A Critical Appraisal of Developments in International Criminal Law After Nuremberg: Part One
The main developments in international criminal law since Nuremberg have taken place over the last 25 years, a quarter of a century, and have been at a structural and a normative level. This era has witnessed the establishment by the Security Council of the ICTY in 1993, ICTR in 1994 and the adoption in 1998 of the Rome Statute, a treaty establishing the International Criminal Court (ICC). Additionally, a number of hybrid courts have been created, for example, the Special Court for Sierra Leone.
The establishment and work of these courts and tribunals has brought about significant developments in the growth of a system of international criminal justice. The principal driver, as well as consequence of these developments, has been reliance upon and confirmation of the Nuremberg principle of individual criminal responsibility for serious breaches of international humanitarian law, including crimes against humanity and genocide. At the level of doctrine at least, impunity has been replaced by accountability. The fact that these courts have, in many cases, examined and underlined the customary character of these crimes has served to emphasize their general acceptance.
While many of these developments may be seen as progress, there are still many imperfections. With progress, of course, comes problems. The purpose of this Paper is to highlight certain aspects of the progress and problems in the development of modern international criminal law at the substantive and procedural levels. I apologise in advance for the disproportionate number of references to the ICTY, which I also refer to as the ‘Tribunal’, but, having worked there for more than 16 years, it is the criminal tribunal with which I am most familiar.
- As I have just alluded to, a central point of progress is the confirmation and development of the Nuremberg principle of individual criminal responsibility. Individuals have been convicted for serious breaches of international humanitarian law and are serving sentences as a result. The ICTY has indicted 161 persons, and so far sentenced 83 for crimes of genocide, grave breaches of the Geneva Conventions, crimes against humanity and violations of the laws and customs of war. As a corollary of this principle, we have witnessed the continued rejection of Head of State immunity as a defence to these crimes. This was included in the Nuremberg (or London) Charter, and continues to be reflected in the statutes of criminal courts. Charles Taylor, an incumbent Head of State at the time of his indictment, unsuccessfully argued immunity before the SCSL in 2004.
- The second point that I wish to discuss is, to my mind, one of the greatest developments in international criminal law since 1945: the emphasis on the rights of the accused. The change since 1945, although a difference in degree, is so radical as to be tantamount to a difference in kind. If an observer of the Nuremberg trials were to watch a trial today, he would find it hard to believe that the accused was charged with the equivalent offences. The major difference emanates from the development and codification of the principle of the right to a fair trial. As I have previously explained in an article in EJIL, “[t]he proceedings of the Nuremberg and Tokyo Tribunals were far more summary than would be consistent with modern international human rights law”. The Nuremberg Charter, unlike the Statutes of the ICTY, ICTR and the ICC, did not contain references to the right to remain silent, the right to be present, the right to appeal and the relevant burden of proof. The ICTR, ICTY and Rome Statutes, on the other hand, set out a plethora of rights that reflect those in Article 14 of the ICCPR.
This development was reflected by the UN Secretary General in his report attached to the UN Security Council (UNSC) Resolution establishing the ICTY, a statement that has been treated by the ICTY as part of the legislative history guiding its actions and has been referred to by the Prosecution, Defence, and the Judges (including in Dissenting Opinions).
It is axiomatic that the International Tribunal must fully respect internationally-recognised standards regarding the rights of the accused at all stages of its proceedings. In the view of the Secretary-General, such internationally-recognised standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights.
Article 20(1) of the ICTY Statute, which is mirrored in Article 64(2) of the Rome Statute, imposes a duty on the Trial Chambers to ensure the fairness and expeditiousness of the trial proceedings as a whole having regard to the interests of both the Defence and the Prosecution. Fairness is the overarching requirement of criminal proceedings. Expeditiousness is an element of fairness. However, in discharging that obligation the Trial Chambers must ensure full respect for the rights of the accused. Significantly, the protection of victims and witnesses is not ignored in this fundamental provision, but the phrase “due regard,” contrasted with “full respect” suggests a kind of hierarchy in treatment.
This development is discussed by Theodor Meron, former President of the ICTY and current President of the MICT, in his book The Humanization of International Law, specifically as part of Meron’s discussion of the humanisation of the law of war.
Meron discusses, in this context, developments arising from the conclusion of the Geneva Conventions 1949 and the Additional Protocols 1977. The importance of these conventions for the advance they represent in humanitarian protections during war cannot be overstressed; they have been extensively relied upon by courts. To give one example of their importance: common Article 3 of the Geneva Conventions was the first codification of the laws of war applicable in an “internal conflict other than a civil war”. It establishes a floor of treatment that States Parties (and other groups which are bound) must afford to persons in all types of conflict. It provides that protected persons shall be treated “humanely”, and prohibits offences such as violence to life and person, taking of hostages, outrages on personal dignity and mandates a minimum degree of due process. The ICJ, in the Paramilitaries case, stated that common Article 3 reflected “elementary considerations of humanity”.
A general comment on the post-Nuremberg era is that whereas Nuremberg was a victors’ court with the judges appointed by the US, UK, France and the Soviet Union, the judges of today’s international criminal courts are, in respect of the ICTY and ICTR, elected by the full membership of the UN and, in respect of the ICC, by the 124 States Parties to the Rome Statute, and must have certain specified qualifications. In that respect today’s courts are much more transparent and democratic in their method of election and more international in character than the Nuremberg and Tokyo Tribunals.
- The third point of progress that I wish to highlight relates to the principle of legality. At Nuremberg, the principle of legality was characterised as a “principle of justice”, which was satisfied if the defendants knew what they were doing was wrong. The definition of the principle of legality adopted by the ICTY imposes a higher bar, as does the definition in the Rome Statute. Today, the principle is one of the main features of international criminal law and represents a fundamental human right. It is enshrined in Article 15(1) of the ICCPR, which prohibits convictions in respect of an act or omission that did not constitute a criminal offence at the time it was committed.
As Tribunals have often prosecuted an alleged crime long after the relevant act or omission took place, the principle of legality has necessitated that the Tribunals determine whether or not the offence in question was a crime at the time it was committed. As such, customary international law has been a particularly important source of substantive criminal law at the ICTY and the ICTR. The ICTY in Hadžihasonović noted that the principle of legality was “widely recognized as a peremptory norm of international law”, which would be violated by an expansive reading of criminal law texts.. Article 22 of the Rome Statute reflects a similar approach, noting that the definition of crimes shall be strictly construed. Whether specific crimes or modes of liability, such as joint criminal enterprise, “reflect customary international law” and thus accord with the principle of legality, has been the subject of much debate.
This piece will be continued in two forthcoming installments, as part of a three-part series.
 ICTY, Key Figures of the Cases, <http://www.icty.org/en/cases/key-figures-cases> Accessed 11 October 2016.
 SCSL, Homepage, <http://www.rscsl.org/Taylor.html> Accessed 11 October 2016.
 Patrick L. Robinson, “Ensuring Fair and Expeditious Trials at the International Criminal Tribunal for the Former Yugoslavia”, European Journal of International Law 11:3 (2000), p. 584.
 Prosecutor v. Zejnil Delalić et al., ICTY Trial Chamber Decision on the Motions by the Prosecution, 28 April 1997, para. 26.
 UN Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (3 May 1993) S/25704, p. 27, para. 106.
 Theodor Meron, The Humanization of International Law, 1st ed. Nijhoff: Brill Nijhof, 2006.
 James E. Bond, “Internal Conflict and Article Three of the Geneva Conventions”, Denver Law Journal 48:2 (1971), pp. 264-265.
 Military and Paramilitary Activities (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p. 114, para. 218.
 Updated Statute of the ICTY, Article 13 and Rome Statute of the International Criminal Court, Article 36(3), July 12, 1998, 2187 UNTS 900.
 Judgment of the International Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30th September and 1st October 1946, London, HMSO, 1946, pp. 38-39. The discussion took place in the context of whether aggression was a crime – the Tribunal also pointed to prior treaties on this point.
 Prosecutor v. Enver Hadžihasonović et al., ICTY Appeals Chamber Decision, 16 July 2003, para. 55
 Prosecutor v. Zdravko Tolimir, ICTY Appeals Chamber Decision, 8 April 2015, p. 119, para. 282.
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