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The first proposal for a permanent international criminal court

Published online by Cambridge University Press:  23 November 2010

Christopher Keith Hall
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Extract

On 15 June 1998, a diplomatic conference in Rome will open a five-week session to remedy one of the long-standing gaps in the implementation system for international humanitarian law by adopting a treaty to establish a permanent international criminal court. Although the current effort within the United Nations to set up a permanent court began half a century ago with a proposal in 1947 by Henri Donnedieu de Vabres, the French judge on the International Military Tribunal at Nuremberg, it is not widely known that the first serious such proposal appears to have been made more than a century and a quarter ago by Gustave Moynier, one of the founders, and longtime President, of the International Committee of the Red Cross. He wrestled with many of the same problems which will face the drafters of the statute at the 1998 diplomatic conference and the strengths and weaknesses of his proposal still have relevance today. This short essay describes that proposal and its origins, reviews the reaction to it of his contemporaries and its impact on subsequent history and concludes with an assessment of the merits of Moynier's plan.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 38 , Issue 322 , March 1998 , pp. 57 - 74
Copyright
Copyright © International Committee of the Red Cross 1998

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References

1 United Nations General Assembly resolution 52/160, of 15 December 1997.

2 On 13 May 1947, Mr Donnedieu de Vabres, as France's representative on the UN General Assembly's Committee on the Progressive Development of International Law and its Codification, proposed the establishment of an international criminal court, and submitted a memorandum on the subject two days later. (Memorandum submitted by the delegate of France, Draft Proposal for the Establishment of an International Court of Criminal Jurisdiction, UN Doc. A/AC. 10/21 (1947)).

3 For a short account of this trial and references to other accounts, see Schwarzenberger, Georg, International law as applied by courts and tribunals, Volume II, Stevens & Sons, London, 1968, pp. 462–466 Google Scholar .

4 Convention for the amelioration of the condition of the wounded in armies in the field, of 22 August 1864 (“the Geneva Convention”).

5 Étude sur la Convention de Genève pour l'amélioration du sort des militaires blessés dans les armées en campagne, Paris, 1870, p. 300 Google Scholar . (English translation of the quotations in: Boissier, Pierre, From Solferino to Tsushima: History of the International Committee of the Red Cross, Henry Dunant Institute, Geneva, 1963, p. 282.Google Scholar )

6 Ibid., pp. 301–302.

7 Gustave Moynier, “Note sur la création d'une institution judiciaire internationale propre à prévenir et à réprimer les infractions a la Convention de Genève”, Bulletin international des Sociétés de secours aux militaires blessés, Comité international, No. 11, avril 1872, p. 122. (Translation of the quotations by the author.)

8 Ibid., pp. 122–131.- For the text of the draft convention see the annex to this article.

9 See the Conventions of Mainz of 1831, B.F.S.P., 2, p. 52, and of Mannheim of 1868, B.F.S.P., 18, p. 1076.

10 Loc. cit. (note 7), p. 126.

11 Ibid., p. 128.

12 Ibid.

13 Ibid.

14 Ibid., p. 127.

15 Ibid.

16 Ibid., p. 128.

17 Rolin-Jaequemyns, Gustave, “Convention de Genève: Note sur le projet de M. Moynier, relatif à l'établissement d'une institution judiciaire internationale, protectrice de la convention”, Revue de droit international et de la législation comparée, IV, 1872, pp. 325–346 Google Scholar .

18 Ferencz, Benjamin, An International Criminal Court: A Step Toward World Peace — A Documentary History and Analysis, 1980, p. 6.Google Scholar

19 See, for example, Bassiouni, M. Cherif, Draft Statute: International Criminal Tribunal, 1993, pp. 1–45 Google Scholar ; Ferencz, loc. cit. (note 18), pp. 1–7; Timothy L.H. McCormack, “From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime”, in The Law of War Crimes: National and International Approaches, Timothy L.H. McCormack & Gerry J. Simpson (Eds), 1997, pp. 31–63; Memorandum by the Secretary-General, Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. A/CN.4/7/Rev. 1, 1949; Vespasian Pella, Towards an International Criminal Court, American Journal of International Law, Vol. 44, 1950, p. 37.

20 It has not been entirely forgotten by the ICRC. See, for example, Pierre Boissier, loc.cit. (note 5), pp. 281–284, for a brief account of the proposal. It was also mentioned in an article by Durand, André, “The role of Gustave Moynier in the founding of the Institute of International Law (1873)”, IRRC, No. 303, November–December 1994, pp. 543–563 Google Scholar .

21 loc. cit. (note 7), p. 129.

22 The Confederate Major Henry Wirz, who was the commandant of a military prison in Andersonville, Georgia, where approximately 14,000 Union prisoners died of disease, inadequate shelter and malnutrition, was convicted by a United States military commission for causing the deaths. See 8 House Exec. Docs., No. 23, serial No. 1381, 40th Cong., 2d Sess. 764 (1868); 8 Amer. State Trials 666, J.D. Lawson ed., 1918.

23 Otherwise known as Instructions for the Government of the Armies of the United States in the Field, by Order of the Secretary of War, Washington, D.C., 24 April 1863.

24 These standards are found in the provisions of a large number of international instruments, including Articles 9, 10 and 11 of the Universal Declaration of Human Rights; Articles 9, 14 and 15 of the International Covenant on Civil and Political Rights; the United Nations Standard Minimum Rules for the Treatment of Prisoners; the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; the United Nations Declaration on the Independence of the Judiciary; the United Nations Basic Principles on the Role of Lawyers and the United Nations Guidelines on the Role of Prosecutors; as well as in regional human rights treaties.

25 See, for example, Lord Palmerston's famous speech to the House of Lords on 25 June 1850 during the Finlay and Pacifico controversy with Greece rejecting the argument that States could not object when their nationals were tortured or persecuted by other States who did the same to their own citizens. 112 Hansard's Parliamentary Debates, 3rd Ser., 1850, 381–388. For further information concerning this incident and the history of the concept of denial of justice from the thirteenth century until Moynier's proposal, see Sohn, Louis B. & Buergenthal, Thomas, International Protection of Human Rights, 1973, pp. 23–58 Google Scholar .

26 For a discussion of the inadequacy of the procedural guarantees in the International Law Commission's draft statute, see Amnesty International, The international criminal court: Making the right choices — Part II: Organizing the court and guaranteeing a fair trial, AI Index: IOR 40/11/97, 1997, pp. 42–92.Google Scholar

27 As of 30 January 1998, no states had used the State complaint procedures in Art. 41 of the International Covenant on Civil and Political Rights; Art.21 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Art. 45 and 61 of the American Convention on Human Rights or Art. 47 African Charter on Human and Peoples' Rights. Only 12 complaints have been filed by States pursuant to Articles 24 and 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Since 1951, when the Convention for the Prevention and Punishment of the Crime of Genocide entered into force, only one State has submitted a dispute to the International Court of Justice pursuant to Art. IX claiming that citizens of another State had committed genocide. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia [Serbia and Montenegro]), filed 20 March 1993.

28 Art. 18 of the Statute of the International Criminal Tribunal for the former Yugoslavia provides that “the Prosecutor shall initiate investigations ex officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.” Art. 17 of the Statute of the International Criminal Tribunal for Rwanda is identical.

29 See Statute of the International Criminal Tribunal for the former Yugoslavia, Art. 10 (2); Statute of the International Criminal Tribunal for Rwanda, Art. 9 (2); draft statute for an international criminal court, Art. 42 (2), Report of the International Law Commission on the work of its forty–sixth session, 2 May-22 July 1994, UN GAOR Supp. (No. 10), p. 43, UN Doc. A/49/10 (1994).

30 Moynier, Gustave, “Note sur la création d'une institution judiciaire internationale propre à prévenir et à réprimer les infractions à la Convention de Genève”, Bulletin international des Sociétés de secours aux militaires blessés, Comité international, No. 11. avril 1872, pp. 129–131 Google Scholar . — Translated from the French original by the ICRC.