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PART I
Contextualising international criminal law
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1
THE CONSCIENCE OF CIVILISATION, AND ITS DISCONTENTS
A counter history of international criminal law
Gerry Simpson
âTell me, tall man, where would you like to be overthrown?
Jerusalem or Argentina?â
Bob Dylan, âAngelinaâ, Shot of Love (1981)
âReitlinger: minimum 4,194,400 ; maximum 4,581,200
The Anglo-American Committee: 5,721,500
Leszczynsky: 6,093,000
Blumenthal: 6,500,000â.
Hanna Yablonka, The State of Israel v Adolf Eichmann (Schocken Books, 2004) 83
âThe Divine Architect of the World
He didnât create mankind
as a uniform entity âŠâ
Tom Paulin, âLocarno IIIâ, The Invasion Handbook (Faber and Faber, 2002)
I Introduction
At the heart of international criminal law (ICL) lie three projects: a project to end âimpunityâ by punishing the perpetrators of war crimes using the methods of legalism (trial, conviction, punishment),1 a project to console victims (through procedures of vindication, reconciliation, reparation and pedagogy),2 and a project to consolidate something I have called, elsewhere, âjuridical humanityâ, by responding to an imagined âconscience of mankindâ and by giving that âconscienceâ institutional and doctrinal shape through the punishment of âenemies of mankindâ.3 Of course, ICL has many other stated and unstated purposes that have been dissected by a generation of writers.4 But these three ideas anchor the system and give it the meaning it has today. In this opening chapter I want to offer a history of ICL that understands that history as an effort to bring these various imperatives into some sort of equilibrium or, at least, relationship, and I do this through exploring some of the less familiar aspects of ICLâs past at Versailles during the negotiations over the trial of the Kaiser, at Moscow where the show trials of the 1930s offer a counterpoint to the Nuremberg and Tokyo Trials that followed, and in Lyon where Klaus Barbie was tried.5 An examination of these trials will bring out, too, some of the dominant sub-themes of the paper: the question of memorialisation through law, the apparent linearity of the trial narratives, and the spectre of ad hoc âprovisionalismâ that hangs over ICL.
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When does history begin? Or the history of a particular field? In the case of ICL, the contenders are various. Scholars have pointed to a number of historical trials that might serve as precursors to modern ICL. These include the von Hagenbach Trial in 1474 or the Mixed French-Siamese Arbitral Tribunal in 1893â94.6 But beyond specific trials, it could be argued that ICL began with international law itself and the Roman split between the ius civile and the ius gentium: a law among Romans and a law to be applied to foreigners; or with Grotiusâs opening lines in de jure praedae (1604â5) where he denounces the Portuguese as âcruel enemiesâ thereby casting them into the realm of enemies of mankind. Cicero is thought to be the originator of the idea that pirates are hostes humani generis or âenemies of mankindâ, and this may well represent the first appearance of âmankindâ or humanity as a category capable of acting against enemies (as opposed to a political ideal to be strived for, or an immanent state or prospect to be identified among the entrails of the current imperfect order).7 Grotius, in his On the Law of War and Peace speaks of the right to punish pirates:
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This âpraiseworthy customâ it might be said, became the law of war crimes. The capture and punishment of pirates represents a highly plausible origin for ICL because for the first time individuals were held responsible for breaches of international law and that responsibility was effected through an extension of stateâs jurisdiction to areas beyond its territory. This combination, then, of extracurricular jurisdiction, individual liability and punishment acts as a model for the field.9 The punishment, too â itself an alternation between violent liquidation and ad hoc trial â becomes a mark of the contemporary repression of enemies of mankind and the establishment of mankind as a juridical category.10
Of course, ICL has its roots in a number of other historical episodes and trajectories. The decision to exile Napoleon (despite a clamour from the Prussians for some sort of exemplary trial) represents both the final act of a diplomatic system committed to disposing of enemies through a form of political action and an act of proto-ICL (exile being a form of internationally-sanctioned punishment).11 Alongside this, though, are long-range developments in the area of international law and the use of force where a just war tradition â distinguishing good and bad war and forming the basis for a later criminalisation of aggression â does not altogether recede; or in the humanitarian laws of war where misconduct in war is increasingly sanctioned through international law (the Lieber Code, the St Petersburg Declaration); or in the way in which anti-slavery efforts were internationalised while the slave-trader became the latest incarnation of the enemy of mankind.
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ICL, of course, now has its own âhistoriesâ of these and later developments and each of these offers a different perspective on such developments.12 For Gary Bass, in his Stay the Hand of Vengeance, Napoleonâs exile is the first step towards a liberal-legalist push for war crimes trials. Such trials, he argues, arise from a desire on the part of constitutional states to export liberal procedures to the international realm.13 Four more recent histories each approach the origins of ICL differently. Mark Lewisâs Birth of the New International Justice thinks of international war crimes trials as the culmination of several institutional and doctrinal developments in the fields of international humanitarian law, the law of war and peace and criminal law coupled with changes in the nature of democracy within states.14 Kevin Hellerâs The Nuremberg Military Tribunals and the Origins of International Criminal Law, meanwhile, locates many of our present concerns in a series of trials (the Control Council Trials) held by the Americans at Nuremberg between 1946 and 1948, where a number of now-familiar doctrinal and historical quandaries emerged. Rob Cryer and Neil Boister have also sought to decentre the iconic Nuremberg Trial by directing us to its neglected cousin at Tokyo. The more familiar origin of ICL, of course, lies at the trial of the Major War Criminals at Nuremberg between October 1945 and November 1946 (Göring et al) when 22 leading Nazi War Criminals (including Hermann Göring, Albert Speer, Hans Frank and Joachim von Ribbentrop) were tried for committing war crimes, crimes against humanity and crimes against peace. Twelve were sentenced to death, seven received jail terms and three were acquitted.15 This trial is the subject of two books published in 2016. In Andrew Williamsâ A Passing Fury: Searching for Justice at the End of World War II, the author traces the foundations of the system back to the numerous investigations and trials held in post-war-Germany after the war (trials and investigations since eclipsed by the main Nuremberg trial) and takes the familiar â perhaps even clichĂ©d â view that such foundations were shaky, flawed and, sometimes, unjust but ultimately necessary: âWhat else could they have done?â, as he asks at the end of the book.16 In East West Street, Philippe Sands offers up a highly personal and astutely (auto)biographical reading of the origins of ICL in the efforts of two men at Nuremberg: Raphael Lemkin, the Polish jurist and originator of the term âgenocideâ, and Hersch Lauterpacht, a Cambridge don and prominent international lawyer whose family perished in the Holocaust and whose articulation of the category âcrimes against humanityâ was central to the whole proceedings and, indeed, the future of ICL.17
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II Cavell, 1915
My own historical account begins on August 3, 1915 with the court martial of an English nurse, Edith Cavell. Cavell had been found guilty of aiding Allied prisoners in their escape from Belgium during the German occupation of Belgium. This, for me, represents the beginning of an effort to end impunity, provide redress for victims of atrocity and inaugurate a juridical humanity from the ruins of Empire. Cavell was convicted of a breach of German military regulations and an act of treason: a strange charge in this context â she owed no loyalty to the German state, after all â but a charge that has, as we shall see, an interesting history in this field of law. Despite a flurry of diplomatic protests â the German ambassador to the US, rather unhelpfully, said he would shoot five English nurses if he had them in custody â Cavell was executed on the morning of October 14 at the National Rifle Range in Brussels.18 This marks a moment of origin for the field of ICL. The execution sets off a train of events that leads to Article 227 of the Versailles Peace Treaty and then onwards to Nuremberg, Rome and Kampala.
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The Germans, already accused, often falsely, of unspeakable crimes against the Belgian population, were immediately demonised further. Lloyd George went to the 1918 election with one of the most compelling election slogans of the twentieth century: âHang the Kaiserâ. The promise was made, and though the Kaiser remained resolutely unhanged after the war, this promise became the foundation of ICL. Kaiser Wilhelm died peacefully on June 3, 1941 a month or so before Hitlerâs invasion of the Soviet Union, and these two events together conjoin two origins of the field at Versailles (the 1919 peace treaty between Germany and the Allied Powers) and later ...
