For more than a century, many philosophers, jurists, sociologists, economists and politicians have made unremitting efforts to safeguard human peace, security and development. Although these efforts are far from reaching the expected results of mankind, they have made some achievements in the process of maintaining peace. Such as the Permanent Court of International Justice, the United Nations and the International Court of Justice, and the establishment of some regional institutions, such as the European Community and the European Union. Especially after the looting of two world wars, the international community's awareness of punishing international crimes has become stronger, and international criminal law has gained unprecedented prosperity. While the International Law Commission was drafting and compiling the draft international criminal law, the international community quickly organized and tried various crimes against humanity in the Second World War, and formed some exemplary general principles of international criminal law, such as the principle of individual criminal responsibility and the principles of treaties and agreements on criminal judicial cooperation and assistance between countries. These principles still have their practical role today. From this perspective, the development of international criminal law is actually the evolutionary history of international criminal substantive law and international criminal procedure law, or the evolutionary history of international criminal code compilation and international criminal trial development. This historical process generally develops along a curve from high tide to low tide to high tide. Under the overall development trend, the development of international criminal substantive law and procedural law is not synchronous.

(1) the beginning of the development of international criminal law (before 19 19)

In essence, the international community's understanding of international crimes began with the understanding of pirates in customary international law in the17th century. "Pirates have always been regarded as people expelled by law and a kind of' crime against humanity'. According to international law, piracy makes pirates lose their national protection and thus lose their national attributes; Moreover, although his ship or plane may have the right to fly a national flag in the past, it has also lost this right. Piracy in international law is an international crime; Pirates are regarded as enemies of all countries, and they can be brought to justice by' any country under their jurisdiction'. From 184 1 to 1982, the international community has formulated a series of international legal documents applicable to piracy. Although there were few acts of piracy at that time, the Nyon arrangement of1September, 93714th considered "piracy" as a kind of "terror". Therefore, in the future, the definition of international crime is often based on piracy, that is, whether the criminal act is serious or not and whether it is internationally condemned. Since then, the characteristics of slave trade 4 and war 5, which should be condemned by the international community, have gradually emerged, thus becoming the object of condemnation by the international community. These crimes not only endanger national interests, but also threaten the peace and tranquility of the international community. However, during this period, the international community has not yet considered compiling a code of international crimes.

From the procedural point of view, the international community's understanding of international criminal law can be traced back to 1474, when 27 judges of the Holy Roman Empire tried Peter. Feng. Peter von Hagen Bush allowed his army to rape, kill and plunder the property of innocent civilians, and found him guilty because such behavior violated the laws of God and mankind. This trial attempt is regarded by the international community as the prelude to international criminal trials. However, because the international criminal trial institutions and other international trial or judicial institutions were not yet born, this kind of trial belongs to the trial activities in "informal" places. Before the outbreak of World War I, the Carnegie Foundation set up a unique non-governmental committee with international characteristics to investigate the reprehensible atrocities committed against civilians and war criminals in the First Balkan War and the Second Balkan War. At the beginning of the Second Balkan War, in order to provide western countries with a "clear and reliable picture of what is happening in the affected areas", the Committee investigated the whole process of the conflict and individual behavior. The Balkan Committee organized several fact-finding missions and made substantive reports based on the facts they discovered afterwards, which were submitted in July of 19 14. In August of the same year, World War I broke out, and the role of this report became the epitome of history. seven

Therefore, from the formal point of view, the international community's understanding of the international criminal procedure law seems to be earlier than the substantive law. Although the international criminal law in the substantive sense or the international criminal law in the procedural sense has not entered the process of standardization, that is, neither the substantive law of international crimes nor the formal international criminal trial has been carried out, the embryonic form of international criminal law has appeared in this period, especially in the sixties and seventies of 19, the international criminal law completely showed the trend of independent development, and tried to form a model of centralized legislation and judicial institutions. This development trend shows the growth of multilateral legal documents or institutions based on national investigation and implementation. Compared with the political necessity of cracking down on crimes in the international field, the independent development of laws in this field strongly illustrates the development of general international criminal law. The increase of multilateral conventions has given international criminal law a wide range of connotations, which has freed it from the limitation that it is only applicable to typical cases of crimes against humanity. Some new international conventions deal with non-ordinary international crimes, long-term focus issues, extradition system and so on. Especially those international crimes with high international political significance.

(2) The first peak of the development of international criminal law (1919-1955)

The outbreak of two world wars not only brought disasters to human society, but also promoted the development of international criminal law, which was the first climax of the development of international criminal law.

The outbreak of World War I was the direct inducing factor for the development of international criminal law. At this time, the development of international criminal law goes hand in hand in both substance and procedure. In essence, human society recognizes the serious harmful consequences of war crimes and crimes against humanity, and further clarifies that war crimes and crimes against humanity are serious international crimes; Procedurally speaking, after the First World War, the victorious countries such as France, Britain, the United States and Italy finally reached the Treaty of Versailles after various compromises, and established the world's first formal Committee on Responsibility and Punishment of War Initiators. The Committee put forward a list of 895 war criminals who should be accused, and hoped that a more formal international criminal trial would be conducted through the military courts of the allies, that is, according to the provisions of the matos clause in the preamble of The Hague Convention, the Turkish officials and other people who committed the mass massacre of Armenians in Turkey in 19 15 were prosecuted. Although due to the political factors at that time, the trial activities of the Allies did not become a reality, especially in Leipzig. 10 Therefore, some scholars pointed out that after the First World War, politicians' short-sightedness and fear of strange things hindered the development of international criminal law to some extent. 1 1 However, the efforts made by the international community during this period showed the strong desire of the international community to punish crimes that seriously endangered human peace and security, thus making the international criminal law show a rapid development trend.

The outbreak of World War II pushed the development of international criminal law to the first peak, and also laid the cornerstone for the further development of international criminal law. During this period, the substantive law not only emphasized serious international crimes such as war crimes, crimes against humanity, crimes against humanity and aggression, but also affirmed other international crimes such as genocide. Procedurally, the Nuremberg trial 12 and the Tokyo trial 13 not only succeeded in social consciousness, but also satisfied the people's desire for peace and punishment of war criminals. The Charter of the Nuremberg Tribunal and its judicial activities have created laws to solve armed conflicts in innovative ways and created new principles of international law-the Nuremberg Principles (including the famous principle of individual responsibility). 14 although the principle of individual criminal responsibility established by the Nuremberg international military tribunal was ex post facto legislation, it was not based on the principle of nulla poena sine lege, which was widely advocated by the international community at that time. 15 but the legitimacy of the Nuremberg trial is beyond doubt. Because before the Nuremberg trial, the international community had already concluded in 1928 the General Treaty of Abandoning War as a National Policy Tool, that is, the Kellogg-briand Treaty (or the Paris Treaty), aimed at resolving international disputes by peaceful means. Among the 63 countries that signed the Treaty, Germany, Italy and Japan are among them. As contracting parties, these countries clearly have a clear understanding of the content and purpose of the treaty. Although there was no criminal punishment in the Kellogg-briand Treaty, the Nuremberg trial just made up for this defect of the Convention, which was also the contribution of the Nuremberg trial to the development of international law. Although the Tokyo trial was slightly later than the Nuremberg trial, the Far East International Military Tribunal tried ordinary war crimes that violated the laws or customs of war on the basis of traditional international law, and also set a trial example of crimes against peace and crimes against humanity. However, the establishment of these principles is an extension of the Nuremberg principles, especially the theory of "conspiracy" aggression. The Tokyo trial was discussed more deeply than the Nuremberg trial.

The Nuremberg trial and the Tokyo trial not only pushed the development of international criminal law to the peak, but also showed its far-reaching significance in two other aspects: First, it urged the United Nations to turn its attention to the establishment of a permanent international criminal court. 1948 The United Nations General Assembly invited the International Law Commission to study the value and feasibility of establishing an international criminal court. After reviewing the Commission's report, the United Nations General Assembly concluded that the establishment of such a court was both worthwhile and feasible. It was also decided that 17 United Nations Member States should form the International Criminal Justice Association to prepare for the establishment of the International Criminal Court. 195 1 year, the association submitted the draft articles of association, and 1953 was revised for the second time by the Committee. 1953 the draft statute provides for the establishment of a permanent court, which will have jurisdiction over crimes "recognized by international law" committed by any "natural person", including heads of state and personnel of other government agencies (these crimes are generally regarded as specific crimes stipulated in the draft code for punishing crimes against the peace and security of mankind (hereinafter referred to as the draft code)). 17 the court will exercise personal jurisdiction according to the jurisdiction granted to the court by the country where the crime occurred and the country of nationality of the criminal according to the "convention, special agreement or unilateral declaration". The second is to promote the compilation of relevant international criminal codes. Some scholars have pointed out that the idea of compiling a code of crimes always goes hand in hand with the idea of establishing an international criminal court in history, but there is no necessary connection between the two ideas. If the International Criminal Court fails to be established, then without the establishment of the International Criminal Court, international criminal law will be nowhere to be implemented. It is difficult to solve the public's indignation against serious violations through cooperation between countries or relying on the "indirect execution" of local lawsuits. 18

We believe that this short period after the end of the two world wars is called a peak of the development of international criminal law, because the development of international criminal substantive law and procedural law complement each other during this period. From the hope of international criminal trial after World War I, the international community stepped into the actual operation of international criminal trial after World War II, and then turned to call for the establishment of a permanent international criminal court. This change of thinking shows the progress of international criminal law in procedure, and the compilation of international criminal code in this period also shows the urgent need for substantive criminal law in international criminal trials. Since 1924, the International Association of Criminal Law has been committed to the preparation of the International Criminal Court and the compilation of the international crime code, and it was not until the Nuremberg trial that the process of realizing this wish was accelerated. During the first session of the United Nations General Assembly from 65438 to 0946, "the basic principles of international law recognized in the Nuremberg Charter and the judgment of the international military tribunal" were confirmed. 19 1947 The General Assembly of the United Nations instructed the Codification Committee of International Law (the predecessor of the International Law Commission) 20 to formulate the general principles of the Code of Crimes against the Peace and Security of Mankind. The tasks authorized by resolution 2 1 include: (1) formulating some principles of international law recognized in the Charter of the Nuremberg Tribunal and the judgment of the Tribunal; (2) Draft a code of crimes against the peace and security of mankind, and clearly point out its consistency with the contents described in part (1). Two years later, according to the spirit of the resolution, the International Law Commission began to formulate the "Basic Principles in the Charter of the Nuremberg Tribunal" and drafted the "Draft Code of Crimes against the Peace and Security of Mankind". The Committee set up a subcommittee and appointed a special report drafter to draft the Code of Crimes against the Peace and Security of Mankind. Although there were only five articles in the Draft Code of Crimes drafted in 24 1954, listing 13 independent international crimes, the active compilation of the Draft Code of International Crimes and the successful international criminal trials built the prosperity of international criminal law in this period.

(3) The low point of the development of international criminal law (1955— 1992)

If international historical events have promoted the development of international criminal law, the international community seems to have experienced a period of false peace since the trial of international war criminals in the Second World War. However, because there was no so-called major historical event during this period, the development of international criminal law was also in a downturn.

During this period, the international community basically did not conduct any international criminal trials, and the International Law Commission continued to work on compiling some international crime codes. As the International Law Commission said in its report 1984, "The procedure that the Commission tried to follow when compiling international criminal law was to carefully examine the violations of the international system (conventions, declarations, resolutions, etc.). ) and choose some of the most serious acts, because not all international crimes will endanger international peace and security. " In addition, the International Law Commission changed the word "official" to "crime" in the draft code of1988,26, so as to strengthen the understanding of the seriousness of criminal acts; Because the definition of the crime of aggression has not been finalized for a long time, it has even affected the compilation process of the whole code.

In these decades, although the international community is not interested in the codification of international law and the establishment of international courts, the definition of international crimes has undergone major changes. The focus of the international community has gradually shifted from extremely serious international crimes such as war crimes and crimes against humanity to some new crimes, such as aggression, genocide, apartheid, international terrorism and illegal drug trafficking. From 65438 to 0990, the international community began to deal with two new types of international crimes, namely environmental crimes and crimes of stealing nuclear weapons and materials. In the meantime, the United Nations is still making serious efforts to compile a code of international crimes and actively planning the process of establishing an international criminal court. Although the "cold war" hindered the implementation of this process, the development of international criminal law has gradually stepped out of the trough since 1990.

(4) The second peak of the development of international criminal law (1992-1998)

From 199 1, serious violations of international humanitarian law occurred in the former Yugoslavia, and from 1994, genocide and serious violations of international humanitarian law also occurred in the armed conflict in Rwanda. These events have once again pushed international criminal law to a new peak. The remarkable characteristics of the development of international criminal law in this period can be summarized as three aspects:

First, establish an international criminal ad hoc court. 1992 10 10 On 6 October, the Security Council formally adopted resolution 780, and established an expert commission for the investigation of war crimes in the former Yugoslavia, which was responsible for investigating and collecting evidence for "serious violations of the Geneva Conventions and other violations of international humanitarian law" in the conflict in the former Yugoslavia. 291On February 22, 1993, after the first interim report was submitted by the Commission of Experts, 30 the Security Council clearly stipulated in its resolution 808 that "an international tribunal shall be established to prosecute those responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since19/KLOC-0". 1On May 25th, 993, the International Criminal Tribunal for the Former Yugoslavia (ICTFY) was formally established in The Hague. After the establishment of ICTY, the Security Council adopted resolution 935 (1994) in July, aiming at investigating serious violations of international humanitarian law during the civil war in Rwanda, and established an expert committee to investigate violations of international humanitarian law in Rwanda, including an expert committee to investigate possible acts of genocide. At the same time, Security Council resolution 995 approved the statute and trial mechanism of the Rwanda Tribunal.

We believe that the establishment and operation of ICTY and ICTR is a significant development in the procedure of international criminal law. The establishment of these two tribunals basically consolidated and developed the basic principles of international law established by the Nuremberg and Tokyo trials. These advances are mainly manifested in three aspects: first, the progress of legal sources. Both tribunals are international ad hoc tribunals established by the United Nations Security Council in accordance with the provisions of the Charter of the United Nations and Security Council resolutions, so they played an active role in solving serious violations of humanitarian law in a timely and effective manner under the historical conditions at that time. 3 1 2 is to expand the principles of international law. On the basis of the basic principles of the Nuremberg Tribunal and the Far East Tribunal, the two tribunals extended the theory that only one party to the conflict should bear criminal responsibility to be unrestricted. As long as the perpetrator commits an act that violates international humanitarian law, he should bear criminal responsibility regardless of whether he is a party to the conflict. The third is to further integrate the basic theories of international law and criminal law. In litigation activities, some principles used by the courts of the two places have expanded the connotation of the general principles of international criminal law, such as exercising concurrent jurisdiction, clearly applying the principle of non bis in idem, emphasizing the principle of judicial independence, protecting the rights of suspects and defendants, and international judicial assistance.

Second, compile and adopt the draft criminal law. With the active efforts of international organizations such as the International Law Commission and the International Criminal Law Association, the compilation and promulgation of the Draft International Code of Crimes against the Peace and Security of Mankind was successfully completed. The draft code was formally formed in 199 1. The draft code was continuously analyzed and revised by the United Nations according to the opinions put forward by all parties, and was formally adopted in 1996. The Draft Code is the largest number of international crimes in history, * * * contains 26 international crimes. The formulation of this code got rid of the disadvantage that the original international conventions did not contain the characteristics of punishment, and absorbed the provisions and characteristics of penalty application gradually formed in the development of modern international conventions and international criminal law, such as the principle of individual criminal responsibility established in the Charter of the Nuremberg International Military Tribunal and international crimes that should be tried internationally. At the same time, the code also fully shows the inherent characteristics of international crime: (1) it is clear that the prescribed behavior constitutes an international crime, or it constitutes an international crime according to international law; (2) indirectly recognizing the punitive nature of behavior by establishing prohibition, prevention, prosecution and punishment and similar obligations; (3) It is forbidden to criminalize sexual behavior; (4) the obligation to prosecute; (5) the obligation to punish prohibited sexual behavior; (6) the obligation to extradite; (7) The obligation to cooperate in prosecution and punishment (including judicial assistance in criminal proceedings); (8) Basis for establishing criminal jurisdiction (criminal jurisdiction theory or criminal jurisdiction takes precedence); (9) Establish an international criminal court or an international criminal court; (10) The defense reason for canceling the superior order. The compilation and adoption of the draft code not only meets the needs of international criminal trial activities under the rule of law, but also provides a choice space for the establishment of a permanent international criminal court.

Third, the birth of the Rome Statute of the International Criminal Court. 1992165438+1On October 25th, the United Nations General Assembly unanimously adopted a resolution requesting the International Law Commission to start drafting the Statute of the International Criminal Court in accordance with the recommendation of the working group formed by the International Law Commission. 1994 the draft statute of the international criminal court was issued, and the international community accelerated the process of establishing the international criminal court. 1995, the United Nations established the Preparatory Committee for the Establishment of an International Criminal Court. 1996 1 On October 28th, the Preparatory Committee submitted a report to the United Nations 5 1 General Assembly, requesting to expand the scope of work of the Preparatory Committee, and decided to hold a meeting in1. 1998 The Rome Statute of the International Criminal Court was formally adopted at the World Diplomat Conference held in Rome, Italy from June 15 to July 17. The birth of the Statute of the International Criminal Court is a milestone in the development of international criminal law. On the one hand, it is the result of the active efforts of academic institutions in the international community and the International Law Commission; on the other hand, it is the result of overcoming the differences of various cultural concepts and values and seeking common ground while reserving differences under the common expectation that all countries in the world are eager for peace, security and development. Judging from the process and content of the statute, the International Law Commission hopes to embody different legal cultures and values as much as possible. As the main legal document on which the International Criminal Court is established, the Statute has established a strict litigation mechanism and administrative mechanism, and its nuances cover all aspects of the International Criminal Court. This not only provides great convenience for the effective operation of the International Criminal Court, but also serves as a model for the effective integration of international law in substance and procedure.

The birth of the Draft Criminal Code and the Statute of the International Criminal Court is enough to show the fruitful results of the development of international criminal law in this period. Then, how to develop international criminal law in the future, whether it develops steadily or linearly or oscillates, depends on the pattern of international relations and the influence of social development and changes.