Code of Crimes against the Peace and Security of Mankind

The establishment of the International Military Tribunal (IMT) and the International Military Tribunal of the Far East (IMTFE), respectively, in 1945 and 1946, evidences the problem of enforcing international criminal law without having an international criminal code or norms contained in positive international law.

The IMT charter and IMTFE statute provide for three crimes, namely, "crimes against peace," "war crimes," and "crimes against humanity." The first of these was not reflected in positive international law, the second was reflected in conventions embodying customary international law, and the third was an emerging international custom but without precedent in the practice of states. Furthermore, the charter and statute, as well as the jurisprudence, of these two tribunals brought about significant changes in the areas of immunity of heads of state, command responsibility, the defense of obedience to superior orders, and the defense or mitigation arguments of tu quoque.

These new developments in the international law of criminal responsibility challenged the "principles of legality," which are well established in the "general principles of law recognized in civilized nations" (Article 38 of the Statute of the International Court of Justice). These principles require that there be no crime without a criminal law, that there be no penalty without law, and that both the crime and the penalty not apply retroactively. To remedy the situation, the General Assembly (G.A.) of the United Nations adopted a resolution in 1946 affirming the "Nuremberg Principles," and in 1947 it adopted a resolution requesting that the International Law Commission (ILC) codify international crimes. That task was given to the ILC in a mandate for the preparation of a Draft Code of Offences Against the Peace and Security of Mankind. At the time, the mandate was envisaged as including the four major international crimes, namely, "crimes against peace," "war crimes," "crimes against humanity," and "genocide," which was embodied in a convention adopted by the G.A. in 1948. The mandate was broad enough to encompass other international crimes that might affect peace and security and to elaborate a draft statute for an international criminal court that would apply the Codes of Offences.

In the early 1950s the cold war and Realpolitik thwarted these efforts. However, because the international community was at that time still under the sway of the Nuremberg and Tokyo trials, as well as other Allied and national proceedings, an abrupt ending or modification of the ILC's 1947 mandate was not politically feasible. Instead, a more subtle approach was developed to hamper progress on the codification of international crimes, paradoxically, by the leading powers of the Eastern and Western blocks. This was done through bureaucratic techniques. Between 1950 and 1952 the ILC's 1947 mandate was curtailed by removing from it "crimes against the peace," which by then had become known as "aggression," and the establishment of an international criminal court. Both of these questions were attributed to two separate committees. The G.A. established a committee of states to define aggression, which was completed in 1974. It also established a committee of experts nominated by governments to prepare a draft statute for an international criminal court that produced a first text in 1951, amended in 1953.

The ILC's work on the Draft Code of Offences was completed in 1954 but did not include aggression, which was still being debated by a special committee. As a result, the 1954 Draft Code of Offences was tabled by the G.A. until such time as the special committee on aggression had completed its definition of that crime. In the meantime, the 1953 Draft Statute for an International Criminal Court had been tabled by the G.A. because the 1954 Draft Code of Offences had not been ready in 1953. The cascading effect of tabling each initiative because another one was still pending was a political work of art.

The 1954 Draft Code of Offences should have procedurally been taken up again in 1974, when the G.A. adopted by consensus, but not by a vote, the definition of aggression as established by the Special Committee appointed in 1952. But it was not until 1978 that the G.A. gave the ILC a new mandate, which it renamed in 1988 as the Draft Code of Crimes Against the Peace and Security of Mankind. Once again, because of the existing conditions of the cold war, the undertaking that had been delayed for thirty-eight years was not allowed to move at a rapid pace. But the ILC, wittingly or unwittingly, abetted this situation by deciding that precisely because of the passage of all these years, the 1954 Draft Code of Offences and the definition of aggression needed to be reexamined and a new rapporteur was appointed who, after an initial period of some years, came up with an ambitious plan to expand the number of crimes contained in the 1954 Draft Code. From 1978 to 1991 the ILC worked, obviously without great haste, at the development of a new Draft Code of Crimes, which by then contained twenty-six categories of crimes, as opposed to only four, namely, aggression, genocide, crimes against humanity, and war crimes.

The newly proposed crimes were, with respect to some of them, farfetched, and drafted in a manner that contravened accepted practices in most legal systems with respect to codification of crimes. In short, the 1991 Draft Code of Crimes used ambiguous, and more political than legal terminology. For example, the new 1991 Draft Code of Crimes considered among the new international crimes what it vaguely defined as "colonialism," "mercenarism," and "crimes against the environment." As a result of this overreaching and legal imprecision in the definition of these supposed new international crimes, the G.A.'s reaction was to send the project back to the ILC for further consideration. The technical legal flaws of the 1991 Draft Code served the purposes of those who opposed the codification effort.

In 1993 and 1994, the Security Council adopted, respectively, the statutes of the International Criminal Tribunals for former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), which included genocide (as defined in the 1948 convention), war crimes (as defined in the grave breeches of the Geneva Convention and as contained in the Laws and Customs of War), and crimes against humanity (approximately as defined in the Nuremberg Charter). As a result of these developments, as well as the clearly perceived rejection by most states of the 1991 Draft Code of Crimes, the ILC produced a revised and shortened text in 1996 that eliminated most of the crimes contained in the 1991 draft, leaving only aggression (as defined in the 1974 G.A. resolution), genocide (as defined in the 1948 convention), war crimes (as defined in the grave breeches of the Geneva Convention, and as contained in the Laws and Customs of War, but without defining them), and crimes against humanity (as defined in the statutes of the ICTY and ICTR, though there are slight differences between the two definitions).

Notwithstanding this modified and shortened text, as of 2004 the G.A. had failed to adopt the Draft Code of Crimes Against the Peace and Security of Mankind as proposed by the ILC. The long-awaited codification of international criminal law has not materialized, even though it has been in the making for more than a half century. At first, the reasons were the cold war and Realpolitik; more recently, it was opposition by the United States that assumed in the early 2000s a hegemonic role in world affairs, coupled with an aversion for international criminal justice norms and institutions to which its nationals, particularly its senior political and military leaders, could be subjected. The laudable efforts that began in the wake of the IMT and IMTFE withered away, and no official contemporary efforts to codify international crimes have developed, even though the need for it is more dire in the early years of the twenty-first century than it was fifty years ago.

SEE ALSO Crimes Against Humanity; International Law; International Law Commission

BIBLIOGRAPHY

Bassiouni, M. Cherif. (1987). A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal. Boston: Martinus Nijhoff.

Ferencz, Benjamin (1975). Defining International Aggression. Dobbs Ferry, NY: Oceana.

Johnson, D. H. N. (1955). "The Draft Code of Offences Against the Peace." International & Comparative Law Quarterly 4:462–463.

M. Cherif Bassiouni