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The Period Between World War II and the End of the Cold War

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A Brief History of International Criminal Law and International Criminal Court

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Abstract

The world’s failure to introduce satisfying remedies to prevent future atrocities such as those committed during World War I could surely be considered one of the leading contributors to the deaths, enormous in amount and horrifying in type that occurred during World War II. It could be argued that if some effective measure had been taken in the immediate aftermath of World War I, there would have been no appalling massacres such as the Holocaust as late as the 1940s, when the world was much more civilized in many respects but equally ignorant of large-scale crimes committed against the human race.

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Notes

  1. 1.

    However, it should be noted that some were in favor of immediately executing alleged war criminals without prosecution and trials. For instance, it is argued that the British suggested that the Nazis be executed. See MacPherson, “Building an International Criminal Court for the 21st Century,” p. 8, and Andreasen, “The International Criminal Court: Does the Constitution Preclude Its Ratification by the United States?” p. 703. The British based their suggestion on the premise that “their ‘guilt was so black’ that it was ‘beyond the scope of any judicial process.’” However, the great powers aside from Britain did not support this argument. For instance, Stalin advocated a special international tribunal for prosecuting the senior war crime suspects, namely, Hitler, his close advisers, and his top military leaders. Similarly, both the United States and France preferred the establishment of an international tribunal to prosecute war criminals. The British suggestion of summary execution was also attributed to the fear that “fair procedures would allow the accused to use the tribunal as a forum for propaganda and self-justification.” Ultimately, largely because of the United States’ insistence, the idea of an international criminal tribunal prevailed in this discussion. See Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 23.

  2. 2.

    It should be noted that although it was preceded by the term United Nations, this commission had nothing to do with the United Nations that was created in 1945.

  3. 3.

    Schabas, An Introduction to the International Criminal Court, p. 5.

  4. 4.

    Jamison, “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections,” p. 424.

  5. 5.

    “Draft Convention for the Establishment of a United Nations War Crimes Court,” UN War Crimes Commission, U.N. Doc.C.50 (1), 30 September 1944. Article 1(2) of the Convention was as follows: “The jurisdiction of the Court shall extend to the trial and punishment of any person—irrespective of rank or position—who has committed, or attempted to commit, or has ordered, caused, aided, abetted or incited another person to commit, or by his failure to fulfill a duty incumbent upon him has himself committed, an offence against the laws and customs of war.”

  6. 6.

    Schabas, An Introduction to the International Criminal Court, p. 5.

  7. 7.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 22.

  8. 8.

    Ibid., pp. 22–23.

  9. 9.

    “A Decade of American Foreign Policy: Basic Documents, 1941–1949” (prepared by the Staff of the Committee and the Department of State) (Washington, DC: Government Printing Office, 1950), available through The Avalon Project of Yale University Law School website: http://www.yale.edu/lawweb/avalon/wwii/moscow.htm#imtmoscow.

  10. 10.

    The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, August 8, 1945, 82 U.N.T.S. 279 (London Agreement), available through The Avalon Project of Yale University Law School website available at: http://www.yale.edu/lawweb/avalon/imt/proc/imtchart.htm.

  11. 11.

    Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, August 8, 1945, Charter of the International Military Tribunal, 59 Stat. 1544, 1546, 82 U.N.T.S. 279, 284 (London Charter), available at: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm. Nineteen states later acceded to the Charter later.

  12. 12.

    The Charter defines those acts in Article 6 as follows:

    (a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

    (b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

    (c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

  13. 13.

    Article 7 of the London Charter states that “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”

  14. 14.

    Article 14 of the London Charter states,

    The Chief Prosecutors shall act as a committee for the following purposes:

    (a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff,

    (b) to settle the final designation of major war criminals to be tried by the Tribunal,

    (c) to approve the Indictment and the documents to be submitted therewith,

    (d) to lodge the Indictment and the accompany documents with the Tribunal,

    (e) to draw up and recommend to the Tribunal for its approval draft rules of procedure.

    Article 15 determines the duties of the Chief Prosecutors in their individual capacities:

    (a) investigation, collection and production before or at the Trial of all necessary evidence,

    (b) the preparation of the Indictment for approval by the Committee,

    (c) the preliminary examination of all necessary witnesses and of all Defendants,

    (d) to act as prosecutor at the Trial,

    (e) to appoint representatives to carry out such duties as may be assigned them,

    (f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.

  15. 15.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 28.

  16. 16.

    Ibid., p. 29. Detailed information about those indicted, including their names and the accusations against them, available at: http://www.yale.edu/lawweb/avalon/imt/proc/countb.htm.

  17. 17.

    There are many works on the Nuremberg Trials. See, among others, Steven Ratner, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 1997); Philippe Sands (ed.), From Nuremberg to The Hague: The Future of International Criminal Justice (Cambridge: Cambridge University Press, 2003); W. J. Bosch, Judgment on Nuremberg. American Attitudes toward the Major German War Crimes Trials (Chapel Hill, NC: University of North Carolina Press, 1970); Robert E. Conot, Justice at Nuremberg (New York: Harper & Row, 1983); Eugene Davidson, The Trial of the Germans, Nuremberg 1945–1946: An Account of the Twenty-Two Defendants Before the International Military Tribunal at Nuremberg (New York: Macmillan, 1967); George Ginsburg and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (Dordrecht: Nijhoff, 1990); Sheldon Glueck, The Nuremberg Trial and Aggressive War (New York: Knopf, 1946); J. J. Heydecker and J. Leeb. The Nuremberg Trial (Cleveland: World Publishing, 1962); A. M. p. Neave, Nuremberg: A Personal Record of the Trial of the Major Nazi War Criminals in 1945–6 (London: Hodder & Stoughton, 1978); Bradley F. Smith, The American Road to Nuremberg. The Documentary Record 1944–1945 (Stanford: Hoover Institution Press, 1982); Telford Taylor, The Anatomy of the Nuremberg Trials. A Personal Memoir (New York: Knopf, 1992) and Robert K. Woetzel, The Nuremberg Trials in International Law (New York: Praeger, 1960).

  18. 18.

    Allied Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, December 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin, January 31, 1946; reprinted in Ferencz, Half A Century of Hope: An International Criminal Court: A Step Toward World Peace- A Documentary History and Analysis, pp. 488ff.

  19. 19.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 29.

  20. 20.

    O’Connor, “The Pursuit of Justice and Accountability: Why The United States Should Support the Establishment of an International Criminal Court,” p. 942.

  21. 21.

    Schabas, An Introduction to the International Criminal Court, p. 6.

  22. 22.

    Bassiouni, “Establishing an International Criminal Court: Historical Survey,” p. 55.

  23. 23.

    The Instrument of Surrender of Italy, 29 September 1943, Art. 29.

  24. 24.

    It should be noted that the crimes committed by the alleged Italian war criminals were grave. The War Commission listed 750 Italian war criminals who were mainly responsible for the following: illegal use of poisonous gas against Ethiopian civilians and combatants, killing innocent civilians and prisoners of war, torture and mistreatment of prisoners, bombing ambulances, destruction of cultural property, and other violations of the laws of armed conflicts during the Italo-Abyssinian war. Moreover, the same commission obtained extensive evidence of crimes committed by the Italian suspects in Greece, Libya, and Yugoslavia during World War II. See Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” pp. 30–31.

  25. 25.

    Henry J. Steiner and Philip Alston (eds.), International Human Rights in Context: Law, Politics and Morals (Oxford: Clarendon Press, 1996), p. 99.

  26. 26.

    Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, September 30th and October 1st, 1946, available at: http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm.

  27. 27.

    Meray, Devletler Hukukuna Giriş, p. 590.

  28. 28.

    William Eldred Jackson, “Putting the Nuremberg Law to Work,” Foreign Affairs, Vol. 25, Issue 4, 1947, p. 550.

  29. 29.

    However, it should be noted that the Nuremberg tribunal rejected this argument by stating that “It was submitted that international law is concerned with the action of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.” Judgment of the International Military Tribunal for the Trial of German Major War Criminals, available at: http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm.

  30. 30.

    Meray, Devletler Hukukuna Giriş, p. 590.

  31. 31.

    The Judgment of the Nuremberg Tribunal mentioned of the defendants objection on this matter: “It was urged on behalf of the defendants that a fundamental principle of all law—international and domestic—is that there can be no punishment of crime without a pre-existing law. ‘Nullum crimen sine lege. nulla poena sine lege.’ It was submitted that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.” However, the Tribunal refused the argument that it was directing accusations that were not codified in the pre-existing law: “it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out the designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.” Judgment of the International Military Tribunal for the Trial of German Major War Criminals. The text of the judgment is available at: http://www.yale.edu/lawweb/avalon/imt/proc/judcont.htm.

  32. 32.

    Henry L. Stimson, “The Nuremberg Trial: Landmark in Law,” Foreign Affairs, Vol. 25, Issue 2, 1947, p. 182.

  33. 33.

    Meray, Devletler Hukukuna Giriş, pp. 591–592.

  34. 34.

    Stimson, “The Nuremberg Trial: Landmark in Law,” p. 184.

  35. 35.

    Latore, “Escape Out the Back Door or Charge in the Front Door: U.S. Reactions to the International Criminal Court,” p. 164.

  36. 36.

    Meray, Devletler Hukukuna Giriş, p. 593.

  37. 37.

    MacPherson, “Building an International Criminal Court for the 21st Century,” p. 9.

  38. 38.

    Jackson, “Putting the Nuremberg Law to Work,” p. 551.

  39. 39.

    Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, G.A. Res. 95 (I), U.N. GAOR, U.N. Doc. A/236 (1946); text available at the UN website available at: http://www.un.org/documents/ga/res/1/ares1.htm.

  40. 40.

    The Commission was established by the agreement of the United Kingdom, the United States, and the Soviet Union at a meeting held in Moscow in December 1945 and held its first meeting on February 26, 1946. “Political and Legal Organizations,” International Organization, Vol. 1, Issue 1, 1947, p. 176.

  41. 41.

    The Commission was to exercise the following functions:

    1. To formulate the policies, principles, and standards in conformity with which the fulfillment by Japan of its surrender obligations was to be accomplished.

    2. To review, on the request of any member, any directive issued to the Supreme Commander for the Allied Powers (General Douglas MacArthur) of any of his actions involving policy decisions within the jurisdiction of the Commission.

    3. To consider such matters as might be assigned to it by agreement of the participating governments.

    Ibid., p. 177.

  42. 42.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 32.

  43. 43.

    Charter of the International Military Tribunal for the Far East, Trial of Japanese War Criminals (Washington, DC: United States Government Printing Office, 1946), pp. 39–44.

  44. 44.

    “Political and Legal Organizations,” p. 176.

  45. 45.

    Ibid.

  46. 46.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” pp. 32–33.

  47. 47.

    Ibid., pp. 33–34.

  48. 48.

    “International Military Tribunal for the Far East,” International Organization, Vol. 3, Issue 1, 1949, p. 184.

  49. 49.

    Jamison, “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections,” p. 425.

  50. 50.

    “International Military Tribunal for the Far East,” p. 185.

  51. 51.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 34.

  52. 52.

    For additional details, see R. John Pritchard, “The Gift of Clemency Following British War Crimes Trials in the Far East, 1946–1947,” Criminal Law Forum, Vol. 7, Issue, 1996, pp. 37–38.

  53. 53.

    Jamison, “A Permanent International Criminal Court: A Proposal that Overcomes Past Objections,” pp. 425–426.

  54. 54.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 36.

  55. 55.

    Ibid.

  56. 56.

    Ibid., pp. 36–37.

  57. 57.

    “International Military Tribunal for the Far East,” p. 186.

  58. 58.

    Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” pp. 38–39.

  59. 59.

    Ibid., p. 39.

  60. 60.

    Establishment of an International Law Commission, GA Res. 174(II), UN GAOR, UN Doc. A/519 (1947).

  61. 61.

    Formulation of the Principles Recognized in the Charter of the Nuremberg Trial and in the Judgment of the Tribunal, General Assembly Resolution 177(II), U.N. Doc. A/519 (1948).

  62. 62.

    Study by the International Law Commission of the Question of an International Criminal Jurisdiction, UN General Assembly Resolution 260 B(III), U.N. Doc. A/810, December 9, 1948.

  63. 63.

    Ibid.

  64. 64.

    Ibid.

  65. 65.

    Ricardo J. Alfaro, International Law Commission, Report on the Question of International Criminal Jurisdiction, U.N. Doc. A/CN.4/15, reprinted in The Yearbook of International Law Commission, Volume II, 1950. The text could also be reached at http://untreaty.un.org/ilc/documentation/english/a_cn4_15.pdf.

  66. 66.

    Ibid.

  67. 67.

    Ibid.

  68. 68.

    Emil Sandstrom, International Law Commission, Report on the Question of International Criminal Jurisdiction, U.N. Doc. A/CN.4/20, reprinted in The Yearbook of International Law Commission, Volume II, 1950. The text can also be found at http://untreaty.un.org/ilc/documentation/english/a_cn4_20.pdf.

  69. 69.

    Report of the International Law Commission on its Second Session, June 5–July 29, 1950, Official Records of General Assembly, 5th Session, Supplement No. 12 (A/1316), reprinted in The Yearbook of International Law Commission, Volume II, 1950. Also available at: http://untreaty.un.org/ilc/documentation/english/a_cn4_34.pdf.

  70. 70.

    Ibid.

  71. 71.

    UN General Assembly Resolution 489(V), 320th meeting, December 12, 1950.

  72. 72.

    Lippman, “Towards an International Criminal Court,” p. 76.

  73. 73.

    The draft statute appears as Annex I to the Report of the Committee on International Criminal Jurisdiction, U.N. Doc. A/AC.48/4, September 5, 1951, reprinted as “United Nations: Committee on International Criminal Jurisdiction,” American Journal of International Law, Vol. 46, Issue 1, Supplement: Official Documents, 1952, pp. 1–11.

  74. 74.

    Ibid., Article 1.

  75. 75.

    Ibid., Article 2.

  76. 76.

    Ibid., Article 3.

  77. 77.

    Ibid., Article 25.

  78. 78.

    Ibid., Article 26.

  79. 79.

    Ibid., Article 27.

  80. 80.

    Ibid., Article 28.

  81. 81.

    Ibid., Article 29.

  82. 82.

    Ibid., Article 31.

  83. 83.

    Ibid., Article 32.

  84. 84.

    Lippman, “Towards an International Criminal Court,” p. 83.

  85. 85.

    Ibid., p. 84.

  86. 86.

    George A. Finch, “Draft Statute for an International Criminal Court,” American Journal of International Law, Vol. 46, Issue 1, 1952, p. 90.

  87. 87.

    It is interesting to note that some governments sought assistance from independent bodies on this matter. For instance, the US State Department sent copies of the draft statute and of the committee’s report to the American Society of International Law and invited the group to consider the texts and offer comments. Ibid, pp. 90–91.

  88. 88.

    Lippman, “Towards an International Criminal Court,” p. 84.

  89. 89.

    Australia, Chile, France, Israel, Netherlands, Norway, the Union of South Africa, the United Kingdom of Great Britain and Northern Ireland, China, and Denmark. See ibid.

  90. 90.

    7th Session, GAOR C.6, at 95 (321st–328th meetings).

  91. 91.

    Lippman, “Towards an International Criminal Court,” p. 85.

  92. 92.

    UN General Assembly Resolution 687 (VII), Seventh Session, Resolutions adopted on reports of the Sixth Committee, “International Criminal Jurisdiction,” 408th meeting, U.N. Doc. 2361, December 20, 1952.

  93. 93.

    Ibid.

  94. 94.

    Ibid.

  95. 95.

    Report of the 1953 Committee on International Criminal Jurisdiction, GAOR Supp. (No. 12) U.N. Doc. A/2645 (1954).

  96. 96.

    Lippman, “Towards an International Criminal Court,” p. 87.

  97. 97.

    Ibid., p. 88.

  98. 98.

    UN General Assembly Resolution 898 (IX), “International Criminal Jurisdiction,” Ninth Session, 512th meeting, U.N. Doc. A/2890, December 14, 1954.

  99. 99.

    UN General Assembly Resolution 1187(XII), “International Criminal Jurisdiction,” Twelfth Session, 727th meeting, U.N. Doc. A/3805, December 11, 1957.

  100. 100.

    The Assembly in its resolution decided to “defer consideration of the question of an international criminal jurisdiction until such time as the General Assembly takes up again the question of defining aggression and the question of a Draft Code of Offenses against the Peace and Security of Mankind.” Ibid.

  101. 101.

    See footnote 214.

  102. 102.

    U.N. Doc. No. A/CN.4/25.

  103. 103.

    U.N. Doc. No. A/CN.4/R.6.

  104. 104.

    U.N. Doc. No. A/CN.4/44.

  105. 105.

    Draft Code of Offenses against the Peace and Security of Mankind. Reprinted in Yearbook of International Law Commission, Vol. II, 1951, pp. 134–137. The text reprinted in the Yearbook also included annotations and explanations on the provisions of the Code.

  106. 106.

    Article 2, ibid.

  107. 107.

    Article 3, ibid.

  108. 108.

    Article 4, ibid. The Article states, “The fact that a person charged with an offence defined in this Code acted in pursuant to order of his government or of a superior does not relieve him from responsibility, provided a moral choice was in fact possible to him.”

  109. 109.

    Article 5, ibid.

  110. 110.

    “Third Report Relating to a Draft Code of Offenses against the Peace and Security of Mankind,” U.N. Doc. No. A/CN.4/85.

  111. 111.

    For additional details on the revisions to the Draft Code, see “Draft Code of Offences Against the Peace and Security of Mankind,” Chapter III, Documents of the Sixth Session, including the Report of the Commission to the General Assembly, Yearbook of the International Law Commission, Vol. II, 1954, pp. 149–152.

  112. 112.

    “Draft Code of Offences against the Peace and Security of Mankind,” UN General Assembly Resolution 897(IX), 504th meeting, December 4, 1954.

  113. 113.

    Ibid. The Resolution reads as follows:

    The General Assembly,

    Considering that the Draft Code of Offences against the Peace and Security of Mankind, as formulated in Chapter III of the report of the International Law Commission on the work of its sixth session, raises problems closely related to that of the definition of aggression,

    Considering that…the General Assembly decided to entrust to a Special Committee of nineteen Member States the task of preparing and submitting to the General Assembly at its eleventh session a detailed report on the question of defining aggression and a draft definition of aggression,

    Decides to postpone further consideration of the Draft Code of Offences against the Peace and Security of Mankind until the Special Committee on the question of defining aggression has submitted its report.

  114. 114.

    It should be noted that the concept of aggression remained undefined until 2010, when a definition was made in the Assembly of State Parties in Kampala, Uganda. Before this, even though the International Criminal Court had been authorized to exercise jurisdiction over the crime of aggression under the Rome Statute, because the term had not been defined, the court could not proceed against perpetrators of that crime until an internationally accepted definition for the notion had been provided and inserted in the text of the statute.

  115. 115.

    See footnote 247.

  116. 116.

    “Question of Defining Aggression,” UN General Assembly Resolution 688(VII), 408th meeting, December 20, 1952.

  117. 117.

    Ibid.

  118. 118.

    “Question of Defining Aggression,” UN General Assembly Resolution 895(IX), 504th meeting, December 4, 1954.

  119. 119.

    Ibid.

  120. 120.

    Official Records of the General Assembly, 12th Session, Supp. No. 16, U.N. Doc. A/3574.

  121. 121.

    Question of Defining Aggression,” UN General Assembly Resolution 1181(XII), 724th meeting, November 29, 1957.

  122. 122.

    Ibid.

  123. 123.

    Ibid.

  124. 124.

    Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), December 9, 1948, 78 U.N.T.S. 1021, approved by UN General Assembly Resolution 260(III), 179th meeting, December 9, 1948.

  125. 125.

    “The Crime of Genocide,” UN General Assembly Resolution No. 96(I), 55th meeting, December 11, 1946.

  126. 126.

    Ibid.

  127. 127.

    Ibid.

  128. 128.

    Genocide Convention, Article 6.

  129. 129.

    Ibid. Article 1 of the Convention provides, “The Contracting Parties confirm that genocide…is a crime under international law which they undertake to prevent and punish.”

  130. 130.

    Ibid., Article 5.

  131. 131.

    Ibid., Article 7.

  132. 132.

    See, footnote 278.

  133. 133.

    “Draft Convention on Genocide,” U.N. General Assembly 180(II), 123rd meeting, November 21, 1947.

  134. 134.

    Ibid.

  135. 135.

    U.N. ESCOR, art. VII, U.N. Doc. E/447 (1947) (Draft Convention on the Crime of Genocide).

  136. 136.

    Ad Hoc Committee on Genocide Report to the Economic and Social Council on the Meetings of the Committee, New York, 1948, U.N. ESCOR Supp. No. 6 at U.N. ESCOR Ad Hoc Committee, art. VII.

  137. 137.

    Ibid., 7th meeting, U.N. Doc. E/AC.25/SR.7.

  138. 138.

    3 U.N. GAOR at art. VI, 10, U.N. Doc. A/760.

  139. 139.

    3 U.N. GAOR (179th plen. mtg) at 852 (1948).

  140. 140.

    Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 75 U.N.T.S. 31, entered into force October 21, 1950.

  141. 141.

    Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85, entered into force October 21, 1950.

  142. 142.

    Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135, entered into force October 21, 1950.

  143. 143.

    Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287, entered into force October 21, 1950.

  144. 144.

    Raymund T. Yingling and Robert W. Ginnane, “The Geneva Conventions of 1949,” American Journal of International Law, Vol. 46, Issue 3, 1952, pp. 393–394.

  145. 145.

    Ibid., p. 394.

  146. 146.

    Ibid., p. 397.

  147. 147.

    Ibid., p. 397.

  148. 148.

    Ibid., p. 398.

  149. 149.

    Ibid., pp. 400–401.

  150. 150.

    Geneva Convention relative to the Treatment of Prisoners of War, Article 4.

  151. 151.

    For further details, see Yingling and Ginnane, “The Geneva Conventions of 1949,” pp. 401–411.

  152. 152.

    Ibid., p. 411.

  153. 153.

    Geneva Convention relative to the Protection of Civilian Persons in Time of War, Article 4. Paragraph 2 reads as follows: “Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

  154. 154.

    Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force December 7, 1978.

  155. 155.

    Respect for International Humanitarian Law, Handbook prepared by some of the members of the Inter-Parliamentary Union’s Committee to Promote Respect for International Humanitarian Law, the International Committee of Red Cross Publication, n.d., p. 18.

  156. 156.

    Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978.

  157. 157.

    Respect for International Humanitarian Law, p. 19.

  158. 158.

    Protocol additional to the Geneva Conventions of August 12, 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), available at http://www.icrc.org/ihl.nsf/FULL/615.

  159. 159.

    Ibid., Article 4, stating, “The International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies, and their duly authorized personnel, may use, in exceptional circumstances and to facilitate their work, the distinctive emblem referred to in Article 2 of this Protocol.” This emblem is known as the red crystal, and it was created to supplement the previously adopted two emblems, the red cross and the red crescent.

  160. 160.

    Nuclear Weapons Advisory Opinion, 1996 International Court of Justice, paragraphs 75, 79 (July 8). There is evidence that states that were not party to the conventions declared that they would abide by the rules contained in them. For example, all parties to the hostilities in the Korean War agreed to follow the provisions of the conventions, even though they were not party to them. See Howard p. Levie, “History of the Law of War on Land,” International Review of the Red Cross, Issue 838, 2000, pp. 339–350.

  161. 161.

    David Forsythe, “1949 and 1999: Making the Geneva Conventions relevant after the Cold War,” International Review of the Red Cross, Issue 834, 1999, pp. 277–301.

  162. 162.

    Jean p. Pictet, “The New Geneva Conventions for the Protection of War Victims,” American Journal of International Law, Vol. 45, Issue 3, 1951, pp. 462–463.

  163. 163.

    Ibid., p. 463.

  164. 164.

    Ibid., p. 464.

  165. 165.

    Ibid., p. 465.

  166. 166.

    Ibid., p. 465.

  167. 167.

    Ibid., pp. 465–466.

  168. 168.

    Ibid., p. 466.

  169. 169.

    Ibid., p. 467.

  170. 170.

    MacPherson, “Building an International Criminal Court for the 21st Century,” p. 12.

  171. 171.

    L. Kos-Rabcewicz Zubkowski, “The Creation of an International Criminal Court,” in M. Cherif Bassiouni (ed.), International Terrorism and Political Crimes (1975), pp. 519, 521, cited in Lippman, “Towards an International Criminal Court,” p. 91.

  172. 172.

    Ibid., pp. 523–525, cited in Lippman, “Towards an International Criminal Court,” pp. 91–92.

  173. 173.

    The International Convention on the Suppression and Punishment of the Crime of Apartheid, G.A. Res. 3068 (XXVIII), U.N. Doc. A/9030 (1974).

  174. 174.

    Ibid., Article 1. “The States Parties to the present Convention declare that apartheid is a crime against humanity and that inhuman acts resulting from the policies and practices of apartheid and similar policies and practices of racial segregation and discrimination.”

  175. 175.

    Ibid., Article 2. It states that the crime of apartheid applies to, among others, the following acts: “Denial to a member or members of a racial group or groups of the right to life and liberty of person,” “Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part,” “Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour,” and “Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.”

  176. 176.

    Ibid., Article 3.

  177. 177.

    Ibid., Article 4. States that are party to the Convention are required to take any legislative and other measures necessary to suppress and prevent “any encouragement of the crime of apartheid,” and if such a crime is committed, to adopt any measures necessary to prosecute, try and punish the perpetrators of the crime.

  178. 178.

    Ibid., Article 5.

  179. 179.

    Bassiouni, “Establishing an International Criminal Court: Historical Survey,” p. 61.

  180. 180.

    G.A. Res. 34/24, U.N. Doc. A/34/618 (1979).

  181. 181.

    For additional details on this endeavor, see the following article by the authors of the report, M. Cherif Bassiouni and Daniel H. Derby, “Final Report on the Establishment of and International Criminal Court for the Implementation of the Apartheid Convention and Other Relevant International Instruments,” 9 Hofstra Law Review, Vol. 9, Issue, 1981, pp. 523.

  182. 182.

    Draft Convention on the Establishment of an International Penal Tribunal for the Suppression and Punishment of the Crime of Apartheid and other International Crimes, U.N. Doc. E/CN.4/AC/22CRP.19/Rev.1 (December 10, 1980).

  183. 183.

    Ibid., Article 4.

  184. 184.

    Ibid., Article 4(3).

  185. 185.

    Bassiouni, “Establishing an International Criminal Court: Historical Survey,” p. 61.

  186. 186.

    Lippman, “Towards an International Criminal Court,” p. 94.

  187. 187.

    The Convention for the Suppression of Unlawful Seizure of Aircraft, 860 U.N.T.S. 105, entered into force October 14, 1971.

  188. 188.

    Ibid., Article 1.

  189. 189.

    Ibid., Article 2.

  190. 190.

    Ibid., Article 7. It reads as follows: “The Contracting State in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution. Those authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.”

  191. 191.

    Ibid., Articles 6 and 8.

  192. 192.

    Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 974 U.N.T.S. 178, entered into force January 26, 1973.

  193. 193.

    Ibid., Article 1. It contains a long list of acts that could be regarded as offenses punishable under the Convention.

  194. 194.

    Ibid., Article 3.

  195. 195.

    Ibid., Article 7.

  196. 196.

    Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, GAOR 3166(XVIII), entered into force, February 20, 1977.

  197. 197.

    Ibid., Article 1.

  198. 198.

    Ibid., Article 2.

  199. 199.

    Ibid., Article 7.

  200. 200.

    International Convention against the Taking of Hostages, G.A. Res. 146 (XXXIV), U.N. Doc. A/34/46 (1979), entered into force June 3, 1983.

  201. 201.

    Ibid., Article 1.

  202. 202.

    Ibid., Article 2.

  203. 203.

    Ibid., Article 11. It reads as follows: “States Parties shall afford one another the greatest measure of assistance in connexion with criminal proceedings brought in respect of the offences set forth in article 1, including the supply of all evidence at their disposal necessary for the proceedings.”

  204. 204.

    Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, G.A. res. 2391 (XXIII), U.N. Doc. A/7218 (1968), entered into force November 11, 1970.

  205. 205.

    Ibid., Article 1.

  206. 206.

    Ibid., Article 4.

  207. 207.

    Principles of International Co-Operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, G.A. res. 3074 (XXVIII), U.N. Doc. A/9030/Add.1 (1973).

  208. 208.

    Ibid., paragraph 1.

  209. 209.

    Ibid., paragraph 2.

  210. 210.

    Ibid., paragraph 3.

  211. 211.

    Ibid., paragraph 4.

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    Cenap Çakmak

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Çakmak, C. (2017). The Period Between World War II and the End of the Cold War. 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_4

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