AN INTERNATIONAL CRIMINAL COURT:
THE CASE FOR A FLEXIBLE APPROACH

The International Law Commission has made substantial progress toward establishment of a standing International Criminal Court in its 1993 draft statute. An ICC would be an important adjunct to a more stable world order, but a more flexible and less complex statute would create a more dynamic court better able to serve the world community.

The ILC statute provides for 18 judges with trials being conducted by chambers of five judges. This is inadequate to meet existing needs, let alone, allow for growth in the number of judges to accommodate an increasing caseload. It would for example be able to deal with only a small fraction of the possible crimes involved in a situation for Bosnia. For an ICC to be a durable institution, the statute should be flexible enough to allow for possible growth in the size of the court. The statute could specify a number of senior judges, who would constitute the appellate panel and oversee administration of the court. They could be supplemented by any number of trial judges, as determined by the states parties.

The focus of the ILC statute's jurisdictional provisions are on crimes covered by twelve conventions. The statute contemplates that states will prospectively accept the ICC's jurisdiction over crimes specified in these conventions by filling declarations with the court. It is unrealistic to expect states to surrender prospectively their right to try suspects in their own courts. Moreover, there is no way short of amending the statute to expand this list of conventions. States can be expected, however, to utilize the ICC on an ad hoc basis over specific cases involving the crimes covered by these conventions. The statute also would permit states to refer cases based upon violations of general international law, but this provision is unnecessarily encumbered by a requirement that jurisdiction be conferred by the state within which the crime occurred.

The statute need not itself confer jurisdiction over specific crimes. Jurisdiction over specific crimes should be conferred through special agreements and separate conventions. It should be sufficient that jurisdiction is conferred by (1) the state with custody of the accused and (2) any state with jurisdiction under international law to prosecute the accused in its domestic courts (these might the same state). Most cases will be submitted to the ICC on an ad hoc basis. Nevertheless, nothing would prohibit states from entering into separate conventions agreeing prospectively to submit certain types of cases to the court. The Security Council should also be permitted to submit cases, as provided for by the ILC draft statute.

In order to ensure fairness in cases of war related crimes, states should be prohibited from trying other than their nationals in their domestic courts. If a penalty greater than five years is sought, states should be required to submit the case to the ICC. States would retain the right to try their own personnel or seek lesser penalties on opposing personal in either their domestic courts or in the ICC.