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The Evolution of International Criminal Law
From: Columbia University
| By:
Benjamin B. Ferencz |
EDITOR'S INTRODUCTION |
The activist, professor and lawyer Benjamin B. Ferencz was the chief prosecutor in the Einsatzgruppen Trial, one of the Nuremberg war trials following World War II. In that trial, 22 high-ranking Nazis, including six generals, were convicted of murdering more than a million innocent people. Ferencz is currently devoting his energies to the campaign for an International Criminal Court. |
The sources of international criminal law
International law is a fairly recent creation. In biblical times, unrestrained killing of your enemy, as well as his suckling babes, was a common practice; taking captives as slaves was considered a humanitarian advance. Roman law and church doctrines outlined principles for "just wars," and violators were subject to banishment, excommunication, torture or worse. |
Medieval sovereigns were presumed to reign by divine right and thus were immune from man-made law. They could authorize their ships to attack and seize enemy vessels as prizes of war. Of course, a share of the spoils had to be given to the crown. When this practice began to threaten the security of maritime trade, it was universally outlawed as piracy and was made punishable by all nations. |
All who knowingly sailed on a pirate ship ran the risk of hanging from the yardarm if they were captured. Accomplices were as guilty as commanders, and following orders from a superior was no excuse. |
During the unrestrained American Civil War in the 1860s, Abraham Lincoln called upon Professor Franz Lieber--a former Prussian officer who was teaching at Columbia University in New York--to draft a set of humanitarian rules to govern the behavior of soldiers in the field. Detailed reforms of the international legal system were proposed, but plans for a reformed world order were scoffed at by military heroes such as the Prussian field marshal von Moltke. Militant decision-makers went about their usual business of killing. |
The first peace conferences
It was in 1899, only a century ago, that what was heralded as the First International Peace Conference was convened. The title was a misnomer. In fact, it was a disarmament conference initiated by the tsar of Russia, who found himself in a financially unbearable arms race with France. Delegates from 26 self-styled "civilized states" came together for about 10 weeks in pleasant surroundings at The Hague, where they filled the summer air with flowery speeches. |
Compulsory arbitration of disputes was rejected--instead, they focused on more humane ways of slaughtering each other. At the end, they drew up several conventions carefully laced with ambiguities and exceptions. Signatories agreed to "use their best efforts as far as possible" and to disregard the new rules if national honor or "essential interests" might be endangered. In fact, it was more a wish list than a binding accord. The problem of enforcement was not even mentioned. |
A follow-up Second Hague Conference took place in 1907. It improved some of the earlier texts but was not significantly different. In truth, leading participants were not ready to accept major changes in the legal order. |
The melancholy conclusion is confirmed in a private letter from Kaiser Wilhelm II of Germany. The Kaiser made plain that he would reluctantly attend the Hague conference, but in practice he would continue to rely only on his "God and sharp sword." His contempt for rules of war or law was confirmed by his defiant boast, in rather pungent barroom language, that he would disregard all the resolutions. It would not be long before nations found themselves in the midst of the unparalleled tragedy that became known as the First World War. |
From World War I to World War II
After some 10 million soldiers and another 10 million civilians had been killed, and another 20 million died from famine and disease, there was an enormous public outcry among the victims that those responsible for the war--and for such atrocities as using poison gas and sinking hospital ships in violation of The Hague Conventions and the customs of war--should be held to criminal account. |
In November 1918, with the war lost, Wilhelm II abdicated and fled to Holland, which had remained neutral. Since at that time there was no international court competent to try a sovereign head of state, and since no one had ever been convicted of the crime of aggression before, the Dutch refused to extradite Wilhelm and he lived famously as "the woodchopper of Doorn." |
Absolute state sovereignty was a very convenient doctrine if you happened to be a sovereign. A League of Nations committee of experts recommended that it should be made clear that, in the future, aggression would be punished as an international crime regardless of the rank or station of the perpetrator. |
Unable to indict the German monarch, a face-saving provision was written into the Treaty of Versailles that required Germany to hand the Kaiser over to stand trial for "a supreme offense against international morality and the sanctity of treaties." In addition, about 900 listed German officers accused of atrocities were to be brought to trial by an Allied war crimes court. Although Germany had signed the treaty, these provisions were denounced as a diktat and Germany refused to comply. |
President Woodrow Wilson campaigned vigorously for the creation of a League of Nations as part of the Versailles Treaty, but the US Constitution required consent by two-thirds of the Senate before any treaty could be ratified. A small number of conservative senators succeeded in blocking ratification, and thus the league's strongest advocate never became a member of the first international organization created to maintain peace. |
Nations were still not ready to yield their sovereign prerogatives. Just as they had failed to accept adjudication or arbitration of disputes when those subjects were debated at The Hague in 1899 and 1907, they remained unwilling to give up their right to go to war. |
World political leaders longing for peace and fearing war failed to take decisive collective action to stop the march of conquest by Japan and Germany. The world was soon engulfed in World War II. |
Investigating the war crimes
There is no need to recount here the aggressions, crimes against humanity, war crimes and other atrocities committed during the dozen-year reign of Adolf Hitler's "Thousand- Year Reich." Long before the war ended, Germany had repeatedly been warned by the Allied powers that those responsible for causing the war, and for the crimes against humanity that were committed on a massive scale, would have to answer for their deeds. As soon as the American Army entered Germany and began to uncover evidence of massive Nazi crimes, an Army war crimes program was initiated to prosecute those who had violated the laws of war. |
I had studied war crimes law as an assistant to a distinguished criminologist at Harvard. On his recommendation, the Army transferred me from my post as a corporal in the artillery to the Judge Advocate branch of General Patton's Army where the first war crimes programs were to be carried out. As a war crimes investigator, I joined in the liberation of many concentration camps. I became a witness to Nazi atrocities that defy human imagination. |
Let me describe briefly how war crimes investigations were carried out at that time. Headquarters would receive a report that Allied fliers had been shot down over German territory and, as was often the case, had been murdered on the ground by either German storm troopers or an enraged German mob. |
I would get into a jeep and proceed to the crime scene. There I would find the highest German official available and order him to arrest everyone who might have witnessed the killing. I would then order all the witnesses to write out exactly what they had seen. They were warned, in a Ferencz version of the Miranda warnings, that anyone who lied would be shot. |
Despite the denials and lies, the truth soon became apparent. I took sworn statements, placed witnesses under house arrest, tried to locate and disinter the body or bodies and alerted our intelligence branch to be on the lookout for suspected perpetrators. The information thus gathered became the basis for trials conducted later by the US Army commission, similar to a court-martial, in the liberated Dachau concentration camp. No person was accused without clear evidence of guilt, but the trials, which ended shortly after the war, produced no great new principles of international criminal law. |
The Nuremberg trials
In May 1945, Germany surrendered unconditionally. The British proposal, that arch-criminals should simply be taken out and shot, was opposed by the United States, which insisted upon fair trials for the accused. It took the four victorious occupying powers--the US, the UK, France and the USSR--a scant six weeks to reach agreement in London on a charter that set down the law and procedure that would govern the proceedings of the International Military Tribunal, the IMT, which was created to conduct war crimes trials at Nuremberg. |
The opening statement by America's chief prosecutor, Robert M. Jackson--a judge on leave from the US Supreme Court--gave assurance that the primary purpose was to advance law and justice: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.... To pass these defendants a poisoned chalice is to put it to our own lips as well. |
The IMT charter gave the tribunal jurisdiction over only three categories of crimes: (a) crimes against peace, which meant the preparation and waging of a war of aggression; (b) war crimes, namely, violations of the traditional laws and customs of war; and (c) crimes against humanity, such as extermination and enslavement of civilian populations. Leaders who conspired to commit those crimes would be culpable, regardless of rank or station, and superior orders would be no excuse. |
Twelve subsequent war crimes trials, based on a slightly improved charter, Control Council Law No.10, were then held at Nuremberg under the direction of General Telford Taylor, who later became a professor at Columbia University. |
Responsible leaders from various spheres--doctors, lawyers, ministers, industrialists, militarists and SS killers--were called to account in courts established by the United States. The entire panorama of Nazi domination and crime was exposed and the record of incredible criminality was unquestionably confirmed by official German documents. |
Similar trials of Japanese war criminals took place in Tokyo and in countries that had been occupied by the Axis powers; these trials further reinforced the principles of law laid down by the IMT. The Nazi defendants at Nuremberg, represented in open court by lawyers of their own choice and confronted by their own undeniable records, were given fair trials "the likes of which they, in the days of their pomp and power, never gave to anyone." |
General Taylor appointed me the chief prosecutor in the Einsatzgruppen Trial, in which 22 high-ranking Nazis, including six generals, were convicted of murdering more than a million innocent people. These extermination squads killed, without pity or remorse, every Jewish man, woman and child they could capture. All Roma and Sinti--Gypsies--and perceived threats to the Reich suffered the same fate. |
Lessons learned from Nuremberg
Contrary to popular belief, the Nuremberg charter was not something that was suddenly invented from whole cloth. The long list of precedents cited by the distinguished IMT jurists made plain that the charter was not ex post facto justice. Its articulation of crimes against humanity reflected and clarified emerging precepts expressed in the conventions at The Hague and in other international pacts, in which nations, groping for a more humane order, relied on "the laws of humanity and the dictates of the public conscience." |
Nuremberg confirmed that when cruelties such as genocide reach a magnitude that shocks the conscience of humankind it should and could be punished as a crime against all of humankind. |
Nuremberg's greatest contribution was that it sought to eliminate the source of the most devastating human rights violations: war-making itself. For the first time in human history, aggressive war was repudiated as a national right and condemned as an international crime. Nuremberg and subsequent war crimes trials were the foundation stones on which a new order of humanity, international justice and peace were to be built. |
The United Nations moves from stalemate to action
The Nuremberg Principles and Judgment were unanimously affirmed by the entire General Assembly of the United Nations in 1945. Outraged by the Nazi inhumanities revealed by the Nuremberg trials, the United Nations promptly appointed committees to develop the Nuremberg Principles into a criminal code and to create an international criminal jurisdiction where such offenses, including the crime of genocide, could be punished and deterred. |
Unfortunately, the advent of the Cold War paralyzed effective action. UN committees drafted statutes in 1951 and 1953 for an International Criminal Court. In 1954 a draft of a "Code of Offenses Against the Peace and Security of Mankind" was debated, but no consensus could be reached. While diplomats quibbled, aggressive wars and massive crimes against humanity continued to be committed throughout the world. |
The Nuremberg court condemned aggression as "the supreme international crime." Justice demanded that the persons responsible for war must be held to account in a court of law. After years of meticulous debate, the UN adopted a consensus definition of aggression in 1974. Despite its vagaries, it opened the door to further work on creating an international criminal court. The International Law Commission, made up of 34 UN legal experts, continued its plodding efforts. |
Criminal tribunals for the former Yugoslavia and Rwanda
By 1991, such violence erupted in the former Yugoslavia that UN action could no longer be delayed. Rival ethnic, religious and political groups attacked each other with uncontrolled ferocity. Worldwide television showed prison camps reminiscent of Dachau and Auschwitz. Confirmed reports described how thousands of women had been raped and many more civilians were brutally driven from their homes in what was euphemistically called "ethnic cleansing." There was nothing clean about it; it was filthy genocide. |
An outraged public demanded action to bring the criminals to account. The UN
Security Council, acting within its charter authorization to create subsidiary organs, promptly created an ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) to try those who had committed crimes against humanity in the former Yugoslavia since 1991. |
In 1994, a brutal civil war erupted in Rwanda. An investigative commission appointed by the UN Security Council confirmed that perhaps half a million men, women and children had been systematically and savagely hacked or bludgeoned to death by rival ethnic tribes in that devastated country. Powerful nations, reluctant to interfere in an internal conflict that did not threaten their own vital interests, failed to intervene in time to halt the genocide. |
Again responding to public outrage, the Security Council quickly created another ad hoc criminal court, the International Criminal Tribunal for Rwanda (ICTR), which was authorized to bring to justice those leaders who were responsible for the genocide and other crimes against humanity committed in Rwanda in 1994. |
What is particularly noteworthy is that once the political will was aroused it was possible for the Security Council, in a matter of months, to lay foundations for new criminal courts authorized to bring before the bar of international justice those accused of major crimes against humanity. The Council had invented international criminal courts à la carte. |
It was to be expected that these new legal institutions, lacking their own financial resources and enforcement personnel, would encounter enormous legal, political and administrative problems. Several high-ranking indicted suspects still remain at large. |
What is remarkable is that, despite many difficulties, the ad hoc tribunals have managed to function as well as they have. It is a tribute to their dedicated prosecutors, judges and staffs. The tribunals have set important precedents for international criminal law and procedures. These newborn babes must be helped to grow as additional stepping-stones toward a more humane world order under law. |
A permanent International Criminal Court
A string of temporary tribunals created after enormous crimes have been committed, and with jurisdiction limited in time and place, is certainly better than allowing vengeance to run rampant or granting effective immunity to mass murderers. But temporary courts created on a selective basis are not good enough. |
To be respected, international law must apply equally to everyone, everywhere. Human rights must apply equally to all humans. The continuing existence of massive crimes against humanity cried out for the creation of a permanent International Criminal Court (ICC) to bring to account those who threaten the peace and security of human beings anywhere. The time had come to close a glaring gap in the international legal order. |
The climax to a century of hope and years of preparation was reached in Rome on July 17, 1998. Following five weeks of intensive negotiation, high-ranking representatives of 148 nations, by a vote of 120 in favor and only 7 against, with 21 abstentions, reached agreement on a draft treaty, the opening sentence of which proclaimed: "An International Criminal Court is hereby established." It was little noticed that the court could not start functioning until at least 60 nations ratified the treaty. |
The International Criminal Court could not act retroactively and would have no jurisdiction wherever the national state was able and willing to grant the accused a fair trial. The prosecutor could not act without prior approval by judicial supervisors, and funding would have to be agreed upon and procedural rules formulated. |
One of the major disappointments was the inability of states to accept the Nuremberg conclusions regarding the crime of aggression. Hesitations were intensified by distrust of the Security Council and its perceived unfair veto power. The ICC could take no action on aggression until nations agreed on its definition and the precise role of the Security Council. |
Furthermore, expanding the ICC's jurisdiction to deal with the crime of aggression could be considered only as an amendment to the Rome Statute, and could be taken up seven years after the treaty had been ratified by 60 nations--whenever that might be. Estimates vary about when the International Criminal Court will become a functioning reality; optimists say it may be only a few more years. |
Change and progress in human rights
We described how powerful sovereigns began the century by striving to ameliorate the intolerable burden of an arms race. Their efforts, cloaked in a longing for peace, were too feeble to overcome ancient traditions. National leaders who controlled the destiny of people in their domain sought security and freedom for themselves and their people through war rather than law. Their inability to devise or accept new rules to govern the conduct of independent states cost the lives of millions of innocent subjects who died a miserable and violent death as pawns in futile struggles for national power or prestige. |
The United Nations was created primarily "to save succeeding generations from the scourge of war." The judgments at Nuremberg declared that aggression, crimes against humanity and grave breaches of the rules of war would no longer go unpunished. No one then anticipated that these pillars of peace were being built on sand. |
Despite continued chaos, slow progress toward a rule of law and the protection of fundamental freedoms can be discerned by the eager and perceptive eye. Over the years, new methods were found to expand the reach of international justice. International criminal law is clearly on the march. |
The tribunals created by the UN Security Council to try those leaders who committed barbarities in the former Yugoslavia and Rwanda are now fully functional. A permanent International Criminal Court, despite prenatal shortcomings, is in formation. Instantaneous communications now alert the world to outrageous atrocities wherever they occur. |
International criminal courts are being considered to penalize crimes against humanity committed in Cambodia, Iraq, Sierra Leone and many other lands. Chile's former dictator Augusto Pinochet, despite a self-granted writ of immunity, was confined in England to answer an arrest warrant issued by a Spanish court charging him and his cohorts with systematic torture of Spanish citizens in Chile. |
Non-governmental organizations, which played a very significant role in advancing the International Criminal Court, have become vigorous proponents of fundamental human rights everywhere. This past century marks the spread of democracy. International law no longer applies only to relations among sovereign states. Universal declarations of human rights reach out to protect all of humankind against abuse, and new human-rights tribunals seek to assure minimum standards of human dignity. The individual citizen, with new legal entitlements, slowly comes under the protective mantle of international jurisprudence. |
Albert Einstein warned that in order to avoid the drift toward endless catastrophe we must adopt new ways of thinking. Lawful goals cannot be sought by unlawful means. Tolerance and compassion must be taught to replace the blind hatred that animates human brutality. An impartial international judiciary authorized to deal with disputes that threaten human existence is a vital tool for a peaceful world. |
The United Nations, and particularly the Security Council, must be reformed if it is to fulfill its promise to humanity. There must be clearer rules about when unilateral or multilateral intervention without a Security Council mandate may be permissible. No one, and no nation, should be entitled to take the law into his own hands. Aggression cannot be disguised as humanitarianism. |
We now live in a global society where all major problems are global and can only be solved globally. No person and no nation can feel secure until all are secure. If one reviews the evolution of international criminal law--despite delays and shortcomings--one can find the hope and the energy needed to move toward a more humane and peaceful future. |
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