Introduction

The idea of establishing an international criminal court dates back to the adoption of the Universal Declaration of Human Rights (UDHR) on 10 December 1948. A special commission, the International Law Commission, was established and mandated to carry out the task of drafting a statute establishing a permanent penal court as envisaged in Article VI of the Genocide Convention and ‘Code of Crimes Against the Peace and Security of Mankind’. However, due to various reasons, both external and internal, the commission could not finalize the task within a reasonable time. The definition of crime of aggression coupled with the cold war political tension had hampered the work of the Commission which finally resulted in the suspension of its mandate by the General Assembly.

In 1981, after almost 30 years, the General Assembly asked the International Law Commission to revive the work on its draft code of crimes. However, nothing had been said on the proposed international criminal court until 1989 when the General Assembly directed the Commission to also consider this subject. For reasons which will be discussed soon, the work of the International Law Commission gained momentum in the early 1990s and was able to submit the final version of its draft statute of an international criminal court to the General Assembly in 1994. Two years later, in 1996, the Commission also adopted the final draft of its ‘Code of Crimes Against the Peace and Security of Mankind’.

While the International Law Commission was drafting the statute on the establishment of the international criminal court, various events occurred internationally which played a vital role in accelerating its activity. The invasion of Kuwait by Iraq, the war in Bosnia, and the Rwandan genocide were some of these events that pressed the international community to agree on the need to have an international criminal court for trying the perpetrators of these atrocities. Consequently, in the stated period, two ad-hoc International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) were established by the decision of the UN Security Council, following Resolutions 827 (1993) and 808 (1994), respectively.

The establishment of the two ad-hoc tribunals in the first place confirmed the validity of an international criminal court for the enforcement of international criminal law. Secondly, their jurisprudence assisted in developing and defining the elements of some international crimes. Thirdly, they provided an insight into what an international criminal court might look like. Generally, the drafters of the statute of the international criminal court drew important lessons both from the strengths and weaknesses of the two ad-hoc tribunals and finally came up with the Rome Statute.

2. The Rome Statute

We have seen that in 1994 the General Assembly decided to pursue work on the establishment of an international criminal court. To this end, it had convened an Ad-Hoc Committee which was assigned to see and examine the draft work of the International Law Commission. Again in 1995, the General Assembly decided to convene a ‘Preparatory Committee’ inviting participation from member states, NGOs and international organizations. After several sessions, in 1996 and 1997, the ‘Preparatory Committee’ submitted its report to the General Assembly after commenting on the draft work of the International Law Commission.

Pursuant to the General Assembly resolutions adopted in 1996 and 1997, the Rome Diplomatic Conference was convened on 15 July 1998. More than 160 state delegates as well as a number of NGOs and international organizations participated in this conference. After lengthy and challenging negotiations, the Rome Statute was adopted on 17 July 1998 with 120 votes in favor, 21 abstentions and seven against. The United States of America, Israel and China were among those who voted against.

However, for the Statute to come into force, there was another big challenge: securing 60 ratifications or accessions. Senegal was the first African country to sign the Statute on 2 February 1999. Surprisingly, the required number of ratifications was reached on 11 April 2002 and hence the Statute came into force as of 1 July 2002. The Statute came into force on this date because it is provided in the Statute that it would be effective “on the first day of the month after the sixtieth day following the date of deposit of the sixtieth instrument of ratification”.

3. The ICC and its jurisdiction

The Rome Statute has clearly defined the type of crimes that should be tried by the court (Substantive jurisdiction), who could be held accountable by the court (personal jurisdiction), and the relevance of where (territorial jurisdiction) and when (temporal jurisdiction) the crimes are committed. It should be noted that these issues were the most heavily debated during the process of preparing and negotiating the Rome Statute.

3.1 Substantive jurisdiction

The ICC is entrusted with the power to prosecute those crimes which are considered to be of serious concern to the international community. These crimes are enumerated under Article 5 of the Statute of the ICC as genocide, crimes against humanity, war crimes and crime of aggression. Some states have suggested the need for broadening the scope of jurisdiction of the court to crimes such as terrorism, drug and crimes against UN personnel. It should also be noted that there is a separate document defining the “Elements of the Crimes” for each crime (except crime of aggression) falling under the jurisdiction of the court which is adopted in September 2002 by the ICC Assembly of State Parties.

The following are the types of crimes under the jurisdiction of the ICC.

- Genocide

- Crimes Against Humanity

- War Crimes

Crime of Aggression

However, States could not reach a consensus during the preparation of the Rome Statute on the definition of the crime of aggression although this was accepted as one of the crimes over which the ICC should have jurisdiction. For this reason, the ICC’s power to exercise jurisdiction over crime of aggression was deferred until States reached an agreement on its definition in a manner consistent with the purposes of the Statute and the ideals of the United Nations.

3.2 Personal and Territorial Jurisdiction End of impunity

We have seen that crimes falling within the jurisdiction, of the ICC are of serious concern to the international community as a whole since they endangered the peace and security of the world. There is no way a perpetrator of such crimes could escape the jurisdiction of the ICC. Being head of state or government official can be no shield against the jurisdiction of the ICC. These groups of people cannot be granted protective cover by their national laws. In the preamble of the Rome Statute it is stated that State parties are determined to put an end to impunity for the perpetrators of the crimes condemned by the Statute. In short, the Rome Statute applies equally to all persons above 18 years of age regardless of their status, and hence government officials are not granted immunity.

Concerning personal and territorial jurisdiction of the court, numerous proposals were presented which ultimately led to the compromise that the ICC may exercise jurisdiction over crimes that are committed.

- On the territory of State party

- By a national of State party

- By a national of a non-State party when that State has accepted ICC jurisdiction in that specific case or

- When a situation has been referred to the ICC by the UN Security Council.

4. Complementarity

The ICC is designed not to curb the sovereignty of nation but to act when the state is unable or does not wish to exercise its power to investigate and prosecute the crimes mentioned under the Statute. Therefore, the principle of complementarity addresses the issue of how national courts and the ICC can work together. The Rome Statute affirms that the ICC shall be complementary to national courts, and hence a case may not be brought before the ICC if it is being investigated by the concerned state.

The ICC intervenes and assumes jurisdiction only when the following two conditions exist: “unwillingness” and “inability” on the part of the national state to genuinely carry out the investigation or prosecution.

Unwillingness is deemed present if:

- the trial undertaken or decision made by the national state is for purpose of shielding the person concerned from criminal responsibility

- there has been an unjustified delay inconsistent with an intent to bring the person in question to justice, and proceedings are not conducted independently or impartially.

However, inability is determined by considering the total or substantial collapse or unavailability of the state’s national judicial system, due to failure of the state to obtain the accused or the necessary evidence and testimony and thus unable to carry out its proceedings.

5. Importance of the Statute

It is to be recalled that the Rome Statute which established the International Criminal Court has emerged at a time when many parts of the world were experiencing some of the most atrocious and appalling social conflicts. For our purpose, it is sufficient to recall the atrocities that had occurred in the former Yugoslavia and Rwanda.

The ethnic and religious conflicts in these countries resulted in the uprooting of millions of people, all victims of systematic human rights abuse such as imprisonment, torture, killing, rape and other forms of physical and psychological intimidation. To sum up, it was under these situations that the international community came up with the idea of establishing an international judicial system under which crime perpetrators, regardless of their political or economic status, would be investigated, prosecuted and, if found guilty, be punished.

Undoubtedly, the establishment of the ICC is advantageous for Africa not only as a means to strengthen the existing mechanisms for combating gross human rights violations, but also in consolidating regional peace and security. It seems that the time has now come when certain African leaders realize that the old tenets of “sovereignty and non-interference” have no place in governing their relationship concerning democracy, human rights and good governance. As clearly enshrined in the AU Constitution, Africa will never continue to give comfort to member states whose actions go against the value and principle which all Africans and the world in general hold so dearly. Consequently, many African countries not only have ratified the Rome Statute, but also played an active role in the process of enacting and bringing to life this Statute.

It is argued that most societies believe that courts of laws are worth maintaining because of their ability to prevent crimes. The mere existence of the ICC would have a powerful deterrent effect on potential offenders. Unlike the two ad-hoc tribunals (ICTY and ICTR), the ICC is empowered to have jurisdiction over acts considered as crimes by the Statute at the time of their commission. This can be taken as one of the achievements of the Rome Statute as it safeguards the rights of the accused.

6. The position of Ethiopia

Ethiopia is not a signatory of the Rome Statute. Nor is there any record indicating that it took part in the process of the preparation of the Statute. Ethiopia had previously indicated an intention to wait until the formulation of the “Elements of Crimes and, Rules of Procedure and Evidence” for considering signature. However, this promise still remains unfulfilled for reasons not yet known.

Most of the wars waged in the Horn of Africa during the past 30 years have been triggered by ethnic conflicts. It was this kind of conflict that led Rwanda to lose around one million of its population. Likewise, Ethiopia is a country where different people having different religions and ethnic origin coexist. Moreover, the country lived through a number of destructive civil wars born of ethnic and religious intolerance as well as subsequent gross violation of human rights. We are already witnessing signs of ethnic and religious conflicts in some parts of the country which may endanger the peace and security of the nation. Therefore, the ratification of the Rome Statute by the Ethiopian government is undoubtedly in the interest of securing a lasting peace and security in the country.

It should be noted that the Rome Statute is nothing but a comprehensive form of the 1948 Geneva Convention on the Punishment of the Crime of Genocide to which Ethiopia is a party. The major difference is the realization of the establishment of the permanent court to prosecute persons committing the crimes listed in the Statute. However, the establishment of a permanent penal tribunal to prosecute persons committing the crime of genocide was envisaged even at that time. Surprisingly, Ethiopia not only has ratified this convention but also incorporated it in its penal law. In this regard, it is not clear why the existing government failed to give due attention to the Rome Statute which the Ethiopian people, academics, NGOs and CSOs are seriously working on.

Indeed Ethiopia has every reason to join the ICC as a country which historically played a forefront role in the fight against colonialism and apartheid and whose capital is also considered the capital of Africa.