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above the states? International law required an analogue to domestic
legislative authority. Because states could be bound only voluntarily by
their own acts, international law would be limited to obligations that
states explicitly accepted. Treaties (conventional law) became the stron-
gest basis, for the positivists, for international law. States could exercise
their sovereignty by withdrawing from treaties, so the law they created
might be only temporarily binding. Though a tenuous form of law, it was
law nonetheless in the sense that acts of states delimited permissible and
impermissible behavior and could attach sanctions to violations. The river
of justice widened.
Even without a formal legislative authority, from the mid-eighteenth
century, institutions of international organization and law accumulated
around a coalescing concept of Europe as a community of states with a
common (Christian) heritage.9 A community or a society could perhaps
have laws, even if it lacked formal legislative processes. Philosophers,
parliamentarians, and legal experts proposed the creation of international
laws and representative institutions to implement them in the peace plans of

7
Ferencz, ˜˜International Crimes Against the Peace™™ (undated). Ferencz was a prosecutor at
the Nuremberg trials and has been a tireless advocate since then for the outlawing of
aggression and creation of an international criminal court.
8
Clark, op cit.
9
Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations
Between States (1963), Part I.
18 Building the International Criminal Court

the time.10 In the nineteenth century, legal experts proposed codi¬cation of
various aspects of international law, including laws of war. Rather than
being purely philosophical exercises or the description of actions already
undertaken, these proposals were motivated by combinations of nationalist
and altruist purposes and aimed at instituting international law.
The ideas about international law that developed in the mid-nineteenth
century were fundamentally different from those of Grotius and his
immediate successors. Martti Koskenniemi11 describes publicists of inter-
national law in the nineteenth century as a group of legal reformists who
came together across national boundaries to launch a society and a journal
advocating the scienti¬c development of international law, just as domestic
law had long been elaborated by professional exegesis and analysis. The
reformists sought in their journals and through legislation to build inter-
national law based on what they believed to be scienti¬c, deductive prin-
ciples and motivated by what they considered the worst threats to order in
their day. Harking back to natural law, the legislative urge was to transform
natural precepts into legitimate, accepted institutions, a positivist project.
Koskenniemi argues that these European international legal theorists
imagined an international law independent of sovereign bias, but proposed
schemes that conformed to their home states™ interests. German theorists
identi¬ed international law with the ¬rm construction of sovereignty, which
would help solidify the new German state. French theorists focused on a
more internationalist vision of international society, which would dissem-
inate values already consolidated in the French nation. But the proposals
nonetheless demonstrated that, for international lawyers, the way forward
was to translate precepts drawn from whatever sources (national interest,
natural law) into positive law, with organizations to implement regulation
of states™ behavior, creating alternatives to war. By the turn of the twentieth
century, new legal streams and organizational channels were shaping a
swelling ¬‚ow, leading to creation of the Permanent Court of Arbitration
(1899) and the Permanent Court of International Justice (1922), head-
quartered in The Hague at the Peace Palace constructed for the purpose by
the Carnegie Endowment, and intended as organizations that could resolve
con¬‚ict among states judicially, without recourse to violence.

10
For example, Hinsley describes the peace and European Parliament proposals in the
seventeenth through nineteenth centuries of William Penn, John Bellers, Charles Francois,
¸
Irenee Castel de Saint-Pierre, and the nineteenth-century proposals of Rousseau and Kant.
´´
Ibid., 33“80.
11
Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law
1870“1960 (2001).
19
River of Justice


INTERNATIONAL HUMANITARIAN AND CRIMINAL LAW

Even as legal commentators sought to create organizations that would reduce
states™ resort to violence, the carnage of contemporary con¬‚ict bred efforts to
constrain behavior during wars. Today™s humanitarian law, humanitarian
organizations, and arms control treaties can be traced to mid-nineteenth-
century lawyers™ and legal scholars™ responses to wars™ devastation.
The ¬rst modern military code and both international rules of war and
their main organizational manifestation developed in the second half of the
nineteenth century. At U.S. President Abraham Lincoln™s request, Columbia
University international law professor Francis Lieber wrote the ¬rst modern
rules of war, the 1863 ˜˜Instructions for the Government of Armies of the
United States in the Field,™™ a code for the Union Army™s treatment of
prisoners, wounded soldiers, and civilians under occupation.12 Lieber was a
former Prussian army of¬cer and jurist who had immigrated to the United
States and pursued a distinguished career as a professor and philosopher of
law, ¬rst in South Carolina and then in New York.
At about the same time that Lieber was working on the code, Swiss
lawyer Gustave Moynier, businessman Henri Dunant, and three colleagues
founded the organizational predecessor to the International Committee of
the Red Cross. In 1859, Moynier, a lawyer with a doctorate in law, became
chairman of the Geneva Society for Public Welfare. That year, Henri
Dunant, fortuitously present at the battle of Solferino, a bloody engagement
of Napoleon III™s army, was horri¬ed especially by the dead and dying
soldiers who lay in the mud in large numbers after the battle, bereft of
assistance. In 1862, Moynier received Dunant™s book, A Memory of Sol-
ferino, that described the 1859 battle and its appalling aftermath and
proposed creating neutral relief societies to care for combatants on all sides
in time of war.
In 1863, Dunant and Moynier cofounded the International Committee for
Relief to the Wounded (which became the International Committee of the Red
Cross in 1876). They successfully pressed the Swiss government to convene
international negotiations that led to the Geneva Convention of 1864.
Negotiators created rules to protect con¬‚ict victims and agreed that care
should be provided for wounded and sick soldiers without discrimination
and that medical personnel, vehicles, and equipment bearing an agreed upon


12
U.S. Army, ˜˜Instructions for the Government of Armies of the United States in the Field™™
(Lieber Code).
20 Building the International Criminal Court

common emblem (the red cross on a white background that transposed the
colors of the Swiss ¬‚ag) should be respected. The norm that injured or ill
soldiers out of combat should be treated humanely had thus been established.
Moynier sought to push law further into the affairs of states, proposing
in 1872 that international criminal courts be created by combatants as soon
as a con¬‚ict broke out, to deter and, if necessary, adjudicate violations of
the 1864 Geneva Convention. The proposed judicial panels would mix
nationals of the combatants with neutrals. Respecting sovereignty, they
would pass sentences that the states would carry out.13
At the turn of the century, the Hague Conventions (1899, 1907) expanded
and integrated the earlier Geneva Convention with extensive rules drawn
from the Lieber Code, forming the mainstream of subsequent international
humanitarian law (IHL), also called the laws of war, or war crimes law.
While the sources of humanitarian law still ¬‚owed from our under-
standing of divine, natural, or rational law, international lawyers codi¬ed
the humanitarian agenda, seeking its transformation into positive law. The
natural-law impulse is still recognizable in debates over precedent “ what
constitutes compelling (jus cogens) law internationally based on apparent
norms of behavior even when not inscribed in treaties.14 But even while
asserting precedent, lawyer-advocates have sought to make such debates
moot by establishing treaty-de¬ned limits to states™ freedom. Treaty writing
accelerated after both of the twentieth century™s world wars and after the
end of Cold War rivalry between the U.S. and Soviet blocs. In each period,
states™ sovereign interests constrained implementation, but as normative
agreement expanded, the river of justice broadened.


World War I and International Criminal Law
From World War I through the interwar period, concepts of crimes against
humanity, the crime of aggression, and potential individual responsibility
converged with the 1907 Hague proscriptions against mistreatment of
noncombatants.

Crimes against Humanity
On May 24, 1915, World War I allies France, Great Britain, and Russia
noti¬ed the enemy Ottoman authorities in Constantinople (via a message

13
Glasius, The International Criminal Court: A Global Civil Society Achievement (2005), 6.
14
Bassiouni, ˜˜Accountability for Violations of International Humanitarian Law and Other
Serious Violations of Human Rights™™ (2002), 14“26.
21
River of Justice

delivered by the still-neutral United States) that the Ottomans would be
held responsible for Turkish massacres of the Armenian population. Having
enumerated locations of large-scale murders and accused the Ottoman
government of ill treatment of its ˜˜inoffensive Armenian population,™™ the
telegram warned that ˜˜[i]n view of those new crimes of Turkey against
humanity and civilization, the Allied governments announce . . . that they
will hold personally responsible [for] these crimes all members of the
Ottoman government and those of their agents who are implicated in such
massacres.™™15 ˜˜Crimes against humanity™™ ¬‚owed into the stream, and, at
least momentarily, individual culpability was claimed to override the pre-
rogatives of states.
In 1920, the Treaty of Sevres proposed to carry out the prosecution of
Turks that the Allies had threatened in 1915 for crimes against the Arme-
nians. When the unrati¬ed Sevres was superseded by the Treaty of Lausanne
in 1923, amnesties were extended, and no proceedings took place,16 but the
proposal was an important conceptual extension beyond established (Hague)
international humanitarian law. IHL dealt with crimes of one state™s military
or occupation forces against the soldiers or civilians of another state. Up to
that point, international law hadn™t dealt with crimes carried out by a gov-
ernment against its own citizens or international crimes outside the context of
international war.17 The new concept of crimes against humanity denoted
crimes as international in nature not because they crossed national bound-
aries but because the violation was offensive to the international community.
For such crimes, in addition to war crimes, the term ˜˜international criminal
law™™ (ICL) subsequently came into use. ICL could include crimes that crossed
borders (such as aggression or war crimes) or not (such as the crimes against
humanity that Turks were suspected of perpetrating against their Armenian
conationals). Long-standing international crimes “ such as piracy and
slavery “ also came to be included in the ICL concept. Additional crimes
(such as torture and hijacking) were de¬ned and added much later.

Precursors of Genocide
Interested in Turkish crimes against Armenians during World War I and
massacres of Arameans in Iraq in the 1930s, Polish prosecutor Rafael

15
France, Great Britain and Russia Joint Declaration (May 24, 1915).
16
Schabas, An Introduction to the International Criminal Court, 2nd ed. (2004), 3“4.
17
By the late 1800s, piracy and slavery had been outlawed, and it was accepted that states
were justi¬ed in acting unilaterally on the high seas against pirates and slave traders. These
were international (nonterritorial) crimes, but enforcement was up to states. There was no
international jurisdiction.
22 Building the International Criminal Court

Lemkin proposed to a League of Nations conference in 1933 a de¬nition of
a ˜˜crime of barbarity™™ for international prosecution. Lemkin continued to
develop and advocate international law responses to war and war crimes as
a Polish diplomat and then in exile in the United States during and after
World War II.18 His 1944 book, Axis Rule in Occupied Europe, included
a de¬nition and explanation of his neologism, ˜˜genocide.™™19 Through
Lemkin™s tireless efforts and the compelling qualities of the concept,
genocide entered the mainstream of international criminal law after World
War II, ¬nally being inscribed in treaty terms in 1948.

Aggression
In the 1919 Versailles Treaty ending World War I, Germany was punished for
its role in World War I by territorial losses, assessment of reparations,
demilitarization, and limits on rearmament. The victors also proposed to
establish a criminal tribunal to prosecute Kaiser Wilhelm II for starting the
war, but their intentions were purely symbolic. The Kaiser avoided prosecu-
tion in pleasant refuge in The Netherlands, which refused to extradite him for
trial. French and British policy makers, moreover, lacked enthusiasm for the
prosecution as they realized that such a proceeding would likely rouse political
ferment in Germany against the fragile Weimar Republic. Although the
principle of individual culpability was not implemented against the Kaiser,
Versailles also recognized the right of the Allies to set up military tribunals to
try German soldiers accused of war crimes.20 A few trials eventually were held
in Germany. The courts languished but the principle ran deep.

Proposing a New Court
As part of the effort to avert future wars, the Versailles Treaty established
the League of Nations. The 1920 Commission of Jurists that met in 1920 in
The Hague to prepare a draft Statute of the Permanent Court of Inter-
national Justice (which had been called for in the League Covenant)
recommended creation of a separate High Court of International Justice
˜˜competent to try crimes constituting a breach of international public
order or against the universal law of nations.™™21 Discussions followed in

18
Power, ˜˜A Problem from Hell™™: America and the Age of Genocide, 2nd ed. (2004), 42“3.
19
Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government,
Proposals for Redress (1944), Chapter IX.
20
Maogoto, War Crimes and Realpolitik: International Justice from World War One to the
21st Century (2004), 62.
21
Quoted in Hudson, ˜˜The Proposed International Criminal Court,™™ The American Journal
of International Law (1938), 550.
23
River of Justice

nonof¬cial venues. In 1922, the International Law Association issued an
endorsement of the idea of creating an international criminal court, and a
draft statute was discussed in 1924 and 1926.22
In 1925, the European Inter-Parliamentary Union, a nongovernmental
organization, supported by the newly founded Association Internationale
de Droit Penal (International Association of Penal Law), suggested that the
existing Permanent Court of International Justice should extend its juris-
diction to include prosecutions of individuals and states for the crime of
aggression.23 Subsequently, the International Law Association and the
International Association of Penal Law proposed that the League of

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