You are on page 1of 30

Case 258

Establishing an International Criminal Court:


The Emergence of a New Global Authority?
ERIC K. LEONARD
Shenandoah University
INSTITUTE FOR THE STUDY OF DIPLOMACY
GUISD PEW CASE STUDY CENTER
Institute for the Study of Diplomacy
Edmund A. Walsh School of Foreign Service Georgetown University
1316 36th Street, N.W., Washington, D.C. 20007
Tel.: (877) 703-4660 ext. 204 / (202) 965-5735 ext. 204
Fax: (202) 965-5811
Web site: http://www.guisd.org
2007. All rights reserved. Institute for the Study of Diplomacy. ISBN 1-56927-258-1
GUISDPew Case Study Center
EDMUND A. WALSH SCHOOL OF FOREIGN SERVICE GEORGETOWN UNIVERSITY
1
2002, 2007. All rights reserved. Institute for the Study of Diplomacy.
ISBN: 1-56927-258-1.
Do not duplicate or place on library shelves/reserves without express
written permission. Email: dolgasc@georgetown.edu
CASE 258, PART A
Establishing an International Criminal Court:
The Emergence of a New Global Authority?
ERI C K. LEONARD
SHENANDOAH UNIVERSITY
INTRODUCTION
In 1994, over a one hundred-day period, the violent and
systematic slaughter of close to one million people
occurred in the African country of Rwanda. This mass
killing was one of the worst acts of genocide in history.
In the aftermath of the slaughter, the United Nations
(UN) Security Council established an ad hoc tribunal to
prosecute the guilty parties. The UN Security Council
mandated the International Criminal Tribunal for
Rwanda (ICTR) to prosecute those individuals guilty of
genocide, crimes against humanity, and war crimes.
1
Between 1991 and 1999, the former Yugoslavia also
experienced a humanitarian crisis. During this period of
time, multiple accounts of ethnic and civil war rocked
the republics of the former Yugoslavia. The result of this
decade-long conflict was hundreds of thousands of peo-
ple dead and millions of people displaced from their
homes. Through a process known as ethnic cleans-
ing, Serbian President Slobodan Milosevic attempted
systematically to rid Yugoslavia of all non-Serbian citi-
zens. He attempted to achieve this goal via genocide,
mass rape, and forced expulsion. In response to this
conflict, the international community established the
International Tribunal for the former Yugoslavia
(ICTY), another ad hoc tribunal.
2
Unfortunately, Slo-
bodan Milosevic died while in the custody of the court
awaiting the conclusion of his trial.
A primary question that we, as students of world
politics, must ask ourselves is whether the form of inter-
national justice employed in the aforementioned cases
(ad hoc tribunals), along with other forms of ad hoc jus-
tice, is sufficient.
3
In other words, do such ad hoc forms
of justice adequately address the problem of continual
violations of humanitarian law? Do they address this
problem in a timely manner? Do they address all cases
of humanitarian law violations? Along with these ques-
tions concerning international justice, we must also ask
ourselves what impact humanitarian law has on one of
the foundational premises of world politicsstate sov-
ereignty. In particular, how will a functioning Interna-
tional Criminal Court (ICC) impact the traditional
global norm of state sovereignty?
A large portion of the international community
believes that an ad hoc system of global justice does not
adequately address many of the aforementioned ques-
tions. According to these actors, if the international
2 Eric K. Leonard Case 258, Part A
community is ever going to achieve a global system of
justice, then we need to establish a permanent interna-
tional criminal court. In the summer of 1998, the inter-
national community convened the Rome Conference
with the hope of accomplishing just such a goal.
PART A: HISTORICAL BACKGROUND
4
The post-Cold War era has not been a time of peace and
tranquility. Conflict, war crimes, acts of genocide, and
crimes against humanity have been a mainstay of world
politics since 1989. In order to combat this rising trend,
on July 17, 1998, 120 nation-states voted in favor of the
Rome Statute for the establishment of a permanent
International Criminal Court. Only seven nation-states
rejected the statute, including the United States, Israel,
and China.
5
This resulted in several years of state signa-
tures, ratifications, and an unsigning of the statute by
the global hegemon, until finally the requisite number
of ratifications (sixty) was achieved on April 12, 2002.
6
Unfortunately, such support did not mean that the
road to establishing an ICC was an easy one. The estab-
lishment of a permanent ICC traveled a long, hard path,
but with the current number of ratifications at 104
nation-states, along with the initiation of several investi-
gations, a handful of arrests, and the start of judicial
proceedings, it now appears as if the global community
is one step closer to a fully functioning institutionalized
form of humanitarian law and the possible achievement
of global justice.
7
Path to Rome
At the outset of this case, it is important to note that the
fight to construct an international criminal court is not
solely a product of the 1990s, although scholars often
consider its current form the result of the changing con-
temporary international environment. The interna-
tional community first discussed the idea of a
permanent international criminal court after World War
I. It was at this time that the international community
unsuccessfully attempted to establish an international
tribunal on war crimes so that the allied powers could
try Kaiser Wilhelm II. After World War II, the victori-
ous governments established the Nuremberg and Tokyo
war crime tribunals, thus setting the precedent for an
international criminal court. However, it was in 1948
that the international community took its first real step
toward the establishment of a permanent ICC.
It was at this juncture in time that many members
of the UN General Assembly called specifically for the
establishment of an international criminal court. The
UN General Assembly instructed the UN International
Law Commission (ILC) to draft a statute dealing with
this subject matter and present it to the UN delegates.
In both 1953 and 1954, the ILC presented a draft text
for the establishment of an ICC to the General Assem-
bly. Both times the General Assembly rejected the text,
with little or no enthusiasm. At this time, the official
reason for abandoning the effort to establish an ICC
was that the international community could not agree
on a definition of aggression. As a result, the society of
states simply forgot about the call for a permanent ICC
for close to forty years.
In 1989, Trinidad and Tobago resurrected the idea
of forming an ICC. Initially, Trinidad and Tobago was
hoping to form a court that would prosecute interna-
tional drug traffickers. It was only a short time after this
request that the General Assembly instructed the ILC
to prepare a draft statute on an ICC and to extend its
jurisdiction beyond the crime of drug trafficking. In
1994, the ILC submitted its final draft statute, and the
General Assembly recommended that an international
conference convene to try to negotiate a treaty that
would enact the ICC.
The Rome Conference
Between June 15 and July 17, 1998, the Rome Confer-
ence for the Establishment of a Permanent Interna-
tional Criminal Court convened. At the outset of the
conference, it was obvious that the positions of many
delegates were already firmly entrenched. Therefore, if
the conference leadership were going to acquire
enough support for the ICC, there would need to be a
tremendous amount of work, negotiation, and coopera-
tion among the delegates. The conference leadership,
or the Conference Bureau, began the negotiation proce-
dures with a distinct plan on how the conference should
proceed, what issues the delegates would discuss, and
which committees should discuss them (the Courmay-
eur Plan).
8
Unfortunately, with the commencement of
the Rome Conference, it rapidly became apparent that
the Courmayeur Plan would not work.
Case 258, Part A An International Criminal Court 3
The primary problem was that a large portion of
the delegates attending the Rome Conference had not
participated in the PrepCom, or preconference, meet-
ings and therefore lacked a foundational understanding
of the draft statute.
9
As a result, the Committee of the
Whole and its working group found themselves in the
position of constantly having to rehash issues that the
PrepCom had already debated. It was obvious that the
conference leadership had to formulate and initiate a
new tactical plan, otherwise the entire Rome Confer-
ence would grind to a halt and end in failure.
In order to avoid such a situation, the delegates
agreed to participate in several informal working
groups. Many of these groups were then broken down
into even smaller informal-informal working groups.
According to participants at the conference, a tremen-
dous amount of work on the final draft occurred in
these smaller informal groups. A typical day for a dele-
gate at the Rome Conference consisted of attending
official working group meetings, supplemented by
informals in which, as one observer put it, the real
negotiations took place.
10
The use of informals, as a supplement to the for-
mal meetings, worked. Progress occurred on many of
the most contentious issues (such as jurisdiction, trig-
ger mechanisms, and the role of the UN Security Coun-
cil), and a final draft began to take shape. On the last
day of the conference, Chairman Philippe Kirsch
decided that the Conference Bureaus text be presented
to the Committee of the Whole for possible adoption.
The Committee of the Whole convened on Friday, July
17, 1998, to discuss adoption of the final draft statute.
At this time, both India and the United States
attempted to introduce amendments to the final draft.
Fearing a stalemate on these final amendments, Nor-
ways delegate introduced a no action motion for both
amendments, which was a motion to table the amend-
ments and avoid a total collapse of the Rome Confer-
ence. The result of the no action motions was an
affirmative vote of 114 in favor, 16 against, and 20
abstentions on the introduction of Indias amendment,
and 113 in favor, 17 against, and 25 abstentions for the
introduction of the U.S.s amendment. Professor M.
Cherif Bassiouni described the ensuing scene as fol-
lows:
After the second vote, which was final [on the U.S.
proposal], the delegates burst into a spontaneous
standing ovation which turned into rhythmic
applause that lasted close to 10 minutes, while some
delegates embraced one another, others had tears in
their eyes. It was one of the most extraordinary emo-
tional scenes ever to take place at a diplomatic con-
ference. The prevailing feeling was that the long
historic journey that started after World War I had
finally reached its destination. It was truly a historic
moment of great significance for all who had worked
so hard to bring about the momentous results.
11
The final plenary session convened at around nine
oclock that evening. After the United States called for
one more unrecorded vote on the statute, to ascertain
one last measurement of who would support the United
States in its opposition to the Rome Statute, the official
vote occurred. The final vote was 120 in favor, 7 against,
and 21 abstentions. The Rome Conference had
achieved its ultimate goal, and on the following morn-
ing, the Rome Statute of the International Criminal
Court was open for signatures. The long journey toward
the establishment of an international criminal court had
reached a critical moment, and supporters of the ICC
mark the events of June 15-July 17, 1998, as a momen-
tous occasion not only for advocates of international
humanitarian law but also for the principles of interna-
tional law and international cooperation in general.
The euphoria of the Rome Conference was only
accentuated by the events of April 12, 2002. It was on
this date that a group of state representatives, along
with a coalition of non-governmental organizations
(NGOs), (the CICC, or the NGO Coalition for an Inter-
ational Criminal Court), International Criminal Court
supporters, and media personnel, gathered at the UN
headquarters in New York. The purpose of this gather-
ing was to celebrate the establishment of a permanent
International Criminal Court. At this event, the Rome
Statute for an International Criminal Court received its
sixtieth ratification, establishing it as a functioning
organization.
12
For many states, NGOs, and other
human rights advocates, this marked a joyous moment
in the struggle to uphold the principles of international
humanitarian law and the promise of global justice.
4 Eric K. Leonard Case 258, Part A
NOTES
1. The ICTR was established according to UN Security
Council Resolution 955 of November 8, 1994. The tribunal
began work in January 1997 and, as of April 2007, the tribu-
nal has handed down twenty-seven judgments including
thirty-three accused. For more information on this tribunal,
see http://www.un.org/law.
2. The ICTY was established according to UN Security
Council Resolution 827 of May 25, 1993. For more informa-
tion, see http://www.un.org/icty.
3. The ICTY and the ICTR are only two such tribunals.
Other ad hoc forms of justice include the special courts for
Cambodia, East Timor, and Sierra Leone, along with more
historical forms of justice, including the International Mili-
tary Tribunals at Nuremberg and the International Military
Tribunals for the Far East.
4. See Eric K. Leonard, The Onset of Global Governance:
International Relations Theory and the International Criminal
Court (Aldershot, UK: Ashgate Publishing, 2005), for a
detailed account of the history and structure of the ICC.
5. No official record was kept of the vote, however most
observers place the number of opposition states at seven. The
actual list of opposition states is still contestable. In addition
to the United States, Israel, and China, the list typically
includes Iraq, Libya, Qatar, and Yemen. Others states that are
often included in the list are Algeria, India, Indonesia, and
Sudan.
6. As mandated in the Rome Statute, the ICC would only
become a fully functioning institution when sixty states rati-
fied the statute.
7. For a complete list of state signatories and ratifica-
tions, see the case appendix. For a listing of the current inves-
tigations, see http://www.icc.org/.
8. The Courmayeur Plan was titled such because of its
origin at a meeting in Courmayeur, Italy, May 48, 1998.
9. Between 1996 and 1998, there were six PrepCom
meetings. The PrepCom leadership invited all nation-states to
send delegates, and it was during these meetings that much of
the details surrounding the draft statute originated.
10. Donald W. Jackson, Creating a World Court Is Like
Making SausageExcept It Takes Longer, The Texas
Observer ( June 30, 1998), p. 4.
11. M. Cherif Bassiouni, Statute of the International Crimi-
nal Court (Dordecht, The Netherlands: Martinus Nijhoff Pub-
lishers, 1992), pp. 3132.
12. The Rome Statute for the Establishment of a Perma-
nent International Criminal Court (reprinted at http://
www.iccnow.org) required sixty state ratifications for the
court to come into force. As of May 1, 2007, the statute had
104 ratifications and 139 signatories (although the United
States and Israel have withdrawn their signatures). See the
appendix for a complete listing of signatories and ratifica-
tions.
5
2002, 2007. All rights reserved. Institute for the Study of Diplomacy.
ISBN: 1-56927-258-1.
Do not duplicate or place on library shelves/reserves without express
written permission. Email: dolgasc@georgetown.edu
CASE 258, PART B
Establishing an International Criminal Court:
The Emergence of a New Global Authority?
ERI C K. LEONARD
SHENANDOAH UNIVERSITY
ACTORS AND NEGOTIATING POSITIONS
In attempting to understand how this regime formation
process progressed, it is crucial that one first be aware
of the negotiation position of the actors attending the
Rome Conference. It is obvious that prior to the confer-
ence some states had already defined their positions on
the ICC and its many articles. One group of states, enti-
tled the Like-Minded Group, favored the establish-
ment of a strong and independent court. This group,
consisting of mostly Western European nation-states,
was probably the most outspoken collection of states
concerning the need for an international criminal court
and, as a result, they emerged as leaders during the
Rome Conference. Opposing this group was the United
States, along with a collection of mainly nondemo-
cratic states. This group felt that the ICC, as embodied
in the draft text, was a flawed institution. Finally, the
NGO community also played a critical role in the nego-
tiation process by assisting the Like-Minded Group in
its endeavor. Let us begin this analysis with the advo-
cates of the ICC and why they feel the court is such a
necessary institution for the global community.
The Like-Minded Group
The self-named Like-Minded countries were the
strongest advocates for an independent and powerful
ICC. In general, this group of states shared one com-
mon interestthe rapid creation of a permanent inter-
national criminal court. These states realized that the
opportunity to establish such an institution had already
slipped away once (fifty years ago), and they believed
that if the international community did not act fast, the
current movement might also fall short. In order to
achieve their goal, the Like-Minded states made sure
that they played a crucial role not only in the Rome
Conference but also in the PrepCom meetings that led
up to the conference.
Throughout the negotiation process, the Like-
Minded Group fought to establish a strong and inde-
pendent ICC by often leading the PrepCom meetings
and always maintaining a high level of visibility. Their
efforts did not go unnoticed. Other states began to see
the importance of this issue and slowly started to gravi-
tate to the Like-Minded Group. At the time of the ILC
Draft Statute for an International Criminal Court
6 Eric K. Leonard Case 258, Part B
(1994), the Like-Minded Group consisted of only a
dozen or so countries. As the process progressed and
other states became aware of the Like-Minded Groups
intentions, however, the number of adherents to its
position began to swell. By the beginning of the Rome
Conference, the group was composed of forty-two
states. By the end of the conference, the group totaled
more than sixty states, including Great Britain, Canada,
France, Germany, Italy, the Netherlands, Spain, and
many others. These growing membership numbers
served as proof that the Like-Minded Groups guiding
principles resonated with a large portion of the global
community.
In 1997, the Like-Minded Group explicitly stated
its goals. At the December PrepCom meeting, the Like-
Minded Group centered its future goals on the follow-
ing six guiding principles.
13
First, the groupdesired an
ICC that would be independent of the UN Security
Council. The group believed that this position would
assist in the depoliticizing of an ICC and prevent the
major powers of the world from vetoing prosecutions
that were not in their best interest.
Second, in a further attempt at depoliticization, the
Like-Minded Group also advocated the idea of an inde-
pendent prosecutor. This principle would give the pros-
ecutor the power to initiate an investigation proprio
motu (on its own). It would also allow the court to
retain a greater sense of independence from both mem-
ber states and the Security Council and provide the
court with greater legal legitimacy.
Third, the Like-Minded Group advocated the
extension of the inherent jurisdiction of the court to
cover all core crimes (genocide, crimes against
humanity, war crimes, and the crime of aggression).
This principle would achieve two major functions.
First, it would improve the traditional two-track
approach to jurisdiction in international courts or tribu-
nals. Historically, if a state were party to an interna-
tional court or tribunal, this would not necessarily
equate with an inherent acceptance of the courts juris-
diction.
14
Membership and jurisdiction are two sepa-
rate consensual issues, thus making acceptance of the
courts jurisdiction the second step. The ICC alters this
two-step process. In the case of the ICC, immediately
upon a party states ratification of the statute, the court
gains automatic jurisdiction over and within the party
state. There is no need for two separate forms of con-
sent.
15
Second, it allows for greater independence of
the court. The ability of the court to pursue prosecu-
tions increases, regardless of state consent, by not
allowing any opt-in or opt-out clauses.
Fourth, the Like-Minded Group called for the full
cooperation of states with the ICC. The necessity of
such a proposal is obvious when considering the pleth-
ora of tasks that the court has to undertake. The ICC is
still an institution composed of nation-states. There-
fore, the ICC relies heavily on the assistance of these
states for the functioning of the court and the enforce-
ment of its decisions. According to the Rome Statute,
the ICC will be entirely reliant on member states for the
discharge of its functions. Without the full cooperation
of its member states, the court would not be able to
function in an effective and/or efficient manner.
The Like-Minded Groups fifth principle advocated
the idea of the ICC as the final decision-maker on all
issues of admissibility. This objective is essential to the
Like-Minded states because of their desire to establish
an independent court. As the group perceives it, one
way to ensure the fair and independent functioning of
the court is to place the burden of admissibility, which
is the introduction and acceptance of a case before the
court, solely with the elected judges. This would allevi-
ate the politicization of the court by state members and
would assist in the pursuit of an objective decision-
making process that is essential to the pursuit of justice.
The final principle that the Like-Minded Group
espoused was a commitment to a successful diplomatic
conference in Rome. This group of states realized that
more than a half-centurys worth of work was depen-
dent on a five-week conference. The group was not
under the impression that this step in the formation
process would be an easy one; therefore, the group
wanted explicitly to state its commitment to a success-
ful outcome at the Rome Conference. The approval of
the Rome Statute on July 17, 1998, is, in large part, the
result of the Like-Minded Groups dedication to this
project. Moreover, although some of the groups princi-
ples exist in the final statute while others do not, it is
clear that the involvement of this group of states was
crucial to the negotiating process. However, the Like-
Minded states were not the only state actors involved.
Two other groups of states also played a role in the
negotiation process.
Case 258, Part B Establishing an International Criminal Court 7
The Nonaligned Movement
The nonaligned movement was another group of states
that took shape during the statutes formation process.
This group of states played a role in the early stages of
negotiation, but its influence dissipated as the process
progressed. The nonaligned movement was in favor of
an ICC but only if certain conditions were included. In
general, these states supported the formation of the
ICC if it contained the following principles: (1) the
need to include nuclear weapons in the list of prohib-
ited weapons, and (2) the necessity to eliminate any
control of the court by the Security Council.
16
This group of states consisted mainly of nonwest-
ern states that, in the instance of the ICC, wished to ini-
tiate a countermovement to the western, Security
Council powers.
17
India served, primarily, as the lead-
ership of this group, with a number of Persian Gulf
states forming the secondary leadership role. Neverthe-
less, the staying power of this group was not long. Two
of the primary deficiencies of this group were the lack
of total cohesiveness and a weak leadership. These
flaws eventually led the members of the nonaligned
movement to break away and gravitate either to a more
regionally based grouping or toward the Like-Minded
Group. Thus, the nonaligned movements impact on
the negotiations was minimal, although in many ways
the nonaligned movement did bolster the Like-Minded
Groups numbers, giving it an edge over the permanent
Security Council states.
The P-5, or the United States and its Allies
In direct opposition to the Like-Minded Groups posi-
tion was the United States, along with a loosely bound
group of permanent Security Council members and
nondemocratic states, known as the P-5.
18
The U.S.s
opposition to the court centered on the concept of
national sovereignty. The United States was concerned
that if the Like-Minded states were able to form an ICC
with an independent prosecutor who had the power to
initiate investigations on its own, then the court could
bring U.S. soldiers and policymakers to trial outside of
the U.S. court system. It was this fear of an ICC prose-
cutor running wild and impinging on the national
sovereignty not only of the United States, but also of all
sovereign states, that fueled the U.S. opposition.
U.S. officials stated that they would oppose the for-
mation of an ICC if it included any of the following: (1)
any form of jurisdiction over nonparty states; (2) no
opt-out clause concerning jurisdiction over core
crimes; (3) amendment procedures that do not allow
states to avoid jurisdiction; (4) an independent or pro-
prio motu prosecutor; (5) the inclusion of the crime of
aggression as a core crime; (6) the inclusion of crimes
of terrorism and drug crimes; and (7) a no reservation
clause. that is, any prohibition on adding any reserva-
tiouns to the statute.
19
It is important to note that the U.S.s position on
the Rome Statute does not mean that the United States
opposed the idea of an international criminal court.
According to U.S. delegates, an acceptable ICC should
first respect the concept of national sovereignty and
second, it should not be vulnerable to usage as a politi-
cal tool. In other words, the United States wanted to
make sure that the ICC would remain under the control
of the Security Council instead of an independent pros-
ecutor, whom the United States saw as a potential polit-
ical tool. As David Scheffer, U.S. ambassador at-large
for War Crimes Issues and U.S. delegate representative
to the Rome Conference, stated:
The United States has had and will continue to have
a compelling interest in the establishment of a per-
manent international criminal court. . . . Since 1995,
the question for the Clinton administration has
never been whether there should be an international
criminal court, but rather what kind of court would
be in order to operate efficiently, effectively and
appropriately.
20
The United States was opposed to the final draft
statute because, as government officials saw it, the ICC
circumvented national sovereignty and the principle of
nonintervention. Scheffer stated quite bluntly that the
United States would not expose its military forces, its
leadership, or its citizens to a court that the United
States does not recognize. The only way that the United
States would recognize an international criminal court
is if the Security Council controlled it. The implemen-
tation of this type of trigger mechanism would give the
United States veto power over the courts jurisdiction
and, as Scheffer saw it, protect U.S. soldiers and other
U.S. citizens from unwarranted prosecution.
21
8 Eric K. Leonard Case 258, Part B
As the Rome Conference progressed, it became
obvious that the United States and the Like-Minded
Group were going to clash over many of the issues in
the draft statute. In the end, the United States refused to
approve the Rome Statute, because it failed adequately
to address many of the U.S. delegates concerns.
Despite U.S. opposition, however, the participants
overwhelmingly approved the Rome Statute, due in no
small part to the growing number of nonaligned states
that joined the Like-Minded Group. Nevertheless, not
all of the credit for this momentum toward the approval
of the Rome Statute can go to the state delegates alone.
The nongovernmental organizations that attended also
exerted a large degree of influence.
The CICC
The nongovernmental organization Coalition for an
International Criminal Court was a major actor in the
formation of the Rome Statute. The coalition had more
than eight hundred nongovernmental organizations
working for its position, and this grouping generally
assisted the Like-Minded states and their cause. The
NGO coalition was strongly in favor of an independent
court with universal jurisdiction. NGOs, such as
Amnesty International, Human Rights Watch, the Law-
yers Committee for Human Rights, and the Interna-
tional League for Human Rights, provided vital
information and analysis to the delegates through infor-
mal meetings and aggressive campaigning tactics. In
short, this consortium of NGOs provided the delegates
with an experts analysis of this subject matter and, as a
result, exerted a crucial influence on the final draft stat-
ute.
22
The NGO coalitions role in the establishment of
the ICC was, and continues to be, significant. In many
ways, the CICC empowered the Like-Minded states to
resist U.S. pressure for a weaker court.
Abram Chayes and Anne-Marie Slaughter stated
the significance of the NGO community on the ICC
negotiations most poignantly when they affirmed that,
[W]ithout the NGO community, the ICC treaty might
not have been concluded.
23
Professor Bassiouni reiter-
ated this point when he stated: Non-governmental
organizations, and particularly the NGO Coalition for
an ICC played an important and useful part in the pro-
cess.
24

It is clear that the role of NGOs in the negotiation
process was significant. The question that we must now
address is what exactly the role of the NGO community
was and how crucial was their presence to the forma-
tion of the Rome Statute.
One can view the NGO presence, both before and
during the Rome Conference, as an example of the
changing nature of world politics and international
treaty negotiations. Recently, NGOs have begun to play
a much more influential role in the treaty formation
process. Former UN Secretary-General Boutros
Boutros-Ghali recognized this fact. In 1996, in a state-
ment concerning the interaction between NGOs and
the United Nations, Boutros-Ghali stated:
Until recently, the notion that the chief executive of
the United Nations would have taken this issue seri-
ously might have caused astonishment. The United
Nations was considered to be a forum for sovereign
states alone. Within the space of a few short years,
however, this attitude has changed. Nongovernmen-
tal organizations are now considered full participants
in international life.
25
This rise to prominence has affected many issue
areas and many treaty negotiations. The importance of
NGO input has surfaced during the drafting of the Land
Mine Convention, the Antarctic Treaty Consultative
Meeting, the Framework Convention on Climate
Change, and numerous other treaty negotiations. The
community of states now often invites the NGO com-
munity to sit at the negotiating table with the delegates,
participate in meetings, and assist in the overall negoti-
ating process. The Rome Conference is simply another
example of the growing influence of NGOs and the
importance of their presence during the treaty negotia-
tion process.
The influence of the NGO community on the ICC
formation process took root on February 25, 1995. It
was on this date that a group of NGOs, who were moni-
toring the UN debate on the ILCs Draft Statute for an
International Criminal Court, decided to form the NGO
Coalition for an International Criminal Court. The pri-
mary goal of the CICC was to advocate the establish-
ment of an effective and just international criminal
court.
26
At that time, the group consisted of two-
dozen or so NGOs. By the time the Rome Conference
convened, the CICC included more than eight hundred
organizations from every corner of the globe.
27
The
sheer magnitude of this coalition made it impossible for
Case 258, Part B Establishing an International Criminal Court 9
the international community of states to ignore them,
and throughout the ICC negotiation process the pres-
ence and influence of this group was undeniable. In
terms of the CICC platform, according to its official
statement,
The main purpose of the NGO Coalition for an
International Criminal Court is to advocate for the
creation of an effective, just and independent Inter-
national Criminal Court. The Coalition brings
together a broad-based network of over 1,000 NGOs,
international law experts and other civil society
groups. The multi-track approach of the Coalition
involves: promoting education and awareness of the
ICC and the Rome Statute at the national, regional
and global level; supporting the successful comple-
tion of the mandate of the Preparatory Commission
and facilitating NGO involvement in the process;
promoting the universal acceptance and ratification
of the Rome Statute, including the adoption of com-
prehensive national implementing legislation follow-
ing ratification; and expanding and strengthening
the Coalitions global network.
28
The CICC is clearly a forceful advocate for the for-
mation of a strong, independent, and fair court that has
the ability to pursue universal justice. The coalition
sought to achieve this goal through the construction of
a statute that would embody the ideas of universal juris-
diction, an independent prosecutor, independence
from the UN Security Council, complementarity, juris-
diction over internal conflicts or civil wars, state-party
cooperation, and respect of the rights of the accused. As
one can see, this list is very similar to that of the Like-
Minded Group. As a result, an alliance developed
between these two groups in an attempt to further their
common cause. However, the roles that these two
groups played were very different. The Like-Minded
Group was literally the authors of the statute. In Rome,
their vote counted, and in the postconference period,
their domestic legislatures have signed and ratified the
statute. The NGO community, due its lack of formal
sovereign statehood, did not have a vote nor would it
have a seat among the party states upon ratification.
Thus, the role of the NGO community had to take on a
different form, a form that in many ways complemented
the role of the nation-states.
Throughout the negotiation process, the CICC
engaged in numerous activities. These included but are
not exclusive to
convening sectoral caucuses (womens childrens,
faith, peace, and victims), national and regional
networks, and issue area working groups;
maintaining a World Wide Web site and email lists
to facilitate the exchange of NGO and expert doc-
umentation and information concerning the ICC
negotiations and the ad hoc tribunals and to foster
discussion and debate about substantive issues;
facilitating meetings between the coalition and
representatives of governments, UN officials, and
others involved in the ICC negotiation process;
promoting education and awareness of the ICC
negotiations at relevant public and professional
conferencesincluding UN conferences, com-
mittees, commissions, and preparatory meetings;
and
producing newsletters, bulletins, media adviso-
ries, reviews, and papers on all aspects of efforts
to establish the ICC.
29

In general, the CICC acted as a consultant to the
Rome Conference participants. The coalition, acting as
experts within this issue area, assisted in the accruing of
knowledge by state delegates and the dissemination of
this knowledge to the larger global community. The
information that the CICC provided was not simply
objective data but also the interpretation that the CICC
wished to convey to the participating states. Many
states accepted this type of information because of the
expertise that the CICC has within this issue area.
NOTES
13. Fanny Bendetti and John L. Washburn, Drafting the
International Criminal Court Treaty: Two Years to Rome and
an Afterword on the Diplomatic Conference, Global Gover-
nance 25 (1992): p. 21; and William Pace, Relationship
Between the ICC and Non-governmental Organizations, in
Reflections on the International Criminal Court: Essays in Hon-
our of Adriaan Bos, ed. Herman A. M. von Hebel, Johan G.
Lammers, and Jolien Schukking (The Hague: T.M.C. Asser
10 Eric K. Leonard Case 258, Part B
Press, 1999), p. 206, discuss this list of defining principles.
14. Roy S. Lee, The Rome Conference and its Contribu-
tions to International Law, in The International Criminal
Court: The Making of the Rome StatuteIssues, Negotiations,
Results, ed. Roy S. Lee (The Hague: Kluwer Law Interna-
tional, 1999), p. 28, cites article 36 of the statute of the Inter-
national Court of Justice.
15. Rome Statute of the ICC, article 12.1 at http://
www.iccnow.org.
16. Bendetti and Washburn, Drafting the ICC, p. 31.
17. The nonaligned movement dates back to the Cold
War. It was initially an attempt to assert independence from
both the western powers and the Soviet bloc. In this case, the
goal is to counteract the power of the United States and the
other Security Council members.
18. See note five for a list of opposition states.
19. David J. Scheffer, Development at the Rome Treaty
Conference (transcript of a speech to the Foreign Relations
Committee, United States Senate) U.S. Department of State
Dispatch 9 (1998); and The United States and the Interna-
tional Criminal Court, The American Journal of International
Law 93 (1999), discuss these objections.
20. Scheffer, The United States and the ICC, p. 2.
21. Ibid., pp. 1920.
22. The NGO coalition was especially helpful to the
smaller states. The NGO coalition was able to give them infor-
mation concerning occurrences in meetings they could not
attend and information that may not have been available to
their delegates. The coalitions impact on these nation-states
was tremendous.
23. Abram Chayes and Anne-Marie Slaughter, The ICC
and the Future of the Global Legal System, in The United
States and the International Criminal Court: National Security
and International Law, eds. Sarah B. Sewall and Carl Kaysen
(Lanham, MD: Rowman & Littlefield Publishers, Inc., 2000),
p. 241.
24. Bassiouni, Statute of the ICC, p. 25.
25. Boutros Boutros-Ghali, Foreword, in NGOs, The UN
and Global Governance, eds. Thomas G. Weiss and Leon Gor-
denker (Boulder, CO: Lynne Rienner Publishers, 1996), p. 7.
(This author added the emphasis.)
26. William Pace and Mark Thieroff, Participation of
Non-Governmental Organizations, in The International
Criminal Court, p. 391. William Pace served as convenor of
the CICC and is executive director of the World Federalist
MovementInstitute for Global Policy, which serves as the
secretariat for the coalition. Therefore, any statements taken
from William Pace are indicative of the CICCs platform.
27. William Pace, Relationship Between the ICC and
Non-Governmental Organizations, in Reflections on the Inter-
national Criminal Court, p. 200. At the Rome Conference,
there were 235 NGOs that were accredited by the General
Assembly to act as official participants.
28. The official CICC Web site, http://www.iccnow.org,
and every issue of The International Criminal Court Monitor,
lists this statement.
29. The International Criminal Court Monitor (any issue)
or http://www.iccnow.org.
11
2002, 2007. All rights reserved. Institute for the Study of Diplomacy.
ISBN: 1-56927-258-1.
Do not duplicate or place on library shelves/reserves without express
written permission. Email: dolgasc@georgetown.edu
CASE 258, PART C
Establishing an International Criminal Court:
The Emergence of a New Global Authority?
ERI C K. LEONARD
SHENANDOAH UNIVERSITY
FOUNDATIONAL PRINCIPLES
OF THE COURT
The final Rome Statute consisted of 13 parts and 128
articles. The statute is a very detailed, very thorough
document. In order to provide readers and students
with a basic understanding of how the court will func-
tion, this case now discusses five of the major, and more
contentious, aspects of the Rome Statute and the nego-
tiation process that surrounded them.
Jurisdiction
Part 2 of the Rome Statute discusses the jurisdiction of
the court. As stated in article 5, the International Crimi-
nal Court will have jurisdiction over the following four
crimes: the crime of genocide, crimes against humanity,
war crimes, and the crime of aggression. The court shall
only have jurisdiction over these crimes from the time
the statute enters into force. Therefore, the ICC is tem-
porally bound to the point of its ratification. No crimes
committed before that date are within the courts juris-
diction.
Scholars often refer to the crimes themselves as the
core crimes of international humanitarian law.
30
The
definitions of the crime of genocide, crimes against
humanity, and war crimes are all predicated on estab-
lished international law. The crime of aggression is
more problematic, but I will return to this later.
Article 6 of the Rome Statute defines the crime of
genocide. The wording of this definition is taken
directly from the 1948 Genocide Convention and reads
as follows:
For the purpose of this Statute, genocide means
any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical,
racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to mem-
bers of the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruc-
tion in whole or in part;
12 Eric K. Leonard Case 258, Part C
(d) Imposing measures intended to prevent births
within the group;
(e) Forcibly transferring children of the group to
another group.
31
The delegates attending the Rome Conference
unanimously consented to this definition and rapidly
incorporated it into the statute. Under this article, not
only will the act of genocide be punishable, but also
conspiracy to commit genocide, public incitement to com-
mit genocide, attempted genocide, and complicity in
genocide will be punishable.
Article 7 discusses the nature of crimes against
humanity. The definition of these crimes proved diffi-
cult to negotiate. The final statute lays out a definition
that is quite broad and goes beyond the previous defini-
tions of crimes against humanity. Both the Nuremberg
Charter and the ad hoc tribunals of the 1990s (ICTY
and ICTR) contained definitions of such crimes, but
the Preparatory Committee determined that the defini-
tions found in these documents were insufficient. The
definition employed in the final Rome Statute includes
acts of murder, extermination, enslavement, deporta-
tion or forcible transfer of a population, imprisonment
or severe deprivation of physical liberty, torture, rape,
sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, other forms of extreme sexual
violence, persecution against any identifiable group or
collectivity, enforced disappearance of persons, apart-
heid, or other inhumane acts of a similar character.
The court will consider all of these actions crimes
against humanity as long as they are committed as part
of a widespread or systematic attack directed against
any civilian population.
32
It is also important to note
that the Rome Statute does not require that such acts be
committed within the context of an armed conflict.
Therefore, according to the Rome Statutes definition,
crimes against humanity can also be committed in times
of civil strife or even peace.
33
This expansive definition
of crimes against humanity allows the ICC to pursue
cases that encompass widespread and systematic vio-
lence by a government against a domestic civilian popu-
lation.
Article 8 of the Rome Statute discusses war crimes.
As with the previous two crimes, established interna-
tional law guides the Rome Statutes definition of a war
crime. In particular, grave breaches of the 1949 Geneva
Conventions (including Protocol I, Protocol II, and vio-
lations of article 3 common to the four Geneva Conven-
tions) and the Hague Convention of 1907 form the
foundation of this definition.
34
The resulting definition
of war crimes is extremely inclusive and encompassing.
It includes willful killing, torture or inhuman treatment,
extensive destruction and appropriation of property,
unlawful deportation, taking of hostages, intentionally
targeting civilian populations, use of poison weapons or
gases, rape, sexual slavery, and starvation, among
numerous other violations of international law.
A major point of discussion at the Rome Confer-
ence was whether the definition of war crimes is appli-
cable to internal conflicts. The court was established to
have jurisdiction over war crimes when they are com-
mitted as part of a plan or policy or as part of a
large-scale commission of such crimes.
35
In paragraph
2 (b), the statute establishes that this crime applies in
situations of international armed conflict, but how does
this affect internal conflict? The delegates engaged in a
tremendous amount of discussion concerning this issue.
The result was a negotiated consensus that allowed for
the courts jurisdiction on war crimes to include inter-
nal wars
36
but not situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature.
37
There was also a tremendous amount of discussion
on the issue of nuclear weapons.
38
The majority of dele-
gates present at the Rome Conference supported the
inclusion of nuclear weapon use as part of the war
crimes definition, but because international law does
not explicitly prohibit the threat or use of such weap-
ons, this issue was not included.
39
Many participants in
the conference also believed that the exclusion of
nuclear weapon use would increase support for the
entire Rome Statute. Many advocates of the ICC see
such a concession as a way to garner support that is
more widespread for the ICC among the major world
powers, although the official reasoning was that no
international legal precedent existed concerning the
banning of nuclear weapon use.
The last crime within the courts jurisdiction is the
crime of aggression. This particular crime has proved a
sticking point for the establishment of an international
criminal court since the early post-World War II era. In
1954, the UN General Assembly prevented the forma-
tion of an ICC, because the ILC could not define
Case 258, Part C Establishing an International Criminal Court 13
aggression.
40
The UN Special Committee finally
defined the concept in 1974, but even an explicit defini-
tion did not end the controversy. The 1974 definition
was rather expansive, but the primary content of the
definition was as follows:
Aggression is the use of armed force by a State
against the sovereignty, territorial integrity or politi-
cal independence of another State, or in any other
manner inconsistent with the Charter of the United
Nations, as set out in this definition.
41
This definition went on to include the following
acts as evidence of aggression: invasion or attack by an
armed force of a state, bombardment by an armed force
of a state, blockade of ports or coasts by an armed force
of a state, the use of mercenaries by a state to carry out
acts of armed force, and any other act that the Security
Council determines is an act of aggression under the
provisions of the UN Charter.
With the renewed discussion of an ICC in the
1990s, the debate concerning a definition of the crime
of aggression once again took center stage. With neither
of the two ad hoc tribunals jurisdiction encompassing
the crime of aggression, the Preparatory Committee
did not have any recent precedent to call upon that
dealt with individual acts, not state acts. Despite the
definitional problem, it was clear that the Preparatory
Committee believed that discussion of this issue must
occur in Rome. The crime of aggression was added to
the draft statute for the Rome Conference, and it
included three definitions.
42
As the conference pro-
gressed, it became clear that there was support for the
inclusion of this crime in the final statute, but once
again, there was a lack of consensus on how to define
this crime. The result was as follows:
The Court shall exercise jurisdiction over the crime
of aggression once a provision is adopted in accor-
dance with articles 121 and 123 defining the crime
and setting out the conditions under which the
Court shall exercise jurisdiction with respect to this
crime. Such a provision shall be consistent with the
relevant provisions of the Charter of the United
Nations.
43
The crime of aggression is included in the list of
crimes within the jurisdiction of the court, but its defi-
nition is yet to be determined.
44
Even after this crime is
defined, the definition must then pass through the pro-
cedures of an amendment to the statute, as articles 121
and 123 define it. In September 2002, the Assembly of
States Parties to the ICC established a Special Working
Group on the Crime of Aggression. This group is cur-
rently working on a draft text concerning the definition
of crimes of aggression. Once this group completes a
draft, the text will be forwarded to the Assembly of
States Parties for review, and in a subsequent review
conference the parties to the ICC will decide whether
or not to adopt this text. Unfortunately, this review con-
ference will not occur until seven years after the ICC
enters into force, but the goal is eventually to have this
crime under the jurisdiction of the court.
45
In terms of amending the jurisdiction of crimes, if a
state party does not approve the amendment, then that
state and its nationals shall be exempt from that amend-
ment, while remaining party to the treaty. Therefore, if
a state party refuses to approve the forthcoming defini-
tion of the crime of aggression, then the court shall not
exercise its jurisdiction when committed by that State
Partys nationals or on its territory.
46
This exclusion
from amendments only applies to articles 5, 6, 7, and 8,
which are the articles relating to crimes under the
courts jurisdiction.
As we can see, the jurisdiction of the court is quite
broad. It includes genocide, crimes against humanity,
war crimes, and eventually crimes of aggression. It is
important to reemphasize that the court substantiated
none of these crimes and their definitions. Instead, legal
precedent and established international law dictate the
scope and application of these crimes.
Trigger Mechanisms
The exercise of jurisdiction, or trigger mechanisms, was
a very contentious issue at the Rome Conference. At
the heart of the debate was whether state parties, the
Security Council, and/or the independent prosecutor
could refer a matter for investigation to the court.
47
A
large contingent of states, including Germany, along
with the NGO coalition, wanted the ICC to have univer-
sal and inherent jurisdiction over the four core
crimes
48
universal in the sense that no state would fall
outside of the courts purview, and inherent in that the
prosecutor would have the inherent power to pursue a
criminal investigation without needing to consult
another authority.
14 Eric K. Leonard Case 258, Part C
The United States strongly opposed the idea of an
international criminal court that held both universal
and inherent jurisdiction. For the U.S. delegates, the
idea of an independent prosecutor who could trigger an
investigation into any states domestic realm without
having to seek authority from another source was ludi-
crous. The United States saw this as a clear violation of
the principle of state sovereignty and the foundation for
a politicized court that would act not in the name of
international justice but rather in its own self-interest.
US Ambassador to the United Nations, Bill Richardson
explained U.S. concerns in the following manner:
There is also a need for checks and balances with
respect to the decisions of a single Prosecutor, who
in theory also could be influenced by personal and
political considerations. If the Prosecutor has sole
discretion to initiate investigations and file com-
plaintsas some delegations have sought under the
rubric of inherent jurisdictionthe results could
be more idiosyncratic, possibly even more political,
than the decisions of the Security Council.
49
U.S. objections to the implementation of universal
and inherent jurisdiction led to the need for negotia-
tions at the Rome Conference. The United States pro-
posed that the Security Council primarily control the
trigger mechanisms for the courts jurisdiction.
50
Such a
system would be similar to the practice of the war
crimes tribunals in the former Yugoslavia and Rwanda.
The prosecutor would have wide discretion within the
situation once the Security Council approved the
courts jurisdiction over that situation. The U.S. posi-
tion obviously clashed with the aforementioned Ger-
man proposal, which called for universal jurisdiction
with an independent prosecutor. The result was a com-
promise between these two positions.
The final draft of the Rome Statute established
both preconditions for the exercise of jurisdiction and
the trigger mechanisms for an investigation. The court
has jurisdiction over a situation if one of the following
conditions exists:
(1) A situation in which one or more of such crimes
[as stated in article 5 of the Rome Statute] appears
to have been committed is referred to the prose-
cutor in accordance with article 14;
51
(2) 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 United Nations;
52
or
(3) A situation in which the prosecutor has initiated
an investigation with respect to such a crime in
accordance with article 15.
53
In other words, the court may initiate an investiga-
tion if a state party, the Security Council, or the prose-
cutor refers a situation to the court. If any of these
actors determines that any of the crimes defined in arti-
cle 5 have been committed, they may refer the case to
the prosecutor for further investigation. The case is
then in the hands of the prosecutor, and he or she must
decide whether there is sufficient evidence to proceed.
Although this appears to be an approval of univer-
sal jurisdiction, it is not. Certain preconditions must
exist before the court can exercise its jurisdiction.
These preconditions establish the territorial jurisdic-
tion of the court and limit the application of its power.
In other words, article 13 does not give the court uni-
versal jurisdiction; instead, it provides certain spatial
considerations that determine where and when the
court may exercise its power.
According to article 12, the court has jurisdiction
within the territory of a state that is party to the statute.
Therefore, if one or more of the crimes defined in arti-
cle 5 were committed on a states territory that is party
to the statute, then the ICC has jurisdiction. The ICC
also has jurisdiction if the crime was committed on
board a vessel or aircraft that is registered by a state that
is party to the statute. The ICCs jurisdiction also
extends to a situation in which the perpetrator of the
crime is a national of a state that is party to the statute.
The ICC also has jurisdiction over a nonparty state if
that state voluntarily accepts the courts jurisdiction.
In combining both the preconditions and the trig-
ger mechanisms, the result is the following: The initia-
tion of an ICC investigation can be triggered either by a
state that is party to the statute, the Security Council, or
the prosecutor, as long as the crime occurred on a
states territory that is party to the statute, or a vessel or
aircraft that is registered to that state, or the perpetrator
is a national of a state that is party to the statute. The
only other time that the ICC can act in a nonparty situa-
tion is if that nonparty state consented or if the Security
Case 258, Part C Establishing an International Criminal Court 15
Council referred it to the court. If the Security Council
refers a situation to the court, then and only then does
the court have universal jurisdiction.
Complementarity
The court must also incorporate the principle of com-
plementarity when considering whether it has legal
jurisdiction. The principle of complementarity con-
cerns the relationship that the International Criminal
Court has with the national authorities and domestic
courts of state parties. A major concern for many
nation-states is that the formation of a permanent ICC
is an infringement of their states sovereignty. Advocates
of the Rome Statute believe that the inclusion of the
principle of complementarity allows for the institution-
alization of humanitarian law while still preserving the
principle of state sovereignty.
According to article 17.1 of the Rome Statute, the
principle of complementarity states that
The Court shall determine that a case is inadmissi-
ble where:
(a) The case is being investigated or prosecuted by a
State which has jurisdiction over it, unless the
State is unwilling or unable to genuinely carry out
the investigation or prosecution;
(b) The case has been investigated by a State which
has jurisdiction over it and the State has decided
not to prosecute the person concerned, unless the
decision resulted from the unwillingness of the
State genuinely to prosecute.
Thus, the relationship of the ICC to national judi-
cial systems is a complementary one. If, and only if, the
domestic judicial system cannot properly investigate or
prosecute the alleged crime does the ICC have jurisdic-
tion. Such a situation would most likely occur because
of a lack of national infrastructure or a collapse of the
states domestic judicial system. Unwillingness to inves-
tigate or prosecute is not as easy to identify.
The Rome Statute holds that if a state is unwilling
to investigate a crime, then the ICC has the right to
prosecute the accused. The court shall determine
unwillingness by whether one or more of the following
situations exist: (1) the initiation of national judicial
proceedings occurred for the purpose of shielding the
accused from criminal responsibility; (2) an unjustifi-
able delay of the court proceedings occurred, thus
showing the states lack of intent to impose justice; and
(3) if a domestic court does initiate judicial proceed-
ings, they do not occur in an impartial and neutral man-
ner. As a result, the statute of the International Criminal
Court asserts that the state in question is not upholding
the principles of international justice.
54
Therefore, the
court has a right to intervene and prosecute.
These three situations are the only ones in which
the ICC can impose its jurisdiction on a nation-state
and take over the investigation and trial. The reason for
the establishment of this type of system is that the court
is meant to function for the interests of the victims and
the international community as a whole. However, at
the same time, the court must also be complementary
to national criminal jurisdictions.
55
As a result, during
the Rome Conference it became crucial to the effective-
ness of the ICC that the delegates establish specific
guidelines concerning situations in which unwilling-
ness by states to prosecute was occurring.
In the aforementioned situations, article 17.2 (a-c),
it is true that the court can claim primacy in a criminal
case and override a states jurisdiction on that case.
Many states, including the United States, see this as a
clear violation of national sovereignty and the concept
of nonintervention. However, if the ICC is to establish a
sense of universal justice, then the provision for the
courts primacy over incapable or unwilling domestic
legal systems is crucial. Without the inclusion of com-
plementarity and the courts jurisdictional primacy in
certain situations, the ability of states to protect their
own citizens from criminal responsibility would
increase and the courts ability to ascertain interna-
tional justice and end impunity would decrease.
The ICC and the United Nations
The relationship of the court to the United Nations is an
ongoing issue. Article 2 of the ICC states that the
Assembly of States Parties will approve an agreement in
the future about what the relationship between these
two entities will entail. It should be noted that although
the courts relationship to the United Nations is impor-
tant, it is the courts relationship with the Security
Council that remains problematic.
16 Eric K. Leonard Case 258, Part C
I discussed the contentious nature of the Security
Councils role in the ICC earlier in this case, but the
importance of this issue warrants some reiteration. The
Rome Statute does establish a role for the Security
Council. The Security Council can refer a situation to
the prosecutor for investigation.
56
Thus, the Security
Council is one of the trigger mechanisms of the ICC,
but it is also the most powerful of the trigger mecha-
nisms. This is so because not only can the Security
Council initiate an investigation, but also it can initiate
an investigation regardless of the states relationship to
the court.
Acting under article VII of the UN Charter, the
Security Council can refer a situation to the prosecutor
regardless of whether the territory on which the alleged
crime occurred is a party to the ICC or whether the
accused is a citizen of a state party. No matter the
nationality of the accused or the territory on which the
crime took place, the Security Council can declare ICC
jurisdiction. In other words, the Security Council is the
only trigger mechanism that has the ability to grant the
court universal jurisdiction.
Accompanying this powerful provision is the fact
that the Security Council can permit a deferral of any
ICC investigation for a period of twelve months.
According to the Rome Statute,
[N]o investigation or prosecution may be com-
menced or proceeded with under this Statute for a
period of 12 months after the Security Council, in a
resolution adopted under Chapter VII of the Char-
ter of the United Nations, has requested the Court to
that effect; that request may be reviewed by the
Council under the same conditions.
57
The Rome Statute grants the Security Council the
power both to initiate an investigation and to delay fur-
ther action by the court. As a result, it is undeniable
that the actions of the UN Security Council will have a
bearing on the future of the ICC and the cases that it
pursues. Thus, the central debate concerns how much
power the ICC should grant the Security Council.
The powers of the Security Council came to a head
between 2002 and 2004 over the issue of UN peace-
keepers and their relation to the ICC. In 2002, the Secu-
rity Council passed Resolution 1422 which provided
immunity to personnel from nonparty states participat-
ing in UN-established or -authorized missions for a
renewable twelve-month period. This resolution was
renewed in 2003 (UN Security Council Resolution
1487) but in 2004 the United States was forced to with-
draw its renewal attempt because it could not garner
enough support within the Security Council. One can
be sure that this issue will not dissipate and that the
relationship and/or power of the Security Council in
relation to the ICC will remain a central topic of discus-
sion in the early years of the courts work.
Enforcement
The final issue that this case must examine is the
enforcement mechanisms for the ICC. As with most
intergovernmental organizations, enforcement of the
Rome Statute will rely on the state parties. Scholars
often see this reliance as the Achilles heel of interna-
tional law. John Fried describes this as the jailer the-
ory of international law.
58
This theory describes the
foundation of international law as a sizable body of
accepted norms but lacking reliable enforcement capa-
bilities. Without the ability to enforce these norms,
international law remains a weak form of international
justice.
The main problem with enforcement is that inter-
national law tends toward a system of self-help. The
institutionalization of international law usually comes in
the form of an intergovernmental organization (IGO).
An IGO is an association of states that, through the pro-
cess of institutionalization, pursue a common goal.
59
State members are the source of power for an IGO and,
despite their trans-sovereign mandate, IGOs still rely on
sovereign states to enforce the underlying treaty that
formed the IGO.
60
This is no different for the Interna-
tional Criminal Court, which clearly fits the definition
of an IGO.
In order to enforce the courts judgments, the ICC
must rely on the state parties to cooperate. Without
their cooperation, the ICC cannot fulfill its mandate.
Arrests, transfer of prisoners, and enforcement of court
sentences all rely on the cooperation of member
states.
61
If member states refuse to uphold the norms
contained within this statute, then the ICC will simply
become a dead letter treaty. The only recourse that the
ICC has to a states failure to comply is referral of the
matter to the Assembly of States Parties or the UN
Security Council,
62
and even then, the enforcement
Case 258, Part C Establishing an International Criminal Court 17
mechanism relies on the action of nation-states. This
issue of enforcement is crucial to an analytical analysis
of the ICC. At this point, it is important to note that the
enforcement mechanism of the ICC, as with most
IGOs, does appear to rely solely on member states. The
question that scholars have to address in the future is
whether this form of enforcement prevents the forma-
tion of a strong and effective International Criminal
Court.
NOTES
30. Such scholars as Karen Berg, Permanent Interna-
tional Criminal Court, UN Chronicle 34 (1997); the Lawyers
Committee for Human Rights, The Rome Treaty for an Inter-
national Criminal Court: A Brief Summary of the Main Issues
(New York, NY: International Criminal Court Briefing Series,
1998); and Marie-Claude Roberge, The New International
Criminal Court: A Preliminary Assessment, International
Review of the Red Cross 93 (1998): pp. 67191, use the term
core crimes.
31. The only change from the Genocide Conventions def-
inition to the Rome Statutes definition is the replacement of
the word Convention for the word Statute.
32. Rome Statute of the ICC, article 7.1, at http://
www.iccnow.org.
33. Darryl Robinson, Defining Crimes Against Human-
ity at the Rome Conference, The American Journal of Interna-
tional Law 93 (1999): p. 46.
34. There are also sections of the war crimes article that
overlap with the Convention on the Rights of the Child (1989)
and the Convention for the Protection of Cultural Property
(1954).
35. Rome Statute of the ICC, article 8.1.
36. Rome Statute of the ICC, article 8.2 (f ), states that the
Rome Statutes definition of war crimes does apply to armed
conflicts that take place in the territory of a State when there
is protracted armed conflict between governmental authori-
ties and organized armed groups or between such groups.
37. Rome Statute of the ICC, article 8.2 (d) and (f ).
38. Mahnoush H. Arsanjani, The Rome Statute of the
International Criminal Court, The American Journal of Inter-
national Law 93 (1999): pp. 34-35.
39. As Philippe Kirsch and John T. Holmes, in The Rome
Conference on an International Criminal Court: The Negoti-
ating Process, The American Journal of International Law 93
(1999): pp. 78, describe it, one of the controversial elements
of this negotiation was that the use of nuclear weapons was
not prohibited, but the use of chemical and biological weap-
ons was. Policymakers often consider the latter weapons the
nuclear weapons of the poor, and so the issue split the dele-
gates between developed versus underdeveloped nations.
40. Bassiouni, Statute of the ICC, p. 14.
41. Report of the Special Committee, Supp. No. 19, A/
9619 of the Twenty-Ninth UN Session, 1974, Article 1.
Reprinted in Benjamin B. Ferencz, Defining International
Aggression: The Search for World Peace (Dobbs Ferry, New
York: Oceana Publications, Inc., 1975), p. 562.
42. Report of the Preparatory Committee on the Estab-
lishment of an International Criminal Court: Draft Statute
and Draft Final Act, Article 5. Reprinted in Bassiouni, Statute
of the ICC, pp. 12022.
43. Rome Statute of the International Criminal Court,
article 5.2.
44. As of May 2007, the member states had not yet agreed
upon a definition.
45. For updated information on this issue, see http://
www.iccnow.org/?mod=aggression.
46. Rome Statute of the ICC, article 121.5.
47. Kirsch and Holmes, The Rome Conference, pp. 89;
and Howard Ball, Prosecuting War Crimes and Genocide: The
Twentieth-Century Experience (Lawrence, Kansas: University
Press of Kansas, 1999), pp. 21113.
48. Kirsch and Holmes, The Rome Conference, pp. 89.
49. I extracted this excerpt from a speech that Bill Rich-
ardson gave to the UN General Assembly on October 31,
1996. Reprinted in Ball, Prosecuting War Crimes, p. 203.
50. David J. Scheffer, US Policy and the Proposed Per-
manent International Criminal Court (transcript of the
Carter Center, Atlanta, GA), U.S. Department of State Dis-
patch (1997): p. 2.
51. Article 14 discusses the process by which a state party
would refer a case to the prosecutor. This referral should
specify the circumstances surrounding the crime and include
proper documentation that proves that such a crime has
occurred.
52. Chapter VII of the UN Charter concerns the action
that the Security Council can take in situations where there is
a threat to peace, a breach of the peace, or an act of aggres-
sion.
53. Rome Statute of the ICC, article 13. Article 15 of the
Rome Statute describes the process that must occur if the
prosecutor is to initiate an investigation without referral
either by a state party or by the Security Council. This article
states that the prosecutor may initiate an investigation pro-
prio motu, but that in order to proceed with the investigation
and seek an indictment, the prosecutor must submit a request
to the Pre-Trial Chamber and receive its authorization.
54. Rome Statute of the ICC, article 17.2 (a), (b), and (c).
55. Ibid., Preamble paragraph 10.
56. Rome Statute of the ICC, article 13 (b).
57. Ibid., article 16.
58. John H. E. Fried, International LawNeither Orphan
Nor Harlot, Neither Jailer Nor Never-Never Land, in Interna-
18 Eric K. Leonard Case 258, Part C
tional Law: Classic and Contemporary Readings, eds. Char-
lotte Ku and Paul F. Diehl (Boulder, CO: Lynne Rienner
Publishers, 1998), p. 27.
59. Robert L. Bledsoe and Boleslaw A. Boczak, The Inter-
national Law Dictionary (Santa Barbara, CA: ABC: CLIO,
1987), pp. 756.
60. Ursula C. Tafe, Intergovernmental Organizations, in
Beyond Sovereignty: Issues for a Global Agenda, ed. Maryann
K. Cusimano (Boston: Bedford/St. Martins Press, 2000), pp.
23134, discusses the reliance that IGOs have on nation-states
despite the changing international environment and the rise
in trans-sovereign problems.
61. The specifics of these issues are all contained within
the Rome Statute. The arresting of accused criminals is con-
tained in article 89. Article 89 and article 93.7 also contain the
conditions for transfer. Article 103 describes the enforcement
of sentencing procedures.
62. Rome Statute of the ICC, article 87.7.
19
2002, 2007. All rights reserved. Institute for the Study of Diplomacy.
ISBN: 1-56927-258-1.
Do not duplicate or place on library shelves/reserves without express
written permission. Email: dolgasc@georgetown.edu
CASE 258, PART D
Establishing an International Criminal Court:
The Emergence of a New Global Authority?
ERI C K. LEONARD
SHENANDOAH UNIVERSITY
BEYOND THE ROME CONFERENCE
63
As stated earlier, the events of the post-Rome Confer-
ence era were a whirlwind. There was an immediate
flurry of signatories and ratifications, with the culmina-
tion of this process on April 12, 2002, when the sixtieth
ratification was received and the ICC became a func-
tioning institution. This final section of the case will
examine the post-Rome era, with an emphasis on two
issues: First, what is the current status of U.S. relations
with the court; second, how has the court fared in its
early attempts to implement a global standard of jus-
tice?
Current Status of U.S.-ICC Relations
The post-Rome era has been an exciting and conten-
tious time. One of the main reasons for its contentious-
ness concerns U.S. policy toward the court. As stated
earlier, during the Rome Conference negotiations the
Clinton administration stated its desire for an ICC but
not in the Rome Statute form. As a result, the adminis-
tration initially signed the Rome Statute (on December
31, 1999) with the stipulation that it would never send
the statute to the Senate for ratification. One possible
reason for this action concerns the status of signatory
states in future ICC negotiations. According to the
Rome Statute, if a state signs the statute but does not
ratify, the state may still participate in future negotia-
tions concerning the rules andregulations of the court.
At the time of the U.S.s signature, some of the issues
still under discussion included the crime of aggression
and the courts relationship with the United Nations.
However, upon entering office in 2001, the Bush
administration pursued a less amicable policy toward
the court. In May 2002, the administration unsigned
the statute, breaking all ties to the newly formed court.
In the words of U.S. Ambassador for War Crimes Issues
Pierre-Richard Prosper:
Today, at the request of the president, our mission
upin the United Nations deposited a note with the
U.N. secretary-general as the depository of the
Rome treaty for the International Criminal Court
stating that the United States does not intend to
become a party to the ICC treaty and accordingly
has no legal obligation as a result of our signature on
20 Eric K. Leonard Case 258, Part D
December 31st, 2000. The president decided that
this step was appropriate and an important one in
order make our position clearour position that we
will not support the ICC, believing that the docu-
ment is flawed in many regards.
64
Since that time, the Bush administrations opposi-
tion to the court has continued and at times intensi-
fied.
65
In the 2004 presidential debates, president Bush
twice referenced the ICC. In both instances, the presi-
dent reiterated his opposition to the court due to the
fact that it can try American citizens, troops, and diplo-
mats. His administration also referenced the court in its
2002 National Security Strategy:
We will take actions necessary to ensure that our
efforts to meet our global security commitments and
protect Americans are not impaired by the potential
for investigations, inquiry, or prosecution by the
International Criminal Court (ICC), whose jurisdic-
tion does not extend to America and which we do
not accept.
66
Two major legislative actions have also occurred in
the post-Rome Statute era that exemplify the disdain
that the Bush administration has for the ICC. The first
of these methods are bilateral immunity agreements
(BIAs), initiated by the United States, in which both
parties agree not to extradite current or former govern-
ment officials, military personnel (regardless of their
national status), or citizens of the other party to the
ICC. The purpose of these agreements, also known as
article 98 agreements, is to protect American nationals
from politically motivated prosecution in the ICC. As
John Bolton articulated in November 2003:
Article 98 agreements serve to ensure that US per-
sons will have appropriate protection from politi-
cally motivated criminal accusations, investigations,
and prosecutions. These straightforward agreements
require that our partners agree, either reciprocally or
non-reciprocally, not to surrender U.S. persons to
the International Criminal Court, not to retransfer
persons extradited to a country for prosecution, and
not to assist other parties in their efforts to send U.S.
persons to the ICC. We have worked hard to find
mechanisms and formulations in these agreements
that meet our requirement of blanket coverage while
also responding to the needs of our bilateral part-
ners.
67
In order to ascertain these agreements, the United
States has threatened economic sanctions that include
the termination of military aid and other forms of for-
eign assistance.
68
Such a hard-line stance by the Bush
administration exemplifies its displeasure with the
court and its fears of the courts jurisdictional reach.
Along with the signing of BIAs, the U.S. govern-
ment has also passed domestic legislation with the
intent of undermining the ICC.
69
The American Ser-
vicemembers Protection Act of 2002 stipulates that the
U.S. government views the ICC as an institution that
exposes U.S. military personnel and governmental offi-
cials to prosecution that is not consistent with the U.S.
constitution. As a result, the act authorizes the presi-
dent:
to use all means necessary and appropriate to bring
about the release from captivity of any person
described in subsection (b) who is being detained or
imprisoned against that persons will by or on behalf
of the International Criminal Court.
70

This act also allows the United States to terminate
military assistance to ICC party states, limits the avail-
ability of U.S. peacekeepers to UN-mandated missions,
prohibits the transfer of classified national security
information to the ICC, and generally prohibits any
cooperative arrangements between the United States
and the court. As with the BIAs, this act of Congress is a
clear attempt to undermine the actions of the ICC, pub-
licly to state U.S. opposition to the court, and generally
to limit the ICC in its ability to pursue international jus-
tice.
Although the U.S. opposition has grown in the
post-Rome era, the administrations recent actions sig-
naled some change in attitude. The most prominent of
these actions was the U.S.s abstention from the UN
Security Council vote on ICC jurisdiction within
Sudan.
71
Although this did not indicate full scale accep-
tance of the court, the United States provided some evi-
dence of acceptance in its failure to invoke its veto
power.
The other area of change concerns the BIAs. On a
recent diplomatic mission trip, Secretary of State Con-
doleeza Rice alluded to the notion that the United
Case 258, Part D Establishing an International Criminal Court 21
States may not want to follow through on some of the
BIAs it has signed. In her words, cutting off aid to allies
and/or important counterterrorism or counterdrug
countries is the same as shooting ourselves in the
foot.
72
Further action on this issue was undertaken in
September 2006, when the House and Senate approved
amendments to the American Servicemembers Protec-
tion Act that now allows International Military Educa-
tional and Training funding to states that have not yet
signed a BIA.
73
Again, this type of activity does not pro-
vide evidence of U.S. support. However, it does signal
an alteration in the attitude of the Bush administration
and possibly the initiation of a more benign acceptance
of the court and its mandate.
Current Caseload
Finally, it is important to mention the current caseload
of the ICC and the possible problems and issues that
have arisen in the post-Rome era. Presently states par-
ties have referred three situations to the prosecutor (the
Central African Republic, the Democratic Republic of
Congo and Uganda), and the UN Security Council has
referred one situation (Sudan). In these situations, the
ICC is active in four investigations, has handed down
indictments in three cases, and has begun trial proceed-
ings in one case.
74
All four cases concern African states
and, as a result, there have already been some rum-
blings concerning neoimperialism.
75
However, a more
important issue is the states response to the opening of
ICC investigations.
In Sudan, for instance, after the initial arrest war-
rants were issued, the government stated that it would
no longer cooperate with the ICC.
76
The Sudanese gov-
ernment went a step further when the London-based Al
Hayat newspaper quoted Zubair Bashir Taha as saying
that his government will kill any party seeking to appre-
hend Sudanese officials to bring him before the ICC.
77
Also as a result of the ICC arrest warrants, some of the
Janjaweed militia leaders in Sudan have broached the
possibility of allying themselves with the rebels because
they fear prosecution in the ICC. In Uganda, the possi-
ble arrest and ICC prosecution of Lords Resistance
Army members has resulted in stalled peace talks that
may or may not result in greater violence and the per-
petuation of a crisis rather than the establishment of
justice. Such cases, and their subsequent conse-
quences, show the impending crises that in the future
the ICC will need to cope with if it hopes to become a
legitimate international legal institution.
CONCLUSION
The global community undertook the task of establish-
ing a permanent International Criminal Court because
it believes that the court will end impunity for those
who commit mass atrocities. In this sense, many schol-
ars see the court as the first true form of global justice.
Whether it will live up to that label remains unknown.
However, what we do know is that the success and
overwhelming support received at the Rome Confer-
ence, the faster-than-expected ratification process, and
the start of judicial proceedings all signal a historic step
forward in the fight to uphold humanitarian law. Only
time will tell whether the Court may become a legiti-
mate and successful form of global justice or, as the
United States claims, it is an institutionally flawed and
politically motivated organization. That is a question
that scholars, policymakers and you, the students of
international politics, must now debate.
NOTES
63. Eric K. Leonard, A Case Study in Declining Hege-
mony: Flawed Policy Concerning the ICC, The Whitehead
Journal of Diplomacy and International Relations, 8 (2007): pp.
14766, serves as the foundation for this section.
64. Pierre-Richard Prosper, Foreign Press Center Briefing
(Washington, DC: U.S. Department of State, May 6, 2002),
http://fpc.state.gov/9965.htm.
65. Jean Galbraith, The Bush Administrations Response
to the International Criminal Court, Berkeley Journal of Inter-
national Law, 21 (2003): pp. 683702, provides a detailed
analysis of Bush administration policy toward the ICC. The
one instance in which the U.S. opposition appears to have
softened is the UN Security Council decision (UNSC Resolu-
tion 1593) to allow ICC jurisdiction over the Darfur crisis.
The United States abstained on this vote.
66. The National Security Strategy of the United States of
America (September 2002), p. 31. Reprinted at http://
www.whitehouse.gov/ncs/nss.pdf.
22 Eric K. Leonard Case 258, Part D
67. John Bolton, American Justice and the International
Criminal Court (remarks at the American Enterprise Insti-
tute, Washington, DC, on November 3, 2003). Available at
http://www.state.gov/t/us/rm/25818.htm (accessed Febru-
ary 14, 2007).
68. This has culminated in the passing of the Nethercutt
Amendment, as part of the 2006 joint Appropriations Bill,
which authorizes the termination of Economic Support
Funds to ICC party states that have not signed a BIA with the
United States.
69. See Lilian V. Faulhaber, American Servicemembers
Protection Act of 2002, Harvard Journal on Legislation 40
(2003): pp. 53757, for a detailed analysis of this legislation.
70. American Servicemembers Protection Act of 2002,
sec. 2008 (a).
71. United Nations, Security Council Refers Situation in
Darfur, Sudan, to Prosecutor of International Criminal Court
(New York, 2005), SC/Res/1593.
72. Condoleezza Rice, Trip Briefing, en Route to San
Juan, Puerto Rico, March 10, 2006, see http://www.state.
gov/secretary/rm/2006/63001.htm (accessed December 12,
2006).
73. CICC, Are the United States BIAs on the Way Out?
New US Legislation Points to a Possible Change in Direc-
tion, Monitor no. 33 (November 2006), p. 20. Accessible at
http://www.iccnow.org/. Under the original American Ser-
vicemembers Protection Act, such funding would not be pro-
vided if a state had not signed a BIA with the United States.
74. This information is accurate as of May 22, 2007. For an
updated list of criminal proceedings, see http://
www.icc-cpi.int/cases.html.
75. The following is a list of pending cases: The Prosecu-
tor v. Thomas Lubanga Dyilo (Democratic Republic of the
Congo); The Prosecutor v. Joseph Kony, Vincent Otti, Raska
Lukwiya, Okot Odhiambo, and Dominic Ongwen (Uganda);
and The Prosecutor v. Ahmad Muhammad Harun and Ali
Muhammad Lai Abd-Al-Rahman (Sudan).
76. Sudan announces it will suspend cooperation with
International Criminal Court, International Herald Tribune,
March 18, 2007, at http://www.iht.com/articles/ap/2007/03/
18/africa/AF-GEN-Sudan-ICC.php.
77. Sudan to behead any suspect attempting to extradite
Darfur suspects, Sudan Tribune, Friday, March 2, 2007, at
http://www.sudantribune.com/spip.php?article 20536.
Case 258, Part D Establishing an International Criminal Court 23
APPENDIX A
Rome Statute Signature (139) and
Ratification (104) Chart, as of May 1, 2007
(In alphabetical order)
Country Signature Date Ratification Date / Accession (a)
Afghanistan 02/10/03 (a)
Albania 07/18/98 01/31/03
Algeria 12/28/00
Andorra 07/18/98 04/30/01
Angola 10/07/98
Antigua and Barbuda 10/23/98 06/18/01
Argentina 01/08/99 02/08/01
Armenia 10/01/99
Australia 12/09/98 07/01/02
Austria 10/07/98 12/28/00
Bahamas 12/29/00
Bahrain 12/11/00
Bangladesh 09/16/99
Barbados 09/08/00 12/10/02
Belgium 09/10/98 06/28/00
Belize 04/05/00 04/05/00
Benin 09/24/99 01/22/02
Bolivia 07/17/98 06/27/02
Bosnia-Herzegovina 07/17/00 04/11/02
Botswana 09/08/00 09/08/00
Brazil 02/07/00 06/20/02
Bulgaria 02/11/99 04/11/02
Burkina Faso 11/30/98 04/16/04
Burundi 01/17/99 09/21/04
Cambodia 10/23/00 04/11/02
Cameroon 07/17/98
Canada 12/18/98 07/07/00
24 Eric K. Leonard Case 258, Part D
Cape Verde 12/28/00
Central African Republic 12/07/99 10/03/01
Chad 10/20/99 11/01/06
Chile 10/11/98
Colombia 10/10/98 08/05/02
Comoros 09/22/00 08/18/06
Congo (Brazzaville) 07/17/98 05/03/04
Costa Rica 10/07/98 06/07/01
Cte dIvoire 11/30/98
Croatia 10/12/98 05/21/01
Cyprus 10/15/98 03/07/02
Czech Republic 04/13/99
Democratic Republic of the Congo 09/08/00 04/11/02
Denmark 09/25/98 06/21/01
Djibouti 10/07/98 11/05/02
Dominica 02/12/01 (a)
Dominican Republic 09/08/00 05/12/05
East Timor 09/06/02 (a)
Ecuador 10/07/98 02/05/02
Egypt 12/26/00
Eritrea 10/07/98
Estonia 12/27/99 01/30/02
Fiji 11/29/99 11/29/99
Finland 10/07/98 12/29/00
France 07/18/98 06/09/00
Gabon 12/22/98 09/21/00
Gambia 12/07/98 06/28/02
Georgia 07/18/98 09/05/03
Germany 12/10/98 12/11/00
Ghana 07/18/98 12/20/99
Greece 07/18/98 05/15/02
Country Signature Date Ratification Date / Accession (a)
Case 258, Part D Establishing an International Criminal Court 25
Guinea 09/08/00 07/14/03
Guinea-Bissau 09/12/00
Guyana 12/28/00 09/24/04
Haiti 02/26/99
Honduras 10/07/98 07/01/02
Hungary 12/15/98 11/30/01
Iceland 08/26/98 05/25/00
Iran, Islamic Republic of 12/31/00
Ireland 10/07/98 04/11/02
Israel* 12/31/00
Italy 07/18/98 07/26/99
Jamaica 09/08/00
Jordan 10/07/98 04/11/02
Kenya 0811/99 03/15/05
Korea, Republic of 03/08/00 11/13/02
Kuwait 09/08/00
Kyrgyzstan 12/08/98
Latvia 04/22/99 06/28/02
Lesotho 11/30/98 09/06/00
Liberia 07/17/98 09/22/04
Liechtenstein 07/18/98 10/02/01
Lithuania 12/10/98 05/12/03
Luxembourg 10/13/98 09/08/00
Macedonia, FYR 10/07/98 03/06/02
Madagascar 07/18/98
Malawi 03/03/99 09/19/02
Mali 07/17/98 08/16/00
Malta 07/17/98 11/29/02
Marshall Islands 09/06/00 12/07/00
Mauritius 11/11/98 03/05/02
Mexico 09/07/00 10/28/05
Country Signature Date Ratification Date / Accession (a)
26 Eric K. Leonard Case 258, Part D
Moldova, Republic of 09/08/00
Monaco 07/18/98
Mongolia 12/29/00 04/11/02
Montenegro 10/23/06
Morocco 09/08/00
Mozambique 12/28/00
Namibia 10/27/98 06/25/02
Nauru 12/13/00 11/12/01
Netherlands 07/18/98 07/17/01
New Zealand 10/07/98 09/07/00
Niger 07/17/98 04/11/02
Nigeria 06/01/00 09/27/01
Norway 08/28/98 02/16/00
Oman 12/20/00
Panama 07/18/98 03/21/02
Paraguay 10/07/98 05/14/01
Peru 12/07/00 11/10/01
Philippines 12/28/00
Poland 04/09/99 11/12/01
Portugal 10/07/98 02/05/02
Romania 07/07/99 04/11/02
Russian Federation 09/13/00
St. Kitts and Nevis 08/22/06 (a)
St. Lucia 09/27/99
St. Vincent and Grenadines 12/03/02 (a)
Samoa 07/17/98 09/16/02
San Marino 07/18/98 05/13/99
So Tom and Principe 12/28/00
Senegal 07/18/98 02/02/99
Seychelles 12/28/00
Sierra Leone 10/17/98 09/15/00
Country Signature Date Ratification Date / Accession (a)
Case 258, Part D Establishing an International Criminal Court 27
Slovakia 12/23/98 04/11/02
Slovenia 10/07/98 12/31/01
Solomon Islands 12/03/98
South Africa 07/17/98 11/27/00
Spain 07/18/98 10/25/00
Sudan 09/08/00
Sweden 10/07/98 06/28/01
Switzerland 07/18/98 10/14/01
Syrian Arab Republic 11/29/00
Tajikistan 11/30/98 05/05/00
Tanzania, Democratic Republic of 12/29/00 09/20/02
Thailand 10/02/00
Trinidad and Tobago 03/23/99 04/06/99
Uganda 03/17/99 06/14/02
Ukraine 01/20/00
United Arab Emirates 11/27/00
United Kingdom 11/30/98 10/04/01
United States of America* 12/31/00
Uruguay 12/19/00 06/28/02
Uzbekistan 12/29/00
Venezuela 10/14/98 06/07/00
Yemen 12/28/00
Yugoslavia, Federal Republic of 12/19/00 09/06/01
Zambia 07/17/98 11/13/02
Zimbabwe 07/17/98
* The United States and Israel have since unsigned the Rome Statute.
Source: http://web.amnesty.org/pages/icc-signatures_ratifications-eng.
Country Signature Date Ratification Date / Accession (a)

You might also like