The International Criminal Court

Ratification of the Rome Statute

The report that President Aquino has officially signed the Rome Statute on the establishment of the International Criminal Court on February 28, 2011 would now pave the way for the Senate of the Philippines to act on the ratification of the Statute. Despite the relentless efforts from many quarters urging the ratification of the ICC, the past Administration has decided not to forward to the Senate this important Statute. Similarly, in the United States, despite outgoing President Clinton’s approval of the Rome Statute and forwarding it to the US Senate, the incoming Bush Administration ordered the recall of this approval and since then the Rome Statute has languished in limbo. Further, the Bush Administration has aggressively sponsored the passage of resolutions for the grant of immunity from investigation or prosecution of personnel of non-ratifying states. Thus, the US together with other permanent members of the UN Security Council, Russia and China, have to this date not ratified the ICC. The fear and apprehension of the US Government during the time of President Bush is that its personnel deployed in many countries around the world could be targeted by over-bearing prosecutors and ambitious judges and this fear has remained despite the same being answered during the debates at the Security Council on the issue of immunity and deferment. It is not yet known what is the US Government’s position under the current Obama Administration.

Individual responsibility lies at the core of the establishment of the Rome Statute

While before, International Law refers only to States, the establishment of a body where individuals are judged by an International Institution adds a new dimension in International Law. A body or Tribunal which shall act independently from any individual State but to the community of States itself. Likewise, while individuals specially in the period following the second world war became the bearer of rights, he has also become the bearer of obligations. The Nuremberg Tribunal which tried Nazi war criminals established without doubt that the rules of International Law are committed to individuals. The Tribunal held — “crimes against International Law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of International Law be enforced”.

The Rome Statute establishing the ICC

On July 17, 1998 at the City of Rome, the Statute establishing a permanent International Criminal Court was adopted by the participating delegates at a diplomatic conference called by the UN Secretary General. To enter into force it is required that 60 instruments of ratifications by states parties shall be deposited with the UN. By the end of June 2002, that number has been reached and thus the Court became operational on July 1, 2002.

The Rome Statute contains 13 parts with 128 Articles. In its preamble, it is emphasized that the Court shall be complementary to the National Criminal Jurisdiction. The Court shall be a permanent institution with International legal personality and shall have jurisdiction over persons for the most serious crimes of international concern. It may exercise its function and powers on the territory of any State. It shall have its seat at the Hague in the Netherlands. The Court shall consist of the Presidency; An Appeals Division, a Trial Division and a Pre Trial Division, the Office of the Prosecutor and a Registry. There shall be 18 Judges of the court and every candidate for election shall have established competence in criminal law or international law. No two judges may be nationals of the same State.

Crimes within the jurisdiction of the Courts are: Genocide, Crimes against Humanity; War Crimes, the crime of Aggression.

Other important features of the Court are: the pre-conditions to the exercise of its jurisdiction, the relationship of the Court with the UN, the penalties, international cooperation, and judicial assistance, enforcement and assembly of State parties. A major issue ventilated during the drafting of the Statute referred to the question of Jurisdiction. Many delegates or participants opposed the Jurisdiction of the ICC over that of the National Jurisdiction on criminal matters. This concern was raised in several fora such as at the UN, Sixth Committee (Legal), the Asian African Legal Consultative Committee (AALCC) and the International Law Commission (ILC) itself. This issue was finally resolved during the UN plenipotentiary conference in Rome by placing in the Preamble of the Statute the word “complementary” meaning that the ICC’s role is complementary to that of the National Jurisdiction and to emphasize the pre-conditions before the curt may assume Jurisdiction.

(Author participated in the above mentioned fora during the consideration and drafting of the ICC Statute.)