Professor of Law, President, International Human Rights Law Institute, DePaul University; President, International Association of Penal Law; President, International Institute of Higher Studies in Criminal Sciences; Vice-Chairman, United Nations Preparatory Committee on the Establishment of an International Criminal Court; Former Chairman, Commission of Experts Established by the Security Council to Investigate Violations of International Humanitarian Law in the Former Yugoslavia. The views expressed herein are solely the author's.
SUMMARY: ... General MacArthur was content with the symbolic post-war prosecutions but beyond that, his interest, as well as that of the U.S. Government, was to strengthen peace through a stable Japan. ...
The history and record of international criminal investigation and adjudication bodies, from the Treaty of Versailles to the International Criminal Court for Rwanda, clearly demonstrate the need to establish a permanent international criminal court. In the absence of such a court, not only have many atrocities gone unpunished, but every one of the ad hoc tribunals and investigations that has been created has suffered from the competing interests of politics or the influence of a changed geopolitical situation. As the history of the United Nations' efforts to establish a permanent international criminal court and a code of crimes evince, this task is controversial and complex. Nevertheless, the lessons of the past seventy-five years dictate its fundamental importance.
Between 1919 and 1994 there were five ad hoc international investigation commissions, four ad hoc international criminal tribunals, and three internationally mandated or authorized national prosecutions arising out of World War I and World War II. These processes were established by different legal means with varying mandates, many of them producing results contrary to those originally contemplated.
The investigations and prosecutions were established to appease public demand for a response to the tragic events and shocking conduct during armed conflicts. Despite public pressure demanding justice, [*12] investigative and adjudicating bodies were established for only a few international conflicts. Domestic conflicts, no matter how brutal, drew even less attention from the world's major powers, whose political will has been imperative to the establishment of such bodies. The Rwanda Tribunal, the only tribunal authorized to prosecute genocide, crimes against humanity, and war crimes committed during a non-international armed conflict, has had little success to date.
Even when tribunals and investigative commissions were established, their professed goal--the pursuit of justice by independent, effective and fair methods and procedures--was seldom upheld. Instead, the establishment and administration of these bodies were subordinated to realpolitik goals. They were, in varying degrees, controlled or influenced by political considerations, at times exercised overtly and, at other times, through more subtle techniques. Political decisions often led to the logistical, personnel, and legal difficulties that contributed to the malfunctioning of the tribunals. Bureaucratic and financial methods were used to direct, curtail, check, and ultimately terminate these bodies for political reasons. Politicians often intentionally allowed time to pass so that public interest in justice waned, public pressure eroded, and they were no longer compelled to ensure the success of the bodies.
A telling example of the interplay between law and politics characteristic of these bodies is the allocation of responsibility during the different trial stages. Frequently, there was total separation between the establishment of the bodies and their administration. Similarly, the investigation stage was separated from the adjudication, and in each case, without exception, the judicial bodies that pronounced sentences were terminated immediately after the adjudication. The sentence execution stage, involving pardons and releases before the full execution of sentences, was typically the responsibility of a political administrator whose decisions were not necessarily motivated by justice concerns.
This compartmentalization contributes to the over-all difficulty of assessing the nature, intent, and impact of the political decisions which created, administered, and ended these bodies. Those who were present at one stage were rarely present at subsequent ones. Furthermore, institutional records documenting the various stages seldom reflect the activity occurring behind the political curtain. Persons inside the political process are reluctant to betray those who appointed them to their positions by divulging the political considerations that influence the operation of the bodies. The true history of these institutions is therefore often incomplete.
If the lessons of the past are to instruct the course of the future, then the creation of a permanent system of international criminal [*13] justice with a continuous institutional memory is imperative. But such a system must be independent, fair and effective, in order to avoid the pitfalls experienced in the past. Above all, it must be safeguarded from the vagaries of realpolitik. Compromise is the art of politics, not of justice.
These points will be illustrated through an examination of the previous ad hoc investigative commissions and international criminal tribunals. This Article then reviews the United Nations' efforts to establish an international criminal court and to codify certain international crimes.
I. AD HOC INTERNATIONAL INVESTIGATIVE COMMISSIONS AND INTERNATIONAL CRIMINAL TRIBUNALS SINCE 1919
There have been five international investigative commissions, n1 four ad hoc international tribunals, n2 and three internationally mandated prosecutions n3 since 1919. Because all these processes were either institutionally [*14] linked or related by reason to the conflict which gave rise to their establishment, they are best understood through an historical analysis.
A. The 1919 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties
The first international investigative commission was established at the end of World War I by the victorious Allies when the Allied and Associated Powers convened the 1919 Preliminary Peace Conference in Paris. n4 At the Conference, the representatives of the Allies negotiated Germany's surrender and a peace treaty, whose terms they dictated. Much of the debate among the Allies addressed issues concerning the prosecution of Germany's Kaiser Wilhelm II, German war criminals, and Turkish officials for "crimes against the laws of humanity." n5 Ultimately, after much compromise, the Allied representatives agreed on the terms of the Treaty of Peace Between the Allied and Associated Powers and Germany, concluded at Versailles on 28 June 1919. n6 Article 227 of the Treaty provided for the creation of an ad hoc international criminal tribunal to prosecute Kaiser Wilhelm II for [*15] initiating the war. n7 The Treaty also provided in Articles 228 and 229 for the prosecution of German military personnel accused of violating the laws and customs of war before Allied Military Tribunals or before the Military Courts of any of the Allies. n8
The official inter-governmental Commission established by the Preliminary Peace Conference was called the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties. n9 Its mandate was to investigate and report on the responsibility of those who had initiated the war and those who had violated the laws and customs of war in order to prosecute them. n10 The Commission held closed meetings for two months and conducted intensive investigations. n11 This work was supposed to culminate in the charging of named individuals for specific war crimes. Based on subsequent developments in the administration of the Commission's mandate, however, it is reasonable to question whether the Allies' intentions were to pursue justice or whether they only intended to use symbols of justice to achieve political ends.
[*16] The Commission completed its report in 1920 and submitted a list of 895 alleged war criminals, n12 who were to be tried by the Allied tribunal. The Commission also sought to charge Turkish officials and other individuals for "crimes against the laws of humanity" n13 based on the so-called Martens Clause contained in the Preamble of the 1907 Hague Convention. n14 That clause states:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. n15
In reliance upon the Martens Clause, the Convention contained only a portion of the laws of humanity and other general principles of law which should be applicable to armed conflicts. That partial codification did not reject the rest of the potentially applicable positive international law, but merely deferred codification until another time when [*17] greater political consensus could be obtained. The Commission felt justified in relying upon the Martens Clause to develop the charge of "crimes against the laws of humanity." The United States and Japan, however, specifically opposed it on the grounds that the Commission's mandate was to investigate violations of the laws and customs of war and not the uncodified, so-called "laws of humanity." n16
Although charges were to be brought against Turkish officials for the large-scale killing of Armenians in Turkey in 1915, no action was ever taken. n17 These charges were based on the authority of the Treaty of Sevres of 1920 between the Allies and Turkey, n18 which provided for Turkey's surrender of accused persons to be tried presumably for "crimes against the laws of humanity." But the Treaty of Sevres was not ratified and its provisions were never implemented. Instead, it was replaced in 1923 by the Treaty of Lausanne, n19 which did not contain any provisions on prosecutions, but rather had an unpublicized annex granting Turkish officials amnesty. n20
Because the Allies were concerned about the stability of Turkey and eager not to alienate the new Turkish ruling elite which was partial to the western powers, Turkish officials were given impunity for war crimes. At that time, the Bolshevik Revolution of 1917 which toppled the Tsarist regime was causing concern in England and France. Turkey, on the border of the new communist regime, and the controlling power over the Bosphorus and Dardanelles Straits, through which the Russian Navy would have to transit to reach the Mediterranean from the Black Sea, was needed in the "western camp." Political concerns, thus, prevailed over the pursuit of justice.
[*18] B. The Allies' Failure to Establish Prosecutions Pursuant to the Treaty of Versailles
The Treaty of Versailles did not link the 1919 Commission to eventual prosecutions recognized under its Articles 228 and 229, resulting in an institutional vacuum between the investigation and prosecution stage. Therefore, if the outcome of investigating was no longer politically useful, it could be reduced to a report that was easy to ignore and ultimately forget. If, however, the investigation outcome became politically useful, it could be used for eventual prosecutions.
The two major provisions of the Treaty of Versailles, Articles 227 and 228, were not implemented. Regarding prosecution of the Kaiser under Article 227, the Kaiser sought refuge in the Netherlands, and through diplomatic channels the Allies discussed the possibility of an eventual request for the Kaiser's surrender. The response from the Netherlands, whose sitting monarch was the Kaiser's cousin, was not positive. As a result, the Allies did not formally request his extradition, and there was no formal judicial or administrative process in which the Kaiser's extradition was denied. n21 The Allies blamed the Netherlands, and some saw this as a way to avoid establishing a tribunal pursuant to Article 227. The Allies were not ready to create the precedent of prosecuting a Head of State for a new international crime. Indeed, this was evident in the choice of words used by the Allies in drafting Article 227, authored primarily by representatives of Great Britain:
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties.
[*19] A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence . . . .
In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality . . . .
The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial. n22
The text does not refer to a known international crime, but characterizes the purported crime of aggression as a "political" crime. Thus, the Dutch Government had a valid legal basis to reject the Allies' attempt to secure the surrender of the Kaiser for trial if such a request was to be formally presented. It was not. Article 227, quite possibly, was intended to fail. It offered a concession to the European masses, who saw the Kaiser as an ogre of war, and to the French and Belgian Governments, who wanted to humiliate Germany for initiating the war.
As for the prosecutions intended by Article 228, by 1921, the zest of the Allies to set up joint or even separate military tribunals had waned, and new developments in Europe required that Germany not be further humiliated. In order to avoid jeopardizing the stability of the already vulnerable Weimar Republic, n23 the Allies asked Germany to prosecute a limited number of war criminals before the Reichsgericht (the Supreme Court of Germany) in Leipzig instead of establishing an Allied Tribunal, as provided for in Article 228. n24
C. The Leipzig Trials
In response to the Allied request to undertake prosecutions, Germany, which had previously passed a national law to implement provisions of Articles 228 and 229, passed new legislation to assume jurisdiction under its national laws in order to prosecute accused offenders before its Supreme Court, sitting at Leipzig. Under German [*20] law, the Procurator General of the Supreme Court had the right to decide which cases would be brought to trial. The Allies, therefore, had to submit their cases, including evidence, to the Procurator General who had prosecutorial discretion. From the original list of 895 prepared by the 1919 Commission, the Allies submitted only forty-five names for prosecution. n25 Despite the 1919 Commission's extensive report and the Allies' supplemental information conveyed to the German Procurator General, only twelve military officers were ultimately prosecuted before the Reichsgericht. n26 There were no other national or Allied proceedings against any of those accused of war crimes by the 1919 Commission or any of the cases rejected for prosecution by the German Procurator General.
Although the armistice between Germany and the Allies was signed on November 11, 1919, the trials at Leipzig did not begin until May 23, 1921. n27 By 1923, the Allies' political will to pursue justice by prosecuting and punishing those who had violated international humanitarian law all but dissolved. International public interest dissipated, and domestic political concerns in the Allied countries overshadowed any remaining concerns that some academics, intellectuals, and public-spirited citizens still had in Belgium, France, and Great Britain. By then, the United States was in the throes of isolationism, with its rejection of President Woodrow Wilson's internationalist views, evidenced by Congress' refusal to have the United States become part of the League of Nations.
The Leipzig trials exemplified the sacrifice of justice on the altars of international and domestic politics of the Allies. n28 The Treaty commitment to try and punish offenders if Germany failed to do so was never carried out. The political leaders of the major powers of that time were more concerned with ensuring the future peace of Europe than pursuing [*21] justice. n29 Indeed, it was a common belief that World War I was "the war to end all wars," and that the League of Nations would usher a new world order that would prevent future wars. The Allies, however, missed the opportunity to establish an international system of justice that would have functioned independently of political considerations to ensure uncompromised justice.
The weak processes of international criminal justice following World War I not only failed to deter the military leaders who initiated World War II, but enhanced their cynicism. During a 1939 speech, Hitler reportedly stated in connection with his plans to "cleanse" (his early euphemism for exterminate) Jews, Gypsies, and others from the Third Reich: "Who after all is today speaking about the destruction of the Armenians?" n30 Hitler's words reflect a view still common today that the rule of might overshadows the rule of law. n31
D. The 1943 United Nations War Crimes Commission
The atrocities of World War II compelled the need for international prosecutions after the Allied victory. In 1942, the Allied Powers signed an agreement at the Palace of St. James, n32 establishing the United Nations War Crimes Commission (UNWCC). n33 The Declaration of St. James was the first step leading to the establishment of the International Military Tribunal (IMT) at Nuremberg. Despite high expectations for the UNWCC, for all practical purposes this inter-governmental, treaty-created, investigative body was subordinated to political [*22] considerations and ultimately relegated to a role far inferior to that which was expected by the Allies.
The UNWCC was comprised of representatives from seventeen nations, most of which were governments in exile possessing only limited powers. n34 Given the uncertain future of these exiled governments, the UNWCC had little political influence and support. n35 Under the aegis of the Allied Powers, the UNWCC was to investigate and obtain evidence of war crimes. n36 Despite this mandate, the Allied Powers did not provide the UNWCC with an investigatory staff, adequate support staff, or sufficient funds to conduct its work. In fact, within a few months of its creation, the first Chairman of the UNWCC, Sir Cecil Hurst, announced that the Commission would be unable to fulfill its mandate. n37 The UNWCC relied on governments to submit reports, but by the end of 1942 it had only received seventy cases which contained incomplete or insubstantial information. Even after the chairman's exhortations to Allied Governments, there were very few new government submissions. n38
Only after the Allies liberated German-occupied territories did they realize the extent of the atrocities committed. Thereafter, British and U.S. forces began to develop a list of suspected war criminals in order to separate them from other liberated prisoners. n39 At that point, the British Government began to press the UNWCC to complete its work. n40
Despite the initial lack of cooperation from and among the various governments, the UNWCC was able to achieve remarkable results in amassing 8,178 "dossiers" on alleged war criminals and serving as a clearinghouse of information among governments. n41 Although the UNWCC collected information pertaining to allegations of war crimes, it was not institutionally linked to the IMT or to the Subsequent Proceedings by the Allied occupation forces in Germany pursuant to Allied Control Council Law No. 10, each of which had its own investigative teams, n42 [*23] nor was it linked to the International Military Tribunal for the Far East (IMTFE) and the Allied Military Tribunals or Commissions in the Far East. However, the information that the UNWCC collected was relied upon by various governments in subsequent national prosecutions. n43
Between 1942 and 1945, political support for the body waned. As the United States began to dominate the IMT proceedings and conduct its Subsequent Proceedings pursuant to CCL No. 10 n44 in the very same courthouse at Nuremberg, U.S. support for the UNWCC evaporated. The UNWCC's moral influence over governments to compel cooperation in the pursuit of accused war criminals and to either prosecute or extradite such persons was substantially eroded. This was particularly evident with respect to those accused Italian war criminals who were never prosecuted. n45
E. The International Military Tribunal at Nuremberg
While the UNWCC was collecting evidence, the Four Major Allied Powers had to reach a decision with respect to the prosecution and punishment of war criminals, particularly the leaders of the Nazi regime, as called for by the Moscow Declaration signed in 1943 by Churchill, Roosevelt, and Stalin. n46 Britain initially favored summary execution of "major" war criminals, such as Hitler or Himmler on the basis that "their 'guilt was so black' that it was 'beyond the scope of any judicial process.'" n47 In comparison, as early as the discussions at the Palace of St. James in 1942, Stalin advocated a special international [*24] tribunal for prosecuting Hitler, his close advisers, and senior military leaders. n48 Similarly, the United States and France both preferred the establishment of an international tribunal to prosecute war criminals. n49 The Americans and French wanted the tribunal to record history, educate the world, and serve as a future deterrent. Great Britain was fearful that fair procedures would allow the accused to use the tribunal as a forum for propaganda and self-justification. Essentially because of the United States' insistence through President Truman and Justice Robert Jackson, the idea of an international criminal tribunal came into fruition.
The proceedings were not without flaws. The U.S.S.R. used the tribunal to rewrite history: they sat in judgment over Germans accused of crimes for which the Soviet Union was responsible, like the disappearance of approximately 15,000 Polish prisoners, including between 8,300 and 8,400 Polish officers. n50 Moreover, Britain's fears that the IMT proceedings would provide the accused with a platform for self-justification were validated when Goering outdid Robert Jackson during his cross-examination and as his lawyer harangued the Tribunal for two days. n51 Nevertheless, the evidence of the horrible acts committed overshadowed anything that the defendants or their lawyers had to say. Ultimately, the higher values and goals sought to be achieved by the United States, France, and Great Britain prevailed.
Because the four major Allied Powers had different national criminal procedures, drafting the IMT Charter was particularly difficult. n52 While British and American procedures were both adversarial in nature and [*25] based on the common law, France had a civil law system, and the Soviet Union had its own new brand of "socialist justice." n53 The representatives of the Allies reconciled their different legal systems in a mixed process. n54 The London Agreement of August 8, 1945 established the IMT and had an annex containing the charter of the new tribunal. n55 The legal amalgamation, according to Justice Jackson, worked to the advantage of the defendants. They could, for example, take the stand and testify under oath in their own defense or simply present an unsworn statement to the court at the end of a trial without submitting to cross-examination. n56
The drafters were also faced with the arduous task of defining the crimes for which the defendants would be prosecuted. The Charter ultimately provided in Article 6 for the prosecution of the following substantive crimes: (a) crimes against peace; (b) war crimes; and (c) crimes [*26] against humanity. n57 From the perspective of the principles of legality, the easiest to define of the three crimes was "war crimes." War crimes in Article 6(b) included customary law as identified, inter alia, by reference to the 1907 Hague Convention n58 and conventional law as evidenced in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War. n59 A more difficult legal issue was whether "crimes against humanity" under Article 6(c) existed under a combination of sources of international law, namely conventions, custom, and general principles of law. n60 Because "crimes against humanity" had not been a part of treaty law, the Allies needed to avoid a rigid interpretation of the principles of legality in order to avoid enacting ex post facto legislation that could be successfully challenged in court. Thus, the rationale for "crimes against humanity" was predicated on a theory of jurisdictional extension of war crimes. The reasoning was that war crimes applied to certain protected persons, namely civilians, in time of war between belligerent states, and "crimes against humanity" merely extended the same "war crimes" proscriptions to the same category of protected persons within a particular state, provided it is linked to the initiation and conduct of aggressive war or to war crimes. n61 As a result of this interpretation, crimes committed before 1939 were excluded from prosecution.
It is evident from the adoption of Article 6(c) that the United States radically changed its position from that taken before the 1919 Commission that "crimes against the laws of humanity" did not exist in positive international law. n62 Yet no legal development took place between 1919 and 1945 that could have explained this change of position. In the case of Nazi atrocities, the facts drove the law, and politics were also a consideration.
Prosecution for "crimes against peace" was without legal precedent, save for the failed attempt after World War I to prosecute the Kaiser under Article 227 of the Treaty of Versailles. n63 Article 6(a) of the Charter provided for the prosecution of those who directed or participated [*27] in a war of aggression against other nations in violation of treaties and the principles of international law. This was the best legal basis the Allies could come up with. n64 The Soviet Union wanted to include the phrase "by the European Axis," n65 in order to make the initiation of a war of aggression a crime limited to the leaders of the European Axis and avoid the application of that same norm to any of its own conduct. n66 Justice Jackson, then representative of the United States at the London Conference, prevailed in his view that the limiting phrase should not be included. Jackson stated that the American representatives would not draft a law that would be akin to a "bill of attainder," which is prohibited by the United States Constitution n67 and that the prohibition against aggression is universal and could also be applied against the United States. n68 The United States had thus also changed its position from that of post-World War I by deciding to make war of aggression a crime under international law, n69 a position that subsequently changed once again during the Cold War era when it was no longer politically convenient. n70
[*28] The IMT Charter developed the law of armed conflict in a progressive manner. Article 8 of the IMT Charter removed the defense of "obedience to superior orders," making it only a mitigating factor that would not exonerate a defendant from being held responsible for his actions. This was contrary to what most military laws provided for at the time World War II started. n71 The judgments of the IMT did not entirely follow the prescription of Article 8, however, and allowed the defense when the subordinate had no alternative moral choice in refusing to carry out the order. n72
Once the procedural and legal issues were resolved, the IMT Charter was appended to the London Agreement of August 8, 1945, which established the IMT. n73 The London Agreement was signed by the Four Major Allies and later acceded to by nineteen states. n74 The Four Major Allies assembled individual prosecution teams, which also had their own investigators. The American team provided most of the documents that were used as evidence as well as practical and logistical support for the other teams. n75
At the time, over one million Allied troops occupied Germany, with complete access to prisoners of war, civilian witnesses, and government documents. The collection of evidence was made easy by what Telford Taylor has called the "Teutonic penchant for meticulous record keeping." n76
[*29] The IMT indicted twenty-four persons, of whom twenty-two were prosecuted. Three defendants were acquitted, twelve were sentenced to death by hanging, three were sentenced to life imprisonment, and the others were sentenced to terms of imprisonment ranging from ten to twenty years. n77 Hermann Goering committed suicide at the end of the trial. All of the defendants were German and no other defendants from the European Axis Powers were indicted or tried before the IMT. No Allied Military personnel were prosecuted for any war crimes against Germans. These proceedings, even though just with respect to the accused, were one-sided. n78
F. Control Council Law No. 10
Subsequent to the London Charter, the Allies, by virtue of Germany's unconditional surrender, exercised sovereignty over Germany and enacted Allied Control Council Law No. 10 which permitted the Allies to prosecute German nationals in their respective zones of occupation. n79 Political will, sufficient resources, control of the territory, and the nature of the German military and civil service systems combined to make the prosecutions at Nuremberg effective. The same consideration made the Subsequent Proceedings under CCL 10 by the Americans, British, and French equally effective. The Russians, however, [*30] proceeded in a summary manner with little or no regard for legal considerations. n80
Prosecutions in the Allied zones of occupation could be said to be in the nature of domestic, as opposed to international, prosecutions because the Allies were presumably exercising sovereign power in Germany as a result of that country's unconditional surrender. n81 CCL 10 was, nevertheless, patterned after the IMT's charter, and Article II of the IMTFE provided for the same three crimes as in the IMT's statute Article 6. The only difference in Article II(c), concerning "crimes against humanity," was the removal of the connection to the initiation of war or to war crimes. n82
G. The Instrument of Surrender to Italy
Since CCL 10 was promulgated by the Four Major Allies acting as the sovereign authority in Germany, it did not apply to other Axis countries which were also defeated and occupied by the Allies. Thus, for example, Italy was occupied by the United States and Great Britain subject to a Surrender Treaty, which provided for the prosecution and extradition of war criminals. n83 The goals of the Treaty, however, were supplanted by the fear of communism that was pervasive in Europe. The Major Powers believed that reformed fascists were the best opponents of communism and therefore did not actively pursue their prosecution or extradition for fear of the internal political repercussions. The UNWCC listed 750 Italian war criminals whose different charges included the following: n84 illegal use of poisonous gas in violation of the 1925 Geneva Protocol n85 against Ethiopian civilians and combatants, killing of innocent civilians and POWs, 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. n86 In addition, the UNWCC had extensive evidence of [*31] crimes committed by the Italian military personnel in Greece, Libya, and Yugoslavia during World War II. The governments of Ethiopia, Greece, Libya, and Yugoslavia requested extradition of the war criminals pursuant to Article 29 of the instrument of surrender of Italy, but the occupying forces of Italy, the United States, and the United Kingdom did not act on their requests. n87 Subsequently, in 1946, the Italian government denied requests for extradition. n88 In short, political views once again prevailed over justice considerations.
H. The Far Eastern Commission and the International Military Tribunal for the Far East at Tokyo
The Far Eastern Commission (FEC) n89 was agreed to in Moscow in December 1945 as a measured response to the request of the U.S.S.R. The FEC gave the U.S.S.R. some element of control over the future of Japan as a reward for its late entry into the war, but left control of the FEC to the United States. It consisted of eleven states, with the four Major Allies having veto power. The Commission, whose seat was in Washington, transmitted its directives to an advisory group known as the Allied Council for Japan, seated in Tokyo. The United States, the U.K., China, and the U.S.S.R. were the only members of the Allied Council for Japan, and they were to oversee the occupational policies and practices for Japan.
The FEC was not an investigative body but a political one, which was to establish a policy of occupation for Japan and to coordinate the Allied policies in the Far East. The Commission played an important role in providing the joint Allied political umbrella for prosecution and other policies related to suspected war criminals, their trials, the carrying out of their sentences, and their release. Ultimately, however, "the Far Eastern Commission became little more than a debating society, and when a peace treaty was finally signed with Japan, it died a quiet death." n90
Control over occupational matters rested with General Douglas MacArthur as the Supreme Commander for the Allied Powers (SCAP). Virtually every aspect of justice in the Far East was guided by MacArthur's views and his political perspectives on the region. General MacArthur opposed the Commission's establishment because it allowed the U.S.S.R. a role and a veto. As he stated, "The very nature of its [*32] composition and procedures eventually made the Far Eastern Commission ineffective." n91
On January 19, 1946, General MacArthur, in his capacity as the SCAP for the Pacific Theater, and on behalf of the FEC, promulgated an order establishing the IMTFE. n92 Unlike the IMT, the IMTFE was not a treaty-based creation. Why the IMT and not the IMTFE required a treaty for its creation has never been explained, but several political considerations seem relevant. First, the Soviet Union had entered the war against Japan a few weeks before the latter was defeated, and the United States was concerned about the ambitions of the Soviet Union in the Far East. Furthermore, the United States did not want the U.S.S.R. to have any influence over these proceedings. n93 The United States was also concerned about Japan's post-World War II course of conduct. Thus, everything that was done by the FEC and the IMTFE [*33] was guided by MacArthur's wishes, as were the United States Military Commissions to try Japanese Military personnel in the Philippines and other areas of the Far East Military Theater of Operations that he subsequently established pursuant to his authority as the SCAP in that Pacific Japan Theater. Although MacArthur tried to preserve the appearance of detachment from the various legal proceedings he had set in motion, his heavy hand was evident throughout.
On April 3, 1946, the FEC issued a policy decision on the "Apprehension, Trial and Punishment of War Criminals in the Far East." n94 Article 6(a) of the FEC's decision empowered the SCAP, General MacArthur, to establish an agency, acting under his command, to investigate reports of war crimes, collect and analyze evidence, and arrange for the apprehension of suspects. Article 6(a) also gave the SCAP the power to decide what individuals or organizations would be prosecuted and before which court they would appear. n95
Participants in the FEC, and later in the IMTFE, were chosen on a representational basis. Each individual member acted as a representative of his country's government, and not in an individual capacity. n96 This led to a politicization of the FEC and the IMTFE and affected the internal workings of these bodies as well as the quality of justice they administered. The proceedings themselves were fraught with procedural irregularities and marred by abuses of judicial discretion. n97 The defendants were chosen on the basis of political criteria, and their trials were generally unfair. n98 Others, such as Allied military personnel, were conspicuously absent from the list of defendants. None of the Allies was prosecuted for war crimes. In addition, the application of the law with respect to some of the defendants was at least dubious, if not [*34] erroneous. n99 The execution of sentences was also inconsistent, controlled by the political whims of General MacArthur, who had the power to grant clemency, reduce sentences, and release convicted war criminals on parole. n100 Ultimately, not one of the twenty-five convicted persons who was sentenced to prison remained incarcerated for his full term; every one was released by the end of the 1950s. n101 This was also true of all those who were convicted as war criminals by the Allied military tribunals in the Far East. n102
In 1949, the FEC issued a formal advisory to all nineteen Allied powers in the Far East that Japanese war crimes trials should be held no later than September 30, 1949. n103 Subsequently, the Treaty of Peace with Japan, signed at San Francisco on September 8, 1951 by forty-eight States, provided in Article II that all convicted war criminals should be transferred to Japan to serve the remainder of their sentences under the SCAP's control. n104 This was done to effectuate early releases and therefore, between 1951 and 1957, all convicted war criminals in the Far East were released on parole or had their sentences commuted. n105
Previously, however, on November 3, 1946, Emperor Hirohito, on the occasion of the promulgation of Japan's new American-inspired Constitution, signed an Imperial Restrict (edict) pardoning all members of the Japanese armed forces who may have committed offenses during the course of the war. n106 The edict was tacitly approved by General MacArthur, but it was not publicized to avoid opposition from public opinion in Allied countries. Subsequently, Japan passed Law No. 103 of 1952, establishing a Commission to oversee the repatriation and release of Japanese convicted war criminals. n107 This Japanese Commission acted in reliance on Article II of the Treaty of Peace, which provided for the repatriation to Japan of convicted war criminals. n108
Unlike in Germany, where those accused and convicted of war crimes became, for the most, pariahs in their society, the Japanese did [*35] not view such persons as criminals but as victims. n109 For the Japanese, the trials were victors' vengeance couched in terms of victors' justice. n110
I. Politics of Defendant Selection in the Far East
The influence of politics on the selection of defendants was evident in the FEC policy decision on February 3, 1950 not to prosecute the Emperor Hirohito of Japan as a war criminal. n111 The decision was based on a need preserve the image of the Emperor, who had agreed to the unconditional surrender of Japan as a means of ensuring better political cooperation by the post-World War II Japanese ruling elite and to obtain support for the administration of the occupied Japanese territories. n112
Politics also played an important role subsequent to the IMTFE prosecutions, when the United States conducted trials in the Philippines, n113 and Australia, China, France, the Netherlands, the Philippines, the U.K., the United States, and the U.S.S.R. all conducted [*36] trials in the Pacific Theater. n114 Unlike proceedings in Germany under CCL 10, the Allied Military Prosecutions in the Far East were only for war crimes; they did not include "crimes against humanity."
The prosecution, conviction, and execution of General Tomoyuki Yamashita in the Philippines n115 exemplifies how political considerations resulted in the release of convicted war criminals and in condemnation of those whose role in the atrocities was negligible or non-existent. General Yamashita was the last Japanese Commander in the Philippines before the Allied Forces landed. n116 MacArthur, who had escaped from the Philippines before it fell to Japanese forces, had vowed to return and punish the Japanese for their brutal occupational practices and for war crimes. MacArthur ordered the trial of Yamashita even though Yamashita had not ordered or even been aware of any war crimes; Yamashita had only been in command in the Philippines for less than a month before it was re-taken by the Allied forces. In December 1945 General MacArthur set up a special Military Commission to prosecute Japanese war criminals in the Philippines. n117 General MacArthur influenced the military judges who applied an inappropriate legal standard that has not been applied since in cases of command responsibility: Yamashita was held responsible for acts of his subordinates which he had not ordered and of which he was unaware. n118 The [*37] United States Supreme Court regrettably denied Yamashita's Petition for a writ of habeas corpus, but two Justices, Murphy and Rutledge, wrote compelling dissents. n119
J. Comparison of the Legal Bases for Setting up the IMT, IMTFE, and CCL 10 and Far East Allied Military Prosecutions
The use of different legal mechanisms for the establishment of these ad hoc tribunals produced divergent results as to substance and procedure. The IMT and IMTFE Charters both provided for the prosecution and punishment of those accused of committing "crimes against peace," "war crimes," and "crimes against humanity." n120 The respective instruments are substantially the same, with a few exceptions. One such exception is that Article 5(c) of the IMTFE Charter provided that persecution on political and racial grounds constituted "crimes against humanity," whereas Article 6(c) of the IMT Charter included religious grounds as well. Such an inclusion was necessary in the IMT Charter because of the Holocaust. n121 Also with respect to "crimes against humanity," the IMT Charter provided that "inhumane acts committed against any civilian population" were subject to prosecution. The IMTFE Charter eliminated the phrase "against any civilian population" from Article 5(c), thereby expanding the class of persons beyond civilians only. The definition was dubiously broadened "to make punishment possible for large-scale killing of military personnel in an unlawful war." n122
CCL 10, which governed the Subsequent Proceedings of the Allies in their respective zones of occupation in Germany, also provided for the prosecution and punishment of "crimes against peace," "war crimes," and "crimes against humanity." n123 CCL 10 proceedings were not, however, conducted pursuant to a treaty or by promulgation of a military order by the commanding officer of occupying forces, but rather were mandated pursuant to a joint decision taken by the four Allies who occupied Germany after that country's unconditional surrender. The legal authority advanced by the Allies was that they carried out the functions of government in Germany. Such a reasoning meant that the CCL 10 proceedings were part of the domestic law of Germany. But when each of the four Allies set out its own system of justice, with all [*38] but the United States' being of a military nature, the legal fiction of national proceedings was inverted. n124
The definition of "crimes against humanity" contained in Article II(c) of the CCL 10 differed from the IMT and IMTFE Charters in two ways. First, Article II(c) expanded the list of crimes to include imprisonment, torture, and rape. Second, it eliminated the requirement that "crimes against humanity" be connected to the war by omitting the words "before or during the war" contained in Article 6(c) of the IMT's Charter. Furthermore, with respect to "persecution," Article II(c) broadened the category of crimes against humanity in a way that strained the principles of legality by eliminating the requirement that "crimes against humanity" be in the "execution of or in connection with any crime within the jurisdiction of the Tribunal." Unlike the IMT's judgment on sentences, the IMTFE's sentences could be unilaterally reduced by General MacArthur, though he never used that authority. n125
The proceedings in the Far East before separate military tribunals were sanctioned by the FEC, and to that extent the FEC is somewhat similar to CCL 10. Each Allied Power prosecuted Japanese and persons of other nationalities who were their prisoners of war. There was, however, no treaty or jointly promulgated law defining crimes. Each Allied Power established its own field military tribunals or commissions which applied its respective military laws and procedures. Although the FEC was a policy body, General MacArthur was the sole executor of that policy. The legal basis for his authority was that Allied Forces in the Far East were still under the Allied Power's control and that included their military trials. Though the FEC was used to achieve the overall policy goals of the Allies, it was essentially the body through which the United States actuated some of its occupational policies. This was evident in the FEC's decision to end prosecutions by 1950 and to repatriate to Japan by 1953 all those who were convicted.
K. The Years of Silence: 1955-1992
By 1955 CCL 10 Proceedings had ended in Germany. Prior to that, the Far Eastern Military Tribunals had also ended, and by 1958 all IMTFE convicted war criminals were released. In the west, Germany continued to prosecute persons charged with crimes arising out of World War II, as did some other countries. Still, since World War II there have been many conflicts for which no international investigative [*39] or prosecutorial bodies were ever set up. n126 Justice was the Cold War's casualty.
However, since the end of the Cold War, new initiatives have developed in connection with the conflicts in the former Yugoslavia and Rwanda and in connection with the establishment of a permanent international criminal court.
L. The Commission of Experts Established Pursuant to Security Council Resolution 780 (1992)
On October 6, 1992, the Security Council adopted Resolution 780, establishing a Commission of Experts to investigate and gather evidence of "grave breaches of the Geneva Conventions and other violations of international humanitarian law" in the conflict in the former Yugoslavia. n127 The history of the Commission and its work is fraught with the influences of politics. Resolution 780 defined the mandate of the Commission of Experts as follows:
2. [The Security Council] requests the Secretary-General to establish, as a matter of urgency, an impartial Commission of Experts, to examine and analyze the information submitted pursuant to resolution 771 (1992) and the present resolution, together with such further information as the Commission of Experts may obtain through its own investigations or efforts, of other persons or bodies pursuant to resolution 771 (1992), with a view to providing the Secretary-General with its conclusions on the evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia. n128
[*40] The Commission of Experts interpreted its mandate as requiring the collection of all relevant information and evidence concerning violations of international humanitarian law that it could secure in light of its resources and capabilities. n129 The Commission of Experts' efforts resulted in 65,000 pages of documents, a database cataloguing the information in these documents, over 300 hours of videotape, and 3300 pages of analysis, which comprise the Annexes to the Commission of Experts' Final Report. n130 All of this information and evidence was turned over to the Tribunal's Prosecutor between April and August 1994.
The political climate and the intensity of the conflict at that time created a situation in which the pursuit of a political settlement was deemed a priority. n131 The pursuit of justice was a response to international humanitarian concerns and to the terrible atrocities of the war that the media brought so vividly to the attention of world public opinion. But, because the major powers did not want to intervene militarily, the U.N. and EC mediators had neither a stick nor a carrot to induce cessation of hostilities.
The establishment of an international investigative body with the broadest possible mandate since Nuremberg was not conducive to the pursuit of political settlements when the very leaders involved in the negotiations could also become the targets of the investigation. Political settlement negotiations could not be conducted while the prospects of criminal investigation and eventual prosecution existed. In the face [*41] of this dilemma, the choice made was to favor politics over justice. As a result, the Commission never received any funding from the U.N. to conduct its field investigations. The limited resources provided by the U.N. only covered the bare minimum of administration costs for a short period of time. n132 Moreover, the U.N. frequently placed bureaucratic and financial hurdles in the Commission's way. Consequently, the Commission resorted to external funding sources and accepted the aid of volunteers and personnel contributed by certain governments. A document collection and database operation was set up at the International Human Rights Law Institute (IHRLI) of DePaul University in Chicago under the direction of this writer and entirely funded by private sources. While the IHRLI's work was opposed by the U.N. bureaucracy, it was eventually recognized as contributing a great amount of information. In fact, it was on the basis of the IHLRI's work that the Commission produced its Final Report and Annexes.
The Commission of Experts undertook thirty-five field missions which included mass grave exhumations and the world's largest rape investigation. Participants in all of these missions, with the exception of the Commission members and the three secretariat staff members of the Commission, were either contributed by governments or were volunteers. As the Commission's work and the IHRLI database work grew and became substantial enough to evidence patterns of criminality that could not have occurred without design and senior political and military leadership involvement, the Commission's work became threatening to the political process. While press reports charging responsibility for "ethnic cleansing," "systematic rape," and other systematic violations of international humanitarian law could be ignored, evidence substantiating these allegations was a real threat. Consequently, it became politically necessary to terminate the work of the Commission while attempting to avoid the negative consequences of such a direct action.
There could have been a problem in circumventing the tenth preambular paragraph of Security Council Resolution 827 which states:
Pending the appointment of a Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report. n133
[*42] Nevertheless, by employing bureaucratic measures, an obstruction of justice was carried out quietly. An administrative decision was taken -- probably at the behest, but certainly with the support of, some of the Permanent Members -- leaving no legal trace of the deed. Thus, the Chairman was administratively notified that the Commission should end its work by April 30, 1994. When the Commission's mandate was terminated, it still had over $ 250,000 in a trust fund and had not yet completed its Final Report. Between April 30 and December 31, 1994, the Chairman completed the Final Report and the Annexes and then continued to work until July 1995 to see that they were published by the United Nations.
M. The International Criminal Tribunal for the Former Yugoslavia
On February 22, 1993, following the submission of the Commission of Experts' First Interim Report, n134 the Security Council provided for the establishment of such a tribunal. n135 Resolution 808 stated that the Security Council:
Decides that an international criminal tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. n136
Resolution 808 requested that the Secretary-General report back on the matter of establishing an ad hoc international tribunal within sixty days. n137 The Report of the Secretary-General pursuant to this request was issued on May 3, 1993 and contained a draft Statute for the Tribunal and commentaries on the provisions of the Statute. n138 Subsequently, the Security Council unanimously approved Resolution 827 which established the Tribunal and approved the Secretary-General's draft of the Statute without change. n139 Thus, the Tribunal, with its [*43] seat in The Hague, officially came into legal existence on May 25, 1993. The judges were elected on September 15, 1993, and the Prosecutor took office on August 15, 1994. The Tribunal was subsequently named by its Judges, the "International Criminal Tribunal for the Former Yugoslavia" (ICTFY).
Article 1 of the Statute states that the ICTFY "shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute." n140 The Statute also establishes individual criminal responsibility, including that of a Head of State, for certain violations committed during the temporal jurisdiction of the ICTFY. These crimes are (1) grave breaches of the Geneva Conventions of 1949; n141 (2) violations of the laws or customs of war; n142 (3) genocide; n143 and (4) crimes against humanity. n144 Unlike other ad hoc tribunals such as the IMT and IMTFE, the ICTFY is not limited to the prosecution of some offenders. Rather, its jurisdiction applies to all those who violated international humanitarian law, irrespective of their side in this conflict.
As a judicial organ, the Tribunal must be independent, according to established general principles of law. n145 The fact that the Tribunal is a subsidiary organ of the Security Council does not affect the independence of the Tribunal per se, and Article 16 of the Statute specifically provides for the Prosecutor's independence, though he or she is appointed by the Security Council. n146 In fact, the Tribunal is kept at a distance from the Security Council through its administration by the Office of Legal Affairs of the U.N. Secretariat. Its internal workings are subject to the U.N.'s administrative rules. Furthermore, the Security Council does not fund the Tribunal. Instead the Security Council requested that the General Assembly do so through the regular budget [*44] of that body. Since the Security Council established the Tribunal pursuant to its Chapter VII powers, this was an odd and unnecessary choice, and it has impeded the work of the Tribunal. If the Security Council had funded the Tribunal through its peacekeeping budget, the Tribunal would not have needed to go through the various stages of the General Assembly's budget procedures. At that time the General Assembly's budget was severely reduced, and as a result the Tribunal has been inadequately funded since its inception. The exercise of administrative and financial control over the Tribunal by U.N. headquarters' personnel subordinates important decisions concerning personnel, travel, and witness protection to New York. These arrangements hamper, delay, and frustrate the work of the Tribunal, particularly the investigatory and prosecutorial efforts.
Not all of the Security Council's Permanent Members supported the initiative for a Tribunal, which was seen as potentially disruptive of negotiations for a political settlement of the conflict. Some Security Council members, as well as other Member States, felt that such a judicial organ should be established by the General Assembly or by a multilateral treaty. Other members urged that this was an opportunity to establish a permanent international criminal court, but the political advantages of controlling ad hoc institutions by the Security Council prevailed.
The year long delay in the appointment of Richard Goldstone as Prosecutor is further evidence of the politicization of the Tribunal. n147 Although Resolution 827 provided for the continuation of the work of the Commission of Experts until the appointment of the Prosecutor, n148 the Commission of Experts was prematurely terminated as of April 30, 1994 by administrative fiat, while the Prosecutor was not appointed until July 15, 1994. Although this bureaucratic lag might have severed the institutional links between the Commission of Experts and the Prosecutor, requiring the Prosecutor to begin his investigations ab initio and delaying the issuing of any indictments, the Commission Chair and Prosecutor Goldstone established a direct personal link. n149 [*45] The Prosecutor was able to indict twenty-two persons within months of taking office. Notwithstanding the difficulties faced by the Prosecutor's office, as of September 15, 1996, seventy-five persons have been indicted, one is being prosecuted, one plead guilty, and seven are being held in custody.
The Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) and the Republica Srpska, the Bosnian Serb de facto government, have refused to recognize the competence of the Tribunal and have not cooperated with respect to the investigation and surrender of indicted persons. n150 This lack of cooperation has clearly hampered the ability of the ICTFY to bring indicted war criminals to trial. n151
[*46] The future of the ICTFY is dependant upon the Security Council's determination that it is needed to maintain peace. n152 Although the Tribunal was established by the Security Council pursuant to its powers under Chapter VII of the United Nations Charter, the Security Council has not used its sanction powers to enforce the orders of the Tribunal with respect to any defendant, nor has it taken any action against the Federal Republic of Yugoslavia or the authorities of the so-called Republica Srpska. Nor, after the Dayton Accords of 1995, will NATO forces, IFOR, apprehend indicted war criminals. Once again the pursuit of a political settlement prevails over justice.
N. The Rwanda Commission of Experts
In July 1994, the Security Council passed Resolution 935 establishing a commission of experts to investigate grave violations of international humanitarian law committed during the Rwandan civil war, including possible acts of genocide, and report its findings to the Secretary-General. n153 The Rwandan Commission lasted only four months which was not long enough for the Commission to effectively fulfill its investigatory mandate.
The Security Council made sure that the Rwanda Commission would not embark on the same path taken by the Commission of Experts for Yugoslavia. The Rwanda Commission was given a limited mandate, three months to carry it out, and no means to investigate any specific allegations. The three-man Commission spent a total of one week in the field, and conducted no investigations. Its report was patterned on the Final Report of the Commission of Experts for the Former Yugoslavia, but necessarily lacked the thoroughness of the latter. The Rwanda Commission Report was based on reports made by other bodies, and other media and published reports. On October 4, 1994, the Rwandan Commission submitted its preliminary report n154 to the Secretary-General, and on December 9, 1994 its final report. n155 These reports laid the groundwork for the Security Council to establish an ad hoc tribunal for Rwanda.
O. The International Criminal Tribunal for Rwanda (ICTR)
The Statute and the judicial mechanism for the Rwandan Tribunal were adopted in Security Council Resolution 955. n156 The article of the [*47] Statute regarding individual criminal responsibility mirrors its counterpart article in the Statute for the ICTFY. n157 In fact, the "statute of the Rwanda tribunal . . . was an adaptation of the statute of the Yugoslav Tribunal to the circumstances of Rwanda . . . ." n158 The Rwandan Tribunal has temporal jurisdiction from January 1, 1994 to December 31, 1994. n159 Like the ICTFY, the ICTR can prosecute for genocide n160 and "crimes against humanity." n161 Because the conflict in Rwanda was a civil war, violations of the laws and customs of war and the Geneva Conventions of 1949 covering international conflicts will not be prosecuted. n162 Rather, violations of Article 3 common to the Geneva Conventions of 1949 and of Additional Protocol 2 will be prosecuted. n163
Even though the statutes for the ICTR and the ICTFY differ, the tribunals share a common Prosecutor and a common Appellate Chamber. This is a curious formula for two separate ad hoc tribunals established separately by the Security Council through two unrelated resolutions. According to the Secretary-General, however, the "institutional links . . . ensure a unity of legal approach, as well as economy and efficiency of resources." n164 The decision to link the two bodies was not, [*48] however, based on any valid legal argument. The United States, which pushed for this formula, wanted to avoid delays in selecting the Prosecutor as was the case with the ICTFY. The rationale for sharing the ICTFY Appellate Chamber was based entirely on a cost-saving consideration. The choice of a single Prosecutor was particularly ill-advised because no person, no matter how talented, can oversee two major sets of prosecutions separated by 10,000 miles. The idea that one can shuttle between The Hague, Netherlands and Arusha, Tanzania as part of a normal work schedule is nothing short of absurd. Sharing a single Appellate Chamber also poses two problems, though of a more benign legal nature. First, the substantive law applicable to the two Tribunals is different. That means that in an eventual interpretation of "crimes against humanity" under both Statutes, the Appellate Chamber must necessarily be inconsistent. Second, while the ICTFY judges rotate in the Appellate Chamber, the ICTR judges do not. One of the two Tribunals was destined to suffer and in time it became clear that the ICTR did. n165
The ICTR, like the ICTFY, is under the administrative and financial control of the United Nations. Only as of September 1996 did it become fully operational because of logistical, administrative, and financial problems. Yet, the Rwandan Government is holding 75,000 persons in custody, pending trial either before the ICTR or eventually, before its own tribunals. Thus, unlike the ICTFY which is fully operational but cannot apprehend those who are indicted, the ICTR has not been able to prosecute those held in custody. Unlike the ICTFY which is unlikely under prevailing political circumstances to prosecute anyone who could upset the delicately balanced political settlement achieved so far, the ICTR could accomplish a great deal. To date, however, it has been regrettably treated with neglect.
Because of the total devastation wrought by the Rwandan civil war, the Security Council was compelled to deal with many political, logistical, and practical problems in the establishment of the ICTR. The Security Council had to negotiate with the new government on the establishment of the Tribunal at a time when Rwanda was also a member of the Security Council. This situation complicated the Council's task, particularly because the views of that government and its expectations of an international tribunal differed from those of the rest of the Council. For instance, while the Government of Rwanda wanted [*49] the new Tribunal to be able to impose the death penalty, the Council was opposed to it, because it had already decided against that penalty in connection with the ICTFY. In addition, the U.N. had some difficulty convincing the Rwandan Government to agree that the Tribunal would also prosecute Tutsi violations against Hutu victims. Finally, the U.N.'s Legal Counsel, Hans Correll, had to conduct extensive negotiations with the new Rwandan Government regarding the site of the Tribunal. Because of the absence of an effective infrastructure, and because the U.N. feared that a Tribunal in Kigali would be under the influence of the Rwandan Government which, after all, represented the victorious Tutsi who were the victims of Hutu crimes, the Tribunal was located in Arusha, Tanzania.
Establishing the Tribunal in another country was unprecedented, and required a U.N. host country agreement with Tanzania, which took some time to conclude. Because most defendants and witnesses would have to come from Rwanda, this is an enterprise fraught with logistical problems and practical difficulties. Moreover, Arusha is not the ideal place for locating the Tribunal, since there too, the U.N. had to build the Tribunal's infrastructure from scratch under trying conditions.
These difficulties demonstrate the fundamental inability of the Security Council to micro-manage action-oriented bodies that require constant attention to details. This experience led to what David Scheffer, Senior Counsel to U.S. Ambassador to the United Nations Madeline Albright, called the Council's "Tribunal fatigue."
Ultimately, despite certain promising conditions, the logistical problems and administrative inefficiency of the ICTR make it unlikely that its prosecutions will become a landmark precedent. Moreover, its failures may prevent the Security Council from engaging in similar ad hoc endeavors in the future, thus rendering a permanent international criminal court even more necessary.
II. THE UNITED NATIONS' EFFORTS TO ESTABLISH AN INTERNATIONAL CRIMINAL COURT AND TO CODIFY CERTAIN INTERNATIONAL CRIMES
Between 1946 and 1996, the United Nations' efforts to codify certain international crimes and to establish an international criminal court have been carefully separated, though always intertwined. Though the Cold War hindered the codification process, progress has occurred since 1990. n166
[*50] During the first session of the General Assembly in 1946, the United States sponsored Resolution 95(I) which affirmed "the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the [IMT] Tribunal." n167 In 1947, the General Assembly directed the Committee on the Codification of International Law, the International Law Commission's [ILC] predecessor, n168 to formulate a general codification of offenses against the peace and security of mankind. n169 The Resolution mandated the ILC to:
(a) formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, and
(b) prepare a draft code of offenses against the peace and security of mankind, indicating clearly the place to be accorded to the principles mentioned in sub-paragraph (a) above. n170
Two years later, in compliance with the Resolution, the ILC started to "[formulate] the principles recognized in the Charter of the Nuremberg Tribunal" and to "[prepare] a draft code of the offenses against the peace and security of mankind." n171 A subcommittee was formed and a special rapporteur was appointed to prepare a Draft Code of [*51] Offenses Against the Peace and Security of Mankind. n172 That title was changed in 1988 to Draft Code of Crimes Against the Peace and Security of Mankind. n173
Concurrently, the task of formulating a Draft Statute for the Establishment of an International Criminal Court was assigned to another special rapporteur, who submitted his first report to the ILC in March 1950. n174 That report argued that a substantive criminal code and a statute for an international criminal court should complement one another. n175 Contrary to logic and rational drafting policy, these two codification projects remained separated. n176 In 1950, another rapporteur was appointed to study the further development of an international criminal court. n177 The two rapporteurs differed on whether the time was ripe for an international criminal court. n178
[*52] While many countries, such as the United Kingdom, believed the establishment of an international criminal court was desirable in theory, its establishment was doomed by the absence of consensus among the world's major powers. n179 The Soviet Union believed its sovereignty would be affected by the establishment of such a tribunal. n180 The United States was also not prepared to accept the establishment of such a court at the height of the Cold War. France, in 1950, was the only permanent member of the Security Council willing to support the establishment of an international criminal court. n181
A Special Committee of the General Assembly was established in 1951, composed of representatives of seventeen states, for the purpose of drafting a convention for the establishment of an international criminal court. n182 The substantive legal aspects of codification were given to one drafting body and the enforcement counterpart to another body.
In 1951, the Special Committee appointed to draft the statute for the formulation of an International Criminal Court finished its task, modeling the statute in part after that of the International Court of Justice. n183 The discussions and written comments, particularly those of major powers clearly, indicated that the project had no chance of acceptance and was politically premature. n184 Because these states did [*53] not want to assume political responsibility for the demise of a permanent international criminal court within only five and six years, respectively, of the IMTFE and IMT's judgments, n185 the Committee, with some membership changes, revised the 1951 Draft Statute and finalized revisions in 1953. n186
The 1953 revised Draft Statute was submitted to the General Assembly, which found it necessary to first consider the ILC's work on the Draft Code of Offenses. The statute for an international criminal court was therefore tabled until the draft code of offenses was finalized. n187 The ILC's approved text of the Draft Code of Offenses, consisting of five articles and listing thirteen separate international crimes, was submitted to the General Assembly in 1954. n188
Article 2 of the 1954 Draft Code, the article dealing with aggression, did not define aggression, since another Special Committee had been established to develop a definition. The General Assembly therefore postponed further consideration of the 1954 Draft Code until the Special Committee on the Question of Defining Aggression submitted its report. n189 Consequently, the expected domino effect occurred: the 1953 Draft Statute for an ICC could not be considered before the 1954 Draft Code of Offenses, and the 1954 Draft Code of Offenses, could not be considered until aggression was defined. As a result, the 1953 Draft Statute and the 1954 Draft Code were tabled until aggression was defined. n190
The definition of aggression followed a long and arduous course. The General Assembly appointed a first Special Committee on the Question of Defining Aggression of fifteen members (1952-1954), then a second Special Committee of nineteen members (1954-1957), and then a third [*54] Special Committee of twenty-one members (1959-1967), and lastly a fourth Special Committee of thirty-five members (1967-1974). n191 These four committees submitted various reports which were debated and discussed at length in committees and by the General Assembly. The last of the special committees finally completed its task in 1974, and the General Assembly adopted the definition of aggression by a consensus resolution. n192 It is noteworthy that the definition of aggression, which took more than twenty years to define, was neither included in a multilateral convention nor even voted upon in the resolution that adopted it.
The General Assembly, having previously tabled further consideration of the 1954 Draft Code of Offenses on the ground that aggression first had to be defined, and also having tabled consideration of the 1953 Draft Statute for an international criminal court because the 1954 Draft Code had not been adopted first, logically would have had to reconsider these two items once aggression had been defined in 1974. Nevertheless, the General Assembly did not see fit to reconsider the question of the 1954 Draft Code of Offenses until 1978 nor did it elect to reconsider the question of the 1953 Draft Statute for an International Criminal Court. In 1982, a new rapporteur of the ILC produced his first report on the draft code, n193 which contained a variety of generalities concerning international criminal law, individual and state responsibility, and observations on the eventual contents of such a code. n194 The new Rapporteur was starting his work on the project ab initio, and it took him until 1991 to produce what was intended to be [*55] a final text. n195 Because the report was criticized by governments and scholars n196 it was revised and adopted in 1996. n197
The question of an international criminal court came back to the ILC by an unexpected route. In 1989, the General Assembly requested the ILC to prepare a report on an international criminal jurisdiction for the prosecution of persons engaged in drug trafficking. n198 Contemporaneously, an NGO committee of experts, chaired by this author, prepared another draft statute in June of 1990, and submitted it to the Eighth United Nations Congress on Crime Prevention and the Treatment of Offenders. n199 The Eighth Congress recognized the need [*56] for an international criminal court, and supported the ILC's continued efforts on this matter. n200
The ILC discussed the nature of an international criminal tribunal, its ratione materiae, the conferment of jurisdiction, and the institution of criminal proceedings before the court, and decided to continue the discussion on this question in later sessions along with its further consideration of the 1991 Draft Code of Crimes. n201 Thus, the ILC did link its work in the Draft Code of Crimes to that of an eventual draft statute for an international criminal court, even though the General Assembly had not given it such a mandate. But later, the ILC and the General Assembly decoupled the two projects.
Although the ILC transcended the drug trafficking question which was the basis of its original mandate, the General Assembly did not raise any questions of scope. Wisely, the ILC started with a preliminary report in 1992, n202 and when that report was favorably received by the General Assembly, the ILC produced a comprehensive text in 1993, n203 which it modified in 1994. n204 The changes made in the ILC's 1994 Draft Statute for an International Criminal Court were intended to answer the political concerns of some of the world's major powers. n205 Nevertheless, both the ILC and the Sixth Committee of the General Assembly decoupled the ILC's Draft Statute for an International Criminal Court from the Draft Code of Crimes, ostensibly because in 1994 the latter was not yet completed. In 1996, the ILC modified the Draft Code of Crimes, n206 and took into account the experiences of the ICTFY [*57] and the ICTR, as well as the debates of the Ad Hoc Committee and the Prepatory Committee on the International Criminal Court.
The ILC's perseverance and ingenuity in developing the limited 1989 mandate related to illicit drug trafficking into what became the Draft Statute for an International Criminal Court merits high praise. The 1994 Draft Statute was the basis upon which the General Assembly in 1994 established the Ad Hoc Committee on the Establishment of an International Criminal Court, n207 and then in 1995 the Preparatory Committee for the Establishment of an International Criminal Court. n208 The Preparatory Committee's Report was submitted to the General Assembly's 51st session on October 28, 1996, with a recommendation that the General Assembly extend the Preparatory Committee's term with a specific mandate to negotiate proposals with a view to producing a consolidated text of a Convention, Statute, and annexed instruments by 1998. n209 This schedule is a setback for those who had hoped for a 1997 Plenipotentiary Conference. n210 A number of major powers are, however, reluctant to move faster and hope to defer the diplomatic conference to a later time.
Still, one consideration may prove to be the impetus for the setting up of a permanent court by 1998. The ICTFY and ICTR are established by the Security Council pursuant to its powers under Chapter VII of the Charter. By 1997 or 1998 the Security Council's ability to keep these ad hoc tribunals in operation may prove difficult. n211 Since it would not be politically wise to simply abolish these tribunals, or cause them to die on the vine, a permanent court that could take over the remaining or prospective prosecutions would prove a most useful solution. n212
[*58] CONCLUSION: THE NEED FOR A PERMANENT SYSTEM OF INTERNATIONAL CRIMINAL JUSTICE
Invariably after each war in which violations of international humanitarian law occur and prosecutions ensue, a hue and cry develops in the defeated nations for the release of their citizens who were convicted of such crimes. As political pressure increases, the prosecutions are viewed as contrary to peace, and the crimes committed are overlooked. n213 But few think of the past's victims, or of the effect of a policy of impunity on the future. Only after the present political culture realizes that justice is an indispensable component of peace will the establishment of a permanent international criminal justice system be possible.
Following the Treaty of Versailles, the German people began to resist prosecutions. The President of the German Peace Delegation in Paris, Baron von Larsner, reported to the Allies that
the entire German Volk, without regard to class and party, [was] of the conviction that it [was] impossible to deliver up the so-called war criminals . . . no German official would lend a hand to the arrest of a German in order to deliver him up to the justice of the Entente [the Allies] . . . . The mere proposal of an order of this kind would create such a storm of indignation that the entire peace structure would be gravely threatened. n214
The Allies' avowed intentions to establish prosecutions stipulated in the Treaty of Versailles were, thus for political reasons, never realized. Instead, some token prosecutions were held at Leipzig.
The process of tampering, limiting, or curtailing justice after World War II was also evident when the recommendation of the 1919 Commission for the prosecution of Turkish Officials was set aside after the United States and Japan strongly opposed it. The Treaty of Sevres which had provided the Allies the right to prosecute Turkish officials was then never ratified. Instead, the Treaty of Lausanne provided for an amnesty in an unpublicized additional Protocol.
Then, after World War II, the policies of clemency in the Far East and in Germany are also illustrative. Within a few short years of the IMTFE's judgments, all convicted persons were released. The Emperor's [*59] 1946 amnesty edict and the 1951 Peace Treaty paved the way for the early release of all those convicted in Allies' military proceedings. General MacArthur was content with the symbolic post-war prosecutions but beyond that, his interest, as well as that of the U.S. Government, was to strengthen peace through a stable Japan. In Germany, the IMT's sentences were upheld, with the exception of some early releases on parole and commutation of sentences. Convictions under CCL 10, however, were commuted and parole was used more liberally. n215 In the Western zones of occupation, the Allies were eager to help Germany rebuild politically and economically. n216 Germany was by then clearly in the Western camp, which needed it to face the strong and defiant Eastern bloc.
In Italy, the Allies, in violation of the Articles of Surrender of 1945, simply did not prosecute or extradite any of the alleged war criminals to those states which requested them. Subsequently, Italy also refused to extradite any accused war criminals, including those whose "dossiers" had been carefully prepared by the UNWCC.
By 1992, bureaucratic hurdles, lack of resources, non-disclosure of evidence, and other more subtle means were used to avoid prosecutions. Thus, the Commission of Experts on the former Yugoslavia was not funded for investigations, and when it accumulated evidence perceived as dangerous to the political peace process, it was arbitrarily terminated. The ICTFY, notwithstanding all its public visibility, has only prosecuted one low-ranking Bosnian Serb violator, n217 and convicted one accused who pled guilty, but is unable to obtain jurisdiction over seventy-five indicted persons, including major offenders, which IFOR refuses to apprehend. The 1994 Rwanda Commission was not given a long enough mandate nor adequate resources to do any investigation, while the Rwanda Tribunal only commenced prosecution in 1997 of one person due to bureaucratic and financial difficulties.
These past experiences with ad hoc international tribunals confirm the need for a permanent system of international criminal justice. n218 [*60] Because they only try certain offenders in certain conflicts, these tribunals and their laws and penalties raise fundamental questions about compliance with the principles of legality and about general considerations of fairness. After WWII many felt that the Allies were applying one law to themselves and another to the defeated. Prosecutions in Germany and in the Far East were labelled victors' vengeance. Indeed, the Roman Law maxim, quod licet jovi non licet bovi, n219 was not heeded in either context. n220 Furthermore, ad hoc tribunals generally do not provide equal treatment to individuals in similar circumstances who commit similar violations. Thus, such tribunals create the appearance of uneven or unfair justice, even when the accused are properly deserving of prosecution. A permanent system of international criminal justice based on a preexisting international criminal statute would allow any person from any nation to be held accountable for violations. Equal treatment for violators would be guaranteed.
History also shows that investigative bodies should be institutionally linked to the prosecutorial organ of the tribunal that will adjudicate the cases. After World War I, for example, the work of the 1919 investigative commission was virtually nullified because the prosecutions were shifted from the international to the national level. Political considerations, namely the U.S. refusal to relinquish control over IMT proceedings, reduced the 1943 UNWCC to a collector and clearinghouse of information, rather than an investigative body. If a permanent international system of criminal justice is established, then an international investigative body would be out of the control of any single country. In addition, since an investigative body would logically be linked to the adjudicative body, its work could not be dismissed, overlooked, or relegated to a secondary role as were the 1919 Commission and the 1943 UNWCC.
There are also several practical reasons for advocating a permanent system of international criminal justice. n221 A permanent system would eliminate the necessity of establishing ad hoc tribunals every time the need arises. The decision to establish such tribunals, not to mention drafting the applicable statutes, takes considerable time during which the evidence of the crimes becomes more difficult to obtain, and the political will to prosecute dissipates. Moreover, a political debate is invariably reopened over the provisions of the statute, who will conduct [*61] the prosecutions, and who will sit in judgment. Such pressures leave ad hoc tribunals vulnerable to political manipulation.
The work of the ILC from 1947 to 1996 has been painstakingly slow, facing constant political hurdles. In 1995, the Ad Hoc Committee on the Establishment of an International Criminal Court, and in 1996 the Preparatory Committee on the Establishment of an International Criminal Court made some progress. But now hard political decisions must be made. World public opinion favors the establishment of an effective and fair system of international criminal justice. Governments cannot forever ignore public opinion if they are to retain their political credibility.
Impunity must no longer be the reward of those who commit the most egregious international crimes and violations of human rights. n222 In addition to the many never prosecuted in the ad hoc tribunals established following certain international conflicts, many more criminals in internal conflicts have not been brought to justice. The quantum of human harm produced since World War II by conflicts of a non-international character--purely internal conflicts and victimization by tyrannical regimes n223 --far exceeds the combined casualty figures of [*62] World War I and World War II. Yet, the overwhelming majority of perpetrators have benefitted from impunity.
While an international justice system might not stop future conflicts, it would vindicate the victims of international crimes and remind ourselves and future generations of the victims' plight and the perpetrators misdeeds. To paraphrase the philosopher George Santayana, if we do not record and learn the bitter lessons of the past we are condemned to repeat our mistakes. That is why those who can, must speak up. For to criticize the flawed legal and political processes which unfolded in the past, is to serve justice as it ought to be in the future.