The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force.
Following the Second World War, the allied powers established two ad hoc tribunals to prosecute Axis leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after the Second World War, and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, became a vocal advocate of the establishment of international rule of law and of an international criminal court. In his first book published in 1975, entitled Defining International Aggression: The Search for World Peace, he advocated for the establishment of such a court. A second major advocate was Robert Kurt Woetzel, who co-edited Toward a Feasible International Criminal Court in 1970 and created the Foundation for the Establishment of an International Criminal Court in 1971.
Towards a permanent international criminal court
In June 1989 Prime Minister of Trinidad and Tobago A. N. R. Robinson revived the idea of a permanent international criminal court by proposing the creation of such a court to deal with the illegal drug trade. Following Trinidad and Tobago's proposal, the General Assembly tasked the ILC with once again drafting a statute for a permanent court. While work began on the draft, the United Nations Security Council established two ad hoc tribunals in the early 1990s: The International Criminal Tribunal for the former Yugoslavia, created in 1993 in response to large-scale atrocities committed by armed forces during Yugoslav Wars, and the International Criminal Tribunal for Rwanda, created in 1994 following the Rwandan genocide. The creation of these tribunals further highlighted the need for a permanent international criminal court.
In 1994, the ILC presented its final draft statute for the International Criminal Court to the General Assembly and recommended that a conference be convened to negotiate a treaty that would serve as the Court's statute. To consider major substantive issues in the draft statute, the General Assembly established the Ad Hoc Committee on the Establishment of an International Criminal Court, which met twice in 1995. After considering the Committee's report, the General Assembly created the Preparatory Committee on the Establishment of the ICC to prepare a consolidated draft text. From 1996 to 1998, six sessions of the Preparatory Committee were held at the United Nations headquarters in New York City, during which NGOs provided input and attended meetings under the umbrella organisation of the Coalition for the International Criminal Court (CICC). In January 1998, the Bureau and coordinators of the Preparatory Committee convened for an Inter-Sessional meeting in Zutphen in the Netherlands to technically consolidate and restructure the draft articles into a draft.
Finally the General Assembly convened a conference in Rome in June 1998, with the aim of finalizing the treaty to serve as the Court's statute. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to seven, with 21 countries abstaining. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. Israel's opposition to the treaty stemmed from the inclusion in the list of war crimes "the action of transferring population into occupied territory".
Following 60 ratifications, the Rome Statute entered into force on 1 July 2002 and the International Criminal Court was formally established. The first bench of 18 judges was elected by the Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first arrest warrants on 8 July 2005, and the first pre-trial hearings were held in 2006. The Court issued its first judgment in 2012 when it found Congolese rebel leader Thomas Lubanga Dyilo guilty of war crimes related to using child soldiers.
In 2010 the states parties of the Rome Statute held the first Review Conference of the Rome Statute of the International Criminal Court in Kampala, Uganda. The Review Conference led to the adoption of two resolutions that amended the crimes under the jurisdiction of the Court. Resolution 5 amended Article 8 on war crimes, criminalizing the use of certain kinds of weapons in non-international conflicts whose use was already forbidden in international conflicts. Resolution 6, pursuant to Article 5(2) of the Statute, provided the definition and a procedure for jurisdiction over the crime of aggression.
Opposition to the Court
During the Obama administration, US opposition to the ICC evolved to "positive engagement," although no effort was made to ratify the Rome Statute. The subsequent Trump administration is considerably more hostile to the Court, imposing visa bans on ICC staff in response to concerns that an investigation may be opened up against American nationals in connection to alleged war crimes in Afghanistan.
In October 2016, after repeated claims that the court was biased against African states, Burundi, South Africa and the Gambia announced their withdrawals from the Rome Statute. However, following Gambia's presidential election later that year, which ended the long rule of Yahya Jammeh, Gambia rescinded its withdrawal notification. A desicions by the High Court of South Africa in early 2017 ruled that withdrawal would be unconstitutional, prompting the South African government to inform the UN that it was revoking its decision to withdraw.
In 2016–2017, some analysts
predicted an African exodus from the Court, believing that Kenya, Namibia, and Uganda might soon follow in withdrawing from the court. The analysts incorrectly predicted that South Africa would not rescind its withdrawal.
Following the announcement that the ICC would open a preliminary investigation on the Philippines in connection to its escalating drug war, President Rodrigo Duterte announced on 14 March 2018 that the Philippines would start to submit plans to withdraw, completing the process on 17 March 2019. The ICC pointed out that it retained jurisdiction over the Philippines during the period when it was a state party to the Rome Statute, from November 2011 to March 2019.