Early Efforts to Establish an International Criminal Court
Over a period of many centuries, humanitarian principles regulating armed conflictsevolved gradually in different civilizations. In the course of this historical evolution,
certain principles at first emerged which restricted what a combatant could
do during the conduct of war. As the laws of chivalry developed during the Middle
Ages in Western Europe, so did rules limiting the means and methods of conducting
war. Heraldic courts developed a code of chivalry that regulated a knight’s conduct
in battle and that Christian princes enforced in their courts. It was the beginning of
what became known as jus ad bellum. In time, the humanitarian principles formed
an inter-woven fabric of norms and rules designed to prevent certain forms of physical
harm and hardships from befalling non-combatants, as well as certain categories
of combatants such as the sick, wounded, shipwrecked and prisoners of war. As the
protective scheme of prescriptions and proscriptions increased both qualitatively and
quantitatively it’s more serious breaches were criminalized. With criminalization of
certain means and methods of warfare, customary international law recognized and
permitted belligerent states to prosecute enemy soldiers in their custody for breach
of the laws and customs of war.
The enforcement of modern international humanitarian law dates back to the
Middle Ages, when the first known war crimes trials were held. The first supranational
criminal tribunal to bring to justice someone responsible for what would today
be characterized as crimes against humanity was convened more than five centuries
ago. In 1474, an ad hoc criminal tribunal of 28 judges from different states allied to the
Roman Empire, tried and convicted Peter Von Hagenbach for murder, rape, perjury
and other crimes in violation of ‘the laws of God and man’ during his occupation of
the town of Breisach on behalf of Charles, the Duke of Burgundy, at a time when
there were no hostilities. Professor M C Bassiouni cites this as the ‘first documented
prosecution for initiating an unjust war’ and essentially as the first ad hoc international
criminal tribunal.
Though additional norms and rules were developed in intervening centuries
strengthening basic principles of humanity, it was to take another five centuries
before the concept of a supranational criminal tribunal was revisited. Until the 19th
century, the residual remains of chivalry, the non-binding theoretical treatises of the
publicists, and the slow accretions of customary law restraints derived from state
practice comprised the legal framework governing conduct in war. However, the
changing nature of warfare spurred by technological advancement and heightened
rivalries between newly consolidated nation-states, revealed the impotence of these
restraints and compelled their revision. The French Revolutionary and Napoleonic
wars heralded the dawn of an epoch of unbridled ferocity and marked the birth ofthe nation-at-arms, in which entire populations and industrial bases were mobilized
in support of the war effort, blurring the combatant/non-combatant distinction and
jeopardizing any civilian claims to immunity.
As the modern international system developed in the 19th century and multilateralism
found its voice, efforts began to be made to increase the level of voluntary
compliance and to hold states responsible to the international community
for violations of certain international obligations.10 Unilateral political or military
retaliation and economic sanctions continued to be the main vehicles through which
states were censured for offensive conduct. It was the failure of this informal international
enforcement mechanism that led Gustave Moynier – one of the founders
of the International Committee of the Red Cross – to present a proposal to the
International Committee of the Red Cross calling for the establishment by treaty
of an international tribunal to enforce laws of war and other humanitarian norms
on 3 January 1872.11 Until Moynier suggested a permanent court, almost all trials for
violations of the laws of war were by ad hoc tribunals constituted by one of the belligerents
– usually the victor – rather than by ordinary courts or by an international
criminal court.
Gustave Moynier was not originally in favour of establishing an international
criminal court. Like many humanists of the era, Moynier shared the belief that engaging
reason through an appeal to emotion by gritty descriptions of individual suffering
would shock the public into humanitarian outrage and by extension pressure warring
states to adhere to humanitarian norms and rules.12 Indeed in his 1870 commentary on
the 1864 Geneva Convention concerning the treatment of wounded soldiers,13 he considered
whether an international criminal court should be created to enforce it. However
he rejected this approach in favour of relying on the pressure of public opinion, which
he thought would be sufficient. He noted that ‘a treaty was not a law imposed by a
superior authority on its subordinates (but) only a contract whose signatories cannot
decree penalties against themselves since there would be no one to implement them.
The only reasonable guarantee would lie in the creation of international jurisdiction
with the necessary power to compel obedience, but in this respect, the 1864 GenevaConvention shares an imperfection that is inherent in all treaties’.14 Nevertheless he
believed that public criticism of violations of the 1864 Geneva Convention would be
sufficient, observing that
because public opinion is ultimately the best guardian of the limits it has itself
imposed. The 1864 Geneva Convention in particular, is due to the influence of public
opinion on which we can rely to carry out the orders it has laid down ... The prospect
of those concerned of being arraigned before the tribunal of public conscience if
they do not keep to their commitments, and of being ostracized by civilized nations,
constitutes a powerful enough deterrent for us to believe ourselves correct in thinking
it better than any other.
He also hoped that each of the state parties to the 1864 Geneva Convention would
enact legislation imposing serious penalties for violations. He was to be disappointed
on both accounts.16 Several months after Moynier’s commentary, the Franco-Prussian
War broke out. Fundamentally, the origin of the war lay in a collision of national
interests. For the sake of Prussian (German) unification and expansion, Bismarck
had taken up the cause of German national self-determination whose fulfilment
was possible only at the cost of France. Since 1866, the French had dreaded the
consolidation of a powerful state on their northern frontier, at least without compensation
sufficient to preserve their own relative weight in the European balance.
These were the ingredients of an explosive compound. The catalyst which brought
them together was the abrupt announcement by Germany in the summer of 1870
that a Hohenzollern prince was to be king of Spain.17 Subsequent events created an
atmosphere in which reason and compromise were impossible by igniting nationalistic
passion in France and sweeping away the particularism and distrust of the two
Germanys in a flood of patriotic exaltation.18
On 15 July 1870, France keen to scuttle Bismarck’s unification ambitions and maintain
its preponderant political weight declared war on Germany. By early August,
the numerically and militarily superior Prussian forces had penetrated deeply into
French territory, and in early September, France’s principal army surrendered and
Emperor Napoleon III was captured. Paris fell in January 1871 (by which time the
armies of the French National Defence were largely destroyed), an armistice was
declared in late January, a preliminary peace was signed in February, and the final
peace treaty was signed in Frankfurt on 10 May 1871.19 The press and public opin-ion on both sides of that conflict fanned atrocities. Moynier was forced to recognize
that ‘a purely moral sanction’ was inadequate ‘to check unbridled passions’.20
Moreover, although both sides accused each other of violations, they failed to punish
those responsible or even to enact the necessary legislation. It was at this point that
Moynier developed his proposal for an international criminal court.
It was not surprising that the model for the new international criminal court
was the arbitral tribunal which had been established the year before in Geneva
pursuant to the Treaty of Washington of 8 May 1871 in order to decide claims by
the United States against Britain for damage caused to American shipping by the
Confederate raider, The Alabama.21 A major transformation of international relations
in this period, the rising tendency to settle international conflicts more frequently
than in former times by arbitration, seemed to have influenced Moynier in his conviction
of the efficacy of an international criminal court. Ostensibly, the numerous
arbitrations were a pointer that the international community was inching towards
formal adjudication mechanisms in the implementation of international law and a
rejection of war as a judicial procedure of last resort.22
In developing his proposal, Moynier examined in turn legislative, judicial and
executive powers related to criminal law before concluding that an international institution
was necessary to replace national courts. Since the states had been reluctant
to pass the criminal legislation which he believed that they were morally obligated,
as parties to the 1864 Geneva Convention,23 to enact in order to prevent violations, he
argued that the creation of an international criminal court was necessary. He did not
think that it was appropriate to leave judicial remedies to the belligerents because,
no matter how well respected the judges were, they would at any moment be subjected
to pressure.24
Moynier’s proposal for an international criminal court focused on creating a
formal enforcement mechanism responsible for coercive compliance. The device of a
criminal trial was to be the major way in which the enforcement of limitations and
obligations of international humanitarian law could be achieved. But for the international
justice system to work, the proposal needed the unequivocal co-operation
of states. States had to feel duty bound to discharge their international obligations.
Since law by its nature requires compliance, successful establishment of an inter-national penal process necessarily required that the dictates of the laws of war be
both respected and obeyed; in other words it would not work if states did not feel
obligated to comply. With states rooted in the traditional notion of state sovereignty
which enshrined the state’s supremacy and independence,25 the proposal was
doomed to failure.
Moynier’s proposal led to a flurry of letters from some of the leading experts in
international law of the day, including Francis Lieber, Achille Morin, de Holzendorff,
John Westlake and both Antonio Balbin de Unquera and Gregorio Robledo on
behalf of the Central Committee of the Red Cross of Spain.26 Although some of
these experts welcomed Moynier’s initiative to strengthen implementation of the 1864
Geneva Convention,27 most of them argued that the proposal to establish an international
criminal court would not be as effective as other methods and all were critical
of various aspects of the proposal. This cool reception was owing to the reality that
traditionally, enforcement of international law was based on an informal system, concentrating
on attempting to ensure the voluntary compliance of states rather than a
formal enforcement system. Given the cool reception by the legal experts, no government
publicly took up the proposal and thus its death without mourners or honour.28
The next significant event for international humanitarian law in this period did
not occur until almost three decades after Moynier’s proposal. Technological and
industrial advances which pointed to a major change in the face of warfare led to
the epochal Hague Peace Conference. In 1899, European Powers assembled for the
first International Peace Conference of The Hague to discuss comprehensively the
codification of the laws of war resulting in the ground breaking Hague Conventions
on warfare with the key aim of arms limitation. A second conference was convened
eight years later to revise the conventions emanating from the 1899 effort and to further
broaden the scope of international humanitarian law.
The Hague Peace Conferences of 1899 and 1907, through a number of rules on
the means and methods of warfare, established regular means for the pacific settlement
of disputes to allow parties to step back from the brink of war, applicable if and
when war broke out.29 The Hague Conferences and their movement towards pacificsettlement of disputes marked the beginning of the attempts to limit the right of
war both as an instrument of law and as a legally recognized means for the changing
of legal rights.30 The elevation of inter-state and regional relations into international
relations in the context of an international legal system was marked by the adoption
of the Hague Conventions of 1899 and 1907 which sought to codify universal rules
and norms regarding warfare binding on state parties and also opened the doors to
an era of arms control.31 Laws regulating the means and methods of warfare drafted
at The Hague Conference formed the bedrock of modern laws of war, and are generally
considered by international law scholars to be the crowning achievement of the
effort to humanize war through law.
2.The Path to the Treaty of Versailles
The first major effort to curb international crimes through international penal process
arose after World War I. In 1914, Europe, divided by competing military alliances,
was a powder keg waiting to explode. The fuse was lit when a Serbian nationalist
assassinated Austrian Archduke Franz Ferdinand on the bridge at Sarajevo. Lacking
any institution with authority to maintain peace, the disputing parties had no choice
but to call upon their allies and resort to force. Without effective international law,
the only alternative was war. By the time the war ended, tens of millions of soldiers
and civilians lay dead or wounded. The total cost in human life was estimated at 22
million dead and eight million casualties. In monetary terms, the war cost 202 billion
dollars, with property destroyed in the war topping 56 billion dollars.32 Of the civilian
death toll, Turkey was the leading perpetrator, massacring between one and two
million Armenians, Greeks and Syrians, accounting for about fifty percent of the
total civilian toll of the entire war.33 All hearts cried out for a more peaceful world.
Reconciliation could not even begin without first bringing to justice those individuals
whose unconscionable atrocities had violated ‘the laws of humanity’ and who had
been responsible as the authors of the war and ‘for supreme offences against international
morality and sanctity of treaties.’34
The devastation of the war provided a catalyst for the first serious attempt in
modern times at international justice. Expectations ran high in 1919. World War Ihad evoked revulsion of war and the logic of realpolitik that rationalized great-power
rivalry, arm races, secret alliances, and balance-of-power politics. The experience led
the policymakers gathered at the Paris peace talks at the Versailles Palace to re-evaluate
assumptions about the rules of statecraft and to search for substitute principles
for building a new world order. The policy-makers at Paris desired that their deliberations
crystallize in policies rooted in the idealism of liberal international relations
theory. The problem was not just to build a peace, but to construct a peaceful
international order that would successfully manage all international conflicts of the
future.35 Idealists also advocated bringing State sovereign excesses under the jurisdiction
of international law through international penal process and the promotion
of international justice.
In a dramatic break with the past, and in a bid to build a normative foundation
of human dignity, the chaos and destruction of the war gave rise to a yearning for
peace and a popular backlash against impunity for atrocity. The war provoked criticism
by many of both the outrageous behaviour by a government towards its own
citizens (Turkey) and aggression against other nations (Germany). Both types of
atrocity evoked demands for increased respect for humanity and the maintenance of
peace. The devastation of the war provided a catalyst for the first serious attempt to
crack the Westphalian notion of sovereignty. This dramatic new attitude was encapsulated
in the enthusiasm for extending criminal jurisdiction over sovereign States
(Germany and Turkey) with the aim of apprehension, trial and punishment of individuals
guilty of committing atrocities under the rubric of ‘war crimes’ and ‘crimes
against humanity’. The peace treaties of Versailles and Sevres36 envisaged liability
for individuals even if their crimes were committed in the name of their States.
However, the emerging commitment to human dignity was to be first derailed and
then swept aside by resurgent nationalistic ambitions brewed in the cauldron of sovereignty
and distilled by politics.
The Paris Peace Conference was the centre point of post-World War I efforts
to not only redefine international relations, but also to resolve Europe’s prevalent
militarism and imperialism through a series of negotiated treaties. The Paris Peace
Conference’s activities were extensive attempting to resolve virtually all points of
concern at the international level; from redrawing boundaries, granting mandates,
crafting reparations bills to dismantling empires through the recognition of nations
as independent States.37 Importantly, the Paris Peace Conference was the forumwithin whose framework, the issue of judicial accountability for the atrocities was
addressed. The Conference spawned the Allied Commission on the Responsibility
of the War and on the Enforcement of Penalties (Allied Commission).
The Commission on the Responsibilities of the Authors of War and on
Enforcement of Penalties was charged with an onerous responsibility. It held closed
meetings for two months and conducted intensive investigations.38 This work was
supposed to culminate in the charging of named individuals for specific war crimes.
Besides German responsibility for the war and its breaches of the laws and customs
of war, the commission also sought to charge Turkish officials and other individuals
for ‘crimes against the laws of humanity’39 based on the so-called Martens Clause
contained in the Preamble of the 1907 Hague Convention (IV).40 That clause states:
Until a more complete code of the laws of war has been issued, the High Contracting
Parties deem it expedient to declare that, in cases not included in the Regulations
adopted by them, the inhabitants and the belligerents remain under the protection
and the rule of the principles of the law of nations, as they result from the usages
established among civilized peoples, from the laws of humanity, and the dictates of
the public conscience.41
The Commission examined, among other offences, ‘barbarous and illegitimate
methods of warfare.’ This included the category of ‘offences against the laws and
customs of war, and the principles of humanity,’ which the French representative of
the Third Sub-Commission,42 Larnaude, insisted was ‘absolutely’ necessary to ensure
human rights.43 The Allied Commission proceeded in its investigation according tothe terms of the 1907 Hague Convention (IV).44 This Convention, part of the 1907
Second Hague Peace Conference package, was intended to give ‘a fresh development
to the humanitarian principles [towards] evolving a lofty conception of the common
welfare of humanity.’45
It was in this context that Nicolas Politis, a member of the commission and Foreign
Minister of Greece, proposed the adoption of a new category of war crimes meant to
cover the massacres committed by Turkey against its minority Armenian population
by, declaring: ‘Technically these acts [the Armenian Massacres] did not come within
the provisions of the penal code, but they constituted grave offences against the law
of humanity.’46 The majority of the commission hesitatingly concurred with Politis.47
A 5 March 1919 report by the commission specified the following violations against
civilian populations as falling within the purview of grave offences against the laws
of humanity: systematic terror; murders and massacres; dishonouring of women;
confiscation of private property; pillage; seizing of goods belonging to communities,
educational establishments and charities; arbitrary destruction of public and private
goods; deportation and forced labour; execution of civilians under false allegations of
war crimes; and violations against civilians as well as military personnel.48
The American and Japanese representatives on the Commission however,
objected to several key aspects of the Allied Commission’s report.49 The rest of the
Commission rejected the American (and Japanese) opposition, and insisted on the
insertion of penal responsibility provisions in the eventual peace treaty. Having overruled
its chairman Robert Lansing (the United States’ Secretary of State), a large
majority of the Commission agreed that at the next renewal of the armistice the
Germans should be required to deliver certain war criminals and also relevant documents;
furthermore, Allied commanders in occupied territory should be ordered tosecure such wanted persons as lived in regions under their control.
The Commission’s final report dated 29 March 1919 concluded that the war had
been premeditated by Austro-Hungary and Germany; that they had deliberately
violated the neutrality of Belgium and Luxembourg; that they had committed massive
violations of the laws and customs of war;50 and determined that ‘rank, however
exalted’, including heads of state, should not protect the holder of it from personal
responsibility.51 The Commission also recommended the establishment of an international
court composed of representatives of victors to try certain categories of
offences, but specifically recommended against charging anyone with the offence of
making aggressive war.52
In addition, the Commission’s final report, also spoke of ‘the clear dictates of
humanity’ which were abused ‘by the Central Empires together with their allies,
Turkey and Bulgaria, by barbarous or illegitimate methods’ including ‘the violation
of ... the laws of humanity.’ The report concluded that ‘all persons belonging to
enemy countries ... who have been guilty of offences against the laws and customs of
war or the laws of humanity, are liable to criminal prosecution.’53 Prompted by the
Belgian jurist Rolin Jaequemeyns, the Commission included, albeit did not sharply
highlight, the crimes which Turkey was accused of having perpetrated against her
Armenian citizens.54 It concluded that ‘[e]very belligerent has, according to international
law, the power and authority to try the individuals alleged to be guilty of [war
crimes] ... if such persons have been taken prisoners or have otherwise fallen into itspower,’55 and recommended that any peace treaty provide for an international tribunal
to prosecute war criminals.56 The commission proffered a series of acts deemed
war crimes which were subsequently codified into international law.57 The acts were
grouped into four categories: (1) offences committed in prison camps against civilians
and soldiers of the Allies; (2) offences committed by officials who issued orders
in the German campaign against Allied armies; (3) offences committed by all persons
of authority, including the German Kaiser, who failed to stop violations of laws
and customs of war despite knowledge of those acts; and (4) any other offences committed
by the Central Powers that national courts should not be allowed to adjudicate.
58
The work of the commission was to feature prominently in the subsequent treaties
of peace negotiated by the representatives of the Allies and those of Germany and
Turkey. In a dramatic break with past precedence, the peace treaties were to contain
penal provisions as opposed to blanket amnesties characteristic of past instruments.
Much of the debate among the Allies addressed issues concerning the prosecution
of Germany’s Kaiser Wilhelm II, German war criminals, and Turkish officials for
‘crimes against the laws of humanity.’59 However, because of serious disagreement
among the Allies on the desirability of a war crimes tribunal, the recommendations
of the Commission were to be subsequently incorporated only to a limited extent
into the peace treaties of Versailles and Sevres.60
After much compromise, the Allied representatives finally agreed on the terms
of the Treaty of Peace between the Allied and Associated Powers and Germany (Peace
Treaty of Versailles), concluded at Versailles on 28 June 1919.61 Besides other impor-tant matters including reparations, the treaty in Article 227 provided for the creation
of an ad hoc international criminal tribunal to prosecute Kaiser Wilhelm II for
initiating the war.62 It further provided in Articles 228 and 229 for the prosecution of
German military personnel accused of violating the laws and customs of war before
Allied Military Tribunals or before the Military Courts of any of the Allies.63
3. Beyond the Treaty of Versailles
The limited incorporation of the recommendations of the Allied Commission with
regard to penal provisions was to prove fatal because the treaty provisions pertaining
to war crimes ultimately proved inadequate in the post-war political context.64
The attempt to try war criminals failed for a number of reasons, including: the enormity
of the undertaking; deficiencies in international law and in the specific provisions
of the Peace Treaty of Versailles, which proved to be unworkable; the failure of
the Allies to present a united front to the Germans and to take strong measures to
enforce the treaty; and strong German nationalism. The victors’ lack of control over
affairs within Germany ultimately defeated the Allied attempt to bring accused war
criminals to justice.65
Subsequently, the two major provisions of the Peace Treaty of Versailles, Articles
227 and 228, were not implemented as geopolitical considerations dominated thepost-World War I era. Regarding prosecution of the Kaiser under Article 227, the
Allies blamed the Netherlands government for its refusal to extradite him and some
saw this as a way to avoid establishing a tribunal pursuant to Article 227. The Allies
were not ready to create the precedent of prosecuting a head of state for a new international
crime. Indeed, this was evident in the choice of words used by the Allies in
drafting Article 227, authored primarily by representatives of Great Britain:
The Allied and Associated Powers publicly arraign William II of Hohenzollern,
formerly German Emperor, for a supreme offence against international morality
and the sanctity of treaties. A special tribunal will be constituted to try the accused,
thereby assuring him the guarantees essential to the right of defence ... In its decision
the tribunal will be guided by the highest motives of international policy, with
a view to vindicating the solemn obligations of international undertakings and the
validity of international morality ... The Allied and Associated Powers will address
a request to the Government of the Netherlands for the surrender to them of the
ex-Emperor in order that he may be put on trial.66
Considering that the text of Article 227 does not refer to a known international
crime, but defines the purported crime of aggression in a manner more analogous to
a ‘political’ crime, the Dutch government had a valid legal basis to reject the Allies’
attempt to secure the surrender of the Kaiser for trial. Article 227, quite possibly, was
intended to fail. It offered a concession to the European masses, who saw the Kaiser
as an ogre of war, and to the French and Belgian Governments, who wanted to
humiliate Germany for initiating the war. Additionally, the notion of prosecuting the
Kaiser troubled many. In particular, the British67 (and obviously some of the Allies)
feared that their Heads of State could be exposed to similar risks, thus subverting
one of the cardinal tenets of international law – sovereign immunity.
As for the prosecutions intended by Articles 228 and 229, protracted political
tussles resulted in a lengthy delay. By 1921 when the provisions finally got a realistic
chance for implementation, the zest of the Allies to set up joint or even separate
military tribunals had waned, and new developments in Europe required that
Germany not be further humiliated. Though crimes against humanity were not ultimately
included in the list of offences drawn up by the commission,68 largely due
to objections by the United States and Japan,69 nevertheless, by 1920, the Allies hadcompiled a list of approximately 20,000 Germans who were to be investigated for
war crimes.70 These crimes included torture, use of human shields, rape, and the torpedoing
of hospital ships by German submarines.71 While there is no question that
these terrible crimes were covered by the international law of armed conflict as it
then existed, the Allies were apprehensive of trying so many German officials and
personnel as this posed a political problem for the Allies. After all, Germany was
trying to reconstruct and the extensive trials might jeopardize the stability of the
already vulnerable Weimar Republic and expose it to revolutionary Bolshevik influence.
72 ‘Many politicians argued against prosecution, preferring instead to look to the
future.’73 However, since many of these crimes were truly heinous, complete freedom
from prosecution was also unacceptable. An alternative solution was therefore proposed.
Instead of setting up an international tribunal, Germany would conduct the
prosecutions. An agreement was thus made, allowing the German government to
prosecute a limited number of war criminals before the Supreme Court of Germany
(Reichsgericht) in Leipzig instead of establishing an Allied Tribunal, as provided for
in Article 228.
In response to the Allied request to undertake prosecutions, Germany, which
had previously passed a national law to implement provisions of Articles 228 and 229
of the Peace Treaty of Versailles, passed new legislation to assume jurisdiction under
its national laws in order to prosecute accused offenders before its Supreme Court,
sitting at Leipzig as a way of placating public opinion in the Allied countries. Under
German law, the Procurator General of the Supreme Court had the right to decide
which cases would be brought to trial.74 By refusing to surrender German nationals
to the Allies for trial, the German government virtually repudiated Article 228
of the Peace Treaty of Versailles, which stipulated such a surrender. Field Marshal von
der Goltz’s scornful declaration that ‘[t]he world must realize that ... no catchpoll
shall hand Germans over to the Allies,’75 was symptomatic of the powerful resistance
among Germans to which the Allies eventually succumbed. The outcome of
the Leipzig proceedings was dismal by any standard of retributive justice. The original
list of 20,000 names was whittled down by the Allies to 896 cases.76 Of this, 884suspects were either acquitted or summarily dismissed. Only twelve trials were held;
half resulted in acquittals and half in convictions with light sentences. Allied disappointment
at the popular exaltation of the defendants and subversion of justice led
the Allies to appoint a Commission of Allied Jurists to examine the effect of the
popular response on the proceedings. The Commission unanimously recommended
to the Supreme Council that the Leipzig trials be suspended and the remaining
defendants be tried before Allied Courts. Its recommendations however failed to
yield the desired results.77
Nine months after the conclusion of the Peace Treaty of Versailles,78 a treaty of
peace was presented to Turkey on 11 May 1920. It was signed on 10 August at Sevres.79
Based on the recommendations of the 1919 Allied Commission on the Responsibilities
of the Authors of War and on Enforcement of Penalties, several articles stipulating
the trial and punishment of those responsible for the Armenian genocide were incorporated
into the Peace Treaty of Sevres.80 Under Article 226, ‘the Turkish government
recognized the right of trial and punishment by the Allied Powers, ‘notwithstanding
any proceedings or prosecution before a tribunal in Turkey.’81 Moreover, Turkey was
obligated to surrender ‘all persons accused of having committed an act in violation
of the laws and customs of war, who are specified either by name or by rank, office
or employment which they held under Turkish authorities.’82 Under Article 230 of
the peace treaty, Turkey was further obligated to hand over to the Allied Powers the
persons whose surrender may be required by the latter as being responsible for the
massacres committed during the continuance of the state of war on territory whichformed part of the Turkish Empire on 1 August 1914. The Allied powers reserved to
themselves the right to designate the tribunal which would try the persons so accused,
and the Turkish government was obligated to recognize such a tribunal.83 The Peace
Treaty of Sevres, therefore, provided for international adjudication of the crimes perpetrated
by the Ottoman Empire against the Armenians during World War I.
The Turkish response to the demand by the Allies for the surrender of arrested
criminal suspects for trial before an international tribunal or inter-allied tribunal
paralleled the German response. Not only did the Foreign Minister of the Istanbul
government object to surrendering Turkish nationals to the Allies, but Mustafa
Kemal, the head of the antagonistic Ankara government, rejected the very idea of
‘recognizing a kind of right of jurisdiction on the part of a foreign government over
the acts of a Turkish subject in the interior of Turkey herself.’84 In the end, the penal
provisions enshrined in the Peace Treaty of Sevres were to prove to be an empty,
hollow threat. With the effort at international penal process dead, the attention now
shifted to the Special Turkish Military Tribunal that was investigating war crimes
committed against the Armenians.
Ultimately, the resulting courts-martial proved a judicial fiasco, confirming
once again that a nation-state can rarely be expected to indict and convict itself.85
Despite the fact that the Istanbul trials tried dozens of defendants86 as opposed to
the dozen at Leipzig, both outcomes were rather uninspiring. Though the Turkish
trials were successful in documenting the crimes that had been committed against
the Armenian people, they failed dismally, however, in punishing the war criminals.
At the abrupt ending of the Turkish courts-martial, only three minor officials were
executed.87 Significantly though, the fact that even these three officials were foundguilty and executed, encapsulated the shift in international justice from impunity to
retributive justice. Another significant feature of the Turkish domestic process was
that the Turkish authorities did invoke norms concerning the laws of humanity and
crimes against humanity to justify the prosecution and punishment of the Turkish
war criminals.88
The greatest milestone by the Turkish Courts-Martial was made in its verdict
at the end of the Yozgat trial series. The Tribunal asserted that the perpetrators had
violated the principle of ‘human sentiments’ [hissiyat-l insaniye].89 These invocations,
which went beyond Turkish municipal law and possess attributes of international
law, may best be explained as attempts to apply a general principle of law that recognises
certain crimes against humanity that need not be criminalised by domestic
statute in order to be punishable.90 Although ultimately ineffectual, the prosecution
of the Turkish leaders implicated in the Armenian genocide before Turkish Courts
Martial, which resulted in a series of indictments, verdicts and sentences, was of
extraordinary, though unrecognised, significance. For the first time in history, deliberate
mass murder was designated ‘a crime under international law,’91 and adjudicated
in accordance with international norms within the ambit of a domestic penal
code, thus substituting national laws for the rules of international law.
The Leipzig and Istanbul trials exemplified the sacrifice of justice on the altars
of international and domestic politics.92 The treaties commitment to try and punish
offenders if Germany and Turkey failed to do so was never carried out. The political
leaders of the major powers of that time were more concerned with ensuring the
future peace of Europe than pursuing justice.93 Indeed, it was a common belief that
World War I was ‘the war to end all wars,’ and that the League of Nations wouldusher a new world order that would prevent future wars.94
The League of Nations represented an ambitious move to curb sovereign military
excesses and guarantee world peace. It was during its chequered existence that two
issues of significance which continue to plague the international community crept
into the international agenda – terrorism and the limitation on the use of military
force. With the formation of the League of Nations, the freedom of states to resort
to military force became more and more restricted. The right of self-defence gained
in significance displacing the expansive right of self-preservation. It was, however,
the matter of terrorism rather than the aggressive use of force that would generate
mild but renewed interest in the establishment of an International Criminal Court.
The birth of modern terrorism during the French Revolution represented practices
of mass repression employed by the state, before metamorphosing into a revolutionary
mechanism in the late 19th to early 20th century.95 By the 1930s, modern
terrorism had undergone a rebirth to re-emerge in its original form.96 It was now used
less to refer to revolutionary movements and violence directed against governments
and their leaders, and more to describe the practices of mass repression employed by
totalitarian states and their authoritarian leaders against their own citizens.
Despite the rebirth of terror as an intrinsic component of Fascist and Nazi governance,
it remained an integral operational component of many shadowy, Radićal
organizations in various parts of Europe. In the face of lack of ample military power
or political legitimacy various Radićal nationalist organizations used terrorism as a
major instrument in their overall strategy. It was through the actions of these groups
that terrorism came to the League (and international) agenda amidst a background
of the undermining of the collective security regime which the League had as the
central pivot to curb aggression and other unwarranted uses of force.
On 9 October 1934, Mussolini, Italy’s fascist leader told cheering masses at thePiazza del Duomo in Milano amidst a forest of green-white-red flags and Fascist
standards, that the failure of Italy’s wartime Allies to concede to Italy her rightful
place in the sun after World War I was a grave mistake.97 Importantly, the speech had
an edge against Yugoslavia: ‘We cannot maintain a passive attitude toward neighbouring
countries. Our attitude is either friendly or hostile toward them.’ On the
same day that the Mussolini made the speech, a double assassination was committed
in Marseille: King Alexander I of Yugoslavia and Jean Louis Barthou, the Minister
of Foreign Affairs of France, were killed by fanatic Croatian assassins98 from the
Ustaši, the terrorist and extreme nationalist Croatian fascist organization.99
The most important consequence of the double assassination was that terrorism
became an active and emotive concern for the international system. This induced the
League of Nations in 1937 to adopt the first convention on terrorism the Convention
for the prevention and punishment of terrorism.100 Simultaneously, a convention for
the creation of an international criminal court to enforce the terrorism convention
was presented for adoption and ratification. Twenty-four states became signatories
to the terrorism Convention, though it is telling that only one state, India, ratified it.
The Criminal Court Convention did not receive a single ratification!101
Naturally in the volatile and charged nationalistic and militaristic atmosphere
in Europe at the time, terrorism was not viewed as a separate generic issue that
demanded attention in the same way that attempting to preserve the crumbling collective
security regime and/or reinforce military alliances was. In any case Europe
(and the world) was already heading down the slippery slope of excessive state hegemonic
ambition that would lead to World War II in less than three years.
The weak processes of international criminal justice following World War I and
the dysfunctional collective regime of the League of Nations not only failed to deter
the military leaders who initiated World War I, but enhanced their cynicism. It
was to take another round of carnage and destruction in World War II before the
international community broke through the bastions of State sovereignty to make
individuals responsible before international tribunals for their own violations of
international criminal law at the international military tribunals at Nuremberg and
Tokyo Tribunals.
