Earlier this week, just before President Obama addressed the nation on why the US is involved in Libya, I was privileged to hear Diane Amann give a talk at an International Law Colloquium at George Washington University Law School. Her talk, which was titled The Value of Peace and the Crime of Aggression, explores the contradictions involved in pursuing "a peace envisioned as the absence of war, yet often pursued through military intervention."
She began by pointing out that, even though President Obama had received the Nobel Prize for Peace, the US is now involved in three different conflicts, and previewed how President Obama would defend the US role in Libya. Indeed, as I listened to Obama's speech that evening, Diane's talk repeatedly echoed in my mind; she had presciently predicted his approach almost to a word!
The main part of her talk focused on the crime of aggression. She reviewed the adoption in Kampala last year of amendments to the Rome Statute that define the crime and how the ICC will exercise its jurisdiction over this crime. She described the eloquence of Ben Ferencz, the 90-plus year old former Nuremberg prosecutor, at the Kampala conference as he urged development of the crime of aggression. In addition, she discussed the US approach to securing peace around the world, and then analyzed the proposed aggression amendments in the context of this history. It was fascinating to hear her explore the paradoxes in American policy as we use force to achieve peace and as we hail mechanisms for international accountability while seeking to avoid such accountability ourselves.
The article is part of a work in progress that I very much look forward to reading!
Showing posts with label Nuremberg. Show all posts
Showing posts with label Nuremberg. Show all posts
Apology / disculpa
The apology given for U.S. tests done six decades ago on unknowing Guatemalans was profuse.Among the words in the bilingual, joint statement of apology, reprinted in full below, that Secretary of State Hillary Clinton (below left) (credit) and Health and Human Services Secretary Kathleen Sebelius (bottom left) (credit) issued on Friday:
► unethical / antiético
► outraged / indignados
► reprehensible / reprochable
► regret /disculpas
► abhorrent / abominables
► sad / triste
► appalling / atroz
None overstates the significance of a recent finding by Susan M. Reverby (right), the the Marion Butler McLean Professor in the History of Ideas and Professor of Women's and Gender Studies at Wellesley College. Reverby unearthed what a research team, funded by a grant from the United States' National Institutes of Health, did from 1946 to 1948. As stated by Dr. Francis S. Collins, current director of NIH, a D.C. briefing Friday, the teamintentionally infected vulnerable populations, including prisoners and mentally ill patients, with sexually transmitted diseases, including syphilis, gonorrhea, and chancroid. The purpose of the study was to test the effectiveness of penicillin, which was relatively new at the time.
Notwithstanding that "the intention was to provide treatment, and the evidence supports that the vast majority were adequately treated," Collins identified 4 "primary ethical violations":
► Experimentation on vulnerable populations;
► Apparent absence of informed consent;
► Deception respecting what what the team was doing to the subjects; and
► Intentional infection of potentially harmful pathogens.
A federal investigation is under way.
One hopes that investigators ask a question reporters at the briefing did not:
What does it mean that these tests took place at the same time that Americans were prosecuting Germans for medical experimentation -- in the same year, 1947, that a physician advising American war crimes prosecutors drafted what would come to be known as the Nuremberg Code, the keystone of current safeguards for human subjects?
While awaiting answer, ponder the Clinton-Sebelius apology:
The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical. Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise ofpublic health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices. The conduct exhibited during the study does not represent the values of the United States, or our commitment to human dignity and great respect for the people of Guatemala. The study is a sad reminder that adequate human subject safeguards did not exist a half-century ago.
Today, the regulations that govern U.S.-funded human medical research prohibit these kinds of appalling violations. The United States is unwavering in our commitment to ensure that all human medical studies conducted today meet exacting U.S. and international legal and ethical standards. In the spirit of this commitment to ethical research, we are launching a thorough investigation into the specifics of this case from 1946. In addition, through the Presidential Commission for the Study of Bioethical Issues we are also convening a body of international experts to review and report on the most effective methods to ensure that all human medical research conducted around the globe today meets rigorous ethical standards.
The people of Guatemala are our close friends and neighbors in the Americas. Our countries partner together on a range of issues, and our people are bound together by shared values, commerce, and by the many Guatemalan Americans who enrich our country. As we move forward to better understand this appalling event, we reaffirm the importance of our relationship with Guatemala, and our respect for the Guatemalan people, as well as our commitment to the highest standards of ethics in medical research.
Declaraciones de la secretaria de Estado Hillary Rodham Clinton y la secretaria de Salud y Servicios Sociales Kathleen Sebelius sobre el Estudio de inoculación de enfermedades de transmisión sexual del Servicio de Salud Pública de Estados Unidos de 1946 a 1948:
El estudio de inoculación de enfermedades de transmisión sexual que se llevó a cabo de 1946 a 1948 en Guatemala claramente fue antiético. Aunque estos sucesos ocurrieron hace más de 64 años, estamos indignados de que tal investigación reprochable haya ocurrido bajo el pretexto de la salud pública. Lamentamos profundamente que esto haya sucedido y ofrecemos nuestras disculpas a todas las personas que resultaron afectadas por esas abominables prácticas de investigación. La conducta demostrada durante el estudio no representa los valores de EstadosUnidos ni nuestro compromiso con la dignidad humana y el gran respeto hacia el pueblo de Guatemala. El estudio es un triste recordatorio de que las garantías adecuadas para la investigación en seres humanos no existían hace medio siglo.
En la actualidad, los reglamentos que gobiernan la investigación médica en seres humanos financiada por Estados Unidos prohíben este tipo de violaciones atroces. Estados Unidos es inquebrantable en su compromiso de garantizar que todos los estudios médicos en seres humanos que se realizan en la actualidad, cumplan con las rigurosas normas legales y éticas de Estados Unidos e internacionales. Bajo el espíritu de este compromiso con la ética investigativa, estamos iniciando una minuciosa investigación con respecto a los detalles de este caso de 1946. Además, mediante la Comisión Presidencial para el Estudio de Asuntos de Bioética, convocaremos también a un cuerpo de especialistas internacionales para que revise e informe sobre los métodos más eficaces para asegurar que toda investigación médica en seres humanos que se realice en el mundo en la actualidad cumpla con rigurosas normas éticas.
El pueblo de Guatemala es uno de nuestros amigos cercanos y vecinos en las Américas. Nuestros países son socios en una variedad de asuntos y nuestros pueblos están vinculados por valores compartidos, comercio y por los muchos stadounidenses de origen guatemalteco que enriquecen nuestro país. A medida que avanzamos para comprender mejor este atroz suceso, reiteramos la importancia de nuestra relación con Guatemala y nuestro respeto por el pueblo guatemalteco, así como nuestro compromiso con las normas éticas más exigentes en la investigación médica.
Prizing human rights
An institution established in memory of a Nuremberg prosecutor is seeking prize nominees.
Institution:
The Thomas J. Dodd Research Center, dedicated in 1995 at the University of Connecticut. The Center's namesake is Thomas J. Dodd, who began his career in the U.S. Department of Justice and went on to serve as a senior prosecutor at Nuremberg (right), cross-examining defendants in the Trial of the Major War Criminals and serving too in subsequent Nuremberg proceedings. (photo credit) Dodd, born in 1907, was a Democratic U.S. Senator from Connecticut from 1959 until a few months before his death in 1971; his children include the retiring senior Senator from Connecticut, who published his father's Letters from Nuremberg (2007), as well as a former U.S. Ambassador.
Prize:
The Thomas J. Dodd Prize in International Justice and Human Rights, awarded biennially by the University of Connecticut "to an individual or group who has made a significant effort to advance the cause of international justice and global human rights." Previous winners (here and here):
2003, Bertie Ahern and Tony Blair, then Prime Ministers of Ireland and Britain, respectively; 2005, Louise Arbour (left), then U.N. High Commissioner for Human Rights, and former South African Constitutional Court Justice Richard J. Goldstone, like Arbour a onetime Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; 2007, the Center for Justice & Accountability, of which IntLawGrrls guest/alumna Pamela Merchant serves as Executive Director, and Mental Disability Rights International, last month renamed Disability Rights International; and 2009, the Committee to Protect Journalists.
To nominate a worthy individual or group for this monetary prize (no self-nominations accepted), complete and submit the form available here. Deadline is December 31, 2010.
Institution:
The Thomas J. Dodd Research Center, dedicated in 1995 at the University of Connecticut. The Center's namesake is Thomas J. Dodd, who began his career in the U.S. Department of Justice and went on to serve as a senior prosecutor at Nuremberg (right), cross-examining defendants in the Trial of the Major War Criminals and serving too in subsequent Nuremberg proceedings. (photo credit) Dodd, born in 1907, was a Democratic U.S. Senator from Connecticut from 1959 until a few months before his death in 1971; his children include the retiring senior Senator from Connecticut, who published his father's Letters from Nuremberg (2007), as well as a former U.S. Ambassador.Prize:
The Thomas J. Dodd Prize in International Justice and Human Rights, awarded biennially by the University of Connecticut "to an individual or group who has made a significant effort to advance the cause of international justice and global human rights." Previous winners (here and here):
2003, Bertie Ahern and Tony Blair, then Prime Ministers of Ireland and Britain, respectively; 2005, Louise Arbour (left), then U.N. High Commissioner for Human Rights, and former South African Constitutional Court Justice Richard J. Goldstone, like Arbour a onetime Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; 2007, the Center for Justice & Accountability, of which IntLawGrrls guest/alumna Pamela Merchant serves as Executive Director, and Mental Disability Rights International, last month renamed Disability Rights International; and 2009, the Committee to Protect Journalists.To nominate a worthy individual or group for this monetary prize (no self-nominations accepted), complete and submit the form available here. Deadline is December 31, 2010.
On September 15
On this day in ...... 1935 (75 years ago today), at Nuremberg, Germany, Hermann Göring, President of Germany's Reichstag, proclaimed the Nuremberg Laws; specifically, the Reich Citizenship Law and the Law for the Protection of German Blood and German Honor. Together they operated to strip German Jews of citizenship and to ban intermarriage and sexual relations between persons with Jewish heritage and other Germans. (image credit) After World War II, many German officials, physicians, and business people stood trial at Nuremberg for crimes committed in furtherance of those laws. The original statutes were not placed in evidence, however. As detailed last month in this obituary, the original was found in a German vault, by Martin Dannenberg, an American intelligence officer, who forwarded them to command for use at the trials. But his efforts were thwarted when the original was kept by U.S. Army General George S. Patton, of whom Dannenberg said: "'that scoundrel.'" Just 3 weeks ago, the original was donated to the National Archives of the United States.
(Prior September 15 posts are here, here, and here.)
4th Chautauqua Declaration
As a cosponsor of the 4th International Humanitarian Law Dialogs, just concluded at the Chautauqua Institution in upstate New York, IntLawGrrls is proud to reproduce in full the 4th Chautauqua Declaration signed yesterday by a host of prosecutors from present and past international criminal courts and tribunals, depicted above. They are: top row left to right, Andrew T. Cayley of the Extraordinary Chambers in the Courts of Cambodia, Serge Brammertz of the International Criminal Tribunal for the former Yugoslavia, Fatou Bensouda of the International Criminal Court, James Johnson of the Special Court for Sierra Leone, and Bongani Majola of the International Criminal Tribunal for Rwanda; and bottom row left to right, Robert Petit of the Extraordinary Chambers in the Courts of Cambodia, David M. Crane of the Special Court for Sierra Leone, Benjamin B. Ferencz and H.W. William Caming of the International Military Tribunals at Nuremberg, and Richard J. Goldstone of the International Criminal Tribunals for Rwanda and the former Yugoslavia. (Seated next to Goldstone is Stephen J. Rapp, a former prosecutor at the Special Court for Sierra Leone. Now the U.S. Ambassador for War Crimes Issues, he did not sign.)Here's the Declaration:
In the spirit of humanity and peace the assembled current and former international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as the foundation to international security, and cognizant of the legacy of all those who preceded us at Nuremberg and elsewhere:
Recognize the tenth anniversary of the Robert H. Jackson Center and its important mandate to preserve, promote, and advance the legacy of Justice Robert Jackson through education, exhibits, and events, which emphasize the current relevance of Jackson’s ideas on individual freedom and justice;
Honor the life of our colleague and friend Whitney R. Harris, a prosecutor of the International Military Tribunal at Nuremberg who passed away this year; commend his drive and force in ensuring that the spirit of Nuremberg continued; and note the awarding posthumously to Whitney Harris the first annual Joshua Heintz Humanitarian Award for distinguished service to mankind;
Applaud the efforts of the states parties to the Rome Statute, and other delegations in Kampala this year in their willingness to openly take stock in the progress of international criminal law in general and the concrete recommendations to ensure justice for victims of international crimes; and for reaching consensus on a definition of the crime of aggression and for their determination to press for appropriate mechanisms for its enforcement and prosecution;
Noting that after thirty years of impunity the first judgment has been rendered in respect of the crimes of the Khmer Rouge in Cambodia;
Reflecting upon the fifteenth anniversary of the genocide at Srebrenica and the continuing need for the accountability of those responsible;
Expressing concern at the continuing plight of civilians caught up in armed conflict and particularly for those crimes committed against women and children;
Now do call upon the international community to:
Keep the spirit of the Nuremberg Principles alive by:
Ensuring the enforcement of the laws of armed conflict and in particular those relating to the protection of civilians;
Calling upon parties in armed conflict to respect international law applicable to the rights and protection of women and girls;
Ensuring that gender crimes are investigated and prosecuted appropriately;
States refraining from the use or threat of armed force and settling their disputes by peaceful means and in accordance with the United Nations Charter and international law;
Supporting and adequately funding the tribunals and courts in their work to maintain the rule of law at both the international and domestic level;
Implementing their obligations under international law in the sharing of information, investigating, prosecuting or transferring to an appropriate judicial body those who violate international criminal law to ensure accountability of all persons, including sitting heads of state;
Considering the adoption of a Convention on the Suppression and Punishment of Crimes Against Humanity; ...
Adjudicating Aggression in Domestic Courts
As we’ve blogged before, adding the crime of aggression to the ICC Statute threatens to undermine the Court’s system of complementarity, which depends on domestic courts being the primary fora for adjudicating international crimes. Very few states have penalized the crime of aggression, but they may begin to do so in the event that the crime of aggression is added to the ICC Statute. Delegates involved in these negotiations should start focusing on what amendments to the complementarity provisions or other provisions might be appropriate to signal that aggression prosecutions need not go forward in domestic courts in the event that the Court eventually exercises jurisdiction over the crime.
This issue was central to the British House of Lords case of R. v. Jones, [2006] UKHL 16—one of the few domestic cases to consider the crime of aggression. (Article 14 of the Statute of the Iraqi High Tribunal includes the domestic crime of an analogous crime—“The abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of
Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958.” Saddam Hussein was executed before these charges could be adjudicated).
The issue arose in Jones in a somewhat backward fashion. In 2003, several British subjects (including Margaret Jones, right) were arrested in connection with efforts undertaken at British military bases to impede British involvement in the Iraq War. The individuals were variously charged with, and some convicted of, aggravated trespass and criminal damage. The appellants all argued that under British law, they were entitled to use reasonable force to prevent the commission of a crime: the crime of aggression. Section 3 of the Criminal Law Act 1967 provides:
Appellants asserted that the United Kingdom’s actions in Iraq were unlawful and that they were thus justified in attempting to prevent them by the use of reasonable force. By their account, the crime of aggression was established in customary international law and its core elements understood with sufficient clarity to permit the prosecution of the crime. They argued that the defense should not be
In response, the Crown argued that there is no automatic incorporation of crimes of customary international law into the domestic law. Rather, such crimes require “statutory interposition.” In situations in which the state’s prerogative with regard to national security and foreign policy is at issue and is determinative, such matters remain outside the courts’ purview.
The Court of Appeals ruled, inter alia, that the crime of aggression was insufficiently defined under international law to trigger the application of the justification defense under the statute.
The House of Lords affirmed, but on different grounds. Lord Bingham of Cornhill determined that customary international law recognized the crime of aggression as evidenced by treaty practice since the 1920s, the Nuremberg and Tokyo proceedings, and the ICC negotiations. Lord
Hoffman (left, of Pinochet fame) reasoned that it was for Parliament to decide which international offenses should be made prosecutable in domestic courts and that the courts no longer possessed any residual power to create new offenses in the event of statutory gaps, no matter how pressing the public interest. Furthermore, he noted that the liability of individuals for the crime of aggression is secondary to the acts of a state. The courts should not inquire into the “discretionary powers” of the state to use force. Lord Mance in his speech noted that not all public international law crimes must, or should, be incorporated into the domestic penal code.
The Appeals were dismissed. Several of the appellants were allowed at trial to argue that they were seeking to prevent specific and codified war crimes from being committed, principally the release of cluster bombs and munitions tipped with depleted uranium. Last I was able to determine, the trials ended with hung juries and the defendants were slated to be retried.
In their speeches, the Lords recognized that since the early days of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, individual responsibility for the crime of aggression has been intrinsically and inextricably linked to the commission of aggression by a state. Thus, prosecuting the crime of aggression in domestic courts would necessarily involve those courts in non-justiciable inquiries into foreign policy/national security decisions to use force by the home or foreign states. Indeed, as a predicate to finding an individual liable for the crime of aggression, courts would have to declare an act of state to be unlawful. Creating a unique or inverse complementarity regime for the crime of aggression would avoid this. To date, delegates have not focused on this implication of expanding the Court’s subject matter jurisdiction to the crime of aggression, but they would do well to do so.
This issue was central to the British House of Lords case of R. v. Jones, [2006] UKHL 16—one of the few domestic cases to consider the crime of aggression. (Article 14 of the Statute of the Iraqi High Tribunal includes the domestic crime of an analogous crime—“The abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of
Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958.” Saddam Hussein was executed before these charges could be adjudicated).The issue arose in Jones in a somewhat backward fashion. In 2003, several British subjects (including Margaret Jones, right) were arrested in connection with efforts undertaken at British military bases to impede British involvement in the Iraq War. The individuals were variously charged with, and some convicted of, aggravated trespass and criminal damage. The appellants all argued that under British law, they were entitled to use reasonable force to prevent the commission of a crime: the crime of aggression. Section 3 of the Criminal Law Act 1967 provides:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Appellants asserted that the United Kingdom’s actions in Iraq were unlawful and that they were thus justified in attempting to prevent them by the use of reasonable force. By their account, the crime of aggression was established in customary international law and its core elements understood with sufficient clarity to permit the prosecution of the crime. They argued that the defense should not berestricted to crimes triable in the domestic courts and should be understood as extending to crimes recognised under customary international law.Acknowledging the ongoing negotiations within the Special Working Group on the Crime of Aggression, the appellants stated that the absence of agreed provisions was primarily the result of disagreements over procedural matters, and did not negate the existence of a sufficiently defined prohibition of aggression in customary international law. Even though “the exercise of the prerogative in respect of foreign policy and deployment of the armed forces cannot be challenged in the courts,” the appellants argued that they should be entitled to rely on the illegality of the exercise of the Crown’s prerogative powers as a defense to criminal charges and to put to the jury the question of whether their actions were reasonable and proportionate in the face of an imminent crime.
In response, the Crown argued that there is no automatic incorporation of crimes of customary international law into the domestic law. Rather, such crimes require “statutory interposition.” In situations in which the state’s prerogative with regard to national security and foreign policy is at issue and is determinative, such matters remain outside the courts’ purview.
The Court of Appeals ruled, inter alia, that the crime of aggression was insufficiently defined under international law to trigger the application of the justification defense under the statute.
The House of Lords affirmed, but on different grounds. Lord Bingham of Cornhill determined that customary international law recognized the crime of aggression as evidenced by treaty practice since the 1920s, the Nuremberg and Tokyo proceedings, and the ICC negotiations. Lord
Hoffman (left, of Pinochet fame) reasoned that it was for Parliament to decide which international offenses should be made prosecutable in domestic courts and that the courts no longer possessed any residual power to create new offenses in the event of statutory gaps, no matter how pressing the public interest. Furthermore, he noted that the liability of individuals for the crime of aggression is secondary to the acts of a state. The courts should not inquire into the “discretionary powers” of the state to use force. Lord Mance in his speech noted that not all public international law crimes must, or should, be incorporated into the domestic penal code.The Appeals were dismissed. Several of the appellants were allowed at trial to argue that they were seeking to prevent specific and codified war crimes from being committed, principally the release of cluster bombs and munitions tipped with depleted uranium. Last I was able to determine, the trials ended with hung juries and the defendants were slated to be retried.
In their speeches, the Lords recognized that since the early days of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, individual responsibility for the crime of aggression has been intrinsically and inextricably linked to the commission of aggression by a state. Thus, prosecuting the crime of aggression in domestic courts would necessarily involve those courts in non-justiciable inquiries into foreign policy/national security decisions to use force by the home or foreign states. Indeed, as a predicate to finding an individual liable for the crime of aggression, courts would have to declare an act of state to be unlawful. Creating a unique or inverse complementarity regime for the crime of aggression would avoid this. To date, delegates have not focused on this implication of expanding the Court’s subject matter jurisdiction to the crime of aggression, but they would do well to do so.
(Disclosure: I've been advising the Department of State on the aggression negotiations. Any views expressed here are my own).
On April 23
On this day in ...... 1945 (65 years ago today), 7,000 women inmates of Ravensbrück concentration camp were turned over to the Swedish Red Cross, which brought them to be cared for in Sweden, a neutral country during World War II. (credit for photo showing chalk marks on back of prisoners selected to go to Sweden) The transfer resulted from negotiations between Swedish Count Folke Bernadotte and the head of the Nazi SS. Within days the SS would evacuate 15,000 other inmates on a forced death march. At month's end Soviet troops would liberate the camp, finding still there as many as 3,000 sick and dying inmates. In its 6 years of existence, the eastern Germany camp had housed more than 120,000 prisoners, all but 20,000 of whom were women; tens of thousands died there. Many others were subjected to medical experimentation, for which some officials would, as we've posted, stand trial at Nuremberg and elsewhere.
Write On! Untold war crime trial stories
(Write On! is an occasional item about notable calls for papers.) From our Opinio Juris colleague Kevin Jon Heller, news that papers are being sought for what promises to be a fascinating event:The conference, entitled Untold Stories: Hidden Histories of War Crimes Trials, will be held October 15-16, 2010, at the University of Melbourne Law School in Australia. Sponsoring the conference is the law school's Asia Pacific Centre for Military Law (logo below left). Organizers are Kevin, who's a Senior Lecturer at the law school, along with Dr. Gerry Simpson, Centre Director and a law professor both at Melbourne and the
London School of Economics; Dr. Tim McCormack, Melbourne law professor and the Centre's Foundation Director, whom the Office of the Prosecutor of the International Criminal Court has named its Special Adviser on International Humanitarian Law; and Dr. Jennifer Balint (right), an expert on genocide and state crime at Melbourne's School of Social and Political Sciences. Confirmed speakers for this effort to examine less well-known aspects of war crimes trials, with an eye to publication of a conference volume, include our colleagues Mark Drumbl (Washington & Lee) and Larry May (Vanderbilt).Organizers explain:
As international criminal law matures, there has been a return to history. Intriguing research agendas have focused on the origins of international criminal law in the repression of piracy or slave-trading and on the institutional innovations found at Versailles and The Hague. Meanwhile, familiar landmarks are being revisited in order to clarify ongoing doctrinal debates (aggression at Nuremberg, conspiracy at Tokyo, and so on). Alongside all of this is increased interest in less familiar war crimes trials, both international and domestic.
The idea behind this symposium is to uncover and explore some of the less well-known – perhaps even obscure – war crimes trials. As an example, Kevin Heller, one of the organizers, will be presenting a paper on the twelve Nuremberg Military Tribunals held under Control Council Law No. 10. There will also likely be papers on the war crimes trials held in Bangladesh after the secession, on the recent genocide trial in Ethiopia, and on the post-war trials under Australian jurisdiction in the Far East.
An abstract of 300 to 500 words, plus a short CV, should be submitted no later than the deadline of May 30, 2010, to Professor Simpson c/o Centre Administrator Cathy Hutton at c.hutton@unimelb.edu.au. Questions should be directed to Kevin at kheller@unimelb.edu.au.What do women want? International law that matters in their day-to-day lives
(Part 3 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald. Part 1 is here; Part 2 is here.) I believe women want international law and tribunals to make a difference in their daily lives.
Even if tribunals do their work well, so that women’s wrongs are recognized as serious war crimes, crimes against humanity, and tools of genocide – even if enough women can infuse their own sensitivities into the process – even if tribunals achievements’ are truly accessible to ordinary women – will all that really help women in states where old ways survive? In states where women are treated, in peacetime as well as in wartime, as property, and their sexual and physical integrity impugned at will?
Even in countries that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties, customary law and local norms executed by tribal and religious courts often approve practices that oppress and diminish women – that deny them rights to work, to hold property, to custody of their children, to be educated, to inherit money, or to obtain divorces however maltreated they may be. In these benighted lands, there are only a few embryonic organizations, and even fewer shelters, for oppressed women.
You may ask what all this has to do with tribunals.
I see an entry point whereby the advances of international humanitarian law and tribunal jurisprudence could help the plight of these women and girls. It is future development of the crimes against humanity doctrine.
Unlike genocide, which limits its protection to racial, religious, and ethnic groups, and unlike war crimes, which require a nexus to armed conflict, crimes against humanity can include a state-ordered, perhaps even a state-tolerated, regime of discrimination that violates the fundamental rights of women.
Surely the conditions I have described could, in extreme cases, amount to the discriminatory treatment that is the vital element in the underlying crime of
persecution, which can qualify as a crime against humanity. Article 7 of the ICC Statute defines a crime against humanity as prohibited conduct that is part of an “attack,” against “any civilian population,” which involves “the multiple commission of specified acts pursuant to or in furtherance of a state or organizational body”; the violations must be systematic or widespread. Article 7(g) sets out the full list of sexual crimes – rape, slavery, forced pregnancy, etc. – that may anchor a crime against humanity designation. Article 7(h) specifies gender as a ground on which a claim for persecution can be based.
The $64 question, of course, is whether a state-tolerated regime of gender oppression, enforced by private parties or clerical or tribal authorities, would ever meet the test. It is certainly not beyond contemplation that discriminatory legislation, exemplified by the Shiite law on mandated intercourse and travel bans for married women passed by the Afghanistan parliament, might qualify, or that regimes that allow women to be stoned to death for adultery without any formal trial might as well.
Recent developments lend support for this way of thinking:
► Action by U.S. immigration authorities, granting asylum for women who show that the rigid discriminatory codes of conduct pertaining to women in their native countries were officially approved or enabled by the government;
► A ruling by the European Court of Human Rights that Turkey’s failure to protect a woman who had sought help from the authorities from domestic violence amounted to gender discrimination in violation of obligations under CEDAW; and
► The embryonic responsibility to protect doctrine embraced by the United Nations, which seeks to delineate the obligations of a country to keep its residents safe from predatory attacks by nongovernmental groups.
I do not speak in an advocacy mode. Nor am I sanguine that crimes against humanity will proceed along this route. But I persist in thinking that the very existence of a universally accepted criminal norm that so neatly fits the situation that so pervasively stifles the very life and spirit of so many women in so many parts of the world could serve a purpose:
► An extreme case could arise where the degree of violence or slavery-like conditions systematically imposed on civilian women would produce an international cry for humanitarian intervention, including criminal accountability of the persons responsible.
► Following Justice Robert H. Jackson’s more conservative example as Chief U.S. Prosecutor at Nuremberg – he insisted that the crimes against humanity committed by the Nazis against the Jews in prewar Germany could be charged as such if they were part of preparation for war – a prosecutor might in the context of a wartime case against leaders of these regimes add a count based on the continuing abuses perpetrated against women at all times. (I have often wondered how a judge could rule on wartime atrocities against women and not be troubled by equally abhorrent acts committed in peacetime against those same women.)
► There is the hope and some evidence that tribunal decisions on gender crimes will work their way into domestic jurisprudence.
► The recognition of crimes against humanity extending to systematic oppression of women would be a useful talking point in diplomatic negotiations that seek compliance with more traditionally enforceable treaties or convention obligations.
► In some countries – Kuwait, Egypt, even Iran – where women are beginning to organize against gender discrimination and to affirmatively seek rights to education, custody, and property, the crime against humanity designation for persistent denial of their pleas might add to their powers of persuasion.
► If this norm were in place, countries would have to comply with it when seeking to join the ICC – a point at which they must conform their own laws in order to meet complementarity standards.
► It would indeed be salutary if the ICC prosecutor were to mobilize on behalf of women suffering the worst abuses the kind of “Dutch uncle” supervision -- proactive complementarity -- that he has told us is already under way in several countries where outside groups have urged him to open formal investigations into a variety of alleged offenses.
I entreat you to think about ways in which the tribunals can alleviate the misery of women, in situations where the commission of serious crimes against humanity is virtually indisputable, so that if and when the right situation comes along, you will be ready.
Even if tribunals do their work well, so that women’s wrongs are recognized as serious war crimes, crimes against humanity, and tools of genocide – even if enough women can infuse their own sensitivities into the process – even if tribunals achievements’ are truly accessible to ordinary women – will all that really help women in states where old ways survive? In states where women are treated, in peacetime as well as in wartime, as property, and their sexual and physical integrity impugned at will?
Even in countries that have ratified the Convention on the Elimination of All Forms of Discrimination Against Women and other human rights treaties, customary law and local norms executed by tribal and religious courts often approve practices that oppress and diminish women – that deny them rights to work, to hold property, to custody of their children, to be educated, to inherit money, or to obtain divorces however maltreated they may be. In these benighted lands, there are only a few embryonic organizations, and even fewer shelters, for oppressed women.
You may ask what all this has to do with tribunals.
I see an entry point whereby the advances of international humanitarian law and tribunal jurisprudence could help the plight of these women and girls. It is future development of the crimes against humanity doctrine.
Unlike genocide, which limits its protection to racial, religious, and ethnic groups, and unlike war crimes, which require a nexus to armed conflict, crimes against humanity can include a state-ordered, perhaps even a state-tolerated, regime of discrimination that violates the fundamental rights of women.
Surely the conditions I have described could, in extreme cases, amount to the discriminatory treatment that is the vital element in the underlying crime of
persecution, which can qualify as a crime against humanity. Article 7 of the ICC Statute defines a crime against humanity as prohibited conduct that is part of an “attack,” against “any civilian population,” which involves “the multiple commission of specified acts pursuant to or in furtherance of a state or organizational body”; the violations must be systematic or widespread. Article 7(g) sets out the full list of sexual crimes – rape, slavery, forced pregnancy, etc. – that may anchor a crime against humanity designation. Article 7(h) specifies gender as a ground on which a claim for persecution can be based.The $64 question, of course, is whether a state-tolerated regime of gender oppression, enforced by private parties or clerical or tribal authorities, would ever meet the test. It is certainly not beyond contemplation that discriminatory legislation, exemplified by the Shiite law on mandated intercourse and travel bans for married women passed by the Afghanistan parliament, might qualify, or that regimes that allow women to be stoned to death for adultery without any formal trial might as well.
Recent developments lend support for this way of thinking:
► Action by U.S. immigration authorities, granting asylum for women who show that the rigid discriminatory codes of conduct pertaining to women in their native countries were officially approved or enabled by the government;
► A ruling by the European Court of Human Rights that Turkey’s failure to protect a woman who had sought help from the authorities from domestic violence amounted to gender discrimination in violation of obligations under CEDAW; and► The embryonic responsibility to protect doctrine embraced by the United Nations, which seeks to delineate the obligations of a country to keep its residents safe from predatory attacks by nongovernmental groups.
I do not speak in an advocacy mode. Nor am I sanguine that crimes against humanity will proceed along this route. But I persist in thinking that the very existence of a universally accepted criminal norm that so neatly fits the situation that so pervasively stifles the very life and spirit of so many women in so many parts of the world could serve a purpose:
► An extreme case could arise where the degree of violence or slavery-like conditions systematically imposed on civilian women would produce an international cry for humanitarian intervention, including criminal accountability of the persons responsible.
► Following Justice Robert H. Jackson’s more conservative example as Chief U.S. Prosecutor at Nuremberg – he insisted that the crimes against humanity committed by the Nazis against the Jews in prewar Germany could be charged as such if they were part of preparation for war – a prosecutor might in the context of a wartime case against leaders of these regimes add a count based on the continuing abuses perpetrated against women at all times. (I have often wondered how a judge could rule on wartime atrocities against women and not be troubled by equally abhorrent acts committed in peacetime against those same women.)
► There is the hope and some evidence that tribunal decisions on gender crimes will work their way into domestic jurisprudence.
► The recognition of crimes against humanity extending to systematic oppression of women would be a useful talking point in diplomatic negotiations that seek compliance with more traditionally enforceable treaties or convention obligations.
► In some countries – Kuwait, Egypt, even Iran – where women are beginning to organize against gender discrimination and to affirmatively seek rights to education, custody, and property, the crime against humanity designation for persistent denial of their pleas might add to their powers of persuasion.
► If this norm were in place, countries would have to comply with it when seeking to join the ICC – a point at which they must conform their own laws in order to meet complementarity standards.
► It would indeed be salutary if the ICC prosecutor were to mobilize on behalf of women suffering the worst abuses the kind of “Dutch uncle” supervision -- proactive complementarity -- that he has told us is already under way in several countries where outside groups have urged him to open formal investigations into a variety of alleged offenses.
I entreat you to think about ways in which the tribunals can alleviate the misery of women, in situations where the commission of serious crimes against humanity is virtually indisputable, so that if and when the right situation comes along, you will be ready.
Go On! "Nuremberg: Taking Stock"
(Go On! is an occasional item on symposia of interest) This past year a permanent exhibit, "Courtroom 600 - Project "Memorial Nuremberg Trials," has been established in the Palace of Justice at which the International Military Tribunal and 12 subsequent U.S. military tribunals convened under Control Council Law No. 10. To recognize this development, Nuremberg’s Documentation Centre will convene a conference entitled "'That Four Great Nations': The Nuremberg Trials: Taking Stock" from October 1 to 3, 2009, at the Documentation Centre in Nuremberg. (credit for 2007 photo below right, by me, of Courtroom 600)Session topics and participants:
► Nuremberg Categories of Crimes and their Significance for the Present, Christoph J.M. Safferling, David M. Crane, and Rainer Huhle.
► National and International Media Response
to the Nuremberg Trial, Hans-Ulrich Wagner, Brian K. Feltman, and Nina Burkhardt.► National Contributions and Perspectives on the International Military Tribunal, John Q. Barrett (to whom we tip our hats for news of this conference), David Cesarani, Annette Wieviorka, and Natalja Lebedeva.
► U.S. Intelligence Support and Subversion of the Nuremberg Trial's Process, Michael Salter.
► Problems of Criminal Defence at the International Military Tribunal, Sven Peitzner.
► The Holocaust on Trial?, Michael R. Marrus, Laura Jockusch, and Thomas Bryant.
► A Challenge for the Tribunal: Presenting films as Evidence, Christian Delage.
► Visit to Court Room 600, Klaus Kastner.
► Toward a Conjoined Understanding of the International Military Tribunals of Nuremberg and Tokyo, Neil Boister, Elizabeth Borgwardt, and James B. Sedgwick.
► Legacy of Nuremberg, Claus Kreß.
The conference website is here; registration details here.
I do hope they'll publish the papers, given that this promises to generate a rich information trove to complement this IntLawGrrl's Women at Nuremberg research.
Different take on women at Nuremberg
Research for my lecture this Monday on "Women at Nuremberg" turned up a 75-year-old reminder that not only ethnic status, but also gender status, was a target of totalitarianism during that era."Hitler Condemns Women in Politics" declared an Associate Press article published in a September 1934 edition of The New York Times.
The article reported on a speech in Nuremberg, at which Adolf Hitler, who’d become Germany’s Chancellor a year earlier, said:
‘Liberalism has a large number of points for women’s equality. The Nazi program has but one: this is a child. ‘While man makes his supreme sacrifice on the field of battle, woman fights her supreme battle for her nation when she gives life to a child.’
He linked notions that women might play other roles in society to his least-favored ethnic group – of course – and also to the apparent curse of "‘intellectualism.’"
In short, Hitler "derided the mixing of women in political matters," and "added that he believed parliamentary life tended to degrade women."
His audience?
Two thousand "woman politicians," Nazi Party organizers who "applauded his statements energetically."
In short, Hitler "derided the mixing of women in political matters," and "added that he believed parliamentary life tended to degrade women."
His audience?
Two thousand "woman politicians," Nazi Party organizers who "applauded his statements energetically."
On August 20
On this day in ...... 1947, following nearly "140 days of proceedings, including the testimony of 85 witnesses and the submission of almost 1,500 documents," U.S. military judges announced their judgment in the Doctors' Trial at Nuremberg. Sixteen of the 23 defendants were convicted on charges related both to the systematic killing of persons deemed unfit on account of mental or physical impairments and to the ghoulish medical experiments conducted on concentration camp detainees. Of the 16 convicted, 7 were sentenced to death on this day and executed on June 2, 1948. To the lone woman defendant, Herta Oberheuser (above left), a physician who conducted experiments at the Ravensbrück camp, the judgment directed these words:
HERTA OBERHEUSER, Military Tribunal I has found and adjudged you guilty of war crimes and crimes against humanity, as charged under the indictment heretofore filed against you. For your said crimes on which you have been and now stand convicted Military Tribunal I sentences you, Herta Oberheuser, to imprisonment for a term of twenty years, to be served at such prison or prisons, or other appropriate place of confinement, as shall be determined by competent authority.
As posted in our Women at Nuremberg series -- to be reprised later this month during the 3d Annual International Humanitarian Law Dialogs of which IntLawGrrls is a proud cosponsor -- Oberheuser would be released from prison in 1952 and would try to resume the practice of medicine, but would lose her license on account of camp survivors' protests. (photo credit) She died in 1978.
... 1818, according to Spanish WikiPedia, Kamehameha I, the King of Hawaii depicted on the U.S. quarter at right, signed a treaty which included a provision by which Hawaii "became the 1st country to recognize the independence of the Provincias Unidas del Río de la Plata," another name for the country today better known as Argentina. The entry serves as a reminder of Hawaii's former status -- about which we've previously posted here, here, and here -- as a sovereign subject of international law.Go On! IntLawGrrls cosponsors 3d IHL Dialogs, on "Women in International Criminal Law"
(Go On! is an occasional item on symposia of interest) Delighted to announce that for the 1st time ever, IntLawGrrls is cosponsoring an international law conference!It's the 3d Annual International Humanitarian Law Dialogs, to be held August 31-September 1 at the Chautauqua Institution in Chautauqua, a community near Buffalo in upstate New York.
As posted here and here, last year's dialogs marked the 60th anniversary of the Convention Against Genocide; the 1st year, the 100th anniversary of the 1907 Hague Rules on the laws of war. This year's theme -- "Honoring Women in International Criminal Law From Nuremberg to the ICC" -- is ready-made for IntLawGrrls the world over. It's no surprise, then, that a number of 'Grrls were enlisted as the event was put together by our colleague David M. Crane, formerly Prosecutor at the Special Court for Sierra Leone, now law professor at Syracuse University
College of Law.Our thanks to David, who's also the founder Impunity Watch blog (one of the "connections" in our righthand column), both for the invitation and for welcoming IntLawGrrls blog as a cosponsor. Also cosponsoring are the Robert H. Jackson Center in nearby Jamestown, N.Y., which features the work of the Supreme Court Justice who served as Chief U.S. Prosecutor at the Nuremberg trial of the Major War Criminals, Impunity Watch/Syracuse Law, the American Society of International Law, the Enough Project of the Center for American Progress, the Whitney R. Harris World Law Institute at Washington University School of Law, and the Frederick K. Cox International Law Center at Case Western Reserve University School of Law.
Events on the program include:
Monday, August 31:
► Opening remarks, including a moment of silence for Dr. Alison Des Forges, the Human Rights Watch researcher who died in a plane crash this past February, as we then posted.
►Keynote lecture entitled "Katherine Fite, A Prosecutor at Nuremberg," by John Q. Barrett, Professor of Law at St. John's University School of Law, New York, and Elizabeth S. Lenna Fellow at the Robert H. Jackson Center in Jamestown, New York. As Barrett will detail, Katherine Boardman Fite, who'd received her law degree from Yale in 1930, served as Jackson's assistant.
► Keynote lecture entitled "Women at Nuremberg," by me, IntLawGrrl Diane Marie Amann, Professor of Law and Director of the California International Law Center at King Hall, University of California, Davis, School of Law, and an ASIL Vice President. The presentation will be based on my IntLawGrrls series of the same name.
► An update from the current prosecutors, to be moderated by Leila Nadya Sadat, Henry H. Oberschelp Professor of Law and Director of the Harris Institute at Washington University School of
Law, St. Louis. That institute's namesake, former Nuremberg prosecutor Whitney R. Harris, also is expected to attend these 3d annual dialogs.► Luncheon speech by Gayle E. Smith (left), a cofounder of the Enough Project who's now a Special Assistant to President Barack Obama. Introducing her will be Colin Thomas-Jensen, a policy advisor at the Enough Project.
► Roundtable discussion with the prosecutors on "Gender Crimes at the International Level," moderated by IntLawGrrl Diane Orentlicher, Professor of Law at American University's Washington College of the Law.
► A briefing by Sadat on the Crimes Against Humanity Initiative about which IntLawGrrls has posted here and here.
► Dinner speech by the Honorable Patricia M. Wald (right), formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit and, subsequently, a Judge of the International Criminal Tribunal for the former Yugoslavia. Introducing Judge Wald will be IntLawGrrl Lucy Reed, ASIL President, Freshfields partner, and a member of the Eritrea-Ethiopia Claims Commission, about which she's posted.► Showing of NBC's The Wanted, with members of the cast.
Tuesday, September 1:
► "International Criminal Law Year in Review," presented by Michael P. Scharf, Professor of Law and Director of the Cox Center.
► "Reflections on Women in International Criminal Law," by the Honorable Marilyn J. Kaman (below right), Presiding Judge, Probate/Mental Health Court, Hennepin County, Minnesota, and from 2002-2003 a U.N.-appointed judge in Kosovo, where she presided over cases involving war crimes, organized crime, ethnically motivated disputes, and
human trafficking.► Roundtable with 3 women who've worked as international trial attorneys: Christine H. Chung, partner at Quinn Emmanuel and former senior trial attorney, Office of the Prosecutor, International Criminal Court (prior post); Lesley Taylor, Special Court for Sierra Leone; and Renifa Madenga, International Criminal Tribunal for Rwanda. Moderated by Dr. Kelly Askin, IntLawGrrl and Senior Legal Officer, International Justice, Open Society Justice Initiative.
► Lunch speech by Siri Frigaard (above left), Chief Public Prosecutor, Norwegian National
Authority for Prosecution of Organised and Other Serious Crime. Former ICC attorney Chung will introduce her.► Elizabeth Andersen, ASIL Executive Director, will lead the signing of the 3d Chautauqua Declaration.
Prosecutors expected to attend, besides those already named, include: Fatou Bensouda (below left), ICC Deputy Prosecutor (prior posts here and here); William Caming, former trial counsel at Nuremberg; Desmond DeSilva, former Prosecutor at the Special Court for Sierra Leone; Richard Goldstone, formerly the ICTY-ICTR Chief Prosecutor and a Justice on the Constitutional Court of South Africa, and currently leading a U.N. inquiry into the 2008-2009 conflict in the Gaza Strip; Hassan Jallow, International Criminal Tribunal for Rwanda; Robert Petit, Co-Prosecutor of the Extraordinary Chambers in the Courts of Cambodia; and Stephen Rapp, Prosecutor of the Special Court for Sierra Leone since 2006, and now, as we've posted, President
Barack Obama's nominee to become the U.S. Ambassador at Large for War Crimes Issues.For details, contact Carol Drake at cdrake@roberthjackson.org.
Obama OKs extraterritorial prosecution of torturers
Yesterday's 3 posts had such an interesting and cleverly embedded thread running through them that I'd like to review them today.► First, Ruth Bader Ginsburg (right) is quoted as saying:
'What happened in Europe was the Holocaust, and people came to see that popularly elected representatives could not always be trusted to preserve the system's most basic values.'
► Second, "Those Memos"; and
► Third, news of John Demjanjuk (below left, at his trial in Jerusalem in 1988) accused of commiting war crimes in Poland during World War II.
If you click on the link to President Obama's explanation of why he released "those memos," you read,
'I prohibited the use of these interrogation techniques by the United States because they undermine our moral authority and do not make us safer.'
I am troubled by this reasoning: it implicitly admits that the techniques constitute torture, but studiously avoids the issue of torture's illegality in both domestic and international law.
I am further troubled to read:
'[a] democracy as resilient as ours must reject the false choice between our security and our ideals,'
yet
'[t]his is a time for reflection, not retribution .... We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.'
Is it true that "a democracy as resilient as ours" could not survive the "disunity" that might be worsened by prosecuting those responsible for torture? We certainly didn't worry about any negative effects on German or Japanese unity that might have come from denying foot soldiers the defense that they merely "carried out their duties relying in good faith" on their superiors. Yet intelligence officers may rest assured that they may indeed rely on their anonymity and the defense of superior orders.Perhaps even more troubling is the juxtaposition of Obama's assertion that the interrogation techniques described in the memos "do not make us safer" with his offer of immunity to the "unsung" "men and women of our intelligence community [who] serve[d] courageously": "because of their sacrifices, every single American is safer." ??!!##??!! What were they sacrificing as they tortured people, other than their/our ideals, law, the dignity of their victims and their own humanity?
So by releasing "those memos," Obama is reminding us, in Bader Ginsburg's words, that popularly elected representatives can not always be trusted to preserve the system's most basic values. At the same time, by not prosecuting our own Demjanjuks, he is reminding us that popularly elected representatives can not always be trusted to preserve the system's most basic values. Worse, he is admitting defeat in the struggle to balance our security and our ideals. In short, he is saying that this sort of thing has always and will always happen.
So much for that "Never Again" badge I wore in high school.
Then I thought some more about this "disunity" business.
Maybe Obama thinks that prosecuting Americans for international crimes such as torture and war crimes would increase anti-international law and anti-International Criminal Court sentiment among Americans, and he's hoping to increase support for "internationalism" by not prosecuting. But this could be avoided by prosecuting under domestic statutes. So maybe he thinks that we
should only prosecute foreign torturers and war criminals, like the Nazis and Japanese.Then it hit me: candidate Obama heard from the Center for Constitutional Rights (CCR) with respect to Guantánamo.
He may be aware that CCR's case against former Defense Secretary Donald Rumsfeld was dismissed because the German prosecutor saw no reason to believe that Rumsfeld would escape justice in the United States. By announcing in the press that he will not prosecute, Obama has just given the green light (image credit) to the German prosecutor and any other foreign or international court that might be willing and able to do prosecute any Americans responsible for torture at least between September 11, 2001 and January 20, 2009: the United States is, in the words of the ICC Statute (art. 17), "unwilling . . . genuinely to carry out the ... prosecution." And since the Supreme Court still supports the Ker-Frisbie doctrine (illegal capture does not make prosecution illegal), William Schabas's April Fool's post is no joke after all.
Of course, it just might be that U.S. prosecution of those responsible for torture and other violations of human rights during the previous administration's "war on terror" might help end that "war" by providing justice to some of its victims and thereby contribute to undoing some of the harm that has been done. That might really protect Americans' safety and help the nation turn the page and get on with rebuilding unity, the economy, the educational system, health care, social welfare, etc.
Insight into ICC endeavor against aggression
With a year to go before the 1st review conference for the 1998 Rome Statute of the International Criminal Court, a panel is hard at work on one of the ICC’s knottier problems – how to render the crime of aggression an o
ffense fully within the jurisdiction of the permanent international court.
Article 5 of the ICC Statute lists aggression – the foremost offense tried at Nuremberg, there given the more descriptive name “crimes against the peace” – as 1 of 4 crimes “within the jurisdiction of the Court.” But then it adds a caveat: no charge of aggression may be adjudicated until “a provision ... defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Thus aggression is not a crime within the current prosecutorial quiver, a fact that sets it apart from the others listed in Article 5, genocide, crimes against humanity, and war crimes.
A Special Working Group is endeavoring to activate this jurisdiction following the 2010 Statute review conference. As explained in this ASIL Insight by Dr. Anja Seibert-Fohr (above left), head of the Minerva Research Group at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, the Working Group is nearing agreement on a definition of aggression, based on U.N. General Assembly Resolution 2625 (1970):
► Whether jurisdiction over charges of aggression ought to depend on referral by the U.N. Security Council, as preferred by the only 2 ICC states parties that are also permanent Council members, or whether the Council’s role should be limited to blocking of undesired referrals;
► Whether to allow states parties an effective opt-out from the provision relating to aggression, thus permitting 2-tiered application of the ICC treaty; and
► The procedural mechanism for proper adoption of the new provision, a question that gives rise to another respecting the percentage of states parties that must agree.
Seibert-Fohr’s incisive essay concludes as do many respecting the role of international law in our contemporary world:
ffense fully within the jurisdiction of the permanent international court.Article 5 of the ICC Statute lists aggression – the foremost offense tried at Nuremberg, there given the more descriptive name “crimes against the peace” – as 1 of 4 crimes “within the jurisdiction of the Court.” But then it adds a caveat: no charge of aggression may be adjudicated until “a provision ... defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Thus aggression is not a crime within the current prosecutorial quiver, a fact that sets it apart from the others listed in Article 5, genocide, crimes against humanity, and war crimes.
A Special Working Group is endeavoring to activate this jurisdiction following the 2010 Statute review conference. As explained in this ASIL Insight by Dr. Anja Seibert-Fohr (above left), head of the Minerva Research Group at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, the Working Group is nearing agreement on a definition of aggression, based on U.N. General Assembly Resolution 2625 (1970):
The current draft amendment takes a conservative approach, defining the crime of aggression as a ‘leadership crime’ which only applies to manifest violations of the UN Charter. Among the listed acts of aggression are: (1) the military invasion or attack of another State’s territory; (2) bombardment of such territory; (3) military blockage of foreign ports and coasts; and (4) attacks on land, sea and forces of another State.Yet key aspects of this problem are still unresolved, among them:
► Whether jurisdiction over charges of aggression ought to depend on referral by the U.N. Security Council, as preferred by the only 2 ICC states parties that are also permanent Council members, or whether the Council’s role should be limited to blocking of undesired referrals;
► Whether to allow states parties an effective opt-out from the provision relating to aggression, thus permitting 2-tiered application of the ICC treaty; and
► The procedural mechanism for proper adoption of the new provision, a question that gives rise to another respecting the percentage of states parties that must agree.
Seibert-Fohr’s incisive essay concludes as do many respecting the role of international law in our contemporary world:
Whether the Conference will eventually adopt an amendment is still open and largely depends on political momentum.
On Legality & Delay of Justice in the ECCC
(2d of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series. Part 1 is here.)
Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:
The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?
Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:► crimes against humanity under principles of direct and accomplice liability.
In my view, the Prosecutors are smart to have filed this appeal, which contends that Duch should also have been charged with:
► the domestic crimes of murder and torture; and
► the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE.
One of the most difficult aspects of adjudicating the legal liability of surviving members of the Khmer Rouge will be to identify the state of the law in 1975-1979 in keeping with the principle of legality. That is because many developments in international criminal law that are most relevant to the atrocities of the Khmer Rouge era post-date that era, as they are the result of the work of the two ad hoc tribunals in the late 1990s. These developments include:
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and
► the adoption of the subjective approach to protected group identity and membership for genocide.
A particular point of controversy will undoubtedly be whether a state of armed conflict existed in Cambodia during the Khmer Rouge era. Certainly, a low-level conflict existed between the Khmer Rouge central government and a resistance movement made up of members of the prior regime and others; however, many of the violations of international criminal law most associated with the Khmer Rouge were more in the nature of organized repression against actual or perceived dissidents, in the absence of any credible armed resistance. Many other violations may have had no nexus to whatever armed conflict did exist.
Eventually, Vietnam began to intervene in the Eastern zones of Cambodia, and then later launched a full-scale invasion that ousted the Khmer Rouge completely (photo upper left, credit). The moments when this conflict began to trigger the application of humanitarian law, and when the conflict officially became an international armed conflict, remain questions for litigation.
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The Nuremberg Tribunal interpreted the passage that I've italicized to preclude the prosecution of events preceding the commencement of World War II, which it pegged to Germany’s invasion of Poland in 1939. This rendered crimes against humanity a sort of byproduct of war rather than an autonomous offense.
The war nexus served two important purposes in the post-World War II proceedings. First, it helped to satisfy the principle of legality by tying the new charge of crimes against humanity to the relatively well-established prohibition against war crimes. Second, it justified the intrusion of international law into the domestic affairs of a sovereign state. Crimes against humanity effectively trumped domestic authority by criminalizing acts “whether or not in violation of the domestic law of the country where perpetrated.” The war nexus ensured that only after a state had already breached international peace by committing acts of aggression would crimes committed internally be susceptible to international scrutiny and prosecution.
Over time, these legality and sovereignty concerns have become less acute on account of the rise of the human rights movement, which is premised on the idea that the way in which a state treats individuals within its territory and under its control is now beyond doubt a matte
r of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.
r of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.As a result of the Co-Prosecutors’ appeal, the trial of Duch, which was supposed to commence this fall, has been continued until next year. The Pre-Trial Chamber has announced that it plans to issue its decision on the appeal concerning the Closing Order on or about December 5, 2008. At that point, the case file will be transferred to the Trial Chamber to commence trial proceedings with the exchange of witness lists, a Trial Management Meeting, the Initial Hearing, etc. ....
The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?
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