The International Criminal Court – International28 Humanitarian Law at Work 553

28 – THE INTERNATIONAL CRIMINAL COURT – INTERNATIONAL28 HUMANITARIAN LAW AT WORK 553

The International Criminal Court – International Humanitarian Law at Work

Hans-Peter Kaul

I. Introduction

It is often overlooked that today international humanitarian law and international criminal law in the modern sense may somehow be regarded as ‘two sides of the same coin’. The following dates – without claiming to be comprehensive – may illustrate how closely related the development of international humanitarian law is to the idea that serious violations of international humanitarian law should be prosecuted by international courts1:

— 1859 – The horrors of the Battle of Solferino lead Henry Dunant to write his book ‘A Memory of Solferino’ and to take the initiative to found the International Committee of the Red Cross (ICRC).

— 1872 – The Swiss Gustave Moynier, Henry Dunant’s successor as founder of the International Red Cross, drafts the ﬁ rst Statute for an International Criminal Court.

— 1907 – The Hague Convention (IV) respecting the Laws and Customs of War on Land, which established the basis for the present notion of war crimes, is adopted.

— 1945/1947 – The International Military Tribunals of Nuremburg and Tokyo establish the principle of individual criminal responsibility for former leading State representatives and military for their acts and, in particular, for the war crimes and crimes against humanity committed by them.

— 1948 – Article VI of the Genocide Convention envisages the creation of an International Criminal Court.

— 10 December 1948 – For the ﬁ rst time in the history of mankind, the United Nations commit themselves to general, inalienable human rights that henceforth must be protected by every State against arbitrariness, abuse and violence in the Universal Declaration of Human Rights.

1 For an overview of the history of International Criminal Law in Germany see C. Kress, ‘Versailles – Nuremberg – The Hague: Germany and International Criminal Law’, 40 The International Lawyer 15 (2006).

I. Buffard/J. Crawford/A. Pellet/S. Wittich (eds.), International Law between Universalism and Fragmentation. Festschrift in Honour of Gerhard Hafner, 553-570, © 2008 Koninklijke Brill NV. Printed in the Netherlands. 554 HANS-PETER KAUL

— 1949 – The four Geneva Conventions relating to the protection of victims of armed conﬂ ict establish the foundations of modern international humanitarian law and specify those acts that are henceforth prohibited in armed conﬂ ict.

— 1993/1994 – The ad hoc Criminal Tribunals for the former Yugoslavia and Rwanda are established, which in their Statutes contain criminal norms concerning war crimes and crimes against humanity.

— 17 July 1998 – After years of intense negotiations and almost indescribable efforts, the Diplomatic Conference in Rome successfully adopts the founding treaty of the International Criminal Court, the Rome Statute, with 120 positive votes, 21 abstentions and 7 negative votes. In the fi nal phase of the Rome Conference Professor Gerhard Hafner played a signifi cant role. He was Head of the Austrian Delegation and as Austria then held the EU Presidency, he was also Chairman for quite diffi cult EU coordination meetings.2 Eventually, on the night of 16 July and into the morning of 17 July 1998 Professor Hafner managed to bring about a common EU position on the Rome Statute, notably on the crucial questions of jurisdiction and admissibility.3

— 11 March 2003 – The International Criminal Court (ICC) is solemnly inaugu- rated in The Hague in the presence of Koﬁ Annan and Queen Beatrix.

The ICC in The Hague is the ﬁ rst permanent International Criminal Court with a statutory basis that prosecutes genocide, crimes against humanity and war crimes, if and when national criminal systems fail.4 It is a general, future-oriented court which is based – and that is the decisive progress compared with the ad hoc-criminal tribunals – on ‘equality before the law, equal law for all’5 as a general principle of law and on the free consent of the international community. The objective of the ICC is to hold individuals accountable for crimes that fall into the category of the most grave and large-scale violations of common values of humanity. In this sense, it shall prevent impunity while also setting up a permanent system to

2 See H.-P. Kaul, ‘Special Note: The Struggle for the International Criminal Court’s Jurisdiction’, 6 European Journal of Crime, Criminal Law and Criminal Justice 364, at 372 (1998). 3 Regarding the crucial question of reservations see G. Hafner, ‘Reservations: Art. 120’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article 1251 (1999). 4 H.-P. Kaul, ‘Construction Site for More Justice: The International Criminal Court After Two Years’, 99 AJIL 370 (2005); id., ‘Baustelle für mehr Gerechtigkeit – Der Internationale Strafgerichtshof in seinem zweiten Jahr’, 2004 Vereinte Nationen 141; id., ‘Der Aufbau des Internationalen Strafgerichtshofs, Schwierigkeiten und Fortschritte’, 2001 Vereinte Nationen 215; id., ‘Durchbruch in Rom – Der Vertrag über den Internationalen Strafgerichtshof’ – 1998 Vereinte Nationen 125; id., ‘Auf dem Weg zum Weltstrafgerichtshof – Verhandlungen und Perspektiven’, 1997 Vereinte Nationen 177. 5 See 1945 Statute of the International Court of Justice, art. 38 (1)(c).