Musing on the International Criminal Court

The development of an International Criminal Court are rooted in the Charter of the International Military Tribunal dated 8 August 1945 and Protocol Rectifying Discrepancy in the Charter dated 6 October 1945, Article six of the Charter broadly defined three classes of offenses prosecutable under internation law.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the
accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in
the formulation or execution of a common plan or conspiracy to commit any of
the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The text of article six provided the basis the Convention on the Prevention and Punishment of Genocide adopted in 1948 and the Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal adopted two years later in 1950 reaffirmed the existence of classes of offenses that are anathemas to civilized societies founded on the rule of law

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any
of the acts mentioned under (i).
(b) War crimes: Violations of the laws or customs of war
include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war, of persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities, towns, or
villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on
political, racial or religious grounds, when such acts are done or such
persecutions are carried on in execution of or in connexion with any
crime against peace or any war crime.

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.

Principles III and IV of the Principles ofInternational Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950 reaffirmed the doctrine of CommandResponsibility and the concept of agency flowing therefrom as outlined inArticles Seven and Eight of the Charter of the International Military Tribunal which read as follows:

Article 7.

The official position of derfendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 8.

The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

The related doctrines of command responsibility and agency as outlined in the documents of the Tribunal are closely linked to the doctrine of Respondeat superior found in the common law.

I find it ironic, paradoxical and hypocritical that United States, the nation that advocated pushed hardest for command responsibility provisions in the Charters of the International Military Tribunal; the International Military Tribunal for the Far East; and the International Criminal Tribunal for the former Yugoslavia, refused to ratify the Charter for the international Criminal Court because, of fears that the Command Responsibility and Agency provisions could be utilized to prosecute Americans.


It seems to me that we Americans have forgotten these words:

We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable Rights,
that among these are Life, Liberty and the pursuit of Happiness

The American goverment seems to believe that their position endows them with the ability to act in a manner that to my mind is contrary to the Declaration of Independence of the United States, The Constitution of the United States and the obligations of the United States as member of the international community.

In my mind the ratification of the Statute of the International Criminal Court would serve as benefit to United States because the Statute provides a degree of protection not currently accessible to the American expatriates living abroad.