Implementing International Humanitarian Law: From the AD Hoc Tribunals to a Permanent International Criminal Court

By Yusuf Aksar | Go to book overview

2

The Creation of the International Criminal Court

Introduction and Historical Background

One of the most serious defects to enforcing the rules of law is the lack of an international criminal court to try individuals charged with the violations of international humanitarian law The only way for the enforcement of international humanitarian law is the prosecution and punishment of individuals who are responsible for violations of international humanitarian law either through a created international criminal court or domestic courts.The need for such a court has been accepted and discussed by international scholars for almost 100 years. 1


Before the First World War

The idea of creating an international criminal court goes back to the First Hague Convention for the Pacific Settlement of International Disputes of 1899 which includes provisions establishing 'The Permanent Court of Arbitration'. 2 However, it has never been effective due to the fact that States parties to the Convention were unwilling to surrender a part of their sovereignty to such an arbitration court. 3 In addition to the emergence of the concept of setting up an international criminal court, the most important

1. Bridge, J.W, 'The Case for an International Court of Criminal Justice and the Formulation of International Criminal Law', in Mark W. Janis (ed.), International Courts for the Twenty-First Century (Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1992), p. 221; Cassese, A., 'On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law' (1998), 9 EJIL, p. 4; Gianaris, W.N., 'The New World Order and the Need for an International Criminal Court' (1992/1993), 16 Ford. Int. 'l L. J., p. 88. In particular, for the problems that an international criminal court would address, see pp. 109-11; Kutner, L., 'Politicide: the Necessity of an International Court of Criminal Justice' (1972), 2 Denv. J. Int. 'l L. & Pol'y, p. 55.

2. Arts. 20-9. Hague Peace Conference, Final Act, Conventions and Declarations, and the text of Convention for the Pacific Settlement of International Disputes (29 July 1899) are available in Benjamin B. Ferencz, An International Criminal Court-A Step Toward World Peace, A Documentary History and Analysis, Vol. I (London, Rome, New York: Oceana Publications, 1980), p. 103.

3. Ferencz, pp. 8-9.

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