Chapter 5 – Historical Development and the Establishment of the International Courts and Tribunals

Learning objectives To provide a basic understanding of the achievements of the first military tribunals, the efforts in creating ad hoc criminal tribunals and the advancement of the permanent international criminal court.

Questions How was your country involved or affected by the two World Wars? Was your country involved in any other armed conflict of an international or internal nature? Who has competence to prosecute and conduct trials for perpetrators of international crimes?

Cont… Has your country participated in the creation of the ICC? Is your country a party to the Rome Statute of the ICC?

Introduction The idea of setting up an international criminal court to try individuals responsible for international crimes can be traced back to 1474, when the earliest recorded genuine international trial for war crimes took place.

Cont… Although the idea of establishing a permanent international criminal court is more than 50 years old, sustained efforts towards its establishment were only finally rewarded in 1998 with the signing of the Statute of the ICC.

Early history (1919–1945) At the end of the First World War, there were a number of attempts to punish war criminals; however , these attempts were ultimately unsuccessful. The Allied Powers established the ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’.

Cont… In its report of March 1919, the commission determined the Central Powers were responsible for the start of the war and that there were violations of the laws of war and humanity. The commission suggested establishing a tribunal composed of judges from all of the Allied countries to try violations of the laws and customs of war and the laws of humanity.

Cont… The Peace Treaties concluded after the First World War between the Allied and Associated Powers and the Axis countries signed in 1919 and 1920 contained provisions relating to individual criminal responsibility for war crimes and provided for the prosecution of war criminals before international tribunals. However, due to the fact that these provisions were not implemented, there was a failure to bring the leading war criminals to justice.

Cont… Consequently, no international tribunals were ever established to conduct international war crimes in respect of war crimes committed during the First World War.

The Nuremberg and Tokyo Tribunals (1945–1947) Introduction: After the Second World War, in response to the horrors and atrocities committed by Nazi Germany in Europe and the Japanese in Asia, the Allies organized, for the first time in history, trials of major war criminals of the Axis countries before international military tribunals established in Nuremberg and Tokyo, respectively.

Cont… Although the trials were criticized as ‘victor’s justice’, their contribution to the development of international humanitarian law is undoubtedly significant.

The Nuremberg Tribunal: International Military Tribunal (IMT) On 8 August 1945, the four major Allies: the United Kingdom; France; the United States; and the Soviet Union – concluded the London Agreement in which they decided to establish an International Military Tribunal sitting in Nuremberg for the trial of the Nazi war criminals. The constitution, jurisdiction and functions of the IMT were provided in the Charter annexed to the London Agreement .

Cont… The IMT consisted of four members, each with an alternate. Each of the major Allies (France, the Soviet Union, the United Kingdom and the United States) was to appoint one member and one alternate. A conviction and sentence could only be imposed by affirmative votes of at least three members of the Tribunal.

Cont… Each Signatory was to appoint one of four Chief Prosecutors who acted as a committee in designating the major war criminals to be tried by the Tribunal and in approving the indictments.

Cont… In Article 6, the Nuremberg Charter defined the jurisdiction of the IMT by providing the three major categories of crimes for which the defendants were individually responsible:

Cont… (a) CRIMES AGAINST PEACE: namely, planning, preparation or waging of a war of aggression. (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment of prisoners of war or persons on the seas, killing of hostages, destruction of cities, towns or villages , or devastation not justified by military necessity.

cont… (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, and other inhumane acts committed against any civilian population, before or during the war.

The Tokyo Tribunal: International Military Tribunal for the Far East (IMTFE) On 26 July 1945, the four major Allies issued the Potsdam Declaration, announcing their intention to prosecute the Japanese leaders for the same crimes as were prosecuted at Nuremberg. The Tokyo trial took place from 3 May 1946 to 12 November 1948.

Cont… In a trial that lasted nearly two and a half years, 28 Japanese military and political leaders were tried before the tribunal. Seven of those were sentenced to death, 16 to life imprisonment, two died of natural causes during the trial and two received finite sentences.

Criticism of the Nuremberg and Tokyo trials: • imposition of victors’ justice. • lack of independence of the judges – bias against the accused. • lack of fair trial.

Legacy / achievements of the Nuremberg and Tokyo trials: • conducted first trial before international judicial body • established individual responsibility for crimes • established responsibility of a commander

Cont… • excluded the defense of superior orders • contributed to the establishment of two sorts of crimes: a) crimes against humanity. b) crimes against peace.

Cont… In 1947, the General Assembly requested the International Law Commission to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and the judgment. The International Law Commission completed its task in 1950 by providing a draft of ‘Nuremberg Principles’.

Cont… Although they were never endorsed by the General Assembly in the form of a binding legal instrument, the principles played an important role in the development of international humanitarian law.

Nuremberg Principles Principle I Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.

Cont… Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Cont… Principle III The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Cont… Principle IV The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law.

Cont… Principle V Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Cont… Principle VI The crimes hereinafter set out are punishable as crimes under international law: a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements. (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under .

Cont… b) War crimes: c) Crimes against humanity: Murder, extermination, and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds.

The ad hoc international criminal tribunals In the aftermath of the Cold War, two ad hoc international criminal tribunals were set up by the UN Security Council in response to ethnic cleansing and other atrocities, which occurred during the conflicts in the former Yugoslavia and Rwanda.

Cont… At that time, the efforts to establish a permanent international criminal court were still under way but not yet completed. The Security Council decided to establish the two tribunals as a measure adopted under Chapter VII of the UN Charter.

Cont… Both tribunals were set up outside of the territory in conflict, namely, the ICTY in The Hague, the Netherlands, and the ICTR in Arusha, Tanzania.

Jurisdiction of the ICTY as defined in its Statute a) war crimes: (i) grave breaches of the 1949 Geneva Conventions. (ii) violations of the laws or customs of war. b) genocide. c) crimes against humanity.

Jurisdiction of the ICTR as defined in its Statute a) genocide (Article 2) b) crimes against humanity (Article 3) c) war crimes: violations of Article 3 common to the Geneva Conventions and of Additional Protocol II of 1977.

CHAPTER 6 International Criminal Court (ICC)

International Criminal Court (ICC) The work of the International Law Commission (ILC) After the Nuremberg and Tokyo war crimes trials, the UN started a process towards the creation of a permanent international criminal court. A proposal to establish a permanent international criminal court was discussed during the negotiations on the 1948 Genocide Convention.

Cont… In the end, Article VI of the Genocide Convention only envisaged the future establishment of an ‘international penal tribunal’.

The Statute of the ICC In 1995, the General Assembly decided to convene a Preparatory Committee, inviting participation of Member States of the UN, non-governmental organizations and various international organizations. The Preparatory Committee held a number of meetings between 1996 and 1998 which resulted in the formulation of a Draft Statute.

Cont… The Preparatory Committee’s Draft Statute was submitted to the Diplomatic Conference of Plenipotentiaries on the Establishment of an ICC convened by the General Assembly on 15 June 1998 in Rome.

Cont… The most controversial questions discussed at the conference were the role of the Security Council, the list of core crimes over which the court would have inherent jurisdiction, and the scope of its jurisdiction over persons who were not nationals of States parties. After finding a compromise, the Statute was adopted on 17 July 1998 by 120 in favour, with 21 abstentions and seven votes against.