A New Court to Uphold International Criminal Law:
The World Moves Forward without the United States
by David Krieger*, April 2002

Since the devastating carnage of World War II, a war that left some 50 million people dead, far-sighted individuals have worked for a world in which the force of law will prevail over the law of force. The first step toward realizing this vision was the establishment of the Nuremberg Tribunals to hold leaders of the Axis powers to account for crimes committed under international law. This unprecedented step on the part of the Allied powers was led by the United States.

The American Supreme Court Justice, Robert Jackson, who became the US chief prosecutor at Nuremberg, argued in his opening statement: "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."

Following the trials, the United Nations General Assembly adopted the Principles of Nuremberg, principles of individual accountability that were meant to serve as a standard and a warning to potential violators of international law, no matter how high their position. The first principle stated: "Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment."

Principle two clarified that the perpetrator of a crime under international law was not exempted from responsibility by the fact that the crime was not subject to penalty under the internal law of his or her nation. The third principle made clear that even Heads of State and responsible government officials were to be held accountable for acts constituting crimes under international law. The fourth principle provided that superior orders were not a defense to the commission of crimes under international law.

Principle five allowed that anyone charged with a crime under international law was entitled to a fair trial. The sixth principle set forth the following punishable crimes under international law: crimes against peace, war crimes and crimes against humanity. The seventh and final principle made complicity in any of these crimes itself a crime under international law.

Despite the success of the Nuremberg trials and those held in Tokyo, as well as the adoption of the Nuremberg Principles, for more than forty years the idea of creating a permanent International Criminal Court languished. Then in 1989, the leader of the small island nation of Trinidad and Tobago, Arthur N. R. Robinson, put the issue back on the United Nations agenda.

In the 1990s the idea of creating the Court gathered momentum at the United Nations. Ad Hoc Tribunals were established for the crimes committed in the former Yugoslavia and in Rwanda. And in 1998 delegates from the nations of the world met in Rome and agreed upon a statute for an International Criminal Court. It was agreed in Rome that when 60 nations had ratified the treaty establishing the Court, it would come into existence.

In April 2002, far sooner than was predicted, the treaty surpassed the needed 60 ratifications, and is now set to enter into force on July 1, 2002. This is a great milestone for the world. The Principles of Nuremberg can now be made applicable to crimes committed in the Nuclear Age, and no longer will leaders of nations be able to hide from accountability for the most heinous of crimes under international law.

Somehow, though, between the Nuremberg Trials and the twenty-first century, the United States has gone from being the strongest advocate of individual accountability under international law to an opponent of the Court. President Clinton signed the treaty establishing the Court on December 31, 2000, just weeks before leaving office. The Bush administration, however, has spoken out against the Court, has informed the United Nations that it is nullifying its signature on the treaty, and has indicated that it does not intend to support the Court. Richard Prosper, the US ambassador at large for war crimes issues, stated, "If the prosecutor of the ICC seeks to build a case against an individual, the prosecutor should build the case on his or her own effort and not be dependent or reliant upon US information or cooperation."

When it comes to international law, the US appears to practice a double standard. It doesn't seem to want the same standards of international criminal law to apply to its citizens as are applied to the citizens of the rest of the countries in the world. Fortunately, the world is moving forward with or without the US. Among the US friends and allies that have already ratified the treaty establishing the Court are Austria, Belgium, Canada, France, Germany, Italy, Norway, Spain, Sweden and the UK.

Hans Correll, the UN undersecretary for legal affairs, remarked, "A page in the history of humanity is being turned." It is shameful that the United States, once passionate about international justice, will not be on this new page of international justice that gives renewed life to the Nuremberg Principles.

*David Krieger is president of the Nuclear Age Peace Foundation.