1/2003 Content

78 (2003) 1: International Criminal Justice

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The International Criminal Court: Stocktaking in early 2003
Hans-Peter Kaul

This article presents the current situation concerning the concrete establishment of the International Criminal Court (ICC) as well as the future perspectives of this new world court. First, some key principles of the Rome Statute governing the functioning of the ICC are recalled, followed by a summary of the progress of the ICC project which could be achieved in the less than five years since the Rome Conference in 1998. With regard to continuing difficulties the article discusses the clearly negative attitude of the current US administration towards the ICC and the limited number of ICC States parties as the most serious challenges that the ICC and the States parties have to face in the foreseeable future. In its last section the article turns to the perspectives for the future development and activities of the ICC. This leads to the fundamental issue of how to achieve that the ICC will gradually become an effective and functioning international court which enjoys the respect of the international community.

Who changed the road rules? The ICC and the Security Council hammering in conflicting road signs
Noëlle Quénivet

This article aims at investigating Security Council Resolution 1422 that prevents the International Criminal Court from commencing any proceedings “involving current or former officials or personnel from a contributing State not a Party to the Rome Statute“. Although this resolution was adopted at the insistence of the United States in order to protect its peacekeeping troops, it is more far reaching in its scope. Again it raises the question of the power of the Security Council to adopt resolutions that may not be within its competence according to the United Nations charter and general international law.

La compétence complémentaire de la Cour Pénale Internationale à l’épreuve des lois d’amnistie inconditionelle
Djamchid Momtaz

This article gives attention to the question if an unconditional amnesty enacted by a State Party to the Statute of the International Criminal Court would be an obstacle for the Court to exercise its complementary competences. Two arguments are supporting a negative answer: In so far as the Statute considers crimes falling within the scope of its competences as a threat to international peace the States could be viewed as forced to prosecute the authors of such acts by obligations erga omnes while all indications of a State not to comply would entitle the court to exercise its competences. Moreover, such laws ignore the will of the States to put an end toexemptions from punishment which are impeding the democratic order and are fostering other crimes. However, these arguments should not be regarded as decisive. Before exercising its competence the court should also consider other factors – in particular the impact of such laws on the process of national reconciliation.

Crimes against humanity v. immunity of State officials revisited – Some remarks on the Congo v. Belgium case
Władysław Czapliñski

The decision of the International Court of Justice in the case of a Belgian warrant of arrest against a former Congolese foreign minister concerned two important aspects of modern trends of criminal responsibility of highranking state officials. The Hague judges did not discuss the issue of universal jurisdiction, as the Congo withdrew her claims in this field, but instead concentrated on the immunity of the former foreign minister. The Court decided to grant absolute immunity. The present paper seeks to investigate the majority judgement as well as individual opinions by some of the judges. The author is very critical in respect to the judgement expressing the view that the decision is extremely traditional because it does not take into account current trends in state practice and international law doctrine, including obligations erga omnes. In particular, the scope of immunity granted to the a former minister exceeds the needs of this post, especially when taking into account the gravity of the imputed crimes.