treaty to establish an international criminal court. The treaty failed to
attract enough ratiļ¬cations to come into force, but the goal had been
Trying to Outlaw War
The quest to deļ¬ne crimes and create a court to prosecute individuals for
violations of international criminal law was mirrored by international law
advocatesā™ continued effort to hold states accountable for aggression. In the
Kellogg-Briand Pact of 1928, signatory states agreed to ā˜ā˜condemn recourse
to war for the solution of international controversies, and renounce it, as an
instrument of national policy in their relations with one another,ā™ā™24 and to
settle their differences only by ā˜ā˜paciļ¬c means.ā™ā™25 They sought to outlaw
war, but they did not go so far as to proclaim aggression a crime that could
be committed by an individual.
The Kellogg-Briand Pact perhaps demonstrated more explicitly than any
other agreement before or since that codiļ¬cation does not guarantee com-
pliance when the law runs so clearly counter to national interest. On the eve
of World War II, E. H. Carr castigated the interwar diplomacy of the
League of Nations in general, and the Kellogg-Briand Pact in particular,
arguing that the coming war showed the terrible consequences of utopian
approaches to international politics. After the war, for lasting peace, foreign
policy would need to be built on a mixture of realism and utopianism.26
Even utopianism had its practical virtues, however. After the war, the
Glasius, op cit., 7.
Kellogg-Briand Pact (1928), Article I.
Ibid., Article II.
Carr, The Twenty Yearsā™ Crisis 1919ā“1939 (1964).
24 Building the International Criminal Court
Kellogg-Briand Pact served as a basis for building a legal case at Nuremberg
against top Nazi leaders for the planning and conduct of aggressive war.
World War II and Nuremberg
World War II strengthened politiciansā™, lawyersā™, and diplomatsā™ desires to
apply international law against the people who caused the war and those who
committed war crimes in it. In the Moscow Declaration of October 30, 1943,
Great Britain, France, the United States, and the Soviet Union declared that
Germans who had committed war crimes would be sent for trial to the
countries where they had committed their atrocities. The ā˜ā˜major criminals
whose offences have no particular geographical locationā™ā™ would be punished
by the Allies.27 Even though the postā“World War I effort to prosecute the
Kaiser had evaporated, the idea of prosecuting individual criminality in war
was alive and well. The declaration reafļ¬rmed both national and interna-
tional jurisdiction over war crimes, and the United States, Britain, and Soviet
Union indicated their intention to create some kind of postwar legal process
for the Nazis responsible for initiating the war.
Following the Moscow Declaration, the allies established a United
Nations Commission for the Investigation of War Crimes, which prepared a
ā˜ā˜Draft Convention for the Establishment of a United Nations War Crimes
Court,ā™ā™ conceptually basing its text largely on the (unratiļ¬ed) 1937 League
of Nations treaty draft, and inspired by work carried out during the
early years of the war by an unofļ¬cial body, the London International
After the war, at the London Conference in August 1945, Great Britain,
France, the United States, and the Soviet Union laid the groundwork for the
Nuremberg trials.29 The Hague Conventions provided the basis for deļ¬ni-
tion of war crimes; the Kellogg-Briand Pact, for crimes against peace. To
enable prosecution of German crimes against German citizens, the category
ā˜ā˜crimes against humanityā™ā™ that had emerged in connection with the
Armenian massacres of World War I was included among the potential
charges.30 The four Nuremberg crimes were conspiracy to commit crimes
Moscow Conference, ā˜ā˜Joint Four-Nation Declaration, Statement on Atrocitiesā™ā™ (October
ā˜ā˜Draft Convention for the Establishment of a United Nations War Crimes Court,ā™ā™ U.N.
War Crimes Commission, Doc. C.50(1) (30 September 1944), as cited in William Schabas,
An Introduction to the International Criminal Court (2002), 5.
London Agreement (August 8, 1945).
Schabas, op cit., 6.
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against peace; planning, initiating, and waging wars of aggression; war
crimes; and crimes against humanity. The formula was similar for trials of
Japanese war crimes suspects at the International Military Tribunal for the
Far East, commonly known as the Tokyo Tribunal, which prosecuted
crimes against peace, war crimes, and crimes against humanity.31
Institutionalization Interrupted and Restarted
In the few years between World War II and solidiļ¬cation of the Cold War,
institutionalization of human rights and international law norms took giant
steps. In the Convention against Genocide, states ļ¬nally agreed to Raphael
Lemkinā™s conviction that efforts to exterminate people on the basis of
inherited characteristics and without regard to their individual actions
should be outlawed. In the Universal Declaration of Human Rights, UN
negotiators sought to establish general standards for individualsā™ rights
against state prerogatives. In the Nuremberg Principles, formulated by the
International Law Commission, common understandings of individual
culpability were enunciated with general applicability (rather than being
speciļ¬c to German suspects).
In the wake of the Nuremberg trials, Rafael Lemkinā™s effort to outlaw the
crime of genocide ļ¬nally succeeded when on December 9, 1948, the UN
General Assembly adopted the Convention on the Prevention and Punish-
ment of the Crime of Genocide.32 The Convention established genocide as
an international crime and referred to possible machinery for its enforce-
ment, but created no such capacity. An early UN Secretariat draft of the
Convention included a model statute for a court, based on the League of
Nationsā™ 1937 draft treaty and the 1944 UN Commission Draft Conven-
tion, but the proposal was dropped in favor of a vaguer call for prosecution
of the crime at either the national or international level, before ā˜ā˜a com-
petent tribunal of the State in the territory of which the act was committed,
or by such international penal tribunal as may have jurisdiction with respect
to those Contracting Parties which shall have accepted its jurisdiction.ā™ā™33
Consideration of such machinery was taken up by the newly created
International Law Commission.
Charter of the International Military Tribunal for the Far East, Article V.
UN General Assembly, Convention on the Prevention and Punishment of the Crime of
Genocide, adopted December 9, 1948, entered into force January 12, 1951.
Ibid., Article 6.
26 Building the International Criminal Court
Universal Declaration of Human Rights
On the day following adoption of the Genocide Convention, the General
Assembly passed and proclaimed the Universal Declaration on Human
Rights (UDHR),34 a nonbinding enumeration of civil rights possessed by all
individuals (and later supplemented by covenants on civil and political
rights,35 and economic, social, and cultural rights36). Although the UDHR
is not a treaty, it is regarded by many nongovernmental organizations,
governments, and scholars as the foundational postwar statement of norms
of individual rights and liberty, as the UDHR says in its preamble, ā˜ā˜a
common standard of achievement for all peoples and all nations.ā™ā™ (The
Soviet bloc, South Africa, and Saudi Arabia abstained from the vote
adopting the declaration.)
International Law Commission and the Nuremberg Principles
The UN Charter gave to the General Assembly the responsibility, among
other things, to initiate studies and make recommendations for ā˜ā˜promoting
international co-operation in the political ļ¬eld and encouraging the pro-
gressive development of international law and its codiļ¬cation.ā™ā™37 To carry
out the mandate, in 1947 the General Assembly created the International
The ILC consists of thirty-four people chosen ā˜ā˜as persons of recognized
competence in international lawā™ā™ from ā˜ā˜the main forms of civilizationā™ā™ and
ā˜ā˜the principal legal systems of the world.ā™ā™ Elected for ļ¬ve-year terms by the
General Assembly from candidates nominated by UN member states, they
serve part-time and meet annually for about twelve weeks in the summers,
usually in Geneva. The various topics under consideration are usually
assigned to individual members, who then serve as special rapporteurs on
UN General Assembly, ā˜ā˜Universal Declaration of Human Rights,ā™ā™ adopted and proclaimed
by General Assembly December 10, 1948.
UN General Assembly, ā˜ā˜International Covenant on Civil and Political Rights,ā™ā™ adopted
and opened for signature December 16, 1966, entered into force March 23, 1976.
UN General Assembly, ā˜ā˜International Covenant on Economic, Social, and Cultural
Rights,ā™ā™ opened for signature December 16, 1966, entered into force January 3, 1976.
UN Charter, Chapter IV, Article 13.1.a.
Article 1 of the ILCā™s Statute provides that the ā˜ā˜Commission shall have for its object the
promotion of the progressive development of international law and its codiļ¬cation.ā™ā™ Article
15 deļ¬nes ā˜ā˜progressive developmentā™ā™ as the preparation of draft conventions on subjects
that have not yet been regulated by international law, or in regard to which the law has not
yet been sufļ¬ciently developed in the practice of states. It deļ¬nes ā˜ā˜codiļ¬cationā™ā™ as the more
precise formulation and systemization of rules of international law in ļ¬elds where there
already have been extensive state practice, precedent, and doctrines. Statute of the
International Law Commission (1947).
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the item concerned, carry out the necessary studies between sessions, and
submit reports to the commission at its annual sessions.
Proposals for the areas in which the ILC is to work come from the General
Assembly, UN member states, or other agencies, or from the ILC members
themselves. Its efforts may result in the ā˜ā˜progressive developmentā™ā™ of law or
ā˜ā˜codiļ¬cationā™ā™ of existing law. In either case, the ILC produces draft inter-
national conventions that can then be adopted by the UN General Assembly.
In 1950, the General Assembly asked the ILC to codify the Nuremberg
principles,39 to explore questions of international criminal jurisdiction in
connection with the Genocide Convention (that is, where and how genocide
could be prosecuted), and to consider the problem of deļ¬ning the crime of
aggression. In 1950, the ILC was asked to develop a draft code of offenses
against the peace and security of mankind, and it submitted a draft to the UN
General Assembly in the following year along with a proposal for an inter-
national criminal court. The General Assembly referred the report back to the
ILC.40 The ILCā™s projects to develop a criminal jurisdiction ā“ to design a court
and its procedures ā“ and to develop a code of offenses ā“ to deļ¬ne the laws that
the court would enforce ā“ ļ¬‚owed intermittently and in parallel, but with little
interconnection, thereafter. The ILC submitted a draft international criminal
court statute and a revised draft code of offenses in 1954, but the General
Assembly then shifted its attention away from the statute and code, according
to international law expert William Schabas, ā˜ā˜ostensibly pending the sensitive
task of deļ¬ning the crime of aggression. In fact, political tensions associated
with the Cold War had largely dammed progress on the war crimes agenda.ā™ā™41
Turbulent Late 1970s
Progress in the development of international criminal law drifted in the
1960s and early 1970s. Flowing from the commitments of the Universal
Declaration on Human Rights, however, nongovernmental activity on
The Nuremberg principles held that (I) an individual who commits a crime under
international law is responsible for it and liable to punishment; (II) an individualā™s
responsibility for upholding international law is not relieved by domestic law not containing
penalties for the act; (III) being an ofļ¬cial including the head of state of a government does
not relieve responsibility under international law; (IV) acting under orders of a government or
superior ofļ¬cer does not relieve a person of responsibility as long as choice was possible; (V) a
person charged with a crime under international law has the right to a fair trial; (VI) the
punishable crimes under international law are (a) crimes against peace, (b) war crimes, (c)
crimes against humanity; (VII) complicity in the commission of the crimes under VI is also a
crime. Yearbook of the International Law Commission (1950), Volume II, 191ā“5.
Morton, The International Law Commission of the United Nations (2000), 38.
Schabas, An Introduction to the International Criminal Court (2002), 9.
28 Building the International Criminal Court
human rights grew, stimulated by the actions of oppressive communist and
authoritarian governments. Amnesty International was founded in 1961 to
assist ā˜ā˜prisoners of conscienceā™ā™ worldwide, even while the Soviet and U.S.
blocs used human rights as part of their ideological combat. The terms ā˜ā˜war
crimesā™ā™ and ā˜ā˜war criminalsā™ā™ were liberally applied by detractors of the
United States in connection with Vietnam; ā˜ā˜human rights travestiesā™ā™ and
ā˜ā˜human rights abusers,ā™ā™ by critics of the Soviet Union for oppressing its
citizens and those in the countries of its bloc.
The 1970s was a watershed decade in global strategic relations and
activism on environmental and human rights fronts. While the East and
West continued their military, ideological, and rhetorical confrontation,
domestic civil society organizations were rapidly developing in the West in
reaction to threats of nuclear war, threats to the environment, and threats to
human rights. Much of this activism was led by international nongovern-
mental organizations. For example, in 1972, at the UN Conference on the
Environment, the effects of the environmental movement that had begun in
the United States reached the international stage.
Civil society organizations had come of age. In 1973, the General
Assembly passed a resolution declaring apartheid, the racially discrimina-
tory basis of government in South Africa, to be a crime against humanity.42
Nongovernmental organizations and sympathetic governments sought eco-
nomic sanctions against South Africa, but direct pursuit of apartheid crim-
inals and the reconstitution of South African society remained objectives for
a future generation of activists. In 1974, in an echo of the Kellogg-Briand
Pact, the General Assembly adopted a deļ¬nition of state aggression43 but
again did not deļ¬ne a crime of aggression for which an individual could be
held responsible. Also in 1974, a much expanded Amnesty International
declared torture, ill treatment, and capital punishment to be its main targets.
As part of U.S.ā“Soviet efforts to reduce the likelihood of war and nor-
malize relations between the two sides in Europe, thirty-ļ¬ve countries
pledged in the Helsinki Accords of 1975 to accept the postā“World War II
territorial settlements as ļ¬nal, to settle disputes peacefully, to respect human
rights, to endorse equal rights and self-determination, and to fulļ¬ll obliga-
tions under international law.44 The human rights aspects of the Accords led
to creation of a nongovernmental organization called the Fund for Free
UN General Assembly, ā˜ā˜International Convention on the Suppression and Punishment of
the Crime of Apartheid,ā™ā™ adopted and opened for signature November 30, 1973, entered
into force July 18, 1976.