VAIL BOOK, Chapter 11

Notes on the development of international atrocities law since 1850

By Helena Cobban©

For reproduction rights etc, please contact Helena at <hcobban@aol.com>.

The body of international atrocities law, as used in the International Criminal Tribunal for Rwanda (ICTR) and elsewhere, is derived from a handful of “laws of war” treaties, concluded among European governments in the 1850s and 1860s, that sought to mitigate the inevitably harmful consequences of war by establishing agreed rules to regulate the ways in which the combatants could act in times of war. The "laws of war" are also frequently referred to as "International Humanitarian Law" (IHL). The first IHLagreement was concluded in Paris in 1856 by six European states, including Turkey: it concerned the conduct of war at sea. Over the decades that followed, many additional states joined the emerging international "laws of war" regime, and the purview of most later “laws of war” treaties shifted to the regulation of land warfare. The Second Hague Convention of 1899 was the first international treaty that spelled out limits on the ways in which civilian noncombatants could be treated during the waging of land warfare.[1] The civilians protected by that treaty, and by a follow-up treaty adopted in 1907, were the residents of territories coming under military occupation by a war-waging army that was not that of their own nation.

Despite the existence of international treaties establishing these regulations, their enforcement was still considered a matter for the signatory states to attend to at the strictly national level; and nearly all the signatory states adopted and started enforcing the legislation necessary to do this. (Many had already had some domestic-level laws of their own on these matters even before they signed the international treaties.) However, under the terms of all those treaties from 1856 on, the International Committee of the Red Cross (ICRC), a private, non-governmental organization registered in Geneva, Switzerland was named as the "depositary" body with which all states would deposit their ratifications and reservations; and an official monitoring role for the ICRC was also envisaged and gradually developed. Parallel with the development of the ICRC, states party to the various laws of war treaties needed to develop their own, national-level Red Cross (or later, also Red Crescent) organizations which under the terms of the treaties would also have vital coordinating functions to play. The world's many Red Cross and Red Cresecnt organizations, and Israel's Red Star of David, coordinate their activities through the Federation of the Red Cross and Red Cresecnt Organizations.

The first serious attempt at international enforcement of IHL came in 1919, when the Allied governments that had won World War 1 inserted into the Treaty of Versailles clauses that established an international court to try Kaiser Wilhelm II and other German leaders for acts of aggression and "acts in violation of the laws of war" that Germany had committed during the war.[2] In the eastern Mediterranean, meanwhile, the British government established a court in Malta that was supposed to try Turkish officers accused of having committed war crimes against British prisoners-of-war and Armenian civilians. Both those attempts to undertake "international", or at least trans-national, prosecution of violations of the laws of war foundered, and then failed. In Germany, the post-war government refused to hand the accused over to the jurisdiction of the new court (and the Kaiser went to ground in the Netherlands, which refused to arrest him.) Regarding Turkey, the British did hold a number of the accused men for some time. But the Turks also held some British prisoners-of-war, and they refused to release them until their own POWs were also freed. Within a few months the British government backed down and agreed to a complete prisoner swap rather than proceeding with the planned trials.[3]

World War II ended very differently than World War 1. In 1945, the victorious Allies occupied all the territory of the two key Axis powers, Germany and Japan. Occupation of the terrain of their defeated opponents gave the Allies significant new opportunities: to control the political restructuring of their former oppoents; and to have wide access to both the persons of those Germans and Japanese accused of grave war crimes and the documents and the other evidence needed to build convincing war-crimes prosecutions. (At the same time, in both countries the ways in which the victorious Allies could conduct their military occupations were themselves constrained by the same "laws of war" on which they based their prosecutions of former German and Japanese wrongdoers.) In any event, in 1945-46 the Allies organized significant international military tribunals to try top-level defendants in both Germany and Japan; and the case law and judgments made by the courts in Nuremberg and Tokyo would constitute a base-line for international criminal jurisprudence from then on.

The prosecutors at the four-power International Military Tribunal (IMT) in Nuremberg brought indictments against 22 named individuals, one of whom (Martin Bormann) was tried in absentia as he was missing-- and, increasingly, presumed dead. The charges were brought on four counts, only one of which was a count of "violating the laws and customs of war", i.e. a classic count of war crimes. In prosecuting cases brought on the other three counts, the Nuremberg court was straying further away from the body of war-crimes law that had previously won the agreement of most of the world's governments (albeit with enforcement hitherto exercised only at the national level.) The three new counts were:

· Crimes against humanity, which covered essentially the same kinds of actions that the existing body of war crimes law covered in relation to civilian residents of foreign occupied territories—but now, this new charge criminalized those actions when undertaken against the accused person's own compatriots;

· Crimes against the peace, which covered the initiation of aggressive war; and

· Conspiracy, which was a specialized charge brought against the defendants with the aim of the IMT then being able to designate the broader organizations that were the named vehicles for the conspiracies in question as themselves illegal; after these organizations had been judged illegal, all their other members, beyond the ones on trial in Nuremberg, could then be dealt with through much speedier administrative sanctions.[4]

Of those three new kinds of international crime "crimes against the peace" was mentioned in the 1998 Rome Treaty for the ICC as a potentially prosecutable international crime—though not until after it has been formally defined; and that has not happened yet. After Nuremberg, "conspiracy" dropped off the international criminal charge-set as a type of prosecutable atrocity in its own right, though "conspiracy to commit genocide" was as one of the sub-counts listed in the definition of "genocide" spelled out in the 1948 Convention Against Genocide. "Crimes against humanity" has, however, had a continuing presence on the international criminal justice charge-sheet.

The main IMT at Nuremberg wrapped up its work with notable speed. The court held its first public session on November 20, 1945. The eight-member bench delivered its judgments on the 22 accused on September 30 and October 1, 1946; and in the early morning of October 15, 1946 eleven of the twelve defendants sentences to death were hanged. (The twelfth, Hermann Goering, had swallowed a suicide pill the night before.) After that there were no more international war-crimes trials in Germany, though the four Allied powers occupying different zones inside the country each pursued its own post-Nuremberg prosecution and/or vetting strategy, and later, Germany's two parallel independent governments continued that process. In Tokyo, the US-dominated IMT operated between May 1946 and November 1948, trying 28 high-level war-time leaders but notably not Emperor Hirohito or any members of his household.

In the late 1940s, there were two other developments significant to the development of international atrocities law. First, in 1948, many governments came together to adopt the Convention Against Genocide, with this newly-minted concept being defined as

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

The Convention deemed the following kinds of act to be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; and (e) Complicity in genocide. It stated that persons committing any of those kinds of acts, "shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."[5]

In 1949, many governments came together to expand and recodify the existing body of "war crimes law", which they did in the form of the four Geneva Conventions of 1949. The whole of the fourth Geneva Convention deals with "The protection of civilian persons in time of war". (The other three deal with the treatment of sick and wounded combatants during war on land and at sea, and the treatment of prisoners-of-war.)

In 1950, the United Nations' International Law Commission adopted a codification of the legal principles that has been established by the judges at Nuremberg. This list of seven "principles" of international law came to be known as the "Nuremberg principles". They established, among other things, that no individual, not even a Head of State, was immune from prosecution for war crimes, crimes against the peace, or crimes against humanity; that acting under a claim of "surerior orders" provided no defense, "provided a moral choice was in fact possible" for the accused; and that anyone accused of any of the listed types of crimes should have access to a fair trial based on the facts and the law.[6] From 1950 through 1993, a small number of legal scholars continued to publish analyses of various issues in international atrocities law, but no further international courts were operating in the field until 1993.

In October 1992 the U.N. Security Council established a Commission of Experts to investigate and then report back with its conclusions regarding evidence that "grave breaches of the Geneva Conventions and other violations of international humanitarian law" had been committed in the territory of the former Yugoslavia.[7] In February 1993, the Commission submitted an interim report in which it noted that the establishment by the Security Council of "an ad hoc international tribunal" would be consistent with its work. Toward the end of that month, the Security Council adopted resolution 808 which determined that, "an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991." In its preamble, the resolution described the Security Council as,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, [and]

Convinced that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace.[8]

The Security Council adopted the founding statute for the International Criminal Tribunal for former Yugoslavia (ICTY) in May 1993. The statute specified that the court would be able to try individuals, of whatever military rank or political status, accused of four different kinds of crimes:

• Grave breaches of the Geneva Conventions of 1949 (Article 2)
• Violations of the laws or customs of war (Article 3)
• Genocide (Article 4)
• Crimes Against Humanity (Article 5).[9]

The first two of those types of charges both fell into the traditional category of "war crimes", with the Article 2 crimes being mainly crimes against persons and Article 3 crimes being crimes against property or public institutions.

Establishing the new court took a long time; it did not issue its first indictment until February 1995, and that was against a low-level perpetrator who was a "target of opportunity" who had been identified and arrested in Europe. But along the way there, in November 1994, the Security Council decided it wanted to establish an ad-hoc international criminal tribunal for Rwanda, too; and when it did so it was able to use ICTY's Statute as a template for the Statute of the new court, the ICTR, though there were some key differences between the two statutes:

1. In the ICTR Statute, the two different kinds of war-crimes count were consolidated under a single head, now titled "Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II ".
2. ICTY did not have a cut-off date for the extent of its jurisdiction—a feature that enabled its prosecutor to bring charges related to actions committed (in Kosovo) as late as 1999. Indeed, the Statute originally allowed for the possibility that this "ad-hoc" court might continue in existence forever! ICTR, by contrast, had a very clear temporal limit to its jurisdiction, which covered only acts committed during 1994.
3. Regarding territorial jurisdiction, ICTY covered any acts committed in the former Yugoslavia (including—potentially, at least—those committed by commanders of the NATO forces), whereas ICTR covered all acts committed inside Rwanda as well as serious violations of international humanitarian law committed "in the territory of neighbouring States… by Rwandan citizens".

Western-based networks of human-rights activists were generally overjoyed at the establishment of these two ad-hoc courts. These activists expressed the hope that the "impunity" that politically powerful wrongdoers had long enjoyed in a global system based on strong respect for national sovereignty could now be replaced by a system in which even locally powerful individuals could be held legally "accountable" to international norms by this new kind of international court.[10] Many diplomats, however, were more wary of the new development, fearing that the existence and threat of war-crimes prosecutions might further complicate tricky political/diplomatic negotiations in which the possibility of amnesty for past actions had often hitherto been a powerful negotiating tool.

Throughout the mid- and late 1990s, it became increasingly clear that the two ad-hoc tribunals had not succeeded in ending the "climate of impunity" in international affairs, and that establishing them from scratch had been a very time-consuming and costly venture. Among rights activists and a number of governments in Europe and elsewhere, the impetus grew rapidly for the establishment of a permanent International Criminal Court (ICC) that could continue to eat away at the global climate of impunity without being burdened by the need for the repeated investment of start-up costs (and start-up time) for different ad-hoc tribunals here or there. It was clear that there would be no chance of persuading all the five veto-wielding, permanent members of the Security Council that setting up a permanent ICC would be a good idea, so the supporters of the project sought to establish the ICC through a treaty among supporting governments, instead. They achieved this in July 1998 when representatives of 139 governments signed the Rome Treaty that established the ICC. The treaty came into force in July 2002, after the requisite 60 governments had ratified their support for it. Of the veto-wielding members of the Security Council three—China, Russia, and the United States—notably abstained from ratifying it in its early years. Nevertheless, the court was successfully "brought into a relationship" with the United Nations after its establishment.

The ICC's Statute drew heavily on the precedents established by the ad-hoc tribunals. Article 5 of the Rome Treaty defined the court's jurisdiction thus:

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a)     The crime of genocide;

(b)     Crimes against humanity;

(c)     War crimes;

(d)     The crime of aggression. 
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted … defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime…[11]

The ICC, like all international war-crimes courts since Nuremberg operates according to defined procedures that are a mixture of those used under different common-law and civil-law jurisdictions around the world. "Common-law" systems are those used in British-derived legal systems. They are strongly based on the evolution of case law. In these systems, criminal proceedings are generally kept separate from civil suits. Criminal trials are centered around oral proceedings built around the use of the adversarial method to discover the "truth" about what happened. "Civil-law" systems are those used in French-derived, or French-related legal systems. They are based on apoplying strict application of the existing, written, legal code rather than on case law. Criminal trials within this system are dominated by the work of an investigating judge who tests claims and counter-claims about the facts largely by conducting a series of written communications with relevant parties.

At the ICC, under the "mixed" system that has grown up in the conduct of international war-crimes trials, the issuing of formal indictments against suspects is preceded by the prosector's publicly announced launching of a formal judicial investigation into a "situation". Situations can be referred to the prosecutor by states party to the Rome Treaty or the Security Council; or on occasion the prosecutor acting in her or his own right can begin the process of preliminary investigation. By the end of April 2004 ICC Chief prosecutor Luis Moreno-Ocampo had received two referrals: one from the Democratic Republic of Congo and the other from Uganda. Each concerned activities being carried out on its territory by insurgent forces. (In the case of the DRC, many of the insurgents may well have had close links with the ruling party in Rwanda, which has had undertaken and sponsored military activities in eastern Congo since 1994.) In June 2004 Moreno-Ocampo announced he was launching a formal judicial investigation into the situation in the DRC, and the next month he announced the launching of one for northern Uganda.[12] No indictments had been issued for either of those "situations" by the end of January 2005.

When the Security Council established the ICTY, it expressed its "conviction" that the new court, "would contribute to the restoration and maintenance of peace" in former Yugoslavia. When it established ICTR it expressed the conviction that ICTR's work, "would contribute to the process of national reconciliation and to the restoration and maintenance of peace" in Rwanda. The ICC's founding treaty expressed no such conviction (or even "hope") with respect to any of the "situations" over which it might exercize jurisdiction. In early 2005 it remained to be seen whether the existence of the ICC would, on balance, help or hinder peacemaking ventures throughout the world.

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[1] Along the way, several governments worked to develop national-level regulations that aimed at preventing the mistreatment by their own armed forces of either civilians or enemy soldiers who were hors de combat. These regulations included the Lieber Code, adopted by the U.S. Army in 1863, and the Oxford Declaration on the Laws of War on Land, of 1880.

[2] Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton U.P., 2000), pp. 75-76.

[3] See Bass, Chapters 3 and 4.

[4] Bradley F. Smith, The Road to Nuremberg (New York: Basic Books, 1981), pp.51-52. This plan for the use of the "conspiracy" charges proved generally workable and effective.

[5] Articles 2, 3, and 4 of the Convention against Genocide. The Convention's text is available at: <http://www.hrweb.org/legal/genocide.html>.

[6] The text of the Nuremberg Principles is available at <http://www.un.org/law/ilc/texts/nurnberg.htm>.

[7] The text of Security Council resolution 780, which did this, can be found at <http://www.ohr.int/other-doc/un-res-bih/pdf/s92r780e.pdf>. Sociolegal scholar John Hagan has written that, "The commission came into being largely at the urging of U.S. Ambassador Madeleine Albright as a political substitute for a meaningful military response to atrocities in the Balkans." John Hagan, , Justice in the Balkans: Prosecuting war crimes in The Hague tribunal (Chicago and London: University of Chicago Press, 2003), p.33.

[8] Text of resolution 808 available at <http://www.un.org/icty/basic/statut/S-RES-808_93.htm>. Latter emphasis by the present author.

[9] Text of the ICTY statute at <http://www.un.org/icty/basic/statut/stat11-2004.htm>.

[10] The international criminal courts were established alongside an older form of international court, the International Court of Justice. The ICJ is different from the newer breed of international courts in that it only hears cases brought by g9overnments, and concerning disputes by governments; moreover, it only hears cases in which all sides agree to implement its rulings. It thus acts much more like an institutinal arbitration mechanism than a court.

[11] Text of the Rome Treaty available at <http://www.un.org/law/icc/statute/romefra.htm>.

[12] Information about the ICC's situations and cases can be found at <http://www.icc-cpi.int/cases.html>.