From Nuremberg to The Haag Von Nürnberg nach Den Haag The Statute of the International Criminal Court | From Nuremberg to The Hague

The Statute of the International Criminal Court

Rome Statute ot the ICC, preamble:
“…Recognizing that such grave crimes
threaten the peace, security and well-
being of the world…”

The Rome Statute – the legal basis of the ICC

The Rome Statute, named after the city where the document was concluded in 1998, forms the legal basis for the ICC. It is an international treaty to which all states may accede if they so desire. This treaty establishes the ICC (see Article 1) and is simultaneously its Statute, i.e. the legal document that defines the powers of the court and governs its organization and procedures. The fact that its Statute takes the form of an international treaty is the main feature distinguishing the ICC from older international criminal tribunals. While the Nuremberg Tribunal and many other courts were established by victorious powers after World War II, and the international tribunals for the former Yugoslavia and Rwanda were created unilaterally by the UN Security Council, the ICC is based on obligations voluntarily entered into by a majority of the community of states.

The advantages of this solution are plain to see. All participating states have equal rights, which they are able to assert in the Assembly of States Parties. No state can claim that the ICC is an instrument imposed on it by some external power. By its voluntary accession to the ICC, a state accepts automatically the court’s jurisdiction and is not allowed to opt out of individual clauses. Reservations are not permitted (Art. 120). However, a state can declare, according to art. 124 of the statute, that the court’s jurisdiction for war crimes is suspended for seven years after accession.

The treaty character of the Statute implies the possibility of withdrawal. A withdrawal shall take effect one year after the state declared its intent to withdraw. Proceedings that are already in course cannot be halted by a declaration of withdrawal.

The Court’s relationship with the United Nations

The Rome Statute provides for cooperation between the ICC and the UN Security Council, and accords the latter a limited right to refer cases to the Court for investigation and to suspend investigations. However, in contrast to the international tribunals for the former Yugoslavia and Rwanda, the ICC is not a UN body, although its Statute was drafted under UN auspices and the Rome Conference was convened by the UN. Notwithstanding, the Rome Statute fulfils goals that the United Nations has pursued since its establishment in 1945: to outlaw acts such as genocide, war crimes and crimes against humanity around the world and to punish the perpetrators.

In September 2004, the ICC and the United Nations put their cooperation on a formal footing by concluding a Relationship Agreement. Pursuant to this Agreement, the ICC has observer status at the UN General Assembly and reports to the Assembly on its work. The United Nations likewise has a right to attend public hearings of the Court. Another important aspect is that UN bodies have also pledged to cooperate with ICC investigations. This means that the Court has recourse to the expertise of the UN missions and its programmes and offices in individual states.

Pursuant to the Rome Statute, the Security Council has two prerogatives:

›    1. It may, in a resolution adopted under Chapter VII of the Charter of the United Nations, request the Court not to commence or proceed with a given investigation or prosecution under this Statute for a period of 12 months; the request may be renewed by the Council under the same conditions (see Art. 16).

›    2. The Security Council acting under Chapter VII of the Charter of the United Nations may request the Prosecutor to initiate proceedings. The result of such proceedings cannot however be influenced by the Security Council (see Article 13 (b)). This clause has been invoked twice: In 2005 the Security Council requested the ICC to inquire into the situation in Darfur (Sudan). This led to several indictments and issues of warrants against the people presumed to be responsible for crimes in Darfur, including Sudanese president Omar Hassan al-Bashir. In 2011 the ICC initiated an investigation into the situation in Libya, again on request of the Security Council, and in June 2011, the court issued warrants of arrest for Muammar Gaddafi and two of his collaborators.

›    The Rome Statute further accords the United Nations a role in reviewing the Statute to make future improvements (Arts. 121, 122, 123).

The independence of the Court

Barring the limited powers that the Statute grants the Security Council, the ICC is indeed an autonomous entity. This independence is in principle just the same as that enjoyed by any national court in a state based on the rule of law. The 18 judges, the prosecutor and the registrar are servants only of the law, in this case the Rome Statute. Nor can the Assembly of States Parties interfere in the work of the Court. The Assembly does, it is true, elect the judges (in compliance with the terms of the Statute), but may only remove a judge from office, even if he or she is guilty of serious misconduct, if two thirds of the bench recommend such removal (Art. 46).

The principal tasks of the Assembly of States Parties include the review and amendment of the Statute itself. Amendments of an exclusively institutional nature may be made at any time.
Amendments to the jurisdiction of the Court and the list of crimes were considered were considered for the first time at a conference of States Parties in Kampala in 2010. One matter decided upon at that conference was a definition of the crime of aggression according to Article 5 of the Statute which, however, will not enter into force before the year 2017.

All States Parties may participate in amending the Statute, regardless of when they acceded to it, provided they are not in arrears in the payment of their financial contributions to the Court.