From Nuremberg to The Haag Von Nürnberg nach Den Haag The birth of the International Criminal Court | From Nuremberg to The Hague

The birth of the International Criminal Court

Rome Statute of the ICC, preamble:
“…Conscious that all peoples are
united by common bonds, their
cultures pieced together in a shared
heritage, and concerned that this deli-
cate mosaic may be shattered at any

The idea of an international criminal court after 1946

“…we must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow,” declared US Chief Prosecutor Robert Jackson in his opening statement at the Nuremberg trial on 21 November 1945. He went on to say “…that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”

This “promise of Nuremberg” remained unfulfilled in the decades that followed, but it was not forgotten. The Convention on the prevention and punishment of the crime of genocide adopted in 1948 expressly envisaged the creation of a permanent international criminal court. The UN International Law Commission reaffirmed the Nuremberg Principles and worked on a Code of Offences and a statute for a future court, albeit without much public attention. And whenever tyrants violated human rights, people called for a “new Nuremberg”.

The road to Rome

In the 1990s, following the end of the Cold War, the time finally seemed ripe to establish a permanent international criminal court for all core international crimes, which would subject everybody to the same law. Yugoslavia and Rwanda had shown that it was possible to establish international courts for specific situations. But what with civil wars and massacres in many parts of the world, it was clear that establishing an ad-hoc court for each and every situation as it arose was not a viable strategy. The willingness and interest of many states in a permanent and independent international criminal court with comprehensive jurisdiction increased as a result. In 1994, the International Law Commission submitted a complete draft statute for such a court. The UN General Assembly thereupon convened an ad-hoc committee on the establishment of an international criminal court, which submitted a report in 1995. Work on the criminal court then began in earnest. The UN convened a Preparatory Committee (known in short as “PrepCom”) which over the next two years worked to bring the ILC draft into line with the wishes of the interested states. A large number of human rights organizations were indirectly involved in this process. In April 1998, PrepCom submitted a draft on which broad agreement had been reached, thus emboldening the UN General Assembly shortly afterwards to convene a conference of states to adopt a statute and thereby establish the court.

The Rome Conference

The Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court took place under the aegis of the UN in Rome from 15 June to 17 July 1998, and went down in history as the “Rome Conference”. The number of participating states – 160 – was unusually large, and was a sign of the widespread awareness among the international community of the need for such a court. Intergovernmental organizations and human rights NGOs were also invited to attend. These played a very active and constructive role, but were naturally not entitled to vote.

After long, intensive discussions, which centred above all on the independence of the court, the Statute was approved by the representatives of 120 states. Only seven representatives voted against the Statute; 21 abstained. The text of the Statute was thus adopted, but the Statute itself had yet to enter into force, for it was not a UN document, but an international treaty which all governments would have to sign, irrespective of the position taken by their representatives at the Rome Conference. It would then be subject to ratification, like any other treaty.

This large number was reached in record time. After only four years, 60 states had ratified the treaty. The figure now (as of January 2012) is 120, and a number of other states are well on their way to ratification. The Western European states and the European Union as well as the states of South America have all joined the ICC, half of the African states are also members. However, some major states, including the USA, Russia, China and India, continue to distance themselves from the Court. Nevertheless, the establishment of the ICC was a historic step in the development of international law. Perpetrators of core international crimes, wherever they are in the world, know that one day they could be held accountable before this Court.