7 Fall 2023 t is an immense privilege for a German scholar to speak at the Hebrew University in Jerusalem. This is particularly so in the case of an invitation from an institute named after the eminent Jewish jurist, Jacob Robinson, and devoted to the preservation of his legacy. The legacy of Jacob Robinson is intimately connected with unspeakable and unimaginable crimes committed by Germans against Jews and the Jewish people. I am deeply appreciative of the special invitation by the Jacob Robinson Institute to appear before you. I have chosen to look at the International Criminal Court (also known as the “ICC”) after twenty years of its existence. I am aware of the many legal and political controversies surrounding the International Criminal Court – something which is true for the situation of Palestine, but also beyond. We cannot exclude critical issues from scholarly exchange just because such an exchange is likely to spark controversies. I present here reflections on the first twenty years of existence of the International Criminal Court. I. Difficult Birth In Rome, on the night of July 17, 1998, it proved necessary for the diplomats to stop the diplomatic clock. At the end of five weeks of intensive negotiations, the creation of the first permanent international criminal court in legal history was hanging by a thread. The United States insisted throughout that the officials of States not party to the Rome Statute be categorically excluded from the Court’s jurisdiction. The final compromise package did not comply with this demand, and this prompted the United States to put the draft of the Rome Statute (or the “Statute”) – the document that created the International Criminal Court – to a vote. When in the very early hours of July 18, 1998, the lights on the large board in the main conference room revealed an overwhelming majority in favor of the Statute, thunderous applause erupted among most of the completely exhausted negotiators and members of civil society. The tough struggle about the Court’s jurisdictional regime made one thing abundantly clear: the International Criminal Court would have to sail in rough waters. The reason for this was – and remains – obvious: even today, genocide, crimes against humanity, war crimes, and crimes of aggression are frequently committed by the highest organs of States. It is hence inevitable that a court entrusted with the mandate to adjudicate such crimes will attract the rage of the most powerful actors and their political allies. II. Magic of the Beginning Initially, it felt like a honeymoon. The first 60 ratifications were deposited at such high speed that the Statute of the ICC entered into force on July 1, 2002. Luis Moreno Ocampo, the Court’s first Prosecutor, made sure that the judicial newcomer had a harmonious appearance on the world stage. He refrained from acting upon the suspicion that British soldiers could have committed war crimes in Iraq. Instead, in the first two situations presented before the Court, Prosecutor Moreno Ocampo chose to act in smooth concert with the governments concerned. The Democratic Republic of the Congo and Uganda had The International Criminal Court: Twenty Years of its Existence* I Claus Kreß* * This is an edited version of a lecture delivered on January 4, 2023, at the Jacob Robinson Institute for the history of individual and collective rights of The Hebrew University in Jerusalem. An initial version of the text was published in German under the title “Gigant ohne Glieder. Der Internationale Strafgerichtshof muss weiter reformiert werden,” in FRANKFURTER ALLGEMEINE ZEITUNG, 28 July 2022, p. 6. A more elaborate and slightly updated version was published under the title “Der Internationale Strafgerichtshof nach 20 Jahren,” in P. B. Donath et al. (eds.), DER SCHUTZ DES INDIVIDUUMS DURCH DAS RECHT. FESTSCHRIFT FÜR RAINER HOFMANN ZUM 70. GEBURTSTAG (Springer: Berlin, Heidelberg, 2023), pp. 103-113. The following issue of JUSTICE (also devoted to October 7 as the legal issues evolve) will feature an article based on the reflections by Prof. Kreß on the conflict, as broadcast on Germany’s national radio.
RkJQdWJsaXNoZXIy MjgzNzA=