• Specific Year
    Any

van der Vyver, Johan D --- "United Nations and International Criminal Law, The Special Edition: The United Nations and International Legal Order" [2005] UQLawJl 22; (2005) 24(2) University of Queensland Law Journal 317

THE UNITED NATIONS AND INTERNATIONAL CRIMINAL LAW

JOHAN D VAN DER VYVER[*]

I. Introduction

The United Nations Organization has contributed toward the development of international criminal law in several respects:

• It has sponsored a variety of international conventions that imposed a duty on participating States to criminalize certain conduct in their municipal systems of criminal law;

• Through its efforts, a number of offences against the norms of international law have reached the threshold of, and have come to be recognized as, customary international law crimes;

• It has in some instances established international criminal tribunals, and in others orchestrated international support for a variety of ‘hybrid’ national courts; and

• Through the above, it has contributed to the development of universal standards of criminal justice.

II. Crime-Creating Conventions Sponsored by the United Nations

International-law sanctioning of criminal conduct is not highly developed and leaves much to be desired. Having considered 312 international conventions some years ago, Cherif Bassiouni found that only 27 contained language indicating criminal sanction, such as ‘international crime’ or ‘crime under international law’, and that ‘indirect enforcement’ of treaty-based obligations that are backed by criminal sanctions was invariably the rule.[1]

Most human rights conventions, for example, seem to shy away from criminal sanctions. The International Convention on the Elimination of All Forms of Racial Discrimination of 1965[2] clearly emphasizes civil rather than criminal liability.[3] States Parties are instructed, though, to declare within their national legal systems ‘an offence punishable by law’ of certain specific instances of racism, such as the dissemination of ideas based on racial superiority or hatred and acts of violence against any racial or ethnic group.[4] The Convention on the Elimination of All Forms of Discrimination Against Women of 1979[5] mostly instructs States Parties to ‘take appropriate measures’, for example to suppress trafficking in women or exploitation or prostitution of women.[6] In some instances, the Convention stipulates that ‘appropriate measures’ may include sanctions ‘where appropriate.’[7] Proscriptions designed to protect women in the work place are more explicit in demanding prohibitions ‘subject to the imposition of sanctions’.[8] The Convention on the Rights of the Child[9] also avoids insistence on criminal sanctions as a medium of protection and instead leaves it up to States Parties to determine the ‘measures’ that would be appropriate, for example to combat illicit transfer and non-return of children,[10] to protect children from mental violence, injury or abuse, neglect or negligent treatment, and maltreatment or exploitation,[11] to counteract sexual exploitation and abuse of children,[12] and to prevent the abduction of, sale of, or trafficking in, children.[13] And here, too, ‘appropriate penalties or other sanctions’ are only prescribed for instances of exploitation of children in the work place.[14]

However, a number of international human rights conventions deal with matters that are essentially criminal in nature, for example the Slavery Convention of 1926[15] (which preceded the establishment of the United Nations) and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956,[16] the Convention on the Prevention and Punishment of the Crime of Genocide of 1948,[17] the Convention on the Suppression and Punishment of the Crime of Apartheid of 1973,[18] and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.[19] Each one of these Conventions entail the international obligation of States Parties to provide penalties within the confines of their national criminal justice systems for the acts to which the particular convention applies,[20] and to prosecute perpetrators of those crimes in their municipal courts.[21] The Torture Convention also entails the decree to prosecute or extradite,[22] with the further proviso that, to this end, ratification of the Convention will in itself serve as an extradition treaty between States Parties to the Convention.[23] The Anti-Apartheid Convention, having proclaimed apartheid to be a crime against humanity,[24] expressly disposed of the principle of territoriality as an impediment to jurisdiction of the municipal courts.[25] Individual liability remained the norm in all of these conventions. The Anti-Apartheid Convention clearly spells it out by rendering liable for the crime of apartheid an individual, members of organizations and institutions (not the organization or institution itself), and representatives of the State (not the State itself).[26]

Criminal sanction as an enforcement mechanism is almost entirely absent in international environmental law.[27] Provisions in the Law of the Sea Convention relating to the environment thus emphasize civil liability,[28] but do also sanction monetary penalties to be imposed with respect to violations of national laws or international rules and standards ‘for the prevention, reduction and control of pollution of the maritime environment, committed by foreign vessels beyond the territorial sea.’[29] In the case of willful and serious acts of pollution within the territorial sea of a particular state, forms of punishment other than monetary penalties are permissible.[30] Here, again, liability vests in the individual perpetrator, which could of course be a (corporate) legal entity.

Individual States Parties therefore assume the duty to criminalize in the appropriate instances violations of the concerned treaty obligations, and to bring perpetrators to trial in their municipal courts. The latter norm—prosecution in municipal courts—has been commended by some publicists on the grounds that the criminal justice systems of most countries of the world are highly developed and States have the means at their disposal for the enforcement of judgments of their courts. Acts identified in international law as instances of criminal conduct are, furthermore, taken seriously. The international obligation, aut dedere aut judicare (either extradite or prosecute) has become a common feature in treaties that create international crimes, quite often combined with the further provision that the concerned treaty as such may be relied upon to legitimize extradition of persons charged with such crimes from one State Party to another.[31] The fact is, though, that ‘indirect enforcement’ remained in place because there is currently no permanent international tribunal with competence to conduct a criminal trial for offences other than the customary-law crimes singled out for prosecution in the recently established International Criminal Court (ICC).

III. International Customary Law Crimes

Prior to the establishment of the United Nations, the Nuremberg Trials have established beyond further dispute that individuals (natural persons) as well as legal persons can be brought to trial in international criminal tribunals for violations of the rules of customary international law that constitute offences.[32] In the Trial of the Major War Criminals, the International Military Tribunal held that ‘international law imposes duties and liabilities upon individuals as well as states’ and that ‘individuals can be punished for violations of international law.’[33] The Tribunal went on to proclaim:

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.[34]

The Nuremberg Tribunal even went so far as to hold that the doctrine of nullim crimen sine iure must not be allowed to stand in the way of bringing persons to justice for acts which they must have known amounted to criminal conduct under international law:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrongs were allowed to go unpunished.[35]

It is important to note at the outset that the Nuremberg trials have set international criminal law on a new course founded on the rule of law. Bruce Broomhall singled out a number of outstanding features which Nuremberg contributed to the development of international criminal law: holding the individual immediately liable under international law for certain core crimes (genocide, crimes against humanity, war crimes and crimes against the peace); establishing the principle that official capacity does not exonerate the perpetrator from liability for those crimes; declining to recognize authorization of the international crime by national law as a ground of justification; opening the door for the creation of other international tribunals and for the exercise of universal jurisdiction by national courts to bring perpetrators of crimes under customary international law to justice; and establishing an historical, practical and doctrinal link between the core prohibitions of international criminal law and the post-War international order.[36] This development also brought about a certain tension in international relations, with on the one hand the Westphalian tradition with its emphasis on state sovereignty, and on the other the Nuremberg legacy that tended to subordinate state sovereignty to demands of the rule of law.[37]

Nuremberg played a major role in identifying crimes against the peace (the crime of aggression), crimes against humanity (which at Nuremberg included the crime of genocide) and serious war crimes as violations of customary international law, and therefore as crimes for which individual perpetrators (other than States) can be brought to justice. The United Nations added its clout to the Nuremberg initiatives by endorsing the principles of international law reflected in the Charter of the Nuremberg Tribunal.[38]

In 1947, the General Assembly instructed the newly established International Law Commission to formulate the principles recognized in the Charter of the Nuremberg Tribunal and in the judgments of the Tribunal, and to prepare a draft code of offences against the peace and security of mankind.[39] The ILC executed the first instruction in 1950,[40] but never completed its work on the second. It published its last draft in 1996[41] and no further action is to be expected in this regard, since the definitions of crimes in the Statute of the International Criminal Court[42] have for all ends and purposes rendered further codification of those international crimes obsolete.

The history of the holocaust inspired the United Nations in 1948 to adopt the Genocide Convention[43] with a view to codifying this, ‘the crime of crimes’.[44] It is also important to note that persistent condemnation by the General Assembly of certain other state policies and practices contributed greatly to some of those practices and policies being identified over time as crimes against humanity with the force of ius cogens. Following years of condemnation of the South African policy of racial segregation, no uncertainty persisted in the long run that apartheid constituted a crime against humanity under customary international law.[45] The United Nations’ Resolution on Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, thus proclaimed that ‘the practice of apartheid as well as all forms of racial discrimination threatens international peace and security and constitute a crime against humanity.’[46] ‘Inhumane acts resulting from the policy of apartheid’ was also treated as a crime against humanity in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity[47] and in the Anti-Apartheid Convention of 1973.[48] Apartheid was therefore included in the list of crimes against humanity in the Statute of the International Criminal Court4[9] — quite appropriately proposed at the 1998 Rome Conference of Diplomatic Plenipotentiaries for an International Criminal Court by the South African delegation, and a number of other African States.[50]

One of the major contributions of the United Nations toward the development of international criminal law was affording its support to the codification, under auspices of the International Committee of the Red Cross, of war crimes. Based on the experience derived from World War II, the Geneva Conventions of 12 August 1949[51] identified ‘grave breaches’ and other violations of the laws and customs applicable in times of war (ius in bello), including criminal acts committed in international armed conflicts as well as in armed conflicts not of an international character. In 1977, two Protocols were added to the Geneva Conventions,[52] and in subsequent years an entire arsenal of conventions regulating the means and methods of warfare (ius ad bellum) came to see the light of day. Those included the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on Their Destruction of 1972,[53] and its counterpart, the Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on Their Destruction of 1993;[54] the Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects of 1980[55] and its attending Protocol on Non-Detectable Fragments (Protocol I),[56] Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II),[57] Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III),[58] and the Additional Protocol on Blinding Laser Weapons of 1997;[59] and, finally, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on Their Destruction of 1997.[60]

It is important to note at the outset that customary-law crimes are subject to universal jurisdiction. The principle of universality of ‘offences generally recognized as of universal concern’ affords jurisdiction to any State to prosecute such offences, ‘regardless of the situs of the offence and the nationalities of the offender and the offended,’[61] provided only that the national criminal justice system of the State concerned authorizes the exercise of universal jurisdiction by its municipal criminal tribunals. Offences against customary international law of a peremptory nature,[62] including treaty obligations that have become part of customary international law,[63] constitute crimen contra omnes and can as such be prosecuted in any State on behalf of the international community.

The problem remained, however, that the world still lacked a permanent international criminal tribunal that could bring perpetrators of international offences, such as the crime of aggression, genocide, crimes against humanity, and war crimes, to justice.

IV. International Criminal Tribunals

A. Historical Perspective

Within the confines of humanitarian law, the establishment of specialized tribunals to try persons perceived to be war criminals is nothing new.[64] The prosecution and conviction in 1474 of Peter von Hagenbusch by Austrians for crimes against ‘God and man’ following his reign of terror over the citizens of Breisach is often referred to as the first recorded international criminal tribunal.[65] The earlier tribunals were established, though, on an ad hoc basis, almost invariably by the victorious power, following the conclusion of an armed conflict, to bring to trial members of the defeated enemy. The tribunals in question were in that sense not truly international, and were in any event not permanent judicial institutions.

The contemporary history of international criminal tribunals begins with the peace efforts following World War I (1914-1918). When the War was drawing to a close, a Commission on the Responsibility of the Authors of War and on the Enforcement of Penalties proposed the establishment of a ‘high tribunal’ for bringing to justice ‘all enemy persons alleged to have been guilty of offences against the laws and customs of war and the laws of humanity.’[66] Those prosecutions never occurred. The Peace Treaty of Versailles, 1919 envisaged the establishment of a special (international) criminal tribunal to try the German Emperor, Wilhelm II of Hohenzollern, for ‘a supreme offence against international morality and the sanctity of treaties,’[67] but that, too, never happened.

In 1937, the League of Nations convened a Diplomatic Conference which adopted[68] the Convention on the Prevention and Punishment of Terrorism,[69] and in conjunction with that Convention, the Convention for the Creation of an International Criminal Court.[70] The Convention (with 56 articles) received only one ratification (India) and consequently never entered into force.[71]

The United States War Crimes Commission, established in October 1943, on 26 September 1944 adopted the Convention for the Establishment of a United Nations Joint Court that included the statute of an international criminal court to prosecute German war criminals for crimes committed during World War II (1935-1945),[72] but the work of the Commission was overtaken by the London Conference which laid the base for the prosecution of the major war criminals.

The Nuremberg Tribunal for the prosecution of major war criminals was established by means of treaty arrangements of the leading (victorious) allied forces under the London Agreement of 8 August 1945.[73] Other German war criminals were brought to trial, under Control Council Law No 10,[74] by military tribunals of several countries, including the United States, the United Kingdom, Nationalist China, France, Greece, The Netherlands, Poland and the USSR. The International Military Tribunal for the Far East was established through a special proclamation issued by General Douglas McArthur in his capacity as Supreme Commander for the Allied Powers.[75]

When the General Assembly adopted the Genocide Convention, it also instructed the International Law Commission ‘to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide and other crimes over which jurisdiction will be conferred upon that organ by international conventions.’[76] In 1950, the ILC by majority vote came out in favour of the desirability and feasibility of an international criminal court.[77] The thinking at the time was that the Court might be established as a Chamber of the ICJ, provided Article 34 of the Statute of the ICJ be amended so as to afford to it jurisdiction over individuals in criminal matters.[78] Emil Sandström, who wrote a dissenting opinion, expressed the view that should a Criminal Chamber be added to the ICJ, it ought to be one that will only be activated ‘in case of need’.[79]

The General Assembly thereupon appointed a committee comprising representatives of seventeen Member States of the United Nations with instructions to prepare one or more preliminary draft conventions and proposals regarding such a court.[80] In 1951,[81] and again in 1953,[82] the committee submitted draft statutes for an international criminal court, but because of inability of the United Nations to coordinate different initiatives for the development of an international criminal justice system,[83] and in consequence of the ‘cold war’,[84] nothing came of it.

In 1980, a further draft statute for an international criminal court to enforce the Anti-Apartheid Convention was prepared by an Ad Hoc Working Group of Experts under Cherif Bassiouni,[85] but that, too, by majority vote, came to naught.[86]

Other draft statutes or conventions were proposed, both official and unofficially, but none gained adequate support.[87]

B. The Ad Hoc Tribunals

In more recent times, a few ad hoc criminal tribunals have been established, notably the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to prosecute perpetrators of atrocities committed during the violent unrest that erupted in those two countries during the early 1990s. The ICTY and ICTR owe their existence to Security Council resolutions adopted under the Chapter VII powers of the Council to address a threat to the peace, a breach of the peace, or an act of aggression.[88]

In Prosecutor v Duško Tadić, the ICTY upheld the legality of its creation, holding, amongst other things, that the powers vested in the Security Council to address a threat to international peace and security, are not limited to those listed in Articles 39-42 of the UN Charter, and are wide enough to include the establishment of an international criminal tribunal.[89]

However, legality of the ad hoc Tribunals was not at all beyond dispute,[90] and there are compelling grounds for holding that the Security Council acted ultra vires when it resorted to the creation of criminal tribunals pursuant to its Chapter VII powers. The following arguments may be advanced in support of the proposition that the Security Council, in creating ad hoc criminal tribunals, exceeded its authorized powers:

1. The powers entrusted to the Security Council for maintaining international peace and security are encapsulated in Chapter VII of the UN Charter, and the ones not involving the use of armed force (the Article 41 powers) include ‘measures’ such as ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communications, and the severance of diplomatic relations.’[91] Although these specific powers do not constitute a numerus clausus, the establishment of a criminal tribunal cannot by any stretch of the imagination be brought within the enclave of retributive responses enumerated in the Charter as required by the eiusdem generis rule of interpretation.[92]

2. Since one is here dealing with punitive measures, the concerned empowering provisions of the Charter must be subjected to restrictive interpretation.

3. The Security Council has been empowered to take action against States and not against individuals.

The statement of the ICTY in the case of Duško Tadić that Security Council Resolutions 731 and 748 requiring the Libyan government to surrender the two Libyan nationals suspected of the Lockerbie bombing, and imposing economic sanctions against Libya as a means of securing compliance with that decision, were ‘in substance, acting upon individuals, seeking the extradition and trial of those Libyan nationals’ totally missed the point.[93] Security Council Resolution 731 called upon Libya to surrender the suspects; and Security Council Resolution 748 imposed sanctions against Libya and not against the two suspects.

The decision of the Security Council to establish a criminal tribunal clearly was ‘[t]he most far-reaching use of Art. 41 ordering measures not listed ...’.[94] One analyst described the pertinent interpretation of Article 41 by the Security Council as ‘dynamic and teleological.’[95] Another suggested that the creation of an international criminal tribunal by the Security Council may be seen as ‘a modern form of collective humanitarian intervention ... to deal with ... massive human rights violations ...’[96] The ICTR recognized that the Security Council, by asserting jurisdiction over individuals, ‘provided an important innovation of international law.’[97]

That, indeed, is how international law evolves. The appropriate response of the Security Council to the circumstances that prevailed in the former Yugoslavia, and subsequently in Rwanda, was not within the contemplation of drafters of the UN Charter in 1945. Everyone would also agree that armed intervention under Article 42 of the UN Charter ought to be avoided as far as possible, and in any event was unlikely to be an appropriate and effective means of preserving or restoring peace and security in the Balkans. Attempting to establish an international criminal tribunal through the agency of the General Assembly of the United Nations or by means of a treaty arrangement would most likely have been an exercise in futility and would in any event have been too time-consuming.[98] The Security Council cannot be expected to simply sit back and let the atrocities be, merely because the Charter does not make provision for measures that would be suitable for meeting the challenges of a new era. Provided the action taken by the Security Council (i) does not run counter to an express prohibition in the Charter, and (ii) meets with general approval by the international community of States—that is, the exercise of power by the Security Council is legitimate—then the ‘innovation of international law’ acquires the attributes of legality—that is, a new rule of international law is created. That would not be the case if the assumption of powers by the Security Council, or any other law-creating agency of international law, were expressly forbidden or provoked general condemnation by a cross-section of the countries of the world.

All indications are that the world has seen the last of such ad hoc tribunals. The costs in time, finances and human resources which their creation and functioning entailed, combined with the extremely limited success rate in bringing to justice the perpetrators of the crimes for the prosecution of which they were established, will undoubtedly inhibit repetition of dealing with international offences on an ad hoc basis.

C. Hybrid Tribunals

Following the military intervention in the former Yugoslavia of NATO forces to counteract ongoing atrocities committed against Kosovar Albanians, the United Nations Interim Administration Mission in Kosovo (UNMIK), established pursuant to Security Council Resolution 1244 of 10 June 1999,[99] recommended the creation of a special tribunal, the Kosovo War and Ethnic Crimes Court (KWECC), with jurisdiction over war crimes, genocide, crimes against humanity and other crimes committed on grounds of sectional biases.[100] KWECC was indeed subsequently abandoned, but the initial proposal set the nature of international criminal tribunals on a new course: the establishment of national courts with United Nations support[101] and in which both local and foreign nationals were to serve as judges and in the prosecuting offices. A practice has emerged for the ICTY to refer lower-level cases to municipal courts in the Balkans to be tried by mixed panels of local and foreign judges. A regulation of 15 February 2000 issued by UNMIK authorized international judges and prosecutors to fully participate in judicial proceedings of local District Courts in Kosovo for the prosecution of international crimes.[102]

The Security Council subsequently also offered support for the establishment by the United Nations Transitional Administration in East Timor (UNTAET) of panels of judges with exclusive jurisdiction in respect of serious criminal offences committed in that territory during the political uprising in the period between 1 January 1999 and 25 October 1999, including genocide, war crimes, crimes against humanity, murder, sexual offences, and torture.[103] Serious crimes are prosecuted before a panel of three judges, comprising one East Timorese and two international judges.[104]

In August 2000, the Security Council requested Secretary-General Kofi Annan to negotiate an agreement for the creation of an independent special court to try war criminals in Sierra Leone for crimes against humanity, war crimes, and other serious violations of international humanitarian law.[105] The court came into being pursuant to a bilateral agreement of 4 October 2000 between the United Nations and Sierra Leone.[106] The United Nations and Sierra Leone signed an agreement establishing the ‘independent special court’ on 16 January 2002.[107] Judges of each Trial Chamber consist of one appointed by the government of Sierra Leone (who need not be a Sierra Leonean citizen) and two appointed by the Secretary-General of the United Nations.[108]

The United Nations has also taken an interest in the establishment of a similar criminal tribunal to prosecute leaders of the Maoist Kmer Rouge for the atrocities committed during their reign of terror in Cambodia in the period 1975-1979.[109] Although the Cambodian legislature on 10 August 2001 to this end adopted legislation for the establishment of Extraordinary Chambers, the United Nations could not uphold its support for those Chambers, since the Cambodian legislation did not guarantee the independence, impartiality and objectivity insisted upon by the United Nations as a precondition for its support of the proceedings.[110] Negotiations between the United Nations and Cambodia did subsequently resume and an agreement was reached in June 2003.[111]

The Iraqi Special Tribunal for Crimes Against Humanity, established by the Coalition Provisional Authority of Iraq and signed into law by L Paul Bremer (US administrator of Iraq) on 10 December 2003 to prosecute Saddam Hussein and other Iraqi nationals,[112] is not a hybrid tribunal in the above sense. The Iraqi Tribunal was not established in cooperation with the Security Council or any other organ of the United Nations and is composed of Iraqi judges only. The Iraqi interim authority in 2005 replaced the Special Tribunal with the Iraqi Higher Criminal Court, but it, too, remained a municipal tribunal of Iraq and not a hybrid court within the meaning of international law.

D. The International Criminal Court

The International Criminal Court (ICC), whose Statute entered into force on 1 June 2002, is not an organ, or a subsidiary body of any of the organs, of the United Nations. The ICC nevertheless upholds special relations with the United Nations,[113] encapsulated in the Relationship Agreement between the Court and the United Nations.[114]

The Relationship Agreement makes provision for close cooperation between the ICC and the United Nations.[115] They are to consult one another in matters of mutual interest;[116] exchange information and documents of mutual interest;[117] avoid undesirable duplication in the collection, analysis, publication and dissemination of information;[118] and secure the most efficient use and interchange of facilities, staff and services.[119]

The independence of the ICC has certain important implications. It raises the question whether or not the Security Council can bestow powers on the ICC not included in the Court’s statutory make-up. Can the Security Council, for example, instruct the ICC to disregard the principle of complementarity and exercise jurisdiction in a particular case while the custodial State is willing and able to bring the perpetrator to justice? Given the identity and independence of the ICC as a juristic person—a distinct legal entity with a defined structural composition, specific functions, and a limited range of competencies—this question must be answered in the negative. Not even the Security Council can convert the ICC into something which, by virtue of its Constitution (the ICC Statute), it is not, or confer on it functions and powers that do not derive from the instrument to which it owes its juristic personality.

The ICC Statute does entrust the Security Council with certain specific competencies, notably the power to refer a situation to the Prosecutor for investigation,[120] and the power to instruct the Prosecutor to defer an investigation or prosecution for a (renewable) period of 12 months in order to avoid a conflict of interests in cases where the Security Council, acting pursuant to its Chapter VII powers, is seized with the matter.[121] Referral of a situation to the Prosecutor is made in the context of the Security Council’s Chapter VII powers to deal with a threat to the peace, a breach of the peace or an act of aggression; here, too, the Security Council cannot instruct the ICC to assume jurisdiction in matters or in circumstances not expressly authorized by the ICC Statute.

Although the ICC functions independently of the United Nations, its creation in 1998 by a Diplomatic Conference of Plenipotentiaries was only made possible by the logistical and substantive support of the United Nations. And it is important to note that the ICC Statute has already come to be recognized as an important source of international criminal law. The ICTY, for one, has recognized the potential standing of the ICC Statute as a source of knowledge of those components of customary international law to which it relates:

In many areas the [ICC] Statute may be regarded as indicative of the legal views, i.e. opinion juris of a great number of states. ... [R]esort may be had cum grano salis to these provisions to help elucidate customary international law. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallize them, whereas in some areas it creates new law or modifies existing law. At any event, the Rome Statute by and large may be taken as constituting an authoritative expression of the legal values of a great number of States.[122]

V. Basic Principles of Criminal Justice

Not the least of its achievements in the area of international criminal law is the United Nations’ contributions to the development of universal standards of criminal justice. The Universal Declaration of Human Rights prohibits torture and cruel, inhuman or degrading treatment or punishment;[123] it proclaims the equality of all persons before the law and the equal protection of the law;[124] it condemns arbitrary arrests, detentions and exile;[125] it sanctions the right of everyone to a fair and public hearing by an independent and impartial tribunal;[126] it endorses the right of an accused to be presumed innocent until proven guilty, to a public trial, and to ‘all the guarantees necessary for his defense’;[127] and it opposes the prosecution of someone for an act or omission which did not constitute an offence at the time when it was committed, and the imposition of a heavier sentence than the one that was provided for at the time the offence was committed.[128]

The International Covenant on Civil and Political Rights endorsed these provisions—in some instances with greater specificity—and added a few of its own.[129] Those in turn, were echoed in the Statutes of the ICTY and ICTR.[130] The pertinent provisions in the latter instruments proclaim the principle of ne bis in idem, precluding as a general rule a second trial for ‘acts constituting serious violations of international humanitarian law under the present Statute,’ but making allowance for double jeopardy in cases where the accused has been tried in a national court for ‘an ordinary crime’,[131] or where the proceedings in the national court were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not ‘diligently’ prosecuted.[132] The two Statutes also preclude the jurisdiction of national courts following the conviction or acquittal of an accused in the International Tribunal.[133]

The two Statutes further insist on the impartiality and integrity of the judges,[134] and on the trial being conducted fairly and expeditiously and ‘with full respect for the rights of the accused and due regard for the protection of victims and witnesses.’[135]

Due process entitlements of the accused include the right to be informed ‘immediately’ of the charges against them[136] in a manner and form which enable them to understand those charges,[137] the right, as a general rule, to a public hearing,[138] the right to a presumption of innocense,[139] the right to appeal[140] and review[141] proceedings, and an impressive list of ‘minimum guarantees’ to be enjoyed by everyone ‘in full equality’.[142]

Drafters of the statutory due process provisions and of the rules of evidence and procedure to be applied by the ICC had the distinct advantage of (a) considering and refining the precedents of earlier international tribunals, and (b) benefiting from the input of experts from all over the world representing a cross-section of municipal criminal justice systems. They consequently expanded and refined the standards of criminal justice to a level of perfection that clearly exceeds those reflected in earlier international instruments, and indeed in the criminal justice systems of perhaps most countries of the world. Two examples will suffice to illustrate the point.

The presumption of innocence has come to be recognized in all the international instruments considered thus far.[143] Yet its implementation has not been entirely consistent. Common-law jurists, who are not fully committed to the basic principle of criminal justice underlying the presumption of innocence, tend to place the onus on the accused to prove the existence of a ground of justification or exculpation—particularly if the circumstances relied upon to constitute a defense is peculiarly within the knowledge of the accused.[144] In Prosecutor v Kunerać, the ICTY likewise proceeded on the assumption that a defense in the true sense ‘carries an implication of the shifting of the burden of proof to the accused.’[145] In the Celibici Case, the ICTY held that a burden of proof rests on the Defence to show on a balance of probabilities the grounds it relies upon to substantiate a reduced sentence based on diminished mental responsibility.[146] The ICC Statute explicitly and clearly rejects this. It provides that the accused shall ‘[n]ot have imposed on him or her any reversal of the burden of proof or any onus of rebuttal.’[147]

The second example concerns the principle of no liability without fault, which is not expressly endorsed in any of the pre-ICC international instruments—probably because this salient principle of criminal justice is not consistently upheld in Anglo-American legal systems. The ICC Statute, on the contrary, upholds the principle of no liability without fault to the letter.[148] It provides:

Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.[149]

The conjunctive requirement of intent and knowledge[150] is further defined in the ICC Statute. Article 30(2) defines intent as follows:

For the purposes of this article, a person has intent where:



(a) In relation to conduct, that person means to engage in the conduct;



(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

This means in essence that, as a general rule,[151] an accused can only be convicted of a crime within the subject-matter jurisdiction of the ICC if he or she desired the consequences of the act (dolus directus) or foresaw collateral consequences other than the desired ones as a certainty (dolus indirectus). If the accused did foresee particular consequences of his or her act as a mere possibility or even as a distinct likelihood (dolus eventualis), he or she cannot be convicted in the ICC for any of the crimes requiring intent and knowledge. In Prosecutor v Kupreškić, the ICTY stated that a person who commits an assault with intent to do grievous bodily harm can be convicted of murder as a crime against humanity if the victim of the assault were to die in consequence of the assault.[152] This statement cannot be accepted as an accurate description of ‘intent and knowledge’ required for crimes against humanity by the ICC Statute.

Since intent and knowledge require cognizance on the part of the perpetrator of the unlawful nature of the act, ignorance of the law is an excuse as far as the ICC is concerned,[153] and a finding of ‘guilty but insane’,[154] or prosecuting a juvenile as though he or she were an adult, is not part of the ICC’s conceptual framework.

VI. Concluding Remarks

One of the major contributions of the United Nations thus far toward the development of basic principles of good governance and globalization of the rule of law has been the promotion and elaboration of offences as part and parcel of international customary law with the force of ius cogens. However, prosecution of international crimes in municipal courts remained the name of the game and, regrettably, resulted in impunity for some of the most horrendous offenders against the norms of international criminal law, simply because national prosecuting authorities have in general demonstrated reluctance to prosecute the culprits. Persistent efforts of the United Nations to remedy this crippling state of affairs eventually culminated in the creation of the ICC.

Establishment of the ICC marked the greatest achievement in international relations since the founding of the United Nations itself. The ICC regime, recognizing that municipal justice systems remain the best suited to prosecute criminal offences of all kinds, was not designed to replace ‘indirect enforcement’ of international criminal law, but, based on the principle of complementarity, affords jurisdiction to the ICC to step in when the appropriate municipal prosecuting authorities are unwilling or unable to bring perpetrators of the crimes within the Court’s jurisdiction to justice. The ICC Statute thus affirmed ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.’[155]

Regrettably, this commitment is not shared by all the nations of the world. Most notorious among the recalcitrant States is the United States of America. The American delegation indeed made a profound contribution toward refinement of the ICC Statute, but insisted upon a prerogative of dispensation for its government with American nationals as the prime beneficiaries. Considerations of equal protection and the rule of law prompted a vast majority of the delegations in Rome to reject ‘American exceptionalism’, in consequence of which the United States has embarked on a malicious campaign to discredit, and indeed to destroy, the ICC.[156] The American attitude and strategy was neatly encapsulated by John Bolton, currently the US Ambassador to the United Nations. Writing in The National Interest, he proclaimed:

[W]hether the ICC survives and flourishes depends in a large measure on the United States. We should therefore ignore it in our official posture, and attempt to isolate it through our diplomacy, in order to prevent it from acquiring any further legitimacy or resources.[157]

In spite of the spectacular achievements of the United Nations, international law is still far removed from the utopia of elaborate and effective enforcement of a world law of criminal justice. Collective punitive action against States is a prerogative of the Security Council and is subject to the veto powers of its Permanent Members. The exercise of those powers are almost invariably founded on political rather than sound juridical considerations, rendering among other things the Permanent Members and their allies above the law. Jurisdiction of the ICC and admissibility of cases before the Court are subject to almost paralysing constraints, which again leave ample scope for perpetrators of genocide, crimes against humanity and war crimes to escape prosecution. The rather squeamish responses of the United States to the outcome of the Rome Conference have caused the governments of many other countries to adopt the attitude of wait and see.

However, the ICC represents a massive step toward the ideal of putting an end to impunity and, thereby, to serve as a deterrent. The ICC Statute already has 100 ratifications and is functioning. Its prosecuting office is currently conducting an investigations into activities of The Lord’s Liberation Army in Uganda following a State Party referral, proceedings have been set in motion to obtain approval by a Pre-Trial Chamber of the Court for an investigation proprio motu by the Prosecutor into allegations of wrongdoing in the Federal Republic of Congo, and pursuant to a Security Council referral,[158] the Prosecutor has been authorized to commence an investigation into alleged atrocities committed in Darfur.

And at least this much is certain: the definition of crimes in the ICC Statute may be taken as an authoritative codification of customary-law offences. It was decided at an early stage of the proceedings culminating in the Rome Conference to confine the jurisdiction of the ICC to such core crimes, and the definitions of those offences were adopted in Rome by general agreement.[159]


[*] IT Cohen Professor of International Law and Human Rights, Emory University School of Law, Atlanta, Georgia, USA.

[1] M Cherif Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Court (1987), 50.

[2] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 211 (entered into force 4 January 1969) (‘Racial Discrimination Convention’).

[3] Ibid art 6; see also art 5 (instructing States Parties ‘to prohibit and to eliminate’ racial discrimination).

[4] Ibid art 4(a).

[5] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’).

[6] Ibid art 6.

[7] Ibid art 2(b).

[8] Ibid art 11(2)(a).

[9] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[10] Ibid art 11.

[11] Ibid art 19.

[12] Ibid art 34.

[13] Ibid art 35.

[14] Ibid art 32(2)(c).

[15] International Convention for the Abolition of Slavery and the Slave Trade, opened for signature 26 September [1927] LNTSer 19; 1926, 60 LNTS 253 (entered into force 9 March 1927) (‘Slavery Convention’).

[16] Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956, 266 UNTS 3 (entered into force 30 April 1957) (‘Supplementary Slavery Convention’).

[17] Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Genocide Convention’).

[18] Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature 30 November 1973, 1015 UNTS 243 (entered into force 18 July 1976) (‘Anti-Apartheid Convention’).

[19] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘Torture Convention’).

[20] See Slavery Convention, arts 2(a), 6; Supplementary Slavery Convention, arts 3(1), 5, 6; Genocide Convention, art V; Anti-Apartheid Convention, art 4; Torture Convention, art 4(1).

[21] For example, Genocide Convention, art VI; Anti-Apartheid Convention, art 4.

[22] Torture Convention, art 7(1).

[23] Ibid art 8.

[24] Anti-Apartheid Convention, art 1.

[25] Ibid art 5.

[26] Ibid art 3.

[27] See Johan D van der Vyver, ‘The Criminalization and Prosecution of Environmental Malpractice in International Law’ (1998) 23 South African Yearbook of International Law 1, 1-33.

[28] See Alexandre Kiss and Dinah Shelton, International Environmental Law (1991), 173.

[29] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, art 230(1), 1833 UNTS 3 (entered into force 16 November 1994) (‘UNCLOS’).

[30] Ibid art 230(2).

[31] See, eg, Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, art 7, 860 UNTS 105 (entered into force 14 October 2001); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, opened for signature 14 December 1973, arts 3,8, 1035 UNTS 167 (entered into force 20 Feburary 1977); Convention against the Taking of Hostages, opened for signature 17 December 1979, art 8, 1316 UNTS 205 (entered into force 3 June 1983); Torture Convention, arts 7,8; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 221, art 10 (entered into force 1 March 1992). See also ILC’s Draft Code of Crimes against the Peace and Security of Mankind, UN GAOR Supp. (No. 10), 51st sess, 14, U.N. Doc. A/51/10 (1996), art 9 (mandating States to prosecute or extradite), art 10 (proclaiming the Code to serve as an extradition treaty in respect of the crimes defined therein).

[32] It was an issue at the time because of the generally held view that international law only regulated the relationship between States and could therefore not be made applicable to individuals.

[33] 1 Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg 14 November-1 October 1946, Judgment, 171, 223 (‘Trial of the Major War Criminals’); and see also 22 Trial of the Major War Criminals 441, 465-6.

[34] 1 Trial of the Major War Criminals, 223; 22 Trial of the Major War Criminals, 466.

[35] 1 Trial of the Major War Criminals, 219; 22 Trial of the Major War Criminals, 462.

[36] Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (2003), 19-20.

[37] Ibid 2.

[38] Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, GA Res 95(1), UN GAOR, 1st sess, pt. 2, 1144, UN Doc A/236 (1946).

[39] GA Res 177(II), UN GAOR, 2nd sess, 123rd plen mtg, 111 (1947).

[40] Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, adopted by the ILC on 2 Aug. 1950, reprinted in Report of the International Law Commission, 5 UN GAOR Supp. (No 12), 11-14, UN Doc A/1316.

[41] Draft Code of Crimes against the Peace and Security of Mankind, above n 31.

[42] Statute of the International Criminal Court, arts 6-8, UN Doc A/CONF.183/9 (1998) (‘ICC Statute’).

[43] Genocide Convention, opened for signature 9 December 1948, 78 UNTS 277, art VI (entered into force 12 January 1951).

[44] Prosecutor v Jean Kambanda, Case No. ICTR-97-23-S, [16] (4 September 1998); and see William A Schabas, Genocide in International Law (2000), 9 (proclaiming that in a hierarchy founded on the seriousness of crimes, genocide belongs to ‘the apex of the pyramid’); William A Schabas, ‘Genocide’ in Otto Triffterer (ed), The Rome Statute of the International Criminal Court (1999), 107, 109; Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (2002), 141; Antonio Cassese, ‘Genocide’ in Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) vol 1, 335, 344-5.

[45] Andreas Zimmermann, ‘Die Schaffung eienes ständiges Internationalen Strafgerichtshofes: Perspektiven und Probleme vor der Staatenkonferenz in Rom’ (1998) 58 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 47, 90.

[46] GA Res 2105 (XX) of 20 December 1965, UN GAOR Supp (No 14), 20th sess, 1405 plen mtg, 3, UN Doc A/6014 (1965). It should be noted that the Security Council, though consistently deploring and condemning the policy of apartheid, stopped short of expressly allocating to that policy the attributes of a crime against humanity. See, eg, SC Res 181 (1963), UN SCOR (Res and Dec), 18th sess, 1056th mtg, 7, UN Doc S/5386 (1963) (deprecating the South African racial policy as being ‘inconsistent with the principles contained in the Charter of the United Nations and contrary to ... [South Africa’s] obligations as a member of the United Nations’); SC Res 182 (1963), UN SCOR (Res. & Dec.), 18th sess, 1078th mtg 8,9 (1963) (describing the policy of apartheid as ‘abhorrent to the conscience of mankind’); SC Res 392 (1976), UN SCOR (Res. & Dec.), 31st sess, 1930th mtg, 11 (1976) (proclaiming that ‘apartheid is a crime against the conscience and dignity of mankind and seriously disturbs international peace and security’); SC Res 473 (1980) , UN SCOR (Res. & Dec.), 35th sess, 2231st th mtg, 18 (1980) (stating that ‘the policy of apartheid is a crime against the conscience and dignity of mankind and is incompatible with the rights and dignity of man, the Charter of the United Nations and the Universal Declaration of Human Rights, and seriously disturbs international peace and security’). See further Racial Discrimination Convention, art 3: ‘States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.’

[47] Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, opened for signature 26 November 1968, 754 UNTS 73 (entered into force 11 November 1970).

[48] Anti-Apartheid Convention, art 1(1).

[49] ICC Statute, art 7(1)(j), UN Doc A/CONF.183/9 (1998).

[50] Proposal for Article 5 Submitted by Lesotho, Malawi, Namibia, South Africa, Swaziland, and United Republic of Tanzania, U.N. Doc. A/CONF.183/C.1/L.13 (22 June 1998).

[51] Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).

[52] Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)), opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978).

[53] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975).

[54] Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1975 UNTS 45 (entered into force 29 April 1997).

[55] Convention on Prohibition or Restriction on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 2 December 1983).

[56] Protocol on Non-Detectable Fragments (Protocol I), 1980, reprinted in (1980) 19 I.L.M. 1529.

[57] Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), 1980, reprinted in (1980) 19 I.L.M. 1534, as amended in 1997 ((1997) 35 I.L.M. 1209).

[58] Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1980, reprinted in (1980) 19 I.L.M. 1534.

[59] Additional Protocol to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (Protocol IV, entitled Protocol on Blinding Laser Weapons), opened for signature 13 October 1995, 2024 UNTS 163 [1999] ATS No.8 (entered into force 30 July 1998).

[60] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines and on Their Destruction, opened for signature 18 September 1997, 2056 UNTS 211 (entered into force 1 March 1999).

[61] Kenneth C Randall, ‘Universal Jurisdiction under International Law’ (1988) 66 Texas Law Review 785, 788.

[62] See Jordan J Paust, ‘Universality and the Responsibility to Enforce International Criminal Law: No U.S. Sanctuary for Alleged Nazi War Criminals’ (1989) 11 Houston Journal of International Law 337.

[63] Jordan J Paust, International Law as Law of the United States (1996), 293.

[64] See Christopher K Hall, ‘Origins of the ICC Concept (1872-1945)’ 6 International Criminal Court Monitor, 6.

[65] As to the case against Von Hagenbusch, see G Schwartzenberger, (1968) 2 International Law as Applied by International Courts and Tribunals, 462-6; Jules Deschenes, ‘Toward International Criminal Justice’ (1994) 5 Criminal Law Forum 249, 250-2.

[66] Commission on the Responsibility of the Authors of War and on the Enforcement of Penalties, ‘Report Presented to the Preliminary Peace Conference March 29, 1919’ (1920) 14 American Journal of International Law 95, 123; and see William A Schabas, ‘Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime”’ in Mauro Politi and Guiseppe Nesi (eds), The International Criminal Court and the Crime of Aggression (2004), 17, 20-1.

[67] Treaty of Peace with Germany (Versailles, 28 June 1919), art 227, reprinted in (1919) 13 American Journal of International Law Supplement 151, 250.

[68] See Third Meeting, (Public Then Private) One Hundredth Session of Council (1938) 19 League of Nations Official Journal 106, 100th sess, 3rd mtg, (1938).

[69] Convention on the Prevention and Punishment of Terrorism, LN Doc C.546.M.383.1937.V., reprinted in (1938) 19 League of Nations Official Journal, 23.

[70] Convention for the Creation of an International Criminal Court, LN Doc C.547.M.384.1937.V., reprinted in (1938) 19 League of Nations Official Journal 37.

[71] See M Cherif Bassiouni, ‘The Journey to a Permanent International Criminal Court’ in M Cherif Bassiouni (ed), International Criminal Court: Compilation of United Nations Documents and Draft ICC Statute Before the Diplomatic Conference (1998), xvii.

[72] United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (1948), 442-50; Arieh J. Kovchavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (1998), 114-15; Schabas, above n 66, 22.

[73] Agreement of the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, opened for signature 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945) ; and as to the London Conference, see Schabas, above n 66, 27-9.

[74] Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, (1946) 3 Official Gazette of the Control Council of Germany 50.

[75] Special Proclamation Establishing an International Military Tribunal for the Far East, January 19, 1946, TIAS No 1589, 3.

[76] Prevention and Punishment of the Crime of Genocide—Study by the International Law Commission of the Question of an International Criminal Jurisdiction, GA Res 260B(III) UN GAOR, 3rd sess, 179th plen mtg, 177, UN Doc. A/810 (1948).

[77] ILC Report on The Question of International Criminal Jurisdiction, UN GAOR 5th sess, Supp (No 12), 15, UN Doc A/1316 (1950); and see Ricardo J Alfaro, ‘Questions of International Criminal Jurisdiction’ UN Doc A/CN.4/15, reprinted in Yearbook of the International Law Commission (1950) vol 2, 1, 17 (supporting the establishment of an international criminal court).

[78] Statute of the International Court of Justice, art. 34(1) (providing that only States may be parties in cases before the Court).

[79] Emil Sandström, Questions of International Criminal Jurisdiction, UN Doc. A/CN.4/20, reprinted in Yearbook of the International Law Commission (1950) vol 2, 18, 23 (opposing the establishment of an international criminal court).

[80] International Criminal Jurisdiction, GA Res 489(V), UN GAOR, 5th sess, 320th plen mtg, Supp (N. 20), 77, UN Doc A/1775 (1950).

[81] Draft Statute for an International Criminal Court, in Report of the Committee on International Criminal Jurisdiction, Annex I (31 August 1951), 7 UN GAOR Supp (No 11), 21, UN Doc A/2136 (1952).

[82] Revised Draft Statute for an International Criminal Court, in Report of the 1953 Committee on International Criminal Jurisdiction, Annex (20 Aug. 1953), 9 UN GAOR Supp (No 12), 23, UN Doc. A/2645 (1954).

[83] Antonio Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’ in Antonio Cassese, Paola Gaeta and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002), vol 1, 3, 9-10.

[84] Ibid; and see in general, Broomhall, above n 36, 29, 64; M Cherif Bassiouni, ‘Observations Concerning the 1997-98 Preparatory Committee’s Work’ in M Cherif Bassiouni (ed), The International Criminal Court: Observations and Issues Before the 1997-98 Preparatory Committee; and Administrative and Financial Implications (1997), 5; Benjamin B Ferencz, ‘Can Aggression be Deterred by Law?’ (1999) 11 Pace International Law Review 341, 347; Sadat, above n 44, 36-8.

[85] See Draft Statute for the Creation of an International Criminal Jurisdiction to Implement the International Convention on the Suppression and Punishment of the Crime of Apartheid and Other International Crimes, 1980, UN Doc E/CN. 4/1426, reprinted in M Cherif Bassiouni & Daniel H Derby, ‘Final Report on the Establishment of an International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments’ (1981) 9 Hofstra Law Review 523, 547-71; and in Bassiouni (ed), above n 71, 760-77; and see also ibid, 795-812 for a text of the Draft Additional Protocol for the Penal Enforcement of the International Convention on the Suppression and Punishment of the Crime of Apartheid. For an overview of the Draft Statute, see Rose Marie Karadsheh, ‘Creating an International Criminal Court: Confronting the Conflicting Criminal Procedures of Iran and the United States’ (1996) 14 Dickenson Journal of International Law 243, 253-63.

[86] For the official response to the Committee’s Report, see Commission of Human Rights: Report of the 37th Session (2 February–13 March 1981), UN ESCOR Supp (No 5) 37th sess, 1596th-1603rd and 1611st–1612nd plen mtg, [323-35] (at 134–136), UN Doc E/CN 4/1475 (1981) (some delegations noting that ‘the proposals will be carefully studied by their Governments which would submit their views and comments on the study and on the proposals contained therein’ (ibid [323]).

[87] The ILC listed several other such proposed instruments (in addition to the ones mentioned in the text hereof) in an Appendix to its first report of 1992 on the establishment of an international criminal court.

[88] SC Res 827 (1993) of 15 May 1993, in 48 UN SCOR (Res and Dec) 29, UN Doc. S/INF/49 (1993) (establishing the International Criminal Tribunal for the Former Yugoslavia); SC Res 955 (1994) of 8 November 1994, in 49 UN SCOR (Res and Dec) 15, UN Doc S/INF/50 (1994) (establishing the International Criminal Tribunal for Rwanda); and see Jelena Pejic, ‘The Tribunal and the International Criminal Court: Do Precedents Matter?’ (1997) 60 Albany Law Review 841, 843-5.

[89] Prosecutor v Tadić (Jurisdiction) (Appeals Chamber), No IT-94-1-AR72 (October 2 1995); (1997) 105 International Law Reports 453, [36-46]; and see Peter Rowe, ‘The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic Case(1996) 45 International and Comparative Law Quarterly 691, 691-5; Claus Kreß, ‘Das Urteil des Internationalen Straftribunal für das ehemalige Jugoslavia (Appeals Chamber) im Fall Tadic von 2 Oktober 1995' (1996) 23 Europäische Grundrechte Zeitschrift 638, 640-2; Heiko Ahlbrecht, Geschichte der völkerrechtlichen Strafgerichtbarkeit im 20. Jahrhunderd (1999) 243 (arguing that the creation of a judicial body whose functions are limited in terms of subject-matter and time does come within the ambit of ‘measures’ not involving armed conflict within the meaning of Article 41 of the UN Charter); Virginia Morris, ‘International Decisions Edited by Bernard H. Oxman’ (1998) 92 American Journal of International Law 66, 68.

[90] See, eg, Jose E Alvarez, ‘Nuremberg Revisited: The Tadic Case(1996) 7 European Journal of International Law 245, 245-60; Ahlbrecht, above n 89, 240-2; Pascal Arnold, Der UNO-Sicherheitsrat und die strafrechtliche Verfolgung von Individuen (1999), 64-84, 130-1; James Crawford, ‘The Work of the International Law Commission’, in Antonio Cassese, Paola Gaeta and John R W D Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002) vol 1, 23, 25 n 10.

[91] Charter of the United Nations, art 41.

[92] Martha Minow refers with some skepticism to creation of the ad hoc tribunals pursuant to ‘a generous interpretation of the United Nation’s authority to respond to threats to international peace and security.’ Martha Minow, Between Vengeance and Forgiveness (1998), 35; and see also Ruth Wedgwood, ‘The Constitution and the ICC’ in Sarah B Sewall and Carl Kaysen (eds), The United States and the International Criminal Court (2000) 119, 119 (noting that ‘the authority of the Security Council to create additional ad hoc institutions has been questioned by some members states of the United Nations’).

[93] See Prosecutor v Tadić (Jurisdiction) (Trial Chamber), No IT-94-I-T (10 August 1995), (1997) 105 International Law Reports 420, [36].

[94] Jochen A Frowein, ‘Chapter VII Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression (Articles 39-43)’ in Bruno Simma, et al (eds), The Charter of the United Nations (1994) 605, 626.

[95] Arnold, above n 90, 70.

[96] John R W D Jones, The Practice of the International Criminal Tribunal for the Former Yugoslavia and Rwanda (2000), 41.

[97] Prosecutor v Kanyabashi (Jurisdiction), Case No ICTR-96-15-T, [35] (18 June 1997); and see also Richard J Goldstone, ‘The Role of the United Nations in the Prosecution of War Criminals’ (2001) 5 Washington University Journal of Law and Policy 119, 120.

[98] See Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), [20], UN Doc S/25704, (3 May 1993), reprinted in (1993) 32 International Legal Materials 1159; and see Michael P Scharf, Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg (1997), 55.

[99] SC Res 1244, UN SCOR (Res. & Dec.) 54th sess, 4011th mtg, 32, [5] UN Doc S/INF/55 (1999) (authorizing the deployment, under United Nations auspices, of international civil and military presences in Kosovo).

[100] See Michael Bohlander, ‘Kosovo: The Legal Framework of the Prosecution and the Courts’ in Kai Ambos and Mohamed Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (2003), 32-4.

[101] See Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, [111], UN Doc S/2000/177 (3 March 2000).

[102] Regulation No 2000/6 on The Appointment and Removal from Office of International Judges and International Prosecutors, UNMIK/REG/2000/6, reprinted in Report of the Secretary-General of the United Nations Interim Administration Mission in Kosovo, UN Doc S/2000/177/Add.2 (28 March 2000); and see Ingo Risck, ‘Some Practical Issues Concerning the Development of the Judicial System in Kosovo’ in Othman, above n 100, 61, 61-2.

[103] UNTAET Regulation No. 2000/15 on the Establishment of Panels With Exclusive Jurisdiction Over Serious Criminal Offences, s1.3, UNTAET/REG/2000/15 (6 June 2000), reprinted in Othman, above n 100, 231; and see Broomhall, above n 36, 103 n 48; Cassese, above n 83, 15-16; Mohamed Othman, ‘The Framework of Prosecutions and the Court System in East Timor’, in Othman, above n 100, 85, 90-1.

[104] UNTAET Regulation No 2001/25 on the Amendment of UNTAET Regulation No 2000/11 on the Organization of Courts in East Timor and UNTAET Regulation No 2000/30 on the Transitional Rules of Criminal Procedure, art 12.3, UNTAET/REG/2001/25 (14 September 2001).

[105] SC Res 1315, UN SCOR (Res & Dec), 55th sess, 4186th mtg, 108, UN Doc S/INF/56 (2000).

[106] Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, UN SCOR, 55th sess, UN Doc S/2000/915, Annex, 21 (4 October 2000). The Statute of the Special Court for Sierra Leone is annexed to the Report under the heading, ‘Enclosure’.

[107] (2002) 18 International Enforcement Law Reporter 106.

[108] Hassam B Jallow, ‘The Legal Framework of the Special Court for Sierra Leone’ in Othman, above n 100, 149, 154.

[109] As to the genocide in Cambodia in that period, see Ben Kiernan, ‘Historical and Political Background to the Conflict in Cambodia, 1945-2002' in New Approaches in International Criminal Justice, above n 100, 173, at 177-79.

[110] Ibid 191-2; and see Dominic McGoldrick, ‘Legal and Political Significance of a Permanent International Criminal Court’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004) 453, 454-5. See also the press statement of Hans Corel, cited in Subhash C Kashyap, ‘The Framework of the Prosecutions in Cambodia’ in Othman, above n 100, 189, 191.

[111] McGoldrick, above n 110, 455.

[112] See The Statute of the Iraqi Special Tribunal (2003)

<http://www.iraq-ist.org/en/about/statute.htm> at 27 October 2005.

[113] ICC Statute, Ninth Preambular Paragraph, UN Doc A/CONF 183/9 (1998).

[114] Draft Relationship Agreement between the Court and the United Nations, Prep Comm for the International Criminal Court, 10th sess, UN Doc PCNICC/2001/1/Add 1 (8 January 2002), approved by the Assembly of States Parties, 1st sess, September 2002 (ICC-ASP/1/3).

[115] Ibid arts 3, 5(2).

[116] Ibid art 3.

[117] Ibid art 5(1).

[118] Ibid art 5(2).

[119] Ibid arts 8-9.

[120] ICC Statute, art 13(b), UN Doc A/CONF 183/9 (1998).

[121] Ibid art 16.

[122] Prosecutor v Anto Furundžija, Case No IT-95-1-T (10 December 1998), [227].

[123] Universal Declaration of Human Rights, art 5, GA res 217A (III), UN Doc A/810, 71(1948) (‘UDHR’).

[124] Ibid art 7.

[125] Ibid art 9.

[126] Ibid art 10.

[127] Ibid art 11(1).

[128] Ibid art 11(2).

[129] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, arts 14-15, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

[130] See Erik Møse, ‘Impact of Human Rights Conventions on the ad hoc Tribunals’ in Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (2003) 179, 185-204.

[131] ‘Ordinary crime’ in this context denotes an offense under the criminal law of the national state other than the international crime with which the accused is being charged in the International Criminal Tribunal: for example, if the accused was convicted or acquitted in the national court of murder and is now being prosecuted in the International Criminal Tribunal for crimes against humanity of which the same act of murder constitutes part, then the plea of autrefois convict/acquit will not be upheld by the International Criminal Tribunal.

[132] Statute of the International Criminal Tribunal, art 10, contained in annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), reprinted in (1993) 32 Iinternational Legal Materials 1192 (‘ICTY Statute’); and see Statute of the International Tribunal for Rwanda, art. 9(2), SC Res 955, UN SCOR 49th sess, 3453rd mtg, UN Doc S/Res/955 (1994); reprinted in 33 International Legal Materials 1598 (1994) (‘ICTR Statute); and see Møse, above n 130, 203-4.

[133] ICTR Statute, art 9(1).

[134] ICTY Statute, art 13; ICTR Statute, art 12(1).

[135] ICTY Statute, art 20(1); ICTR Statute, art 19(1).

[136] ICTY Statute, art 20(2); ICTR Statute, art 19(2).

[137] ICTY Statute, art 20(3); ICTR Statute, art 19(3).

[138] ICTY Statute, art 20(4); ICTR Statute, art. 19(4); and see also ICTY Statute, art 21(2); ICTR Statute, art 20(2).

[139] ICTY Statute, art 21(3); ICTR Statute, art 20(3).

[140] ICTY Statute, art 25; ICTR Statute, art 24.

[141] ICTY Statute, art 26; ICTR Statute, art 25.

[142] ICTY Statute, art 21(4); ICTR Statute, art 20(4).

[143] UDHR, art 11(1); ICCPR, art 14(2); ICTY Statute, art 21(3); ICTR Statute, art 20(3).

[144] See Sadat, above n 44, 147, 215; Elias Bantekas, ‘Defences in International Criminal Law’, in Dominic McGoldrick, Peter Rowe, and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (2004), 263, 264-5, 275-6, 284.

[145] Prosecutor v Dragoljub Kunerać & others, Case No IT-96-23 & 23/1-T, [463] (22 February 2001).

[146] Prosecutor v Zejnil Delalić (the Celibici Case), Case No IT-96-21-T, [1172] (16 November 1998).

[147] ICC Statute, art 67(1)(i), UN Doc A/CONF 183/9 (1998).

[148] See in general Johan D van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 University of Miami International and Comparative Law Review 57.

[149] ICC Statute, art 30(1), UN Doc A/CONF 183/9 (1998).

[150] Sadat, above n 44, 210.

[151] There are a limited number of offences where liability can be founded on manifestations of fault other than intent and knowledge. See, eg, ICC Statute, art 28(a) (basing liability of a military commander on negligence) and art 28(b)(i) (basing liability of a superior other than a military commander on willful blindness), UN Doc A/CONF 183/9 (1998).

[152] Prosecutor v Zoran Kupreškić et al (Judgment), [821], Case No. IT-95-16-T (14 January 2000).

[153] ICC Statute, art 32(2), UN Doc A/CONF 183/9 (1998).

[154] Ibid art 31(1)(a).

[155] ICC Statute, Fourth Preambular Provision, UN Doc A/CONF 183/9 (1998).

[156] See in general, Johan D van der Vyver, The International Criminal Court — American Responses to the Rome Conference and the Role of the European Union (2003).

[157] John Bolton, ‘Courting Danger: What’s Wrong with the International Criminal Court’ (Winter 1998/99) 54 The National Interest 60, 71.

[158] SC Res 1593, UN SCOR, 60th sess, 5158th mtg, UN Doc S/Res/1593 (2005).

[159] Insofar as the crimes provisions influenced certain delegations to vote against adoption of the ICC Statute or to abstain, their concerns were not prompted by what went into the Statute but what was not included in the subject-matter definition of the ICC, for example international drug trafficking (Trinidad and Tobago) or the use of weapons of mass destruction (India, Mexico, and Sudan (speaking on behalf of the Arab Group of States)). The only exception concerns the war crime based on resettlement of populations in occupied territories (ICC Statute, art 8(2)(b)(viii), UN Doc A/CONF 183/9 (1998)) which prompted Israel’s negative vote. In proclaiming that this was not a customary-law crime, Israel had the support of the United States only.