The Basics

The International Criminal Court (ICC) is an independent institution located in The Hague, the Netherlands.

The Rome Statute, signed 17 July 1998, created the ICC and established how to govern the Court.

The ICC has been in operation since 1 July 2002.

The ICC tries cases against people accused of genocide, crimes against humanity, war crimes, or crimes of
aggression.

Jurisdiction can be complicated in some situations, but generally, the Court may only assert jurisdiction in
states that have signed the Rome Statute. Interestingly, the ICC cannot try cases for crimes committed
before a State signed on to the Statute.

As of 1 July 2012, 121 States signed and ratified the Rome Statute.

The ICC consists of the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry.

Structure
There are 18 judges in the ICC. The Presidency is comprised of three judges, who are elected from within the 18
judges in the ICC and who each serve 3-year terms. The Presidency is comprised of The President of the Court,
a First Vice-President, and a Second Vice-President. Once elected, in accordance with the Statute, these judges
oversee the overall management of the ICC, including "judicial/legal functions, administration and external
relations."[1]

The Judicial Divisions are the Appeals Division, the Trial Division, and the Pre-Trial Division. The President sits on the
Appeals Division, along with four other judges. The Trial and Pre-Trial Divisions consist of no less than 6 judges each,
though their proceedings consist of three judges. A single Judge may carry out many of the functions of the Pre-Trial
Chamber. The judges are placed in the Divisions based on their qualifications and expertise for a 3-year term, which
may be extended for trials they preside over that continue beyond their term.[2]

The Office of the Prosecutor receives referrals for cases and information on crimes within the Court's jurisdiction from
States, UN Security Council (UNSC), or based on their own initiatives.[3] It then examines what it receives, potentially
conducts investigations, and potentially prosecutes cases before the Court. The Office consists of the Deputy
Prosecutor, the Investigations Division, and the Jurisdiction, Complementarity and Cooperation Division.[4]

The Registry, headed by the Registrar, is responsible for judicial and administrative support of all divisions of the ICC,
specifically in matters of defense, victims and witnesses, outreach, and detention.[5] The Office of Public Counsel for
Victims and the Office of Public Counsel for Defence also technically fall under the Registry, but they essentially
function independently and are semi-autonomous.[6]

Historical Context
Before the ICC, four tribunals in particular showed that there was a need for a permanent international court to serve
the international community. Two of these tribunals took place after World War II: the International Military Tribunal at
Nuremberg (1945-1946) and the International Military Tribunal for the Far East in Tokyo (1946-1948). These tribunals
set out largely to punish Nazi leaders and physicians in Germany, as well as the Japanese war criminals who led their
people to fight with Germany in the Second World War. The astonishment that existed after the horrors of World War
II led to the establishment of the United Nations Convention on the Prevention and Punishment of the Crime of
Genocide. The Convention defined genocide as a crime under international law and it was under this convention that
the International Law Commission (ILC) was first permitted to explore the possibility of creating an international
judicial body for trying people for crimes of genocide.[7]

The ILC consists of thirty-four members who have a "recognized competence in international law" and are nominated
and elected by the UN General Assembly.[8] While the ILC continued to conduct research and gather information,
The Cold War, starting in the 1950s through the 1980s, caused a decrease in focus and concern for the creation of an
international court. The United States and Russia, as well as their respective allies, developed a growing distrust of
one another and were constantly engaged in a power struggle, rendering the UN essentially inoperative on many
fronts. Consequently, the ILC was not able to make much, if any, progress towards beginning discussions about an
international judicial body with governments of the UN Member States. As the Cold War was ending in 1989, the UN
General Assembly requested that the ILC "resume work on an international criminal court with jurisdiction to include
drug trafficking."[9] This work began to gain momentum again, but in the meantime, the UNSC created the third and
fourth tribunals that further influenced the international community. Those were the International Criminal Tribunal for
Yugoslavia (ICTY), established in 1993, and the International Criminal Tribunal for Rwanda (ICTR) established in
1994.[10] Though the support for these tribunals was strong, these ad hoc tribunals were, and continue to be, very
costly. The ICTY had a budget of approximately $70 million, while Rwanda's tribunal had an annual budget of
approximately $40 million. These high financial costs made them less appealing to the UN General Assembly and
provided further evidence for the need of an established international court to streamline funds and efforts. It was not
until 1994 that the ILC finished drafting a statute for the ICC and submitted it to the General Assembly. After that, an
ad hoc committee met twice in 1995 and created the Preparatory Committee to work towards a "widely acceptable
consolidated draft text."[11] From 1996 to 1998, the committee had six plenary sessions in order to debate and
negotiate the potential court.[12]

Four major issues arose in the negotiations for creating the ICC. "First, the role of the [United Nations] Security
Council, second, the level of independence granted to the prosecutor, third, the method by which states would accept
the Court's jurisdiction, and fourth, the preconditions that needed to be met in order for the Court to exercise that
jurisdiction."[13] Some States remained uncomfortable with the amount of power that was eventually granted to the
Court, particularly the United States. While the ICC is a fully independent body from the United Nations, the UN
Security Council can delay investigations and prosecutions by passing resolutions supported by at least nine of the
UNSC members, as long as no permanent member of the UNSC vote against the delay resolution.[14] [15] If a
permanent member of the UNSC does not support the resolution, but does not wish to vote against it either, they may
abstain from the vote, therefore not affecting the outcome. This delay that the UNSC can enact by passing a
resolution is for a period of 12 months that can be renewed annually, and could be viewed as a potential stalling
tactic. The power that the UNSC has to delay cases makes the ICC's independence somewhat questionable.

Finally, the Rome Statute was completed on 17 July 1998, creating the ICC and establishing how the Court would be
governed.[16] The ICC has been in operation since 1 July 2002. The four years between the completion of the
Statute and the operationalization of the ICC was due to the delays of countries ratifying the Statute. In order for it to
be put into force, at least 60 governments needed to ratify the Statute, which finally happened on 11 April 2002.
[17] During the months between April and July 2002, a 5-person advance team was put in place to begin the process
of setting up the Court. Over the next year, the Assembly of States Parties elected the judges, prosecutors, and a
registrar.[18] The States also established the first approved budget for the ICC of approximately 53 million euros for
the year 2004.[19] By 2011, the budget nearly doubled to over 103 million.[20]

There is a limited scope as to the types of cases the ICC tries and where the Court may assert jurisdiction. The ICC
tries cases against people accused of genocide, crimes against humanity, war crimes, or crimes of aggression.
Jurisdiction can be complicated in some situations, but generally, the Court may only assert jurisdiction in states that
have signed the Rome Statute. Interestingly, the ICC cannot try cases for crimes committed before a State signed on
to the Statute. As of 1 July 2012, 121 countries signed and ratified the Rome Statute.[21]

Process
There are three ways for the ICC to receive a situation to investigate. The first way is that a State Party of the Rome
Statute refers a situation to the Prosecutor. The second way is for the UN Security Council to request an investigation
of a situation in any State that is a member of the UN. Even if the State to be investigated has not ratified the Rome
Statute, they may still be investigated because all member states of the UN are bound by UN resolutions. The third
way is on the Office of the Prosecutor's own initiative. Under this course of action, the Prosecutor must request
authorization to proceed with an investigation from a Pre-Trial Chamber.[22]

Following the initiation of the investigation, a situation is assigned to a Pre-Trial Chamber. The Prosecutor may decide
before or after the initiation of an investigation that there is no basis to proceed. However, if a State or the UNSC has
referred the situation to the Prosecutor, the Pre-Trial Chamber may request that the Prosecutor reconsider their
decision to end the investigation. Additionally, if the Prosecutor decides not to move forward based on a
determination that it would not be in the interest of justice, the Pre-Trial Chamber could choose to review this
determination. If the Pre-Trial Chamber chooses to conduct a review, it has to affirm the determination in order for it to
stand.[23]
However, if an investigation proves fruitful, the Prosecutor may apply to the Pre-Trial Chamber for a warrant of arrest
or a summons to appear for the person suspected of commiting a crime or crimes that fall under the scope and
jurisdiction of the ICC. If the Pre-Trial Chamber issues the warrant or summons, it is the hope that the wanted person
will be surrendered to the Court or appear voluntarily, at which point a hearing to confirm the charges is held. Of the
ICC's suspects which there have been warrants issued, three were arrested by their governments and transferred to
The Hauge, while two were arrested by foreign authorities and also transferred to The Hague. Ten of the ICC's
suspects appeared before the Court voluntarily.

Once the charges are confirmed, the case is then assigned to a Trial Chamber. During the trial, the Prosecutor must
prove the defendant guilty beyond a reasonable doubt. The accused can act as his or her own defense or be
represented by counsel. Decisions made by Chambers can be appealed throughout the Pre-Trial and Trial phases,
which are reviewed by the Appeals Chamber.[24] Victims can also participate in the proceedings either directly or
through legal representation. When the proceedings have concluded, the Trial Chamber decides if the accused is to
be acquitted or convicted. If convicted, there will be a sentencing, which can include imprisonment and even
reparations to victims.

Investigations and Cases

Since 2004, the Office of the Prosecutor has developed 17 cases, with 30 suspects, out of seven situations that they
have fully investigated. Of these seven situations, Member States (Uganda, the Democratic Republic of the Congo,
and the Central African Republic) referred three, the UNSC referred two (Libya and Darfur, Sudan), the Office of the
Prosecutor initiated one (Kenya), and one state (Cote d'Ivoire) gave jurisdiction to the ICC.[25] Of these 30 suspects,

13 remain at large,

four are awaiting trial,

charges against another four were not confirmed,

three are currently on trial,

two died before they could be brought before the Court,

two are awaiting a decision of guilty or innocent,

one is awaiting their charges to be heard, and

one was convicted.

The conviction is discussed further below.

The Office of the Prosecutor also currently has preliminary examinations for Nigeria, Colombia, Afghanistan, Georgia,
Guinea, Honduras, and Korea. The start and progression of these investigations vary, but they range from beginning
in 2005 to beginning in 2010 and all are ongoing. Guinea is an example of a case that has resulted in positive
consequences, with Guinea moving forward with its own internal trial. Georgia was particularly pressing, as the
Prosecutor received 3,851 communications from individuals and civil society organizations.[26] The Russian and
Georgian governments have shown some cooperation by participating in meetings with the Office of the Prosecutor
and providing information requested by the Prosecutor. The Office has not been so lucky in conducting its preliminary
examination of Afghanistan, as it has received no responses to its requests for information from the government.

Success
After nearly two years of analysis and investigation, followed by six years of proceedings, the ICC's first case verdict
was handed down on 14 March 2012. Thomas Lubanga Dyilo of the Democratic Republic of Congo was found guilty
of enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age
of 15 to participate actively in hostilities.[27] On 17 March 2006, there was a public announcement of the issuance of
the arrest warrant for Lubanga. In this case, the authorities of the State cooperated and transferred Lubanga to The
Hague. Defense counsel was provided to Lubanga because he could not afford to pay for it himself. When there was
an issue of evidence favorable to Lubanga being withheld from the Defense and the Trial Chamber because of
confidentiality issues, the Court followed judicial procedure. The Court then conducted the appeal process during the
Trial phase, ensuring that the trial would not move forward until this issue was resolved. Though these appeals
extended the length of the trial, it ensured that Lubanga's human rights and due process were respected, while still
successfully achieving some kind of justice for Lubanga's victims.

Lubanga was sentenced to 14 years, which would only be eight more years after the conclusion of the trial since
Lubanga was detained in The Hague since 2006. After the proceedings ended, the Trial Chamber issued its first
decision on victims' reparations for harm caused by Lubanga.[28] This decision did not outline what reparations
should be made to the victims, but rather requested reparations proposals from victims to be submitted to the Trust
Fund for Victims, which would then be reviewed by the Chamber. This decision has created some controversy among
victims because they are not sure what to expect or that they will even receive anything for their suffering, particularly
since Lubanga was found to be indigent.

Controversy
The ICC has been a controversial issue since people began talking about its possible existence. Now that it has been
an international judicial entity for 10 years, the consequences seem to be becoming real and some countries continue
to avoid ratifying the Rome Statute. For example, though the United States signed the Statute, they have not ratified it
because it is viewed as giving up an important piece of state sovereignty.

However, it may be the states that have ratified the Statute that should be the most worried about their sovereignty,
as people are beginning to wonder if the investigations are biased, looking at only some parties to a conflict rather
than all of them. Another controversy involves the fact that most of the investigations being conducted are in Africa
and the Middle East. Some people suggest that this implies a bias or unfair focus on those regions and/or the Court
taking advantage of weak states.

Yet, with only one conviction in the 10 years of the ICC's existence, these consequences may seem unreal or unlikely
to many still. With the first conviction coming down, and Lubanga only serving eight more years from when the trial
finished, the consequences for committing these crimes do not seem to be as harsh as some might think they should
or could be for those who are found guilty. Additionally, the amount of time that the investigations and trials take, can
allow the suspects to find ways to remain at large, even after a warrant is issued for their arrest.

Another controversial issue regarding the ICC is the role of the UNSC. The two have signed an agreement that lays
out how the two bodies will cooperate with one another, largely through administrative procedures and information
sharing. However, the UNSC's ability to delay indefinitely any case (as described above) is controversial. Particularly
the permanent members of the UNSC have a great power because they can use their veto power to deny the
progression of a referral to the ICC, even if other members of the UNSC want to pass such a resolution. With the
UNSC's two referrals to the ICC so far, regarding Darfur and Libya, was the Council's motivation pure in achieving
justice for the people of those states or did they have other motivations in seeing these situations investigated and
potentially prosecuted by the ICC?

These issues also raise questions about the Court achieving what organizations like Human Rights Watch (HRW)
believe its mission to be, which they describe as bringing "to trial those most responsible for the gravest crimes
representative of underlying patterns of ICC crimes."[29] HRW criticizes the ICC for not conducting thorough enough
investigations to go up the chain of command to reach the true leaders who are committing heinous crimes against
humanity. There are also criticisms on the way the Court is treating gender, because they are not including rape and
sexual violence in the charges against the accused.

The receptiveness and cooperation of the local populations can be important to the work of the ICC in achieving
justice. However, if the ICC cannot provide appropriate protections for the physical and economic safety of victims,
they may be reluctant to come forward with evidence or to participate in the trial. Victims may therefore never have
the opportunity to see justice happen or to reclaim their lives after the traumas they or their families experienced.

These issues are important and their neglect by the Court has rendered it less successful than many had hoped.
However, its task is highly complex and political, and it would have been unreasonable to expect it to achieve all its
aims without difficulty or controversy. It will be interesting to see how the court addresses these issues in the future,
and if it can be made more effective, more broadly accepted, and more cost-effective.
G. The ICC Today

Since the ICC first came into existence in 2002, it has become an integral part of the international political relations
and human rights systems. As of July 2008, 108 States Parties had ratified the Rome Statute, and the ICC prosecutor
had taken up four country situations. Although there have as yet been no convictions, some significant work has been
done.

Criticisms of the International Criminal Court

A. The Politically Motivated Prosecutor

Clearly, what many ICC opponents fear most is a prosecutor who initiates proceedings proprio motu for purely
political reasons.(111) John R. Bolton, former American Permanent Representative to the UN, has suggested that the
United States should be mainly concerned for the President, the Cabinet officers who comprise the National Security
Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the real
potential targets of the politically unaccountable prosecutor.(112) However, safeguards have been built into the
Rome Treaty precisely to guard against politically motivated prosecutions. International crime is inherently political.
Anyone who assumes the prosecutorial role at the ICC will, of course, come with his or her political perspective on
the world and its conflicts, and external political pressure may be exerted in an effort to bring a complaint when it
might not be justified or even helpful in a particular political context.(113) However, several factors notably, a
process of vigorous internal indictment review, such as that in place at the ICTY and ICTR; the requirement of
confirmation by a judge; and the inevitable acquittal that would result from an unfounded prosecution likely prevent
any abuse of power by a politically driven prosecutor.(114)

In fact, the ICCs goal is to alleviate the adverse effect of political pressures in the realm of international justice.
States have historically been reluctant to exercise universal jurisdiction in respect of grave crimes, due to political
pressures from other states that wish to avoid exposure of their complicity. The ICC serves to shift some of this risk
from individual states and thereby overcome political obstacles to prosecution.(115)

Some states also opposed the proprio motu power of the prosecutor on the ground that the office would be
overwhelmed with frivolous complaints and would have to waste precious resources addressing them.(116) The real
challenge, however, might actually lie in choosing from among meritorious complaints the appropriate ones for
intervention, rather than weeding out the weaker ones. For example, before the appointment of the current
prosecutor, more than 200 complaints had been registered,(117) but the prosecutor has been able to dispose quickly
of large quantities of unsubstantiated allegations, as a large percentage do not meet the jurisdictional requirements.

B. Soldiers Confused by the Laws of War

Another concern that finds expression in the debate is that the ICC endangers soldiers because its existence will
prevent them from acting when they should, for fear of potential prosecution. Those who express this opinion contend
that if the prosecutor initiates proceedings without supervision by any national government, cases could be pursued
without understanding the dilemmas that are faced by soldiers in armed conflict. In response to this assertion, Adam
Roberts suggests that many senior UK officers take a positive view of the laws of war. This is not an isolated
perspective. In the 1991 Gulf War and in the 1999 Kosovo conflict, western forces found that the law actually assists
in the professional and effective conduct of military operations.(118)

In addition, Article 8 of the Rome Statute limits the prosecution of soldiers for isolated incidents, regardless of whether
they might be considered criminal acts. ICC jurisdiction is meant to apply to, in particular, war crimes that are
committed as part of a plan or policy or part of a large-scale commission of such crimes.
C. A Barrier to Peace and Reconciliation

Many commentators have expressed their concern that the ICC may stand as an obstacle to reconciliation and the
resolution of conflicts.(119) In the past, many countries, including South Africa, Chile and, to some extent, Great
Britain in relation to Northern Ireland, have granted amnesties in order to end conflicts. The fear is that as the ICC
becomes involved in ongoing or recent conflicts, wars will be fought longer, peace processes will be disrupted and
leaders will be reluctant to relinquish power if facing indictment. Ultimately, the argument is that removing the
possibility for amnesty removes incentives for settlement, and may even encourage leaders to remain in power.

Conversely, others suggest that amnesty is not the reason that dictators relinquish power. They argue that instead,
dictators leave only when they are weak and vulnerable and desperate to get whatever they can, not whatever they
want.(120) Moreover, an indictment does not necessarily have a negative effect. For example, the arrest of Augusto
Pinochet in London in 1998 did not destabilize Chile. Opinion polls at the time suggested that the arrest had no
influence on voting intentions, that most were certain of his guilt and, although there was a preference that justice be
meted out at home, most realized that this was a practical impossibility.(121) Similarly, while it cannot yet be said
what effect the indictment of Milosevic had in his downfall, it arguably did not result in his clinging stubbornly to
power.

During the ICC preparatory phase and in Rome in 1998, the issue of how to address amnesties was never discussed,
in part due to pressure from human rights groups.(122) Significantly, Article 53 of the Statute does allow for the
prosecutor to refuse to proceed with an investigation or prosecution if it would not serve the interests of justice. As
discussed earlier, this decision is subject to review by the Pre-Trial Chamber.

The amnesty versus prosecution debate is at issue in at least two of the situations currently under investigation by the
ICC prosecutor. In Darfur, the arrest warrant issued for the Sudanese President, al-Bashir, is feared by some as a
potential threat to the peace process and as endangering humanitarian and peacekeeping operations on the ground.
(123) However, others argue that the threat of an arrest warrant has encouraged the government to reach out to its
domestic rivals during the conflict, thus enhancing prospects for peace. In Uganda, some observers hold that the ICC
arrest warrants were critical in bringing Joseph Kony and others to the negotiating table. However, the LRA leaders
are now demanding to be shielded from prosecution in exchange for their further participation in the peace process.
As such, international and Ugandan opposition to the role of the ICC is mounting. Thus far, the prosecutor has
refused to withdraw the warrants.

D. The ICC Purports to Exercise Jurisdiction Over Non-Party Nationals

The US government has expressed concern that the Rome Treaty purports to exert jurisdiction over US servicemen
even if the United States has not ratified. In fact, following the principle of universal jurisdiction accepted under
international law, any state has the right to prosecute the crimes defined in the Rome Treaty genocide, war crimes
and crimes against humanity regardless of jurisdictional links such as nationality and territoriality.(124) The US itself
has historically supported this principle: Since its beginnings in the 18th century, the US has recognized the power of
its courts to prosecute individuals for the act of piracy; and by participating in the Nuremberg and Tokyo tribunals it
has clearly recognized universal jurisdiction with respect to war crimes and crimes against humanity.(125) The
American Restatement of Law confirms this:

A state has jurisdiction to define and prescribe punishment for certain offences recognized by the community of
nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes,
and perhaps certain acts of terrorism, even where none of the bases of jurisdiction is present.(126)

Recent US court cases have indicated an increased reliance on the principle of universality.(127) It would seem to
follow that the ICC would be competent as a state to prosecute serious international crime.
E. Cost and Delay

As the ICC matures, critical voices are mounting with respect to the expense and delay involved in ICC proceedings.
(128) By early 2008, the ICC had cost the international community over $600 million(129) and had yet to be
anywhere near its first conviction. The Lubanga case, the case that had advanced the furthest, had essentially been
derailed by late 2008. Even proponents of the ICC have begun to ask whether the ICC is losing credibility.

On the other hand, although major prosecutions proceeded slowly, things are not at a standstill. They are even
beginning to move faster between November 2007 and May 2008 almost 700 application process filings and
decisions were made at the ICC; and status, rights and modalities for victim participation during investigation, and at
the pre-trial and trial stage, were also determined. The problem is that success at the procedural level inevitably
slows progress in the actual trials, bogging down the larger issues at play.(130) The main question is whether the ICC
can retain its preventative power in the face of such delays. The ICC will remain credible only as long as it can remain
a powerful symbol for deterrence.

F. The Focus on Africa

Finally, one recent concern of some significance is the ICC prosecutors exclusive focus on sub-Saharan Africa. A
number of critics have expressed serious reservations about this practice, and voice fear about bias and the
perception that the ICC is yet another instrument of foreign intervention in a long history of Western/Northern
interference in African affairs. Even if various geopolitical pressures have simply made it easier for the prosecutor to
begin investigations in Africa rather than elsewhere, commentators contend that this sends a negative signal about
how the ICC may continue to work, and they maintain that the ICC cannot investigate African crises alone.(131)

Proponents of the ICC raise a number of explanations for the Courts concentration on Africa. First, each of the
situations under investigation has been initiated upon referral by an African government or the UN Security Council. It
is difficult to claim that the prosecutor is biased against Africa in his investigations if three of the four investigations
were requested by the governments of those countries themselves. The prosecutor has also noted that he has begun
his investigations because it is in Africa that the breaches of humanitarian law are most severe. Sexual assault,
forced displacement and massacre are issues that are present on a massive scale in the countries under
investigation. He says it is only natural that they should come under investigation first. National legal systems are also
weak in Africa, so the complementarity principle has led to ICC jurisdiction faster than in some other states. Finally, it
is important to note that although the prosecutor has initiated official investigations in Africa only thus far, he is also
seriously monitoring the situation in other countries around the world, including Afghanistan, Georgia and Colombia.
(132)

Where the United States Stands Today

The American position with respect to the ICC has changed slowly since the Court first came into being. The US
government has always been a staunch opponent of the ICC, particularly since President Bush formally renounced
any US obligations under the Rome Statute in May 2002. As a direct result of this opposition, the president signed
the American Servicemembers Protection Act (ASPA) into law in August 2002. This law restricts any US agency,
court or government cooperation with the ICC, except when the ICC deals with US enemies; makes US support of
peacekeeping missions in large part contingent on the guaranteed impunity of US personnel; and grants the
president permission to free US citizens and allies from ICC custody by any means necessary, thus earning the
legislation the nickname of The Hague Invasion Act.(133)

Once the ASPA was enacted, the US government immediately began negotiating bilateral immunity agreements with
nations around the world in apparent accordance with Article 98 of the Rome Statute. States that signed these
agreements had to promise not to surrender Americans on their territory to the ICC. Subject to a national interest
waiver, the ASPA then denied US military assistance (education and training, and financing) to states that had not
signed such agreements (except NATO members, major non-NATO allies and Taiwan). Many governments thus
effectively had the ASPA held over their heads. In December 2004, the US government added the Nethercutt
Amendment to this arrangement. The Amendment was part of an omnibus appropriations law that went beyond
military assistance to also deny a broad range of aid (through the Economic Support Fund) to states that refused to
sign the immunity agreements.(134)

As of December 2006, over 100 immunity agreements had been signed. Fifty-six States Parties had not signed the
agreements, including Canada, the United Kingdom, France, and a number of Latin American countries. As a result,
24 States Parties lost US aid in the 2005 fiscal year.(135)

However, the US position on the bilateral immunity agreements began to soften in 2006. Amendments were made to
the ASPA in 2006 and 2008, lifting restrictions on foreign military assistance to countries that had not signed such
agreements, and a number of waivers were issued. The US government also generally stopped requesting immunity
agreements of States Parties. All that remains of these restrictions today are the Nethercutt restrictions on aid to
those countries that have not been granted a waiver.(136)

US personnel are also no longer immune from the ICC when involved in UN missions. In 2002 and 2003 the US
government secured a UN Security Council Resolution (1422) that effectively gave immunity to personnel from non-
Rome Statute States Parties involved in UN missions. However, that Resolution expired in 2004 and has not been
renewed since.(137)

Ultimately, the US governments position with respect to, and argument against, the ICC has been weakened since
2002. Thus far there has been no evidence of a politically motivated prosecutor attempting to pursue US personnel or
interests. As well, US opposition to the ICC resulted in a souring of relationships between the US and other countries,
which has recently begun to change as the US has begun to re-evaluate its position and slowly softens its opposition
to the Court.(138)

Parliamentary Action in Canada

Bill C-19, the Crimes Against Humanity and War Crimes Act, received Royal Assent on 29 June 2000, enabling
Canada to ratify the ICC Treaty soon thereafter, on 7 July 2000. The Act implements Canadas obligations under the
Rome Statute and enhances Canadas ability to prosecute war crimes and crimes against humanity under
the Criminal Code.(139)

Conclusion
Despite criticism of the ICC, it is important to remember that the Court is a baby institution essentially the first of
its kind. Building upon the history of Nuremberg and the ICTY and ICTR, the ICC is dealing with complex
humanitarian law issues in a way that could not even have been contemplated 50 years ago. International criminal
law has grown in leaps and bounds in the last decade. Trials may be slow and costly, but the mere fact that they are
occurring is a milestone. The success of the ICC needs to be judged long-term instead of by short-term actions. It is a
body that is slowly but surely showing that it can work, together with national and regional courts, truth and
reconciliation commissions and other peace and justice processes, to create a powerful role for international criminal
law.(140)