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Laying the Groundwork for International Humanitarian Law

Politics and Justice in Creating the International Criminal Court

Overview: War Crimes Tribunals and International Rights

From Vengeance to Justice at Nuremberg

How Rape Became a Crime against Humanity

In a century that has witnessed a dramatic advance in the development of international human rights law, three events stand out: The Nuremberg trials, the fall of communism and the formation of the International Criminal Court (ICC-UN, to distinguish it from the International Chamber of Commerce).

Nuremberg and Beyond

The Nuremberg war crimes trials were perhaps the watershed event in the history of human rights during the 20th century. In light of the Nazi atrocities of World War II, people began to see that international justice, based merely in the notion of “war crimes” was not sufficient. Something more was needed: Something beyond the doctrine of absolutely sovereign states.

If global human rights were to be protected, they had to depend on something beyond the political interests of states. Protecting a commitment to “never again” required a global commitment to a global human rights regime, based in the international rule of law and universal values.

Human Rights and the Cold War

The tenuous alliance between the Soviet Union and the Allied states, which made the Nuremberg trials possible, ended shortly after World War II. The world entered the Cold War and the possibility of a global human rights regime seemed to disappear.

However, a door had been opened at Nuremberg. The development of international human rights law was underway. The Cold War changed the character of the language of human rights since the values of communist societies and Western democracies were different. But the language of universal human rights continued to develop, albeit along parallel (different?) tracks.

1. Western human rights law focused on political and civil rights (such as the right to free speech and religion)
2. Socialist and Communist countries focused on economic and social rights (for instance, food, housing, right to work).

But, this “schizophrenic” character of global human rights did not last.

The Fall of Communism

Even before the fall of communism, a sort of synthesis in human rights language was beginning to take place. This is evident in the development of international human rights with a more collective focus, for example, the recent development of the rights of indigenous peoples. In recent decades, this has become even more pronounced. The language of international human rights shifted from an either-or political discourse to a more unified language of global justice.

The fall of communism at the end of the 1980s brought about an end to the Cold War and opened up the possibility of a global human rights regime.

Impetus: Genocide in the Late 20th Century

The development of human rights language was not merely a theoretical nicety. There was an urgent need to develop and expand a global human rights regime and not merely in language, but in organizational solidity.

The fall of communism opened up simmering ethnic hatred in the Balkans. Resurgent Serbian and Croatian nationalism lead to a program of ethnic cleansing. The post-Nazi commitment to “never again” was in jeopardy.

Though somewhat tentative at first, the international community responded. The UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (the ICTY) and charged it with investigating and prosecuting crimes against humanity in the Balkans. The going was tough in the beginning: The ICTY was underfunded and it was unclear whether nations would back up the efforts of the tribunal.

The International Criminal Court

However, this Nuremberg-like tribunal achieved some spectacular results, including the first indictment and prosecution of a sitting head of state, as well as the successful prosecution of rape as a crime against humanity.

The ICTY was not a permanent tribunal, however. Though it had many characteristics of an independent international tribunal, it was still dependent for its existence on a temporary mandate. Something more was needed in order to push a global human rights regime forward.

The International Criminal Court grew out of the hard-won successes of the ICTY. In the summer of 2002, the ICC-UN opened its office in the Hague and officially began work July 1. However, the contours of the legal field of international humanitarian rights are yet to be defined. Even though the U.S. opposes the existence of the ICC-UN, a global human rights regime continues to develop.