The Rome Statute of the International Criminal Court: Adoption in 1998 and Institutional Launch in 2002

The diplomatic conference on establishing an International Criminal Court met at the headquarters of the United Nations Food and Agriculture Organization in Rome from 15 June to 17 July 1998. Its official Final Act recorded representatives from 160 states, with relevant international bodies and non-governmental organizations participating as observers. Italian jurist Giovanni Conso presided over the conference, Canadian representative Philippe Kirsch chaired the Committee of the Whole, and Egyptian representative Cherif Bassiouni chaired the Drafting Committee.

The conference did not begin with a blank page. The UN General Assembly had promoted study of the subject since 1989, and the International Law Commission completed a draft statute in 1994. An ad hoc committee in 1995 and a subsequent preparatory committee continued work on substantive and administrative questions, producing the text submitted to Rome. The Committee of the Whole conducted substantive consideration, while the Drafting Committee coordinated and refined the wording, in principle without reopening substantive matters already agreed.

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On the evening of 17 July, the ninth plenary meeting considered the final text. US representative David Scheffer requested a vote on the statute as a whole, but did not request a recorded vote. The statute was adopted by 120 votes to seven, with 21 abstentions. The totals are therefore officially recorded, but a country-by-country voting list should not be invented from those totals alone.

Statements explaining positions after the vote showed disagreements over the limits of jurisdiction, the prosecutor's powers and the Security Council's role, among other issues. The US representative opposed the statute's application to non-party states and their nationals and officials. Uruguay's representative explained that an affirmative vote did not mean unconditional acceptance of every arrangement, but support for establishing an international judicial institution. Adoption of the text was the result of multilateral compromise, not unanimity among states on every provision.

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Article 1 established a permanent International Criminal Court, and Article 3 placed its seat in The Hague, Netherlands. It would hold natural persons criminally responsible and complement national criminal jurisdictions. The original Article 5 listed genocide, crimes against humanity, war crimes and the crime of aggression, but also required a separate definition of aggression and conditions for exercising jurisdiction over it. Its inclusion in 1998 cannot be read as meaning that the Court was then able to hear every aggression case.

Article 13 provided different routes for triggering proceedings: referral of a situation by a state party, referral by the Security Council acting under Chapter VII of the UN Charter, or an investigation initiated by the prosecutor under Article 15. A prosecutor-initiated investigation required authorization from the Pre-Trial Chamber. For state-party referrals and prosecutor-initiated investigations, Article 12 also imposed preconditions involving acceptance of jurisdiction by the territorial state or state of nationality, among others. An allegation alone did not empower the Court to hear any case anywhere in the world.

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Article 17 set out how complementarity would work: where a state with jurisdiction was genuinely investigating or prosecuting, a case would ordinarily be inadmissible before the International Criminal Court. Important exceptions arose when the state was unwilling or unable genuinely to conduct proceedings. The gravity of the case and whether a person had already been tried also affected admissibility. This design preserved the primary role of domestic justice while leaving room for international scrutiny when it failed or shielded offenders.

Article 25 assigned responsibility to individuals, and Article 27 provided that official capacity, including that of a head of state or government official, did not itself exempt a person from criminal responsibility under the statute. Articles 66–68 also established the presumption of innocence, the prosecutor's burden of proof, defence rights, and protection for victims and witnesses. Where their interests were affected, victims could present views at stages permitted by the Court, subject to the rights of the accused and a fair trial. Article 75 further provided a basis for reparations including restitution, compensation and rehabilitation.

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The statute was adopted and opened for signature on 17 July 1998. It then remained open at Italy's Ministry of Foreign Affairs until 17 October before moving to UN Headquarters in New York, with the signature period ending on 31 December 2000. Under Article 125, signatories still had to ratify, accept or approve it, while other states could accede; the relevant instruments were deposited with the UN Secretary-General. Italy signed on 18 July 1998 but did not deposit its instrument of ratification until 26 July 1999, illustrating the difference between signature and completed ratification.

Article 126 linked entry into force to the deposit of the sixtieth instrument of ratification, acceptance, approval or accession: after the specified sixty-day period, the statute would take effect on the first day of the following month. The UN conference's official records confirmed the entry-into-force date as 1 July 2002. Article 11 also generally limited the Court's jurisdiction to crimes committed after entry into force. Thus 1998 marks the adoption of the statute, not the start of full-scale casework by the Court.

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The Rome conference's Final Act established a Preparatory Commission to draft the Rules of Procedure and Evidence, Elements of Crimes, financial rules and an initial budget. The first Assembly of States Parties met in New York on 3–10 September 2002; on 9 September it adopted the Rules of Procedure and Evidence, Elements of Crimes and related organizational documents. The statute supplied the legal framework, but judicial, administrative and financial arrangements still had to be implemented individually.

A budget resolution of 3 September authorized appropriations of €30,893,500 for the first financial period, from 1 September 2002 to 31 December 2003, allocating funds to the judiciary, prosecutor, Registry, common services and other purposes. Authorization did not mean that all funds had already been received. Articles 86–89 of the statute also required cooperation from states parties, including lawful execution of requests for arrest and surrender. In cases of non-cooperation, the Court could, under the stipulated conditions, refer the matter to the Assembly of States Parties or the Security Council. The institution's practical operation therefore remained dependent on state implementation and continuing resources.

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