Writing to US President Harry Truman in advance of the 1945 military tribunal at Nuremberg, Justice Robert Jackson observed: “We do not accept the paradox that legal responsibility should be least where power is the greatest.” The Nuremberg and Tokyo tribunals were principally concerned with prosecuting crimes against the peace, but they created a precedent that individuals – state leaders – could be held criminally accountable for war crimes and crimes against humanity. This development represented an explicit rejection of the doctrine that a head of state should be considered immune from legal liability. In the wake of Nuremberg, the United Nations established a committee to draft a statute for a permanent international criminal court but negotiations stalled and the international community failed in that initial attempt to create a set of binding international legal norms on individual criminal accountability. Nonetheless, the Nuremberg experience advanced some international legal concepts and set in motion a process for developing international criminal law that would be pursued within the UN’s International Law Commission (ILC) over the next several decades.
Ad Hoc Tribunals
In the early 1990s several developments gave the project new urgency. Most prominently, ethnic cleansing and other human rights atrocities in the former Yugoslavia captured international attention. As early as 1992, grave concerns about summary execution of civilians and other atrocities led Human Rights Watch (Helsinki Watch) to conduct an investigation and issue a two-volume detailed and documented analysis of IHL violations. Its call for the establishment of a criminal tribunal was followed by a campaign, Prosecute Now!
In response to the crisis in former Yugoslavia, the international community again decided to create international tribunals to put on trial those individuals most responsible for grave breaches of the Geneva Conventions and crimes against humanity, but this time it was not a victor’s court. In 1993, the United Nations Security Council passed Resolution 827 formally establishing the International Criminal Tribunal for Yugoslavia (ICTY) – the first international court established by the UN and the first international war crimes tribunal since Nuremberg.
The following year it created a similar tribunal to prosecute individuals responsible for genocide and other serious violations of human rights and humanitarian law in Rwanda, the International Criminal Tribunal for Rwanda. The genocide was documented by Human Rights Watch researcher Alison des Forges in her pathbreaking 800 page report, Leave None to Tell the Story. Des Forges testified as an expert witness and her report featured prominently as evidence in several trial proceedings. Over the next decade the UN Security Council would authorize three additional international or hybrid tribunals to carry out similar prosecutions.
Creating an International Criminal Court
By the time the International Criminal Tribunal for Yugoslavia was operational, pressures were mounting for the creation of a permanent international criminal court.
In 1992 the UN General Assembly charged the International Law Commission to begin drafting a statute for such a court. The effort immediately caught attention of human rights organizations – who were at the time making preparations to attend the June 1993 World Conference on Human Rights in Vienna. At that conference, representatives of the largest organizations found opportunity to discuss the idea of a permanent criminal court and begin to lay some joint plans. Shortly after the ILC issued its 1994 draft statute for the court, the World Federalist Movement (WFM) convened a meeting of prominent NGOs to form a Coalition for an International Criminal Court (CICC). The CICC ultimately would include some 2500 civil society organizations, and among the initial members of its international steering committee were Amnesty International, Human Rights First, Human Rights Watch, the Fédération International des Droits de l’Homme, the International Commission of Jurists, and No Peace Without Justice as well as the WFM.
The CICC’s work over the next three years helped shape the terms of the debate and ultimately led to important changes in the Statute’s final text. Michael Struett in The Politics of Constructing the International Criminal Court and Benjamin Schiff in Building the International Criminal Court have independently reported and analyzed the contributions made by human rights advocacy organizations to both the process and substance. For human rights organizations the quest for the court was primarily about ending a culture of impunity – the idea that individual leaders could escape being held accountable for the human rights abuse they had ordered. The rallying cry against impunity not only galvanized supporters but focused the attention of diplomats. Struett credits human rights organizations with analyzing the legal issues involved, pointing out problems and ambiguities in various proposals (including the initial draft prepared by the ILC), and proposing broadly acceptable solutions to normative and practical problems. Over the course of several preparatory meetings leading up to the final negotiating conference in 1998, human rights advocates contributed substantially to developing the list and definition of crimes (including crimes against humanity, and gender crimes), articulating the principle and mechanisms of complementarity between the ICC and national courts; and identifying the mechanisms that would trigger ICC engagement in a situation.
In 1998 CICC sent a massive delegation to observe (and lobby diplomats) at the plenipotentiary conference convened in Rome to finalize the treaty establishing the court, and according to Schiff they vastly increased the transparency of the proceedings by circulating a daily digest of positions espoused by states. The Rome Statute was adopted by an overwhelming majority of states, establishing a permanent international court with jurisdiction over the crimes of genocide, war crimes, crimes against humanity and aggression. The International Criminal Court (ICC) entered into force in July 2002. More than 120 members have ratified the Rome Statute, and by 2013, the court had issued 30 indictments for crimes under its jurisdiction.
Truth Commissions and Transitional Justice
In addition to these innovations at an international level, important developments also transpired in domestic settings. In the 1970s, Greece and Portugal each initiated domestic trials to hold their own leaders criminally accountable for human rights violations, and in 1985, Argentina established the first contemporary “truth commission,” to prosecute members of the military Junta (1976-1982) for human rights violations committed during the Dirty War.
By 1990, international human rights organizations were actively campaigning against the idea that individual leaders could escape being held accountable for the human rights abuse they had ordered. “Impunity” had become part of the human rights lexicon. The Argentine experience spread and by the early 1990s there was a marked shift in the legitimacy of the norm of individual criminal accountability and a dramatic increase in criminal prosecutions. This process has been termed the “justice cascade” by human rights scholars Ellen Lutz and Kathryn Sikkink. The central idea is that violations of human rights cannot stand as legitimate acts of state. Therefore, they must be considered as criminal acts, committed by individuals who can and should be prosecuted in criminal proceedings.
In the 1990s when human rights trials were blocked by domestic courts, human rights activists and lawyers initiated prosecutions against their leaders in foreign courts using international law. The most famous attempt at such a foreign prosecution was the indictment of Chile’s General Pinochet for human rights violations by a Spanish Court. Pinochet was arrested in London in 1998 before eventually being allowed to return home to Chile on compassionate grounds (due to his old age and ill health). Though foreign prosecution failed, the indictment and arrest abroad changed the domestic political context within Chile and Pinochet was eventually indicted for human rights violations in the Chilean courts, though he died before the conclusion of the proceedings.
Only a handful of state leaders had ever been indicted for serious human rights violations before 1990 but since then, more than 40 heads of states have been prosecuted domestically or internationally for human rights crimes including among others, Slobodan Milosevic (former Yugoslavia), Charles Taylor (Liberia prosecuted for crimes in Sierra Leone), Jean Kambanda (Rwanda), and Jorge Videla (Argentina). These trials were largely due to the hard work of human rights lawyers, NGOs and victims and families who lobbied extensively for trials and where possible exercised domestic private prosecution provisions. Most recently, in 2013 former Guatemalan dictator Rios Montt (1982-1983) was convicted by a Guatemalan court of genocide and crimes against humanity, though Guatemala’s Constitutional Court revoked the conviction a few weeks later on procedural grounds.
International Standards – Treaties and Other Human Rights Instruments
- UN Treaty Collection. Rome Statute of the International Criminal Court, 1998.
- Office of the UN High Commissioner for Human Rights, Rule of Law Tools for Post-Conflict States: Prosecution Initiatives, 2006.
- Office of the UN High Commission for Human Rights. Rule of Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts, 2008.
Courts and Mechanisms of Implementation
- The International Criminal Court (ICC)
- The International Criminal Tribunal for Yugoslavia (ICTY)
- The International Criminal Tribunal for Rwanda (ICTR)
- The Special Court for Sierra Leone. (Residual court after 2013)
- Extraordinary Chambers in the Court of Cambodia (The Khmer Rouge Tribunal)
- The Special Tribunal for Lebanon
- United Nations Rule of Law Initiative
Reports and Policy Analyses by NGOs, IOs, Policy Centers and Governments
- Human Rights Watch. “Genocide, War Crimes and Crimes Against Humanity: A topical digest of the case law of the International Criminal Tribunal for Yugoslavia,” 2006.
- International Commission of Jurists, Towards Universal Justice: International Penal Court. Geneva: 1993.
- Amnesty International, “Memorandum to the International Law Commission: Establishing a Just, Fair and Effective Permanent International Criminal Tribunal,” 1994.
- Amnesty International, “The International Criminal Court: Making the Right Choices.” Part I (IOR 40/001/1997); Part II (IOR 40/011/1997); Part III (IOR 40/013/1997); Part IV ( IOR 40/004/1998); Part V (IOR 40/010/1998).
On standard-setting work by advocacy groups
- Hall, Christopher Keith. “The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court.” American Journal of International Law 91 (1997): 177-187. (Note: Christopher Hall was Senior Legal Advisor on International Justice for Amnesty International during the years of ICC negotiations.]
- Schiff, Benjamin. Building the International Criminal Court. Cambridge: Cambridge University Press, 2008. (Note: Chapter 5 addresses the advocacy role of NGOs.)
- Struett, Michael. The Politics of Constructing the International Criminal Court: NGOs, Discourse, and Agency. Routledge: 2008. (Note: See chapters 4 and 5 for a detailed analysis of the role of human rights advocacy organizations, including a list of NGO and expert papers circulated during the ICC negotiations, on page 87.)
On the Nuremberg precedent
- Bass, Gary. Stay the Hand of Vengeance. Princeton: Princeton University Press, 2001.
On justice and criminal accountability
- Goldstone, Richard. “Advancing the Cause of Human Rights: the Need for Justice and Accountability.” In Realizing Human Rights: Moving from Inspiration to Impact, edited by Samantha Power and Graham Allison. London: Palgrave MacMillan, 2006: 195-221
- Lutz, Ellen and Caitlin Reiger, editors. Prosecuting Heads of State. Cambridge: Cambridge University Press, 2009.
- Méndez, Juan. “Accountability for Past Abuses.” Human Rights Quarterly, 19 (1997), 255-82.
- Roht-Arriaza, Naomi. The Pinochet Effect: Transitional Justice in the Age of Human Rights. Philadelphia: University of Pennsylvania Press, 2006.
- Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions are Changing World Politics. New York City: W.W. Norton, 2011.
Trials as part of transitional justice
- Olsen, Tricia D., Leigh A Payne and Andrew G. Reiter. Transitional Justice in Balance: Comparing Processes, Weighing Efficacy. Washington, DC: United States Institute for Peace, 2010.
- Roht-Arriaza, Naomi and Javier Mariezcurrena. Transitional Justice in the Twenty-First Century. Cambridge: Cambridge University Press, 2007.
- Zalaquett, José. “Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,” Hastings Law Journal 43 (1991-1992) 1425 .
Ad-hoc tribunals and hybrid courts
- Humphrey, Michael. “International Intervention, Justice and National Reconciliation: The Role of the ICTY and ICTR in Bosnia and Rwanda.” Journal of Human Rights 2 (2003): 495-505.
- Tejan-Cole, Abdul. “A Big Man in a Small Cell: Charles Taylor and the Special Court for Sierra Leone.” In Prosecuting Heads of State, edited by Ellen Lutz and Caitlin Reiger. Cambridge: Cambridge University Press, 2009: 205-232.
- Waltz, Susan. “Prosecuting Dictators: International Law and the Pinochet Case.” World Policy Journal 18, No. 1 (2001): 101-112.
On the International Criminal Court
- Brown, Bartram S. “Bringing a Case to the ICC: Pathways and Thresholds.” In The United States and the International Criminal Court: National Security and International Law, edited by Sarah B. Sewell and Carly Kaysen. Rowman and Littlefield, 2000.
- Morris, Virginia and Michael Scharf. An Insider’s Guide to the International Criminal Tribunal for Yugoslavia: A Documentary History and Analysis. Leiden: Hotei Publishing, 1995.
- Schabas, William. An Introduction to the International Criminal Court, 4th edition. Cambridge: Cambridge University Press, 2011.
- Schabas, William and Nadia Bernaz. Routledge Handbook of International Criminal Law. London: Routledge, 2011.
Scholarly Journals on International Criminal Law
- Criminal Law Forum
- International Journal of Transitional Justice
- Journal of International Criminal Justice
- Leiden Journal of International Law
- International Center for Transitional Justice
- Coalition for the International Criminal Court, including history of the Coalition. The Coalition also maintains a helpful publications and resources section including a bibliography of sources.
- Human Rights Watch, International Justice Program
- Amnesty International, Campaign for International Justice
- Human Rights First, International Justice Program (through 2005)
- No Peace Without Justice
- James-Allen, Paul, Sheku B. S. Lehu, and Jamie O’Connell. The Sierra Leone Truth and Reconciliation Commission and Special Court: A Citizen’s Handbook. National Forum for Human Rights and International Center for Transitional Justice, 2003.
- Handbook on the Special Tribunal for Lebanon. International Center for Transitional Justice, 2008.
- Vincent, Robin. An Administrative Practices Manual for Internationally Assisted Criminal Justice Institutions. International Center for Transitional Justice, 2007.
- International Center for Transitional Justice, Events and Training section of the website offers free e-learning courses on a variety of important topics in transitional justice.
Multimedia Sources, including films
- Human Rights Watch. Facing Justice: Victims Bring a Dictator to Trial. Video clip.
- The Judge and the General. Directed by Elizabeth Farnsworth and Patricio Leverton. PBS Point of View film, 2008.
- The Reckoning: Battle for the International Criminal Court
- Sometimes in April
- Judgment at Nuremberg
- Death and the Maiden