Pramod Nandlal Sharma

POL340Y5- Introduction to International Law

A History of International Criminal Law, from Nuremberg to the International Criminal Court

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Mankind has constantly sought absolute justice, whether viewing it from a naturalist or positivist

perspective. However, the pursuit for justice is still a fleeting dream in today’s world, and none more so

than in the international realm. Ironically, one of the main drawbacks of international law is also one of

its strengths, that being dynamism. International law may have been conceived as an academic and legal

notion since Vitoria1, but stringent laws and procedures establishing stare decisis haven’t yet been

enforced. The international community still prevails in a state of anarchy, giving domestic courts the

right to preside over international cases for the sake of precedence and assured enforceability.

Furthermore, superpowers or hegemonic states are able to exert their influence on such court

proceedings. This makes international law a relatively abstract concept when compared with domestic

law, even though constant revisions and additions are devised throughout its history. The argument

inferred in the essay is that given the current setup of the ICC and its dealings, has international criminal

law drastically changed since the Nuremberg Military Tribunals? If changes were undertaken, have they

been for the better? With the factual evidence provided below, I affirm that in the realm of international

criminal law, we have witnessed negative progress since the end of the cold war. However, the

shortcomings may soon be rectified with the formation of the International Criminal Court in 2002. The

justification for my argument will be outlined through a brief summary of the evolution of international

criminal law to its present state, illustrating key cases and elements from the Nuremberg trials, the

tribunals for Yugoslavia and Rwanda, and ultimately with the formation of the International Criminal

Court (ICC).

International jurisprudence consists of between disputes among states pertaining to tort law and

international criminal law. Historically, cases of international disputes in lieu of tort law have been
1
Gerhard Von Glahn and James Larry Taulbee, Law Among Nations: An Introduction to Public International
Law, 9th Edition, New York:Longman Press, 2010, p.25

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intricately documented in the study of international jurisprudence. These cases largely dealt with

maritime accidents, conducted under the jurisdiction of the Permanent Court of International Justice

(PCIJ) and its successor the International Court of Justice (ICJ).Neither of these courts had attempted to

preside over cases pertaining to criminal law. Arguably the most case of international criminal law,

which has set precedence for future similar cases for the modern era, is a series of trials conducted after

the Second World War known as the Nuremberg Military Tribunals 2. The trials were conducted from

1946 to 1949 in the eponymous German city. Only American judges and prosecutors were involved in

the Nuremberg Military Tribunals 3. The trials were conducted to convict and prosecute the accused war

criminals with indictments of acts of aggression, crimes against peace, war crimes and crimes against

humanity4. The Nuremberg Military Tribunals (NMT) gives a more vivid account of international criminal

law than its more infamous counterpart, the International Military Tribunals (IMT), yet ironically, the

academic studies published for NMT are few and far between although these tribunals are of a greater

juridical importance5. While trials were carried out with the proper legal proceedings, the inherent flaws

with the NMT need to be noted- the legitimacy of the tribunal appointees along with the international

nature of the tribunal and the true fate of the accused subjects after the trial. Taking the above

indictments as well as the peremptory norms of jus cogens 6 (assumed universal justice for territorial

2
Kevin Jon Heller, Introduction, The Nuremberg Military Tribunals and the Evolution of International
Criminal Law, September 2011, DOI: 10.1093/acprof:oso/9780199554317.001.0001

3. University of West England, http://www.ess.uwe.ac.uk/genocide/cntrl10_trials.htm#Overview

4. Kevin Jon Heller, The Nuremberg Military Tribunals and the Evolution of International Criminal Law,
September 2011, DOI: 10.1093/acprof:oso/9780199554317.001.0001
5. Kevin Jon Heller, Introduction, The Nuremberg Military Tribunals and the Evolution of International
Criminal Law, September 2011, DOI: 10.1093/acprof:oso/9780199554317.001.0001
6. Gerhard Vohn Glahn and James Larry Taulbee, Law Among Nations: An Introduction to Public
International Law, 9th Edition, New York: Longman Press, 2010, pp.53-54

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aggression, slavery, torture, genocide and piracy) into consideration, emphasis shall be placed on four

cases of the Tribunal- the Medical Case, the Milch Case, the Justice Case and the RuSha Case.

The defendants in the Medical Case were accused of multiple counts of war crimes, crimes against

humanity and criminal membership. The subjects were involved in acts consisting of, but not limited to,

freezing, malaria and sea water experiments at Dachau, spotted fever, poison and incendiary

experiments at Buchenwald and sterilization experiments at Auschwitz and Ravensbrueck. The Milch

Case involved the trial of Field Marshall Milch being accused of assisting the Nazis in their slave labour

program in one of the indictment counts against him. The Justice Case was concerned with indictment

on multiple counts of aggression on occupied territories, such as mistrials against alleged resistance

members and discriminatory law practices against German Jews, all constituted under the Nazi “Night

and Fog “program. Lastly, The RuSha case tried the subjects on three counts of genocide, war crimes and

criminal membership with the SS. Thus, all factors of the pre-emptory norms have been covered in these

four cases of the NMT. The tribunal carried forth varied sentences against the subjects across all four

cases ranging from death sentences, life sentence and 10-20 years of imprisonment. The female subjects

were generally either acquitted or given minimal sentence in prison 7.

A significant aspect of the NMT is that its processes and procedure strive to place criminal law first and

international law second. Historically, international criminal law hasn’t been addressed in such a

meticulous and methodical manner as in the Nuremberg Tribunal, thereby setting precedence and

establishing a legacy for future international criminal trials to come. Statements and verdicts meted out

are still quoted by lawyers and judges alike to this day in international courts and tribunals. However,

certain controversies have arisen for the NMT. Firstly, the legitimacy of the appointed individuals to

head the tribunals is questioned. The founders were mainly American with British and French

7
Kevin Jon Heller, The Trials, The Nuremberg Military Tribunals and the Evolution of International Criminal
Law, September 2011, DOI: 10.1093/acprof:oso/9780199554317.001.0001

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counterparts while the Soviet Union was not given much authority in the proceedings. It should also be

noted that the Soviet Union was reluctant to set up a judicial procedure for trying the accused,

preferring a direct execution approach without a trial instead 8. Furthermore, the Germans had virtually

no say in the Tribunal’s setup or direction. Potential accusations and countersuits by German individuals

were disregarded, making the NMT largely selective in nature 9. Consequently, these concerns posit

whether the NMT is an international tribunal or not. In addition, a significant number of convicted

subjects were given a far lesser sentence than that initially meted out to them and some were freed

even a few years after the trial.

The aforementioned inconsistencies assume the NMT to simply be an American Tribunal with minimal

collaboration amongst certain European powers addressing international issues. However, the factual

evidence and certain logical reasoning weigh the assumption to the contrary. Apart from the Tribunal

appointees, other European nations were ill-equipped to assist due to a devastating impact on their

economy after the Second World War. Furthermore, a large part of Asia and Africa were still European

colonies, thereby qualifying them as an extension of their respective European colonies. The selective

nature of the trials can be attributed to the realist adage that history is written by the victors, and the

Allies had an implied right from victory to forbid the Germans from filing cases for this particular

tribunal. To this extent, it is implied that the Allies had the right to wage war in retaliation to the Nazi

aggression through an implied rule in the international community 10.Similarly, the lack of commitment

to sentencing with a select few of the convicted Germans was the result of an increasing tension

amongst the Western states and the Soviet Union that led to the 50 year Cold War 11. The NMT may be

8
Prof. Auriel Braun, International Law Lecture at the University of Toronto, March 5 th 2012
9. Prof. Auriel Braun, International Law Lecture at the University of Toronto, March 5 th 2012
10. Gerhard Vohn Glahn and James Larry Taulbee, Law Among Nations: An Introduction to Public
International Law, 9th Edition, New York: Longman Press, 2010, pp.44-64
9

10

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Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.143-144

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riddled with flaws, but it was a step in the right direction. Furthermore, its significance of “nurturing

international criminal law into adolescence”12 is an irrefutable fact. Therefore, the legitimacy and

credibility of the NMT trials are not undermined.

This landmark achievement in international criminal law was soon followed by a near stagnant progress

during the cold war era as the bipolar world order was mainly engaged in the arms race, the space race,

gathering allies and averting the ever looming threat of nuclear war. Any attempt at conducting a

judicial criminal procedure at the international level would result in an immediate veto by either of the

two superpowers13. As the middle ages manifested itself as a stagnant gap in scientific progress between

the classical civilizations and the age of enlightenment, in the same way was the cold war conducive to

stagnation in the international criminal jurisprudence. With the end of the cold war, the international

community could now breathe a sigh of relief. However, this reverie would prove to be short lived with

the advent of ethnic tensions in the former Federal Socialist Republic of Yugoslavia.

Following General Tito’s demise and Milosevic’s subsequent rise to power circa 1987, tensions slowly

began to stir the placated former Yugoslavian populace 14. Hostilities among the segregated Bosnians,

Serbs, Croats and Slovenes along ethnic and religious lines eventually took a turn for the worse

beginning with the Yugoslav-Slovene war in June 1991 15. This set a domino effect of a series of ethnic

12. Kevin Jon Heller, Conclusion, The Nuremberg Military Tribunals and the Evolution of International Criminal
Law, September 2011, DOI: 10.1093/acprof:oso/9780199554317.001.0001
13. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.143-144
14. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.145-147

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15
Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.145-147

16. ICTY website, http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf, pdf file

17. ICTY website, http://www.icty.org/action/cases/4

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wars in the former Yugoslav region. During these wars, it was the widespread media coverage of the

atrocities committed in detention camps not unlike the notoriously infamous ones in Nazi Germany.

Torture, murder and rape of genocidal nature were commonplace and made necessary in these

detention camps. The lack of inaction from the international community infuriated the global populace.

The UN Security Council (UNSC) and the European Commission (EC) were vehemently criticized for their

incompetence and inaction. It was in this tense atmosphere that the UNSC issued Resolution 827,

stating “to establish an international tribunal for the sole purpose of prosecuting persons responsible for

serious violations of international humanitarian law committed in the territory of former Yugoslavia

between 1 January 1991 and a date to be determined by the Security Council upon the restoration of

peace and to this end to adopt the stature of the International Tribunal annexed to the report of the

Secretary-General” 16. Thus, the International Criminal Tribunal for the former Yugoslavia (ICTY) was

formed.

Unlike the Nuremberg Tribunal, the judges and prosecutors admitted to the ICTY were experts in their

field from the four corners of the world. This stands as a testament to the decline of the Eurocentric

nature of international law since the Second World War. Another important development was the arrest

and indictment of four heads of state involved in the conflicts. The four heads of state arrested were

Slobodan Milosevic (former President of Serbia and Yugoslavia), Milan Babic (former President of

Republika Srpska Krajina), Ramush Haradinaj (former Prime Minister of Kosovo) and Radovan Karadzic

(former President of Republika Srpska) 17. The subjects were held in a special detention facility created

solely for them, the first of its kind in an international tribunal 18. They were indicted similarly on multiple

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18
ICTY website, http://www.icty.org/sid/288
19. ICTY website, http://www.icty.org/action/cases/4
20. ICTY website, http://www.icty.org/action/cases/4
21. ICTY website, http://www.icty.org/action/cases/4
22. ICTY website, http://www.icty.org/action/cases/4

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counts of crimes against humanity and war crimes in the context of violating the customs jus in Bello 19.

Milosevic and Babic had died before their trials could continue and a verdict could be settled upon 20. On

the other hand, the trials of Haradinaj and Karadzic are still in progress amidst relentless protests from

the indicted21.

Although a 161 other subjects were indicted for their crimes by the ICTY and are serving their due

sentences22, the ambiguous nature of the trials and indictments of the heads of state involved, who

were the key players and puppet masters of the whole affair, severely undermined the credibility of the

ICTY and the UN. Furthermore, the US, occupied with the first Gulf War, failed to meet up to the

expectations of the international community as a supposed champion of international law and justice. It

can be argued that the UN was merely untrained and out of shape during the stalemate operations of

the cold war, however the utter disregard of the situation until its explosive escalation renders such an

excuse moot. Additionally, the combined forces of the UNPROFOR and the EC’s security forces failed to

produce any considerable results and were successful mainly in keeping the militants confined to a

specific region23. Politics also impeded the swift and efficient commencement of procedures, as

Milosevic had constantly refused to recognize the authority and jurisdiction of the ICTY. Under

sovereignty claims, Milosevic insisted that the conflicts were an internal affair to be dealt with by the

23. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.145-158

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denizens of the former Yugoslavian state 24. Fortunately, the atrocities committed in the state were too

grave to be overlooked and intervention was declared vis-a-vis branding Yugoslavia as a failed state 25.

Although credit can be given to the ICTY for being the first ad-hoc tribunal, taking the initiative to set up

detention facilities for the accused and reviving the relevance of international criminal law since

Nuremberg, its overall failure stems from its affiliation with the UN. Regardless of the relative failure

with Yugoslavia, another sister ad-hoc tribunal was soon created to bring to justice the atrocities

committed in Rwanda towards the Tutsi ethnicity. The International Criminal Tribunal for Rwanda (ICTR)

was set up by the UN in November 1994 under Resolution 955 26. Given that the articles of ICTR covered

similar grounds as those of the ICTY and focused on war crimes, crimes against humanity and genocide,

emphasis shall be given on ICTR’s contribution to classifying rape as a form of genocide. It was in the

case of Jean Paul Akayesu that this precedent was established.

Akayesu was the mayor of the Rwandan city of Taba. Not only was he personally involved in active rape

and murder, but allowed and encouraged its widespread use. Thus, for the sexual abuse of women,

along with slaying members of the Tutsi tribe, he was indicted on multiple counts of genocide, murder,

torture, rape and crimes against humanity 27. Consequently, the former mayor was sentenced to life

imprisonment in Mali28. The coalition of women’s rights remarked upon the significance of this event,

24
Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.161-162

25. International Committee of the Red Cross website,

http://www.icrc.org/eng/resources/documents/misc/57jq6u.htm
26. ICTR website, http://www.unictr.org/Portals/0/English/Legal/Resolutions/English/955e.pdf pdf file
27. University of Minnesota Human Rights Library website,
http://www1.umn.edu/humanrts/instree/ICTR/AKAYESU_ICTR-96-4/Sentence_ICTR-96-4-T.html
28. United States Holocaust Memorial Museum website, http://www.ushmm.org/wlc/en/article.php?
ModuleId=10007157

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stating that “it is the first time an international court has punished sexual violence in a civil war and the

first time rape has been found to be used as an act of genocide, as well as an act of torture” 29.

On a similar note, the ICTR marked the first time in a tribunal that a head of state was arrested on

accusations of war crimes, crimes against humanity and genocide 30. In this case, it was the arrest of the

Rwandan Prime Minister Jean Kambada and his subsequent life sentence imprisonment in 2000. This

precedence set by the ICTR defies sovereign immunity for heads of state on extenuating circumstances.

Thus, both the ad hoc courts worked in tandem with each other, where the ICTR was formed with the

lessons learned from the ICTY, and precedents or judgments meted out in either ad hoc tribunal is used

by the other.

Similar problems plagued the ICTR as what the ICTY had suffered, chiefly among them being the

strenuous amount of time taken to proceed with the trials. However, it is important to separate the

flaws of the ICTR with those of the UN and the Security Council in particular. Concerning the UN, it was

the same apathetic approach towards Yugoslavia that it adopted with Rwanda that garnered widespread

criticism and media backlash. Upon its formation, some of the chief shortcomings facing the Tribunal

were the limited scope on humanitarian law covered in its statue, limited jurisdiction within Rwanda and

the selectivity of prosecutions31. Presently there have been a greater volume of successful trials in

Yugoslavia than Rwanda, yet oddly enough the UN has declared to cease the functioning of the ICTR and

29
International Centre for Human Rights and Democratic Development Website,
http://www.ichrdd.ca/english/commdoc/publications/women/akayesuSentencing.html
30. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.190-191
31. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.192-193

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the ICTY on 2012 and 2016 respectively 32. Therefore, an observation of the above events posits the need

for the setup of a more permanent international tribunal independent from the jurisdiction of a UN.

Such a proposal had initially arisen in the drafting of the Rome Statute in 1998. Four years later, this

statute birthed the International Criminal Court (ICC) in the Netherlands.

The seeds of the ICC were initially sown with the proposition for the International Law Commission (ILC)

by the UN General Assembly in 194833. It is inherently clear that the Nuremberg trials served as the

source of inspiration for such an ambitious endeavour. However as discussed earlier, the inevitable

breakout of the Cold War for the next four decades marred any tangible and significant progress for the

ICC. After decades of revisions, the ILC draft was finally adopted in 1996 under the provisions of the

1994 Draft Statute34. It was under these provisions that the Rome Statute was ultimately signed by a

majority of states in 1998. The Rome Statute was finally a binding treaty on 11 th April 2002, upon

ratification by sixty countries35. The ICC is an independent body and not associated with the UN in its

functioning, thus granting it a greater degree of flexibility and is less averse to political manoeuvres 36.

The International Criminal Court accepts cases referred to by the Security Council, state representatives

or private prosecutors. The former’s case proposals are given less priority and entail fewer benefits than

32
Security Council Report website, http://www.securitycouncilreport.org/site/pp.aspx?
c=glKWLeMTIsG&b=6409563&printmode=1
33. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.204-206
34. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.204-206

35. Amnesty International website, http://www.amnesty.org/en/library/info/IOR40/008/2002

36. ICC website, http://www.icc-cpi.int/NetApp/App/MCMSTemplates/Index.aspx?
NRMODE=Published&NRNODEGUID={D788E44D-E292-46A1-89CC-
D03637A52766}&NRORIGINALURL=/Menus/ICC/About+the+Court/Frequently+asked+Questions/&NRCAC
HEHINT=Guest#id_7

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those of the latter two37. The two crucial principles of the ICC to be discussed are jurisdiction ratione loci

and the complementarity principle 38. Under jurisdiction ratione loci, the ICC is granted a virtually

universal jurisdiction to every state of the world, whether or not the states accept the statutes 39. This is

only undertaken when the case is brought forth by the Security Council 40. The complementarity principle

illustrates the manner in which the ICC may work in tandem with national courts. Priority is first given to

the competent national court to initiate and follow through with the required proceedings. In the event

of the state in question being branded as unwilling to exercise its jurisdictional competence, or when the

state’s legal and administrative bodies are deemed incompetent, the ICC can overrule the priority

granted to the national states41. Therefore, the complementary principle succeeds to establish an

overarching jurisdiction in cases akin to the situations in former Yugoslavia and Rwanda, but potential

abuses of such powers must not be underestimated. This principle is oddly contradicted with several

articles from Part 9 of the Rome Statute, one of them being that while states need to comply for the

arrest warrant and surrender of a person as declared by the ICC, non-state actors are exempt from the

obligation42.

37
Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.211-216
38. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.208-210
39. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.208-210

40. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.208-210
41. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.208-210
42. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.208-210

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Although the ICC has taken arguably positive steps with the principles just mentioned, two peculiarities

need to be addressed- its relationship with the NGOs and America’s severe lack of commitment. Ever

since its inception, the ICC may be dependent on NGOs for local information and lobbying, yet there are

other NGOs who criticize and pressure the ICC on various grounds 43. Reconciling this love-hate

relationship can prove to be a nebulous affair for the ICC, and perhaps an effort best saved for later.

Regarding America, the nation’s Act of State Doctrine enjoyed a temporary resurgence under the Bush

administration, when in 2002 the US declared to “unsign” the Rome Statute previously ratified by

President Clinton43. America’s attempt to opt out of a binding treaty, a treaty whose principles it claims

to stand for, resulted in protests from the international community and Europe in particular. Debates

still arise whether this withdrawal from the Statute bears any actual merit, since the ICC claims

universality on grounds of genocide, aggression, war crimes and crimes against humanity 44.

Furthermore, the US has secured the right to waiver international jurisdiction on its soldiers operating

outside the US soil, through the American Servicemen’s Protection Act and a series of implied threats to

the Security Council45.

The ICC appears to be an improvement over the ad hoc tribunals of Yugoslavia and Rwanda, thereby

marking a decisive improvement in the realm of international criminal law since the Nuremberg trials.

Although the ICC has not reached the same level of efficiency and promptness as the NMT and IMT, its

relatively early inception excuses any criticisms at present. At the same time, care should be taken to

43
Benjamin N.Schiff, Chapter 5, Building the International Criminal Court, New York: Cambridge University
Press, pp.147-163
44. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.211-216
45. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.211-216

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prevent the ICC from being branded as a tribunal biased towards the victor’s justice, a stigma similarly

attached to the Nuremberg tribunals. In this context, care should be taken to prevent potential abuse

from jure rationae loci and the complementary principle, through manipulations by certain states or

institutions. Thus far, the ICC has had a promising start with the first four investigations in Uganda, the

Democratic Republic of Congo, the Central African Republic and a joint situation in Darfur and Sudan.

While the Darfur and Sudan investigation was referred to by the Security Council, the former three

investigations were requested by the governments of the respective states themselves 46. This serves as

an assurance that a considerable proportion of the international realm views the ICC with legitimacy and

credibility.

In conclusion, the evolution of criminal law in the international realm is finally experiencing an upward

progress with the formation of the ICC. The implied universal jurisdiction of the ICC on limited

qualifications can be viewed as a successful synthesis of jus cogens and erga omnes, since genocide is

considered as a qualification of jurisdiction47. The lessons learned from the ICTY and the ICTR, both

largely criticized as sub-par and insufficient, can yet still be applied to the fledgling criminal court. This is

especially true with issues concerning women’s rights, as the ICTR’s precedence set over classifying rape

as a crime against humanity or genocide (depending upon the context of the case) means the ICC has

the potential for furthering the plight of women in oppressive regimes. Furthermore, it can be observed

that the crux of the ad hoc tribunals were genocide, war crimes and crimes against humanity, with

negligible progress made in the areas of aggression and criminal membership. One could argue of the

irrelevance of these topics in today’s world, but that irrelevance couldn’t be further from the truth.

46
Benjamin N.Schiff, Chapter 5, Building the International Criminal Court, New York: Cambridge University
Press, pp.194-243
47. Jackson Nyamuya Maogoto, Chapter 5, War Crimes and Realpolitik: International Justice From World War
I to the 21st Century, London: Lynee Rienner Publishers, 2004, pp.211-216

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Debates on state aggression may be beneficial in ascertaining the current situation of the Middle East

conflict between Israel and Palestine. Criminal membership in the modern world mandates the

separation of individuals from states, and thus being regarded as merely individuals by themselves. Drug

cartels and terrorist networks such as Al Qaeda swear no allegiance to a particular state or ideology, and

in the case of Al Qaeda, terrorist acts in the name of fundamentalism can break out in virtually any state

regardless of its policies and ideologies. Therefore by prosecuting the guilty on grounds of criminal

membership, the identification with the state is removed, thereby relinquishing the subject’s state of

origin from responsibility and jurisdiction and trials are conducted in a manner similar to domestic

courts. Furthermore, I argue it is possible to classify the terrorist attacks by the Al Qaeda as being

genocidal in nature, since these attacks are executed on grounds of differences in religion where

“infidels” in any corner of the world are targeted irrespective of gender, ethnicity or nationality. The

synthesis of Criminal Membership and genocide as allegations to members of the Al Qaeda attaches a

severe brand of judgment to be rendered to such violators.

With the advent of the internet, the communications industry has reached unprecedented heights at a

remarkable growth rate, with no sign of slowing down. A positive manifestation of this technology can

be witnessed in the role it played with the Arab Spring, particularly with Libya and Syria in the realm of

international criminal law. Near instantaneous streaming of videos and access to social media websites

aid in spreading the awareness of gross human rights violations being committed anywhere in the world.

It is in this way that a situation similar to Yugoslavia and Rwanda can be minimalized, and harder

evidence in the form of recorded footage is available during trials. It is important here to note that

intervention by the UN or a collective security entity like NATO should be separated from the

proceedings of the ICC. The failure for prompt intervention in Rwanda and Yugoslavia rests solely on the

shoulders of the international community of states. While the prevention of a crime is far better than

seeking justice for its victims, the International Criminal Court does not control an armed police force. It

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is through the proper and efficient enforcement of justice by the ICC that potential violators would be

made aware of the repercussions that might await them, thus preventing atrocious deeds against

humanity from occurring in the future.

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