Acciones concretas basadas en la participación y que contribuyen al éxito

The human rights regime has undergone a revolutionary change and become an important pillar of global governance over the past thirty years. The strengthening of the regime has redefined the meanings of security as well as the boundary of state sovereignty vis-à-vis a broad range of individual rights. As former UN Secretary-General Kofi Annan said in his Nobel Peace Prize acceptance speech: “In this new century, we must start from the understanding that peace belongs not only to states or peoples, but to each and every member of those communities. The sovereignty of States must no longer be used as a shield for gross violations of human rights.

Peace must be made real and tangible in the daily existence of every individual in need. Peace must be sought, above all, because it is the condition for every member of the human family to live a life of dignity and security” (Annan 2001; italics mine).

The ICC is the only independent court of the global human rights regime to “help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC Website).The idea of establishing a permanent international criminal court has frequently been raised in the international society since the end of the WWII. However,

April, 2000.

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geopolitical confrontation during the Cold War forestalled the development of such a court.

Progress was renewed in the early 1990s. During a special session of the General Assembly (GA) on transnational drug trafficking, Trinidad and Tobago proposed an international court to assist states in prosecution.³⁹ In response, the GA resolution directed the International Law Commission (ILC) to elaborate a draft statute for the court in 1992 (UN 1992a). After the ILC submitted its draft, the GA established an Ad Hoc Committee in 1994 and a Preparatory Committee (PrepCom) in 1995 to discuss the draft and prepare for a diplomatic conference (UN 1995a, b). Following a series of sessions of the PrepCom from 1996 to 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC was held in Rome from June 15 to July 17, 1998. The Conference finally adopted the Rome Statute of the ICC by 120 states in favor, with twenty-one abstentions and seven nations voting against.

The Rome Statute was an institutional innovation and breakthrough in the areas of international human rights and criminal law. Four major features stipulated in the Rome Statute make the treaty a hard law and the ICC a very strong and independent court. First and foremost, the ICC has inherent and compulsory jurisdiction over four types of core crimes if either the territorial state (within whose borders the alleged crime has been committed) or the suspect state (nationality of the suspect) is a state party to the Statute (ICC 2001: 10). This means that the Court will have jurisdiction over crimes as long as one of the above two states ratifies the treaty, even if the other state is not a party. Moreover, even if neither of the above states ratifies the treaty, the ICC can still exercise jurisdiction when the crime is referred to it by the UNSC. Thus, not only will states parties automatically accept the Court’s jurisdiction upon ratification or

39 The Rome Statute, however, does not incorporate transnational drug trafficking as a crime within the ICC’s jurisdiction, because most states agree that the Court should have jurisdiction over only the most serious international crimes.

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accession, but non-state parties may also be subject to the Court’s rule in certain circumstances.⁴⁰ Second, in terms of the relations between the ICC and national courts, although the Rome Statute designates the ICC as a complement to national courts in adjudicating crimes, it can step in to conduct an investigation and open a trial if the Court decides that a state or national court is

“unwilling or unable” to prosecute matters on its own (ICC 2001: 13). Third, the triggering mechanism of crime investigation grants the Prosecutor of the ICC the right ex officio to start an investigation. The Prosecutor can investigate a crime not only when a situation is referred to him/her by states parties or by the UNSC, but also when he/she gets the consent of the Pre-Trial Chamber of the Court on the basis of information received from other sources, such as individuals or NGOs (ICC 2001: 11). Finally, the Rome Statute does not allow any reservations for states to opt out of their obligations (ICC 2001: 72).⁴¹ States must accept the treaty as a whole and cannot selectively accept treaty provisions when ratifying or acceding to the Rome Statute.

The institutional feature of the Rome Statute of the ICC is a puzzle for many political observers (Deitelhoff 2009; Goodliffe and Hawkins 2009). The ILC, authorized by the GA to draft a statute for a criminal court, first envisaged a very weak court and preserved a great degree of national autonomy for states in the 1994 proposal. In contrast to the highly legalized Rome Statute, the ILC draft was a very soft law and prioritized state sovereignty in almost every dimension. The ICC was designed as a subordinate to national courts, and its jurisdiction depended on the consent of states. The court had inherent jurisdiction only over genocide, yet for

40 A good example is the Libya case. Libya voted against the Rome Statute at the Rome Conference and thus is not a state party of the treaty. Yet the ICC issued an arrest warrant for Libya’s former Leader Colonel Gaddafi, his son Saif al-Islam, and

Abdullah al-Senussi, head of Libya’s state security services, based on UNSC Resolution 1970, which referred Libya’s situation to the ICC.

41 Under article 124, a state, on becoming a party to the Statute, can declare that, for a period of seven years after the entry into force of the Statutefor the State concerned, it does not accept the jurisdiction of the Court with respect to war crimes. However, seven years is a short period, and the exemption is limited to war crimes.

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other crimes, the ILC proposed an opt-in mechanism: states could choose for which crimes they would like to accept the court’s jurisdiction, either upon or at any time after ratification.

Moreover, the court was a less independent entity than the UNSC, which had greater control over the trigger mechanism. The prosecutor did not have much autonomy to launch investigations, but could take action only in cases referred by states parties or the UNSC; the ICC could not take up cases the Council processed under its Chapter VII responsibilities (ILC 1994).

The ILC intended to achieve “the widest possible adherence of states” to the statute (ILC 1994: 31) and its draft reflected the political reality at the early negotiation stage, as most states, especially great powers, did not want to surrender much state sovereignty to a supranational ICC.

During the negotiation, two key groups emerged with divergent opinions. The first was under the leadership of the Permanent Members of the UNSC (P5 group⁴²), whose preferences were largely reflected by the 1994 ILC draft; this group had dominated the negotiation process in the early period. The second was the Like-Minded (LM) group composed of small and middle powers and supported by a global NGO coalition, the Coalition for an International Criminal Court (CICC). This group opposed the conservative ILC draft and advocated a strong and independent court. Even before 1997, the LM group had been unable to achieve a majority; yet their voices and influence had increased over time.

A turning point appeared between 1997 and 1998 before the convening of the Rome Conference. During this period, states’ positions changed dramatically, and many states that had previously preferred a conservative ICC or had no clear opinions began to support a stronger and more independent court. According to Deitelhoff (2009), the shift of the international normative

42 P5 denotes a group of states sharing similar conservative opinions to those of the five permanent members of the UNSC, but does not mean the five permanent members only.

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environment was mainly due to a series of regional conferences sponsored by the LM group and the NGO coalition, CICC, in Latin America, Africa, and Central and Eastern Europe. Those regional conferences were designed as informal forums to exchange ideas among government officials, NGOs, and experts outside the formal UN-based negotiation settings, but they resulted in “unexpectedly progressive positions toward the ICC that were almost identical to those of the LM group” (Deitelhoff 2009: 56).

Moreover, the switch of positions of the UK and French delegations after the changes in their government in 1997 dismantled the great-power coalition and greatly contributed to the shift in the international normative equilibrium and balance of power between the two groups during the last year on the way to the Rome Conference. If the P5 group could have held together to the end, the final version of the treaty might have been more conservative than the current Rome Statute; in that situation, China might have voted for a much softer treaty or at least abstained. Nevertheless, the views of the LM Group eventually prevailed at the Rome Conference, and the Rome Statute differs radically from the original soft ILC draft. As a result, both the United States and China cast negative votes, while other great powers, such as Russia and India, chose to abstain.