The Nuremberg Promise and
the International Criminal Court
by David Krieger*, December 1998

The Nuremberg Promise was the hope that someday there would be standards and effective mechanisms to hold all individuals accountable for acts constituting the most serious crimes under international law. At Nuremberg, justice was imperfectly done. The victors applied standards of accountability to the leaders of the defeated nations that they refused to apply to themselves. Nonetheless, Nuremberg established standards of accountability that were applied to Nazi leaders for crimes of unimaginable magnitude. The promise of Nuremberg was that these standards would become applicable to all leaders of all countries, and would be applied fairly by a strengthened international community. The manifestation of the Nuremberg Promise was imagined to be a permanent International Criminal Court (ICC) capable of upholding and enforcing these standards.

For nearly fifty years after the Nuremberg Trials, progress on creating an International Criminal Court was virtually non-existent. The international community was bogged down in the rivalries of the Cold War and its proxy wars. With the end of the Cold War, however, the climate changed, and proposals for creating an International Criminal Court were suddenly back on the international agenda. It was the small island nation of Trinidad and Tobago that actually brought the need for establishing the Court back to the United Nations General Assembly Legal Committee out of their concern for bringing international narcotics criminals to justice. And then, in the early to mid-1990s, a major breakthrough was achieved in setting up temporary International Criminal Tribunals for the former Yugoslavia and for Rwanda.

With extraordinary leadership from Abdul Koroma of Sierra Leone, the United Nations General Assembly Legal Committee began drafting a statute for a permanent International Criminal Court. To the surprise of many analysts, the work at the United Nations on a permanent ICC actually culminated in a Conference of Plenipotentiaries in Rome during the summer of 1998, and from this conference came the Rome Statute on an International Criminal Court.

For a number of years high-level representatives of the United States appeared eager to create a permanent ICC. This was not surprising since the United States was one of the major proponents of the Nuremberg Trials. As the Rome Conference grew closer, however, the United States grew more reluctant to commit itself to the creation of the ICC. Its price for participating in the Court was the assuredness that no U.S. military personnel would be held to account by the Court for the commission of war crimes. When the United States failed to get its way on this point, it ended up joining only a handful of countries, including China, Iraq and Libya, in opposing the creation of the Court.

Was the U.S. position reasonable? Of course not. The U.S. was pushing for a double standard -- one rule of law for itself, and another set of rules for everyone else. The international community, including most of the U.S.'s closest allies, joined the vast majority of states in voting to establish the Court. As has happened in many others areas of international law, including recently and prominently the Landmines Treaty, the U.S. chose not to join the treaty if it could not dictate its terms.

At Nuremberg there were three classes of crimes: crimes against peace, war crimes, and crimes against humanity. The Rome Statute lists four classes of crimes in Article 5: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. One of the biggest problems with the Rome Statute is that it allows parties to the treaty to opt out of being subject to the Court's jurisdiction for war crimes for a period of seven years. Thus, once the Rome Statute enters into force, states will have seven years to decide whether or not to accept the jurisdiction of the Court for war crimes. This could potentially allow individual leaders to escape the Court's jurisdiction for war crimes by opting out of the war crimes provision.

The Rome Statute has also not defined the crime of aggression, which at Nuremberg was referred to as a crime against peace, and the Court will not have jurisdiction over such crimes until a definition is agreed to by the international community. One cannot help recall the twenty-year struggle at the United Nations to come up with an agreed upon definition of aggression. Apparently this definition does not have wide enough support for purposes of including it in the Rome Statute, in part because it lacks sufficient precision for use in a criminal statute.

The Rome Statute provides in Article 13 that the Court may take jurisdiction over cases by referral of a State Party, by referral of the Security Council, or by initiation of the Prosecutor. However, Article 12 of the Statute provides that the Court can take jurisdiction over cases initiated by either a State Party or by the Prosecutor only if the State where the alleged conduct occurred or the State of which the accused person is a national are Parties to the Statute or have accepted the jurisdiction of the Court. This means that when an accused leader commits crimes against his own people, as Pol Pot or Saddam Hussein have done, the Court can only take jurisdiction if the State is a Party to the Statute, has accepted the Court's jurisdiction or if the Security Council refers the case to the Court. These loopholes create a potential shield of impunity for criminal leaders whose States would be unlikely to become Parties to the treaty or do not otherwise accept the Court's jurisdiction.

The delegates to the Rome Conference also considered providing jurisdiction to the Court if the State that had custody of a suspected criminal had ratified the treaty. This would have allowed a country like the UK to have turned over to the Court a suspected violator of crimes against humanity and war crimes, such as a future Augusto Pinochet, if the UK was a party to the treaty and had custody of the suspected criminal. However, since the Rome Statute fails to provide for this, a suspect apprehended in the UK or any other country Party to the Statute would not be able to turn him or her over to the Court unless the State where the acts occurred or the State of nationality of the accused had ratified the treaty. The future Pinochet, assuming his crimes took place in a State that had not ratified the Statute, could not be turned over to the Court by the UK or any other country that apprehended the suspect.

It should be noted that the Rome Statute provides in Article 24 that "No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute." This provision would preclude the Court's jurisdiction over Pinochet, Idi Amin, Saddam Hussein, and Henry Kissinger for all criminal acts committed before the Statute enters into force.

Will the Court fulfill the Nuremberg Promise? The Court's limitations, brought about by compromise and fear on the part of States, will prevent it from completely doing so. On the other hand, the very existence of the ICC will be a step forward. Each time that someone is brought to account for crimes under the Court's jurisdiction, it will strengthen the international norms against committing such crimes.

The most important function of the Court, however, is not to punish, but to prevent such crimes. And it is only by knowing with some certainty that the commission of the statutory crimes will result in punishment that the crimes will be prevented. So long as the jurisdiction of the Court is not universal, aggression is not defined, and States can opt out of the war crimes provisions, there will still be a broad shield of immunity for international criminals to hide behind.

The decisions made recently in the UK to arrest Augusto Pinochet come closer to fulfilling the Nuremberg Promise than the Rome Statute of the ICC. The arrest and potential extradition of Pinochet for crimes against humanity sends a strong message to all potential violators of international law. The human rights activist and Nobel Peace Laureate, Jose Ramos Horta, has called the arrest and potential extradition of Pinochet the most important event in human rights since the adoption of the Universal Declaration of Human Rights fifty years ago.

The Nuremberg Promise was the promise of courage in holding to account the greatest of the world's criminals. Nuremberg stood for individual accountability and the tearing down of the shield of State protection for criminal leaders. At Nuremberg it did not matter whether the acts committed were legal under the law of the state where they were committed. It only mattered that the acts were illegal under international law. It did not matter that the accused person was a state official at the time of commission of the crimes. It did not matter that the accused was a Head of State or Head of Government. It did not matter that the person was only following orders. It only mattered that the person violated international criminal law. Nuremberg was about doing justice in the hope that the application of individual accountability would prevent future crimes of such magnitude.

The Statute of the ICC will strengthen the place of the individual in international law. The Statute provides in Article 26 for jurisdiction "over natural persons," and dictates that "[a] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment...." These terms of reference are important in providing for individual responsibility for violations of international law. The Statute further provides in Article 27 that it shall "apply equally to all persons without any distinction based on official capacity." This Article goes on to state, "In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence." These Articles will bring into international statutory law the most central of the Nuremberg Principles, and thus solidify the responsibility as well as accountability of the individual under international law.

Among other notable features of the Rome Statute is the provision that none of the crimes within the jurisdiction of the ICC shall be subject to any statute of limitations. Thus, an individual who commits any of the crimes under the Statute will be subject to arrest and trial for as long as he or she lives.

In some respects the most important words in the Rome Statute are found in the Preamble which raises a cry for "an end to impunity" and states that "it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes." The Preamble further states that the Court is established "to guarantee respect for the enforcement of international justice."

The Rome Statute itself does not quite match up to the lofty ideals expressed in its Preamble. But it does provide standards for States to live up to in their own enforcement of international law. Perhaps the Rome Statute has already begun to play a role in the life of the international community, even before its entry into force, by providing a beacon that was followed by the judges in Spain who asked for the extradition of Pinochet and those in the UK who appear poised to grant that extradition.

* David Krieger is president of the Nuclear Age Peace Foundation. He can be contacted at Nuclear Age Peace Foundation, 1187 Coast Village Road, Suite 123, Santa Barbara, CA 93108-2794.