international criminal tribunals: experiments? works in progress? institutions that are here for...

International criminal tribunals: Experiments?

Works in progress? Institutions that are here for good?

Maybe not?

Sir Geoffrey Nice QCGresham Professor of Law

This lecture will soon be available on the Gresham College website,where it will join our online archive of nearly 1,500 lectures.

www.gresham.ac.uk

# List of Conflict Years # of deaths

Judicial mechanism?

Alternative reconciliatory mechanism? (truth commission etc)

Other? (investigation, peace agreement, reparations etc)

1 The Boxer Revolt 1900 - 1900

13,000 No No Peace Agreement between the Eight-Nation Alliance and China (“Boxer Protocol”): ordered the execution of 10 high-ranking officials linked to the outbreak and other officials who were found guilty for the slaughter of foreigners in China. Fined China war reparations of 450,000,000 taels of fine silver to be paid in 39 years.

2 Philippine insurrection/Philippine–American War

1899 - 1902

70,000 No No Lodge Committee: The committee carried out an investigation into allegations of war crimes in the Philippine-American War. The hearing took place behind closed doors from 31 January 1902 to 28 June 1902, with a report issued at the end. The committee’s report resulted in the court martial of many American servicemen.

3 Boer war 1899 - 1902

50,500 No No No

4 The War of a Thousand Days

1899 - 1903

100,000

No No No

5 Ilinden Uprising 1903 - 1903

4,000 No No No

6 Russian Revolution 1905

1905 - 1906

1,000 No No No

# List of Conflict Years Number of deaths

Judicial mechanism? Alternative reconciliatory mechanism? (truth commission)


7 Uruguay Civil War 1904 - 1904 1,000 No No No

8 Somali rebellion 1899 - 1905 6,000 No No No

9 Russo-Japanese war 1904 - 1905 130,000 No No Second Geneva Convention (for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Froces at Sea) 1906 – created to protect shipwrecked soldiers in the conflict after there was no agreed consensus on whether to rescue shipwrecked soldiers.

10 Southwest African Revolt

1904 - 1905 78,000 Lawsuit by Hereros in US against Germany (2001)

No UN Whitaker Report (1985): classified the killings as an attempt to exterminate and one of the first instances of genocide in the 20th century.

12 Maji Maji revolt 1905 - 1906 140,000 No No No

13 Zulu Rebellion 1906 - 1906 2,500 No No No

14 3rd Central American war

1906 - 1906 1,000 No No No

15 4th Central American war

1907 - 1907 1,000 No No No

16 Romania Peasants revolt

1907 - 1907 2,000 No No No

17 Morocco unrest 1907 - 1908 1,000 No No No

18 Iran/Persian constitutional revolution

1908 - 1909 1,100 No No Iranian constitution and parliament created


Judicial mechanism? Alternative mechanism? (truth commission etc)


19 The second Rif War 1909 - 1910 12,000 No No No20 Chinese/Xinhai

Revolution1911 - 1911 2,000 No No No

21 Paraguay Coups 1911 - 1912 2,000 No No No22 Italo-Turkish War 1911 - 1912 20,000 No No No23 Tibetan

war/Wuchang uprising

1911 - 1912 2,000 No No No

24 1st Balkan War 1912 - 1913 82,000 No No No25 2nd Balkan War 1913 - 1913 61,000 No No No26 Kuomintang v.

Chinese Army1913 - 1913 10,000 No No No

27 Bandits v. China’s Government

1914 - 1914 5,000 No No No

28 Canton v. Beijing 1917 - 1918 1,000 No No No29 Spanish Army v.

Rebels Morocco/ Battle of El Biutz

1916 - 1917 2,000 No No No

30 Armenian Genocide 1915 - 1918 1,000,000

Turkish Court martial trials: tried members of the Committee of Union and Progress

Trial of Soghomon Tehlirian for assassination of Grand Vizier Talaat Pasha

No Commission on Responsibility and Sanctions: est at the Peace Conference in Paris and chaired by US Sec State; Ottoman Empire officials tried for “offenses against the laws and customs of war and the principles of humanity” under Treaty of Sevres.

31 World War I 1914 - 1918 14,000,000

Leipzig War Crimes Trial: General military commanders tried by German Supreme Court for war crimes

No League of Nations


Judicial mechanism? Alternative reconciliatory mechanism? (truth commission etc)


32 Amritsar massacre/Jallianwala Bagh massacre

1918 - 1919 700 No No Disorders Inquiry Commission/Humnter Commission: to investigate the recent disturbances, about their causes and the measures taken to cope with them; no penal disciplinary action ordered.

33 Finnish Civil War 1918 - 1918 20,000 No No No34 Hungarian–Romanian

War of 19191919 - 1919 11,000 No No War reparations: controversy over

reparations; taken by Romanians but considered looting by Hungarians

35 Third Anglo-Afghan War

1919 - 1919 3,000 No No No

36 Polish–Soviet War 1919 - 1920 1,000 No No Anglo-American Investigating Commission: investigated acts of violence against Jews

37 Mexican Revolution 1910 - 1920 250,000

No No No

38 Hungary Civil War 1919 - 1920 4,000 No No No39 Franco-Syrian war 1920 - 1920 5,000 No No No40 Easter rising 1916 - 1921 600 Court martial trials: Of

those who took part in the rebellion

No Royal Commission: to investigate the causes of the uprising

41 Armenian Massacre Aftermath

1919 - 1923 432,500

No No King-Crane Commission: recommended enlargement of Armenia

Harbord Report

42 Turkish War of Independence

1919 - 1921 40,000 No No No

43 Iraq v. UK 1920 - 1921 1,000 No No No44 Russian Revolution 1917 - 1922 2,000,0

00No No No

# List of Conflict Years # of deaths



45 India v. UK rebellion/ Malabar Rebellion

1921 - 1922 11,000 No No No

46 Greco Turkish War 1919 - 1922 70,000 Trial of Commander of Greek army: initiated but later revoked.

No Inter-Allied Commission: found Greek forces committed systematic atrocities against Turkish civilians and the Muslim population; including ethnic cleansing

47 Ireland freestaters v. Irregulars/ Irish Civil War

1921 - 1922 4,000 No No No

48 Honduras Coup 1924 - 1924 1,000 No No No49 Afghan Rebels v.

Government1924 - 1925 2,000 No No No

50 Third Rif War 1920 - 1926 40,000 No No No51 Druze revolt/Great

Syrian Revolt1925 - 1927 8,000 No No No

52 Northern Expedition 1926 - 1928 10,500 No No No53 Kuomintang v. Islamic

rebels/Muslim conflict in Gansu

1928 - 1928 200,000

No No No

54 Afghanistan Civil War 1928 - 1929 7,500 No No No55 Sino-Soviet war 1929 - 1929 3,200 No No No56 The Cristero War 1926 - 1930 10,000 No No No57 Kuomintang v.

warlords/Beijing 1929 - 1930 75,000 No No No

58 French Equatorial Africa

1927 - 1931 55,000 No No No

59 Uprisings in French Indochina/ Viet Nam Quoc Dan Dang

1930 - 1931 1,000 300-400 trials: resulting from the assassination of Hervé Bazin; 78 convicted to 5-20 yrs jail

No No




60 Libya v. Italy 1920 - 1932

96,000 No No No

61 Salvadoran peasant massacre

1932 - 1932

20,000 No No No

62 Brazilian Revolt /Constitutionalist Revolt

1932 - 1932

1,000 No No No

63 Manchurian War/Invasion

1931 - 1933

60,000 No No No

64 Kumul Rebellion 1931 - 1934

20,000 No No No

65 Spanish socialists v. Government

1934 - 1934

2,000 No No No

66 Austrian Putsch 1934 - 1934

1,000 Military tribunals: prosecuted rebels

No No

67 Communists v. Koumintang

1930 - 1935

350,000

No No No

68 Chaco War 1931 - 1935

130,000

No No No

69 Italo-Ethiopian War

1935 - 1936

175,000

No No No

70 Changkufeng Incident/Battle of Lake Kasan

1938 - 1938

1,700 No No No




71 India v. UK rebellion

1936 - 1938

11,000 No No No

72 Spanish Civil War

1936 - 1939

780,000

No No 2008 Baltasar Garzon investigation: violating 1977 amnesty law

73 The battle of Khalkhin Gol

1939 - 1939

28,000 No No No

74 The Winter War in Finland

1939 - 1940

90,000 No No Finish-Soviet Commission

75 Sino-Japanese War

1937 - 1941

1,000,000

Khabarovsk War Crime Trials: examined the use of biological weapons from 1941 through WWII

No No

76 Franco-Thai War 1940 - 1941

3,400 No No No

77 World War II 1939 - 1945

49,800,000

Nuremberg Trials American

Military Tribunal in Manila

Khabarovsk War Crime Trials

Holocaust Reparations

United Nations War Crimes Commission

Robin Cook, Foreign Secretary

The ICC is ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’

VERSAILLES TREATY

ARTICLE 227. The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly GermanEmperor, for a supreme offence against international morality and the sanctity of treaties.

A special tribunal will be constituted to try the accused………

In its decision the tribunal will be guided by the highest motives of international policy, with aview to vindicating the solemn obligations of international undertakings and the validity ofinternational morality.

The Allied and Associated Powers will address a request to the Government of the Netherlandsfor the surrender to them of the ex- Emperor in order that he may be put on trial.

ARTICLE 228.

The German Government recognises the right of the Allied and Associated Powers to bringbefore military tribunals persons accused of having committed acts in violation of the laws andcustoms of war. Such persons shall, if found guilty, be sentenced to punishments laid down bylaw.

ARTICLE 229. Persons guilty of criminal acts against the nationals of one of the Allied and AssociatedPowers will be brought before the military tribunals of that Power .

Kaiser Wilhelm in a letter to Austrian Kaiser Franz Joseph:

My soul is torn, but everything must be put to

fire and sword; men, women and children and

old men must be slaughtered and not a tree or

house be left standing. With these methods of

terrorism, which are alone capable of affecting

a people as degenerate as the French, the war

will be over in two months, whereas if I admit

considerations of humanity it will be prolonged

for years. In spite of my repugnance I have

therefore been obliged to choose the former

system."

WWI War Crimes Trials, at Leipzig

Sergeant Karl Heyne, charged with mistreating British prisoners of war.he was sentenced to brief prison term of several months. Captain Emil Muller, charged with mistreating prisoners of war. He wassentenced to six months in prison. Private Robert Neumann, charged with mistreating prisoners of war. Hewas sentenced to six months in prison. Lieutenant-Captain Karl Neumann, charged with submarine warfare. Hewas found not guilty. First-Lieutenants Ludwig Dithmar and John Boldt, charged with warcrimes on the high seas. They were two officers of the submarine SM U86that had sunk the hospital ship Llandovery Castle and then attackedsurvivors in lifeboats. They were sentenced each to four years in prison. Max Ramdohr, charged with crimes against the civilian population ofBelgium. He was found not guilty. Lieutenant-General Karl Stenger and Major Benno Crusius, charged withmistreating French prisoners of war. Stenger was found not guilty, whileCrusius was sentenced to two years in prison. First-Lieutenant Adolph Laule, charged with crimes against the Frenchpopulation. He was found not guilty. Lieutenant-General Hans von Schack and Major-General Benno Kruska,charged with mistreating prisoners of war. Both were found not guilty

Executions in the British Army: 1914-1918

Offence 1914 1915 1916 1917 1918

Desertion 3 46 71 90 35

Cowardice 1 4 10 2 -

Quitting Post - 2 2 2 1

Disobedience - 1 3 1 -

Murder - 2 4 3 10Striking a superior officer

- - 3 1 -

Casting away arms - - 1 1 -

Mutiny - - 1 2 -Sleeping on

post - - - 2 -

Totals 4 55 95 104 46

in Ryuichi Shimoda et al. v. The State

The District Court of Tokyo declined to rule on

the legality of nuclear weapons in general, but

found that:

"the attacks upon Hiroshima and Nagasaki

caused such severe and indiscriminate

suffering that they did violate the most basic

legal principles governing the conduct of war."

International Peoples' Tribunal on the Dropping of AtomicBombs on Hiroshima and Nagasaki, 16 July 2007:

"The Tribunal finds that the nature of damage caused by theatomic bombs can be described as indiscriminateextermination of all life forms or inflicting unnecessarypain to the survivors".

"The... use of nuclear weapons in Hiroshima and Nagasakiwas illegal in the light of the principles and rules ofInternational Humanitarian Law applicable in armedconflicts,since the bombing of both cities, made civilians the object ofattack, using nuclear weapons that were incapable ofdistinguishing between civilians and military targets andconsequently, caused unnecessary suffering to the civiliansurvivors".

Deuteronomy 20 King James Version (KJV)

10 When thou comest nigh unto a city to fight against it, then proclaim peace unto it.11 And it shall be, if it make thee answer of peace, and open unto thee, then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.12 And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it:13 And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword:14 But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.

The Lieber Code of 1863 ….Washington, April 24, 1863.

4. ……….As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity

13. Military jurisdiction ..defined by statute; ..and .derived from the common law of war.

…… 16. Military necessity does not admit of cruelty-…..nor of torture to extort confessions. It

does not admit of the use of poison in any way, nor of the wanton devastation of a district……19. Commanders, inform the enemy of their intention to bombard a place, so that the non-

combatants, and especially the women and children, may be removed 29 Peace is their normal condition; war is the exception. The ultimate object of all modern war

is a renewed state of peace……56. A prisoner of war ….. nor is any revenge wreaked…… the intentional infliction of any

suffering, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.

70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and

usages of war.76. Prisoners of war shall be fed upon plain and wholesome food,.. treated with humanity.79. Every captured wounded enemy shall be medically treated, according to the ability of the

medical staff.154. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or

chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

Nuremberg Charter Article VI

• (c)CRIMES AGAINST HUMANITY: namely, 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.

Lemkin’s initial use of the term, ‘Genocide’ in ‘Axis Rule in Occupied Europe’1944

outright extermination against Jews and Gypsies; also

"coordinated plan of different actions" intended to promote such goals as an increase in the birthrate of the "Aryan" population, the physical destruction of the Slavic population over a period of years, and policies to bring about the destruction of the "culture, language, national feelings, religion" and separate economic existence (but not physical existence) of non-German "Aryan" nations thought to be "linked by blood" to Germany.

Genocide Convention 1948Article 2In the present Convention, genocide means any of the

following acts committed with intent to destroy, in whole or in part, anational, ethnical, racial or religious group, as such:

(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the

group; (c) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group

• New art. 28F: Piracy• New art. 28G: Terrorism• “Terrorism” • New art. 28H: Mercenarism• Mercenary =

– Specially recruited to fight in an armed conflict………Motivated essentially by the desire for private gain;

– Neither a national, a resident, or a member of the armed forces of a party to the conflict;

• Any person, who recruits, uses, finances or trains mercenaries, commits an offence.

• New art. 28I: Corruption• New art. 28Ibis: Money Laundering• New art. 28J: Trafficking in persons• “Trafficking in persons” = recruitment, transportation, transfer, harboring or

receipt of persons for the purpose of exploitation. • Exploitation includes: exploitation of the prostitution of others, sexual exploitation,

forced labor or services, slavery, servitude or the removal of organs. • New art. 28K: Trafficking in drugs• New art. 28L: Trafficking in Hazardous Wastes• New art. 28Lbis: Illicit Exploitation of Natural Resources• New art. 28M: Crime of Aggression• “Aggression” ………regardless of a declaration of war:

35th SDC Session – 13 April 1995

Minutes of 36th SDC Session – 12 May 1995

Supreme Defence Council Session of 14 August 1995

• In the session of 14 August 1995, the first reference to the fall of Srebrenica and Žepa was made. Milošević referred to his communication with Mladić saying:

• “Momo remembers well my conversation with Mladić on the occasion of attack on Žepa and Srebrenica. On that occasion I said: “Ratko, you are now measuring the military price of that success. The military price is six persons killed, 20 wounded, one vehicle destroyed, etc. It is inexpensive. However, the political price could be million times higher because there might be a concern for the interests of 12 million people!

NIOD – Dutch Institute for War Documenation Report

‘The existence of these intercepts was confirmed by a western diplomat. During a meeting at the White House between Gore and Bildt, the Swedish negotiator tried to convince the US vice-president that he should not form an excessively black-and-white image of President Milosevic. Gore responded to these statements by reading from US intercepts, which showed that Milosevic had consulted with Mladic about the attack on Srebrenica. Gore then reportedly said to Bildt: ‘Forget about this. Milosevic is absolutely not the friend of the West.’

“It is war’s prize to take all vantages and ten to one is no impeach of valour”

(Shakespeare’s Henry VI Part III Act I Scene 4).

The favourable view

Sir Hartley Shawcross KC on the Nuremberg Trial:

This Tribunal will provide a contemporaneous touchstone and authoritative and impartial record to which future historians may turn for truth and future politicians for warning

A More Cautious View

Hannah Arendt on the Eichmann trial:

The purpose of the trial is to render justice and nothing else; even the noblest of ulterior purposes can only distract from the law’s main business: to weigh the charges brought against the accused, to render judgement and to mete out punishment

• DRAFT ..AMENDMENTS ..THE STATUTE OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS

• New art. 28A: International Criminal Jurisdiction of the Court• … (d) the crime of unconstitutional change of Government, (e)

piracy, (f) terrorism, (g) Mercenarism, (h) corruption, (i) money laundering, (j) trafficking in persons, (k) trafficking in drugs, (l) trafficking in hazardous wastes, (m) illicit exploitation of natural resources, and (n) the crime of aggression.

• New art. 28B: Genocide• (f): Acts of rape that are intended to change the identity of a

particular group. • New art. 28D: War Crimes• (vii): Conscripting or enlisting children under the age of 18 years

into armed forces or groups or using them to participate actively in hostilities.

• New art. 28E: The Crime of Unconstitutional Change of Government• NB: This article was referred to the Assembly through the

Executive Council for consideration. • “Unconstitutional Change of Government”: means committing or

ordering to be committed the following acts, with the aim of illegally accessing or maintaining power: – Putsch/coup d’état against a democratically elected government (DEG);

international criminal tribunals: experiments? works in progress? institutions that are here for...

Documents

philippineamerican war

alternative mechanism

peace agreement

fined china war reparations

rd central american

deaths judicial mechanism

allegations of war crimes

american servicemen