NYUJ Intl L & Pol
(1991), 373.
38
M Ratner and J Abrams,
Accountability for Human Rights Atrocities in International Law,
1997, Oxford:
OUP, p 164.
International Criminal Law
336
Nuremberg Tribunal and the judgment of the Tribunal’.
39
In the following year, the
Assembly requested the International Law Commission (ILC) to formulate the
Nuremberg judgment and Charter provisions into a set of principles.
40
The ILC
considered this request during its first session in 1949 and concluded that, since
these principles had already been affirmed by the General Assembly, its task should
not be to express its appreciation on their content, but rather to formulate them as
substantive principles of international law.
41
The report of special rapporteur,
Spiropoulos, was adopted by the Commission, which subsequently forwarded its
formulation of the seven principles,
42
together with their commentaries to the General
Assembly.
43
The Assembly asked Member States for their comments and requested
the ILC to prepare a Draft Code of Offences Against the Peace and Security of
Mankind.
44
The Commission’s work in preparing the Draft Code of Offences was undertaken
in two distinct phases, from 1947 to 1954, and the second from 1982 to 1996.Although
it was successful in formulating and convincing States to adopt the ICC Statute in
1998, completion of the Draft Code is still eluding it. The ILC had made such progress
by 1951 that it submitted the Draft Code to the General Assembly, but in light of the
comments received, it resubmitted its final version in 1954.
45
The Assembly felt,
however, that the definition of aggression raised unsurpassed problems, and decided
to postpone consideration of the Code until further work was done on the question
of aggression.
46
A definition on aggression was adopted with consensus some 20
years later in 1974,
47
and the Commission once again suggested that it might resume
examination of the Code. This was done in 1981, when the Assembly invited the
Commission to examine the Code as a matter of priority, taking into account ‘the
results achieved by the process of the progressive development of international law’.
48
The Commission resumed its work in 1982 and by 1996 it had adopted a final set of
39
GA Res 95(1), GAOR Resolutions, First Session, Pt II, p 188. Significantly, in 1963, the Lord Chancellor
told the UK Parliament that the Nuremberg Principles were ‘generally accepted among States and
[had] the status of customary international law’. Hansard, HL, Vol 253, col 831, 2 December 1963;
BPIL 1963, p 212.
40
GA Res 95(I) (11 December 1946).
41
YBILC (First Session, 1949), p 282.
42
Principle I, Any person who commits an act which constitutes a crime under international law is
responsible therefore and liable to punishment; Principle II, The fact that internal law does not
impose a penalty for an act which constitutes a crime under international law does not relieve the
person who committed the act from responsibility under international law; Principle III, The fact
that a person who committed an act which constitutes a crime under international law acted as a
Head of State or responsible government official does not relieve him from responsibility under
international law; Principle IV, The fact that a person acted pursuant to order of his government or
of a superior does not relieve him from responsibility under international law, provided a moral
choice was in fact possible to him; Principle V, Any person charged with a crime under international
law has the right to a fair trial on the facts and law; Principle VI, Crimes against Peace, War Crimes
and Crimes against Humanity are punishable as crimes under international law; Principle VII,
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as
set forth in Principle VI is a crime under international law.
43
YBILC (Second Session, 1950), Vol II, p 374.
44
GA Res 488(V) (12 December 1950).
45
YBILC (Sixth Session, 1954), Vol II, p 149.
46
GA Res 897(IX) (4 December 1954).
47
GA Res 3314(XXIX) (14 December 1974).
48
GA Res 36/106 (10 December 1981).
Chapter 12: Nuremberg, Tokyo and Modern International Criminal Law
337
20 draft Articles constituting the Code of Crimes Against the Peace and Security of
Mankind,
49
a number which constituted a substantial reduction from the initial
proposals and drafts that had been presented since 1982. The Commission, however,
made it clear that the inclusion of certain crimes in the Code did not affect the status
of other crimes under international law, nor did the adoption of the Code preclude
the further development of this area of law. As to the implementation of the statute,
the Assembly was presented with two options: adoption of an international
convention, or incorporation into the statute of an international criminal court. Since
the Preparatory Committee for the establishment of the ICC had already commenced
its work, the Assembly drew the attention of the participating States to the relevance
of the Draft Code.
50
On 17 July 1998, the Statute of the ICC was adopted, without the Code having
ever entered into force. It is more than evident, however, that one of the significant
catalysts for the adoption of the ICC Statute as well as the establishment of the ad
hoc tribunals for Yugoslavia and Rwanda was the work of the ILC on the Draft Code.
From a legal point of view, the possible adoption of the Code in light of the ICC
would be relevant only for those countries that had not ratified the ICC Statute,
while it would also reaffirm the substantive law of that statute and other international
conventions. Its application might even instigate the extension of the ICC’s
jurisdiction to encompass other international crimes, or bind those States that are
not parties to particular multilateral criminal conventions. Overall, the Draft Code
represents an example of the variety of processes that exist within the science of
international law. The ILC worked diligently on a ‘difficult’ set of rules on the basis
of State consent, waiting patiently for the time they matured into solid concepts, but
did not insist on their adoption in the form contemplated in its reports, but in any
form the international community could reach agreement on. This turned out to be
the ICC, but it could very well have been the Code itself.
49
See ILC Draft Code Commentary, UN Doc A/51/10 (1996); 18 HRLJ (1997), 96.
50
GA Res 51/160 (16 December 1996).
CHAPTER 13
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