International Criminal Law: Nuremberg to the ICC and India

International criminal law holds individuals, not just states, responsible for the gravest crimes. It began with the trials of the leaders of Nazi Germany and Japan, developed through the tribunals for the former Yugoslavia and Rwanda, and now has a permanent court, the International Criminal Court. This note covers its foundations, the core crimes, the tribunals, the ICC's jurisdiction and procedure, and India's position.

1. Foundations

Figure 1: Development of international criminal law

• Nuremberg Charter, 1945. Annexed to the London Agreement of 8 August 1945; the International Military Tribunal tried major war criminals for crimes against peace, war crimes and crimes against humanity (Article 6)
• Nuremberg judgment, 1946. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
• No defence of official position or superior orders. Official position does not free a defendant from responsibility (Article 7), and acting on superior orders may only mitigate punishment (Article 8)
• Tokyo tribunal, 1946 to 1948. The International Military Tribunal for the Far East tried Japanese leaders; the Indian judge Radhabinod Pal dissented and would have acquitted all accused, arguing that crimes against peace were ex post facto and that the trial reflected victors' justice.
• Nuremberg Principles. Affirmed by the General Assembly in 1946 and formulated by the International Law Commission in 1950.

2. Genocide

• Genocide Convention, 1948. Genocide means killing, causing serious bodily or mental harm, inflicting conditions of life calculated to bring about physical destruction, imposing measures to prevent births, or forcibly transferring children, committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group (Article II)
• Punishable acts, Article III. Genocide, conspiracy, direct and public incitement, attempt and complicity.
• Specific intent. The special intent to destroy the group as such distinguishes genocide from other crimes.

3. The Ad Hoc and Hybrid Tribunals

• ICTY, 1993. Created by Security Council resolution 827 for crimes in the former Yugoslavia; in Tadić (1995), it upheld its own creation under Chapter VII and held that war crimes can be committed in internal armed conflicts; Radovan Karadžić and Ratko Mladić were convicted of genocide at Srebrenica.
• ICTR, 1994. Created by resolution 955 for Rwanda; in Akayesu (1998), it delivered the first conviction for genocide by an international court and held that rape could constitute genocide; former Prime Minister Jean Kambanda pleaded guilty to genocide.
• Hybrid courts. The Special Court for Sierra Leone convicted former Liberian President Charles Taylor (2012); other hybrid courts include the Extraordinary Chambers in Cambodia and the Extraordinary African Chambers that convicted Hissène Habré (2016)

4. The International Criminal Court

The Rome Statute was adopted on 17 July 1998 and entered into force on 1 July 2002. The Court sits in The Hague and has about 125 states parties. Unlike the ad hoc tribunals, it is a treaty based, permanent court.

Figure 2: Crimes within the Court's jurisdiction (Article 5)

Figure 3: From trigger to trial

• Security Council. May refer situations, including on the territory of non-parties, as with Darfur (resolution 1593, 2005) and Libya (resolution 1970, 2011), and may defer an investigation or prosecution for twelve months, renewably (Article 16)
• Official capacity, Article 27. The Statute applies equally to all persons without distinction based on official capacity; immunities do not bar the Court's jurisdiction.
• Command responsibility, Article 28. Military commanders and other superiors are responsible for crimes by subordinates under their effective control if they knew or should have known and failed to prevent or punish them.
• Leading cases. Lubanga (2012), the first conviction, for using child soldiers; al-Mahdi (2016), for destroying cultural heritage in Timbuktu; Ongwen (2021); arrest warrants have been issued against serving or former leaders, including Omar al-Bashir of Sudan (2009) and Vladimir Putin (2023); former Philippine President Rodrigo Duterte was surrendered to the Court in March 2025.

5. India's Position

• Not a party. India did not vote for the Rome Statute in 1998 and has not joined the Court.
• Objections. The Security Council's powers to refer and defer, which give political organs influence over a judicial body; the Prosecutor's proprio motu powers; the exclusion of terrorism and of the use of nuclear weapons from the listed crimes; the extension of war crimes to internal conflicts; and the possibility of jurisdiction over nationals of non-parties.
• Domestic law. India has no general statute defining genocide or crimes against humanity; grave breaches are punishable under the Geneva Conventions Act, 1960, and other conduct under ordinary criminal law.

6. Frequently Asked Questions

What is the principle of complementarity?

The ICC complements national courts rather than replacing them. Under Article 17, a case is inadmissible if a state with jurisdiction is genuinely investigating or prosecuting it, unless that state is unwilling or unable to do so genuinely.

Can the ICC try nationals of states that are not parties?

Yes, if the crime occurs on the territory of a party or of a state accepting jurisdiction by declaration, or if the Security Council refers the situation. This possibility is one of the reasons India has not joined the Court.

7. Related Topics

• Topic 34: Universal Jurisdiction. National prosecutions of international crimes.
• Topic 51: Collective Security. Tribunals under Chapter VII.
• Topic 53: International Humanitarian Law. War crimes and grave breaches.