International Criminal Law

Defining international crimes is only a first step in using criminal law to protect the values and interests of the international community. To be effective, international criminal law must be enforced. There are essentially two ways that this can be done: indirectly, under the jurisdiction and national criminal law of states, or directly, by international courts created for this purpose.

Enforcement presupposes jurisdiction to enforce. International law recognizes that states may prosecute for crimes committed on their territory (territoriality principle), by their nationals (nationality principle), or against their nationals ( passive personality principle). Normally a state must have some such link as the basis for its exercise of jurisdiction over a crime. Universal jurisdiction is a special exception to this rule, applicable only to those, such as pirates, whose criminal acts render them hostes humani generis, the enemies of all humankind. Under the principle of universal jurisdiction, such a person may be tried not only by states linked to the crime but also by any other state. This extraordinary jurisdiction helps to remedy the inability of the decentralized international system to enforce even its most fundamental laws. It applies today to international crimes such as genocide and torture and may eventually apply to all serious international crimes.

The traditional approach calls for international crimes to be enforced and sanctioned under the national law of a state, even when the international crimes themselves are defined by a multilateral treaty. The parties to the 1949 Geneva Conventions, the Torture Convention, and a number of other international criminal law treaties are thus obliged either to prosecute offenders under national criminal law or to extradite them to a state that is willing to prosecute. The advantage of this approach is that it does not require the creation of new international institutions. Another advantage, at least from the point of view of some governments, is that it does not compromise the sovereignty or other interests of states.

The approach also has several weaknesses. It relies entirely upon states, acting pursuant to their treaty obligations, for the enforcement of international criminal law, yet it provides no mechanism for ensuring their compliance. It also fails to provide a mechanism for the resolution of conflicts between states relating to enforcement, and fails to provide fair trial or other safeguards for alleged offenders.

A unique and innovative model of enforcement was developed to try two Libyan nationals charged with planting the bomb that killed 270 people, mostly Americans and Britons, aboard Pan Am Flight 103 over Lockerbie, Scotland, in 1988. Libya refused to extradite the suspects to the United States, or to Scotland, for trial as demanded by the United Nations Security Council. After enduring years of economic sanctions, Libya finally handed them over for trial by a Scottish court sitting in the Netherlands. One suspect was convicted, the other was acquitted.

The possibility of creating an international criminal court has been discussed for centuries but, until recently, the only major precedents were the international military tribunals of Nuremberg and Tokyo of the 1940s. These tribunals pioneered the use of international criminal courts to hold individuals responsible for serious international crimes. From 1951 to 1953, the United Nations made futile efforts to foster an international criminal court. There was little or no progress on this front for the next forty years. Many governments were concerned that creating an international court with jurisdiction to try national officials for international crimes could compromise state sovereignty. The government of the United States was among those states that shared this view until reports of shocking international crimes brought the issue of international criminal courts back onto center stage.

In 1994 the International Criminal Tribunal for the Former Yugoslavia (ICTY) was created ad hoc by the U.N. Security Council, in response to the atrocities being committed in that region and, in 1995, a second such institution, the International Criminal Tribunal for Rwanda (ICTR), was created on the same model. They represented a major step forward from the Nuremberg and Tokyo precedents. The Nuremberg and Tokyo tribunals were international military tribunals created by the victorious powers of World War II. The ICTY and ICTR were created by the United Nations, and were thus international tribunals in the fullest sense. The intervening development of the international law of human rights also meant that the ICTY and ICTR would need to respect the international fair trial standards that had developed since the post–World War II era.

Each of these institutions could only prosecute for international crimes committed within a specific territory, and neither threatened the interests of states outside the regions concerned. Despite their limitations, the ad hoc tribunals functioned well enough to lay the groundwork for the creation of a permanent International Criminal Court (ICC). Their indictments and decisions did much to clarify the law governing crimes against humanity, genocide, and war crimes. They also demonstrated that international tribunals could act fairly in investigating and prosecuting international crimes.

On 17 July 1998, after three years of periodic preparatory negotiations and a five-week diplomatic conference in Rome, 120 states voted to approve the text of a treaty creating a permanent ICC with jurisdiction to prosecute for genocide, crimes against humanity, and the most serious war crimes. The ICC will officially come into existence when sixty countries have ratified this treaty. Even as the United States signed the ICC treaty in December 2000, there was substantial opposition to the treaty in the U.S. Senate, which must grant its advice and consent before the United States can ratify. The track record of the new ICC may eventually assuage these concerns.