The International Criminal Court: Prospects for the future

16 June 2004

The European Policy Centre hosted a Policy Dialogue featuring a key note speech by Judge Mr. Philippe Kirsch and a response by former Australian Foreign Minister and President of the International Crisis Group, Gareth Evans, to discuss “The International Criminal Court: Prospects for the Future.” EPC Director of Studies, Fraser Cameron, chaired the meeting. This is not an official record of the proceedings and specific remarks are not necessarily attributable.


Judge Kirsch gave a comprehensive overview of the reasoning behind the creation of the International Criminal Court (ICC), its development and current features of the system, while Gareth Evans reflected on the political significance of the ICC and the difficulties it faced gaining the support of the entire international community .

Event Report

Judge Kirsch addressed four key points in his opening presentation including why the ICC was a necessary institution, how it had been created, the specific features of the system and a brief reflection on the Court’s role today.

While genocide, crimes against humanity and war crimes always had consequences for individuals, they also affected the regional and national stability of the country in which these crimes were perpetrated, threatening the peace, security and well-being of the wider world. “States are responsible for prosecuting and punishing these crimes in a first instance, but some states are unable or unwilling to do so, for which you then need international law and international criminal institutions,” he said. The Cold War had prevented the creation of the court until the 1990s, when the situation changed markedly as a direct results of the events in Rwanda and former Yugoslavia. For these two cases the United Nations Security Council had created ad hoc tribunals and thus demonstrated the willingness of international law to react to these crimes. However, these exercises had been marred by weaknesses, due to the fact that the tribunals were only intended to be temporary in nature, only covered these specific situations, were retroactive and thus had no clear deterrent effect. The delay and cost in creating the tribunals had not strengthened their reputation.

The creation of the ICC

Reflecting on how the Court was created, Judge Kirsch underlined that the fundamental aim of the ICC was clearly to punish individual perpetrators, bring justice to the victims and “to creating a culture of responsibility rather than impunity” to achieve a deterrent effect. The signatories of the Rome Treaty in 1998 had de facto created this tribunal and Judge Kirsch was adamant that the states themselves, not the UN Security Council, were the impetus to its creation. “The Court derives its strength from the provisions it is given but also from the support it receives,” he said. While the conclusion of the Rome conference had resulted in a balance of views between states on the functional provisions of the Court, it had not fulfilled its main objective - to achieve universality.

The features of the system

Turning to the features of the system, he outlined that as the statute of the ICC had only come into force on July 1, 2002 a number of restrictions acted on the jurisdiction of the Court. First, the Court could not investigate or prosecute crimes that were committed before its statute entered into force. Secondly, for states that ratified after this date, the Court’s remit only began with the date of the actual ratification, unless a state specifically requested that it be retroactively applied to July 1, 2002. In the near future, he hoped, the Court would also be able to prosecute crimes of aggression in addition to the three principal ones. On personal jurisdiction the court was limited to the prosecution of those individuals whose country of nationality had given consent to the ICC and with consent of the country in which the crime had been committed. Thus, the Court had no universal jurisdiction.

The principle of complementarity was the entire premise of the ICC, leaving it to national courts in a first instance to prosecute and try offenders. Only when a state was unwilling or unable to take action, could the ICC legally step in. “In an ideal world, the Court would never intervene,” he said.

A clear benefit of the ICC was that now victims could give testimony in their own right rather than on behalf of the defence or the prosecution. “Victims are there as victims, supported by an elaborate system of protection and counselling,” he noted. They now had the possibility to claim reparations or compensation for their individual cases.

On safeguards in the statute, he said that at the creation of the ICC its jurisdiction had been unlimited in principle, though states were concerned that the Court was not politicised. Contrary to popular beliefs, the prosecutor was actually circumscribed by a strict system, including a pre-trial chamber, which acted as a check in the early investigation phase. Secondly, all parties had to be notified when an investigation was launched by the prosecutor, and countries could take action to counter it. Additionally, the rights of the prosecution and the defence were fully protected through specific rules. “We have a tightly controlled legal judiciary instrument. The court can never undertake politically motivated cases,” he said.

On Uganda and Congo, the two cases brought to the ICC by governments, the prosecutor had to decide on their legal base ahead of launching an investigation. He had also received information on other crimes from NGOs – totalling 900 communications from 81 countries. In this context it was remarkable, that the second most frequent country to report was the US. While these often described crimes outside the ICC’s actual remit, for reasons of timing or other, the prosecutor did not depend on states to open a case, as long as the pre-trial chamber approved.

The Court today

The ICC needed more support to increase its legitimacy. While 60 ratifications had been received much earlier than expected and with a total of 90 of these, the Court was still some distance from achieving the full sanction of the 139 signatories of the Rome Treaty. “The aim remains universality,” he underlined. “The Court cannot act alone, it needs the support of states and international organizations. Now is the time to remain committed. Only together can we achieve a world in which accountability, rather than impunity is the norm,” he concluded.

Gareth Evans

Responding to Judge Kirsch’s presentation, Gareth Evans said that the significance of the ICC lay in what it symbolizes – both positively and negatively. On the positive side, the Rome Treaty was already a “remarkable achievement for multilateralism” because in comparison to the ad hoc tribunals in response to specific violations, this was a clear commitment to take a stand and thus take “an unusual step forward from the usual inertia that plagues states.” In putting the Court together, the international community had adopted a variation of the ‘responsibility to protect’ theme, by recognizing that sovereign states had the main responsibility, but that there was a collective responsibility to uphold as well. The practical application of “blended” legal traditions showed effective multilateralism at work.

On the negative side, however, the robust opposition of the US to the ICC had blocked a true advance toward full effective multilateralism. The US had taken “every possible protective measure, to ensure that its own citizens would never be charged at the ICC.” The US had “mounted a crusade” against the ICC among other countries. Recounting a  personal anecdote, he said that a US official had said to another negotiator, “you just don’t get it – we’ll never allow Americans to be tried by a foreigner.” This “imperfect commitment” to the principle of universality coupled with the overwhelming pressure on countries not to ratify, or only to do so after they had signed a bilateral agreement to refrain from referring US citizens to the Court had a severe impact. “The EU has mercifully completely resisted the US pressure and most Member States have declined such bilateral agreements,” he said. If the pattern of opposition continued, “it will be an affront to cooperative multilateralism.”

The chief prosecutor had a difficult task ahead of him, having to satisfy the competing demands of acting quickly, while remaining thorough and detailed in his investigation. “We are still some time away from the launch of real prosecutions and the beginning of real investigations,” Mr. Evans said. While he hoped the prosecutor would not give into pressures on him to act too quickly he also should not be too cautious and listen to some  of the international advice given, which suggested he wait a further few years to gather all necessary evidence, before mounting a case. Secondly, the prosecutor needed to make the choice between cases which were manageable and those which had the most potential deterrent impact. Thirdly, he had to be careful to select cases, which would not worsen the actual situation on the ground in a specific country. All these challenges should not be underestimated, Mr. Evans said. Also, the handling of the witness protection programmes was a top priority, to assure that the three or four witnesses essential to the prosecution and the defence were “absolutely safe.”

“We all hope that the Court, the prosecution and the judges will be able to pull through, because the ICC is fundamental to the international system. It is phenomenally important that it succeed and be seen to do so in the wider international community,” he concluded.

The following discussion raised questions on how the EU might assist countries under pressure from the US on the issue of the ICC; the relationship between the ICC and the UN; the institutional integrity of defence lawyers and the effectiveness of the ICC among other issues.

Concluding the Dialogue, Chairman Fraser Cameron thanked Judge Kirsch for his “masterful and authoritative exposé” on the ICC and Gareth Evans for providing an excellent assessment of the political context in which the Court found itself.