International Criminal Court serves as a “court of last resort”

Christian Wenaweser, who currently serves as president of the Assembly of States Parties of the International Criminal Court (ICC), discussed the purpose, formation and the scope of the Court's work in the 2010 Jonathan I. Charney Distinguished Lecture in International Law, which he delivered at Vanderbilt Law School April 6.

Ambassador Wenaweser is a seasoned diplomat who has served as Permanent Representative to the United Nations for the Principality of Liechtenstein since 2002. He has devoted more than a decade to assisting with the establishment of the ICC, the world’s first permanent, treaty-based international criminal court.

As a leader in the efforts of states worldwide to work together to form the ICC, Ambassador Wenaweser provided a brief overview of the lengthy negotiations leading up to the ICC's formation as well as some of the operational and legal challenges the Court has faced during its early years. The ICC's history, he noted, actually dates back to the  aftermath of the International Military Tribunal at Nuremberg in 1946, when some academics initially proposed the creation of a permanent international court. However, the use of the United Nations Security Council to establish the International Criminal Tribunals for Rwanda and the Former Yugoslavia ultimately provided the impetus for states to collaborate to establish a new, independent treaty-based court.

The Rome Statute, the treaty that established the ICC, created the court as a permanent institution that operates outside the political context of the United Nations. The Rome Statute defines a limited scope of jurisdiction rather than conveying authority over all listed crimes under all circumstances. “The ICC only has jurisdiction over what we call ‘core crimes’ – genocide, crimes against humanity and war crimes,” Ambassador Wenaweser said. States that ratify the Rome Statute accept the ICC's jurisdiction only for these crimes, and they waive any claims to immunity of their civilian and military leaders based on their positions or official actions.

Ambassador Wenaweser emphasized that the Rome Statute contains a complicated set of provisions designed to ensure that the ICC does not override the prerogatives of domestic prosecutors. The ICC was created to serve as an independent “institution of last resort," he explained. "It only kicks in where the national court that should be responsible for prosecuting these crimes doesn’t do it, either because it lacks capacity, or because it is not willing to exercise its jurisdiction. Only in these cases does the ICC have jurisdiction.”

Based in The Hague, Netherlands, the ICC currently has open investigations or warrants of arrest in cases against four Ugandans, including Lord’s Resistance Army leader Joseph Kony; three Congolese warlords; three former government and military leaders in Darfur, Sudan; and a former government official in the Central African Republic. Only days before Ambassador Wenaweser's lecture at Vanderbilt, the ICC prosecutor opened a new investigation into the violence surrounding the elections in Kenya, using his independent authority under the Rome Statute for the first time.

Ambassador Wenaweser emphasized that the ICC does not intervene if a country is capable, as Iraq was, of forming its own criminal tribunal. The Iraqi High Tribunal that prosecuted Saddam Hussein and other officials in his regime for their role in campaigns of genocide, which was formed with assistance from U.S. legal advisors, was administered by the Iraqi government. In addition, Ambassador Wenaweser stressed that the Rome Statute is not retroactive, so infamous crimes against humanity such as Cambodia’s ‘killing fields,’ which occurred before the Rome Statute entered into force on July 1, 2002, are not subject to investigation or prosecution by the court.

While the ICC also has jurisdiction over crimes of ‘aggression,’ he said, delegates in Rome could not agree on formulations for this controversial offense. Thus, the Rome Statute does not currently define ‘aggression,' and Article 5 of the statute states that the ICC will exercise its jurisdiction over crimes of aggression only after the states parties to the treaty agree on a definition. The ambassador chaired the ICC’s Special Working Group on the Crime of Aggression from 2004-09, and after six years of work, he said, “We have a draft definition that finds strong agreement among the states parties.”

However, the second part of the discussion – the conditions under which the ICC would exercise its jurisdiction in cases of aggression – “is more complex,” Ambassador Wenaweser said. “Aggression is a complex, two-layered crime” that involves both the state that committed an act of aggression against another state and the person(s) who played a leading role in bringing the act of aggression about. Some states parties to the Rome Statute are uncomfortable with one proposed solution, which would allow the United Nations Security Council to determine when an act of aggression has occurred. If the Security Council alone was vested with this power, Ambassador Wenaweser said, “you would have a situation in that probably the most political body in the world would make an essential decision to create jurisdiction for what is meant to be an independent criminal court. Most states believe that someone else should also have the power to make this determination.”

The definition of aggression will be one of the important issues discussed when states parties to the Rome Statute meet in Kampala in June, 2010. Although the United States has not ratified the Rome Statute, Ambassador Wenaweser welcomed the participation of the U.S. as an observer to the negotiations in Kampala.

To create the ICC, 60 countries initially ratified the Rome Statute, and 111 countries in all regions of the world are now party to the treaty. However, several major world powers, including United States, China, India and Russia, have yet to ratify the Rome Statute. “We don’t have an agreement from everyone that the Rome Statute is the best thing since sliced bread,” Ambassador Wenaweser said, noting that smaller and medium-sized countries with governments who understood the need for an independent international criminal court were among the first to ratify the treaty. “But we are on the way to where we want to be, which is to give this court universal coverage. We have to fight against impunity for these crimes, which are the most serious crimes under international law.”

The Jonathan I. Charney Distinguished Lecture in International Law honors former Vanderbilt Law Professor Jonathan I. Charney, one of the world's preeminent experts on international law, who held the Lee S. & Charles A. Speir Chair at the law school until his death in 2002. The series funds academic lectures and other presentations on international law by distinguished figures in the field. Ambassador Wenaweser’s Charney Lecture was organized by Professors Ingrid Wuerth and Michael Newton in Vanderbilt’s International Legal Studies Program.

Ambassador Wenaweser has served as the Permanent Representative of Liechtenstein to the United Nations in New York since 2002. In addition to his work on behalf of the ICC and the Rome Statute, he has previously served as Vice-President of the 61st session of the U.N. General Assembly (2006-2007), Vice-Chair of the Open-Ended Working Group on Security Council Reform (2004-2005), Chairman of the Ad hoc Committee on the Scope of Legal Protection under the 1994 Convention on the Safety of United Nations and Associated Personnel (2003-2005), Chairman of the U.N. General Assembly’s Third Committee (2002). 

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