International law, Sixth edition
International criminal courts and tribunals
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International Law MALCOLM N. SHAW
International criminal courts and tribunals
After the conclusion of the First World War, a commission set up by the Allied Powers recommended that as the defeated powers had violated the laws of war, high officials, including the Kaiser, be prosecuted for ordering such crimes and on the basis of command responsibility. It was also suggested that an Allied High Tribunal be established to try violations of the laws and customs of war and the laws of humanity. 10 Accordingly, the Treaty of Versailles, 1919 noted that the German government recognised the right of the Allied and Associated Powers to bring individuals accused of crimes against the laws and customs of war before military tribunals (article 228) and established the individual responsibility of the Kaiser (article 227). In the event, the Netherlands refused to hand over the Kaiser and only a few trials were held before German courts in Leipzig with, at best, mixed results. 11 The Charter annexed to the Agreement for the Prosecution and Pun- ishment of the Major War Criminals, 1945 provided specifically for indi- vidual responsibility for crimes against peace, war crimes and crimes against humanity. There was also a conspiracy charge. 12 The Nurem- berg Tribunal, composed of four principal judges (from the US, UK, USSR and France) and four alternates, was the first international criminal 9 See below, p. 673. 10 See the Report of the Commission to the Preliminary Peace Conference, 14 AJIL, 1920, p. 95. See also Cryer et al., Introduction to International Criminal Law, pp. 91–2, and T. Meron, ‘Reflections on the Prosecution of War Crimes by International Tribunals’, 100 AJIL, 2006, p. 551. 11 See C. Mullins, The Leipzig Trials, London, 1921. See also e.g. the International Convention for the Protection of Submarine Telegraph Cables, 1884; the Agreement for the Suppres- sion of the Circulation of Obscene Publications, 1910; the International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications 1924; the Agreement Concerning the Suppression of Opium-Smoking, 1931; the Convention for the Suppres- sion of the Illicit Traffic in Dangerous Drugs, 1936, and the International Convention for the Suppression of Counterfeiting Currency, 1929 with regard to the establishment of individual responsibility in the case of specific issues. 12 See article 6, 39 AJIL, 1945, Supp., p. 259. See also H. Lauterpacht, International Law and Human Rights, London, 1950, p. 6, and Cryer et al., Introduction to International Criminal Law, pp. 92 ff. 400 i n t e r nat i o na l l aw tribunal and marks the true starting-point for international criminal law. It affirmed in ringing and lasting terms that ‘international law imposes duties and liabilities upon individuals as well as upon states’ as ‘crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the pro- visions of international law be enforced’. Included in the relevant category for which individual responsibility was posited were crimes against peace, war crimes and crimes against humanity. 13 In addition, a number of war crimes trials were instituted within Allied-occupied Germany under the authority of Control Council Law No. 10. 14 The International Military Tribunal for the Far East was established in January 1946 to deal with Japanese war crimes. 15 This Tribunal was composed of judges from eleven states 16 and it essentially reaffirmed the Nuremberg Tribunal’s legal find- ings as to, for example, the criminality of aggressive war and the rejection of the absolute defence of superior orders. 17 The Charter of the Tribunal also provided for individual responsibility with regard to certain crimes. 18 The provisions of the Nuremberg Charter can now be regarded as part of international law, particularly since the General Assembly in 1946 af- firmed the principles of this Charter and the decision of the Tribunal. 19 The Assembly also stated that genocide was a crime under international 13 See 41 AJIL, 1947, p. 220. See also I. Brownlie, International Law and the Use of Force by Download 7.77 Mb. Do'stlaringiz bilan baham: |
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