The International Criminal Court: Establishment and Cooperation

The International Criminal Court, or ICC, is a permanent court established by multilateral treaty to hold individuals responsible for serious international crimes. Its creation followed years of legal preparation within the United Nations framework. From 1989, the UN General Assembly asked the International Law Commission to study the issue, subsequently promoted the drafting of a statute, and decided to convene a diplomatic conference in 1998. Italy hosted the final concentrated negotiations.

From 15 June to 17 July 1998, national representatives met in Rome to discuss the Court's powers, procedures and cooperation with states. On 17 July, the Rome Statute of the International Criminal Court was adopted by 120 votes to seven, with 21 abstentions. Adoption of the treaty text did not mean that states had already ratified and joined it, or that judges, a prosecutor and case-handling institutions were immediately all in place.

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The Rome Statute set a threshold of sixty instruments of ratification, acceptance, approval or accession for entry into force and specified the corresponding waiting procedure. Once the conditions were met, the statute entered into force on 1 July 2002, formally establishing the International Criminal Court, based in The Hague, Netherlands. Adoption in 1998, entry into force in 2002 and the assumption of office by senior personnel in 2003 were connected but distinct historical milestones.

The Court's earliest work included extensive administration. From July to the end of October 2002, an advance team of eight technical experts handled preparations relating to personnel, finance, premises, information technology, law and security, and preserved information submitted to the Court. The Division of Common Services subsequently continued institution-building, preparing to recruit staff, receive the senior organs and begin judicial work.

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Article 34 listed the Presidency, Appeals, Trial and Pre-Trial Divisions, the Office of the Prosecutor and the Registry. Judicial decision-making, independent investigation and prosecution, and non-judicial administration had different functions, requiring both cooperation and a procedural division of responsibilities. The Assembly of States Parties handled elections, budgets and related administrative oversight; that did not entitle member governments to decide individual cases in place of judges.

The first eighteen judges were elected in February 2003 and took office in The Hague on 11 March, with Philippe Kirsch becoming the first president. Luis Moreno Ocampo was elected the first prosecutor that year and assumed his duties in June. Bruno Cathala subsequently became the first registrar. The institutions designed in the legal text thus gradually acquired personnel, working premises and practicable internal processes.

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The first Assembly of States Parties met at UN Headquarters in New York on 3–10 September 2002. It considered the Preparatory Commission's work, established supporting instruments including the Rules of Procedure and Evidence and Elements of Crimes, and addressed budgets, financial rules, elections and provisional administrative authority. Jordan's Zeid Ra'ad Zeid Al-Hussein was elected president of the first session, as cooperation among states shifted from drafting a statute to sustaining an institution.

The Assembly approved a budget for the first financial period and established a Committee on Budget and Finance, assessment arrangements and a working capital fund. A Court communiqué in February 2003 summarized the first-period budget as €30 million. This budget provided resources for the Court's start-up and initial work and should not be confused with the various estimates produced during preparations. Shared funding and deliberative procedures gave recruitment, translation, facilities and conference services an ongoing administrative basis.

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On 23 June 2004, the Office of the Prosecutor announced the Court's first formal investigation, concerning serious crimes allegedly committed in the Democratic Republic of the Congo since 1 July 2002. The prosecution had previously conducted preliminary analysis of relevant information and examined jurisdiction and admissibility. Submission of information, analysis, initiation of an investigation and final judgment were different stages; preliminary material or a decision to investigate did not itself establish an individual's guilt.

The prosecution explicitly stated at the time that the investigation benefited from cooperation by the Democratic Republic of the Congo, other governments and international organizations. Investigators needed access to relevant areas, documents and witnesses, so the institution's capacity in The Hague had to connect with assistance elsewhere. The communiqué recorded that the prosecutor's office had expanded from seven to fifty-five staff since he took office, also reflecting the parallel development of early investigations and staffing.

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The statute positioned the Court as complementary to national criminal jurisdictions. Admissibility required examination of whether a state was genuinely investigating or prosecuting, and whether it was unwilling or unable genuinely to conduct proceedings. Permanent status did not automatically give the Court jurisdiction over every crime in the world: temporal, territorial or nationality conditions and triggering procedures still required separate assessment.

Although the early statute listed the crime of aggression, exercising that jurisdiction still awaited further provisions; later amended rules cannot be projected back onto 2002. The establishment of the International Criminal Court brought international cooperation, national ratification, shared funding and professional judicial institutions into a continuing system. From the outset, its practical role depended on cooperation from states and rigorous procedures, rather than solely on the declaration embodied in its founding treaty.

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