International tribunals

SIGNIFICANCE: International tribunals enable countries to cooperate in bringing to justice perpetrators of such crimes as genocide and terrorism.

Although governments are free to prosecute individuals accused of various war crimes within their own domestic jurisdictions, many have decided on various occasions to establish international tribunals for this purpose. Reasons for this vary. Sometimes governments desire to place pressure on particular governments to desist from commission of war crimes, as was the case in the former Yugoslavia. Sometimes the deeds committed by governments and their officials are so grave and outrageous that other governments wish to make an example of them by attracting more widespread publicity and thereby promoting a climate conducive to future deterrence. This happened after World War II in the Nuremberg Trials. As the International Criminal Court (ICC) illustrates, governments may wish to establish a more effective global mechanism to deter and punish war crimes. The existence of international tribunals does not prevent governments from taking decisive domestic action to try and punish war crimes, but it does offer them some flexibility in determining when, where, and how to bring accused war criminals to justice.

The Nuremberg Experience

Following World War I, the Treaty of Versailles provided for the possibility of extensive trials of German officials accused of violating the customs and laws of war. Of the nearly nine hundred persons originally listed for trial, only a dozen were actually tried, and only half of them received sentences upon conviction. However, the nature and scope of atrocities committed during World War II by Germany’s Nazi regime dwarfed those committed during World War I, and a horrified international community took determined steps to ensure that high-ranking Nazi government officials would face international justice for their crimes.

Agreement was reached in London to establish the International Military Tribunal, which came to be known as the Nuremberg tribunal. Three classes of crimes were outlined, including the uncontroversial class of war crimes—which were widely accepted by governments as part of international customary law—and the more controversial crimes against peace and crimes against humanity, which represented new laws which could only give rise to ex post facto punishment. The vast majority of individuals sentenced under the Nuremberg Trials were convicted of traditional war crimes, while only two were convicted for crimes against humanity alone.

With regard to war crimes, the Nuremberg trials set aside sovereign immunity claims by government officials, and it revoked the traditional defense by which soldiers could claim immunity from prosecution under the principle of following superiors’ orders. Trials were also held in the Far East, using the same threefold classification of crimes. More than seven thousand persons were arrested under the terms of the two tribunals, around forty-six hundred persons were tried, and nearly thirty-seven hundred were convicted, more than one thousand of whom received death sentences.

Post-World War II Trends

Following World War II, governments returned to the more traditional practice of dealing with war crimes within their own military justice systems or by their own national courts, including such famous trials as those involving Nazi criminal Adolf Eichmann , who was tried and convicted to a death sentence in an Israeli court. The United States Army tried six of its own military personnel for the My Lai massacre during the Vietnam War, but only Lieutenant William L. Calley, Jr., was convicted. National tribunals and courts also dealt with increasing numbers of skyjacking attempts through extradition agreements and domestic trials. Similarly, terrorists could also be subjected to domestic legal action even though their crimes took on an increasingly international character.

As the range of criminal activities grew, along with the civil wars that produced many grossly inhumane situations, the international community once again took steps to highlight the gravity of various war crimes and to pursue trials in international settings. The first international tribunal following Nuremberg was created by the United Nations Security Council in 1993 to address the problem of so-called ethnic cleansing during the Balkan Wars in the former Yugoslavia. The International Criminal Tribunal for Yugoslavia (ICTY) eventually tried and sentenced war criminals on all sides of the Bosnian civil war, including Bosnian Muslims and Croats, as well as Serbs, with the most celebrated example being Slobodan Milošević, the former president of Yugoslavia.

In 1994, the U.N. Security Council established a second regional tribunal, the International Criminal Tribunal for Rwanda (ICTR), to bring to justice extreme Hutus in Rwanda who were responsible for the ruthless massacres of hundreds of thousands of Tutsis and moderate Hutus in the Rwandan genocide. Many prosecutions were secured under the ICTR, where the death penalty does not apply, while the Rwandan government tried and convicted hundreds more, many of whom were executed.

The International Criminal Court

With egregious abuses of human rights burgeoning in dozens of civil wars around the world, and with the sense that regional tribunals for each would be a cumbersome approach, momentum grew in the 1990s to establish an International Criminal Court (ICC), which would have a universal jurisdiction to try individuals who escape national legal action. Disputes arose during the negotiation of the ICC statute owing to differing American and European constitutional and legal approaches. Thus, when the ICC statute was opened for ratification, the United States sought revisions, many of which were ignored. The United States then announced that it would not ratify the statute. This raised controversy, but both the Clinton and George W. Bush administrations expressed concerns that American military personnel could be subjected to frivolous suits under the ICC statute.

Since Russia's invasion of Ukraine in 2022, discussions have taken place about how to prosecute Russia for the crime of aggression because the ICC does not have jurisdiction to prosecute individuals for this crime. Those committing the crime of aggression use military force to commit a large-scale aggressive crime. In terms of seriousness, the crime of aggression is comparable to genocide and war crimes. Proposals have been made to establish a special tribunal between the United Nations (UN) or the Council of Europe (CoE) and Ukaine, but as of 2024, no decision had been made. Other suggestions include amending the ICC's power to accept referrals by the UN General Assembly to prosecute aggression; establishing a hybrid court in Ukraine with international support; establishing an international court with Ukraine's consent; and creating a treaty between interested countries to create a special tribunal.

Conclusion

Whether by international, regional, or ad hoc tribunals, or by national action, governments have shown an increasing desire to take action against individuals who are accused of major war crimes. The crimes themselves, as well as the efforts to implement international justice, nevertheless remain charged with controversy.

Bibliography

Bassiouni, M. Cherif, and Peter Manikas. The Law of the International Criminal Tribunal for the Former Yugoslavia. Irvington-on-Hudson, N.Y.: Transnational, 1996. An extensive collection of documents with background and commentary on the negotiation, establishment, and operation of the Tribunal for Yugoslavia.

Butchard, Patrick. "Conflict in Ukraine: A Special Tribunal on the Crime of Aggression." House of Commons Library, 22 Feb. 2024, commonslibrary.parliament.uk/research-briefings/cbp-9968/. Accessed 15 July 2024.

Nuridzhanian, Gaine. "International Enough? A Council of Europe Special Tribunal for the Crime of Aggression." Just Security, 3 June 2024, www.justsecurity.org/96320/council-of-europe-ukraine-tribunal/. Accessed 15 July 2024.

Politi, Mauro, and Giuseppe Nesi, eds. The Rome Statute of the International Criminal Court: A Challenge to Impunity. Burlington, Vt.: Ashgate, 2001. A collection of essays by noted legal and human rights specialists concerning the Rome Statute.

Schabas, William. An Introduction to the International Criminal Court. 2d ed. New York: Cambridge University Press, 2004. Historical assessment of the formation of the ICC and the Rome Statute.

Sewall, Sarah B., and Carl Kaysen, eds. The United States and the International Criminal Court: National Security and International Law. Lanham, Md.: Rowman & Littlefield, 2000. A collection of essays by distinguished academics and practitioners concerning the complications of U.S. participation in the ICC.

Von Glahn, Gerhardt. Law Among Nations: An Introduction to Public International Law. New York: Longman, 1996. Chapters in this standard text provide background to the development of international criminal law and the punishment of war crimes by national courts and international tribunals.