Professional Documents
Culture Documents
Contents
1
1.1
History
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2
Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2.1
State parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.2.2
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.3.1
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.3.2
Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4.1
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4.2
1.4.3
Victim participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4.4
Reparations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.4.5
1.4.6
Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.5.1
Headquarters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.5.2
Detention centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.5.3
Other oces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.6
Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.7
10
1.8
Situations examined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
1.9
Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.9.1
United Nations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.9.2
Nongovernmental organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
1.10 Criticisms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
13
14
14
1.10.4 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
14
1.3
1.4
1.5
ii
CONTENTS
1.11 See also . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
14
20
21
International court
22
2.1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
2.2
22
2.3
22
2.4
23
2.5
Lectures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
2.6
References
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
2.7
External links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
24
3.1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
3.1.1
24
3.1.2
25
3.1.3
26
3.2
Organisation
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26
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
26
3.2.1
Judges
3.2.2
Procedure
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
3.2.3
28
Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
3.3.1
Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
3.3.2
Advisories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
29
3.4
Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
3.5
See also . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
3.6
References
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
3.7
Bibliography
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
3.8
External links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
3.3
History
United Nations
34
4.1
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
4.1.1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
4.1.2
35
4.1.3
35
4.1.4
36
4.1.5
Post-Cold War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
37
4.2.1
General Assembly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
4.2.2
Security Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
4.2
CONTENTS
4.2.3
Secretariat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
39
4.2.4
39
4.2.5
40
4.2.6
Specialized agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
4.3.1
Group of 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
Objectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
41
4.4.1
41
4.4.2
Human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
4.4.3
42
4.4.4
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
4.5
Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
43
4.6
44
4.7
See also . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
4.8
Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
45
4.9
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
4.9.1
Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
46
4.9.2
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
49
50
50
Appellate Body
51
5.1
51
4.3
4.4
iii
External links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
6.1
Composition
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
6.2
Current judges
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
6.3
Former judges
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
6.4
Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
6.5
External links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
52
Nuremberg trials
53
7.1
Origin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
53
7.2
54
7.2.1
Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
54
7.2.2
Participants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
56
7.3.1
56
7.3.2
56
7.3.3
Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58
7.3.4
Nuremberg principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
58
58
7.3
7.4
iv
CONTENTS
7.5
58
7.6
Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
59
7.6.1
60
Criticism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
60
7.7.1
Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
62
7.8
63
7.9
See also . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
7.10 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
7.10.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
7.10.2 Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
66
7.10.3 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
67
68
68
70
8.1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
70
8.2
71
8.2.1
Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
8.2.2
Prosecutors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
8.3.1
Civilian ocials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
8.3.2
Military ocers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
71
8.3.3
Other defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72
72
8.4.1
Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72
8.4.2
72
8.4.3
Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
73
8.4.4
Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
73
8.4.5
Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
74
8.5
74
8.6
Criticism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
75
8.6.1
75
8.6.2
75
8.6.3
75
Aftermath . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76
8.7.1
76
8.7.2
77
8.7.3
77
8.8
Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
77
8.9
See also . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
8.10 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
8.10.1 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
78
7.7
8.3
8.4
8.7
CONTENTS
8.10.2 Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79
8.10.3 Web . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
79
79
80
81
8.13.1 Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
81
8.13.2 Images . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
86
94
Chapter 1
1.1 History
The current premises of the International Criminal Court in the
Hague, Netherlands. The ICC moved into this building in December 2015
an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The
ICC has the jurisdiction to prosecute individuals for the
international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement
existing national judicial systems and it may therefore
only exercise its jurisdiction when certain conditions are
met, such as when national courts are unwilling or unable
to prosecute criminals or when the United Nations Security Council or individual states refer investigations to
the Court. The ICC began functioning on 1 July 2002, the
date that the Rome Statute entered into force. The Rome
Statute is a multilateral treaty which serves as the ICCs
foundational and governing document. States which become party to the Rome Statute, for example by ratifying
it, become member states of the ICC. Currently, there
are 124 states which are party to the Rome Statute and
therefore members of the ICC.
Following the Second World War, the allied powers established two ad hoc tribunals to prosecute axis power
leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for
the Far East in Tokyo prosecuted Japanese leaders. In
1948 the United Nations General Assembly rst recognised the need for a permanent international court to
deal with atrocities of the kind prosecuted after the Second World War.[3] At the request of the General Assembly, the International Law Commission (ILC) drafted two
statutes by the early 1950s but these were shelved during
the Cold War, which made the establishment of an international criminal court politically unrealistic.[4]
2
tional rule of law and of an international criminal court.
In his rst book published in 1975, entitled Dening International Aggression: The Search for World Peace, he
advocated for the establishment of such a court.[5]
In June 1989 Prime Minister of Trinidad and Tobago
A. N. R. Robinson revived the idea of a permanent international criminal court by proposing the creation of
such a court to deal with the illegal drug trade.[4][6] Following Trinidad and Tobagos proposal, the General Assembly tasked the ILC with once again drafting a statute
for a permanent court.[7] While work began on the draft,
the United Nations Security Council established two ad
hoc tribunals in early 1990s. The International Criminal
Tribunal for the former Yugoslavia was created in 1993
in response to large-scale atrocities committed by armed
forces during Yugoslav Wars and the International Criminal Tribunal for Rwanda was created in 1994 following
the Rwandan Genocide. The creation of these tribunals
further highlighted the need for a permanent international
criminal court.[8]
1.2 Structure
1.2. STRUCTURE
1.2.2
The Court has four organs: the Presidency, the Judicial respective States for appointment to the highest judicial
Division, the Oce of the Prosecutor, and the Registry. oces.[35]
Presidency
Main article: Presidency of the International Criminal
Court
The Presidency is responsible for the proper administration of the Court (apart from the Oce of the
Prosecutor).[30] It comprises the President and the First
and Second Vice-Presidentsthree judges of the Court
who are elected to the Presidency by their fellow judges
for a maximum of two three-year terms.[31] The current
(and rst female) president is Silvia Fernndez de Gurmendi, who was elected on 11 March 2015.[32][33]
The Prosecutor or any person being investigated or prosecuted may request the disqualication of a judge from
any case in which his or her impartiality might reasonably be doubted on any ground.[36] Any request for the
disqualication of a judge from a particular case is decided by an absolute majority of the other judges.[36] A
judge may be removed from oce if he or she is found
to have committed serious misconduct or a serious breach
of his or her duties or is unable to exercise his or her
functions.[27] The removal of a judge requires both a twothirds majority of the other judges and a two-thirds majority of the states parties.[27]
Judicial Divisions
Jurisdiction
Registry
The Registry is responsible for the non-judicial aspects
of the administration and servicing of the Court.[43] This
includes, among other things, the administration of legal aid matters, court management, victims and witnesses
5
1. Willful killing
2. Torture
3. Inhumane treatment
4. Biological experiments
5. Willfully causing great suering
6. Destruction and appropriation of property
1. Murder
2. Extermination
There are seven crimes which constitute serious violations of article 3 common to the Geneva Conventions
Deportation or forcible transfer of population
and which are applicable only to non-international armed
[49]
Imprisonment or other severe deprivation of physi- conicts:
cal liberty
1. Murder
Torture
2. Mutilation
Rape
3. Enslavement
4.
5.
6.
7.
8. Sexual slavery
3. Cruel treatment
9. Enforced prostitution
4. Torture
6. Taking hostages
13. Persecution
14. Enforced disappearance of persons
15. Apartheid
16. Other inhumane acts
War crimes Article 8 denes war crimes depending on whether an armed conict is either international
(which generally means it is fought between states) or
non-international (which generally means that it is fought
between non-state actors, such as rebel groups, or between a state and such non-state actors). In total there
are 74 war crimes listed in article 8.[49] The most serious crimes, however, are those that constitute either grave
breaches of the Geneva Conventions of 1949, which only
apply to international conicts,[49] and serious violations
of article 3 common to the Geneva Conventions of 1949,
which apply to non-international conicts.[50]
not be allowed to exercise jurisdiction of the crime of aggression until two further conditions had been satised:
(1) the amendment has entered into force for 30 states
parties and (2) on or after 1 January 2017, the Assembly
of States Parties has voted in favor of allowing the Court
to exercise jurisdiction.
The Statute, as amended, denes the crime of aggression
as the planning, preparation, initiation or execution, by
a person in a position eectively to exercise control over
or to direct the political or military action of a State, of
an act of aggression which, by its character, gravity and
scale, constitutes a manifest violation of the Charter of
the United Nations.[53] The Statute denes an act of aggression as the use of armed force by a State against the
sovereignty, territorial integrity or political independence
of another State, or in any other manner inconsistent with
the Charter of the United Nations.[54] The article also
contains a list of seven acts of aggression, which are identical to those in United Nations General Assembly Resolution 3314 of 1974 and include the following acts when
committed by one state against another state:[55]
1. Invasion or attack by armed forces against territory
2. Military occupation of territory
3. Annexation of territory
4. Bombardment against territory
5. Use of any weapons against territory
6. Blockade of ports or coasts
1.3.2 Admissibility
Territorial or personal jurisdiction
To initiate an investigation, the Prosecutor must (1) have
For an individual to be prosecuted by the Court either a reasonable basis to believe that a crime within the juterritorial jurisdiction or personal jurisdiction must exist. risdiction of the Court has been or is being committed,
1.4. PROCEDURE
(2) the investigation would be consistent with the princi- not generally prohibited, but it has been argued the court
ple of complementarity, and (3) the investigation serves is guided by hearsay exceptions which are prominent in
the interests of justice.[62]
common law systems.[71] There is no subpoena or other
means to compel witnesses to come before the court, although the court has some power to compel testimony of
Complementarity
those who chose to come before it, such as nes.[72]
The principle of complementarity means that the Court
will only prosecute an individual if states are unwilling or
unable to prosecute. Therefore, if legitimate national investigations or proceedings into crimes have taken place
or are ongoing, the Court will not initiate proceedings.
This principle applies regardless of the outcome of national proceedings.[63] Even if an investigation is closed
without any criminal charges being led or if an accused
person is acquitted by a national court, the Court will
not prosecute an individual for the crime in question so
long as it is satised that the national proceedings were
legitimate.[63]
To ensure equality of arms between defence and prosecution teams, the ICC has established an indepenGravity
dent Oce of Public Counsel for the Defence (OPCD)
to provide logistical support, advice and information
The Court will only initiate proceedings if a crime is to defendants and their counsel.[75][76] The OPCD also
of sucient gravity to justify further action by the helps to safeguard the rights of the accused during the
Court.[64]
initial stages of an investigation.[77] However, Thomas
Lubangas defence team say they were given a smaller
budget than the Prosecutor and that evidence and witness
Interests of justice
statements were slow to arrive.[78]
The Prosecutor will initiate an investigation unless there
are substantial reasons to believe that an investigation
would not serve the interests of justice when "[t]aking
into account the gravity of the crime and the interests
of victims.[65] Furthermore, even if an investigation has
been initiated and there are substantial facts to warrant a
prosecution and no other admissibility issues, the Prosecutor must determine whether a prosecution would serve
the interests of justice taking into account all the circumstances, including the gravity of the crime, the interests
of victims and the age or inrmity of the alleged perpetrator, and his or her role in the alleged crime.[66]
1.4 Procedure
views and interests, so that they can help to shape truth, not to block actions of ICC in response to serious violajustice and reparations outcomes of the Court.[81]
tions of those Conventions.[91] In relation to co-operation
evidence gathering, it is implied from
Article 43(6) establishes a Victims and Witnesses Unit in investigation and
[95]
the
Rome
Statute
that the consent of a non-party state
to provide protective measures and security arrangeis
a
prerequisite
for
ICC
Prosecutor to conduct an invesments, counseling and other appropriate assistance for
tigation
within
its
territory,
and it seems that it is even
witnesses, victims who appear before the Court, and othmore
necessary
for
him
to
observe
any reasonable condiers who are at risk on account of testimony given by
tions
raised
by
that
state,
since
such
restrictions exist for
[82]
such witnesses.
Article 68 sets out procedures for
states party to the Statute.[91] Taking into account the exthe Protection of the victims and witnesses and their
participation in the proceedings.[83] The Court has also perience of the ICTY (which worked with the principle
of the primacy, instead of complementarity) in relation
established an Oce of Public Counsel for Victims, to
provide support and assistance to victims and their legal to co-operation, some scholars have expressed their pessimism as to the possibility of ICC to obtain co-operation
representatives.[84]
of non-party states.[91] As for the actions that ICC can
The ICC does not have its own witness protection pro- take towards non-party states that do not co-operate, the
gram, but rather must rely on national programs to keep Rome Statute stipulates that the Court may inform the
witnesses safe.[85]
Assembly of States Parties or Security Council, when the
matter was referred by it, when non-party state refuses to
co-operate after it has entered into an ad hoc arrangement
1.4.4 Reparations
or an agreement with the Court.[96]
Victims before the International Criminal Court can
also claim reparations under Article 75 of the Rome
Statute. Reparations can only be claimed when a defendant is convicted and at the discretion of the Courts
judges.[86] So far the Court has ordered reparations
against Thomas Lubanga.[87] Reparations can include
compensation, restitution and rehabilitation, but other
forms of reparations may be appropriate for individual,
collective or community victims. Article 79 of the Rome
Statute establishes a Trust Fund to provide assistance before a reparation order to victims in a situation or to support reparations to victims and their families if the convicted person has no money.[88]
1.4.5
1.5 Facilities
1.6. FINANCE
1.5.1
Headquarters
Development
Architecture
1.6 Finance
10
The ICC is nanced by contributions from the states parties. The amount payable by each state party is determined using the same method as the United Nations:[119]
each states contribution is based on the countrys capacity to pay, which reects factors such as a national income
and population. The maximum amount a single country
can pay in any year is limited to 22% of the Courts budget; Japan paid this amount in 2008.
The Court spent 80.5 million in 2007,[120] and the
Assembly of States Parties has approved a budget
of 90,382,100 for 2008[119] and 101,229,900 for
2009.[121] As of September 2008, the ICCs sta consisted of 571 persons from 83 states.[122]
To date, the Prosecutor opened investigations into ten situations: the Democratic Republic of the Congo; Uganda;
Central African Republic I and II; Darfur, Sudan; Kenya;
Libya; Cte d'Ivoire; Mali; and Georgia.[124] Additionally, the Oce of the Prosecutor is conducting preliminary examinations in eight matters in Afghanistan, Burundi, Colombia, Guinea, Iraq, Nigeria, Palestine and
Ukraine.[125][126]
The Courts Pre-Trial Chambers have publicly indicted
39 people. The ICC has issued arrest warrants for 31
individuals and summonses to eight others. Seven persons are in detention. Proceedings against 25 are ongoing: nine are at large as fugitives, four are under arrest but
not in the Courts custody, two are in the pre-trial phase,
seven are at trial, and one has been convicted and is awaiting sentencing. Proceedings against 14 have been completed: two have been convicted, one has been acquitted,
four have had the charges against them dismissed, two
have had the charges against them withdrawn, two has
had his case declared inadmissible, and three have died
before trial.
ICC investigations
Green: Ocial investigations (Uganda, Democratic Republic of
Congo, Central African Republic (2), Darfur (Sudan), Kenya,
Libya, Cte d'Ivoire, Mali, Georgia)
Orange: Authorization to open investigation requested (none at
present)
Light red: Ongoing preliminary examinations (Afghanistan, Burundi, Colombia, Comoros, Guinea, Iraq, Nigeria, Ukraine,
Palestine)
Dark red: Closed preliminary examinations (Honduras, Korea,
Venezuela)
Key:
Ocial investigation
Authorization to open investigation requested
The Lubanga and Katanga-Chui trials in the situation Preliminary examination ongoing
of the DR Congo are concluded. Mr Lubanga and Mr Preliminary examination closed
Katanga were convicted and sentenced to 14 and 12 years Notes
1.9. RELATIONSHIPS
11
Notes
[1] A situation is listed here if the Prosecutor of the Court has
opened an investigation.
[2] Obviously, only persons who are publicly indicted are
listed. The Court can issue an indictment under seal.
[3] If not otherwise noted, the indicted is wanted by warrant
of arrest.
[4] The International Criminal Court does currently not have
jurisdiction regarding the crime of aggression. An
amendment to the Rome Statute to expand the ICCs jurisdiction towards that crime is currently in the process
of ratication. Under no circumstances will the Court
be able to actually exercise jurisdiction before 1 January
2017.
[5] If there was a warrant of arrest, the dates of transfer to the
International Criminal Court (in italics) and of the initial
appearance are given. In case of a summons to appear,
only the date of the initial appearance is given.
[6] According to Article 61 (8) of the Rome Statute, where
the Pre-Trial Chamber declines to conrm a charge, the
Prosecutor shall not be precluded from subsequently requesting its conrmation if the request is supported by additional evidence.
1.9 Relationships
12
tions declarations and actions, ensuring that the work that
is being executed on behalf of the ICC is fullling its objectives and responsibilities to civil society.[195] According to Benjamin Schi, From the Statute Conference onward, the relationship between the ICC and the NGOs has
probably been closer, more consistent, and more vital to
the Court than have analogous relations between NGOs
and any other international organization.
There are a number of NGOs working on a variety of
issues related to the ICC. The NGO Coalition for the International Criminal Court has served as a sort of umbrella for NGOs to coordinate with each other on similar
objectives related to the ICC. The CICC has 2,500 member organizations in 150 dierent countries.[196] The original steering committee included representatives from
the World Federalist Movement, the International Commission of Jurists, Amnesty International, the Lawyers
Committee for Human Rights, Human Rights Watch,
Parliamentarians for Global Action, and No Peace Without Justice.[195] Today, many of the NGOs with which
the ICC cooperates are members of the CICC. These
organizations come from a range of backgrounds, spanning from major international NGOs such as Human
Rights Watch and Amnesty International, to smaller,
more local organizations focused on peace and justice
missions.[195] Many work closely with states, such as the
International Criminal Law Network, founded and predominantly funded by the Hague municipality and the
Dutch Ministries of Defense and Foreign Aairs. The
CICC also claims organizations that are themselves federations, such as the International Federation of Human
Rights Leagues (FIDH).
CICC members ascribe to three principles that permit
them to work under the umbrella of the CICC, so long
as their objectives match them:
Promoting worldwide ratication and implementation of the Rome Statute of the ICC
Maintaining the integrity of the Rome Statute of the
ICC, and
Ensuring the ICC will be as fair, eective and independent as possible[196]
The NGOs that work under the CICC do not normally
pursue agendas exclusive to the work of the Court, rather
they may work for broader causes, such as general human rights issues, victims rights, gender rights, rule of
law, conict mediation, and peace.[195] The CICC coordinates their eorts to improve the eciency of NGOs
contributions to the Court and to pool their inuence on
major common issues. From the ICC side, it has been
useful to have the CICC channel NGO contacts with the
Court so that its ocials do not have to interact individually with thousands of separate organizations.
1.10. CRITICISMS
nizations, it is dicult for ICC ocials to manage and
gratify all of their NGOs. ICC ocials recognize that
the NGOs pursue their own agendas, and that they will
seek to pressure the ICC in the direction of their own
priorities rather than necessarily understanding or being
fully sympathetic to the myriad constraints and pressures
under which the Court operates.[195] Both the ICC and
the NGO community avoid criticizing each other publicly
or vehemently, although NGOs have released advisory
and cautionary messages regarding the ICC. They avoid
taking stances that could potentially give the Courts adversaries, particularly the US, more motive to berate the
organization.
13
2016, all nine situations which the ICC had been investigating were in African countries.[200][201]
The prosecution of Kenyan Deputy President William
Ruto and President Uhuru Kenyatta (both charged before
coming into oce) led to the Kenyan parliament passing
a motion calling for Kenyas withdrawal from the ICC,
and the country has called on the other 34 African states
party to the ICC to withdraw their support, an issue which
was discussed at a special African Union (AU) summit in
October 2013.
Though the ICC has denied the charge of disproportionately targeting African leaders, and claims to stand
up for victims wherever they may be, Kenya was not
alone in criticising the ICC. Sudanese President Omar
al-Bashir visited Kenya, South Africa, China, Nigeria,
1.10 Criticisms
Saudi Arabia, United Arab Emirates, Egypt, Ethiopia,
Qatar and several other countries despite an outstand1.10.1 Western Imperialism accusations ing ICC warrant for his arrest but was not arrested; he
said that the charges against him are exaggerated and
from Africa
that the ICC was a part of a western plot against him.
Ivory Coasts government opted not to transfer former
rst lady Simone Gbagbo to the court but to instead
try her at home. Rwandas ambassador to the African
Union, Joseph Nsengimana, argued that It is not only
the case of Kenya. We have seen international justice become more and more a political matter. Ugandan President Yoweri Museveni accused the ICC of mishandling complex African issues. Ethiopian Prime Minister
Hailemariam Desalegn, at the time AU chairman, told the
UN General Assembly at the General debate of the sixtyeighth session of the United Nations General Assembly:
The manner in which the ICC has been operating has
left a very bad impression in Africa. It is totally unacceptable.
AU withdrawal proposal
South African President Jacob Zuma said the perceptions of the ICC as unreasonable led to the calling of
the special AU summit on 13 October 2015. Botswana
is a notable supporter of the ICC in Africa.[202] At the
summit, the AU did not endorse the proposal for a mass
withdrawal from the ICC due to lack of support for the
idea.[203] However, the summit did conclude that serving heads of state should not be put on trial and that
the Kenyan cases should be deferred. Ethiopian Foreign
Minister Tedros Adhanom said: We have rejected the
double standard that the ICC is applying in dispensing
international justice.[204] Despite these calls, the ICC
went ahead with requiring William Ruto to attend his
trial.[205] The UNSC was then asked to consider deferring the trials of Kenyatta and Ruto for a year,[206] but
this was rejected.[207] In November, the ICCs Assembly of State Parties responded to Kenyas calls for an
exemption for sitting heads of state[208] by agreeing to
consider amendments to the Rome Statute to address the
concerns.[209]
14
1.10.2
investigation, because the ICC did not reach the conclusion of its verdict after considering the governments poCritics of the Court argue that there are insucient sition and actions in the conict.
checks and balances on the authority of the ICC prosecutor and judges and insucient protection against politicized prosecutions or other abuses.[39]
1.10.5 Unintentional consequences
Concerning the independent Oce of Public Counsel for
ICC
the Defence (OPCD), Thomas Lubangas defence team Research suggests that prosecutions of leaders in the[214]
makes
dictators
less
likely
to
peacefully
step
down.
say they were given a smaller budget than the Prosecutor and that evidence and witness statements were slow to
arrive.[78]
1.10.3
1.10.4
Limitations
15
[18] The sum of (a) states parties, (b) signatories and (c) nonsignatory United Nations member states is 195. This number is two more than the number of United Nations member states (193) due to the State of Palestine and Cook
Islands being states parties but not United Nations member states.
[40] Henry A. Kissinger. The Pitfalls of Universal Jurisdiction. Foreign Aairs, July/August 2001, p. 95. Retrieved 31 December 2006.
[41] Why the law wants a word with Kissinger, Fairfax Digital, 30 April 2002
[23] India and the ICC, Usha Ramanathan, Journal of International Criminal Law, 2005.
16
[75] Katy Glassborow (21 August 2006). Defending the Defenders at the Wayback Machine (archived May 9, 2007).
Global Policy Forum. Retrieved 3 May 2007.
Retrieved
[86] Moett, Luke (2014-06-27). Justice for Victims Before the International Criminal Court. Routledge. ISBN
9781317910824.
[87] Decision establishing the principles and procedures to be
applied to reparations (PDF).
[88] International Criminal Court. Trust Fund for Victims at
the Wayback Machine (archived January 19, 2008). Accessed 22 June 2007.
17
States Parties. International Criminal Court. 14 December 2007. Archived from the original (PDF, 323 KB) on 9
April 2008. Retrieved 30 October 2011. Programme budget for 2008, the Working Capital Fund for 2008, scale of
assessments for the apportionment of expenses of the International Criminal Court and nancing appropriations for
the year 2008
18
[126] Statement of the Prosecutor of the International Criminal [146] ICC-01/13-1: Decision Assigning the Situation on RegCourt, Fatou Bensouda, on opening a Preliminary Examistered Vessels of the Union of the Comoros, the Helination into the situation in Burundi. ICC press release.
lenic Republic and the Kingdom of Cambodia to Pre-Trial
25 April 2016. Retrieved 25 April 2016.
Chamber I (PDF). ICC. 2013-07-05. Retrieved 201307-09.
[127] Kevin Sie (March 21, 2016). In historic ruling, international court cites rape in war crimes conviction of ex- [147] Article 53(1) Report on the situation on Registered VesCongo ocial. Washington Post.
sels of Comoros, Greece and Cambodia (PDF). ICC.
2014-11-06. Retrieved 2014-11-06.
[128] Situations and Cases. ICC. Retrieved 2014-09-24.
[129] Preliminary Examinations. ICC. Retrieved 2014-11- [148] Article 53(1) Report, Situation in the Central African
Republic II (PDF). ICC. 2014-09-24. Retrieved 201409.
09-24.
[130] Statement of the Prosecutor of the International Criminal
Court, Fatou Bensouda, on opening a Preliminary Exam- [149] The Prosecutor of the International Criminal Court, Fatou Bensouda, opens a preliminary examination of the sitination into the situation in Burundi. ICC press release.
uation in Palestine. ICC. 2015-01-16. Retrieved 201525 April 2016. Retrieved 25 April 2016.
01-16.
[131] Report on Preliminary Examination Activities 2014
[150] Preliminary Examinations. ICC, Oce of the Prosecu(PDF). ICC. 2014-12-02. Retrieved 2015-01-16.
tor. 2015-09-16. Retrieved 2015-09-16.
[132] Situation in the Democratic Republic of the Congo (ICC01/04)". ICC. Retrieved 2013-12-03.
[151] ICC-01/15: Decision on the Prosecutors request for authorization of an investigation (PDF). ICC. 2016-01-27.
[133] Situation in Uganda (ICC-02/04)". ICC. Retrieved
Retrieved 2016-01-28.
2013-12-03.
[152] Statement of the Prosecutor of the International Criminal
Court, Fatou Bensouda, on opening a Preliminary Examination into the situation in Burundi. ICC. 2016-04-25.
Retrieved 2016-04-25.
OTP response to communications received concerning
Iraq (PDF). ICC. 2013-11-25. Retrieved 2013-12-03.
[153] ICC case information sheet on the Lubanga case. ReProsecutor of the International Criminal Court, Fatou
trieved 16 January 2016.
Bensouda, re-opens the preliminary examination of the
situation in Iraq. ICC. 2014-05-13. Retrieved 2014-05- [154] Article 110 (3) of the Rome Statute of the International
Court states that "[w]hen the person has served two thirds
13.
of the sentence, or 25 years in the case of life imprisonOTP response to communications received concerning
ment, the Court shall review the sentence to determine
Venezuela (PDF). ICC. 2006-02-09. Retrieved 2013whether it should be reduced. Such a review shall not be
12-03.
conducted before that time. Article 78 (3) of the Rome
Statute species that "[i]n imposing a sentence of imprisSituation in the Central African Republic (ICC-01/05)".
onment, the Court shall deduct the time, if any, previICC. Retrieved 2013-12-03.
ously spent in detention in accordance with an order of
the Court. The Court may deduct any time otherwise
Update on Situation in Palestine (PDF). ICC. 2012-04spent in detention in connection with conduct underlying
03. Retrieved 2013-12-03.
the crime. The Courts Trial Chamber I determined in its
Statement of the Prosecutor of the International Criminal
sentencing decision that the time since 16 March 2006 is
Court, Fatou Bensouda, on the conclusion of the prelimito be deducted from the sentence. Thus, Thomas Lubanga
nary examination into the situation in Honduras. Oce of
is to be released on or before 16 March 2020. Starting
the Prosecutor press release. 28 October 2015. Retrieved
from 16 March 2006, two-thirds of 14 years (nine years
29 October 2015.
and four months) had elapsed on 16 July 2015.
[137]
[138]
[139]
[140]
[141] Situation in the Republic of Kenya (ICC-01/09)". ICC. [155] ICC Judges decline to reduce Mr Thomas Lubanga DyRetrieved 2013-12-03.
ilos sentence. ICC press release. 22 September 2015.
Retrieved 27 September 2015.
[142] Situation in the Republic of Korea: Article 5 Report
(PDF). ICC. 2014-06-23. Retrieved 2014-06-24.
[156] ICC case information sheet on the Ntaganda case. Re[143] Situation in Libya (ICC-01/11)". ICC. Retrieved 201312-03.
[144] Situation in the Republic of Cte d'Ivoire (ICC-02/11)".
ICC. Retrieved 2013-12-03.
[145] Situation in the Republic of Mali (ICC-01/12)". ICC.
Retrieved 2013-12-03.
19
[159] ICC Presidency approves the prosecution of Mr Germain [180] The Prosecutor v. Walter Osapiri Barasa. ICC informaKatanga by national authorities of the Democratic Repubtion page. Retrieved 5 May 2016.
lic of the Congo. ICC press release. 7 April 2016. Re[181] The Prosecutor v. Paul Gicheru and Philip Kipkoech Bett.
trieved 10 April 2016.
ICC information page. Retrieved 5 May 2016.
[160] ICC case information sheet on the Chui case. Retrieved
[182] ICC case information sheet on the Gadda case. Re10 May 2015.
trieved 28 June 2015.
[161] ICC case information sheet on the Mbarushimana case.
[183] ICC case information sheet on the L. Gbagbo-Bl Goude
Retrieved 4 August 2011.
case. Retrieved 16 January 2016.
[162] Mbarushimana case: ICC Appeals Chamber rejects the
[184] Statement of ICC-Prosecutor at the Commencement of
Prosecutions appeal. ICC. Retrieved 30 May 2012.
Trial in the case against Messrs. Laurent Gbagbo and
[163] ICC case information sheet on the Mudacumura case..
Charles Bl Goud. Oce of the Prosecutor press reRetrieved 8 December 2012.
lease. 28 January 2016. Retrieved 28 January 2016.
[164] ICC case information sheet on the Kony-Otti case. Re- [185] ICC case information sheet on the Simone Gbagbo case.
trieved 16 September 2015.
Retrieved 8 December 2012.
[165] Vincent Otti is conrmed dead. New Vision. 22 Novem[186] ICC case information sheet on the al-Faqi case. Retrieved
ber 2007. Retrieved 28 February 2012.
27 March 2016.
[166] ICC case information sheet on the Ongwen case. Re[187] Al Mahdi case: Trial to open on 22 August 2016. ICC
trieved 6 March 2016.
press release. 1 June 2016. Retrieved 2 June 2016.
[167] Ongwen case: Trial to open on 6 December 2016. ICC
[188] Situation in the Central African Republic II. ICC inforpress release. 30 May 2016. Retrieved 1 June 2016.
mation page. Retrieved 2 May 2016.
[168] ICC case information sheet on the Bemba case. Retrieved
[189] Situation in Georgia. ICC information page. Retrieved 2
10 April 2016.
May 2016.
[169] ICC Trial Chamber III sentences Jean-Pierre Bemba
Gombo to 18 years imprisonment for war crimes and [190] Abadir M. Ibrahim, The International Criminal Court in
Light of Controlling Factors of the Eectiveness of Incrimes against humanity committed in the Central African
ternational Human Rights Mechanisms, 7 Eyes on the InRepublic in 2002-2003. ICC press release. 21 June 2016.
ternational Criminal Court (2011). (PDF). Retrieved 4
Retrieved 22 June 2016.
November 2011.
[170] ICC case information sheet on the Bemba et al. case. Re[191] International Criminal Court, 1 February 2007. UN
trieved 18 October 2015.
Secretary-General visits ICC at the Wayback Machine
[171] Closing oral statements in Bemba, Kilolo et al. trial to
(archived February 11, 2007). Accessed 1 February 2007.
start on 31 May 2016: Practical information. ICC press
[192] International Criminal Court, August 2006. Report of
release. 29 April 2016. Retrieved 2 May 2016.
the International Criminal Court for 20052006 at the
[172] ICC case information sheet on the Haroun-Kushayb case.
Internet ArchivePDF (68.5 KB). Accessed 14 May 2007.
Retrieved 4 August 2011.
[193] Negotiated Relationship Agreement between the Interna[173] ICC case information sheet on the al-Bashir case. Retional Criminal Court and the United Nations at the
trieved 4 August 2011.
Internet ArchivePDF (130 KB). Retrieved 23 November
2006.
[174] ICC case information sheet on the Abu Garda case. Retrieved 4 August 2011.
[175] ICC case information sheet on the Banda case. Last updated 11 September 2014. Retrieved 25 September 2014.
[194] Coalition for the International Criminal Court, 12 November 2004. Q&A: The Relationship Agreement between the
ICC and the UN PDF (64.8 KB). Accessed 23 November
2006.
[176] ICC case information sheet on the Hussein case. Re[195] Schi, Benjamin (2008). Building the International Crimtrieved 1 March 2012.
inal Court. Cambridge University Press.
[177] ICC case information sheet on the Ruto-Sang case. Re[196] About the Coalition. Coalition for the International
trieved 30 April 2012.
Criminal Court.
[178] Ruto and Sang case: ICC Trial Chamber V(A) terminates the case without prejudice to re-prosecution in fu- [197] ICC AND AFRICA - International Criminal Court and
African Sovereignty. Retrieved 5 May 2016.
ture. ICC press release. 5 April 2016. Retrieved 10 April
2016.
[198] http://www.reuters.com/article/2011/01/30/
[179] ICC case information sheet on the Kenyatta case. Last
African
ozatp-africa-icc-idAFJOE70T01R20110130
updated 15 December 2014. Retrieved 3 January 2015.
Union accuses ICC prosecutor of bias
20
21
Nice idea,
now make it work,
The
Economist,
Dec.6th,
2014.
http:
//www.economist.com/news/international/
21635470-international-criminal-court-struggling-justify-itself-amid
Benjamin N. Schi. Building the International Criminal Court. Cambridge: Cambridge University Press
(2008) ISBN 9780521873123
Immunity of state ocials from foreign criminal jurisdiction Bibliographies on the topics of the International Law Commission (no. 8 in the list) (UNOG
Library)
A collection of primary documents critical to an understanding of the Evolution of the Legal Jurisdiction of the International Criminal Court
Chapter 2
International court
the genocide in Rwanda. In addition to international tribunals created to address crimes committed during genocides and civil war, ad hoc courts combining international
and domestic strategies have also been established on a
situational basis. Examples of these hybrid tribunals
are found in Sierra Leone, Lebanon, East Timor, and
Cambodia.
International Courts are permanent tribunals judging by
International laws and treaties, also when these norms are
on civil and commercial matters.[1] International courts
should be distinguished from international arbitration forums.
International courts are formed by treaties between nations or under the authority of an international organization such as the United Nations and include ad hoc tribunals and permanent institutions but exclude any courts
arising purely under national authority.
23
2.6 References
[1] There are questions about virtual contradictions from
overlapping between the international courts and between them and the Italian Courts: Buonomo, Giampiero
(2011). Diritti umani: in Europa lItalia una voce fuori
dal coro. Golem informazione. via Questia (subscription required)
[2] Statute of the Extraordinary African Chambers. Human
Rights Watch. Retrieved 3 November 2014.
Chapter 3
3.1 History
3.1.1 Founding and early years
The Peace Palace in The Hague, Netherlands, home to the Permanent Court of International Justice
3.1. HISTORY
as Vice-President; Huber was replaced by Charles Andre
Weiss a month later.[8] On 14 February the Court was ofcially opened, and rules of procedure were established
on 24 March, when the court ended its rst session.[9]
The court rst sat to decide cases on 15 June.[10] During its rst year of business, the Court issued three advisory opinions, all related to the International Labour Organisation created by the Treaty of Versailles and collectively grouped into the International Labour Organisation
Questions.[11]
The initial reaction to the Court was good, from politicians, practising lawyers and academics alike. Ernest Pollock, the former Attorney General for England and Wales
said, May we not as lawyers regard the establishment of
an International Court of Justice as an advance in the science that we pursue?" John Henry Wigmore said that the
creation of the Court should have given every lawyer a
thrill of cosmic vibration, and James Brown Scott wrote
that the one dream of our ages has been realised in our
time.[12] Much praise was heaped upon the appointment
of an American judge despite the fact that the United
States had not become a signatory to the Courts protocol, and it was thought that that it would soon do so.[13]
3.1.2
25
The Court faced increasing work as it went on, allaying the fears of those commentators who had believed
the Court would become like the Supreme Court of the
United States, which was not presented with a case for
its rst six terms.[14] The Court was given nine cases
during 1922 and 1923, however, with judgments called
cases and advisory opinions called questions. Three
cases were disposed of during the Courts rst session,
one during an extraordinary sitting between 8 January
and 7 February 1923 (the Tunis-Morocco Nationality
Question), four during the second ordinary sitting between 15 June 1923 and 15 September 1923 (Eastern
Carelia Question, S.S. Wimbledon case, German Settlers Question, Acquisition of Polish Nationality Question) and one during a second extraordinary session from
12 November to 6 December 1923 (Jaworznia Question).[15] A replacement for Ruy Barbosa (who had died
on 1 March 1923 without hearing any cases) was also
found, with the election of Epitcio Lindolfo da Silva
Pessoa on 10 September 1923.[16] The workload the following year was reduced, containing two judgments and
one advisory opinion; the Mavrommatis Palestine Concessions Case, the Interpretation of the Treaty of Neuilly
Case (the rst case of the Courts Chamber of Summary
Procedure)[17] and the Monastery of Saint-Naoum Question.[18] During the same year, a new President and VicePresident were elected, since they were mandated to serve
for a term of three years. At the elections on 4 September 1924, Charles Andre Weiss was again elected VicePresident and Max Huber became the second President of
the Court.[19] Judicial pensions were created at the same
time, with a judge being given 1/30th of his annual pay
for every year he had served once he had both retired and
turned 65.[20]
1925 was an exceedingly busy year for the court, which
sat for 210 days, with four extraordinary sessions as well
as the ordinary session, producing 3 judgments and 4
advisory opinions. The rst judgment was given in the
Exchange of Greek and Turkish Populations Case, the
second (by the Court of Summary Procedure) was on
the interpretation of the Interpretation of the Treaty of
Neuilly Case, and the third in the Mavrommatis Palestine Concessions Case.[21] The 4 advisory opinions issued by the Court were in the Polish Postal Service in
Danzig Question, the Expulsion of the Ecumenical Patriarch Question, the Treaty of Lausanne Question and
the German Interests in Polish Upper Silesia Question.[22]
1926 saw reduced business, with only one ordinary session and one extraordinary session; it was, however, the
rst year that all 11 judges had been present to hear
cases.[23] The court heard two cases, providing one judgment and one advisory opinion; a second question on
German Interests in Polish Upper Silesia, this time a
judgment rather than an advisory opinion,[24] and an
advisory opinion on the International Labour Organisation, grouped into the International Labour Organisation
Questions.[25]
26
3.1.3
Organisation
Judges
1933 was a busy year for the court, which cleared its
20th case (and greatest triumph); the Eastern Greenland Case.[38] This period was marked by growing international tension, however, with Japan and Germany announcing their withdrawal from the League of Nations,
to come into eect in 1935. That did not directly affect the Court, since the protocol accepting Court jurisdiction was separately ratied, but it inuenced whether
a nation would be willing to bring a case before it, as
evidenced by Germanys withdrawal from two pending
cases.[39] 1934, the Courts 13th year, has been in keeping with the traditions associated with that number", with
few cases since the worlds governments were more concerned with the growing international tension.[40] The
Courts business continued to be small in 1935,[41] 1936,
3.2. ORGANISATION
27
judges.[57]
In 1930, the number of judges was increased to 15, and
a new set of elections were held.[58] The election was
held on 25 September 1930, with 14 candidates receiving a majority on the rst ballot and a 15th, Francisco
Jos Urrutia, receiving a majority on the second.[59]
The full court was Urrutia, Mineichiro Adachi, Altamira, Anzilotti, Bustamante, Jonkheer van Eysinga,
Henri Fromageot, Jos Gustavo Guerrero, Cecil Hurst,
Edouard Rolin-Jaequemyns, Frank B. Kellogg, Negulesco, Micha Jan Rostworowski, Walther Schcking and
Wang Ch'ung-hui.[60]
3.2.2 Procedure
Under the Covenant of the League of Nations, all League
members agreed that if there was a dispute between states
they recognize to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, the matter would be submitted to the Court for arbitration, with suitable disputes being over the interpretation of an international treaty, a question on international
law, the validity of facts, which, if true, would breach international obligations and the nature of any reparations
to be made for breaching international obligations.[62]
The original Statutes of the Court provided that all 11
judges were required to sit in every case. There were
three exceptions: when reviewing Labour Clauses from
a peace treaty such as the Treaty of Versailles (which was
done by a special chamber of 5 judges, appointed every 3 years), when reviewing cases on communications or
transport arising from a peace treaty (which used a similar
procedure) and when hearing summary procedure cases,
which were reviewed by a panel of 3 judges.[63]
To prevent the appearance of any bias in the courts
makeup, if there was a judge belonging to one member
state on the panel and the other member state was not
represented, they had the ability to select an ad hoc
judge of their own nationality to hear the case. In a full
court hearing, that increased the number to 12; in one of
the 5-man chambers, the new judge took the place of one
of the original 5. That did not apply to summary proce-
28
dure cases.[64] The ad hoc judge, selected by the member state, was expected to full all the requirements of
a normal judge; the President of the Court had ultimate
discretion over whether to authorise him to sit.[65] The
Court was mandated to open on 15 June each year and
continue until all cases were nished, with extraordinary
sessions if required; by 1927, there were more extraordinary sessions than ordinary ones.[66] The Courts business being conducted in English and French as ocial
languages, and hearings were public unless it was otherwise specied.[67]
After receiving les in a case calculated to lead to a
judgment, the judges would exchange their views informally on the salient legal points of the case, and a time
limit for producing a judgment would then be set. Then,
each judge would write an anonymous summary containing his opinion; the opinions would be circulated among
the Court for 2 or 3 days before the President drafted a
judgment containing a summary of those submitted by
individual judges. The Court would then agree on the
decision that they wished to reach, along with the main
points of argument they wished to use. Once this was
done, a Committee of 4, including the President, the Registrar and two judges elected by secret ballot, drafted a
nal judgment, which was then voted on by the entire
Court.[68] Once a nal judgment was set, it was given to
the public and the press.[69] Every judgment contained
the reasons behind the decision and the judges assenting;
dissenting judges were allowed to deliver their own judgment, with all judgments read in open court before the
agents of the parties to the dispute. Judgments could not
be revised except on the discovery of some fact unknown
when the Court sat but not if the fact was known but not
discussed because of negligence.[70]
The Court also issued "advisory opinions", which arose
from Article 14 of the Covenant creating the Court,
which provided, The Court may also give an advisory
opinion upon any dispute referred to it by the Council or
Assembly. Goodrich interprets that as indicating that
the drafters intended a purely advisory capacity for the
Court, not a binding one. Manley Ottmer Hudson (who
sat as a judge) said that an advisory opinion was what it
purported to be. It is advisory. It is not in any sense a
judgement... hence it is not in any way binding on any
state, but Charles De Visscher argued that in certain
situations, an advisory opinion could be binding on the
League of Nations Council and, under certain circumstances, some states; M. Politis agreed, saying that the
Courts advisory opinions were equivalent to a binding
judgment.[71] In 1927, the Court appointed a committee
to look at this issue, and it reported that where there are
in fact contending parties, the dierence between contentious cases and advisory cases is only nominal... so the
view that advisory opinions are not binding is more theoretical than real.[72] In practice, advisory opinions were
usually followed, mostly due to the fear that if this revolutionary international courts decisions were not fol-
lowed, it would undermine its authority.[73] The court retained the discretion to avoid giving an advisory opinion,
which it used on occasion.[74]
3.3. CASES
29
3.3 Cases
3.3.1
Cases
Jaworzina 1923
Monastery of Saint-Naoum Question 1924
Exchange of Greek and Turkish Populations Question 1925
Polish Postal Service in Danzig Question 1925
the Expulsion of the Ecumenical Patriarch Question,
the Treaty of Lausanne Question
Competence of the ILO to Regulate Incidentally the
Personal Work of the Employer 1926
Territorial Jurisdiction of the International Commission of the Oder River Case [1929],
Borchgrave case
Oscar Chinn case 1934
Minority Schools in Albania case 1935
Losinger case 1936
30
3.4 Jurisdiction
3.6 References
[1] Hudson (1922) p.245
The proviso that the Court was for disputes that could
not be satisfactorily settled by diplomacy never made
it require evidence that diplomatic discussions had been
attempted before bringing the case. In the Loan Cases,
it asserted jurisdiction despite the fact that there was
no alleged breach of international law, and it could not
be shown that there was any international element to
the claim. The Court justied itself by saying that the
Covenant of the League of Nations allowed it to have jurisdiction in cases over the existence of any fact which,
if established, would constitute a breach of international
obligations and argued that since the fact may be of any
kind, it had jurisdiction if the dispute is one of municipal law. It had been long established that municipal law
may be considered as a side point to a dispute over international law, but the Loan Cases discussed municipal law
without the application of any international points.[93]
3.7. BIBLIOGRAPHY
31
[36] Signature and Ratication of the Protocol of the Permanent Court of International Justice (PCIJ) Member
States. Archives of the League of Nations. Retrieved
22 January 2010.
3.7 Bibliography
Boyle, Francis Anthony (1985). World politics and
international law. Duke University Press. ISBN
978-0-8223-0655-9.
Bustamante Y Sirven, Antonio S. de (1923). The
Permanent Court of International Justice. Minnesota Law Review (University of Minnesota Law
School) (9). ISSN 0026-5535.
Goodrich, Leland M. (1938). The Nature of the
Advisory Opinions of the Permanent Court of International Justice. The American Journal of International Law (American Society of International
Law) 32 (4). ISSN 0002-9300.
Hammarskjold, A. (1927). Sidelights on the Permanent Court of International Justice. Harvard
Law Review 25 (4). ISSN 0026-2234.
Hammarskjold, A. (1923). The Early Work of the
Permanent Court of International Justice. Michigan Law Review 36 (6). ISSN 0017-811X.
32
Hudson, Manley O. (1930). The Election of Members of the Permanent Court of International Justice. The American Journal of International Law
(American Society of International Law) 25 (4).
ISSN 0002-9300.
33
Chapter 4
United Nations
For a list of United Nations member states, see Member tive since 1994). UN System agencies include the World
states of the United Nations. For other uses, see United Bank Group, the World Health Organization, the World
Nations (disambiguation) and UN (disambiguation).
Food Programme, UNESCO, and UNICEF. The UNs
most prominent ocer is the Secretary-General, an oce
The United Nations (UN) is an intergovernmental or- held by South Korean Ban Ki-moon since 2007. Nongovernmental organizations may be granted consultative
ganization to promote international co-operation. A replacement for the ineective League of Nations, the status with ECOSOC and other agencies to participate in
the UNs work.
organization was established on 24 October 1945 after World War II in order to prevent another such con- The organization won the Nobel Peace Prize in 2001,
ict. At its founding, the UN had 51 member states; and a number of its ocers and agencies have also been
there are now 193. The headquarters of the United Na- awarded the prize. Other evaluations of the UNs eections is in Manhattan, New York City, and experiences tiveness have been mixed. Some commentators believe
extraterritoriality. Further main oces are situated in the organization to be an important force for peace and
Geneva, Nairobi, and Vienna. The organization is - human development, while others have called the organinanced by assessed and voluntary contributions from its zation ineective, corrupt, or biased.
member states. Its objectives include maintaining international peace and security, promoting human rights, fostering social and economic development, protecting the
environment, and providing humanitarian aid in cases of 4.1 History
famine, natural disaster, and armed conict.
Main article: History of the United Nations
The United Nations Charter was drafted at a conference
in AprilJune 1945; this charter took eect 24 October
1945, and the UN began operation. The UNs mission to
preserve world peace was complicated in its early decades
by the Cold War between the US and Soviet Union and 4.1.1 Background
their respective allies. The organization participated in
major actions in Korea and the Congo, as well as ap- In the century prior to the UNs creation, several interproving the creation of the state of Israel in 1947. The national treaty organizations and conferences had been
organizations membership grew signicantly following formed to regulate conicts between nations, such as the
widespread decolonization in the 1960s, and by the 1970s International Committee of the Red Cross and the Hague
[3]
its budget for economic and social development pro- Conventions of 1899 and 1907. Following the catasgrammes far outstripped its spending on peacekeeping. trophic loss of life in the First World War, the Paris Peace
After the end of the Cold War, the UN took on major Conference established the League of Nations to main[4]
military and peacekeeping missions across the world with tain harmony between countries. This organization resolved some territorial disputes and created international
varying degrees of success.
structures for areas such as postal mail, aviation, and
The UN has six principal organs: the General Assembly opium control, some of which would later be absorbed
(the main deliberative assembly); the Security Council into the UN.[5] However, the League lacked representa(for deciding certain resolutions for peace and security); tion for colonial peoples (then half the worlds population)
the Economic and Social Council (ECOSOC) (for pro- and signicant participation from several major powers,
moting international economic and social co-operation including the US, USSR, Germany, and Japan; it failed to
and development); the Secretariat (for providing stud- act against the Japanese invasion of Manchuria in 1931,
ies, information, and facilities needed by the UN); the the Second Italo-Ethiopian War in 1935, the Japanese inInternational Court of Justice (the primary judicial or- vasion of China in 1937, and German expansions under
gan); and the United Nations Trusteeship Council (inac- Adolf Hitler that culminated in the Second World War.[6]
34
4.1. HISTORY
4.1.2
35
UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND, THE
UNION OF SOVIET SOCIALIST REPUBLICS, CHINA, AUSTRALIA, BELGIUM, CANADA, COSTA RICA, CUBA,
CZECHOSLOVAKIA, DOMINICAN REPUBLIC, EL SALVADOR, GREECE,
GUATEMALA, HAITI, HONDURAS, INDIA, LUXEMBOURG, NETHERLANDS,
NEW ZEALAND, NICARAGUA, NORWAY, PANAMA, POLAND, SOUTH
AFRICA, YUGOSLAVIA
The Governments signatory hereto,
Having subscribed to a common program of
purposes and principles embodied in the Joint
Declaration of the President of the United
States of America and the Prime Minister of
Great Britain dated August 14, 1941, known
as the Atlantic Charter,
Being convinced that complete victory over
their enemies is essential to defend life, liberty,
independence and religious freedom, and to
preserve human rights and justice in their own
lands as well as in other lands, and that they
are now engaged in a common struggle against
savage and brutal forces seeking to subjugate
the world,
DECLARE:
(1) Each Government pledges itself to employ
its full resources, military or economic, against
those members of the Tripartite Pact and its
adherents with which such government is at
war.
(2) Each Government pledges itself to cooperate with the Governments signatory hereto
and not to make a separate armistice or peace
with the enemies.
The foregoing declaration may be adhered
to by other nations which are, or which
may be, rendering material assistance and
contributions in the struggle for victory over
Hitlerism.[13]
During the war, the United Nations became the ocial
term for the Allies. To join countries had to sign the Declaration and declare war on the Axis.[14]
36
4.1.4
With the spread of decolonization in the 1960s, the organizations membership saw an inux of newly independent nations. In 1960 alone, 17 new states joined the
UN, 16 of them from Africa.[18] On 25 October 1971,
with opposition from the United States, but with the support of many Third World nations, the mainland, communist Peoples Republic of China was given the Chinese
seat on the Security Council in place of the Republic of
China that occupied Taiwan; the vote was widely seen as a
sign of waning US inuence in the organization.[30] Third
World nations organized into the Group of 77 coalition
under the leadership of Algeria, which briey became
a dominant power at the UN.[31] In 1975, a bloc comprising the USSR and Third World nations passed a resolution, over strenuous US and Israeli opposition, declaring Zionism to be racism; the resolution was repealed in
[32]
In 1960, the UN deployed United Nations Operation 1991, shortly after the end of the Cold War.
in the Congo (UNOC), the largest military force of its With an increasing Third World presence and the failure
early decades, to bring order to the breakaway State of of UN mediation in conicts in the Middle East, Vietnam,
Katanga, restoring it to the control of the Democratic Re- and Kashmir, the UN increasingly shifted its attention to
Though the UNs primary mandate was peacekeeping,
the division between the US and USSR often paralysed
the organization, generally allowing it to intervene only in
conicts distant from the Cold War.[22] (A notable exception was a Security Council resolution in 1950 authorizing
a US-led coalition to repel the North Korean invasion of
South Korea, passed in the absence of the USSR.)[18][23]
In 1947, the General Assembly approved a resolution to
partition Palestine, approving the creation of the state of
Israel. Two years later, Ralph Bunche, a UN ocial, negotiated an armistice to the resulting conict.[24] In 1956,
the rst UN peacekeeping force was established to end
the Suez Crisis;[18] however, the UN was unable to intervene against the USSRs simultaneous invasion of Hungary following that countrys revolution.[25]
4.2. STRUCTURE
its ostensibly secondary goals of economic development
and cultural exchange.[33] By the 1970s, the UN budget
for social and economic development was far greater than
its peacekeeping budget.
4.1.5
Post-Cold War
37
for its indecisive and confused mission in the face of ethnic cleansing.[41] In 1994, the United Nations Assistance
Mission for Rwanda failed to intervene in the Rwandan
Genocide amid indecision in the Security Council.[42]
Beginning in the last decades of the Cold War, American
and European critics of the UN condemned the organization for perceived mismanagement and corruption.[43]
In 1984, the US President, Ronald Reagan, withdrew
his nations funding from UNESCO (the United Nations Educational, Scientic and Cultural Organization,
founded 1946) over allegations of mismanagement, followed by Britain and Singapore.[44][45] Boutros BoutrosGhali, Secretary-General from 1992 to 1996, initiated a
reform of the Secretariat, reducing the size of the organization somewhat.[46][47] His successor, Ko Annan
(19972006), initiated further management reforms in
the face of threats from the United States to withhold its
UN dues.[47]
38
languages of the United Nations, used in intergovernmental meetings and documents, are Arabic, Chinese, English, French, Russian, and Spanish.[58] On the basis of
the Convention on the Privileges and Immunities of the
United Nations, the UN and its agencies are immune from
the laws of the countries where they operate, safeguarding
the UNs impartiality with regard to the host and member
countries.[59]
Below the six organs sit, in the words of the author Linda
Fasulo, an amazing collection of entities and organizations, some of which are actually older than the UN itself and operate with almost complete independence from
it.[60] These include specialized agencies, research and
training institutions, programmes and funds, and other
UN entities.[61]
member states on a rotating regional basis, and 21 vicepresidents.[68] The rst session convened 10 January 1946
in the Methodist Central Hall Westminster in London and
included representatives of 51 nations.[18]
When the General Assembly votes on important questions, a two-thirds majority of those present and voting is
required. Examples of important questions include recommendations on peace and security; election of members to organs; admission, suspension, and expulsion of
members; and budgetary matters.[69] All other questions
are decided by a majority vote. Each member country has
one vote. Apart from approval of budgetary matters, resolutions are not binding on the members. The Assembly
may make recommendations on any matters within the
scope of the UN, except matters of peace and security
that are under consideration by the Security Council.[67]
v
t
4.2.1
General Assembly
4.2. STRUCTURE
39
The UN Secretariat is headed by the SecretaryGeneral, assisted by a sta of international civil servants Main article: International Court of Justice
worldwide.[76] It provides studies, information, and fa- The International Court of Justice (ICJ), located in The
cilities needed by United Nations bodies for their meetings. It also carries out tasks as directed by the Security
Council, the General Assembly, the Economic and Social
Council, and other UN bodies.[77]
The Secretary-General acts as the de facto spokesperson and leader of the UN. The position is dened in
the UN Charter as the organizations chief administrative ocer.[78] Article 99 of the charter states that the
Secretary-General can bring to the Security Councils attention any matter which in his opinion may threaten
the maintenance of international peace and security, a
phrase that Secretaries-General since Trygve Lie have interpreted as giving the position broad scope for action on
the world stage.[79] The oce has evolved into a dual role
The court had ruled that Kosovos unilateral declaration of indeof an administrator of the UN organization and a diplo- pendence from Serbia in 2008 did not violate international law
mat and mediator addressing disputes between member
states and nding consensus to global issues.[80]
Hague, in the Netherlands, is the primary judicial orThe Secretary-General is appointed by the General As- gan of the UN. Established in 1945 by the UN Charsembly, after being recommended by the Security Coun- ter, the Court began work in 1946 as the successor to
cil, where the permanent members have veto power.[81] the Permanent Court of International Justice. The ICJ is
There are no specic criteria for the post, but over the composed of 15 judges who serve 9-year terms and are
40
appointed by the General Assembly; every sitting judge Bank, and the World Health Organization (WHO). The
must be from a dierent nation.[85][86]
UN performs most of its humanitarian work through
It is based in the Peace Palace in The Hague, sharing the these agencies. Examples include mass vaccination probuilding with the Hague Academy of International Law, a grammes (through WHO), the avoidance of famine and
private centre for the study of international law. The ICJs malnutrition (through the work of the WFP), and the proand displaced people (for example,
primary purpose is to adjudicate disputes among states. tection of vulnerable
[93]
by
UNHCR).
The court has heard cases related to war crimes, illegal
state interference, ethnic cleansing, and other issues.[87]
The ICJ can also be called upon by other UN organs to
provide advisory opinions.[85]
4.2.5
Main article:
Council
4.2.6
4.3 Membership
Specialized agencies
there are 193 United Nations member states, including all undisputed independent states apart from Vatican
City.[95][lower-alpha 6] The UN Charter outlines the rules for
membership:
1. Membership in the United Nations is
open to all other peace-loving states that
accept the obligations contained in the
present Charter and, in the judgment of
the Organization, are able and willing to
carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the
Security Council. Chapter II, Article
4[96]
In addition, there are two non-member observer states
of the United Nations General Assembly: the Holy See
(which holds sovereignty over Vatican City) and the State
of Palestine.[97] The Cook Islands and Niue, both states in
free association with New Zealand, are full members of
several UN specialized agencies and have had their full
treaty-making capacity recognized by the Secretariat.[98]
4.4. OBJECTIVES
4.3.1
Group of 77
4.4.1
41
Pakistan (UNMOGIP), included 42 uniformed personnel responsible for monitoring the ceasere in Jammu
and Kashmir. UN peacekeepers with the United Nations
Main article: Group of 77
Truce Supervision Organization (UNTSO) have been stationed in the Middle East since 1948, the longest-running
The Group of 77 at the UN is a loose coalition of deactive peacekeeping mission.[104]
veloping nations, designed to promote its members collective economic interests and create an enhanced joint A study by the RAND Corporation in 2005 found the
negotiating capacity in the United Nations. Seventy- UN to be successful in two out of three peacekeeping
seven nations founded the organization, but by November eorts. It compared eorts at nation-building by the
2013 the organization had since expanded to 133 mem- United Nations to those of the United States, and found
ber countries.[99] The group was founded 15 June 1964 by that seven out of eight UN cases are at peace, as comthe Joint Declaration of the Seventy-Seven Countries pared with four out of eight US cases at peace.[105] Also
issued at the United Nations Conference on Trade and in 2005, the Human Security Report documented a deDevelopment (UNCTAD). The group held its rst major cline in the number of wars, genocides, and human rights
meeting in Algiers in 1967, where it adopted the Charter abuses since the end of the Cold War, and presented eviof Algiers and established the basis for permanent insti- dence, albeit circumstantial, that international activism
mostly spearheaded by the UNhas been the main cause
tutional structures.[100]
of the decline in armed conict in that period.[106] Situations in which the UN has not only acted to keep the
peace but also intervened include the Korean War (1950
4.4 Objectives
53) and the authorization of intervention in Iraq after the
Gulf War (199091).[107]
peacekeepers to regions where armed conict has recently ceased or paused to enforce the terms of peace
agreements and to discourage combatants from resuming hostilities. Since the UN does not maintain its own
military, peacekeeping forces are voluntarily provided
by member states. These soldiers are sometimes nicknamed Blue Helmets for their distinctive gear.[101][102]
The peacekeeping force as a whole received the Nobel
Peace Prize in 1988.[103]
In September 2013, the UN had peacekeeping soldiers deployed on 15 missions. The largest was the
United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo (MONUSCO), which
included 20,688 uniformed personnel. The smallest,
United Nations Military Observer Group in India and
42
4.4.2
Human rights
drafting.[122] The Declaration serves as a common standard of achievement for all peoples and all nations
rather than a legally binding document, but it has become
the basis of two binding treaties, the 1966 International
Covenant on Civil and Political Rights and International
Covenant on Economic, Social and Cultural Rights.[123]
In practice, the UN is unable to take signicant action
against human rights abuses without a Security Council
resolution, though it does substantial work in investigating and reporting abuses.[124]
In 1979, the General Assembly adopted the Convention
on the Elimination of All Forms of Discrimination
against Women, followed by the Convention on the Rights
of the Child in 1989.[125] With the end of the Cold
War, the push for human rights action took on new
impetus.[126] The United Nations Commission on Human
Rights was formed in 1993 to oversee human rights issues
for the UN, following the recommendation of that years
World Conference on Human Rights. Jacques Fomerand,
a scholar of the UN, describes this organizations mandate as broad and vague, with only meager resources
to carry it out.[127] In 2006, it was replaced by a Human
Rights Council consisting of 47 nations.[128] Also in 2006,
the General Assembly passed a Declaration on the Rights
of Indigenous Peoples,[129] and in 2011 it passed its rst
resolution recognizing the rights of LGBT people.[130]
Other UN bodies responsible for womens rights issues
include United Nations Commission on the Status of
Women, a commission of ECOSOC founded in 1946; the
United Nations Development Fund for Women, created
in 1976; and the United Nations International Research
and Training Institute for the Advancement of Women,
founded in 1979.[131] The United Nations Permanent Forum on Indigenous Issues, one of three bodies with a mandate to oversee issues related to indigenous peoples, held
its rst session in 2002.[132]
In 1948, the General Assembly adopted a Universal Declaration of Human Rights, drafted by a committee headed
by Franklin D. Roosevelts widow, Eleanor, and including the French lawyer Ren Cassin. The document proclaims basic civil, political, and economic rights common to all human beings, though its eectiveness toward achieving these ends has been disputed since its
Another primary purpose of the UN is to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian
character.[121] Numerous bodies have been created to
work towards this goal, primarily under the authority of
the General Assembly and ECOSOC.[134] In 2000, the
192 United Nations member states agreed to achieve eight
Millennium Development Goals by 2015.[135]
The UN Development Programme (UNDP), an organization for grant-based technical assistance founded
in 1945, is one of the leading bodies in the eld of
international development. The organization also publishes the UN Human Development Index, a comparative measure ranking countries by poverty, literacy, education, life expectancy, and other factors.[136][137] The
Food and Agriculture Organization (FAO), also founded
4.5. FUNDING
43
by voluntary contributions from governments, corporations, and individuals, though the UNHCRs administrative costs are paid for by the UNs primary budget.[149]
Since the UNs creation, over 80 colonies have attained independence. The General Assembly adopted
the Declaration on the Granting of Independence to
Colonial Countries and Peoples in 1960 with no votes
against but abstentions from all major colonial powers.
The UN works toward decolonization through groups including the UN Committee on Decolonization, created
in 1962.[150] The committee lists seventeen remaining
Non-Self-Governing Territories, the largest and most
populous of which is Western Sahara.[151]
4.4.4 Other
The UN also declares and co-ordinates international observances, periods of time to observe issues of international interest or concern. Examples include World Tuberculosis Day, Earth Day, and the International Year of
Deserts and Desertication.[155]
4.5 Funding
The UN is nanced from assessed and voluntary contributions from member states. The General Assembly approves the regular budget and determines the assessment
for each member. This is broadly based on the relative capacity of each country to pay, as measured by its gross national income (GNI), with adjustments for external debt
and low per capita income.[157] The two-year budget for
[158]
Along with the International Red Cross and Red Cres- 201213 was $5.512 billion in total.
cent Movement, the UN often takes a leading role in co- The Assembly has established the principle that the UN
ordinating emergency relief.[146] The World Food Pro- should not be unduly dependent on any one member to
gramme (WFP), created in 1961, provides food aid in nance its operations. Thus, there is a ceiling rate, setresponse to famine, natural disasters, and armed con- ting the maximum amount that any member can be asict. The organization reports that it feeds an average sessed for the regular budget. In December 2000, the
of 90 million people in 80 nations each year.[146][147] Assembly revised the scale of assessments in response
The Oce of the United Nations High Commissioner for to pressure from the United States. As part of that reRefugees (UNHCR), established in 1950, works to pro- vision, the regular budget ceiling was reduced from 25%
tect the rights of refugees, asylum seekers, and stateless to 22%.[159] For the least developed countries (LDCs),
people.[148] UNHCR and WFP programmes are funded a ceiling rate of 0.01% is applied.[157] In addition to the
44
ceiling rates, the minimum amount assessed to any mem- (1950), a UN negotiator, Ren Cassin (1968), a contribber nation (or oor rate) is set at 0.001% of the UN utor to the Universal Declaration of Human Rights, and
budget ($55,120 for the two year budget 2013-2014).[160] the US Secretary of State Cordell Hull (1945), the latter
A large share of the UNs expenditure addresses its core for his role in the organizations founding. Lester B. Pearmission of peace and security, and this budget is assessed son, the Canadian Secretary of State for External Aairs,
separately from the main organizational budget.[161] The was awarded the prize in 1957 for his role in organizing
peacekeeping budget for the 201516 scal year was the UNs rst peacekeeping force to resolve the Suez Cri$8.27 billion, supporting 82,318 troops deployed in 15 sis. UNICEF won the prize in 1965, the International
Labour Organization in 1969, the UN Peace-Keeping
missions around the world.[104] UN peace operations are
funded by assessments, using a formula derived from Forces in 1988, the International Atomic Energy Agency
(which reports to the UN) in 2005, and the UN-supported
the regular funding scale that includes a weighted surcharge for the ve permanent Security Council members, Organization for the Prohibition of Chemical Weapons
in 2013. The United Nations High Commissioner for
who must approve all peacekeeping operations. This surcharge serves to oset discounted peacekeeping assess- Refugees was awarded in 1954 and 1981, becoming one
of only two recipients to win the prize twice. The UN as
ment rates for less developed countries. In 2013, the top
was awarded the prize in 2001, sharing it with
10 providers of assessed nancial contributions to United a whole[165]
Annan.
Nations peacekeeping operations were the United States
(28.38%), Japan (10.83%), France (7.22%), Germany
(7.14%), the United Kingdom (6.68%), China (6.64%),
Italy (4.45%), the Russian Federation (3.15%), Canada
(2.98%), and Spain (2.97%).[162]
Special UN programmes not included in the regular budget, such as UNICEF and the World Food
Programme, are nanced by voluntary contributions
from member governments, corporations, and private
individuals.[163][164]
Since its founding, there have been many calls for reform
of the United Nations but little consensus on how to do
so. Some want the UN to play a greater or more eective role in world aairs, while others want its role reduced to humanitarian work. There have also been numerous calls for the UN Security Councils membership
to be increased, for dierent ways of electing the UNs
Secretary-General, and for a United Nations Parliamentary Assembly. Jacques Fomerand states the most enduring divide in views of the UN is the NorthSouth split
between richer Northern nations and developing Southern nations. Southern nations tend to favour a more empowered UN with a stronger General Assembly, allowing
To mark the UNs 70th anniversary Budapest, 2015
them a greater voice in world aairs, while Northern nations prefer an economically laissez-faire UN that focuses
See also: Criticism of the United Nations and Reform of on transnational threats such as terrorism.[166]
the United Nations
After World War II, the French Committee of National
A number of agencies and individuals associated with
the UN have won the Nobel Peace Prize in recognition of their work. Two Secretaries-General, Dag Hammarskjld and Ko Annan, were each awarded the prize
(in 1961 and 2001, respectively), as were Ralph Bunche
45
found that many of its ocials had been involved, as well
as raising signicant questions about the role of Kojo
Annan, the son of Ko Annan.[180]
In evaluating the UN as a whole, Jacques Fomerand
writes that the accomplishments of the United Nations
in the last 60 years are impressive in their own terms.
Progress in human development during the 20th century
has been dramatic and the UN and its agencies have certainly helped the world become a more hospitable and livable place for millions.[181] Evaluating the rst 50 years
of the UNs history, the author Stanley Meisler writes
that the United Nations never fullled the hopes of its
founders, but it accomplished a great deal nevertheless,
citing its role in decolonization and its many successful peacekeeping eorts.[182] The British historian Paul
Kennedy states that while the organization has suered
some major setbacks, when all its aspects are considered, the UN has brought great benets to our generation
and ... will bring benets to our childrens and grandchildrens generations as well.[183]
4.8 Notes
[1] This map does not represent the view of its members or the UN concerning the legal status of any
country,<ref>{{cite web|url=https://www.un.org/Depts/
Cartographic/map/profile/world00.pdf|title=The World
Today|format=PDF|accessdate=18 June 2009|quote=The
designations employed and the presentation of material on
this map do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations
concerning the legal status of any country}}</ref> nor
does it accurately reect which areas governments have
UN representation. This map shows partially recognized
states such as Kosovo or Taiwan as part of their claiming
governments (Serbia and China respectively)
[2] This map does not represent the view of its members or
the UN concerning the legal status of any country,[1] nor
does it accurately reect which areas governments have
UN representation. This map shows partially recognized
states such as Kosovo or Taiwan as part of their claiming
governments (Serbia and China respectively)
46
4.9 References
4.9.1
Citations
4.9. REFERENCES
47
[58] General Assembly of the United Nations Rules of Procedure. UN Department for General Assembly. Retrieved 15 December 2010.
[59] Jerusalem Court: No Immunity for UN Employee for
Private ActsDiplomatic/Consular Law and Sovereign
Immunity in Israel. Diplomaticlaw.com. 23 March
2009. Retrieved 27 April 2010.
[60] Fasulo 2004, p. 4.
[61] Fasulo 2004, pp. 47.
[62] Salaries, United Nations website
[63] ILO: Noblemaire principle, Judgement 986, consideration
7, and Judgment 831, Consideration 1.
[64] UN Sta Regulations, Regulation 3.3(f)
[65] Americans Working at the U.N, World, New York Times,
28 September 2009
48
[94] UN welcomes South Sudan as 193rd Member State. [118] Resolutions Adopted by the General Assembly During
United Nations. 28 June 2006. Retrieved 4 November
its First Session. United Nations. Retrieved 24 March
2011.
2008.
[95] United Nations Member States. United Nations. Re- [119] Fasulo 2004, pp. 188189.
trieved 22 November 2013.
[120] Fasulo 2004, pp. 189190.
[96] Charter of the United Nations: Chapter II. United Na[121] United Nations Charter: Chapter I. United Nations.
tions. Retrieved 21 November 2013.
Retrieved 18 November 2013.
[97] Non-member States. United Nations. Retrieved 23
[122] Kennedy 2007, pp. 178182.
November 2013.
[123] Fomerand 2009, p. 377.
[98] Repertory of Practice (PDF). United Nations. p. 10.
Retrieved 23 November 2013.
[124] Kennedy 2007, pp. 185, 188.
[99] The Member States of the Group of 77. Retrieved 7 [125] Fomerand 2009, pp. 70, 73.
November 2013.
[126] Kennedy 2007, p. 192.
[100] About the G77. Group of 77. Retrieved 5 November
[127] Fomerand 2009, p. 347.
2013.
[101] Fasulo 2004, p. 52.
[137]
[112] Lynch, Colum (16 December 2004). U.N. Sexual Abuse
Alleged in Congo. The Washington Post. Retrieved 21 [138]
November 2013.
[139]
[113] UN troops face child abuse claims. BBC News. 30
November 2006. Retrieved 21 November 2013.
[140]
[114] Aid workers in Liberia accused of sex abuse. The New
York Times. 8 May 2006. Retrieved 22 November 2013.
[141]
[115] Holt, Kate (4 January 2007). UN sta accused of raping
children in Sudan. The Daily Telegraph. Retrieved 21
[142]
November 2013.
[116] Peacekeepers 'abusing children'". BBC News. 28 May [143] Fasulo 2004, pp. 176177.
2007. Retrieved 21 November 2013.
[144] Fomerand 2009, pp. 199200.
[117] Watson, Ivan; Vaccarello, Joe (10 October 2013). U.N. [145] Fomerand 2009, p. 368.
sued for 'bringing cholera to Haiti,' causing outbreak that
killed thousands. CNN. Retrieved 18 November 2013. [146] Fasulo 2004, p. 183.
4.9. REFERENCES
49
[147] Our Work. World Food Programme. Retrieved 22 [171] Normand, Roger; Zaidi, Sarah (13 February 2003).
November 2013.
Human Rights at the UN: The Political History of Universal Justice. Indiana University Press. p. 455. ISBN
[148] About Us. Oce of the United Nations High Commis0253000114. Retrieved 12 January 2014.
sioner for Refugees. Retrieved 22 November 2013.
[172] Frances role at the UN. Permanent Mission of France
[149] Fomerand 2009, pp. 348, 398.
to the United Nations. Retrieved 25 November 2013.
[150] The United Nations and Decolonization. United Na- [173]
tions. Retrieved 6 November 2013.
[162] Financing of UN Peacekeeping Operations. United Na- [180] Q&A: Oil-for-food scandal. BBC News. 7 September
2005. Retrieved 27 November 2013.
tions. Retrieved 9 November 2013.
[163] Where Your Money Goes. World Food Programme. [181] Fomerand 2009, pp. cviii.
Retrieved 9 November 2013.
[182] Meisler 1995, p. 339.
[164] Overall funding trends. UNICEF. 21 January 2013.
[183] Kennedy 2007, p. 290.
Retrieved 9 November 2013.
[165] All Nobel Peace Prizes. Nobel Prize. Retrieved 5
November 2013.
[166] Fomerand 2009, p. civ.
[167] Gerbet, Pierre (1995). Naissance des Nations Unies.
Espoir (in French) (102).
4.9.2 Bibliography
Ball, Howard (2011). Genocide: A Reference Handbook. Contemporary World Issues. Santa Barbara,
California: ABC-CLIO. ISBN 978-1-59884-488-7.
50
Fomerand, Jacques (2009). The A to Z of the United
Nations. Lanham, Maryland: Scarecrow Press.
ISBN 978-0-8108-5547-2.
Gold, Dore (2004). Tower of Babble: How the
United Nations Has Fueled Global Chaos. New
York: Crown Forum. ISBN 978-1-4000-5475-6.
Grant, Thomas D. (2009). Admission to the United
Nations: Charter Article 4 and the Rise of Universal
Organization. Legal Aspects of International Organization 50. Leiden, Netherlands: Martinus Nijho
Publishers. ISBN 978-900417363-7. ISSN 09244883.
links
Ocial website
The United Nations Regional Information Centre
(UNRIC)
Chapter 5
Appellate Body
The Appellate Body of the World Trade Organization
is a standing body of seven persons that hears appeals
from reports issued by panels in disputes brought by WTO
members. It was established in 1995 under Article 17 of
the Understanding on Rules and Procedures Governing
the Settlement of Disputes (DSU). The Appellate Body
can uphold, modify or reverse the legal ndings and conclusions of a panel, and Appellate Body Reports, once
adopted by the Dispute Settlement Body (DSB), must be
accepted by the parties to the dispute. The Appellate
Body has its seat in Geneva, Switzerland.
51
Chapter 6
6.4 Cases
6.1 Composition
According to its founding statute, the Tribunal has a set
of 21 serving judges from a variety of states parties.
At the request of Chile and the European Union, the Tribunal set up a special chamber composed of 5 judges
to deal with the Case concerning the Conservation and
52
Chapter 7
Nuremberg trials
For the 1947 Soviet lm about the trials, see Nuremberg it possible to let such atrocities go unpunished? Could
Trials (lm).
France, could Russia, could Holland, Belgium, Norway,
Czechoslovakia, Poland or Yugoslavia be expected to
Coordinates:
4927.2603N 1102.9103E / consent to such a course? ... It will be remembered that
after the rst world war alleged criminals were handed
49.4543383N 11.0485050E The Nuremberg trials
(German: die Nrnberger Prozesse) were a series of over to be tried by Germany, and what a farce that was!
The majority got o and such sentences as were inicted
military tribunals, held by the Allied forces after World
[4]
War II, which were most notable for the prosecution of were derisory and were soon remitted.
prominent members of the political, military, judicial
and economic leadership of Nazi Germany who planned,
carried out, or otherwise participated in The Holocaust
and other war crimes. The trials were held in the city of
Nuremberg, Germany.
The rst, and best known of these trials, described as the
greatest trial in history by Norman Birkett, one of the
British judges who presided over it,[1] was the trial of the
major war criminals before the International Military Tribunal (IMT). Held between 20 November 1945 and 1 October 1946,[2] the Tribunal was given the task of trying 23
of the most important political and military leaders of the
Third Reich, though one of the defendants, Martin Bormann, was tried in absentia, while another, Robert Ley,
committed suicide within a week of the trials commencement.
Georey Lawrence
5 December 1946
A precedent for trying those accused of war crimes
had been set at the end of World War I in the Leipzig
War Crimes Trials held in May to July 1921 before the
Reichsgericht (German Supreme Court) in Leipzig, although these had been on a very limited scale and largely
regarded as ineectual. At the beginning of 1940, the
Polish government-in-exile asked the British and French
governments to condemn the German invasion of their
country. The British initially declined to do so; however,
in April 1940, a joint British-French-Polish declaration
was issued. Relatively bland because of Anglo-French
reservations, it proclaimed the trios desire to make a
formal and public protest to the conscience of the world
against the action of the German government whom they
must hold responsible for these crimes which cannot remain unpunished.[5]
54
the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of
summary execution in some circumstances, with the use
of an Act of Attainder to circumvent legal obstacles, being dissuaded from this only by talks with US and Soviet
leaders later in the war.[8]
55
Chief prosecutors
7.2.2
Participants
Defense counsel
56
Kraus / Rudolph Dix (both working for Hjalmar Schacht).
The main counsels were supported by a total of 70 assistants, clerks and lawyers.[24] The defense counsel witnesses included several men who took part in the war
crimes during World War II, such as Rudolf Hss. The
men testifying for the defense hoped to receive more lenient sentences. All of the men testifying on behalf of
the defense were found guilty on several counts.[25]
7.3 Trial
Rare colour photo of the trial at Nuremberg, depicting the defendants, guarded by American Military Police
7.3. TRIAL
57
28 January 1946: Witness Marie-Claude VaillantCouturier, member of the French Resistance and
concentration camp survivor, testies on the Holocaust, becoming the rst Holocaust survivor to do
so.
1112 February 1946: Witness and former Field
Marshal Friedrich Paulus, who had been secretly
brought to Nuremberg, testies on the question of
waging a war of aggression.
14 February 1946: The Soviet prosecutors try to
blame the Katyn massacre on the Germans.
15 April 1946: Witness Rudolf Hss, former commandant of Auschwitz, conrms that Kaltenbrunner
had never been there, but admits to having carried
out mass murder.
21 May 1946: Witness Ernst von Weizscker explains the German-Soviet Non-Aggression Pact of
1939, including its secret protocol detailing the division of Eastern Europe between Germany and the
Soviet Union.
20 June 1946: Albert Speer takes the stand. He is
the only defendant to take personal responsibility for
his actions.
29 June 1946: The defense for Martin Bormann testies.
12 July 1946: The court hears six witnesses testifying on the Katyn massacre; the Soviets fail to pin
the blame for the event on Germany.
58
31 August 1946: Last statements by the defendants. document which was created as a result of the trial. The
medical experiments conducted by German doctors and
1 September 1946: The court adjourns.
prosecuted in the so-called Doctors Trial led to the cre 30 September1 October 1946: The sentencing oc- ation of the Nuremberg Code to control future trials incurs, taking two days, with the individual sentences volving human subjects, a set of research ethics principles
for human experimentation.
read out on the afternoon of October 1.[42]
Of the indicted organizations the following were found
The accusers were successful in unveiling the background
not to be criminal:
of developments leading to the outbreak of World War II,
which cost at least 40 million lives in Europe alone,[43] as
Reichsregierung
well as the extent of the atrocities committed in the name
of the Hitler regime. Twelve of the accused were sen The General Sta and High Command was found
tenced to death, seven received prison sentences (ranging
not to comprise a group or organization as dened by
from 10 years to life in prison), three were acquitted, and
Article 9 of the London Charter
two were not charged.[44]
Sturmabteilung
7.3.3
Executions
The American authorities conducted subsequent NuremThe death sentences were carried out on 16 October 1946
berg Trials in their occupied zone.
by hanging using the standard drop method instead of
long drop. The U.S. army denied claims that the drop Other trials conducted after the Nuremberg Trials include
length was too short which caused the condemned to die the following:
slowly from strangulation instead of quickly from a broken neck.[45] But evidence remains that some of the con Auschwitz Trial
demned men died agonizingly slowly, struggling for 14
Belsen Trial
to 28 minutes before nally choking to death.[46][47] The
executioner was John C. Woods. Woods had hanged 34
Belzec Trial before the 1st Munich District Court in
U.S. soldiers during the war, botching several of them.[48]
the mid-1960s, of eight SS-men of the Belzec exterThe executions took place in the gymnasium of the court
mination camp
building (demolished in 1983).[49]
Although the rumor has long persisted that the bodies
were taken to Dachau and burned there, they were actually incinerated in a crematorium in Munich, and the
ashes scattered over the river Isar.[50] The French judges
suggested that the military condemned (Gring, Keitel
and Jodl) be shot by a ring squad, as is standard for military courts-martial, but this was opposed by Biddle and
the Soviet judges, who argued that the military ocers
had violated their military ethos and were not worthy of
death by being shot, which was considered to be more
dignied. The prisoners sentenced to incarceration were
transferred to Spandau Prison in 1947.
Dachau Trials
Frankfurt Auschwitz Trials
Majdanek trials, the longest Nazi war crimes trial in
history, spanning over 30 years
Mauthausen-Gusen camp trials
Ravensbrck Trial
Nuremberg principles
7.6. LEGACY
59
latter.[58]
7.6 Legacy
The Tribunal is celebrated for establishing that "[c]rimes
against international law are committed by men, not by
abstract entities, and only by punishing individuals who
commit such crimes can the provisions of international
law be enforced.[61] The creation of the IMT was followed by trials of lesser Nazi ocials and the trials of
Nazi doctors, who performed experiments on people in
prison camps. It served as the model for the International
Military Tribunal for the Far East which tried Japanese
ocials for crimes against peace and against humanity.
It also served as the model for the Eichmann trial and for
present-day courts at The Hague, for trying crimes committed during the Balkan wars of the early 1990s, and at
Arusha, for trying the people responsible for the genocide
in Rwanda.
Biddle soon changed his mind, as he approved a modied version of the plan on January 21, 1945, likely due
to time constraints, since the trial would be one of the
main issues discussed at Yalta.[54] At trial, the Nuremberg
tribunal ruled that any member of an organization convicted of war crimes, such as the SS or Gestapo, who had
joined after 1939 would be considered a war criminal.[55]
Biddle managed to convince the other judges to make The Nuremberg trials had a great inuence on the develan exemption for any member who was drafted or had opment of international criminal law. The Conclusions
no knowledge of the crimes being committed by these of the Nuremberg trials served as models for:
organizations.[52]
The Genocide Convention, 1948.
Justice Robert H. Jackson played an important role in not
only the trial itself, but also in the creation of the International Military Tribunal, as he led the American delegation to London that, in the summer of 1945, argued in
favour of prosecuting the Nazi leadership as a criminal
conspiracy.[56] According to Airey Neave, Jackson was
also the one behind the prosecutions decision to include
membership in any of the six criminal organizations in
the indictments at the trial, though the IMT rejected this
on the grounds that it was wholly without precedent in either international law or the domestic laws of any of the
Allies.[57] Jackson also attempted to have Alfried Krupp
be tried in place of his father, Gustav, and even suggested
that Alfried volunteer to be tried in his fathers place.[58]
Both proposals were rejected by the IMT, particularly
by Lawrence and Biddle, and some sources indicate that
this resulted in Jackson being viewed unfavourably by the
60
Law Commission, 1950, vol. II[62] ). See Nuremberg sion of the IMT, explained the opposition to the Tribunal
Principles.
thus:
The inuence of the tribunal can also be seen in the proposals for a permanent international criminal court, and
the drafting of international criminal codes, later prepared by the International Law Commission.
Tourists can visit courtroom 600 on days when no trial
is on. A permanent exhibition has been dedicated
to the trials. <ref name Nuremberg museum visitor information> http://www.memorium-nuremberg.de/
exhibition/visitor-information.html. Missing or empty
|title= (help)</ref>
7.6.1
7.7 Criticism
7.7. CRITICISM
he wrote. Law was created ex post facto to suit the passion and clamor of the time.[74]
U.S. Deputy Chief Counsel Abraham Pomerantz resigned in protest at the low caliber of the judges assigned
to try the industrial war criminals such as those at I.G.
Farben.[75]
Many Germans who agreed with the idea of punishment
for war crimes, admitted trepidation concerning the trials.
A contemporary German jurist said:
That the defendants at Nuremberg were
held responsible, condemned and punished,
will seem to most of us initially as a kind of
historical justice. However, no one who takes
the question of guilt seriously, above all no responsibly thoughtful jurist, will be content with
this sensibility nor should they be allowed to
be. Justice is not served when the guilty parties are punished in any old way, even if this
seems appropriate with regard to their measure
of guilt. Justice is only served when the guilty
are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the
jurisdiction of a legally appointed judge.[76]
The validity of the court has been questioned on a number
of grounds:
The defendants were not allowed to appeal or aect
the selection of judges.
A. L. Goodhart, Professor at Oxford, opposed
the view that, because the judges were appointed by the victors, the Tribunal was not
impartial and could not be regarded as a court
in the true sense. He wrote: Attractive as this
argument may sound in theory, it ignores the
fact that it runs counter to the administration
of law in every country. If it were true then
no spy could be given a legal trial, because his
case is always heard by judges representing the
enemy country. Yet no one has ever argued
that in such cases it was necessary to call on
neutral judges. The prisoner has the right to
demand that his judges shall be fair, but not
that they shall be neutral. As Lord Writ has
pointed out, the same principle is applicable to
ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of
honest citizens.[77]
One of the charges, brought against Keitel, Jodl, and
Ribbentrop included conspiracy to commit aggression against Poland in 1939. The Secret Protocols of
the German-Soviet Non-Aggression Pact of 23 August 1939, proposed the partition of Poland between
61
the Germans and the Soviets (which was subsequently executed in September 1939); however, Soviet leaders were not tried for being part of the same
conspiracy.[78] Instead, the Tribunal proclaimed the
Secret Protocols of the Non-Aggression Pact to be
a forgery. Moreover, Allied Powers Britain and Soviet Union were not tried for preparing and conducting the Anglo-Soviet invasion of Iran and the Winter
War, respectively.
In 1915, the Allied Powers, Britain, France, and
Russia, jointly issued a statement explicitly charging, for the rst time, another government (the
Sublime Porte) of committing a crime against humanity". However it was not until the phrase was
further developed in the London Charter that it had
a specic meaning. As the London Charter denition of what constituted a crime against humanity
was unknown when many of the crimes were committed, it could be argued to be a retroactive law,
in violation of the principles of prohibition of ex
post facto laws and the general principle of penal
law nullum crimen, nulla poena sine praevia lege poenali.[avalon 24]
The court agreed to relieve the Soviet leadership
from attending these trials as war criminals in order
to hide their crimes against war civilians, war crimes
that were committed by their army that included
carving up Poland in 1939 and attacking Finland
three months later. This exclusion request was
initiated by the Soviets and subsequently approved
by the courts administration.[79]
The trials were conducted under their own rules of
evidence. The Charter of the International Military
Tribunal permitted the use of normally inadmissible
evidence. Article 19 specied that The Tribunal
shall not be bound by technical rules of evidence ...
and shall admit any evidence which it deems to have
probative value. Article 21 of the Nuremberg International Military Tribunal (IMT) Charter stipulated:
The Tribunal shall not require proof
of facts of common knowledge but
shall take judicial notice thereof. It
shall also take judicial notice of ofcial governmental documents and
reports of the United [Allied] Nations, including acts and documents
of the committees set up in the
various allied countries for the investigation of war crimes, and the
records and ndings of military and
other Tribunals of any of the United
[Allied] Nations.
Though the ICTY later held it to be awed in
principle,[80] the tu quoque argument, adduced by
62
The chief Soviet prosecutor submitted false documentation in an attempt to indict defendants for the
murder of thousands of Polish ocers in the Katyn
forest near Smolensk. However, the other Allied
prosecutors refused to support the indictment and
German lawyers promised to mount an embarrassing defense. No one was charged or found guilty
at Nuremberg for the Katyn Forest massacre.[81] In
1990, the Soviet government acknowledged that the
Katyn massacre was carried out, not by the Germans, but by the Soviet secret police.[82]
Freda Utley, in her 1949 book The High Cost of
Vengeance [83] charged the court with amongst other
things double standards. She pointed to the Allied
use of civilian forced labor, and deliberate starvation
of civilians[84][85] in the occupied territories. She
also noted that General Rudenko, the chief Soviet
prosecutor, after the trials became commandant of
the Sachsenhausen concentration camp. (After the
fall of East Germany the bodies of 12,500 Soviet era
victims were uncovered at the camp, mainly children, adolescents and elderly people.[86] )
Legitimacy
63
For further reference, a book titled The Origins of Simultaneous Interpretation: The Nuremberg Trial, written by interpreter Francesca Gaiba, was published by the
University of Ottawa Press in 1998.
Today, all major international organizations, as well as
any conference or government that uses more than one
ocial language, uses extempore simultaneous interpretation. Notable bodies include the Parliament of Kosovo
64
Superior orders
Transitional justice
[18] Heydecker, Joe J.; Leeb, Johannes (1979). Der Nrnberger Proze (in German). Kln: Kiepenheuer und
Witsch. p. 97.
7.10 References
[19] Minutes of 2nd meeting of BWCE and the Representatives of the USA. Kew, London: Lord Chancellors Oce,
Public Record Oce. 21 June 1945.
7.10.1
Notes
[22] http://www.highbeam.com/doc/1P2-3758012.html
[27] Summary of the indictment in Department of State Bulletin, October 21, 1945, p. 595
[28] President of the Reich for 23 days after Adolf Hitlers
suicide.[avalon 3]
7.10. REFERENCES
65
66
[69] See Paper of Jonathan Graubart, San Diego State University, Political Science Department, published online
Graubart Article, referring to the ex post facto nature of
the charges.
[89] Abbott Gleason (2009). "A Companion to Russian History". Wiley-Blackwell. p.373. ISBN 1-4051-3560-3
7.10.2 Citations
Avalon Project
7.10. REFERENCES
67
Brennecke, Gerhard. Die Nrnberger Geschichtsentstellung.
Quellen zur Vorgeschichte und
Geschichte des 2. Weltkriegs aus den Akten der
deutschen Verteidigung. Verentlichungen des
Instituts fr deutsche Nachkriegsgeschichte, Vol.
V. 2nd Ed. Tbingen: Verlag der Deutschen
Hochschullehrer-Zeitung, 1970.
Brunner, Jos (September 2001). "Oh those
crazy cards again: a history of the debate on the
Nazi Rorschachs, 19462001. Political Psychology (Wiley) 22 (2): 233261. doi:10.1111/0162895X.00237. JSTOR 3791925. (subscription required)
Cooper, Robert W. (2011) [1947]. The Nuremberg
Trial. London: Faber & Faber. ISBN 978-0-57127273-0.
Davidson, Eugene (1997) [1966]. The Trial of the
Germans: An Account of the Twenty-Two Defendants Before the International Military Tribunal at
Nuremberg. Columbia, MI: University of Missouri
Press. ISBN 978-0-8262-1139-2.
Davidson, Eugene (1999) [1959]. The Death and
Life of Germany. Columbia, MI: University of Missouri Press. ISBN 0-8262-1249-2.
Gilbert, Gustave M. (1995) [1947]. Nuremberg Diary. Cambridge, MA: Da Capo Press. ISBN 9780-306-80661-2.
[25] International Military Tribunal, Judgment of the International Military Tribunal (1946)". Archived from the original on January 7, 2015.
Goldensohn, Leon N. (2004). The Nuremberg Interviews: Conversations with the Defendants and Witnesses. New York, NY: Alfred A. Knopf. ISBN
978-0-375-41469-5.
Other
Fichtelberg, Aaron. Fair Trials and International
Courts: A Critical Evaluation of the NurembergLegacy. Criminal Justice Ethics 28.1 (2009): 524.
ProQuest Criminal Justice. Web. 16 Oct. 2013.
7.10.3
Bibliography
68
JSTOR
69
Chapter 8
The International Military Tribunal for the Far East was convened at Ichigaya Court, formerly the Imperial Japanese Army
HQ building, in Ichigaya, Tokyo.
8.1 Background
The Tribunal was established to implement the Cairo
Declaration, the Potsdam Declaration, the Instrument of
Surrender, and the Moscow Conference. The Potsdam
Declaration had called for trials and purges of those who
had deceived and misled the Japanese people into war.
However, there was major disagreement, both among the
Allies and within their administrations, about whom to
try and how to try them. Despite the lack of consensus, General Douglas MacArthur, the Supreme Commander of the Allied Powers, decided to initiate arrests. On
September 11, a week after the surrender, he ordered the
arrest of 39 suspectsmost of them members of General
Hideki Tj's war cabinet. Tj tried to commit suicide,
but was resuscitated with the help of U.S. doctors.
70
8.3. DEFENDANTS
The judges
71
The defendants
Judges
8.2.2
Prosecutors
8.3 Defendants
8.3.1
Civilian ocials
72
8.3.3
Other defendants
Keenan issued a press statement along with the indictment: War and treaty-breakers should be stripped of the
glamour of national heroes and exposed as what they really areplain, ordinary murderers.
Wartime press releases of the Allies were admitted as evidence by the prosecution, while those sought to be entered by the defense were excluded. The recollection of
Following months of preparation, the IMTFE convened a conversation with a long-dead man was admitted. Leton April 29, 1946. The trials were held in the War Min- ters allegedly written by Japanese citizens were admitted
istry oce in Tokyo.
with no proof of authenticity and no opportunity for cross
[8]
On May 3 the prosecution opened its case, charging the examination by the defense.
defendants with conventional war crimes, crimes against The Tribunal embraced the best evidence rule once the
peace, and crimes against humanity. The trial contin- Prosecution had rested.[9] The best evidence rule dictates
ued for more than two and a half years, hearing testi- that the best or most authentic evidence must be promony from 419 witnesses and admitting 4,336 exhibits of duced (For example, a map instead of a description of
evidence, including depositions and adavits from 779 the map; an original instead of a copy; and a witness instead of a description of what the witness may have said).
other individuals.
View of the Tribunal in session: the bench of judges is on the
right, the defendants on the left, and the prosecutors in the back.
73
8.4.4 Judgment
The IMT spent six months reaching judgment and drafting its 1,781-page opinion. On the day the judgment was
read, ve of the eleven justices released separate opinions
outside the court.
In his concurring opinion Justice William Webb of Australia took issue with Emperor Hirohitos legal status,
writing, The suggestion that the Emperor was bound to
act on advice is contrary to the evidence. While refraining from personal indictment of Hirohito, Webb indicated that Hirohito bore responsibility as a constitutional
monarch who accepted ministerial and other advice for
war and that no ruler can commit the crime of launching aggressive war and then validly claim to be excused
for doing so because his life would otherwise have been in
danger...It will remain that the men who advised the commission of a crime, if it be one, are in no worse position
than the man who directs the crime be committed.[11]
8.4.3
Defense
The defendants were represented by over a hundred attorneys, three-quarters of them Japanese and one-quarter
American, plus a support sta. The defense opened its
case on January 27, 1947, and nished its presentation
225 days later on September 9, 1947.
74
8.4.5
Sentencing
8.6. CRITICISM
the Allied Powers, MacArthur gave immunity to Shiro
Ishii and all members of the bacteriological research units
in exchange for germ warfare data based on human experimentation. On May 6, 1947, he wrote to Washington
that additional data, possibly some statements from Ishii
probably can be obtained by informing Japanese involved
that information will be retained in intelligence channels
and will not be employed as 'War Crimes evidence.[14]
The deal was concluded in 1948.[15]
In 1981 John W. Powell published an article in the
Bulletin of the Atomic Scientists detailing the experiments
of Unit 731 and its open-air tests of germ warfare on civilians. It was printed with a statement by Judge Rling,
the last surviving member of the Tokyo Tribunal, who
wrote, As one of the judges in the International Military
Tribunal, it is a bitter experience for me to be informed
now that centrally ordered Japanese war criminality of
the most disgusting kind was kept secret from the Court
by the U.S. government.[16]
8.6 Criticism
8.6.1
75
Justice Rling stated, "[o]f course, in Japan we were all
aware of the bombings and the burnings of Tokyo and
Yokohama and other big cities. It was horrible that we
went there for the purpose of vindicating the laws of war,
and yet saw every day how the Allies had violated them
dreadfully.
However, in respect to Pal and Rlings statement about
the conduct of air attacks, there was no positive or specic
customary international humanitarian law with respect to
aerial warfare before and during World War II. Ben Bruce
Blakeney, an American defense consul for Japanese defendants, argued that "[i]f the killing of Admiral Kidd
by the bombing of Pearl Harbor is murder, we know the
name of the very man who[se] hands loosed the atomic
bomb on Hiroshima", even though Pearl Harbor was classied as a war crime under the 1907 Hague Convention,
as it happened without a declaration of war and without a
just cause for self-defense. Similarly, the indiscriminate
bombing of Chinese cities by Japanese Imperial Forces
was never raised in the Tokyo Trials in fear of America being accused the same thing for its air attacks on
Japanese cities. As a result, Japanese pilots and ocers
escaped prosecution for their aerial raids on Pearl Harbor
and cities in China and other Asian countries.[21]
The United States had provided the funds and sta necessary for running the Tribunal and also held the function of Chief Prosecutor. The argument was made that
it was dicult, if not impossible, to uphold the requirement of impartiality with which such an organ should be
invested. This apparent conict gave the impression that
the tribunal was no more than a means for the dispensation of victors justice. Solis Horowitz argues that IMTFE
had an American bias: unlike the Nuremberg Trials, there
was only a single prosecution team, led by an American,
although the members of the tribunal represented eleven
dierent Allied countries.[17] The IMTFE had less ocial support than the Nuremberg Trials. Keenan, a former
U.S. assistant attorney general, had a much lower position
than Nurembergs Robert H. Jackson, a justice of the U.S.
Supreme Court.
76
cated the emperor. High ocials in court circles and the quitted.
Japanese government collaborated with Allied GHQ in
compiling lists of prospective war criminals. People arrested as Class A suspects and incarcerated in the Sugamo 8.7 Aftermath
Prison solemnly vowed to protect their sovereign against
any possible taint of war responsibility.[24]
8.8. LEGACY
Yakichiro Suma: Consul General at Nanking; in
1938, he served as counselor at the Japanese Embassy in Washington; after 1941, Minister Plenipotentiary to Spain.
All remaining people apprehended and accused of Class
A war crimes who had not yet come to trial were set free
by MacArthur in 1947 and 1948.
8.7.2
77
Many Japanese reacted to the Tokyo War Crimes Tribunal by demanding parole for the detainees or mitigation
of their sentences. Shortly after the San Francisco Peace
Treaty came into eect, a movement demanding the release of B- and C-class war criminals began, emphasizing the unfairness of the war crimes tribunals and the
misery and hardship of the families of war criminals.
The movement quickly garnered the support of more than
ten million Japanese. The government commented that
public sentiment in our country is that the war criminals
are not criminals. Rather, they gather great sympathy as
victims of the war, and the number of people concerned
about the war crimes tribunal system itself is steadily increasing.
8.7.3
On September 4, 1952, President Truman issued Executive Order 10393, establishing a Clemency and Parole Board for War Criminals. Its purpose was to advise
the President regarding recommendations by the Government of Japan for clemency, reduction of sentence, or
parole of Japanese war criminals sentenced by military
tribunals.[31]
On May 26, 1954, Secretary of State John Foster Dulles
rejected a proposed amnesty for the imprisoned war
criminals but instead agreed to change the ground rules
by reducing the period required for eligibility for parole
from 15 years to 10 years.[32]
By the end of 1958, all Japanese war criminals
were released from prison and politically rehabilitated.
Hashimoto Kingor, Hata Shunroku, Minami Jir, and
Oka Takazumi were all released on parole in 1954. Araki
Sadao, Hiranuma Kiichir, Hoshino Naoki, Kaya Okinori, Kido Kichi, shima Hiroshi, Shimada Shigetar,
and Suzuki Teiichi were released on parole in 1955.
Sat Kenry, whom manyincluding Judge Rling
regarded as the one least deserving of imprisonment, was
not granted parole until March 1956, the last of the Class
A Japanese war criminals to be released. With the concurrence of a majority of the powers represented on the
tribunal, the Japanese government announced on April 7,
1957, that the last ten major Japanese war criminals who
had previously been paroled were granted clemency and
were to be regarded henceforth as unconditionally free.
8.8 Legacy
In 1978 the kami of 1,068 convicted war criminals, including 14 convicted Class-A war criminals were secretly enshrined at Yasukuni Shrine.[33] Those enshrined
include Hideki Tj, Kenji Doihara, Iwane Matsui,
78
[3] Within documents relating to the IMTFE, it is also referred to as the Charter.
[4] Rules of Procedure of the International Military Tribunal
for the Far East. April 25, 1946.
[5] Personal correspondence, Sir William Webb, as President of the International Military Tribunal for the Far
East to Dr Evatt, Minister for External Aairs and
Attorney General. Letter of 3 July 1946. Available
at:http://recordsearch.naa.gov.au/SearchNRetrieve/
Interface/DetailsReports/ItemDetail.aspx?Barcode=
819494&isAv=N
[6] Brackman 1987, p. 60.
[7] Minear 1971, p. 118.
[8] Minear 1971, p. 120.
[9] Minear 1971, pp. 122123.
[10] George Furness, a Defense Counsel, stated, "[w]e say that
regardless of the known integrity of the individual members of this tribunal they cannot, under the circumstances
of their appointment, be impartial; that under the circumstances this trial, both in the present day and in history,
will never be free from substantial doubt as to its legality,
fairness and impartiality.
[11] Rling & Rter 1977, p. 478.
INA trials
Japanese war crimes
Justice Erima Harvey Northcroft Tokyo War Crimes
Trial Collection
Nanjing War Crimes Tribunal
Nanking Massacre
(Praido, Pride): A 1998 Japanese [19] Robert Cryer, Neil Boister, ed. (Sep 25, 2008).
lm about the trial.
Documents on the Tokyo International Military Tribunal:
Charter, Indictment, and Judgments, Volume 1 1. Oxford
University Press. pp. LV. ISBN 0199541922.
8.10 References
8.10.1
Notes
79
Rling, B. V. A.; Rter, C. F. (1977). The Tokyo
Judgment: The International Military Tribunal for
the Far East (I.M.T.F.E), 29 April 1946-12 November 1948 1. Amsterdam: APA-University Press.
ISBN 978-90-6042-041-6.
8.10.2
Books
8.10.3 Web
International Military Tribunal for the Far East.
Judgment: International Military Tribunal for the
Far East. Retrieved March 29, 2006.
Ming-Hui Yao. Nanjing Massacre and the Tokyo
War Crimes Trial. archives.cnd.org.
Brackman, Arnold C. (1987). The Other Nuremberg: The Untold Story of the Tokyo War Crimes
Trial. New York: William Morrow and Company.
80
81
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Finc123 and Anonymous: 146
8.13.2
Images
87
File:Bundesarchiv_Bild_183-2008-0922-501,_Robert_Ley.jpg Source:
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width='20'
height='11' srcset='https://upload.wikimedia.org/wikipedia/commons/thumb/f/ff/Wikidata-logo.svg/30px-Wikidata-logo.svg.png 1.5x,
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88
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Contributors:
Used
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