CHAPTER TWO

NEGOTIATING THE INTERNATIONAL CRIMINAL COURT

The negotiations during and before the development of the Statute had their own history, themes, and structures. A close examination of these patterns helps explain the nature and flow of the ICC negotiations themselves. They were very much influenced by the history of treaties and how they were made from the end of the First World War to the run-up to negotiations just after the Cold War.

I. Historic Background

After World War I, the Versailles Treaty envisaged the prosecution by the Allies of those accused of having violated the rules and customs of war, and it also provided for the establishment of a special tribunal to judge Kaiser Wilhelm II. The intended tribunal would have been composed of five judges appointed by each one of the five victorious states. The kaiser, however, fled to the Netherlands and was never tried. Following the heinous crimes of World War II, the Allies managed to create the International Military Tribunal (IMT), known as the Nuremberg Tribunal, and the International Military Tribunal for the Far East (IMTFE), informally known as the Tokyo Tribunal.1 These tribunals were effectively set up by the victors against the vanquished, but their emerging principles could be seen to invigorate the entire development of international crimi- nal justice. For the first time, state representatives were prosecuted with- out the defense of immunity from an official state position. Crimes against peace, war crimes, and crimes against humanity were defined, specified, debated, and judged. Furthermore, the entire world, affected by such criminal acts, would now be able to follow trials and witness the applica- tion of justice to atrocities. The UN General Assembly drafting process that followed these events was significant. In 1946, the General Assembly affirmed the principles of

1 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal. , 8 : www.icrc.org/ihl/INTRO/350?OpenDocument.

16 chapter two international law recognized by the Charter of the Nuremberg Tribunal as well as the judgment of the tribunal and also codified these as the Nuremburg Principles, which became part of international law.2 In 1947, the General Assembly mandated the International Law Commission to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal, and produce a Draft Code of Offences against the Peace and Security of Mankind.3 Lastly, in 1948, the General Assembly recommended that the ILC consider the question of creating an international judicial institution to try persons accused of genocide and other crimes.4 Drafting thenceforth advanced slowly, though in 1950 the General Assembly established a committee in charge of drafting a statute for an international criminal tribunal.5 The Cold War prevented any political action toward a permanent court. Finally, in 1991 the ILC, in response to General Assembly requests, began once again to consider producing a statute for an international criminal tribu- nal. In 1994 the ILC proposed its final version of a draft statute and recom- mended that the UN General Assembly convene an international conference for the statute’s adoption.6

II. The Influence of the United Nations

The negotiations for the International Criminal Court occurred almost entirely at the United Nations. They would be authorized by the United Nations General Assembly, take place in committees it created and end in a diplomatic conference convened by the UN. The negotiations, further- more, would be conducted in these committees by and at the United Nations entirely according to the Assembly’s rules, procedures, methods, and traditions as modified by the experience and dynamics of the negotia- tions themselves. The International Criminal Court negotiations could

2 Affirmation of Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, UN General Assembly, Resolution 95(I), Official Records, UN Doc A/64/Add.1 (1946), 11 . 3 UN General Assembly, Resolution 177(II), 2nd Session, Official Records, UN Doc. A/519 (1947), 21 November 1947. 4 UN General Assembly, Resolution 260(III) B, Annex, 3rd Session, Official Records, UN Doc A/810 (1948), 9 . Entry into force on 12 January 1951. 5 UN General Assembly Resolution 489(V), 5th Session, 320th plenary meeting, Official Records, UN Doc. A/RES/489 (V), 12 . 6 Report of the International Law Commission on the Work of its 46th Session, 2 May– 22 July 1994, UN General Assembly Official Records, 49th Session, Supplement No. 10, A/49/10 (1994).