The International Criminal Court In Year IX: A Look Backward

“The International Criminal Court In Year IX: A Look Backward”

By Larry W. O. Smeets

In a meeting of the General Assembly of the United Nations convened in Rome, on July 17, 1998, at the conclusion of five-week-long deliberations between representatives from over 150 countries, a coalition of 120 states (including Canada) gave approval in principle to the creation of a new international organization that is designed to prosecute those who commit the most serious crimes against others.  The new body, the International Criminal Court (hereafter the “ICC”), was formally established on July 1, 2002, when its founding treaty the Rome Statute of the International Criminal Court (hereafter the “Rome Statute”) came into force. The ICC is based at The Hague, Netherlands.

international-criminal-courtThe ICC is comprised of eighteen judges chosen from around the world.   The first judges, elected in February 2003 by an Assembly of States Parties, were sworn in on March 1 later the same year.  The ICC includes an independent prosecutor who is vested with plenary authority to initiate investigations, proceed with charges, and bring to justice individuals who commit after July 1, 2002 genocide, war crimes, and crimes against humanity.  Once agreement is reached by States Parties on a definition of aggression and on how to proceed in such cases, the ICC prosecutor’s mandate will also convey individuals who commit crimes of aggression.

The ICC’s jurisdiction is not universal, but is limited to that of states that have formally ratified the Rome Statute. The courts of states ratifying the Rome Statute take precedence over the ICC in the prosecution of individuals for war crimes and other offences.  The ICC assumes jurisdiction over a prosecution only once it becomes evident that the legal system of the member state is unable or unwilling to investigate or prosecute the offenders covered by the ICC mandate.   The ICC is designed in essence as a backdrop to the legal system of ratifying states.

All indications are that the ICC is finally starting to build up a head of steam.  Its first arrest warrants were issued on July 8, 2005.  The warrants targeted individuals based in Africa, specifically in Uganda, the Democratic Republic of the Congo, the Central African Republic, and Sudan.  The ICC’s first trial, involving Thomas Lubanga of The Democratic Republic of Congo, a Congolese warlord accused of conscripting child soldiers, began on January 26, 2009.

Why did the world have to wait until the twenty-first century for the establishment of such a court? The need for an international judicial body able to prosecute individual offenders has been readily apparent for a long time: particularly since the end of World War Two, when the global community learned how the Germans under Adolph Hitler and the Japanese under Emperor Hirohito had organized on a vast scale the deliberate murder of millions of innocent people for reasons unrelated to military necessity.  And the commission of crimes against humanity and other atrocities has continued to occur in full public glare since then, with high points (or rather, low points) being reached in Democratic Kampuchea under Pol Pot in 1975-1978, when an estimated 1,000,000 Cambodians were either murdered or starved or worked to death; in Iraq under General Saddam Hussein particularly in 1988 – 1991, when Kurd minorities were killed en mass or subjected to brutal treatment; in Rwanda during a hundred-day period lasting from April 6 to July 15, 1994, when close to 1,000,000 Tutsis and their supporters were systematically rounded up and murdered by Hutu extremists; and in the former Yugoslavia under Slobodan Milosevic at various times in the 1990s, when Bosnia and Kosovo in particular were “ethnically cleansed” by Serbian paramilitary of non-Serbians.

It certainly cannot be said that the socio-political conditions giving rise to the need for creation of such a court have not been in existence since the end of World War Two, when the crimes committed during that conflict came to the light of day.  On the contrary, since then military conflict had been on ever-present feature of international life.  Between 1945 and 1992 there broke out some 24 wars between states, as a result of which an estimated 6,623,000 civilian and military lives were lost.  Among the more notable of those was the Iran-Iraq War (1980-1988), which resulted in an estimated 1,000,000 casualties.  To those interstate conflicts was added some additional 93 civil wars, wars of independence, and insurgencies, which resulted in an estimated loss of an additional 15,513,000 lives.  Among the more notable of those was the civil war in Afghanistan, which resulted in the estimated loss of 1,500,000 lives.

Nor can it be said that member-states of the international community lacked the legal tools to go after individuals who committed some of the crimes now covered by the Rome Statute. The Convention on the Prevention and Punishment of the Crime of Genocide (hereafter the “Genocide Convention”), which was approved by the United Nations General Assembly and proposed for signature and ratification by member states on December 9, 1948, expressly prohibited the crime of genocide.  Genocide involves intentional killing or causing of serious harm to a national, ethnical, racial, or religious group. The Genocide Convention stipulates that: “The Contracting Parties confirm that genocide, whether committed in the time of peace or in time of war, is a crime under international law which they undertake to prevent and punish.” Article VI sets out that persons charged with genocide:

“… shall be tried by 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.” [United Nations Treaty Series No. 1021, Vol. 78, p. 277; reproduced in Benjamin Mulamba Mbuyi, Refugees and International Law  (Scarborough, Ontario: Carswell, 1993), 501-507].

Yet after 1946, down to 1993-1994 with the establishment of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, no international organization was created to try anyone for genocide, war crimes, crimes against humanity, or crimes of aggression.  And when prosecutions for such offences did occur – as with those involving Adolf Eichmann and John Demjanjuk in Israel and Klaus Barbie in France – they tended to involve persons alleged to have committed crimes during World War Two, rather than since then.  Why?  What accounts for the hiatus between 1945, when the United Nations was formed and its General Assembly (in 1946) unanimously adopted Resolution 95(1) affirming “the principles of International Law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal,”  and May 1993 when the United Nations Security Council, through exercising its Chapter VII powers to adopt resolution 827 [United Nations Security  I.L.M. 1159 (1993)], finally took the next step of creating legal machinery capable of ensuring compliance with those principles?

The timing of the creation of the ICC raises several important questions about the effectiveness of the steps taken by the international community since the end of World War Two to prevent the commission of genocide, war crimes, crimes against humanity, and crimes of aggression.  To be fair, the creation of the ICC is by no means the only attempt made by the international community to deal with the profound problems that spawned the creation of the court.  The first attempt to establish such an international tribunal in fact pre-dated the establishment of the United Nations.  At the conclusion of the twentieth century’s first great bloodbath, World War One, during the Paris Place Conference in 1919, the signatories to the Treaty of Versailles established a Commission of Responsibilities charged with responsibility to investigate the creation of such a tribunal to prosecute German war criminals.  The subject came up again for consideration during a conference held in Geneva from November 1 to 16, 1937, under the authority of the League of Nations.   And at the end of World War Two the International Court of Justice (also known as the World Court) was created as the wing of the United Nations -     albeit responsible for adjudicating disputes only between states that voluntarily attorn to its jurisdiction.  There also was created at around the same time in Europe the International Military Tribunal of Nuremberg (also known as the Nuremberg Tribunal), which was charged with responsibility for prosecuting Nazi war criminals; and in Asia the International Military Tribunal – Far East (also known as the Tokyo War Crimes Tribunal), similarly charged with responsibility for prosecuting Japanese war criminals.  Both organizations can fairly be described as direct predecessors of the ICC.  Other similar organizations, notably the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, were created much later at the behest of the United Nations Security Council, in, respectively, May 1993 and November 1994.

So how are we to explain the apparent reluctance of the international community to create legal machinery the operation of which is premised on the assumption that individuals who commit the worst crimes imaginable are individually responsible, and hence accountable, for their deeds?  The ICC owes its inception directly to efforts of legal reformers in the United Nation’s International Law Commission, who since its inception had worked actively on an international basis for the establishment of a permanent international criminal court.  The ICC owes its immediate inception to the Prime Minister of Trinidad and Tobago A.N.R. Robinson, who in 1989 asked the United Nations General Assembly to consider establishing an international court to prosecute drug traffickers.  In 1990 the International Commission, acting in response to such plea, submitted to the United Nations General Assembly a report dealing with the issue.  The report was well-received. The International Law Commission then undertook the task of preparing a draft statute for an international criminal court.  By 1993 the draft statute was completed, and was submitted to the United Nations General Assembly.  Input was then solicited from member states.  On the basis of such input, a revised draft statute was prepared for consideration by an ad hoc committee of the General Assembly, and later by a Preparatory Committee for the Establishment of a Permanent International Criminal Tribunal. Such efforts bore fruit at the Rome Conference in 1998 discussed above, in the course of which the Rome Statute was negotiated and agreed upon in principle.

Yet it would be inaccurate to say that because the movement to establish the ICC emerged out of the ashes of World War Two, interest in the establishment of such legal machinery did not exist prior to then.  On the contrary, agitation for the establishment of an international criminal court predated even the onset of World War One.  A founder of the International Committee of the Red Cross, Gustav Moynier, called for the creation of an international court as early as 1872, in response to crimes committed during the Franco-Prussian War.  Agitation for the creation of such court intensified in late 1934, following the assassination in Marseilles in October, at the beginning of a state visit to France, of King Alexander of Yugoslavia and French Foreign Minister Louis Barthou.  The two officials were murdered by Croat separatists.  In 1937 the League of Nations adopted the Convention for the Prevention and Punishment of Terrorism, which provided for the creation of an international criminal court empowered to try contraventions of the convention.  The convention was ratified by only one state though, India, which was not fully independent, being a British colony at the time.  The convention’s fate was sealed by the collapse of the League of Nations after the onset of World War Two.

So why, I ask again, did the world have to wait until the very end of the twentieth century for the international community to take the next step of establishing such legal machinery? Certainly there arose at various times after 1948 episodes when the creation of a penal tribunal pursuant to Article VI of the Genocide Convention clearly was warranted.  Such occasions included in 1965 and in 1975, when Hutus were massacred by Tutsis in Burundi; in 1974, when Ache Indians were murdered in Paraguay; and in 1988-1991, when Kurds were killed en masse in Iraq.  At such times non-governmental organizations and others lobbied the international community to prosecute the perpetrators of the crimes.  Their efforts failed primarily as a result of the exertion of diplomatic pressure at the highest levels of state to prevent the creation of such legal machinery.

Why would states oppose the creation of an international adjudicative tribunal designed to check the occurrence of such offences?  Why have many counties, including the four largest counties in the world, India, the People’s Republic of China, Russia, and the United States, still have not yet submitted to jurisdiction of the ICC? There is no easy answer to this question.

The opposition of some opponents stemmed primarily from history, in particular from episodes in which opponent states have become embroiled in disputes with existing international institutions.  Such seems to have been the case with the People’s Republic of China, one of the seven countries that voted in the General Assembly in Rome in 1998 against the creation of the ICC (the other countries being Iraq, Israel, Libya, Qatar, the United States of America, and Yemen).  The citizenry of China were the target of some of the most horrendous war crimes and crimes against humanity perpetrated in modern times.  As early as December 1937, shortly after the Japanese invasion of China, the Japanese army occupied the then state capital Nanking and began a killing-spree.  According to the estimate later accepted by the Tokyo War Crimes Tribunal, the Japanese military killed more than 260,000 non-combatants in Nanking alone within the space of a few months’ time.  This experience did not galvanize China into leading the international community after the conclusion of World War Two in establishing an international criminal court responsible for the prosecution of the perpetrators of such atrocities though.  On the contrary, during the Korean War (1950-1954) China essentially went to war with the very international body created after the Second World War to ensure international peace and security, the United Nations.  Chinese diplomatic efforts in the years following the closure of the Korean War concentrated on the organization of an international united front of non-aligned countries independent of the United Nations and of the four countries that since that body’s inception have dominated its Security Council – France, the Soviet Union, the United Kingdom, and the United States.

At first glance one might assume that the opposition to the creation of the international penal tribunal stemmed from disagreements over the manner in which such a tribunal should be constituted and empowered.  Such appears to be the case with one of the two most notable opponents of the ICC, the People’s Republic of China (the other such state being the United States of America).  At one of the regularly scheduled Foreign Ministry news briefings held in Beijing on June 16 and 18, 1998, Chinese spokesperson Zhu Banzao left his listeners with the impression that the People’s Republic of China was one of the countries pressing for the creation of the ICC:  “The Chinese government has always supported the establishment of an international criminal court and has actively participated in the preparatory work.” [“Foreign Ministry News Briefings”, Beijing Review 41:27 (July 6-12, 1998) page 7]


The opposition to the creation of an international criminal court stemmed also from principled disagreements over such issues as the degree to which the emerging international rule of law should impinge on the domestic affairs of sovereign states, including on the jurisdiction of such states to prosecute (or else to exercise a discretion not to prosecute) those citizens who may have contravened international humanitarian law.  The practical effect of the operation of the doctrine of sovereignty is to raise barriers between states, as they have legal systems that are distinctive from those of other countries.  Countries are reluctant to surrender suspected criminal offenders up to other law enforcement agencies, or to assist such agencies with criminal investigations or prosecutions, if by doing so they lessen the scope for control of their own legal system over such criminal offenders.  States tend to adhere strictly to the notion that a hallmark of the assertion of sovereignty is the prosecution by the sovereign state of individuals for criminal activity.  Such seems to have been the case with both the People’s Republic of China and the United States.


It must be remembered that the United States was one of the four states participating (along with the Soviet Union, Great Britain, and France) at the end of the Second World War in the prosecution of Nazi war criminals in the precedent-setting Nuremberg Tribunal.  Given that country’s longstanding and principled support for the extension around the world of democracy and of the rule of law, one must not forget the significance of the shift in American global policy following the formation of the United Nations in understanding the reasons for American opposition the establishment of the ICC.  That shift was signified in statements such as that made by the Head of Policy Planning at the United States Department of State George Kennan in 1948:

“ … we have about 50 percent of the world’s wealth but only 6.3 percent of its population ….  Our real task in the coming period is to devise a pattern of relationships which will permit us to maintain this position of disparity without positive detriment to our national security.  To do so, we will have to dispense with all sentimentality and day-dreaming; and our attention will have to be concentrated everywhere on our immediate national objectives.  We need not deceive ourselves that we can afford the luxury of altruism and world benefaction ….

The peoples of Asia and of the Pacific are going to go ahead, whatever we do, with the development of their political forms and mutual interrelationships in their own way ….  This process of adaptation will also be long and violent.  It is not only possible, but probable, that in the course of this process many peoples will fall, for varying periods, under the influence of Moscow, whose ideology has a greater lure of such peoples, and probably greater reality, than anything we could oppose to it …. In the face of this situation we would be better off to dispense now with a number of the concepts which have underlined our thinking ….  We should cease to talk about vague and unreal objective such as human rights, the raising of living standards, and democratization.  The day is not far off when we are going to have to deal in straight power concepts.  The less we are hampered by idealistic slogans, the better.”  [P.P.S./23, February 24, 1948.  Excerpted in Containment, edited by Thomas H. Etzoid and John Lewis Gaddis (New York: Columbia University Press, 1978), pp.226-227]

Varied though the reasons are which account for how such dissimilar countries as the People’s Republic of China and the United States, along with such other countries as Iraq, Israel, and Libya, have ended up as allies supporting the continuance of a global order in which there exists no general international adjudicative body charged with responsibility for working to ensure that the Pol Pots, Saddam Husseins, and Slobadon Milosevics of this world are held in check, the potential long-term consequence of such opposition appears to be the same.  Such allies appear to disregard the fact that, if their opposition prevails, humanity continues to be confronted with a future in which war criminals and their ilk are allowed essentially to proceed with impunity to do what the vast majority of humankind agrees is not only contrary to the dictates of human conscience but contrary to international human rights norms as well. On the other hand the creation of the ICC in the face of such opposition may be indicative of a fundamental shift in international affairs, signalling the emergence of a new pattern of state relationships in which those states that choose to conduct their foreign relations on the basis of straight power concepts find themselves increasingly isolated at the international level.  If so, such a trend is to be applauded and to be supported further where appropriate.



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