Perhaps the crucial point which has given the judgment of the IMT its place as the starting point for contemporary international criminal law was the fact that one of the first acts of the newly created United Nations was the General Assembly’s affirmation of ‘the principles of international law recognised by the Charter of the
35 4 Bevans 20 (as amended on 26 April 1946).
36 See generally RH Minear,Victor’s Justice: The Tokyo War Crimes Trial,1971, Princeton: Princeton UP.
37 ES Kopelman, Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial’, 23NYUJ Intl L & Pol(1991), 373.
38 M Ratner and J Abrams,Accountability for Human Rights Atrocities in International Law,1997, Oxford:
OUP, p 164.
Nuremberg Tribunal and the judgment of the Tribunal’.39In the following year, the Assembly requested the International Law Commission (ILC) to formulate the Nuremberg judgment and Charter provisions into a set of principles.40The ILC considered this request during its first session in 1949 and concluded that, since these principles had already been affirmed by the General Assembly, its task should not be to express its appreciation on their content, but rather to formulate them as substantive principles of international law.41The report of special rapporteur, Spiropoulos, was adopted by the Commission, which subsequently forwarded its formulation of the seven principles,42together with their commentaries to the General Assembly.43The Assembly asked Member States for their comments and requested the ILC to prepare a Draft Code of Offences Against the Peace and Security of Mankind.44
The Commission’s work in preparing the Draft Code of Offences was undertaken in two distinct phases, from 1947 to 1954, and the second from 1982 to 1996.Although it was successful in formulating and convincing States to adopt the ICC Statute in 1998, completion of the Draft Code is still eluding it. The ILC had made such progress by 1951 that it submitted the Draft Code to the General Assembly, but in light of the comments received, it resubmitted its final version in 1954.45The Assembly felt, however, that the definition of aggression raised unsurpassed problems, and decided to postpone consideration of the Code until further work was done on the question of aggression.46A definition on aggression was adopted with consensus some 20 years later in 1974,47and the Commission once again suggested that it might resume examination of the Code. This was done in 1981, when the Assembly invited the Commission to examine the Code as a matter of priority, taking into account ‘the results achieved by the process of the progressive development of international law’.48 The Commission resumed its work in 1982 and by 1996 it had adopted a final set of
39 GA Res 95(1), GAOR Resolutions, First Session, Pt II, p 188. Significantly, in 1963, the Lord Chancellor told the UK Parliament that the Nuremberg Principles were ‘generally accepted among States and [had] the status of customary international law’. Hansard, HL, Vol 253, col 831, 2 December 1963;
BPIL 1963, p 212.
40 GA Res 95(I) (11 December 1946).
41 YBILC (First Session, 1949), p 282.
42 Principle I, Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment; Principle II, The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law; Principle III, The fact that a person who committed an act which constitutes a crime under international law acted as a Head of State or responsible government official does not relieve him from responsibility under international law; Principle IV, The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him; Principle V, Any person charged with a crime under international law has the right to a fair trial on the facts and law; Principle VI, Crimes against Peace, War Crimes and Crimes against Humanity are punishable as crimes under international law; Principle VII, Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.
43 YBILC (Second Session, 1950), Vol II, p 374.
44 GA Res 488(V) (12 December 1950).
45 YBILC (Sixth Session, 1954), Vol II, p 149.
46 GA Res 897(IX) (4 December 1954).
47 GA Res 3314(XXIX) (14 December 1974).
48 GA Res 36/106 (10 December 1981).
20 draft Articles constituting the Code of Crimes Against the Peace and Security of Mankind,49a number which constituted a substantial reduction from the initial proposals and drafts that had been presented since 1982. The Commission, however, made it clear that the inclusion of certain crimes in the Code did not affect the status of other crimes under international law, nor did the adoption of the Code preclude the further development of this area of law. As to the implementation of the statute, the Assembly was presented with two options: adoption of an international convention, or incorporation into the statute of an international criminal court. Since the Preparatory Committee for the establishment of the ICC had already commenced its work, the Assembly drew the attention of the participating States to the relevance of the Draft Code.50
On 17 July 1998, the Statute of the ICC was adopted, without the Code having ever entered into force. It is more than evident, however, that one of the significant catalysts for the adoption of the ICC Statute as well as the establishment of the ad hoc tribunals for Yugoslavia and Rwanda was the work of the ILC on the Draft Code.
From a legal point of view, the possible adoption of the Code in light of the ICC would be relevant only for those countries that had not ratified the ICC Statute, while it would also reaffirm the substantive law of that statute and other international conventions. Its application might even instigate the extension of the ICC’s jurisdiction to encompass other international crimes, or bind those States that are not parties to particular multilateral criminal conventions. Overall, the Draft Code represents an example of the variety of processes that exist within the science of international law. The ILC worked diligently on a ‘difficult’ set of rules on the basis of State consent, waiting patiently for the time they matured into solid concepts, but did not insist on their adoption in the form contemplated in its reports, but in any form the international community could reach agreement on. This turned out to be the ICC, but it could very well have been the Code itself.
49 See ILC Draft Code Commentary, UN Doc A/51/10 (1996); 18 HRLJ (1997), 96.
50 GA Res 51/160 (16 December 1996).