An International Criminal Code and Court: Where They Stand and Where They're Going

From The Columbia Journal of Transnational Law

Vol. 30, Number 2, 1992

By Benjamin B. Ferencz

BACKGROUND

For almost fifty years, nations were unable to agree upon a definition of international aggression. It was easier to commit aggression than to define it. Writing in this journal in 1973, I concluded; “The time for political decision and action has arrived. The most important thing about defining aggression is to define it.”  The following year a census definition of aggression was finally reached by the United Nations.

The U.N. definition was vague and unenforceable, yet it had great significance. It was a sieve, but it also had substance. It reflected a persistent hope, if not determination, that the aggressive actions of sovereign states could be curbed by a rule of law. Moreover, it cleared the way for nations to resume work creating a draft code of offenses against the peace and security of mankind as well as an international criminal court.

The work was initiated in 1946 by the first General Assembly of the United Nations which decided that the important principles and precedents created by the Nuremberg Charter and Judgment of the International Military Tribunal at Nuremberg should serve as the basis for further codification of international law. The committee designated to codify international criminal offenses decided to seek the advice of an international law commission (ILC) that was still to be created. The Assembly agreed to classify genocide as an international crime, but could not reach a consensus to create a court to punish that or any other international offense. That question was referred to the new ILC in 1948.

It was 1950 before the ILC had an initial report on a draft code. In it, the ILC reaffirmed the crimes enumerated in the Nuremberg Charter – aggression, war crimes, and crimes against humanity – as international crimes. The Nuremberg principles that Heads of State and accomplices were not free of responsibility, that acting under superior orders was not an excuse if moral choice was possible, and that the accused was entitled to a fair trial were all endorsed by the ILC report.

A Soviet proposal that aggression be defines was also referred to the ILC by the U.N. General Assembly – the same Assembly that has described aggression as “the gravest of all crimes against peace and security throughout the world.”  Despite the work of several Special Committees, the attempt of nations to agree upon a definition of aggression elicited more aggression than definition.

By the end of 1954, the General Assembly decided that further action on an international criminal code and the establishment of international criminal law jurisdiction be postponed pending agreement on a definition of aggression – which was nowhere in sight. According to the majority, the time was not yet ripe, and here was no purpose in trying to reach agreement about an international criminal code or court as long as the principal international crime, aggression, was not yet defined. Without such definition there could be no code; without a code there was no need for a court. Everything was thus linked, and finally put on ice. The chilling winds of the ideological cold war between the Soviet Union and the United States kept the process frozen for twenty years.

During this period, the need for some improved legal mechanism to control the violent behavior of nations became apparent to many people. The war in Vietnam illustrated the enormous devastation and futility of modern warfare. Airplane hijacking and terrorism seemed to run rampant. Apartheid and other human rights violations remained unchecked. Incessant internal and external wars threatened the security of people everywhere. Public demand for corrective action began growing.

When détente began to melt the walls between the superpowers, it became possible for an international consensus to define aggression. Thus, the stated barrier to resuming work on a code of crimes and the international criminal court was removed, and nations presumably could move toward creating a more effective rule of law.

Independent legal experts from various parts of the world, working free from the constraints of national and international politics, drafted codes of crimes and statues for an international criminal court. The U.N. responded with new, albeit ambiguous, resolutions – the best that could be done to achieve consensus along sovereign states with differing perceptions of what was permissible intentional behavior.

THE DRAFT CODE OF INTERNATIONAL CRIMES TAKES A STEP FORWARD

By the end of 1977, several states requested that the draft code again be replaced on the U.N. agenda. By 1978, the topic was being debated in the Sixth Committee. In 1980, it was clear from the statements of the 61 delegates who took the floor that the overwhelming majority were in favor of codifying international criminal law – despite the opposition of skepticism of many Western nations. For the reluctant minority on the Sixth Committee, unable to kill the code idea completely, the next best policy was to stall as long as possible and then refer the topic back to a somnolent ILC where it had rested peacefully since 1954.

In 1982, the ILC appointed Mr. Doudou Thiam, a former Minister of Senegal with no special expertise in international criminal law, as Special Rapporteur for the draft code. Each year thereafter he issued reports describing problems or offering drafts of the provisions being debated by members of the Commission. As might have been expected, the code was going practically nowhere.

A major breakthrough in the political climate occurred when General Secretary President Gorbachev announced a new policy calling for a world-wide comprehensive security plan which included strengthening the rule of law and acceding to the jurisdiction of international courts. However, perestroika brought the advent of new freedoms and was soon followed by such radical changes in the Soviet system that the USSR was no longer perceived as a significant military threat to vital western interests. The door opened for cooperation between the Soviet Union and the United States.

When, in 1990 Iraq invaded Kuwait and claimed Kuwait’s territory as its own, the Security Council was able for the first time to act collectively in an effort to stop aggression. After diplomatic efforts failed, coalition armies, led by the United States, used efforts failed, coalition armies, led by the United States, used devastating, military power and drove Iraq out of Kuwait. World leaders began to speak about a “New World Order” where the rule of law would replace the law of the jungle. The new political atmosphere made it easier to approach the problems of a draft code of crimes and an international criminal court in a more rational and objective way. Hopes were aroused that the law of force might be replaced by the force of law.

By July 1991, the ILC under pressure to produce something, succeed in completing a first reading of a draft code of crimes against the peace and security of mankind. It was, admittedly, an imperfect instrument, but it was intended to enable states to focus more clearly on the many issues that would have to be resolved before the code could become an accepted reality.

The draft of the twenty-six articles was divided into two parts. Part I defined and characterized the crimes and enunciated certain general principles. Stated offenses were all crimes against the peace and security of mankind even punishable under the internal law of a state (Articles 1, 2). Individuals, including those who aided, abetted or attempted the crime, would be held responsible (Article 3). The general principles stipulated that virtuous motives would not excuse an offense; states would be responsible for their acts and for their omissions; and states would be obliged to either try or extradite the accused (Articles 4, 5, and 6). No statute of limitations would apply; fair trial would be mandatory; as further protection, there would be no double jeopardy or retroactive application of the code except for deeds which were previously recognized as international crimes (Articles 8, 9, and 10). The order of a superior would not excuse the crime, nor would the superior be relived of responsibility – regardless of official position (Articles 11, 12, and 13). Finally, the hearing court would decide about permissible defenses and extenuating circumstances (Article 14).

Part II of the ILC’s draft code enumerated the specific crimes covered by the code: an act or threat of aggression “by a State”; intervention in the internal affairs of a state; colonial or alien domination; genocide; apartheid; systematic or mass violations of human rights; “exceptionally serious” war crimes; recruitment, use, financing and training of mercenaries; international terrorism; illicit traffic in narcotic drugs; and willful and severe damage to the environment (Articles 15 through 26).

To be sure, the ILC code was far from complete or free of ambiguity. When these proposals came before the Sixth Committee, the delegates heaped their customary praise on the Special Rapporteur for his skill in making such remarkable progress but then proceeded to point out the many shortcomings in the draft.

Some of the clauses were too broad or too vague. For example, a State is said to be the “main victim” of the crimes covered (Article 9) superior orders were no excuse if it was possible for the perpetrators “not to comply” (Article 11); a threat of aggression is a crime only if there was a “good reason” to believe that the aggression was “being seriously contemplated” (Article 16). There are vague references to “any other form of alien domination (Article 18), “exploitation” of labor of “members of a racial group” (Article 20), violating human rights “in a systematic manner or on a mass scale” (Article 21), “exceptionally serious” war crimes, and “use of unlawful weapons”” (Article 22). These references are not specific enough to be useful in a criminal code. Crimes such as “tolerating acts” of a nature “to create a state of terror in the minds of public figures, groups of person or the general public” (Article 24), “encouraging illicit traffic in narcotic drugs on a large scale” (Article 25), or doing “long-term and severe damage to the natural environment” (Article 26) and others are not defined at all.

Many of these vague or ambiguous expressions derived from political declarations or conventions with terminology dictated by the drive for consensus but totally inadequate to meet the standards of precision and clarity required by a penal statute designed for the fair trial and conviction of individual malefactors. How were the prior instruments, and their definitions, to be related to the code?  On some issues, bilateral and multilateral treaties already in existence would also have to be taken into account.

One of the problems that would certainly have to be clarified related to the role of the Security Council in dealing with the prosecution of the crime of aggression. Article 39 of the U.N. Charter assigns to the Security Council the responsibility for determining the existence of any act of aggression. The consensus definition of aggression, following the Charter, did the same. Yet the Council was not a judicial but a political body some of whose members, indeed those most capable of committing aggression, held a veto power. How could the veto power and the prosecutorial role of the Security Council be reconciled with a fair and impartial trial?  The question was raised by the ILC, but no answers were offered.

In the rather understated words of the ILC itself, the draft was “still open to some improvements, which can be made on second reading, with the benefit of further points made in the comments and observations of Governments.”  Despite severe infirmities, no one suggested that the draft was dead on arrival and could not be resuscitated. It would be fair to conclude that most nations regarded the 1991 first draft of a code of crimes against the peace and security of mankind as encouraging, if faltering, step in the right direction.

PROGRESS STALLED IN ESTABLISHING AN INTERNATIONAL CRIMINAL COURT

Attempts to create an international criminal court to deter aggression and terrorism began in the days immediately fo9llowing World War I. Such a court was recommended by a distinguished Committee of Jurists and by many other legal scholars, led by a Romanian Professor, Vespasian V. Pella, who wrote extensively on the subject. He prepared detailed draft statutes for an international criminal court to be attached to a 1935 draft convention against Terrorism and to the 1947 Secretariat draft of the Genocide Convention. Despite extensive support for an international criminal court by impartial legal scholars and several international law societies, the combined efforts were in vain. Sovereign states were simply not ready to subject themselves or their citizens to the judgment of independent tribunals.

The situation changed, at least for a while, after the genocide and atrocities of World War II were disclosed. The western public cried out for action and the United States led the demand for an international criminal court to try the Nazi criminals. The first draft of the necessary legal instrument was prepared by the United States on April 30, 1945 – even before the war was officially over. Formal negotiations began in London on June 26, 1945 – the very same day that the U.N. Charter was signed in San Francisco.

The legal instrument establishing the International Military Tribunal (IMT) and codifying the legal principles, under which it was to operate, consisted of thirty brief articles. It set forth in clear terms how the court was to be constituted, its jurisdiction, the principles of law to be applied, how crimes were to be investigated and prosecuted, the guarantees for fair trail as well as procedures for judgment and sentencing. It took the four Allied Powers, The United States, Britain, the Soviet Union, and France, less than six weeks of formal negotiations in London to reach the final agreement on the important code of international crimes and the milestone international criminal court.

Despite minor criticisms, that historic agreement was affirmed unanimously by the United Nations (Res.95 (I)) and has earned the general respect of the world community. Admittedly, the public pressures for the trail of major Nazi war criminals was enormous; the story of the International Military tribunal was a clear demonstration that a viable code and court can be created in a very short time – if there is the political will to do so.

Unfortunately, in the turbulent years following World War II, filled with ideological conflict and violence, some sovereign states, particularly those with military power, were not prepared to live by a universally binding rule of international criminal law. The United States in particular often seemed to have forgotten the lessons it tried to teach the rest of the world at Nuremberg.

Moral leadership in advancing the rule of law passed to smaller states. Ricardo J. Alfaro, former President of Panama, and later Judge on the International Court of Justice in the Hague, was appointed a Special Rapporteur of the International law Commission in 1950. He completed a comprehensive study and thoughtful analysis of the problems related to creating an international criminal court. He concluded: “If the rule of law is to govern the community of States and protect it against violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction.

Although the vast majority of the Commission was convinced that such a code and court were both desirable and feasible, the co-Rapporteur Mr. Sandstrom of Sweden noted in opposition that “the time cannot as yet be considered ripe for such an organ.”  He was unfortunately right. The General Assembly’s creation, a Committee on international Criminal Jurisdiction, produced thoughtful studies, interesting debates and reports as well as statuettes for an international criminal court, but no consensus was possible other than on a decision to defer action pending agreement on a code of international crimes. The code in turn depended on reaching consensus on the definition of aggression, which in turn depended upon agreement among the ideological rivals, which in turn depended on public pressure.

In any event, by 1989 there was a marked change. Trinidad and Tobago, ravaged by drug traders who terrorized local judges, and inspired by its Harvard-educated Prime Minister A.N.R. Robinson, a long-time advocate of international criminal jurisdiction, led a coalition of Caribbean states in calling for an international court to deal with drug trafficking and other international crimes. Despite U.S. opposition, the General Assembly made an unprecedented request to the International Law Commission: prepare a report5 on international criminal court within one year. An ILC-member, Professor C. McCafferty, reported in 1990 that on the Commission there was “broad agreement, in principle, on the desirability of establishing a permanent international criminal court within the United Nations system…. The international climate now appears particularly favorable for the establishment of such a court…. And it would be unfortunate if the opportunity were lost.

The Commission recognized, of course, that to be successful such a court would require wide support by the international community. Many nations that had previously seemed to oppose such a court now seemed to be shifting positions. The hesitant position of the United States, a key player, remained perplexing.

Despite the favorable reports from the ILC, the views of the United States regarding both code and court were essentially negative. In the Sixth Committee, the U.S. representative warned repeatedly that establishment of an international criminal court constituted a “real danger” since “the Court disrupt satisfactory implementation of the existing system.”

At that particular time, Iraq had completed the unlawful annexation of its peaceful neighboring state of Kuwait. Iraqi troops were busy murdering, torturing, raping, pillaging, burning and committing every conceivable war crime and atrocity against innocent civilians. At the same time, terrorism, drug trafficking and other crimes against humanity continued unabated. Why the United States thought the existing system was being satisfactorily implemented was not clear.

The crimes of Iraq’s President Saddam Hussein outraged people every7where, as evidenced by the repeated condemnations in the Security Council and the media. In a public television statement, President Bush warned Iraq to remember Nuremberg; Britain’s Margaret Thatcher (as well as Mrs. Bush) had been more explicit in calling for prosecution before a Nuremberg-type tribunal. Germany’s Foreign Minister Genscher, echoing earlier appeals, told the General Assembly: “We call for an international court of justice of the United Nations where crimes against humanity, crimes against peace, genocide, and environmental criminality can be prosecuted and punished.

Former Nuremberg Prosecutors, meeting at a reunion in Washington, issued a resolution calling upon the United Nations and all peace-loving nations to take action to prosecute and punish the criminals. On October 27, 1990, the U.S. Congress passed a law requiring t5hen President to report to Congress by Oct.1, 1991 “the results of his efforts in regard to the establishment of an International Criminal Court.”  The sponsors of that law were clearly in favor of establishing an international criminal tribunal.

The ILC did not attempt to submit draft articles for an international criminal court in its reports of 1991. However, it did offers as a basis for consideration some provisional formulations and an extended commentary on two issues: 1) the court’s jurisdiction: how it could be conferred, whether it was concurrent or exclusive or for review only, which crimes would be dealt with by which courts, and whether states must somehow consent in advance; 2) the requirements for instituting criminal proceedings: whether by states or other entities, and the kind of Security Council action needed if aggression was charged.

The official response of the United States, as reflected in the Sixth committee, remained ambivalent, if not negative. U.S. representative Robert Rosenstock (soon to replace Professor McCafferty on the ILC) declared that an international criminal court was “an enormously complex and far-reaching endeavor, raising profound legal, political, and practical questions.”  He called for more analysis by the ILC but thought that draft statute for the court would be premature and unwise. He asked whether there was a compelling need for such a tribunal, and cited the 1990 ILC Report, which referred to “the danger of disrupting satisfactory implementation of the existing system.”  He failed to mention that his quotation of the ILC Report was nothing more than a reference to the p0rior United States position. Nor did he quote from the very next paragraph of the Report in which the Commission concluded: “It has now emerged that international crime has achieved such wide dimensions that it can endanger the very existence of States and seriously disturb international peaceful relations… A recognized advantage of an international court is the uniform application of the law with the best possible guarantees of objectivity to try these kinds of crimes.”

Instead, Rosenstock called for ratification of existing extradition conventions. He argued that states would resist handing terrorists and drug traffickers over to an international court; he implied that the creation of a court would have no practical impact. To support his argument he referred to the cases of two alleged terrorists, Hamadei and Rashid, held by Germany and Greece, both of which refused to extradite them to the United States. Rosenstock failed to mention that the reason those governments were paralyzed was that they feared for the safety of their own nationals being held hostage by terrorist groups, although this point was acknowledged by the State Department staffer Michael Scharf, the apparent author behind much of U.S. policy.

Rosenstock also argued that the court would inevitably be politically tainted, which would cause many problems. On the other hand, the jurisdiction requirements suggested in the ILC Report might require dozens of countries to agree before the court could hear a case, and would “effectively prevent almost any case from ever coming before such a court,” said Rosenstock. He also listed, as had Mr. Knox the year before, the problems of court composition, procedures, custody, investigation, evidence and punishment as well as “funding for a massive bureaucracy” which would have to be resolved; thus he implied that such problems were practically insoluble. However, such problems were solved in a few weeks when the IMT was created and have also been solved by dozens of other international courts all over the world. Suggested solutions appear in the numerous draft statutes for an international criminal court and in the Nuremberg proceedings published by the U.S. Government. In true diplomatic fashion, Rosenstock concluded that “The United States is not suggesting that these problems are insurmountable… The United States believes the question of establishing an international criminal court requires further study.

Mr. Rosenstock was, of course, merely the messenger for the United States government. A somewhat less ingenious statement appeared in the Department of State’s response to the Congressional mandate that required the Administration to report to Congress by October 1, 1991 the results of its efforts in regard to the establishment of an International Criminal Court. In a six-page letter, the Department put forth the same arguments on which Mr. Rosenstock had heavily relied. It cited only the views of those states that seemed opposed to a court and ignored the views of the majority that favored it. It cited U.S. government participation in international quasi-governmental for a in Siracusa, Italy and “Talloires, Geneva” [sic] and noted that “[d]uring these conferences, participants expressed doubt about the near-term prospects for a standing international criminal court…”  It failed to note that the sponsors of both of those conferences were among the most determined and outspoken advocates for an international criminal court and their reports included drafts of statutes for it.

As for trying those responsible for “serious war crimes during the recent conflict in Iraq,” the Administration, as reported by the State Department, could not quite make up its mind. It was strongly suggested that trials by domestic courts, such s those in Kuwait, could best deal with Iraqi prisoners of war; similarly, the U.S. Code of military Justice allows the United States to try captured enemies. It apparently did not bother the Administration that such procedures might enable “kangaroo courts” to wreak their vengeance on minor offenders while the leaders, instigators and planners of the major crimes evaded justice. The United States remained “increasingly skeptical” about the possibility of achieving consensus on the numerous issues raised, and until acceptable solutions were found, the Administration believed “that the United States should not go on record in favor of such a court.”

Due in large part to the absence of supportive leadership by the United States, an international criminal court to cope with crimes that threaten the peace and security of humankind is going around in circles and getting nowhere. Several members of the ILC, recognizing that broad agreement existed in principle on the desirability of establishing a permanent international criminal court, urged that a small working group be set up which could, if the political will existed, bring the matter to a quick conclusion. As was to be expected, the Sixth Committee, without a vote, approved a draft resolution that invited the ILC to further analyze the issues. States were urged to submit their views on the draft Code of Offenses by the General Assembly which thereby sent the ILC back to the drawing board. Consideration of both court and code was thus postponed for still another year. 1992 was a year when some of the despair regarding the possibility of creating an international criminal court began to dissipate. The ILC was stirred from its lethargy as it reached out for a new regime of penal law. The continuation of massive international crimes that shocked the conscience of mankind gave rise to new protests and renewed demands that the criminals be brought to justice.

CONCLUSION: NEVER DESPAIR

Every civilized society is organized with clear laws – definitions of the permissible and impermissible – and courts to determine whether the laws have been violated. These two features of a society plus a system of effective law enforcement are linked and interdependent. To the extent that all three conditions prevail, there is relative tranquility; to the extent that they are absent, there is chaos. The prevailing international anarchy, reminiscent of America’s” Wild West,” must be replaced by an international system of law and order. President George Bush, addressing the General Assembly of United nations, called for “the rule of law rather than the resort to force… rather than anarchy and bloodshed…” As if to dispel suspicions that when he called for a “New World Order” in 1990 he was merely seeking to impose America’s own power on others, Bush assured the delegates in 1991 that “the United States has no intention of striving for a Pax Americana…. We seek a Pax Universalis built upon shared responsibility and aspirations.”

To be sure, the codification of principal crimes against the security of humankind and the creation of an international criminal court is not a simple matter. A serious effort to reconcile differing views and divergent legal systems and to find acceptable compromises will require diligence, dedication, skill and patience. The Nuremberg example, as well as the many other precedents created by relatively new international tribunals such as the European Court of Human Rights, the Court of the European Community, and the upcoming Law of the Sea Tribunal, demonstrate that given the political will, the codification and organization problems can be satisfactorily resolved. The basic problem remains: how does one get from here to there?

First, it is important to recognize that the notion of absolute state sovereignty is obsolete. ILC member Professor Graefrath wrote recently that “[I]n present day international law, sovereignty cannot be asserted to cover up crimes against the peace and security of mankind.”  Every time a nation enters into a treaty regarding trade, disarmament or anything else, it cedes some of its rights. But it also gains something in return. The correct notion of sovereignty, the power of the sovereign to better serve his people, is not diminished by treaties but rather enhanced. In this age of high technology and economic interdependence, all nations must, and do, conform to international requirements. We see it most clearly in the areas of communications, transportation, economics, health care, and the environment where, in order to better serve their own citizens, states freely give up some portion of their independence. Without the illusion of absolute state sovereignty, agreements are reached on the basis of mutual and generalized benefit. Why should a nation, or any group, be free to decide for itself when it may attack peaceful neighbor, or commit crimes against humanity, use terrorism, or engage in other criminal acts that threaten the security of humankind?  A system of planetary management can then be designed to yield at least minimum levels of security and human dignity to everyone.

Second, international law, to be worthy of its name, must be fair and universally applied – a Lex Universalis. It is one thing to subject your losing adversaries to trial and quite another to establish universally binding rules. When the United States took the initiative to establish the Nuremberg tribunals, its policy promised that the new international standards would apply to all nations equally. Justice Jackson put it best:

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put to our own lips as well…Civilization asks whether law is so laggard as the be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance. It does not expect that you can make war impossible. It does expect that your judicial action will put the forces of International Law, its precepts, its prohibitions and, most of all, its sanctions, on the side of peace, so that men and women of good will in all countries may have leave to live by no man’s leave, underneath the law.

Third, individual citizens, those who should be recognized as true sovereigns, must let it be known that in the nuclear and high technology age, a present system based on medieval concepts is no longer tolerable. The world, currently disorganized, allows aggression and genocide to be free from punishment, while states deliberately defile the environment free from liability. Innocent men, women and children are massacred while their murderers assert immunity from intervention by other states inn their internal affairs. Hostage-takers and other terrorists find sanctuary in friendly nations. Drug traffickers continue to plague humanity with impunity since nations remain either unwilling or unable to stop them. These are tragedies to the world. They mock and disgrace the international legal community. And all those who are prepared to endure such an irrational and inhumane system. If public opinion can be sufficiently aroused to demand change, there will be change. Only then can we look forward to a new and binding code of international crimes and the creation of an international criminal court as part of the President’s proclaimed “new world order, an order worth preserving for the ages.”

Despite the prevailing vacillation on the part of some states, there is reason to hope that significant progress can be achieved in the near future. When ILC Special Rapporteur Thiam presented his Tenth report, in March 1992, he devoted it entirely to the question of an international criminal jurisdiction. He noted the principal objections that had been raised against the court, but he presented arguments to refute the doubters and offered a number of alternatives to encourage consensus.

These alternatives were considered by the Commission in exquisite detail between May 4 and July 24, 1992. A wide range of opinion was heard regarding the law to be applied, the jurisdiction of the court, who could bring complaints, who could prosecute, the role of the Assembly and the Security Council, and a host of other issues that conceivably might arise. The diversity of views was impressive. There was always some meticulous lawyer who could find a problem for every solution.

Fortunately, the Commission decided to set up a 15-mmber working group to draft concrete recommendations. The Working Group elected Mr. Abdul G. Koroma of Sierra Leone as Chairman. After fifteen meetings, it submitted recommendations. Its report was praised as a highly valuable document even though it was perceived as “the minimum common denominator possible to achieve consensus.”

The Working Group reaffirmed the Commission’ conclusions – arrived at in 1950 and reiterated in 1990 – that it was possible to establish an international criminal court. Their recommendations included basic minimums: (I) An international criminal court should be established by a Statute in the form of a treaty; (ii) it should exercise jurisdiction over private persons rather than States in its first phase; (iii) jurisdiction should be limited to crimes defined in international treaties in force; (iv) in its first phase, at least, general compulsory jurisdiction should not be granted ipso facto by virtue of a State merely accepting the Statute, further agreement would be necessary; (v) the court would not initially be a standing full-time body, but an available legal mechanism that could be called into operation as required; and (vi) due process and impartiality must be guaranteed. According to the ILC, the time had come for the General Assembly to decide whether the Commission should proceed to draw up the Statute and the basis for an international criminal court.

It had taken the United nations over forty years to reach a point from which states could finally move ahead decisively to create a legal institution that could impose criminal responsibility on those individuals whose crimes jeopardized the peace and security of humankind. Although some state representatives remained hesitant, the ILC was ready to proceed quickly to draft the Statutes for an ad hoc international criminal tribunal with limited jurisdiction and authority, if the General Assembly would simply ask them to do so.

In the meantime, the need for an international criminal court was growing increasingly more urgent and more obvious to any people. One such example related to the terrorist bombing of an American passenger plane over Lockerbie, Scotland on December 21, 1988, (A French plane had been similarly downed.)  After almost three years of intensive investigation, a U.S. District Court indicted two Libyan nationals, allegedly officers of the Libyan Intelligence Services, for the crime. The United States alerted the Security Council as it demanded that Libya reveal the facts and hand over the accused for trail.

Libya refused to comply but declared “its readiness to cooperate to the full with any impartial judicial authority.”  The Security Council deplored Libya’s failure to respond effectively and urged it to provide a full repose immediately. Mr. Arria, Venezuela’s delegate to the Council made an impassioned plea: “[I]t is obvious that, as long as the perpetrators remain unpunished, terrorism will never cease.”  He deplored the lack of an international criminal tribunal, praised the 1990 appeal for such a court by Trinidad and Tobago’s Prime Minister Robinson, and asked: “[h]ow much longer will we have to way [sic] for the creation of a judicial organ to try those who are guilty of crimes against mankind.”

Faced with Libyan intransigence, the Council voted to impose aerial, arms and diplomatic sanctions until that Government cooperated. When Libya south an injunction against the U.S. and the U.K.from the International Court of Jurisdiction, the ICJ lost no time in rejecting the Libyan request. In the meantime, the accused Libyan terrorists remained untried, and no one was held responsible for the mass murders.

At about the same time, the U.S. Department of Defense reported to the congress on the conduct of the Persian Gulf War: “Iraqi war crimes were widespread and premeditated… On 15 October, the President warned Iraq of its liability for war crimes… In addition, the invasion of Kuwait was ordered by Saddam Hussein and in a crime against peace… [and] the principal responsibility rests with Saddam Hussein.”  Yet there is no international criminal court to try Saddam Hussein or any other accused criminal.

The most glaring recent example of the need for an international criminal court arose in connection with the commission of massive crimes against humanity in the territory of the former Soviet Federal republic of Yugoslavia. When that Balkan nation disintegrated, fighting broke out among the newly created independent states and the many ethnic militias. Serbian forces ere accused of wantonly killing and driving out Muslims who lived in Bosnia and Herzegovina as well as Croatia, and blocking humanitarian relief from reaching civilian populations. U.N. efforts to restore peace included demands for a cease-fire, diplomatic missions, a U.N. Protection Force and the imposition of sanctions against the Federal Republic of Yugoslavia (now reduced to the Republics of Serbia and Montenegro).

U.S. delegate Edward J. Perkins condemned the aggression of the Serbian regime as “a clear threat to international peace and security.”  Reports of atrocities in Yugoslavian detention camps and “ethnic cleansing” of Muslim minorities brutally driven from their homes prompted the French government to express its indignation and horror, and warn that “those who commit these deeds will have to bear individual responsibility for them.”  In response, the Council called upon states to collate substantiated information showing violations of humanitarian law and reaffirmed that those responsible for grave breaches “are individually responsible.”

When the General Assembly met in September 1992, several statesmen spoke out in favor of an international criminal court. The President of Bosnia and Herzegovina requested an international war crimes tribunal and punishment of the criminals as a prerequisite for peace, and Norway’s Prime Minister Gro Harlem Bruntland also called for an international tribunal to be established to punish the war criminals. The Netherlands felt that the ILC should develop the idea of an international criminal court, and Pakistan urged that an international tribunal be established immediately. Italy’s representative asked the Assembly: “[c]an the perpetrators of heinous and odious crimes be allowed ton escape international judgment, also at the legal level?”  The Canadian Secretary of State Mrs. Brabar McDougall, calling for the rule of law and deploring “double standards that are everywhere,” declared that “Canada calls for the drafting of a statute by the International Law Commission to establish an international criminal court.”  Former Soviet Foreign Minister Eduard A. Shevardnadze spoke of the obligation “to introduce into the body of an international law an instrument concerning the personal responsibility of individuals who incite mass disorders…”

In October 1992, the Security Council expressed its grave alarm at continuing reports of “ethnic cleansing” in Yugoslavia. That was immediately followed by resolution requesting the Secretary General “to establish, as a matter of urgency, an impartial Commission of Experts” to review evidence of violations of international humanitarian law committed in the territory of the former Yugoslavia. Mr. Perkins of the U.S. claimed that the resolution “sends a clear message that those responsible for the atrocities and gross violations of international humanitarian law… must be brought to justice.”  Mr. Merimee of France added that the resolution “is a part of the prospective creation by the appropriate bodies of an international penal jurisdiction to rule on such acts.”

In the territory of the former Soviet Union there were also outbursts of nationalistic, religious or ethnic violence. Shevardnadze, now Chairman of the State Council of the new Republic of Georgia, upon receiving reports of “mass executions of Georgian civilian population[s], widespread torture, rape and other atrocities” appealed to the Security Council to set up a War Crimes Commission to collect evidence of possible atrocities committed in Georgia.

It is unfortunately true that suffering sometimes seems to be a necessary stimulus for progress. Out of the prevailing misery and fear generated by continuing acts of terrorism in all its forms, from the aggressions and crimes against humanity which leave millions of innocent victims dead, homeless or despairing, out of the memory of Hitler’s Holocaust now reflected in the intolerance of “ethnic cleansing” arousing ancient hatreds, surely some lessons must be learned. It is not conceivable that as we approach the 21st century the world and the international community in particular will remain silent and do nothing to deter or halt such evils.

It is most regrettable that the United States continues to drag its heels on the creation of an international criminal court. On October 27, 1992, the Legal Advisor to the State Department made a special appearance at the U.N.’s Sixth Committee to raise the only voice in opposition to accepting the recommendations of the ILC. He declared: “[I]n the view of the United States, it is neither necessary nor desirable for either the Sixth Committee or the General Assembly to ask for further work by the Commission on the possible establishment of an international criminal court at this session.”  He said that the United States was not opposed in principle, but that the U.S. was concerned that such a court might undermine present national and international efforts to control crime, including terrorism and narcotic trafficking. Since the matter had been pending for several decades, he argued, a delay of an additional year should not be objectionable.

It is now generally recognized that an effective international criminal code and court are essential components of a civilized world order. Despite disingenuous or hypocritical efforts to prevent the creation of such a court, the record of recent progress is clear. The persistent efforts to attain these noble goals must one day bear fruit. There is no reason for despair by those who hope and strive for the rule of international law to protect the peace and dignity of humankind.