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Aggression as a Crime under International Law and the Prosecution of Individuals by the Proposed International Criminal Court

Published online by Cambridge University Press:  21 May 2009

Justin Hogan-Doran  and
Bibi T. van Ginkel
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Extract

For the first time in more than thirty years, no doubt due to a fresh wave of genocidal warfare in Europe, the likelihood of the establishment of a permanent International Criminal Court has re-emerged. One of the crimes with which the proposed jurisdiction of the Court is to be conferred is the international crime of aggression.

Type
Research Article
Information
Netherlands International Law Review , Volume 43 , Issue 3 , December 1996 , pp. 321 - 351
Copyright
Copyright © T.M.C. Asser Press 1996

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Footnotes

*

Mr Hogan-Doran is a graduate of the University of Sydney and is a Law Clerk at the International Criminal Tribunal for the former Yugoslavia. The author wishes to state that the views expressed in this article are entirely his own and do not represent the views of the ICTY.

**

Ms. Van Ginkel is a recent graduate of Utrecht University.

References

1. Hereafter, ‘Draft Statute’. See Arts. 20–24 (Part 3: Jurisdiction of the Court) of the Draft Statute, 42 NILR (1995) pp. 212–213.

2. Suikkari, S., ‘Debate in the UN on the ILC's Draft Statute for an International Criminal Court’, 64 Nordic JIL (1995) p. 211Google Scholar. This problem has yet to be resolved by the Preparatory Committee which met in April and August 1996: Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume 1: ‘Proceedings of the Preparatory Committee during March-April and August 1996’, UN GAOR, Supp. 22,UN Doc. A/51/22, paras. 65–69. Cf., Gilmore, W., ‘Secundum Legem: Progress Toward the Creation of an International Criminal Court’, International Judicial Observer, No. 3 (09 1996) pp. 2–3, at p. 3.Google Scholar

3. See Crawford, infra n. 80 and accompanying text. Cf., ILC, infra n. 47, p. 84: ‘Individual responsibility for [the crime of aggression] is intrinsically and inextricably linked to the commission of aggression by aState. The rule of international law which prohibits aggression applies to the conduct of a State in relation to another State … [T]he violation by a State of the rule of international law prohibiting aggression gives rise to the criminal responsibility of the individuals who played a decisive role in planning, preparing, initiating or waging aggression. The words “aggression committed by a State” [in the Draft Article] clearly indicate that such a violation of the law by a State is a sine qua non condition for the possible attribution to an individual of responsibility for a crime of aggression.’

4. See, for example, Art. 1 of the ILC Draft Articles on State Responsibility, 1979 ILC Yearbook Vol. II Part 2, p. 374.

5. Chorzów Factory Case (Indemnity), Merits PCIJ Series A, No. 17 at p. 29Google Scholar.

6. Corfu Channel Case, Merits ICJ Rep. (1948) p. 18Google Scholar.

7. Brownlie, I., International Law and the Use of Force by States (1963) p. 150Google Scholar.

8. See ‘Historical Survey of the Question of International Criminal Jurisdiction’, A/CN.4.7. Rev. 1 (hereafter ‘Historical Survey’); F. Munch, ‘State Responsibility in International Criminal Law’, in Bassiouni, M.C. and Nanda, V.P., A Treatise on International Criminal Law (1973) at pp. 143–155Google Scholar; Cf.,M. Spinedi, ‘International Crimes of States: The Legislative History’, in Cassese, A., Weiler, J., Spinedi, M., eds., International Crimes of State: A Critical Analysis of The ILC's Draft Article 19 on State Responsibility (1989)Google Scholar.

9. See Art. 231 of the 1919 Treaty of Versailles, 13 AJIL (1919) Suppl., p. 151, which imposed on Germany the responsibility for ‘causing all the loss and damage to which the Allied Associated Governments and their nationals have been subjected as a consequenceof the war imposed upon them by the aggression of Germany and her allies’. Cf., Art. 232.

10. See Bassiouni and Nanda, op. cit. n. 8, pp. 159–291.

11. For a more thorough analysis of these issues, see Cassese et al., eds., op. cit. n. 8.

12. 12. UNGA Res. 2625 (XXV). See Rosenstock, in 65 AJIL (1971) p. 713.

13. E.g., the resolutions relating to: the Israeli strike on Osirak (UNGA Resolution 37/18‘… Strongly condemns Israel for the escalation of its acts of aggression in the region; Condemns Israel's threat to repeat such attacks …’); and the US intervention in Grenada (UNGA Resolution 38/7: ‘… Deeply deplores the armed intervention in Grenada, which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of that state …’).

14. As part of its continuing work to codify and progressively develop international law. On the ILC generally, see Sinclair, I., The International Law Commission (1987)Google Scholar.

16. See M. Mohr, ‘The ILC's Distinction Between ‘International Crimes” and ‘International Delicts” and Its Implications’, in Spinedi, M. and Simma, B., eds., United Nations Codification of State Responsibility (1987) p. 114 et seq.Google Scholar The most recent report by Special Rapporteur Arangio-Ruiz supports the distinction and overall approach: Fifth Report on State Responsibility, UN Doc. A/CN.4/453 and Adds. 1–3 (1995); 1995 ILC Yearbook Vol. II Part 1.

17. R. Ago, ‘Fifth Report on State Responsibility’, 1976 ILC Yearbook Vol. II Part 1, p. 26, para. 80.

18. See Mohr, loc. cit. n. 16, p. 14, at pp. 16-17. Such an approach was adopted by most States in the UNGA Sixth Committee. Historically speaking, the distinction is based on the shift from traditional international law — with its classic system of jus ad bellum — to the new system of law based on the UN Charter and its institutional mechanisms for preserving international peace and security, protecting territorial sovereignty and denying States the right to make ‘war’.

19. After all, even a breach of a ius cogens obligation will not necessarily be an international crime (1976 ILC Yearbook Vol. II Part 2, p. 120, para. 62), nor that of an erga omnes obligations (see the comments of Ushakov, and Ago: 1976 ILC Yearbook Vol. I, p. 71, para. 33; and p. 74, para. 12, respectively).

20. Draft Art. 19 was adopted by the International Law Commission in 1976: 1976 ILC Yearbook Vol. I, p. 253.

21. Ibid., Art. 19(3)(a), ILC Draft Articles on States Responsibility. Other crimes listed include preventing self-determination (colonialism), serious breaches of international safeguards of human beings (apartheid, slavery and genocide), and breaches of obligations to preserve the human environment (e.g., massive pollution): Art. 19(3)(c),(d) and (e) respectively.

22. Although each type of breach is equally wrongful under international law: 1976 ILC Yearbook Vol. II Part 2, p. 118, para. 58.

23. According to Art. 19(4), ‘any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict’; Ibid. n. 20, Art. 19(4).

24. 1976 ILC Yearbook Vol. I, p. 253, Commentary. As can be seen from this comment, and from various Special Rapporteur's reports, there are close links between individual criminal responsibility and international crimes of States under Art. 19. Nevertheless, the link made is for the sake of definition, and does not support the aimof criminalising State responsibility: Special Rapporteur Thiam, ‘Third Report on the Draft Code of crimes against the Peace and Security of Mankind’, UN Doc. A/CN.4/387; 1982 ILC Yearbook Vol. II Part I, para. 54 et seq. See also Mohr, loc. cit. n. 16, pp. 140–141.

25. Spinedi loc. cit. n. 8, Part I, p. 138.

26. 1961 Single Convention on Narcotic Drugs, 520 UNTS p. 204; 1963 Tokyo Convention on Offences and Other Acts Committed on Board Aircraft, UKTS (1969) p. 126, Cmnd. 4230; 1971 Montreal Convention for the Suppression of Unlawful Acts agsint the Safety of Civil Aviation, 10 ILM (1971) p. 1151; 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 13 ILM (1974) p. 42; 1974 European Convention on the Non-Applicability of Statutory Limitation to Crimes against Humanity and War Crimes (ETS No. 82); 1979 International Convention against the Taking ofHostages, 18 ILM (1979) p. 1456; 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, UN Doc. E/CONF.82/15 Corrs 1–2 (1988); 28 ILM (1989) p. 497.

27. 1929 Geneva Convention dealing with the Suppression of Counterfeiting Currency; 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 10 ILM (1971) p. 133; 1984 UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; GA Res. 39/46, 39th Sess., UN Doc. A/39/51, Supp. 51 at p. 197 (1984); 1988 IMO Rome Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 27 ILM (1988) p. 668; 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries, GA Res. 44/34, Annex, UN GAOR, 44th Sess., Supp. No. 49 at p. 306, UN Doc. A/44/49 (1989); 29 ILM (1990) p. 89 (not in force).

28. 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS p. 277; 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I), 75 UNTS p. 31; 1949 Geneva Convention for the Amelioration of the Condition of the Wounded Sick and Shipwrecked of Armed Forces at Sea (Geneva Convention II), 75 UNTS p. 85; 1949 Geneva Convention Relative to the Treatment of Prisoners of War, of 12 August 1949 (Geneva Convention III), 75 UNTS p. 135; 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), 75 UNTS p. 287.

29. History of the United Nations War Crimes Commission, and the Development of the Law of War, compiled by the UN War Crimes Commission (1948) p. 242, n. 1 (hereafter ‘History of UNWCC’)Google Scholar. The example cited is that of Conradin von Hohenstaufen, tried and sentenced to death in Naples in 1268. See R. Bierzanek, ‘The Prosecution of War Crimes’, in Bassiouni and Nanda, op. cit. n. 8, Vol. I, pp. 559–560. Similarly, the first war crimes (other than aggression) trial was that conducted by the Holy Roman Empire in 1474, in which Peter von Hagenbach was condemned for violations of the ‘laws of God and man’: Bassiouni, M.C., A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, 2nd edn. (1993)Google Scholar, Introduction; Cf., Schwarzenberg, C., ‘The Breisach War Crime Trial of 1474’, Manchester Guardian (28 09 1946)Google Scholar (noted in Bassiouni, M.C., International Criminal Law: A Draft International Criminal Code (1980) p. 31, n. 50Google Scholar).

30. History of UNWCC, pp. 237, 238. For the full report of the Commission see 14 AJIL (1920) p. 95.

31. Literally no penalty without a crime, no crime without a law.

32. Its adoption of Art. 227 of the Peace Treaty arraigning William II of Hohenzollern was grounded unconvincingly, from a legal standpoint, on ‘the highest motives of international policy’ and ‘the international morality’.

33. See especially an examination of the question of the establishment of such a body by an Advisory Commission of Jurists in 1920: Historical Survey, ‘Memorandum submitted by the Secretary-General of the United Nations’, p. 8 et seq. On concerns of the period over the principle of nulla poena sine lege, see especially Wehberg, H., The Outlawry of War (1931) p. 107Google Scholar: ‘We might go further [than excluding States from participation in the League] and demand an accounting from those physical persons who are responsible for the war. But the condemnation should then be pronounced by an impartial court of justice in accordance with the principle “nullapoena sine lege”’. See also Politis, N., The New Aspects of International Law (1928) p. 37 et seq.Google Scholar; Mannheim, H., War and Crime (1941).Google Scholar

34. Rifaat, A.M., International Aggression: A Study of the Legal Concept — Its Development and Definition in International Law (1979) p. 139 n. 55.Google Scholar

35. London Agreement for the Establishment of an International Military Tribunal (8 August 1945), 5 UNTS p. 251. The Agreement contains the Charter of the International Military Tribunal.

36. Established by the Special Proclamation of the Supreme Commander for the Allied Powers establishing an International Military Tribunal for the Far East, Tokyo, 19 January 1946 which also contains the Charter (amended by General Orders No. 20 of 26 April 1946). On which see Pal, R., International Military Tribunal for the Far East: Dissenting Judgment (1953)Google Scholar.

37. History of UNWCC, p. 182. Only the Czechoslovak delegate of the four member subcommittee took the opposing view.

38. Once again, based upon their instructions from their respective governments, the majority of the Commission's members adopted the minority view although the French and US delegates supported the majority position, Ibid. p. 183.

39. Aide-Mémoire from the United Kingdom, April 23,1945, contained in the Reportof Jackson, Robert H., United States Representative to the International Conference on Military Trials (US Dept. of State, 1945) p. 19.Google Scholar

40. Aide-Mémoire from the Soviet Government, 06 14, 1945Google Scholar, Ibid. pp. 61–63. See also Pompe, C. A., Aggressive War An International Crime (1953) p. 192Google Scholar.

41. Sottile, A., The Problemofthe Creationofa Permanent International Criminal Court (1966) p. 24 (Fr.), p. 23 (Eng.) transGoogle Scholar.

42. Pal, op. cit. n. 36, p. 30.

43. Opinion of Röling, Justice B., quoted in Minear, R.H., Victor's Justice: The Tokyo War Crimes Trial (1971) p. 63Google Scholar.

44. Ibid. p. 64.

45. Rifaat, op. cit. n. 34, p. 165 n. 189.

46. Rifaat, op. cit. n. 34, p. 165 nn. 191–92.

47. See Clark, R.S. and Lediakh, I. A., ‘The Influence of the Nuremberg Trial on the Development of International Law’, in Ginsburgs, G. and Kudriavtsev, V.N., eds., The Nuremberg Trial and International Law (1990) Ch. IXGoogle Scholar. This influence is seen most strikingly in the ILC's Commentary to Article 16 (‘Crime of Aggression’) of the Draft Code of Crimes Against the Peace and Security of Mankind: ILC, Report of the International Law Commission on the Work of its Forty-Eighth Session, 6 05–26 07 1996Google Scholar, UN GAOR, 51st Sess., Supp. No. 10, UN Doc. A/51/10, p. 83 (1996)CrossRefGoogle Scholar.

48. UN GAOR, 5th Sess., Supp. 12, UN Doc. A/1316, 11–14 (1950)Google Scholar.

49. See above n. 28. Cf., Lemkin, R., ‘Genocide as a Crime Under International Law’, 41 AJIL (1944) p. 145Google Scholar; Bassiouni, M.C., ‘International Law and the Holocaust’, 9 California Western JIL (1979) pp. 201, 248Google Scholar.

50. UN GAOR, 9th Sess., Supp. 12, UN Doc. A/12645 (1954)Google Scholar; ILC, Historical Survey of the Question of International Criminal Jurisdiction, UN Doc. /CN.4/7/Rev. 1 at 18 (1949)Google Scholar.

51. UN GAOR, 9th Sess., Supp. 9, UN Doc. A/2693 (1954) pp. 11–12Google Scholar; Johnson, D.H.N., ‘The Draft Code of Offences Against the Peace and Security of Mankind’, 4 ICLQ (1955) p. 445Google Scholar.

52. For which the ILC established a special Working Group in 1992: 1992 ILC Yearbook Vol. I Part 2, Annex, p. 16, paras. 98–Google Scholar. See its first Report Ibid. pp. 58–77, paras. 1–165. Further reports were released in 1993 (1993 ILC Yearbook Vol. II Part 2, Report: p. 100 et seq., Establishment of Working Group: p. 20) and 1994 (1994 ILC Yearbook Vol. II Part 2, Report: p. 76 et seq.; Establishment of Working Group: p. 15). See Crawford, J., ‘The ILC's Draft Statute for an International Criminal Tribunal’, 89 AJIL (1994) pp. 140–152CrossRefGoogle Scholar; Crawford, J., ‘The ILC Adopts a Statute for an International Criminal Court’, 89 AJIL (1995) pp. 404–416CrossRefGoogle Scholar. Requested pursuant to UNGAOR 49/53. Cf., Ad Hoc Committee on the Establishment of an International Criminal Court, Comments Received Pursuant to Paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court, Report of the Secretary-General, 20 03 1995, A/AC.244/1, Part III, para. 18Google Scholar.

53. Dinstein, Y., ‘The Distinction between War Crimes and Crimes Against Peace’, 24 Israel YHR (1995)Google Scholar.

54. UNGAOR, 9th Sess., Supp. 9(A/2693)pp. 11–12. According to Art. 1: ‘offences against the peace and security of mankind, as defined in this code, are crimes under international law, for which the responsible individuals shall be punished’.

55. Criminal responsibility of private individuals under international law was to arise under Art. 2, para. 13.

56. Res. 3314(XXIX), 14 December 1974; UN GAOR, 29th Sess., Supp. 31, p. 142; UN Doc. A/Res/3314. See the text in the Annex.

57. See Stone, J., Conflict through Consensus, United Nations Approaches to Aggression (1977)Google Scholar; and by the same author, ‘Holes and Loopholes in the 1974 Definition of Aggression’, 71 AJIL (1977) p. 224CrossRefGoogle Scholar.

58. Ibid.

59. Res. 44/39. See Suikkari, loc. cit. n. 2, p. 206. In 1990, the first Working Group was established with the mandate to draw up a draft statute: 1990 ILC Yearbook Vol. II Part 1, p. 13.

60. Any application of the Resolution's definition to individuals is problematic due to the fact that the term ‘State’, as defined in the explanation to Art. 1, includes member and non-member States.

61. Art. 2(4) of the UN Charter prohibits the threat or use of force, with Art. 39 giving the Security Council complete discretion to determine whether or not aggression has taken place. The Charter does not provide any further guidance on a definition of ‘aggression’.

62. Art. 4 of the 1974 Definition of Aggression indicates that the list in Art. 3 is not exhaustive.

63. Harris, D.J., Cases and Materials in International Law, 4th edn. (1991) p. 880Google Scholar.

64. Stone, op. cit. n. 57, pp. 53–55.

65. Ibid. p. 56.

66. Ibid. p. 43.

67. Dinstein, loc. cit. n. 53, p. 7.

68. USA v. Von Leeb et. al. (Nuremberg, 1948)Google Scholar, 1 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council (No. 10) p. 486

69. Bassiouni, M. C., A Draft Intenational Criminal Code and Draft Statute for an International Criminal Tribunal (1987) p. 100Google Scholar.

70. See above n. 68.

71. ILC, loc. cit. n. 47, pp. 83–84. Cf., Dinstein, loc. cit. n. 53, at p. 7. See also Brand, G., ‘The War Crimes Trials and the Laws of War’, 26 BYIL (1949) pp. 414, 420–421Google Scholar.

72. Report of the ILC, 2nd session, 1950 ILC Yearbook Vol. II, pp. 364, 376: ‘…only highranking military personnel and high State officials can be guilty of waging war of aggression’. Cf., ILC, loc. cit. n. 47, p. 83:

‘The perpetrators of an act of aggression are to be found only in the categories of individuals who have the necessary authority or power to be in a position potentially to play a decisive role in committing aggression. These are the individuals whom article 16 [“Crime of Aggression”] designates as “leaders” or “organizers”, an expression that was taken from the Nürnberg Charter. These terms must be understood in the broad sense, i.e., as referring, in addition to the members of a Government, to persons occupying high-level posts in the military, the diplomatic corps, political parties and industry, as recognized by the Nürnberg Tribunal, which stated that: “Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen” (Nürnberg Judgement, p. 55).’

73. Report of the ILC, 43rd session, 1991 ILC Yearbook Vol. II Part 1, p. 101.

74. International Military Tribunal (Nuremberg), Judgment (1946), 1 Trial of Major War Criminals before the International Military Tribunal, p. 171, at p. 224Google Scholar

75. Dinstein, loc. cit. n. 5, p. 9.

76. In re Zimmerman (the Netherlands, Special Court of Cassation, 1949), 16 ILR (1950) pp. 552–553Google Scholar; Dinstein, Y., The Defence of ‘Obedience to Superior Orders’ in International Law (1965) pp. 185–187Google Scholar.

77. Dinstein, loc. cit. n. 53, at p. 8.

78. Art. 23(2). See Crawford, (1995), loc. cit. n. 52, p. 411Google Scholar.

79. Much of the academic debate on this exact issue was conducted by the ILC in its ongoing formulation of a Draft Code of Crimes against the Peace and Security of Mankind. Draft Art. 23 (on aggression) enunciated in 1988 is mirrored as to substantive effect by the articles on aggression espoused by the Ad Hoc Committee and formed the starting point of their analysis.

80. Draft Code of Crimes against the Peace and Security of Mankind, Ninth Report of the Special Rapporteur (Doudou Thiam), 1991 ILC Yearbook Vol. I, UN Doc. A/CN.4/SER.A/1991, p. 6 at para. 17.

81. Crawford, (1994), loc. cit. n. 52, p. 147Google Scholar.

82. See the view of Graefrath at the 2208th Meeting, 1991 ILC Yearbook Vol. I, UN Doc. A/CN.4/SER.A/1991, p. 11, para. 17.

83. See, for example, Carpenter, A.C., ‘The International Criminal Tribunal and the Crime of Aggression’, 64 Nordic JIL (1995) no. 2, p. 223 at p. 233Google Scholar.

84. Art. 24, UN Charter.

85. The major concern is, of course, not that the Security Council would apply the criteria where it was inapplicable, but that it would not apply the necessary criteria where it was applicable. To that end, as Alain Pellet commented at a meeting of the ILC when discussing the issue: ‘It might well happen that the Security Council would not determine a given act to be an act of aggression even when the criteria for the crime of aggression were met. Such cases might even occur frequently, if only by reason of the right of veto. It would be shocking if, because a State had the right of veto, its leaders or those of a State which it protected were treated differently from the leaders of some other smaller or more isolated State. The practice of applying a double standard was certainly reprehensible in all cases, but it was understandable from the political standpoint; it was not understandable from a legal standpoint, and even less so from a judicial standpoint … That was indeed the principle applied by the ICJ in its 1986 decision in the case between Nicaragua and the USA. The Court had certainly not refused to consider the question whether one of the States parties to the dispute had been guilty of an act of aggression which had not been determined by the Security Council’. Comments by Pellet at the 2209th meeting, 1991 ILC Yearbook Vol. I, UN Doc. A/CN.4/SER.A/1991, p. 16, paras. 15–16. Similarly, Hayes, at the 2212th Meeting, commented: ‘It had been pointed out in the debate that that was a non-judicial approach, relying as it did on a positive determination on a question, vital to the proceedings, by a non-legal body in which, moreover, five States had a veto, something that enabled them to shield their nationals or others from the court's adjudication’: 1991 ILC Yearbook Vol. I, UN Doc. A/CN.4/SER.A/1991, p.38, para. 36.

86. Carpenter, loc. cit. n. 83. On this second point, see the comments by the Soviet representative at the ILC, Barsegov, who noted: ‘… the fear expressed by some members that conferment of the function of determining an act of aggression upon a criminal court, albeit an international court, might ultimately lead to the destruction of the existing system of international law and order. For States Members of the UN, the Charter represented the supreme source of contemporary international law, and any decision in the matter by a criminal court would be without force if it ran counter to a decision by the Security Council … The problem was, of course, a difficult one, but in seeking a solution it was more advisable to adjust to new realities in international relations than to ignore or destroy the existing legal order’. 2212th Meeting, 1991 ILC Yearbook Vol I, UN Doc. A/CN.4/SER.A/1991, pp. 39–40, para. 47.

87. Documents initialled in Dayton, Ohio on November 21, 1995 by the Participants in the Bosnia Proximity Peace Talks. In contrast, Lord Howe insisted that at all times the issues of prosecution and peace were kept separate (BBC, 19 June 1995).

88. D'Amato, A., International Law and Political Reality (1995) p. 208Google Scholar. D'Amato also points out that' Only the Council itself could trade its right to prosecute war criminals … for a final peace settlement …’

89. Ibid. p. 211.

90. Although only as a means of analysis. D'Amato disavows support for this idea but nevertheless provides argument to support it: op. cit. n. 88, Ch. 12, especially at p. 214.

91. Ibid. p. 214.

92. Silber, L. and Little, Allan, The Death of Yugoslavia (1995), pp. 269–271Google Scholar.

93. For example, Judge Pal quotes a letter from Kaiser Wilhelm II of Germany to the Austrian Emperor Franz Josef which in part read: ‘My soul is torn, but everything must be put to fire and sword; men, women and children, and old men must be slaughtered and not a tree or house left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years’. Pal, op. cit. n. 36, pp. 620–621.

94. D'Amato, op. cit. n. 88, p. 211.

95. Generally, see Gowlland-Debbas, V., ‘The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, 88 AJIL (1994) p. 643, passimCrossRefGoogle Scholar.

96. Questions of Interpretation and Application of the 1971 Montreal Convention Arisingfrom the Incident at Lockerbie (Libya v. UK; Libya v. US), Provisional Measures, ICJ Rep. (1992) p. 3, at p. 166Google Scholar (Judge Weeramantry, Dissenting Judgment — dissenting on other grounds). See, to similar effect, Oda, Judge in the Case Concerning Militar and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US), Merits, ICJ Rep. (1986) at p. 237Google Scholar.

97. Ad Hoc Committee, op. cit. n. 52, Part III, para. 18 (emphasis added).

98. See especially, Certain Expenses of the United Nations (Article 17 paragraph 2 of the Charter), ICJ Rep. (1962) p. 151, at p. 163Google Scholar. See also: United States Diplomatic and Consular Staff in Tehran (US v. Iran), Ibid.

99. United States Diplomatic and Consular Staff in Tehran (US v. Iran), ICJ Rep. (1980) p. 3, at pp. 21–22.

100. See, for example: Evans, G., Cooperating for Peace (1993) passimGoogle Scholar.

101. SC Res. 808 (22 February 1993) UN Doc. S/RES/808 (1993): ‘Convinced that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim [i.e. end the grave human rights violations in the territory of the Former Yugoslavia] to be achieved and would contribute to the restoration and maintenance of peace’ (emphasis added).

102. Quoting Bismarck, Politis stated: ‘“[C]e ne sontjamais les nations quiveulent la guerre; ce ne sont toujours que depetites minorites” …C'est leplus grand spectacle d'immoralité offert par la communuté Internationale. C'est aussi le plus grand danger auquel le paix du monde est exposée… Si lapunition des auteurs du crime de guerre est indispensable, elle ne peut être obtenue que par une jurisdiction internationale’. Politis, N., Les nouvelles tendances du droit international (1927) pp. 129, 130, 131Google Scholar.

103. Brownlie, Contrast I., International Law and the Use of Force by States (1963) p. 275Google Scholar, with Bowett, D.W., Self-Defence in International Law (1958) pp. 188–192Google Scholar. Art. 51 of the UN Charter by referring to the right of self-defence ‘if an armed attack occurs’ would seem to preclude anticipatory or preventive strikes: see Kunz, J.L., ‘Individual and Collective Self-Defense in Article 51 of the Charter of the United Nations’, 41 AJIL (1947) p. 878CrossRefGoogle Scholar.

104. Ibid. Pan II, para. 6.

105. See Gowlland-Debbas, loc. cit. n. 95, at pp. 651-653.

106. Kelsen, H., Principles of International Law, Tucker, R.W., ed., 2nd rev. edn. (1966) p. 526Google Scholar; Higgins, R., ‘Policy Considerations and the International Judicial Process’, 17 ICLQ (1968) pp. 58, 61, 74CrossRefGoogle Scholar; Gowlland-Debbas, loc. cit. n. 95.

107. Lachs, M., ‘Crimes de guerre et delits politiques’, RDI (1945) p. 213Google Scholar.

108. Acts of the Sixth International Conference for the Unification of Private Law (1935) p. 417Google Scholar.

109. See Sottile, op. cit. n. 41, pp. 62-64 (English translation).

110. Ad Hoc Committee, op. cit. n. 52, Part III, para. 18.

111. Carpenter, loc. cit. n. 83, p. 233.

112. Prosecutor v. Dusko Tadic, Case No. IT–94–1–T. The Trial Chamber retired, to consider its verdict, on 28 November 1996.