The establishment of the ICC by the UN is the final product of fifty years of work aimed at developing an international judicial body with the capability of adjudicating cases of genocide and crimes against humanity. The efforts to create such a body began in 1872 with Hustav Moynier, one of the founders of the International Committee of the Red Cross (ICRC), who proposed a permanent court to respond to the crimes committed during the Franco-Prussian War. The drafters of the Treaty of Versailles raised the idea again in 1919, when an ad hoc international court tried the Kaiser and German war criminals for the events of World War I. Finally, the concept became a reality when the Allies created the Nuremberg and Tokyo tribunals to try Axis war criminals in the aftermath of World War II. At each step, it became clear that there was a definite need for an international body of justice.
The modern ICC grew out of a concept first suggested after the conclusion of World War II. On December 9, 1948, the third UN General Assembly passed Resolution 260, stating the need for international cooperation to punish and end genocide around the world. The resolution included the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide, which characterized genocide as “a crime under international law.” In that resolution, the General Assembly stated the need for the International Law Commission (ILC) to study the possibility of an international judicial apparatus for trying those charged with the crime of genocide. The ILC concluded that the creation of an international court of this kind was both possible and desired by many nations. The committee prepared a draft statute by 1951 and a revised version in 1953. However, the General Assembly decided to postpone the statute’s consideration until they could create a concrete definition of “aggression.”
The ILC proposed the creation of the ICC again in 1989, motivated by an effort to end international drug trafficking. Trinidad and Tobago reinvigorated the existing ILC proposal for the establishment of an ICC, and the General Assembly responded by asking the ILC to resume its work on drafting the statute with a focus on curbing drug trafficking. In the early 1990s, the conflicts in Bosnia-Herzegovina, Croatia and Rwanda resulted in many incidents of crimes against humanity, war crimes and acts of genocide. In response to these incidents, the UN Security Council (UNSC) established two separate temporary ad hoc tribunals to hold individuals accountable for the atrocities. The nature of these conflicts highlighted the need for an international criminal court.
The topic of the proposed body was occasionally raised within the General Assembly many times, but it was not until the 1993 conflict in the former Yugoslavia that the General Assembly asked the ILC to resume work on the project as a means of prosecuting genocide. In its efforts to end the suffering of the conflict, the General Assembly created an ad hoc criminal tribunal for the former Yugoslavia in order to deter future war crimes by punishing those who committed the atrocities. As a result of the work done at that time, the ILC submitted a draft statute in June 1994 to the General Assembly. In order to consider major substantive issues in the drafted statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995.
The General Assembly reviewed the Committee’s report, which led to the creation of the Preparatory Committee on the Establishment of the ICC in order to prepare a finalized draft text of the statute. The Preparatory Committee met for six sessions between 1996 and 1998 at the UN headquarters in New York. At these sessions, various NGOs contributed to the discussions under the direction of the NGO Coalition for an ICC (CICC). The Preparatory Committee convened an intersessional meeting in Zutohen, the Netherlands, in January 1998 in order to consolidate and restructure the articles into a final draft.
During June and July 1998, the UN General Assembly met in Rome, Italy, to convene the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. One hundred and sixty countries participated in the “Conference of Rome,” of which 120 voted in favor of adoption of the Rome Statute of the ICC. Seven nations, including the US, Israel, China, Iraq and Qatar, voted against the treaty. UN Secretary-General Kofi Annan spoke at the session in which the Assembly finalized and adopted the convention establishing the ICC:
In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision. We are close to its realization. We will do our part to see it through till the end. We ask you . . . to do yours in our struggle to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.
The Preparatory Commission (PrepCom) was charged with establishing the court and ensuring it functioned smoothly. PrepCom also oversaw the negotiation and adoption of rules of procedure, evidence, elements of crimes and a relationship agreement between the court, the UN and the nations who chose to adhere to its jurisdiction. On April 11, 2002, the sixtieth ratification necessary to trigger the entry into force of the Rome Statute was deposited in conjunction by several states.
The treaty entered into full force of law on July 1, 2002.