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Obstacles in the Way of an International Criminal Court

Published online by Cambridge University Press:  16 January 2009

John Dugard
John Dugard
Affiliation:
Arthur Goodhart Visiting Professor in Legal Science (1995-96) and Director of the Research Centre for International Law, University of Cambridge; Professor of Law, University of the Witwatersrand, Johannesburg.
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Extract

The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.

Type
Articles
Information
The Cambridge Law Journal , Volume 56 , Issue 2 , July 1997 , pp. 329 - 342
Copyright
Copyright © Cambridge Law Journal and Contributors 1997

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References

1. For an account of this history, see Ferencz, B., An International Criminal Court. A Step Towards World Peace—A Documentary History and Analysis (Oceana, 1980).Google Scholar

2. Article 227 of the Treaty of Versailles (UK Treaty Series No. 1 (1919)) provided for the trial of the Emperor for “a supreme offence against international morality and the sanctity of treaties” before a special tribunal composed of five judges appointed by the United Kingdom, the United States, France, Italy and Japan. The attempt to bring the Emperor to trial was thwarted when he was granted asylum by the Netherlands.

3. The unratified Treaty of Sevres of 1920 (UK Treaty Series No. 11 (1920)) provided for the surrender by Turkey of persons “responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Turkish Empire” (article 230) but in 1923 the Treaty of Lausanne (UK Treaty Series No. 16 (1923), Part VIII) granted amnesty to these persons. See Dadrian, V.N., “Genocide as a.Problem of National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications” (1989) 14 Yale Journal of International Law 221.Google Scholar

4. Convention for the Prevention and Punishment of Terrorism: Hudson, Manley O., International Legislation, vol. VI1, No. 499 (Carnegie Endowment for International Peace, Washington, 1941).Google Scholar

5. Convention for the Creation of an International Criminal Court: ibid.. No. 500.

6. For a history of the attempts to establish an international criminal court in the early years of the United Nations, see Bassiouni, M. Cherif, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (Martinus Nijhoff, 1987), pp. 3–9.Google Scholar

7. In 1979 the United Nations Human Rights Commission instructed Professor M. Cherif Bassiouni to draft a statute for an international court to try offenders under the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. A statute was drafted but no action was taken on the project: ibid., pp. 10–11.

8. See Bassiouni, M. Cherif and Blakesley, C.L., “The Need for an International Criminal Court in the New World Order” (1992) 25 Vanderbilt Journal of International Law 151.Google Scholar

9. Libya claims jurisdiction on grounds of nationality; the United Kingdom on grounds of territoriality; and the United States on grounds of the nationality of the victims and the place of registration of the aircraft.

10. See Orentlicher, D., “Settling Accounts: the Duty to Prosecute Human Rights Violations of a Prior Regime” (1991) 100 Yale Law Journal 2537.CrossRefGoogle Scholar

11. GA Res. 44/39 (1989).

12. SC Res. 827 (1993).

13. SC Res. 955 (1994).

14. Report of the International Law Commission, 46th Session, UNGAOR, 49th Session, supp. No. 10 UN Doc. A/49/10 (1994). This Draft Statute was produced by a Working Group under the chairmanship of Professor James Crawford. See further on this Draft Statute, Crawford, J., “The lLC's Draft Statute for an International Criminal Court” (1994)Google Scholar 88 A.J.I.L. 140; Crawford, J., “The ILC Adopts a Statute for an International Criminal Court” (1995)Google Scholar 89 A.J.I.L. 404; Crawford, J., “Prospects for an International Criminal Court” (1995) 48 Current Legal Problems 303.CrossRefGoogle Scholar

15. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UNGAOR, 50th Session, supp. No. 22, UN Doc. A/50/22. See further on this Report, W.C. Gilmore, “The Proposed International Criminal Court: Recent Developments” (1995) 5 Transnational Law and Contemporary Problems 263, 281.

16. Report of the Preparatory Committee on the Establishment of an International Criminal Court, UNGAOR, 51st Session, supp. No. 22, UN Doc. A/51/22 (1996). This Report comprises two volumes. All references are to vol. I unless otherwise indicated.

17. GA Res. 51/207.

18. Ibid.

19. The Third Law of the Sea Conference (UNCLOS III) met in eleven sessions between 1973 and 1982, when the Law of the Sea Convention was signed. A further twelve years were, however, to pass before the required number of ratifications were obtained to bring it into force.

20. Ambos, K., “Establishing an International Criminal Court and an International Criminal Code” (1996)Google Scholar 7 E.J.I.L. 519, 527; Marquardt, P.D., “Law without Borders. The Constitutionality of an International Criminal Court” (1995) 33 Columbia Journal oj Transnational Law 72, 136.Google Scholar

21. Report of the International Law Commission, 48th Session, UNGAOR, 51st Session, supp. No. 10, UN Doc. A/51/10.

22. The International Law Commission commenced work on this Code in 1949 but suspended its work on this subject from 1954 to 1981 while the General Assembly embarked upon a twenty year unsuccessful attempt to define aggression. See note 6 above, pp. 3–10.

23. (1945) 39 A.J.I.L. 257 (Supp.).

24. See note 12 above.

25. See note 13 above.

26. See note 14 above.

27. Article 20.

28. Article 33.

29. Article 39.

30. Article 41.

31. Articles 38 and 44.

32. Article 19.

33. Report of the Ad Hoc Committee, note 15 above, para. 57; Report of the Preparatory Committee, note 16 above, paras. 52, 55, 180; Wise, E.M., “General Rules of Criminal Law” (1997) 13 Nouvelles Etudes Penales 267, 272.Google Scholar

34. Report of the Preparatory Committee, note 16 above, para. 180.

35. In 1996 a group of criminal-law institutes and non-governmental organisations submitted the “Siracusa Draft” prepared by a Committee of Experts to the Preparatory Committee. This Draft contains detailed definitions of the principal international crimes. Support for such definitions appears in the Reports of the Ad Hoc Committee, note 15 above, paras. 59–79, and the Preparatory Committee, note 16 above, paras. 52–102. The February 1997 meeting of the Preparatory Committee was largely devoted to the discussion of such definitions.

36. See the Reports of the Ad Hoc Committee, note 15 above, paras. 87–89, and the Preparatory Committee, note 16 above, paras. 180–208. The inclusion of detailed rules of criminal law was also considered by the Preparatory Committee in its meeting in February 1997.

37. See, in particular, the Report of the Preparatory Committee, note 16 above, para. 186. France has submitted an alternative draft to that of the International Law Commission which would introduce a greater balance between the inquisitorial and accusatorial systems: UN Doc. A/AC.249/L.3.

38. Ibid, paras. 263–264.

39. Ibid, para. 293.

40. See note 14 above, article 20.

41. Report of the Preparatory Committee, above note 16, para. 103.

42. Ibid, paras. 70–73.

43. Article 23(2).

44. Report of the Preparatory Committee, note 16 above, para. 115.

45. (1996) 35 I.L.M. 32.

46. Ibid, paras. 125–127. See further on this development, C. Greenwood, “International Humanitarian Law and the Tadic Case” (1996) 7 E.J.I.L. 265, 278.

47. Above note 16, para. 78.

48. See Crawford, Current Legal Problems, note 14 above, at 305.

49. Article 9, above note 12.

50. Article 8, above note 13.

51. See note 45 above.

52. Ibid, paras. 50–60.

53. See note 14 above.

54. See the Reports of the Ad Hoc Committee, note 15 above at paras. 29–37, and the Preparatory Committee, note 16 above at para. 154 and vol. II, pp. 1–3.

55. Article 42 of the ILC Draft Statute provides that the international criminal court will be competent to retry a person where the proceedings in the national court “were not impartial or independent or were designed to shield the accused from international criminal responsibility or the case was not diligently prosecuted”.

56. Article 21 (l)(a).

57. Article 23(1). The Security Council is given this power in order to obviate the need for the establishment of further ad hoc tribunals.

58. Articles 21(l)(b) and 22.

59. The International Criminal Court. Making the Right Choices, Part I (London, 01 1997: Al Index, IOR 40/01/97), pp. 17–18.Google Scholar

60. For a justification for resort to this system, see Crawford in Current Legal Problems, note 14 above, at pp. 318–319.

61. Article 21(2) of the ILC Draft Statute provides that where a state has requested the extradition of a person referred to trial before the international criminal court from the custodial state, it too shall be required to consent to the court's jurisdiction.

62. Report of the Preparatory Committee, note 16 above, para. 117.

63. Article 25.

64. Article 23(1).

65. See note 15 above, p. 96.

66. See note 16 above, paras. 149–151.

67. See note 45 above, para. 58.

68. Article 29(2) of the Statute of the Tribunal for the Former Yugoslavia, contained in Security Council resolution 827(1993), provides that “States shall comply without undue delay with any request for…the surrender or the transfer of the accused to the International Tribunal”.

69. See note 14 above, paras. 51–52.

70. Ibid.

71. Current Legal Problems, note 14 above, at p. 313.

72. (1995) 89 A.J.I.L. 416, note 14 above.

73. Report of the International Law Commission, note 14 above, para. 52. Here it is interesting to recall the decision of the International Court of Justice in its Advisory Opinion on the Effect of Awards of Compensation Made by the United Nations Administrative Tribunal (1954) ICJ Reports 47 that the General Assembly by –necessary intendment– had the power to establish an administrative tribunal to do justice between the United Nations and its members (at 57).

74. (1995) 89 A.J.I.L. 416, note 14 above.

75. Report of the International Law Commission, note 14 above, para. 51.

76. Cf. Warbrick, C., “The United Nations System: A Place for Criminal Courts” (1995) 5 Transnational Law and Contemporary Problems 237, 261.Google Scholar

77. See note 45 above, paras. 26–48. See further on this aspect of the Tribunal's decision, Alvarez, J.E., “Nuremberg Revisited: The Tadic Case” (1996) 7 E.J.I.L. 245.Google Scholar

78. See the Advisory Opinion of the International Court of Justice in the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) 1971 ICJ Reports 16 at 52–53; R. Higgins, “The Advisory Opinion on Namibia: Which United Nations Resolutions Are Binding under Article 25 of the Charter?” (1972) 21 I.C.L.Q. 270; Simma, B. (ed.), The Charier of the United Nations. A Commentary (Oxford 1995), pp. 410–411.Google Scholar

79. See note 78 above at 52; Higgins, note 78 above at 284–286; Simma, note 78 above at 401–403.

80. See Simma note 78 above at 21–22, 590.

81. See note 45 above.

82. Cf. Guillaume, G., “The Future of International Judicial Institutions” (1995) 44 I.C.L.Q. 848, 858.CrossRefGoogle Scholar