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The author is grateful to Professor Gerry Simpson for his teaching and writing in this area. Any views expressed, as well as any errors or omissions, are the author's alone.
Here lies the explanation why, in the present state of world society, international criminal law in any true sense does not exist ... There are ... some powers who are not only in fact immune to the application of collective enforcement measures but who, in law, too, are in a privileged position ... If, and when, the swords of war are taken from their present guardians, then, and only then, will the international community be strong enough to wield the sword of universal criminal justice.1
We, high-level representatives of States Parties ... Guided by a renewed spirit of cooperation and solidarity, with a firm commitment to fight impunity for the most serious crimes of international concern and to guarantee lasting respect for the enforcement of international criminal justice ... Reaffirm our commitment to the Rome Statute of the International Criminal Court and its full implementation, as well as to its universality and integrity.2
I.
INTRODUCTION
Writing 62 years ago, Georg Schwarzenberger pronounced that 'in any true sense' international criminal law (ICL) did not yet exist.3 His statement is, at least initially, extremely surprising given its context, occurring as it did just four years after the creation of the International Military Tribunal at Tokyo and five years after that at Nuremberg, both of which are seen as milestones in the creation of ICL. This was no oversight on Schwarzenberger's part. The Nuremberg and Tokyo tribunals, then and now, faced accusations of victors' justice. In the dissenting words of Mr Justice Pal, 'We may not altogether ignore the possibility that perhaps the responsibility did not lie only with the defeated leaders.'4 Against that background, and the establishment of the United Nations framework, Schwarzenberger lamented:
Optimists may hold that the United Nations represents the transition from international anarchy to world order. Yet all that has happened so far is that the number of actually sovereign States has dwindled to two or possibly five world powers. The veto is the visible expression of this new hierarchy in world affairs.