The first is the post-Nuremberg development of international criminal law. The subsequent is the development not just of human rights standards but of international courts and committees before which individuals have standing to raise international law. These are undoubtedly striking developments, but how far they go in the direction of a real global process is less clear. One might argue that they make it more difficult. The first development has, absurdly, made it more difficult to solve the institutional problem. The second complexity has, paradoxically, made it more difficult to solve the rule of law problem.
As to international criminal law, when the Nuremberg Charter was adopted in 1945, there was little by way of a set of international criminal laws proper for application by an international war crimes tribunal. Additionally, the crimes in the Nuremberg Charter waging aggressive war, war crimes and linked crimes against humanity were applicable only to selected defeated belligerents in the war. The charges of victor's justice and exposition law were made at the time, and were a source of unease. Attempts were accordingly made to institute and generalize the result of Nuremberg, and three things were done in the period to 1950 to achieve that.
First, the General Assembly in a non-binding decree endorsed the Nuremberg Charter and expressed the view that the substantive crimes personified in the Charter reflected customary international law . Secondly, the Genocide Convention of 1948 involved the first and worst of the crimes against humanity as a specific crime. Thirdly, the 1949 Geneva Conventions provided a sensibly comprehensive set of rules for the ways of international armed conflict, grave breaches of which were to be punishable by states parties before their own courts or military tribunals.
The 1949 Conventions also provided embryonically for standards of conduct in internal armed conflict, though they made provision for implementation or punishment. In the early 1950s, work was in progress on two further steps towards an international criminal jurisdiction a study by the ILC on the possibility of an international criminal court, and a General Assembly working group on the definition of belligerence. This was the state of affairs when the curtain of the Cold War came down, and these new steps were frustrated.
The ILC reported on the possibility of an international criminal court, and its report was put on hold (International Law Commission on the Question of International Criminal Jurisdiction, 1950, p. 1). The General Assembly subcommittee labored for years on the description of aggression, producing finally, in 1974, a text of such vagueness and imprecision as to be incapable of practical application in any difficult case. There the matter of an international criminal court remained. Instead, international criminal law developments surged into new channels.
Starting with the Single Convention on Narcotic Drugs, a long line of treaties dealt with the repression of crimes of international concern (Protocol Amending the Single Convention on Narcotic Drugs, New York, 8 August 1975, 976 UNTS 105). They covered drug trafficking, aircraft hijacking and other crimes against civil aviation, ship hijacking, a range of specially defined terrorist crimes, and a number of other various matters such as state torture and the employment of mercenaries.
These repression treaties did not seek to be broad. They dealt with different questions, one after another. But there were many of them, and eventually they came to cover much of the field of crimes of international concern. While events occurred which demonstrated that there were gaps in coverage, they might be filled, as with the convention on ship hijacking of 1988, which pursued the Achille Lauro affair (A. Cassese, 1989).
In a number of areas there were complementary conventions which were more widespread and ambitious in their coverage, especially drug trafficking and, more recently, terrorism. It has still not proved possible to turn out a widespread definition of terrorism, but the patchwork definition of terrorism given by the existing conventions has served almost the same function. It does not, though, cover crashing jet planes into skyscrapers, unless one classifies the planes as bombs.