercise its
veto to stop any such referral.  (See article 13.)  Notwithstanding such a veto,
any member state who is also a party to the statute is empowered by article 14
to make such a referral.

Has the International Criminal Court been established?

The International Criminal Court was established on April 11, 2002 when more
than 60 countries had ratified, accepted or approved the statute providing for 
the International Criminal Court.

Why did it take 60 member states of the United Nations to establish the ICC?

Because article 125 of the statute says so.

Why 60?  Was that a majority of the United Nations member states 
represented at the Rome conference?

No.  Representatives from 148 member states voted on the question whether the
statute of the ICC should be adopted, with 120 voting in favor, seven voting
against, and 21 abstaining.  Why 60 members states is a sufficient number to 
ratify the statute that would create the ICC is a mystery.  One would think that such
an important vote ought to at least require a simple majority of the United Nations
member states.  Indeed, in light of the monumental change in the enforcement
of international law called for by the statute, it is alarming that such a giant step was not taken without a supermajority of two-thirds or three-fourths of the member states.  After all, the Constitution of the United States required nine votes in favor of ratification before it would become effective for the 13 ratifying states.


 

Privacy Statement

2001  The Liberty Committee