Universal Criminal Jurisdiction and an International Criminal Court

The UN and an International Criminal Court

The identification and prosecution of international offences led to proposals for the creation of a permanent international criminal court early on, most notably after the First World War, when the permanent International Court of Justice was established. Interest was then rekindled after the Second World War, when the Nuremburg and Tokyo international military tribunals were created.²

The Tokyo and Nuremburg tribunals were created on the basis of states' criminal jurisdiction over the main war criminals.³ The joint exercise of individual jurisdiction undoubtedly had considerable influence on the juridical quality of the trials and the corresponding verdicts, making their probative value indisputable. The Tokyo and Nuremburg tribunals, which amounted to the joint exercise of national criminal justice of first instance on the basis of universally punishable acts, have had a lasting influence on both the definition of the elements of international offences against the peace and security of mankind and on the responsibility of states for international offences. Due to the cold war, however, utilization of this experience got bogged down.

In the years following the Nuremburg and Tokyo proceedings, there was an unmistakable desire to generalize the experience gained from the ad hoc jurisdiction of the international military tribunals, as evidenced by the UN General Assembly's statement confirming "the principles of international law recognized by the Nuremburg Tribunal and in the judgment of the Tribunal."⁴ In fact, the UN General Assembly directed the UN Committee on Codification of International Law to treat the formulation of the Nuremburg principles - either in the form of a general codification of offences against the peace and security of mankind or in the form of an international criminal court - as a particularly urgent task.⁵ At the same time, the International Law Commission (ILC) was asked to formulate the Nuremburg principles and to prepare a draft code of offences against the peace and security of mankind based on those principles.

In addition, the question of an international criminal court was raised during the drafting of the Convention against Genocide.⁶ Unfortunately, however, the discussion was from the beginning confined to the question of whether the prosecution of crimes encompassed by the Convention should fall under the national jurisdiction of the state in which the offence was committed or under the competence of an international criminal court.⁷ The compromise finally reached, today embodied in Article VI of the Genocide Convention, provides that the competent courts are those of the state on whose territory the offence is committed or "an international criminal court which can dispense justice for those states party to the convention that have recognized its jurisdiction."⁸ This formula replaced the language of the original draft bearing a reference to the competence of an international criminal court. It should be noted, however, that many states which voted against an international criminal court in the context of the Genocide Convention subsequently declared that in principle they had nothing against the establishment of such a court; they claimed they did not vote for it at the time because it was a mere hope, not a possible reality.⁹

In light of this debate, the General Assembly concluded that "the development of the international community will lead to a growing need for an international judicial body competent to judge certain crimes under international law," and called on the International Law Commission "to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions".¹⁰ At the center of the discussion on an international criminal court were such major names as Donnedieu de Vabres, Pella, Graven and Sottile.¹¹

At its very first meeting, the International Law Commission appointed two rapporteurs to study these questions, R.J. Alfaro and A.E.F. Sandstrøm. Alfaro regarded the creation of an international criminal court as desirable and possible.¹² Sandstrøm, however, was of the opinion that this sort of court could not be effective in the given international circumstances and therefore was undesirable.¹³ Following exhaustive discussion, the International Law Commission, by a large majority, came to the finding that creation of such an organ was desirable and possible.¹⁴

Virtually simultaneously, J. Spiropoulos submitted his first report on the proposed code of offences against the peace and security of mankind. He discussed the problem of its implementation¹⁵ and, in principle, set forth two possibilities: the creation of an international criminal court or, alternatively, prosecution by national courts. After discussing the pros and cons of both possibilities, he recommended that the model of the Genocide Convention be followed. Prosecution should be incumbent upon the state on whose territory the crime had been committed and other states should be obliged to extradite. In cases of dispute there should be mandatory competence for the International Court of Justice in order to guarantee control over the functioning of the system.¹⁶

The General Assembly then decided to sever the direct link between discussions surrounding the potential establishment of an international criminal court and discussions on the proposed Code and to set up a Committee on International Criminal Jurisdiction to study questions regarding the court.¹⁷ However, only a few states responded to the Committee's report which, in its annex, included draft statutes for an international criminal court.¹⁸ Nevertheless, the report was exhaustively discussed at the Seventh General Assembly. Then, after considering whether or not to defer the matter, the General Assembly set up a new committee to study the circumstances and consequences of creating an international criminal court and to examine the proposed court's potential relationship to the United Nations.¹⁹ This committee's report, which contained thoroughly re-worked draft statutes, was submitted to the General Assembly in 1954²⁰ to be considered along with two other documents the International Law Commission's second draft for a code of offences against the peace and security of mankind²¹ and the report of the committee dealing with the definition of aggression, which had come to no result.²² In the end, the Assembly decided only to continue efforts at consensus on a definition of aggression;²³ work on statutes for an international criminal court and work on the Draft Code of Offences against the Peace and Security of Mankind was postponed.²⁴

This brought work on an international criminal court under the UN almost to a standstill. And although work on a code for offences against the peace and security of mankind was resumed in 1981 - after the 1974 adoption of a definition of aggression - the debate concerning statutes for an international criminal court was not resumed. In the meantime, however, the question of international criminal jurisdiction had been raised in another context - in connection with work on the Convention on the Suppression and Punishment of the Crime of Apartheid.²⁵ In 1972 a Human Rights Commission working group submitted a study on apartheid and international criminal law.²⁶ Article V of the Anti-Apartheid Convention kept open the possibility that in the future, in addition to the principle of universal criminal jurisdiction to be applied by all states' domestic courts, there would be an international criminal court with jurisdiction over crimes of apartheid. In this it went further than the Convention against Genocide, since it set universal criminal jurisdiction and jurisdiction of an international criminal court side by side. The international criminal court remained, however, a mere possibility in this context as well. Serious attempts to set up any such criminal court were never made. In 1980, in its programme for the second half of the Decade of the Struggle against Racism, the UN General Assembly directed the Human Rights Commission to prepare statutes for an international criminal court²⁷ to support implementation of the Anti-Apartheid Convention's provisions regarding the prosecution of the crime of apartheid. Later that year a draft prepared by Bassiouni was submitted to member states for comment.²⁸ But work in the UN context again abated.

Meanwhile, during the 1970s, non-governmental international organizations put forward several proposals for an international criminal court.²⁹ Then, in 1979 the ILA, reworking prior proposals, presented a complete draft for an international commission of investigation and an international criminal court;³⁰ a revamped version of this draft was adopted in Paris in 1984.³¹

In sum, the question of an international criminal court has repeatedly arisen in the UN in connection with the debates on the Code of Offences against the Peace and Security of Mankind. The International Law Commission, however, has never been given a mandate to draw up statutes.³² But in 1988, after the International Law Commission in effect adopted the principle of universal jurisdiction as a basis for the Code - though without ruling out the possibility that in the future an international criminal court would be created³³ - the General Assembly took note of "the approach currently envisaged by the International Law Commission in dealing with the judicial authority to be assigned for the implementation of the provisions of the draft code, and encourage[d] the Commission to explore further all possible alternatives on the question."³⁴ This has encouraged efforts to rethink the various possibilities for implementing a code of offences against the peace and security of mankind.

2 On the history of these proposals see M.C. Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) 1; M.C. Bassiouni, International Criminal Law (1986) at 3, and his survey of the numerous official and unofficial texts at 187; M.C. Bassiouni, International Criminal Law: A Draft International Criminal Code (1980); B.B. Ferencz, An International Criminal Court - A Step Toward World Peace - A Documentary History and Analysis (1980); Bloom, `Introduction to Various Drafts Concerning an International Criminal Court', in J. Stone & R.K. Woetzel (eds.), Toward a Feasible International Criminal Court (1970) 159; which also contains a survey of the proposals since the First World War by J. Graven entitled La Première Tentative Consécutive à la Guerre de 1914-1918 at 96, and the subsequent Chapters 11, 12 and 13 (at 96-141); see also the Historical Survey of the Question of International Criminal Jurisdiction compiled by the UN General Secretary in UN Doc. A/CN.4/7/Rev.1, New York 1949.

3 Resolution 95 (I) of 11 December 1946, reprinted in P. Klein, Die UNO (1966) 191.

4 Resolution 177 (II) of 21 November 1947.

5 See P. A. Steiniger, Der Nürnberger Prozeß, Vol. I, (1957) 51; P. A. Steiniger, Fall 3, Der Juristenprozeß (1969) 13.

6 On this, see Historical Survey, supra note 1, at 30.

7 See id. at 36.

8 See text reprinted in Völkerrecht, Dokumente Teil 1 (1980) 220.

9 Historical Survey, supra note 1, at 41.

10 Resolution 260 B (III) 9 December 1948.

11 Donnedieu de Vabres, `De l'organisation d'une juridiction criminelle internationale', Revue internationale de droit pénal (1949) 3; V. Pella, Memorandum sur l'établissement d'une Cour criminelle internationale, doc.A/AC.48/3, 17 July 1951; V. Pella, `Towards an International Criminal Court', AJIL (1950) 37; Graven, `La juridiction pénale internationale', Revue de droit international des sciences diplomatique et politique (1951) 363; Sottile, `Le Problème de la Création d'une Cour pénale internationale', Revue de droit international des sciences diplomatique et politique (1951) 115.

12 UN Doc. A/CN.4/15.

13 UN Doc. A/CN.4/20; on this, see Graven, `La Décision Positive de la Commission du Droit International sur L'Institution d'une Cour Criminelle Internationale', in J. Stone & R.K. Woetzel (eds.), Toward a Feasible International Court (1970) 168 and the following chapters 17 and 18 (at 168-222).

14 See YbILC (Vol. II) (1950) 15.

15 See YbILC (Vol. II) (1950) 253. A/CN.4/25.

16 Id. at 276.

17 UN Doc. Resolution 489 (V) of 12 December 1950.

18 UN Doc. A/2136.

19 UN Doc. Resolution 687 (VII) of 5 December 1952.

20 UN Doc. A/2645.

21 See YbILC (Vol. II) (1954); see also the text reprinted in The Work of the International Law Commission (New York 1988) at 141.

22 UN Doc. A/2638.

23 Resolution 895 (IX) of 4 December 1954.

24 Resolution 898 (IX) of 14 December 1954.

25 The text in Völkerrecht, Dokumente Teil 3 (1980) 886.

26 See UN Doc. E/CN.4/1075 of 15 February 1972.

27 See Resolution 34/24, Annex para. 20, of 15 November 1979.

28 See UN Doc. E/CN.4/AC/22 CR at 19/Rev.1.

29 See, e.g., Draft Statute for an International Criminal Court, Foundation for the Establishment of an International Criminal Court, Wingspread 1971 and 1973; Draft Statute for an International Criminal Court, World Conference on World Peace through Law, Abidjan 1979.

30 See Report of the 59th Conference, Belgrade 1980, London 1982, at 400.

31 See Report of the 61st Conference, Paris 1984, London 1985, at 257; see also the Draft Statute of the International Tribunal in M.C. Bassiouni, A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal (1987) 217.

32 UN Doc. A/38/10, para. 69c.

33 UN Doc. A/43/10, at 174.

34 Resolution 43/164, para. 2.

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