Punishing Serious Violations of International Law

  • de Brouwer, Anne-Marie, (Researcher)
  • Boot, M., (Researcher)
  • van Sliedregt, E., (Researcher)
  • Hirsch Ballin, Ernst (Researcher)
  • van Genugten, W.J.M., (Principal Investigator)

Project: Research project

Description

The Treaty on Genocide, passed in 1948 by the General Assembly of the United Nations, contains lofty provisions on combating genocidal practices. However, it did not provide for any supervisory mechanism. It is true that the Treaty gives the opportunity to institute 'such in-ternational penal tribunal as may have jurisdiction with respect to those Con-tracting Parties which shall have accepted its jurisdiction' (Article VI), but the penal tribunal could not be set up for many years, particularly because of the East-West division, but also because of an inability to properly define the crimes over which the Court would have jurisdiction. We may think here of the difficult debates on the term 'aggression'. However, partly under the influence of the setting up of two ad hoc tribunals (those for the former Yugoslavia and Rwanda), the discussion in the International Law Commission moved up a gear in 1993 to 1994, leading to the finalization of a Draft Statute for an International Criminal Court in 1994. After an extensive debate at intergovernmental level during the years 1995 to 1998, the Statute was passed in the summer of 1998 by a large majority of states (120 for and 7 against, including the USA and China, and 21 abstentions). It was agreed that the Court should have jurisdiction in the field of genocide, war crimes and crimes against humanity, with 'aggression' probably to be added in future. The Statute also provided for a Public Prosecutor with a clear and more or less independent role: 'The Prosecutor may initiate investigations proprio motu (Y)' (Article 15). This can only be stopped by the UN Security Council, if the five members with the power of veto are in agreement on this, and if they also have sufficient support to achieve a majority decision.
Further work will be done on the Statute in the next few years, with attention to the elements of crimes, and the rules of procedure, while also waiting for the Statute to come into effect (after sixty ratifications). The research project aims to follow developments and comment on them as soon as appropriate. This follows on from the Ph.D.-projects on the material jurisdiction of the International Criminal Court (Boot), on individual criminal liability for violations of international humanitarian law (Van Sliedregt), and on war crimes against women (de Brouwer).
StatusFinished
Effective start/end date1/01/0031/12/04