The Development of International Criminal Justice

Richard Goldstone

Introduction

Before the Nuremburg Tribunal there was virtually no such thing as international

criminal justice. Indeed, even the concept itself would not have made much sense. Until the

Second World War, states were the subjects of international law, not individual human beings.

This situation changed dramatically, however, in consequence of the Holocaust, the crimes the

Nazi regime committed during World War II, and the creation of the Nuremburg Tribunal to

prosecute and adjudicate those crimes.

Although Nuremburg was a multi-national effort, the United States was primarily

responsible for establishing the Tribunal and for pushing its counterparts to conduct a fair trial—

as measured by the standards of the 1940s—of the Nazi leaders. Winston Churchill, it is well

known, was very much opposed to a trial. He, along with many others, preferred to line the Nazi

leaders up against a wall for summary execution. After all, everyone knew what they did, so why

waste time and money on a trial? However, the United States (and especially then Secretary of

Defense Henry Stimson) said we must not stoop to our enemy’s level; we must have a trial.

Eventually, Churchill was persuaded and, oddly enough, Sta lin (who had been executing people

by the millions not long before) favored a trial as well. For their part, the French were ambivalent

and went along with the Americans. The Nuremburg Tribunal was the consequence, and its

creation left many legacies.

This paper examines those legacies with an eye towards understanding how international

criminal justice developed and where it stands at present. The first section reviews the impact the

Nuremburg Tribunal had on developing key legal definitions and princip les in international

criminal justice, including the principle of universal jurisdiction. Section two examines the rise of

international criminal tribunals—in the former Yugoslavia and Rwanda—and contrasts their

operations with that of Nuremburg. Section three discusses ways that in recent years, a more

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broadly developed international criminal law has worked to deter actors from committing war

crimes during times of armed conflict. The final section turns to the present status of international

criminal justice; specifically, the International Criminal Court. It finds that while the International

Criminal Court is the logical (and long-anticipated) outgrowth of earlier legal precedents, the one

country that had championed those earlier initiatives and actually called for the creation of the

International Criminal Court—the United States—has become its chief opponent, casting doubt

on how effective international criminal justice will be in the future.

Nuremburg’s Legacies: Crimes against Humanity and Universal Jurisdiction

One legacy of Nuremburg is the concept of crimes against humanity. This innovation was

based on the idea that some crimes are so enormous and horrid, that they constitute crimes not

just against the immediate victims or the people of countries where they are committed, but

against all of humankind—and as such, they can be tried in any country in the world. This

concept, in turn, gave birth to the principle of universal jurisdiction, to which I will refer a bit

later. Nuremburg was truly a watershed in the global community’s approach towards crimes of

that magnitude.

One major consequence of WWII was to make the rights of individual human beings a

genuine international concern. Before the war only governments had been subject to international

law, but when world leaders drew up the United Nations Charter as WWII wound down, they

made explicit reference to human rights in the charter’s preamble and in other sections and

articles of this important document. The UN Charter was followed by the non-binding Universal

Declaration of Human Rights, and again, the United States—and particularly Eleanor

Roosevelt—was the prime mover. Mrs. Roosevelt, for example, had to convince the State

Department that the Declaration would not be binding upon member states, because the State

Department, along with the United Kingdom, various colonial powers, and Australia, was very

much opposed to any international oversight of domestic, internal policies. Such opposition

reflected several unfortunate realities: the American Civil Rights Movement was in its infancy,

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and legally sanctioned racial segregation and second-class citizenship were issues Washington

preferred not to open up to international inspection; the colonial powers still retained colonies;

and Australia prized its all-white immigration policy. Yet, once convinced of the declaration’s

non-binding features, in 1947 these states agreed unanimously in the UN General Assembly to

approve the Universal Declaration of Human Rights. Like the decision to create the Nuremburg

Tribunal, this decision had subsequent effects too, and by the 1960s it had given birth to binding

treaties and international conventions that dealt with social, political, and even gender-equality

rights.

A second important legacy of Nuremburg was the 1948 Genocide Convention. This

agreement clearly defined this “crime of crimes” and established the principle that jurisdiction to

try genocide would rest in domestic courts, national courts, and in a specifically designated

international court. Although the convention’s stipulations did not create universal jurisdiction,

because the covenant came so soon after (and appeared to build upon) Nuremburg which was

itself a response to the Holocaust, many people assumed that the near future would br ing an

international criminal court in which jurists would try individuals for acts of genocide.

Unfortunately, the Cold War dashed these early hopes; in the East-West face-off, there

was no prospect at all that the Soviet Union (or China) would agree to set up an international

criminal tribunal. Consequently, this idea would lie dormant for the Cold War’s forty-five-year

duration. Nevertheless, the principle of universal jurisdiction still began to gain ground, and its

first use occurred in the Geneva Conventions of 1949. After the Second World War, the worst

war crimes were redefined or reclassified as “grave breaches” of the Geneva Conventions. Such

crimes included murder, torture, and other serious forms of war crimes. They did not, however,

include rape. Rape was the one serious crime the Conventions omitted and, in my view, it was

omitted primarily because these laws were drafted by men and for men (who in those days fought

wars). The Geneva Conventions obligated all signatory states to bring to justice in their courts

anyone that was suspected of committing a grave breach anywhere in the world. No matter how

remote or tenuous the connection was between the crime and the locale where a trial was staged,

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there was universal jurisdiction. The Geneva Conventions also stipulated that any state unable or

unwilling to conduct such a trial still had a secondary obligation to hand that person over to a

government that was willing and able to do it. In these ways, the 1949 accords became the first

time the princip le of universal jurisdiction was codified into an international convention.

The second time this occurred related to my own country, South Africa. In 1973 the

United Nations passed a convention that declared South Africa’s apartheid system to be a crime

against humanity and, as such, an international crime. As with the 1949 Geneva Conventions, the

1973 UN convention provided universal jurisdiction for persons suspected of committing the

crime of apartheid. Unlike Geneva, however, not a single government ever used this convention

to indict a person for this crime. Why? In large part because the Western nations that traded with

South Africa had their own race problems, and they did not fancy setting a precedent that might

boomerang should some nation invoke the 1973 convention against them. Had that convention

been taken seriously, instead of becoming a dead letter, South African apartheid may well have

come to an end much earlier.

The third time that universal jurisdiction was established was in regards to the 1984

Convention Against Torture. This accord did have serious consequences because it led to the

1998 arrest in London of Chile’s former dictator, General Augusto Pinochet. In times past, this

scenario—a former Chilean head of state being arrested in a London clinic, at the request of a

Spanish magistrate, for crimes committed in Latin America almost twenty years before—would

likely have struck international lawyers as preposterous. Yet, thanks to the effective application

of the universal jurisdiction principle, in 1998 the preposterous became quite real and has

produced ripple effects ever since. One such case concerned the former dictator of Indonesia,

Mohammed Suharto, who canceled long-planned medical treatment in Germany after rumors

surfaced that an international arrest warrant awaited his arrival at the Frankfurt International

Airport. Another case concerned Haile Meriam Mengistu, Ethiopia’s ex-dictator, who gained

sanctuary in Zimbabwe. Just a few years ago Mengistu traveled to Johannesburg for medical

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treatment, but made a hasty retreat to Zimbabwe after Human Rights Watch of New York

publicized his excursion.

As these cases illustrate, one of the greatest insults to human decency has been the

practice of oppressive dictators—responsible for hundreds of thousands of deaths—to seek for

themselves the best medical treatment the world can offer. Fortunately, thanks to universal

jurisdiction this practice has become more difficult to maintain. Another assault on human

decency has been these dictators’ penchant to vacation in locales where human rights are

protected. Again, though, thanks to universal jurisdiction, purveyors of mass human misery

increasingly have had to make do with holidays at home rather than the South of France or the

Italian Riviera.

The Rise of International Criminal Tribunals

As detailed above, the legacies of the Nuremburg Tribunal comprise much of what we

know today as International Criminal Law, including International Humanitarian Law, the

Genocide Conventions, the Geneva Conventions, the grave breaches of those conventions, and

the concept of universal jurisdiction. Still, for many years these legal developments were not

worth much more than the paper they were printed on in the absence of courts to enforce them or

judges to apply and use them. The upshot was that for decades after the Second World War,

“International Criminal Law” held virtually no practical, pragmatic relevance; instead, it became

“academic” in the most pejorative sense. In May 1993, however, this situation changed

dramatically when the UN Security Council created the first-ever International Criminal Tribunal

for the former Yugoslavia. Unlike Nuremburg, which was a multinational court created by the

victorious powers of WWII, the Yugoslavia Tribunal was an international court presided over by

judges from eighteen countries, using international laws that had never been used in courtroom

legal proceedings before then.

To appreciate how extraordinary this development actually was, we need only recall that

until this tribunal’s birth in 1993, Humanitarian Law was rarely, if ever, taught in military

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colleges—even in democracies. True, this subject was taught at West Point, the U.S. National

Defense University, and the Air Force Academy at Colorado Springs. It was also taught at army

colleges and universities in some Western European countries. Yet, apart from these instances,

International Humanitarian Law was a non-subject before 1993 in virtually every other academic

setting; most people knew nothing about it. However, after the International Criminal Tribunal

was established for the former Yugoslavia, this situation changed dramatically. On the one hand,

International Humanitarian Law became a tremendously important academic subject, taught

routinely at the top law schools in most Western democracies. On the other hand, the subject also

garnered such global publicity that today hardly a week goes by without major newspaper reports

or television discussions of issues ranging from the Milosevic trial and Rwanda tribunal, to

Darfur and Uganda. In short, the UN’s decision to create the International Criminal Tribunal for

the former Yugoslavia has been a watershed in the development of International Humanitarian

Law.

The decision to establish the international war crimes tribunal for Yugoslavia reversed a

pattern of non-action in other cases of similar dimension. For example, the UN Security Council

did not set up such an institution when Pol Pot, Cambodia’s dictator, waged genocide against his

own people, killing well over one million. Nor was there any suggestion of such a tribunal when

Saddam Hussein committed genocide against his own Kurdish people or used chemical weapons

in the Iran-Iraq war. Why, then, did the Security Council establish the International Criminal

Tribunal for Yugoslavia to prosecute crimes perpetrated against the Muslim population of Bosnia

and Herzegovina? Five factors, it seems, helped produce this surprising turnaround. First, by

1989 the Cold War had ended and by 1993, Russia and China were prepared to vote positively to

establish such an international criminal tribunal. Second, these terrible crimes were being

committed in Europe. Recall that following WWII, Europeans had vowed never again to tolerate

such atrocities, yet here they were being perpetrated in Bosnia and Herzegovina, merely a half-

hour flight from Venice. Third, the international community was clearly influenced by the “CNN

factor.” Photographs of emaciated men confined behind barbed wire death camps in Bosnia

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reminded West Europeans, especially, of the Nazi concentration camps they had pledged never

again to countenance. Fourth, human rights organizations had publicized the war crimes so

broadly that the media attention pressured Western governments to act. Finally, the United States

strongly supported the tribunal’s creation and helped shepherd the proposal successfully through

the Security Council.

A year after the Security Council established the International Criminal Tribunal for

Yugoslavia, genocide came to Rwanda, where nearly a million people were killed in less than 100

days. Rwanda itself asked the Security Council to create a second tribunal, which it did. As with

Nuremburg—and Yugoslavia’s Tribunal for that matter—the United States again played an

important role supporting the creation of the UN’s ad hoc tribunal for Rwanda. In fact, without

U.S. political muscle, neither tribunal would have come into being. It was the United States (i.e.,

the Clinton administration), and particularly Madeline Albright, who was then the U.S.

Ambassador to the United Nations, that pushed their creation. Albright devoted tremendous

personal effort toward establishing these tribunals and ensuring that they became highly visible

and effective working institutions.

Like any new institutions, the new UN tribunals experienced their share of problems

(such as getting suspects arrested or obtaining sufficient operating funds), but they also

experienced their share of success. One of their greatest accomplishments was to demonstrate that

international courts could actually work. Prior to this, many people had questioned whether

judges from eleven countries, or prosecutors from forty countries, could actually collaborate and

work together to produce fair legal processes and trials.

One reason for this skepticism was the contrast between how Nuremburg had operated

and how these tribunals hoped to function. At Nuremburg, for example, there was no

international prosecutors’ office. Justice Jackson, the chief prosecutor from the United States,

worked only with Americans and American investigators. Similarly, the British chief prosecutor

worked only with British personnel, the Russian with Russian, and the French with French.

Together, they established a division of labor such that each of the four officers looked after

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different aspects of the war indictments. Although quite practical, this approach precluded

establishing an international office to oversee the trial, which in effect meant there was no

genuine international trial, but rather a multinational trial. By contrast, the Yugoslavia and

Rwanda tribunals—headquartered in genuine international offices—established beyond any

question that international courts composed of judges and prosecutors from common law

countries, civil law countries, and from Russia and China, could work together to produce fair

trails. This achievement was no small feat.

These tribunals’ second, and equally important, success was the way they helped develop

international law. After years of neglect, these courts picked up the written but unused statutes

that comprised International Humanitarian Law, then interpreted and applied them. These actions,

in turn, spurred the law’s further evolution in different areas, one of which (perhaps the most

important) is in relation to gender-related crimes. To cite one example, systematic mass rape had

been used as a tool of war for ages, but it was never legally recognized or prosecuted as a war

crime. In fact, as the Nuremburg records make clear, in the 1940s, war crimes prosecutors did not

call a single witness to give evidence about gender-related crimes, of which there was a plethora.

One American prosecutor declined to read aloud the evidence from affidavits that dealt with

gender crimes because, he insisted, it was too sensitive and would upset people (in court,

therefore, he simply handed these affidavits up rather than read them out loud). The Tokyo War

Crimes Tribunal witnessed the same pattern of non-action. During these trials one of the charges

referred to the infamous rape of Nanking, yet prosecutors did not call a single witness—not one

woman—to testify, and the opinion the Tribunal handed down in Tokyo contained only one

paragraph related to rape.

In short, as late as WWII, rape was simply an ignored topic. By the 1990s, however, this

situation had changed markedly. When I served as chief prosecutor in The Hague for the

Yugoslavia Tribunal, for example, letters poured into my office from the United States and

Western Europe imploring us to prosecute systematic, mass rape as a war crime. My office did

just that, and in the process, we recognized mass rape as both a crime against humanity and a

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grave breach of the Geneva Conventions. The Rwanda Tribunal helped develop international law

respecting rape and war crimes even further. In a landmark opinion the Tribunal held that

systematic mass rape, as practiced in the Rwandan atrocities, constituted genocide—the first time

in history that mass rape was legally recognized as this monstrous crime of crimes.

The Yugoslav and Rwandan tribunals helped develop international law in a second area

too, mainly by narrowing the gap between the levels of protection that civilians are entitled to in

civil wars as opposed to international wars. For political reasons, the Laws of War had drawn an

artificial distinction between international and civil war, whereby the former entitled civilians to

far greater protection than the latter. Government leaders had strong interests in ensuring that

their own forces were well looked after should they became prisoners of war, but little interest in

permitting international law to regulate internal affairs (riots, insurrections, domestic terrorists,

etc.). The upshot was an unfortunate dichotomy that afforded civilians unequal legal protection.

This dichotomy changed, however, mainly due to that conflict’s unique nature and the operations

of the Yugoslavia War Criminal Tribunal.

On some days, the conflict in the former Yugoslavia was clearly an international war,

while on other days it was a civil war. This seesaw pattern, in turn, helped reveal the artificial

distinctions embedded in international law. For example, when Slobodan Milosevic pulled his

troops out of Bosnia and Herzegovina (on the war’s 100th day), the conflict suddenly became a

civil war—but a civil war in which the same crimes and atrocities continued to occur. Once this

dynamic exposed the artificial distinctions in international law, the judges in The Hague began to

narrow the “protection gap” provided in international and civil wars, and to assert that serious war

crimes apply no less to civil wars than to international ones.

International Law: An Effective Deterrent?

In light of the events described above, the question becomes whether international law

has finally produced a credible deterrent effect that might prevent actors from committing war

crimes in the first place. Of course, because deterrence itself means to discourage through fear, it

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is difficult to prove deterrence has worked (how, for example, can one be confident that gross

violations of international law would have occurred had these UN tribunals not been created and

set in operation?). Still, there are two cases related to the Yugoslavia Tribunal that one might

reasonably infer provide at least some evidence of a deterrent effect. One case was Operation

Storm—the Croatian Army’s fierce assault that drove Serb forces out of Croatian territory.

President Franjo Tudjman (who was certainly no angel) warned his troops, as did his Army

commanders, not to commit war crimes. When they did anyway, The Hague Tribunal indicted

various Croat army members for war crimes. In this case I would submit that deterrence was at

work, because: (1) these crimes would almost certainly have been worse and more plentiful had

the Croat government not public ly taken a “no war crimes” stance, and (2) the government would

not have taken this stance had President Tudjman and his military leaders not been mindful that a

criminal tribunal was watching.

The second case of deterrence applies to NATO and the United States. To stop ethnic

cleansing in Kosovo, the NATO countries bombed Serb positions for 78 days straight. Although

this bombing campaign killed nearly two thousand civilians, in some respects this figure was

remarkably low, for it was the first time in over 100 years that countries had made sustained

aerial bombing the centerpiece of their war strategy without specifically targeting civilians. In the

First World War, the ratio of troops to civilians killed was about ten-to-one, largely because

armies fought against armies and the basic idea of fighting a war was to kill the opposing army,

not civilians in the cities. By WWII, however, the ratio of combatant to non-combatant deaths had

shrunk to about one-to-one. This figure reflected a dramatic shift in military tactics as seen in the

Nazi blitz bombing of London and Coventry, Britain’s return fire-bombing of Dresden, and of

course, the American atomic destruction of Hiroshima and Nagasaki. During the Second World

War, such actions transformed civilians into combat targets, and unfortunately, this trend only

accelerated thereafter. In the Korean War, for example, 84 percent of the casualties were civilians;

in the Vietnam War, 90 percent of the casualties were civilian; and in the nearly 200 civil wars

since WWII, 90 percent of the casualties have been innocent civilians. In short, during the second

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half of the twentieth century, civilians became the intended targets of war, in complete and utter

violation of the Geneva Conventions and Humanitarian Law.

It is against this backdrop that the criminal tribunal in The Hague emerged, and

international law gained increased currency. As we have seen, it was taught in law schools, in

military academies, and it was increasingly discussed in the media. By the time NATO forces

began their 1998 aerial campaign over Kosovo, military leaders in Washington, London, Bonn,

and Paris were compelled—for the first time in history—to plan and conduct their campaign with

military lawyers close at hand. No doubt the generals found it frustrating to have attorneys

stipulating what were and were not justifiable military targets, and urging the generals to select

targets that minimized civilian deaths as much as possible. Such legal precautions were

something new in military planning and, as a result, the number of civilian casualties was far

lower than it would have been just ten years before. In this case, as in Operation Storm, anecdotal

evidence suggests that international law has indeed reached a point of deterring some actors from

committing war crimes. While this evidence is hardly definitive, the trends themselves are

hopeful. With this in mind, where does international criminal law stand today, and what might the

future bring?

The International Criminal Court and the Future of International Criminal Justice

In 1988, UN Secretary General Kofi Annan convened a diplomatic conference in Rome

to discuss a treaty that would create the permanent International Criminal Court (ICC). Again, the

United States—which had encouraged Annan to convene just such a meeting—played a key role

and was largely responsible for the conference. The Pentagon, however, determined that the

International Criminal Court would not be in the U.S. national interest, and in the 1990s it

pressured the Clinton administration to scale back its support for the ICC. The military’s basic

concern was that such a court would be biased against Americans, and that once established, it

might start hauling Americans before runaway judges and prosecutors. Thus, ironically, having

encouraged the Rome meeting to begin with, in the end the United States voted against the Rome

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treaty, joining China, Iraq, Israel, Qatar, and Syria in opposition to the 120 other states who

supported the treaty—including every member of the European Union, Canada, South Africa,

Australia, and many other democracies.

The Rome treaty provided that the International Criminal Court would come into being

once 60 states had ratified it, and the ICC’s supporters anticipated that this would take at least a

decade. In fact, however, it only took four years. As of this writing 99 states have ratified the

Rome treaty (the United States remains a holdout), including 27 states in Africa, 25 in Western

Europe, 19 states in Latin America, and many others across Ea stern Europe and Asia. Thus,

notwithstanding U.S. opposition, in 2002 the International Criminal Court began operating with

18 jurists from around the world, and Argentina’s Luis Moreno-Ocampo (who prosecuted war

crimes perpetrated during Argentina’s “dirty war”) serving as its first chief prosecutor. Of the

three cases that comprise the Court’s present docket, all are from Africa: Uganda, the Democratic

Republic of the Congo, and the Darfur war crimes committed in the Sudan.

At France’s insistence, the UN Security Council voted to refer Darfur’s atrocities to the

ICC in the spring of 2005. The United States opposed (but did not veto) the referral, mainly

because Washington feared it would confer legitimacy upon the Court—a legitimacy that the

Bush administration had worked hard to undermine. These foot-dragging efforts have made the

ICC much weaker than it could be were the United States to offer the Court its full political,

financial, and moral support. Still, the Darfur referral has taken place and the investigation is

ongoing. Meanwhile, the president of Uganda, Yoweri Museveni, has referred crimes committed

by the Lord’s Resistance Army of Uganda to the International Criminal Court for investigation;

the first indictments have been readied and peace negotiations are underway. However, the chief

negotiator has threatened to resign if a single indictment is issued, claiming that she cannot

mediate peace in the face of criminal prosecutions against the very people she seeks to mediate.

This ultimatum has complicated the Court’s work considerably. Should the ICC prosecutor bring

out the indictments regardless of how this affects events on the ground? Should he postpone

handing down indictments in the interests of peace, perhaps only to see the peace negotiations

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themselves evaporate? How might such developments affect the prosecutor’s own credibility—

and by extension, the ICC’s? Nor is the dilemma the Court faces in Uganda unique; similar

problems could easily arise in Darfur.

It is a tragedy that after having led the international community’s efforts to develop

International Criminal Law and apply it at critical historical junctures, the United States not only

has abandoned this leadership role, but since the Bush administration came to power, has actively

sought to lead the world in the opposite direction. Such efforts, I suggest, do not reflect the values

for which the United States stands, because Americans as a people oppose war crimes as much as

they oppose granting impunity to war criminals. It is my sincere hope that in the near future the

United States will reclaim its historic mantle and demonstrate renewed leadership in the task of

ensuring a viable, comprehensive, and legitimate system of international criminal justice.

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