Attempting To Bring the International Criminal Court (ICC) Into Compliance With International Law
As you already know if you’ve been following our prior blogs, the International Criminal Court (ICC) is a creation of the Rome Statute. You may also remember that we have pointed out that the Rome Statute contains provisions that violate the legal rights of States, like the United States and Israel, that are not a party to the treaty. Further, ICC officials and judges have also engaged in practices that violate the rights of non-party States.
Periodically, all States which are parties to the Rome Statute gather to evaluate how the ICC is performing and to discuss how to enhance the ICC’s effectiveness. The next meeting of the Assembly of States Parties to the Rome Statute will occur in December. It is at such meetings where parties to the treaty may propose amendments to the treaty. Only parties to the treaty may propose amendments.
Nonetheless, as a U.N.-accredited Non-Governmental Organization (NGO), our European affiliate, the European Centre for Law and Justice (ECLJ), is permitted to propose changes to individual member States to encourage them to bring such matters before the Assembly of States Parties for consideration and, hopefully, resolution.
Recently, we sent letters to select foreign ministers of countries which have acceded to the Rome Statute and which have a track record of commitment to the rule of law to encourage them to propose the amendments we believe will improve the treaty, as well as remove the provisions that violate international law rights of non-party States. Ideally, a number of them will recognize the importance of “cleaning up” problems which have plagued the ICC since its inception and will introduce amendments mirroring those we have submitted for consideration by the Assembly when it meets.
We identify three basic issues requiring amendment.
- First, article 12(2)(a) permits the ICC to investigate and try nationals of non-party States, which violates the international law principle that States not a party to a treaty are not obligated to obey or liable under the provisions of a treaty to which they have not acceded.
- Second, customary international law requires that otherwise undefined terms in a treaty are to be understood using their customary meanings. That was not followed with respect to the recent Situation in Palestine decision, where the ICC Prosecutor encouraged and the judges applied a unique definition of “State” when dealing with the issue of Palestinian statehood.
- Third, article 27 allows the ICC to disregard, in violation of customary international law, well-established immunities of public officials carrying out certain internationally recognized and sanctioned tasks.
We view this as a first, but very important, step in the process of removing unlawful provisions from the Rome Statute. As with many international bodies, change often proceeds at a glacial pace. Hence, one must be persistent and drive home the points one wishes to make at every opportunity. A case in point: In 1975, the U.N. General Assembly adopted a resolution equating Zionism with racism. It wasn’t until 1991, 16 years later, that that antisemitic libel was removed. It took persistence and the building of an alliance of fair-minded States to make that happen.
The upcoming meeting of the Assembly of States Parties is a good starting point. We ask you to join us in praying that States Parties will see clearly that the provisions in the Rome Statute we have identified for change violate portions of the very law they claim to be pursuing. Moreover, until such changes are made, portions of the Rome Statute actually violate international law.