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Prosecuting War Criminals: The Evolution and Establishment of the ICC

The International Criminal Court: History and Creation

The International Criminal Court: History and Creation

Introduction:

The International Criminal Court (ICC) was established as a result of the global recognition of the need to hold war criminals accountable. Throughout history, there have been attempts to prosecute those who committed atrocities during armed conflicts.

However, national justice systems often lacked impartiality, and international trials were limited to specific cases or the defeated parties. War criminals have been prosecuted at least since the time of the ancient Greeks. The idea that there is some common denominator of behavior, even in the most extreme circumstances of brutal armed conflict, confirms beliefs drawn from philosophy and religion about some of the fundamental values of the human spirit. 

Historical Background of War Crime Prosecutions

The early laws and customs of war can be found in the writings of classical authors and historians. Those who breached them were subject to trial and punishment. Historically, the prosecution of war crimes was generally restricted to the vanquished or to isolated cases of rogue combatants in the victor’s army. National justice systems have often proven themselves to be incapable of being balanced and impartial in such cases. The first genuinely international trial for the perpetration of atrocities was probably that of Peter von Hagenbach, who was tried in 1474 for atrocities committed during the occupation of Breisach.

The Hague Conventions and the Development of Laws Governing Warfare

The Hague Conventions of 1899 and 1907 marked an important milestone in the codification of laws governing warfare. While they did not establish criminal liability for individuals, they provided guidelines for protecting civilian populations. The Hague Conventions, as international treaties, were meant to impose obligations and duties upon States and were not intended to create criminal liability for individuals. They declared certain acts to be illegal, but not criminal, as can be seen from the absence of anything suggesting a sanction for their violation. Yet, within only a few years, the Hague Conventions were being  Presented as a source of the law of war crimes.

Nuremberg and Tokyo Tribunals: Inspiring a Permanent International Criminal Court 

In the aftermath of World War II, the Nuremberg and Tokyo Tribunals were established to prosecute war criminals. In August 1945, the four major Allied governments signed the 1945 London Agreement, which established the International Military Tribunal. The Charter of the International Military Tribunal appended to the London Agreement, outlined the tribunal's structure, functions, and jurisdiction. Each Allied government appointed a judge to form the Nuremberg tribunal, while the Allied powers also provided a team of prosecutors. The Nuremberg Charter empowered the International Military Tribunal to prosecute and punish individuals responsible for the following offenses: Crimes Against Peace (war planning and initiation), War Crimes (commission of crimes during the war), Crimes Against Humanity (racial persecution), and Conspiracy to Commit other Crimes. While Raphael Lemkin, a lawyer of Polish-Jewish descent, coined the term "genocide" to capture the immense scale of the crimes committed by the Nazis.

The exposure of Nazi atrocities gave rise to the establishment of a new category of crime known as crimes against humanity. Despite the existence of the phrase since the early nineteenth century, it was only after World War II that any military or political leader was subjected to trial for committing such a crime.  The definition of "crimes against humanity" was outlined in Article 6 of the Charter of the International Military Tribunal (IMT), which established a judicial body responsible for conducting trials against indicted Nazi leaders.  

The Nuremberg trials served as a precedent for subsequent trials held in Tokyo. Directed by General Douglas MacArthur, the Supreme Commander of the Allied Powers (SCAP), the International Military Tribunal for the Far East (IMTFE) was established on January 19, 1946. The IMTFE commenced on April 29, 1946, with the objective of prosecuting leaders of the Empire of Japan for collective accusations of conspiring to initiate and wage war. These tribunals inspired the idea of a permanent international criminal court.

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United Nations Efforts and the Development of the ICC

Discussions on creating an International Criminal Court gained momentum with the formation of the United Nations. In 1948, the General Assembly requested the International Law Commission to study the desirability of establishing an International Criminal Court to try persons charged with crimes of genocide and other crimes, It was pointed out that the jurisdiction over such crimes would be conferred by International Conventions. The process of developing a draft code for offenses against peace and humanity continued over the years, receiving recommendations for revisions and additions.

 In 1950, the General Assembly of the United Nations had asked the International Law Commission to take into account the observations made by the delegations for the formulation of Nuremberg Principles while preparing a draft code of offenses against peace and security of mankind, The Commission submitted the final draft of the Code in 1954. In 1977, the International Law Commission suggested that the 1954 draft of the Code, should be reconsidered. In 1980, seven nations asked that the “Draft Code of Offences Against Peace and Security of Mankind,” be included in the agenda of the General Assembly. It is significant to note that on the recommendation of the legal advisor of the United Nations, certain legal documents connected with important Conventions, were added to the Code.

These Conventions included the International Conventions on the Elimination of All Forms of Racial Discrimination, 1966, the Convention on the Non-Applicability of statutory limitations to War Crimes and Crimes Against Humanity, 1968, the Convention on the Prevention and Punishment of Crime against Internationally Protected Persons, including Diplomatic Agents, 1973, Definition of Aggression, Declaration on the Granting of Independence to Colonial Countries and Peoples and Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, in accordance with the Charter of the United Nations.

While discussions regarding the draft statute of an international criminal court were ongoing, the urgency of addressing atrocities in the former Yugoslavia and Rwanda in the early 1990s led to the establishment of ad hoc courts.

The Rome Statute of the International Criminal Court

After extensive negotiations, the Rome Conference in 1998 marked a significant milestone. The Rome Statute of the International Criminal Court was adopted with support from 120 countries. Seven countries voted against the treaty, and 21 abstained. The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, the United States, and Yemen. The Rome Statute became binding in 2002, once ratified by sixty countries. The Rome Statute became a binding treaty on 11 April 2002, when the number of countries that had ratified it reached sixty. The Statute legally came into force on 1 July 2002, and the ICC can only prosecute crimes committed after that date. The first bench of 18 judges was elected by an Assembly of States Parties in February 2003. They were sworn in at the inaugural session of the Court on 11 March 2003. The Court issued its first arrest warrants on 8 July 2004, and the first pre-trial hearings were held in 2006.

 Adoption of the Rome Statute and Binding Effect

On December 9, 1993, the General Assembly requested the International Law Commission to elaborate the draft statute for an International Criminal Court as a matter of priority. The Commission considered the question of establishing an International Criminal Court from its forty-second session to its forty-sixth session in 1997. At the end of the last session, the Commission finalized a draft statute for an International Criminal Court, which was submitted to the General Assembly for consideration.

Through its resolution No. 51/207 dated 17th December 1996, the General Assembly decided to hold a diplomatic conference of plenipotentiaries (a person, especially a diplomat, invested with the full power of independent action on behalf of their government, typically in a foreign country) in 1998 with a view to finalizing and adopting a convention for the establishment of an International Criminal Court. By its resolution dated 15th December 1997, the General Assembly had accepted the offer of Italy to act as host to the conference and decided to hold the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome from 15th June to 17th July 1998. The Conference adopted on 17th July 1998, the statute known as the Rome Statute of the International Criminal Court.

The statute contained 128 Articles and was divided into 13 parts as detailed below:

  • (i) Establishment of the Court;
  • (ii) Jurisdiction, Admissibility, and Applicable Law;
  • (iii) General Principles of Criminal Law;
  • (iv) Composition and Administration of the Court;
  • (v) investigation and Prosecution;
  • (vi) Trial;
  • (vii) The Penalties;
  • (viii) Appeal and Revision,
  • (ix) International Cooperation and Judicial Assistance;
  • (x) Enforcement;
  • (xi) Assembly of States-Parties;
  • (xii) Financing; and
  • (xiii) Final Clause.

The UN Diplomatic Conference of Plenipotentiaries on the establishment of the International Criminal Court, which took place in Rome, was attended by representatives from 162 countries. In addition to adopting the statute, the conference passed a resolution in Part F of "Annex I," establishing a preparatory commission for the International Criminal Court. The commission's purpose was to develop proposals for practical arrangements regarding the establishment and commencement of operations for the Court.

Entry into Force of the Rome Statute

The Rome Statute's entry into force was determined by the deposit of the 60th instrument of ratification, acceptance, approval, or accession with the UN Secretary-General. This signified the commitment of countries to abide by the obligations outlined in the statute. 

According to Article 126 of the statute, it would come into force 60 days after the deposit of the 60th instrument of ratification, acceptance, approval, or accession with the UN Secretary-General. For states that ratified, accepted, approved, or acceded to the statute after the 60th instrument had been deposited, the statute would come into force on the first day of the month following the 60th day after that state had deposited its own instrument of ratification, acceptance, approval, or accession.

 In simpler terms, there is a waiting period of 60 days after the 60th instrument is received before the statute becomes active. For countries that join the ICC after the 60th instrument has been deposited, the statute will also come into force for them. However, their effective date will be different. It will be the first day of the month following the 60th day after that particular country deposits its own instrument of ratification, acceptance, approval, or accession.

To understand when the statute becomes effective, we need to know what is meant by the "instrument of ratification, acceptance, approval, or accession." When a country decides to join the ICC and abide by its rules, it needs to officially express its agreement by submitting a document called the instrument of ratification, acceptance, approval, or accession. This document signifies that the country acknowledges and accepts the jurisdiction and authority of the ICC.

Significance of the "60th Instrument" and Effective Dates

 The "60th instrument" refers to the document that signifies a country's official acceptance, ratification, approval, or accession to the Rome Statute of the International Criminal Court. Each country that wishes to become a party to the statute must submit this instrument to the UN Secretary-General as a formal indication of their commitment to abide by the obligations outlined in the statute. The "60th instrument" is significant because it represents the threshold at which the statute will come into force.

Establishment of The International Criminal Court. 

Article 1 of the Statute provides that there shall be a permanent institution that shall have the power to exercise jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. It has been further provided that the Court shall be brought into relationship with the United Nations through an Assembly of States Parties to this and thereafter concluded by the President of the Court on its behalf. The seat of the Court shall be established at the Hague in the Netherlands.

Conclusion:

The establishment of the International Criminal Court represented a significant step towards holding war criminals accountable for their actions. It emerged from a historical background of war crime prosecutions and the need for an impartial international system. With the adoption of the Rome Statute, the ICC became a permanent institution, ensuring fair trials for individuals accused of the most serious international crimes. The ICC's role in promoting justice and preventing impunity continues to be crucial in today's world.

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