The object of this paper is to describe the negotiating process during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. It is told from the perspective of those that were ex officio at the center of negotiations, as members of the Bureau of the Committee of the Whole (CW).1 It describes the main issues under consideration at the conference and the evolution of the negotiations, including an inside view of the development of the final package containing the principal elements of the statute of the court.

The United States has had and will continue to have a compelling interest in the establishment of a permanent international criminal court (ICC). Such an international court, so long contemplated and so relevant in a world burdened widi mass murderers, can both deter and punish diose who might escape justice in national courts. Since 1995, the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court it should be in order to operate efficiently, effectively and appropriately within a global system that also requires our constant vigilance to protect international peace and security. At the same time, the United States has special responsibilities and special exposure to political controversy over our actions. This factor cannot be taken lightly when issues of international peace and security are at stake. We are called upon to act, sometimes at great risk, far more than any other nation. This is a reality in the international system.

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) took place in Rome at the headquarters of the Food and Agriculture Organization from June 15 to July 17, 1998. The participants numbered 160 states, thirty-three intergovernmental organizations and a coalition of 236 nongovernmental organizations (NGOs). The conference concluded by adopting the Rome Statute of the International Criminal Court by a nonrecorded vote of 120 in favor, 7 against and 21 abstentions. The United States elected to indicate publicly that it had voted against the statute. France, the United Kingdom and the Russian Federation supported the statute.

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

In May 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the past five years, the ICTY has shifted from an institution lacking a basic structure, staff and other resources—not to mention indictees in custody—to a fully functioning tribunal pursuing (as of December 1998) twenty-two public indictments against fifty-six indictees; twenty-eight indictees are in custody, awaiting trial or serving a sentence; five have been convicted; one has pleaded guilty; one has been acquitted; several trials are under way; and several more are in pretrial stages. Although its ultimate success is not yet guaranteed, the ICTY is coming of age as a credible forum for the international prosecution of war crimes within its jurisdiction. The following account describes the ICTY’s current status, analyzes its jurisprudence (as seen in its most significant decisions), and briefly assesses its place in the development of international humanitarian law.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 to prosecute war crimes committed during the Yugoslav conflict; the International Criminal Tribunal for Rwanda (ICTR) was established in 1994 to prosecute war crimes committed during the Rwandan civil war. The Yugoslav Tribunal has the competence to try alleged offenders for crimes enumerated in Articles 2-5 of its Statute, namely, grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. Similarly, the Rwandan Statute accords the Tribunal authority to try defendants for crimes enunciated in Articles 2-4, namely, genocide, crimes against humanity, and violations of common Article 3 of the Geneva Conventions and of Additional Protocol II. Article 7, paragraphs (1) and (3) of the ICTY Statute and Article 6, paragraphs (1) and (3) of the ICTR Statute grant jurisdiction to these ad hoc Tribunals to try the accused for individual criminal responsibility on the bases of individual culpability and superior authority.

In January and February 1998, various United States officials, including the President, asserted that unless Iraq permitted unconditional access to international weapons inspections, it would face a military attack. The attack was not to be, in Secretary of State Madeleine Albright’s words, “a pinprick,” but a “significant” military campaign. U.S. officials, citing United Nations Security Council resolutions, insisted that the United States had the authority for the contemplated attack. Representatives of other permanent members of the Security Council believed otherwise; that no resolution of the Council authorized U.S. armed action without its approval. In late February, UN Secretary-General Kofi Annan traveled to Baghdad and returned with a memorandum of understanding regarding inspections signed by himself and the Iraqi Deputy Prime Minister. On March 2, 1998, the Security Council, in Resolution 1154, unanimously endorsed this memorandum of understanding.

Prosecutor v. Akayesu. Case ICTR-96-4-T.

International Criminal Tribunal for Rwanda, September 2, 1998.

This pioneering opinion marks the first time an international criminal tribunal has tried and convicted an individual for genocide and international crimes of sexual violence. The case arose out of the massacres of perhaps a million Tutsi in Rwanda in 1994. At least two thousand died in Taba, a rural commune where defendant Jean-Paul Akayesu was mayor. A trial chamber of the International Criminal Tribunal for Rwanda concluded that, although Akayesu may at first have tried to prevent killings, he eventually donned a military jacket and participated in or ordered atrocities. The Tribunal found him guilty of one count each of genocide and incitement to commit genocide and seven counts of crimes against humanity. It acquitted Akayesu of five counts brought under common Article 3 of the 1949 Geneva Conventions and Protocol Additional II to those Conventions on the ground that he was not within the class of perpetrators contemplated by them.

Grant v. South-West Trains, Ltd. Case C-249/96. 1998 All England Law Reports (EC) 193.

Court of Justice of the European Communities, February 17, 1998.

Are employers within the European Community (EC or Community) forbidden from discriminating against their employees on the basis of sexual orientation? More generally, does the prohibition of “discrimination based on sex” contained in Article 119 of the Treaty of Rome and the Community directive requiring equal pay for men and women (Equal Pay Directive) encompass discrimination on the basis of sexual orientation? In Grant v. South-West Trains, Ltd., the European Court of Justice (ECJ) answered both questions in the negative, rejecting a strongly worded recommendation of the Court's Advocate General.

A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96.

Court of Justice of the European Communities, June 16, 1998.

The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.

Decision Concerning the Maastricht Treaty. 1998 Ugeskrift for Retsvaesen, H 800.

Supreme Court of Denmark, April 6, 1998.

In this case the Danish Supreme Court decided that the ratification and the incorporation into Danish law of the Maastricht Treaty creating the European Union are consistent with the Danish Constitution of 1953. It also reserved the right for Danish courts to review Community decisions for consistency with the Act on Denmark's accession to the EC Treaty. This decision is of vital importance to Denmark's relationship to the European Community (EC) and to the claims of direct effect and priority of EC law over national constitutions.

Prince of Liechtenstein v. Federal Supreme Court. Case 2 BvR 1981/97. 36 Archiv des Volkerrechts 198 (1998).

German Federal Constitutional Court (3d Chamber, 2d Senate), January 28, 1998.

On January 28, 1998, a chamber of the German Constitutional Court decided that the Court would not deal with a constitutional complaint brought before it by Prince Hans-Adam II of Liechtenstein, Head of State of die Principality of Liechtenstein. In effect, the chamber thus upheld the decisions made by the civil courts rejecting the Prince's attempt to recover a family painting confiscated by Czechoslovakia and currently on loan to a German museum.

Public Prosecutor v. Ashby. Judgment No. 161/98.

Court of Trento, Italy, July 13, 1998.

On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

Public Report of Review of NAO Submission No. 9703.

U.S. National Administrative Office, U.S. Department of Labor, July 31, 1998.

On July 31,1998, the U.S. National Administrative Office (NAO) issued its Public Report of Review (Report) on a petition filed by several U.S. and Canadian labor unions alleging labor law violations in Mexico. The Report found credible allegations that Mexican workers were threatened and attacked as they sought to pursue legitimate union activities at an export-processing plant in Ciudad de los Reyes, Mexico. In addition, the Report determined that Mexican officials had failed to protect the labor interests of Mexican workers seeking to exercise their freedom of association. The Report called for ministerial consultations between the U.S. Secretary of Labor and the Secretary of Labor and Social Welfare of Mexico to address these issues.