Rome Statute and Creation of the International Criminal Court

A small Caribbean state revived a project the great powers had shelved for forty years, and it did so on the unpromising ground of drug trafficking. States with no capacity to prosecute anyone abroad have every reason to want a court that can, which is why the initiative came from where it did.

The Council created a court for one conflict under Chapter VII, which meant it could compel cooperation from all states without a treaty. That was a considerable exercise of power, available only because the permanent members happened to agree.

The Commission's draft gave the Security Council control over which situations reached the court, which is what the permanent members wanted. That provision was substantially weakened at Rome four years later, which is the whole story of the negotiation in one clause.

The United States wanted Council control and protection for its personnel; most other states wanted an independent prosecutor. The disagreement was about who could be prosecuted, and it was never resolved so much as decided by a vote.

One hundred and sixty states and two hundred organisations assembled with the major powers divided among themselves, which left space that a middle-power coalition filled. Conferences produce unexpected outcomes when the strongest participants do not want the same thing.

One hundred and twenty states voted yes and seven voted no, including the United States, China and Israel. A treaty adopted over the opposition of the strongest state creates an institution with a permanent problem, and the court has had one ever since.

Sixty ratifications in under four years is fast for a treaty of this kind, and the states ratifying were overwhelmingly those with no prospect of being investigated. Rapid adherence by the uninvolved is easy; the difficulty is everywhere else.

Twenty years on, the court has convicted a small number of people, mostly African, and has indicted a Russian and an Israeli head of government without prospect of arrest. Its reach is bounded by who will execute a warrant.

The idea had been dormant since 1954 because the Cold War made agreement on defining aggression impossible, and it revived within months of the confrontation ending. A change in the structure reopened a legal project that had been blocked for structural reasons.

Ad hoc tribunals depend on continuing Council support and on states willing to make arrests, so their reach tracks the interest of the powers that created them. The permanent court was proposed partly to escape that dependence, and has not entirely escaped it.

A court that could only act on Council referral would have been an instrument of the permanent five, prosecuting where they agreed and nowhere else. Non-permanent members understood this and spent four years contesting the gatekeeping arrangement.

A coalition of like-minded middle powers, sixty or so states with no expectation of ever being investigated, coordinated to resist the permanent members. Numbers organised deliberately can outvote capability in a treaty conference, which is not true elsewhere.

The United States, China, Russia, India and Israel all had reservations, but they had different reservations and did not coordinate. A blocking coalition that never forms is not a blocking coalition, and the treaty passed over the objections of several great powers.

The independent prosecutor, able to open investigations without a Council referral, was the provision the great powers most resisted and it survived. Whether the court can actually use it against a powerful state's nationals remains the test of its reach.

The United States signed and then unsigned, and pursued bilateral agreements with dozens of states not to surrender its nationals to the court. A great power that cannot prevent an institution can still contain it, and this was a systematic effort to do so.

The court depends entirely on states to arrest, transfer and fund, having no police of its own. That dependence means it operates where cooperation exists and is powerless where it does not, which correlates closely with power.

Framing the proposal around narcotics rather than atrocity was a tactical choice that gave states a practical reason to engage. Building support for an institution by attaching it to a problem governments already wanted solved is standard and it worked.

The tribunal proved that international prosecution could work in practice: courtrooms, defence counsel, evidence, appeals and convictions. Demonstrating feasibility did more for the permanent court's prospects than a decade of argument about principle had achieved, because the objection that such a court could not function in practice was no longer available.

The draft assumed states would consent case by case to the court's jurisdiction, an approach that would have made prosecution depend on the accused state's agreement. Removing that consent requirement was the negotiation's central achievement.

Non-governmental organisations supplied legal expertise to delegations that lacked it, drafted proposals and published daily analysis of the negotiations. Civil society functioned as a research service for smaller states, which materially changed the balance in the room.

The NGO coalition ran a daily newspaper, tracked positions, briefed journalists and lobbied capitals in real time. Transparency of that kind raises the cost of quiet obstruction, and delegations that intended to weaken the text found it harder than expected.

The court prosecutes individuals rather than states and gives victims standing to participate in proceedings, which is unusual in international law. Placing the person at the centre is the statute's deepest departure from the state-based tradition.

Ratification required domestic implementing legislation in most states, incorporating the crimes into national law. The court's largest legal effect has been indirect: dozens of national systems now criminalise conduct they previously did not, and can prosecute it in their own courts whether or not the ICC ever acts.

African states that had ratified enthusiastically became its sharpest critics, arguing that prosecutions targeted the continent disproportionately. Whether or not the charge is fair, the perception of selectivity has cost the institution more than any acquittal.

Referring the question to the International Law Commission put it into a body that produces drafts on a slow professional timetable. Routing a proposal to the right forum is often the whole of the work, because it determines who does the drafting and by what method.

Creating tribunals case by case was expensive, slow to establish and dependent on a Council vote that a single veto could block. Those defects were the argument for a standing institution, and they were made by the people running the ad hoc courts.

Complementarity, the principle that the court acts only where national systems are unwilling or unable, emerged here and made the institution acceptable. It converts the court from a rival to national jurisdiction into a backstop for it.

Two years of preparatory work consolidated thousands of proposals into a bracketed text, so the conference began with a document rather than a debate. The preparation is why five weeks were sufficient for a treaty of this complexity.

The chairman used a bureau text and a package presented at the end on a take-it-or-leave-it basis, refusing to reopen individual provisions. That procedure is what prevented the compromise from unravelling in the final days.

Complementarity is the design that makes the institution workable: it cannot act where a genuine national investigation exists, which turns it into an incentive for domestic prosecution. The court's largest effect may be the cases it never takes.

Ten states deposited together in a ceremony designed to mark the threshold, which was a coordinated act rather than a coincidence. Choreography of that kind builds momentum, and the coalition organising it had been doing so for years.

Sitting alongside the ad hoc tribunals, hybrid courts and national prosecutions, the ICC is one component of a system rather than the whole of it. Complementarity means it was designed to be the smallest part, and it largely has been.

The claim was that some crimes concern all states and that a standing institution should be able to try them. That proposition had been asserted at Nuremberg and never institutionalised, and the gap between assertion and machinery was about to close.

International society revived individual criminal responsibility after a gap of forty-eight years and then, having revived it, could not easily confine it to Europe. Rwanda followed within eighteen months, and the principle escaped the case that occasioned it.

A body of jurists produced a text that governments then rewrote politically, which is the usual division of labour in making international law. Expert drafting supplies the architecture and states decide what they will actually accept.

The argument was over whether an international institution could investigate a state's nationals without that state's consent, which touches sovereignty directly. International society was being asked to accept a genuine limitation on a core prerogative.

The conference was open, public and voted, unlike the great-power drafting that produced most of the postwar order. International society legislating by majority rather than by consensus of the powerful is unusual and it produced a different result.

A permanent court with jurisdiction over genocide, crimes against humanity and war crimes completed what Nuremberg had begun and left unfinished for half a century. International society acquired a standing institution for its most serious rules.

The court exists by treaty rather than by Council resolution, so its authority rests on the consent of its members rather than on great-power fiat. That gives it a different kind of legitimacy and a narrower reach.

The society of states now maintains a permanent court for the crimes it regards as most grave, which it did not before 2002. That the court is weak does not make the institution insignificant, and its existence changes what leaders must consider.

Between 1954 and 1989 an international criminal court was regarded as utopian, and within a decade it existed. What changed was not capability but what states came to regard as possible, and that shift happened remarkably quickly.

Once tribunals existed for Yugoslavia and Rwanda, the absence of one elsewhere required explanation. Selective application generates its own pressure toward generality, and the permanent court was in part an answer to accusations of double standards.

The draft's language treated the court as an extension of existing state practice rather than as a novelty, which made it easier to discuss. Presenting an innovation as continuity is a standard and effective technique in legal development.

The like-minded group was constituted by a shared commitment rather than by region or alliance, which was a new kind of coalition. Organising around a norm rather than an interest is how much of the 1990s treaty-making was conducted.

Five weeks in Rome created a shared sense among delegates of building something historic, which negotiators later described as a factor in the outcome. The atmosphere of a conference is not incidental; it affects what participants will risk.

The vote was unrecorded at American request and then requested by others, so the seven negative votes were never officially attributed. Even the procedure reflected how uncomfortable opposition had become, which is itself a measure of the norm's strength.

Ratification became a marker of what kind of state a government wished to be seen as, particularly in Europe, Africa and Latin America. Joining an institution as a statement about identity explains the pace better than any calculation of interest.

The court's greatest effect has been to make impunity something that requires managing rather than something assumed. Leaders now think about travel, jurisdiction and successor governments, which is a change in expectations rather than in enforcement.