Leipzig to The Hague: Tracing the Evolution Path of International Judicial Courts from Leipzig Trials to the Formation of the ICJ

Written by: Shourya Singh, B.A.LL.B, NLU Jodhpur

Introduction

The journey towards the establishment of a permanent court of law international, statutorily bound to settle conflicts between states and to obtain obedience to international law, is one of trial and error in law, political horse trading, and sometimes reversal spanning over several decades. The final realization of these efforts came in 1945 with the institution of the International Court of Justice (ICJ) as part of the United Nations (UN) system. The ICJ, being the main judicial body of the UN, is legally obligated to settle disputes between states as a question of law, render advisory opinions, and help advance international law in all but a few areas.

This essay traces the historical development from the Leipzig Trials of 1921, the world's initial and failed effort to put war criminals on trial, all the way to the Nuremberg Trials of 1945–1946 and lastly to the ICJ's creation. The work emphasizes the institutional and philosophic roots of such icons, investigating the sources of the ICJ's law and those of their precursors' sources of legitimation and the failure of past international institutions such as the Permanent Court of Arbitration (PCA) and the Permanent Court of International Justice (PCIJ). Through these pioneering events, this article traces the evolution of international courts and how they have grappled to build an international community of justice on the pillars of diplomacy, rule of law, and justice.

Evolving International Courts: Leipzig to Nuremberg

Leipzig Trials: Failure

International community post-World War I was grappling with the world on how to deal with punishing the Central Powers and, in particular, Germany for its war atrocities. Leipzig Trials of 1921 were conducted in an effort to prosecute war criminals who had acted against law and war practice. Weimar Republic subsidized trials, however, were seriously curbed and featured no active foreign legal jurisdiction. They tried only 12 defendants and acquitted a vast majority of defendants and gave a short sentence to many others. Most importantly, however, the trials themselves were not held in an unbiased sovereign court but by the Supreme Court of Germany and therefore were suspect to most regarding fairness.

The Leipzig Trials went on to reinforce some of the issues involved with using national courts as a tool for trying international war crimes. There was a very real sense that such crimes required an impartial, independent mechanism—above and beyond national courts, which inherently were at the mercy of governments' political agendas. That the Leipzig Trials had collapsed only served to announce the necessity of a steady, unprejudiced agency capable of bringing deeds over borders to indictment. That would provide an opportunity for an even broader second attempt at holding them to account, in the light of the Nuremberg Trials.

The Nuremberg Trials: A Watershed for International Criminal Law

After the Second World War, the Allied Forces were faced with the task of correcting the atrocities committed by the Nazi leaders and perpetrators who were involved in the war processes. The Nuremberg Trials of 1945-1946 were historically important in the way the justice was achieved and by the criteria of levels of law on which they left their mark. It established criminal responsibility for the first time at the individual level in the name of crimes of peace, war crimes, and crimes against humanity. IMT did conduct trials and encompassed the first mass indictment on the global scene of war criminals.

Nuremberg Trials also laid down the foundation of principles of international criminal law, i.e., nullum crimen sine lege, which was founded on the premise that a person cannot be held criminally liable unless specifically identified by international law. The defence of superior orders was also not accepted. These principles and the precedent for holding the people accountable for the international crimes are the foundations on which the International Criminal Court (ICC) would be established.

 The Permanent Court of International Justice (PCIJ)

Following World War I, there was increased pressure for a permanent institutionalized international system of adjudication. The League of Nations (LON), established by the Treaty of Versailles in 1919, necessitated the formation of the Permanent Court of International Justice (PCIJ) in 1922. PCIJ was formed as a standing court of pacific settlement of inter-state disputes and the issuance of advisory opinions on matters of law submitted to it.

The PCIJ was not a first experiment in international legal adjudication, but the first routine institution with a mandate to decide legal disputes in an institutionalized fashion. It consisted of 15 judges of different systems of law, as did the international nature of the court. Its jurisdiction, like that of the ICJ, was based on consent by states parties to a dispute. Although the PCIJ passed some general judgments, i.e., territorial disputes cases, human rights cases, and maritime law cases, it also experienced some severe weaknesses.

Although the PCIJ was revolutionary, there were a few weaknesses. Voluntariness of PCIJ jurisdiction was one of the most evident areas of weakness. The court could only exercise jurisdiction to resolve disputes between states that had so agreed specifically, frequently by treaties or special agreements. This restricted it from developing a clean body of case law, and PCIJ's rulings were often not complied with because there were no effective mechanisms of enforcing states to follow its decisions.

Additionally, PCIJ's jurisdiction was restricted within territorial boundaries of the League of Nations, which did not possess any political and military powers to execute the court's decision. Complete failure of the League of Nations at the onset of World War II and inability to prevent war revealed the boundaries in PCIJ's jurisdiction to establish the international juridical order and regulate phenomena at will. After the formation of the United Nations in 1945, PCIJ was eventually replaced by the ICJ.

The Formation of the International Court of Justice (ICJ)

With the demise of the League of Nations and political and legal void created due to World War II, the United Nations (UN) came into being in 1945 with the objective of avoiding future wars and international cooperation. The ICJ was the most significant organ of the UN and would be the major judicial organ of the organization.

The UN Charter, under Chapter XIV, ordered the creation of the ICJ as a substitute for the PCIJ. The court was also entrusted with the duty of deciding between states, issuing advisory opinions on points of law referred to it, and playing a leading role in interpreting and applying international law. ICJ's jurisdiction was also wider than that of PCIJ as it was also entrusted with the duty to decide all types of cases, i.e., cases relating to territories, cases relating to diplomatic relations, and human rights cases. Powers of the ICJ

The mandate of the ICJ is based on various sources of law, the most significant of which include the ICJ Statute and the UN Charter. The annexed ICJ Statute constitutes the structure, jurisdiction, and procedure of the court. The court is comprised of 15 judges representing various systems of law and regions of the world. Judges are elected by the UN Security Council and UN General Assembly for a period of nine years.

The jurisdiction of purportedly the most important element of the ICJ is consent-based, i.e., state-based.

A state is required to agree to the jurisdiction of the court either by declaration or by treaty agreeing to the jurisdiction of the court. The court's jurisdiction may be invoked by various sources such as treaties, customary international law, and general principles of law. Aside from this, the ICJ also has the ability to render advisory opinions on a question of law that arises in a reference submitted to it by the UN General Assembly, UN Security Council, or other UN organs.

International Criminal Courts

The creation of the International Criminal Court (ICC) in 2002 was a leap in quantum in international law. In contrast to the ICJ dedicated to resolving state-state disputes, the ICC has to prosecute those who are guilty of the most egregious international crimes such as genocide, war crimes, and crimes against humanity. The jurisdiction of the ICC is based on the Rome Statute, which is a treaty that came into force on 1 July 2002.

It is because people—mainly political and military officials—were able to act without fear of consequence and without accountability that the ICC was created. Having one judge anyone regardless of status or nationality as long as the crime comes under the court's jurisdiction is facilitated by the ICC as a permanent international tribunal.

While the ICC has managed to indict a handful of international perpetrators, it has been faced with enforcement and political issues of foreign affairs. It is only the crimes that occurred after the year 2002 that fall within the jurisdiction of the court, while some of the most dominant forces on earth like the United States, China, and Russia have declined to join the Rome Statute and thus limited the jurisdiction of the court.

Conclusion

The creation of international courts of justice, the Leipzig Trials and Nuremberg Trials to the Permanent Court of International Justice, and ultimately the creation of the International Court of Justice has been one of gradualism towards the creation of a regime of justice where states' and actors' responsibility is made liable for violations of international law. The creation of the International Criminal Court once more authorized international compliance towards holding individuals accountable for such offenses.

Though there continue to be problems, most importantly in the implementation of ICJ and ICC judgments, these tribunals have been highly useful institutions in the ICC's progressive advance as an institution of international governance and international legal responsibility. As the global community continues to struggle with ever more sophisticated human rights, war crimes, and ecological justice issues, the activity of these tribunals will remain at the forefront of building an equal and peaceful international world.

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