Direct Enforcement against the Core Crimes: International and Internationalized Criminal Courts

• Author: Robert J Currie, Dr Joseph Rikhof
• Pages: 167-226

167

CHAP TER 4

DIRECT ENFORCEMENT

AGAINST THE

CORE CRIMES:

INTERNATIONAL AND

INTERNATIONALIZED

CRIMINAL COURTS

A. INTRODUC TION

A truly international criminal law (ICL), with justice dispensed by

international criminal courts, is undoubtedly one of the most import-

ant legal developments of the twentieth century. As noted in the his-

torical survey of international criminal law in Chapter 1, the pre- and

early-twentieth-century prototypical ICL proscribed certain acts, but

directed the proscriptions towards states in the form of obligations

to prevent certain conduct. The idea of an offender being liable under

international law and being tried before an international court was

realized, for all pract ical purposes,1 only after WW II, in the form of

the Nuremberg and Tokyo tribunals. While the political conditions

created by the Cold War put international criminal justice on the back

burner for some decades, in the late twentieth century the project was

revived and has developed at what can be viewed only as an astonish-

ing pace. The highest point has been the founding of the International

Criminal Court (ICC).

1 The f‌irst intern ational crimina l prosecution is often said to be t hat of Peter

von Hagenbach, who was t ried, convicted, and executed i n 1474 for atrocities

committed dur ing the occupation of Breisac h; see Gregory S Gordon, “The Peter

von Hagenbach Trial: Reconciling History, Historiography and International

Crimin al Law” in Kevin Jon Heller & Gerr y J Simpson, eds, Untold Stories: Hi d-

den Histories of War Crimes Trials (Oxford: Oxford Un iversity Press, 2013).

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW168

There can be no doubt that international cr iminal just ice is indeed

“an idea whose time has come,”2 and while the other important piece is

to create a climate that facilitates domestic prosecutions, there is every

reason to believe that intern ational prosecutions will continue to occur.

The goal of this chapter is to survey and examine the salient features

of the courts that have carried out and continue to carry out this im-

portant work. A look at the post–WW II prosecutions will be followed

by treatment, in turn, of the United Nations ad hoc tribunals (former

Yugoslavia and Rwanda), the ICC, and f‌inally what are often referred to

as “internationalized” or “hybrid” tribunals.

B. THE NUREM BERG AND TOKYO

TRIBUNALS

The seeds for modern international criminal justice were planted just

after the conclusion of WW I through efforts by the victorious Allied

Powers to continue the vanquishing of Germany, in particular. This

would be accomplished by the trials of senior state off‌icials, including

the Kaiser of Germany, for breaches of the laws of war, the “laws of

humanity,” and the making of aggressive war. The “Commission on

the Responsibility of the Authors of War and on the Enforcement of

Penalties,” set up to investigate the causes of the war and to recom-

mend solutions, proposed the creation of an Allied “High Tribunal” to

try Germ an war criminals.3 It also sug gested that, while there appeared

to be no crime of aggression for which the Kaiser could be held liable,

he could nonetheless be tried for the treaty breaches inherent in the

beginning of the war. The latter measure, which appe ared in article 227

of the Treaty of Versailles,4 was foiled by the refusal of the government

of the Netherlands (to which the Kaiser had f‌led) to extradite him. As

for the crime of aggression, which was contemplated in articles 228

and 229 of the Treaty of Versailles, prosecution was abandoned, and

the only prosecutions that ultimately took place were carried out by

German courts, with questionable results.5 An attempt to prosecute

2 William Schabas, “The International Criminal Court: An Idea Whose Time Has

Come,” John E Read Memorial Le cture, delivered at Dalhousie Un iversity, 27

November 2007 (copy on f‌ile).

3Report of the Commis sion to the Preliminary Peace Conference, reprinte d in (1920)

14 AJIL 95.

4 112 BFSP 1 (1919).

5 The so-called Le ipzig trials, held by Ger many (with some Allied input as to who

would be tried) fr om 1921–23, tried a relat ively small number of offenders a nd

Direct Enforcement ag ainst the Core Crimes 169

Turkish war crimes perpetrators6 was t hwarted by the 1923 Tre a ty o f

Lausanne,7 which imposed a general amnesty. Later, in 1937, a League

of Nations treaty for the formation of an international criminal court

to try terrorist offences was concluded, but did not come into force for

lack of state support.8

Nonetheless, the idea of international war cri mes tr ials was reinvig-

orated when the world was faced with the problem of how to deal with

the incredible monstrosities of the Nazi regime and acts committed

during the Japanese occupation of part s of Asia. This was in no small

part because the United States, which had resisted many aspects of the

Commission’s proposals in 1920, was in 1945 an enthusiastic propon-

ent of holding war crimes tri als. American Justice Robert Jackson, who

later became the US Chief Prosecutor at Nuremberg, took an active

leadership role in convincing other Allied leaders (notably Winston

Churchill) that fair and public tr ials would be preferable to summary

execution of Nazi leaders, not least to legitimize t he process in t he eyes

of the world and leave a fulsome historical record that would chal-

lenge future complacency. Accordingly, the United Kingdom, France,

the United States, and the Soviet Union met in London in 1945 and

concluded the London Agreement of 8 August 1945 which established

the Charter of the International Military Tribunal (IMT Charter).9 The

IMT Charter provided that individuals would be tried for “war crimes,”

“crimes against huma nity,” and “crimes against peace,” the l atter of which

was an updated version of “the making of aggressive war” proposals

from the 1920s.10

The trial of the major Nazi war criminals —Hermann Göering, Ru-

dolf Hess, and Alfred Rosenberg, among others—as well as seven in-

dicted “criminal organizations,” took place over ten months between

1945 and 1946. The court was composed of one judge (and one alter-

na te j udge) fro m e ach o f t he fo ur London Agreement states, presided over

imposed light sentences. For a contemporary account, see Claud Mullins, The

Leipzig Trials: An Account of the Criminal s’ Trials and a St udy of German Mental-

ity (London: HF & G Witherby, 1921).

6 The initial pe ace treaty between the A llies and Turkey, the Trea ty o f Sè vre s, pro-

vided for the est ablishment of an internat ional war crimes tr ibunal and an ad

hoc court to deal wit h the Armenian mas sacre (reprinted at (1921), 15 AJIL 179,

arts 227 and 230).

7Treaty of Lausanne between Pr incipal Allied and Associated Powers and Turkey

(1923), 28 LNTS 11.

8 See Vespasia n Pella, “Towards an Internationa l Criminal Court” (1950) 44 AJIL

37.

9 82 UNTS 279.

10 These cri mes are discussed i n more detail in Chapter 3.