As the International Criminal Court issued an arrest warrant for the Russian Federation’s President Vladimir Putin, we couldn’t help but wonder: how did the international community came to pursue criminal actions? What process took us to establish a permanent juridical body with the purpose of prosecuting those who committed serious violations of international law in 1998? Are Head of States and national authorities, de facto, still immune?
By Giulia del Re
The Rome Statute and the International Criminal Court
The Rome Statute is the constitutive document of the International Criminal Court, signed on the occasion of the Rome Diplomatic Conference of Plenipotentiaries.
The journey that took to the creation of the first permanent international criminal tribunal has been particularly long and troubled, and its origins can be reconducted to the end of the First World War, when the Treaty of Versailles provided the prosecution of Kaiser Wilhelm II by an international tribunal. The sovereign found refuge in Netherlands and has never been prosecuted, while a few German Officers were prosecuted by the German Supreme Court. This event led to years of grudge against the Allied, whose officers had never been prosecuted for the same crimes. A justice for losers only.
Even more troublesome has been, on that glance, the international community’s failure to pursue the mass killing of Armenians, in Turkey. Even after the recommendation to pursue Turkish Officials by the 1919 Commission on the Responsibilities of the Authors of the War and Enforcement of Penalties for Violations of the Laws and Customs of War, the prosecution was abandoned. However, the legal concept of “crimes against humanity” became a legal argument for the first time ever. With the 1927 Luanne Treaty, Turks gained amnesty for the atrocities committed against Armenians.
A first step to establish an International Criminal Forum has been made in 1937, when an Annexed Protocol to the Convention Against Terrorism, adopted under the auspices of the League of Nations, was signed but never ratified.
WWII: a watershed
After the Second World War, the Allies established two international tribunals: Nuremberg and Tokyo. These international trials had an enormous effect on the evolution of international criminal justice, setting, for the first time, that Heads of State and military authorities are called to respond to charges of acts contrary to the collective morale, and that acting pursuant an order of the Government or a superior could never relieve anyone from responsibility under international law. The International Military Tribunal (IMT) has been established in August 1945, when the four major Allied powers- France, Soviet Union, United Kingdom and United States – signed the London Agreement and the Nuremberg Charter, defining the tribunal’s functions, constitution and jurisdiction, which was later annexed to the London Agreement.
According to the IMT Charter, the tribunal was composed by one judge from each of the four allied powers; its jurisdiction was limited to Crimes Against Peace, War Crimes and Crimes Against Humanity. It was active from November 1945 to October 1946.
The Tribunal indicted twenty-two Nazi political and military leaders, including Hermann Goering, Joachim von Ribbentrop and Alfred Rosenberg, and seven Nazi organizations, that were declared “criminal”, including the Leadership Corps of the Nazi party, the “SS” unit, for carrying out the forced transfer, enslavement, and extermination of millions of persons. Moreover, the Nazi security police (‘SD’) and the Nazi secret police (‘Gestapo’) were considered guilty of having instituted slavery labor programs and deported several civilians in concentration camps for reasons related to race, political opinion or sexual orientation. In addition, the International Military Tribunal for the Far East (IMTFE) was created in 1946 in Tokyo. Unlike the IMT, it has not been established by an international agreement, but emerged from 1945 Potsdam Declaration, with which China, United Kingdom and United States demanded Japan’s unconditional surrender and proclaimed the need to pursue all war criminals. In December 1945, during the Moscow Conference Soviet Union, United Kingdom and United States agreed on the structure of the occupation of Japan, according General Mc Arthur the authority to supervise Japan’s surrender and its control and occupation. As an act pursuant to this authority, in 1946 Mc Arthur proclaimed the establishment of the IMTFE. IMTFE’s jurisdiction covered the same crimes listed in the Nuremberg Charter, but over a longer period of time: from 1931 Japanese Manchuria invasion to 1945’s surrender. The trial lasted from May 1946 to November 1948. Emperor Hirohito and other members of the imperial family were permitted to retain their position on the throne, thereby not being indicted.
The Nuremberg and Tokyo tribunals gave an enormous contribution to the development of international criminal law and became the model for a series of international criminal tribunals established at the beginning of the 1990s. However, the absence of consolidated precedents, together with their establishment after the commission of the facts, violating the ex post facto prohibition principle and, according to some scholars, even the nullum crimen sine lege principle too, weakened the legality of the whole process.
The ’90s: new optimism towards UN Security Council’s initiatives
The ‘90s were of formidable changes in the international community’s conscience and willing of the need of international bodies to oversee the respect of international law principles. The end of the Cold War opened a period of cooperation between the East and the West, which was unthinkable right few years before. That was then the favorable ground for the establishment of the International Criminal Tribunal for Former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Both tribunals were established by a Security Council’s Resolution under Chapter VII. ICTY was established with Resolution 808 (1993) proclaiming the establishment of an international judicial body to prosecute “persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia since 1991”, and Resolution 827 (1993) with which the Security Council adopted a commented report produced by UN Secretary General.
The jurisdiction of the Court was limited to severe breaches of 1949 Geneva Convention, violations of the customary law of war, genocide and crimes against humanity (Articles 2-5 of the Court’s Statute). Unlike what will be stated in the Rome Statute, both ICTY and ICTR have concurrent jurisdiction with regard to the prosecution of accused persons, but primacy over the national judicial bodies. No one can be prosecuted by a national court for crimes listed in the Statute if already tried by the International Tribunal. Conversely, the International Tribunal can trial the same person after a national court if the proceeding was not characterized by impartiality, diligence and independency.
As stressed on occasion of the Tadic case, since the Court has been established by a Security Council’s Resolution acting under Chapter VII, all member States were bound to cooperate with it and recognize its jurisdiction in order to restore international peace and security.
The International Criminal Tribunal for Rwanda has been established by Resolution 955 (1994). The Statute of the Court has been annexed to the Security Council’s Resolution and presented many points in common with the ICTY’s.
The crimes over which the Court had jurisdiction were genocide, crimes against humanity (murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial or religious ground and other inhumane acts committed in the context of systematic attack against the population) and violations of the international humanitarian law, with regard of Article 3 common to the Geneva Conventions. The Tribunal had jurisdiction upon crimes committed between 1 January 1994 and 31 December 1994. Both the Tribunals gave an enormous contribution to the constitution of a permanent judicial body and to the definition of the crimes under its jurisdiction: in the Akayesu case, for example, for the first time the interpretation of the definition of the crime of genocide, as defined in 1948 Genocide Convention, has been given by an International Tribunal.
Together with giving a radiant example of the achievements possible for an international jurisdiction upon the most serious crimes, ICTY and ICTR also showed all the limits of the Security Council’s ad hoc approach. Hence, the tribunals were extremely expensive and quickly led to a fatigue for the UN’s finances. Moreover, the tribunal’s jurisdiction was limited to atrocities committed in circumscribed circumstances, so that for an international jurisdiction to apply to future cases it would have needed for other tribunals to be created by an ad hoc decision of the Security Council. As evidence shows, the possibility for any of the five permanent members to apply their veto to paralyze the creation of any tribunal threatening their interests was a deterrent for the international community to fully pursue that model. A more stable and equitable solution was therefore necessary.
The International Criminal Court
Established in 1998, the International Criminal Court was intended to be an independent judicial body, with the power to adjudicate on war crimes, crimes against humanity and genocide (Article 5 Rome Statute) in a fair, impartial and independent way.
The principle of complementarity inspires the nature of the relationship between the ICC and the national judicial bodies, so that the international justice only intervenes when the national level is unwilling or unable to investigate such serious violations. The ICC can, thus, be defined as a Court of “last resort”. Its relationship with United Nations is strongly and detailly defined by the 2004 Relationship Agreement between UN and ICC that «recognized the Court as an independent permanent judicial institution which […] has international legal personality» and declares that «The United Nations and the Court respect each other’s status and mandate». The preamble to the Rome Statute declares that justice is a mean to maintain peace and security, and that severe crimes could not remain unpunished because they «threaten the peace, security and well-being of the world».
The highest will of the international community when establishing a permanent judicial body to deal with such serious violations of the international system, was «to put an end to impunity for the perpetrators of these crime and thus to contribute to the prevention of these crimes». With this aim in mind, authors of the Rome Statute formulated the Article 13 (b), whose provision aim to confer to the UN Security Council the power to issue referrals to the Court. In the case in which he jurisdiction would have only been limited to acts committed by a national or over the territory of a State Party or of a State that accepted the Court’s jurisdiction, it would have become too difficult to pursue criminals and those would have gone unpunished.
Although the remedies that the authors of the Rome Statute conceived in order to assure a truly universal and impartial justice, numerous examples show all the limits of such a mechanism.
After the US occupation of Afghanistan, for example, the International Criminal Court Chief Prosecutor initiated, in 2017, an inquiry aimed to investigate upon unlawful activities committed both by Taliban groups close to Haqqani network and their intelligence, and by American troops and the CIA too. The American reaction was so strong that it paralysed the Court’s activities: visas of any employee of the Court have been denied and sanctions against officers and even against any State who would have cooperated with the investigations were threaten. By the end of 2022, a request to reopen the procedure has been submitted by the new Chief Prosecutor; right when an investigation upon crimes performed by Russian forces in Ukraine had started. By the way, it seems hard to imagine how big powers could, on one hand, salute the prospect of a universal jurisdiction to be applied to Vladimir Putin’s case with such an enthusiasm and, on the other hand, so harshly limit the action of the same body when it is called to investigate upon their actions. What confidence would such a mechanism enjoy if facts would substantiate the idea, yet widespread among some members of the international community, that justice is much more “just” for those who have the political strength to impose their will? The danger is, as yet denounced by NGOs like Amnesty International and Human Rights Watch, that justice could find itself handcuffed by politics: in occasion of the Iraqi occupation by US- led coalition, in particular, several NGOs submitted pleas both to the US Government, to set up an independent inquiry committee, and to the International Criminal Court too, with no outcome. Violations of human rights committed at the expenses of Abu Ghraib prisoners have been documented by photographs that the whole world had the chance to see, and several reports have been written by independent research teams.
If, today, part of the international community is enthusiast at the idea that an international body could prosecute a Head of State for the atrocities committed, where it seems not plausible that national justice could be willing or able to act independently, we should be perplexed at the idea that this might happen under the pressure of the same forces that were so effective to avoid submitting themselves to the same jurisdiction they are now invoking; and this is not because of an abstract sense of justice, but because the credibility of the whole system is at stake.
The risk is to undermine confidence that the whole system enjoys, and it is hard to figure out a way to overcome the problem if not by prosecuting all crimes with the same belief, and that there will be no passports of immunity.
 (1993) United Nations Security Council’s Resolution 808; available at https://www.icty.org/x/file/Legal%20Library/Statute/statute_808_1993_en.pdf
 (2004) Negotiated Relationship Agreement between the International Criminal Court and the United Nations, Article 2 Paragraph 1; available at https://legal.un.org/ola/media/UN-ICC_Cooperation/UN-ICC%20Relationship%20Agreement.pdf
 Ibidem, Paragraph 2
 (1998) Rome Statute, Preamble; available at https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf