On the way to the rule of law in the international community

Commemorating two major anniversaries: The establishment of the International Law Commission 70 years ago and the adoption of the Rome Statute of the International Criminal Court 20 years ago

Bled Strategic Forum
Sep 6, 2018 · 11 min read

Dr. Ernest Petrič
Professor of International Law, Member of International Law Commission

  • This article was originally published as part of the 2018 edition of Bled Strategic Times, the official gazzette of the Bled Strategic Forum (BSF) international conference. You can access the full version of this and other BSF publications by visiting our official website.

he year 2018 saw important anniversaries. Most importantly, we commemorated the centenary of the end of the First World War — the end of battlefield massacre in Europe and elsewhere and the deaths of civilians due to disease, hunger, violence, and other hardships of war. The year 1918 not only marked the end of the War, but also the beginning of the demise of Europe’s global domination and the beginning of the end of the era of the Western world’s imperialism. Furthermore, it marked the start of the consolidation of new ideas, ideas of international organisation that should ensure world peace, ideas of national self-determination, and of human rights protection — at that time, primarily the protection of national minority rights. However, most of these ideas entered international relations and international law only after 1945.

A hundred years ago, the world witnessed also the emergence of the concept of the rule of law in international relations and the concept of individual criminal responsibility for violations of international law, and soon after 1918, the first international organisation, the League of Nations, was established to ensure collective security, as well as the first permanent international tribunal, the Permanent Court of International Justice, and the first international human rights regime imposing obligations, which sought to ensure respect for, and protection of, national minority rights, al-
though only a few states were included.

Another cataclysm followed; it took another European collapse, in the Second World War, for the seeds of a new global order underpinned by respect for human dignity to grow in the international arena. It was only after the Second World War that the world witnessed the dawning of the recognition that the international order should be based on the rule of law, the peaceful resolution of disputes, respect for human dignity, basic human rights, and individual criminal responsibility under international law.

With regard to the emergence of a new global order founded on the rule of law, the year 2018 commemorates two major anniversaries: the establishment of the International Law Commission 70 years ago and the adoption of the Rome Statute of the International Criminal Court 20 years ago. I would like to devote a few more words to the two anniversaries — which are vital for limiting the rule of power and for promoting the rule of law in the international community — and to the work of the International Law Commission and the International Criminal Court, particularly after the ceremonies at UN headquarters in New York and Geneva and at the seat of the International Criminal Court in The Hague. This year’s Bled Strategic Forum also plans a panel discussion on international criminal responsibility and the International Criminal Court, the promotion of the rule of law in the international community, and the maintenance of international peace, security, respect for human rights and prosperity around the globe, which are all founded on the rule of law.

The founders of the new international order, of the UN system, were aware that coherent international legal rules are needed in order to consolidate the rule of law in international relations. International law was still in its infancy upon the creation of the UN system in 1945. International law was in that time mainly customary international law, i.e. not in written form. This gave rise to issues of clarity, precision, and lex certa in international law since the actual content of customary international law rules was not precisely stipulated in writing, and, consequently, the question of how a rule or principle of international law was to be interpreted was in each case very acute. If international law were to become the foundation of the rule of law in the international community, its precise formulation, its clarity, was necessary, also due to the increasing intensity and complexity of international relations. The need for clear international law, stipulated in writing and confirmed, codified by states as international law in order to ensure legally safe communication between states, was made even more pressing by the Cold War. The resulting ideological division of the world, and often fundamentally different values and different interpretation of legal concepts also required clarity of international law, its codification.

The vision and ambition of the founders of the United Nations were for international relations to no longer be settled by means of power, but rather by international law, so one of the tasks of this new global organisation that they defined in the Charter was the progressive development and codification of international law. Norms of international law are established by state practice, primarily through agreements on what the law is that regulates relations between states in numerous fields of their international activities and cooperation. A special UN organ was to be established to make recommendations to states about what the already existing customary international law was, as well as recommendations on how to develop new international legal rules to regulate cooperation between states that was not yet regulated by customary international law. This UN organ is the International Law Commission, which this year is celebrating its 70th anniversary.

It would be difficult to imagine the complex legal regulation of today’s diverse international cooperation if this Commission had not assisted states in codifying and progressively developing international law. The results of the 70 years’ work of the Commission include more than twenty drafts of multilateral international conventions, which became binding internationally. They today regulate fundamental issues of relations among states, including diplomatic and consular activities, multilateral diplomacy, rules regulating international treaties, succession of states concerning debts, property, and treaties, international legal rules that regulate major issues in maritime relations between states, and many others. Also, the Commission has produced numerous documents, though not formally binding, in the form of conclusions, principles, draft articles, and guiding rules clarifying important international legal issues like responsibility of states, protection of persons in case of natural disasters, fragmentation of international law etc.

The Commission was faced with the problem of responsibility of individuals under international law and before international tribunals at the very beginning of its work, when it adopted the Nuremberg principles of international law. It laid foundations of international criminal law concerning, inter alia, individual criminal responsibility under international law, including the responsibility of the highest state officials regardless of the fact whether an official was acting on superior orders. It defined crimes against peace (aggression), war crimes, and crimes against humanity as crimes under international law, i.e. the crimes of which war criminals were convicted after the Second World War at the Nuremberg and Tokyo trials. The Commission was again faced with the issue of individual criminal responsibility under international law when drafting the Rome Statute, which did establish the first permanent international criminal court and also defined its powers and the crimes under its jurisdiction.

Without the Commission’s work, the rule of law in the international community would rest on tenuous foundations, and international law — the basis of the international rule of law — would be less developed.

Today, the Commission continues to help states with the development and codification of international law. However on its 70th anniversary the Commission continues to face a series of problems. A major one is that states should make use of the Commission’s work and its knowledge more often; the Commission brings together 34 independent leading experts on international law who are from all around the world and represent all the principal legal systems. The Commission can help states to identify and define existing or future international law also in cases of topical international political and legal issues. An example of this concerns the principle of the right of peoples to self-determination. According to the UN Charter, this principle is one of the fundamental principles of the modern international legal order. But concerning precise establishment in international law of the right of all peoples to self determination several legal questions about this principle remain unanswered and are left for consideration at the political level, including:

  • who is entitled to the right to self-determination,
  • what is the legal content of the principle, the modalities of its application, restrictions and limitations to it
  • and most importantly, the relationship between the right of peoples to self-determination and the equally fundamental principle of international law on sovereign equality and the territorial integrity of existing states.

Who else, if not the International Law Commission, can offer states some conclusions and recommendations on these and other issues from the perspective of international law?

The world is witnessing increasingly complex international relations and growing international cooperation, which requires the development of international law. Consequently, the Commission’s work and intensive cooperation between the Commission and the UN General Assembly, i.e. states, in determining and developing international law as the basis for the rule of law in the international community is of crucial importance. One might hope that the attention given to the International Law Commission at its 70th anniversary is a proof of relevance of its contribution to the rule of law in international community and of the interest of states for its future work.

After lengthy negotiations 20 years ago, the majority of states, greatly supported by many civil society organisations, voted for the Rome Statute of the International Criminal Court. The first drafts of the Statute were prepared by the International Law Commission. Following its signing and ratification by the required number of states, the Statute entered into force in 2002, establishing the International Criminal Court with its seat in The Hague. This was a historic step in establishing criminal responsibility for the most horrible crimes under international law, i.e. genocide, war crimes, crimes against humanity, the crime of aggression, which might be typically committed by heads of state and political and military and other leaders themselves, although states often fail or refuse or fail to prosecute them before national courts. As emphasised on the 20th anniversary of the Rome Statute by the President of the Assembly of States Parties, Mr O-Gon Kwon, the International Criminal Court is now an integral part of the international system, and its work contributes to the development of the rule of law, the promotion of human rights, and to a more peaceful and secure world.

The Court’s establishment has fulfilled the aspiration that no one will go unpunished for the crime of genocide, war crimes, crimes against humanity, and the crime of aggression. The first step in this direction was the establishment of ad hoc international tribunals for war criminals from states, which were defeated in the Second World War, such as the Nuremberg and Tokyo tribunals, as well as the tribunals established after the Balkan wars, the Rwandan genocide, and the crimes in Sierra Leone in the 1990s. The latter were ad hoc international criminal tribunals for crimes committed in those wars, among them the International Criminal Tribunal for the former Yugoslavia, and were established by the UN Security Council.

The International Criminal Court, on the other hand, is a permanent tribunal forming part of the modern international legal order, which is based on states’ sovereignty. Therefore, the Court has jurisdiction only over crimes committed on the territory of States Parties to the Rome Statute and by States Parties’ nationals. A great majority of states has acceded to the Rome Statute, thus accepting the Court’s jurisdiction, with the exception of some others, among them the three permanent members of the UN Security Council, i.e. China, the United States, and the Russian Federation, as well as India, Pakistan, Israel, and Iran, — the very states whose leaders could be hypothetically held responsible for crimes under the Court’s jurisdiction which were committed not only in their own countries, but around the globe in the context of international conflicts they were involved in.

The lack of universal jurisdiction impairs the Court’s effectiveness and compromises its authority. However, the absence of the ‘great’ states and their influence on the Court’s work is perhaps even welcome in this period, when the Court has only been building its reputation as an independent permanent international criminal tribunal. Perhaps the efforts to achieve universal jurisdiction will eventually prove successful, especially if the Court establishes itself as an effective and independent international criminal tribunal, which ensures that through its jurisdiction, although subsidiary, no perpetrator of the most serious crimes will go unpunished.

The Court’s establishment was a historic breakthrough in establishing the rule of law in the international community, as were the incorporation into the UN Charter of respect for, and protection of, human rights and the principle of the right of peoples to self-determination, and the proclamation of the Universal Declaration of Human Rights in 1948. If Stefan Zweig were still alive, he could justly regard also the establishment of the International Criminal Court as one of the historic achievements that have taken humankind to the stars.

The Court is still establishing itself as an effective international institution, and it is having to deal with several problems: In addition to the lack of universal jurisdiction, the Court has faced a lack of sufficient support from States Parties to the Rome Statute and the sometimes questionable selection of judges. The latter is a problem that I encountered during my several years as a member of the Advisory Committee on Nominations of Judges to the International Criminal Court, which helps States Parties select judges. Nevertheless, the proposals for nominations of judges have been improving, owing also to the Committee’s work, which also has a preventive effect, and because of civil society’s involvement and demands.

In recent years, the Court has been criticised as being one-sided and dealing only with crimes and perpetrators in Africa. This criticism has given rise to ideas of regional international criminal tribunals, which, however, would be a step backwards, not forwards. Regional criminal tribunals would be subject to even greater regional political influence, they would depend on the will of regional powers, and their independence would be under even greater pressure. They would have weaker authority than the International Criminal Court, while also facing greater organisational, financial and other difficulties. The criticism that crimes committed in Europe have not been brought before the Court does not take into account that several hundred cases from Europe which would have fallen within the Court’s jurisdiction if it had already been operating then were prosecuted by the International Criminal Tribunal for the former Yugoslavia.

The rule of law in the international community is founded on international law, respect for, and protection of, human rights, and the international jurisdiction to prosecute the most serious crimes under international law. Those responsible for such crimes must be prosecuted either before national or international courts. The rule of law at the national and international levels provides the basis for the security, justice and prosperity of all humankind. The rule of law is especially important to states, which cannot pursue their goals in the international community by means of power, but only by means of international law. Like any law also international law and the rule of law in the international community ensure the protection of rights of all•, however in particular it protects the weak.


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Bled Strategic Forum

The official Medium publication of Bled Strategic Forum (BSF) — a platform for high-level strategic dialogue among leaders from private & public sector. Organised by the Slovenian Ministry of Foreign Affairs & Centre for European Perspective (CEP).

Bled Strategic Forum

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A platform for high-level strategic dialogue among leaders from private & public sector. Organised by Slovenian MFA & Centre for European Perspective (CEP).

Bled Strategic Forum

The official Medium publication of Bled Strategic Forum (BSF) — a platform for high-level strategic dialogue among leaders from private & public sector. Organised by the Slovenian Ministry of Foreign Affairs & Centre for European Perspective (CEP).

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