Historical development of war crimes in the international criminal judiciary
Dr. Azab Alaziz Alhashemi
The international criminal judiciary has gone through different historical stages since antiquity that began from and evolved with the development of communities firstly till they reached the stage of building empires and states, and witnessed the conflicts and atrocious wars that targeted human beings, and rights, and his property, and the period witnessed the emergence of courts and arbitration committees to resolve disputes between states, but they were limited and on a small scale. Some researchers in international criminal law have gone to the conception that the first applications of the international criminal judiciary go back to ancient Egyptian history which concerned the act of exclusion in the year 1286 B.C. And (Nebuchadnezzar), king of Babylon has conducted a trial against (Cydizias) the defeated King of Yoda, where trials took place in Sicily before the fifth century. As recent days of medieval ages knew, under the influence of the teachings of Christianity, the idea of signing criminal sanctions on war crimes handled by independent courts, and Alberico Gentili, Francisco de Vitoria, and Hugo Grotius were considered to be the “fathers of international law” as they pointed out to the existence of an international judicial authority subsidiary of the victorious nations aimed at prosecuting the defeated nations for the damage they had caused.
In modern history, an international court was held and Switzerland participated in its creation in 1474, to consider the issue of (Sire Pierre de Hagenbach), who was the archduke of Austria at that time and suffered from financial hardship that forced him to give up his property located in the territory of (Bourgogne), and that was when he began launching attacks and brutal raids on neighboring countries and cities that surrendered to him temporarily.
Then, France, Austria, and the Union of Swiss cities and young princes inhabiting the top of the Rhine established an alliance among themselves and were able to capture (Hagenbach) on 4th November 1474 AC, and it did not take a month until he brought to trial before an unusual Supreme Court which involved some judges from Switzerland, which ended after many deliberations to sentence him to death.
After the French Revolution and the spread of its ideas in the countries of Europe, especially the principles of liberty, fraternity, and equality, and the way dealt with led to the freedom of people to determine their destiny, in this period, the idea of legalization of Peoples Act has emerged and Napoleon Bonaparte grabbed this idea and assigned the committee, that has developed the civil law in 1810, and delegated to it the mission of developing a project for the law of the people, [a project that the committee] rushed to accomplish in the same year, and Napoleon’s primary goal was the re-formation of the empire of Charlemagne in Europe, especially after failing to subdue the East, and after the return empty–handed from his French campaign against Egypt.
Napoleon entered into successive wars against different countries (England, Austria, Prussia, and Russia), and the kings and leaders of those countries felt the great danger posed by Napoleon to their countries, so, they made an alliance against the French armies which led to its downfall, then, Napoleon retreated and Paris fell and was invaded by the allies on the 31st Mars, 1814, and we see here that the allies did not call for the execution of Napoleon and decided to retain him as a prisoner with some measures and the reason for this is the absence of a criminal international basis that exerts penalty on those responsible for the crimes of assault, as well as the absence of an international criminal court to consider the case for such a crime so that the accused person would be brought before it to be judged and punished.
Perhaps the first to call for the establishment of international criminal judiciary and organizing it is the Swiss jurist Moynnior, as he proposed in 1872 to organize an international judiciary to punish the crimes committed against the people, and called for the establishment of a court composed of five judges, two of whom are delegated the role of knowing the belligerents and the remaining three are appoints by the neutral countries, but this proposal was not accepted by states which considered at the time that the national judiciary is responsible for handling these crimes, and then the Swiss jurist resubmitted his proposal which was rejected again in front of the Institute of international law at its session that was held in Cambridge, and [this proposal comprised] an evolution as he demanded that the proposed international court should be specified in investigation and interrogation along with the trial, and, again, his proposal did not meet success, but the idea itself was an echo at the international level.
In 1907, the twelfth Convention of The Hague included a text about establishing an international court that tackles the issue concerning the capture of a ship by another one that pertaining to another country, but this attempt failed despite its narrow scope.
Sources:
It used a set of international laws and research