INDEPTH: WAR CRIMES
The International Criminal Court
CBC News Online | July 09, 2004
PART ONE: FROM NUREMBURG TO ROME
In 1850, Francis Edward Smedley wrote "all's fair in love and war."
Prisoners of concentration camp during the Second World War |
But his now-famous quote came long before the League of Nations asked for an international court to deal with terrorism. Long before the creation of the United Nations. And long before the Nuremberg and Tokyo trials, the first international war-crimes tribunals, when the world decided that war can not only be unfair, but unlawful.
In the trials, the newly-formed International Military Tribunal charged 52 German Nazi and Japanese officials for acts committed during the Second World War. The charges included committing war crimes, committing crimes against humanity, and making aggressive war.
Nuremberg Trial |
Together, 46 of the defendants were found guilty – the Nazis for killing millions of Jews and other minorities, and the Japanese for allowing atrocities against POWs and civilians, including attempts to employ bacteriological warfare in China by dropping plague bacteria from airplanes.
Despite the success of the Nuremberg and Tokyo trials, at least in terms of prosecuting the majority of those charged, they didn't accomplish the larger goal of creating a permanent international court.
The 1948 UN Genocide Convention stated that people charged with genocide should be tried by the country where the crime took place, or by an "international panel tribunal" which the nations involved accept as having jurisdiction.
But no such international tribunal existed, and efforts aimed at creating one were frozen in their tracks by the Cold War. The fact that someone – government or military officials, even soldiers – could be put on trial for what could be described as "serving their country" was (and still is) a powerful and controversial idea.
It wasn't until decades later, with the new age of international co-operation that followed the collapse of the Soviet Union, that the idea to establish a permanent international court got new life.
In December 1989, the UN General Assembly asked the International Law Commission to start working on what would be known as the International Criminal Court (ICC). This was in response to a request made by Trinidad and Tobago for a court to help fight drug trafficking. Soviet President Mikhail Gorbachev also supported the idea as a way to fight terrorism.
Between 500,00 and one million people were killed in Rwanda in 1994 |
Then in 1993 and 1994, the first international tribunals in almost half a century were set up for Bosnia-Herzegovina and the former Yugoslavia where troops killed ethnic Albanians, and for Rwanda where between 500,000 and one million Tutsis and Hutus were killed by militia in 1994. The tribunals are still ongoing.
But the tribunals only act as "ad-hoc" or temporary courts set up to address war crimes that occurred in specific places and times. The Rwanda tribunal, for example, only covers events that took place in 1994 and not crimes that have been committed since.
The ICC would be a permanent institution with a far broader reach. All war crimes allegations could be brought there and justice wouldn't be delayed while a new tribunal is established, which often means the loss of evidence, witnesses and most importantly the accused.
Next came the UN conference held in Rome in 1998. Delegates from around the world met between June 15 and July 17 to see if they could agree on a written plan that would outline the basis for the future ICC.
At the conference, UN Secretary General Kofi Annan said in the ICC lies "the promise of universal justice." He called on all nations do their part "to ensure that no ruler, no state, no junta and no army anywhere can abuse human rights with impunity."
And at the end of the conference, 120 nations voted in favour of the Rome Statute to establish an International Criminal Court, while 21 nations abstained and only seven voted against.
Among those seven, however, were some pretty significant participants – the United States (the world's most politically-powerful nation), China and India (which together make up more than one-third of the world's population) and Israel (the state which one would think would have a moral interest in international court considering it was created for Jews after the Second World War).
Both the U.S. and China were against pinning acts of aggression on individuals, and allowing an international body the power to prosecute their citizens.
Israel was opposed to a provision that included as a war crime the transfer of civilian populations into territory the government occupies. The provision would make more than 140 Israeli settlements in the West Bank and Gaza Strip illegal because they are on land the country conquered in 1967 during the Six-Day War, land the Palestinians want for a future state.
On the other hand, India didn't have a problem with what was in the statute, but what was left out. The statute doesn't include the use of weapons of mass destruction, such as nuclear weapons, as a war crime. Shortly after India tested its nuclear weapons in 1998, neighbouring Pakistan tested its own atomic weapons.
Some of the nations that chose not to vote criticized the Rome Statute for excluding terrorism from its definition of war crime and because it doesn't allow the use of the death penalty for convicted war criminals.
With the Rome Statute accepted, the document was opened for signatures.
A signature simply marks a country's support for the ICC – each must then pass the Rome Statute though its government to make the treaty legally binding. Still, the signatures were a contentious issue with some nations – a reminder that the International Criminal Court wasn't a done deal yet.
Notes
1. The quote "All's fair in love and war" comes from the most popular of Smedley's three novels, Frank Farleigh. His other two novels are Lewis Arundel and Harry Coverdale's Courtship.
2. Actually, 25 Japanese and 22 Germans, a total of 47, were found guilty in the Tokyo and Nuremberg trials. However, one of the German defendants was still missing when the trial commenced and was sentenced to hang if he was ever found. He was later discovered to have died at the end of the war.
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