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					      Tamàs Vince Adani




                      International Relations and the
                      Introduction of the International Criminal Court




                                             PREFACE
         During     the   summer       1998    the     United   Nations   Conference   of
Plenipotentiaries finished the text of the Statute of the International Criminal
Court. The idea of a permanent international criminal court is far from being
new: shortly after World War II, at its very early stage of development, the UN
General Assembly requested the International Law Commission to draft the
                                   1
rules for such an institution.
         For the next fifty years the completion of this task has remained
impossible for various reasons that I am to clarify in this paper.
         As usual, it is hard to play the role of fortune-teller. The existence of the
ICC could have so tremendous effects -inter alia on traditional views on State
sovereignty – to justify the huge resistance it had to face. The following pages
will show the aforementioned process. Then, according to the present
situation, I would like to introduce some possible ways and probable problems
in the future of the ICC. I will try to avoid going too deeply into legal technical
details, nor I will consider procedural and structural elements. Instead, I am to




1
    G.A. Res. 177(II) of 21 November 1947.



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outline the possible new legal paradigm set up by the ICC, highlighting some
political issues as well as some questions of international legal theory and
material law. In order to fulfil this goal, I must take a short historical review, to
illustrate the starting phase of the development in order to value enough the
change occurred in the last decades.


          REFLECTIONS OF WAR ON PUBLIC INTERNATIONAL LAW UP TO 1945
     The first international treaties were conducted by ancient city-states in the
Middle East. Since then war was an accepted -if not the dominating - part of
international relations. This view changed in modern times, especially after the
                     th
beginning of the 19 century, when technical development increased rapidly,
affecting also warfare. Consequently, methods and weapons of war became
more and more inhuman, reaching a level which could not be tolerated by any
reasonable men. These "modern wars" were e.g. the American civil war, the
Balkan wars of the 19th century, and armed conflicts associated to the birth of
some European nation-states, i.e. Italy and Germany.
     The most important legal effect of these wars was the strong need of
codification and persistent implementation of the "rules of war", the so-called
ius in bello. Nevertheless, at the turn of the century no State (except for
extremely rare examples) had debated the right of starting war -the so-called
ius ad bellum. The history of this right of sovereign states is even more
interesting to understand the process which forerun the ICC Statute.
     In the middle ages, the number and range of subjects of this right had
begun to decrease as a consequence of the Catholic Church’s doctrine. Basically




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                                                                                3
this consisted of the theory of "just" and "unjust" war. The latter was
forbidden, but "just" wars were tolerated. Possible grounds for justification of
warfare were leading it against non-Christians or
heretics, and warfare as a sanction. Implicitly this                   Jean Bodin set up nine
theory        rendered       war      a    "State-monopoly",                  features of
expressly forbidding private wars, but leaving so                       Sovereignity, among
many subjective element for the Sovereign in
                                                                          which the right to
                                                                        declare war and make
deciding what acts could be sanctioned by war,
                                                                                peace.
that the principle is far from being applicable
today.
         Approximately in the same era, the theory of sovereignty in the modern
sense started to develop. Without going into details, I give here only one
                                                                   4
example: in 1576, in his analysis, Jean Bodin set up nine features of
Sovereignty, among which you find the right to declare war and make peace.
This idea had such a tremendous effect, that we consider it natural to find the
very same principle in modern, democratic Constitutions: but on the other side,
it might be nothing different from a universal declaration of the ius ad bellum.
Moreover, throughout modern history (for some extent up to now) this view
                                                                                          5
resulted in the trend that war was considered to be a relation among States.
This absolutely excluded personal international responsibility for acts not in
consistence with the existing regulations.



3
    N.Q. Dinh, A. Pellet, P. Daillier, P. Kovács: Droit public international.
4
    J. Bodin, Les six livres de la République de J.B..




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                     th
         At the 10 anniversary of the USA's joining the First World War, Aristid
Briand, Minister of Foreign Affairs of France, initialized the exclusion of war
from the tool-set of international relations. According to the view of Mr. Kellog
-US Secretary of State - the States involved conducted an international treaty
instead of proclaiming a common declaration. This treaty (Briand-Kellog Pact,
August 27, 1928) was open for accession by any State, and it was also a
milestone as a multilateral document limiting ius ad bellum. The "High
Contracting Parties" agreed upon not waging war with each other, and
rejecting war in general.
         Concluding my points about the historical development before World
War II, I would underline that the development of
the law of war arose in two major fields: as
                                                                           The Briand Kellog
regards ius in bello you could find the emergence
                                                                          Pact was a milestone
of a truly strong basis of future development                               as a multilateral
(besides the start of international humanitarian                         document limiting IUS
law), and also the rules, conventions and                                     AD BELLUM

institutions still existing and regulating this
matter. Despite ius ad bellum was hardly
questioned, no general prohibition has been agreed upon.




    CHANGES IN INTERNATIONAL REGULATION - AD HOC INTERNATIONAL TRIBUNALS SINCE


5
    J. J.Rousseau, Du contract social ou principes du droit politique.




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                                                 1945
        The shock generated by the horrors of World War II was enough to ruin
each and every former conception about the "right to war", "just war" and other
                                 th
similar terms. In June 26 1945, in San Francisco, signatories of the new UN
Charter were the first to set up the general prohibition of war: according to
their will, use of force is illegal, except for the cases of individual or collective
                                                           7
self-defense, or by the will and consent of UNSC.
        This war changed plenty of paradigms in legal and political sciences , and
international law was not an exception. Not only the utter prohibition of war,
but also the role of individuals -directly,
without State-level intervention - in
public international law. This lined a
straight       route     towards          the    first
international criminal tribunal, with the
power of judging people accused of
these special, new crimes. The most
specific        characteristic        of        these     Session of the trial of Nuremberg

international crimes - differently from the traditional ones (piracy, slavery etc.)
                                                     th
prohibited since the second half of the 19 century -is that these newly codified
crimes can be committed generally only under war conditions. Consequently,
in most cases national authorities are unable or unwilling to prosecute these
criminals. The statute and activity of the International Military Tribunal


7
    See Chapter VI- VII of the Charter.




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(commonly known as the Nuremberg Tribunal) was truly a milestone in the
development of international criminal law; nevertheless, it was also an easy
target for several critiques -regarding major, important issues -some of which
were technically right.
     Some of the major criticisms and attacks against the Tribunal highlight
some problems, which have remained unsolved till the most recent days. For
the best understanding of these problems, one should not forget the key feature
of the IMT: it was an ad hoc tribunal, created by the London Agreement (8
August, 1945), and signed by the four "winners". Although later on 19 more
States accessed the agreement, one of the basic area of attacks driven against
the Tribunal belonged to this field, i.e. IMT was said to be the "Court of
Winners". These critiques can surely be justified considering recent historical
evidences. Some acts of the armies and representatives of the four winners
were clearly crimes against international law -sometimes slightly different
from the manifestations of Nazi terror.
     Furthermore, you should always keep in mind the basic differences in the
ways of thinking of lawyers: whether they come from the international or
criminal law field, or if they have a common law (Anglo-Saxon) or continental
(Roman-Germanic) background. In common law legal systems, the role of
codification is traditionally weaker: "law exists from immemorial times", a
judge has "only" to find it. The concept of "finding the law" is a fundamental
principle of common law jurisprudence. In Roman-Germanic legal systems, on
the contrary, the fundamentals of law are the various codes present in any of
these legal systems. Their importance is even more outstanding in criminal




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law. The principles of nullum crimen sine lege, nulla poena sine lege are the
fundamentals of any modern continental criminal law. The judge cannot find
actions to be crimes, if they are not codified in the criminal code of the given
country.
       Applying the aforesaid reasoning to the IMT procedures: the crimes for
which it had capacity were never before put in any criminal code apart from
the appendices of the London Agreement. Consequently, under a strict
interpretation (continental criminal law) they were not even crimes -
nevertheless no one can responsibly argue that
                                                          The principles of
the     Nazi   leaders   could   have   been   left
                                                        NULLUM CRIMEN SINE
unpunished. For both a common law thinker or          LEGE, NULLA POENA SINE
an international lawyer it is much easier to accept             are the
                                                             LEGE
the importance of customs, non-written sources         fundamentals of any
of law: and, therefore, the nullum crimen               modern continental
principles are inapplicable to customary norms ,
                                                          criminal law.
their very nature foreclosing it: nevertheless, my
personal opinion is that the nullum crimen
principles might be utilized for customary law as well, but different legal
techniques should be applied.
       Moreover, these crimes against international law are so severe, that they
can be punished upon fundamental legal principles and regulations present in
every legal system.
       The two most recent examples of ad hoc tribunals are the ones established
to judge crimes committed in the 1990s in the territory of the former Yugoslavia
                                                  8
and in Rwanda. They were set up by the UNSC, by the consent of at least the


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      Tamàs Vince Adani




15 Member States of the Security Council. These bodies seem to be able to
avoid the criticism of being the Courts of Winner. Nevertheless, they are still
ad hoc tribunals: having competence over only a specific armed conflict, their
activity has been strongly limited in time and space as well. Moreover, the
UNSC is not a legislative body: the legal reasoning upon which ICTY and ICTR
were set up is a very smart one, but still a target for serious critiques. Being ad
hoc bodies, they still face the same problem, as the IMT did, even if the
international legal background has utterly changed since the Nuremberg times.
I believe it is even possible to speak about a legislative revolution in these
decades, in spite of the obvious constraints created by the Cold War conditions.
But these are already - for some extent - the first steps on the legislative route
to the Rome State of the ICC.
        Before discussing that new section, I list some of the consequences of the
process described above -enough to change some of the traditional
international legal paradigms - and also some other problems, arising from the
activity of the international ad hoc criminal tribunals since World War II:
        First, the retreat from the age of ius ad bellum: the new regulation
introduced by the UN Charter;
        Secondly, the very idea of individuals having international (personal
criminal) responsibility: consequently, they might be considered as at least
passive or limited subjects of international law.
        Thirdly, the prosecutment of individuals for war crimes committed on

8
    ICTY: ADOPTED 25 MAY 1993 by Resolution 827.
    ICTR: Security Council Resolution 955.




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behalf of a State must be enough to shatter the view which interprets war as a
relation solely among States.
     Fourthly,   the   well-based    and     functioning   domestic    legislative
expectations, legal guarantees (nullum crimen sine lege, etc.) are almost
impossible to achieve with only ad hoc international tribunals.


        CRIMES AGAINST INTERNATIONAL LAW: THE POST-WAR DEVELOPMENT
     By the time the ICTY and the ICTR started their work, because of the vast
number of international regulations, these two bodies had to face much less
theoretical attack than the Nuremberg Tribunal. International conventions, like
the ones of Geneva (August 12, 1949) or the Universal Declaration of Human
Rights etc. are just the most famous and "clear-cut" examples of this process. In
its early years the post-war normative expansion brought inter alia plenty of
new regulations as a consequence of the problems arising from the activity of
the Nuremberg Tribunal. At its very early stage of development the United
Nations requested the International Law Commission to codify the principles
included in the London Agreement, later known as the Nuremberg principles.
These principles incorporated the ideas of
     - personal responsibility (Principle 1),
     - the indifference of the lack of domestic regulation prohibiting an act
which constituts an international crime (Principle 2)
     - the irrelevance of official capacities (acting as Head of State or
responsible Government official (Principle 3))
     - the irrelevance of acting pursuant to order of his superior -if a moral
choice in fact was possible (Principle 4)


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       - the right to have a fair trial (Principle 5)
       Principle 6 lists again the crimes under international law. Although some
issues have been modified since then, the list is still important to understand
which capacities the ICC is going to have once it have been finally set up.
       The first major group is formed by the crimes against peace, including the
crime of aggression, which up to now is probably the most debated one. You
might even take it as evidence, that the rejection of war as a method of
international relations is far from being done and finished. Legally, Ius ad
bellum does not exist but in extreme cases: nevertheless, it has been almost
impossible to agree upon what aggression means, i.e. what acts at the outbreak
of a war constitute a crime.
       The second major group consists of war
crimes: violation of the laws and customs of              The term "war
warfare. These have been codified mainly in the          crimes" refers to
19
  th
       - 20
              th
                   century and were subject to a vast      various acts.
development after the 1940s. Technically, the
norm itself hardly changed since then, but the
contents of this framework have expanded vastly:
prohibition or limitation of a wide range of various weapons from ABC ones to
cavalry mines. The term "war crimes" refers to various acts, in particular
murder, ill-treatment etc. of civil population of an occupied territory.
Generally, these are violations against the rules of ius in bello, the rules of
warfare.
       The third group is that of illegal acts constituting crimes against




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humanity. At that time only genocide was included among them, but now
there are more recent examples, like the crime of apartheid, or the forced
maintenance of colonial status.
     Some of these crimes were clarified later, some easier (like genocide) and
some only with huge efforts (like aggression). In the Statute of the ICTY and
ICTR we found a somewhat different classification: this classification is closer
to that of the ICC's.
     The Statute is grounded deeply on the development outlined above. To
have a better view of what is considered to be an international crime, we
should take a glance at the finalized draft on the Elements of Crimes.
     The ICC will have power to adjudge cases, where the accused are
regarded to commit:
         • genocide
         • crimes against humanity
         • war crimes
         • aggression
     The last of them - aggression is the most problematic. There is an official
definition, even giving the most typical examples of aggressive conducts.
Nonetheless, there is no great power on the World, who would be ready and
willing to give up his "sovereign right" to make war, or even just limit it. This
time, unlike the Briand - Kellog pact, limitation would also mean strict
personal sanctions. Therefore, up to now there is no general agreement on the
                                                                    9
definition of aggression. It can be found in a UNGA Resolution, but for the
time being it has not been included into the ICC framework. In other terms, de




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      Tamàs Vince Adani




facto the Court has capacities for only three crimes.
        The legislative history of genocide is just the opposite. It had already been
codified in 1948, and has hardly changed since then. Genocide in legal terms
"means any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such:
        (a)    killing members of the group;
        (b)    causing serious bodily or mental harm to members of the group;
        (c)    deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
        (d)    imposing measures intended to prevent births within the group;
                                                                                10
        (e)    forcibly transferring children of the group to another group.”
        In my opinion, this wording means that the crime of genocide can be
committed without killing any victims. Of course, historical examples illustrate
just the opposite: however, genocide can be committed even applying
demographic policies. Killing is just one possible way of genocide. Any of the
five conducts listed above falls within the scope of this crime, if the
precondition is met, i.e. the perpetrator's intentions are aimed at the
destruction of the group - implicitly this means also that the action must be
carried out willfully. The perpetrator must know the consequences of his
conduct, must know his goal, and must act in order to achieve this illegal aim.
This reasoning can be most relevant when you try to justify humanitarian
intervention, because some forms of genocide only distinguish from other –


9
    UNGA Res. 3314/1974.
10
    Article 6, ICC Staute.




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legal – domestic policies only by the will of the perpetrator.
         Genocide can also be considered a sui generis crime against humanity.
Generally crimes against humanity involve a
number of unlawful conducts, from murder
through sexual slavery to apartheid, some of them
                                                        Genocide can also be
forming war crimes as well. The conditions
                                                          considered a SUI
among which these conducts are carried out are          GENERIS crime against
nonetheless different. Crimes against humanity               humanity
must be "committed as part of a widespread or
systematic attack directed against any civilian
                                             11
population, with knowledge of the attack". Another distinguishing factor of
crimes against humanity is that they can be conducted in peaceful
circumstances as well.


                                  THE POLITICS BEHIND
         As I have mentioned above, the idea of establishing a permanent
international criminal court was one of the first issues emerging in the post-war
normative development. Yet, it took almost 50 years to re-start the codification
process. An obvious reason for so long stagnation is of course the Cold War
environment. Its impact on criminal international law is clearly expressed in a
1952 essay by Wright: "If, however, half of the members of a society believes
that the other half is actually or potentially a criminal, conditions are



11
     Ibid, Article 7.



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unfavorable for a functioning system of criminal law."
     Another impact of the end of the Cold War could be different in the third
world and other developing countries. The development of nation States
happened later than in Europe. These nations sometimes lack those traditional
cohesion powers, what the term of "nation" generally involves in our thoughts.
Moreover, the Cold War was a confrontation of ideologies. It strengthened new
cohesion powers, and weakened traditional ones. The most tragic example
within Europe was of course the former Yugoslavia. There were grave ethnic
conflicts subdued for some hundred years, and when Communism faded, the
whole system collapsed. In Third World countries, typically what held
together various ethnic groups was not communism, but the process of
decolonization. Yet again, some ethnic groups formed nations not for but
against something. These ideologies might give an answer to the recent
regional conflicts of the world. I find it rather interesting how ICC will be able
to solve these regional conflicts, to aid that internationl humanitarian norms
are respected in these profound historic confrontations leading to recent
internal conflicts as well. I derive this from the general functions of domestic
criminal laws: in modern times, this branch of law is not only for sanctioning
grave breaches of law, but also for avoiding those unlawful acts. By placing a
personal responsibility, a personal sanction on the perpetrator, the ICC will
possibly be capable of fulfilling this important task of criminal law, i.e.
intervening personal motives in order to avoid the commitment of a crime.
This so-called preventive function is the means capable to render the ICC an
effective peace-making body.




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         I started this paper stating that the resistance against the ICC can derive
from the outstanding impact of State sovereignty. First, I have to rehearse what
I mean with "outstanding resistance", if there are more than 130 signatories,
and there are more than 30 ratification registered. At the Rome conference
there were only some States not in favor of the Statute. Although there has not
been a recorded vote, among these States there seems to have been the US,
India and China etc. These countries represented vast powers and India and
China almost half of the world population - meanwhile among these countries
there are some States belonging to "classical" crisis-regions of the world: Israel,
Iraq, not to mention Pakistan, the nuclear rival of India. This list is the most
fearsome constraint of the effectiveness of the Court, in spite of all the
                                                                    12
regulations extending its powers to non-member States as well.
         In this paper I have outlined so far some of those impacts on State
sovereignty, so I only have to sum up them. The very first one is the principle
of irrelevance of official capacities. Heads of States and Governments enjoy
certain privileges under international law, and under domestic constitutional
laws they are generally representing the States themselves. The possibility of
placing personal criminal responsibility on these persons for acts during their
official period has always been problematic and remains so.
         War crimes committed in an internal conflict, in the territory of a given
State shall be prosecuted by the authorities of that particular State - at least
according to the traditional doctrine. With the ICC Statute and the principle of



12
     Ibid, Art. 4, para. 2.



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   Tamàs Vince Adani




complementary jurisdictions there will be a permanent possibility that these
people - citizens of a given State, living and acting in that State - will be
responsible for their acts outside their State.
     The ICC might introduce the most effective sanctioning system in
international law. It is probable, that if the international legal plain becomes
more efficient, it will intervene in the sovereign rights of States. And insofar
international law is being made generally by the States themselves, this renders
the progress so uncertain as it is, leaving many questions open for the future
practice.




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Bibliography:


Bodin J. Les six livres de la République de J.B. Paris, 1576
Dinh N.Q., Pellet A., Daillier P., Kovács P., Droit public international.
General Assembly Resolution 177(II) of 21 November 1947.
General Assembly Resolution 3314/1974
ICC Statute
Rousseau J.J., Du contract social ou principes du droit politique, Paris, 1954.
Security Council Resolution 827 of 25 May 1993.
Security Council Resolution 955.


Web-sites:
http://www.unhchr.ch/html/menu3/b/ch-cont.htm (UN Charter)
http://www.un.org/law/ilc/texts/nurnfra.htm (Nuremberg principles)
http://www.preventgenocide.org/law/convention/text.htm (genocide)
http://www.un.org/icty/basic/statut/stat2000_con.htm (crime
        classifications)
http://www.un.org/law/icc/statute/elements/elemfra.htm (elements of
        crime)
http://www.un.org/law/icc/statute/romefra.htm (principle of
        complementary jurisdiction)




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