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Ten Years of the International Criminal Court
By: Rene Wadlow Posted on: 7/6/2008
Ten Years of the International Criminal Court: The Slow but Sure
Growth of World Law
René Wadlow*
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.
*Rene Wadlow is the Representative to the United Nations,
Geneva, Association of World Citizens and the editor of the online
journal of world politics and culture
www.transnational-perspectives.org
Copyright mediaforfreedom.com
Ten Years of the International Criminal Court
By: Rene Wadlow Posted on: 7/6/2008
Ten Years of the International Criminal Court: The Slow but Sure
Growth of World Law
René Wadlow*
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.
*Rene Wadlow is the Representative to the United Nations,
Geneva, Association of World Citizens and the editor of the online
journal of world politics and culture
www.transnational-perspectives.org
Copyright mediaforfreedom.com