A. INTERNATIONAL IMPUNITY FOR ATROCITIES DURING THE COLD WAR
Immediately after the IMT delivered its judgment in 1946, the campaign to establish a permanent ICT (what would become the ICC) gained traction, albeit in fits and starts. In late-1946, an international congress, comprising the quadripartite Allied powers from WWII and eighteen other states, called for the establishment of a permanent ICT. The next year, the French judge from the IMT suggested that, in addition to creating a permanent ICT, the ICJ should feature a dedicated criminal chamber.3 Following this proposal, in a resolution adopted on December 9, 1948 (approximately one month after the IMTFE delivered its judgment), the UNGA requested the recently established International Law Commission (ILC) to consider the possibility of establishing a permanent ICT, including through this very option of creating a specific criminal chamber of the ICJ.4
These and other calls for the establishment of a permanent ICT were stalled by the complications that the Cold War introduced. This period was characterized by a lack of international cooperation because of a diplomatic and military stalemate between the two antagonistic superpowers, the United States and the Soviet Union.5 Their political impasse obstructed the UNSC’s attempt to establish mechanisms, including ICTs, for addressing atrocities in states such as Cambodia, Haiti, and Chile.6 These chilly relations were, according to Benjamin Ferencz, a former prosecutor at the NMT, “an excuse to put international criminal court proposals on ice.”7 When the Soviet Union collapsed in 1991, so too did this deadlock.
The creation of ICTs (permanent or otherwise) was inhibited by this American- Soviet tension as well as the nature of Cold War conflicts. One commentator surmised in 1991 that the USG had not conducted war crimes trials since the end of WWII “not for lack of war criminals, but because the unsuccessful conclusion of the Korean and Vietnam wars did not permit the U.S. to bring the offenders to trial.”8 Others also have suggested that China would have used its veto in the UNSC during the Cold War to block any progress on international efforts to investigate and prosecute atrocities.9 In the absence of a permanent, global ICT, if the world wanted to establish a multilateral criminal tribunal to address atrocities after the end of the Cold War, only ad hoc solutions were possible.10