|International Criminal Court (ICC)
Parallel to the judicial activities of the two ad-hoc tribunals, the work continued on the permanent international criminal court. In 1994, the ILC submitted its final Draft Statute and a Preparatory Committee, dubbed the 'PrepCom', was created by the General Assembly.
After the good performance undertaken by the ICTY and ICTR, delegates of many countries agreed that only a permanent and independent international court could respond to crimes, irrespective of where they take place and who commits them. Moreover, a permanent court would not have those start-up difficulties inherent in all ad-hoc tribunals, but would be ready for any situation and could moreover be cost-effective, since structures are already available.
In June 1998, 160 states assembled in Rome to create a permanent international criminal court. Five weeks later, after intense negotiations, a great majority of 120 states, with 20 abstentions and 7 votes against the Statute, adopted the Statute of the International Criminal Court on July 17, 1998. As Kofi Annan declared at the ceremony taking place a day after the adoption of the Final Act: "This is indeed a historic moment" […] "[b]y adopting this Statute, participants in the Conference have overcome many legal and political problems, which kept this question on the United Nations agenda almost throughout the Organization's history." Kofi Annan stated that the establishment of the ICC is "a giant step forward in the march towards universal human rights and the rule of law." In fact, the Rome Statute is regarded by many scholars of international law as the culmination of international law-making. As formulated by Triffterer in the Commentary on the Rome Statute of the International Criminal Court:
"The Rome Treaty of 17 July 1998, establishing the International Criminal Court, is the United Nations' most significant accomplishment since its establishment in 1945. The treaty is the culmination of a 75 year effort, spearheaded by academics and NGOs, and it represents the contemporary aspirations of international civil society in achieving peace with justice and justice with peace."
The Rome Statute came into force on July 1, 2002 after more than 60 countries deposited their instruments of ratification and thereby crossing the threshold of the required 60 states. Meanwhile, in February 2003 the judges were elected, two months later the prosecutor and in June 2003 the registrar. With this the International Criminal Court is able to take up its judicial functions. As of July 1, 2003, 90 States have ratified, and thereby constitute the Assembly of States Party.
Contrary to the IMT, the ICTY and the ICTR, the International Criminal Court has no primary jurisdiction according to art.17 (1) ICC Statute, but is only competent, "unless the State is unwilling or unable genuinely to carry out the investigation or prosecution". This so-called principle of complementarity respects national sovereignty and promotes indirectly the extension of domestic jurisdictions to include international crimes.
In the present world the exercise of jurisdiction over perpetrators of heinous crimes by international criminal tribunals has been universally accepted. This is an astonishing achievement given the fact that the IMT's of Nuremberg and Tokyo rendered their first judgements only less than 60 years ago.
The establishment of the ICC marks a further historic milestone, since for the first time a permanent international criminal judiciary has been created. However, the effect of the ICC Statute is weakened, because ratifications of significant States such as the U.S.A., Russia, China and India are still outstanding. Another weakening factor is that, as of 15-December-2003, 67 States had signed so-called «bilateral agreements » relating to Article 98 of the ICC Statute with the U.S.A.
The judiciary activities of the Special Tribunals in Sierra Leone and of the UN-administration in East Timor shows that there is still need for ad hoc institutions to try crimes committed before the entry into force of the ICC Statute.