THE ROME STATUTE IN COMPARATIVE PERSPECTIVE Kevin Jon Heller1 I. Introduction A. Historical Sketch The Rome Statute of the International Criminal Court (ICC) entered into force on 1 July 2002, less than four years after 120 countries voted in favor of its adoption.2 The Statute has been described as a “major step forward for substantive international criminal law,”3 and with good reason: unlike the minimalist statutes of earlier international courts, such as the Nuremberg Tribunal and the International Criminal Tribunals for the former Yugoslavia and Rwanda, the Rome Statute provides detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility. The Statute thus represents the international community’s most ambitious attempt to create a special and general part of international criminal law. Although one of the founders of the International Committee for the Red Cross proposed creating a permanent international court as early as 1872, the international community did not take the idea seriously until the end of World War I. In 1920, following aborted calls to create temporary international courts to prosecute those responsible for committing war crimes during the war – including Kaiser Wilhelm II himself – the Advisory Committee of Jurists that was appointed by the League of Nations to create the Permanent International Court of Justice proposed establishing a “High Court of International Justice” that would “be competent to try crimes constituting a breach of international public order or against the universal law of nations.”4 That court was never created, but the interest in international criminal justice it generated ultimately led the League of Nations to adopt a Convention pour la Creation d’une 1 Senior Lecturer, Melbourne Law School. J.D. 1996, Stanford Law School; M.A. 1993, Duke University, M.A. 1991, New School for Social Research. 2 20 countries abstained and seven voted aGainst the treaty: the US, Libya, Israel, Iraq, China, Syria, and the Sudan. ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 330 (2d ed. 2008). 3 GERHARD WERLE, PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 24 (2005). 4 See CASSESE, supra note 2, at 319. Electronic copy available at: http://ssrn.com/abstract=1304539 2008] Rome Statute in Comparative Perspective 2 Cour Penale Internationale in 1937. Unfortunately, although 13 states signed the Convention, it never went into effect.5 The international community renewed its efforts to create a permanent international court after the International Military Tribunal at Nuremberg (IMT) convicted nineteen high‐ranking Nazis of various war crimes, crimes against humanity, and crimes against peace (now known as crimes of aggression). In 1947, the United Nations General Assembly asked the International Law Commission to draft a Code of Offences Against the Peace and Security of Mankind based on the Nuremberg Charter.6 The following year, the General Assembly adopted the Convention for Prevention and Punishment of the Crime of Genocide, which established genocide as an independent international crime – the IMT had considered it a crime against humanity – and requested the ILC to study the desirability and feasibility of creating the “international penal tribunal” contemplated by Article VI of the Convention.7 The ILC made substantial progress on the two projects over the next few years. In 1951, following a favorable report by the ILC, a General Assembly subcommittee submitted a Draft Statute for an International Criminal Court.8 A second draft of the Statute was submitted to the General Assembly in 1953, in response to comments by Member States. The ILC also submitted a Draft Code of Offences that year.9 The General Assembly quickly suspended work on both the Draft Statute and the Draft Code, however, ostensibly because of concerns about how to define the crime of aggression.10 The General Assembly finally adopted a definition of aggression in 1974,11 and in 1981 the ILC resumed work on the Draft Code of Offences.12 Nevertheless, the Assembly did not ask the ILC to resume work on the Draft Statute until 1989, when Trinidad and Tobago suggested creating a specialized international court to deal with drug trafficking.13 The ILC submitted a final version of the Draft Statute in 1994; in addition to dealing with various organizational and 5 WERLE, supra note 3, at 18‐19. 6 CASSESE, supra note 2, at 323. 7 Study by the International Law commission of the Question of an International Criminal Jurisdiction, GA Res. 216 B (III). 8 Report of the Committee on International Criminal Court Jurisdiction, UN Doc. A/2135 (1952). 9 Report of the Committee on International Criminal Court Jurisdiction, UN Doc. A/2645 (1954). 10 GA Res. 897(IX) 1954. 11 GA Res. 3314 (XXIX) (1974). 12 See GA Res. 36/106 (1981). 13 GA Res. 44/89 (1989). Electronic copy available at: http://ssrn.com/abstract=1304539 2008] Rome Statute in Comparative Perspective 3 procedural matters, the Statute gave the contemplated court jurisdiction over “treaty crimes” like drug trafficking and terrorism as well as over the so‐called “core crimes” of international criminal law: war crimes, crimes against humanity, genocide, and aggression.14 Despite the completion of the Draft Statute, many states were not yet ready to conclude a treaty creating a permanent international criminal court. The General Assembly thus convened an Ad Hoc Committee to further the ILC’s work.15 In 1995, the Committee submitted its report, which contained both procedural and substantive provisions – thereby putting an end to the ILC’s 50‐year tradition of dividing the two into a Draft Statute and a Draft Code.16 That report led the General Assembly to create a Preparatory Committee on the Establishment of an International Criminal Court, which produced – after a number of revisions – a final Draft ICC Statute in 1998.17 In addition to coming from very different legal systems, the majority of the delegates at PrepCom, as it is known, were diplomats “who lacked expertise in international criminal law, comparative criminal law, or comparative criminal procedure.” Indeed, most of the delegates “had no criminal practical experience of any kind.”18 The Draft ICC Statute, which contained 116 different articles, 1,400 bracketed additions, and nearly 200 options,19 served as the basis for the five‐week Diplomatic Conference that was held in Rome in 1998. More than 160 states participated in the Conference. The final provisions of the Rome Statute were adopted “by general agreement”; votes on the different proposals were not taken. Procedural issues proved the most difficult to resolve, particularly concerning the relationship between the Security Council and the Court, the scope of the Court’s jurisdiction over nationals of non‐party states, and whether the Prosecutor would be able to initiate investigations proprio motu.20 Substantive issues, by contrast, proved relatively uncontroversial – especially once the Diplomatic Conference agreed to exclude treaty crimes from the Court’s jurisdiction. The one 14 See ROBERT CRYER ET AL., AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW AND PROCEDURE 120 (2007). 15 UN Doc. A/RES/49/53 (1994). 16 See WERLE, supra note 3, at 20. 17 See, e.g., UN Doc. A/CONF.183/2/Add.1 (1998). 18 M. Cherif Bassiouni, Negotiating the Treaty of Rome on the EstaBlishment of an International Criminal Court, 32 CORNELL INT’L L. J. 443, 460 (1999). 19 WERLE, supra note 3, at 21. 20 See WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT 20 (3d ed. 2007). 2008] Rome Statute in Comparative Perspective 4 exception was the crime of aggression: like the ILC before it, the Conference was unable to agree on a definition of the crime. States thus compromised, including aggression within the Court’s jurisdiction, but conditioning that jurisdiction on the Assembly of States Parties eventually adopting a workable definition.21 On 17 July 1998, the Diplomatic Conference met to approve the Rome Statute. 120 states voted in favor of the Statute, 21 states abstained, and 7 states voted against: the US, China, Israel, Iraq, Libya, Yemen, and Qatar.22 The Rome Statute then entered into force on 1 July 2002, a few months after it received its required 60th ratification.23 As of this writing, 108 states are members of the ICC: 30 from Africa, 24 from the Americas, 13 from Asia and the Pacific Islands, 40 from Europe and Central Asia, and 1 from the Middle East. B. Jurisdiction 1. Subject­Matter Jurisdiction The ICC has subject‐matter jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and aggression.24 The Rome Statute variously describes these crimes as “the most serious crimes of concern to the international community as a whole,” “unimaginable atrocities that deeply shock the conscience of humanity,” and “international crimes.” The latter, less prosaic, expression is the most accurate, because it foregrounds the fact that the four crimes entail individual criminal responsibility under international law itself; their status under domestic criminal law is irrelevant.25 As the IMT said in rejecting the argument that international law only binds States, “crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced… [I]ndividuals have international duties which transcend the national obligations of obedience imposed by the individual state.”26 As reflected in the ILC’s 1994 Draft Statute, many states advocated including “treaty crimes” in the Court’s jurisdiction, particularly terrorism and drug trafficking. The Diplomatic Conference ultimately 21 See WERLE, supra note 3, at 21. 22 Id. at 22. 23 See Rome Statute, art. 126 [hereinafter “RS”]. 24 Id., art. 5. 25 See, e.g., WERLE, supra note 3, at 25. 26 JudGment of the International Military Tribunal, 41 AM.