INTRODUCTION

On 18 July 1998, representatives attending a United Nations (UN) Diplomatic Conference of Plenipotentiaries on the Establishment of a Court in Rome, Italy, from states and governments around the world, adopted the Rome Statute – a treaty that established the International Criminal Court (‘the Court’). The Conference and the adoption of the Rome Statute were the conclusion of a protracted process that was started by the UN General Assembly Resolution 44/39 of 4 December 1989. The Resolution had requested the International Law Commission ‘ to address the question of establishing an international criminal court’.

A total of 120 states voted in favour of its adoption, 21 abstained and 7 voted against, including the US, Israel and China. The Court was established on 1 July 2002 when the Rome Statute was ratified by 60 states, 3 giving the Court the mandate to end impunity for the perpetrators of the most serious crimes of concern to the international community.

Prior to the adoption of the Rome Statute and the subsequent establishment of the International Criminal Court, there was growing concern among the proponents of international criminal justice regarding the haphazard creation of tribunals that were primarily focused on single conflicts and hence were selective in nature. Theodor Meron, the Former President of the International Criminal Tribunal for the former Yugoslavia and Presiding Judge of the Appeals Chambers of the International Criminal Tribunal for Rwanda, notes that what was missing – and needed – was a ‘uniform and definite corpus of international humanitarian law that could be applied apolitically to internal atrocities everywhere, and that recognises the role of all states in the vindication of such law’. Louise Arbour, a Canadian lawyer who was Chief Prosecutor of the Tribunals for the former Yugoslavia and Rwanda at the time, spelt out the role that these claims of selective enforcement played in the establishment of a permanent international criminal court when she stated that: