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close this bookLaw in Humanitarian Crises Volume I : How Can International Humanitarian Law Be Made Effective in Armed Conflicts? (European Commission Humanitarian Office)
close this folderThe Laws of War: Problems of Implementation in Contemporary Conflicts
close this folderV. Summary and Conclusions
View the document(introduction...)
View the document1. Realist and Idealist Images of the Laws of War
View the document2. Still a World of States
View the document3. Humanitarianism as a Substitute for Policy
View the document4. Application to Non-International Conflicts
View the document5. Mines
View the document6. Limits of Compliance Provisions
View the document7. Trials
View the document8. International Criminal Court
View the document9. Reparations
View the document10. The United Nations
View the document11. Barbarians?
View the document12. A Set of Professional Military Standards?
View the document13. Need to Keep Our Own Houses in Order
View the document14. The Relation between Ius in Bello and Ius ad Bellum
View the document15. Taking Implementation Seriously

8. International Criminal Court

The proposal for an International Criminal Court, discussed at the UN for many decades, has attracted new interest in the wake of the emergence of the international tribunals for Yugoslavia and Rwanda. It is likely that the UN General Assembly will in due course approve the text of a treaty establishing such a court. Following such a decision, the process of ratification by states will take time.

Complex questions, including the scope of competence of such a court, have yet to be answered definitively. There is a strong case for such a court being set up initially with a primary purpose of dealing with issues relating to the laws of war. It could, in effect, extend the geographical scope of the two existing tribunals, on the former Yugoslavia and Rwanda. Within the area of the laws of war, its focus must inevitably be on exceptional and grave breaches: such a court should not undermine national responsibility for punishing breaches, nor should it get into the situation of being a "back-seat driver" engaged in continuous ad)udication on all uses of force.

Whatever institutional forms may develop, the important aim should be to create a situation in which political leaders and military personnel pursuing policies that constitute grave violations of the laws of war would always fear the prospect of court proceedings, be it through national, European or international courts. In the system of states as it exists today, many would be able to evade such proceedings by staying in a country sympathetic to their cause. The fear of trial may thus be significantly reduced. The idea of an International Criminal Court is thus not a complete substitute for other approaches to the question of implementation.