Ultimately the International Criminal Court is closer to the Nuremberg model than to that of the International Criminal Tribunal for the Former Yugoslavia.

Discuss.

An army of principles will penetrate where an army of soldiers cannot It will succeed where diplomatic management would fail It is neither the Rhine, the Channel, nor the Ocean, that can arrest its progress It will march on the horizon of the world, and it will conquer.

Thomas Paine, Agrarian Justice[footnoteRef:1] [1: Thomas Paine, Agrarian Justice in Mark Philp (ed), Thomas Paine: Rights of Man, Common Sense (OUP 2008)]

Part I - IntroductionThe Roots of International Criminal Law

Theories and notions of rights have permeated every system of law in human history, ever since the Code of Hammurabi created negative rights in favour of those to whom it applied.[footnoteRef:2] Various instruments and world events have since affirmed the existence of rights. British history, for example, provides a rich selection of such instruments: Magna Carta of 1215 codified various rights, including the principle of legality nulla poena sine lege (literally there can be no penalty without law);[footnoteRef:3] the Habeas Corpus Act 1679 provides a test to the legality of a persons detention;[footnoteRef:4] and the Bill of Rights 1689 secured the sovereignty of Parliament over the monarch.[footnoteRef:5] (This is by no means an exhaustive list). [2: Geoffrey Robertson QC, Crimes Against Humanity: The Struggle for Global Justice (4th edn, Penguin Books 2012) 1 ] [3: Tom Bingham, The Rule of Law (1st edn, Penguin Books 2010) 10] [4: Hilaire Barnett, Constitutional and Administrative Law (8th edn, Routledge 2011) 628-9] [5: Bingham (n 3) 24]

Co-existing alongside the idea of human rights is the idea that individuals may be punished for violations of said rights. This is not a new idea but, rather, one that also has a rich and chequered history. Sandra Jamison cites the trial of Baron Peter von Hagenbach as being possibly the first international criminal trial in history, in which Hagenbach was tried and convicted by the Austrians for crimes against God and man, following his rule over the people of Breisach.[footnoteRef:6] It is also suggested by Geoffrey Robertson that the trial of King Charles I for the crime of tyranny served as a primordial catalyst for what is now tried under the headings of war crimes and crimes against humanity.[footnoteRef:7] [6: Sandra Jamison, A Permanent International Court: A Proposal that Overcomes Past Objections 23 Denv. J. Intl. L. & PolY 419, 421 ] [7: Geoffrey Robertson QC, Ending Impunity: How International Criminal Law Can Put Tyrants on Trial 38 Cornell Intl. L. J. 649, 651 and 652]

The Nuremberg Trials laid the foundations of modern international criminal law.[footnoteRef:8] As one former prosecutor described the process, the trial represented the most significant tribute that power had ever paid to reason.[footnoteRef:9] In fact, the legacy of Nuremberg was so profound that it set a precedent followed by the Hague Tribunals and by the International Criminal Court statute.[footnoteRef:10] Given the groundbreaking jurisprudence advanced by the International Military Tribunal (IMT) at Nuremberg, it will therefore be necessary to conduct a critique of the Nuremberg Trials, as well as the International Criminal Tribunal for the Former Yugoslavia (ICTY), in order to evaluate which of the tribunals the International Criminal Court (ICC) is closer to. [8: Henry T. King, The Legacy of Nuremberg 34 Case W. Res. J. Intl L. 335] [9: ibid] [10: Robertson (n 2) 312]

This paper will attempt to offer a counterpoint to the thesis that the ICC resembles one tribunal model than the other, that instead it is possible to argue that whilst there similarities between each of the tribunal models, there is also sufficient distinction between them to observe a linear, logical progression from one tribunal to another, thus allowing us to chart the development of international criminal law. This will be done in three ways: firstly, we shall consider the similarities between international tribunals; secondly, we shall note which features distinguish them from one another and; thirdly, we shall critique tribunal system as a whole in order to evaluate the ICC in light of contemporary jurisprudence.

Part IICommon Elements of International Courts

One of the most fundamental principles of international law is that of individual criminal responsibility, viz. those responsible for committing heinous crimes should not be allowed to hide behind the veil of the state for protection. When Justice Robert Jackson began to confer with his colleague Hersch Lauterpacht over exactly how the Nazis should be punished, he sought individual accountability above all else.[footnoteRef:11] In his draft speech for the British prosecutor, Sir Hartley Shawcross, Lauterpacht offered the following rationale for the doctrine: [11: King (n 8)]

The State is not an abstract entity. Its rights and duties are the rights and duties of men. It is a salutary principle of the law that politicians who embark upon a war of aggression should not be able to seek immunity behind the intangible personality of the State.[footnoteRef:12] [12: Hersch Lauterpacht, Draft Nuremberg Speeches (2012) 1(1) Cam. J. Intl Comp. L. 42, 62 and 63]

This is a profound statement: it is fundamentally contradictory to Machiavellian philosophy espoused by the Treaty of Westphalia in 1648, a treaty that was,

based on the sovereignty of states and the sovereign immunity of heads of state-kings and princes who could do no wrong-and the inviolability of their ambassadors and diplomats.[footnoteRef:13] [13: Robertson (n 7) 650]

Nuremberg succeeded in this aspect: the constituting charter made it explicitly clear that the official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.[footnoteRef:14] The ICTY achieves this too, with the additional caveat superiors may not be relieved of responsibility for the actions of their subordinates if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.[footnoteRef:15] [14: Article 7, Nuremberg Trial Proceedings Vol. 1, Charter of the International Military Tribunal, available on http://avalon.law.yale.edu/imt/imtconst.asp ] [15: United Nations Security Council, Updated Statute of the International Criminal Tribunal for the Former Yugoslavia Article 7(3)]

Whilst this caveat has the effect of potentially making the liability of such an offence stricter, Robertson offers an enlightening critique. He notes that in the Tadi case,[footnoteRef:16] the ICTY appeared too eager to convict a defendant who was merely aware his crime being committed by others.[footnoteRef:17] He further argues that, [16: Tadi Case (Judgment) ICTY-94-1 (26 January 2000)] [17: Robertson (n 2) 476]

awareness must include some approval policy otherwise the point of individual criminal responsibility is lost if the mental element for the crime is satisfied merely by proof of collective awareness.[footnoteRef:18] [18: ibid 477]

In respect of the ICC, individual criminal responsibility is set out under Article 25 of the Rome Statute.[footnoteRef:19] It is similar in wording to that of the ICTY statute but again we can observe yet further legal augmentation: defendants may be held to be individually responsible for incitement to commit genocide regardless of whether a novus actus interveniens prevents the genocide occurring in the first instance.[footnoteRef:20] [19: Rome Statute of the International Criminal Court, Article 25] [20: ibid at 3(f)]

With regard to the role of the prosecutor in international tribunals, Cassese noted that in the IMT, ICTY and ICC it is the prosecutor who sets proceedings in motion and has broad discretionary power on selecting the crimes on which to concentrate.[footnoteRef:21] The slight exception to this observation is of course the ICC: the prosecutor may be exercise jurisdiction over a situation referred to him under Article 13(b) of the Rome Statute. Alternatively, a state may make a self-referral under a creative interpretation of Article 14 of the Rome Statute[footnoteRef:22] as Schabas notes, this can be to the prosecutors advantage both politically and logistically, [21: Antonio Cassese, International Criminal Law (2nd edn, OUP 2008) 440] [22: William Schabas, Complementarity in Practice: Some Uncomplimentary Thoughts Crim. L. F. (2008) 19(1) 5, 12]

Where the Prosecutor receives a referral from the State in which a crime has been committed, the Prosecutor has the advantage of knowing that that State has the political will to provide his Office with all the cooperation within the country that it is required to give under the statute.[footnoteRef:23] [23: ibid 7]

However, this does raise the awkward issue over the potential for abuse should a state use the self-referral method as a means to pursue its enemies.[footnoteRef:24] Cassese also notes that one common feature of the international tribunal system is it lacks the presence of a jury system. Instead, professional judges will decide the outcome of a particular case. The logic behind this is self-evident it would be practically impossible for any international court to establish the criteria for appointing jurors.[footnoteRef:25] Cassese observes that the trial procedures in international proceedings ostensibly mirror common law proceedings, and that the adversarial system has basically prevailed, but without a jury.[footnoteRef:26] Essentially, this characterizes the proceedings in two ways. Firstly, the trial becomes a truth contest between two parties and, secondly, the trial affords generous amounts of respect to the rights of the defendant by laying down strict procedural safeguards.[footnoteRef:27] [24: ibid 16] [25: Cassese (n 21) 441] [26: ibid 366] [27: ibid 365]

Cassese highlights the quintessentially civil elements of Nuremberg as being

Part IIICritical Distinctions Between International Courts

What distinguishes the Tokyo and Nuremberg trials from the current Bosnian ad hoc Tribunal is the fact that the earlier trials were imposed by victorious nations on defeated nations. The ad hoc tribunal for the Bosnian war crimes, conversely, charges both the victorious and the defeated parties in Bosnia before an impartial tribunal. This distinction may quell some fears that the Bosnian tribunal will be unjust. - Sandra Jamison (Denv. J. Intl L & PolY 23(2) 1995 419, 426 - Primacy of IMT and ICTYs jurisprudence intended to supersede the decisions in national courts, however the ICC operates on the principle of complementarity i.e. assisting where necessary.

Legal BasisJurisdiction International/Non-international conflictsCrimes Against HumanityAggressionSexual CrimesDouble jeopardy protection at ICTYObjective bias at IMT Victors Justice Breach of Natural Justice Russian scandalRight of Appeal in ICTY and ICC at NurembergCompensation is much more generous at ICCEnhanced victim participation at ICC benefit or burden?Prosecutors at IMT and ICTY have little discretion over situation, but more so at ICCSuperior Orders not a defence at Nuremberg but returned in ICC

Part IVContemporary Critique of International Court Systems

Realist jurisprudenceThe trial on trial?Anti African bias?

Part VWhat is the International Criminal Court?