Seventy-five Years Since Adoption of First International Criminal Court Statute

Seventy-five years ago, from 1 to 16 November 1937, the International Conference on the Repression of Terrorism convened in Geneva under the auspices of the League of Nations. It concluded with the adoption of the Convention for the Creation of an International Criminal Court.

The Conference also adopted a Convention for the Prevention and Punishment of Terrorism which criminalized various terrorist offences.

The Convetion was signed on 16 November 1937. It was only open to signature and ratification or accession by States that had already accepted the primary substantive treaty on terrorism. Ten States signed the Convention at the conclusion of the Conference: Belgium, Bulgaria, Spain, France, Greece, the Netherlands, Romania, Czechoslovakia, Turkey and Yugoslavia.

The international criminal court was to be a permanent body but one that would only sit when an offence had been charged. It was to have five regular and five deputy judges, chosen by the Permanent Court of International Justice. Although the Convention was adopted at a League of Nations conference, there was to be no formal connection between the Court and the League.

States Parties would have the option of referring an individual to trial before the international court instead of trying them by courts of their own jurisdiction or extraditing them. An accused could not demand the right to be tried by the international court.

As a comment in the British Yearbook of International Law in 1938 explained: ‘It is possible that in a moment of political embarrassment a government may find it convenient to make use of the court, if and when it is instituted.’

According to the British Yearbook,

The question what law the court is to apply seems to have given rise to considerable discussion; as nothing in the nature of an international criminal law, proper to such a court, is in existence, some municipal system had to be chosen. Ultimately it was decided that as between the municipal systems of the country where the terrorist act was done and the country which committed the accused for trial, "the substantive criminal law to be applied by the court shall be that which is the least severe" (Article 21); the court decides which law answers to that description. As it is possible that the court will not include any judge who is a national of the state whose law is to be applied, the convention provides for the invitation of an assessor "who is an acknowledged authority on such law". The convention does not apparently contemplate the presence of a jury, a jury being regarded, so it seems, as part of the law of procedure in a municipal system, and not (O shades and myths of Runnymede!) of its "substantive law" (loi pénale de fond).

The idea of the court, and of the corresponding anti-terrorist convention had emerged following the assassination in 1934 of King Alexander of Yugoslavia and Louis Barthou, at Marseilles on 9 October 1934 (for a contemporary newsreel, click here). The French government urged the League of Nations to intervene. Its proposal included the idea of establishing an international criminal court.

Only India ratified the Convention. Today, India stands outside the International Criminal Court. It would be useful to remind India of the pioneering role that it once played in this area.