TEN YEARS OF THE INTERNATIONAL CRIMINAL COURT: THE SLOW BUT SURE GROWTH OF WORLD LAW

Newropeans Magazine
July 18 2008
France

For nearly a half a century — almost as long as the United Nations
has been in existence — the General Assembly has recognized the need
to establish such a court to prosecute and punish persons responsible
for crimes such as genocide. Many thought that the horrors of the
Second World War — the camps, the cruelty, the exterminations, the
Holocaust — could never happen again. And yet they have. In Cambodia,
in Bosnia and Herzegovina, in Rwanda. Our time — this decade even–
has shown us that man’s capacity for evil knows no limits. Genocide
is now a word of our time too, a heinous reality that calls for a
historic response – Koffi Annan, then UN Secretary-General

July 17 marks the 10th anniversary of the Diplomatic Conference in Rome
that established the International Criminal Court — a major step in
the creation of world law. Citizens of the world have usually made a
distinction between international law as commonly understood and world
law. International law has come to mean laws that regulate relations
between States, with the International Court of Justice — the World
Court in The Hague — as the supreme body of the international law
system. The Internatiional Court of Justice is the successor to the
Permanent Court of International Justice that was established at the
time of the League of Nations following the First World War. When the
United Nations was formed in 1945, the World Court was re-established
as the principal judicial organ of the UN. It is composed of 15 judges
who are elected by the UN General Assembly and the Security Council.

Only States may be parties in cases before the World Court. An
individual cannot bring a case before the Court, nor can a company
although many transnational companies are active at the world
level. International agencies that are part of the UN system may
request advisory opinions from the Court on legal questions arising
from their activities but advisory opinions are advisory rather
than binding.

Citizens of the world have tended to use the term "world law"
in the sense that Wilfred Jenks, for many years the legal spirit
of the International Labour Organization, used the term the common
law of mankind: "By the common law of mankind is meant the law of
an organized world community, contributed on the basis of States but
discharging its community functions increasingly through a complex of
international and regional institutions, guaranteeing rights to, and
placing obligations upon, the individual citizen, and confronted with
a wide range of economic, social and technological problems calling
for uniform regulation on an international basis which represents a
growing proportion of the subject-matter of the law." It is especially
the ‘rights and obligations’ of the individual person which is the
common theme of world citizens.

The growth of world law has been closely related to the development
of humanitarian law and to the violations of humanitarian law. It was
Gustave Moynier, one of the founders of the International Committee
of the Red Cross (ICRC) and a longtime president of the ICRC who
presented in 1872 the first draft convention for the establishment
of an international criminal court to punish violations of the first
Red Cross standards on the humane treatment of the sick and injured in
periods of war, the 1864 Geneva Convention. The Red Cross conventions
are basically self-enforcing. "If you treat my prisoners of war well,
I will treat yours the same way." Governments were not willing to act
on Moynier’s proposition, but Red Cross standards were often written
into national laws.

The Red Cross Geneva conventions deal with the way individuals should
be treated in time of war. They have been expanded to cover civil wars
and prisoners of civil unrest. The second tradition of humanitarian
law arises from the Hague Conventions of 1899 and 1907 and deals
with the weapons of war and the way war is carried on. Most of the
Hague rules, such as the prohibition against bombarding undefended
towns or villages, have fallen by the side, but the Hague spirit of
banning certain weapons continues in the ban on chemical weapons,
land mines and soon, cluster weapons. However, although The Hague
meetings made a codification of war crimes, no monitoring mechanisms
or court for violations was set up.

After the First World War, Great Britain, France and Belgium accused
the Central Powers, in particular Germany and Turkey of war atrocities
such as the deportation of Belgian civilians to Germany for forced
labor, executing civilians, the sinking of the Lusitania and the
killing of Armenians by the Ottoman forces. The Treaty of Versailles,
signed in June 1919 provided in articles 227-229 the legal right
for the Allies to establish an international criminal court. The
jurisdiction of the court would extend from common soldiers to
military and government leaders. Article 227 deals specifically with
Kaiser Wilhelm II, underlining the principle that all individuals
to the highest level can be held accountable for their wartime
actions. However, the USA opposed the creation of an international
criminal court both on the basis of State sovereignty and on the basis
that the German government had changed and that one must look to the
future rather than the past.

The same issues arose after the Second World War with the creation of
two military courts — the International Military Tribunal at Nuremberg
and the International Military Tribunal for the Far East. Some have
said that these tribunals were imposing ‘victors’ justice on their
defeated enemies, Germany and Japan. There was no international
trial for Italians as Italy had changed sides at an opportune time,
and there were no prosecutions of Allied soldiers or commanders.

In the first years of the United Nations, there was a discussion of
the creation of an international court. A Special Committee was set
up to look into the issue. The Special Committee mad a report in 1950
just as the Korean War had broken out, marking a Cold War that would
continue until 1990, basically preventing any modifications in the
structure of the UN.

Thus, during the Cold War, while there were any number of candidates
for a war crime tribunal, none was created. For the most part national
courts rarely acted even after changes in government. From Stalin
to Uganda’s Idi Amin to Cambodia’s Pol Pot, war criminals have lived
out their lives in relative calm.

It was only at the end of the Cold War that advances were made. Ad
hoc international criminal courts have been set up to try war crimes
from former Yugoslavia, Rwanda, and Sierra Leone. Just as the Cold
War was coming to an end, certain countries became concerned with
international drug trafficking. Thus in 1989, Trinidad and Tobago
proposed the establishment of an international court to deal with the
drug trade. The proposal was passed on by the UN General Assembly to
the International Law Commission, the UN’s expert body on international
law. By 1993, the International Law Commission made a comprehensive
report calling for a court able to deal with a wider range of issues
than just drugs — basically what was called the three ‘core crimes’
of genocide, crimes against humanity and war crimes.

By the mid-1990s, a good number of governments started to worry about
world trends and the breakdown of the international legal order. The
break up of the federations of the USSR and Yugoslavia, the genocide
in Rwanda, the breakdown of all government functions in Somalia,
the continuing north-south civil war in Sudan — all pointed to the
need for legal restraints on individuals. This was particularly true
with the rise of non-State insurgencies. International law as law
for relations among States was no longer adequate to deal with the
large number on non-State actors.

By the mid-1990s, the door was open to the new concept of world law
dealing with individuals, and the drafting of the statues of the
International Criminal Court went quickly. There is still much to be
done to develop the intellectual basis of world law and to create the
institutions to structure it, but the International Criminal Court
is an important milestone.