Part 1 Establishment of the Court: Institution de la Cour, Art.1 The Court/La Cour
William A. Schabas
William A Schabas
- Evidence — Elements of crimes — Procedure
An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
Il est créé une Cour pénale internationale (« la Cour ») en tant qu’institution permanente, qui peut exercer sa compétence à l’égard des personnes pour les crimes les plus graves ayant une portée internationale, au sens du présent Statut. Elle est complémentaire des juridictions pénales nationales. Sa compétence et son fonctionnement sont régis par les dispositions du présent Statut.
It seems almost customary for international criminal tribunal statutes to begin with a provision like article 1 of the Rome Statute. The London Agreement creating the Nuremberg Tribunal starts as follows: ‘Article 1. There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.’1 It is the same for the Tokyo Tribunal: ‘Article 1. Tribunal Established. The International Military Tribunal for the Far East is hereby established for the just and prompt trial and punishment of the major war criminals in the Far East. The permanent seat of the Tribunal is in Tokyo.’2
In a sense, article 1 might well have been omitted from the Rome Statute, as it adds little or nothing in terms of legal consequences. It declares that the Court is established, although this is manifestly the import of the treaty as a whole, and this statement of the obvious is really superfluous. Article 1 also states that it is a permanent institution, a fact that logically flows from its creation and the absence of any reference to the contrary, something moreover affirmed in the Preamble.3 That it may exercise its jurisdiction over the most serious crimes of international concern, and that it is complementary to national criminal jurisdictions, are ideas expressed both in the Preamble and in other substantive provisions of the Statute.4 The final sentence, affirming that the jurisdiction and functioning of the Court shall be governed by the provisions of the Statute, also seems entirely redundant.
References(p. 62) Drafting of the Provision
Article 1 of Special Rapporteur Doudou Thiam’s initial draft, presented to the International Law Commission in 1990, contained two options:
There is established an International Criminal Court to try natural persons accused of crimes referred to in the Code of Crimes against the Peace and Security of Mankind.
Noting that the concept of international crime was broader than that of crimes against the peace and security of mankind, Thiam indicated a preference for Version B. Otherwise, it might be necessary to establish two international criminal jurisdictions, ‘which would lead to complications’.5 Thiam returned to the Commission three years later with a new draft: ‘Article 1. Establishment of the Court. There is established an International Criminal Court whose jurisdiction and functioning shall be governed by the provisions of the present Statute.’ Thiam explained that the adjective ‘criminal’ was used purposely in preference to the adjective ‘penal’, ‘in order to make it very clear that the court is concerned with crimes and not with ordinary offences’.6
The Working Group of the International Law Commission initially changed ‘Court’ to ‘Tribunal’7 before returning to ‘Court’ in the final draft statute adopted in 1994. The previous year, the UN Security Council had chosen to designate the ad hoc judicial body it established for the Balkans as a ‘Tribunal’. Explaining the choice of nomenclature, the Commission’s commentary states:
The question of the title to be given to the jurisdictional structure was the subject of some debate. In the draft articles proposed by the Working Group at the forty-fifth session in 1993, the entity as a whole was referred to as the ‘tribunal’, with the term ‘court’ reserved for the judicial organs. However some members thought that it was unusual to have a ‘court’ within a ‘tribunal’, and others preferred not to use the word ‘tribunal’ at all in relation to a permanent body intended to exercise criminal jurisdiction. The Commission agreed that the term ‘court’ should be used to refer to the entity as a whole, and that where specific functions are intended to be exercised by particular organs (such as the Presidency, the Procuracy, the Registry), this would be specifically stated. References to ‘the court’ as a whole are made in a number of articles: these confer powers, functions or obligations on all the organs of the court as described in article 5, or in the case of judicial powers, on the Presidency, a trial chamber, or the appeals chamber, as the case may be …8
Suggestions to introduce other statements of principle into article 1 began to emerge in the early sessions of the Preparatory Committee. Entitling article 1 a ‘declaratory provision’, a UK proposal suggested reference to the principle of complementarity be included: ‘There is established an International Criminal Court (“the Court”) which shall be complementary to national criminal justice systems. Its jurisdiction and functions shall be governed by the provisions of this Statute.’9 A still more elaborate formulation, adding the reference to References(p. 63) ‘most serious crimes’, was proposed by Norway in the concluding session of the Preparatory Committee,10 and became the text in the final draft of the Preparatory Committee:
There is established an International Criminal Court (‘the Court’), which shall have the power to bring persons to justice for the most serious crimes of international concern, and which shall be complementary to national criminal jurisdictions. Its jurisdiction and functioning shall be governed by the provisions of this Statute.
A nota bene accompanied the provision: ‘N.B. Attention should be paid to using the term “Court” throughout the Statute in a consistent manner.’11
There were no square brackets in the Preparatory Committee draft of article 1, indicating consensus had been reached, as the Coordinator of Part 9 explained to the Committee of the Whole at the Rome Conference:
Article 1, a standard provision, differed from that contained in the draft Statute prepared by the International Law Commission to the extent that, on a Norwegian proposal and following informal consultations and agreement, it included a very general reference to the concept of complementarity, in order to meet certain concerns about the symbolism and image of the very first article of the draft Statute.12
The reference to ‘persons’ provoked debate,13 because the issue of jurisdiction over corporate entities had yet to be resolved.14 A suggestion from Jordan that the words ‘and national’ be introduced before ‘concern’15 did not attract support.16
Cuba suggested that the phrase ‘the most serious crimes of international concern’ be replaced by ‘the crimes laid down in the Statute’ or ‘defined in the Statute’.17 Its proposal reflected a concern about vagueness that found some support,18 and that led to addition of the words ‘as referred to in this statute’ after the phrase ‘the most serious crimes of international concern’.19 The text was sent to the Drafting Committee, which contributed the reference to ‘a permanent institution’, a phrase that had been transplanted from article 4 of the Preparatory Committee draft.20 The Drafting Committee noted that the text it had adopted might be further modified in light of discussions about corporate entities and complementarity,21 although no subsequent changes were made.
Analysis and Interpretation
Article 1 is a sixty-word digest of the salient features of the International Criminal Court. As Abdoul Aziz Mbaye and Sam Shoamenesh have written, ‘l’article 1 constitute une (p. 64) présentation synthétique des principales charactéristiques de la Cour pénale internationale: sa permanence, sa complémentarité et sa portée limitée aux crime reconnus par son Statut’.22 Article 1 of the Rome Statute establishes the Court as a permanent institution with the ‘power’ to exercise jurisdiction over the most serious crimes of international concern. It is to be complementary to national criminal jurisdictions. The provision has not been subject to any significant consideration in the case law of the Court.23
Establishment of the Court
Article 1 begins with the words: ‘An International Criminal Court (“the Court”) is hereby established.’ Although debate on the matter had been resolved long before the Rome Conference, the sentence reflects an issue about the mode of creation of the institution. The first ‘international’ tribunal was proposed in the Treaty of Versailles, where it was labelled a ‘special tribunal’ to be composed of five judges appointed by the five victorious ‘Powers’.24 B. V. A. Röling, a distinguished Dutch jurist and judge of the Tokyo Tribunal, said that the ‘international military tribunals’ which sat in Nuremberg and Tokyo were ‘multinational tribunals’ and not ‘international tribunals in the strict sense’.25 At Nuremberg, as the Tribunal itself explained, the victorious Allies had ‘done together what any one of them might have done singly’.26 The first departure from the treaty-based model for international tribunals came when the UN Security Council, acting in some sense as a world government and intervening in what had started as an internal conflict within a sovereign State, established the International Criminal Tribunal for the former Yugoslavia.27 Professor Theodor Meron, one of the pre-eminent academic observers of the process, later to become the institution’s President, wrote that the Yugoslavia Tribunal was the ‘first truly international criminal tribunal’.28
Against this backdrop the International Law Commission, in 1993 and 1994, considered the mode of creation of the proposed international criminal court. Some members believed that the institution should be set up by way of multilateral convention, under the auspices of the United Nations, while others argued that the Security Council had the necessary authority.29 By the time the Ad Hoc Committee met, in 1995, that the Court would be established by treaty was very widely accepted.30 When the Preparatory Committee began meeting, the principle was said to have ‘general support’.31
References(p. 65) The ‘Court’
The first sentence of article 1 proposes the term ‘Court’ as the abbreviation for the International Criminal Court. The term is not always used consistently, however. Article 34 describes the ‘organs of the Court’, that is, the Presidency, the Chambers, the Office of the Prosecutor, and the Registry. Article 45(4) speaks, in the same sentence, of ‘the Court’ and the ‘organs of the Court’, as if there is a distinction between the two expressions. In some provisions, it is clear that the term ‘Court’ refers to the institution as a whole, that is, to all of its constituent organs. Article 2 says ‘the Court shall be brought into relationship with the United Nations’, referring to the institution as a whole. Similarly, it also speaks of ‘the seat’ of the Court. Article 16 refers to a Security Council request addressed to ‘the Court’. The two resolutions adopted by the Security Council pursuant to article 16 direct their request to ‘the ICC’.32 The Preparatory Committee draft contained two footnotes, stating that the term ‘Court’ was understood to include its constituent organs, including the Prosecutor.33 This nuance disappeared in the final version of the Statute. The Rules of Procedure and Evidence devote an important section to ‘Composition and administration of the Court’;34 here, the reference is to all of its organs.
In several provisions of the Rome Statute, the term ‘Court’ is used to refer to the Chambers, or the judges. Article 19(4) speaks of ‘leave of the Court’, clearly implying the Chambers. Article 19(8) refers to ‘a ruling by the Court’ and ‘authority from the Court’.35 Article 15(4) refers to ‘determinations by the Court’ about jurisdiction and admissibility, and obviously means the Chambers.36 Article 17(1) speaks of determinations of admissibility by ‘the Court’, again implying the Chambers. Similarly, the Rules of Procedure and Evidence also use this meaning, when, for example, they declare that: ‘The Court shall transmit a request or application received under sub-rule 2 to the Prosecutor.’37 Article 68(1) requires ‘the Court’ to take ‘appropriate measures, for the protection of victims and witnesses’. While it is agreed that this includes the Prosecutor as well as the other organs, when he tried to undertake the preventive relocation of witnesses the Pre-Trial Chamber intervened, saying this was the responsibility of the Registry.38
The Regulations of the Court specify, in their definitional provision, that ‘ “Court” refers to the International Criminal Court’,39 but this does not in practice provide any clarity on the differing uses of the term. In some cases, the Statute refers to ‘the Court’, but the Rules of Procedure and Evidence entrust the relevant function to the Presidency.40
References(p. 66) Most Serious Crimes
The expression ‘most serious crimes’ appears in several places in the Rome Statute. There are two preambular references to ‘the most serious crimes of concern to the international community as a whole’. It is also employed in article 5(1). Curiously, the phrase used in article 1 is ‘most serious crimes of international concern’. It does not seem that any difference in meaning is intended.
The expression ‘most serious crimes of concern to the international community as a whole’ is developed in article 5(1). The text lists the four ‘core crimes’ of the Rome Statute. However, the Final Act of the Rome Conference acknowledged that there might be a place for additional crimes, in particular terrorism and international drug trafficking.41
A Permanent Institution
The Court is described in article 1 as ‘a permanent institution’. The expression distinguishes it from ad hoc tribunals, such as those of the early generation at Nuremberg and Tokyo, and of modern times for the former Yugoslavia, Rwanda, Sierra Leone, and Lebanon. The desirability of a permanent court, as opposed to an ad hoc institution, with the attendant dangers of politicization, was often cited during debates at the Rome Conference.42 Although the word ‘permanent’ did not appear in the General Assembly resolution that convened the Rome Conference, the issue was never really in doubt and there were no proposals that even hinted at an alternative.
There is no provision in the Rome Statute concerning its ceasing to be in force, comparable to the relevant text in the 1948 Genocide Convention, for example, providing that if denunciations result in the number of States Parties falling below fifteen the Convention no longer remains in force.43 The statement that the Court is ‘permanent’ does not make it eternal, however. Given the silence of the Rome Statute on termination, relevant provisions of the Vienna Convention on the Law of Treaties codify the law applicable to this eventuality.44 For example, the parties could consent to the termination of the Statute and with it the winding up of the Court,45 or to its suspension,46 although this would not result as a consequence of the number of States Parties falling below the threshold of sixty for entry into force.47 The Court could also be replaced by a new institution, resulting from the conclusion of a subsequent treaty.48
2 Charter of the International Military Tribunal for the Far East (26 April 1946), in Neil Boister and Robert Cryer (eds), Documents on the Tokyo International Military Tribunal, Charter, Indictment and Judgments, Oxford: Oxford University Press, 2008, pp. 7–11.
13 Ibid., paras 46 and 95 (Mexico), 101 (United Kingdom), 106 (Venezuela); UN Doc. A/CONF.183/C.1/SR.6, para. 5 (United Kingdom); UN Doc. A/CONF.183/C.1/SR.7, para. 1; Notes contained in the transmittal letter from the Chairman of the Committee of the Whole to the Chairman of the Drafting Committee, UN Doc. A/CONF.183/13 (Vol. III), pp. 203–4.
23 For rare references to article 1, as part of a discussion of complementarity, see: Bemba et al. (ICC-01/05-01/13 OA 4), Dissenting Opinion of Judge Anita Ušacka, 14 July 2014, paras 49 and 61, fn. 49; Gaddafi et al. (ICC-01/11-01/11 OA 4), Dissenting Opinion of Judge Anita Ušacka, 21 May 2014, para. 47.
35 Mahhnoush H. Arsanjani, ‘Reflections on the Jurisdiction and Trigger Mechanism of the International Criminal Court’, in von Hebel, Reflections on the ICC, pp. 57–76, at p. 58; Juan Antonio Yáñez-Barnuevo and Conceptión Escobar Hernández, ‘The International Criminal Court and the United Nations: A Complex and Vital Relationship’, in Lattanzi and Schabas, Essays, Vol. II, pp. 41–68, at pp. 43–4.
38 Katanga et al. (ICC-01/04-01/07), Corrigendum to the Decision on Evidentiary Scope of the Confirmation Hearing, Preventive Relocation and Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, 25 April 2008, para. 25.
40 E.g. Rome Statute, art. 103, and Rules of Procedure and Evidence, Rule 200; Rome Statute, art. 104, and Rules of Procedure and Evidence, Rules 209 and 210; Rome Statute, art. 106, and Rules of Procedure and Evidence, Rule 211.