1 FROM NUREMBERG TO ROME: INTERNATIONAL MILITARY TRIBUNALS TO THE INTERNATIONAL CRIMINAL COURT Antonio Cassese L tntrod 3 A.The Establishment of the Two Ad LU. Aborcive Barly Atempes (1919-1945) 4 ‘Hoc Teibunals forthe Former IL Criminal Prosecution in the Aftermath Yogosavia and Renda 2 of World Wael: The Nuremberg B. The Adoption ofthe State fora and Tokyo Tribunals (1945-1946) 5 Permanent lnernatonal IV. The Nascent ICC Statute: The Work Caiminal Court 6 ofthe ILC(1950-1954, 1990-1994) 9 VI. Conclusion "7 V. Post-Cold War‘ New World Orde’ Select Bibliography 8 The Development ofthe Two Ad Hoe Valbanals and the Desiing ofthe ICC Statute (1991-1998) 10 I. Introduction Forall its imperfections, the Statute ofthe International Criminal Court, adopted ‘on 17 July 1998 by the Rome Diplomatic Conference,’ wasa major breakthrough. in the effective enforcement of international criminal law. It marks the culmina- tion of a process started at Nuremberg and Tokyo and further developed through the establishment of the ad hee Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). The Statute cry ‘emerged over the past fifty yea lizes the whole body of aw that has gradually the international community in this particu- larly problematic area, Insofar a it departs from existing trends and the practices of ad hoecriminal ribunals, the Rome Statute also breaks new ground and points, Rome Statute fr the International Criminal Coure Adopted bythe United Nations Diplomatic Conference of Plenipotentiaris on she Esabldnnen ofan International Criminal Cott 17 Jay 1988, AICONE.183/9 (1998).The Path to Rome and Beyond to the path likely to be taken by international criminal justice in the current millennium. Iris well known that theidea of setting up an international criminal court to bring «co justice individuals, including leading State officials allegedly responsible for serious international crimes, goes back to the aftermath of World War I. The attainment of that goal has been slow and painstaking, This process towards the ‘eventual adoption ofa Statute fora permanent International Criminal Court can be conceptualized in terms of four distinct phases: (1) abortive carly attempts (1919-1945); (0) criminal prosecutions in the aftermath of World War Il: the Nuremberg and Tokyo Tribunals (1945-1946); (3) preparation for the fucure ICC: the work of the ILC (1950-1954, 1990-1994); and (4) post-Cold War ‘new world order: the development of the two ad hoe ‘Tribunals and the emergence of the ICC Statute (1991-1998). IL. Abortive Early Attempts (1919-1945) ‘The period immediately following World War T is notable for its numerous attempts to establish a variety of international criminal institutions, all of which ‘ended in failure. For instance, the ‘Commission on the Responsibility of the ‘Authors of che War and on Enforcement of Penalties’ proposed the establishment of a‘high tribunal composed of judges drawn from many nations? After World War I, the Treaty of Versailles had provided for ad hoc tribunals, but none were ‘ultimately established. In particular, Article 227 of the ‘Treaty of Versailles included a provision which envisaged the establishment ofa cribunal, composed of five judges (appointed by the United States, Great Britain, France, Italy, and Japan) to try che former Kaiser of Germany.” Subsequently, in 1920, the Advisory Committee of Jurist, summoned to prepare the project for the Permanent Court of International Justice, proposed that the ‘High Court of International Justice’ to be established should also ‘be competent to try crimes constituting a breach of international public order or against the uni- ‘versal law of nations, referred to it by the Assembly or by the Couneil ofthe League > See the Report ofthe Commission, in 14 AJ1L.(1920) 116. As for the objections ofthe US dele- gates ibid at 129,139 ff cited in The Pah to the Hague Selected Documentson the Origins aftbe TCTY(1999)7. 2 Treaty of Peace hetween the Allied and Associated Powers and Germany (Treaty of Versailles), 28]une 1919,At-227, 11 Mareen (3) 323, reprinted in Bevans 41 Friedman 417. On the non- ‘implemeneation of Art 227, ee, inter alia, A. Merignhac and E. Lemonon, Le Dvit des gen et lt guerre de 1914-1918(1921) 580 fh. of Nations. Howew. the Assembly of the statutes of an interr organizations such « bodies such as the Ir however, led to anyt] Such early attempts an international on, could not bear fui ‘upon consideratio which transcended r of principles which ‘workers through the the protection of mi into after the wat), § norm of the interna feasible mechanism cial Het alone a He brought to justice, = IL. Criminal The Nur Te was precisely sucl immediate post-wa "Tribunals were ares Europe and the Jape Asian nations It tov War Il to demonsie pursuit ofextreme n munity out of its €0 * See the ext ofthe $ “Anlnteratonal Ceimis 80; cited in The Patho > Ibid in Philimore, 5 Sco the vex of he World Peace—A Docums 2 Text reproduced in Convention for also adopted on 16 Nowe wnlly V. Vell, Towce in the current inal court to bring jy sponsible for World War I. The process towards the [Criminal Court can Tl: the Nuremberg TLC (1950-1954, of the wo ad hoc 1-199). 1945) ble for its numerous tions, all of which Responsibility of the the establishment ration’ ? Afer World nals, but none were Treaty of Versailles fa wibunal, composed ain, France, Italy, and summoned to prepare ce, proposed that the Id aso "be competent ler oragainst che uni Council of the League fecbccions af the US dele ramenton the Origins of he ny (Treaty of Versailles), i Fistman 417. On che non no, Le Droit des gens a From Nuremberg to Rome of Nations’ However, afew months later this proposal was rejected out of hand by the Assembly of the League of Nations as being ‘premature’ Thereafier, draft statutes of an international criminal court were adopted by non-governmental organizations such as the Intet-Parliamentary Union in 1925° and by scholarly bodies such as the International Law Association in 1926.” None of these draft, however, led to anything concrete.* Such carly attempts were laudable for their far-sighted recognition of the need for an international organ of criminal jurisdiction, Nevertheless, these initiatives could not bear fruit in a period which placed an exceptionally high premium upon considerations of national sovereignty. Although new values had emerged which transcended narrow nationalistic concerns (such as the gradual elaboration of principles which sought to limit the methods of warfare, or the protection of ‘workers through the establishment of the International Labour Organization, or the protection of minorities through the numerous treaties on minorities entered into after the war), State sovereignty was nevertheless still very much the bedrock ‘norm of the international community. The practical import of this was that no feasible mechanism could be brought into being that could enable a State offi- cial—let alone a Head of State—accused of war crimes or other outrages to be brought to justice, save by a victor State following an international armed conflict. IIL. Criminal Prosecution in the Aftermath of World War II: ‘The Nuremberg and Tokyo Tribunals (1945-1946) Ie was precisely such a scenario that led to the successful establishment, in the immediate post-war period, of the Nuremberg and Tokyo ‘Tribunals. These ‘Tribunals were a response co che overwhelming horrors of the Nazi genocide in Europe and the Japanese wartime occupation of large parts of many South-East Asian nations. It took the full extent of the atrocities committed during World ‘War II to demonstrate the pernicious consequences that could follow from the pursuit of extreme notions of State sovereignty and to jole the international com ‘munity our of its complacency. The universal outrage provoked by these crimes “See the text ofthe Second Resolution adopted by the Advisory Committee in Lord Philimore, ‘An [aernatonal Criminal Court and the Resolutions ofthe Commitee of urs’, 3 BYIL (1922-3) £80; cited in The Path to the Hague, supra note 2,37. * Ibid. in Philimore, at 84; cited in The Patho the Haque, uproot 2, a7 * Sco the eet ofthe draft in B, Ferenc (ed), Imernatonal Criminal Court—A Sep Toward World Peace A Documentary History and Analy, Vol. (1980) 244 ft. 7 "Tex ceproduced in Ferenc (ed), bid at 252 * A Contention forthe creation of an loternational Criminal Cour o try terri offences was also adopted on 16 November 1937 by the League of Nations, ut never entered into force See ge erally, V. V. Pella, Towards an International Criminal Court 4 AJIL (1950) 37 f. 5The Path to Rome and Beyond {ed co widespread conviction that never again could such tyranny beallowed to go unchecked and unpunished, Ie is worthwhile to consider what, in particular, induced the Allies to hold trials against che Germans and their collaborators after World War If and what, more recently, has persuaded governments to hold similar trials for war erimes and crimes against humanity. ‘Afier the defeat of Germany, the British stated thae it was enough to arrest and hang those primarily responsible for determining and applying Naai policy, with- ‘out wasting time on legal procedures: minor criminals, they suggested, could be tried by specially created Tribunals” However, neither President ED. Roosevelt, nor Henry Stimson, the US Defense Secretary, agreed: nor, indeed, did Stalin. In the end, they prevailed, and the International Military Tribunal was set up in Nuremberg to try the ‘great Nazi criminals, while lesser Allied tribunals in the four occupied zones of Germany were to deal with minor criminals. The ‘Americans advanced three arguments to support their view, later accepted by the ‘other Allies. Fitst, how could a defeated enemy be condemned without due process of law? To hang them without trial would be to do away with one of the mainstays of democracy: no one can be considered guilty until his crimes have been proved ina fair trial. To relinquish such a fundamental principle would have put the Allies on a par with the Nazis who had galloped roughshod over so many principles of justice and civilization, when they had held mock trials, or punished those allegedly guilty without even the benefit of a judicial process. The ‘Nuremberg trial was thus held in order to uphold the postulates of justice. ‘The second was a desire on the part ofthe Allied powers to act for posterity. The crimes committed by the Third Reich and its Nazi officials were so appalling that ‘some visible record had to be left. A trial held on a grand scale would allow the “Tribunal to gathera huge pile of records useful not only in court, but to historians and to the generations to come. The trial was therefore seen asa method for build- ing an archive of historical documents that might otherwise vanish; it would also serve as. lesson in history for future generations. “Third, those who set up the Nuremberg Tribunal fee that the dramatic rehearsal of Nazi crimes—and of racism and totaitarianism—would make a decp impres sion on world opinion. Thus, the trial was designed to render great historical phe- nomena plainly visible, and was conceived of as a means of combating the myth of the Nazi State." See B.F. Smith (ed), The American Road 10 Nuremberg: The Documentary Record, 1944-1945 (1982) 31-33, 155-157 1 Tid. at 105 (cations omitted), ‘A further rationale Nazi crimes. The of Jews, gypsies, ar but were, in addici echelons and appli crimes requested by belong to ‘colletiv have been impossib perpetrators belong sary could have ma In the spring of 1 Kingdom, France, Conference to deci ‘Nari war criminals prosecute individus humanity’, In occ. Council LawNo. It crimesas the IMT.’ (On 26 July 1945, 6 Big Four issued the their intention to p Subsequently, on Commander forthe order, the Tokyo C tions of the Interns Nuremberg Charte included the newly By and large, the However, there we ° Since the criminal now the unhappy aged religious, or politcal pe the populations of aes peace abiding states (ib Allied Control Ce agains Peace and agine Germany, No. 3,31 Jan "Some af the Allis respective miliary ls R.Bowringand P. Korn The Chater had Prosecutor atthe Tole and A. Cassese, The Takybeallowed to g0 Ales to hold trials land what, more fr war crimes and igh to arrest and Nazi policy, with- suggested, could be t .D. Roosevelt inde, did ibunal was set up in. In Aled tribunals in aor criminals. ‘The bxer accepted by the ned without due away with one of the fini his crimes have [inciple would have shod over so many trials, or punished cial process. The tes of justice ct for posterity. The vers appalling chat sale would allow che rt, but historians asamethod for build vanish it would also the dramatic rehearsal make a deep impres- grea historical phe fcombating the myth reir Resod, 1944-1945 From Nuremberg to Rome er of the A further rationale behind the Nuremberg trial was the collective ch [Nazi crimes. The massacre of civilians and prisoners of war, the persecution of Jews, gypsics, and political opponents were not only large-scale phenomena but were, in addition, part of a policy pursued assiduously by the highest Nazi echelons and applied by the whole military and bureaucratic apparatus. The crimes requested by the directives of the dictator and the Nazi leaders naturally belong to ‘collective or system criminality: such was their nature that it would have been impossible to punish them by using the courts ofthe State to which the perpetrators belonged. In consequence, and as mentioned above, only an adver sary could have made sure that justice was done, upon winning the wat." sof 1945, the four nations that won World War II (the United Jnion) convened the London In the spris Kingdom, France, the United States, and the Sov Conference to decide by what means the world was to punish the high-ranking Nazi war criminals. The resultant Nuremberg Charter established the IMT to peace’, ‘war crimes’, and ‘crimes against prosecute individuals for ‘crimes again humanity’. In occupied Germany, the four major Allies, pursuant ro Control Council Law No. 10, prosecuted, in their respective zones of occupation, the same crimes as the IMT.” On 26 July 1945, wo weeks before the conclusion ofthe London Conference, the Big Four issued the Potsdam Declaration announcing, to the surprise of their intention to prosecute illustrious Japanese officials for chese same crimes."* Subsequently, on 19 January 1946, General Douglas MacArthur, Supreme Commande for the Allied Powersin Japan, approved, in the form ofan executive order, the Tokyo Charter, seting forth the constitution, jurisdiction, and func: tions of the International Military Tribunal for the Far East (IMTFE). Like the ret, the Tokyo Charter, which was issued on 26 April 1946, Nuremberg included the newly articulated crimes against peace and humanity. * By and large, the Tokyo Charter was modelled on the Nuremberg Charter However, there were some differences between the two texts and the way they 1 Since the criminal ations had spilled over rom the uadtiona offences (war crimes), there was row the unhappy need to invent ne jusdical categorie: those of’cximes against humanity’ cacil ‘elgious, or pola persecution; the extermination ar deportation of non-enemy populations, eg, the populations of allies) and of ‘ries against peace-abiding state) (bid, at 128-130) © Ald Control Counel Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, 20 December 1945, Oficial Gaete ofthe Control Council for Germany, No, 3,31 January 1946 (hercinaier CCL 10), "Some ofthe Allies inthe Paciic Theatre prosecued dhe Japanese for ‘war erimes' under thet respective miliary laws, see ter alia, R. J. Pritchard, ‘War Crimes Trials in the Far Eas in R. Bowring and P. Kernick (eds), Cambridge Enelopeiof Jan 107 (1993). W'The Charter had heen drafted by the Americans ony, essentially by J. B. Keenan, Chief Prosecutor atthe Tokyo Tra, and the Allies were only consulted after its isuance (B. V. A. Ring, ain A. Cases, The Tokyo Trial and Beyond (1993) a2) 1 (was of aggtession; criminal plans co atack 7The Path to Rome and Beyond regulated the structure of the Tribunals and the charges that could be brought against che defendants.” ‘The Tokyo tial commenced on 3 May 1946, lasting for approximately two and a half yeats and generating a transcript of over 45,000 pages. This trial was the source of much controversy both during and after the event. Some have claimed that the trial was either a vehicle for America’s taking revenge for the treacherous attack on Pearl Harbor, or a means of assuaging American national guile over the use of atomic weapons in Japan. Others, defence counsel at the trial included, have attacked the tia’ legitimacy on legal grounds. ‘Whereas the post-World War I experience showed the extent to which international justice can be compromised for the sake of political expedience, the post-World War I experience revealed, conversely, how effective ‘international’ justice could be when there is the political will co support it and the necessary resources to render it cfiective. Thesescts ofexperiences were nevertheless one-sided, as everybody knows. “They imposed victors’ justice’ over the defeated. However, they were important in many respects. First, they broke the ‘monopoly’ over criminal jurisdiction concern- ing such international crimes as war erimes, until that moment firmly held by States. For the first time non-national, or quasi-international, institutions were established forthe purpose of prosecuting and punishing crimes having an international dimen- sion and scope. Second, new crimes were envisaged in the London Agreement and made punishable: crimes against humanity and crimes against peace. Whether or not this was done in breach of the mullum crimen sine procvi lee principe, itis fact that since 1945 those crimes gradually became the subject of international custom- ary law prohibitions. Third, the statutes and the case law of the International Miliary Tribunal at Nuremberg, the International Miltary Tribunal in the Far ast, and the various tribunals et up by the Allies in the aftermath of World War Il developed new legal norms and standards of responsibility which have advanced the international rule of law, for example the elimination of the defence of obedience to superior orders’ and the accountability of Heads of State. Finally, a symbolic significance has emerged fiom these experiences in terms of their moral legacy, which was drawn on by those seeking a permanent, effective, and politically uncom- promised system of international criminal justice.” ° Forasummary of the principal differences, se ibid. at 2-2 og instance, he lgal categories ofthe crimes against peace and humanity have been criticized sex ps fat legislation on the part of the London Canferene, in that these crimes did noe exist in inmernational la prior to 1945 Gbidt3-5) "7M. Lippman, ‘Neseraberg Forty Five Yeas Later’, Comm. tL (1991) 8 IV. The In order to build o IMTFE, and peth “victors justice’, th for the establish. pening of interna ‘The efforts of the ICC had comme: United Nations. ? toa permanent in to enforcement force.* By contras at establishing a traced along twos oration ofa drafts Pursuant t0 a req ‘Commission (ILC lation ofthe princ the preparation 0 mankind." Conc: ment of an intern teur, who submitt ‘The 1940s and 1 national bodies o: ing, were never! General Assembly later renamed the committee to pre committee produ the early discussix 1948 Genocide € were translated i See aprenave8 » GARE 174,U ™ Report of the Jurisdiction, UN GA 2 Reportof the C: No, 12421, UNDoould be brought ely two and This rial was the ichave claimed othe weacherous fal guilt over the ibe rial included, post-World War f justice could be aces to render it errybody knows. were important in rly held by States s were established ational dimen- Agreement and peace. Whether or principle, isa fact ematonal custom- fof the International Tribunal in the Far thof World War IL haveadvanced the fence of ‘obedience Finaly, a symbol their moral legacy: politically uncom- From Nuremberg to Rome IV. The Nascent ICC Statute: The Work of the ILC (1950-1954, 1990-1994) In order to build on the positive dimensions ofthe establishment of the IMT and IMTFE, and perhaps stung by the inevitable association of these Tribunals with ‘vietors justice’, the United Nations system in the ate 1940s commenced its quest for the establishment of more permanent and impartial mechanisms for the dis pensing of international criminal justice The efforts of the organized international community to establish a permanent ICC had commenced with the League of id were continued by the nited Nations, As mentioned above, the League of Nations’ efforts were linked utisdiction was limited only to a permanent international criminal court who to enforcement of the 1937 Terrorism Convention, which never came into force."® By contrast, the United Nations’ gy wit aimed 1 was more encompass at establishing a permanent international criminal court. These efforts can be traced along two separate tracks: codification of international crimesand the elab- oration of a draft statute for the establishment of an international court. Pursuant to a request by the General Assembly in 1947, the International Law Commission (ILC), in compliance with this resolution, commenced the formu- lation of the principles recognized in the Charter of the Nuremberg Tribunal and the preparation of a draft code of the offences against the peace and security of daft statute for the establish: mankind." Concurrently, the task of formula ment of an international criminal court was assigned to another special rappor- cut, who submitted his first report to the ILC in March 1950.” The 1940s and 1950s were characterized by much work by a variety of inter national bodies on tasks that, while designed to be complementary and interlock: ing, were nevertheless poorly coordinated. During the period in which the General Assembly had mandated the ILC to prepare the Draft Code of Offences, later renamed the Draft Code of Crimes, it also gave a mandate to another special committee to prepare a draft statute for an international criminal court. That committee produced a text in 1951 that was revised in 1953.” However, neither the early discussions in the Commission nor the provisions of Article VI of the 1948 Genocide Convention referring to a (future) “international penal tribunal ure was tabled were translated into reality. The 1953 Draft Statute of the ® Sco mpranote 8 » GA Rex 174, UN GAOR, 2d Ses, UN Doc. /519 (1947) ® Report of the International Law Commission on the Question of International Cri Jurisdiction, UN GAOR, 5th Ses, UN Doc, MCN45 (1950) 2" Report of the Comitee on International Criminal jurisdiction, UN GAOR, 7th Ses, Supp, No, 1221, UN Doe. A/26645 (1954). 9The Path to Rome and Beyond be use the definition of aggression, which had been entrusted to another body, was not completed. Thar result was expected since there were differing bodies working separat different texts at different times. It was, therefore, easy for the General Assembly at different venues (Geneva and New York), and producing to table each text successively because the one or the other was not then ready. That lack of synchronization was not entirely fortuitous; it was the result of a political will co delay che establishment ofan international criminal court because thac was atime when the world was sharply divided and Frequently at risk of war? The overridingexplanation for why the substantial work ofthis period was unable tocome co fruition can thusbe found within the political stagna Cold War and the impeded functioning of United Nations due to the fact that its Member States were subsumed into two rival and antagonistic political blocs. Indeed, it was only in 1989, once the Cold War had drawn to a close, that the General Assembly once again requested the ILC ‘to address the question of estal lishing an international criminal court’. The task was taken up by the ILC in 1993; the Commission adopred a draft statute in 1994 V. Post-Cold War ‘New World Order’: The Development of the Two Ad Hoc Tribunals and the Drafting of the ICC Statute (1991-1998) Various factors led ¢o the establishment of international criminal tribunals in the carly 1990s The end of the Cold War proved to be of crucial importance. It had si effects. For one thing, the animosity that had dominated international relations for almost half.a century dissipated. In its wake, a new spirit of relative optimism emerged, stimulated by the following factors: (i a clear reduction in the mutual ® M.C Bassouni, Te Statute ofthe International Criminal Court Dacimentary Hino (1998) 2 UNGA Re 44/39,A December 1989, Insddon, proposal tetablsh criminal court dea tcl ep ented Kae rca dpe a Ti Pale be pet ote 2, at 7,95). However, iis unclear to what extent it was envisaged that the court would havea +(e The Time, 26 September 1990, Echo of Nuremberg Tralein Iraq) ot lead coany propos athe internacional level although moves towards bul to prosecute and punish war crimes comic by lagi nt cem once more to be gaining momentum. (Se in this regard A. Cassese, 'O: ds Csiminal Prosecution and Punishment of Breaches of International UI (1998) 8-9. 2 Report ofthe international Law Commission, 46th Ses, 2 May~22 July 1994, UN GAOR, {9th Ses, Supp. No, 10, UN Doc. A/49/10 (1994), See 2,21, below Curent Trends 10 10 beeween th (the Russi Independer national lay Security Ce members, Another ef problems o managed © Superpowe sphere of ir national co and fundar with much cthnicsocic comparable Another ct doctrine. I punish all The conflic Rwanda er 112 Once to punish 1) ofinternati This perio ares ment, by Yugoslavia mulcilatera Criminal C ® Seeeg remain silent ignored) anc soning ther reprinted in 7roanother body, difring bodies and producing General Assembly not then ready. the result of a ml court because fyatrisk of war period was unable jon caused by the to the fact chat its political blocs: to close, that the question of estab: up by the ILC in al tribunals in the Iehad significance gemational relations cf relative optimism tion in the mutual [Dremcntry Hisry(1998) ing of regres ud Pet the Hag pre fh hecour woul haves reer Tin Tr). pLatbogh morestowatd Emescenialiy iad ths ogd A. Cae, On Trach of Ineaional a2 july 1994, UN GAOR, From Nuremberg to Rome nd suspicion that had frustrated friendly relations and cooperation between the Western and the Eastern bloc; (ii) che successor States to the USSR (the Russian Federation and the other members of the Confederation of Independent States) came to accept and respect some basic principles of inter national law; (ii) asa resule there emerged unprecedented agreement in the UN Security Council and increasing convergence in the views of the five permanent ‘members, with the consequence that this institution became able to fulfil its fane- tions more effectively. Another effect of the end of the Cold War was no less important. Despite the problems of that bleak period, during the Cold War era the two power blocs had ‘managed to guarantee a modicum of international order in that each of the man and guarantor in its respective Superpowers had acted as a sort of pc sphere of influence. The collapse of this model of international relations ushered in a wave of negative consequences. It entailed a fragmentation of the inter- national community and intense disorder which, coupled with tsi and fundamentalism, resulted in a spiralling of mostly internal armed conflicts with much bloodshed and cruelty. The ensuing implosion of previously multi- ethnic societies led to gross violations of international humaniarian law on ascale comparable to those committed during World War IL Another crucial factor was the increasing importance of the human rights doctrine. Its emphasis on the need to respect human dignity and consequently to punish all those who seriously attack such dignity begot the quest for, or at least gave a robust impulse to, international criminal justice. ‘The conflicts which erupted, amongst other places, in the former Yugoslavia and Rwanda served to rekindle the sense of outrage felt at the closing stage of World War 12 Once again, the international community was sobered into action and sought to punish those perpetrating serious violations of the most fundamental principles of international humanicarian law in the former Yugoslavia and in Randa. This period can be characterized by the development of institutions empowered to prosecute and punish serious violations of international humanitarian law and can be subdivided into two distiner stages. The frst is comprised by the establish ment, by the UN Security Council, of the two ad hoe Tribunals for the former Yugoslavia and Rwanda and the second by the eventual adoption, through the ‘multilaceral treaty-making process, ofthe Statute for a permanent International Criminal Court Sec eg the leer of Lawrence Eagleburger of 8 May 1996 (the United States could no longer remain silent on the sue of war crimes... (Ales aginst humanity could not and would not be ignored) and Elie Wiesel of 28 June 1996 (vo not peosecue the criminals would amount to con ‘Bing ec crimes. In extreme situations, speaking out 2 moral obligation.) to Antonio Cassese reprinted in he Patho the Hague, supra note 2, 3073 and 75, respectively. uThe Pash to Rome and Beyond. A. The Establishment ofthe Tivo Ad Hoc Tribunals fr the Former Yugoslavia and Rwanda In view of the major violations of international humanitarian law which had been committed since 1991, the UN Security Council set up ad hectribunals pursuant to its power to decide on measures necessary to maintain or restore international peace and security: in 1993 the International Criminal Tribunal for the Former Yugoslavia and in 1994 the International Criminal Tribunal for Rwanda. ‘The response ofthe international community tothe conflict in Yugoslavia had been frequently tardy and conflicting, due to impotence at the military and political lev- cls. The establishment ofa tribunal was thus seized upon during the conflict not only as a belated face-saving measure but also in the pious hope that it would serve as a ‘deterrent o further crimes. As the UN Security Counc itself noted, the ICTY was established in the belief that an international tribunal would ‘contribute to ensuring that such violations are halted and effectively redressed’” In terms of the ICTY’s establishment, the dea that an international court should be set up to try those responsible for war crimes and crimes against humanity committed in the former Yugoslavia was spontaneously mooted in various quar- ‘crs: Europe, notably atthe instigation of Germany and France, and in the United ‘States. The proposal for the establishment of the ad hoe tribunals was preceded by fa number of United Nations statements proclaiming the principle that the ‘authors of grave breaches of the Geneva Conventionsand other crimes were ‘indi- vidually responsible’ and would be called to account. ™ ‘Sein his egard de ter of Lawrence Eagleburge of 8 May 1996 to Antonio Cassese: "There can be and ae —arguments about te wisdom of external armed invervention in che tragedy that is Bosna... OFfir greater precedential significance ithe UN's decision eo try accused war crim inals before a intersational buna especialy created for that purpose. (TThese wal will seve 10 ppt potential furure war criminals on notice that the international community will not clerate ‘rims agains humanity’ (bid) 27 Sein this regard SC Res 827 of 25 May 1993. 2 Thisresulted ina cl, rom varius parties, for an international wibunal wo chis efecto be set up, For instance, the concept was propounded in Spring 1992 by Robert Bainter a former Justice Minister of France, tthe tine acting a President ofthe ‘Arbitration Commision forthe Former Yugoslavia’. At the London Conference on the Former Yugoslavia of 26 Angust 1992, the German Foreign Minister Dr Klaus Kinkel proposed the establishment ofa riminal court his proposal was taken up bythe French Foreign Minister, Mr Roland Dumas and became partand parcel ofthe final DDaxison ofthe London Conference. The idea was revamped by Foreign Minister Kinkel on 23 September 1992 before the UN General Asembly (see UN Doc. A/47/PV.8,p. 61). A suggestion to the same effect was also made by Elie Wiesel, in December 1992, 10 US Secretary of State Lawrence Eagleburper. The latter alo forcefully promoted the idea ofbingng to til all wa rim inals in a statement to the Geneva International Conference on the Former Yugoslavia on 16 ‘December 1992. This suggestion wat restated by the French Foreign Minister, Roland Duss, who proposed the creation ofa permanent criminal court in a Declaration of 6 Octaber 1992, made on {he occasion of the adoption of Resolution 780 by dhe UN Security Council and preceded by asim- ilarstarement by the French Permanent representative tothe UN in the Security Council (The Path tothe Hague, eupranote 2,31) 12 Rather than being | ICTY and the IC Security Council £ (Commission of Exp the 1949 Geneva C ian law in the form: ICTY was taken sul ‘The Security Counc followingconsidera submitted pursuant Report proposed a amendment.” As 827 was that the § Yugoslavia, and in “reports of mass kil women and... the national peace and “The establishment tions. In brief, the ‘make up for the in of both the Great F solution to the con ceived ofasasorto See UN Dec. S22 > Intemsofthede sagroup of three appor ‘leer of 4 Novembe Union, proposed ‘od times ganar humanit SCE, mesngin ihe porecurs then produc Minister, Roland Dun international vidual ‘atonal bods to the ICTYaer the Secure 508 (1993), by which note 2213). 3" Tnoperative part inmemasonal wibunali interaconal human Janay 19 anda da to this end to adopt [Secretay-Generas 1 con 13 May 1998 toa ICTR was amended ‘Twal Chamber.From Nuremberg to Rome pul forthe Former farian law which had been {ad octsibunals pursuant in or restore international Tibunal for the Former for Rwanda. lit in Yugoslavia had been military and political lev- ring the conflict notonly that it would serve as a iselfnoted, the ICTY was contribute wo ensuring ernational court should imes against humanicy mooted in various quar- ance, and in the United ibunals was preceded by the principle that the other crimes were ‘indi- 1 o Antonio Cassese: "There ervetion inthe tragedy that jon to ry acused war exim- [These was will eve ro fexumunity wil no tolerate buna to his fect to beset, Badineer,a former Justice 10 US Secresaty of State ringing oil wat erm Former Vugoslvia on 16 Land preceded byasim- Secty Council (he Path Rather chan being products of the multilateral treaty-making process, both the ICTY and the ICTR were established by resolutions of the United Nations Security Council, Security Council Resolution 780 (1992) had established a ‘Commission of Experts to investigate and report on evidence of grave breaches of the 1949 Geneva Conventions and other violations of interational humanitar- jan law in the former Yugoslavia. The Security Council decision to establish the ICTY was taken subsequent to the findings of this Commission of Experts.” “The Security Council established the ICTY in its Resolution 827 of 25 May 1993, following consideration of the Sccretary-General’s Report (S/25704, 3 May 1993), submitted pursuane to Security Council Resolution 808. The Sectetary-General’s Report proposed a Statute for the ICTY, which was unanimously adopted without amendment2® As will be addressed further below, a striking feature of Resolution 1827 was that he Security Council determined that the situation in che former Yugoslavia, and in particular in Bosnia and Herzegovina—where there were ‘reports of mass killings, massive, organised and systematic detention and rape of ‘women and ... the practice of “ethnic cleansing” “constituted a threat to inter- national peace and security under Chapter VII of the United Nations Charter" ‘The establishment of the ICTY hasbeen the object of many misgivings and objec- tions. In brief, the principal criticisms were that (i) the Tiibunal was set up to make up for the impotence of diplomacy and politics, and revealed the inability of both the Great Powers and the UN Security Council to find a swift and proper solution to the conflict in the former Yugoslavia; the Tribunal was therefore con- ceived ofasa sorcof ‘fig leaf’s ii) by establishing the Tribunal the Security Council ® See UN Doc. 8125221, Annex pa. 9 » Insermsof the drafting ofthe Sette ofthe ICTY, appears har the fis draft was prepared by group of three rapporceurs appointed by the Conference on Secusty and Cooperation in Europe. In ‘lene of 24 November 1992, the British Government, then olding the Presidency ofthe European Union. proposed to draft a convention establishing an ad be tribunal o deal with war crimes and ‘iimesagainat humanity committed in che former Yugoslavia’. The Ministers of Foreign Alar ofthe SCE, meeting in the CSCE Council, responded favourably on 15 December 1992. The three rp porteus then produced a deaf on 9 February 1993. On 16 January 1993 the French Foreign Minster, Roland Dumas, appointed a Commission withthe ek of drafting 2 saute of an adhoc international tribunal. Varo drafs were subsequendly submited bya number of States and itet~ rational bodes to the UN Secretary-General andl used by him io his drafting ofthe Statute of the TCTY afer the Secury Council at the proposal of France, adopted on 22 February 1993 Resolution {808 (1993), by which it decided vo establish an interaional ebunal (The Path othe Hague, pra note 2,at 13) 2 In operative para, 2 of Res. 827 of 25 May 1993, the Security Council decided‘ establish an international ribunal forthe sole purpose of prosecuting persons responsible for serious violations of intcrational humanitarian law commited in the territory of the former Yugoslavia berween 1 January 1991 and a dae be determined bythe Security Council upon the restoration of peace and to this end to adope the Statute of the Intemational Tribunal annexed to the above-mentioned [Secretary-Generals] repre. The Security Council amended che ICTY Statute by Res. 1166 (1998), fon 13 May 1998 co ad a tied Trial Chamber and thtee new Judges. Likewise, he Statue of the ICTR was amended by the Sceuity Council in ite Res 1165 of 30 April 1998 co provide fora third “Tal Chamber. 13The Path to Rome and Beyond exceeded its powers under the Charter, adopting an act that was patently alia by the same token, by creating criminal court only dealing with crimes allegedly committed ina particular country instead of granting to the new court jurisdiction over crimes committed everywhere in the world, the Security Council ‘opted for selective justice’ (iv) the Tribunal was clearly based on an anti-Serb bias. ‘While the las criticism is manifestly wrong (as shown, among other things, by the fair and impartial judicial activity of the Tribunal), and the Tribunal’s Appeals Chamber in Tadié\ Interlocutory Appeal) proved the second criticism to be wrong, it would seem that the other two objections are not unfounded. However, one could countet-object that, as long as an international criminal court endowed with universal jurisdiction is lacking, the establishment of ad hoe tribunals may prove salutary. ‘The ICTR was established in like fashion to the ICTY in response to the civil war in Rwanda and the ensuing horrific los of life and bloodshed. While many ofthe factors mentioned above with regard to the former Yugoslavia were also motiva- tions for the establishment of the ICTR, the overwhelming magnitude of the crimes committed there and the fact that they probably amounted to genocide lent particular urgency to the creation of the ICTR. Sensitive to criticism thac the establishment of the ICTY represented yet another illustration of the dispropor- tionate attention paid co the problems of Europe vis-i-vis the developing world, the international community was aso anxious to establish a tribunal for Rwanda so as to assuage its conscience and shield itself from accusations of double-stan- dards. An additional feature leading up to theestablishment of the ICTR was that, in the early stages atleast, the proposal to establish an international tribunal for Rwanda was an initiative of the new Rwandan government. As they set about their task of post-war reconstruction, the new government had initially felt that fone means of attracting international blessing for the new regime would be through a national process of self-examination and judicial condemnation of the worst abuses that had occurred during the civil war ‘The Statute of the Rwanda Tribunal was adopted in Security Council Resolution 955 of 8 November 1994, after having noted a number of reports on the situa~ tion in Rwanda which indicated that ‘genocide and other systematic, widespread & Ina 1994, the Security Council pase Res. 995, singe precedent ofthe former Yugoslavia as model, ro establish 2 commision of expers to invexigate voltions commited dung the Randa civil war (ce SC Res. 935, UN SCOR, 49¢h Sess, 3400th meg, at I, UN Do. SIRES/939 (1994)). The Rwandan commission lasted only four months which was not long enough for tro ‘fletvely perform itstask On | October 1994, che Rwandan commision submitted its prelimi Feport tothe Secreary-General, a submitted a final report on 9 December 1994 (ee Peli Fepor ofthe lnependen Commision of Esper Esablahe in accordance with eerty Counc Resolution 985 (1994), UN SCOR, UN Doe. $/1994/1125 (1994); Final Reporcof the Commission ‘of Expers Established pussuan to Scurry Council Resolution 935 (1994) and Annex, UN SCOR, UN Doc. §/1996/1405 (1994). 4 and flagrant vilat in Rwanda’, and ha threat to internatic ICTY and the ICT. ‘mon appellate char doc tribunals; but administer internat ‘After the decision effort to function, fatigue’ Indeed, + Yugoslavia and for United Nations a Council, asthe orp with issues and pre and as a result Furthermore, the F international confl the setting up of t approach’ chosen 1 this body simply d tions that meanwh others, the situatio to the establishmet it actively dealt wi the Secretary-Gene ‘Cambodia the Sec ‘Cambodian Parlia committed in the judges, partly of i United Nations > Ibid Are ofthe ceate persons respon tericaryof Rods ans rncghbourng Say ‘lon ofthe present 1 ® Ateem aptly coin Permanent Representa See UN Doe. 5) 16 January 2002 by the Coure (ee huptlew Sierra Leone: Some ret chat was patently alee ‘nly dealing with crimes ranting co the new court fd, the Security Council sed onan anti-Serb bias. tong other things, by the the Tribunal’ Appeals dcriticism to be wrong, founded. However, one friminal court endowed ‘of ad hoe tribunals may {response to the civil war shed. While many of the dslavia were also motiva- Jning magnitude of the y amounted to genocide ftive to criticism that the tration of the dispropor- {isthe developing world, sha tribunal for Rwanda susations of double-stan- fncofhe ICTR was that, Juerational tribunal for ‘ment. As they set about lent had initially fee chac f new regime would be Fil condemnation of the rity Council Resolution of reports on the sieua- trsystematic, widespread | [edenrofthe former Yoosavia fans commied during the hrevat UN Doe. SIRES35 ru not long enough for ion submited ts preliminay ee 194 se Preliminary with Secsity Cour inal Reporcathe Commision 1938) and Annex, UN SCOR, From Nuremberg to Rome and flagrant violations of international humanitarian law have been commicted in Rovands’, and having determined that ‘this situation continues to constitute a threat to international peace and security’ Even though the Statutes for the ICTY and the ICTR differ, the Tribunals share common Prosecutor and a com- ‘mon appellate chamber. This may appear to be a curious formula for separate ad hoc wibunals; but perhaps it demonstrates the need for a permanent body to administer international criminal justice. ‘After the decision to create the Rwanda Tribunal, which took much time and effort co function, che Security Council arguably reached 2 point of ‘tribunal fatigue’ Indeed, the logistics of setting up the ad boc Tribunals for the former Yagoslavia and for Rwanda had strained the capabilities and resources of the United Nations and consumed the Security Council’ time. The Security Council, as the organ that created both Tribunals, found itself frequently seized with issues and problems concerning these Tribunals and their administration, and asa result became less inclined to establish other similar organs. Furthermore, the highest political body of the UN did not consider that other international conflicts deserved the establishment of an ad hoc tribunal. Afterall, the setting up of the ICTY and the ICTR had been the result of a ‘selective approach’ chosen by the Security Council. After 1994, at least for some time, this body simply did not see Fic to take the same approach with regard to situa tions that meanwhile were arising in the world. Later on it considered, among ‘others, the situation in Sierra Leone, Cambodia, and East Timor as likely to lead to the establishment of an ad hoc international court. In the case of Sierra Leone ic actively deale with the matter and eventually, in October 2000, at its request the Secretary-General drafted the statute of a Special ‘Tribunal: in the case of Cambodia the Sceretary-General discussed at length the establishment, by the Cambodian Parliament, of a Cambodian special tribunal dealing, with crimes committed in the past by the Khmer, and composed partly of Cambodian judges, partly of international judges. In the case of East Timor, in 2000 the United Nations ‘Transitional Administration in East Timor (UNTAET), by 2 Tid. Art. ofthe Statute of che ICTR hus declared that the ICTR ‘shall have the power ta pros- ‘cute persons responsible fr serine woltions of interational humanitarian lw commited in the teritory of Rwanda and Rwandan citizens responsible fr such violations commited inthe rexitony ‘of neighbouring States, beewecn I Jansary 1994 and 31 December 1994, in accordance with che pro- ‘sions of the present State % Basiouni, The Stte ofthe International Criinal Cour spranote 22,210, note 50, Theseat ofthe Rovanda Tribunal isin Arusha, Tanzania, term apy coined by David Scheffer, then Seniox Counsel and Advisor to the United States Permanent Representative tothe United Nations cite i ibid. at 10, nore 53. See UN Dac. $/2000/915. See also SC Res. 1315 (2000). Se also the Agreement signed on 16 Janvary 2002 by che UN with ies Leone andl enntainingasan Annex the Statute of the Special Coust (ee hep: mune specalourt org) On the whole mater, se M. Puli, "The Special Court for Sierra Leone: Some Preliminary Cornea, 11 EJIL (2000) 857-869. 15The Path to Rome and Beyond Regulation 2000/15 sec up ‘Panels’ having exclusive jurisdiction over ‘serious- criminal offences, including crimes against humanity and genocide. ‘The first stage of ad hactribunals (1993-1994) coincided with the renewed efforts for establishing a permanent international criminal court, and, by demonstrating the high relative costs ofan ad hoe approach to criminal prosecution, enhanced its prospects for success. ‘Moreover, the two ad hoc Tribunals gained, on the whole, worldwide recognition and credibility, and events in Yagoslavia and Rwanda did serve to shock the world ‘out of its complacency. The idea of prosecuting chose who committed intet- national crimes acquited a broad-based support in world public opinion and many governments. The international community in turn became more vocal etsal recognition that would not suffer about a permanent institution with wi from the problems of ad hocinstcutions. B. The Adoption ofthe Statute fora Permanent International Criminal Court in the former While limited both temporally and geographically to the confi ‘Yugoslavia and Rwanda, the overall successes ofthe ICTY and ICTR, respectively, provided a final spur to the emergence of the ICC, an organ of global jurisdic nal reach and thus potentially able to respond to violations occurring any- ‘where. Inaddition, asymbolic significance had emerged from these experiences in terms of their moral legacy, and much accumulated jurisprudence regarding the interpretation of the offences punishable in terms of the new Statute, Both could be draven upon by those secking a permanent, effective, and politically uncom- promised system of international criminal justice. Substantively, the process of drafting and enacting the Statute of the Intern Criminal Court built on the work of the International Law Commission (ILC) from the 1940s onwards. The question of an international criminal court came back onto the United Nations’ agenda by an unexpected route in 1989 after a hia- cus of thirty-six yeas, following suggestion in the General Assembly by Trinidad and Tobago that a specialized international criminal court be established to deal ‘with the problem of drug trafficking. In response to the General Assembly's man- date arising out of the 1989 special session on drugs, the ILC in 1990 completed a report which was submitted to the 45th session of the General Assembly. Though that report was not limited to the drug trafficking question, it was, nonetheless, favourably received by the General Assembly, which encouraged the TLC to continue its work. The ILC produced a comprehensive text in 1993, which was modified in 1994.” Report ofthe Intemational Law Commission, 46h Ses, 2 May-22 July 1994, UN GAOR, 49th See, Supp. No. 10, UN Dac. A/49/10 (1994), 16 The 1994 ILC re was submitted t0 consider itacits 5 proposal. This ec Establishment of sessions of two we ‘Hoc Committee Assembly to estat an International ¢ ‘The Draft Statute Rome of 15 June. 173 pages of texts to entire provision tribute to the Dre lated this comple Although World ‘math contained ¢ then, some 250 c1 occurred, which, million casualties worst perpetrator tors, have seldon benefited from in In the course of four ad hoe Tribu then ac The Hay 1919, the world’s hoc bodies to inw sively recognized ‘ment of a permar ‘Theestablishmer represents, on. 0} ™ Tid, % See} Balin,'# Nouvelles Bude: péna “© Bassouni, Thethe renewed efforts by demonstrating cution, enhanced its 0 committed inter- public opinion and became more vocal 1 would nor suffer ICTR, respectively, n of global jurisdic- ions occurring any- these experiences in ence regarding, the Stature. Both could 3d politically uncom- ofthe International ‘Commission (ILC) ‘timinal court came ein 1989 after a hia- [Assembly by Trinidad te established to deal Assembly's man- in 1990 completed a fal Assembly. Though hy ie was, nonetheless, couraged the ILC to fin 1993, which was {—______ 2 july 1994, UN GAOR, From Nuremberg to Rome ‘The 1994 ILC report on the Draft Statute for an International Criminal Court ‘was submitted to the 49th session of the General Assembly, which resolved to consider it at its 50th Session, but first it set up an ad hoccommittee to discus the proposal. This committee, referred to as the 1995 Ad Hoc Commitee for the Establishment of an International Criminal Court, met intersessionally for two sessions of two weeks each from April through August 1995. In late 1995, the Ad Hoc Committee produced its report which became the basis for the General Assembly to establish the 1996 Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).. The Draft Starute and Draft Final Act submitted to che Diplomatic Conference at Rome of 15 June-17 July 1998 consisted of 116 articles which were contained in 173 pages of ext with some 1,300 words in brackets, representing multiple options to entire provisions or only to some words contained in certain provisions. Iewasa tribute co the Drafting Committee and the Diplomatic Conference to have trans- lated this complex draft into a text acceptable to large number of States. VI. Conclusion Although World War was dubbed as‘the war to end all wars itsimmediate after- math contained the seeds from which World War II would later erupt. Yet since then, some 250 conflicts ofan international and non-international character have ‘occurred, which, along with tyrannical regimes have produced an estimated 170 million casualties and other inestimable harmful consequences." However, the ‘worst perpetrators of these crimes, including decision-makers and senior execu- tors, have seldom been brought to account for their misdeeds and have instead benefited from impunity. In the course of the last fifty years, as the world’s major political powers saw fits four ad hoe Tribunals have been established: frst at Nuremberg and Tokyo, and then at The Hague and Arusha. Throughout the seventy-five years following 1919, the world’s major powers, selective as they may have been in establishing ad Joe bodies to investigate certain international crimes, have nevertheless progres- sively recognized the aspirations of international civil society for the establish- ‘ment ofa permanent system of international criminal justice. ‘Theestablishment ofthese ad boc Tribunals and the International Criminal Court represents, on one hand, the relative failure of prosecution through national ™ Ti » See], Baling, ‘An Empirical Sudy of Confer, Conlce Victimization and Legal Redres, 14 Newell Eudes penaes(1998) 10 ‘9"Basiouni, The Stree of the International Criminal Court rupranote 22,7 7The Path to Rome and Beyond jurisdiction, The obligation of States to prosecute and punish persons accused of serious violations of international humanitarian law through their respective national jurisdictions arises out of their treaty obligations," most notably those under the 1949 Geneva Conventions.” However, these provisions on national jurisdiction over grave breaches have been, at least until recent years, a dead letter” With the establishment ofthe ad hocInternational Criminal Tribunals forthe for- mer Yugoslavia and for Rwanda, che enforcement of international humanitarian law moved into a new and more effective phase. Nevertheles, itis the enactment of the ICC Statute which represents the pinnacle of the institutionalization and niversalization of measures for the enforcement of internacional humanitarian law. The ICC fulfils the purposes both of a symbol of justice and, with the requisice support of States, will also be capable of providing an effective judicial remedy that can fairly mete out at east some retributive and restorative justice. ‘Once coming into existence, itis hoped that the ICC will herald a new era for the effective prosecution and punishment of serious violations of international humanitarian law wherever such abuses may occurand by whomever they may be perpetrated. Inso doing, che ICCislikety become the centra pillar in the world community for upholding fundamental dictates of humanity. Select Bibliography ‘THE NUREMBERG AND TOKYO TRIBUNALS H. L. Stimson, “The Nuremberg ‘Trial: Landmark in Law’, 25 Foreign Affurs (1947) 179; HH. 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