Please based on the reading, answer the following:
1. Describe the early development of the laws of war. What were the major historical milestones in efforts to define what conduct is prohibited in armed conflict?
2. Germany has engaged in restitution and reconciliation processes for its role in the Holocaust and World War Two. What actions has Germany taken on behalf of victims and affected countries?
3. Why do some post-conflict societies opt for a truth commission instead of a trial process? What are the benefits of a truth and reconciliation process over criminal prosecutions?
Reading:
Since 1945 with the end of World War II, international criminal law has developed new and important legal doctrines that apply to everyone on earth, as well as quite a few new institutions that can hold perpetrators accountable. In the Atlantic Charter of 1941 and again at the Yalta Conference in 1944, the main allied powers in World War II had agreed in principle to hold Nazi leadership accountable for crimes that occurred during the war. Not everyone was enthusiastic about trials in particular, Roosevelt and Churchill themselves were not. Churchill would much rather have seen Nazi leaders just face the firing squad. It actually was Harry Truman, a former judge in Missouri, who negotiated with the Soviets and Joseph Stalin who saw the uses of a trial that got the Nuremberg ball rolling again. Why Nuremberg? Nuremberg was considered by the Nazis to be the most German of German cities. It had a long history in the Protestant Reformation and in the Holy Roman Empire, as being a leadership city, and Hitler had used it to great effect, both for his rallies and for his propaganda videos. In addition, Nuremberg also had an intact courtroom, the Palace of Justice in Nuremberg, and in particular Courtroom 600 had an attached prison that were unscathed by allied bombing. It also happened to be in Bavaria which was in the American zone of occupation in West Germany. The Nuremberg trials took place over a period of about four years. The trial of the main war criminals occurred beginning in October 1945, right at the end of the war. It was during the investigations for those trials that the enormity of The Holocaust first came to light. As the allies were occupying Germany, they discovered the evidence on the ground. For instance, the number that nine million Jews had died in The Holocaust. That number first came out of the Nuremberg Trials. The uprising at the Warsaw Ghetto, that was not known by the Western media during the war, that came out at the Nuremberg trials. The trial of the main war criminals, which put on trial in the end 23 war criminals, tried all the people that you would expect, the Reichsmarschall, Hermann Goring, the propaganda minister Gerbils, the senior leadership of the military. In total, there were 12 death sentences that came out of those trials, but they didn't end there. Nuremberg also saw the follow-up trials for the next level down of Nazi leadership organized into the doctors' trial, the lawyers' trial, the trial of the government ministers, the industrialist trial for the principles of Flick, ego Farben, and crop. Those businesses that had formed alliances with the Nazi state. The trial of the Einsatzgruppen, that's the trial of the roving death squads in Eastern Europe. The Wehrmacht High Command, and the trials of other senior military leaders, the very marked being the Air Force. Then the trials for the concentration camp administrators and the administrators of the eugenics program. Those follow-up trials added many more names and faces to the crimes that were committed by the Nazis. These trials who were pioneered by the American prosecutors; Robert Jackson, the Supreme Court Justice in the United States, who was the prosecutor of the main war trial, and then Telford Taylor at the follow-up trials. The prosecutors had laid down a new philosophy that there were some crimes that were so heinous, that they were illegal no matter when they were committed by anyone. No matter how much the Nazis perverted the Nazi legal system, these crimes were still unlawful, and therefore they could be prosecuted. Even if they weren't technically crimes in Nazi Germany, the Nazis should have known that these crimes were unlawful. We call those today jus cogens offenses and we'll talk much more about those. In addition, the Nuremberg trials helped to find some of the early principles of international criminal law, command responsibility that the person at the top is responsible for acts committed by subordinates. It's a very important principle in international criminal law because we're dealing with mass atrocity. Another thing that came out of the Nurnberg Trials, the definition of crimes against humanity. This was the first time that that term had been used. Victims do not play a prominent role in the Nuremberg trials, except as witnesses. Although they did play a role in later trials, like the trial of Adolf Eichmann in Jerusalem in 1961. The interests of victims are represented by the Jewish Material Claims Conference, which negotiated over decades with the German government and with other access and occupied powers. Compensation to victims over the decades and it has taken decades, has taken many forms. I'll say that since the end of the Cold War, this process is accelerated because it was so difficult to get the Soviet Union and Eastern European governments to agree to settlements. The German government has paid reparations to the State of Israel. That's partly because Israel absorbed so many refugees from Europe at a time when Europe's economic recovery was looking really quite uncertain. There's beneficial apologies made, and of course, there's a lot of soft remembering stuff, museums, and memorialization, Holocaust education that also came out of this. When it comes to actual hard payments, the settlements have taken many forms. The Swiss banks have come to a settlement. After the war, a lot of survivors could not get access to the money and the contents of safe deposit boxes that had been put in Swiss banks for safekeeping. For Nazi slave labor proceeds, the major corporations that benefited from slave labor, like Volkswagen or BMW have paid compensation to those survivors. When it came to Nazi gold, for instance, the gold fillings and the jewelry that had been melted down, there was a settlement for that, for flat payments to survivors. Life insurance companies had come to a settlement as well. If you paid into a life insurance policy and you never got the payment, life insurance companies can't keep that money, same with stock certificates for corporations, if a person owned shares of stock and then died. There's been compensation for forced sterilization and medical experiments, including lifelong continued medical care where necessary. There's also been a very concerted effort at restituting looted artwork, antiquities, manuscripts, and other one of a kind stolen assets. That process still continues today, in fact, there's a whole office in the US State Department dedicated to this very thing. Why hold trials after democratic transition or armed conflict? Well, trials can do several different things; first, they assign liability to individual perpetrators. That's really useful for defining who the masterminds were. It may be isn't super useful at holding large numbers of ordinary people accountable or lower-level officials, but it's very useful at defining the top leaders. Second; trials a historical record. They're the best way that we know in Western society at proving the truth under the best rules of evidence that we can come up with. Cross-examining the truth in court and giving the other side an opportunity for defense. This even happened at the Nuremberg trials. The Nazis did have a defense, and the defense did score some important victories. For instance, when the Soviets tried to blame the Nazis for the Khatyn massacre, where the police officer corps was liquidated. The Nazis were able to show that actually, the Soviets were likely responsible. In addition, the Nazis did succeed in showing that allied civilian vessels on the high seas were carrying weapons, even though they claim to be neutral during the war. Holocaust denial is illegitimate in Nazi Germany today, because it was proven in court and there's a historical record to back it up. Trials also new legal doctrines that evolve and help us define what's right and wrong. In the 1990s at the Yugoslavia and Rwanda Tribunals, there was a lot of lawmaking, especially on sexual assault and rape, as a war crime. A crime against humanity and even as genocide. There was a new development, because Nuremberg hadn't explored the issues surrounding sexual assault, although the Tokyo trials did look at the issue of Korean comfort women. Trials also have an expressive function to show societies ultimate rejection of what's wrong. Genocide is wrong and the trial is a big formal, solemn ceremony, that allows society to say, this is wrong. That expressive function is actually quite important and we can wonder, whether future world leaders will be less likely to commit serious crimes that they know they could be put on trial. Besides trials though, there are other tools in the transitional justice toolbox. Many of these had been deeply influenced by the restorative justice movement, which arose in the late '80s and early '90s and emphasizers making victims whole again. One example is the truth commission. The truth commission is especially useful for systematic or institutional crime. It gives victims their day in court as well. So it's very useful at promoting victim healing and victim closure. South Africa hosted a truth commission after the end of apartheid in 1994. Apartheid was unusually complex crime, because South Africa had a whole bureaucracy about it and a trial would be really useful, as saying who gave that order, but a truth commission is very useful at finding out, why did people listen to that order? In an institutional systematic crime, sometimes that's the more important question to ask. And South Africa had a whole bureaucracy of people, who participated in these crimes. A commission of inquiry is much more focused on fact-finding, possibly in support of a later trial. The UN currently has commissions of inquiry open for Syria and for Myanmar, even though there's no trials yet in the works for crimes committed in Syria or in Myanmar. For instance, the ethnic cleansing of the Rohingya and Rakhane State in Northern Myanmar, or the use of chemical weapons in Syria. It's possible that there could be a trial eventually if those regimes ever change and a commission of inquiry helps us gather evidence and preserve it. Official amnesties are another tool. These are often part of a peace settlement. Actually, they've been a prominent factor in many different peace settlements, such as the one in Colombia. The problem with amnesties is that they can give impunity for serious human rights abuses and therefore they're suspect, when we're dealing with serious international crimes like genocide or war crimes. Official apologies are also useful. They can provide official recognition, change narratives, and assign liability. Even the US government has apologized. For instance, for the unlawful annexation of Hawaii and for the Japanese internment camps during World War II. Reparations and other forms of compensation can be really useful at helping victims achieve closure and helping communities recover from conflict. That can take the form of monetary grants. It can be even paid by the perpetrator. But it can also be restitution of property. It can be trust fund money, for instance, for community, to rebuild a health clinic or something. It can take a lot of forums. Lustration refers to excluding people from employment positions especially and especially in government positions. For instance, former supporters of the Nazi party in Eastern Europe, may not be able to become police officers or judges, for instance, in some Eastern European countries. Finally, there are all sorts of memorialization and education opportunities here. We see Holocaust education for instance and Holocaust museums as one way of recording what actually happened, but these exist in many different scenarios. I've been to the human rights in memory museum in Santiago, Chile, which talked about the disappearances under Pinochet. One thing that's really striking about that museum is the voice it gives to victims to bring their own stories. You can see photos of victims and hear their stories about Pinochet's rule in Chile. In the 1990s and early 2000s, international criminal law was profoundly influenced by the restorative justice movement. The new emphasis was on victims of mass atrocity and letting victims play a role in letting their stories speak when holding perpetrators accountable for serious crimes. New institutions were created to provide restitution to victims on the model of the Jewish Material Claims Conference. In 1991, after Saddam Hussein's unlawful invasion of Kuwait and the Desert Storm war, the UN Security Council created the United Nations Compensation Commission, which helped compensate victims of Saddam Hussein's unlawful invasion. In 1981, Iran agreed to the US Iran claims tribunal, which was created in the Hague. This primarily focused on Americans who were victimized by the US hostage crisis and was part of a settlement with the Reagan administration to unfreeze some Iranian assets in the United States. The US Foreign Claims Settlement Commission has existed since the 1950s. Has done many different programs, including communist expropriations in Eastern Europe. But most recently, it has managed to trust fund paid for by Libya, to state sponsors of Libyan terrorism victims. Victims, for instance, of the Berlin nightclub bombing, of the Lockerbie bombing, Pan Am Flight 103 at the Roman Vienna airport attacks in 1985, and other instances of Libyan state sponsorship of terror and the victims of that created. In addition, there's been new rights for victims in international criminal law. There's a right to participate in proceedings, make views known and hire lawyers for victims. Some tribunals like the International Criminal Court today, and like the Lebanon Tribunal, in The Hague, the Special Tribunal for Lebanon, allowed victims to participate in the proceedings to make their views known, to make victim's impact statements, for instance, during sentencing, or when charges were added or dropped. In addition, again, at the Lebanon Tribunal and at the ICC, there has been a legal representative for victims, who is appointed to represent the victim's interests. That makes basically all trials of International Criminal Court, three ways. There's a prosecutor, there's a defendant and their legal team, and then there's a legal representative of the victims. The legal representative cannot appeal cases but can make views known, and he can cross-examine witnesses. In addition, victims are entitled to reparations or other forms of restitution. In 2016, the trial of Hissene Habre, the former dictator of Chad, which took place in Dakar, Senegal at the African Extraordinary Chambers, involved the victims reparations order. Unfortunately, it was really hard to get control of Hissene Habre's assets because they'd been scattered around or put in secret bank accounts or given away to family members or cronies. But that Tribunal also created a trust fund for victims and same with the International Criminal Court, that can pay money to affected communities. As soon as the Nuremberg trials were over, there were already calls for a permanent international criminal court. But the Cold War put those conversations on hold. In the early 1990s though, human rights went up the global agenda. But there were a lot of new human rights treaties formed and new human rights institutions created, like the UN High Commissioner for Human Rights. In addition, there were new efforts to put human rights abusers on trial. New tribunals were created, the Yugoslavia and Rwanda Tribunals, for instance, as well as the Special Court for Sierra Leone and the Extraordinary Chambers in Cambodia, and later the Special Tribunal for Lebanon. The trial for the perpetrators of the bombing of Pan Am Flight 103 over Lockerbie, Scotland was a very important lesson for international criminal justice. It involves Scottish judges sitting in [inaudible] in the Netherlands to put on trial Libyan defendants. That was a new thing, and it a new model, I think, of criminal procedure, that was partly adversarial, partially inquisitorial. Nuremberg has been retroactively cited as the origin of international criminal law. We know from the history that the Nuremberg trials were mostly about waging aggressive war. They weren't really totally about atrocity to victims, but they'd laid a lot of groundwork for that in terms of legal doctrines and intellectually. But is this the whole story? Kathryn Sikkink argues in her book, Justice Cascade, that there's a whole second strain of international criminal justice, that would come in to merge with our history here. Those were the domestic trials primarily in Latin America. A lot of Latin American countries have put perpetrators on trial, beginning with Argentina in 1985 after they've transitioned to democratic rule, and so we've seen trials or truth commissions in virtually all Latin American countries since the transition to democracy. During the long decade of the 1990s, from the fall of the Berlin Wall in October 1989 to September 11th, 2001, when terrorism became the primary focus, Human Rights issues went up the global agenda and a lot of Human Rights law-making took place. The International Criminal Court came during that period and the preparations for it came right at the end of the Cold War. The International Law Commission, which is a UN organization that helps define International Treaties and International Law, adopted a draft code of crimes in 1991, and finally published a draft statute on the International Criminal Court in 1994. That draft statute became the basis for negotiations by the preparatory committee appointed by the UN General Assembly, PrepCom, as it was called, which met in 1996. Finally, a diplomatic conference in Rome, Italy in 1998 is where the text of the Rome Statute was negotiated. The Rome Statute created the International Criminal Court. It was primarily shaped by what was called the like-minded group, which was the block of the world's middle powers. Think Brazil and Germany, South Africa, those types of countries played a big role in shaping the Rome Statute. They were very supportive of a strong international court that could even put the most powerful countries on trial. Because the great powers had no unified strategy, they were sidelined at the conference largely, and the US, Russia, China, India, and to some degree France, didn't play a very prominent role at the conference. That resulted in a big victory for the like-minded group. They got both an independent, strong prosecutor, and the UN Security Council could not veto a prosecution, which is what the US and other veto powers wanted. We have a strong independent prosecutor, that model came out of the like-minded group. In addition, the Rome conference saw an enormous NGO civil society coalition. The religious groups, the women's rights groups, the victims groups, the lawyer groups, they all descended at Rome and had their input in this treaty. We see, for instance, very progressive provisions for the time on dealing with sexual assault survivors, dealing with child soldiers, and so on. Now, I think that the Rome Statute actually was ratified very quickly and entered into force much more rapidly than anyone thought. That's partly because shortly afterwards, Augusto Pinochet, the former dictator of Chile, was arrested in London on a Spanish arrest warrant, and that put International Criminal Justice on the front page of the world's news.