Historyof ICLCleanandfinal
Historyof ICLCleanandfinal
Historyof ICLCleanandfinal
The international criminal proceedings following World War II are credited with
launching the modern regime of international criminal law (ICL). Antecedents, however, trace
back for centuries and across the globe. In particular ICL draws on four main strands of
regulations of slavery and the slave trade, the once theological and later secular theory of just
war, and international humanitarian law (IHL) or the “law of war.” On this foundation, the
international community gradually built the norms, rules, instruments, and institutions that now
make up the modern ICL machinery. This chapter interweaves the history of substantive norms
with that of evolving principles of domestic and international jurisdiction, as these narratives are
Several features of this evolution are worth pointing out at the outset. First, with the
exception of the post–World War II period, when the international community created tribunals
and the law they were to apply virtually simultaneously, many ICL norms developed well before
there were judicial institutions available to enforce them. In the terminology of Dan-Cohn, ICL
had conduct rules without corresponding enforcement rules (rules directing officials to enforce
the conduct rules).1 As is the case with much public international law, it took some time before
the international community was willing to put principle into practice. Second, until very
recently, the design of much of the system was ad hoc and reactive to world events rather than
the result of any sort of coherent forward-looking process. A notable exception is the permanent
International Criminal Court (ICC), which has only prospective jurisdiction. Third, the history of
ICL is marked by greater and greater incursions into arenas that were historically the exclusive
province of sovereign states. Thus, ICL norms increasingly govern the treatment a state can
legally accord its citizens and others under its jurisdiction, and the violation of such norms are
participation in war, by the time of St. Augustine ( C.E. 354-430) a theory of just war had
developed, which stated that resort to war was permitted only if the ends were just. Other
religious and national traditions also preserved the right to engage in war against “infidels” or to
avenge a wrong. Efforts to identify the necessary conditions for war constitute the jus (or ius) ad
bellum—the set of rules regulating the decision to use military or armed force in international
relations. In his Summa Theologica, for example, St. Thomas Aquinas (C.E. 1225-1274) set forth
the following requirements for a war to be considered just: (1) it must be authorized by a
legitimate sovereign; (2) it must be necessary for the achievement of a just cause; and (3) it must
be for a “right intention,” that is the restoration of a good and just order and not in furtherance of
aggression, or recovery of something wrongly taken all qualified as just causes for Aquinas.
By the sixteenth century, however, it became accepted that there may be a just war on
both sides, and the laws of war gradually shifted attention away from identifying the acceptable
reasons for going to war to regulating the effects of war—the jus (or ius) in bello. Eventually, the
notion of just war dissipated almost entirely. By the time of World War I, war was viewed as the
prerogative of the sovereign and a valid instrument of foreign policy. International law had thus
dramatically shifted focus. It went from evaluating the morality and justice of going to war, but
only weakly regulating the means and methods of warfare, to a resignation that the justness of
war was too difficult to universalize combined with renewed efforts to humanize the means and
methods of warfare. This shift in emphasis from jus ad bellum to jus in bello still largely
describes the state of the law of armed conflict today, although the halting development of the
crimes of terrorism and aggression harkens back to the jus ad bellum tradition.
Piracy and the practices of slavery and the slave trade were two of the earliest
international crimes outside of war that states coordinated among themselves to criminalize and
prosecute. Up until this point, international law primarily focused on acts committed by one state
against the nationals of another state—the traditional paradigm for war crimes. With the
recognition of piracy and slavery as international crimes, international law turned its attention to
private actors that operated within the interstitial space separating nation states. We thus see a
shift from a focus solely on activity that is international, in the sense of activity between distinct
nation states, to an acceptance of international jurisdiction over activity that affects the efficient
operation of the international system (piracy) or that implicates universal moral values (slavery).
absence of any international tribunal and because it was committed on the high seas, could long
be prosecuted before the courts of any nation able to apprehend the perpetrators. The prohibition
against piracy thus gave rise to the notion of universal jurisdiction, now a central feature of
modern ICL. In United States v. Smith, for example, the United States sought to punish an
American citizen, one Thomas Smith, and others for piracy after they seized and captured several
foreign ships. The defendant argued that there was no definition of piracy in U.S. law, so the
prosecution was invalid. In support of its charges, the government pointed to the Congressional
Act of 1819, in which Congress declared that anyone convicted of piracy, as defined by the law
of nations, could be put to death.* The Court noted that it was universally agreed that piracy is
“robbery, or forcible depredation, upon the sea” and an “offense against the universal law of
society … a pirate being hostis humani generis [enemy of all humankind].”3 Accordingly, the
Supreme Court ruled that Congress could incorporate the law of nations by reference in defining
the crime. Justice Livingston dissented, arguing that the law of nations’ definition of piracy was
too vague to use in a capital case. He reasoned that the Constitution, at Article I §8 (empowering
Congress to “define and punish piracies and felonies committed on the high seas, and offenses
against the law of nations”), specifically directed Congress to promulgate its own definition of
the offense, not to borrow one from elsewhere. In 1820, the United States extended the domestic
definition of piracy to include participation in the international slave trade in an effort to compel
other states to criminalize slavery. The Third Circuit later ruled, however, that slavery could not
Collective efforts to combat piracy in many respects began with the 1856 Paris
Declaration Respecting Maritime Law, which abolished forms of piracy in armed conflict and
was signed by nearly all the imperial powers. As the international community convened the
League of Nations, there was talk of regulating piracy more generally through international
agreement; however, this effort was abandoned as delegates thought it insufficiently pressing to
*
The federal piracy statute (18 U.S.C. §1651) still reads: “whoever, on the high seas, commits the crime of piracy as
defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for
life.”
merit international attention and got bogged down in distinctions between definitions of piracy
under international and municipal law. It was not until the first Law of the Sea Convention was
drafted in 1958 that an omnibus treaty-based definition emerged. Article 15 of the Geneva
(1) Any illegal acts of violence, detention or any act of depredation, committed for
private ends by the crew or the passengers of a private ship or a private aircraft, and
directed:
(a) On the high seas, against another ship or aircraft, or against persons or
(b) Against a ship, aircraft, persons or property in a place outside the jurisdiction
of any State;
(2) Any act of voluntary participation in the operation of a ship or of an aircraft with
This definition appears, with stylistic changes, in Article 101 of the 1982 United Nations Law of
the Sea Convention.6 The once customary practice of universal jurisdiction over piracy finds
expression in the 1982 Convention at Article 105: “On the high seas, or in any other place
outside the jurisdiction of any State, every State may seize a pirate ship … and arrest the persons
and seize the property on board … [and] may decide upon the penalties to be imposed.”
The abolition of slavery and the slave trade is another important chapter in the story of
ICL and international human rights. Abolitionists working across the globe were responsible for
gaining the passage of domestic laws outlawing slavery and the slave trade and convincing
nation states to enter into multilateral treaties doing the same. Great Britain led the charge,
entering into a network of bilateral and multilateral treaties that both permitted the searching of
ships suspected of transporting individuals to be sold into slavery and established mixed
tribunals in ports around the world to condemn slave ships. As early as the 1815 Congress of
Vienna, signatories called for the voluntary abolition of the slave trade, which it described as
The 1890 General Act for the Repression of the African Slave Trade (“the Brussels Act”)
finally called on all signatories to criminalize slave trading and to prosecute offenders—an early
expanded its own mandate to consider analogous practices of forced labor, debt slavery, and
sexual slavery. This was followed a year later by the relatively anodyne Slavery Convention of
1926, which called for the “progressive” suppression of slavery, but contained no concrete
enforcement regime. The subsequent Supplementary Convention on the Abolition of Slavery, the
Slave Trade, and Institutions and Practices Similar to Slavery (1956) returned to the regime of
the Brussels Act and required domestic criminalization and prosecution. In particular, Article
The act of enslaving another person or of inducing another person to give himself or a
person dependent upon him into slavery, or of attempting these acts, or being accessory
thereto, or being a party to a conspiracy to accomplish any such acts, shall be a criminal
offence under the laws of the States Parties to this Convention and persons convicted
Compulsory Labour—and the trafficking of persons, such as the Protocol to Prevent, Suppress
and Punish Trafficking in Persons Especially Women and Children, which supplements the
Modern international criminal law also borrows heavily from IHL. IHL, also called “the
law of war” or the “law of armed conflict,” describes those international rules governing armed
conflict. As long as groups of people, and later states, have waged war, there have been rules in
place governing acceptable behavior in armed conflict. Although the history of the law of war is
often told from the perspective of international conferences held in The Hague and Geneva, as
described in more detail later, all human cultures manifest efforts to regulate this seemingly
inherent aspect of our shared humanity. Recorded history confirms that the ancient Israelites,
Greeks, and Romans, for example, distinguished between combatants and civilians and made
only the former the lawful object of attack. There are African and Islamic traditions dictating that
captured combatants and civilians should be humanely treated. Likewise, in ancient combat,
certain weapons or tactics were prohibited if they caused excessive damage. The codes of
chivalry developed in Medieval Europe set forth rules of combat that applied within the
knighthood. In 1139, for example, the Second Lateran Council condemned the use of the
crossbow, foreshadowing subsequent efforts to ban the use of weapons viewed as unnecessarily
cruel or inhumane. Many of these ancient principles and rules are now contained in a web of
bilateral and multilateral treaties, making IHL the most codified area of ICL. A rich body of
customary international law supplements this extensive treaty regime to this day.
From the perspective of the development of positive law, IHL rules historically evolved
along parallel tracks. The set of treaties emerging from international conferences in The Hague
and elsewhere concerned the means and methods of warfare and sought to limit the tactics of war
and prohibit the use of certain weapons designed to cause excessive suffering (“Hague Law”).
Treaties sponsored by the International Committee of the Red Cross (ICRC) * in Geneva
established protections for individuals uniquely impacted by war, especially those who do
war (POWs), and civilians and non-combatants (“Geneva Law”). In addition, whereas the laws
of war originally and almost exclusively addressed international armed conflicts, with notable
exceptions such as the 1863 Lieber Code governing the U.S. Civil War, IHL rules increasingly
apply to noninternational armed conflicts. Over time, these various strands of IHL have
converged to create a more complete corpus of law. Article 8 of the Statute of the International
Criminal Court reflects this gradual merging of Hague and Geneva Law and of the law
The first multilateral IHL treaty in the strict sense was the 1856 Paris Declaration
Respecting Maritime Law, referenced earlier in connection with the history of piracy, which
addressed privateering and the neutrality of commercial ships in times of war, among other
topics. It was followed by the First Geneva Convention of 1864. This treaty was the brainchild of
Henry Dunant, an inadvertent witness to the Battle of Solferino between Austria and the
kingdom of Sardinia prior to the Italian unification. After seeing thousands of soldiers lying
wounded and dying on the battlefield, Dunant organized Italian citizens to provide care. He later
wrote a highly influential book, Un Souvenir de Solferino (“A Memory of Solferino”), in which
*
The ICRC is a nongovernmental organization based in Geneva, Switzerland that operates as a neutral, impartial,
and independent organization to protect victims of armed conflict. In this capacity, the ICRC monitors compliance
with the Geneva Conventions by warring parties, organizes care for those wounded on the battlefield, supervises the
treatment of prisoners of war, traces those missing in armed conflict, and mediates between warring parties.
he advocated the creation of a neutral organization to care for the wounded in war. He also
convinced the Swiss government to convene a diplomatic conference of states to draft rules to
prevent the suffering he had witnessed. The conference led to the signing of the first Geneva
Convention by several European and American states. Aside from creating the ICRC, the treaty
established rules governing the duty to provide relief to the wounded without distinction of
nationality, confirmed the neutrality of medical units, and designated the red cross symbol as a
protected insignia.
By the turn of the century, the international community increasingly turned its attention
to codifying the laws of war. Peace conferences were held in The Hague in 1899 and 1907 that
led to the conclusion of multiple conventions addressing land and maritime war. (Ironically,
preparations for a third conference were interrupted by World War I.) The 1899 Hague
Conventions, signed but never ratified, addressed themselves to the Pacific Settlement of
International Disputes (Hague I), the Laws and Customs of War on Land (Hague II), Maritime
Warfare (Hague III), the Launching of Projectiles and Explosives from Balloons (Hague IV, 1),
Asphyxiating Gases (Hague IV, 2), and Expanding Bullets (Hague IV, 3). Delegates reconvened
in The Hague in 1906 to draft additional treaties, which have superseded their predecessors and
expanded consideration to the Opening of Hostilities (Hague III), the Rights and Duties of
Neutral Powers and Persons in Case of War on Land (Hague V), the Status of Enemy Merchant
Ships at the Outbreak of Hostilities (Hague VI), the Laying of Submarine Automatic Contact
Mines (Hague VIII), Bombardment by Naval Forces in Time of War (Hague IX), and the
The most important treaty to emerge from this latter Conference was undoubtedly the
fourth, Respecting the Laws and Customs of War on Land, 7 which contained a detailed set of
regulations in its annex. The fundamental principle of jus in bello is found in Article 22, which
states that “[t]he right of belligerents to adopt means of injuring the enemy is not unlimited.” The
regulations go on to forbid poisoned weapons; the killing or wounding of those belligerents who
are hors de combat (i.e., those who have laid down their weapons and no longer present a threat);
enemy property unless “imperatively demanded by the necessities of war”; and the attack of
The Hague Conventions also introduced the so-called Martens Clause, named after the
Russian delegate to the first Hague Conferences. The Clause appears in the preamble of the
Hague Conventions of 1899 and 1907, in a modified form in the 1949 Geneva Conventions and
Protocol II, and in the main text of Protocol I of 1977 of the Geneva Conventions. In its
Until a more complete code of the laws of war is issued, the High Contracting Parties
think it right to declare that in cases not included in the Regulations adopted by them,
populations and belligerents remain under the protection and empire of the principles of
international law, as they result from the usages established between civilized nations,
from the laws of humanity and the requirements of the public conscience.
Martens introduced the declaration after delegates at the Peace Conference failed to agree on the
status of civilians who took up arms against an occupying force. Large military powers argued
that they should be treated as francs-tireurs—a term first used to describe irregular military
formations that had taken up arms against the Germans during the Franco-Prussian War (1870-
1871) and from then on used to refer more generally to guerrilla fighters. Conversely, smaller
states contended that these irregular fighters should be treated as privileged combatants.
Although the clause was originally formulated to resolve this particular dispute, it has
subsequently reappeared in various but similar forms in later treaties regulating armed conflicts.
The clause, although somewhat abstruse, contains several important ideas. First, it
highlights the legal and moral bases of humanitarian obligations by making reference to natural
law ideas, such as the sentiments of humanity. Second, by making reference to the practices of
“civilized states,” the Clause directly incorporates customary law principles as a source of rules
to fill in gaps in codified law. Third, although framed from the perspective of potential victims of
violations (“populations and belligerents”), it also suggests a role for courts acting in an
Although the Fourth Hague Convention retains modern currency, today’s rules of IHL
are largely founded on the four Geneva Conventions of 1949, drafted on the heels of World War
II and supplemented by their two 1977 Protocols. * The 1949 Conventions were developed to
provide specific protections to four classes of individuals not actively involved in combat: the
wounded and the sick in the field (Geneva Convention I), wounded and sick at sea (Geneva
Convention II), prisoners of war (Geneva Convention III), and civilians or non-combatants
(Geneva Convention IV). The four Geneva Conventions primarily apply to international armed
an international character.” The four Conventions criminalize so-called “grave breaches,” which
in Geneva Convention III include willful killing, torture or inhuman treatment, including
biological experiments, willfully causing great suffering or serious injury to body or health,
depriving a POW of the rights of fair and regular trial, and the taking of hostages and extensive
*
In 2005, a third Protocol recognized the red crystal as a fourth protected symbol alongside the red cross, the red
crescent, and the lion and sun, and put to rest a long-standing dispute between the ICRC and the State of Israel,
which had long advocated a nonsectarian symbol.
destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly. It is notable that these provisions protect core due process rights
alongside the physical and mental integrity of persons affected by armed conflict.
The international community adopted two Protocols to the Geneva Conventions in 1977
in response to the changing nature of armed conflict. Protocol I provides a detailed set of rules
concerning the obligation to discriminate between military and civilian targets, defines
international conflicts as including “armed conflicts in which people are fighting against colonial
domination and alien occupation and against racist regimes in the exercise of their right of self-
guerrilla movements, and further defines and clarifies the rules with respect to mercenaries.
armed conflicts.
The original customary and conventional law of war implicated only state responsibility.
In the event of a breach, responsible states were liable to pay reparations or provide other civil
remedies to aggrieved nations. Only later did states begin to impose individual criminal liability
on breaches of the law of war. Although many point to the trial of Peter von Hagenbach in 1474
in Austria for war crimes as the first prosecution of an individual for war crimes, the earliest
recorded trial of an individual for war crimes appears to be the prosecution by an English court
in 1305 of Scottish national hero and warrior Sir William Wallace. Sir Wallace was charged
with, convicted of, and executed gruesomely for waging a war against the English “sparing
neither age nor sex, monk nor nun.” The first treaty mention of individual criminal liability for
breaches of IHL is found in the work of the Brussels Conference of 1874, which produced a final
protocol that was signed by 15 European states but never ratified. Paragraph III stated:
The laws and customs of war not only forbid unnecessary cruelty and acts of barbarism
committed against the enemy; they demand also, on the part of the appropriate
authorities, the immediate punishment of these persons who are guilty of these acts, if
Jurisdictionally, most early prosecutions for violations of the laws and customs of war
early war crimes prosecution is the 1865 military commission trial of Henry Wirz, a Confederate
Captain accused of mistreating and murdering Union soldiers detained in Andersonville prison in
violation of the laws and customs of war. Wirz argued that he was unable to ensure proper
conditions in the prison and was otherwise just following orders. In pleading his case, he wrote:
I do not think that I ought to be held responsible for the shortness of rations, for the
overcrowded state of the prison (which was in itself a prolific cause of the fearful
mortality), for the inadequate supplies of clothing, and of shelters &c. Still I now bear the
odium, and men who were prisoners here seemed disposed to wreak their vengeance
upon me for what they have suffered, who was only the medium, or I may better say, the
The military commission rejected Wirz’s defense and sentenced him to death by hanging.
Notwithstanding that many wrote to President Andrew Johnson pleading Wirz’s pardon or at
least the commutation of the death sentence, Wirz was hanged on November 10, 1865. On the
gallows, he reputedly stated: “I know what orders are. And I am being hanged for obeying
them.”
At the turn of the twentieth century, during an insurrection in the Philippines launched in
opposition to U.S. annexation of the territory following the Spanish-American War (1898), the
United States convened a number of military commissions to prosecute Filipino insurgents and
courts martial to prosecute U.S. service members. These institutions adjudicated both war crimes
and common crimes that were prosecuted as a function of the U.S. obligations as occupier to
maintain public order. Most of the 800 military commission cases involved abuses against
Filipino victims (so-called Americanistas) who had been accused of collaborating with the
American occupiers or opposing the guerillas. These institutions confronted a number of key
issues that continue to vex the modern tribunals, such as the definition of crimes triable under the
laws of war; forms of liability for lesser participants, accomplices, superiors, and co-
conspirators; and legal defenses. The Filipino insurrection marks one of the few times that the
The first modern world war launched the first genuine global effort to address
international crimes through the exercise of international and domestic criminal jurisdiction.
World War I (1914-1918)—which pitted the Central Powers (composed of the German, Austro-
Hungarian, Bulgarian, and Ottoman Empires) against the Allied and Associated Powers (Great
Britain, France, Imperial Russia, later the United States, and others)—precipitated the
German atrocities included unrestricted submarine warfare, brutal occupations, the targeting of
civilians and undefended towns, breaches of neutrality, and—from the perspective of the rest of
Europe—the initiation of the war in the first place. The Ottoman Empire, with the Young Turks
at the helm, is accused of staging one of the first genocides of the twentieth century in its effort
*
Additional suspensions occurred in the South to combat the Ku Klux Klan and in Hawaii during World War II.
to eradicate the Christian Armenian population of what is now Turkey. Under the pretext of
averting an Armenian revolutionary uprising or a “treasonous” alliance with Russia during the
war, the Ottoman Empire launched wholesale deportations and massacres that amounted to a
virtual extermination of the Armenian population. In all, more than a million people were
reportedly killed.
In the face of these offenses, the Allies convened a Commission on the Responsibility of
the Authors of the War and on Enforcement of Penalties to inquire into culpable conduct by the
Central Powers during the “Great War.” The Commission was also to consider the propriety and
accused of committing such breaches. During the ensuing debates over the notion of ascribing
individual criminal responsibility for crimes of war, a confluence of ideological and pragmatic
objections emerged. On the merits, naysayers—led primarily by the Americans—took issue with
the very premise that the principle of state sovereignty could be pierced so dramatically as to
hold heads of state and other state actors liable for the collective actions of their sovereigns.
Objectors also noted the lack of precedent for such a project and pointed to gaping lacunae in
available substantive law. Others argued that trials could lengthen the war if the threat of
prosecution was hanging over the parties. As the war ended, realists argued that trials would
exacerbate instability in the fledgling Weimar Republic and in Turkey, where new governments
were struggling to consolidate their authority in the wake of the war. Others warned that trials
could create a dangerous precedent that might come back to bite the Allies in subsequent
conflicts. Even where there was support for holding trials in theory, there was little agreement on
secondary issues of venue, rules of procedure and evidence, standards of proof, and so on.
In 1919, the Commission presented its final report to the Paris Peace Conference that was
at the time negotiating peace agreements with the Central Powers. This report documented
“outrages of every description committed on land, at sea, and in the air, against the laws and
murders and massacres, tortures, shields formed of living human beings, collective
penalties, the arrest and execution of hostages, the requisitioning of services for military
purposes, the arbitrary destruction of public and private property, the aerial bombardment
of open towns without there being any regular siege, the destruction of merchant ships
without previous visit and without any precautions for the safety of passengers and crew,
the massacre of prisoners, attacks on hospital ships, the poisoning of springs and wells,
outrages and profanations without regard for religion or the honor of individuals … .10
The report concluded that such crimes should be prosecuted before an international “high
tribunal” composed of representatives of the Allied and Associated Powers or before national
tribunals. Foreshadowing the notion of crimes against the peace later developed at Nuremberg
and Tokyo, the Commission also considered “not strictly war crimes, but acts which provoked
the war,” such as deliberate violations of the neutrality of Belgium and Luxembourg.
Notwithstanding early support for prosecuting German officials for initiating the war, the
Commission concluded that acts of aggression should not be the subject of prosecution in light of
the lack of legal authority for such a charge and the complexity of undertaking an investigation
into the politically charged question of the causes of the war. It reasoned:
suddenly declared under false pretexts, is conduct which the public conscience reproves
*
This latter reference to the “laws of humanity” planted one of the first seeds of the idea that there were crimes
against humanity that were punishable separate and apart from conventional war crimes.
and which history will condemn but by reason of the purely optional character of the
institutions at The Hague for the maintenance of peace … a war of aggression may not be
considered as an act directly contrary to positive law, or one which can be successfully
The Commission, however, recommended that in the future “penal sanctions should be provided
for such grave outrages against the elementary principles of international law.”12
The United States at Annex II advanced four fundamental reservations to the report’s
—for which, it argued, there was “no precedent, precept, practice, or procedure”—instead of
coordinating existing national military tribunals. Second, it invoked the limitations of jurisdiction
when it argued that nations could not legally take part in the prosecution of crimes committed
against the subjects of other nations. Third, it rejected the notion that any court of law could
prosecute violations of the “laws or principles of humanity,” on the ground that such violations
were moral rather than legal breaches and were, as such, nonjusticiable. Fourth, it argued that to
prosecute a head of state outside of his national jurisdiction would violate basic precepts and
privileges of sovereignty. The Americans indicated their intention not to participate in any
international trial and instead focused their energies on President Wilson’s project for the League
of Nations.
From this point, the potential liability of German and Ottoman defendants proceeded
along separate tracks. The 1919 Treaty of Versailles ending the war with Germany required
Germany to accept full responsibility for causing the war (the so called “war guilt” clause), make
substantial territorial concessions, and pay reparations. Most important for our purposes, Article
Wilhelm II, who was thus singled out for his central role in orchestrating German crimes during
the war. In agreeing to this provision, the United States capitulated on its prior position in favor
of domestic trials. The envisioned tribunal was to prosecute the Kaiser for “a supreme offense
against international morality and the sanctity of treaties” and was to be “guided by the highest
motives of international policy, with a view to vindicating the solemn obligations of international
undertakings and the validity of international morality.”13 According to Article 228 of the Treaty
of Versailles, lesser German defendants were to be tried before the domestic military tribunals of
the Allied and Associated Powers. This same provision obligated Germany to hand over “all
persons accused of having committed an act in violation of the laws and customs of war, who are
specified either by name or by the rank, office or employment which they held under the German
authorities.” Mixed military tribunals were to prosecute individuals “guilty of criminal acts
against the nationals of more than one of the Allied and Associated Powers” pursuant to Article
229. By these terms, the Treaty of Versailles became the first peace treaty to contemplate war
crimes trials.
By the time the Versailles Treaty entered into force, six months after the signing of the
1918 general armistice, the Kaiser had fled to the Netherlands, which had remained neutral
during the war. The Netherlands refused to extradite him for trial, invoking a long history of
providing asylum to political refugees and the double criminality rule, which prevented the
Kaiser’s extradition to face justice for acts that were not crimes under Dutch law. An American
attempt to kidnap the Kaiser was thwarted, and he died in 1941. Article 227 thus remained a
dead letter. The Allies never enforced the other penal provisions of the Treaty either. In the face
of continued Allied equivocation over war crimes trials and fierce objections among the German
public to the possible extradition of German nationals, Germany artfully proposed hosting
domestic trials before the German Supreme Court in Leipzig. The Allies, desperate to salvage
some vestige of the project, agreed. To the extent that cases were brought (out of more than 800
individuals accused of war crimes, including high-level German officials, only 12 proceedings
were held), trials proceeded sluggishly against low-level defendants and resulted in acquittals or
disproportionately low sentences. Although the Allies protested and then quit the proceedings,
they never made good on their threats to further sanction Germany, and no additional cases were
pursued.
With respect to the Ottoman Empire, the new Turkish regime—under pressure from the
British and perhaps in an effort to head off international trials of its own former leaders—court-
martialed in Constantinople an impressive array of once prominent officials for “crimes against
humanity and civilization” and other wartime offenses. Some defendants were tried in absentia
because Germany refused to extradite them. The trials provoked a surge of Nationalist backlash,
the ground that there was no case against them. The British took many of these individuals into
custody on Malta and elsewhere to prevent their release. As the Turkish civil war heated up,
however, the British eventually swapped or released its prisoners, who had been languishing in
pretrial detention.
The first treaty of peace with Turkey, the 1920 Treaty of Sèvres, contained accountability
provisions mirroring those in the Treaty of Versailles with respect to the right of the Allies to
convene military tribunals to prosecute persons guilty of having committed acts in violation of
the laws and customs of war. Article 230 also contemplated a tribunal created by the League of
Nations to address “the massacres committed during the continuance of the state of war on
territory which formed part of the Turkish Empire on August 1, 1914.” After the Turkish War of
Independence, Mustafa Kemal (a.k.a. Atatürk), who led the Nationalists to victory in the civil
war, denounced and refused to ratify the Treaty of Sèvres. Renegotiations produced a successor
treaty, the 1923 Treaty of Lausanne, which was silent on the question of international justice or
legal accountability for abuses. To this day, Turkey has never acknowledged responsibility for
the campaign against the Armenians and protests diplomatically whenever it is mentioned.
The World War I experiment with international criminal justice thus proved short-lived, a
“fiasco” even, according to Henry Morgenthau, Sr., ambassador to the Ottoman Empire from
1913 to 1916. The fragile unity and resolve among the Allies dissipated in the immediate
postwar period. Evolving events overtook idealism. In the end, only a handful of individuals
were tried, and those who were prosecuted were essentially exonerated. This failed history was
ever present a mere two decades later as a world war once again ravaged the globe.
“The end of a great war frequently brings a revision of the laws of war in its wake.” 14
World War I was no different. In the tenuous peace during the short interwar period, the
international community came together to build institutions to diffuse and settle international
disputes and to fill some of the legal lacunae that had become so apparent in the post–World War
I period. Institutionally, the League of Nations—which featured as its “judicial branch” the
precursor to the International Court of Justice, the Permanent Court of International Justice
(PCIJ)—announced its goal of providing a global forum for “safeguard[ing] the peace of
commission convened in connection with the League of Nations recommended the creation of a
permanent international criminal court to have jurisdiction over “crimes constituting a breach of
international public order or against the universal law of nations.” The proposal, however, was
rejected as “premature,” and only the PCIJ was created with civil jurisdiction over states.
In response to the new weapons systems deployed during World War I, treaties were
drafted regulating or prohibiting the use of various means and methods of war, such as
bacteriological agents and poison gas, and protecting vulnerable classes of persons, such as
POWs and the wounded and sick. The catastrophic war also revived aspects of the just war
theory as reflected in the optimistic, if not naive, Kellogg-Briand Pact (or Pact of Paris). The
Pact, originally a bilateral treaty between the United States and France that was later opened to
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 ... [and] agree that
origin they may be, which may arise among them, shall never be sought except by pacific
means.19
Almost immediately after it entered into force, however, the Pact became a nullity, as Japan
invaded Manchuria (1931), Italy invaded Ethiopia (1935), and Germany invaded Poland (1939),
The post–World War II period is nothing less than a watershed moment in the
development of ICL. This period heralded the development of two international tribunals for
adjudicating international crimes—the International Military Tribunal for the Trial of German
Major War Criminals (the IMT or Nuremberg Tribunal) and the International Military Tribunal
for the Far East (the IMTFE or Tokyo Tribunal). The Allies established these Tribunals to
prosecute, respectively, high-level German and Japanese military and civilian authorities whose
crimes “had no particular geographic localisation.” 20 The Nuremberg Tribunal was established
by agreement (the London Agreement of August 8, 1945) among the four victorious allied
powers: France, the Soviet Union, the United Kingdom, and the United States. By contrast, the
Tokyo Tribunal was technically established by a special proclamation issued by the Supreme
Allied Commander of the Far East, U.S. General Douglas MacArthur, although with the
acquiescence of the other Allied powers. International judicial proceedings before these
institutions were followed by hundreds of trials before military and civilian tribunals in the
various zones of occupation throughout Europe and the Pacific theatre. As these enforcement
efforts were underway, the codification of ICL also began in earnest, with the promulgation of
treaties addressing genocide (the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide) and war crimes (the four Geneva Conventions of 1949).
That the Allies would adopt a strategy of international criminal justice in the post–World
War II period was not a foregone conclusion. For one, the memory of the abject failure of the last
effort at international justice following World War I remained fresh. The British and Soviets
were more inclined to purge, punish, and in some cases simply execute defeated principals
without elaborate legal processes. (The devastated French played little role in the initial decision
making.) Even Prime Minister Churchill argued in favor of executions for Nazi leaders and
summary legal proceedings for the rank and file. In the end, it was pressure from the United
States—and in particular from the Secretary of War, Henry Stimson—that resulted in the
adoption of strictly legal processes to adjudge German and Japanese officials accused of
most fascinating chapters of the history of ICL. As you will recall, after World War I, the United
States was the staunchest opponent of the creation of an international tribunal, considering such
an institution to be unprecedented and potentially dangerous. The United States also rejected
both the justiciability of crimes against humanity as separate and apart from more traditional war
crimes and the notion of a crime of initiating and waging an aggressive war. By the end of World
War II, however, the United States had become the champion of trials, domestic and
international (even establishing the Tokyo Tribunal by executive fiat). The United States also
directed the prosecution of crimes against the peace and conspiracy charges.
How can we explain the volte-face of the United States? Much may have turned on a key
protagonist in this story—Stimson, a lawyer by training. Stimson never wavered in his advocacy
that the Nazi defendants should face trials rather than firing squads, a countermajoritarian
position when U.S. public opinion at the time strongly favored summary execution or immediate
imprisonment. Stimson remained staunchly opposed to alternative proposals that hundreds if not
thousands of Nazis be summarily shot, insisting that even the Nazi defendants deserved due
process of law in keeping with the best of the American legalistic tradition. Stimson was able to
pass the baton to Justice Robert H. Jackson, a Supreme Court Justice (the last one without a law
degree) who represented the United States at the Paris Peace Conference and eventually was
chief U.S. prosecutor at Nuremberg. Once the Allies arrived at the Paris Peace Conference, the
American delegation imposed its postwar strategy on the rest of the Allies, and the Nuremberg
Tribunal was established. The Tribunal convened November 20, 1945 to October 1, 1946. The
Tokyo Tribunal (sitting from May 3, 1946 to November 12, 1948) followed closely on its heels.
The subject matter jurisdiction of the two tribunals reflects the ideas being cast about in
the post–World War I period. Notwithstanding the original Allies’ reticence about criminalizing
the resort to war, the Nuremberg and Tokyo Charters at Articles 6(a) and 5(a), respectively,
enabled the prosecution for “crimes against the peace,” defined as the “planning, preparation,
included “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian
the seas, killing of hostages, plunder of public or private property, wanton destruction of cities,
towns or villages, or devastation not justified by military necessity.” The Charter heralded the
revival of the concept of crimes against humanity, although little reference was made in the
judgment to the crime’s World War I ancestry. The crime was defined as “murder,
extermination, enslavement, deportation, and other inhumane acts committed against any civilian
population, before or during the war; or persecutions on political, racial or religious grounds in
execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or
Twenty-four Nazi leaders were indicted before the IMT, which was composed of judges
from the four Allies. One defendant was too ill to go to trial (Krupp); * one committed suicide
(Ley); and one was tried and convicted to death in absentia (Bormann). The Tribunal tried the
other 21 defendants.21 Three of those were acquitted (Schacht, von Papen, and Fritzsche); seven
were sentenced to prison terms ranging from ten years to life (Hess, Funk, Doenitz, Raeder, von
Schirach, Speer, and von Neurath). The other 11 were sentenced to death (Goering, von
*
IMT prosecutors attempted to substitute his son Alfried (who ran his family’s armaments company during the war)
as a defendant, but the judges ruled the substitution came too close to trial. Alfried was later tried in subsequent
proceedings for his use of slave labor. As a result of U.S. intervention during the Cold War, Krupp was eventually
released from prison and his property was restored to him.
Rivventrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Saukel, Jodl, and Seyss-
Inquart). These defendants were all hanged except Goering, who committed suicide hours before
he was scheduled to be executed. It has been suggested that he accomplished this with the help of
a young American guard who, perhaps unwittingly, smuggled a cyanide pill into Goering’s cell.
At the time of Japan’s surrender, the Japanese Cabinet launched war crimes trials of
Japanese defendants, perhaps thinking that the principle of double jeopardy would prevent
subsequent trials by the Allies. Eight accused were tried according to this plan, but all were
subsequently retried by the Tokyo Tribunal. The defendants at Tokyo were four former premiers
(Hiranuma, Hirota, Koiso, and Tojo), three former foreign ministers (Matsuoka, Shigemitsu, and
Togo), four former war ministers (Araki, Hata, Itagaki, and Minami), two former navy ministers
(Nagano and Shimada), six former generals (Doihara, Kimura, Matsui, Muto, Sato, and Umezu),
two former ambassadors (Oshima and Shiratori), three former economic and financial leaders
(Hoshino, Kaya, and Suzuki), one imperial adviser (Kido), one theorist (Okawa), one admiral
The United States, through General MacArthur, exercised far more control and influence
over the Tokyo trials than at Nuremberg. Whereas the prosecutions at Nuremberg were led by a
multinational team that shared relatively equal power and responsibility, the Tokyo prosecution
was led by a single Chief of Counsel from the United States chosen by MacArthur with
Associate Counsel from the Allies. The Tribunal itself was composed of judges from newly
independent states in addition to representatives of the Allies. All of the decisions of the Tokyo
Tribunal were subject to review by MacArthur, although he never exercised this power; there
was no provision for review of any of the Nuremberg decisions. In addition, each of the accused
at Tokyo had an American defense counsel in addition to one or more Japanese defense counsel.
The majority opinion, authored by Judge Webb of Australia, resulted in the sentencing of seven
defendants to death by hanging, 16 to life imprisonment, one to 20 years imprisonment, and one
to seven years imprisonment.22 Interestingly, Emperor Hirohito was not indicted or called as a
witness by the Tokyo Tribunal, notwithstanding that he was viewed by many as the architect of
Japanese imperialism. There is speculation that members of the U.S. government thought the
occupation would proceed more smoothly with the emperor in place, albeit with a renunciation
of any claims to divinity. By the 1950s, most of the Tokyo defendants sentenced to terms of
imprisonment had been paroled. Two defendants returned to high government positions in Japan.
Notwithstanding the importance of the work of the Nuremberg and Tokyo Tribunals, the
vast majority of post–World War II prosecutions did not occur before these two international
tribunals, but were conducted by the victorious powers in their respective zones of occupation.
For example, Allied Control Council Law No. 10, which largely mirrored the terms of the
Nuremberg Charter, authorized trials in Germany. The United States hosted 12 key trials, each
with a theme and appropriate nickname. The Hostages Trial, for example, involved allegations
against German generals leading troops during the Balkans Campaign who were charged with
civilian hostage-taking and murder. The RuSHA Trial targeted 14 officials of various SS
organizations responsible for the implementation of the Nazi “pure race” program through racial
cleansing and resettlement. Defendants included principals from the Rasse- und
Siedlungshauptamt (RuSHA) bureau, the office of the Reich Commissioner for the Strengthening
of Germanism, the Repatriation Office for Ethnic Germans, and the Lebensborn society. The
Einsatzgruppen Trial involved mobile death squads operating primarily behind the frontline in
Eastern Europe that indiscriminately targeted Jews, partisans, Roma, disabled persons, and
otherwise uncooperative civilians. The Doctors Trial involved medical doctors accused of
engaging in human experimentation, and the Justice Case involved German jurists and lawyers
held responsible for implementing the Nazi “racial purity” program envisioned by the eugenic
laws. The Ministries Trial involved officials of various Reich ministries, who faced charges for
atrocities committed both in Germany and in occupied countries during the war. The High
Command Trial focused on high-ranking generals and former members of the High Command of
Nazi Germany’s military forces charged with having participated in, planning, or facilitating the
Trials proceeded against civilian industrialists as well. For example, the Flick Trial
centered on Friedrich Flick and five other high-ranking directors of Flick’s group of companies
and involved charges of the use of slave labor and plundering. (Flick himself was sentenced to
seven years imprisonment. After serving three years, he was released and went on to rebuild his
industrial empire. His son was later named one of the richest men in Austria.) The IG Farben
Trial concerned the manufacture of Zyklon B, the poison gas used in extermination camps (the
other supplier of the gas was the firm Tesch/Stabenow). IG Farben was also charged with
participating in crimes against the peace, because it had developed processes for synthesizing
gasoline and rubber from coal and thereby contributed to Germany’s ability to wage war without
access to petroleum resources. Twelve former directors of the Krupp Group were accused of
having enabled the armament of the German military forces and for having used slave laborers.
In total, more than 5,000 trials were held of German and Japanese POWs accused of committing
It is difficult to overstate the significance of the post–World War II period to the field of
ICL. Together, these legal proceedings established many core principles of the field, and modern
tribunals continue to cite these proceedings as persuasive authority. We touch here on the most
salient of the tribunals’ contributions. First, the Nuremberg and Tokyo proceedings established
that many violations of IHL that had theretofore given rise only to state responsibility also gave
rise to individual criminal responsibility, even if the relevant treaty was silent as to criminal
penalties. Therefore, when the Nuremberg defendants argued that they could not legally be
prosecuted for certain acts because they were not technically crimes under international law at
the time the acts were committed, the Tribunal responded that “[c]rimes against international law
are committed by men, not by abstract entities, and only by punishing individuals who commit
such crimes can the provisions of international law be enforced.” 23 All of the post–World War II
ICL treaties are premised on this notion of individual criminal responsibility for breaches. In
particular, it is the cornerstone of the enforcement regime contained in the four Geneva
Conventions of 1949, which with 194 parties recently became the first treaties to enjoy universal
ratification. Each state in the world has now agreed to apprehend and prosecute, or extradite for
prosecution, any individual found to have committed a “grave breach” of one of the four
Conventions.
Second, the two tribunals established the primacy of international law over domestic law.
In many cases, the conduct for which the accused had been charged was authorized by domestic
law. Indeed, the tribunals’ Statutes made clear that crimes against humanity in particular were
punishable “whether or not in violation of the domestic law of the country where perpetrated.”
That international law placed limits on the content of domestic law governing purely domestic
affairs was groundbreaking under the prevailing view that international law primarily governed
relations between states. The Nuremberg and Tokyo proceedings mark the first time that the
Nuremberg and Tokyo Charters: crimes against the peace and crimes against humanity. The
Allies’ prosecutorial strategy focused primarily on the crimes against the peace charge, which the
Allies considered the primary justification for punishing individual representatives of the Axis
Powers. Jackson, in his opening statement, spoke of aggressive war—not genocide—as the
“greatest menace of our times.” Indeed, the crimes against humanity allegations appear in parts
of the Nuremberg Judgment as mere afterthoughts. Nonetheless, the crimes against humanity
charge was revolutionary in piercing the veil of sovereignty and establishing once and for all that
international law applied to crimes committed by state actors against their compatriots. The
inclusion of both crimes in the Charter was controversial in light of the principle of legality,
defined in international law through the maxim nullum crimen sine lege, nulla poena sine lege,
which dictates that an individual cannot be prosecuted for conduct that was not criminalized at
the time the individual acted. This was a primary defense of all the defendants, yet it had no
effect on the tribunals. The Nuremberg Tribunal in particular ruled that the defense was
inapplicable in light of the obvious wrongfulness of the acts in question. Where the treaties were
silent as to the criminality of the prohibited acts therein, the Tribunal found precedent for their
prosecution before national tribunals. Accordingly, it argued that the customary international law
prohibition of the acts went beyond the conventional one. As discussed in a fuller chapter on the
nullum crimen defense, these arguments are repeated in modern ICL jurisprudence when judges
are faced with new atrocities that do not fit nicely into the framework of existing crimes.
Fourth, although their legacy remains plagued by charges of “victors’ justice,” the
tribunals established clear precedent for the exercise of international penal jurisdiction as distinct
from domestic jurisdiction. Indeed, in many respects, this precedent gave rise to a distinct
preference for international and multilateral, as opposed to national and unilateral, efforts at
international criminal justice. This preference remains compelling today in light of concerns
about the potential for abuse and politicization inherent in the practice of universal jurisdiction.
Depending on the political will of the international community, international courts can assert a
more robust jurisdiction, freed from the limitations that international law and the principle of
international comity might place on their domestic counterparts. International tribunals are also
able to tap into the existing UN enforcement machinery, such as the Security Council.
Notwithstanding this firm foundation for the exercise of international jurisdiction, the
international community did not significantly build on this precedent until the post–Cold War
period. The mending of entrenched Cold War rivalries created space for the United Nations to
revive the promises of the post–World War II era in the face of civil wars in the former
Yugoslavia and Sierra Leone, crimes against humanity and genocide in Rwanda and Cambodia,
the destruction of East Timor by forces loyal to its former occupier Indonesia, and acts of
obstructionism, could act unanimously without the threat of an automatic veto of one of the
permanent five members. These modern international and hybrid tribunals have the blessing of
the entire United Nations, either as organs of the Security Council (the Yugoslav and Rwandan
tribunals), as the products of treaty negotiations between the state in question and the UN
Secretary General (the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts
of Cambodia, and the Lebanon tribunal), or as a feature of a UN transitional authority (the East
Fifth, the postwar tribunals confirmed that even high-ranking state officials could be held
individually criminally liable for international crimes committed in war. In particular, the IMT
proclaimed that “the very essence of the [Nuremberg] Charter is that individuals have
international duties which transcend the national obligations of obedience imposed by the
individual State.”24 High-ranking state agents thus cannot hide behind state sovereignty when
international jurisdiction is at issue. In so holding, the tribunals rejected common law doctrines
of head of state and sovereign immunity that might have shielded particular defendants from
liability, a result that has been followed by the modern international tribunals in cases involving
the late Yugoslav President Slobodan Milošević and Liberian President Charles Taylor. On the
flip side of head of state immunity, the post–World War II Tribunals also rejected the claim that
individuals implementing superior orders should be exonerated: “That a soldier is ordered to kill
or torture in violation of the international law of war has never been recognized as a defense to
such acts of brutality, though … the order may be urged in mitigation of the punishment.”25
Sixth, the tribunals convicted civilians and military men as well as private actors—
financiers and industrialists—for war crimes and crimes against humanity. State action is not an
element of these crimes, although in many situations of mass violence and repression the state is
the source of or inspiration for the abuses. Together, this collection of rulings became known as
the “Nuremberg principles” and they have shaped the field of ICL ever since.
The post–World War II period heralded a wave of optimism about the power of law and
judicial institutions to restrain state violence and protect the vulnerable. Just as the ink was
drying on the UN Charter and the tribunals’ judgments against the major World War II
defendants, the Cold War set in, paralyzing efforts to put permanent ICL institutions in place. As
a result, for many years, the development of ICL was largely relegated to obscure UN drafting
committees, a smattering of domestic proceedings in transitional societies, and the writings of a
This stagnation did not set in immediately, however. Continuing the typical reactivity of
international law, the close of World War II brought about a flurry of constructive endeavors.
The international community constructed the United Nations from the ashes of the League of
Nations. The lynchpin of its Charter is Article 2(4), which codified a default rule against the use
of force subject to two express exceptions—actions undertaken with Security Council approval
(Article 42) and measures taken in self defense (Article 51). It remains an open question whether
the historic doctrine of humanitarian intervention survived the passage of the Charter. The
Charter forbids the use of force undertaken “against the territorial integrity or political
independence of any state.” The legality of the use of force to stop atrocities or to otherwise
assist people in need is thus an open question, especially in light of the proliferation of human
rights treaties.
The immediate postwar era also witnessed the promulgation of the 1948 Genocide
Convention26 and four new Geneva Conventions in 1949 protecting various classes of people in
times of war—the wounded, the shipwrecked, POWs, and civilians. 27 These treaties confirmed
the new expectation of individual criminal responsibility for international law breaches. The
Geneva Conventions, in particular, codified the war crimes recognized at Nuremberg and Tokyo
and others—officially deeming them “grave breaches.” The treaties also made such breaches
subject to universal criminal jurisdiction, distinguishing them from those breaches that give rise
only to state (civil) responsibility. These treaties were followed by other multilateral treaties
terrorism, war crimes in noninternational armed conflicts, and the international sale and
distribution of narcotics. Many of these subsequent treaties contain boilerplate language obliging
signatories to either prosecute offenders or extradite them elsewhere for prosecution, regardless
of the place of the act’s commission or the nationality of the perpetrator or victim (the aut dedere
aut judicare compulsion). This drafting process remains seemingly without end, as international
law struggles to keep pace with increasingly destructive and cruel methods of warfare and
repression. One of the more recent additions to this pantheon is the 2005 Convention on
Disappearances.28
In addition to this norm proliferation, members of the international community also tried
to build a permanent judicial institution, untainted by the stain of victors’ justice, to prosecute
international crimes. It was assumed that this work would proceed in parallel with the drafting of
substantive law. Indeed, the drafters of the Genocide Convention contemplated the establishment
of a permanent international criminal court at Article VI, which provides that individuals charged
with committing genocide shall be tried “by a competent tribunal of the State in the territory of
which the act was committed, or by such international penal tribunal as may have jurisdiction.”
Thus, in 1947, the General Assembly requested the International Law Commission (ILC) * to
study “the desirability and possibility of establishing an international judicial organ for the trial
of persons charged with genocide or other crimes.” The ILC was also asked to codify the
Nuremberg and Tokyo principles in a Draft Code of Offenses Against the Peace and Security of
Mankind that would provide the subject matter jurisdiction of the proposed tribunal.
On other fronts, the international community began the process of building a regime of
international human rights that in many respects is the progeny of the crimes against humanity
charge at Nuremberg. The groundbreaking Universal Declaration of Human Rights was followed
*
The General Assembly established the ILC that year to promote the progressive development and codification of
(primarily) public international law. The ILC is composed of legal experts and played a key role in creating a draft
code of international crimes and a draft statute for a permanent international criminal court that served as the starting
point for creating the modern ICC.
by twin Covenants in 1966 that—reflecting the ideological schisms of the day—protect civil and
political rights on one side29 and economic, social, and cultural rights on the other. 30 Subsequent
specialized treaties seek to protect and guarantee equal treatment for racial and ethnic groups,
women, children, indigenous people, and the disabled. Over time, states increasingly consented
to more robust enforcement regimes in these treaties, granting expert committees the powers to
receive reports, monitor human rights practices, accept individual complaints and petitions,
recommend reforms and reparations, conduct site visits, and so on. This proliferation of partially
With the advent of the Cold War, however, work on many of these fronts slowed or
stalled. In particular, the project to create a permanent international criminal court hit an
impasse, in part because delegates could not agree on a definition of the crime of aggression
against the backdrop of United States and Soviet “proxy wars” throughout the developing world.
As a result, prior to the establishment in the mid-1990s of the ad hoc criminal tribunals, ICL was
Notwithstanding the lack of international prosecutions, there was some domestic activity
in the form of paradigmatic cases. The most high profile of these is probably the trial of Adolf
Eichmann, whose job under the Third Reich was to manage mass deportations from Eastern
Europe to brutal ghettos and extermination camps. Following Germany’s surrender after World
War II, U.S. troops detained Eichmann briefly in an internment camp, although he escaped
because he was not recognized. On a false Red Cross passport obtained through the Nazi
underground, Eichmann traveled to Argentina where he lived under an assumed name until 1960.
That year, Israeli Mossad agents abducted him, causing a major diplomatic rift between Israel
and Argentina that went before the UN Security Council. The Council condemned the
kidnapping, and ordered Israel to make “appropriate restitution.” In Israel, Eichmann was
charged with crimes against humanity, war crimes, and “crimes against the Jewish people” under
the 1950 Nazi and Nazi Collaborators (Punishment) Law. His primary defense was jurisdictional,
arguing that the Israeli courts could not prosecute him under ex post facto legislation for acts that
he allegedly committed before the State of Israel existed. The Israeli court ruled that it had both
universal and passive personality jurisdiction over him.31 Eichmann did not contest the factual
charges against him, but claimed he was just following orders. He was convicted and hanged in
1962.
In 1987, France prosecuted Klaus Barbie—the former head of the Gestapo in Lyon,
dubbed the “Butcher of Lyon”—for crimes against humanity committed in connection with his
involvement in the deportation of French Jews and partisans during World War II. 32 He had
already been prosecuted in absentia for war crimes, but these verdicts lapsed while he was in
exile in Bolivia. The crimes against humanity case went forward on the basis of a ruling that the
crime carried no statute of limitation. During this trial, he was represented by Jacques Verges,
who has subsequently made a name for himself (“the Devil’s Advocate”) representing high-
profile accused war criminals and Holocaust deniers. Verges—an avid anticolonialist—invoked
a modified tu quoque (“you also”) defense by analogizing Barbie’s actions to those of France in
Algeria during that country’s quest for independence. Barbie ultimately died in prison after
under the Alien Tort Statute and related statutes. For example, civil plaintiffs have obtained
personal jurisdiction over defendants hailing from the former Yugoslavia, Rwanda, East Timor,
the states of the Southern Cone and Central America, the Philippines, and elsewhere. In addition,
corporations can also be sued for violating these norms in places where they do business.
Although serving important purposes, these tort cases—which occasionally proceed in default—
often seem to be a poor substitute for more robust criminal processes and penalties that better
In the late 1980s, a consortium of Latin American and Caribbean states reinvigorated the
mechanism to combat the transnational illicit drug trade. With prompting from the General
Assembly, the ILC again turned its attention to drafting a statute for a permanent international
criminal court. The ILC completed a draft statute in 1994 that formed the basis for intensified
In the meantime, it appeared that genocide had returned to Europe in the form of
deportations, concentration camps, “ethnic cleansing,” and mass killings of Bosnian Muslim
civilians during the war on the territory of the former Yugoslavia. (To be fair, violations were
committed by all three of the immediate parties to the conflict—Bosnian Muslims, Croats, and
Serbs—as well as by the former Yugoslavia and recently independent Croatia, which had
territorial designs in Bosnia). In the midst of the war, the UN Security Council addressed the
conflict in seriatim resolutions. In Resolution 780 adopted on October 6, 1992, the Security
Council directed the Secretary General, at the time the Egyptian diplomat Boutros Boutros-
investigation was ongoing, governments (prominently the United States), and intergovernmental
and nongovernmental organizations called for the creation of an ad hoc international tribunal in
the Nuremberg tradition to assign individual responsibility for the documented abuses. The
interim report of the Commission of Experts echoed these recommendations. In Resolution 808
adopted February 22, 1993, the Security Council unanimously decided “that an international
tribunal shall be established for the prosecution of persons responsible for serious violations of
international humanitarian law committed in the territory of the former Yugoslavia since 1991.”
It directed the Secretary General to prepare specific proposals for such a tribunal. In his
subsequent report, Boutros-Ghali presented a tribunal blueprint and appended a draft statute
setting forth existing international humanitarian and criminal law. Invoking its Chapter VII
powers, the Security Council unanimously adopted the draft statute in Resolution 827 on May
25, 1993. The International Criminal Tribunal for Yugoslavia (ICTY) was thus established.
The next year, Rwanda became engulfed in a genocide of colossal proportions. All told,
upward of 800,000 Tutsi and moderate Hutu individuals perished within the span of a mere four
months—a rate of killing that far exceeded the Nazi Holocaust. Having convened a tribunal for
the former Yugoslavia, the Security Council could not readily ignore almost a million dead in
Rwanda, especially given that the international community had largely stood silent and immobile
as the death toll mounted. The Security Council through Resolution 955 thus established the
International Criminal Tribunal for Rwanda (ICTR), finding that widespread violations of
international law largely within the confines of a single state, although with regional
ramifications, constituted a threat to international peace and security within the meaning of
Chapter VII of the UN Charter. As first constructed by the Security Council, the ad hoc tribunals
shared an Appeals Chamber and a Chief Prosecutor. South African jurist Richard Goldstone
originally held the latter post. Canadian jurist Louise Arbour, who was later chosen to be the UN
High Commissioner for Human Rights, next occupied the position. The Security Council then
appointed Swiss Prosecutor Carla Del Ponte. From the Tribunals’ beginning, observers
expressed concern that the Rwandan prosecutions were not getting the Chief Prosecutor’s full
attention. As the Security Council began to contemplate the completion of the Tribunals’
missions, it split the Office of the Prosecutor into two positions over the objections of Del Ponte.
The chief Prosecutor of the ICTR is now Hassan Bubacar Jallow, a former Solicitor General,
Attorney General, Minister of Justice, and Supreme Court Justice of Gambia. In 2007, Del Ponte
retired and was replaced by Belgian jurist Serge Brammertz, who was also the chief UN
investigator into the death of former Lebanese Prime Minister Rafik Hariri. Later, additional ad
hoc tribunals were established by efforts from outside the Security Council to respond to massive
The relative success and startup costs of the two ad hoc tribunals served as further
inspiration for the drafting of a standing international criminal court. After convening six
separate sessions, the Preparatory Committee produced a consolidated draft Statute that served as
Establishment of an International Criminal Court held from June 15 to July 17, 1998 in Rome,
Italy. A final statute—called the Rome Statute of the International Criminal Court (ICC Statute
or Rome Statute)—was completed and adopted at the Diplomatic Conference, which was
attended by delegations from 120 states, multiple observers and intergovernmental organizations,
and hundreds of nongovernmental organizations. Only seven states voted against the statute: the
United States, China, Israel, Qatar, Libya, Iraq, and Yemen. The ICC entered into force in 2002
The ICC has jurisdiction over war crimes, crimes against humanity, and genocide as
defined by its Statute. Although the crimes against the peace charge was the lynchpin of the
Nuremberg Indictment and Trial, the crime of aggression has eluded modern definition. Drafters
of the ICC Statute were unable to come up with a consensus definition of aggression in time for
the treaty to be opened for signature, so they punted. Article 5(2) promises that “[t]he Court shall
exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime
and setting out the conditions under which the Court shall exercise jurisdiction with respect to
this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the
United Nations.” A Working Group continues to seek resolution on issues such as (1) the proper
role of the Security Council, the General Assembly, and the International Court of Justice in
adjudications of the crime of aggression; and (2) whether the definition should make reference to
specific acts that constitute aggression, or be left open for future interpretation by the Court. As
of this writing, a Review Conference is to be held by the ICC in 2009-2010 to consider adopting
a definition of aggression.
Events from 1994 onward attest that the Nuremberg and Tokyo Tribunals are not mere
historical footnotes. Indeed, the modern era promises more than a revival of the Nuremberg
legacy. In fact, the international community has built on the promises of that era in significant
ways. Key events are the 1998 establishment of a permanent International Criminal Court in The
Hague; the 1998 arrest of General Augusto Pinochet of Chile in the United Kingdom in response
to an arrest warrant from Spain for him to stand trial for torture, genocide, and other international
crimes over which Spain asserts universal jurisdiction; and the 1999 indictment of President
Slobodan Milošević, the first against a sitting head of state. Progress toward a more
comprehensive system of international justice has not been linear or continuous. Rather, it has
featured a number of oversteps and backslides that include the failure of international troops and
domestic officials to arrest key indicted war criminals from the Yugoslav war; the in absentia
indictment in Belgium of high-level political figures from powerful states, which resulted in an
international backlash and a contrite amendment of Belgium’s universal jurisdiction law; the
failure of the East Timor Special Panels to gain jurisdiction over any defendants of real
execution of Saddam Hussein after a controversial trial and while important charges remained
pending against him; and all the delays, wasted resources, and corrupt functionaries that seem to
plague international bureaucracies, no matter how noble their mandate. Most important, perhaps,
the tragic events of September 11, 2001, led to the creation of “legal black holes” at Guantánamo
and elsewhere where pure power for a time had all but eclipsed law. Yet, the field’s movement is
inexorably forward, and international criminal law and justice are undoubtedly here to stay.
NOTES
1. See Meir Dan-Cohn, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L.
Rev. 625 (1984).
2. 2 St. Thomas Aquinas, Question 40 of War, in Summa Theologica 1359-1360 (Fathers of the English Dominican
Province trans., Benzinger Brothers, Inc. 1947).
3. 18 U.S. 153, 163 n.8 (1820) (citing Blackstone).
4. United States v. Darnaud, 3 Wallace 143 (3rd Cir. 1855).
5. Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 82.
6. U.N. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, reprinted in 21 I.L.M. 1261 (entered
into force Nov. 16, 1994).
7. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 205 Consol. T.S. 2.
8. See The Law of Armed Conflicts 21 (Dietrich Schindler & Jiri Toman eds., 2004).
9. May 7, 1865 letter from Capt. Hy Wirz to Maj. Gen. J. H. Wilson. This letter, the indictment, and judgment
against Wirz are available in U.S. Army, 8 The War of the Rebellion: A Compilation of the Official Records of
the Union and Confederate Armies, available at http://cdl.library.cornell.edu/cgi-bin/moa/sgml/moa-idx?
notisid=ANU4519-0121.
10. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, reprinted at 14
AJIL 95, 113 (1920).
11. Id. at 118.
12. Id. at 120.
13. Treaty of Versailles, June 28, 1919, reprinted in 13 Am. J. Int’l L. 151 (Supp. 1920).
14. Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of
War, 59 Vand. L. Rev. 1, 2 (2006).
19. General Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343,
94 L.N.T.S. 57.
20. Declaration of the Four Nations on General Security (“Moscow Declaration”), signed at Moscow, October 30,
1943, 9 U.S. Dep’t of State Bulletin 308 (1943) (entered into force 30 October 1943). The Moscow Conference,
October 19-30, 1943 (Declaration of German Atrocities), 1 November 1943, 1943 For. Rel. (I) 749 at 768.
Reprinted in 38 Am. J. Int’l L. 3, 7 (1944) (Supp).
21. The full IMT judgment is available at: Judicial Decisions Involving Questions of International Law—
International Military Tribunal (Nuremburg), Judgment and Sentences, 41 Am. J. Int’l L. 172 (1947)
[hereinafter Judgment].
22. United States v. Araki, 101 The Tokyo Major War Crimes Trial (R. John Pritchard, ed. 1998).
23. Judgment, 41 Am. J. Int’l L. at 221.
24. Id.
25. Id.
26. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277
(entered into force Jan. 12, 1951).
27. The Geneva Conventions and their drafting history are available on the Web site of the International Committee
of the Red Cross at http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions.
28. International Convention for the Protection of All Persons From Enforced Disappearance, E/CN.4/2005
/WG.22/WP.1/REV.4 (Sept. 23, 2005).
29. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
30. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
31. Attorney General of Israel v. Eichmann, reprinted in 36 I.L.R. 5 (Jm. 1961), aff’d, 36 I.L.R. 277 (S. Ct. 1962).
32. Federation Nationale des Deportes et Internes Resistants et Patriotes v. Barbie, reprinted in 78 I.L.R. 125
(Court of Cassation 1985), aff’d 100 I.L.R. 331 (Court of Cassation 1988).