Study Notes on Gustave Moynier's Proposal for the Permanent International Criminal Court

The first serious proposal for a permanent international criminal court was made by Gustave Moynier, a founder and longtime President of the International Committee of the Red Cross (ICRC).
The proposal stemmed from the shortcomings in enforcing international humanitarian law and the need for a dedicated institution.
The diplomatic conference in Rome on June 15, 1998, aimed to establish this court, addressing a gap that had existed for over 50 years since Henri Donnedieu de Vabres' 1947 proposal.

Early Attempts at International Criminal Justice:
- The history of international criminal justice included ad hoc tribunals, typically established by the victors of wars, rather than a permanent court.
- A significant early example includes the 1474 tribunal that prosecuted Peter de Hagenbach for war crimes, marking arguably the first ad hoc court.
Initial Reluctance by Moynier:
- In 1870, Moynier initially rejected the idea of a permanent court in favor of public pressure to enforce humanitarian norms, noting:
- "A treaty was not a law imposed by a superior authority on its subordinates but only a contract…"
- He believed public opinion was sufficient to enforce adherence to the Geneva Convention.

Realization of Inadequacy of Moral Sanctions:
- The outbreak of the Franco-Prussian War revealed the limitations of relying on moral pressure alone to curb atrocities. Moynier observed:
- "A purely moral sanction was inadequate to check unbridled passions."
- In reaction to the war’s violations, he proposed establishing a permanent tribunal on January 3, 1872.

Establishment of the Tribunal:
- The tribunal would activate automatically in wartime if signatory powers engaged in conflict (Article 1).
- Five judges (adjudicators) would be selected, with three chosen randomly from neutral states and two proposed by the belligerents (Articles 2 & 3).
Adjudication Process:
- The tribunal would decide cases based on adversarial hearings, ultimately returning a verdict of guilty or not guilty (Article 5).
- The complainant state would act as the prosecutor, responsible for presenting the case against the accused (Article 4).
Jurisdiction and Complaints:
- Only “interested governments” could file complaints, preventing frivolous cases (Article 4).
- The tribunal would hold exclusive jurisdiction over cases involving foreign nationals (Article 4, para. 2).

Defining Violations:
- Moynier recognized that the Geneva Convention was inadequate for imposing criminal responsibility, hence separate provisions were to be created (Article 5).
- Proposed penalties would align with international law standards (Article 5, para. 2).
Compensations for Victims:
- The tribunal would have authority to award damages, which would be mandatory for the offender government to implement (Article 7).
- Moynier emphasized that this was important to avoid penalizing victims for the insolvency of those guilty of crimes (Article 7, para. 2).

Publicity and Transparency:
- Moynier instigated a requirement for the tribunal's decisions to be published in state gazettes to shape public opinion on atrocities (Article 8).
- Transparency was aimed at ensuring accountability and societal awareness.
Financial Responsibility:
- The proposal stated that belligerent states should cover costs as incurred rather than providing secure long-term funding (Article 9).
- This approach raised concerns regarding financial sustainability during prolonged conflicts.

Criticism and Support:
- The initial reception included a combination of support and criticism from prominent legal scholars.
- Many experts questioned the efficacy of Moynier’s tribunal compared to other methods of enforcement, citing the lack of a police force to enforce decisions.
- Some scholars argued for prioritizing international inquiry commissions rather than a permanent court.
- Supporters acknowledged that the proposal represented a significant step towards institutionalizing international criminal law, though they pointed out many flaws.

Historical Reception:
- Despite the notable proposition, Moynier's ideas largely fell into obscurity and were not adopted in subsequent international law developments, including pivotal Hague Conferences.
- His proposal led to renewed discussions, albeit with little immediate action towards a permanent international criminal tribunal.

Assessment of Moynier's Proposal:
- Even by contemporary standards, Moynier’s proposal contained progressive elements such as exclusive jurisdiction over specific cases.
- It lacked clarity on procedural guarantees, which present-day international judicial frameworks now prioritize.
- Some principles he proposed align with current humanitarian law standards, providing an essential foundation for contemporary discussions.

Gustave Moynier’s proposal for a permanent international criminal court reflected an early, ambitious attempt to institutionalize enforcement of humanitarian law.
Over 125 years later, the international community is poised to establish a permanent court, highlighting both the enduring relevance and the lessons learned from Moynier's initial framework.