Individual responsibility and the Int'l Criminal Court

Nuremberg Judgment

The Nuremberg judgment of September 30, 1946 sentenced Nazi War Criminals for their involvement in World War II. New principles evolved out of said judgment. The International Law Commission (ILC) was tasked later by the UN General Assembly to list down the principles drawn out of the Nuremberg Judgment. Some of these are as follows: 1.) Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment; 2.) The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law; 3.) The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government officials does not relieve him from responsibility under international law; 4.) The fact that a person acted pursuant to order of his Government or Superior does not relieve him from responsibility under international law provided that a moral choice was in fact possible to him;

Notice that these principles are now embodied in Part 3, Articles 22 to 33 of the ICC Statute.

The Nuremberg Judgment has dramatically changed the treatment of rights in International Law

Prior to the Nuremberg judgment, International law dealt only with States. There was no individual accountability or responsibility. The most telling doctrine enunciated in the judgment is that “crimes against International Law are committed by men and not by abstract entities, and only by punishing individuals can International Law be enforced.” This doctrine presaged a complete change in International Law regarding individuals who commit crimes against International Law. The Nuremberg judgment serves as the precedent for establishing the concept of crimes for which there could be individual responsibility. This individual responsibility lies at the core of the establishment of the International Criminal Court.

Human beings as bearers of rights and bearers of obligations

As an aftermath of World War II and because of the atrocities and serious crimes committed, human rights became the major concern of Nations and world leaders. It began with the UN Charter which entered into force on October 24, 1945 with its Preamble citing “to reaffirm faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of men and women.” The Universal Declaration of Human Rights of 1948 adopted by the UN General Assembly wherein the members thereof pledged themselves for the promotion of universal respect for and observance of human rights and fundamental freedoms. Then there were Treaties and Conventions wherein ratifying nations obliged themselves to follow and observe the provisions of said Treaties and Conventions. Likewise, were the formation of international human rights bodies which were mandated to investigate violations of human rights. Also the formation and functioning of Regional Human Rights Bodies. So while these Rights have been conferred, the individual has also become the bearer of obligations as he acquired a responsibility under the laws with respect to serious crimes punishable under international law.

The Rome Statute establishing the ICC

After years of study and deliberations particularly within the confines of the International Law Commission, the UN body created for the progressive development of International Laws and their codification, several drafts relating to the establishment of an International Criminal Court were prepared. This culminated when the UN Secretary General opened the Treaty Conference on the establishment of the ICC on June 15, 1998 at Rome. After five weeks of deliberations or on July 17 the conference participants reached an agreement on several key issues and thereby adopting the Rome Statute. Many thorny issues were settled and as one delegate had said viz: “the important thing is that there is this Statute long awaited and a court established with jurisdiction over the most serious crimes of concern to the international community. It is said that a supreme crime needs a Supreme Court.”

The ICC Statute entered into force in 2002 when the 60th Instruments of Ratification were deposited

The ICC Statute has now entered into force and 2008 marks the 10th year of its adoption in Rome. Under the Statute in Article 123, it provides for a review of the Statute seven years after its entry into force. To be sure, there are certain provisions in the Statute that maybe the subject of this review process such as for instance the complementary provision wherein National Jurisdiction over crimes would yield in favor of the ICC; the appeal process wherein the acquittal of a person can still be appealed by the prosecutor, the relationship between the UN and the Court in that the UN, being a political body, can or may intervene or encroach into the operation of the court such as in Article 16 of the Statute on deferral of investigation and the withholding of the decision by the Security Council to define the crime of aggression in which the court has been conferred jurisdiction.

Summation

After the Rome Statute was adopted in July of 1998, a forum was held in New York City which I personally attended. In that meeting questions were asked whether the Ad-Hoc Tribunals created by the UN Security Council can now be phased out or effectively replaced by the ICC. Recall several Tribunals had been created to try persons for serious crimes such as the late Milosovic of Yugoslavia, Charles Taylor of Liberia, the perpetrators of the killing fields in Cambodia, the massacre in Rwanda etc…The answer given by Mr. Hans Corell, then Undersecretary General and Legal Counsel of the UN, is that they can continue to function as they were created by specific Security Council Resolutions with defined jurisdiction and coverage. This answer did not satisfy many on the belief that the ICC shall enjoy exclusive jurisdiction and that the Ad-hoc Tribunals are temporary to give way to a permanent Institution as the ICC. But of course, the ICC is now bogged down by the failure of countries such as the US, UK, China, Russia and many others to ratify the Statute. Since its entry into force in 2002, only 105 countries have so far ratified the Rome Statute. Asia and the Pacific together with the Middle East remain the least represented in the Court. This includes the Philippines.