International Crimes Against the Peace
All law, whether national or international, civil or criminal, has its roots in precepts of behavior which, if violated, invoke a sanction from the community that has been offended. In earliest times of maxims conduct, usually attributed to divine origin or inspiration, defined the canons of permissible and impermissible deportment. Codes of law that antedated the Christian era are associated with names such as Menes, who governed ancient Egypt some three thousand years before the birth of Christ; Hammurabi, who ruled Babylonia a thousand years later; Moses, who lived in the thirteenth century BC; Draco and Solon, who guided Greece in the seventh century BC; and, a few centuries later, Mencius and Confucius in China and Manu in India. The mandates applied to fairly homogeneous groups living within a relatively compact territorial jurisdiction. Those who breached the commandments faced the wrath of the divine authority, communal ostracism, and a wide variety of local sanctions. Relations between competing peoples were governed by pacts. The agreements were sustained by mutuality of interest and enforced by the power of armed might. Warfare was governed by principles of morality and custom. The earliest origins of international law and of codes governing crimes against the peace can be traced to the rules for the conduct of war.
The legal codes of the Roman emperor Justinian in the sixth century AD helped maintain peace throughout the vast Roman empire. Before war could be declared, the Roman fetial college, a group of experts, was required to investigate and determine whether the dispute could be justly resolved without recourse to arms. The fetials then reported their findings to the Roman Senate. For a war to be lawful, it had to have a just cause, be declared in accordance with traditional ritual, and be conducted and concluded in a just way. Such were the teachings of scholars like Cicero and St. Augustine, who studied the customs going back to the amphictyonic councils, which prescribed the rules for the ancient Greek city states. Practices that have been followed over a long period of time were seen to reflect an obligatory norm of behavior. Those who transgressed the customary or natural law of nations were committing what would later be known as international crimes.
One of the earliest offenses against the law of nations was the crime of piracy. The brigands who preyed on vital trade and commerce were viewed as enemies of all mankind, and were deemed punishable by any captor. During the Crusades it was considered lawful to slay infidels who remained outside the folds of Christianity. When the New World was discovered and Spain spread its power throughout the Americas, and greed and Christian zeal of the conquistadors led to the wholesale massacre of the native Indians. Spanish theologians began to reexamine the cruel actions of their compatriots in the light of God’s universal laws. Francisco de Vittoria (1480-1546), professor of theology at the University of Salamanca, warned the differences of religion, extension of empire, and personal glory were not acceptable reasons for waging war. Focusing on the definition of a just war, he taught that even in self-defense it was necessary to do as little harm as possible to the assailant. According to Vittoria, no one was obliged to serve in an unjust war, even if commanded to do so by the sovereign, and those who waged unprovoked aggressive war would have to make reparation. The lectures of Vittoria, published 150 years after his death, began to draw attention to such international legal problems as the definition of aggression, the permissible limits of self-defense, restraints on wanton destruction, and the limits of military necessity. Vittoria emphasized the responsibility of heads of state and asserted that the orders of superiors did not constitute an excuse for illegal conduct. His views, based on religious morality, became an important stepping-stone in the development of international criminal law.
Among the most notable sixteenth- to eighteenth- century writers who dealt with the legal limits of warfare and the rules of war were the Italian jurist Alberico Gentili, the Spaniard Francisco Suarez, the German Samuel Pufendorf, and Emerich de Vattel of Switzerland. The most outstanding was the Dutch jurist Hugo Grotius who published his famous treatise De jure belli ac pacis libri tres (“The Law of War and Peace in Three Books”) in 1625. According to Grotius, those who made war for gain or other wrongful intent deserved conviction; those who commenced a war unlawfully were responsible for the foreseeable consequences of their aggression; and even generals and soldiers who could have prevented the harm would be held to account. Because of the brilliance of his perceptions and presentations, Grotius has frequently been called the father of international law.
The Peace of Westphalia of 1648, which ended the Thirty Year’s War, is often viewed as the beginning of international law, since it replaced the hierarchic order of the Middle Ages by a loose secular confederation of many independent nations, theoretically kept in check by a balance of power. In actuality, however, no precise date can mark the change that was gradually taking place to meet the needs of a gradually expanding international society.
The industrial revolution, the growth of American democracy, and the social and political ferment in Europe at the turn of the nineteenth century ushered in a new era of humanitarianism. In the United States, consideration for the common man lead president Abraham Lincoln to seek new laws that would minimize the sufferings of both sides during the Civil War. At Lincoln’s request, Francis Lieber drafted his “Instructions for the Government of the Armies of the United States in the Field.” The Lieber code of 1863, based on the principled derived from early Roman doctrines, became the model for the Hague conventions of 1899 and 1907 and for later revisions by the International Red Cross, all of which defined the lawful limits of military conduct. Members of the armed forces, from commanders to ordinary soldiers, were obliged to comply with the laws of humanity and the dictates of the public conscience. Those who violated the rules, which were accepted as binding by many states, ran the risk of punishment.
Crimes Against Peace In World Wars I And II
The outbreak of World War I brought the first major test of efficacy of the new laws of war. When Turkey began to massacre its Armenian minority in 1915, Allied governments denounced the slaughter as a crime against humanity and warned that the persons responsible had committed a criminal offense for which they would be held to account. Atrocities committed by German armed forces caused a British lawyer, Hugh Bellot, to demand that the perpetrators be brought to trial before an impartial criminal tribunal on the charge of having violated the laws of war and of humanity. Germany’s aggression in violating the neutrality of “Little Belgium” was denounced as a crime. At the Preliminary Peace Conference in 1919, the Commission to determine the Responsibility of the Authors of the war and the Enforcement of penalties was appointed by the five voracious powers: France, England, Italy, Japan, and the United States. The commission concluded that although those who had committed offenses against the laws and customs of war or the laws of humanity could be criminally prosecuted, the German head of state could not be charged with aggression since such an act had never before been subject to a criminal indictment. It was recommended, however, that aggression should be morally condemned and that in the future such grave outrages against the principles of international law should be punished.
The Treaty of Versailles, which brought World War I to an end, provided that the German Kaiser be forced to stand trial before an Allied high tribunal. Since it was not considered appropriate to charge him with the crime of aggression, Article 227 of the treaty provided that he be tried for “a supreme offense against international morality and the sanctity of treaties.” Those who had committed atrocities against Allied nationals were to appear before Allied military courts. But the Kaiser found asylum in Holland and was never extradited or tried, and Germany refused to surrender any of the nine hundred persons accused of having violated the rules of war. The Allies finally agreed to allow Germany to try the accused before its own courts. War crimes trials were held before the Criminal Chamber of the German Supreme Court at Leipzig. Very few were charged, fewer were convicted, and many of the criminals managed to escape. It was a manifestation of public determination that certain crimes against international morality should not go unpunished, but the fiasco at Leipzig also pointed to the need for an improved system of international justice. After the war, the League of Nations was established to further international peace and security. In 1920 the League’s advisory Committee of Jurists recommended that a high court of international justice be created to try crimes against international law. The creation of an international criminal court without a clear criminal code was considered premature, and the recommendation of the jurists was not accepted. The world had been put on notice, however, that those responsible for acts of aggression and for violation of the rules of war might one day have to face a penal tribunal to answer for their crimes.
During the 1920’s, many outstanding scholars urged that a court be created to deal with international crimes against peace. Among the most articulate and persistent were Vespasien Pella, Donnedieu de Vabres, Quintiliano Saldana, Megalos Caloyanni, and Raffaele Garofalo. Leading international law societies, including the International Law Association, the American Society of International Law, and the Inter- Parliamentary Union, also supported the idea of an international penal tribunal, but their views received scant attention.
On 1927, the Assembly of the League of Nations declared that a war of aggression was an international crime. Thus, the process of codifying international criminal law had begun, but the establishment of an international court with jurisdiction to determine whether the code had been violated was not yet seriously contemplated.
Widespread demand for an international penal court arose in 1934, when King Alexander of Yugoslavia, on a state visit to France, was assassinated by a Croatian nationalist. A committee of the League drafted a convention to repress terrorism, which provided that no asylum could be granted to assassins. The offender would have to be tried where he was apprehended, or be extradited to the country where the crime had been committed. As an alternative, the offender could be tried before an international criminal court of five judges selected from a list of independent experts by the parties to the convention. The details of the court’s composition, rules, and procedures were set forth in the draft, whose proposals were debated at length and went through several revisions. But by 1937, when public outrage had cooled, only India was prepared to ratify the convention. None of the thirty-six states that had participated in its drafting was ready to be bound by an international criminal court. Having failed to learn from the past, most nations would soon find themselves victims of a much more devastating form of terrorism – an international war of aggression.
The outbreak of World War II brought with it new breaches of the peace: atrocities and violations of the laws of war on a scale never before witnessed in human history. As early as 1942, Allied leaders warned the Germans that they would have to answer for their crimes. Legal experts in countries which had fallen to the German forces demanded that those who had committed aggressive war and crimes against humanity be punished regardless of any alleged defense of superior orders. The idea of an international criminal court was revived. Hersch Lauterpacht of Oxford University and Hans Kelsen of the University of California argued that such a court was essential to cope with war crimes and to bring about an essential reform of international relations. When it became clear that German defeat was imminent, representatives of the Allied powers began to consider what should be done with those individuals who flouted international law by crimes on indescribable cruelty and magnitude. The British and Russians favored summary executions of the major German war criminals, but it was the view put forward by the United States that ultimately prevailed: no one could be condemned without a fair trial.
After the defeat of the Axis powers, the European Allies met in London and agreed upon a charter that established the International Military Tribunal (IMT), composed of judges from France, Great Britain, the Unites States, and the Soviet Union, and empowered to try the major German war criminals. The tribunal was given jurisdiction over three categories of crimes: (1) crimes against peace, which meant the preparation or waging of a war of aggression; (2) war crimes, or violation of traditional laws and customs of war; and (3) crimes against humanity, such as extermination, enslavement, and other inhumane acts committed against a civilian population. The magnitude of the crimes and the fact that they were committed with the support of a government distinguished crimes against humanity from ordinary felonies. In 1945, twenty-four Nazi leaders, defended by lawyers of their choice, faced a year-long public trial in the courthouse at Nuremberg.
The IMT held that its charter was an expression of previously existing international law and that waging a war of aggression was the supreme international crime. In finding many of the defendants guilty, the tribunal denied that the accused had been charged unfairly under ex post facto law, a doctrine holding that there should be no punishment for an offense which was not a crime at the time it was committed. In the case of the Nuremberg defendants, however, the tribunal concluded that the high position of the accused and the nature of their crimes were such that they must have realized the illegality of their actions. It was not unjust, therefore, to hold them personally responsible. Justice Robert Jackson of the United States Supreme Court, who was the chief American prosecutor and the main proponent of the Nuremberg charter and the IMT trial, argued convincingly that the time had come for the law to take a step forward. The tribunal agreed that the law had to respond to the needs of a changing world.
Twelve war crimes trials against other major offenders were held in Nuremberg subsequent to he first trial before the IMT. Leading members of German ministries, professions, industry, security services, and military branches were accused of complicity and responsible for crimes against peace, war crimes, and crimes against humanity. Subsequent proceedings at Nuremberg clarified and reaffirmed the emerging principles of international law: (1) aggressive war was a crime; (2) crimes against humanity could be committed by a state even against its own nationals and even in times of peace; (3) a head of state could be tried; (4) the defense of superior orders was not absolute but might be considered as a mitigating factor; and (5) accomplices and accessories who joined and organization knowing of its criminal purposes could be held to legal account.
When the war in the Far East came to an end, twenty-eight Japanese leaders were charged with aggression, war crimes, and crimes against humanity, pursuant to a proclamation based on the principles of the IMT charter. In 1948 all of the defendants were convicted, but the opinions of several of the Allied judges expressed doubt whether aggressive war held criminally responsible for having failed to prevent the commission of war crimes by the troops. Defacto problem, the Nuremberg and Tokyo trials established important precedents for the further growth of international criminal law. When the trials were completed the war crimes courts were dissolved, and further efforts to deal with crimes endangering the peace and security of mankind passed to the United Nations, the successor of the League of Nations.
Actions By The United Nations
The first General Assembly of the United Nations, on December 11, 1946, unanimously affirmed the principles of international law that had been recognized by the Nuremberg charter and judgements. The United Nations further resolved to formulate a comprehensive international criminal code of offenses against the peace and security of mankind. At the same time, the assembly resolved that a convention should be prepared to help deter a repetition of the particularly heinous crime of genocide. The first draft of its convention defined genocide as a criminal act directed against a racial, national, linguistic, religious, or political group for the purpose of destroying it in whole or in part, or of preventing its preservation or development. Individual offenders, regardless of rank or of orders from superiors, could be held responsible for the crime. Any state would have jurisdiction to try an apprehended suspect, and no political asylum could be granted to persons charged with the crime of genocide. If a state, because of complicity or for political reasons, was unwilling to try the suspect, he would have to be extradited or handed over for trial by an international criminal court, whose composition and procedures were specified in the draft convention. By the time the genocide convention was debated in 1947, the wartime unity of the Allied powers has already begun to erode. The cohesion that had made it possible to reach quick agreement on the Nuremberg charter and the INT trial had been replaced by distrust and hostility between the United States and the Soviet Union. No one objected to condemning genocide in principle, but the establishment of a court to punish the offense was quite another matter. The Soviet Union and its allies viewed the creation of an international criminal court as an infringement of national sovereignty. Great Britain and other Western states argued that this effort to establish an international criminal jurisdiction was premature and even dangerous, since it might provide guidance to those who sought to evade the law. France was one of the few states to recognize that without an enforcement agency, a convention to prevent genocide would lose much of its impact.
The genocide convention that was finally adopted (Convention on the Prevention and Punishment of the Crime of Genocide) left the creation of the court to the discretion of the signatories. The United States deferred ratification since, as it argued, American penal laws provided ample protection against commission of such an outrageous offense. In 1947, the problem of establishing an international criminal court was referred to the International Law Commission (ILC), a multinational group of experts assembled by the United Nations for the progressive codification of international law. The ILC was also assigned the task of drafting a code of offenses against the peace and security of mankind.
Some progress toward constraining acts of international violence was made in 1949 when the four Geneva conventions were signed, providing for improved standards of conduct in the wartime treatment of prisoners, the wounded, and civilians. Grave breaches of the convention were made punishable, but the enforcement mechanisms were not defined and thus remained subject to national jurisdictions. In 1951 and 1953 the possibility of creating an intentional criminal jurisdiction was considered by two different special committees of the United Nations. Detailed statutes and rules for such a court were formulated and debated, but in the cold-war atmosphere of that time, no consensus could be reached. A special committee of the United Nations that sought to define aggression encountered similar obstacles. By 1954, the ILC had completed its third draft of an international crime code (United Nations, 1954). The draft code outlined thirteen crimes punishable under international law as offenses against the peace and security of mankind. These included any act or threat of aggression, preparation for the use of armed force against another state (except in self-defense or pursuant to a decision of a competent United Nations organ), organization or support of armed bands aiming to enter the territory of another state, encouragement of terrorist acts abroad, any breach of armaments restrictions that had been accepted by treaty, annexation of foreign territory, genocide, violations of the laws and customs of war, and any conspiracy, incitement, or attempts to commit such actions. However, the international political atmosphere was not at this time conductive to agreement by the major powers, and in addition, the code needed a more explicit definition of the crime of aggression. Consequently, the United Nations decided to spend further work on the code until such a definition could be found.
The Nuremberg principles were reinforced by later resolutions in 1967 and 1968, which provided (1) that statuary time limitations could not apply to bar prosecutions against persons who and committed war crimes against humanity; and (2) that major war criminals should be denied political asylum (United Nations, 1968). At this time there was also a growing feeling, particularly among the newly independent nations, that certain violations of human rights should be added to the list of international crimes jeopardizing the peace. Flagrant forms of racial discrimination such as the apartheid practiced in South Africa were denounced in 1965 and 1966 as crimes against humanity. In 1970, the illegal seizure of aircraft was labeled an international crime comparable to piracy, and the use of mercenaries was declared illegal. In 1973 the United Nations adopted a convention to prevent and punish crimes against internationally protected persons, including diplomats. Omissions and ambiguities in the United Nations declarations and conventions dealing with international crimes impaired their effectiveness, but these documents served as manifestations of a growing popular sentiment that certain acts should be criminalized and punished. Nations that tortured and persecuted their own citizens because of race, religion, or political opposition found themselves publicly denounced by nongovernmental organizations for violating the new human rights standards. International criminal law and human rights law were emerging as new legal disciplines.
In the new atmosphere of détente prevailing during the early 1970s, the United Nations at last arrived at a consensus definition of aggression in 1974. The use of armed force by a state against the territorial integrity, sovereignty, political independence of another state was outlawed. The first use of force would give rise to a presumption of aggression. Attack, blockade, invasion, or the sending of armed forces into another state were some of the indicators of aggression. Many ambiguities were deliberately written into the definition as the price of agreement. Several states insisted that those seeking self-determination, freedom, and independence should remain legally free to seek their goals by every possible means. Final authority to decide whether aggression had taken place was left to the United Nations Security Council, where the major powers might exercise their veto power.
Despite its imperfections, the existence of a definition arrived at by consensus was another reflection of the universal to bring illegal acts of warfare under international legal control. The definition also cleared the way for resumed work on an international penal code and criminal court.
The Challenge Of The Future
By 1980, a quarter of a century had passed since the international criminal code and court had been actively considered by the United Nations. During that interval may peoples of the world had shed their colonial status and become independent members of the family of nations. These newcomers wanted to share in all decisions, and their perceptions frequently differed from those of the more developed countries. When the debate on a draft criminal code was renewed at the United Nations, it was felt that wrongs which had been universally condemned since the code was first drafted, such as terrorism, apartheid, the use of mercenaries, the illegal seizure of aircraft, crimes against diplomats, and the taking of hostages, should be included in the new document. Several states suggested that a number of transgressions not yet classified as crimes should be added to the revised list. These included breaches of treaties dealing with nuclear and biological weapons, pollution of the environment, economic crimes, torture, and various human rights violations. Some of the more powerful Western states and their allies were inclined to preserve the status quo, rather than consider a new code or court. The overwhelming majority of states, however, argued that the interests of world peace required codification of the emerging norms of international behavior.
Legal experts from various parts of the globe continued to call for a criminal code and court to cope with international crimes. An international criminal code, drafted in 1979 after many years of study by the International Association of Penal law, listed (in addition to political offenses) such crimes as trafficking in narcotics, counterfeiting, participating in the slave trade, bribery, and the theft of national treasures. A widespread increase in acts of terrorism during the mid-1960s heightened the awareness that a new mechanism was needed to deter disruptions of national and international security. In a dynamic world consisting of more than 150 sovereign states in varying stages of economic, political, and social development, it was clear that these differences could turmoil and breaches of the peace. What was viewed by victims as unjustified crimes was frequently heralded by its perpetrators as a justifiable struggle for freedom, self-determination, or some equally laudable objective. Without a common legal code defining the limits of permissible behavior, and without an impartial court to determine whether this code had been violated, there was no objective way to distinguish terrorism from heroism.
The international community is slowly evolving toward community. Practices that have been ingrained for millennia will not be altered quickly or easily, but the direction of change is discernible. In ancient times the peace of society depended upon vague moral codes. After each of the two world wars, nations strove to create a rule of law that would restrain aggression and deter some of the cruelties engendered by war. The Nuremberg judgments, unanimously affirmed by the United Nations, declared as a principle of law that all persons are entitled to protection against aggression and to the preservation of their fundamental human rights. Subsequent United Nations resolutions and conventions manifested a growing awareness that the peace and security of all peoples should be protected by law.
Despite inordinate delays, unbridled sovereignty is gradually being replaced by common efforts, however imperfect, to find acceptable and humane solutions to the problems that face the interdependent world community. This trend is evidenced by the creation of such relatively new institutions as the courts of human rights in Strasbourg and San Jose, Costa Rica, and the infant European parliament. These, together with regional associations and the United Nations agencies deal with world health, labor, refugees, women, children, pollution control, economic development, armaments limitations, space, and the environment, affect the lives of every human being.
What is needed to maintain the peace is acceptance, particularly by the powerful nations, of a new system with clear-cut standards of acceptable international behavior. Such a system would require the peaceful and compulsory settlement of disputes, as well as appropriate deterrence of those who seek to breach the established rules. The enactment of a code of offenses against the peace and security of mankind is on the United Nations agenda.
Nations stand before the challenge of establishing a more rational system of world order, in which code, court, and enforcement join together to help ensure respect for the law. It is not merely a matter of idealism, but of self-interest and survival. No one can say with certainty whether human intelligence will prevail against the ever-increasing risk of thermonuclear self-annihilation. But by defining, prohibiting, and punishing crimes against peace, international criminal law can play an important role in helping to maintain a more secure and tranquil world society.