International Criminal Courts

Until the adoption of the Statute, there was no single instrument containing a comprehensive and widely accepted definition of crimes under international law, and enforcement was left to national courts exercising territorial or universal jurisdiction over these crimes or to ad hoc national or international criminal courts. Although there were occasional ad hoc international criminal courts during the Middle Ages, the first formal proposal to establish a permanent international criminal court was not made until 1872, when Gustave Moynier, one of the founders of the International Committee of the Red Cross, proposed such a court to enforce the 1864 Geneva Convention on the treatment of wounded soldiers. Leading international lawyers of the day dismissed it as impractical. The failure to set up the ad hoc international criminal tribunal envisaged in the Treaty of Versailles (1919) to try the former German emperor for "a supreme offence against international morality and the sanctity of treaties" for his role during the First World War led to numerous proposals between 1920 and 1945 for a permanent international criminal court. Two treaties, adopted by the League of Nations in 1937 at the initiative of France to establish a permanent international criminal court with jurisdiction over terrorist crimes, never entered into force.

At the end of the Second World War, the international community rejected the idea of establishing a permanent court, partly because it would take too long to set one up by treaty, and instead favored establishing two ad hoc international criminal courts to try major suspects of the Axis powers (Germany and Japan) on charges of crimes against peace, war crimes, and crimes against humanity: the International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal of the Far East (Tokyo Tribunal). Their judgments were landmarks in international law in holding that the atrocities committed during the Second World War, including those perpetrated against a state's own citizens, were crimes under international law. Such atrocities were of concern to the entire international community, and any individual, regardless of status or rank, could be held criminally responsible. In 1946, the United Nations General Assembly affirmed the principles of international law recognized in the Nuremberg Charter and Judgment. However, both tribunals were criticized by some as applying retroactive justice, selective prosecution, or unfair procedures.

As a result of such criticism, Henri Donnedieu de Vabres, who served as a judge on the Nuremberg Tribunal and had made proposals on the subject, introduced a French proposal in the United Nations (UN) in 1947 to establish a permanent international criminal court. The following year, the UN General Assembly asked the International Law Commission (ILC), a UN body composed of international legal experts, to study the question. However, as a result of hostility to the idea of such a court and concerns about the crime of aggression, particularly by the United Kingdom, the United States, and the USSR, there was little progress on this proposal for more than four decades. In 1954, the ILC adopted a draft Code of Offences against the Peace and Security of Mankind, but it was never incorporated in a treaty, and the 1974 definition of aggression by the General Assembly in Resolution 3314 (XXIX) was widely seen as insufficient for determining individual criminal responsibility. The ILC resumed work on the draft code in the 1980s, but did not complete its work on a Draft Code of Crimes against the Peace and Security of Mankind (1996 Draft Code of Crimes) until 1996.

Work would not have resumed on the proposal for a permanent international criminal court until 1996 but for pressure from two different directions. First, in the 1980s, the German foreign minister, President Mikail Gorbachev of the USSR, and A. N. R. Robinson, the prime minister of Trinidad and Tobago, each called for a permanent court. Second, in May 1993, as a result of international revulsion at the massacres, rapes, and expulsions in the former Yugoslavia, the Security Council, acting under Chapter VII of the UN Charter to restore and maintain international peace and security, established the ad hoc International Criminal Tribunal for the former Yugoslavia (Yugoslavia Tribunal) with jurisdiction over genocide, crimes against humanity, and war crimes committed since 1991 in that region. In November 1994, the Security Council established a second ad hoc tribunal, the International Criminal Tribunal for Rwanda (Rwanda Tribunal), to bring to justice those responsible for genocide, crimes against humanity, and war crimes committed during internal armed conflict in Rwanda in 1994. Between 500,000 and one million members of the minority Tutsi group, as well as moderate members of the Hutu majority, were killed in Rwanda between April and July 1994.

In December 1993, the General Assembly asked the ILC to complete its work on a draft statute for a permanent international criminal court "as a mater of priority" by July 1994. The July 1994 ILC draft statute was considered in an Ad Hoc Committee in 1995 and a Preparatory Committee from 1996 to 1998 before it was adopted by the Diplomatic Conference in 1998. Since then, a Preparatory Commission has been meeting in New York. On 30 June 2000, it adopted draft Elements of Crimes, which under Article 9 must be consistent with the Statute and are to aid the court in interpreting definitions of crimes, and draft Rules of Procedure and Evidence, which also must be consistent with the Statute (Article 51). They are to be considered and adopted by the Assembly of States Parties, along with other supplementary instruments being prepared by the commission.