In the past fifteen years, the world community has faced a number of conflicts replete with violations of the Geneva Conventions and the Genocide Convention. In response to two of these conflicts, the United Nations, acting through the Security Council, established two ad-hoc criminal tribunals to prosecute war crimes. The International Criminal Tribunal for the Former Yugoslavia ("ICTY") and International Criminal Tribunal for Rwanda ("ICTR"), established in 1993 and 1994, respectively, were the first international tribunals since Nuremberg and Tokyo to criminally prosecute individuals for war crimes.
The ICTY's and ICTR's jurisprudence has greatly influenced the ongoing development and evolution of the law of war. One key example is the categorization, by both the ICTR and ICTY, of rape as a grave breach. Rape of civilians, especially systematic rape of women in a community by armed forces, was not explicitly recognized as a grave breach under the Geneva Conventions; both Tribunals, however, recognized it as such. Having found individuals guilty of such acts, the Tribunals have classified rape, when perpetrated within these armed conflicts, as a war crime. Furthermore, the mixed internal and international nature of the conflicts in the former Yugoslavia and Rwanda forced the Tribunals, in particular the ICTY, to articulate the applicability of the Geneva Conventions to modern conflicts where both internal and external armed forces participated in the conflict.
These changes, as well as many others, have shaped the new International Criminal Court ("ICC"), which came into being on July 1, 2002. This permanent war-crimes court, based on the ICC Statute (also referred to as the Rome Statute), drew upon the Geneva Conventions, the Genocide Convention, and the jurisprudence of the ICTY and ICTR to set forth a comprehensive list of war crimes for which individuals can be prosecuted -- either for committing such acts or ordering them.
Already, 89 countries have ratified the ICC Statute and are actively participating in the ICC's development. The United States, however, has not ratified the ICC Statute and is not participating in its development. Judges have been appointed to the Court, and in April of 2003 the states that are parties to the ICC elected Mr. Luis Moreno Ocampo as the first prosecutor of the ICC. An Argentine prosecutor responsible for the prosecution of Argentina's military junta and for those responsible for the Falklands War, Mr. Ocampo is widely recognized as an outstanding candidate to head the first office of the prosecutor for this new institution.
The horrific experiences of World War II profoundly transformed international law. As a result, the protection of the civilian population during warfare was elevated in importance and individual accountability for the commission of war crimes has become the norm. Indeed, the institution of war-crimes trials that strive to ensure individual accountability for both those who order and those who commit war crimes has come to shape public expectations for the resolution of conflict.
And yet even as the international community continues to embrace these norms, challenges exist. War criminals remain at large; the international community continues to be slow to react to violations of the Geneva Conventions. Simultaneously, important questions continue to challenge the force of these important international treaties, as countries across the globe assess the relationship between a nation's sovereignty, its commitment to international law, and its mechanisms for accountability.
