In 1949 the then Secretary-General of the United Nations, Trygve Lie, submitted a memorandum for discussion at the meeting of the UN International Law Commission. It was prepared in response to continuing pressure from some UN member states for the UN to make the case for the creation of international criminal court.
The founding nations of the UN had considered this possibility while drawing up the UN Charter. They rejected it because it became clear that the Soviet Union and several other states were opposed and would not join the UN if this power were included in the Charter.
The very fact that this memorandum was brought forward – in 1949, four years after the the UN Charter was unanimously approved by all member states – provides the clearest evidence that the Charter did not include any power for the UN to create an international court. Since the Charter has never been amended in any way to this day, it follows that the UN had no power to establish a UN criminal court when it created the ICTY in 1993.
The extract from the memorandum set out below provides a good snapshot of the discussions that took place. The conclusion can only be that The Hague Tribunal was created illegally and operated illegally throughout its lifetime.
Extract from Section III “Consideration of International Criminal Jurisdiction in the United Nations”
When the discussion on the question of an international criminal court was resumed in the Committee at its 19th meeting on 5 June 1947, paragraph 5 of a memorandum submitted by the representative of the United States, Mr. Jessup, was taken as the basis of discussion.1 This paragraph read as follows:
“5. With respect to implementing the Nurnberg principles by the establishment of an international criminal court or of a criminal chamber in the International Court of Justice, it may be pointed out that, if our Committee is not to undertake discussion of substantive provisions regard- ing the Nurnberg principles, a fortiori it should not undertake discussion as to what means should be adopted with a view to enforcing substantive provisions not yet agreed upon. The question of jurisdiction and appropriate means of enforcement can obviously be considered more appropriately after the substantive provisions are settled. For these reasons, it is believed that the question of enforcement of the Nurnberg principles by the establishment of an international criminal court or otherwise should be deferred for consideration and study by the Commission of Experts.1 However, in view of the importance of the proposals of the French delegation, the report of our Committee should contain special mention of this subject and should recommend that the attention of the Commission of Experts be called thereto.”
The representative of Poland, Mr. Bramson, observed that he could not agree to the United States proposal, as crimes against peace could be treated only after a war. In times of peace it was for the Security Council to take action when peace was threatened. Therefore, there was no need to create in times of peace an international tribunal which could only function after a future war.2
The representative of Yugoslavia, Mr. Bartos, objected to the suggestion for an international criminal court on the ground that it was contrary to the Charter of the United Nations. The creation of a criminal chamber in the International Court of Justice would violate Article 34 of the Statute of the Court, which provided that only States could be parties in cases before the Court. Consequently a recommendation to the International Law Commission that it study the possibility of creating a criminal chamber would amount to suggesting to that Commission that it alter the Statute. Similarly, the setting up of an international criminal court as an organ of the United Nations would be impossible under the provisions of Article 7 of the Charter. As to the creation of an independent international criminal court, this was a matter for the Governments to take action on and not for the United Nations. It was urged, moreover, that the question was beyond the terms of reference of the Committee.
As against these arguments of the Yugoslav representative, the French representative urged that the International Law Commission was perfectly entitled to make a recommendation to the General Assembly with regard to the giving of criminal jurisdiction to the International Court of Justice, although this would require an alteration of the Statute of the Court. As to whether an independent international criminal court should be set up, he had never intended that the Committee make a choice between the two possibilities. He further argued that there was a close connexion between the Nurnberg principles and an international criminal jurisdiction. The General Assembly resolution referred to both the charter and the judgment of the Nurnberg Tribunal,1
The representative of the Netherlands, Mr. de Beus, observed that he agreed that the Committee was not competent to decide on the creation of an international criminal court or its organization; but he considered that it was entitled to discuss the desirability of the creation of such a court.2
At the 21st meeting of the Committee, the representative of the Netherlands submitted a proposal as follows:
“That the Committee requests the rapporteur to draw the attention of the General Assembly to the fact that the implementation of the principles of the charter of the Nurnberg Tribunal and its judgment, as well as the punishment of other international crimes which may be recognized as such by international legislation, may render desirable the existence of an international judicial authority to exercise jurisdiction over such crimes.”
The Netherlands proposal met with objections on the part of the representatives of the Union of Soviet Socialist Republics (Mr. Koretsky), the United Kingdom (Mr. Brierly), Yugoslavia and Poland. It was pointed out by these representatives that the question was beyond the terms of reference of the Committee. Furthermore, it was argued that, as the London agreement and Nurnberg charter annexed thereto clearly showed, it was for the national Jurisdictions of the various States to judge war criminals. Only those criminals were to be tried by the Nurnberg Tribunal whose crimes had no particular geographical location. The Committee had decided not to take up the substance of the Nurnberg principles. The Netherlands proposal, if adopted, would be contrary to this decision. The Netherlands proposal mentioned that implementation of the Nurnberg principles might render desirable the existence of an international criminal court. However, there were many other points which such implementation might make desirable as, for instance, a regulation concerning the enforcement of such judgments on international criminals.
The representative of the United States agreed that, as the Committee had already decided to refrain from certain discussions connected with the Nurnberg principles, it would be inconsistent to mention criminal procedure in this matter. He therefore proposed that, in the report of the Committee, the French proposal should merely be mentioned in the context of the Committee’s decision that it could not discuss the substance of the Nurnberg principles and therefore refrained from a discussion of the French representative’s document.
The Netherlands proposal, on the other hand, was supported by the majority of the Committee. It was argued that the Committee was concerned with the development of international law and that the creation of an international criminal jurisdiction was part of such development. The fact that the Committee was only to study plans for the formulation of the Nurnberg principles did not preclude it from expressing an opinion on the desirability of an international criminal court. The Nurnberg Tribunal was the first international criminal court, at least in intention. The question of an international criminal court was so closely connected with the Nurnberg principles that its mention was inevitable. The Netherlands representative emphasized that his proposal was intended merely to draw the attention of the General Assembly to the suggestion made and did not embody any recommendation to the International Law Commission. It was certainly permissible, he contended, to draw the attention of the General Assembly to such a question. As regards the argument that under the London agreement the jurisdiction of national criminal courts was maintained over war criminals, it was pointed out that an international criminal court was needed to deal with those crimes for which in 1945 an international court had been considered necessary.
As to the observation that the Nurnberg principles applied only to crimes committed during the war, it was argued that the terms of reference did not limit the Committee to consideration of these crimes only, since the Committee had before it the question of genocide which could also be committed in times of peace. Independently of the Nurnberg principles, the Committee had considered the matter of an international criminal code for international crimes. If this code were to be applied only by national courts, the result would be a widely diversified interpretation of its provisions and there would be no cour de cassation which could ensure the uniformity of judicial decisions. An international criminal court was therefore necessary, and the very fact of having an international criminal code would render it indispensable to settle conflicts of jurisdiction, to ensure observance of the rule of res judicata, and finally to ensure uniformity in the interpretation and application of the international criminal code.
The question was finally resolved by the inclusion in the report of the Committee of paragraph 3 which read as follows;
“3. The committee also decided by a majority to draw the attention of the General Assembly to the fact that the implementation of the principles of the Nurnberg Tribunal and its judgment, as well as the punishment of other international crimes which may be recognized as such by international multipartite conventions may render desirable the existence of an international judicial authority to exercise jurisdiction over such crimes.
“The representatives of Egypt, Poland, the United Kingdom, the Union of Soviet Socialist Republics, and Yugoslavia desired to have their dissent from this decision recorded in this report. In their opinion the question of establishing an international court falls outside the terms of reference from the General Assembly to the Committee.”
The report of the Committee on the Progressive Development of International Law and its Codification on the plans for the formulation of the principles recognized in the charter and judgment of the Nurnberg Tribunal was submitted to the second session of the General Assembly and was referred to the Sixth Committee. Although the report was discussed in the Sixth Committee and in its Sub-Committee 2, no reference was there made to the establishment of an international criminal jurisdiction.