An Introduction to the International Criminal Court

The International Criminal Court ushers in a new era in the protection of human rights. The ICC will prosecute genocide, crimes against humanity and war crimes when national justice systems are either unwilling or unable to do so themselves. Schabas reviews the history of international criminal prosecution, the drafting of the Rome Statute of the International Criminal Court and the principles of its operation, including the scope of its jurisdiction and the procedural regime.

   This revised edition considers the Court’s start-up preparations, including election of judges and prosecutor. It also addresses the difficulties created by US opposition, and analyses the various measures taken by Washington to obstruct the Court. Three of the Court’s fundamental documents – the 1998 Rome Statute, the Rules of Procedure and Evidence, and the Elements of Crimes – are reproduced in the appendices. Indispensable for students and practitioners.

WILLIAM A. SCHABAS is Professor of Human Rights Law at the National University of Ireland, Galway and Director of the Irish Centre for Human Rights. His numerous publications include Genocide in International Law (2000), The Abolition of the Death Penalty in International Law (third edition, 2002), International Human Rights Law and the Canadian Charter (1996), The Death Penalty as Cruel Treatment and Torture (1996), Précis du droit international des droits de la personne (1997) and Les instruments internationaux, canadiens et québécois des droits et libertés (1998). He is also editor-in-chief of Criminal Law Forum.

AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT

SECOND EDITION

WILLIAM A. SCHABAS

PUBLISHED BY THE PRESS SYNDICATE OF THE UNIVERSITY OF CAMBRIDGE
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CAMBRIDGE UNIVERSITY PRESS
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© William A. Schabas, 2001, 2004

This book is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First edition first published by Cambridge University Press 2001
Second edition first published by Cambridge University Press 2004

Printed in the United Kingdom at the University Press, Cambridge

Typeface Adobe Minion 10.5/14 pt.   System LATEX 2_e   [TB]

A catalogue record for this book is available from the British Library

Library of Congress Cataloguing in Publication data
Schabas, William, 1950–
An Introduction to the International Criminal Court / William A. Schabas. – 2nd ed.
p.   cm.
Includes bibliographical references and index.
ISBN 0 521 83055 9 (hb) – ISBN 0 521 53756 8 (pb)
1. International Criminal Court.   2. International criminal courts.   I. Title.
KZ6310.S33 2004
345′.01 – dc22   2003055727

ISBN 0 521 83055 9 hardback
ISBN 0 521 53756 8 paperback

CONTENTS

PREFACE

On 17 July 1998, at the headquarters of the Food and Agriculture Organization of the United Nations in Rome, 120 States voted to adopt the Rome Statute of the International Criminal Court. Less than four years later – far sooner than even the most optimistic observers had imagined – the Statute had obtained the requisite sixty ratifications for its entry into force, on 1 July 2002. By early 2003, the number had climbed to nearly ninety.¹ This complex and detailed international treaty provides for the creation of an international criminal court with power to try and punish for the most serious violations of human rights in cases when national justice systems fail at the task. It constitutes a benchmark in the progressive development of international human rights, something whose beginning dates back more than fifty years, to the adoption on 10 December 1948 of the Universal Declaration of Human Rights by the third session of the United Nations General Assembly.² The previous day, on 9 December 1948, the Assembly had adopted a resolution mandating the International Law Commission to begin work on the draft statute of an international criminal court.³

   Establishing the international criminal court took considerably longer than many had hoped. In the early years of the Cold War, in 1954, the General Assembly essentially suspended work on the project.⁴ It did not resume this work until 1989.⁵ The end of the Cold War gave the idea of a court the breathing space it needed. The turmoil created in the Former Yugoslavia by the end of the Cold War provided the laboratory for international justice that propelled the agenda forward.⁶ The final version of the Rome Statute is not without serious flaws, and yet it ‘could well be the most important institutional innovation since the founding of the United Nations’.⁷ The astounding progress of the idea itself during the 1990s and into the early twenty-first century indicates a profound and in some ways mysterious enthusiasm from a great number of States. Perhaps they are frustrated at the weaknesses of the United Nations and regional organisations in the promotion of international peace and security. To a great extent, the success of the Court parallels the growth of the international human rights movement, much of whose fundamental philosophy and outlook it shares. Of course the Court has also attracted the venom of the world’s superpower, the United States of America, isolated but also determined in its opposition to the institution.

   The new International Criminal Court (ICC) sits in The Hague, capital of the Netherlands, alongside its long-established cousin, the International Court of Justice (ICJ). The ICJ is the court where States litigate matters relating to their disputes as States. The role of individuals before the ICJ is marginal, at best. As will be seen, not only does the ICC provide for prosecution and punishment of individuals, it also recognises a legitimate participation for the individual as victim. In a more general sense, the ICC is concerned, essentially, with matters that might generally be described as serious human rights violations. The ICJ, on the other hand, spends much of its judicial time on delimiting international boundaries and fishing zones, and similar matters. Yet, because it is exposed to the same trends and developments that sparked the creation of the ICC, the ICJ finds itself increasingly involved in human rights matters.⁸

   The literature on the ICC is already abundant, and several sophisticated collections of essays addressed essentially to specialists have already been published.⁹ The goal of this work is both more modest and more ambitious: to provide a succinct and coherent introduction to the legal issues involved in the creation and operation of the ICC, and one that is accessible to non-specialists. References within the text signpost the way to rather more detailed sources when readers want additional analysis. As with all international treaties and similar documents, students of the subject are also encouraged to consult the original records of the 1998 Diplomatic Conference and the meetings that preceded it. But the volume of these materials is awesome, and it is a challenging task to distil meaningful analysis and conclusions from them.

   Perhaps this second edition appears rather soon after the first, but this should only be taken as another indicator of the stunningly rapid progress of the Court. I thanked many friends and colleagues in the first edition, and beg their indulgence for not doing so again here. As always, Finola O’Sullivan of Cambridge University Press has been enthusiastic and encouraging. Finally, of course, thanks are mainly due to Penelope, for her mythical patience.

   WILLIAM A. SCHABAS
Oughterard, County Galway
1 April 2003

ABBREVIATIONS