Law, Politics and the Limits of Prosecuting Mass Atrocity PDF
Preview Law, Politics and the Limits of Prosecuting Mass Atrocity
HUMAN RIGHTS INTERVENTIONS DAMIEN L AW, POLITICS AND THE ROGERS LIMITS OF PROSECUTING MASS ATROCITY Human Rights Interventions Series Editors Chiseche Mibenge Stanford University Stanford, California, USA Irene Hadiprayitno Leiden University Leiden, The Netherlands The traditional human rights frame creates a paradigm by which the duty bearer’s (state) and rights holder’s (civil society organizations) interests col- lide over the limits of enjoyment and enforcement. The series departs from the paradigm by centering peripheral yet powerful actors that agitate for intervention and influence in the (re)shaping of rights discourse in the midst of grave insecurities. The series privileges a call and response between theo- retical inquiry and empirical investigation as contributors critically assess human rights interventions mediated by spatial, temporal, geopolitical and other dimensions. An interdisciplinary dialogue is key as the editors encour- age multiple approaches such as law and society, political economy, histori- ography, legal ethnography, feminist security studies, and multi-media. More information about this series at http://www.springer.com/series/15595 Damien Rogers Law, Politics and the Limits of Prosecuting Mass Atrocity Damien Rogers Centre for Defence and Security Studies Massey University Auckland, New Zealand Human Rights Interventions ISBN 978-3-319-60993-5 ISBN 978-3-319-60994-2 (eBook) DOI 10.1007/978-3-319-60994-2 Library of Congress Control Number: 2017950297 © The Editor(s) (if applicable) and The Author(s) 2018 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover Image: © Kresta K.C. Venning / Getty Images Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland For Francesca, unflinching warrior and fierce keeper of the peace P reface This book is the culmination of yet another long night’s journey into day. While it has taken me many years to write, its arguments rest largely on foundations built by others. What began as a somewhat timid response to Gerry Simpson’s excellent Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Cambridge: Polity, 2007) was soon buttressed by the authoritative contents of International Prosecutors, edited by Luc Reydams, Jan Wouters and Cedric Ryngaert and published by Oxford University Press in 2012. The publication of Christine Schwöbel-Patel’s Critical Approaches to International Criminal Law: An Introduction (London and New York: Routledge, 2014) offered much- needed reassurance that other scholars were grappling with the vexing issues perplexing me. Without quality scholarship like theirs, it would not have been possible to write this book. I am also grateful to the Macmillan Brown Library at the University of Canterbury for granting me access to their Justice Erima Harvey Northcroft Tokyo War Crimes Trial Collection. It is, without doubt, a national treasure. My hope is that this book encourages its readers to consider the rela- tionship between law and politics in a new light. The book not only dem- onstrates that law can constrain politics and that politics can create, animate and saturate the law, but also shows that international criminal law constitutes its own type of international politics. In my view, too often politics is conceptualised, unduly narrowly, as only cohering around a state leader and his or her prerogatives. When this happens, law—especially the enforcement of international criminal law—is routinely seen as a by-p roduct vii viii PREFACE of politico-strategic affairs. While states are undoubtedly important to the conduct of contemporary world affairs, including as makers of public international law as well as its subject and object, states are not the only entities through which people, acting as individuals or in concert, seek to obtain and use power over others for substantive ends. Focusing on the state as the primary entity of contemporary world affairs neglects the importance of economic and social actors, and of their broader move- ments. It can also blind us to the ways in which international prosecutors of mass atrocity express their preferences for democracies, markets with- out fetters and individuals as sovereigns unto themselves. These expres- sions are important because those who do not share these preferences can find themselves transformed initially into suspects, then into the accused before becoming defendants standing in the dock. Denounced as enemies of mankind, defendants are essentially excommunicated from humanity’s ranks. In this regard I also hope the book encourages its readers to enter- tain the possibility that prosecutions of mass atrocity occur as part of a silent war fought for control over the politico-cultural project of modernity. Earlier drafts of this book were improved by comments and suggestions generously offered by Neil Boister and Gay Morgan as well as by Gerry Simpson and Wouter Werner. Three anonymous reviewers deserve praise too for their penetrating criticism, responses to which I have done my best to incorporate in the pages that follow. While they might not always agree with everything I have done, the book is certainly better for their efforts. My colleagues at Massey University’s Centre for Defence and Security Studies and the politics programme provided ample encouragement and, in particular, Professor Graeme Fraser offered wise council when it was most needed. I also wish to thank Cambridge University Press for permis- sion to reprint parts of my chapter entitled ‘Prosecutors’ Opening Statements: The Rhetoric of Law, Politics and Silent War’ in Nabou Hayash and Cecilia Bailliet (eds) The Legitimacy of International Criminal Tribunals (Cambridge: Cambidge University Press, 2017). Any errors of fact, lapses of expressions and all violations of academic conventions con- tained in this book are my own. c ontents 1 Introduction 1 Part I Prosecuting Mass Atrocity After the Second World War 31 2 International Military Tribunals 33 3 Indictment of German and Japanese War Leaders 57 4 Opening Statements at Nuremberg and Tokyo 85 Part II Prosecuting Mass Atrocity After the Cold War 103 5 Ad-hoc International Criminal Tribunals 105 6 Indictment of Yugoslav and Rwandan Troublemakers 133 7 Opening Statements at The Hague and Arusha 153 ix x CONTENTS Part III Prosecuting Mass Atrocity During the War on Terror 171 8 International Criminal Court 173 9 New Generation of Prosecutors: Warrants, Summonses and Opening Statements 199 10 Conclusion 223 Index 237
The list of books you might like
