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The International Criminal Court has ushered in a new era in the protection of human rights. Protecting against genocide, crimes against humanity and war crimes, the Court acts when national justice systems are unwilling or unable to do so. This third edition of this seminal text on the Court considers it in action: its initial rulings by the Pre-Trial Chambers and the Appeals Chamber and those cases it is prosecuting as well as those where it had decided not to proceed, such as Iraq. It also explores the law of the Court up to and including its ruling on a confirmation hearing. It addresses the political context of the court, such as the difficulties created by US opposition and the increasing recognition of the inevitability of the institution. Written by the leading expert in the field, this text is essential reading for any student of the Court and its workings.
Creation of the Court
War criminals have been prosecuted at least since the time of the ancient Greeks, and probably well before that. The idea that there is some common denominator of behaviour, even in the most extreme circumstances of brutal armed conflict, confirms beliefs drawn from philosophy and religion about some of the fundamental values of the human spirit. The early laws and customs of war can be found in the writings of classical authors and historians. Those who breached them were subject to trial and punishment. Modern codifications of this law, such as the detailed text prepared by Columbia University professor Francis Lieber that was applied by Abraham Lincoln to the Union army during the American Civil War, proscribed inhumane conduct, and set out sanctions, including the death penalty, for pillage, raping civilians, abuse of prisoners and similar atrocities.1 Prosecution for war crimes, however, was only conducted by national courts, and these were and remain ineffective when those responsible for the crimes are still in power and their victims remain subjugated. Historically, the prosecution of war crimes was generally restricted to the vanquished or to isolated cases of rogue combatants in the victor's army. National justice systems have often proven themselves to be incapable of being balanced and impartial in such cases.
The first genuinely international trial for the perpetration of atrocities was probably that of Peter von Hagenbach, who was tried in 1474 for atrocities committed during the occupation of Breisach. When the town was retaken, von Hagenbach was charged with war crimes, convicted and beheaded.2 But what was surely no more than a curious experiment in medieval international justice was soon overtaken by the sanctity of State sovereignty resulting from the Peace of Westphalia of 1648. With the development of the law of armed conflict in the mid-nineteenth century, concepts of international prosecution for humanitarian abuses slowly began to emerge. One of the founders of the Red Cross movement, which grew up in Geneva in the 1860s, urged a draft statute for an international criminal court. Its task would be to prosecute breaches of the Geneva Convention of 1864 and other humanitarian norms. But Gustav Monnier's innovative proposal was much too radical for its time.3
The Hague Conventions of 1899 and 1907 represent the first significant codification of the laws of war in an international treaty. They include an important series of provisions dealing with the protection of civilian populations. Article 46 of the Regulations that are annexed to the Hague Convention Ⅳ of 1907 enshrines the respect of '[f]amily honour and rights, the lives of persons, and private property, as well as religious convictions and practice'.4 Other provisions of the Regulations protect cultural objects and private property of civilians. The preamble to the Conventions recognises that they are incomplete, but promises that, until a more complete code of the laws of war is issued, 'the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience'. This provision is known as the Martens clause, after the Russian diplomat who drafted it.5
The Hague Conventions, as international treaties, were meant to impose obligations and duties upon States, and were not intended to create criminal liability for individuals. They declared certain acts to be illegal, but not criminal, as can be seen from the absence of anything suggesting a sanction for their violation. Yet, within only a few years, the Hague Conventions were being presented as a source of the law of war crimes. In 1913, a commission of inquiry sent by the Carnegie Foundation to investigate atrocities committed during the Balkan Wars used the provisions of the Hague Convention Ⅳ as a basis for its description of war crimes.6 Immediately following World War Ⅰ, the Commission on Responsibilities of the Authors of War and on Enforcement of Penalties, established to examine allegations of war crimes committed by the Central Powers, did the same.7 But actual prosecution for violations of the Hague Conventions would have to wait until Nuremberg. Offences against the laws and customs of war, known as 'Hague Law' because of their roots in the 1899 and 1907 Conventions, are codified in the 1993 Statute of the International Criminal Tribunal for the Former Yugoslavia8 and in Article 8(2)(b), (e) and (f) of the Statute of the International Criminal Court.
As World War Ⅰ wound to a close, public opinion, particularly in England, was increasingly keen on criminal prosecution of those generally considered to be responsible for the war. There was much pressure to go beyond violations of the laws and customs of war and to prosecute, in addition, the waging of war itself in violation of international treaties. At the Paris Peace Conference, the Allies debated the wisdom of such trials as well as their legal basis. The United States was generally hostile to the idea, arguing that this would be ex post facto justice. Responsibility for breach of international conventions, and above all for crimes against the 'laws of humanity' - a reference to civilian atrocities within a State's own borders - was a question of morality, not law, said the US delegation. But this was a minority position. The resulting compromise dropped the concept of 'laws of humanity' but promised prosecution of Kaiser Wilhelm Ⅱ 'for a supreme offence against international morality and the sanctity of treaties'. The Versailles Treaty formally arraigned the defeated German emperor and pledged the creation of a 'special tribunal' for his trial.9 Wilhelm of Hohenzollern had fled to neutral Holland which refused his extradition, the Dutch government considering that the charges consisted of retroactive criminal law. He lived out his life there and died, ironically, in 1941 when his country of refuge was falling under German occupation in the early years of World War Ⅱ.
The Versailles Treaty also recognised the right of the Allies to set up military tribunals to try German soldiers accused of war crimes.10 Germany never accepted the provisions, and subsequently a compromise was reached whereby the Allies would prepare lists of German suspects, but the trials would be held before the German courts. An initial roster of nearly 900 was quickly whittled down to about forty, and in the end only a dozen were actually tried. Several were acquitted; those found guilty were sentenced to modest terms of imprisonment, often nothing more than time already served in custody prior to conviction. The trials looked rather more like disciplinary proceedings of the German army than any international reckoning. Known as the 'Leipzig Trials', the perceived failure of this early attempt at international justice haunted efforts in the inter-war years to develop a permanent international tribunal and were grist to the mill of those who opposed war crimes trials for the Nazi leaders. But two of the judgments of the Leipzig court involving the sinking of the hospital ships Dover Castle and Llandovery Castle, and the murder of the survivors, mainly Canadian wounded and medical personnel, are cited to this day as precedents on the scope of the defence of superior orders.11
The Treaty of Sèvres of 1920, which governed the peace with Turkey, also provided for war crimes trials.12 The proposed prosecutions against the Turks were even more radical, going beyond the trial of suspects whose victims were either Allied soldiers or civilians in occupied territories to include subjects of the Ottoman Empire, notably victims of the Armenian genocide. This was the embryo of what would later be called crimes against humanity. However, the Treaty of Sèvres was never ratified by Turkey, and the trials were never held. The Treaty of Sèvres was replaced by the Treaty of Lausanne of 1923 which contained a 'Declaration of Amnesty' for all offences committed between 1 August 1914 and 20 November 1922.13
Although these initial efforts to create an international criminal court were unsuccessful, they stimulated many international lawyers to devote their attention to the matter during the years that followed. Baron Descamps of Belgium, a member of the Advisory Committee of Jurists appointed by the Council of the League of Nations, urged the establishment of a 'high court of international justice'. Using language borrowed from the Martens clause in the preamble to the Hague Conventions, Descamps recommended that the jurisdiction of the court include offences 'recognized by the civilized nations but also by the demands of public conscience [and] the dictates of the legal conscience of civilized nations'. The Third Committee of the Assembly of the League of Nations declared that Descamps' ideas were 'premature'. Efforts by expert bodies, such as the International Law Association and the International Association of Penal Law, culminated, in 1937, in the adoption of a treaty by the League of Nations that contemplated the establishment of an international criminal court.14 But, failing a sufficient number of ratifying States, that treaty never came into force.
The Nuremberg and Tokyo trials
In the Moscow Declaration of 1 November 1943, the Allies affirmed their determination to prosecute the Nazis for war crimes. The United Nations Commission for the Investigation of War Crimes, composed of representatives of most of the Allies, and chaired by Sir Cecil Hurst of the United Kingdom, was established to set the stage for post-war prosecution. The Commission prepared a 'Draft Convention for the Establishment of a United Nations War Crimes Court', basing its text largely on the 1937 treaty of the League of Nations, and inspired by work carried out during the early years of the war by an unofficial body, the London International Assembly.15 But it was the work of the London Conference, convened at the close of the war and limited to the four major powers, the United Kingdom, France, the United States and the Soviet Union, that laid the groundwork for the prosecutions at Nuremberg. The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT) was formally adopted on 8 August 1945, and was promptly signed by representatives of the four powers. The Charter of the International Military Tribunal was annexed to the Agreement.16 This treaty was eventually adhered to by nineteen other States who, although they played no active role in the Tribunal's activities or the negotiation of its statute, sought to express their support for the concept.
In October 1945, indictments were served on twenty-four Nazi leaders, and their trial - known as the Trial of the Major War Criminals - began the following month. It concluded nearly a year later, with the conviction of nineteen defendants and the imposition of sentence of death in twelve cases. The Tribunal's jurisdiction was confined to three categories of offence: crimes against peace, war crimes and crimes against humanity. The Charter of the International Military Tribunal had been adopted after the crimes had been committed, and for this reason it was attacked as constituting ex post facto criminalisation. Rejecting such arguments, the Tribunal referred to the Hague Conventions, for the war crimes, and to the 1928 Kellogg-Briand Pact, for crimes against peace.17 It also answered that the prohibition of retroactive crimes was a principle of justice, and that it would fly in the face of justice to leave the Nazi crimes unpunished. This argument was particularly important with respect to the category of crimes against humanity, for which there was little real precedent. In the case of some war crimes charges, the Tribunal refused to convict after hearing evidence of similar behaviour by British and American soldiers.18
In December 1945, the four Allied powers enacted a somewhat modified version of the Charter of the International Military Tribunal, known as Control Council Law No. 10.19 It provided the legal basis for a series of trials before military tribunals that were run by the victorious Allies, as well as for subsequent prosecutions by German courts that continued for several decades. Control Council Law No. 10, which was really a form of domestic legislation because it applied to the prosecution of Germans by the courts of the civil authorities, largely borrowed the definition of crimes against humanity found in the Charter of the Nuremberg Tribunal, but omitted the latter's insistence on a link between crimes against humanity and the existence of a state of war, thereby facilitating prosecution for pre-1939 crimes committed against German civilians, including persecution of the Jews and euthanasia of the disabled. Several important trials were held pursuant to Control Council Law No. 10 in the period 1946-8 by American military tribunals. These focused on groups of defendants, such as judges, doctors, bureaucrats and military leaders.20
In the Pacific theatre, the victorious Allies established the International Military Tribunal for the Far East. Japanese war criminals were tried under similar provisions to those used at Nuremberg. The bench was more cosmopolitan, consisting of judges from eleven countries, including India, China and the Philippines, whereas the Nuremberg judges were appointed by the four major powers, the United States, the United Kingdom, France and the Soviet Union.
At Nuremberg, Nazi war criminals were charged with what the prosecutor called 'genocide', but the term did not appear in the substantive provisions of the Statute, and the Tribunal convicted them of 'crimes against humanity' for the atrocities committed against the Jewish people of Europe. Within weeks of the judgment, efforts began in the General Assembly of the United Nations to push the law further in this area. In December 1946, a resolution was adopted declaring genocide a crime against international law and calling for the preparation of a convention on the subject.21 Two years later, the General Assembly adopted the Convention for the Prevention and Punishment of the Crime of Genocide.22 The definition of genocide set out in Article Ⅱ of the 1948 Convention is incorporated unchanged in the Statute of the International Criminal Court, as Article 6. But, besides defining the crime and setting out a variety of obligations relating to its prosecution, Article Ⅵ of the Convention said that trial for genocide was to take place before 'a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction'. An early draft of the Genocide Convention prepared by the United Nations Secretariat had actually included a model statute for a court, based on the 1937 treaty developed within the League of Nations, but the proposal was too ambitious for the time and the conservative drafters stopped short of establishing such an institution.23 Instead, a General Assembly resolution adopted the same day as the Convention called upon the International Law Commission to prepare the statute of the court promised by Article Ⅵ.24
International Law Commission
The International Law Commission is a body of experts named by the United Nations General Assembly and charged with the codification and progressive development of international law. Besides the mandate to draft the statute of an international criminal court derived from Article Ⅵ of the Genocide Convention, in the post-war euphoria about war crimes prosecution the General Assembly had also asked the Commission to prepare what are known as the 'Nuremberg Principles', a task it completed in 1950, and the 'Code of Crimes Against the Peace and Security of Mankind', a job that took considerably longer. Indeed, much of the work on the draft statute of an international criminal court and the draft code of crimes went on within the Commission in parallel, almost as if the two tasks were hardly related. The two instruments can be understood by analogy with domestic law. They correspond in a general sense to the definitions of crimes and general principles found in criminal or penal codes (the 'code of crimes'), and the institutional and procedural framework found in codes of criminal procedure (the 'statute').
Meanwhile, alongside the work of the International Law Commission, the General Assembly also established a committee charged with drafting the statute of an international criminal court. Composed of seventeen States, it submitted its report and draft statute in 1952.25 A new committee, created by the General Assembly to review the draft statute in the light of comments by Member States, reported to the General Assembly in 1954.26 The International Law Commission made considerable progress on its draft code and actually submitted a proposal in 1954.27 Then, the General Assembly suspended the mandates, ostensibly pending the sensitive task of defining the crime of aggression.28 In fact, political tensions associated with the Cold War had made progress on the war crimes agenda virtually impossible.
The General Assembly eventually adopted a definition of aggression, in 1974,29 but the work did not immediately resume on the proposed international criminal court. In 1981, the General Assembly asked the International Law Commission to revive the work on its draft code of crimes.30 Doudou Thiam was designated the special rapporteur of the Commission, and he produced annual reports on various aspects of the draft code for more than a decade. Thiam's work, and the associated debates in the Commission, addressed a range of questions, including definitions of crimes, criminal participation, defences and penalties.31 A substantially revised version of the 1954 draft code was provisionally adopted by the Commission in 1991, and then sent to Member States for their reaction.
But the code did not necessarily involve an international jurisdiction. That aspect of the work was only initiated in 1989, the year of the fall of the Berlin Wall. Trinidad and Tobago, one of several Caribbean States plagued by narcotics problems and related transnational crime issues, initiated a resolution in the General Assembly directing the International Law Commission to consider the subject of an international criminal court within the context of its work on the draft code of crimes.32 Special Rapporteur Doudou Thiam made an initial presentation on the subject in 1992. By 1993, the Commission had prepared a draft statute, this time under the direction of Special Rapporteur James Crawford. The draft statute was examined that year by the General Assembly, which encouraged the Commission to complete its work. The following year, in 1994, the Commission submitted the final version of its draft statute for an international criminal court to the General Assembly.33
The International Law Commission's draft statute of 1994 focused on procedural and organisational matters, leaving the question of defining the crimes and the associated legal principles to the code of crimes, which it had yet to complete. Two years later, at its 1996 session, the Commission adopted the final draft of its 'Code of Crimes Against the Peace and Security of Mankind'.34 The draft statute of 1994 and the draft code of 1996 played a seminal role in the preparation of the Statute of the International Criminal Court. The International Criminal Tribunal for the Former Yugoslavia has remarked that 'the Draft Code is an authoritative international instrument which, depending upon the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain content or are in the process of formation, or, at the very least, (iii) be indicative of the legal views of eminently qualified publicists representing the major legal systems of the world'.35
The ad hoc tribunals
While the draft statute of an international criminal court was being considered in the International Law Commission, events compelled the creation of a court on an ad hoc basis in order to address the atrocities being committed in the former Yugoslavia. Already, in mid-1991, there had been talk in Europe of establishing a tribunal to try Saddam Hussein and other Iraqi leaders following the Gulf War. In late 1992, as war raged in Bosnia, a Commission of Experts established by the Security Council identified a range of war crimes and crimes against humanity that had been committed and that were continuing. It urged the establishment of an international criminal tribunal, an idea that had originally been recommended by Lord Owen and Cyrus Vance, who themselves were acting on a proposal from French constitutional judge Robert Badinter. The proposal was endorsed by the General Assembly in a December 1992 resolution. The rapporteurs appointed under the Moscow Human Dimension Mechanism of the Conference on Security and Cooperation in Europe, Hans Correll, Gro Hillestad Thune and Helmut Türk, took the initiative to prepare a draft statute. Several governments also submitted draft proposals or otherwise commented upon the creation of a tribunal.36
|List of abbreviations|
|1||Creation of the court||1|
|2||Crimes prosecuted by the court||26|
|3||Jurisdiction and admissibility||67|
|4||General principles of criminal law||90|
|5||Investigation and pre-trial procedure||117|
|6||Trial and appeal||143|
|7||Punishment and the rights of victims||162|
|8||Structure and administration of the court||176|
|App. 1||Rome Statute||195|
|App. 2||Elements of crimes||279|
|App. 3||Rules of procedure and evidence||322|
|App. 4||States parties and signatories||416|
|App. 5||Declarations and reservations||421|
|App. 6||Judges of the court||429|