NOT JUST A WAR CRIMES COURT: THE PENAL REGIME ESTABLISHED BY THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

• Citation: (1998) 10 SAcLJ 321
• Date: 01 December 1998
• Published date: 01 December 1998

On 17 July 1998, the 160 states participating in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court concluded their five-week meeting in Rome, Italy with the adoption of the Rome Statute of the International Criminal Court1.

The Statute is now open for signature2. When it enters into force on the first day of the month following 60 days after the date of deposit of the 60th instrument of ratification, acceptance, approval or accession3, the International Criminal Court will be the most important international judicial institution to be created since the establishment of the International Court of Justice in 1946. It will also be the first permanent international criminal tribunal exercising prospective criminal jurisdiction over individuals accused of crimes of grave concern to the international community.

This article begins with a brief account of the historical developments which have led to the Rome Statute. It then proceeds to provide an overview of the Statute and, in particular, the key components of the penal regime which it establishes, viz. the Court’s jurisdiction, its procedure and the obligations imposed upon states parties to render cooperation to the Court and to enforce its orders. Specific provisions which, in the view of the author, give rise to problems of interpretation are also examined.

Historical Background

The concept of individual criminal responsibility imposed directly by international law is a fairly recent one and dates back to the Treaty of Versailles4 which was concluded at the end of World War I and which provided for the establishment of international criminal jurisdiction to prosecute the German Emperor and others for crimes against peace and war crimes5. No prosecutions however took place pursuant to the Treaty.

International prosecutions did take place at the end of World War II with the establishment of international military tribunals at Nürnberg and Tokyo to try individual members of the defeated Axis powers for crimes against peace, war crimes and crimes against humanity6.

At about the same time, efforts were also made to establish a permanent international criminal court under the auspices of the United Nations. The International Law Commission (ILC) was requested by the U.N. General Assembly in 1947 to develop a Code of Offences Against the Peace and Security of Mankind and to elaborate a statute for international criminal jurisdiction7. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide8 even contained provisions envisaging the prosecution of genocide before an international tribunal9.

Little progress was however made because of the advent of the Cold War. Difficulties were encountered over the definition of the crime of aggression and the establishment of an international criminal jurisdiction was often de-linked from the ILC’s work on the renamed Draft Code of Crimes Against the Peace and Security of Mankind.

Interest in a permanent international criminal court was rekindled only in 1989 when a special session of the General Assembly on international drug trafficking was held and the idea of establishing such an institution to prosecute major drug traffickers was mooted.

It was the widespread commission of atrocities in the former Yugoslavia and in Rwanda in the early 1990s which gave real impetus for the initiatives which have now resulted in the Rome Statute. The carnage which took place in both countries received extensive media coverage and led to public opinion calling for those responsible to be brought to justice. This resulted in the establishment by the U.N. Security Council of the International Criminal Tribunal for the former Yugoslavia10 in the Hague, the Netherlands in 1993, and the International Criminal Tribunal for Rwanda11 in Arusha, Tanzania in the following year. It also led to the ILC resuming and completing in 1994 its draft Statute for an International Criminal Court12.

In 1994, the General Assembly established an Ad Hoc Committee to look into the issues related to the establishment of the Court on the basis of the ILC draft Statute13. The work of the Ad Hoc Committee led to the subsequent setting up of the Preparatory Committee on the Establishment of an International Criminal Court in 199514. The Committee’s mandate was, in 1996, extended by the General Assembly15 so that a further four sessions would be held in 1997 and 1998 to finalise the consolidated text of a convention establishing the Court which would be (and indeed was) adopted at the Rome Diplomatic Conference.

The Rome Statute

The Statute consists of 128 articles divided into 13 parts. The opening article gives in a nutshell a description of what the Court is, viz. “a permanent institution” with “the power to exercise its jurisdiction over persons for the most serious crimes of international concern”. The seat of the Court will be at the Hague in the Netherlands16.

Crimes Within the Court’s Jurisdiction

The key provisions of the Court can be found in Part 2 entitled “Jurisdiction, Admissibility and Applicable Law”. Contrary to popular perceptions, the Court is not just a war crimes court17 or even a Court which takes cognisance only of crimes committed in armed conflict. Article 5(1) of the Statute provides that it shall have jurisdiction over the following crimes:

1. a. the crime of genocide;

2. b. crimes against humanity;

3. c. war crimes; and

4. d. the crime of aggression.

(a) Genocide

The definition of genocide18 is taken from Article II of the Convention on the Prevention and Punishment of the Crime of Genocide19, viz. killing, causing serious bodily or mental harm etc. carried out with intent to

destroy, in whole or in part, a national, ethnical, racial or religious group as such. A list of modes of participation in genocide taken from Article III of the Convention, which was contained in the text of the draft Statute submitted by the Preparatory Committee to the Diplomatic Conference20, no longer appears. However, the various modes of participation would, with the exception of conspiracy, probably be covered by the general provisions dealing with individual criminal responsibility under the Statute21.

(b) Crimes Against Humanity

Article 7(1) provides that any one of the following 11 acts constitutes a crime against humanity if it is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”:

1. a. murder;

2. b. extermination;

3. c. enslavement;

4. d. deportation or forcible transfer of population;

5. e. imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

6. f. torture;

7. g. rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity;

8. h. persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender22 or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this list of acts or any crime within the jurisdiction of the Court;

9. i. enforced disappearance of persons;

10. j. the crime of apartheid; and

11. k. other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

The Article 7(1) list is somewhat longer than that contained in Article 6(c) of the Nurnberg Tribunal’s Charter23. There is also no requirement that the acts must be committed in situations of armed conflict24, so the atrocities committed by the Pol Pot regime may, if they are repeated after the entry into force of the Statute for Cambodia25, be brought within the scope of crimes against humanity26.

The phrase “attack against any civilian population” is given a defined meaning27, viz. “a course of conduct involving the multiple commission of acts (which are listed in Article 7(1)) against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack”.

This definition resolves a dispute over whether the terms “widespread” and “systematic” should be conjunctive or disjunctive (as they now are in the Statute)28. The threshold of seriousness for the Court to have jurisdiction is based first on the existence of both the element of multiplicity (which is of a lower order than “widespread”) and the element of a policy (which is of a lower order than “systematic”) to commit the attack. The threshold is then met if the commission is, in addition, either widespread or systematic.

It is also interesting to note that the definition refers to the “multiple commission of acts” which are listed. There is therefore no need for there to be a multiplicity of any single one of the acts. It may suffice, for example, if isolated incidents of murder, rape, torture and enslavement were committed provided that these formed part of a systematic attack against the civilian population.

Eight of the 11 acts in the Article 7(1) list are given defined meanings29.

The definition of enslavement30 is taken from Article 1(1) of the 1926 Slavery Convention31 but expressly includes the exercise of powers attaching to the right of ownership over persons in the course of trafficking in them.

Torture has been given the definition32 contained in Article 1(1) of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment33 except that the pain or suffering need not be inflicted by a “public official or other person acting in an official capacity”, i.e. acts of torture committed by private individuals fall within the definition.

The definition also contains the proviso in Article 1(1) that torture does not include “pain or suffering arising only from, inherent in or...