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War Crimes Trials: Could there be a Nuremberg 2.0
I posed some questions to an expert on the International Criminal Court (ICC).
Where did the authority come from to hold the Nuremberg trials post WWII?
The authority to hold the Nuremberg trials after World War II came from the Allies, which consisted of the United States, the Soviet Union, Great Britain, and France. The trials were held under the jurisdiction of the International Military Tribunal (IMT), which was established by the Allied powers in August 1945.
The IMT was given authority to prosecute and try the major war criminals of the European Axis powers, including political and military leaders who were accused of crimes against peace, war crimes, and crimes against humanity. The trials were held in Nuremberg, Germany, from November 1945 to October 1946.
The legal basis for the Nuremberg trials was established by the London Agreement, which was signed by the four Allied powers in August 1945. The agreement laid out the principles and procedures for the prosecution and trial of war criminals, and established the IMT as the judicial body to conduct the trials.
The Nuremberg trials were significant because they established the principle that individuals, including high-ranking government officials, could be held accountable for their actions in international law, even if those actions were committed on behalf of a state. The trials also helped to establish the framework for future international criminal tribunals and the development of international criminal law.
Does that legal basis to hold trials still exist?
Yes, the legal basis for holding international criminal trials for war crimes, crimes against humanity, and genocide still exists today. The Nuremberg trials played a significant role in establishing the framework for international criminal law and paved the way for the creation of the International Criminal Court (ICC) in 2002.
The ICC is a permanent international criminal court that has jurisdiction over individuals accused of the most serious international crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC is based on the Rome Statute, which is an international treaty that has been ratified by over 120 countries.
In addition to the ICC, there have been other international criminal tribunals established to prosecute individuals for international crimes, including the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone (SCSL).
Overall, the legal basis for holding international criminal trials for international crimes is firmly established and recognised by the international community as an important means of ensuring accountability for the most serious crimes that impact the international community as a whole.
How are offenders referred to the ICC for prosecution?
There are several ways in which offenders can be referred to the International Criminal Court (ICC) for prosecution.
- State Referral: A State that is party to the Rome Statute, the treaty that established the ICC, can refer a situation in which international crimes may have been committed to the ICC for investigation and prosecution. For example, in 2005, the government of Uganda referred the situation in northern Uganda to the ICC.
- United Nations Security Council Referral: The United Nations Security Council, acting under Chapter VII of the UN Charter, can refer a situation in which international crimes may have been committed to the ICC for investigation and prosecution. For example, in 2005, the Security Council referred the situation in Darfur, Sudan to the ICC.
- Prosecutor’s own initiative: The Prosecutor of the ICC can initiate an investigation into a situation in which international crimes may have been committed, even without a referral from a State or the Security Council, if certain conditions are met. The Prosecutor must seek authorisation from the ICC’s Pre-Trial Chamber to proceed with an investigation.
If the ICC Prosecutor has an arrest warrant issued, is there an obligation on the member state, where the offender resides, to facilitate that arrest?
If the ICC Prosecutor obtains an arrest warrant for an individual accused of international crimes, member states of the International Criminal Court (ICC) have an obligation to cooperate with the Court in the arrest and surrender of the accused.
Article 89 of the Rome Statute, which is the treaty that established the ICC, states that
The requested State shall take into custody the person [...] in accordance with its national law
However, in practice, the willingness and ability of member states to cooperate with the ICC varies. Some states may have political or practical obstacles to arresting and surrendering an accused individual, while others may have strong domestic laws and institutions that facilitate cooperation with the ICC.
The ICC has also faced challenges in enforcing its arrest warrants, particularly in cases where the accused is located in a state that is not a party to the Rome Statute, and where the ICC has limited or no direct authority or influence. In these cases, the ICC may rely on other means, such as diplomatic pressure or cooperation with other international actors, to secure the arrest and surrender of the accused.
Is New Zealand party to the Rome Statute?
Yes, New Zealand is a party to the Rome Statute. New Zealand signed the Rome Statute on 8 September 1998, and it was ratified on 7 September 2000. As a state party, New Zealand has an obligation to cooperate with the ICC in the investigation and prosecution of war crimes, crimes against humanity, and genocide. This includes enforcing ICC arrest warrants and cooperating with ICC requests for assistance, such as the provision of evidence and the protection of witnesses.
Which states or countries are members?
As of February 2023, there are 123 states that are parties to the Rome Statute, the treaty that established the International Criminal Court (ICC). These states are referred to as "States Parties".
Here is a list of the countries that are currently parties to the Rome Statute, organised by continent:
Africa:
- Algeria
- Angola
- Benin
- Botswana
- Burkina Faso
- Burundi
- Cabo Verde
- Cameroon
- Central African Republic
- Chad
- Comoros
- Congo
- Côte d'Ivoire
- Democratic Republic of the Congo
- Djibouti
- Egypt
- Equatorial Guinea
- Eritrea
- Ethiopia
- Gabon
- Gambia
- Ghana
- Guinea
- Guinea-Bissau
- Kenya
- Lesotho
- Liberia
- Libya
- Madagascar
- Malawi
- Mali
- Mauritania
- Mauritius
- Morocco
- Mozambique
- Namibia
- Niger
- Nigeria
- Rwanda
- Sao Tome and Principe
- Senegal
- Seychelles
- Sierra Leone
- Somalia
- South Africa
- South Sudan
- Sudan
- Tanzania
- Togo
- Tunisia
- Uganda
- Zambia
- Zimbabwe
- Antigua and Barbuda
- Argentina
- Barbados
- Belize
- Bolivia
- Brazil
- Canada
- Chile
- Colombia
- Costa Rica
- Dominica
- Dominican Republic
- Ecuador
- El Salvador
- Grenada
- Guatemala
- Guyana
- Haiti
- Honduras
- Jamaica
- Mexico
- Panama
- Paraguay
- Peru
- Saint Kitts and Nevis
- Saint Lucia
- Saint Vincent and the Grenadines
- Suriname
- Trinidad and Tobago
- Uruguay
- Venezuela
- Afghanistan
- Australia
- Bangladesh
- Cambodia
- Cook Islands
- Fiji
- Georgia
- India
- Japan
- Jordan
- Kazakhstan
- Korea, Republic of
- Kyrgyzstan
- Lebanon
- Malaysia
- Maldives
- Marshall Islands
- Mongolia
- Nauru
- Nepal
- New Zealand
- Niue
- Palau
- Palestine
- Papua New Guinea
- Philippines
- Samoa
- Seychelles
- Singapore
- Solomon Islands
- Sri Lanka
- Tajikistan
- Thailand
- Timor-Leste
- Tonga
- Turkmenistan
- Tuvalu
- United Arab Emirates
- Uzbekistan
- Vanuatu
- Albania
- Andorra
- Austria
- Belgium
- Bosnia and Herzegovina
- Bulgaria
- Croatia
- Cyprus
- Czech Republic
- Denmark
- Estonia
- Finland
- France
- Germany
- Greece
- Hungary
- Iceland
- Ireland
- Italy
- Latvia
- Liechtenstein
- Lithuania
- Luxembourg
- Malta
- Montenegro
- Netherlands
- North Macedonia
- Norway
- Poland
- Portugal
- Romania
- San Marino
- Serbia
- Slovakia
- Slovenia
- Spain
- Sweden
- Switzerland
- Ukraine
- United Kingdom
Note that this list may be subject to change as additional countries may ratify or accede to the Rome Statute.
It is interesting to note that the United States is not a party to the Rome Statute, the treaty that established the International Criminal Court (ICC). Although the US signed the Rome Statute in 2000, it never ratified the treaty. In 2002, the US withdrew its signature from the Rome Statute, citing concerns about the ICC's jurisdiction and the potential for politically motivated prosecutions of US officials.
As a non-party state, the US has no obligation to cooperate with the ICC, and the ICC has no jurisdiction over crimes committed by US citizens on US soil. However, the ICC may have jurisdiction over crimes committed by US citizens in other countries that are parties to the Rome Statute.
It's worth noting that the US has cooperated with the ICC on a case-by-case basis in the past. For example, the US has provided information and assistance to the ICC in investigations and prosecutions of war crimes and crimes against humanity in Darfur and Libya. However, this cooperation has been limited and ad hoc, and the US has not accepted the jurisdiction of the ICC as a matter of policy.
The US President in 2002 was George W. Bush - say no more.
Let's discuss what constitutes a war crime. Genocide would be such a crime would it not?
Yes, genocide is one of the most serious international crimes that can be committed and is recognised as a war crime under international law.
Genocide is defined under Article 6 of the Rome Statute of the International Criminal Court (ICC) as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group," including:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
In addition to genocide, other war crimes recognised under international law include murder, torture, rape, and other forms of sexual violence, enslavement, forced displacement, and attacks on civilian populations. These crimes are also subject to prosecution by the ICC and other international and national courts.
Do these types of crimes need to be committed during a time of war to be classed as a "war crime"?
No, these types of crimes do not necessarily need to be committed during a time of war to be classified as war crimes under international law. War crimes can also be committed during times of peace or armed conflict short of war.
The term "war crime" is often used in the context of armed conflict, but it refers to serious violations of international humanitarian law that are committed in the context of either international or non-international armed conflict.
International armed conflict refers to a situation where there is fighting between two or more states, while non-international armed conflict refers to a situation where there is fighting between the armed forces of a state and one or more non-state armed groups, or between non-state armed groups themselves.
However, some international crimes, such as genocide, crimes against humanity, and aggression, are not limited to the context of armed conflict and can be committed during times of peace or in other circumstances.
So, in summary, while the term "war crime" may suggest that these crimes can only be committed during wartime, in reality, they can be committed in a variety of contexts and circumstances.
Would the deliberate infection with a biological agent, of people in general across the globe, with the intent to kill those people or cause serious bodily harm or with the intent to prevent births by an organisation or several organisations conspiring together, be classed as a war crime?
The deliberate infection with a biological agent, with the intent to kill, cause serious bodily harm, or prevent births, could potentially be classified as a war crime or a crime against humanity under international law.
The use of biological weapons is prohibited under the 1972 Biological Weapons Convention, which bans the development, production, and stockpiling of biological and toxin weapons. The use of biological weapons could also be considered a war crime or a crime against humanity under the Rome Statute of the International Criminal Court, which defines such crimes as including "intentionally causing great suffering, or serious injury to body or to mental or physical health" (Article 8(2)(b)(xvii)).
Whether the deliberate infection of people in general with a biological agent constitutes a war crime or a crime against humanity would depend on the specific circumstances of the case, including factors such as the intent and scale of the attack, the number and identity of victims, and the context in which the attack took place. The involvement of an organisation or several organisations in conspiring together to carry out such an attack could also be considered an aggravating factor in determining the severity of the crime.
It is worth noting that the use of biological weapons and intentional infection of people with deadly pathogens is a very serious matter and a clear violation of international law. Any such incidents would likely result in an international investigation and prosecution by the appropriate authorities.
Let us say, for example, that this biological agent or weapon caused the deaths of several million people globally and injured many millions more, then could this be classed as a war crime?
Yes, if the use of a biological weapon or the deliberate infection of people with a deadly pathogen caused the deaths of several million people and injured many millions more, this would likely be classified as a war crime, a crime against humanity, or possibly even an act of genocide under international law.
As I mentioned earlier, the use of biological weapons is prohibited under the 1972 Biological Weapons Convention, and intentionally causing great suffering or serious injury to mental or physical health is classified as a war crime under Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court. Additionally, the systematic or widespread attack against a civilian population could be classified as a crime against humanity, and if the attack is committed with the intent to destroy a particular national, ethnic, racial, or religious group, it could be classified as an act of genocide.
It is important to note that each case is unique and would be evaluated on its own merits, and the classification of a particular act as a war crime, crime against humanity, or act of genocide would depend on the specific circumstances of the case. However, the use of biological weapons with the intent to kill or cause serious harm to civilians is a serious violation of international law and would likely result in international condemnation and prosecution by the appropriate authorities.
What if this biological agent had been hidden inside a vaccine, for example, and this was introduced into the population either with or without the knowledge of the country's government? Would this be classed as a war crime?
If a biological agent was hidden inside a vaccine and introduced into a population with the intent to kill or cause serious bodily harm, then this could potentially be classified as a war crime, a crime against humanity, or possibly even an act of genocide under international law.
The deliberate use of vaccines as a means to infect a population with a deadly pathogen would likely be considered a particularly egregious violation of international law, especially if the population was not aware of the presence of the biological agent in the vaccine. Such an act could result in a widespread and indiscriminate attack against a civilian population, which could be classified as a crime against humanity.
In addition, if the use of such a vaccine were part of a broader plan to destroy a particular national, ethnic, racial, or religious group, it could be classified as an act of genocide.
It is important to note that any use of a biological agent with the intent to harm or kill civilians, regardless of the method of delivery, is a serious violation of international law and could result in international condemnation and prosecution by the appropriate authorities.
What could we then say about members of a government who knew about the true nature of this "vaccine" and conspired to assist in its implementation via forced vaccinations?
If members of a government were aware of the true nature of a "vaccine" containing a deadly pathogen and conspired to assist in its implementation via forced vaccinations, this would likely be considered a serious violation of international law, and these individuals could be held accountable for their actions.
Under international law, leaders and officials of governments have a responsibility to protect their populations and respect fundamental human rights. Deliberately exposing a population to a deadly pathogen in the guise of a vaccine and using force to implement its distribution would constitute a violation of these responsibilities, and could be considered a crime against humanity.
Furthermore, if these individuals were part of a broader plan to commit genocide or other crimes against humanity, their actions would be considered even more serious. The use of vaccines as a means to commit atrocities against a particular national, ethnic, racial, or religious group could be classified as an act of genocide.
In summary, any government officials who conspired to implement the forced distribution of a deadly pathogen through a vaccine would be held accountable for their actions under international law if such actions were carried out.
Typically, what would be the punishment of offenders prosecuted by the ICC for these offences and found guilty?
The International Criminal Court (ICC) can impose prison sentences or fines on individuals convicted of war crimes, crimes against humanity, and genocide. The ICC can impose a maximum penalty of 30 years of imprisonment or life imprisonment, depending on the severity of the crime.
The actual punishment imposed on an offender would depend on a variety of factors, including the specific crime committed, the individual's role in the commission of the crime, and the individual's personal circumstances. The ICC can also order the confiscation and forfeiture of the proceeds, property, and assets derived directly or indirectly from the crime.
It's important to note that the ICC does not have the power to impose the death penalty. In fact, the death penalty is not allowed under the Rome Statute, the treaty that established the ICC. This is because many countries do not allow the death penalty, and the ICC is designed to be a court of last resort that complements national criminal justice systems. Instead, the ICC focuses on imposing sentences that are proportional to the gravity of the crimes committed and are consistent with international standards of justice.
It is worth mentioning that the ICC does not have the power to arrest and detain individuals on its own. It relies on member states to arrest and transfer suspects to its custody. If a convicted person is sentenced to imprisonment by the ICC, they would serve their sentence in a state that has agreed to receive them.
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