| dc.description.abstract | The International Criminal Court as 'giant without arms and legs' who 'needs artificial
limbs to walk and work .... "1
In 1998, a groundbreaking idea turned into reality, and 50 years of debate ended as the first
International Criminal Court (lCC) was established as a result of the Rome Statute. This judicial
body took shape and created the foundation of a permanent COI:rt to prosecute persons that
committed war crimes, crimes against humanity and genocide. The idea of an international
criminal court came about from many factions. At the end of World War IT the Allied Powers
responded swiftly after the discovery of crimes committed by the Axis Powers. They therefore
created the Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis and the Charter of the International Military Tribunal (IMT).
The TMT contained the first definition of crimes against humanity, which would later be included
in the Rome Statute and fall under the jurisdiction of the ICe. Specifically in Article 6(c) the
definition was as follows: "Crimes against humanity: murder, extermination, enslavement,
deportation, and other inhumane acts committed against civilian populations, before or during
the war; persecution on political, racial or religious grounds in execution of or in connection
within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the
country where perpetrated."
Shortly after, a similar document was drafted in response to the crimes committed by the Far
East Axis powers, namely Japan, labeled the International Military Tribunal for the Far East.
These two tribunalsIaid the groundwork for the prosecution and convictions of soldiers and
commanders that committed crimes in World War II. The importance of these tribunals comes in
its direct definition of crimes against humanity and war crimes, and the initial recognition for the
need of a global criminal system.
Finally in 1998, a Conference was called in Rome tc discuss the possibility of a permanent
International Criminal Court. Many struggles and oppositions needed to be overcome in order
lAntonio Cassese. 'When May Senior State Officials be Tried for lnternational Crimes') Some Comments on Congo
v. Belgium Case"(20~2) 859 European Journal ofJnternational LaIl'J3,853.
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adopt the Rome Statute and create the lCC. Despite all of these differentiating opinions and
opposing views several compromises were made, and in the end the treaty passed with a lopsided
vote of 120 to 7, with 21 countries abstaining. The most remarkable thing about the Rome
Statute and the creation of the TCC was the tact that the treaty required sixty of the signees to
ratify it before it would be entered into agreement, and the ICC could be created as an
international entity of criminal law.
Many speculated that it would be a decade before this judicial body could be created. but a mere
four years later, the 60th state ratified, ancl the ICC was created. It opened its doors in July of
2002, and by the following March eighteen judges were nominated and the first international
prosecutor, Luis Moreno Campo, was elected. The ICC is currently working on seven open cases
in Sudan, Uganda, the Democratic Republic of Congo, the Central African Republic, Kenya, the
Republic of Cote d'Ivoire and Libya, with many more situations being monitored for possible
further indictments. It took many years of law evolution, and a series of horrendous events to
justify establishment of an international criminal court, however, based on the support it
received, not only at the Rome Conference, but also the continued ratification by nations, it is
evident that the need for the court is considered important by many nations.
At the time of its creation, observers were hopeful that rule of law could help constrain
humanity's worst impulses, a sentiment that, today, may seem foolhardy. Yet, where else would
victims turn? Ruthless tyrants and their henchmen have killed, raped, and tortured innocents, and
few, if any. international institutions have been able to stop them or provide justice after the fact.
The ICC has very real and sometimes infuriating limitations. Convictions are too few. cases are
too long, and the backlog is too high; frustrations inside and outside the court grow. But so does
the demand for the lCC's help. Whether it be in Syria, Palestine, North Korea, Sri Lanka, or in
reaction to U.S. ancl British activities abroad, the ICC's problems have not kept governments and
people from urging it to get involved in more and more places. Thus, the promise of the ICC
remains intact, despite the challenges it faces.
This paper looks at the conceptual theories in customary international law and how they have
sneaked into the international criminal justice system despite the tact that the Rome Statutes was
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· set up for the sole purpose of accelerating justice for the victims by legally avoiding the rules of
customary practice such as absolute immunity or functional immunity. | |
