The International Criminal Court (ICC) as a new institution has to be capable to cope, potentially at once, through all the practical problems of successful investigation, hearing, trial and punishment of very staid crimes. National criminal justice systems have evolved over several years and have the advantage of a protective base, a police force, prosecution services with supervisory power, goals, etc. By contrast, the ICC would be a territorially incorporeal criminal court lacking independent executive powers.
In terms of experience, it would be, figuratively, a child. But this child would — have regard to the significance of the crimes and their consequences have to be instantly capable of acting as an adult. What substantially detracts from the significance of the explicit reference to the crime of aggression is that – unlike the other crimes subjected to the jurisdiction of the ICC – it was not defined in Rome. Article 5(2) defers action to a future time:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. Articles 121 and 123 of the Statute pertain to amendment and review procedures that will commence seven years after the entry into force of the Statute.
In accordance with Article 121(5), should an amendment to Article 5 be adopted in the future, any State party may refuse to accept the amendment, in which case 'the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party's nationals or on its territory' . The proviso applies also to the review procedure under Article 123(3). This safeguard was added in order to allay misgivings of contracting parties about possible future trends relating to the configuration of the crime of aggression.
Creating a constructive environment for the founding of a standing international criminal court, which in spite of serious hurdles might become realism before the end of the twentieth century, these attainments have also injected new dynamism into the concept of universal jurisdiction and embered the readiness of states to impeach persons accused of staid violations of international humanitarian law.
There is some facts, albeit anecdotal and uncertain, that the improvised tribunals and the prospects for the founding of the ICC have had some restriction effect on violations. In this universalism tradition, international law is seen as 'a kind of civil law', a civil law of the world. But even the letter writer did not believe this factually: like Grotius, he did not envision of international institutions.
'As between citizens, judges have to control justice; as between nations, each nation has to administer it itself. ' (Montesquieu, 1993, p. 176). Civil law there might have been, but there was no civil process, still less any criminal process. According to that tradition, it might be possible, eventually, to establish inter-state arbitral tribunals. Effectively these were surrogate decision-makers for states who could not or would not agree. But civil or criminal justice was the privilege of states.