19 Jan Three Key Moments in the Long History of the Assembly of States Parties to the Rome Statute
[Ezequiel Jimenez is a PhD candidate at Middlesex University (United Kingdom). This blog arises from his thesis on the Assembly of States Parties to the Rome Statute. All comments and feedback welcome at email@example.com.]
From 5 to 10 December 2022, delegates from the 123 States Parties to the Rome Statute met at the World Forum in The Hague for its twenty-first Assembly session. By virtue of the negotiation history of the Rome Statute, the Assembly session – the first one face to face since Covid – featured non-State Parties, like the United States, and a wide presence of civil society. After two years of hybrid ways of working, it was an opportunity to renew calls for support to the International Criminal Court after the Trump-years. While the Assembly of States Parties to the Rome Statute is the primary governing body of the International Criminal Court, much about their role remains in the shadows of hundreds of pages prepared for their annual meeting and corridor conversations that shape final outcomes. It is worth recalling that the Assembly, though not an organ of the Court, is critical for its success (for example by approving its budget), and as seen in the situation of Palestine, to afford legitimacy to the judicial process. Departing from the fact that multilateral treaties are governed by its parties, it is worth recalling the history and ideas that shaped the creation of the Assembly of States Parties. Looking back to bring forwards the issues and challenges facing the Assembly and the Court, three key moments in the history of international criminal law can help identify the forces that shape the role of states parties to the International Criminal Court.
The first stop is the 1937 Convention for the Prevention and Punishment of Terrorism, and the accompanying Convention for the Creation of an International Criminal Court.
The assassination of Louis Barthou, the French Foreign Minister, and Prince Alexander of Yugoslavia in Marseilles in October 1934, triggered France to petition the League of Nations to codify the crime of terrorism with a corresponding criminal court. Working across three sessions in April 1935, January 1936, and April 1937, and led by Vespasian Pella, the Committee for the International Repression of Terrorism envisioned a treaty-based court as an independent organisation with a defined role for the High Contracting Parties. While the twin Conventions suffered modifications between 1935 and 1937, the drafting history reveals a proto-Assembly of States Parties, a distant cousin of the current set-up. The resemblance is striking when observing the responsibility of the “meeting of High Contracting Parties” to elect judges, fund the court and review the jurisdiction periodically to add new crimes.
During negotiations in 1935, the High Contracting Parties were tasked with the election of judges in a fashion that resembles today’s Advisory Committee on Nominations of Judges. In addition, similar to the Rome Statute, High Contracting Parties were asked to nominate either:
(a) Criminologists possessing the qualifications required for appointment to the highest judicial offices in their own country or who are or have been members of courts of criminal law;
(b) Jurists who are acknowledged authorities on criminal law.
The approximation to Article 36(3)(b) is not exact but it contemplates the same spirit. By 1937, the adopted Convention for the Creation of an International Criminal Court finally asked the Permanent Court of International Justice to select the bench from nomination of interested states, but maintained the provision to select persons versed in either criminal procedure or those recognised as authorities on criminal law.
The area of financial oversight over an international criminal court by its states parties also finds a precedent in 1937. In fact, similar to the responsibility under Article 115 in the Rome Statute, the High Contracting Parties were responsible to fund and adopt the budget of the court, including to cover judges salaries. Opting to remove the possibility to fund the court via the League of Nations, a common fund “created by contributions” and based on scales agreed by the High Contracting Parties was deemed the best alternative at the time. Indeed, this is the first instance where the question of financial oversight over an international criminal court appears.
The third and final area to highlight is the amendment regime envisioned at the last preparatory session in 1937 but ultimately not adopted in the final Conventions. The drafters had intended to create an international criminal court for the specific crime of terrorism but with the long-term possibility to afford such court with an expanded jurisdiction. For that, the April 1937 session suggested that a “conference for the revision of the Convention” take place to determine changes to the statute. Following a similar procedure to Article 121 in the Rome Statute, High Contracting Parties could trigger a revision of the statute by notifying the Secretary General of the League of Nations. The notification set in motion a vote of the collective of states parties to decide “by at least a third of those Parties… to hold a conference for the revision of the Convention”. Presumably, in such review conference new crimes could be added to the statute. By 1938, the Convention for the Prevention and Punishment of Terrorism had 19 signatures but only one ratification from India. The Convention for the Creation of an International Criminal Court fared a worse outcome with no ratification never entering into force.
The second stop is the 1943 Draft Convention for the Creation of an International Criminal Courtput forward by the London International Assembly. Established by Lord Robert Cecil, a founder of the League of Nations, it met 300 times between 1941 and 1943 becoming instrumental for the creation of the United Nations War Crimes Commission, and a necessary step for the establishment of the International Military Tribunals. The Assembly’s membership included non-European countries such as China, India, Brazil, and the Soviet Union, albeit as an observer.
Reminiscent of the Assembly of States Parties to the Rome Statute, the 1943 draft statute contained a detailed description of the collective responsibility of High Contracting Parties to provide the court effective governance oversight. Titled “Meeting of the Representatives of High Contracting Parties”, Article 55 made direct links with core responsibilities for the election of judges (Article 10), the election of the procurator general and deputies (Article 21), cooperation with the court (Article 52), execution of orders of arrest by local police (Article 25 (3)) and financing of the court (Article 53). Looking at the current responsibilities of the Assembly of States Parties to the Rome Statute, the similarities are almost identical.
One interesting diversion is Article 25 creating an international constabulary for investigation, arrests and transfer of suspected individuals to the court. Needing to apprehend Axis criminals, the international constabulary was to be comprised of international candidates appointed by the judges but under the supervision of the procurator general. To guarantee the success of the international constabulary, each High Contracting Party agreed under Article 25(3) to “confer upon the Constabulary the necessary power to call the assistance of the local police”. To do so, High Contracting Parties also agreed under Article 52 to “adjust their national legislation to meet the requirements of the present Convention”. As a product of its historical context, the policing powers in 1943 nonetheless offer a continuum of the current debate over effective cooperation of states parties with the International Criminal Court to bring defendants before its judges.
The last and most relevant stop, is the 1981 Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and other International Crimes, proposed by the eminent Cherif Bassiouni. To implement Article V of the International Convention on the Suppression and Punishment of the Crime of Apartheid, the United Nations Commission on Human Rights Ad-Hoc Working Group on Southern Africa entrusted Bassiouni to prepare a draft statute. Briefly, the International Penal Tribunal intended by Bassiouni was a permanent court located in the Peace Palace in The Hague with an independent prosecutor and with the competence to investigate and prosecute individuals, states, and organisations. The Tribunal manifestly had jurisdiction over the crime of apartheid but, like in 1937, it also contained the option to add other crimes recognized in multilateral conventions by supplemental agreements. This objective made it indispensable to craft a statute with detailed governance provisions with the legislative power to expand the jurisdiction of the Tribunal over time. Thus, Bassiouni proposed the creation of the Standing Committee of States Parties, the closest sibling to the Assembly of States Parties to the Rome Statute. This is the case in substantive terms and because Bassiouni’s scholarship and drafting prowess shaped the Rome Statute.
Considered an organ of the Tribunal, unlike the Assembly of States Parties, the Standing Committee occupied a central position in the statute charged to action a set of interrelated responsibilities similar to those in 1943 and in very close proximity to those outlined in Article 112 of the Rome Statute.
The table above shows the corresponding similitudes between Bassiouni’s 1981 Standing Committee, and today’s Assembly of States Parties to the Rome Statute. A simple view indicates a high degree of proximity, making Bassiouni’s contribution a clear precedent 17 years earlier than the frantic meetings in Rome. Of the resemblance between the two instruments, Bassiouni’s approach to universality is worth highlighting in the context of current challenges at the International Criminal Court.
Bassiouni’s intention behind the Standing Committee was to create a quasi-legal body capable of making political decisions to extend the jurisdiction of the Tribunal over time. He was aware, however, that universality was a prerequisite to afford the Tribunal with legitimacy and reach. Thus, in Article 17(5)(b), the Standing Committee of States Parties was responsible to “encourage States to accede to the Convention”. One imagines the presiding officer and alternates of the Standing Committee taking a prominent and public role calling for the prompt ratification of the Convention across the world. In contrast, the Rome Statute does not explicitly mention the quest for universality of the International Criminal Court, nor it assigns to the Assembly of States Parties such role. While it is certainly true the Rome Statute contains several inferences about the importance that the “most serious crimes of concern to the international community as a whole must not go unpunished”, the categorical responsibility to seek its universality is absent. It would not be until the fifth session of the Assembly of States Parties in 2006 that a plan of action to achieve universality of the Court was proposed.
These three key historical moments in 1937, 1943 and 1981 show the imagination and drive of states to create an international criminal court and offer effective governance over its honourable aims. This is why the role and decisions taken at each session of the Assembly of States Parties to the Rome Statute counts. Recognizing the origin of ideas shaping the Assembly and the Court is necessary to build innovative ways to respond impunity. Undoubtably, the judges and the prosecutor have a role to play, so does the Assembly of States Parties.
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