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Amicable (Peaceful) and coercive modes of settlement of International disputes

1. Introduction:

The main Purpose of United Nations shall be to maintain peace and Security and to take effect and
collective measure for the suppression of breaches of the peace. In order to achieve this purpose, the United
Nations Organization shall prevent or remove the threat to the peace, breach of the peace or acts of aggression
by taking effective collective measures. Article 2 para 3 of the United Nations Charter provides that all members
shall settle their international disputes by peaceful means in such a manner that international peace, security,
and Justice are not endangered.

2. Definition of International Dispute :

There is no universally acceptable' precise and perfect definition of International Dispute. In a wide sense,
International dispute means a "disagreement on a point of law or fact a conflict of legal views or of interest
between the States." This disagreement between the parties may arise either on legal(justifiable) or political
grounds (non-justifiable).

Legal Differences: According to Prof. Oppenheim, legal differences are those in which the parties to the dispute
base their respective claims and contentions on grounds recognized by International Law

Political Differences: All other differences are usually referred to as political disputes or as conflicts of Interests.
Political or legal differences depends more or less upon the attitude of the States.it is, therefore,
difficult to distinguish the dispute from legal to political.

3. Settlement of International Dispute

As above mentioned the Dispute may be political (non-justifiable) or legal (justifiable). There are various
modes of settlement of the political and legal differences between the nations. Such differences may be
resolved either by amicable means or by Compulsive means short of war.

A) Amicable or Peaceful Means:

The various amicable means of settling disputes may be enumerated as follows :

(1) Negotiation (2)Good Offices (3) Mediation (4) International Commission of Inquiry (5) Conciliation (6)
Arbitration (7) Machinery of the United Nations Organization - i) General Assembly ii) Security Council. (8)
Judicial Settlement through International Court of Justice (ICJ)

(1) Negotiation :
When disputant States settle their disputes themselves by discussion or by adjusting their differences,
the procedure is called Negotiation. Negotiation may be carried on by their Heads of the States or by their
accredited representatives or by diplomatic agents. It is the simplest form of settlement of disputes. It helps the
disputant State Parties to bring about necessary change by mutual consent. The success of negotiation depends
largely upon the degree of acceptability of claims of one party by other and the spirit of accommodation which
the negotiations are conducted. Negotiations has certain weakness also, On many occasions it becomes difficult
for the disputant State to ascertain the precise facts of the dispute.Moreover, when the parties are unequal it is
likely that the small power may be subjected to the will of big power.

Examples :

Here are some examples of Negotiation

a) India and Pakistan Settled their outstanding differences in the Shimla Conference (1976).
b) India and Bangladesh Settled Farraka Barrage (gunfire) Issue through Negotiation. (1977)
c) Inda and Sri-Lanka Settled their Boundry dispute through Negotiation. (1974)
d) Australia and Newsland Settled their disputes by Neotiation (1965)

(2) Good Offices :

When the Parties refuse to negotiate, or when they fail to Negotiation, they may take the assistance of a
third party. The third party may be appointed by the parties themselves or by the security council. The third
party may be a State or an Individual. To settle the Kashmir dispute between India and Pakistan the Security
Council had appointed McNaughton in 1949, Mr. Dixon in the year 1950, Graham in the year 1951 and Jarring in
the year 1957 as representative of United Nations.
The term "Good Offices" connotes the bringing about the conflicting parties together and the
counseling of advice or the suggesting of a settlement without participating in the negotiation. Such suggestions
or advices may be disregarded by a party to a dispute without any compunction or breach of the law.

Example :

The Prime Minister of United Kingdom, Mr. Wilson provided his good offices to India and Pakistan which
resulted in the parties to reach an agreement to refer Kutch issue to an Arbitral Tribunal.
In the year 1949, the Security Council rendered good offices in the dispute between the Netherland
Government and Republic Indonesia.

(3) Mediation :

Mediation is the conducting of negotiation between the disputing States through the agency of the third
party. In simple words, when the third party participates in the discussion along with the disputant States and
also gives its own proposals or suggestions in resolving the dispute, it is called as Mediation. The Mediation
presupposes the active participation of the third State in Negotiations, but the mediator's suggestions have no
binding force and the parties are free to accept or reject or modify them.

Article 34 and 35 of the Charter also provide for collective mediation on the part of United Nations whenever
there is a situation which might lead to international friction.

Examples:
Soviet Union President Kosygin mediated in the Dispute between India and Pakistan which resulted in the
conclusion of Tashkant agreement in 1966.

(4) International Commission of Inquiry:

An inquiry is also a method which is often resorted to for the settlement of disputes. It may be noted
that it is not an independent method and is often applied along-with other methods. The main objective of the
inquiry is to make an investigation of the relevant matters so as to establish facts which may hold the ultimate
solution of the problem. For example, often inquiry Commissions are appointed in relation to the settlement of
border disputes. The commission clarifies the facts after making inquiry into the relevant facts.
The first convention of the Hague Conference of 1899 suggested the establishment of the international
commission of inquiry for the international disputes involving neither honor nor vital interests and relating to
points of fact with a view to elucidating the facts and dispelling ignorance that ultimately leads to hostilities. The
conference provided that such Commission might be constituted by special agreement between the parties, the
members of such Commissions being appointed in accordance with the scheme laid down in Article 32 of the
Convention for the appointment of the members of Arbitral Tribunals.
Examples :

The North Sea Incident Inquiry, the Tavignano, Camouna Gaulois Inquiry and the Tubantia are instances of
such Commissions of Enquiry

(5) Conciliation:
When a dispute is referred to a Commission of persons to investigate the basis of dispute and to make a
report containing proposals for settlement after finding out the facts, this process is known as conciliation. Such
proposals have no binding force on the parties to the dispute.
According to Hudson, "Conciliation is a process of formulating proposals of settlement after an investigation
of the facts and an effort to Reconcile opposing contentions, the parties to the dispute being left free to accept
or reject the proposals formulated."
The term implies various methods adopted by the third party to amicably settle the dispute between two or
more States. It involves the formulation of proposals for settlement after an investigation of the facts. The
dispute may be referred to a Commission for the favor of proposals to the parties for the settlement.

(6) Arbitration :

Arbitration is the most important method of settling International difference (disputes) by amicable
means. According to Lawrence, " Its value resides in its judicial or quasi-judicial character. It signifies the
reference of the dispute to an individual, or small groups of individuals, to whom the parties state their
respective cases, and whose decision they are in honour bound to obey, and in fact have always obeyed, the
only instance to the contrary being due to the fact that the arbitrator had exceeded his powers... When a
dispute is submitted to arbitration, the matter takes on the semblance of a trial before a Court ". States are
however under no obligation to submit their dispute to arbitration unless they have bound themselves
beforehand by a Treaty. But once they have referred the matter to arbitration, they disregard to the award
means a breach of promise and the award is final, unless it is vitiated by fraud, collusion and the like, or the
arbitrator, as pointed out above, has exceeded his powers.

Examples:
The settlement of the dispute by arbitration in Alabama of Claims between the United States and Great
Britain went a long way in emphasizing the importance of arbitration as a means of settlement of the dispute.
(7) Machinery of the United Nations Organization -
According to Article 2 para, 3 of the United Nations General Assembly and the Security Council have been
empowered to discharge certain functions in this regard.

i) General Assembly: General assembly may make a recommendation after the discussion to the disputant
parties under Article 14 of The United Nations Charter. Thus the assembly has a general power for the peaceful
settlement of the dispute. The general assembly has been insisting from time to time, to the disputant parties to
settle their disputes peacefully.

ii) Security Council: Under Article 24 para 1 of the United Nations Charter, maintenance of International Peace
and Security is the responsibility of Security Council. Charter provides various modes by which the council settles
the dispute which is likely to endanger international peace and security. Security Council can take the following
Action to settle disputes.

(a) Investigation of the Disputes

(b) recommendation for appropriate procedure or methods of adjustment

(c) recommendation for the terms of the settlement

B) Compulsive / Coercive means of settlement of International disputes

The Compulsive or Coercive means for the settlement of the dispute are non-peaceful methods. Such
methods involve a pressure or a force on a State to Settle dispute. However, the use of compulsive/ coercive
measures does not mean the use of armed forces in all the cases. Following are some of those measures.

(1) Complaints :

Before proceeding to discuss compulsive means, it will be desirable to advert to another amicable
means of settling disputes employed in course of hostilities by commanders of Forces, who often lodge
complaints with each other in respect of acts of illegitimate warfare committed by members of their forces.
Such acts may either be abuses of the flag or truce, violations of the Geneva Convention or the Like. Such
complaints are sent to the enemy under the protection of the flag of truce, and it becomes the duty of the
enemy to investigate such complaints and punish the offenders if the complaints be justified.

(2) Retorsion

The word retorsion means retaliation. It is base, to the certain extent, on the principle of tit for tat. But the
affected State can take only those means or measures as retorsion which are otherwise permitted under
International Law. For example, in retorsion diplomatic relations may be ended. privileges of diplomatic agents
may be withdrawn and economic facilities may be stopped.

The purpose of Retorsion is to take retaliation but those actions cannot legitimately be taken which are
likely to endanger international peace and security. Such actions if taken shall be illegal
(3) Reprisals:

The term reprisal is a wide one and covers all coercive measures adopted by a State for the purpose of
obtaining redress. It is different from retorsion in this respect that it may consist acts which are otherwise illegal
but are validated under particular circumstances (i.e in view of a prior illegal act by the other State); whereas in
the case of restoration there can be no legal objection to the retaliatory measures as they are only unfriendly
acts within the competence of the aggrieved State.
Lawrence defines reprisals as the mode of putting stress upon an offering state which are of a violent
nature, though they fall short of actual war. He divides reprisals into positive, negative, special and general.
It is generally believed that the right of reprisal can be validly used only when the other State has
committed an International crime or violation any rule of International Law. Moreover, the Reprisal will be
justified only when its object is to settle the International disputes. otherwise, it (Reprisal) will be treated illegal.
so it can say that -
a) Reprisals are illegal unless they are based on a previous act contrary to International Law.
b) There must be certain proportion between the offense and reprisal,
c) Reprisal can be justified only when the force is used for necessary.

(4) Other sub divisions of reprisals


Two important subdivision of Reprisals are Hostile Embargo and Pacific Blockade.
(a) Hostile Embargo :
Hostile embargo means the provisional seizure or detention of the merchant's ships or property of the
offending State in the ports of the State that seeks redress.
(b) Pacific Blockade :
Specific blockade consists of the temporary suspension of the commerce of an offending or recalcitrant
State by the closing of access to its coats, or some particular part of its coats, but without recourse to other
hostile measures, save in so far as may be necessary to enforce the restriction.

(7) Intervention :

It is another compulsive means of settling disputes between States short of war. According to Professor
Oppenheim, it is the dictatorial interference by a State in the affairs of another State for the purpose of
maintaining or altering the actual condition of things.

Profesor Winfield has Classified intervention in three categories :

1. Internal Intervention
2. External Intervention
3. Punitive Intervention

(8) War
When a dispute between a State is not settled even by coercive/ compulsive mean, they may resort to war.
War is an ultimate means of Settling International Disputes. By resorting a war a State seek to impose their will
on each other.

Conclusion: –
Briefly speaking, International Law intends to overcome the chances of war and violence, and believe to solve
the disputes on the merits of political, diplomatic and judicial bases. To avoid the chances of breaking out of
wars it provides certain measures and means. Among which above are the amicable means to settle the
disputes. But international law also recognizes certain coercive or compulsive means to settle the disputes in
extra-ordinary cases where the International peace and security has been endangered.

A Comparative Study between Arbitration and Judicial Settlement as Means of Maritime Boundary Dispute
Settlement
ABSTRACT
This paper makes an effort to draw a comparative study between judicial process and arbitration as the method
of maritime boundary dispute settlement. Currently, maritime boundary dispute between states is a much
talked issue all over the World. The United Nations Convention on the Law of the Sea refers four means of
maritime dispute settlement. Arbitration and Judicial processes are mainly two of them. According to the
Convention every state has the right to choose one of the four means to settle their dispute. Practices show that
Arbitration and Judicial settlement are more popular than any other methods of maritime boundary dispute
settlement. Most of the previous maritime boundary disputes have been settled either by judicial process or by
Arbitration. The present paper attempts to compare between arbitration and Judicial process as the means of
maritime boundary dispute. In addition, many of the concepts mentioned in this paper may use to understand
about the peaceful settlement of maritime boundary dispute.
1. Introduction
Arbitration and Judicial process are two of the different methods of maritime boundary dispute according
to United Nations Convention on the Law of the Sea 3. Maritime boundary dispute settlement is an important
issue of International Law because maritime boundary dispute is a common scenario all over the world.
Although the UN Convention on the Law of Sea regulates all the segments of the sea-based issue the provisions
regarding maritime boundary delimitation are not well defined and clear. The convention provides for the
process of delimitation of different maritime zones between states shall be affected by agreement on the basis
of international law in order to achieve an equitable solution. This provision directs the parties to the dispute to
take initiative between them and make an agreement equitably first. It does not provide any definite
delimitation procedure to be followed. If the party to the dispute fails to reach an agreement they can move
towards the dispute settlement procedure under the law of the Sea convention stated in part XV of the
convention.
There are two types of dispute settlement procedures in LOS convention. Section 1 of Part XV states the non-
compulsory procedures which are the negotiation, the mediation and the conciliation and Section 2 of Part XV
deals with the compulsory settlement procedure which includes ITLOS under Annex VI, the ICJ and Arbitral
Tribunal created under Annex VII and the creation of a special Arbitral Tribunal formed as a panel of experts. The
purpose of the present paper is to seek attention to the comparative discussion in brief between arbitration and
judicial settlement of maritime boundary dispute.
2. Maritime Boundary Dispute Settlement Procedure
According to the article 287 of the United Nations Convention on the Law of the Sea , one state has the right to
choose one or more of the following means to settle their disputes concerning the interpretation and
application of this Convention:
1) The International Tribunal for the Law of the Sea (ITLOS),
2) The International Court of Justice (ICJ),
3) An Arbitral Tribunal constituted in accordance with Annex VII,
4) A Special Arbitral Tribunal constituted in accordance with Annex VIII4.
In settlement of maritime boundary disputes, the LOS Convention provides freedom to the States Parties
concerned to settle their dispute through negotiation or other diplomatic measures between them. Parties can
request to the court or Tribunal having jurisdiction over their disputed issues in case where there is no
settlement between them. United Nations Convention on the Law of the Sea 1982 refers two types of maritime
boundary dispute settlement process5. The system of dispute settlement is contained in two parts of United
Nations Convention on the Law of the Sea . Part XI deals with the disputes relating to mining in the International
Seabed Area and Part XV deals with all other disputes relating to the interpretation and application of UNCLOS.
Section 1 of Part XV states the non-compulsory procedures which are the negotiation, the mediation and the
conciliation and Section 2 of Part XV deals with the compulsory settlement procedure which includes ITLOS
under Annex VI, the ICJ and Arbitral Tribunal created under Annex VII and the creation of a special Arbitral
Tribunal formed as a panel of expert that discussed above.
2.1. Arbitration
Literally, arbitration means Settlement of a dispute between parties to a contract by a neutral third party
without resorting to court action. It is usually voluntary but sometimes required by law. If both sides agree to be
bound by the arbitrator’s decision it becomes a binding arbitration.
The Arbitration is one of the four means for the settlement of maritime boundary disputes concerning the
interpretation or application as stated in article 287 of the Convention6. The Arbitration under Annex VII is used
for the settlement of disputes between parties that have not made a declaration of choosing procedure or for
parties that have not accepted the same procedure for settlement of the dispute. So, it is a default procedure to
settle the maritime dispute. Any party to the dispute may bring their case before Arbitration by written
notification addressed to the other party with the statement of the claim and the ground on which it is based7.
The Arbitration is composed of five members preferably chosen from the list of arbitrators which shall be drawn
up and maintained by the Secretary General of the United Nations8. The party who institute the proceeding
before the Arbitral tribunal shall appoints one member to be chosen preferably from the list of arbitrators, who
may be its national. The other party, against which the proceeding is brought, also appoints one member among
its nationals in the list within 30 days of getting of the notification addressed by the party that brings the case9.
The rest of the three members shall be appointed jointly by the parties according to their agreement from the
nationals of the third States unless the parties otherwise agree. One member out of these three will be
appointed as the president of arbitral tribunal. If the party against which the case is made fail to do so within
above-mentioned time or the parties are not able to reach an agreement on the appointment of arbitrator, the
President of the International Tribunal for Law of the Sea (ITLOS), upon request and in consultation with the
parties, shall make the necessary appointment. According to article 5 of Annex VII of the LOS Convention, the
arbitral tribunal decides its own procedure, ensuring full opportunity to be heard and to present the case to
each party10. The decisions of the arbitral tribunal depend on a majority vote of its members. In case of an
equality of vote the President has a casting vote. The award mentions the subject matter of the dispute and
states the reasons on which it is based, and the name of the members who have participated. The award shall
be final without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure and
it will be binding upon the parties. Through arbitration, many of coastal states settled their longstanding
maritime boundary delimitation disputes. In 2014, Bangladesh and India resolved their 40 years longstanding
maritime boundary delimitation dispute which commenced in 197411.
Some examples of the settlement of maritime boundary disputes can be mentioned here which have been
settled through arbitration.
Australia and New Zealand v. Japan (Southern Bluefin Tuna Arbitration, 4 August, 2000); Ireland v. UK (Mox Plant
Arbitration, 6 June, 2008); Malaysia v. Singapore (Land Reclamation Arbitration, 1 September, 2005); Barbados
v. Trinidad and Tobago (Maritime Delimitation Arbitration, 11 April, 2006); Guyana v. Suriname (Maritime
Delimitation Arbitration, 17 September, 2007); Bangladesh v. India (Bay of Bengal Maritime Boundary
Arbitration, 7 July, 2014); Mauritius v. UK (Chagos Archipelago Arbitration, 18 march, 2015); Argentine v. Ghana
(ARA Libertad Arbitration, 11 November, 2013); Philippines v. China (South China/West Philippines Sea
Arbitration, 12 July, 2016); Denmark in respect of the Faroe Islands v. European Union (Atlanto-Scandian Herring
Arbitration, 23 September, 2014) etc.12
2.1.1. Advantages of Arbitration
Arbitration is more flexible than the procedure followed by the ICJ or Judicial process. Statute and Rules of ICJ or
ITLOS are defined in advance and are applied in the same manner to all cases brought before it. In the case of
arbitration, particularly if a case is brought before the arbitral court on the basis of a special agreement, the
parties have more freedom of movement and option.
All the proceedings of arbitration are generally confidential because it remains completely in the hands of the
disputing parties. This confidentiality is useful in the case of maritime boundary disputes where, if the parties to
such a dispute still have outstanding differences with other States over their maritime boundaries, they do not
want that the arguments that they use in the dispute settlement proceedings to be made public because this
may disadvantage their position in negotiating over their other unresolved maritime boundaries13. From
appointment of the arbitrators to the decision about procedures and rules of arbitration are remained under the
control of the disputing parties.
However, in the extreme condition of discord between the disputing parties as to the appointment of three
other members, the President of the ITLOS is authorized to appoint these members14. These three members
constitute the majority, thus the basic logic that the disputing parties have some control in the constitution of
the arbitral tribunal stands little bit compromised. However, it also acts as impetus for the disputing parties to
promptly agree on the remaining three members.
In arbitration there is no third party intervention in any dispute like the proceedings before any standing courts
and tribunals. Without the wishes of disputing parties no third state can intervene in the proceeding to take any
benefit. Thus, it provides flexibility and space to States to settle their dispute peacefully. It also gives chances
that similar kinds of disputes can be settled using different principles with different States. The arbitration
proceedings under Annex VII are time bound and the traditional excuses of delays are not available under this
process.
2.1.2. Disadvantages of Arbitration
Extra expenditure for the appointments of arbitrator according to Annex VII of the convention is one of
disadvantages of arbitration. Each disputing party appoints one member to the tribunal and the rest three are
appointed jointly by the disputing parties15. So, States have to incur extra expenditures for their services.
Arbitration tribunals involve high costs and high fees paid to arbitrators and court registrars, together with
rental expenses of premises in which proceedings are carried on, secretarial and interpreting services, are well
known for the adverse effect they have on public opinion whereas all costs of the ICJ are borne by the UN16.
Another possible disadvantage of arbitration is delay appointment of arbitrators and ill motive to get the
appointment by the president of ITLOS in case the President belongs to the nationality of one of the disputing
parties17. This arbitration procedure, being default in the situation of discord as to the choice of respective
means under Article 287(1), can be invoked by any State party in diversified circumstances. In some
circumstances, this option for the appointment by the President of ITLOS may be exploited with some ulterior
motives. The core advantages and disadvantages of Arbitration are mentioned in Table 1.
2.2. Judicial Settlement
The Judicial process of maritime boundary dispute settlement consists of the following three institutions:
1) International Court of Justice (ICJ).
2) International Tribunal for the Law of the Sea (ITLOS).
3) Commission on the Limits of the Continental Shelf (CLCS).
International Court of Justice (ICJ) is an essential part of the United Nations
Table 1. Advantages and disadvantages of arbitration.
and the largest judicial body of United Nations which is also called the World court. International Tribunal for
the Law of the Sea (ITLOS) is the latest international judicial body which deals with the maritime dispute affairs
under the Law of the Sea Convention. Commission on the Limits of the Continental Shelf is also a body that deals
with the overlapping claim of extended continental shelf among states.
2.2.1. The International Court of Justice
The International Court of Justice is one of the integral parts of the United Nations based in The Hague, The
Netherlands18. It is the major international judicial organ which has fifteen members or judges, elected
separately by the U.N. General Assembly and the Security Council for a term of nine years19. Only states can
bring controversial cases before it, either by special agreement between the parties to a dispute or by a
unilateral application by either party20. Some particular international organizations, including the United Nations
itself, can seek the “Advisory Opinion” from the Court21. The Court has actually settled a number of maritime
boundary dispute, the first being the North Sea Continental Shelf Cases (1969) between former West Germany
on one side and Denmark and the Netherlands on the other22. ICJ is entitled to exercise its jurisdiction over any
dispute concerning the interpretation or application of LOS convention which is submitted to it under Article 287
and 28823. There are some Judgments relating to maritime boundary dispute is mentioned here which have
been declared by ICJ after the enforcement of LOS Convention in 1994.
Fisheries Jurisdiction (Spain v. Canada) 2001; Maritime Delimitation and Territorial Questions (Qatar v. Bahrain),
1998; Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea intervening), 2002; Territorial and
Maritime Dispute in the Caribbean Sea(Nicaragua v. Honduras), 2007; Territorial and Maritime Dispute
(Nicaragua v. Colombia), 2012; Maritime Delimitation in the Black Sea (Romania v. Ukraine), 2009; Maritime
Dispute (Peru v. Chile), 2014; Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), 201424.
Presently, the following maritime boundary delimitation cases are in the pending list before the ICJ.
1) Question of the delimitation of the Continental shelf between Nicaragua and Colombia beyond 200 nautical
miles from the Nicaraguan Coast (Nicaragua v. Colombia) (Case no. 5, Pending case list)25.
2) Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costarica v. Nicaragua) (Case no. 7,
Pending case list)26.
3) Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (Case no. 8, Pending case list)27.
2.2.2. The International Tribunal for the Law of the Sea
Particularly for the settlement of maritime disputes, the International Tribunal for the Law of the Sea is one of
the notable creations established in October 1996 with its seat in Hamburg, Germany28. At the Conference of the
States Parties to the Convention held at the United Nations headquarters in New York in August 199629, the
twenty-one judges of the Tribunal were each elected for a nine-year tenure (staggered to three, six and nine
years for each group of seven in the first election)30. The jurisdiction of this Tribunal is not exclusive to the extent
that the parties to a dispute may choose it as one of the four judicial means open to them. The Tribunal decided
its first case in December 199731 and the second in March 199832, with the third in June 1999. All three cases
involve a St. Vincent and the Grenadines oil tanker, the Saiga, which was seized by Guinea in the offshore waters
of Guinea in October 1997, allegedly for smuggling33.
There are 25 cases registered before the ITLOS till now among them most of are “prompt release” related case.
Only 2 cases were about maritime boundary delimitation; one is “Dispute concerning delimitation of the
maritime boundary between Bangladesh and Myanmar in the Bay of Bengal” (Case no. 16, ITLOS)34 case which
began in December 14, 2009, and ended in March 14, 2012 another one is “Dispute Concerning Delimitation of
the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean” (Case no. 23, ITLOS)35 which
began in December 3, 2014, and ended in September 23, 2017.
Unlike the Court, the Tribunal can give Advisory Opinions only with respect to specific seabed disputes referred
to it by the Jamaican-based International Seabed Authority, which was also established by the Convention36.
2.2.3. Commission on the Limits of the Continental Shelf (CLCS)
Commission on the limits of the continental shelf has been established under Annex 2 of the LOS Convention.
The Commission consists of 21 members, experts in the field of geology and physics37. Generally, every state
claims Continental shelf up to 200 nm but sometimes they claim their continental shelf beyond 200 nm which
creates boundary dispute between coastal states. In this regard, the LOS convention has created the commission
of continental shelf to hear the arguments of the parties to the dispute in favor of their claim. The decision or
recommendation of this commission is binding for all the parties to the Law of the Sea convention.
Seventy-seven States have already filed their submissions to seek recommendations before the Commission and
twenty nine Recommendations have been issued so far38.
2.2.4. Advantages of Judicial Settlement
Throughout special agreement under Article 36(1) of the Statute to submit the dispute to the ICJ has the
advantage of the dispute being concisely defined in the special agreement39. Basically, contesting parties may
agree through the special agreement and in advance on the exact extent and content of their dispute, avoiding
thereby subsequent submission of preliminary exceptions by the defendant, as can happen and has often taken
place in cases of unilateral applications. During bilateral talks for special agreement, both litigants may agree to
refer only part of their dispute to the Court, leaving final settlement to their own discretion. In judicial
settlement there is less opportunity for abusing of the process. In this process the parties to the dispute are
compelled to attend the proceeding. Because of institutionalized process it allows safeguards for the parties.
The decision declared by the court or tribunal is binding for the disputed parties. Through this process legal
precedent may be established for the upcoming or future maritime dispute settlement.
In Judicial settlement, no extra expenditure for the appointments of judges of court or tribunal is necessary like
arbitration. Judicial process does not involve high expenses and high fees paid to the Judges and court registrars,
together with rental expenses of premises in which proceedings are carried on; all costs of the ICJ are borne by
the UN40. In this process there is no scope of making delay regarding appointment of Judges or member of court
or tribunal like arbitration because the court or tribunal is established institution.
2.2.5. Disadvantages of Judicial Settlement
In some extent, the procedure followed by the judicial settlement is more rigid than arbitration. Statute and
Rules of ICJ or ITLOS are defined in advance and are applied in the same manner to all cases brought before it
but in arbitration the parties to the dispute get freedom of choice of procedure based on their agreement.
Judicial settlement consumes more times than arbitration because the rules of judicial process is defined and
strictly followed. Its involvement with other categories of disputes generally may delay the legal process relating
to the law of the sea disputes. It is not always possible to get prompt and effective remedy from the ICJ.
In case of judicial settlement, the parties to the dispute are not in control of the process or decision of court or
tribunal like arbitration so that the outcome is in uncertainty. It is a public process; that is why, everything is
expressly declared. So, it is not confidential like arbitration. The judicial settlement is regulated by the statutes.
So, sometimes it has a limited remedy which depends on evidentiary documents. In Judicial process, the parties
to the dispute are not authorized to keep any role for the appointment of members or judges of the court or
tribunal like arbitration. So, the disputing parties in most cases are unable to compromise their dispute
promptly. Judicial settlement process is an expensive undertaking of maritime dispute settlement than that of
arbitration. As a result, most of the developing countries have not preferred judicial process as the first means of
settlement rather they have treated it as secondary priority. The key advantages and disadvantages of Judicial
Settlement are stated in Table 2.
3. Similarities and Differences between the Two Processes
Arbitration and Judicial process are the most accepted means for maritime boundary disputes settlement till
now. Most of the disputes have been settled through these processes. With some similarities, a number of
differences are
obvious between the two existences regarding their compositions and proceedings. Both of the procedures are
contained in section 2 of part XV of the United Nations Convention on the law of the Seaas compulsory means of
settlement41. The major similarities and differences between these two processes are shown in Table 3.
4. Conclusion
Arbitration and Judicial process are two different means of maritime boundary
Table 2. Advantages and disadvantages of judicial settlement.
Table 3. Similarities and differences between arbitration and judicial settlement.
dispute settlement categorized as compulsory method42. When the parties to the dispute fail to resolve the
dispute through different non-compulsory procedures like negotiation, mediation and conciliation but need to
solve it to explore marine resources they turn to this default method. The International Court of Justice (ICJ),
The International Tribunal for the Law of the Sea (ITLOS) and Commission on the Limits of the Continental Shelf
(CLCS) are the major bodies of judicial settlement regarding maritime boundary dispute. Without any agreement
between disputing parties, no authority is entitled to start any proceeding against any of the disputed party. This
is the major limitation or weakness of international law. Judicial settlement and Arbitration are not exception of
it. With a number of differences, both of the processes have some advantages and disadvantages as well as
some limitations also with regard to dispute settlement. Currently, Arbitration and Judicial Settlement process
are the most trusted methods of maritime boundary dispute. Many of the longstanding maritime disputes
between different coastal states have been settled following these processes. The present paper tried to
address the comparative study in brief between the said processes. So, further research may be necessary to
make details comparison between them. In addition, the best process for peaceful settlement of maritime
boundary dispute may be detected through more and more researches.

BASIS FOR
ARBITRATION LITIGATION
COMPARISON

Meaning Arbitration implies a non-judicial process Litigation refers to a formal judicial


in which a neutral third party is appointed process wherein the parties under
for the resolving disputes between dispute go to the court for its
parties. settlement.

Nature Civil Civil or criminal

Proceeding Private Public

Place Decided by the parties Court

Decided by An arbitrator who is chosen by the parties A judge who is appointed by the court.
mutually.

Cost Low Comparatively high

Appeal Not possible Possible


The Influence of the Nuremberg Trial on International Criminal Law
Executive Summary
The first forty years after Nuremberg was a period of slow progress in developing international criminal law.
There is no doubt that international criminal law has developed in recent years. Indeed if international criminal
law is defined as the prosecution of individuals for ‘international crimes’ such as war crimes or Crimes Against
Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century
attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions
of State sovereignty. As the Nuremberg judges pointed out in 1946, ‘The Hague Convention nowhere designates
such practices [methods of waging war] as criminal, nor is any sentence prescribed, nor any mention made of a
court to try and punish offenders.’(1)
The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that
even a Head of State would be held criminally responsible and punished for aggression and Crimes Against
Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a
sovereign against his own citizens – gradually emerged from the Nuremberg principles affirmed by the United
Nations.
The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles
was slow in coming. The failure of the international community to develop binding norms of international
criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting
both a code of crimes against the peace and security of mankind and the statutes for an international criminal
court.
While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are
many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to
comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war
crimes and Crimes Against Humanity during the past century. The World Wars lead the world community to
pledge that “never again” would anything similar occur. But the shocking acts of the Nazis were not isolated
incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of
people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines,
the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad,
Yugoslavia and Rwanda in the second half of the past century.(2) But what is possibly even sadder is that we,
meaning the world community, have witnessed these massacres passively and stood idle and inactive. The result
is that in almost every case in history, the dictator/president/head of state/military/leader responsible for
carrying out these atrocities – despite in Nuremberg – has escaped punishment, justice and even censure.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda
could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to
block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new
international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the
impetus of shocked public demand, it became possible for the UN Secretariat to draft the statues for the
International Criminal Tribunal for Yugoslavia in about 8 weeks – the same time it had taken to agree upon the
Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the
speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.
Up until the present the international community has been very reluctant to enforce international criminal law.
It has only been done a couple of times in history, without doubt due to the specific circumstances and the
political climate at the time. The idea of establishing a permanent international criminal court is not new
though. Attempts in that direction were taken as nearly as the end of World War I, but the international
community never reached agreement on the matter.
The ICC’s predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies
after World War II. These tribunals have been accused of being unfair and merely institutions for “victor’s
justice,” but nevertheless they did lay the groundwork for modern international criminal law. They were the first
tribunals where violators of international law were held responsible for their crimes. They also recognized
individual accountability and rejected historically used defenses based on state sovereignty. These principles of
international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the
UN General Assembly.
The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the
General Assembly, completed its draft statue for a permanent international criminal court in 1994. In 1996, the
ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum
reflected widespread agreement that an international criminal court, with fair trial for the accused, should be
created as an essential component of a just world order under law.
After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide,
war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in
Rome and it has entered into force the first of July of 2002, when the required number of country ratifications
was attained. The Court holds a promise of putting an end to the impunity that reigns today for human rights
violators and bringing us a more just and more humane world.
Since the capture of Saddam Hussein in December 2003, there has been intense speculation as to the type of
court that will be used to try the former Iraqi president. It now appears that Hussein will be tried by the Iraqi
Special Tribunal that was established late in 2003. This Tribunal, which is yet to commence operation, has
jurisdiction over the crimes of genocide, war crimes and Crimes Against Humanity committed since 1968.
Although it would seem desirable that the former Iraqi dictator be tried by an Iraqi court, it is not yet clear
whether the Iraqi Special Tribunal and the Iraqi legal profession have sufficient resources and expertise to
conduct a trial of this complexity. Questions also remain as to whether the trial and sentencing of Hussein will
conform with international human rights standards and whether it will serve the ends of justice and
reconciliation in Iraq.
TABLE OF CONTENTS
International Criminal Law in the Past
Tribunal Milestones
The Agreement of London
The Nuremberg Tribunals
The Influence of Nuremberg
The Case of Saddam Hussein
Conclusion
1. INTERNATIONAL CRIMINAL LAW IN THE PAST
International Criminal Law as a concept has exited between nations – states for centuries. Its function is to
regulate and prevent criminal international violations, thereby securing and maintaining international legal
order and peace. Historically, for activities to be considered international crimes they had to violate domestic
regulations. Malekian writes: ”[i}t may be possible to conclude that the basis of international criminal law is the
evolution and enforcement of the concept of domestic criminal law. Criminals were extradited to a large extent
in order that domestic criminal law be effectively implemented.” This cooperation resulted in, e.g., the
conclusion of numerous bilateral and multilateral treaties for the extradition of criminals. (3)
International humanitarian law took its modern form after World War II in order to create a deterrent to the
repeat of the horrors that took place in the trenches and concentration camps. Important conventions were
agreed on including the European convention on Human Rights (4), the Genocide Convention (5), the Universal
Declaration of Human Rights (6)and the four Geneva Conventions and Additional Protocols (7) (that protect the
civilians and victims of war). By including criminal provisions and obligations for nations these also gave strong
notions of a development in international criminal law.
War and law have had a constant relationship between each other ever since the existence of conflict as a
collective phenomenon. The regulation of the state of war, whether stemming from tradition, custom, certain
codes of conduct and, ultimately, law, has evolved throughout the centuries together with the notion of war.
The idea of a “Crime of War,” or war crime, is not new to the modern legal vocabulary. Unorthodox practices
during a war have been branded as war crimes in many scenarios of conflict. However, these war crimes were
not in themselves punishable in any international court (mainly due to the practical non-existence of such legal
apparatus before the United Nations) and were very much a notion without a consequence, a general concept
floating above the aftermath of wars, and not affecting individuals as such but rather relying on the concept of
state responsibility. It is only since the development of a doctrine of human rights, of fundamental, documented
universal principles, that such crimes have materialized into a legal cast due to the development of the notion of
“Crimes Against Humanity” and its derived breaches. The concept of “Crimes Against Humanity” has been a
product of very recent historical, political and social developments which has brought war crimes under a
different light in international law, and very much under the scope of Human Rights, which have impregnated
the law of war as an international, codified phenomenon in many ways. As a provision, it was the initial step that
began a whole new approach from part of the international community towards certain abuses against civilians
during periods of war and also during peacetime. Certain practices became theoretically “illegal” in a very broad
sense within the international community, criminalizing governments, collectives and individuals, whether
military or civilian, and covering the commission of crimes both in an individual basis as well as in a collective
sense. Conventions have arisen after the appearance of this idea, as well as resolutions and other relevant
legislation emanating from international bodies and organisms (mainly the UN). The ultimate reason for these
provisions to arise, in theoretical terms and laying aside political considerations, has been the protection of the
human being as an individual, regardless of geographical, political or social factors and circumstances, and hence
has become a “Human Right,” so to say, in its own right.
Crimes Against Humanity as a new principle saw its birth after the Second World War, as a result of the
atrocities committee by the Nazi forces before and during the armed conflict. The establishment of the United
Nations in 1945 was in a way the embodiment of the generalized fear for those atrocities ever being committed
again, and this institution had a major role in the development of legal doctrines involving concepts such as
Crimes Against Humanity, appearing for the first time in a legal and a conceptual form before the Nuremberg
Trial in 1945, during the London Agreement of 1945 and its annexed charter setting the grounds for the
establishment of a military tribunal.
2. TRIBUNAL MILESTONES
1907
Fourth Hague Convention is held in The Hague, the Netherlands. The convention is the first international
agreement outlining the basic rules for land warfare. Among the provisions are prohibitions on mistreating
prisoners and protecting the lives and property of civilians.
1945
At the end of World War II, the victorious Allies form the International Military Tribunal to try Nazi German
leaders on war crimes charges. Of the 22 men tried by the tribunal, based in Nuremberg, Germany, 19 are
convicted.
1946
Allies set up a tribunal in Tokyo to conduct war crimes trials involving 28 Japanese defendants. The defendants
face the same charges as those in Nuremberg – Crimes Against Humanity and waging aggressive war.
1948
United Nations General Assembly approves the Convention on the Prevention and Punishment of the Crime of
Genocide, one of the so-called Geneva Conventions. The agreement specifies that religious or racial genocide is
an international crime, and that those who incite genocide or participate in it are to be punished. The following
year, diplomats from around the world adopt four new conventions that strengthen the rights during wartime of
civilians and prisoners of war. War crimes are defined as offenses that represent “grave breaches” of the
convention.
1950
U.N. International Law Commission unveils the seven Nuremberg Principles. The basic premise of the principles
is that no accused war criminal in any place or time is above the law.
1992
Bosnia-Herzegovina, one of the remaining Yugoslav republics, declares independence. A three-sided civil war
breaks out among Bosnia’s Moslems, Croats and Serbs. Serbs initiate a policy of “ethnic cleansing,” or forcibly
removing people from their homes in an effort to create ethnically pure regions, and detain many non-Serbs in
concentration camps.
1993
The U.N. Security Council agrees to establish the International Criminal Tribunal for the former Yugoslavia (ICTY),
to be based in The Hague, to try war crimes cases.
1994
Inter-ethnic strife explodes in Rwanda. More than 500,000 people, most of them members of the Tutsi minority,
are massacred by the Hutu majority over a four-month period. In November, the Security Council agrees to
establish the International Criminal Tribunal in Rwanda (ICTR) in Arusha, Tanzania.
1995
A cease-fire is negotiated in Bosnia in October, and combatants sign a peace treaty, in Dayton, Ohio. Troops
from the North Atlantic Treaty Organization (NATO) begin patrolling in Bosnia in December.
1996
The ICTY imposes its first sentence on Drazen Edemovic, a Bosnian Croat who served in the Bosnia Serb army.
Edemovic pleads guilty, so he is sentenced without a trial to ten years in prison.
1997
In May, the first full-length ICTY trial concludes with the conviction of Bosnian Serb Dusan Tadic on eleven
charges of war crimes.
1998
After fifty years of discussion and documentation on the need for an international criminal court, the Rome
Statute of the International Criminal Court was adopted on July 17, 1998.
1998
Augusto Pinochet, the former Chilean dictator, was arrested by British authorities. He was extradited on charges
of genocide, torture, and other crimes during his rule in the 1970s – 80s.
1999
Slobodan Milosevic, Milan Milutinovic, Vlajikovic, and Nikola Sainovic were indicted by The Hague.
2002
The ICC entered into force on July 1, 2002, establishing “an independent permanent International Criminal Court
in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the
international community as a whole.”
2003
U.S.-led military coalition ousts Saddam Hussein from power. He is captured on December 13, 2003.
3. THE AGREEMENT OF LONDON
Robert H. Jackson made a preliminary visit to London in late May 1945 where he conferred with Foreign
Minister, Anthony Eden, and British Attorney General, David Maxwell Fyfe. These meetings ultimately helped to
show that there was no significant difference between the American and British goals for the trials. However,
before meeting with the British the American delegation felt that they would have a difficult time in convincing
opponents that the American plan for holding a trial, rather than executing the war criminals, would be the best
option. They expected to have the greatest difficulty with the British because they would naturally want to
assume the leadership role in the trial.
On Monday, June 18, 1945, Jackson and seventeen members of his staff, including Major General William J.
Donovan, the director of the O.S.S., and Ensign William E. Jackson, Justice Jackson’s son, departed to begin
negotiations for a charter with the British, French, and Russians in London. On June 21 representatives from the
United States and Britain met on an informal basis to exchange information. The representative from the British
Foreign Office, Sir Basil Newton, informed the American delegation that the government had accepted the
invitation to the conference and would arrive on June 25. The British and Americans agreed that the trial should
be held on the Continent, probably in Munich but Justice Jackson pointed out that the location would depend on
availability of the facilities. At a second meeting on June 24 Sir Basil Newton informed both delegations that the
Russians had accepted the invitation but had asked for the first official meeting to be delayed until June 26.
Throughout the negotiations the Americans and the Russians would almost continually be at odds with each
other.
The British delegation consisted of Sir David Maxwell Fyfe, Sir Thomas Barnes, the Treasurer-Solicitor and Patrick
Dean, of the British Foreign Office. The French delegation consisted of Judge Robert Falco and Professor André
Gros. General I.T. Nikitchenko and Professor Trainin made up the Russian delegation.
The Anglo-American system of law differed considerably from the continental system that the French and the
Russians used. The first point of contention was over the function of the indictment. In Anglo-American law this
is the statement of charges against a criminal to inform him of the crime he is being charged with. In the Soviet
system the indictment includes all of the evidence that will be utilized during the trial. In this case, the
Americans won. A second point of disagreement between the Americans and the Russians was whether
organizations, such as the SS and the Gestapo, could be tried as criminal entities. The Russians said no and the
Americans said yes. Giving the Americans the responsibility for proving this portion of the case solved this
problem. Conflicts also arose in regard to the definition of international law and what constituted both
international law and the laws of a sovereign nation. The negotiating countries faced many disagreements of
this nature. Adjourning the conference, preparing new amendments and then debating these amendments at
the next session helped to solve each problem but on many major points of contention the American delegation
overrode opposition from the other nations.
Throughout the negotiations Justice Jackson attempted to keep an open mind, which probably eased tensions,
but the Agreement of London basically created a system that the Americans approved of and the other nations
went along with. The negotiators ran into many points of disagreement but in the end, Justice Jackson and his
British, French and Russian counterparts were able to overcome differences in judicial practice to form the
tribunal.
On August 8, 1945, the participating nations gathered to sign the Agreement and Charter for the Prosecution
and Punishment of Major War Criminals of the European Axis, or the Agreement of London. The process of
creating this charter had taken two months of negotiation but succeeded in establishing a system that all four
nations would accept as the dispensing justice.
The final London Agreement created the system on which the surviving Nazi leaders and Nazi criminal
organizations would be tried. The statute drew up four counts of crimes for which the German leadership would
be tried. The first count involved conspiracy – conspiring to engage in the other three counts. Count two was
“crimes against peace” – the actual planning, preparing, and waging of aggressive war. That count was generally
interpreted as criminalizing the waging of war to alter the status quo. Thus, the Germans could not use the
unfairness of the Versailles Treaty to justify making war to bring about is revision.
The third count was “war crimes” – a category that included killing and mistreating soldiers and civilians in ways
not justified by military necessity. Count four consisted of “Crimes Against Humanity,” which was a new idea,
dealing with inhuman actions committed against civilians. Included in count four was the mass murder of Jews.
The London Statute called for the indictment of the major war criminals, and after much debate, the IMT came
up with a list of 24 names, 22 of whom would, in the event, be tried. Among those listed were Herman Goering,
Joachim von Ribbenstrop, Admiral Karl Donitz, General Alfred Jodl, Alfred Rosenberg, Albert Speer, Ernst
Kaltenbrunner, Hans Frank, and Julius Streicher. Martin Bormann, who is now believed to have died prior to the
indictment, would be tried in absentia. Also indicted were the leading organizations of the third Reich – the
Reich Cabinet, the Nazi Party leadership, the SS, the Gestapo, the General Staff, and the SA.
Upon signing the London Agreement creating the basis for and existence of the International Military Tribunal,
Jackson stated: “For the first time, four of the most powerful nations [U.S., France, Great Britain, Soviet Union]
have agreed not only upon the principle of liability for war crimes of persecution, but also upon the principle of
individual responsibility for the crime of attacking international peace.” (8)
3.1 Copy of the Agreement
London Agreement of August 8, 1945
Agreement of the government of the United States of America, the Provisional Government of the French
Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of
the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the
European Axis
WHEREAS the United Nations have from time to time made declarations of their intention that War Criminals
shall be brought to justice;
AND WHEREAS the Moscow Declaration of the 30th October 1943 on German atrocities in Occupied Europe
stated that those German officers and men and members of the Nazi Party who have been responsible for or
have taken a consenting part in atrocities and crimes will be sent back to the countries in which their
abominable deeds were done in order that they may be judged and punished according to the laws of these
liberated countries and of the free governments that will be created therein;
AND WHEREAS this Declaration was stated to be without prejudice to the case of major criminals whose
offenses have no particular geographical location and who will be punished by the joint decision of the
Governments of the Allies;
NOW THEREFORE the Government of the United States of America, the Provisional Government of the French
Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of
the Union of Soviet Socialist Republics (hereinafter called “the Signatories”) acting in the interests of all the
United Nations and by their representatives duly authorized thereto have included this Agreement.
Article 1.
There shall be established after consultation with the Control Council for Germany an International Military
Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be
accused individually or in their capacity as members of the organizations or groups or in both capacities.
Article 2.
The constitution, jurisdiction and functions of the International Military Tribunal shall be those set in the Charter
annexed to this Agreement, which Charter shall form an integral part of this Agreement.
Article 3.
Each of the signatories shall take the necessary steps to make available for the investigation of the charges and
trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The
signatories shall also use their best endeavors to make available for investigation of the charges against and the
trial before the International Military Tribunal such of the major war criminals as are not in the territories of any
of the signatories.
Article 4.
Nothing in this Agreement shall prejudice the provisions established by the Moscow Declaration concerning the
return of war criminals to the countries where they committed their crimes.
Article 5.
Any government of the United Nations may adhere to this agreement by notice given through the diplomatic
channel to the Government of the United Kingdom, who shall inform the other signatory and adhering
governments of each such adherence.
Article 6.
Nothing in this Agreement shall prejudice the jurisdiction or the powers of any national or occupation court
established or to be established in any allied territory or in Germany for the trial of war criminals.
Article 7.
This Agreement shall come into force on the day of signature and shall remain in force for the period of one year
and shall continue thereafter, subject to the right of any signatory to give, through the diplomatic channel, one
month’s notice of intentions to terminate it. Such termination shall not prejudice any proceedings already taken
or any findings already made in pursuance of this Agreement.
IN WITNESS WHEREOF the Undersigned have signed the present Agreement.
DONE in quadruplicate in London this 8th day of August 1945 each in English, French, and Russian, and each text
to have equal authenticity.
For the Government of the United States of America
[signed] ROBERT H. JACKSON
For the Provisional Government of the French Republic
[signed] ROBERT FALCO
For The Government of the United Kingdom of Great Britain and Northern Ireland
{signed] JOWITT C.
For the Government of the Union of Soviet Socialist Republics
[signed] I.T. NIKITCHENKO
[signed] A.N. TRAININ
4. THE NUREMBERG TRIBUNALS
4.1 the International Military Tribunal (IMT)
Three months after the end of World War II the United States, Great Britain, the Soviet Union and France, signed
an agreement creating the International Military Tribunal (IMT), known as the “Nuremberg Tribunal,” for the
Prosecution and Punishment of the Major War Criminals of the European Axis. Only four categories of crimes
were to be punished:
Conspiracy (conspiring to engage in the other three counts),
Crimes Against Peace (planning, preparing and waging aggressive war),
War Crimes (condemned in Hague Conventions of 1899 and 1907) and
Crimes Against Humanity (such as genocide), which by their magnitude, shock the conscience of humankind.
Each provision of the 30-articles was carefully considered in order to reach an accord that seemed fair and
acceptable to the four partners representing the United States, Great Britain, France and the Soviet Union. On
the eight day of August 1945, the Charter was signed and the first International Military Tribunal in the history of
mankind was thereby inaugurated.
A Chief Prosecutor had been appointed for each of the four victorious powers. Designated by President Harry S.
Truman as U.S. representative and chief counsel at the IMT Supreme Court Justice Robert H. Jackson planned
and organized the trial procedure and served as Chief Prosecutor for the USA. He set the tone and goals: “That
four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit
their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid
to Reason…We must never forget that the record on which we judge these defendants today is the record on
which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as
well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself
to posterity as fulfilling humanity’s aspirations to do justice.” (9)
From November 20, 1945, until August 31, 1946, all sessions of the tribunal were held in Nuremberg under the
presidency of Lord Justice Geoffrey Lawrence. In its comprehensive judgment, the Tribunal traced the history of
international criminal law and the growing recognition in treaties, conventions and declarations, that aggressive
war was an illegal act for which even a head of state could be brought to account. There was no longer anything
ex facto about such a charge. Leaders who deliberately attacked neighboring states without cause must have
know that their deeds were prohibited and it would be unjust to allow them to escape merely because no one
had been charged with that offense in the past. “The law is not static” said the Tribunal, “but by continued
adaptation follows the needs of a changing world.” Aggressive war was condemned as “the supreme
international crime.” (10)
The evidence, based in large part on captured German records, was overwhelming that crimes of the greatest
cruelty and horror had been systematically committed pursuant to official policy. The IMT, citing The Hague
Conventions and prevailing customs of civilized nations, rejected Germany’s argument that rules of war had
become obsolete and that “total war” was legally permissible. Regarding Crimes Against Humanity (such as
extermination and enslavement of civilian populations on political, racial or religious grounds), the law took
another step forward on behalf of humankind - a step that was long overdue. The findings and judgment of the
IMT helped to usher in a new era for the legal protection of fundamental human rights.
The lead IMT defendant, Field Marshal Hermann Goering, after he was sentenced to be hanged, was sentenced
to death in absentia. Other defendants were hanged or sentenced to long prison terms. Some were acquitted
and released. The Charter was adhered to by nineteen other nations and both Charter and Judgment of the IMT
were unanimously affirmed by the first General Assembly of the United Nations. They have become expressions
of binding common international law.
4.2 Principles of the Nuremberg Tribunal, 1950 NO. 82
The Definition of what constitutes a war crime is described by the Nuremberg Principles, a document that came
out of this trial.
Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the
Tribunal. Adopted by the International Law Commission of the United Nations, 1950. (11)
Under General assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to
“formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the
judgment of the Tribunal.” Since the Nuremberg Principles had been affirmed by the General Assembly, the task
entrusted to the Commission was not to express any appreciation of these principles as principles of
international law but merely to formulate them. The text below was adopted by the Commission at its second
session. The report of the commission also contains commentaries on the principles. (12)
Principle I
Any person who commits an act which constitutes a crime under international law is responsible therefore and
liable to punishment.
Principle II
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.
Principles III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of
State or responsible Government official does not relieve him from responsibility under international law.
Principle IV
The fact that a person acted pursuant to order of his government or of a superior does not relieve him from
responsibility under international law, provided a moral choice was in fact possible to him.
Principle V
Any person charged with a crime under international law has the right to a fair trial on the facts and law.
Principle VI
The crimes hereinafter set out are punishable as crimes under international law:
1. Crimes Against Peace:
a. Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties,
agreements or assurances;
2. War Crimes:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or
deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
3. Crimes Against Humanity:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population,
or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried
on in execution of or in connection with any crime against peace or any war crime.
Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in
Principles VI is a crime under international law.
4.3 Twelve Subsequent Trials at Nuremberg
Contrary to the original plans, no subsequent international tribunal took place because the four Allies were
unable to agree on joint subsequent trials.
As a compromise, the quadripartite Control Council that governed Germany enacted a law authorizing each of
the four Powers to carry on with such prosecution in its own zone of occupation as it might see fit. From 1947-
1949, twelve U.S. military trials involving politicians, military personnel, businessmen and industrialists, doctors,
lawyers, members of the Foreign Office, etc., were held in Nuremberg. Similar trials were conducted in the
French, British and Soviet zones of occupation.
5. THE INFLUENCE OF NUREMBERG
5.1 Influence on the Development of International Criminal Law
5.1.1 The United Nations
The Nuremberg Principles and the conception of Crimes Against Humanity did not only affect the formation of
International War Crimes Tribunals. Its impact caused several effects beyond creating a mere term to be used in
military tribunals and political purposes. One of these effects was the United Nations Resolution 96 (1), drawn
up on the 11th of December 1946, stating that “…genocide is a crime under international law, contrary to the
spirit and aims of the United Nations and condemned by the civilized world.” Deriving from the Nuremberg
concept of Crimes Against Humanity, and the crimes perpetrated by the Nazis in their total war, this declaration
was finally embodied two years later in the Convention on the Prevention and Punishment of the Crime of
Genocide of 1948. This convention criminalized genocide and related activities in the international sphere, and
the convention itself is heavily influenced by many of the Nuremberg principles. It also extended this crime
against humanity beyond periods of war and the specific scenario of the Second World War. The Genocide
Convention was not, per se, a major advancement in the upholding of international human rights, especially
considering its provision in Articles V and VI, which provide that states should regulate their legal systems
accordingly to criminalize such acts in the domestic sphere, and that those found guilty of the crime of genocide
should be tried in the courts of the country where the acts were committed in absence of a competent
international tribunal with consented jurisdiction over the matter, and many academics have shown to be quite
skeptical about its practical possibilities. However, on the theoretical arena the Convention Against Genocide is
a development from the precepts set in Nuremberg, in such a sudden and ad hoc manner, especially where
codification of Crimes Against Humanity is concerned. The Convention takes the main aspect of these crimes,
extirpates it from a broad definition, and narrows it down into one separate and codified principle. Genocide as
defined in Articles II and III practically cover all those measures taken by the Nazis during their persecution and
brutal extermination of certain social, religious and cultural groups: those same atrocities which the members of
the Court dubbed as Crimes Against Humanity took concrete form in this Convention.
In 1948 the United Nations issued the Universal Declaration of Human Rights, the first legal document to
recognize such rights as binding, and creating the notion of Human Rights as we understand it today. The
influence which Nuremberg and to a certain extent the Tokyo trials had upon the formulation and conception of
such a declaration cannot be understated. Nuremberg had for the first time in international law traced a definite
distinction between jus ad bello a doctrine concerned exclusively on the conduct in warfare, and jus ad bellum,
which concerns itself with the justice or legality of the waging of war. By introducing the new principles of
Crimes Against Peace and Crimes Against Humanity, Nuremberg effectively fathered a globalized concern
towards certain attitudes in war and, by extension, for the rights of all human beings suffering the effects of
certain modes of violence. This supposed impact on the Universal Declaration has been backed up by the fact
that some academics have stated that the UN Charter itself was almost a product of Nuremberg and the issues
raised before, during and after the Trial.
5.1.1.1 Codification of Law via the United Nations
The first General Assembly of the new U.N. unanimously affirmed the legal principles laid down in the Charter
and Judgment of the IMT: aggression, war crimes and Crimes Against Humanity were punishable crimes for
which even a head of state could be held to account. Superior orders would be no excuse but could be
considered in mitigation. Inspired by the horrors revealed at the Nuremberg Trials, the Assembly passed another
resolution calling for a convention to prohibit and punish the crime of genocide – by such a tribunal as might
later prove acceptable to the parties. Experts were soon designated to draw up a Code of Crimes Against the
Peace and Security of Mankind and to draft statutes for an international criminal court to punish such offenses.
5.1.2 The Geneva Conventions
The U.N., which was founded in 1945 from the ashes of World War II, took the lead in the late 1940s in defining
war crimes and trying to establish guidelines designed to prevent such horrors in the future. In December 1948,
the U.N. General Assembly passes a resolution called the Convention on the Prevention and Punishment and
Punishment of the Crime of Genocide. The resolution was one of the so-called Geneva conventions, named after
the Swiss city where they were signed.
In the 1948 convention, genocide was defined as certain acts “committed with the intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such.” Article I of the convention stated, “The
contracting parties confirm that genocide, whether committed in time of peace or in time of war, is a crime
under international law which they undertake to prevent and to punish.” Article 3 read in part, “The following
acts shall be punishable: genocide; conspiracy to commit genocide; direct and public incitement to commit
genocide; attempt to commit genocide; complicity in genocide.” The list of punishable crimes was derived
directly from the Nuremberg prosecutors’ charges.
The Fourth Geneva Convention, agreed to by the General Assembly in 1949, also dealt with war crimes. Known
formally as the Convention on the Protection of Civilian Persons in Time of War, it required U.N. nations to enact
laws that made it illegal to commit or order others to commit “grave breaches” of the Convention, and to
actively seek to bring such offenders to trial. The grave breaches, which constitute the heart of the
contemporary definition and understanding of war crimes, include various acts committed against protected
persons and property, including “willful killing, torture or inhumane treatment…willfully causing great suffering
or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected
person.”
5.2 War Crimes Trials After Nuremberg
The International Military Tribunal in particular, and the twelve subsequent trials at Nuremberg, laid the basic
foundations for the later development of international criminal law.
5.2.1 Tokyo
During the same year as Nuremberg, the Tokyo Trials were set up by the United States in order to prosecute and
bring to justice several Japanese officials involved in war crimes and Crimes Against Humanity. During the Tokyo
trials extensive reference was made to Nuremberg and its definition of Crimes Against Humanity. Accordingly to
several academics, Article 6 C of the Charter drafted in the London Agreement was in a way formulated
exclusively with the thought of prosecuting the Nazi leaders held responsible for the atrocities committed
against the Jewish people and other targeted groups both inside and outside Germany. The Tokyo trials were
not only a proof that the Nuremberg Principles allowed a margin of operation for other cases, but also
presented the initiation of a series of tribunals which would uphold, under the specific circumstances stated by
the treaty (ie, “…. committed against any civilian population, before or during the war, or prosecutions on
political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the
Tribunal.”), the same possibility of prosecution for Crimes Against Humanity. Tokyo was the first stepping-stone
from Nuremberg, which would lead to the universalization of Crimes Against Humanity and its relevant
derivations.
5.2.2 Yugoslavia
In the early 1990s, the Cold War had ended, and most formerly Communist nations were beginning the difficult
transition to democracy and capitalism. The end of tight Communist control in Eastern Europe also unleashed
long-suppressed nationalism among ethnic groups.
In 1991, two of Yugoslavia’s four republics, Slovenia and Croatia, declared independence. Ethnic-based conflict
broke out almost immediately, prompted largely by the resistance to independence of large Serb minorities in
Croatia.
In 1992, the Security Council established a Commission of Experts to investigate evidence of violations of
humanitarian law in the territory of the former Yugoslavia.
The accounts of atrocities in the early years of the Bosnian Civil War prompted the creation of the first
international war-crimes court since Nuremberg and Tokyo. In May 1993, the U.N. Security Council formally
established the ICTY (Res. 827). The new court, with its seat in The Hague was given responsibility for
prosecuting crimes that violated the Geneva Conventions, including genocide and Crimes Against Humanity. For
the first time ever, rape was recognized as a crime against humanity when it was included in the ICTY’s mandate.
The ICTY’s first indictment was handed down in November 1994. As of September 1997, a total of 78 individuals
have been publicly indicted by the Court. Fifty-seven of those indicted are Serbs, 18 are Croats and 3 are
Moslems. The court handed down its first sentence in November 1996, sentencing Drazen Edemovic, a Croat
who served in the Bosnian Serb Army, to ten years in prison for his role in the Srebrenica massacre.
5.2.3 Rwanda
In 1994, brutal civil war erupted between rival ethnic tribes in Rwanda. There were reports that perhaps half a
million Tutsi and their supporters were being savagely massacred by the dominant Hutu government. The
Security Council sent a small commission to investigate (Res. 935, July 1994) and it soon reported back that the
crimes being committed were horrendous. United Nations forces were dispatched to Rwanda to help restore
order to that battered country.
The Statute for the International Criminal Tribunal for Rwanda was adopted at the end of 1994 (Res. 955). It
followed closely the general outlines of the ICTFY but was more explicit in assuring that even in a civil conflict
violations of the rules of war would not be tolerated. The Court was authorized to prosecute for genocide,
Crimes Against Humanity and war crimes regardless of whether the strife was called an international conflict or
a civil war. Because of the nature of the internal conflict, the inclusion of aggression as a crime within the
jurisdiction of the court was not relevant. Only the specified crimes committed within the defined area during
the year 1994 could be dealt with. The Rwanda Court was thus a special tribunal of very limited jurisdiction.
5.3 The International Criminal Court (ICC)
After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide,
war Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and
it has entered into force the first of July 2002, when the required number of country ratifications was attained.
The court holds a promise of putting an end to the impunity that reigns today for human rights violators and
bringing us a more just and more humane world.
5.3.1 Historical Introduction
The Nuremberg and Tokyo trials were founded on the wish that atrocities similar to those that had taken place
during the Second World War would “never again” recur. In 1948 the U.N. General Assembly adopted a
resolution reciting that “[i]n the course of development of the international community, there will be a an
increasing need of an international judicial organ for the trial of certain crimes under international law.” (13)
Initiatives to create such an institution were taken as early as 1937 by the League of Nations that formulated a
convention for the establishment of an international criminal court, but the Cold War led to deadlock in the
international community and the matter fell into oblivion. Sadly we realize that the cruelties during World War II
were not isolated incidents. Genocide has since Nuremberg taken place in Uganda, in Cambodia, in Rwanda, in
Somalia, in Bosnia, and the list could go on.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda
could the UN, no longer paralyzed by the Cold War, take action. In response the Security Council, basing its
decisions on Chapter VII of the UN Charter, commissioned two ad hoc international criminal tribunals (the ICTY
for the former Yugoslavia and the ICTR for Rwanda) to investigate alleged violations and to bring the
perpetrators to justice. Without doubt, these courts have significantly contributed to the development of
international criminal law, but they have not been entirely successful. Their biggest problems have been the lack
of formal means of enforcement to seize indicted criminals. After the Cold War tensions had dissolved the world
community showed a renewed interest in creating an international criminal court. On December 4, 1989, the
United Nations General Assembly adopted a resolution that instructed the International Law Commission (the
ILC) to study the feasibility of the creation of a permanent ICC. Four years later, and obviously pleased with the
ILC’s report, the General Assembly called on the Commission to commence the process of drafting a statute for
the court. This statute was presented in 1994. The following year a preparatory committee was established to
further review the substantive issues regarding the creation of a court based on the ILC report and statute. The
aim was to prepare a convention for the ICC that had the prospects of being widely accepted globally.
The International Criminal Court (ICC) was established by the Rome Statute of the International Criminal Court
on 17 July 1998, when 120 states participating in the “United Nations Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Court” adopted the statute. This is the first ever
permanent, treaty-based, international criminal court established to promote the rule of law and ensure that
the gravest international crimes do not go unpunished.
The statute sets out the Court’s jurisdiction, structure and functions and it provides for its entry into force 60
days after 60 states have ratified or acceded to it. The 60th instrument of ratification was deposited with the
Secretary General on 11 April 2002, with ten countries simultaneously deposited their instruments of
ratification. Accordingly, the statute entered into force 1 July 2002. Anyone who commits any of the crimes
under the statute after this date will be liable for prosecution by the Court. (14)
6. THE CASE OF SADDAM HUSSEIN
6.1 A Brief Background to the Iraqi Crises
When Iraq in August 1990, led by its dictator Saddam Hussein, committed brazen aggression by attacking its
friendly neighboring Arab state of Kuwait, the sleeping giant of international law began to stir. The Security
Council of the Untied Nations responded promptly with a barrage of resolutions followed by action under Article
VII of the UN Charter authorizing the use of military force to expel Iraq and restore peace. An allied coalition led
by the United States immediately began to bombard Iraqi troops.
After Iraq was routed, the Council imposed a host of new conditions and sanctions designed to secure peace in
the area in the future. What was glaringly absent was U.N.-authorized action to bring to justice those who were
responsible for the aggression, the Crimes Against Humanity and the clear violations of the laws of war that
accompanied Iraq’s unlawful invasions of Kuwait.
Instead of following the Nuremberg principle of punishing only the guilty after a fair trial, economic sanctions
were imposed on the civilian population of Iraq – many of whom might have disagreed with the aggressive
policies of their government. Saddam Hussein, Iraq’s former despotic leader, remained at the head of the
government and thumbed his nose at the world community’s efforts to curb his production of weapons of mass
destruction. The lessons of Nuremberg seemed to have been forgotten. (15)
6.2 What Crimes are Saddam Hussein Accused Of?
They cover acts between July 17, 1968, when Hussein and other Ba’ath Party members took power in a coup,
and May 1, 2003, when President Bush declared the end of major combat operations. Those years saw hundreds
of deaths, the use of chemical weapons against Iranians and Kurds, the invasion of Kuwait in 1991, the massacre
of Sh’ites and Marsh Arabs who rose up after the first Gulf War, and alleged systematic killings, rapes and
tortures.
6.3 What Kind of Trial?
Since the capture of Saddam Hussein in December 2003, there has been intense speculation as to the type of
court that will be used to try the former Iraqi president. It now appears that Hussein will be tried by the Iraqi
Special Tribunal that was established in 2003. This Tribunal, which is yet to commence operation, has jurisdiction
over crimes of genocide, war crimes and Crimes Against Humanity committed since 1968. Although it would
seem desirable that the former Iraqi dictator be tried by an Iraqi court, it is not yet clear whether the Iraqi
Special Tribunal and the Iraqi legal profession have sufficient resources and expertise to conduct a trial of this
complexity. Questions also remain as to whether the trial and sentencing of Hussein will conform with
international human rights standards and whether it will served the ends of justice and reconciliation in Iraq.
Having the Iraqis themselves try Saddam avoids the imperialism perception a U.S.-led trial would perpetuate.
The victors won’t be trying the vanquished, the people Hussein terrorized will. Iraqi council members have
assured their citizens they will televise the trial, so that everyone can see Saddam getting his day in court and
understand the depth and breadth of the atrocities he and his regime committed. Many experts believe the Iraqi
people need this public airing of Hussein’s sins, in order to “move on” and really begin living in a post-Saddam
world. A state department official was quoted in Time magazine saying, “There’s an Iraqi catharsis that needs to
take place.”
While the Iraqis trying Iraqis option has a lot of merit, it had drawbacks that President Bush, England’s Prime
Minister Tony Blair and others may be missing. First, the focus would be on Saddam’s crimes against his own
people. While they are worthy accusers, they are not the only people against whom Hussein committed crimes.
Iran wants Saddam tried for starting the Iran-Iraq War in 1980. Kuwait wants him tried for invading that country
in 1991. Israel wants to know whether scud missile attacks are war crimes.
The other – and ultimately more important – drawback is that by not trying him in front of an international
body, such as the U.N.’s International Criminal Tribunal, the charter of the United Nations itself and of the
concept of the world collectively bringing despots to justice are gutted. The noble precedents set by the
Nuremberg trials of the Nazis after World War II and the recent trials addressing the war crimes in the
Yugoslavia and Rwanda would be ignored.
Some may say “good riddance,” since the U.N. hasn’t been very effective lately. But, marginalizing the U.N. by
not having it try Saddam on behalf of the rest of the world further increases the chances that the USA will be
stuck with full tab for Saddam’s ouster and the rebuilding of Iraq. A better strategy would be to attempt to use
Saddam’s capture and subsequent trial as a “bridge” to accelerate Iraq’s reentry into the world’s community of
nations – and vice versa.
7. Conclusion
International crimes, particularly war crimes and Crimes Against Humanity, have been, regrettably, all too
common. Ongoing violence and widespread civil unrest continue in numerous situations, those responsible for
atrocities have rarely faced justice. With a substantially increased risk of further terrorist attacks in the
aftermath of the September 11th terrorist attacks and the Bali bombings, the development of appropriate
legislative and institutional responses to international crimes has acquired a new urgency.
For more than four decades after the establishment of the Nuremberg and Tokyo tribunals the enforcement of
international criminal law remained an exclusively national responsibility and the report card is appalling. The
abject failure of an exclusive reliance on national courts and legal processes to rein in impunity for the
perpetration of atrocities is the single most compelling argument for an effective international criminal law
regime. This is not to suggest that the international community needs an effective international regime to
replace or supplant national courts and processes. Rather, the suggestion here is for an effective international
supplement to national structures and processes – a multilateral institutional framework to hold some key
individuals to account while simultaneously providing a catalyst for more effective national enforcement of
international criminal law.
The Nuremberg Tribunals were a precedent and a promise. As part of the universal determination to avoid the
scourge of war, legal precedents were created that outlawed wars of aggression, war crimes and Crimes Against
Humanity. The implied promise held forth to the world was that such crimes would be condemned in future,
wherever they occurred and that no person or nation would be above the law. After half a century, it now seems
possible that the promise may yet to be fulfilled.
International criminal law is undergoing a rapid transformation. One of the most important events in this
evolution was the coming into force of the Rome Statute of the International Criminal Court (the “ICC”) on July
1, 2002. There is no doubt that the international community is entering a new era in which perpetrators of
international crimes will no longer enjoy impunity.
The creation of the new international Criminal Court will prove a catalyst for states to take the national
enforcement of international human rights law much more seriously than has hitherto been the case. Many
states, recognizing the potential scope of the International Criminal Court’s jurisdiction – particularly in relation
to the so-called “principle of complementarity” – have already enacted broad-ranging criminal legislation to
ensure that all the crimes within the Rome Statute are covered by domestic penal law. The overwhelming
motivation for this unprecedented criminal law reform is to maximize the potential benefits of the principle of
complementarity in the event of allegations against a State’s own nationals.
The Rome Statute is one of the sources of international criminal law. The pre-existing sources on which the
Statute was built not only include rules of international humanitarian law, and in particular those contained in
the Geneva Conventions and their additional protocols, but also the rules and categories established under the
Nuremberg and Tokyo War Tribunals – “war crimes,” “Crimes Against Humanity,” and the crime of “aggression.”
Another important source includes the experience gained from the ad hoc tribunals created by the UN Security
Council – the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal
for Rwanda.
A Study Of The Nuremberg Main Trial International Law Essay
In this essay the aptness of the indictments, the matter of jurisdiction and the legality in terms of the fair trial
principle will be explored.
The Allies wanted to bring Hitler and his men to justice for instigating WWII and the crimes they committed
during it, including the mass murder of Jewish civilians called the Holocaust. The Nuremberg Trial was the result.
After discussion, the most appropriate way forward was deemed to be the public trial of the organization and
individuals who perpetrated these atrocities. They were conducted from Nuremberg, the one time epicentre of
the war movement.
Seven groups who had orchestrated the Nazi programs and twenty-two Nazi officials were tried at the most well
known of these. Martin Bormann was put on trial in absentia, Gustav Krupp was not medically fit to be tried and
Robert Ley committed suicide before he stood trial. Furthermore, a good number of the Nazi leaders like
Goedbbels, Himmler, and Hitler had committed suicide when the war finished and so could not face trial.
‘Beginning in 1942, when news of wartime atrocities flooded Western news media, the leaders began to
formulate a common policy over several years of negotiations. Eventually, the Allies decided on an international
trial to be held under the auspices of the four principal Allied powers – the Americans, British, French and
Soviets’ [1] . First of all, the rules governing the trial needed to be decided. The countries created a procedure
which combined elements from all of their systems. Those to be tried were granted the right to be give evidence
to defend themselves, call witnesses and be represented by counsel, however, they did not have the right to a
trial by jury, a law only in the U.K and U.S.. Lastly, upon the presentation of all evidence, and without being
cross-examined or sworn, those being tried were allowed to give statements to the court
The indictment followed this, a statement charging each individual on trial. Defendants were charged with four
kinds of crimes including war crimes, conspiracy against peace, crimes against peace, and crimes against
humanity. In beginning the war, the Allies accused the Nazis of purposely breaking the international treaties
which Germany had signed. The Holocaust was deemed a crime against humanity. It is worth noting that not all
of those being tried were charged with all of these crimes, for example, Scharcht, Roeder and Doenitz were not
tried for involvment in the Holocaust.
It is important to consider the Nuremberg Trial’s jurisdiction and the manner in which the tribunal was brought
together in relation to criminal law at an international level. In Moscow in1943 a great watershed moment for
international criminal law occurred: ‘the Allies initially issued a declaration which promised punishment for ?
war criminals, but stated that this was without prejudice to the case of the major criminals whose offences have
no particular geographical location and who will be punished by a joint declaration of the government of the
Allies’ [2] . The key players in the Alliance concluded after some discussion that this was the most appropriate
form of prosecution. It became the London Charter as it was drafted there and created the basis fo the
Nuremberg International Military Tribunal (IMT). The four countries did not always agree, however, because ‘the
USSR thought that the purpose of the tribunal was simply to determine the punishment to be meted out to the
defendants, who they thought were to be presumed guilty’ [3] . Clearly, this would not be acceptable
considering the variances in civil law between the Allies such as, for example, the fact that the American and
British civil laws forbade the assumption of guilt without fair trial.
The trial was held before a panel of eight judges which were selected by the Allies and formed the tribunal. The
president of the tribunal was Lord Laurence, a British judge. ‘The defence was undertaken by a number of
German lawyers, the leading lights of whom were Hemmen Jahriess, an international lawyer from Cologne and
Otto Kranzbühlle, a naval judge-advocate’ [4] .
There have been many arguments about the legitimacy of the Nuremberg Trials, however, many would agree
that this tribunal was the most effective for these types of crimes. Nuremberg stands for much more than the
International Military Tribunal and its work, or even the wider process of judging Nazi war criminals in the wake
of the Second World War. Nuremberg conjures up the moral and legal issues raised by applying judicial methods
and decisions to challenge ? ?’ [5] . It is clear that the Nuremberg Trial set a positive precedent for international
criminal law throughout the world as it brought to justice those who were involved in mass murder.
International jurisdiction is important in a proceeding such as dealing with the Nazis’ crimes because of the
impact it has across the world. The Allies presented multiple evidence which consisted mostly of ? and
documents of the Nazis themselves. During the investigation that led to the trial, the U.S. and British
investigations had discovered mass amounts of documents which proved the charges against the defendants.
The decision was made, therefore, to rely on the words of the defendants themselves in the trial. There is an
argument, however, that suggests that the Nuremberg Trial is an example of ‘victor’s justice’. This basically
means that the trial itself is not fair (something that will be reviewed later in this paper), ‘in particular that the
judges are biased against the accused, that the applicable law is designed to guarantee a conviction’ [6] . This
therefore suggests that the tribunal cannot be regarded as a true ? because ‘its members represent the
victorious Allied nations, they must lack that impartiality which is essential in all judicial procedure’ [7] . This is a
? argument because it suggests that only neutrals can ‘try’ a fair case. The argument is flawed when compared
to every countries’ laws. This is because a criminal cannot complain about who is trying him ? in a jury.
The Nuremberg Trials would always prove to be a success as all the Allies had one common goal, to bring to
justice the true perpetrators of the Second World War and punish them for their crimes. Another major factor
that needs to be considered in the Nuremberg Trials is that of fairness. Arthur L. Goodhart identifies that there
are three main ? factors that illustrate that this trial was fair. The first of these relates to the true characteristics
or, more importantly, the professional characteristics of the judges. ‘Although the court is being described as
being “the International Military Tribunal", its members are not professional soldiers but legal experts who have
been trained in the evaluation of evidence’ [8] . Many thought that the true nature of the judges would be
disguised as major-generals but it was clear that it was essential to convey their true legal nature.
The second factor that proves that the Nuremberg Trial was a fair proceeding was that it was conducted within
the full view of the world on a public stage and thus ‘in such circumstances it would be almost impossible for a
tribunal to act in an obviously unfair manner’ [9] . Thus, if the Nuremberg IMT was in any way trying to stage a
false trial, the entire world would be witness to this ? making this impossible to carry out. An extract from the
Nuremberg Diary by Hans Frank G. M. Gilbert, which contains an extract from Hans Frank whilst on trial in his
cell, clearly conveys the entire guilt of the Nazis:
‘Yes, Fritzsche and Speer too, it is such a torture to sit through the trial – such horrible things are laid coldly
before us and before the world – things we knew, things we didn’t know; things we didn’t want to know – And
one just sinks in ? ? - ! [10]
This shows the level of shame that Hans Frank had when evidence was being given against him and his fellow
Nazis on trial. This further testifies to the fact that the Nuremberg trials were conducted in the correct manner.
The third important factor that needs to be considered in concluding the fairness of this trial relates to Article 26
of the Charter. This states that ‘the judgment of the tribunal as to the guilt or the innocence of an defendant
shall give the reasons on which it is based ? and shall be ? and not subject to review’ [11] . This is much stricter
than what is usually practical in national courts as a verdict of guilt is usually accepted as fair and sufficient, thus
guaranteeing fairness. This is because in such a case a judge knows that their judgment will be open to public
views both at the present time and in the future. Therefore the judges in the Nuremberg Trial effectively
satisfied this clause by their characteristics and the way in which they operated within the IMT.
Another political landmark in the Nuremberg Trials is the way in which, quite apart from the ? of the ‘legal
technicalities’, it is highly regarded and politically accepted. This is because ‘the chief arguments usually given
for this quasi-judicial trial are that it gives the culprits a chance to say anything that can be said on their behalf,
that it gives both the world today and the world tomorrow a chance to see the justice of the Allied cause and
the wickedness of the Nazis, and that it sets a firm foundation for a future world order wherein individuals will
know that if they embark on schemes of aggression or murder or torture or persecution they will be severely
dealt with by the world’ [12] .
This statement effectively portrays the positive aspect of trying these offenders in the dock. This is because the
defendants, after seeing and hearing evidence against them, have a chance, with the aid of their defence
counsel, to challenge and make statements on their own behalf without the possibility of torture. This makes
the trial more fair and convincing for all, illustrating the full liability to ? of the Nazis.
Indictments
It is important to consider the appropriateness of the charges and indictments laid on the individuals on trial at
the Nuremberg trial. The crimes charged are contained in Article 6 of the Charter (crimes against peace, war
crimes and crimes against humanity):
Crimes against peace: namely planning, preparation, initiation or waging of war of aggression or a war in
violation of international treaties…
War crimes: namely violations of the law or customs of war…
Crimes against humanity: namely murder, extermination, enslavement, deportation and other inhumane acts
committed against any civilian population before or during the war… [13]
The above quotation illustrates the legislation which the International Military Tribunal must follow with the
guidance of the Charter. ‘It must determine the guilt or innocence of the defendants, not according to
discretion, but in accordance with these specific rules’ [14] . This shows that it was a fair trial because if the
conclusion is that one or any of the defendants are believed to have committed any of these charges listed in
the Charter, the defendant must be guilty. This conveys, therefore, that the IMT shows how legal and humane
the ? is. This is because it follows the same principles of today’s English High Courts.
If we look at the definition of ‘crimes against humanity’ and its definition in the Nuremberg Charter, we can see
that the Allied nations believed that these were the current charges to tackle the mass murders and crimes
committed by the Nazis during the Holocaust. There are several features that have not be noted within this
definition. The definition of ‘crimes against humanity’ references ‘any’ civilian population, therefore, in effect
stating that crimes against a particular ? ? population would be included. ‘This was a major advancement, given
that at the times, prior to the advent of the human rights movement, international law generally regulated
conduct between States and said little about a government’s treatment of its own citizens’ [15] .
Another very positive feature of the Charter’s definition is the particular connection between all of the
meanings. ‘War crimes or the crime of aggression’ suggested that ‘crimes against humanity’ could only ever take
place with there being a ? with ‘armed conflict’. This also adds to the terminology in reference to ‘population’ as
it was believed to mean ? scale but was never specified in the Charter. In conclusion, suggesting large-scale
crime.
In the final judgment, three defendants, Van Pajen, Schacht and Fritzche, were acquitted entirely. Eleven of the
other defendants were acquitted of some of the charges against them. Hes was acquitted of the charge of
participating in the Holocaust and other war crimes. Twelve of the defendants were found guilty and sentenced
to death. Georj committed suicide and Bormann was never found. Those sentenced to death were hung on
October 16, 1946.
There exists a great deal of controversy as to whether the Nuremberg Trial indictments created new crimes or
whether they already existed. Many commentators believe new crimes were created setting a precedent for the
future of International Criminal Courts. Many argue, however, that the principle of non-retroactivity ‘had to give
way to the overriding need for accountability for large scale murder and atrocities recognized as criminal by all
nations (the Allies)’ [16] . This argument, arguably, has been held up in the ? judgments in the Nuremberg Trial
as many scholars believe that crimes against humanity and war crimes provided a fairly basic and distorted
argument at trial. However, this argument can be ? because ‘Jewish groups had argued ? for inclusion and up to
the beginning of the London conference the American drafts suggested that crimes against humanity would
extend to the beginning of the Nazi era’ [17] . Therefore, it would appear that this indictment was a true charge
over jurisdiction within Germany as the Nazis were indeed guilty of this crime due to the overwhelming evidence
(i.e. exterminations, enslavement in the concentration camps and so forth) and witnesses.
In conclusion, it is clear that the Nuremberg Trial was set in a fair practice within a legal frame. The trial had to
take place and was fair because it stayed within the ‘protocols’ of democracy. As Antonio Cassroe states ‘no one
can be considered guilty until his crimes have been proved in a fair trail. To relinquish such a fundamental
principle would have put the Allies on a par with the Nazis who had ridden rough shod over so many principles
of justice and civilization when they had held mock trials or punished those allegedly guilty without even the
benefit of judicial process’ [18] . Thus we can see that if the Allies did not form the IMT and simply prosecuted
the Nazis without a trial would simply be as ? as they had been in World War II. This point also clarifies that the
Allies were best to try the Nazis as World War II and the Nazis had caused mass destruction worldwide.
International Criminal Law
The Nuremberg Trial has also been successful in making a ? impression on worldwide opinion. ? to the world
that such crimes as ‘racism and totalitarianism’ that were orchestrated by the Nazis would not be tolerated.
‘Thus, the trial added to the world ‘tragic historical phenomena plainly visible’ [19] in the form of the trials. This
has had a positive impact on the future such as the case of Sadaam Hussein; when he was captured by the U.S.
Government, he was punished and his trial was made public globally.
As well as being a great piece of history and setting a precedent for the future, the Nuremberg Trial has acted
for posterity. ‘The crimes committed by the Third Reich and its Nazi officials were so appalling that some
detailed record had to be left’ [20] . The IMT proved this theory as an international trial, held on a large scale
tribunal did not only ? useful in ?, but for a part of history and for the future of ? international criminal law.

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