Panel discussion.

• Position: Association of the American Law Schools Panel on the International Criminal Court - Panel Discussion

ASSOCIATION OF AMERICAN LAW SCHOOLS PANEL ON THE INTERNATIONAL CRIMINAL COURT

JANUARY 9, 1999 NEW ORLEANS, LOUISIANA

Panelists: Professors Christopher L. Blakesley, Malvina Halberstam, Dorean Marguerite Koenig, Leila Sadat Wexler, and Edward M. Wise. Moderated by Professors John E. Noyes and Ellen S. Podgor

PROFESSOR JOHN E. NOYES:(*) Welcome to the AALS Panel on the International Criminal Court (ICC, or the Court), jointly sponsored by the Sections on International Law and Criminal Justice. I want to take a few minutes; to place the Court, whose Statute took final shape at a diplomatic conference in Rome in July 1998,(1) in historical context. Professor Ellen Podgor, the Chair of the Criminal Justice Section, will highlight some significant features of the Court's; Statute, and then our panelists, who are experts in international law and U.S. criminal law and procedure, will discuss questions about the Court.

1. FROM THE HAGUE TO ROME: THE INTERNATIONAL CRIMINAL COURT IN HISTORICAL CONTEXT

   PROFESSOR NOYES: This year, 1999, is the centennial of the first Hague Peace Conference, which was convened on the initiative of Nicholas II, Czar of Russia.(2) The Hague Peace Conference is not usually the event one thinks of first when thinking about the development of international criminal law or :international criminal courts.(3) But three features of that 1899 Conference provide a useful point of reference. In particular, it is useful to contrast the nature of the conduct outlawed at the Hague with the conduct that falls within the jurisdiction of the ICC. It is also worth noting what the Hague Conference contributed to the development of formal international dispute settlement bodies, and to consider some of the changes over the last hundred years in the ways international law and institutions are created.

   First, note the nature of the conduct that the delegates addressed at the Hague in 1899. The Conference adopted rules on land warfare, specifying, for example, how prisoners of war are to be treated and prohibiting certain means of injuring enemies.(4) States were to implement these rules, and states were to be responsible when their own armed forces violated the rules in their conduct toward foreigners. The conceptual contrast between these Hague rules and the conduct that may be prosecuted under the ICC Statute is dramatic. International law has moved away from its strong nineteenth-century and early twentieth-century emphasis on state centrism. One legacy of the Nuremberg Trials after World War II is the notion that individual government officials, and not just their states, could be responsible under international law for certain gross abuses.(5) The ICC will in fact address only individual responsibility, not state responsibility.(6)

   There are other contrasts between the nature of the conduct regulated by the Hague Rules and the conduct that international law now considers criminal. Not only does international law now accept individual responsibility, but gross abuses committed against individuals are no longer deemed illegal only if, as was true under the Hague rules, such abuses occur during wartime and are directed toward an enemy. Thus, today, codifying treaties and customary international law provide that responsibility may exist when states or government officials injure their own citizens. Furthermore, international law also now condemns as criminal some, but not all, gross abuses occurring during peacetime.(7) The Rome Statute, for example, defines acts of slavery and torture, if part of a widespread or systematic attack, as crimes against humanity within the Court's jurisdiction. Such crimes against humanity may occur in peacetime as well as wartime, and may occur when the victim and the accused are nationals of the same state.(8)

   Second, the Hague Conference contributed to the development of international courts and arbitral tribunals authorized to render binding decisions in a wide range of disputes. The 1899 Hague Convention on the Peaceful Settlement of International Disputes(9) provides for a range of dispute settlement options from which states may choose. The Conference also established the Permanent Court of Arbitration (PCA)--an arrangement involving a list of qualified arbitrators, an administrative structure, and rules of procedure--although recourse to arbitration remained optional and was not made obligatory on parties to any general treaty.(10) The PCA is the precursor of the Permanent Court of International Justice and its successor, the International Court of Justice. Since World War II, over a dozen regional and global international courts and tribunals, not including ad hoc arbitral tribunals, have been established, many of them allowing individual access.(11) These international courts and tribunals are authorized to render binding judgments, and some of the courts and tribunals have proved to be remarkably efficacious.(12) With respect to international criminal courts in particular, the ICC has four predecessors, although none of them are global in scope: the Tokyo and Nuremberg Tribunals established after World War II, and the Yugoslav and Rwandan International Criminal Tribunals established earlier this decade.(13) The ICC negotiators certainly faced many difficult, new questions--questions, for example, concerning the Court's jurisdiction, mode of operation, and intersection with national legal systems. But the negotiators were at least working in a legal and political environment in which international courts were familiar, and were perceived as having the potential for making positive contributions to settling disputes and redressing illegal conduct.

   Third, the span of a century reveals some significant changes in the process of international lawmaking. Although the conventions that emerged from the 1899 Hague Conference were not the first multilateral treaties, multilateral treaty-making conferences were not nearly as common then as they are today. The twentieth century has seen an explosion in the number and variety of such treaties. States have used multilateral treaty-making conferences to create international institutions as well as to develop substantive rules of international law. The increase in the number and diversity of states during the twentieth century has posed challenges for developing international law and institutions in a manner that is efficient and that insures consideration of diverse viewpoints.(14) Although international institutions have sometimes been formed through more efficient means than cumbersome multilateral negotiations--the Yugoslav and Rwandan International Criminal Tribunals were created by the UN Security Council acting under Chapter VII of the UN Charter--multilateral negotiations were deemed necessary for the development of a global international criminal court. The techniques developed to help prepare for treaty-making conferences include the use of international expert bodies. For example, the International Law Commission prepared a draft ICC statute that served as the basis for negotiating sessions and was important to the completion of work on the Rome Statute.(15)

   The passage of a hundred years also provides a useful perspective on the roles of non-state actors in the international lawmaking process. The Hague Conference and its committees originally planned to conduct their proceedings in secret.(16) Non-governmental organizations (NGOs), including active peace societies, publicized the content of sessions and lobbied states' delegates.(17) Modern NGOs have been actively involved--in person, in print, and over the Internet--in promoting an International Criminal Court, and their work has significant implications for the creation of networks of civic engagement and governance. NGOs lobby, educate, and conduct sophisticated cross-disciplinary studies.(18) The efforts of NGOs to promote shared cross-cultural viewpoints is, in my view, an important part of the international lawmaking process.

   In the time available, I can only highlight in the most general fashion some of the broad features of the changing international legal landscape within which we should situate the Rome Statute. Certainly, changes during the past century--changes concerning the role of the individual in international law, the willingness of states to develop international courts and tribunals, and the ways in which international law is made--have been dramatic. In a general sense, these changes help us to understand the development of the International Criminal Court.

2. OVERVIEW OF THE ICC STATUTE

   PROFESSOR ELLEN S. PODGOR:(*) A Statute creating an International Criminal Court was adopted on July 17, 1998 at the United Nations Diplomatic: Conference held in Rome.(19) There were 120 delegations in favor, seven opposed, and twenty-one abstentions.(20) Although it was a non-recorded vote,(21) the United States was one of the seven opposing the Statute.(22) The Statute requires sixty ratifications to take effect.(23)

   The Statute commences with a Preamble followed by 128 Articles that are contained within thirteen Parts. The Preamble sets the stage for the document by providing historical context for the establishment of an International Criminal Court.(24) The Statute provides for "international cooperation and judicial assistance," including, for example, the procedures for "surrender of persons to the Court."(25)

   The four Articles that comprise Part One create the Court as a "permanent institution," noting its jurisdiction "over persons for the most serious crimes of international concern," and specifying its existence as "complementary to national criminal jurisdictions."(26) The Court seat is at the Hague, although it may sit elsewhere.(27) In addition to having "international legal personality," the Statute provides that the "Court may exercise its functions and powers ... on the territory of any State Party and, by special agreement, on the...