Negotiating an Institution for the Twenty-First
Century: Multilateral Diplomacy and the
International Criminal Court
Philippe Kirsch, Q.C., and Valerie Oosterveld”
The authors review the decades of discussion and
years of negotiation that led to the adoption of the Statute
of the Intenzational Criminal Courl in 1998. By placing the
creation of the International Criminal Court in its historical
context, they emphasize the significance of the statute and
the Court for international law. The lecture discusses vmi-
ous provisions of the statute, highlighting controversial as-
pects such as the jurisdiction of the Court and the crime of
aggression. The statute reflects the compromises struck
throughout the negotiations, compromises that are a neces-
sary part of multilateral diplomacy. Though it was not pos-
sible to reconcile fully the concerns of all states, the authors
point out that the statute achieves an important balance that
allows for widespread support from the international com-
munity while establishing an institution that has the power
to punish those responsible for the most serious crimes in
international law. That this balance is a success is, in the
authors’ view, reflected in the ever-growing levels of sup-
port for the Court They detail the challenges faced by the
Preparatory Commission in transforming the Court from a
statutory model to a working judicial institution. Finally,
the authors examine the positive impact that ratification
and implementation of the statute is having on reform of
domestic laws criminalizing genocide, crimes against hu-
manity, and war crimes.
Les auteurs passmnt en revute I d .ennics d &-scu;-
a i’zi.fimn
sions et les ann&.s da, n~gociations ayat ma
du Stanit de la courptnale inte tiercale
en 1993. En si-
tuant la cr&daion de Ia Cour dans son conmxte histriqa. its
soulignent son importance pour to droit intemrational aant
d’aborder certains des a.pects Irs plus contro’,er,4s du
Statut, tels la compStence de Ia Cour et la d.X1nition
du
crime d’agression. Bien qua ic Statut refl’ t de cmptromis
in~vitables dans Ic cadre d nociations mureltilaals. et
qu’il fit impossible d concilier comp!,temant In in#1-
tudes de toutes les parties, to Statut constitu un iastnxrnat
6quilibri qui s’est attirdl un large appui pami ia commu-
mut5 intemationale tout en 6tablissant u= ,ntmtuion ayant
de vio latioU ns I plus
le pouvoir d punir In responsa,!
graves du droit international. Les auteum font crtui!e C=t
des dflis pratiques au.tquls a da faire fare la Commisnon
prparatoire pour transformer Ia mod1e tir da Staut en
une institution judiciaire on dat da foniDulnnzat. Finale-
ment, its examinent l’impzct positif d la raification et d
la misc en application du Staut sur Ir
lois
nationales criminalisant le ganocidz, In crime
contre
l’humanitd et les crimes de guerr
rfornm
de
“Philippe Kirsch, Chairman, Committee of the Whole at the United Nations Diplomatic Conference
of Plenipotentiaries on the Establishment of the International Criminal Court; Chairman of the Pre-
paratory Commission for the International Criminal Court; presently Canada’s Ambassador to the
Kingdom of Sweden; former Legal Adviser, Department of Foreign Affairs and International Trade.
Valerie Oosterveld, Legal Officer, Department of Foreign Affairs and International Trade, member of
the Canadian delegation to the United Nations Diplomatic Conference of Plenipotentiaries on the Es-
tablishment of the International Criminal Court and the Preparatory Commission for the International
Criminal Court. This lecture was delivered by Ambassador Kirsch at the McGill Faculty of Law on
13 March 2001 as the keynote address of the McGill Lnv Journal Alumni Lecture Series I les Con-
ferences des anciens de la Revue de droit de McGill.
McGill Law Journal 2001
Revue de droit de McGill 2001
To be cited as: (2001) 46 McGill LJ. 1141
Mode de r6frence: (2001) 46 R.D. McGill 1141
1142
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
I. The Road to Rome: Adoption of the Rome Statute
II. Provisions of the Rome Statute
Ill. A “Reality Check”: Evaluating the Rome Statute in Context
IV. Post-Rome Developments: Growing Support for the ICC
Conclusion: A New Institution for the Twenty-First Century
2001]
R KIRSCH & V OOSTERVELD – DIPLOMACYAND THE ICC
11443
Introduction
Since the adoption of the Statute of the International Criminal Court’ in 1998,
there has been discussion of whether it is a success or a failure in international law,
and whether certain aspects of the statute “strengthen” or “weaken” the International
Criminal Court (“ICC”). Evaluation of this kind is understandable. There are certain
provisions within the Rome Statute that caused controversy when they were adopted,
and there are others that many greeted warmly. Discussion of them can be useful, for
example, in identifying areas for consideration at the ICC’s first Review Conference.!
Analysis of the Rome Statute should be done, however, in context–the context of
multilateral diplomacy. The form and content of the statute are the direct result of the
decision to found the ICC by treaty. The treaty approach had necessary consequences,
and it is in light of these necessary consequences that any evaluation of the Rome
Statute should take place.
I. The Road to Rome: Adoption of the Rome Statute
Before discussing the Rome Statute itself, it is important to reflect on the fact that
it was adopted after decades of unsuccessful attempts. Crimes such as those described
in the Rome Statute have been committed throughout the long history of war and have
led repeatedly to calls for punishment. While examples date from as far back as 1474,’
many commentators begin their discussion of the modem history of international
prosecution with World War I. World War I brought many fundamental changes in the
forms of warfare used, including chemical weapons and the targeting of civilians. The
Commission on the Responsibility of the Authors of the War and the Enforcement of
Penalties concluded that “[a]U persons belonging to enemy countries, however high
their position may have been, without distinction of rank, including Chiefs of States,
who have been guilty of offences against the laws and customs of war or the laws of
humanity, are liable to criminal prosecution.'” The Treaty of Versailles addressed this
issue, providing for an international court to prosecute the German kaiser and national
Statute].
‘ 17 July 1998, UN Doe. A/CONF. 183/9, 37 LL.M. 999 (not entered into force) [hereinafter Rome
2 The first Review Conference will take place seven years after the entry into force of the Rome
Statute, to consider any amendments to the statute. The Rome Statute, ibid., art. 123, specifically pro-
vides for the Review Conference, and states that the list of crimes in art. 5 may be revisited.
3 Morris & Scharf use the example of the trial of Peter von Hagenbach in 1474 for crimes ordered
during his governorship of Breisach. See V. Morris & M.P. Scharf, An Insider’s Guide to the Interna-
tional Criminal Tribunal for tie Former Yugoslaia, vol. 1 (New York: Transnational Publishers,
1995) at 1.
‘ Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties,
Report to the Prelininary Peace Conference (1920) 14 AJ.LL. 95 at 117.
1144
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
military courts of the victor states to prosecute others. If a person had committed
crimes affecting more than one state, the affected states could convene a joint tribu-
nal.’ These aspects of the treaty were never implemented because, as is often the case,
political accommodation was easier than enforcement. The kaiser fled to the Nether-
lands and was never tried. While twelve people were ultimately prosecuted in the
“Leipzig trials”, only a few were convicted of war crimes and they received light sen-
tences.6 Those who were convicted soon escaped.7
Immediately following World War I, the League of Nations discussed creating a
permanent international criminal court (the “High Court of International Justice”) to
try “crimes against international public order and the universal law of nations”.’ Ulti-
mately, the idea did not receive support within the league, even though discussions
continued at academic and other levels.” In 1934 the issue arose again when France
pressed for the adoption of an international terrorism convention in conjunction with
the creation of an ICC. A Convention for the Prevention and Punishment of Terrorism
and a Convention for the Creation of an International Criminal Court were adopted in
1937, but they never entered into force, as the former only received one ratification
and the latter none at all.’
World War II resulted in the creation of the International Military Tribunals in
Nuremberg and Tokyo, as well as war crimes tribunals in Allied states. The Interna-
tional Military Tribunal was established in Nuremberg “for the just and prompt trial
and punishment of the major war criminals of the European Axis” and had jurisdic-
tion over crimes against peace, war crimes, and crimes against humanity.” The Char-
ter of the International Military Tribunal for the Far East (also known as the Tokyo
‘ See Versailles Treaty, arts. 227-29, quoted in B.B. Ferencz, An International Criminal Court, A
Step toward World Peace: A Docunentary History and Analysis, vol. 1 (New York: Oceana Publica-
tions, 1980) at 32 [hereinafterAn International Criminal Court VoL 1].
6 An International Criminal Court Vol. 1, ibid. at 33.
7 Ibid.
‘Ibid. at 36.
9 E.g. the Inter-Parliamentary Union decided in 1925 that “offences against public international or-
der and the law of nations” should be tried by a chamber of the Permanent Court of International Jus-
tice, and the International Law Association concluded in 1926 that the establishment of an ICC “is not
only highly expedient, but also practical”. See H. von Hebel, “An International Criminal Court-A
Historical Perspective” in H. von Hebel, J.H. Lammers & J. Schukking, eds., Reflections on the Inter-
national Criminal Court (The Hague: TMC Asser Press, 1999) 13 at 17.
‘0Ibid. at 18.
” Charter of the International Military Tribunal, 8 August 1945, 82 U.N.T.S. 280, arts. 1, 6, re-
printed in An International Criminal Court Vol. 1, supra note 5, 456 [hereinafter Nuremberg Charter].
2001]
P KIRSCH & V OOSTERVELD – DIPLOwACYAND THE ICC
1145
Charter)’2 was based largely on the Nuremberg Charter. Both tribunals were not ICCs,
as they were ad hoc in nature and targeted to specific countries.
Following World War RI, the United Nations General Assembly adopted the Con-
vention for the Prevention and Punishnent of the Crime of Genocide, which provides
that persons charged with genocide may be tried by national courts where the crime
was committed or “by such international penal tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its jurisdiction:”‘ The
International Law Commission (“ILC”) was assigned to study the issue of an interna-
tional penal tribunal to try genocide and other crimes. A draft statute was submitted in
1951,” but discussions on the desirability of creating such a court were divided, and
the issue languished during the cold war.
The cold war brought about decades of inaction on the creation of an ICC. There
were several reasons for this impasse. First, many assumed that aggression would fall
within the mandate of an ICC, as in the Nuremberg and Tokyo Charters. The major
powers could not agree, however, on a definition of aggression, which prevented the
completion of the Code of Offences Against the Peace and Security of Mankind,
which in turn hindered the establishment of the jurisdictional basis of the ICC. Sec-
ond, the creation of any international institution requires states to surrender a bit of
sovereignty, however small, and the mutual suspicions of the major powers vere not
conducive to surrendering any control. Third, conflicts were often considered de facto
wars between the major powers. Allowing an international court to try crimes com-
mitted during any of these conflicts was seen as trying the major powers themselves.
There was, therefore, no support for restarting the discussion to create an ICC.
Trinidad and Tobago returned the issue of establishing an ICC to the international
stage in 1989. By that time, the end of the cold war had changed the situation. Trini-
dad and Tobago requested the study of the idea of an ICC, but with a view to trying
drug traffickers. The General Assembly requested that the ILC consider the issue, and
22 19 January 1946, reprinted in RI. Pritchard & S.M. Zaide, eds., The Tokyo Wa2r Crines Trial, vol.
1 (New York: Garland, 1981).
3 9 December 1948,78 U-N.T.S. 277, art. VI, Can. T.S. 1949 No. 27 (entered into force 12 January
1951) [hereinafter Genocide Convention]. International Convention on the Suppression and Pumish-
ment of the Crine ofApartheid, GA Res. 3068(XXVIII), UN GAOR, 28th Sess., Supp. No. 30, UN
Doc. A/9030 (1973) 75, provides in art. V, in almost the same words as the Genocide Comention, for
trial by an international criminal tribunal.
‘” Report of the 1951 Committee on International Criminal Jurisdiction, UN GAOR, 7th Sess.,
Supp. No. 11, UN Doc. A/2136 with draft Statute for an International Criminal Court, 31 August
1951, reprinted in B.B. Ferencz, An International Crinal Court, A Step toward I1brld Peace: A
Docwnentary History andAnalysis, voL 2 (New York- Oceana Publications, 1980) 337.
1146
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
in 1992 the ILC requested and received the mandate to elaborate a draft ICC statute
from the General Assembly.”
In 1993 the United Nations Security Council established an ad hoc tribunal to try
those who had committed breaches of international humanitarian law in the Former
Yugoslavia.6 One year later a similar tribunal was also established to deal with crimes
committed in Rwanda.” The creation of the International Criminal Tribunals for the
Former Yugoslavia and Rwanda (“ICTY” and “ICTR”, respectively) sent a strong
signal to the international community. There was some recognition that an inter-
national court was necessary, even if it had to be established on an ad hoc basis. In
addition, the creation of the two tribunals gave a working model, showing that an ICC
was intellectually and procedurally possible. Finally, the creation of the two tribunals
also demonstrated that the political will lacking throughout the cold war was now pre-
sent. This last development recognized a shift from the cold war assumption that inter-
national and domestic politics would always prevail over international law and justice.
This progress seemed to energize the discussions on the ICC within the General
Assembly and the ILC. In 1994 the ILC presented a draft ICC statute to the General
Assembly and recommended that “it convene an international conference of plenipo-
tentiaries to study the draft Statute and to conclude a convention on the establishment
of an International Criminal Court”” The ILC Draft Statute was broader than the
original proposal of Trinidad and Tobago, covering the crimes of genocide, aggres-
sion, serious violations of the laws and customs applicable in armed conflict, crimes
against humanity, and treaty crimes (such as drug trafficking, apartheid, and the use of
torture).’9 While the ICC Draft Statute was positively received, many states felt pre-
paratory work was needed before convening the Diplomatic Conference. They created
an Ad Hoc Committee on the Establishment of an International Criminal Court, which
met in 1995.0 A Preparatory Committee was subsequently established, the mandate of
which was to prepare a draft text for ultimate consideration at a Diplomatic Confer-
GA Res. 47/33, UN GAOR, 47th Sess., Supp. No. 49, UN Doc. (vol. 1) A/47/49 (1992) 287.
16 Statute of the International Criminal Tribunal for the Former Yugoslavia, SC Res. 827, 3217th
Mtg., UN Doc. S/RFS/827 (1993).
17 Statute of the International Criminal Tribunal for Rivanda, SC Res. 955, 3453d Mtg., UN Doc.
S/RES/955 (1994).
” Report of the International Lav Commission on its Forty-Sixth Session, Draft Statute for an In-
ternational Criminal Court, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994) 29 at
paras. 23-91 [hereinafter ILC Draft Statute].
9 Ibid., art. 20.
20 Establishment of an International Criminal Court, GA Res. 49/53, UN GAOR, 49th Sess., Supp.
No. 49, UN Doc. A/49/49 (1994) 293.
2001]
R KIRscH & V OOSTERVELD – DIPLOMACYAND THE ICC
1147
ence.”‘ The creation of the Preparatory Committee was an important step, as it repre-
sented a change of attitude from studying the idea of an ICC in the abstract to drafting
the ICC statute in reality. The Preparatory Committee met in six sessions from 1996
to 1998.”
From the early 1990s to 1998, there was much international discussion of the role
of ad hoe tribunals versus the role of a permanent ICC. There was broad recognition
that, even when international justice worked through the establishment of ad hoe tri-
bunals, it remained inherently selective. There are, of course, differences between the
various tribunals established since World War II, but the common denominator is that
their mandates have been limited to specific situations. Many crimes were committed
elsewhere that required justice, but about which nothing was done. By the same token,
major powers and their nationals were largely sheltered from any possibility of baing
subject to the jurisdiction of the ad hoc tribunals. The problem of selectivity also con-
tributed to the perception that the Security Council should not retain exclusive control
over international justice.
It is important to understand this ongoing dialogue, because it affected the even-
tual establishment of the ICC. Most states and commentators agreed that there was a
need to put an end to the long-established culture of impunity demonstrated in too
many areas of the world. They also observed that existing instruments, however ef-
fective in specific situations, must be supplemented by an institution that would better
reflect the needs of the international community as a whole. This led to a momentum,
sustained by an increasing number of states and civil society organizations, strong
enough to make the acceptance of the creation of an ICC irresistible, even on the part
of states originally not supportive of the idea.
This is not to say that the ICC received only support. There were many objections
expressed between 1989 and 1998, which, interestingly, were somewhat different in
tone and type than the ones expressed during the cold war. While debates on sover-
eignty and the crime of aggression continued much as they had developed in the
1950s to 1970s, attention turned to procedural issues. First, there was the concern that
one or another kind of criminal law approach would dominate the ICC. Nationalistic
pride in domestic criminal law led various countries to introduce proposals that
strongly resembled their national procedures. This led to debates, as substantive and
procedural criminal law rules in some countries clashed with rules in other countries.
This raised the related challenge of how nations would reach consensus on issues as
difficult as subject matter jurisdiction, and pretrial, trial, and appeal procedures. Sec-
2 Establishment of an International Criminal Court, GA Res. 50146, UN GAOR, 50h Sess., Supp.
No. 49, UN Doc. A/50149 (vol. 1) (1995) 307.
225 March to 12 April 1996; 12-30 August 1996; 11-21 February 1997; 4-15 August 1997; 1-12
December 1997; 16 March to 3 April 1998.
1148
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
ond, there was concern about the cost of an ICC. While many agreed that there would
be some savings in establishing an ICC as opposed to a series of ad hoc tribunals, they
also feared that the cost of the ICC would be high and that the burden of paying for
the ICC would not be shared fairly. ‘ Third, reservations were expressed about the es-
tablishment of yet another international institution. Though the ICTY and the ICTR
had demonstrated that effective bodies could be created within the framework of the
United Nations, the previous track record for creating ineffective, excessively bureau-
cratic bodies caused supporters to pause.
On 17 July 1998 these obstacles were overcome and the Rome Statute was
adopted. One hundred and twenty states voted for the statute, seven voted against, and
twenty-one abstained.’ The fact that the Rome Statute was adopted at all, after so
many decades of failure and against considerable resistance, is a success in itself. It is
a victory of the vast majority of states and of civil society organizations, who were
convinced that selective justice was not enough, and that it was necessary to have an
independent and permanent court, with a comprehensive mandate.
II. Provisions of the Rome Statute
While the adoption of the Rome Statute was hailed around the world, many asked
whether the statute itself was a success. On the one hand, it met many fundamental
objectives of the vast majority of states and civil society organizations’ present at the
Diplomatic Conference, specifically with respect to the kinds of crimes included
within the statute, the kinds of conflicts these crimes could be charged under, and the
breadth of the protection of victims and witnesses. On the other hand, it also con-
tained compromises. Some felt that certain jurisdictional provisions created loopholes
that could allow war criminals to remain unprosecuted, while others felt that it con-
tained potentially unworkable procedures or inadequate provisions.
The Rome Statute covers the major international crimes: genocide, crimes against
humanity, and war crimes. ‘ These were consistently referred to as “core crimes”
throughout the negotiations, as they were considered to represent the most serious
crimes of concern to the international community as a whole. It was understood that
” This concern was linked to the failure of the United States to pay the majority of its assessed UN
dues.
24 By request of the United States, the votes were not recorded against country names. While the
votes were non-recorded, three states declared publicly that they had voted against the Rome Statute:
China, the United States, and Israel.
” The main civil society organization was the Coalition for an International Criminal Court, a coali-
tion of approximately one thousand NGOs supportive of a strong and effective ICC. See online: Coa-
lition for an International Criminal Court
26Rome Statute, supra note 1, art. 5, lists the crimes, and arts. 6-8 define the crimes.
2001]
R KIRscH & V OOSTERVELD – DIPLOMACYAND THE ICC
1149
inclusion of these three crimes would promote broad acceptance of the ICC by states,
and thereby enhance its effectiveness, strengthening the credibility and moral author-
ity of the Court. In addition, states argued that the magnitude, the occurrence, and the
inevitable international consequences of these crimes necessitated their inclusion.’
The Rome Statute also deals with important humanitarian aspects that past discussions
had tended to overlook. It recognizes rape, sexual slavery, and other forms of sexual
violence as war crimes and crimes against humanity,’ and includes enlisting or using
children under fifteen in any conflict as a war crime.’
The Rome Statute also covers aggression, subject to an agreement on its definition
and on conditions for the exercise of the ICC’s jurisdiction over that crime.’ Negotia-
tions on this crime differed from those on the other three crimes. Aggression, the
subject of decades of discussion within the United Nations, had not resulted in any
definitive resolution.” Despite this history, many states felt that it was important to in-
clude this crime in the Rome Statute. They argued that exclusion of aggression would
represent a step backward from the precedent set at Nuremberg and Tokyo, since both
tribunals had convicted people of this crime after World War II. Before and at the
Diplomatic Conference, no individual proposal on this crime garnered wide, general
support. Near the close of the conference, when it became clear that no broad-based
agreement would be reached on the crime, the non-aligned states proposed to include
the crime of aggression in the statute but to leave the elaboration of a definition to a
later stage. The Court would not exercise jurisdiction over this crime until a definition
was agreed upon.3 This proposal was taken up-and subsequently adopted-in the
final package, with the addition of a provision recognizing the position of a number of
other states, providing that the definition “shall be consistent with the relevant provi-
sions of the Charter of the United Nations. ”
A widely-praised aspect of the Rome Statute is that it covers internal armed con-
flicts. Many states noted before and at the Diplomatic Conference the growth of the
‘ Report of the Ad Hoc Comnittee on the Establisluent of an International Criminal Court, UN
GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995) at paras. 54,55.
id., arts. 8(2)b)(xxvi), 8(2)(e)(vii).
Rome Statute, supra note 1, arts. 7(l)(g), 8(2)(b)(xxii), 8(2)(e)(vi).
‘
“Ibid, art. 5(2).
31See von Hebel, supra note 9 at 25-26.
32There were differing views on the inclusion of this crime within the Rone Statute, the role of the
Security Council, and the definition of the crime.
anendments submitted by the Non-Aligned Movement to the Bureau Proposal, UN Doc.
A/CONF.183/C.I/L.75.
‘ For a more detailed description of the negotiations on this crime, see I-L von Hebcl & D. Robinson,
“Crimes within the Jurisdiction of the Court” in R.S. Lee, ed., The International Criminal Court, The
Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer 1999) 79 at 81-85.
1150
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
number and intensity of internal armed conflicts, so that they represent the majority of
wars in the world today. While a major motivation behind the creation of the Court
was to address these conflicts, it was also the focus of tremendous resistance prior to
and at the Diplomatic Conference.”
Many states argued that the ICC would not operate effectively if it could not deal
adequately with the experiences of all victims and witnesses. They called for a holistic
approach to staffing, elections, procedures, protection, and reparations. With respect
to staffing and elections, many states felt that it was important to recognize the ad-
vances in “gender mainstreaming” undertaken at the United Nations since the 1995
UN World Conference on Women in Beijing, and therefore an article providing for
the “fair representation of female and male judges” was adopted. 6 In addition, many
recognized that the presence of certain expertise amongst at least some of the judges
and staff would assist the Court in undertaking informed prosecutions with respect to
crimes such as rape, slavery, and forced recruitment that particularly target women
and children. To facilitate this, articles providing that “judges with legal expertise on
specific issues, including, but not limited to, violence against women or children”
should be elected to the Court and a similar direction for the staffing of the Court
were included.” The specific needs of the Office of the Prosecutor in dealing with
victims and witnesses of rape and other serious crimes were taken into account, with
an article providing for the appointment of “advisers with legal expertise on specific
issues, including, but not limited to, sexual and gender violence and violence against
children “‘3’ Similarly, an article was included recognizing that the Registrar’s Victims
and Witnesses Unit requires “staff with expertise in trauma related to crimes of sexual
violence”. 9 To complement these articles on the composition and administration of
the Court, the Rome Statute includes a particularly well-developed set of provisions
relating to the participation of victims and the ability of the Court to make orders
against a convicted person for reparations. ‘
In the fundamental area of jurisdiction, the Diplomatic Conference decided that
there would be different ways to trigger the jurisdiction of the Court, exceeding the
expectations of many participants. Proceedings can be initiated by any state party, by
” See e.g. Report of the Preparatory Committee on the Establishment of an International Criminal
Court, vol. 1, UN LAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22 (1996) 20 at para. 78; Report of
the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 27 at
para. 74.
3 Rome Statute, supra note 1, art. 36(8)(a)(iii).
3 IbiL, arts. 36(8)(b), 44(2).
38Ibid, art. 43(9).
Ibid, art. 43(6).
40 IbiL, art. 75.
2001]
R KIRscH & V OOSTERVELD – DIPLOMACYAND THE ICC
1151
the Security Council, and notably, by the prosecutor of the Court.4 The Rome Statute
provides for automatic acceptance of the Court’s jurisdiction by state parties without
any need to make a second decision in the context of specific situations (with the ex-
ception of article 124, discussed below). The ICC is not subordinated to the Security
Council in the way that was anticipated in the draft prepared by the ILC, which would
have prevented the Court from exercising jurisdiction if the Security Council dealt
with a particular matter.” Under the Rome Statute, the Security Council can only de-
lay proceedings in restricted circumstances. The decision by the Security Council is
limited to the possibility of delaying a proceeding, so that any veto to such a proposal,
instead of blocking jurisdiction, means that the case proceeds.” Also, the Rome Stat-
ute does not permit reservations, and there is no statute of limitations.”
The Rome Statute did not meet all the expectations of those who wanted a strong
framework. For example, certain crimes were not included, most notoriously the use
of chemical or biological weapons.”‘ Certain qualifications were added to the intro-
duction to crimes against humanity and war crimes, as well as to specific acts listed
within these crimes.’ Certain defences were accepted that many felt did not represent
the current state of international humanitarian law.f The fact that aggression could not
be included in the same way as other crimes created intense dissatisfaction because
many consider it to be the “crime of all crimes”. The many safeguards introduced
throughout the Rome Statute led some to worry that the process created could slow
down the Court’s functions unduly or become Byzantine. Other provisions have also
raised concerns for the future, such as the amendment provisions.”‘
The most criticized provisions are probably in the area of jurisdiction included
near the end of the Diplomatic Conference. Article 124, giving state parties the possi-
4’ibial, art. 13.
4QLLC Draft Statute, supra note 18, art. 23(3).
43Rome Statute, supra note 1, art. 16.
4/bid, art. 120.
, The exclusion was based on the controversial issue of whether or not to include nuclear weapons
in the list of prohibited weapons. See von Hebel & Robinson, supra note 34 at 113-16.
‘ See ibid at 92-98 on the crimes against humanity chapeau, at 98-103 on the inhumane acts listed
within crimes against humanity, at 107-108 on the war crimes chapeau, and at 103-21 on the acts
listed as war crimes.
‘” See Rome Statute, supra note 1, art. 30, on grounds for excluding criminal responsibility which
underwent very difficult negotiations; eg. there were very divergent views on the extent, if at all, to
allow voluntary intoxication as a defence. The use of self-defence was also strongly debated. As well.
art. 33 on superior orders was discussed at length. See A. Eser, “Article 31” in 0. Triffterer, ed.,
Commentary on the Rome Statute of the International Criminal Court: Observers’Notes, Article by
Article (Baden-Baden: Nomos, 1999) 537; 0. Triffterer, “Article 33″ in ibid., 573.
‘Rome Statute, ibid., art. 121.
1152
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
bility to refuse the jurisdiction of the Court over war crimes committed on their terri-
tory or by their nationals for a period of seven years after entry into force for those
states, is a case in point. Another example is the jurisdictional system generally, under
which, except in cases where the Security Council refers a situation to the Court, the
Court exercises jurisdiction only with the consent of the state of the nationality of the
accused or the state of the territory where the crime was committed.” This, it has been
said, is far from the regime of universal jurisdiction many hoped for, or even a varia-
tion thereof. The two grounds of jurisdiction selected are the classical grounds in in-
ternational criminal law, but this system makes it more difficult for the Court to exer-
cise jurisdiction, particularly in situations that do not have an international element.
That is, of course, until there is widespread ratification of the statute. Those criteria
would then lose their importance because a majority of state parties would meet them.
III. A “Reality Check”: Evaluating the Rome Statute in Context
If you look at the Rome Statute in the abstract, from the perspective of an “ideal”
model, you find elements that could be better. It is useful, however, to have a “reality
check” or two.
First, one must remember that the point of departure is the draft prepared by the
ILC, only four years earlier. One observes that, contrary to the trend in many other
negotiations, in which the original draft is often watered down, the Rome Statute is
much stronger than the ILC draft. For example, under the ILC draft: (1) automatic ju-
risdiction is contemplated only for the crime of genocide, while state parties could
pick and choose for other crimes; (2) the Court could not proceed unless it had the
acceptance of the territorial state, the custodial state, and any other state seeking to
exercise jurisdiction; 2 (3) the Security Council had extensive control over the docket
of the ILC;” and (4) only certain state parties or the Security Council were allowed to
initiate proceedings, not the prosecutor.’ The ILC approach was also reflected in the
many drafts leading to the Diplomatic Conference.
49 Ibid., art. 12(2). Germany had made a proposal based on universal jurisdiction, while the Republic
of Korea, sensing the need for compromise, proposed that a jurisdictional nexus would be required
from one of four states: the territorial state, the state of nationality of the accused or the victim, or the
custodial state. See UN Doc. A/CONF.183/C.1/L.6 (18 June 1998) [mimeo restricted]. The Korean
proposal received wide support, but also strong opposition from some states that wanted a much nar-
rower list.
0 Such as the proposal made by the Republic of Korea.
“,ILC Draft Statute, supra note 18, art. 21.
52 Ibid
” Ibid, art. 23.
SIbid, arts. 23, 25.
2001]
R KIRscH & V OOSTERVELD – DIPLOMACYAND THE ICC
1153
The second factor to consider is that the Rome Statute was adopted by treaty in an
international conference and was, therefore, the result of many years of multilateral
negotiations. Satisfactory as the statute is, critics contend that it could have been
stronger, judging by its provisions alone. We believe this conclusion is correct but in-
complete; it looks at the Rome Statute as an academic product, without taking into ac-
count either the current state of international relations or the current structure of the
international community. Indeed, one cannot isolate the provisions of the statute from
the realities of multilateral diplomacy.
Multilateral negotiations have been described as “a process of mutual persuasion
and adjustment of interests and policies which aims at combining non-identical actor
preferences into a single joint decision'”5 In some ways, this definition presupposes a
conflict of interest, because, without it, there is nothing about which to negotiate ‘ It
also presupposes that complementary interests exist-that there is something for
which to negotiate.” This duality informs every decision necessary to the negotiation
process. The complicating factor is that common ground not only needs to be found
among hundreds of states, but also between groups of states.
All of this was true in the context of the ICC. Over the years, several negotiating
blocs emerged sharing a common theory or position; for example, the Like-Minded
group, the Arab group, the Non-aligned Movement, the European Union, and the
Southern African Development Community. The formation of these groups assisted in
the resolution of many difficult issues, as hundreds of different state approaches were
reduced to a handful of proposals, and representatives of each proposal worked vth
the others to come up with an acceptable result. When evaluating the Rome Statute,
one must realistically examine the outcome based on the multilateral negotiation
model, which achieves resolution of issues through joint search for common ground.
If states were not willing to resolve the various contentious issues in the ICC statute
by looking for common ground, the result would have been a stalemate. Either the
Rome Statute would never have been adopted, or the statute would only have been
adopted and supported by certain groups, setting the stage for future failure and un-
dermining the ultimate goal of universal application. In the ICC negotiations, the vast
majority of states were committed to finding the common ground, and in doing so, re-
specting the progress made over the past decade in international humanitarian law.
Another aspect of the multilateral process to understand is the interplay between
politics and law, which can be both predictable and unpredictable. The domestic po-
.See V. Rittberger, “International Conference Diplomacy: A Conspectus” in MA. Boisard & ENM.
Chossudovsky, eds., Multilateral Diplomacy, The United Nations System at Geneva: A Wbrhng
Guide, 2d rev. ed. (The Hague: Kluwer, 1998) 15 at 17.
slbid at 18.
-7bid
1154
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
litical concerns of a country may shape its approach to international law. Take, for ex-
ample, the discussions on procedures to be adopted by the Court. Some countries in-
troduced proposals that would, in essence, recreate certain national procedures within
the ICC. Sometimes, this approach was taken for political reasons, nationalistic
pride, 8 or for legal reasons, because there was a lacuna in international law. Some-
times, the reasons were mixed political-legal. The search for common ground must
address both legal and political positions, as the provisions adopted on the exercise of
jurisdiction best illustrate.”
The third “reality check” to keep in mind is the need for support of the Rome
Statute once adopted. The challenge for those supporting the Court was how to create
a treaty that will enjoy support as wide as possible, and therefore, will result in strong
international co-operation. The lack of such support and co-operation would severely
hamper the operation and success of the Court. In other words, the ICC necessarily
derives its strength not only from the substance of its provisions, but also from the
support it enjoys. An equilibrium had to be achieved between two undesirable ex-
tremes: on the one hand, a statute consisting of weak provisions that no state would
oppose but which would make the ICC pointless, and on the other, a statute consisting
of highly progressive provisions adopted by only a handful of “virtuous states”. Po-
litically, either of these alternatives would have spelled the end of the ICC project. It
was thus necessary to find a balance.
In most parts of the Rome Statute, there is no contradiction between strength and
support. The negotiating process was aimed at developing good provisions that would
enjoy wide support, including reconciliation of different legal systems, and it worked
in most areas. In some cases, however, choices had to be made, because the negotiat-
ing process did not result in solutions. This was particularly the case of certain ele-
ments of Part 2 of the Rome Statute dealing with crimes and jurisdiction. Those
choices took two forms: mostly, recommendations by the Bureau of the Committee of
the Whole endorsed by the conference, and voting on the last day.
Many choices made by the bureau simply followed the overwhelming trends
prevalent at the conference: an independent prosecutor, automatic jurisdiction, and in-
clusion of internal armed conflicts. Other choices were made specifically to increase
support for the Court, such as the exclusion of certain weapons from the list of pro-
hibited weapons, despite a widespread view that they were prohibited under custom-
ary humanitarian law, and allowing states to refuse the Court’s jurisdiction on war
crimes for seven years. Finally, taking account of numerous divergent views required
58 This is a common issue arising in multilateral negotiations. See B. Chisholm, “How to Think and
Act Internationally” in Boisard & Chossudovsky, supra note 55, 107 at 107.
59See e.g. Rome Statute, supra note 1, arts. 12, 16.
2001]
R KIRSCH & V OOSTERVELD – DIPLOMACYAND THE ICC
1155
difficult choices. The sum of these choices is sometimes said to have resulted in a
weaker court. This raises some questions: a weaker court than what? Than a non-
existent abstract model? More fundamentally, is the ICC, with its classical jurisdiction
regime that still enjoys widespread support in the international community, actually
weaker than a court that would have universal jurisdiction but whose support would
be restricted to a limited number of states, excluding entire regions?
Delegations knew well the limits beyond which they were not prepared to go for
the sake of increasing support, and this showed in the way that proposals made on the
last day of the Diplomatic Conference were rejected resoundingly. Tvo proposals
from the same state would have made nuclear weapons illegal and would have re-
moved any reference to the role of the Security Council from the Rome Statute.”
Those proposals seemed to be aimed deliberately at killing the statute and the Court.
Another proposal would have made the jurisdictional regime even more restrictive, by
requiring the consent of the state of which the accused is a national before the Court
could exercise jurisdiction whenever alleged offenders were “officials or agents of a
State”,’ It is interesting to note that states with fundamentally opposing views and in-
terests, in many respects, made these proposals. Their common preference was for
either a court with restricted powers and a narrow mandate, or no court at all. The
conference ultimately rejected this.
The net result was the Rome Statute, supported by an overwhelming majority of
states. Even in Rome, this was seen as a tremendous success, though it did not achieve
complete universality, and the opposition of some states, including the United States,
was a concern.
IV. Post-Rome Developments: Growing Support for the ICC
The task of the Rome Diplomatic Conference was to adopt the statute of an ICC.
For the Court to function properly, however, it required the preparation of a number of
additional instruments, which the Diplomatic Conference clearly was not in a position
‘ India put forward two amendments at the final meeting of the Committee of the Whole, the fust
to add as a war crime in international armed conflict “Employing weapons of mass destruction, i.e.
nuclear, chemical and biological weapons.” Its second amendment would have deleted arts. 16, 13(b),
and the words “In the case of article 13(a) or (c)” in art. 12, thereby eliminating Security Council in-
volvement in the ICC. For the text of the amendments proposed, see A/CONF.1831C.liL94, L95.
Norway, supported by Chile and Malawi, succeeded by a vote of 114 in favour, 16 against, and 20 ab-
stentions in a no-action motion called on these proposed amendments.
1 For the text of the proposal see A/CONF183/C.1/L.90. Nonay again called for a no-action mo-
tion, supported by Sweden and Denmark, which succeeded in a vote of 113 in favour, 17 against, and
25 abstentions. The United States subsequently called for a non-recorded vote on the statute in the fi-
nal plenary of the conference.
1156
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
to do. For this reason, the Final Act of the Rome Conference provided for the creation
of a Preparatory Commission (“PrepCom”) to ensure a smooth and quick operational
transition once the ICC statute enters into force.62 The PrepCom makes recommenda-
tions for consideration and adoption by the Assembly of States Parties, which will
have decision-making capacity. Once the Assembly of States Parties comes into be-
ing, the PrepCom will cease to exist.’
Under the Final Act, Resolution F, the PrepCom will draft a number of instruments:
(a) Rules of Procedure and Evidence;
(b) Elements of Crimes;
(c) A relationship agreement between the Court and the United Nations;
(d) Basic principles governing a headquarters agreement to be negotiated be-
tween the Court and the host country;
(e) Financial regulations and rules;
(f) An agreement on the privileges and immunities of the Court;
(g) A budget for the first financial year;
(h) The rules of procedure of the Assembly of States Parties.
In addition to its mandate under Resolution F, the General Assembly also re-
quested that the PrepCom “discuss ways to enhance the effectiveness and acceptance
of the Court.’ On 30 June 2000, a deadline set in Resolution F, the PrepCom com-
pleted and adopted by general agreement two essential instruments: the Elements of
Crimes (“EOC”) and the Rules of Procedure and Evidence (“RPE”). The EOC are de-
signed to elaborate on crimes listed in the Rome Statute for the guidance of judges.
The RPE articulate the procedures of the ICC with more precision, dealing with such
matters as composition and administration of the Court; investigation, trial proceed-
ings, and appeals; penalties, co-operation of states with the Court, and enforcement of
judgments; and jurisdiction, admissibility, and applicable law.
The adoption of the EOC and RPE by consensus was a remarkable achievement.
This development means two things. With respect to the EOC, it reflects the fact that
62 See Resolution F in Final Act of the United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of an International Criminal Court, UN Doc. A/CONE.183/10 (17 July 1998) at
8 [mimeo, hereinafter FinalAct, Resohtion 71.
63 “The Commission shall remain in existence until the conclusion of the first meeting of the As-
sembly of States Parties” (ibiL at para. 8).
‘ See e.g. UN GA Res. A/55/155 (19 January 2001) at para. 4.
2001]
R KRSCH & V OOSTERVELD – DIPLOMACYAND THE ICC
1157
there is now general agreement on the crimes themselves, which was not necessarily
the case at the end of the Diplomatic Conference; indeed, the PrepCom solved some
problems left over after Rome, without deviating from the statute. More generally,
overall consensus shows that states made extraordinary efforts to reach general
agreement on difficult matters, such as the introduction to crimes against humanity
and a rule concerning the request for surrender in cases requiring the consent of the
sending state under an international agreement, designed to accommodate the United
States.
The PrepCom has worked co-operatively so far, much better than the Diplomatic
Conference, despite all the difficulties it encountered. This is demonstrated by the
progress made on the new instruments taken up at the November-December 2000 and
February-March 2001 sessions: the Relationship Agreement between the Court and the
UN, the Finnwia Regulations and Rules, the Agreement on the Privileges and Immuni-
ties of the Court, and the Rules of Procedure for the Assembly of States Parties.
Underlying this positive situation is the simple fact that the statute is more widely
accepted today than at the end of the Rome Conference. In particular, a number of
states that abstained in Rome or even voted against the statute have signed, and some
of those that abstained have even ratified. They defend the text of the Rome Statute as
an achievement that belongs to all states and refuse to alter it for any reason.
Two factors explain this change. First, most states now understand the importance
of the establishment of the ICC as a tremendous historical achievement and the indi-
vidual and collective benefits of its creation. Second, the Rome Statute and the Court
are also better understood, particularly the fact that the Court has been conceived to
function as a fair and effective judicial, not political, body. Third, there is no question
that the Court will come into existence in the near future. The focus, therefore, has
gradually shifted from theoretical discussions about past events to a thorough consid-
eration of the Rome Statute and subsidiary instruments, its ratification, and imple-
mentation of its provisions.
The Rome Statute received considerable support in Rome, thanks to the care that
was taken to accommodate and reconcile different positions, though some opposition
6’Preparatory Commission for the International Criminal Court, Rules of Procedure and Evidence,
UN Doc. PCNICC20001NF/3/Add.1 (2000), r. 195, online: United Nations
63This does not mean that the Court is yet universally accepted. In particular, the U.S. remains con-
cerned about the possibility that U.S. “agents of the state”, Le. soldiers and officials, might be brought
before the ICC. This is a difficult problem to resolve because a blanket exception of that kind would
also give exemption to most offenders. This concern, and the broader concern of possible political use
of the Court, are also seen by many as being unfounded because of the principle of complementarity
and the many safeguards that have been built into the statute and the supplementary instruments.
1158
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
remained. Since then, the PrepCom’s work has confirmed the judicial, non-political
character of the ICC and has developed a series of subsidiary instruments taking ac-
count of, again, a wide variety of views. This has further increased support for the
Court, including many states that initially had strong reservations. Even though ac-
ceptance is not yet universal, this represents considerable progress in two years, and
greatly increases the potential effectiveness of the Court, which needs widespread ac-
ceptance to be effective.
Second, it is fair to conclude that, even though the vast majority of states consider
additional support for the Rome Statute an important objective, they do not accept the
pursuit of support at any price. This was particularly visible at the June 2000 session
of the PrepCom, and subsequently in the debate in the Sixth Committee of the Gen-
eral Assembly on the ICC. States have emphasized time and again the need to pre-
serve the integrity of the Rome Statute, and more specifically, the need to ensure that
the jurisdictional system is not weakened. It is clear that the question of whether the
statute is a success must be considered from both perspectives together, not separately.
Conclusion: A New Institution for the Twenty-First Century
By the expiration of the deadline of 31 December 2000, the ICC statute had re-
ceived 139 signatures, far more than the number of positive votes in Rome. Those
signatures should be treated seriously. The Rome Statute is not a treaty that states sign
lightly. States know that becoming a party to the statute normally requires significant
changes to their domestic legal system. Signature in itself entails certain obligations”l
and reflects a political commitment to support the Court. It is important to note that
the signatures come from all regions of the world and countries representing all legal
traditions.
As for ratifications, there are now thirty-six.’ Concern has been expressed in the
past over the relatively slow pace of ratifications. One must keep in mind, however,
that before ratifying, most states must ensure that their domestic legislation will en-
able them to comply with their international obligations under the statute. That in it-
self is a complex process which often involves amending their constitution, notably in
the area of immunities, extradition of nationals, and length of imprisonment. Since
many of these processes are taking place simultaneously, there is likely to come a
time when large numbers of ratifications occur together. There were only seven ratifi-
6′ Signature obliges states not to defeat the object and purpose of the treaty. See Vienna Convention
on the Lav of Treaties, 23 May 1969, 1155 U.N.T.S. 331, art. 18 (entered into force 27 January
1980).
6′ The Netherlands became the thirty-seventh state party to ratify on 17 July 2001. For an updated
list of ratifications see online: Coalition for an International Criminal Court
2001]
R KRSCH & V OOSTERVELD – DIPLOMACYAND THE ICC
1159
cations at the end of the March 2000 session of the PrepCom, almost two years after
the Diplomatic Conference. This number more than tripled in only a few months.
There is clearly a strong momentum towards entry into force, and a genuine commit-
ment by states to pursue the process to completion. Today, no one talks of ten or fif-
teen years before entry into force, as was commonplace immediately after the Diplo-
matic Conference. The pessimists think of three years, the optimists of the end of
2001.
It is necessary to recognize the positive domestic consequences of the principle of
complementarity. The Court is complementary to national judicial systems, meaning
that it only takes jurisdiction when states are unvilling or unable to bring transgres-
sors to justice.’ This is different from the two ad hoe tribunals, which have priority ju-
risdiction over domestic systems. States that decide to take advantage of complemen-
tarity undergo an important process of internal evaluation of laws and policies on
prosecuting those who commit genocide, crimes against humanity, and war crimes.
This examination often involves policy-makers, officials, legislators, politicians, and
members of civil society, all of whom must confront the persistent problem of impu-
nity.70 Simply put, states do not want to be in a position where the Court could deter-
mine, to borrow the terms of the statute, that they are “unwilling or unable genuinely
to carry out an investigation or prosecution.” Before the ICC even begins its first in-
vestigation, the Rome Statute will have had a significant educational and inspirational
impact-in addition to spurring the creation of a worldwide network of domestic war
crimes law.
Many people evaluate the ICC by discussing whether it has been “weakened” by
this or that provision or omission. This kind of comment, while intuitively under-
standable, reflects a perspective that is historically inaccurate. By definition, the Court
could not be “weakened”. The point of departure was not a substantively strong court
which regrettably got eroded, but a non-existent court that had to be built out of
nothing, against strong resistance and concerns. The only instrument that could serve
as a point of reference was the ILC Draft Statute, and from that perspective, the Rome
Statute is unquestionably stronger. In this respect, we should view the Rome Statute as
an incredible success for diplomacy. It is not often that the end result of multilateral
negotiations is much stronger than the original proposal.
In addition, we should view the Rome Statute through the lens of international
relations. The ICC will never be a perfect court. A perfect court would be a strong
69 Rome Statute, supra note 1, art. 17.
‘ See D. Robinson, “The Rome Statute and its Impact on National Law” in A. Cassese ed., Inter-
national Criminal Law: A Conunentary on the Rome Statute for an International Criminal Court
[forthcoming, Oxford University Press].
“Rome Statute, supra note 1, art. 17.
1160
MCGILL LAw JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
court with universal support. This does not reflect the reality of the world today. We
still face a world composed of states dealing with each other bilaterally and multi-
laterally, which has a corresponding impact on what can realistically be achieved in
negotiations. Right or wrong, the balance found in the Rome Statute is the direct result
of the decision taken to adopt the statute by treaty. That approach had necessary con-
sequences. The interesting aspect is that, despite the drawbacks of treaty negotiation,
the end result is a document that received increasing support over time and has a
positive influence on the domestic application of international humanitarian law.
In sum, the substantive negotiations in Rome produced what was probably the
best balance achievable. Those results have since been strengthened through work at
the PrepCon, the signature and ratification process, the development of domestic
legislation by states, and more generally, widespread efforts on the part of many, in-
cluding civil society organizations, to sensitize governments and institutions not only
to the Court, but also to the need to replace a pervasive culture of impunity with one
of accountability. The results of that more general ddmarche can be seen in many ar-
eas, from the case of General Pinochet and the indictment of ex-President Milosevic
to the proposed establishment of additional tribunals in Sierra Leone and Cambodia.
The work is not over, and success so far can and should be built upon further in
different forms: continuation of positive work at the PrepCom, widespread accessions,
strengthening of national legislation as a result of complementarity. Later, there will
be a need to demonstrate that the Court functions fairly and effectively, creating both
increased acceptance of the institution and a deterrent effect. Later still, hopefully,
some of the provisions of the Rome Statute can be reinforced through the Review
Conference. Still, we can be satisfied with the creation of an institution of truly his-
toric importance, something difficult to have been imagined, let alone achieved, only a
few years ago.
