An International Criminal Tribunal: The Difficult Union of Principle and Politics
Criminal Law Forum, Vol. 5, pp. 341-380, 1994
40 Pages Posted: 28 May 2011 Last revised: 20 Sep 2013
Date Written: 1994
When the war criminal Adolf Eichmann was kidnapped from Argentina by agents of the state of Israel and forced to stand trial before an Israeli tribunal, world opinion was mixed. Almost everyone rejoiced that one of the most callous mass murderers of the twentieth century was finally being forced to take public responsibility for his crimes. However, it was also recognized that the Israeli government's action compromised another state's sovereignty and was itself probably unlawful.
The Eichmann case illustrated a political and legal dilemma that has frustrated the development of international criminal law as a discrete discipline. Over the centuries, by custom and by treaty, rules governing the behavior of states and individuals in times of armed conflict have emerged as part of public international law. But one element was lacking: a means of enforcement. Heads of state and government policymakers, whether ruling as princes or as democratically elected representatives, have with few exceptions avoided responsibility for their conduct by claiming state sovereignty, knowing no international mechanism existed to call them to account. Until the twentieth century, the international community paid scant attention to the lack of an international forum to prosecute perpetrators of crimes against the international.
After the second world war, the victorious Allies decisively brought key war criminals to trial in Nuremberg and Tokyo. These tribunals' jurisdiction extended to senior officials in the German and Japanese governments and went beyond traditional war crimes to include crimes against the peace and crimes against humanity. Although the Nuremberg and Tokyo trials generally accorded with accepted standards of procedural justice, they were tainted by the fact they were created by the victors and were widely perceived, by the vanquished at least, as the imposition of victors' law.
The need to establish an independent international criminal tribunal with relatively broad jurisdiction was recognized by the United Nations early on. The goal of setting up such a court, which would have jurisdiction over individuals alleged to have committed a number of international crimes, has been championed by various intergovernmental and nongovernmental organizations, diplomats, and international law experts. Unfortunately, efforts have repeatedly foundered, with the issue resurfacing in an immediate way only in response to the ghastly events played out in the former Yugoslavia. Although there seems to be growing support for a permanent international criminal tribunal, the community of nations has no consensus on the range of offenses that would fall within its jurisdiction. Perhaps a permanent court will emerge in the near future, prompted finally by the tragedy of Yugoslavia and Rwanda.
Keywords: International Criminal Law, International Courts and Tribunals, Human rights, Bosnia, Herzegovina
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