ABSTRACT
Following the adoption of the 1948 United Nations (UN) Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention)1 the General Assembly also invited the International Law Commission (ILC) ‘to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide’.2 The ILC studied this question at its 1949 and 1950 sessions and concluded that a court of that nature was both desirable and possible.3 Subsequent to the ILC’s report the General Assembly established a committee to prepare proposals relating to the establishment of such a court. The committee first prepared a draft statute in 19514 and a revised draft statute in 1953,5
but the Assembly decided to postpone consideration of the matter pending the adoption of a definition on aggression. Despite periodical consideration of the issue since 1953, it was in December 1989, in response to a letter addressed to the UN Secretary General by Trinidad and Tobago regarding the establishment of an international court with jurisdiction over the illicit trafficking in drugs, that the General Assembly once more requested the ILC to resume work on the creation of an international criminal court.6 Following the shocking first reports from the armed conflicts in the formerYugoslavia and the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the General Assembly urged the ILC to elaborate a viable statute as a matter of priority. This culminated in the production of a draft statute in 1994.7 In order to consider major substantive issues arising from the draft statute the General Assembly created an Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995.8 After consideration of the Ad Hoc Committee’s work the General Assembly established the Preparatory Committee (Prep Com) on the Establishment of an International Criminal Court.9 The task of the Prep Com, unlike its predecessor, was to formulate a generally acceptable instrument and not simply to assess the viability and preliminary concerns regarding such a project, for eventual submission to a
diplomatic conference. Upon concluding its work the Prep Com, having met six times since 1996, asked the General Assembly to convene a diplomatic conference for the purposes of finalising the statute in treaty form and adoption by the international community. A heavily bracketed draft treaty-the brackets indicating unresolved issues and details-was laid before a conference of plenipotentiaries for negotiation in July 1998 in Rome, where, after extremely intense negotiations and compromises on all sides, the International Criminal Court (ICC) Statute was signed on 17 July 1998.10 One hundred and twenty States voted in favour of the treaty, seven voted against (US, China, Libya, Iraq, Israel, Qatar, Yemen) and 21 abstained. Following the Rome Conference in the summer of 1998, the US proclaimed that it would not sign the Statute. However, after fears that the country would isolate itself from the proceedings of the ICC Preparatory Commission and create a bad international image,11 the US finally signed the text of the Statute on 31 December 2000, but then withdrew its signature on 6 May 2002, making it clear that it had no intention of ratifying this instrument. This was not a symbolic act, since it connoted that the US was no longer bound to respect the object and purpose of the treaty, and as will become clear below in this chapter, from that moment onwards it openly adopted a hostile attitude towards it. Following the required sixtieth ratification, the ICC Statute finally entered into force on 1 July 2002.
