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Prior to World War I

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A Brief History of International Criminal Law and International Criminal Court

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Abstract

Over the past 500 years, the global community has sought numerous ways to address the most serious crimes that concerned and equally horrified the whole world. Bassiouni even argues that there is evidence of a tribunal that held individuals responsible for war crimes in Greece in 405 BC. Schabas joins this view, saying, “War criminals have been prosecuted at least since the time of ancient Greece, and probably well before that.” Others also refer to similar examples from ancient China, India, and Japan. Therefore, it could be argued that the world has always shown an interest in and a desire for a superior judicial body with the power to address the most heinous crimes, given that such crimes have always been committed.

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Notes

  1. 1.

    Sandra L. Jamison, “A Permanent International Criminal Court: A Proposal That Overcomes Past Objections,” Denver Journal of International Law & Policy, Vol. 23, Issue 2, 1995, p. 419.

  2. 2.

    M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd rev. ed. (Cambridge, MA: Kluwer Law International, 1999), p. 517.

  3. 3.

    William A. Schabas, An Introduction to the International Criminal Court (Cambridge, UK and New York, NY: Cambridge University Press, 2001), p. 1.

  4. 4.

    Adriaan Bos, “The International Criminal Court: A Perspective,” in Roy p. Lee (ed.), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), p. 465 and Yves Beigbeder, Judging War Criminals: The Politics of International Justice (New York: St. Martin’s, 1999), pp. 4–5, cited in Paul Bowers, The International Criminal Court Bill (HL), Bill 70 of 2000–2001, Research Paper 01/39, 28 March 2002, through House of Commons Library, United Kingdom, 28 March 2002, accessed via: http://www.parliament.uk/commons/lib/research/rp2001/rp01-039.pdf, p. 13, footnote 8.

  5. 5.

    Brook Sari Moshan, “Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity,” Fordham International Law Journal, Vol. 22, Issue 1, 1998, p. 165.

  6. 6.

    Scott W. Andreasen, “The International Criminal Court: Does the Constitution Preclude Its Ratification by the United States?,” Iowa Law Review, Vol. 85, Issue 2, 2000, p. 703.

  7. 7.

    Damir Arnaut, “When in Rome? The International Criminal Court and Avenues for U.S. Participation,” Virginia Journal of International Law, Vol. 43, Issue 2, 2003, p. 532.

  8. 8.

    Roseann M. Latore, “Escape Out the Back Door or Charge in the Front Door: U.S. Reactions to the International Criminal Court,” Boston College International & Comparative Law Review, Vol. 25, Issue 1, 2002, p. 162. It should be noted that the trial of Peter von Hagenbach is often cited by many others as the first international criminal proceeding. For instance, see, among others, Jamison, “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections,” p. 421; M. Cherif Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” Harvard Human Rights Journal, Vol. 10, Issue 10, 1997, p. 11; Jules Deschênes, “Toward International Criminal Justice,” in Roger p. Clark and Madeleine Sann, (eds.), The Prosecution of International Crimes (New Brunswick, NJ: Transaction Publishers, 1996), pp. 30–32; James D. Meernik and Kimi L. King, “The Effectiveness of International Law and the ICTY—Preliminary Results of an Empirical Study,” International Criminal Law Review, Vol. 1, Issue 3–4, 2001, p. 344; Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Times Books, 1998) and Walter Gary Sharp, Sr., “International Obligations to Search for and Arrest War Criminals: Government Failure in the Former Yugoslavia,” Duke Journal of Comparative & International Law, Vol. 7, Issue 2, 1997, p. 417.

  9. 9.

    Marlies Glasius, “Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Court,” in Marlies Glasius, Mary Kaldor and Helmut Anheier (eds.), Global Civil Society 2002 (Oxford: Oxford University Press, 2002), p. 138.

  10. 10.

    See, for instance, Timothy L. H. McCormack, “Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law,” Albany Law Review, Vol. 60, Issue 1, 1997, pp. 690–692.

  11. 11.

    For a brief discussion of the process through which the Lieber Code was prepared as well as biographical snapshots of the code’s author, Dr. Lieber, see George B. Davis, “Doctor Francis Lieber’s Instructions for the Government Armies in the Field,” American Journal of International Law, Vol. 1, Issue 1, 1907, pp. 13–25.

  12. 12.

    Schabas, An Introduction to the International Criminal Court, p. 1.

  13. 13.

    Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General’s Office, April 24, 1863, Washington 1898: Government Printing Office. Those could be reached at http://www.yale.edu/lawweb/avalon/lieber.htm. Some important provisions from the Orders are as follows:

    Art. 33.

    It is no longer considered lawful—on the contrary, it is held to be a serious breach of the law of war—to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own and make it a portion of its own country.

    Art. 37.

    The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women: and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished.

    Art. 67.

    The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant.

    Art. 70.

    The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war.

    Art. 76.

    Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.

    They may be required to work for the benefit of the captor’s government, according to their rank and condition.

    Art. 80.

    Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information.

  14. 14.

    Schabas, An Introduction to the International Criminal Court, p. 1.

  15. 15.

    Davis, “Doctor Francis Lieber’s Instructions for the Government Armies in the Field,” p. 22.

  16. 16.

    The text of the outcome of the Brussels Conference could be found at: Project of an International Declaration Concerning the Laws and Customs of War, Adopted by the Conference of Brussels, August 27, 1874, reprinted in The American Journal of International Law, Vol. 1, Issue 2, Supplement: Official Documents, 1907, pp. 96–103.

  17. 17.

    Ibid., p. 23.

  18. 18.

    Laws of War: the Geneva Convention for Amelioration of the Condition of the Wounded on the Field of Battle (also known as the Red Cross Convention); adopted at Geneva, August 22, 1864, entered into force June 22, 1865. The text of the Convention can be reached through the website of the Avalon Project of Yale University at: http://www.yale.edu/lawweb/avalon/lawofwar/geneva04.htm.

  19. 19.

    Arnaut, “When in Rome? The International Criminal Court and Avenues for U.S. Participation,” p. 532. Unlike the von Hagenbach case, there is agreement and thus certainty that the proposal for establishing a permanent international criminal court was first made by Gustave Moynier in 1872. See, for example, Christopher Keith Hall, “The First Proposal for A Permanent International Criminal Court,” International Review of the Red Cross, Issue 322, 1998, p. 57–74; Christopher W. Mullins, David Kauzlarich and Dawn Rothe, “The International Criminal Court and the Control of State Crime: Prospects and Problems,” Critical Criminology, Vol. 12, Issue 3, 2004, p. 289; Marie Törnquist-Chesnier, “NGOs and International Law,” Journal of Human Rights, Vol. 3, Issue 2, 2004, p. 256; Christopher K. Hall, “La Primera Propuesta de Crecion de un Tribunal Penal Permanente,” 145 Revista Internacional de la Cruz Roja, 63–82 (1998), as cited in Héctor Olásolo, “The Prosecutor of the ICC Before the Initiation of Investigations: A Quasi-judicial or a Political Body?,” International Criminal Law Review, Vol. 3, Issue 2, 2003, p. 87. On January 3, 1872, Moynier presented his draft for establishing a permanent international criminal court at a meeting of the International Committee for the Relief of the Wounded (later to become the Red Cross), which was set up under the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 1864. This proposal was published in the Bulletin International des Sociétés de secours aux militaries bleséss on January 28, 1872. See, Morten Bergsmo, “Folkerettslig belysning av ‘etisk rensing’ i det tidligere Jugoslavia,” pp. 75–133 in Bård-Anders Andreassen and Elin Skaar (eds.), Forsoning eller rettferdighet? Om beskyttelse av menneskerethighetene gjennom sannhetskommisjoner og rettstribunaler (Oslo: Cappelen Akademisk Forlag, 1998), p. 98, cited in Tom Syring, “Good Governance and the ICC: Strengthening Besieged Democratic Regimes by International Means, The Logic of Institutional Empowerment,” Paper presented at Arbeidsgruppe Internasjonal Politikk (Working Group on International Politics), Oslo, December 19, 2002, p. 7, footnote 3.

  20. 20.

    It is interesting to note that Moynier, the first to propose creating a permanent criminal court, was not originally in favor of such an institution. However, the atrocities committed in the Franco-Prussian War appeared to radically change his mind. See Hall, “The First Proposal for A Permanent International Criminal Court,” p. 57

  21. 21.

    For a detailed examination of Moynier’s proposal, see Hall, “The First Proposal for A Permanent International Criminal Court,” pp. 57–74. This article also includes the text of Moynier’s proposal, “Draft Convention for the Establishment of an International Judicial Body Suitable for the Prevention and Punishment of Violations of the Geneva Convention.”

  22. 22.

    Marlies Glasius, “How Activists Shaped the Court,” Crimes of War Project, The International Criminal Court: An End to Impunity? The Magazine Section, December 2003, accessed via: http://www.crimesofwar.org/print/icc/icc-glasius-print.html.

  23. 23.

    Hall, “The First Proposal for A Permanent International Criminal Court,” pp. 57–74.

  24. 24.

    Article 1 of Draft Convention for the Establishment of an International Judicial Body Suitable for the Prevention and Punishment of Violations of the Geneva Convention, reprinted in ibid.

  25. 25.

    Ibid., Article 2.

  26. 26.

    Ibid., Article 3.

  27. 27.

    Ibid., Article 4.

  28. 28.

    Ibid., Article 5.

  29. 29.

    Ibid., Article 6.

  30. 30.

    Hall comments on this matter as follows: “A century and a quarter after Gustave Moynier’s daring proposal, the prospects are increasingly bright that the international community will adopt a treaty establishing a permanent international criminal court. In dramatic contrast to the response of leading international law experts in 1872, more than three hundred non-governmental organizations throughout the world have joined forces in an NGO Coalition for an International Criminal Court to mobilize public support for the prompt establishment of an effective court.” Hall, “The First Proposal for a Permanent International Criminal Court,” pp. 57–74.

  31. 31.

    Seha L. Meray, Devletler Hukukuna Giriş, revised 3rd ed., 2nd vol. (Ankara: Ankara University Press, 1965), p. 428.

  32. 32.

    It is interesting to witness that the proposal for a conference that could have limited state sovereignty was made by a head of state, who should have been eager to preserve the sovereignty of the state he represented. However, considering that the Czar made the proposal to “diminish the burden of taxation for military and naval expenditures which presses down with enormously increasing weight upon the shoulders of the people,” it could be concluded that his sincerity in demanding world peace was questionable. William I. Hull, The Two Hague Conferences and their Contributions to International Law 3 (1908), cited in Leila Nadya Sadat, “The Establishment of the International Criminal Court: From The Hague to Rome and Back Again,” Michigan State University-DCL Journal of International Law, Vol. 8, Issue 1, 1999, p. 97, note 1. In fact, it was not a concern for Russia only. The following quotation eloquently explains one of the most outstanding motives behind states’ willingness to hold a multilateral conference in which discussions and deliberations on reducing armaments took place: “It was a world with an Arms Race going on, and with military-industrial complexes to feed it. The costs were enormous, and came not just from the numbers of men involved. These were years when…there was much application of scientific invention to military purposes. New weapons and new means of delivering them were being developed every year. As soon as one military establishment had acquired a new military marvel, every state with which it might come into conflict felt the lack of an equivalent. It was repeatedly claimed, and not by socialists and liberals alone, that the costs were becoming too heavy to bear” Geoffrey Best, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After,” International Affairs, Vol. 75, Issue 3, 1999, pp. 619–620.

  33. 33.

    Sadat, “The Establishment of the International Criminal Court: From the Hague to Rome and Back Again,” pp. 97–98.

  34. 34.

    Schabas, An Introduction to the International Criminal Court, p. 2. “They include an important series of provisions dealing with the protection of civilian populations…Other provisions of the Regulations protect cultural objects and private property of civilians.” Ibid.

  35. 35.

    Jamison, “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections,” p. 421. Four Hague Conventions were adopted at the Hague Convention of 1899: CONVENTION (I) FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES (HAGUE I) (July 29, 1899), entered into force September 4, 1900, accessed via: http://www.yale.edu/lawweb/avalon/lawofwar/hague01.htm, CONVENTION WITH RESPECT TO THE LAWS AND CUSTOMS OF WAR ON LAND (HAGUE, II) (July 29, 1899), entered into force September 4, 1900, accessed via: http://www.yale.edu/lawweb/avalon/lawofwar/hague02.htm, CONVENTION FOR THE ADAPTATION TO MARITIME WARFARE OF THE PRINCIPLES OF THE GENEVA CONVENTION OF AUGUST 22, 1864, adopted July 29, 1899, entered into force, September 4, 1900, accessed via: http://www.yale.edu/lawweb/avalon/lawofwar/hague993.htm and Declaration on Prohibiting Launching of Projectiles and Explosives from Balloons (Hague, IV); July 29, 1899, entered into force, September 4, 1900.

  36. 36.

    For brief information on the attempts made before The Hague Conference of 1899 with regard to international arbitration, see William L. Penfield, “International Arbitration,” American journal of International Law, Vol. 1, Issue 2, 1907, pp. 330–341.

  37. 37.

    Sadat, “The Establishment of the International Criminal Court: From The Hague to Rome and Back Again,” p. 98, at note 2.

  38. 38.

    R. Floyd Clark, “A Permanent Tribunal of International Arbitration: Its Necessity and Value,” American Journal of International Law, Vol. 1, Issue 2, 1907, p. 343.

  39. 39.

    Ibid., p. 344.

  40. 40.

    Sadat, “The Establishment of the International Criminal Court: From The Hague to Rome and Back Again,” p. 422.

  41. 41.

    Gerard E. O’Connor, “The Pursuit of Justice and Accountability: Why The United States Should Support the Establishment of an International Criminal Court,” Hofstra Law Review, Vol. 27, Issue 4, 1999, p. 935.

  42. 42.

    These are: Convention for the Pacific Settlement of International Disputes (1907), Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts (1907), Convention Relative to the Opening of Hostilities (1907), Convention Respecting The Laws and Customs of War on Land (1907), Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), Convention Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities (1907), Convention Relating to the Conversion of Merchant Ships into War-Ships (1907), Convention Relative to the Laying of Automatic Submarine Contact Mines (1907), Convention Concerning Bombardment by Naval Forces in Time of War (1907), Convention for the Adaptation to Maritime War of the Principles of the Geneva Convention (1907), Convention Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture In Naval War (1907), Convention Relative to the Creation of an International Prize Court (Never Ratified) and Convention Concerning the Rights and Duties of Neutral Powers in Naval War (1907). All are accessible at: http://www.lib.byu.edu/~rdh/wwi/hague.html.

  43. 43.

    O’Connor, “The Pursuit of Justice and Accountability: Why The United States Should Support the Establishment of an International Criminal Court,” p. 935.

  44. 44.

    In fact, it is indicated in the preamble to the Conventions that they are incomplete. Schabas, An Introduction to the International Criminal Court, p. 2.

  45. 45.

    Ibid.

  46. 46.

    Bryan F. MacPherson, “Building an International Criminal Court for the 21st Century,”Connecticut Journal of International Law, Vol. 13, Issue 1, 1998, pp. 4–5.

  47. 47.

    Meray, Devletler Hukukuna Giriş, p. 434.

  48. 48.

    Sadat, “The Establishment of the International Criminal Court: From The Hague to Rome and Back Again,” p. 102.

  49. 49.

    M. Cherif Bassiouni, “Establishing an International Criminal Court: Historical Survey,” Military Law Review, Issue 149, 1995, p. 53.

  50. 50.

    Report of the International Commission to Inquire into the Causes and Conduct of the Balkan Wars (Washington, DC: Carnegie Endowment for International Peace, 1914), reprinted as George F. Kennan and Thomas M. Franck, The Other Balkan Wars: A 1913 Carnegie Endowment Inquiry in Retrospect (Washington, DC: Carnegie Endowment for International Peace, 1993).

  51. 51.

    Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc. S/RES/827 (1993). The Statute’s text can be reached at: http://www.un.org/icty/legaldoc-e/index.htm.

  52. 52.

    Schabas, An Introduction to the International Criminal Court, p. 3.

  53. 53.

    Giulio M. Gallarotti and Arik Y. Preis, “Toward Universal Human Rights and the Rule of Law: The Permanent International Criminal Court,” Australian Journal of International Affairs, Vol. 53, Issue 1, 1999, p. 95.

  54. 54.

    Best, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After,” pp. 620–621.

  55. 55.

    Ibid., p. 623.

  56. 56.

    Ibid., p. 624.

Bibliography

  • Best, Geoffrey, “Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After,” International Affairs, Vol. 75, Issue 3, 1999.

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  • Project of an International Declaration Concerning the Laws and Customs of War, Adopted by the Conference of Brussels, August 27, 1874, reprinted in The American Journal of International Law, Vol. 1, Issue 2, Supplement: Official Documents, 1907.

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    Cenap Çakmak

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Çakmak, C. (2017). Prior to World War I. In: A Brief History of International Criminal Law and International Criminal Court. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-56736-9_2

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