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The Rome Statute of the International Criminal Court - A Commentary edited by Cassese, Antonio; Gaeta, Paola; Jones, John RWD (25th July 2002)

Volume I, s.1 The Path to Rome and Beyond, 1 From Nuremberg to Rome: International Military Tribunals to the International Criminal Court

Antonio Cassese

From: The Rome Statute of the International Criminal Court

Edited By: Professor Antonio Cassese, Professor Paola Gaeta, Mr John R.W.D. Jones

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 12 December 2019

Since World War II — Prosecution — Nullum crimen sine lege

(p. 3) From Nuremberg to Rome: International Military Tribunals to the International Criminal Court

I. Introduction

For all its imperfections, the Statute of the International Criminal Court, adopted on 17 July 1998 by the Rome Diplomatic Conference,1 was a major breakthrough in the effective enforcement of international criminal law. It marks the culmination of a process started at Nuremberg and Tokyo and further developed through the establishment of the ad hoc Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The Statute crystallizes the whole body of law that has gradually emerged over the past fifty years in the international community in this particularly problematic area. Insofar as it departs from existing trends and the practices of ad hoc criminal tribunals, the Rome Statute also breaks new ground and points (p. 4) to the path likely to be taken by international criminal justice in the current millennium.

It is well known that the idea of setting up an international criminal court to bring to justice individuals, including leading State officials allegedly responsible for serious international crimes, goes back to the aftermath of World War I. The attainment of that goal has been slow and painstaking. This process towards the eventual adoption of a Statute for a permanent International Criminal Court can be conceptualized in terms of four distinct phases:

  1. (1)  abortive early attempts (1919–1945);

  2. (2)  criminal prosecutions in the aftermath of World War II: the Nuremberg and Tokyo Tribunals (1945–1946);

  3. (3)  preparation for the future ICC: the work of the ILC (1950–1954, 1990–1994); and

  4. (4)  post-Cold War ‘new world order’: the development of the two ad hoc Tribunals and the emergence of the ICC Statute (1991–1998).

II. Abortive Early Attempts (1919–1945)

The period immediately following World War I is notable for its numerous attempts to establish a variety of international criminal institutions, all of which ended in failure. For instance, the ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ proposed the establishment of a ‘high tribunal composed of judges drawn from many nations’.2 After World War I, the Treaty of Versailles had provided for ad hoc tribunals, but none were ultimately established. In particular, Article 227 of the Treaty of Versailles included a provision which envisaged the establishment of a tribunal, composed of five judges (appointed by the United States, Great Britain, France, Italy, and Japan) to try the former Kaiser of Germany.3

Subsequently, in 1920, the ‘Advisory Committee of Jurists’, summoned to prepare the project for the Permanent Court of International Justice, proposed that the ‘High Court of International Justice’ to be established should also ‘be competent to try crimes constituting a breach of international public order or against the universal law of nations, referred to it by the Assembly or by the Council of the League (p. 5) of Nations’.4 However, a few months later this proposal was rejected out of hand by the Assembly of the League of Nations as being ‘premature’.5 Thereafter, draft statutes of an international criminal court were adopted by non-governmental organizations such as the Inter-Parliamentary Union in 19256 and by scholarly bodies such as the International Law Association in 1926.7 None of these drafts, however, led to anything concrete.8

Such early attempts were laudable for their far-sighted recognition of the need for an international organ of criminal jurisdiction. Nevertheless, these initiatives could not bear fruit in a period which placed an exceptionally high premium upon considerations of national sovereignty. Although new values had emerged which transcended narrow, nationalistic concerns (such as the gradual elaboration of principles which sought to limit the methods of warfare, or the protection of workers through the establishment of the International Labour Organization, or the protection of minorities through the numerous treaties on minorities entered into after the war), State sovereignty was nevertheless still very much the bedrock norm of the international community. The practical import of this was that no feasible mechanism could be brought into being that could enable a State official—let alone a Head of State—accused of war crimes or other outrages to be brought to justice, save by a victor State following an international armed conflict.

III. Criminal Prosecution in the Aftermath of World War II: The Nuremberg and Tokyo Tribunals (1945–1946)

It was precisely such a scenario that led to the successful establishment, in the immediate post-war period, of the Nuremberg and Tokyo Tribunals. These Tribunals were a response to the overwhelming horrors of the Nazi genocide in Europe and the Japanese wartime occupation of large parts of many South-East Asian nations. It took the full extent of the atrocities committed during World War II to demonstrate the pernicious consequences that could follow from the pursuit of extreme notions of State sovereignty and to jolt the international community out of its complacency. The universal outrage provoked by these crimes (p. 6) led to widespread conviction that never again could such tyranny be allowed to go unchecked and unpunished.

It is worthwhile to consider what, in particular, induced the Allies to hold trials against the Germans and their collaborators after World War II and what, more recently, has persuaded governments to hold similar trials for war crimes and crimes against humanity.

After the defeat of Germany, the British stated that it was enough to arrest and hang those primarily responsible for determining and applying Nazi policy, without wasting time on legal procedures; minor criminals, they suggested, could be tried by specially created Tribunals.9 However, neither President F. D. Roosevelt, nor Henry Stimson, the US Defence Secretary, agreed; nor, indeed, did Stalin. In the end, they prevailed, and the International Military Tribunal was set up in Nuremberg to try the ‘great Nazi criminals’, while lesser Allied tribunals in the four occupied zones of Germany were to deal with minor criminals. The Americans advanced three arguments to support their view, later accepted by the other Allies. First, how could a defeated enemy be condemned without due process of law? To hang them without trial would be to do away with one of the mainstays of democracy: no one can be considered guilty until his crimes have been proved in a fair trial. To relinquish such a fundamental principle would have put the Allies on a par with the Nazis who had galloped roughshod over so many principles of justice and civilization, when they had held mock trials, or punished those allegedly guilty without even the benefit of a judicial process. The Nuremberg trial was thus held in order to uphold the postulates of justice.

The second was a desire on the part of the Allied powers to act for posterity. The crimes committed by the Third Reich and its Nazi officials were so appalling that some visible record had to be left. A trial held on a grand scale would allow the Tribunal to gather a huge pile of records useful not only in court, but to historians and to the generations to come. The trial was therefore seen as a method for building an archive of historical documents that might otherwise vanish; it would also serve as a lesson in history for future generations.

Third, those who set up the Nuremberg Tribunal felt that the dramatic rehearsal of Nazi crimes—and of racism and totalitarianism—would make a deep impression on world opinion. Thus, the trial was designed to render great historical phenomena plainly visible, and was conceived of as a means of combating the myth of the Nazi State.10

(p. 7) A further rationale behind the Nuremberg trial was the collective character of the Nazi crimes. The massacre of civilians and prisoners of war, the persecution of Jews, gypsies, and political opponents were not only large-scale phenomena but were, in addition, part of a policy pursued assiduously by the highest Nazi echelons and applied by the whole military and bureaucratic apparatus. The crimes requested by the directives of the dictator and the Nazi leaders naturally belong to ‘collective or system criminality’: such was their nature that it would have been impossible to punish them by using the courts of the State to which the perpetrators belonged. In consequence, and as mentioned above, only an adversary could have made sure that justice was done, upon winning the war.11

In the spring of 1945, the four nations that won World War II (the United Kingdom, France, the United States, and the Soviet Union) convened the London Conference to decide by what means the world was to punish the high-ranking Nazi war criminals. The resultant Nuremberg Charter established the IMT to prosecute individuals for ‘crimes against peace’, ‘war crimes’, and ‘crimes against humanity’. In occupied Germany, the four major Allies, pursuant to Control Council Law No. 10, prosecuted, in their respective zones of occupation, the same crimes as the IMT.12

On 26 July 1945, two weeks before the conclusion of the London Conference, the Big Four issued the Potsdam Declaration announcing, to the surprise of many, their intention to prosecute illustrious Japanese officials for these same crimes.13 Subsequently, on 19 January 1946, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, approved, in the form of an executive order, the Tokyo Charter, setting forth the constitution, jurisdiction, and functions of the International Military Tribunal for the Far East (IMTFE). Like the Nuremberg Charter, the Tokyo Charter, which was issued on 26 April 1946, included the newly articulated crimes against peace and humanity.14

By and large, the Tokyo Charter was modelled on the Nuremberg Charter. However, there were some differences between the two texts and the way they (p. 8) regulated the structure of the Tribunals and the charges that could be brought against the defendants.15

The Tokyo Trial commenced on 3 May 1946, lasting for approximately two and a half years and generating a transcript of over 45,000 pages. This trial was the source of much controversy both during and after the event. Some have claimed that the trial was either a vehicle for America’s taking revenge for the treacherous attack on Pearl Harbor, or a means of assuaging American national guilt over the use of atomic weapons in Japan. Others, defence counsel at the trial included, have attacked the trial’s legitimacy on legal grounds.16

Whereas the post-World War I experience showed the extent to which international justice can be compromised for the sake of political expedience, the post-World War II experience revealed, conversely, how effective ‘international’ justice could be when there is the political will to support it and the necessary resources to render it effective. These sets of experiences were nevertheless one-sided, as everybody knows. They imposed ‘victors’ justice’ over the defeated. However, they were important in many respects. First, they broke the ‘monopoly’ over criminal jurisdiction concerning such international crimes as war crimes, until that moment firmly held by States. For the first time non-national, or quasi-international, institutions were established for the purpose of prosecuting and punishing crimes having an international dimension and scope. Second, new crimes were envisaged in the London Agreement and made punishable: crimes against humanity and crimes against peace. Whether or not this was done in breach of the nullum crimen sine proevia lege principle, it is a fact that since 1945 those crimes gradually became the subject of international customary law prohibitions. Third, the statutes and the case law of the International Military Tribunal at Nuremberg, the International Military Tribunal in the Far East, and the various tribunals set up by the Allies in the aftermath of World War II developed new legal norms and standards of responsibility which have advanced the international rule of law, for example the elimination of the defence of ‘obedience to superior orders’ and the accountability of Heads of State. Finally, a symbolic significance has emerged from these experiences in terms of their moral legacy, which was drawn on by those seeking a permanent, effective, and politically uncompromised system of international criminal justice.17

(p. 9) IV. The Nascent ICC Statute: The Work of the ILC (1950–1954, 1990–1994)

In order to build on the positive dimensions of the establishment of the IMT and IMTFE, and perhaps stung by the inevitable association of these Tribunals with ‘victors’ justice’, the United Nations system in the late 1940s commenced its quest for the establishment of more permanent and impartial mechanisms for the dispensing of international criminal justice.

The efforts of the organized international community to establish a permanent ICC had commenced with the League of Nations and were continued by the United Nations. As mentioned above, the League of Nations’ efforts were linked to a permanent international criminal court whose jurisdiction was limited only to enforcement of the 1937 Terrorism Convention, which never came into force.18 By contrast, the United Nations’ goal was more encompassing as it aimed at establishing a permanent international criminal court. These efforts can be traced along two separate tracks: codification of international crimes and the elaboration of a draft statute for the establishment of an international court.

Pursuant to a request by the General Assembly in 1947, the International Law Commission (ILC), in compliance with this resolution, commenced the formulation of the principles recognized in the Charter of the Nuremberg Tribunal and the preparation of a draft code of the offences against the peace and security of mankind.19 Concurrently, the task of formulating a draft statute for the establishment of an international criminal court was assigned to another special rapporteur, who submitted his first report to the ILC in March 1950.20

The 1940s and 1950s were characterized by much work by a variety of international bodies on tasks that, while designed to be complementary and interlocking, were nevertheless poorly coordinated. During the period in which the General Assembly had mandated the ILC to prepare the Draft Code of Offences, later renamed the Draft Code of Crimes, it also gave a mandate to another special committee to prepare a draft statute for an international criminal court. That committee produced a text in 1951 that was revised in 1953.21 However, neither the early discussions in the Commission nor the provisions of Article VI of the 1948 Genocide Convention referring to a (future) ‘international penal tribunal’ were translated into reality. The 1953 Draft Statute of the Court was tabled (p. 10) because the definition of aggression, which had been entrusted to another body, was not completed. That result was expected since there were differing bodies working separately at different venues (Geneva and New York), and producing different texts at different times. It was, therefore, easy for the General Assembly to table each text successively because the one or the other was not then ready. That lack of synchronization was not entirely fortuitous; it was the result of a political will to delay the establishment of an international criminal court because that was a time when the world was sharply divided and frequently at risk of war.22

The overriding explanation for why the substantial work of this period was unable to come to fruition can thus be found within the political stagnation caused by the Cold War and the impeded functioning of United Nations due to the fact that its Member States were subsumed into two rival and antagonistic political blocs. Indeed, it was only in 1989, once the Cold War had drawn to a close, that the General Assembly once again requested the ILC ‘to address the question of establishing an international criminal court’.23 The task was taken up by the ILC in 1993; the Commission adopted a draft statute in 1994.24

V. Post-Cold War ‘New World Order’: The Development of the Two Ad Hoc Tribunals and the Drafting of the ICC Statute (1991–1998)

Various factors led to the establishment of international criminal tribunals in the early 1990s.

The end of the Cold War proved to be of crucial importance. It had significant effects. For one thing, the animosity that had dominated international relations for almost half a century dissipated. In its wake, a new spirit of relative optimism emerged, stimulated by the following factors: (i) a clear reduction in the mutual (p. 11) mistrust and suspicion that had frustrated friendly relations and cooperation between the Western and the Eastern bloc; (ii) the successor States to the USSR (the Russian Federation and the other members of the Confederation of Independent States) came to accept and respect some basic principles of international law; (iii) as a result there emerged unprecedented agreement in the UN Security Council and increasing convergence in the views of the five permanent members, with the consequence that this institution became able to fulfil its functions more effectively.

Another effect of the end of the Cold War was no less important. Despite the problems of that bleak period, during the Cold War era the two power blocs had managed to guarantee a modicum of international order in that each of the Superpowers had acted as a sort of policeman and guarantor in its respective sphere of influence. The collapse of this model of international relations ushered in a wave of negative consequences. It entailed a fragmentation of the international community and intense disorder which, coupled with rising nationalism and fundamentalism, resulted in a spiralling of mostly internal armed conflicts, with much bloodshed and cruelty. The ensuing implosion of previously multi-ethnic societies led to gross violations of international humanitarian law on a scale comparable to those committed during World War II.

Another crucial factor was the increasing importance of the human rights doctrine. Its emphasis on the need to respect human dignity and consequently to punish all those who seriously attack such dignity begot the quest for, or at least gave a robust impulse to, international criminal justice.

The conflicts which erupted, amongst other places, in the former Yugoslavia and Rwanda served to rekindle the sense of outrage felt at the closing stage of World War II.25 Once again, the international community was sobered into action and sought to punish those perpetrating serious violations of the most fundamental principles of international humanitarian law in the former Yugoslavia and in Rwanda.

This period can be characterized by the development of institutions empowered to prosecute and punish serious violations of international humanitarian law and can be subdivided into two distinct stages. The first is comprised by the establishment, by the UN Security Council, of the two ad hoc Tribunals for the former Yugoslavia and Rwanda and the second by the eventual adoption, through the multilateral treaty-making process, of the Statute for a permanent International Criminal Court.

(p. 12) A. The Establishment of the Two Ad Hoc Tribunals for the Former Yugoslavia and Rwanda

In view of the major violations of international humanitarian law which had been committed since 1991, the UN Security Council set up ad hoc tribunals pursuant to its power to decide on measures necessary to maintain or restore international peace and security: in 1993 the International Criminal Tribunal for the Former Yugoslavia and in 1994 the International Criminal Tribunal for Rwanda.

The response of the international community to the conflict in Yugoslavia had been frequently tardy and conflicting, due to impotence at the military and political levels. The establishment of a tribunal was thus seized upon during the conflict not only as a belated face-saving measure but also in the pious hope that it would serve as a deterrent to further crimes.26 As the UN Security Council itself noted, the ICTY was established in the belief that an international tribunal would ‘contribute to ensuring that such violations are halted and effectively redressed’.27

In terms of the ICTY’s establishment, the idea that an international court should be set up to try those responsible for war crimes and crimes against humanity committed in the former Yugoslavia was spontaneously mooted in various quarters: Europe, notably at the instigation of Germany and France, and in the United States. The proposal for the establishment of the ad hoc tribunals was preceded by a number of United Nations statements proclaiming the principle that the authors of grave breaches of the Geneva Conventions and other crimes were ‘individually responsible’ and would be called to account.28

(p. 13) Rather than being products of the multilateral treaty-making process, both the ICTY and the ICTR were established by resolutions of the United Nations Security Council. Security Council Resolution 780 (1992) had established a Commission of Experts to investigate and report on evidence of grave breaches of the 1949 Geneva Conventions and other violations of international humanitarian law in the former Yugoslavia. The Security Council decision to establish the ICTY was taken subsequent to the findings of this Commission of Experts.29

The Security Council established the ICTY in its Resolution 827 of 25 May 1993, following consideration of the Secretary-General’s Report (S/25704, 3 May 1993), submitted pursuant to Security Council Resolution 808. The Secretary-General’s Report proposed a Statute for the ICTY, which was unanimously adopted without amendment.30 As will be addressed further below, a striking feature of Resolution 827 was that the Security Council determined that the situation in the former Yugoslavia, and in particular in Bosnia and Herzegovina—where there were ‘reports of mass killings, massive, organised and systematic detention and rape of women and … the practice of “ethnic cleansing” ‘—constituted a threat to international peace and security under Chapter VII of the United Nations Charter.31

The establishment of the ICTY has been the object of many misgivings and objections. In brief, the principal criticisms were that (i) the Tribunal was set up to make up for the impotence of diplomacy and politics, and revealed the inability of both the Great Powers and the UN Security Council to find a swift and proper solution to the conflict in the former Yugoslavia; the Tribunal was therefore conceived of as a sort of ‘fig leaf’; (ii) by establishing the Tribunal the Security Council (p. 14) exceeded its powers under the Charter, adopting an act that was patently ultra vires; (iii) by the same token, by creating a criminal court only dealing with crimes allegedly committed in a particular country, instead of granting to the new court jurisdiction over crimes committed everywhere in the world, the Security Council opted for ‘selective justice’; (iv) the Tribunal was clearly based on an anti-Serb bias. While the last criticism is manifestly wrong (as shown, among other things, by the fair and impartial judicial activity of the Tribunal), and the Tribunal’s Appeals Chamber in TadiĆ (Interlocutory Appeal) proved the second criticism to be wrong, it would seem that the other two objections are not unfounded. However, one could counter-object that, as long as an international criminal court endowed with universal jurisdiction is lacking, the establishment of ad hoc tribunals may prove salutary.

The ICTR was established in like fashion to the ICTY in response to the civil war in Rwanda and the ensuing horrific loss of life and bloodshed. While many of the factors mentioned above with regard to the former Yugoslavia were also motivations for the establishment of the ICTR, the overwhelming magnitude of the crimes committed there and the fact that they probably amounted to genocide lent particular urgency to the creation of the ICTR. Sensitive to criticism that the establishment of the ICTY represented yet another illustration of the disproportionate attention paid to the problems of Europe vis-à-vis the developing world, the international community was also anxious to establish a tribunal for Rwanda so as to assuage its conscience and shield itself from accusations of double-standards. An additional feature leading up to the establishment of the ICTR was that, in the early stages at least, the proposal to establish an international tribunal for Rwanda was an initiative of the new Rwandan government. As they set about their task of post-war reconstruction, the new government had initially felt that one means of attracting international blessing for the new regime would be through a national process of self-examination and judicial condemnation of the worst abuses that had occurred during the civil war.32

The Statute of the Rwanda Tribunal was adopted in Security Council Resolution 955 of 8 November 1994, after having noted a number of reports on the situation in Rwanda which indicated that ‘genocide and other systematic, widespread (p. 15) and flagrant violations of international humanitarian law have been committed in Rwanda’, and having determined that ‘this situation continues to constitute a threat to international peace and security’.33 Even though the Statutes for the ICTY and the ICTR differ, the Tribunals share a common Prosecutor and a common appellate chamber. This may appear to be a curious formula for separate ad hoc tribunals; but perhaps it demonstrates the need for a permanent body to administer international criminal justice.34

After the decision to create the Rwanda Tribunal, which took much time and effort to function, the Security Council arguably reached a point of ‘tribunal fatigue’.35 Indeed, the logistics of setting up the ad hoc Tribunals for the former Yugoslavia and for Rwanda had strained the capabilities and resources of the United Nations and consumed the Security Council’s time. The Security Council, as the organ that created both Tribunals, found itself frequently seized with issues and problems concerning these Tribunals and their administration, and as a result became less inclined to establish other similar organs. Furthermore, the highest political body of the UN did not consider that other international conflicts deserved the establishment of an ad hoc tribunal. After all, the setting up of the ICTY and the ICTR had been the result of a ‘selective approach’ chosen by the Security Council. After 1994, at least for some time, this body simply did not see fit to take the same approach with regard to situations that meanwhile were arising in the world. Later on it considered, among others, the situation in Sierra Leone, Cambodia, and East Timor as likely to lead to the establishment of an ad hoc international court. In the case of Sierra Leone it actively dealt with the matter and eventually, in October 2000, at its request the Secretary-General drafted the statute of a Special Tribunal;36 in the case of Cambodia the Secretary-General discussed at length the establishment, by the Cambodian Parliament, of a Cambodian special tribunal dealing with crimes committed in the past by the Khmer, and composed partly of Cambodian judges, partly of international judges. In the case of East Timor, in 2000 the United Nations Transitional Administration in East Timor (UNTAET), by (p. 16) Regulation 2000/15 set up ‘Panels’ having exclusive jurisdiction over ‘serious-criminal offences’, including crimes against humanity and genocide.

The first stage of ad hoc tribunals (1993–1994) coincided with the renewed efforts for establishing a permanent international criminal court, and, by demonstrating the high relative costs of an ad hoc approach to criminal prosecution, enhanced its prospects for success.

Moreover, the two ad hoc Tribunals gained, on the whole, worldwide recognition and credibility, and events in Yugoslavia and Rwanda did serve to shock the world out of its complacency. The idea of prosecuting those who committed international crimes acquired a broad-based support in world public opinion and many governments. The international community in turn became more vocal about a permanent institution with universal recognition that would not suffer from the problems of ad hoc institutions.

B. The Adoption of the Statute for a Permanent International Criminal Court

While limited both temporally and geographically to the conflicts in the former Yugoslavia and Rwanda, the overall successes of the ICTY and ICTR, respectively, provided a final spur to the emergence of the ICC, an organ of global jurisdictional reach and thus potentially able to respond to violations occurring anywhere. In addition, a symbolic significance had emerged from these experiences in terms of their moral legacy, and much accumulated jurisprudence regarding the interpretation of the offences punishable in terms of the new Statute. Both could be drawn upon by those seeking a permanent, effective, and politically uncompromised system of international criminal justice.

Substantively, the process of drafting and enacting the Statute of the International Criminal Court built on the work of the International Law Commission (ILC) from the 1940s onwards. The question of an international criminal court came back onto the United Nations’ agenda by an unexpected route in 1989 after a hiatus of thirty-six years, following a suggestion in the General Assembly by Trinidad and Tobago that a specialized international criminal court be established to deal with the problem of drug trafficking. In response to the General Assembly’s mandate arising out of the 1989 special session on drugs, the ILC in 1990 completed a report which was submitted to the 45th session of the General Assembly. Though that report was not limited to the drug trafficking question, it was, nonetheless, favourably received by the General Assembly, which encouraged the ILC to continue its work. The ILC produced a comprehensive text in 1993, which was modified in 1994.37

(p. 17) The 1994 ILC report on the Draft Statute for an International Criminal Court was submitted to the 49th session of the General Assembly, which resolved to consider it at its 50th Session, but first it set up an ad hoc committee to discuss the proposal. This committee, referred to as the 1995 Ad Hoc Committee for the Establishment of an International Criminal Court, met intersessionally for two sessions of two weeks each from April through August 1995.38 In late 1995, the Ad Hoc Committee produced its report which became the basis for the General Assembly to establish the 1996 Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).

The Draft Statute and Draft Final Act submitted to the Diplomatic Conference at Rome of 15 June–7 July 1998 consisted of 116 articles which were contained in 173 pages of text with some 1,300 words in brackets, representing multiple options to entire provisions or only to some words contained in certain provisions. It was a tribute to the Drafting Committee and the Diplomatic Conference to have translated this complex draft into a text acceptable to a large number of States.

VI. Conclusion

Although World War I was dubbed as ‘the war to end all wars’, its immediate aftermath contained the seeds from which World War II would later erupt. Yet since then, some 250 conflicts of an international and non-international character have occurred, which, along with tyrannical regimes have produced an estimated 170 million casualties and other inestimable harmful consequences.39 However, the worst perpetrators of these crimes, including decision-makers and senior executors, have seldom been brought to account for their misdeeds and have instead benefited from impunity.

In the course of the last fifty years, as the world’s major political powers saw fit, four ad hoc Tribunals have been established; first at Nuremberg and Tokyo, and then at The Hague and Arusha. Throughout the seventy-five years following 1919, the world’s major powers, selective as they may have been in establishing ad hoc bodies to investigate certain international crimes, have nevertheless progressively recognized the aspirations of international civil society for the establishment of a permanent system of international criminal justice.40

The establishment of these ad hoc Tribunals and the International Criminal Court represents, on one hand, the relative failure of prosecution through national (p. 18) jurisdiction. The obligation of States to prosecute and punish persons accused of serious violations of international humanitarian law through their respective national jurisdictions arises out of their treaty obligations,41 most notably those under the 1949 Geneva Conventions.42 However, these provisions on national jurisdiction over grave breaches have been, at least until recent years, a dead letter.43

With the establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, the enforcement of international humanitarian law moved into a new and more effective phase. Nevertheless, it is the enactment of the ICC Statute which represents the pinnacle of the institutionalization and universalization of measures for the enforcement of international humanitarian law. The ICC fulfils the purposes both of a symbol of justice and, with the requisite support of States, will also be capable of providing an effective judicial remedy that can fairly mere out at least some retributive and restorative justice.

Once coming into existence, it is hoped that the ICC will herald a new era for the effective prosecution and punishment of serious violations of international humanitarian law wherever such abuses may occur and by whomever they may be perpetrated. In so doing, the ICC is likely to become the central pillar in the world community for upholding fundamental dictates of humanity.

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1  Rome Statute for the International Criminal Court Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, A/CONF.183/9 (1998).

2  See the Report of the Commission, in 14 AJIL (1920) 116. As for the objections of the US delegates, see ibid., at 129, 139 ff., cited in The Path to the Hague: Selected Documents on the Origins of the ICTY (1996) 7.

3  Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles), 28 June 1919, Art. 227, 11 Martens (3d) 323, reprinted in 2 Bevans 43; 1 Friedman 417. On the non-implementation of Art. 227, see, inter alia, A. Merignhac and E. Lemonon, Le Droit des gens et la guerre de 1914–1918 (1921) 580 ff.

4  See the text of the Second Resolution adopted by the Advisory Committee in Lord Phillimore, ‘An International Criminal Court and the Resolutions of the Committee of Jurists’, 3 BYIL (1922–3) 80; cited in The Path to the Hague, supra note 2, at 7.

5  Ibid., in Phillimore, at 84; cited in The Path to the Hague, supra note 2, at 7.

6  See the text of the draft in B. Ferencz (ed.), An International Criminal Court—A Step Toward World Peace—A Documentary History and Analysis, Vol. I (1980) 244 ff.

7  Text reproduced in Ferencz (ed.), ibid., at 252 ff.

8  A Convention for the creation of an International Criminal Court to try terrorist offences was also adopted on 16 November 1937 by the League of Nations, but never entered into force. See generally, V. V. Pella, ‘Towards an International Criminal Court’, 44 AJIL (1950) 37 ff.

9  See B. F. Smith (ed.), The American Road to Nuremberg: The Documentary Record, 1944–1945 (1982) 31–33, 155–157.

10  Ibid., at 105 (citations omitted).

11  Since the criminal actions had spilled over from the traditional offences (war crimes), there was now the unhappy need to ‘invent’ new juridical categories: those of ‘crimes against humanity’ (racial, religious, or political persecution; the extermination or deportation of non-enemy populations, e.g. the populations of allies) and of ‘crimes against peace’ (wars of aggression; criminal plans to attack peace-abiding states) (ibid., at 128–130).

12  Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, Official Gazette of the Control Council for Germany, No. 3, 31 January 1946 (hereinafter CCL 10).

13  Some of the Allies in the Pacific Theatre prosecuted the Japanese for ‘war crimes’ under their respective military laws, see, inter alia, R. J. Pritchard, ‘War Crimes Trials in the Far East,’ in R. Bowring and P. Kornick (eds.), Cambridge Encyclopedia of Japan 107 (1993).

14  The Charter had been drafted by the Americans only, essentially by J. B. Keenan, Chief Prosecutor at the Tokyo Trial, and the Allies were only consulted after its issuance (B. V. A. Röling and A. Cassese, The Tokyo Trial and Beyond (1993) at 2).

15  For a summary of the principal differences, see ibid., at 2–3.

16  For instance, the legal categories of the crimes against peace and humanity have been criticized as ex post facto legislation on the part of the London Conference, in that these crimes did not exist in international law prior to 1945 (ibid., at 3–5).

17  M. Lippman, ‘Nuremberg: Forty-Five Years Later’, 7 Conn. J. Int’l L. (1991) at 1.

18  See supra note 8.

19  GA Res. 174, UN GAOR, 2d Sess., UN Doc. A/519 (1947).

20  Report of the International Law Commission on the Question of International Criminal Jurisdiction, UN GAOR, 5th Sess., UN Doc. A/CN.4/15 (1950).

21  Report of the Committee on International Criminal Jurisdiction, UN GAOR, 7th Sess., Supp. No. 12 at 21, UN Doc. A/26645 (1954).

22  M. C. Bassiouni, The Statute of the International Criminal Court: A Documentary History (1998) 13–15 (footnotes omitted).

23  UN GA Res. 44/39, 4 December 1989. In addition, a proposal to establish a criminal court dealing with international crimes such as aggression and war crimes did appear to be revived again in August 1990, in response to the Iraqi invasion of Kuwait and to hostage-taking of foreigners and atrocities allegedly committed in Kuwait (see various dispatches cited in The Path to the Hague, supra note 2, at 7, 9, 11). However, it is unclear to what extent it was envisaged that the court would have a truly international character (see The Times, 26 September 1990, ‘Echo of Nuremberg Trials in Iraq’). In any case, these steps did not lead to any proposal at the international level, although moves towards the establishment of an international tribunal to prosecute and punish war crimes committed by Iraqi forces in Kuwait seem once more to be gaining momentum. (See in this regard A. Cassese, ‘On Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9 EJIL (1998) 8–9.)

24  Report of the International Law Commission, 46th Sess., 2 May–22 July 1994, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994). See Ch. 21, below.

25  See e.g. the letters of Lawrence Eagleburger of 8 May 1996 (‘the United States could no longer remain silent on the issue of war crimes … [A]cts against humanity could not and would not be ignored.’) and Elie Wiesel of 28 June 1996 (‘to not prosecute the criminals would amount to condoning their crimes. In extreme situations, speaking out is a moral obligation.’) to Antonio Cassese reprinted in The Path to the Hague, supra note 2, at 73 and 75, respectively.

26  See in this regard the letter of Lawrence Eagleburger of 8 May 1996 to Antonio Cassese: ‘There can be—and are—arguments about the wisdom of external armed intervention in the tragedy that is Bosnia. … Of far greater precedential significance is the UN’s decision to try accused war criminals before an international tribunal especially created for that purpose. [T]hese trials will serve to put potential future war criminals on notice that the international community will not tolerate crimes against humanity’ (ibid.).

27  See in this regard SC Res. 827 of 25 May 1993.

28  This resulted in a call, from various parties, for an international tribunal to this effect to be set up. For instance, the concept was propounded in Spring 1992 by Robert Badinter, a former Justice Minister of France, at the time acting as President of the ‘Arbitration Commission for the Former Yugoslavia’. At the London Conference on the Former Yugoslavia of 26 August 1992, the German Foreign Minister Dr Klaus Kinkel proposed the establishment of a criminal court; his proposal was taken up by the French Foreign Minister, Mr Roland Dumas and became part and parcel of the final Decision of the London Conference. The idea was revamped by Foreign Minister Kinkel on 23 September 1992 before the UN General Assembly (see UN Doc. A./47/PV.8, p. 61). A suggestion to the same effect was also made by Elie Wiesel, in December 1992, to US Secretary of State Lawrence Eagleburger. The latter also forcefully promoted the idea of bringing to trial all war criminals in a statement to the Geneva International Conference on the Former Yugoslavia on 16 December 1992. This suggestion was restated by the French Foreign Minister, Roland Dumas, who proposed the creation of a permanent criminal court in a Declaration of 6 October 1992, made on the occasion of the adoption of Resolution 780 by the UN Security Council, and preceded by a similar statement by the French Permanent representative to the UN in the Security Council (The Path to the Hague, supra note 2, at 11 ).

29  See UN Doc. S/25221, Annex I, para. 9.

30  In terms of the drafting of the Statute of the ICTY, it appears that the first draft was prepared by a group of three rapporteurs appointed by the Conference on Security and Cooperation in Europe. In a letter of 24 November 1992, the British Government, then holding the Presidency of the European Union, proposed ‘to draft a convention establishing an ad hoc tribunal to deal with war crimes and crimes against humanity committed in the former Yugoslavia’. The Ministers of Foreign Affairs of the CSCE, meeting in the CSCE Council, responded favourably on 15 December 1992. The three rapporteurs then produced a draft on 9 February 1993. On 16 January 1993 the French Foreign Minister, Roland Dumas, appointed a Commission with the task of drafting a statute of an ad hoc international tribunal. Various drafts were subsequently submitted by a number of States and international bodies to the UN Secretary-General and used by him in his drafting of the Statute of the ICTY after the Security Council, at the proposal of France, adopted on 22 February 1993 Resolution 808 (1993), by which it decided to establish an international tribunal (The Path to the Hague, supra note 2, at 13).

31  In operative para. 2 of Res. 827 of 25 May 1993, the Security Council decided ‘to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned [Secretary-General’s] report.’ The Security Council amended the ICTY Statute by Res. 1166 (1998) on 13 May 1998 to add a third Trial Chamber and three new Judges. Likewise, the Statute of the ICTR was amended by the Security Council in its Res. 1165 of 30 April 1998 to provide for a third Trial Chamber.

32  In July 1994, the Security Council passed Res. 935, using the precedent of the former Yugoslavia as a model, to establish a commission of experts to investigate violations committed during the Rwandan civil war (see SC Res. 935, UN SCOR, 49th Sess., 3400th mtg., at 1, UN Doc. S/RES/935 (1994)). The Rwandan commission lasted only four months which was not long enough for it to effectively perform its task. On 1 October 1994, the Rwandan commission submitted its preliminary report to the Secretary-General, and submitted a final report on 9 December 1994 (see Preliminary Report of the Independent Commission of Experts Established in accordance with Security Council Resolution 935 (1994), UN SCOR, UN Doc. S/1994/1125 (1994); Final Report of the Commission of Experts Established pursuant to Security Council Resolution 935 (1994) and Annex, UN SCOR, UN Doc. S/1994/1405 (1994).

33  Ibid. Art. 1 of the Statute of the ICTR thus declared that the ICTR ‘shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute.’

34  Bassiouni, The Statute of the International Criminal Court, supra note 22, at 10, note 50. The seat of the Rwanda Tribunal is in Arusha, Tanzania.

35  A term aptly coined by David Scheffer, then Senior Counsel and Advisor to the United States Permanent Representative to the United Nations; cited in ibid., at 10, note 50.

36  See UN Doc. S/2000/915. See also SC Res. 1315 (2000). See also the Agreement signed on 16 January 2002 by the UN with Sierra Leone and containing as an Annex the Statute of the Special Court (see http://www.specialcourt.org). On the whole matter, see M. Frulli, ‘The Special Court for Sierra Leone: Some Preliminary Comments’, 11 EJIL (2000) 857–869.

37  Report of the International Law Commission, 46th Sess., 2 May–22 July 1994, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994).

38  Ibid.

39  See J. Balint, ‘An Empirical Study of Conflict, Conflict Victimization and Legal Redress’, 14 Nouvelles Études pénales (1998) 101.

40  Bassiouni, The Statute of the International Criminal Court, supra note 22, at 7.

41  While it is doubtful, in the absence of clear state practice and opinio juris, that states have a duty under customary international law to enforce international humanitarian law through criminal jurisdiction, states have jurisdiction to prosecute in the absence of a treaty pursuant to principles such as the universality principle and the passive personality principle (see A. Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, 9 EJIL (1998) 2–17, at 3).

42  As is commonly known, the jurisdiction provided by the 1949 Geneva Conventions is universal in that those suspected of being responsible for grave breaches come under the criminal jurisdiction of all States Parties, regardless of their nationality or the locus commissi delicti, provided however they are in the forum State. In addition, Art. 88 of Protocol I requires that States Parties provide mutual assistance with regard to criminal proceedings brought in respect of grave breaches of the 1949 Geneva Conventions or to Protocol I, including cooperation in the matter of extradition (ibid.).

43  For a summary of the various factors which have, in practice, impeded prosecution through national jurisdiction, see ibid., at 2–17, pp. 5 et seq. See also S. Lamb, ‘The Effective Enforcement of International Criminal Law with Respect to Arrests: The Practice of the International Criminal Tribunal for the Former Yugoslavia’, in Proceedings of the Third Conference of the Italian Society of International Law (Siena, 12–13 June 1998) 135–136.