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

• Author: Robert J. Currie
• Profession: Schulich School of Law, Dalhousie University
• Pages: 159-213

159

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DIRECT ENFORCEMENT

AGAINST THE CORE

CRIMES: INTERNATIONAL

AND INTERNATIONALIZED

CRIMINAL COURTS

A. IntRodUctIon

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 real-

ized, for all practical 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 only be viewed as an astonishing pace.

The highest point, perhaps, has been the founding of the International

Criminal Court (ICC), but the international community has appar-

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

Hagenbach, who wa s tried, convicted, and exec uted in 1474 for atrocities com-

mitted duri ng the occupation of Breisach; se e Georg Schwarzenberger, Inter-

national Law a s Applied by Internation al Courts and Tribunals, vol. II (London:

Stevens & Sons, 1968) c. 39; M. Cher if Bassiouni, “From Versaille s to Rwanda

in Seventy-Five Years: The Need to E stablish a Permanent Inter national Crim-

inal Court” (1997) 10 Harv. Hum. Rts. J. 11.

INTERN ATIONAL AND TR ANSNATIONAL CRIM INAL LAW160

ently grown so comfortable with the use of criminal tribunals with

international aspects that a number have been founded and more are

proposed — to the extent that it is not unusual to hear commentators

suggesting “tribunal fatigue.”2

There can be no doubt that international criminal justice is indeed

“an idea whose time has come,”3 and while the other important piece

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

every reason to believe that international prosecutions will continue

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

features of the courts which have carried out and continue to carry out

this important work. A look at the post–WW II prosecutions will be

followed by treatment, in turn, of the United Nations ad hoc tribun als

(former Yugoslavia and Rwanda), the ICC, and f‌inally what are often

referred to as “internationalized” or “hybrid” tribunals.

B. tHe nUR emBeRg And tokYo

tR IBUn A ls

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 Pen-

alties,” set up to investigate the causes of the war and to recommend

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

German war criminals.4 It also suggested 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 appeared in article

2 Steven Ratner & Ja son Abrams, Accountability for Huma n Rights Atrocities in

Internati onal Law: Beyond the Nuremberg Legacy, 2d ed. (Oxford: Ox ford Univer-

sity Press , 2001) at 318; Statement by Judge Fausto Pocar, Preside nt, Inter-

national Cr iminal Tribunal for the for mer Yugoslavia to the Securit y Council on

4 June 2008, onli ne: www.un.org/News/P ress/docs/200 8/sc9347.doc.htm.

3 William S chabas, “The Internationa l Criminal Court : An Idea Whose Time Has

Come,” John E. Read Memorial L ecture, delivered at Dalhous ie University, 27

November 2007 (copy on f‌ile).

4 Report of the Commi ssion to the Preliminary Peace Conference, reprinte d in (1920)

14 A.J.I.L. 95.

Direct Enforcement a gainst the Core Crimes 161

227 of the Treaty of Versailles,5 was foiled by the refusal of the govern-

ment 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.6 An attempt to prosecute

Turkish war crimes perpetrators7 was thwarted by the 1923 Treaty of

Lausanne,8 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.9

Nonetheless, the idea of international war crimes trials was re-in-

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

with the incredible monstrosities of the Nazi regime and act s com-

mitted during the Japanese occupation of parts of Asia. This was in

no small part because the US, which had resisted many aspects of the

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

ent of holding war crimes trials. 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 trials would be preferable to summary

execution of Nazi leaders, not least to legitimi ze the process in the eyes

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

lenge future complacency. Accordingly, the UK, France, the US, and

the Soviet Union met in London in 1945 and concluded the London

Agreement of 8 August 1945 which established the Ch arter for the Inter-

national Military Tribunal (IMT Charter).10 The IMT Charter provided

that individuals would be tried for “war crimes,” “crimes again st hu-

5 112 B.F.S.P. 1 (1919).

6 The so-calle d Leipzig trials, held b y Germany (with some Allied i nput as to who

would be tried) from 1921–23, tried a re latively small number of offende rs and

imposed light s entences. For a contemporary account, s ee Claud Mullins, The

Leipzig Trials: An Account of the Crimina ls’ Trials an d a Study of German Mentality

(London: H.F. & G. Witherby, 1921).

7 The initial pe ace treaty between the A llies and Turkey, the Treaty of Sè vres,

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

ad hoc court to dea l with the Armenia n massacre (reprinted at (1921), 15 A.J.I.L.

179, arts. 227 and 230).

8 Treaty of Lausanne betwee n Principal Allied and Associated Powers a nd Turkey

(1923), 28 L.N.T.S. 11.

9 See Vespasia n Pella, “Toward s an International Cr iminal Court” (1950) 44

A.J.I.L. 37.

10 82 U.N.T.S. 279.