By Daniel Wheatley

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From Nuremberg to Sarajevo

The Nuremberg tribunals set the first principles to put individuals on trial for crimes committed in the name of the state. The Genocide Convention called for the establishment of a permanent international court but efforts were blocked. The Genocide Convention made it an international crime to commit acts with intent to destroy, in whole or in part a national, ethnic, religious group. Throughout the 1950s the International Law Commission was mandated to codify the Nuremberg principles and prepare a draft statute for a permanent international criminal court. Progress was quickly stymied by the Cold War.

In 1989 Trinidad and Tobago reintroduced the idea of a permanent international criminal court (ICC) to the UN General Assembly. Renewed support for an ICC arose as crimes of mass violence in the former Yugoslavia and Rwanda came to light. The GA asked the ILC to prepare a draft statute for a permanent ICC.

By November 1994 the final version of the draft statute was presented to the GA and recommended that a conference of plenipotentiaries be called to draw up a treaty. An ad hoc committee was established to review the statute. In December a Preparatory Committee was set up to begin drafting text of a statute for the court. The sessions were held in New York where governments provided alternative texts. In December 1994 the GA adopted a resolution renewing the mandate of the Preparatory Committee and deciding that a diplomatic conference should be held in 1998. Three more sessions were held in 1997.

The Ad Hoc Tribunals

In 1993 the Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and in 1994 a corresponding Tribunal for Rwanda (ICTR), often referred to as "the ad hoc tribunals". Their mandated areas of jurisdiction are limited to the territory of the former Yugoslavia and Rwanda respectively and in the case of the ICTR, temporally, as well. The tribunals were set up to prosecute persons responsible for serious violations of international humanitarian law. They have the authority to prosecute four clusters of offences:

Grave breaches of the 1949 Geneva Conventions

Violations of the laws or customs of war

Genocide

Crimes against humanity

Since its inception by Security Council resolution 827 in May 1993, the ICTY has grown in stature and success, despite early setbacks. As of 18 October 2001, 80 individuals are publicly indicted by the Tribunal, 48 of whom are in custody, and one of whom, Biljana Plavsic, has been provisionally released. Nine of the accused have died, charges have been dropped against 18 others and two have been acquitted. Four have been transferred to serve their sentences and nine are awaiting judgment from the trial chamber. 31 indictees are still at large, including Radovan Karadzic and Ratko Mladic.

The two tribunals, whilst open to a variety of criticism, have combined to establish a series of notable legal achievements. At the Arusha Tribunal the former Prime Minister of Rwanda, Jean Kambanda was sentenced to life imprisonment for genocide in September 1998. In that very same month Jean Paul Akayesu was found criminally responsible for multiple acts of rape. These advances have been mirrored in recent judgements at the Hague. On 22 February 2001 three Serb soldiers, Kunarac, Kovac and Vukovic, received the first convictions by the ICTY for acts of rape as a crime against humanity. On 2 August of the same year, General Radislav Krstic was the first person to be convicted by the Hague tribunal for genocide. For his part in the massacre of Srebenica he was sentenced to 46 years in prison.

The former President of Serbia, Slobodan Milosevic is one of the 48 indictees currently held in the detention centre in Holland, and is awaiting trial on several charges, including genocide.

Despite these successes, however, the establishment of the two ad hoc tribunals has raised the question of the selectivity of international justice. Why was there no tribunal for the "Killing Fields" of Cambodia? A permanent court offers the hope of consistency in prosecution of the gravest crimes against humanity. Another serious criticism of ad hoc tribunals is that they fail to act as a deterrent as they are only created after or during incidences of crimes contrary to international law. Thirdly, the ad hoc tribunal's mandates are subject to limits of time and geography. Throughout 1995 there were thousands of murders of refugees in Rwanda but the mandate of the ICTR is restricted to 1994.

The Intergovernmental Treaty Conference

The United Nations Plenipotentiary Treaty Conference on the Establishment of an International Criminal Court was held in the buildings of the Food and Agricultural Organisation, Rome from 15 June to 17 July 1998.

The Rome Treaty

The treaty incorporates many of the rights protected in existing international treaties and covenants. It will enter into force after 60 states have ratified it.

Jurisdiction

Article 5 of the Treaty gives the court jurisdiction over the three core crimes; genocide, war crimes and crimes against humanity, which are all already established as crimes under customary international law (details below). The court will also have jurisdiction over the crime of aggression once state parties can agree upon a suitable definition and pass an appropriate amendment. Such an amendment cannot be made sooner than seven years after the treaty comes into force.

Core crimes and their definitions:

1. Genocide

The definition of genocide was taken from the 1948 Genocide Convention (article 2):

"…genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, as such:

killing members of the group;

causing serious bodily or mental harm to members of the group;

deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

imposing measures intended to prevent births within the group;

forcibly transferring children of the group to another group"

The following acts shall be punishable:

genocide

conspiracy to commit genocide

direct and public incitement to commit genocide

attempt to commit genocide

complicity in genocide"

2. Crimes against humanity

Under article 7 of the Rome treaty the court will have jurisdiction over crimes against humanity committed by either official or non-state actors in either times of peace or armed conflict defined as attacks that are "…widespread or systematic" and are directed against any civilian population. Such an attack is defined as "…a course of conduct…pursuant to or in furtherance of a State or organisational policy to commit such an attack…" The requirement that an attack be pursuant to a policy is a departure from current international definitions of crimes against humanity.

The statute codifies crimes against humanity in an international treaty for the first time. In addition to war crimes already recognised under the Nuremberg and Tokyo Charters and the statutes of the ICTY and the ICTR, the new court will be authorised to prosecute the following crimes:

forcible transfers of population

severe deprivation of physical liberty

sexual slavery

enforced prostitution

forced pregnancy

persecution on political, racial, national, ethnic, cultural, religious, gender or other grounds that are recognised as impermissible under international law

enforced disappearance of persons

apartheid

3. War crimes

The court will have jurisdiction over war crimes committed in situations of both international and internal armed conflict under article 8(2). The inclusion of internal armed conflict was a contentious issue, but was widely regarded as vital as the majority of armed conflicts in very recent history have taken place within state borders. As part of the compromise for this inclusion, several of the crimes provided for in Protocol II of the Geneva Conventions, such as using starvation of civilians as a method of warfare, were eliminated from the statute.

There is a threshold for war crimes. The treaty specifies that such crimes are punishable when "…committed as part of a plan or policy or as part of a large-scale commission of such crimes…"

4. Aggression

There is both support for the inclusion of the crime of aggression in the Court's jurisdiction, and there is opposition. The main stumbling block to accepting the crime of aggression within the court's jurisdiction is the immense difficulty in finding a definition of aggression that is acceptable to sufficient numbers of state parties.

In 1974 the United Nations General Assembly adopted a definition of aggression that defined it as being an act of a State and described the specific actions of one State against another which constitute aggression. This raises the problem of accountability of individuals. The challenge facing the International Criminal Court is to find a definition that is precise enough for individuals to know which acts are prohibited, yet wide enough to cover a variety of acts which may occur in the future.

The draft statute contained two options concerning the definition of aggression. One lists specific acts for which an individual could be held accountable for aggression. Under this definition, they would be the following acts:

planning, preparing, ordering, initiating, or carrying out an armed attack

the use of force

a war of aggression

a war in violation of international treaties or agreements

by a State, against the territorial integrity of another State, against the provisions in the UN Charter

The second possible definition provided a list of acts constituting aggression, which includes the following:

invasion or attack by the armed forces of a State of the territory of another State, or military occupation, or annexation of territory by the use of force

bombardment by armed forces of a State against the territory of another State

the blockade of ports or coasts of a State

the use of armed forces of a State which are within the territory of another State in violation of the terms of an agreement between those States

a State allowing its territory to be used by another State for an act of aggression against a third State

a State sending armed bands, groups, irregulars or mercenaries to carry out grave acts of armed force against another state

Neither of these definitions was agreed upon at the Rome Conference and the crime of aggression will only be prosecuted once a satisfactory definition can be reached. At the first Preparatory Commission of 1999, convened to draft rules and procedures for the court and to define elements of crimes, a co-ordinator for aggression was appointed. Negotiations concerning a common definition on aggression continue at regular meetings of the Preparatory Commission in New York.

Trigger mechanisms

The statute allows for investigations by the court to be triggered by several modes. Investigations and prosecutions may be triggered by referral from the Security Council or a complaint from a State party.

The office of the prosecutor will also have the capacity to initiate investigations within territories that have ratified the statute, as detailed below. For a prosecution to proceed the must be agreement from the State where the alleged crimes took place and from the State of nationality of the accused.

The powers of the prosecutor

The prosecutor will have the authority to initiate investigations propio motu i.e. to initiate proceedings on his or her own motion without depending on referral from the Security Council, which will have the right to refer cases to the prosecutor's office. This authority is circumscribed by the requirement of obtaining judicial approval at an early stage in the proceedings. Interested states will also have the right to challenge the admissibility of a case at the outset of the investigation if they themselves are investigating crimes arising out of the same situation.

Relationship to the Security Council

The court's relationship to the Security Council was one of the most contentious issues at the Rome conference. Non-governmental organisations argued strongly for the court not to be constrained by the Security Council in any way. The position that emerged in the resulting treaty contains elements of compromise. Acting in accordance with Chapter VII of the United Nations Charter, the Security Council can require the court to defer investigations or prosecutions for a 12 month period, which is renewable.

Complementarity with national legal systems

Most states agree that, where possible, transgressors against international humanitarian law should be tried by their own national courts. The International Criminal Court is intended to work in a complementary role with domestic judicial systems. The court is intended to act in such situations where national judicial systems are unable to act, such as through collapse due to periods of conflict, or in situations where they are unwilling to act, possibly including situations where its own officials are implicated in the alleged crime.

Non-retroactivity

The attacks upon Washington DC and New York City on 11 September 2001 have led to some spectators calling for the suspected perpetrators to be tried by the International Criminal Court. Legal experts have offered a range of opinions as to whether terrorist acts such as the bombing of the World Trade Centre could be prosecuted under article 7 of the statute.

The question is academic as the treaty enshrines the principle of non-retroactivity within 2 key articles. Article 11 states that:

"The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute."

Article 51 of the Treaty reinforces this concept by ruling that any amendments to the Rules of Procedure and Evidence shall not be applied retroactively to the detriment of a person being investigated or prosecuted or who has been convicted.

Progress towards ratification

At the date of last update of this paper (18 October 2001) 139 states have signed the Rome Treaty and 43 states have ratified it. The UK government became the 42nd government to deposit its instruments of ratification on 4 October 2001.

Daniel Wheatley is Government Relations Officer, Bahá'í Community of the UK, which is a member of the UK Coalition for an International Criminal Court. He can be contacted at dan.wheatley@bahai.org.uk. The views expressed in this article are those of the author and not necessarily those of Federal Union. October 2001.

Glossary of Acronyms