The Origins of the International Criminal Court

Kari Pahlman, Dickson College, 2009

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While the International Criminal Court (ICC) is a relatively new establishment of the twenty-first century, its origins are deeply rooted in contemporary international history. While the idea of some form of international justice system to address crimes of war time dates as far back as the nineteenth century, the notion of a criminal court of its specific form originated out of the Nuremberg International Military Tribunal of 1945 and 1946. These trials of the Nazi war criminals are most widely considered to be responsible for the shift to a new international attitude toward criminal law and therefore, the birth of the movement for the ICC. These trials were an important and powerful influence in the development of the court, however, its progress was hindered by the onset of the Cold War. It was not until later at its end that the proposal for a criminal court would be resurrected by Arthur Robinson, the president of Trinidad and Tobago. This put the court back in at forefront of the international agenda. The ad hoc tribunals for the former Yugoslavia and Rwanda in the early 1990’s further propelled its development. While the exact origins are debated, the critical developments leading to the ICC’s creation can largely be found in the events of the latter half of the twentieth century.

The Nuremberg International Military Tribunal of 1945 and 1946 has frequently been credited to be the earliest and greatest influence in the creation of the ICC (Ehrenfreund, 2007). Similarly, the ICC is often said to be the most major legacy of the Nuremberg Trails that for the first time saw the Axis leaders tried for their crimes committed during the Second World War.[1] The Trials substantiated a newly radicalised approach to international law and in doing so, imposed enormous influence on the post war international community in generating a desire for a similar international court system of a permanent basis.[2] The reason for this was largely the fact that the trials set an enormous precedent in creating new standards of international law, being widely responsible for the emergence of a fairly new concept now known legally as international criminal law.[3] The significance of this was largely the power and ability to try specific individuals for crimes and also the accountability for all of these individuals regardless of military, political or social position and stature.[4] That is, when the pre existing international legal system broadly dealt only with states and governments at large in response to crimes during conflict (Abrams & Ratner, 1997). In establishing these new standards of international law, now central to the current international criminal justice system, the Nuremberg Trials emanated the desire to create a permanent international court that would uphold these standards for all future crimes of war.[5]

It is not too much to hope that what we have done may have laid the foundation for the building of a permanent court with a code for defining crimes of an international character and providing for their punishment.[6]

As a direct response to this paradigm shift within the international community in regards to attitudes of criminal justice and the need for a permanent court of Nuremberg’s stature, the United Nations General Assembly (UN GA) asked that the International Law Commission (ILC) begin considering the possibility of creating such a court.[7]

...to study the desirability and possibility of establishing an international judicial organ for the trials of persons charged with genocide.[8]

This prompted the ILC to begin negotiations on the criminal court and by the early 1950’s, had put together a draft statute, effectively laying the foundation that would govern the formation of the court and its jurisdiction.[9] While significant progress was being made in the courts formation, the UN GA however, suspended the final procedural vote on the adoption of the statute pending an agreement on the definition of the crime of aggression which was to be under the court’s jurisdiction.[10] This coincided with the increasing international tension created by the onset of the Cold War. It therefore became evident that the development of the court would be deferred indefinitely.[11]

While the notion of establishing a permanent international criminal court was born at the Nuremberg Trials and eventually became one of its most profound legacies, its immediate momentum for further development was lost in the Cold War that followed.[12] The war massively divided the international community and did not allow for much support of the ICC to be voiced.[13] Specifically, as the United States and the Soviet Union were characterising each other as potential aggressors, there was little hope for much cooperation and support for the ICC to be a new organ for international criminal justice.[14]

Its progress was paralysed by cold-war antagonisms.[15] Essentially, the Cold War forced the UN GA to abandon all drafting and negotiations, deferring a decision on the proposal by the ILC.[16] Yet, the effect of the War was not limited to this. It also returned the international legal system back to one that was more state central, dampening those new attitudes of criminal law that Nuremberg had embodied so well.[17] As a direct result of the changing international political and legal climate, the years of the Cold War following the Nuremberg Trials severely stunted the development of the ICC. It did this largely by creating a dramatic shift in the focus and priorities of the international community, therefore forcing the UN to cease its work.[18] However, significant international events toward the end of the War would see to the final continuation of the court’s progress.

Impeded by the Cold War, it was not until 1989 that interest in establishing an international criminal court resurfaced among the international community and put back on the agenda. It was Arthur Robinson, the then president of Trinidad and Tobago, who resurrected the proposal to make the pre existing plans for an international court an eventual reality.[19] Motivated internally to try international narcotic criminals, Robinson put forth a resolution to the UN GA that requested that the ILC study the option of creating some form of international structure that would address drug trafficking[20] He did this with the help of long time ICC advocate Robert Woetzel, international law expert Professor M. Cherif Bassiouni, and Nuremberg prosecutor Benjamin Ferencz.[21] The resolution explicitly proposed the:

...establishment of an international criminal court with jurisdiction to prosecute and punish individuals and entities who engage in, inter alia, the illicit trafficking of narcotic drugs across national borders.[22]

The resolution met a mixed response from the UN GA and the wider international community also. Largely, nations were concerned by the generally perceived overwhelming legal and political issues that would immediately rise such as the jurisdiction that such a court would have.[23] The possibility that states may lose some of their legal sovereignty to the court was also a concern for many states.[24] Nevertheless, it still indicated a revived attitude among the international community that displayed there was once again a readiness to return to a criminal system that would hold individual perpetrators accountable for international crimes, not merely states.[25] In response, the UN GA requested that the ILC continue working on the previously abandoned daft statute and code of crimes by considering:

...the question of establishing an international criminal court... with jurisdiction over persons alleged to have committed crimes which may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers (UN GA Resolution 44/39).

The UN GA also suggested that the jurisdiction of this suggested international legal mechanism should not be limited to those crimes of drug trafficking but to all those that were universally condemned (Bekou & Cryer, 2004). As a result, the drafting of the statute for the court recommenced work with aspirations greater than what had previously been initiated.[26] Arthur Robinson saw to the revival of the ICC plans after the Cold War period and soon following, the establishment of two new ad hoc international criminal tribunals only saw these plans propelled.

While the statute of the ICC was again under drafting by the UN GA ILC, the early 1990s saw to another two landmark events that strengthened the momentum for the development of the court. The atrocities that occurred in the former Yugoslavia under Slobodan Milosevic were put to trial under an ad hoc International Criminal Tribunal in 1993 established by the United Nations Security Council (UN SC).[27] Similarly in 1994, the leaders of the Rwandan genocide were tried under another UN SC ad hoc tribunal.[28] The situations occurring in both the former Yugoslavia and Rwanda were both considered by the UN SC as threats to international peace and security and the tribunals were created as a response to these concerns.[29]

Determining that this situation continues to constitute a threat to international peace and security.Believing that the establishment of an international tribunal and the prosecution of persons responsible for the... violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed...

Specifically, the tribunals were essentially undertaken as a necessary measure to enforce Chapter Seven of the United Nations Charter.[30] Explicitly this chapter states that the UN SC must determine and make decisions in order to: "...maintain or restore international peace and security."

These tribunals looked to Nuremberg for a sound legal and judicial basis. They have been described as being ‘viewed through the prism of ‘Nuremberg’’ by the international community.[31] In other words, the international community used the Nuremberg experience to form a model basis for these tribunals.[32] Principles of international criminal law founded by Nuremberg, were put back into practice, renewing previous international sentiment about an international criminal court. It was once again seen by the UN and the larger international community that in dealing with the aftermath of conflict and violence, some sort of internationalised mechanism for criminal justice was required.[33] Important also was the necessity for the court to be a permanent in its existence. This necessity was founded on the geographical, political and financial limitation of the courts due to the ad hoc basis on which they were created.[34] Nevertheless, these trials essentially authenticated the capability and relevance of the Nuremberg Trials and once again imposed confidence in the international community to continue the plans for the ICC.[35] With this new strengthened attitude that arose out of the tribunals of the early 1990’s; the only two since Nuremberg, the ICC was again at the forefront of the international consciousness and the drafting of the statute continued under the UN GA ILC.[36]

Following the International Criminal Tribunals that took place in the former Yugoslavia and Rwanda, the planning for the court gained enormous ground, giving way to its eventual establishment some years later. The UN GA established several committees and successive conferences with the purpose of continuing and finalising the statute that had been in planning for several decades.[37] The Rome Conference which took place in Rome in 1998 from June 15 to July 17, saw to the very final negotiations of the statute between all involved state parties and NGOs and also to the final vote.[38] One hundred and twenty nations voted to adopt the International Criminal Court under the Rome Statute with only seven voting against.[39] This later saw to the enforcement of the treaty on July 1, 2002 which marked the official opening of the ICC to begin its work, nearly seventy years after its first developments.[40]

The ICC has its origins soundly embedded in the events of the second half of the twentieth century. While it has been argued that the idea for such an international justice mechanism may have come about much earlier, it cannot be rebutted that it was only given significant international discussion and priority after the occurrence of the Nuremberg International Military Tribunal beginning in 1945. Following the initial movement for its development however, the Cold War saw to crush any progress and significance it previously had. The close of the Cold War saw the proposal for the ICC resurfaced by Arthur Robinson of Trinidad and Tobago, in an effort to combat drug trafficking. Development was further propelled by the International Criminal Tribunals that were established by the UN SC for the atrocities that occurred in the former Yugoslavia and Rwanda respectively in the early 1990s. As the international climate had been in a state of radical change since Nuremberg in terms of attitudes toward the criminal justice system, the ICC was seen as a critically important institution for dealing with post conflict situations. It was officially established with the ratification of the Rome Statute in 1998 and began work in 2002. The origins and critical developments of the ICC are highly credited to the post-Second World War era and the radically changing political and social climates that accompanied it.

Kari Pahlman wrote this essay for the Contemporary International Issues unit at Dickson College, Semester 2, 2009.

Comment on The Origins of the International Criminal Court
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Bibliography


Abrams, J. & Ratner, S. 1997, Accountability for Human Rights Atrocities in International Law; Beyond the Nuremberg Legacy, Clarendon Press, Oxford.

Allison, G. & Powers, S. 2000, Realising Human Rights; Moving from Inspiration to Impact, St Martin’s Press, New York.

Ball, Howard. 1999, Prosecuting War Crimes and Genocide; the Twentieth-Century Experience, University Press of Kansas, Lawrence.

Bekou, O. & Cryer, R. 2004, The International Criminal Court, Dartmouth Publishing Company, Aldershot.

Blumenthal, D. & McCormack, T. 2008, The Legacy of Nuremberg; Civilising Influence or Institutionalised Vengeance?, Martinus Nijhoff, Leiden.

Coalition for the International Criminal Court, History of the ICC, Accessed 12/10/09

Ehrenfreund, N. 2007, The Nuremberg Legacy; How the Nazi War Crimes Trials Changed the Course of History, Palgrave Macmillan, New York.

Futamura, M. 2008, War Crimes Tribunals and Transitional Justice; the Tokyo Trial and the Nuremberg Legacy, Routledge, London.

Kirsch, Philippe (President of ICC). 2005, From Nuremberg to The Hague, The Nuremberg Heritage; A Series of Events Commemorating the Beginning of the Nuremberg Trails, Speech, 19 November 2005, Courtroom 600 Palace of Justice, Nuremberg.

Krieger, D. 1998, The Nuremberg Promise and the International Criminal Court, Accessed 12/10/09
Lammers, J., Schukking, J. & von Hebel, H. 1999, Reflection on the International Criminal Court, T.M.C. Asser Press, The Hague.

Merkl, P. 2005, The Rift Between America and Old Europe; the Distracted Eagle, Routledge, Abingdon.

Nuremberg Human Rights Centre. 2006, From Nuremberg to The Hague; the Road to the International Criminal Court, Accessed 2/10/09

Rabin, J. 2003, Encyclopedia of Public Administration, Marcel Dekker,Inc., New York.

Roach, S. 2006, Politicising the International Criminal Court; the Convergence of Politics; Ethics and Law, Rowman & Littlefield Publishers, Inc., Lanham.

Sands, P. 2003, From Nuremberg to The Hague; the Future of International Criminal Justice,
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Schiff, B. 2008, Building the International Criminal Court, Cambridge University Press, New York.

United Nations Dag Hammarskjöld Library, Resolutions Adopted by the General Assembly at its 44th Session, Accessed 28/10/09

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van de Herik, L. 2005, The Contribution of the Rwanda Tribunal to the Development of International Law, Martinus Nijhoff Publishers, Leiden.

Zacklin, R. 2004, The Failings of Ad Hoc International Tribunals, Journal of International Criminal Justice Online, Accessed 13/10/09

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