Executive
Summary
The first forty years after Nuremberg was a period of slow progress in developing
international criminal law. There is no doubt that international criminal
law has developed in recent years. Indeed if international criminal law is
defined as the prosecution of individuals for ‘international crimes’
such as war crimes or Crimes Against Humanity then there was no such law for
most of the twentieth century. On the eve of the twentieth century attempts
to regulate warfare in The Hague Conference of 1899, and again in 1907, were
constrained by notions of State sovereignty. As the Nuremberg judges pointed
out in 1946, ‘The Hague Convention nowhere designates such practices
[methods of waging war] as criminal, nor is any sentence prescribed, nor any
mention made of a court to try and punish offenders.’(1)
The Nuremberg trials established that all of humanity would be guarded by
an international legal shield and that even a Head of State would be held
criminally responsible and punished for aggression and Crimes Against Humanity.
The right of humanitarian intervention to put a stop to Crimes Against Humanity
– even by a sovereign against his own citizens – gradually emerged
from the Nuremberg principles affirmed by the United Nations.
The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.
While the law limped lamely along, international crimes flourished. The horrors
of the twentieth century are many. Acts of mass violence have taken place
in so many countries and on so many occasions it is hard to comprehend. According
to some estimates, nearly 170 million civilians have been subjected to genocide,
war crimes and Crimes Against Humanity during the past century. The World
Wars lead the world community to pledge that “never again” would
anything similar occur. But the shocking acts of the Nazis were not isolated
incidents, which we have since consigned to history. Hundreds of thousands
and in some cases millions of people have been murdered in, among others,
Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines, the Congo,
Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina,
Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century.(2)
But what is possibly even sadder is that we, meaning the world community,
have witnessed these massacres passively and stood idle and inactive. The
result is that in almost every case in history, the dictator/president/head
of state/military/leader responsible for carrying out these atrocities –
despite in Nuremberg – has escaped punishment, justice and even censure.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia
and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War,
take action. Nations that had been unwilling to intervene to block the carnage
now recognized that some action was essential. For the first time since Nuremberg,
a new international criminal tribunal was quickly put in place on an ad hoc
basis by the UN Security Council. Under the impetus of shocked public demand,
it became possible for the UN Secretariat to draft the statues for the International
Criminal Tribunal for Yugoslavia in about 8 weeks – the same time it
had taken to agree upon the Charter to the International Military Tribunal
at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation
of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity
in Rwanda.
Up until the present the international community has been very reluctant to
enforce international criminal law. It has only been done a couple of times
in history, without doubt due to the specific circumstances and the political
climate at the time. The idea of establishing a permanent international criminal
court is not new though. Attempts in that direction were taken as nearly as
the end of World War I, but the international community never reached agreement
on the matter.
The ICC’s predecessors are primarily the Nuremberg and the Tokyo Tribunals
created by the victorious Allies after World War II. These tribunals have
been accused of being unfair and merely institutions for “victor’s
justice,” but nevertheless they did lay the groundwork for modern international
criminal law. They were the first tribunals where violators of international
law were held responsible for their crimes. They also recognized individual
accountability and rejected historically used defenses based on state sovereignty.
These principles of international law recognized in the Nuremberg Charter
and Judgments were later affirmed in a resolution by the UN General Assembly.
The International Law Commission (ILC), a body of distinguished legal experts
acting at the request of the General Assembly, completed its draft statue
for a permanent international criminal court in 1994. In 1996, the ILC finally
completed its draft code of crimes against the peace and security of mankind.
This new momentum reflected widespread agreement that an international criminal
court, with fair trial for the accused, should be created as an essential
component of a just world order under law.
After years of work and struggle, the promise of an International Criminal
Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity
has become a reality. In 1998, the statute of the Court was approved in Rome
and it has entered into force the first of July of 2002, when the required
number of country ratifications was attained. The Court holds a promise of
putting an end to the impunity that reigns today for human rights violators
and bringing us a more just and more humane world.
Since the capture of Saddam Hussein in December 2003, there has been intense
speculation as to the type of court that will be used to try the former Iraqi
president. It now appears that Hussein will be tried by the Iraqi Special
Tribunal that was established late in 2003. This Tribunal, which is yet to
commence operation, has jurisdiction over the crimes of genocide, war crimes
and Crimes Against Humanity committed since 1968. Although it would seem desirable
that the former Iraqi dictator be tried by an Iraqi court, it is not yet clear
whether the Iraqi Special Tribunal and the Iraqi legal profession have sufficient
resources and expertise to conduct a trial of this complexity. Questions also
remain as to whether the trial and sentencing of Hussein will conform with
international human rights standards and whether it will serve the ends of
justice and reconciliation in Iraq.
TABLE OF CONTENTS
1. International Criminal Law in the Past
2. Tribunal Milestones
3. The Agreement of London
3.1 Copy of the Agreement
4. The Nuremberg Tribunals
4.1 The International Military Tribunal (IMT)
4.2 Principles of the Nuremberg Tribunal, 1950 NO. 82
4.3 Twelve Subsequent Trials at Nuremberg
5. The Influence of Nuremberg
5.1 Influence on the Development of International Criminal Law
5.1.1 The United Nations
5.1.1.1 Codification of Law via the United
Nations
5.1.2 The Geneva Conventions
5.2 War Crimes Trials after Nuremberg
5.2.1 Tokyo
5.2.2 Yugoslavia
5.2.3 Rwanda
5.3 The International Criminal Court (ICC)
5.3.1 Historical Introduction
6. The Case of Saddam Hussein
6.1 A Brief Background to the Iraqi Crises
6.2 What Crimes Is Saddam Hussein Accused Of?
6.3 What Kind of Trials?
7. Conclusion
1.
INTERNATIONAL CRIMINAL LAW IN THE PAST
International Criminal Law as a concept has exited between nations –
states for centuries. Its function is to regulate and prevent criminal international
violations, thereby securing and maintaining international legal order and
peace. Historically, for activities to be considered international crimes
they had to violate domestic regulations. Malekian writes: ”[i}t may
be possible to conclude that the basis of international criminal law is the
evolution and enforcement of the concept of domestic criminal law. Criminals
were extradited to a large extent in order that domestic criminal law be effectively
implemented.” This cooperation resulted in, e.g., the conclusion of
numerous bilateral and multilateral treaties for the extradition of criminals.
(3)
International humanitarian law took its modern form after World War II in
order to create a deterrent to the repeat of the horrors that took place in
the trenches and concentration camps. Important conventions were agreed on
including the European convention on Human Rights (4), the Genocide Convention
(5), the Universal Declaration of Human Rights (6)and the four Geneva Conventions
and Additional Protocols (7) (that protect the civilians and victims of war).
By including criminal provisions and obligations for nations these also gave
strong notions of a development in international criminal law.
War and law have had a constant relationship between each other ever since
the existence of conflict as a collective phenomenon. The regulation of the
state of war, whether stemming from tradition, custom, certain codes of conduct
and, ultimately, law, has evolved throughout the centuries together with the
notion of war.
The idea of a “Crime of War,” or war crime, is not new to the
modern legal vocabulary. Unorthodox practices during a war have been branded
as war crimes in many scenarios of conflict. However, these war crimes were
not in themselves punishable in any international court (mainly due to the
practical non-existence of such legal apparatus before the United Nations)
and were very much a notion without a consequence, a general concept floating
above the aftermath of wars, and not affecting individuals as such but rather
relying on the concept of state responsibility. It is only since the development
of a doctrine of human rights, of fundamental, documented universal principles,
that such crimes have materialized into a legal cast due to the development
of the notion of “Crimes Against Humanity” and its derived breaches.
The concept of “Crimes Against Humanity” has been a product of
very recent historical, political and social developments which has brought
war crimes under a different light in international law, and very much under
the scope of Human Rights, which have impregnated the law of war as an international,
codified phenomenon in many ways. As a provision, it was the initial step
that began a whole new approach from part of the international community towards
certain abuses against civilians during periods of war and also during peacetime.
Certain practices became theoretically “illegal” in a very broad
sense within the international community, criminalizing governments, collectives
and individuals, whether military or civilian, and covering the commission
of crimes both in an individual basis as well as in a collective sense. Conventions
have arisen after the appearance of this idea, as well as resolutions and
other relevant legislation emanating from international bodies and organisms
(mainly the UN). The ultimate reason for these provisions to arise, in theoretical
terms and laying aside political considerations, has been the protection of
the human being as an individual, regardless of geographical, political or
social factors and circumstances, and hence has become a “Human Right,”
so to say, in its own right.
Crimes Against Humanity as a new principle saw its birth after the Second
World War, as a result of the atrocities committee by the Nazi forces before
and during the armed conflict. The establishment of the United Nations in
1945 was in a way the embodiment of the generalized fear for those atrocities
ever being committed again, and this institution had a major role in the development
of legal doctrines involving concepts such as Crimes Against Humanity, appearing
for the first time in a legal and a conceptual form before the Nuremberg Trial
in 1945, during the London Agreement of 1945 and its annexed charter setting
the grounds for the establishment of a military tribunal.
2. TRIBUNAL MILESTONES
1907
Fourth Hague Convention is held in The Hague, the Netherlands. The convention
is the first international agreement outlining the basic rules for land warfare.
Among the provisions are prohibitions on mistreating prisoners and protecting
the lives and property of civilians.
1945
At the end of World War II, the victorious Allies form the International Military
Tribunal to try Nazi German leaders on war crimes charges. Of the 22 men tried
by the tribunal, based in Nuremberg, Germany, 19 are convicted.
1946
Allies set up a tribunal in Tokyo to conduct war crimes trials involving 28
Japanese defendants. The defendants face the same charges as those in Nuremberg
– Crimes Against Humanity and waging aggressive war.
1948
United Nations General Assembly approves the Convention on the Prevention
and Punishment of the Crime of Genocide, one of the so-called Geneva Conventions.
The agreement specifies that religious or racial genocide is an international
crime, and that those who incite genocide or participate in it are to be punished.
The following year, diplomats from around the world adopt four new conventions
that strengthen the rights during wartime of civilians and prisoners of war.
War crimes are defined as offenses that represent “grave breaches”
of the convention.
1950
U.N. International Law Commission unveils the seven Nuremberg Principles.
The basic premise of the principles is that no accused war criminal in any
place or time is above the law.
1992
Bosnia-Herzegovina, one of the remaining Yugoslav republics, declares independence.
A three-sided civil war breaks out among Bosnia’s Moslems, Croats and
Serbs. Serbs initiate a policy of “ethnic cleansing,” or forcibly
removing people from their homes in an effort to create ethnically pure regions,
and detain many non-Serbs in concentration camps.
1993
The U.N. Security Council agrees to establish the International Criminal Tribunal
for the former Yugoslavia (ICTY), to be based in The Hague, to try war crimes
cases.
1994
Inter-ethnic strife explodes in Rwanda. More than 500,000 people, most of
them members of the Tutsi minority, are massacred by the Hutu majority over
a four-month period. In November, the Security Council agrees to establish
the International Criminal Tribunal in Rwanda (ICTR) in Arusha, Tanzania.
1995
A cease-fire is negotiated in Bosnia in October, and combatants sign a peace
treaty, in Dayton, Ohio. Troops from the North Atlantic Treaty Organization
(NATO) begin patrolling in Bosnia in December.
1996
The ICTY imposes its first sentence on Drazen Edemovic, a Bosnian Croat who
served in the Bosnia Serb army. Edemovic pleads guilty, so he is sentenced
without a trial to ten years in prison.
1997
In May, the first full-length ICTY trial concludes with the conviction of
Bosnian Serb Dusan Tadic on eleven charges of war crimes.
1998
After fifty years of discussion and documentation on the need for an international
criminal court, the Rome Statute of the International Criminal Court was adopted
on July 17, 1998.
1998
Augusto Pinochet, the former Chilean dictator, was arrested by British authorities.
He was extradited on charges of genocide, torture, and other crimes during
his rule in the 1970s – 80s.
1999
Slobodan Milosevic, Milan Milutinovic, Vlajikovic, and Nikola Sainovic were
indicted by The Hague.
2002
The ICC entered into force on July 1, 2002, establishing “an independent
permanent International Criminal Court in relationship with the United Nations
system, with jurisdiction over the most serious crimes of concern to the international
community as a whole.”
2003
U.S.-led military coalition ousts Saddam Hussein from power. He is captured
on December 13, 2003.
3. THE AGREEMENT OF LONDON
Robert H. Jackson made a preliminary visit to London in late May 1945 where
he conferred with Foreign Minister, Anthony Eden, and British Attorney General,
David Maxwell Fyfe. These meetings ultimately helped to show that there was
no significant difference between the American and British goals for the trials.
However, before meeting with the British the American delegation felt that
they would have a difficult time in convincing opponents that the American
plan for holding a trial, rather than executing the war criminals, would be
the best option. They expected to have the greatest difficulty with the British
because they would naturally want to assume the leadership role in the trial.
On Monday, June 18, 1945, Jackson and seventeen members of his staff, including
Major General William J. Donovan, the director of the O.S.S., and Ensign William
E. Jackson, Justice Jackson’s son, departed to begin negotiations for
a charter with the British, French, and Russians in London. On June 21 representatives
from the United States and Britain met on an informal basis to exchange information.
The representative from the British Foreign Office, Sir Basil Newton, informed
the American delegation that the government had accepted the invitation to
the conference and would arrive on June 25. The British and Americans agreed
that the trial should be held on the Continent, probably in Munich but Justice
Jackson pointed out that the location would depend on availability of the
facilities. At a second meeting on June 24 Sir Basil Newton informed both
delegations that the Russians had accepted the invitation but had asked for
the first official meeting to be delayed until June 26. Throughout the negotiations
the Americans and the Russians would almost continually be at odds with each
other.
The British delegation consisted of Sir David Maxwell Fyfe, Sir Thomas Barnes,
the Treasurer-Solicitor and Patrick Dean, of the British Foreign Office. The
French delegation consisted of Judge Robert Falco and Professor André
Gros. General I.T. Nikitchenko and Professor Trainin made up the Russian delegation.
The Anglo-American system of law differed considerably from the continental
system that the French and the Russians used. The first point of contention
was over the function of the indictment. In Anglo-American law this is the
statement of charges against a criminal to inform him of the crime he is being
charged with. In the Soviet system the indictment includes all of the evidence
that will be utilized during the trial. In this case, the Americans won. A
second point of disagreement between the Americans and the Russians was whether
organizations, such as the SS and the Gestapo, could be tried as criminal
entities. The Russians said no and the Americans said yes. Giving the Americans
the responsibility for proving this portion of the case solved this problem.
Conflicts also arose in regard to the definition of international law and
what constituted both international law and the laws of a sovereign nation.
The negotiating countries faced many disagreements of this nature. Adjourning
the conference, preparing new amendments and then debating these amendments
at the next session helped to solve each problem but on many major points
of contention the American delegation overrode opposition from the other nations.
Throughout the negotiations Justice Jackson attempted to keep an open mind,
which probably eased tensions, but the Agreement of London basically created
a system that the Americans approved of and the other nations went along with.
The negotiators ran into many points of disagreement but in the end, Justice
Jackson and his British, French and Russian counterparts were able to overcome
differences in judicial practice to form the tribunal.
On August 8, 1945, the participating nations gathered to sign the Agreement
and Charter for the Prosecution and Punishment of Major War Criminals of the
European Axis, or the Agreement of London. The process of creating this charter
had taken two months of negotiation but succeeded in establishing a system
that all four nations would accept as the dispensing justice.
The final London Agreement created the system on which the surviving Nazi
leaders and Nazi criminal organizations would be tried. The statute drew up
four counts of crimes for which the German leadership would be tried. The
first count involved conspiracy – conspiring to engage in the other
three counts. Count two was “crimes against peace” – the
actual planning, preparing, and waging of aggressive war. That count was generally
interpreted as criminalizing the waging of war to alter the status quo. Thus,
the Germans could not use the unfairness of the Versailles Treaty to justify
making war to bring about is revision.
The third count was “war crimes” – a category that included
killing and mistreating soldiers and civilians in ways not justified by military
necessity. Count four consisted of “Crimes Against Humanity,”
which was a new idea, dealing with inhuman actions committed against civilians.
Included in count four was the mass murder of Jews.
The London Statute called for the indictment of the major war criminals, and
after much debate, the IMT came up with a list of 24 names, 22 of whom would,
in the event, be tried. Among those listed were Herman Goering, Joachim von
Ribbenstrop, Admiral Karl Donitz, General Alfred Jodl, Alfred Rosenberg, Albert
Speer, Ernst Kaltenbrunner, Hans Frank, and Julius Streicher. Martin Bormann,
who is now believed to have died prior to the indictment, would be tried in
absentia. Also indicted were the leading organizations of the third Reich
– the Reich Cabinet, the Nazi Party leadership, the SS, the Gestapo,
the General Staff, and the SA.
Upon signing the London Agreement creating the basis for and existence of
the International Military Tribunal, Jackson stated: “For the first
time, four of the most powerful nations [U.S., France, Great Britain, Soviet
Union] have agreed not only upon the principle of liability for war crimes
of persecution, but also upon the principle of individual responsibility for
the crime of attacking international peace.” (8)
3.1 Copy of the Agreement
London Agreement of August 8, 1945
Agreement of the government of the United States of America, the Provisional
Government of the French Republic, the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the Union of Soviet
Socialist Republics for the Prosecution and Punishment of the Major War Criminals
of the European Axis
WHEREAS the United Nations have from time to time made declarations of their
intention that War Criminals shall be brought to justice;
AND WHEREAS the Moscow Declaration of the 30th October 1943 on German atrocities
in Occupied Europe stated that those German officers and men and members of
the Nazi Party who have been responsible for or have taken a consenting part
in atrocities and crimes will be sent back to the countries in which their
abominable deeds were done in order that they may be judged and punished according
to the laws of these liberated countries and of the free governments that
will be created therein;
AND WHEREAS this Declaration was stated to be without prejudice to the case
of major criminals whose offenses have no particular geographical location
and who will be punished by the joint decision of the Governments of the Allies;
NOW THEREFORE the Government of the United States of America, the Provisional
Government of the French Republic, the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the Union of Soviet
Socialist Republics (hereinafter called “the Signatories”) acting
in the interests of all the United Nations and by their representatives duly
authorized thereto have included this Agreement.
Article 1.
There shall be established after consultation with the Control Council for
Germany an International Military Tribunal for the trial of war criminals
whose offenses have no particular geographical location whether they be accused
individually or in their capacity as members of the organizations or groups
or in both capacities.
Article 2.
The constitution, jurisdiction and functions of the International Military
Tribunal shall be those set in the Charter annexed to this Agreement, which
Charter shall form an integral part of this Agreement.
Article 3.
Each of the signatories shall take the necessary steps to make available for
the investigation of the charges and trial the major war criminals detained
by them who are to be tried by the International Military Tribunal. The signatories
shall also use their best endeavors to make available for investigation of
the charges against and the trial before the International Military Tribunal
such of the major war criminals as are not in the territories of any of the
signatories.
Article 4.
Nothing in this Agreement shall prejudice the provisions established by the
Moscow Declaration concerning the return of war criminals to the countries
where they committed their crimes.
Article 5.
Any government of the United Nations may adhere to this agreement by notice
given through the diplomatic channel to the Government of the United Kingdom,
who shall inform the other signatory and adhering governments of each such
adherence.
Article 6.
Nothing in this Agreement shall prejudice the jurisdiction or the powers of
any national or occupation court established or to be established in any allied
territory or in Germany for the trial of war criminals.
Article 7.
This Agreement shall come into force on the day of signature and shall remain
in force for the period of one year and shall continue thereafter, subject
to the right of any signatory to give, through the diplomatic channel, one
month’s notice of intentions to terminate it. Such termination shall
not prejudice any proceedings already taken or any findings already made in
pursuance of this Agreement.
IN WITNESS WHEREOF the Undersigned have signed the present Agreement.
DONE in quadruplicate in London this 8th day of August 1945 each in English,
French, and Russian, and each text to have equal authenticity.
For the Government of the United States of America
[signed] ROBERT H. JACKSON
For the Provisional Government of the French Republic
[signed] ROBERT FALCO
For The Government of the United Kingdom of Great Britain and Northern Ireland
{signed] JOWITT C.
For the Government of the Union of Soviet Socialist Republics
[signed] I.T. NIKITCHENKO
[signed] A.N. TRAININ
4. THE NUREMBERG TRIBUNALS
4.1 the International Military Tribunal (IMT)
Three months after the end of World War II the United States, Great Britain,
the Soviet Union and France, signed an agreement creating the International
Military Tribunal (IMT), known as the “Nuremberg Tribunal,” for
the Prosecution and Punishment of the Major War Criminals of the European
Axis. Only four categories of crimes were to be punished:
1. Conspiracy (conspiring to engage in the other three counts),
2. Crimes Against Peace (planning, preparing and waging aggressive war),
3. War Crimes (condemned in Hague Conventions of 1899 and 1907) and
4. Crimes Against Humanity (such as genocide), which by their magnitude, shock
the conscience of humankind.
Each provision of the 30-articles was carefully considered in order to reach
an accord that seemed fair and acceptable to the four partners representing
the United States, Great Britain, France and the Soviet Union. On the eight
day of August 1945, the Charter was signed and the first International Military
Tribunal in the history of mankind was thereby inaugurated.
A Chief Prosecutor had been appointed for each of the four victorious powers.
Designated by President Harry S. Truman as U.S. representative and chief counsel
at the IMT Supreme Court Justice Robert H. Jackson planned and organized the
trial procedure and served as Chief Prosecutor for the USA. He set the tone
and goals: “That four great nations, flushed with victory and stung
with injury stay the hand of vengeance and voluntarily submit their captive
enemies to the judgment of the law is one of the most significant tributes
that Power has ever paid to Reason…We must never forget that the record
on which we judge these defendants today is the record on which history will
judge us tomorrow. To pass these defendants a poisoned chalice is to put it
to our own lips as well. We must summon such detachment and intellectual integrity
to our task that this trial will commend itself to posterity as fulfilling
humanity’s aspirations to do justice.” (9)
From November 20, 1945, until August 31, 1946, all sessions of the tribunal
were held in Nuremberg under the presidency of Lord Justice Geoffrey Lawrence.
In its comprehensive judgment, the Tribunal traced the history of international
criminal law and the growing recognition in treaties, conventions and declarations,
that aggressive war was an illegal act for which even a head of state could
be brought to account. There was no longer anything ex facto about such a
charge. Leaders who deliberately attacked neighboring states without cause
must have know that their deeds were prohibited and it would be unjust to
allow them to escape merely because no one had been charged with that offense
in the past. “The law is not static” said the Tribunal, “but
by continued adaptation follows the needs of a changing world.” Aggressive
war was condemned as “the supreme international crime.” (10)
The evidence, based in large part on captured German records, was overwhelming
that crimes of the greatest cruelty and horror had been systematically committed
pursuant to official policy. The IMT, citing The Hague Conventions and prevailing
customs of civilized nations, rejected Germany’s argument that rules
of war had become obsolete and that “total war” was legally permissible.
Regarding Crimes Against Humanity (such as extermination and enslavement of
civilian populations on political, racial or religious grounds), the law took
another step forward on behalf of humankind - a step that was long overdue.
The findings and judgment of the IMT helped to usher in a new era for the
legal protection of fundamental human rights.
The lead IMT defendant, Field Marshal Hermann Goering, after he was sentenced
to be hanged, was sentenced to death in absentia. Other defendants were hanged
or sentenced to long prison terms. Some were acquitted and released. The Charter
was adhered to by nineteen other nations and both Charter and Judgment of
the IMT were unanimously affirmed by the first General Assembly of the United
Nations. They have become expressions of binding common international law.
4.2 Principles of the Nuremberg Tribunal, 1950 NO. 82
The Definition of what constitutes a war crime is described by the Nuremberg
Principles, a document that came out of this trial.
Principles of International Law Recognized in the Charter of the Nuremberg
Tribunal and in the Judgment of the Tribunal. Adopted by the International
Law Commission of the United Nations, 1950. (11)
Under General assembly Resolution 177 (II), paragraph (a), the International
Law Commission was directed to “formulate the principles of international
law recognized in the Charter of the Nuremberg Tribunal and in the judgment
of the Tribunal.” Since the Nuremberg Principles had been affirmed by
the General Assembly, the task entrusted to the Commission was not to express
any appreciation of these principles as principles of international law but
merely to formulate them. The text below was adopted by the Commission at
its second session. The report of the commission also contains commentaries
on the principles. (12)
Principle I
Any person who commits an act which constitutes a crime under international
law is responsible therefore and liable to punishment.
Principle II
The fact that internal law does not impose a penalty for an act which constitutes
a crime under international law does not relieve the person who committed
the act from responsibility under international law.
Principles III
The fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official
does not relieve him from responsibility under international law.
Principle IV
The fact that a person acted pursuant to order of his government or of a superior
does not relieve him from responsibility under international law, provided
a moral choice was in fact possible to him.
Principle V
Any person charged with a crime under international law has the right to a
fair trial on the facts and law.
Principle VI
The crimes hereinafter set out are punishable as crimes under international
law:
1. Crimes Against Peace:
a. Planning, preparation, initiation or waging of a war of aggression or a
war in violation of international treaties, agreements or assurances;
2. War Crimes:
Violations of the laws or customs of war which include, but are not limited
to, murder, ill-treatment or deportation to slave-labor or for any other purpose
of civilian population of or in occupied territory, murder or ill-treatment
of prisoners of war, of persons on the seas, killing of hostages, plunder
of public or private property, wanton destruction of cities, towns, or villages,
or devastation not justified by military necessity.
3. Crimes Against Humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done
against any civilian population, or persecutions on political, racial or religious
grounds, when such acts are done or such persecutions are carried on in execution
of or in connection with any crime against peace or any war crime.
Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime
against humanity as set forth in Principles VI is a crime under international
law.
4.3 Twelve Subsequent Trials at Nuremberg
Contrary to the original plans, no subsequent international tribunal took
place because the four Allies were unable to agree on joint subsequent trials.
As a compromise, the quadripartite Control Council that governed Germany enacted
a law authorizing each of the four Powers to carry on with such prosecution
in its own zone of occupation as it might see fit. From 1947-1949, twelve
U.S. military trials involving politicians, military personnel, businessmen
and industrialists, doctors, lawyers, members of the Foreign Office, etc.,
were held in Nuremberg. Similar trials were conducted in the French, British
and Soviet zones of occupation.
5. THE INFLUENCE OF NUREMBERG
5.1 Influence on the Development of International Criminal Law
5.1.1 The United Nations
The Nuremberg Principles and the conception of Crimes Against Humanity did
not only affect the formation of International War Crimes Tribunals. Its impact
caused several effects beyond creating a mere term to be used in military
tribunals and political purposes. One of these effects was the United Nations
Resolution 96 (1), drawn up on the 11th of December 1946, stating that “…genocide
is a crime under international law, contrary to the spirit and aims of the
United Nations and condemned by the civilized world.” Deriving from
the Nuremberg concept of Crimes Against Humanity, and the crimes perpetrated
by the Nazis in their total war, this declaration was finally embodied two
years later in the Convention on the Prevention and Punishment of the Crime
of Genocide of 1948. This convention criminalized genocide and related activities
in the international sphere, and the convention itself is heavily influenced
by many of the Nuremberg principles. It also extended this crime against humanity
beyond periods of war and the specific scenario of the Second World War. The
Genocide Convention was not, per se, a major advancement in the upholding
of international human rights, especially considering its provision in Articles
V and VI, which provide that states should regulate their legal systems accordingly
to criminalize such acts in the domestic sphere, and that those found guilty
of the crime of genocide should be tried in the courts of the country where
the acts were committed in absence of a competent international tribunal with
consented jurisdiction over the matter, and many academics have shown to be
quite skeptical about its practical possibilities. However, on the theoretical
arena the Convention Against Genocide is a development from the precepts set
in Nuremberg, in such a sudden and ad hoc manner, especially where codification
of Crimes Against Humanity is concerned. The Convention takes the main aspect
of these crimes, extirpates it from a broad definition, and narrows it down
into one separate and codified principle. Genocide as defined in Articles
II and III practically cover all those measures taken by the Nazis during
their persecution and brutal extermination of certain social, religious and
cultural groups: those same atrocities which the members of the Court dubbed
as Crimes Against Humanity took concrete form in this Convention.
In 1948 the United Nations issued the Universal Declaration of Human Rights,
the first legal document to recognize such rights as binding, and creating
the notion of Human Rights as we understand it today. The influence which
Nuremberg and to a certain extent the Tokyo trials had upon the formulation
and conception of such a declaration cannot be understated. Nuremberg had
for the first time in international law traced a definite distinction between
jus ad bello a doctrine concerned exclusively on the conduct in warfare, and
jus ad bellum, which concerns itself with the justice or legality of the waging
of war. By introducing the new principles of Crimes Against Peace and Crimes
Against Humanity, Nuremberg effectively fathered a globalized concern towards
certain attitudes in war and, by extension, for the rights of all human beings
suffering the effects of certain modes of violence. This supposed impact on
the Universal Declaration has been backed up by the fact that some academics
have stated that the UN Charter itself was almost a product of Nuremberg and
the issues raised before, during and after the Trial.
5.1.1.1 Codification of Law via the United Nations
The first General Assembly of the new U.N. unanimously affirmed the legal
principles laid down in the Charter and Judgment of the IMT: aggression, war
crimes and Crimes Against Humanity were punishable crimes for which even a
head of state could be held to account. Superior orders would be no excuse
but could be considered in mitigation. Inspired by the horrors revealed at
the Nuremberg Trials, the Assembly passed another resolution calling for a
convention to prohibit and punish the crime of genocide – by such a
tribunal as might later prove acceptable to the parties. Experts were soon
designated to draw up a Code of Crimes Against the Peace and Security of Mankind
and to draft statutes for an international criminal court to punish such offenses.
5.1.2 The Geneva Conventions
The U.N., which was founded in 1945 from the ashes of World War II, took the
lead in the late 1940s in defining war crimes and trying to establish guidelines
designed to prevent such horrors in the future. In December 1948, the U.N.
General Assembly passes a resolution called the Convention on the Prevention
and Punishment and Punishment of the Crime of Genocide. The resolution was
one of the so-called Geneva conventions, named after the Swiss city where
they were signed.
In the 1948 convention, genocide was defined as certain acts “committed
with the intent to destroy, in whole or in part, a national, ethnical, racial
or religious group, as such.” Article I of the convention stated, “The
contracting parties confirm that genocide, whether committed in time of peace
or in time of war, is a crime under international law which they undertake
to prevent and to punish.” Article 3 read in part, “The following
acts shall be punishable: genocide; conspiracy to commit genocide; direct
and public incitement to commit genocide; attempt to commit genocide; complicity
in genocide.” The list of punishable crimes was derived directly from
the Nuremberg prosecutors’ charges.
The Fourth Geneva Convention, agreed to by the General Assembly in 1949, also
dealt with war crimes. Known formally as the Convention on the Protection
of Civilian Persons in Time of War, it required U.N. nations to enact laws
that made it illegal to commit or order others to commit “grave breaches”
of the Convention, and to actively seek to bring such offenders to trial.
The grave breaches, which constitute the heart of the contemporary definition
and understanding of war crimes, include various acts committed against protected
persons and property, including “willful killing, torture or inhumane
treatment…willfully causing great suffering or serious injury to body
or health, unlawful deportation or transfer or unlawful confinement of a protected
person.”
5.2 War Crimes Trials After Nuremberg
The International Military Tribunal in particular, and the twelve subsequent
trials at Nuremberg, laid the basic foundations for the later development
of international criminal law.
5.2.1 Tokyo
During the same year as Nuremberg, the Tokyo Trials were set up by the United
States in order to prosecute and bring to justice several Japanese officials
involved in war crimes and Crimes Against Humanity. During the Tokyo trials
extensive reference was made to Nuremberg and its definition of Crimes Against
Humanity. Accordingly to several academics, Article 6 C of the Charter drafted
in the London Agreement was in a way formulated exclusively with the thought
of prosecuting the Nazi leaders held responsible for the atrocities committed
against the Jewish people and other targeted groups both inside and outside
Germany. The Tokyo trials were not only a proof that the Nuremberg Principles
allowed a margin of operation for other cases, but also presented the initiation
of a series of tribunals which would uphold, under the specific circumstances
stated by the treaty (ie, “…. committed against any civilian population,
before or during the war, or prosecutions on political, racial or religious
grounds in execution of or in connection with any crime within the jurisdiction
of the Tribunal.”), the same possibility of prosecution for Crimes Against
Humanity. Tokyo was the first stepping-stone from Nuremberg, which would lead
to the universalization of Crimes Against Humanity and its relevant derivations.
5.2.2 Yugoslavia
In the early 1990s, the Cold War had ended, and most formerly Communist nations
were beginning the difficult transition to democracy and capitalism. The end
of tight Communist control in Eastern Europe also unleashed long-suppressed
nationalism among ethnic groups.
In 1991, two of Yugoslavia’s four republics, Slovenia and Croatia, declared
independence. Ethnic-based conflict broke out almost immediately, prompted
largely by the resistance to independence of large Serb minorities in Croatia.
In 1992, the Security Council established a Commission of Experts to investigate
evidence of violations of humanitarian law in the territory of the former
Yugoslavia.
The accounts of atrocities in the early years of the Bosnian Civil War prompted
the creation of the first international war-crimes court since Nuremberg and
Tokyo. In May 1993, the U.N. Security Council formally established the ICTY
(Res. 827). The new court, with its seat in The Hague was given responsibility
for prosecuting crimes that violated the Geneva Conventions, including genocide
and Crimes Against Humanity. For the first time ever, rape was recognized
as a crime against humanity when it was included in the ICTY’s mandate.
The ICTY’s first indictment was handed down in November 1994. As of
September 1997, a total of 78 individuals have been publicly indicted by the
Court. Fifty-seven of those indicted are Serbs, 18 are Croats and 3 are Moslems.
The court handed down its first sentence in November 1996, sentencing Drazen
Edemovic, a Croat who served in the Bosnian Serb Army, to ten years in prison
for his role in the Srebrenica massacre.
5.2.3 Rwanda
In 1994, brutal civil war erupted between rival ethnic tribes in Rwanda. There
were reports that perhaps half a million Tutsi and their supporters were being
savagely massacred by the dominant Hutu government. The Security Council sent
a small commission to investigate (Res. 935, July 1994) and it soon reported
back that the crimes being committed were horrendous. United Nations forces
were dispatched to Rwanda to help restore order to that battered country.
The Statute for the International Criminal Tribunal for Rwanda was adopted
at the end of 1994 (Res. 955). It followed closely the general outlines of
the ICTFY but was more explicit in assuring that even in a civil conflict
violations of the rules of war would not be tolerated. The Court was authorized
to prosecute for genocide, Crimes Against Humanity and war crimes regardless
of whether the strife was called an international conflict or a civil war.
Because of the nature of the internal conflict, the inclusion of aggression
as a crime within the jurisdiction of the court was not relevant. Only the
specified crimes committed within the defined area during the year 1994 could
be dealt with. The Rwanda Court was thus a special tribunal of very limited
jurisdiction.
5.3 The International Criminal Court (ICC)
After years of work and struggle, the promise of an International Criminal
Court with jurisdiction to try genocide, war Crimes Against Humanity has become
a reality. In 1998, the statute of the Court was approved in Rome and it has
entered into force the first of July 2002, when the required number of country
ratifications was attained. The court holds a promise of putting an end to
the impunity that reigns today for human rights violators and bringing us
a more just and more humane world.
5.3.1 Historical Introduction
The Nuremberg and Tokyo trials were founded on the wish that atrocities similar
to those that had taken place during the Second World War would “never
again” recur. In 1948 the U.N. General Assembly adopted a resolution
reciting that “[i]n the course of development of the international community,
there will be a an increasing need of an international judicial organ for
the trial of certain crimes under international law.” (13) Initiatives
to create such an institution were taken as early as 1937 by the League of
Nations that formulated a convention for the establishment of an international
criminal court, but the Cold War led to deadlock in the international community
and the matter fell into oblivion. Sadly we realize that the cruelties during
World War II were not isolated incidents. Genocide has since Nuremberg taken
place in Uganda, in Cambodia, in Rwanda, in Somalia, in Bosnia, and the list
could go on.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia
and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War,
take action. In response the Security Council, basing its decisions on Chapter
VII of the UN Charter, commissioned two ad hoc international criminal tribunals
(the ICTY for the former Yugoslavia and the ICTR for Rwanda) to investigate
alleged violations and to bring the perpetrators to justice. Without doubt,
these courts have significantly contributed to the development of international
criminal law, but they have not been entirely successful. Their biggest problems
have been the lack of formal means of enforcement to seize indicted criminals.
After the Cold War tensions had dissolved the
world community showed a renewed interest in creating an international criminal
court. On December 4, 1989, the United Nations General Assembly adopted a
resolution that instructed the International Law Commission (the ILC) to study
the feasibility of the creation of a permanent ICC. Four years later, and
obviously pleased with the ILC’s report, the General Assembly called
on the Commission to commence the process of drafting a statute for the court.
This statute was presented in 1994. The following year a preparatory committee
was established to further review the substantive issues regarding the creation
of a court based on the ILC report and statute. The aim was to prepare a convention
for the ICC that had the prospects of being widely accepted globally.
The International Criminal Court (ICC) was established by the Rome Statute
of the International Criminal Court on 17 July 1998, when 120 states participating
in the “United Nations Diplomatic Conference of Plenipotentiaries on
the Establishment of an International Court” adopted the statute. This
is the first ever permanent, treaty-based, international criminal court established
to promote the rule of law and ensure that the gravest international crimes
do not go unpunished.
The statute sets out the Court’s jurisdiction, structure and functions
and it provides for its entry into force 60 days after 60 states have ratified
or acceded to it. The 60th instrument of ratification was deposited with the
Secretary General on 11 April 2002, with ten countries simultaneously deposited
their instruments of ratification. Accordingly, the statute entered into force
1 July 2002. Anyone who commits any of the crimes under the statute after
this date will be liable for prosecution by the Court. (14)
6. THE CASE OF SADDAM HUSSEIN
6.1 A Brief Background to the Iraqi Crises
When Iraq in August 1990, led by its dictator Saddam Hussein, committed brazen
aggression by attacking its friendly neighboring Arab state of Kuwait, the
sleeping giant of international law began to stir. The Security Council of
the Untied Nations responded promptly with a barrage of resolutions followed
by action under Article VII of the UN Charter authorizing the use of military
force to expel Iraq and restore peace. An allied coalition led by the United
States immediately began to bombard Iraqi troops.
After Iraq was routed, the Council imposed a host of new conditions and sanctions
designed to secure peace in the area in the future. What was glaringly absent
was U.N.-authorized action to bring to justice those who were responsible
for the aggression, the Crimes Against Humanity and the clear violations of
the laws of war that accompanied Iraq’s unlawful invasions of Kuwait.
Instead of following the Nuremberg principle of punishing only the guilty
after a fair trial, economic sanctions were imposed on the civilian population
of Iraq – many of whom might have disagreed with the aggressive policies
of their government. Saddam Hussein, Iraq’s former despotic leader,
remained at the head of the government and thumbed his nose at the world community’s
efforts to curb his production of weapons of mass destruction. The lessons
of Nuremberg seemed to have been forgotten. (15)
6.2 What Crimes are Saddam Hussein Accused Of?
They cover acts between July 17, 1968, when Hussein and other Ba’ath
Party members took power in a coup, and May 1, 2003, when President Bush declared
the end of major combat operations. Those years saw hundreds of deaths, the
use of chemical weapons against Iranians and Kurds, the invasion of Kuwait
in 1991, the massacre of Sh’ites and Marsh Arabs who rose up after the
first Gulf War, and alleged systematic killings, rapes and tortures.
6.3 What Kind of Trial?
Since the capture of Saddam Hussein in December 2003, there has been intense
speculation as to the type of court that will be used to try the former Iraqi
president. It now appears that Hussein will be tried by the Iraqi Special
Tribunal that was established in 2003. This Tribunal, which is yet to commence
operation, has jurisdiction over crimes of genocide, war crimes and Crimes
Against Humanity committed since 1968. Although it would seem desirable that
the former Iraqi dictator be tried by an Iraqi court, it is not yet clear
whether the Iraqi Special Tribunal and the Iraqi legal profession have sufficient
resources and expertise to conduct a trial of this complexity. Questions also
remain as to whether the trial and sentencing of Hussein will conform with
international human rights standards and whether it will served the ends of
justice and reconciliation in Iraq.
Having the Iraqis themselves try Saddam avoids the imperialism perception
a U.S.-led trial would perpetuate. The victors won’t be trying the vanquished,
the people Hussein terrorized will. Iraqi council members have assured their
citizens they will televise the trial, so that everyone can see Saddam getting
his day in court and understand the depth and breadth of the atrocities he
and his regime committed. Many experts believe the Iraqi people need this
public airing of Hussein’s sins, in order to “move on” and
really begin living in a post-Saddam world. A state department official was
quoted in Time magazine saying, “There’s an Iraqi catharsis that
needs to take place.”
While the Iraqis trying Iraqis option has a lot of merit, it had drawbacks
that President Bush, England’s Prime Minister Tony Blair and others
may be missing. First, the focus would be on Saddam’s crimes against
his own people. While they are worthy accusers, they are not the only people
against whom Hussein committed crimes. Iran wants Saddam tried for starting
the Iran-Iraq War in 1980. Kuwait wants him tried for invading that country
in 1991. Israel wants to know whether scud missile attacks are war crimes.
The other – and ultimately more important – drawback is that by
not trying him in front of an international body, such as the U.N.’s
International Criminal Tribunal, the charter of the United Nations itself
and of the concept of the world collectively bringing despots to justice are
gutted. The noble precedents set by the Nuremberg trials of the Nazis after
World War II and the recent trials addressing the war crimes in the Yugoslavia
and Rwanda would be ignored.
Some may say “good riddance,” since the U.N. hasn’t been
very effective lately. But, marginalizing the U.N. by not having it try Saddam
on behalf of the rest of the world further increases the chances that the
USA will be stuck with full tab for Saddam’s ouster and the rebuilding
of Iraq. A better strategy would be to attempt to use Saddam’s capture
and subsequent trial as a “bridge” to accelerate Iraq’s
reentry into the world’s community of nations – and vice versa.
7. Conclusion
International crimes, particularly war crimes and Crimes Against Humanity,
have been, regrettably, all too common. Ongoing violence and widespread civil
unrest continue in numerous situations, those responsible for atrocities have
rarely faced justice. With a substantially increased risk of further terrorist
attacks in the aftermath of the September 11th terrorist attacks and the Bali
bombings, the development of appropriate legislative and institutional responses
to international crimes has acquired a new urgency.
For more than four decades after the establishment of the Nuremberg and Tokyo
tribunals the enforcement of international criminal law remained an exclusively
national responsibility and the report card is appalling. The abject failure
of an exclusive reliance on national courts and legal processes to rein in
impunity for the perpetration of atrocities is the single most compelling
argument for an effective international criminal law regime. This is not to
suggest that the international community needs an effective international
regime to replace or supplant national courts and processes. Rather, the suggestion
here is for an effective international supplement to national structures and
processes – a multilateral institutional framework to hold some key
individuals to account while simultaneously providing a catalyst for more
effective national enforcement of international criminal law.
The Nuremberg Tribunals were a precedent and a promise. As part of the universal
determination to avoid the scourge of war, legal precedents were created that
outlawed wars of aggression, war crimes and Crimes Against Humanity. The implied
promise held forth to the world was that such crimes would be condemned in
future, wherever they occurred and that no person or nation would be above
the law. After half a century, it now seems possible that the promise may
yet to be fulfilled.
International criminal law is undergoing a rapid transformation. One of the
most important events in this evolution was the coming into force of the Rome
Statute of the International Criminal Court (the “ICC”) on July
1, 2002. There is no doubt that the international community is entering a
new era in which perpetrators of international crimes will no longer enjoy
impunity.
The creation of the new international Criminal Court will prove a catalyst
for states to take the national enforcement of international human rights
law much more seriously than has hitherto been the case. Many states, recognizing
the potential scope of the International Criminal Court’s jurisdiction
– particularly in relation to the so-called “principle of complementarity”
– have already enacted broad-ranging criminal legislation to ensure
that all the crimes within the Rome Statute are covered by domestic penal
law. The overwhelming motivation for this unprecedented criminal law reform
is to maximize the potential benefits of the principle of complementarity
in the event of allegations against a State’s own nationals.
The Rome Statute is one of the sources of international criminal law. The
pre-existing sources on which the Statute was built not only include rules
of international humanitarian law, and in particular those contained in the
Geneva Conventions and their additional protocols, but also the rules and
categories established under the Nuremberg and Tokyo War Tribunals –
“war crimes,” “Crimes Against Humanity,” and the crime
of “aggression.” Another important source includes the experience
gained from the ad hoc tribunals created by the UN Security Council –
the International Criminal Tribunal for the former Yugoslavia and the International
Criminal Tribunal for Rwanda.
Endnotes:
1 Cited by
Andres Clapham in From Nuremberg to The Hague: The Future of International
Criminal Justice, Philippe Sands, Cambridge University Press, 2003, p. 31
2 White, Jamison G., Nowhere to run, Nowhere to hide: Augusto Pinochet, Universal
Jurisdiction, the ICC,and a Wake-up Call for the Former Heads of State, 1999
and Scharf, Michael P., Results of the Rome Conference for an International
Court, 1998.
3 Malekian, Farhad, International Criminal Law – The Legal and Critical
Analysis of International Crimes,” 1991, p. 1,2, and 9.
4 The European Convention for the Protection of Human Rights and Fundamental
Freedom (1950).
5 The Convention on the Prevention and Punishment of
the Crime of Genocide (1948) (The Genocide Convention)
6 The Universal Declaration of Human Rights (1948); GA Resolution 217A (III)
7 The four Geneva Conventions of 1949 and Additional Protocol I and II of
1977. The Geneva Convention as drafted in 1949 evolved from 19th century protocols
(1864).
8 Jackson, Robert H. Statement of Chief Counsel Upon Signing of the Agreement,
19 Temp, I.Q 169 [1945-6]
9 cite R.H. Jackson, The Case Against the Nazi War Criminals (NY, Knopf, 1946,
pp 3-7)
10 For cite see ICC, p. 72-73.
11 Authentic text: English Text published in Report
of the International Law Commission Covering its Second Session, 5 June –
29 July 1950, Document A/1316, pp. 11-14.
12 Yearbook of the International Law Commission, 1950, Vol. II, pp 374-378.
13 United Nations Doc. A/760, Dec. 5, 1948.
14 King and Theofrastous, From Nuremberg to Rome: A Step Backward for U.S.
Foreign Policy and Barrett, Mathew A., Ratify or Reject: Examining the United
States’ Opposition to the International Criminal Court, 1999.
15 Benjamin B. Frencz, The Legacy of Nuremberg International Criminal Courts
– Blaine Sloan Lecture, published in The Pace International Law Review
1997.
Transcribed by Charlene J. Peterson, 2004