LAW. NOT WAR.
Benjamin B. Ferencz

Article

The Draft Code of Offences Against the Peace and Security of Mankind

By Benjamin B. Ferencz
published:July 1981
source:The American Journal of International Law, Vol. 75, No. 3, July 1981

At its session that ended in December 1980, the United Nations considered a subject that had been allowed to lie dormant for over a quarter of a century. It was first taken up in 1946, after President Truman called for the reaffirmation of “the principles of the Nürnberg Charter in the context of a general codification of offences against the peace and security of mankind.” [1] The General Assembly responded promptly by passing three resolutions in rapid succession on December 11, 1946, which created a Committee for the Progressive Development of International Law and its Codification, affirmed the Nuremberg principles, and declared that genocide was an international crime. [2] The International Law Commission (ILC) was charged with preparing the desired Code of Offences after its establishment in 1947. Yet, 34 years after the General Assembly’s call for action, the refrain was still being heard: “The time is not yet ripe.” The question likely to face the United Nations when it reconvenes in 1981 will be: “If not now, then when?”

In 1949, when it began its work, the ILC also had on its agenda the problems of defining the crime of aggression and considering an international criminal jurisdiction to cope with international crimes. A first Draft Code of Offences was submitted by Rapporteur Jean Spiropoulos in 1950. [3] By that time, hostilities had erupted in Korea and the major powers were busy accusing each other of aggression and related crimes. The initial enthusiasm for an international code and court became a casualty of war.

Ad hoc committees appointed to consider the problem of an international criminal court bogged down in disagreement. [4] Other special committees were unable to agree upon a definition of aggression. [5] By 1954, the third Draft Code of Offences was submitted to a divided Assembly by the ILC. It proposed that responsible individuals be punished for the international crimes described in the Code. It listed 13 categories of prohibited acts, such as various forms of aggression, and confirmed that heads of state would not be immune and that superior orders would be no excuse. [6] But without a definition of aggression the code was incomplete, and without a code there was no need for a court. Thus, the definition, the code, and the court were all linked together, and conveniently placed in the deep freeze by the Cold War. They would lie there undisturbed until the war in Southeast Asia began to wind town and the warming breezes of détente began to thaw the international atmosphere. At the end of 1974, it was possible for the nations to agree upon a definition of aggression by consensus. [7]

The Legal Counsel of the UN lost no time in reminding the delegates that the Draft Code of Offences was a piece of unfinished business that required attention. [8] Soon the ILC added its own reminder. [9] By the end of 1977, a few states had requested that the item again be placed on the UN agenda. [10] When the question came before the Sixth (Legal) Committee in 1978, Ambassador Rossides of Cyprus, a strong proponent of an international criminal code and court, was the first of 18 delegates to take the floor. [11] In his view, deterring international crimes was a better path to world security than a futile arms race. [12] A young delegate from Mongolia, J. Enkhsaikhan, expressing the views of the Soviet Bloc, asserted that the code would obligate states and individuals to honor the emerging new norms of international law. [13] Gunter Goerner, of the German Democratic Republic, noted that the Nuremberg principles deserved to be codified to assure that such offenses would also be punished in the future. [14] Romania’s representative, recalling the pioneering work done by V.V. Pella, called the proposed code “the basic structure of international criminal law.” [15] Others were much less enthusiastic.

The representative of Holland, in what appeared to be a major reversal of its position of the 1950’s, pointed to the futility of creating an international legal order that would exist only on paper. [16] Robert Rosenstack of the United States, sharing the skepticism, noted that in dealing with state responsibility, the ILC was already considering certain international criminal or delicts. In an effort to deflect further action, he also warned that states unwilling to accept any enforcement mechanism had no need for a code. [17] Egypt served notice the no code could restrain the struggles for self-determination or national liberation, [18] while Nicaragua insisted that all terrorism would have to be outlawed, regardless of motive. [19] Many states argued that new nations admired to the United Nations since 1954 should have more time to study the record. It was finally agreed that the views of governments should be solicited and the subject taken up again at the end of 1980. [20]

By the time the Sixth Committee reconvened in October 1980, replies regarding the Code of Offences had been received from 19 Governments and from UNESCO. [21] The clearest opposition again came from the Netherlands, the United States, the United Kingdom, and Canada. The gist of their argument was that there was no likelihood that consensus could be reached on such a difficult problem and that it was therefore a waste of everyone’s time to discuss it. [22] It was also argued that a consolidate code would add nothing to the existing conventions and declarations and might even detract by offering competing or modified texts. Underlying the negative argument was the suspicion and distrust that enveloped the international scene. A Chinese delegate wondered whether those who supported the code were merely “passing fish eyes off as pearls.” [23] The American representative argued that the 1974 consensus definition of aggression was too imprecise to serve as the basis for a criminal indictment. [24] He ignored the fact that the United States had relied on a much less precise 1933 Soviet definition to convict the German leaders at Nuremberg. [25] The 1980 preliminary debate gave fair warning of the difficulties to be encountered should states try to codify the limits of permissible and impermissible international behavior.

From the statements made by the 61 delegates who took the floor, it soon became obvious that the overwhelming majority of states was in favor of some kind of a code of offences. [26] Only Italy, the Federal Republic of Germany, and Japan joined the four Western states that had submitted have to be revised to take account of the progress made since that time. Among the newly created norms most frequently mentioned for inclusion in a revised code were the proved Geneva Conventions on the rules of war, [27] the conventions declaring racial discrimination and apartheid to be crimes against humanity, [28] the conventions prohibiting the illegal seizure of aircraft, [29] the resolutions denouncing the use of mercenaries, [30] the Convention for the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, [31] and the resolutions dealing with the taking of hostages and other forms of terrorism. [32]

Many states wanted new items added to the list of prohibited acts. The Soviet Union wanted the code to deal with violations of treaties on nuclear weapons. [33] Poland advocated the prohibition of biological weapons. [34] Egypt and Afghanistan would have the code enforce international instruments on disarmament. [35] Hungary would include pollution of the environment, [36] and others wanted economic crimes to be covered. [37] The Palestine Liberation Organization and its supporters maintained that racism and Zionism should be specifically listed as international crimes. [38] India called for the code to “specify the mechanisms necessary for trial.” [39] Sweden was more specific and called for an international court to enforce the code. [40] Most of the delegates were not really prepared to deal with the substantive problems in depth, and the focus thus shifted to the procedural problem of what the next step should be.

The Soviet bloc wished to keep the subject in the Sixth Committee. [41] The Western states would have liked to bury the item completely, [42] but when it became obvious that interment would not be acceptable, they argued for the next best thing: referral back to the International Law Commission where it had rested peacefully since 1954. [43] Quentin Baxter of New Zealand, a member of the ILC, noted that the Law Commission’s agenda would not allow consideration of the draft code before 1982. [44] Finally, the compromise suggested by Mexico’s Gonzaléz Galvéz prevailed: [45] since so few Governments had submitted written views, opinions would again be solicited, including a comment on whether the subject should be sent back to the ILC. Replies were to be made by June 30, 1981 to allow for preparation by the Secretariat of an analytical paper and reconsideration of the question at the end of the year. A resolution to the effect was adopted by consensus and without discussion. [46] There the matter now stands.

It would be unreasonable to expect 154 sovereign states in vastly different stages of economic, social, and political development to make an easy or quick transition from the law of force to the force of law. Professors McDougal, Henkin, and Schacter and other scholars have pointed out that codification, in addition to contributing to clarification and certainty in the law, is in its infancy; just because it did not spring to life full grown is hardly cause to abandon the babe. The international community can ill afford to discard deliberation, consultation, and compromise merely because some of the participants may be insincere or the burden may be time-consuming or onerous. A code describing which actions are lawful and which unlawful can, in time, contribute toward the maintenance of world peace. When powerful states become so powerful that they dare not use their power, they may recognize that it is far better to settle their differences legally rather than lethally. It is time to be reminded of the words of the first President of the American Society of International Law, Elihu Root, who, never having lost his faith, at the age 80 wrote in this Journal:

What is called for now and what we mean when we speak of codification of international law is the making of law . . . .

[. . . . ]

. . . . It will require patience and good temper, and learning, and distinguished ability and leadership . . . . There is, however, ground for hope that the changes of conditions may have changed the attitude of many nations upon many questions, so that progress may be made now where progress never could be made before. [47]

[1] 15 DEP’T STATE BULL. 954 (1946).

[2] UNGA Res. 94 (I) (Dec. 11, 1946) created a committee with one representative each from Argentine, Australia, Brazil, China, Colombia, Egypt, France, India, the Netherlands, Panama, Poland, Sweden, the USSR, the UK, the US, Venezuela, and Yugoslavia. It was charged with studying “methods by which the General Assembly should encourage the progressive development of international law and its eventual codification.” GA Res. 95 (I) affirmed the Nuremberg principles and directed the committee to give importance to formulating those principles. GA Res. 96 (I) defined and condemned genocide and instructed the Economic and Social Council to draft a convention to outlaw the offense. The 94 (I) committee recommended the creation of an International Law Commission (UN Doc A/331 (1947)), which was established by GA Res. 174 (II) (Nov. 21, 1947).

[3] UN Doc. A/CN.4/25 (1950), reprinted in [1950] 2 Y.B. INT’L L. COMM’N 253, 277. Nine international crimes were listed in the draft: aggressive war; invasion by armed groups; fomenting external civil strife; fomenting external organized terrorism; illegal weapons trafficking; violating arms limitation treaties; illegal annexation; hostile acts directed against national, ethnic, racial and religious groups; and violation of laws and customs of war.

[4] See B. FERENCZ, AN INTERNATIONAL CRIMINAL COURT, A STEP TOWARD WORLD PEACE, 2 vols. (1980).

[5] See B. FERENCZ, DEFINING INTERNATIONAL AGGRESSION, THE SEARCH FOR WORLD PEACE, 2 vols. (1975).

[6] Report of the International Law Commission on its 6th Session, 9 GAOR, Supp. (No. 9), UN Doc. A/2693 (1954), reprinted in [1954] 2 Y.B. INT’L L. COMM’N 140.

[7] GA Res. 3314 (XXIX) (Dec. 14, 1974).

[8] UN Doc. A/AC/134/SR.110 (Mar. 14, 1974)

[9] Report of the ILC on its 29th Session, 9 GAOR, Supp. (No. 10) 316-17, UN Doc. A/32/10 (1977), reprinted in [1977] 2 Y.B. INT’L L. COMM’N 1.

[10] UN Doc. A/32/247 and A/32/470 (1977). The countries were Barbados, Fiji, Mexico, Nigeria, Panama, the Philippines, and the Syrian Arab Republic.

[11] UN Doc. A/C.6/33/SR.61 (1978).

[12] UN Doc. A/C.6/33/SR.64, at 6 (1978).

[13] UN Doc. A/C.6/33/SR.62, at 2 (1978).

[14] UN Doc. A/C.6/33/SR.63, at 4 (1978).

[15] UN Doc. A/C.6/33/SR.62, at 3. Pella’s work is cited therein as UN Doc. A/CN.4/39 (1950).

[16] UN Doc. A/C.6/33/SR.64, at 4 (1978).

[17] Id. at 4-6.

[18] UN Doc. A/C.6/33/SR.65, at 2 (1978).

[19] UN Doc. A/C.6/33/SR.63, at 8 (1978).

[20] GA Res. 33/97 (Dec, 1978). The vote on the resolution was 116 to 0 with 23 abstentions. A French amendment (UN Doc. A/C.6/33/SR.67, at 5), which referred to the link between the draft code and both definition of aggression and an international criminal court, was rejected by a vote of 41-25-32.

[21] UN Doc. A/35/210 (June 11, 1980), and Add.1 (Sept. 5, 1980), Add.2 (Sept 30, 1980), and Add.2.Corr.1 (Oct. 1, 1980). The countries were Botswana, the Byelrussian SSR, Chile, Czechoslovakia, Finland, Guatemala, Hungary, the Netherlands, Senegal, Sweden, the USSR, Yugoslavia, the German Democratic Republic, Mongolia, Norway, the UK, the US, Canada, an the Ukrainian SSR.

[22] See, e.g., reply of the United States, UN Doc. A/35/210/Add.1. at 11 (1980).

[23] Sixth Committee debate, Oct. 7, 1980. The quoted phrase was not reproduced in the summary record but is based on the author’s notes.

[24] UN Doc. A/C.6/35/SR.12, at 9 (Oct. 9 (Oct. 7, 1980); see also UN Doc. A/C.6/33/SR.64, at 6 (1978).

[25] See R. JACKSON, THE CASE AGAINST THE NAZI WAR CRIMINALS 79 (1946).

[26] The summary records of the 1980 debate appear in UN Docs. A/C.6/35/SR.10 through SR.15.

[27] See 47 AJIL Supp. 119-77 (1953).

[28] GA Res. 2022 (XX) (Dec. 5, 1965); GA Res. 2262 (XXII) (Nov. 3, 1967).

[29] See 10 ILM 133 (1971).

[30] GA Res. 2548 (XXIV) (Dec. 11, 1969); GA Res. 2708 (XXVI) (Dec. 14, 1971).

[31] GA Res. 3166 (XXVIII) (Dec. 14, 1973), 28 UST 1975, TIAS No. 8532.

[32] See GA Res. 34/145 and 34/146 (Dec. 17, 1979).

[33] UN Doc. A/C.6/35/SR.13, at 4 (Oct. 7, 1980).

[34] UN Doc. A/C.6/35/SR.13, at 5 (Oct. 8, 1980).

[35] UN Doc. A/C.6/35/SR.11, at 8-9 (Oct. 6, 1980) (Egypt); UN Doc. A/C.6/35/SR.13, at 10 (Oct. 7, 1980) (Afghanistan).

[36] UN Doc. A/C.6/35/SR.12, at 6 (Oct. 7, 1980).

[37] E.g., Nigeria suggested that multinational corporations be subject to punishment. UN Doc. UN A/C.6/35/SR.15, at 8 (Oct. 8, 1980).

[38] UN Doc. A/C.6/35/SR.13, at 6. The PLO observer argued that armed struggle for self-determination was legitimate, which implied that any means could be used to attain the goal. Israel’s Ambassador Rosenne replied that “[c]riminal acts of terrorism should not be shielded from due punishment simply because their authors claimed to be acting in the name of some noble cause.” UN Doc. A/C.6/35/SR.14, at 9.

[39] UN Doc. A/C.6/35/SR.15, at 2.

[40] Id. at 3.

[41] See, e.g., statement of USSR representative, UN Doc. A/C.6/35/SR.13, at 5.

[42] See, e.g., statement of the US representative, UN Doc. A/C.6/35/SR.12, at 9, calling for deferral of consideration of the draft code.

[43] See, e.g., statement of the Italian representative, UN Doc. A/C.6/35/SR.13, at 3.

[44] UN Doc. A/C.6/35/SR.11, at 6.

[45] UN Doc. A/C.6/35/SR.12, at 7.

[46] See Report of the Sixth Committee, UN Doc. A/35/615 (1980); GA Res. 35/49 (Dec. 4, 1980).

[47] Root, The Codification of International Law, 19 AJIL 675, 681-82 (1925).
 


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