A Brief History of International Criminal Law and International Criminal Court

A Brief History of International

Criminal Law and International

Criminal Court

Cenap Çakmak

A Brief History

of International

Criminal Law

and International

Criminal Court

Cenap Çakmak

International Relations

Eskisehir Osmangazi University

Eskisehir, Turkey

ISBN 978-1-137-56735-2 ISBN 978-1-137-56736-9 (eBook)

DOI 10.1057/978-1-137-56736-9

Library of Congress Control Number: 2017936781

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Dedicated to the memory of my mother

Preface

International criminal law is a nascent part of international law that

attracts growing attention because of mass atrocities and heinous

international crimes committed in different parts of the world. This

body of international law is designed to prosecute the individuals

responsible for the commission of these crimes and provide redress.

Most destructive and egregious crimes have always attracted attention.

However, historically, the solutions developed to address such acts have

remained inadequate and failed to restore justice. The strong emphasis

upon sovereign prerogatives of the nation states and their heads has

been the main factor for the lack of strong mechanism in global stage

to deal with these crimes.

International criminal law has emerged to fill this void. This book

seeks to present a historical depiction of how international criminal law

has evolved from a national setting to a truly international outlook. To

this end, it first evaluates how international criminal law has evolved

from a historical perspective. Particular attention is paid to how the first

permanent international criminal court was made. In this section, the

role of NGOs and other relevant actors is also taken into account to

show that the making of international law and politics has become an

intricate business. In the final section, the general features of the ICC

and how it stands in world politics and affects the interstate affairs is

analyzed.

vii

The book is intended to serve as an introductory text for advanced

courses on international criminal law or humanitarian law in both legal

studies and political science-related fields including international rela￾tions. However, it may also be used as a supplemental reading for public

international law courses as well. In addition, general readership may

find it useful as the area of international criminal law is particularly

popular because of its relation to the ongoing atrocities in different parts

of the world.

The errors in the book remain solely mine while those who have

extensively made contributions deserve credit.

Istanbul, 2016 Dr. Cenap Çakmak

viii Preface

Contents

Historical Background: Evolution of International Criminal

Law, Individual Criminal Accountability, and the Idea of a

Permanent International Court 1

Part I The Evolution of International Criminal Law:

A Historical Overview

Prior to World War I 9

The Interwar Period 25

The Period Between World War II and the End

of the Cold War 49

From the End of the Cold War to the Present 101

Review and Analysis 123

ix

Part II Forming the International Criminal Court

Developments Leading to the Establishment of the

ICC Prior to the Rome Conference 135

The Rome Conference 147

Negotiations at the Rome Conference 165

Debates on Inherent or Preauthorized Jurisdiction 181

No Reservations, No Statute of Limitations

in the Final Statute 191

Part III The International Criminal Court

in World Politics

Introduction 199

Overview and Significance of the International

Criminal Court (ICC) 205

The ICC Versus National Sovereignty: Analyzing ICC’s

Performance as a Legal and Political Institution 213

Global Civil Society and the ICC 239

Conclusion 263

Bibliography 273

Index 297

x Contents

Historical Background: Evolution of

International Criminal Law, Individual

Criminal Accountability, and the Idea

of a Permanent International Court

It is generally agreed that international law is based on the consent of states.

In other words, states, and the intergovernmental organizations they create,

are the main units of international law, which thus governs the interactions

between the states as legitimate actors. However, in rare instances, a natural

person may become a subject of international law; in other words, inter￾national law prescribes rules that apply to real persons as well. International

criminal law is a body of law that generates rules that govern certain acts

committed by real persons. With the exception of these rules, a real

person’s acts are generally governed by national laws. However, some

acts by a real person are considered grave, and for this reason, states agree

that these acts must be included in the scope and domain of international

law. Although it does so in a complementary fashion, international crim￾inal law argues that it operates in such cases of grave acts and it converts real

persons into subjects of the international legal system.

International criminal law is a nascent part of international law,

suggesting that it has not been an integral and indispensable part of

the international legal system for long. However, it should also be noted

that international criminal law has roots in terms of introducing ideas on

© The Author(s) 2017

C. Çakmak, A Brief History of International Criminal Law

and International Criminal Court,

DOI 10.1057/978-1-137-56736-9_1

1

how to prosecute grave crimes committed against large numbers of

people in times of both war and peace. This volume seeks to analyze

how these ideas emerged in a historical context and were then trans￾formed into the legal mechanisms that led to the emergence and devel￾opment of a separate body of international law.

It is possible to divide the evolution of international criminal law into

three main parts. Before there was international criminal law, all crim￾inal acts including the most heinous ones—popularly called interna￾tional crimes—were prosecutable by national jurisdictions alone. The

principle of sovereignty called for exclusive jurisdiction over these

actions, suggesting that only the state where the relevant criminal

activity took place would be authorized to address the crime. Known

as territoriality, this principle still remains the primary choice in enfor￾cing criminal codes.

However, given the gravity of international crimes, the doctrine of

universal jurisdiction was developed to address the problem of impunity

for the perpetrators of criminal activities that had devastating impact.

The doctrine suggests that a state should be able to claim jurisdiction

over certain crimes even if those crimes were not committed in its

territories. The principle was initially invoked for privacy, but its scope

was later expanded to include other international crimes as well, includ￾ing hijacking, genocide and crimes against humanity. However, out of

fear of political retaliation, only a few states relied on this doctrine to

prosecute perpetrators of international crimes that had not been com￾mitted in their territories. With few exceptions (famous examples

include the Pinochet trial and Israel’s prosecution of former Nazi

military officer Adolf Eichmann), individual states remained indifferent

to cases of international crime simply because they did not have strong

political motivation to get involved.

The establishing of ad hoc tribunals and hybrid courts can be

considered a response to individual states’ reluctance to prosecute

perpetrators of international crimes in cases in which they had no

strong interest or will. Because ad hoc tribunals were not run by a

single state, judges, prosecutors and the other powerful players in these

initiatives would have no fear of political retaliation, and because the

tribunals would be formed by the UN Security Council, they would

2 A Brief History of International Criminal Law and International ...

not suffer from a lack of legitimacy or effectiveness. Ad hoc tribunals

made tremendous contributions to the evolution of international

criminal law. However, they were not without problems. The

Nuremberg and Tokyo tribunals that were called after the end of

World War II were strongly criticized because they allegedly delivered

the justice of victorious powers and served their interests. Despite their

contributions, particularly those of the Nuremberg trials, the contro￾versy over their impartiality still remains. Another problem with ad hoc

tribunals is whether or not they effectively deter future perpetrators. In

addition, assembling these tribunals takes a great deal of time, requires

strong willingness and is costly, all of which led to what was popularly

called tribunal fatigue.

In an effort to address this problem, the international community

created a permanent international criminal court that held automatic

jurisdiction over certain crimes without requiring prior authorization by

states or the relevant international institutions. The emergence of a

permanent international criminal court was hailed as a major break￾through in ending impunity and holding the perpetrators of interna￾tional crimes accountable under international law. However, the court

was to be viewed as a product of collective efforts and action involving

progressive states paying attention to protecting human rights, relevant

international institutions including the UN and representatives of global

civil society.

By nature and definition, states are expected to preserve their dom￾ination and supremacy on the international political stage; for this

reason, they would normally be expected to claim jurisdiction over

their nationals even if the acts of these nationals could be considered

harmful to the entire international system. The principle of sovereignty,

the basis of the state’s supremacy in international politics, is the main

source of this claim. For this reason, even though they consented to its

creation, the states could be persuaded by nonstate actors to develop

international criminal laws that clearly restricted the states’ prerogatives

as political actors. In particular, civil society actors and even individuals

who served and acted as norm entrepreneurs made extensive contribu￾tions to the emergence of the international criminal law that was also

created by the states.

Historical Background: Evolution of International Criminal Law ... 3

In assessing the role of global civil society in creating the first perma￾nent global institutions to address the gravest crimes, it is essential to

first trace the idea behind creating such a body. Along this journey, it is

also necessary and relevant to examine how the individual human being

became a subject of international law and how international criminal law

gradually evolved over the course of the nineteenth and twentieth

centuries. Of course, it is not possible to explore the details,1 and thus,

this section focuses on the aforesaid subject only to the extent that this

attempt to explore the historical background reveals how the develop￾ments in international criminal law and the evolution of individual

criminal responsibility have limited the state’s domain and sphere of

influence in global politics.2

1There is a vast literature on various aspects of international criminal law. Among others, see the

following: Ilias Bantekas and Susan Nash, International Criminal Law (London: Cavendish,

2001); M. Cherif Bassiouni, (ed.), Introduction to International Criminal Law (Ardsley NY:

Transnational Publishers, 2003); International Criminal Law (Ardsley, NY: Transnational

Publishers, 1998); (ed.), International Criminal Law, 3 vols. (Ardsley-on-Hudson: Transnational

Publishers, 1986); International Criminal Law: A Draft International Criminal Code (Alphen aan

den Rijn, The Netherlands; Germantown, MD: Sijthoff & Noordhoff, 1980); Bassiouni and Ved

P. Nanda (compiled and edited), A Treatise on International Criminal Law (Springfield, IL:

Thomas, 1973); Antonio Cassesse, International Criminal Law (Oxford: Oxford University

Press, 2003); Rodney Dixon, Karim Kahn and Richard May (eds.), Archbold: International

Criminal Courts: Practice, Procedure and Evidence (London: Sweet & Maxwell, 2002); Sterling

Johnson, Peace Without Justice? Hegemonic Instability or International Criminal Law (Aldershot,

Hants, UK; Burlington, VT: Ashgate, 2003); Kriangsak Kittichaisaree, International Criminal

Law (Oxford; New York: Oxford University Press, 2001); Helen Malcolm and Rodney Dixon

(eds.), International Criminal Law Reports (London: Cameron May, 2000); Donald W. van Ness,

International Standards and Norms Relating to Criminal Justice: Conventions, Guidelines, Rules and

Recommendations Promulgated by the United Nations, Council of Europe, Organization of American

States, Organization of African Unity and Commonwealth of Nations (Bethesda, MD: Pike &

Fischer, 1997); Jordan J. Paust, Leila Sadat and M. Cherif Bassiouni (eds.), International

Criminal Law: Cases and Materials (Durham, NC: Carolina Academic Press, 2000), Geert-Jan

A. Knoops, The Prosecution and Defense of Peacekeepers Under International Criminal Law

(Ardsley, NY: Transnational Publishers, 2003); Bruce Broomhall, International Justice and the

International Criminal Court: Between Sovereignty and the Rule of Law (Oxford and New York:

Oxford University Press, 2003); Christoph Safferling, Towards an International Criminal

Procedure (Oxford: Oxford University Press, 2001); Iain Cameron, The Protective Principle of

International Criminal Jurisdiction (Aldershot, UK; Brookfield, VT: Dartmouth Pub. Co., 1994). 2 For a detailed account of the relationship between state sovereignty and international criminal

law, see, among others, Jackson Nyamuya Maogoto, State Sovereignty and International Criminal

Law: Versailles to Rome (Ardsley, NY: Transnational Publishers, 2003).

4 A Brief History of International Criminal Law and International ...

In the meantime, this section will also demonstrate that because of the

lack of external pressure on the states, they have easily managed to resist

the realization of a permanent international court, basing their resistance

on the premise that such a court would damage the prominence and

dominance of the nation-state and the principle of sovereignty that has

kept the state in the role of the determinant actor in global politics.

Although the idea that an international criminal court should be estab￾lished to prevent future atrocities has often been voiced, because there

has been no coordinated, single-minded global civil action, the state￾centric world has not seen this long-desired international body come to

fruition.

When presenting the historical developments concerning the issues

under review here, scholars of international criminal law often choose

between focusing on the evolution and current application of the idea of

universal jurisdiction as a whole—that is, the crimes that fall under the

scope of universal jurisdiction, the relevant international legal arrange￾ments, etc.—and simply listing the most outstanding historical devel￾opments pertinent to the core subject of international criminal

responsibility. However, to make the subject clearer by clarifying the

relevant concepts, both the historical developments and the whole sub￾ject of universal jurisdiction are examined here.

A Brief Historical Survey of International

Criminal Law and Individual Criminal

Responsibility

For practical reasons, it is possible to divide the history of international

criminal law into three parts. Although there may be some serious

overlaps between the periods, such a division seems to be helpful in

understanding the development and evolution of individual criminal

responsibility in a clearer, more precise fashion. Given that the state￾centric world system was dominant over the course of the nineteenth

and twentieth centuries and that the evolution of international criminal

law is closely related to this system, it would be wise to choose

Historical Background: Evolution of International Criminal Law ... 5

important historical turning points in order to explain this evolution.

Undoubtedly, these historical points are the two world wars, which, as

one may easily expect, brought the idea that those responsible for large￾scale death should be tried and convicted. Therefore, in general terms,

the evolution of international criminal law is examined in four phases:

pre-World War I; the interwar period, that is, the period between

World War I and World War II; the period between the end of

World War II and the collapse of the Soviet Union; and the period

since the end of the Cold War. Although the last period does not

involve a real war, given that it relates to another type of war, it is not

unusual to regard it as a historical turning point.

6 A Brief History of International Criminal Law and International ...