May 1999

Informal Opinion
By Diane Marie Amann
    Diane Marie Amann is Acting Professor of Law at the University of California, Davis. She concentrates on criminal law and procedure, international criminal law and evidence. An author and lecturer, she frequently serves as a panel moderator, particularly on international law issues.
Often-Asked Questions About the
International Criminal Court

Last summer, delegates from 149 countries met in Rome to draft a treaty establishing an international criminal court (ICC). Their achievement marked a milestone in the development of a global criminal justice system. This column answers some frequently asked questions about the proposed court.
    When will the ICC start operating, and where?
After 60 countries ratify the treaty containing the court’s charter, known as the Rome Statute for an International Criminal Court. This is expected to take a minimum of five years. In the meantime, work continues on rules of evidence and procedure and other loose ends. Once the ICC is established, it will sit at The Hague in the Netherlands, with 18 judges elected from the member countries.
    Will the United States be a member?
Not any time soon. The United States has provided financial and staff support to the ad hoc international criminal tribunals that the U.N. Security Council established for Bosnia and Rwanda. And it took an active part in ICC negotiations before and during the Rome Conference. But at the end of that conference, the United States was one of seven countries — the others included China, Iraq, Israel, and Libya — to vote against the treaty. The United States wants cases to be referred to the ICC by the Security Council, not on the initiative of the prosecutor. Although the Rome Statute includes safeguards against frivolous prosecutions, such as screening of investigations by a Pre-Trial Chamber of judges, the United States maintains that the safeguards are insufficient. Senator Jesse Helms, whose Foreign Relations Committee must consider the treaty before it may go to the full Senate, has vowed that the United States will not ratify the treaty “so long as there is breath in me.”
    Does this mean that the court will not be able to try Americans?
Not quite. A U.S. national who is charged with committing an international crime abroad and is found in a member country could be brought before the ICC. This is a prime reason the United States opposes the treaty. But the situation is the same today. As the case of former Chilean dictator Augusto Pinochet demonstrates, a person seized while traveling may be held to stand trial overseas.
    Could my client, accused of smuggling heroin from Thailand, be haled into this court?
Again, not any time soon. Recent efforts to establish an ICC began about ten years ago, after the Caribbean nations of Trinidad and Tobago called for a permanent, international court to prosecute drug traffickers. Yet the Rome Statute authorizes the court to consider only four offenses: (1) genocide, certain acts committed with the intent to destroy a national, racial, ethnic, or religious group; (2) crimes against humanity, acts committed as part of a widespread or systematic attack on a civilian population; (3) war crimes, acts that violate laws or customs of war; and (4) aggression, initiation of an invasive, as opposed to self-defensive, war. The statute excludes drug-trafficking, skyjacking, and similar transnational crimes, although a review committee will consider adding those offenses at a later date.
    Won’t the court prosecute individuals charged with rape?
Yes. Recognition of rape as an international crime — as a crime of war rather than a spoil of war — is one of the most significant recent developments in international criminal law. The Rwanda Tribunal, in fact, just convicted a former Hutu mayor for his involvement in rapes and sexual violence against Tutsi women during the 1994 massacres. The Rome Statute includes rape as a prohibited act that may, if other elements are met, constitute genocide, a crime against humanity, or a war crime. Indeed, the statute prohibits a number of gender-based acts, including sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization.
    Is the court likely to prosecute former dictators like General Pinochet or former leaders of the Khmer Rouge?
No. The Rome Statute is not retroactive. The court may try only individuals who commit international crimes after the court has begun operating. Dictators, war criminals, and genocidaires of tomorrow, however, are just the types of individuals the court is designed to prosecute and punish.
    How will defendants be treated before the ICC?
The Rome Statute provides for many of the same rights that an accused would enjoy in the United States. A defendant is to be presumed innocent until the prosecutor proves guilt beyond a reasonable doubt. In addition, the defendant is guaranteed freedom from coercion; a right against double jeopardy; a right to silence; a right to retained or appointed counsel; a right to be informed of charges and to prepare for defense; a right to be present at a public, fair, speedy trial; and the rights to call defense witnesses and to cross-examine prosecution witnesses. In some circumstances evidence may be excluded. There may be some concern about confrontation rights, however. In the Bosnia tribunal, certain witnesses have been permitted to testify anonymously, without the defendant or defense counsel ever learning the witnesses’ identities.
    Are any of the rights of the accused more protective in the Rome Statute than in U.S. law?
Yes. The right to disclosure of exculpatory evidence is broadly defined to include all evidence that “tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.” As in U.S. law, the Rome Statute requires that the law be applied equally regardless of race, ethnicity, religion, and gender (“the two sexes, male and female,” a definition intended to exclude claims of discrimination on account of sexual orientation).

The Rome Statute goes further, also prohibiting discrimination based on age, language, political or other opinion, social origin, wealth, birth, “or other status.”

Finally, some procedures borrowed from the European continental system afford a defendant more protection. The defendant may address the ICC in his or her defense without swearing an oath — and thus without risking perjury. And the defendant may appeal errors of fact as well as of law; however, the prosecutor enjoys this same right of appeal.
    What sort of punishment is contemplated?
As with the Rwanda and Bosnia tribunals, persons convicted by the ICC will not be subject to the death penalty. Ordinarily, the maximum sentence will be 30 years — a cap insisted upon by Latin American countries, many of whose constitutions prohibit longer terms. In extraordinary cases, the ICC may impose a life sentence. The Rome Statute also provides for fines and forfeiture, as well as reparations to be awarded to the victims.
    Where will defendants serve their time?
Any member country may volunteer to incarcerate ICC prisoners. Conditions of confinement must meet international human rights standards.
    Who will pay?
The ICC will be funded in part by member countries’ dues, in part from United Nations general funds. If the United States resumes paying its dues to the United Nations, therefore, it might become an indirect financial supporter, even if not an ICC member.

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