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This page intentionally left blank
 AN INTRODUCTION TO THE
INTERNATIONAL CRIMINAL COURT

The International Criminal Court ushers in a new era in the protection of

human rights. The Court will prosecute genocide, crimes against human-
ity and war crimes when national justice systems are either unwilling or
unable to do so themselves. Schabas reviews the history of international
criminal prosecution, the drafting of the Rome Statute of the
International Criminal Court and the principles of its operation, includ-
ing the scope of its jurisdiction and the procedural regime.
This third revised edition considers the initial rulings by the Pre-Trial
Chambers and the Appeals Chamber, and the situations it is prosecuting,
namely, the Democratic Republic of Congo, northern Uganda, Darfur, as
well as those where it had decided not to proceed, such as Iraq. The law of
the Court up to and including its ruling on a confirmation hearing, com-
mitting Thomas Lubanga Dyilo for trial on child soldiers offences, is
covered. It also addresses the difficulties created by US opposition,
analysing the ineffectiveness of measures taken by Washington to obstruct
the Court, and its increasing recognition of the inevitability of the institu-
tion.

w i l l i a m a . s c h a ba s o c is Professor of Human Rights Law at the

National University of Ireland, Galway and Director of the Irish Centre
for Human Rights. His numerous publications include Genocide in
International Law (2000), The Abolition of the Death Penalty in
International Law (third edition, 2002), The UN International Criminal
Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (2006),
International Human Rights Law and Canadian Law: Legal Commitment,
Implementation and the Charter (2007), The Death Penalty as Cruel
Treatment and Torture (1996), Précis du droit international des droits de la
personne (1997) and Les instruments internationaux, canadiens et québécois
des droits et libertés (1998). He is editor-in-chief of Criminal Law Forum,
and a member of the Board of Trustees of the United Nations Voluntary
Fund for Technical Cooperation in the Field of Human Rights.
AN INTRODUCTION TO THE
INTERNATIONAL CRIMINAL
COURT

Third Edition
WILLIAM A. SCHABAS OC
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521881258

© William A Schabas 2001, 2004, 2007

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

ISBN-13 978-0-511-36654-3 eBook (EBL)

ISBN-10 0-511-36654-X eBook (EBL)

ISBN-13 978-0-521-88125-8 hardback

ISBN-10 0-521-88125-0 hardback

ISBN-13 978-0-521-70754-1 paperback

ISBN-10 0-521-70754-4 paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
 CONTENTS

Preface ix
List of abbreviations xiv

1 Creation of the Court 1

The Nuremberg and Tokyo trials 5
The International Law Commission 8
The ad hoc tribunals 11
Drafting of the Rome Statute 15
2 The Court becomes operational 22
United States opposition 24
Developing a prosecution strategy 32
Uganda and the Lord’s Resistance Army 36
Democratic Republic of Congo and the Lubanga case 42
Darfur referred by the Security Council 47
Other situations 51
3 Jurisdiction 58
Temporal (ratione temporis) jurisdiction 65
Personal (ratione personae) jurisdiction 71
Territorial (ratione loci) jurisdiction 75
Acceptance of jurisdiction by a non-party State 78
Subject-matter (ratione materiae) jurisdiction 82
Genocide 91
Crimes against humanity 98
War crimes 112
Aggression 133
Other offences 140
4 Triggering the jurisdiction 141
State Party referral 143
Security Council referral 151
v
vi contents

Proprio motu authority of the Prosecutor 159

Security Council deferral 166
5 Admissibility 171
Complementarity 174
Gravity 186
Ne bis in idem 191
6 General principles of criminal law 194
Sources of law 194
Interpreting the Rome Statute 200
Presumption of innocence 203
Rights of the accused 205
Individual criminal responsibility 210
Responsibility of commanders and other superiors 219
Mens rea or mental element 223
Defences 226
Statutory limitation 233
7 Investigation and pre-trial procedure 235
Initiation of an investigation 239
Investigation 248
Arrest and surrender 257
Appearance before the Court and interim release 269
Confirmation hearing 273
Rulings on jurisdiction and admissibility 278
Preparation for trial 282
8 Trial and appeal 285
Presence at trial 287
Defence and right to counsel 290
Guilty plea procedure 292
Evidence 294
Decision 301
Sentencing procedure 304
Appeal and revision 306
9 Punishment 312
Available penalties 316
Enforcement 320
10 Victims of crimes and their concerns 323
Victim participation in proceedings 328
 contents vii

Protective measures 333

Reparations for victims 337
Institutions for victims 338
11 Structure and administration of the Court 342
Headquarters in The Hague 342
Relationship with the United Nations 344
The Presidency 345
The Chambers 346
Office of the Prosecutor 351
The Registry 356
Coordination Council 357
Advisory Committee on Legal Texts 357
Detention Unit 358
Outreach 359
Defence bar 361
Assembly of States Parties 365
Review Conference 366
Friends of the Court 367
Privileges and immunities 367
Languages 369
Funding 370
Settlement of disputes 371
Reservations 372
Amendment 375
Signature, ratification, approval and accession 377
Authentic texts 378

Appendices
Appendix 1 Rome Statute 381
Appendix 2 States Parties and signatories 465
Appendix 3 Declarations and reservations 470
Appendix 4 Objections 482
Appendix 5 Judges of the Court 487

Bibliography 489
Index 529
 PREFACE

On 17 July 1998, at the headquarters of the Food and Agriculture

Organization of the United Nations in Rome, 120 States voted to adopt
the Rome Statute of the International Criminal Court. Less than four
years later – far sooner than even the most optimistic observers had imag-
ined – the Statute had obtained the requisite sixty ratifications for its
entry into force, which took place on 1 July 2002. By the beginning of
2007, the number of States Parties stood at 104.1 By then, the Court was a
thriving, dynamic, international institution, with an annual budget
approaching €100 million and a staff of nearly 500. One of its Pre-Trial
Chambers had just completed the Court’s first confirmation hearing, at
which charges are confirmed and trial authorised to proceed.
The Rome Statute provides for the creation of an international crimi-
nal court with power to try and punish for the most serious violations of
human rights in cases when national justice systems fail at the task. It
constitutes a benchmark in the progressive development of international
human rights, whose beginning dates back more than fifty years, to the
adoption on 10 December 1948 of the Universal Declaration of Human
Rights by the third session of the United Nations General Assembly.2 The
previous day, on 9 December 1948, the Assembly had adopted a resolu-
tion mandating the International Law Commission to begin work on the
draft statute of an international criminal court,3 in accordance with
Article VI of the Genocide Convention.4

11
A list of States Parties to the Statute appears in Appendix 2 to this volume. More than
thirty States are reported to be making the necessary political, judicial or legislative prepa-
rations for ratification, including Angola, Armenia, Azerbaijan, Bahamas, Bangladesh,
Belarus, Cameroon, Cape Verde, Chile, Côte d’Ivoire, Georgia, Grenada, Haiti, Jamaica,
Japan, Kazakhstan, Madagascar, Monaco, Russian Federation, Saint Lucia, São Tomé and
Príncipe, Seychelles, Thailand, Tuvalu and Zimbabwe.
12
GA Res. 217 A (III), UN Doc. A/810.
13
Study by the International Law Commission of the Question of an International Criminal
Jurisdiction, GA Res. 216 B (III).
ix
x preface

Establishing this international criminal court took considerably longer

than many at the time might have hoped. In the early years of the Cold
War, in 1954, the General Assembly essentially suspended work on the
project.5 Tensions between the two blocs made progress impossible, both
sides being afraid they might create a tool that could advantage the other.
The United Nations did not resume its consideration of the proposed
international criminal court until 1989.6 The end of the Cold War gave
the concept the breathing space it needed. The turmoil created in the
former Yugoslavia by the end of the Cold War provided the laboratory for
international justice that propelled the agenda forward.7
The final version of the Rome Statute is not without serious flaws, and
yet it ‘could well be the most important institutional innovation since the
founding of the United Nations’.8 The astounding progress of the project
itself during the 1990s and into the early twenty-first century indicates a
profound and in some ways mysterious enthusiasm from a great number
of States. Perhaps they are frustrated at the weaknesses of the United
Nations and regional organisations in the promotion of international
peace and security. To a great extent, the success of the Court parallels the
growth of the international human rights movement, much of whose
fundamental philosophy and outlook it shares. Of course, the Court has
also attracted the venom of the world’s superpower, the United States of
America. Washington is isolated yet determined in its opposition to the
institution, although increasingly it appears to be accepting the
inevitability of the Court.
The new International Criminal Court sits in The Hague, capital of the
Netherlands, alongside its long-established cousin, the International
Court of Justice. The International Court of Justice is the court where
States litigate matters relating to their disputes as States. The role of indi-
viduals before the International Court of Justice is marginal, at best. As
will be seen, not only does the International Criminal Court provide for
prosecution and punishment of individuals, it also recognises a legiti-
mate participation for the individual as victim. In a more general sense,
the International Criminal Court is concerned, essentially, with matters

14
Convention on the Prevention and Punishment of the Crime of Genocide, (1951) 78
5 6
UNTS 277. GA Res. 897 (X) (1954). GA Res. 44/89.
17
Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc.
S/RES/827, Annex.
18
Robert C. Johansen, ‘A Turning Point in International Relations? Establishing a
Permanent International Criminal Court’, (1997) 13 Report No. 1, 1 (Joan B. Kroc
Institute for International Peace Studies, 1997).
 preface xi

that might generally be described as serious human rights violations. The

International Court of Justice, on the other hand, spends much of its
judicial time on delimiting international boundaries and fishing zones,
and similar matters. Yet, because it is exposed to the same trends and
developments that sparked the creation of the International Criminal
Court, the International Court of Justice finds itself increasingly involved
in human rights matters.9
Whether or not one is supportive of the International Criminal Court,
any knowledgeable specialist has to admit that in the history of public
international law it is a truly extraordinary phenomenon. From an
exceedingly modest proposal in the General Assembly in 1989,10 derived
from an atrophied provision of the 1948 Genocide Convention,11 the idea
has grown at a pace faster than even its most steadfast supporters have
ever predicted. At every stage, the vast majority of participants in the
process of creating the Court have underestimated developments. For
example, during the 1998 Rome Conference, human rights NGOs
argued that the proposed threshold for entry into force of sixty ratifica-
tions was an American plot to ensure that the Court would never be
created. Convincing one-third of States to join the Court seemed impos-
sible. Prominent delegations insisted that the Court could only operate if
it had universal jurisdiction, predicting that a compromise by which it
could only prosecute crimes committed on the territory of a State Party
or by a national of a State Party would condemn it to obscurity and irrel-
evance. Countries in conflict or in a post-conflict peace process, where
the Court might actually be of some practical use, would never ratify the
Rome Statute, they argued.12 Their perspective viewed the future court as
an institution that would be established and operated by a relatively small

19
Recent cases have involved violations of human rights law and international humanitarian
law in the Democratic Republic of Congo and the Occupied Palestinian Territories, geno-
cide in the former Yugoslavia, the use of nuclear weapons, self-determination in East
Timor, the immunity of international human rights investigators, prosecution of govern-
ment ministers for crimes against humanity, and imposition of the death penalty in the
United States. In 2005, for the first time in its history, it ruled that important human rights
conventions, such as the International Covenant on Civil and Political Rights, the African
Charter of Human and Peoples’ Rights and the Convention on the Rights of the Child, had
been breached by a State: Case Concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda), 19 December 2005, para. 219.
10
GA Res. 44/89.
11
Convention for the Prevention and Punishment of the Crime of Genocide, (1951) 78
UNTS 277, Art. 6.
12
See, e.g., UN Doc. A/CONF.183/C.1/SR.7, paras. 48–51; UN Doc. A/CONF.183/
C.1/SR.8, para. 7.
xii preface

number of countries in the North. Its field of operation, of course, was

going to be the South.
And yet, less than a decade after the adoption of the Rome Statute,
there are more than 100 States Parties, eighty more than the safe thresh-
old that human rights NGOs and many national delegations thought was
necessary to ensure entry into force within a foreseeable future. As for the
fabled universal jurisdiction, despite exercising jurisdiction only over the
territory and over nationals of States Parties, the real Court now has
plenty of meat on the bone: Sierra Leone, Colombia, Uganda, the
Democratic Republic of Congo, Afghanistan, Cambodia, Macedonia and
Burundi are all States Parties, to name a few of the likely candidates for
Court activity. In other words, the lack of universal jurisdiction has
proven to be no obstacle whatsoever to the operation of the institution.
And, on 20 March 2006, the first suspect, Thomas Lubanga Dyilo,
appeared in The Hague before a Pre-Trial Chamber of the International
Criminal Court, charged with war crimes committed on the territory of a
State Party to the Rome Statute subsequent to 1 July 2002.
The literature on the International Criminal Court is already abun-
dant, and several sophisticated collections of essays addressed essentially
to specialists have already been published.13 The goal of this work is both
more modest and more ambitious: to provide a succinct and coherent
introduction to the legal issues involved in the creation and operation of

13
Roy Lee, ed., The International Criminal Court, The Making of the Rome Statute, Issues,
Negotiations, Results, The Hague: Kluwer Law International, 1999; Otto Triffterer, ed.,
Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes,
Article by Article, Baden-Baden: Nomos, 1999; Herman von Hebel, Johan G. Lammers and
Jolien Schukking, eds., Reflections on the International Criminal Court: Essays in Honour of
Adriaan Bos, The Hague: T. M. C. Asser, 1999; Flavia Lattanzi and William A. Schabas,
eds., Essays on the Rome Statute of the International Criminal Court, Rome: Editrice il
Sirente, 2000; Dinah Shelton, ed., International Crimes, Peace, and Human Rights: The Role
of the International Criminal Court, Ardsley, NY: Transnational Publishers, 2000; Roy Lee,
ed., The International Criminal Court: Elements of Crimes and Rules of Procedure and
Evidence, Ardsley, NY: Transnational Publishers, 2001; Mauro Politi and Giuseppe Nesi,
eds., The Rome Statute of the International Criminal Court: A Challenge to Impunity,
Aldershot: Ashgate, 2001; Antonio Cassese, Paola Gaeta and John R. W. D. Jones, eds., The
Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford
University Press, 2002; and Flavia Lattanzi and William A. Schabas, eds., Essays on the
Rome Statute of the International Criminal Court, vol. II, Rome: Editrice il Sirente, 2004.
There are also two significant monographs: Leila Nadya Sadat, The International Criminal
Court and the Transformation of International Law: Justice for the New Millennium,
Ardsley, NY: Transnational Publishers, 2002; and Bruce Broomhall, International Justice
and the International Criminal Court: Between Sovereignty and the Rule of Law, Oxford:
Oxford University Press, 2003.
 preface xiii

the International Criminal Court, and one that is accessible to non-

specialists. References within the text signpost the way to rather more
detailed sources when readers want additional analysis. As with all inter-
national treaties and similar documents, students of the subject are also
encouraged to consult the official records of the 1998 Diplomatic
Conference and the meetings that preceded it. But the volume of these
materials is awesome, and it is a challenging task to distil meaningful
analysis and conclusions from them.
In the earlier editions, I have thanked many friends and colleagues, and
beg their indulgence for not doing so again here. I want to give special
thanks to my students at the Irish Centre for Human Rights of the
National University of Ireland, Galway, many of whom have contributed
to my ongoing study of the Court with original ideas and analyses.
Several of them have published journal articles and monographs on spe-
cific issues concerning the Court and, more generally, international crim-
inal law, and without exception these works have been cited somewhere
in this text. Special thanks are due to Mohamed Elewa, Mohamed El
Zeidy and Dr Nadia Bernaz, who reviewed some or all of the text for me,
and who made many constructive suggestions that have improved it.
The enthusiasm and encouragement of Sinead Moloney and Finola
O’Sullivan of Cambridge University Press is greatly appreciated. Finally,
of course, thanks are mainly due to Penelope, for her mythical patience.

William A. Schabas oc
Oughterard, County Galway
31 January 2007
 ABBREVIATIONS

ASP Assembly of States Parties

CHR Commission on Human Rights
GA General Assembly
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
ILC International Law Commission
LRTWC Law Reports of the Trials of the War Criminals
SC Security Council
SCSL Special Court for Sierra Leone
T WC Trials of the War Criminals
 1

Creation of the Court

War criminals have been prosecuted at least since the time of the ancient
Greeks, and probably well before that. The idea that there is some
common denominator of behaviour, even in the most extreme circum-
stances of brutal armed conflict, confirms beliefs drawn from philosophy
and religion about some of the fundamental values of the human spirit.
The early laws and customs of war can be found in the writings of classi-
cal authors and historians. Those who breached them were subject to trial
and punishment. Modern codifications of this law, such as the detailed
text prepared by Columbia University professor Francis Lieber that was
applied by Abraham Lincoln to the Union army during the American
Civil War, proscribed inhumane conduct, and set out sanctions, includ-
ing the death penalty, for pillage, raping civilians, abuse of prisoners and
similar atrocities.1 Prosecution for war crimes, however, was only con-
ducted by national courts, and these were and remain ineffective when
those responsible for the crimes are still in power and their victims
remain subjugated. Historically, the prosecution of war crimes was gen-
erally restricted to the vanquished or to isolated cases of rogue combat-
ants in the victor’s army. National justice systems have often proven
themselves to be incapable of being balanced and impartial in such cases.
The first genuinely international trial for the perpetration of atrocities
was probably that of Peter von Hagenbach, who was tried in 1474 for
atrocities committed during the occupation of Breisach. When the town
was retaken, von Hagenbach was charged with war crimes, convicted and
beheaded.2 But what was surely no more than a curious experiment in
medieval international justice was soon overtaken by the sanctity of State

11
Instructions for the Government of Armies of the United States in the Field, General
Orders No. 100, 24 April 1863.
12
Georg Schwarzenberger, International Law as Applied by International Courts and
Tribunals: The Law of Armed Conflict, vol. II, London: Stevens & Sons Limited, 1968,
p. 463; M. Cherif Bassiouni, ‘From Versailles to Rwanda in 75 Years: The Need to Establish
a Permanent International Court’, (1997) 10 Harvard Human Rights Journal 11.
1
2 an introduction to the international criminal court

sovereignty resulting from the Peace of Westphalia of 1648. With the

development of the law of armed conflict in the mid-nineteenth century,
concepts of international prosecution for humanitarian abuses slowly
began to emerge. One of the founders of the Red Cross movement, which
grew up in Geneva in the 1860s, urged a draft statute for an international
criminal court. Its task would be to prosecute breaches of the Geneva
Convention of 1864 and other humanitarian norms. But Gustav
Monnier’s innovative proposal was much too radical for its time.3
The Hague Conventions of 1899 and 1907 represent the first signifi-
cant codification of the laws of war in an international treaty. They
include an important series of provisions dealing with the protection of
civilian populations. Article 46 of the Regulations that are annexed to the
Hague Convention IV of 1907 enshrines the respect of ‘[f]amily honour
and rights, the lives of persons, and private property, as well as religious
convictions and practice’.4 Other provisions of the Regulations protect
cultural objects and the private property of civilians. The preamble to the
Conventions recognises that they are incomplete, but promises that, until
a more complete code of the laws of war is issued, ‘the inhabitants and the
belligerents remain under the protection and the rule of the principles of
the law of nations, as they result from the usages established among civi-
lized peoples, from the laws of humanity, and the dictates of the public
conscience’. This provision is known as the Martens clause, after the
Russian diplomat who drafted it.5
The Hague Conventions, as international treaties, were meant to
impose obligations and duties upon States, and were not intended to
create criminal liability for individuals. They declared certain acts to be
illegal, but not criminal, as can be seen from the absence of any suggestion
that there is a sanction for their violation. Yet, within only a few years, the
Hague Conventions were being presented as a source of the law of war
crimes. In 1913, a commission of inquiry sent by the Carnegie Foundation
to investigate atrocities committed during the Balkan Wars used the pro-
visions of the Hague Convention IV as a basis for its description of war

13
Christopher Keith Hall, ‘The First Proposal for a Permanent International Criminal
Court’, (1998) 322 International Review of the Red Cross 57.
14
Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens
Nouveau Recueil (3d) 461. For the 1899 treaty, see Convention (II) with Respect to the
Laws and Customs of War on Land, 32 Stat. 1803, 1 Bevans 247, 91 British Foreign and
State Treaties 988.
15
Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public
Conscience’, (2000) 94 American Journal of International Law 78.
 creation of the court 3

crimes.6 Immediately following World War I, the Commission on

Responsibilities of the Authors of War and on Enforcement of Penalties,
established to examine allegations of war crimes committed by the
Central Powers, did the same.7 But actual prosecution for violations of the
Hague Conventions would have to wait until Nuremberg. Offences
against the laws and customs of war, known as ‘Hague Law’ because of
their roots in the 1899 and 1907 Conventions, are codified in the 1993
Statute of the International Criminal Tribunal for the former Yugoslavia8
and in Article 8(2)(b), (e) and (f) of the Statute of the International
Criminal Court.
As World War I wound to a close, public opinion, particularly in
England, was increasingly keen on criminal prosecution of those gener-
ally considered to be responsible for the war. There was much pressure to
go beyond violations of the laws and customs of war and to prosecute, in
addition, the waging of war itself in violation of international treaties. At
the Paris Peace Conference, the Allies debated the wisdom of such trials as
well as their legal basis. The United States was generally hostile to the
idea, arguing that this would be ex post facto justice. Responsibility for
breach of international conventions, and above all for crimes against the
‘laws of humanity’ – a reference to civilian atrocities within a State’s own
borders – was a question of morality, not law, said the United States dele-
gation. But this was a minority position. The resulting compromise
dropped the concept of ‘laws of humanity’ but promised the prosecution
of Kaiser Wilhelm II ‘for a supreme offence against international morality
and the sanctity of treaties’. The Versailles Treaty formally arraigned the
defeated German emperor and pledged the creation of a ‘special tribunal’
for his trial.9 Wilhelm of Hohenzollern had fled to neutral Holland which
refused his extradition, the Dutch Government considering that the
charges consisted of retroactive criminal law. He lived out his life there
and died, ironically, in 1941, when his country of refuge was falling under
German occupation in the early years of World War II.

16
Report of the International Commission to Inquire into the Causes and Conduct of the
Balkan Wars, Washington D C: Carnegie Endowment for International Peace, 1914.
17
Violations of the Laws and Customs of War, Reports of Majority and Dissenting Reports of
American and Japanese Members of the Commission of Responsibilities, Conference of Paris,
1919, Oxford: Clarendon Press, 1919.
18
Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc.
S/RES/827 (1993), Annex.
19
Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of
Versailles’), (1919) TS 4, Art. 227.
4 an introduction to the international criminal court

The Versailles Treaty also recognised the right of the Allies to set up mil-
itary tribunals to try German soldiers accused of war crimes.10 Germany
never accepted the provisions, and subsequently a compromise was
reached whereby the Allies would prepare lists of German suspects, but the
trials would be held before the German courts. An initial roster of nearly
900 was quickly whittled down to about forty-five, and in the end only a
dozen were actually tried. Several were acquitted; those found guilty were
sentenced to modest terms of imprisonment, often nothing more than
time already served in custody prior to conviction. The trials looked rather
more like disciplinary proceedings of the German army than any interna-
tional reckoning. Known as the ‘Leipzig Trials’, the perceived failure of this
early attempt at international justice haunted efforts in the inter-war years
to develop a permanent international tribunal and were grist to the mill of
those who opposed war crimes trials for the Nazi leaders. But two of the
judgments of the Leipzig court involving the sinking of the hospital ships
Dover Castle and Llandovery Castle, and the murder of the survivors,
mainly Canadian wounded and medical personnel, are cited to this day as
precedents on the scope of the defence of superior orders.11
The Treaty of Sèvres of 1920, which governed the peace with Turkey,
also provided for war crimes trials.12 The proposed prosecutions against
the Turks were even more radical, going beyond the trial of suspects
whose victims were either Allied soldiers or civilians in occupied territo-
ries to include subjects of the Ottoman Empire, notably victims of the
genocide of the Armenian people. This was the embryo of what would
later be called crimes against humanity. However, the Treaty of Sèvres was
never ratified by Turkey, and no international trials were undertaken. The
Treaty of Sèvres was replaced by the Treaty of Lausanne of 1923 which
contained a ‘Declaration of Amnesty’ for all offences committed between
1 August 1914 and 20 November 1922.13
Although these initial efforts to create an international criminal court
were unsuccessful, they stimulated many international lawyers to devote

10
Ibid., Arts. 228–230.
11
German War Trials, Report of Proceedings Before the Supreme Court in Leipzig, London: His
Majesty’s Stationery Office, 1921. See also James F. Willis, Prologue to Nuremberg: The
Politics and Diplomacy of Punishing War Criminals of the First World War, Westport, CT:
Greenwood Press, 1982; Gerd Hankel, Die Leipziger Prozesse, Hamburg: Hamburger
Edition, 2003.
12
(1920) UKTS 11; (1929) 99 (3rd Series), DeMartens, Recueil général des traités, No. 12,
p. 720 (French version).
13
Treaty of Lausanne Between Principal Allied and Associated Powers and Turkey, (1923) 28
LNTS 11.
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