The concept of an international criminal court has been studied since 1945 and many efforts have been made to establish it. The 1948 Genocide Convention envisages the possibility of such a court. Such an international criminal court would deal with crimes against humanity such as war crimes.
An international criminal court has been called the missing link in the international legal system. The International Court of Justice at The Hague handles only cases between States, not individuals. Without an international criminal court for dealing with individual responsibility as an enforcement mechanism, acts of genocide and egregious violations of human rights often go unpunished. In the last 50 years, there have been many instances of crimes against humanity and war crimes for which no individuals have been held accountable.
In 1992, the UN Security Council unanimously requested that the International Law Commission prepare the terms for an agreement to set up an international criminal court. In 1994, a major step was taken towards establishing such a court when the International Law Commission adopted statutes for a proposed court. A resolution calling for a preparatory committee to begin negotiating the text for such an agreement has been put before the UN General Assembly.
On 17 July 1998, after more than 50 years of hope interspersed with despair, and following five weeks of deliberations among representatives from 159 States, the Rome Statute was adopted by the United Nations Conference on the Establishment of an International Criminal Court (ICC). Its aim is to put an end to the global culture of impunity – the culture in which it has been easier to bring someone to justice for killing one person than for killing 100,000. More than 200 non-governmental organizations took part in the process – an unprecedented level of participation by civil society in a law-making conference. The ICC, which will be located at The Hague, will constitute the only permanent international judicial body with jurisdiction over crimes committed by individuals. Its 13-part Statute gives the Court the authority to investigate and bring to justice individuals who commit the most serious crimes of concern to the international community, such as genocide, war crimes and crimes against humanity.
The absence of an international criminal court discredits the rule of law.
While States hold primary responsibility for enforcing international human rights and humanitarian law, when they fail to do so, there is now a mechanism for lawful international intervention, the International Criminal Court. The principle of sovereignty will no longer provide a shield behind which the perpetrators of war crimes and crimes against humanity can hide.
"There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance." Benjamin B. Ferencz, a former Nürnberg prosecutor.
Any such court would infringe on national sovereignty because national courts have exclusive jurisdiction over crimes committed on their territories.