Historical origins of international criminal law Volume 1 PDF
Preview Historical origins of international criminal law Volume 1
Historical Origins of International Criminal Law: Volume 1 Morten Bergsmo, CHEAH Wui Ling and YI Ping (editors) Historical Origins of International Criminal Law: Volume 1 Morten Bergsmo, CHEAH Wui Ling and YI Ping (editors) 2014 Torkel Opsahl Academic EPublisher Brussels This and other books in the FICHL Publication Series may be openly accessed and downloaded through the web site http://www.fichl.org/ which uses Persistent URLs for all publications it makes available (such PURLs will not be changed). Printed copies may be ordered through online and other distributors, including https://www. amazon.co.uk/. This book was first published on 12 December 2014. © Torkel Opsahl Academic EPublisher, 2014 All rights are reserved. You may read, print or download this book or any part of it from http://www.fichl.org/ for personal use, but you may not in any way charge for its use by others, directly or by reproducing it, storing it in a retrieval system, transmitting it, or utilising it in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, in whole or in part, without the prior permission in writing of the copyright holder. Enquiries concerning reproduction outside the scope of the above should be sent to the copyright holder. You must not circulate this book in any other cover and you must impose the same condition on any acquirer. You must not make this book or any part of it available on the Internet by any other URL than that on http://www.fichl.org/. ISBN 978-82-93081-11-1 Dedicated to Bonnie Helene Bergsmo EDITORS’ PREFACE The expansion, successes and failures of international criminal law and justice over the past two decades have been accompanied by more curious and critical questioning about its origins. How did we get to where we are today? This trilogy Historical Origins of International Criminal Law: Volumes 1–3 (‘HOICL’) has been a long time in the making. Since 2009 the editors have discussed the need for such an anthology that would bring researchers working on disparate historical issues together. There was a growing realisation among practitioners and scholars that the key trials and events commonly referred to when telling the story of international criminal law’s development were only a few pieces of a bigger puzzle, which may not be as important as originally made out. Our project’s timeliness became more evident in light of emerging research conducted on different trials and the ICC Legal Tools Database’s increasingly complete collection of historical records on core international crimes that may serve as legal sources. During our planning of this trilogy and research project, we made efforts to identify and get in touch with researchers from different countries who were already working on historical questions. We also made a point of distributing our call for papers widely, with the hope of being as inclusive and representative as possible in our selection of high quality research. The response to our call for papers was overwhelming, demonstrating the importance of the project and that it should be done at this time. We sought to include multiple perspectives when selecting our authors, including some that we had ourselves not anticipated. We also structured the conference and provided editorial assistance to some non- native English-speaking authors so our project would serve as an opportunity and space for scholarly exchange and continued co-operation across geographical and cultural barriers. Throughout this process we were fortunate to have the support and participation of doyens in the field, but we also made additional efforts to involve early career researchers to build a stronger research community that would grow and span generations. i This is the first volume of the HOICL trilogy. Chapters in the first two volumes are arranged in chronological order. The first volume addresses trials and proceedings up to the Nuremberg trials. The second volume studies other trials from the post-Second World War period. The third volume explores more contemporary trials, crimes and legal concepts, as well as thematic lines of inquiry. A project of this ambition and reach would not be possible without the help we have received from many talented and committed individuals. We would like to thank all authors for their excellent contributions and professionalism. We also thank Assistant Professor ZHANG Binxin (PKU- CILRAP Research Fellow) who played a major role in the final stages of the editing process. Our editorial assistants provided vital help at all stages of the editing and production process: Ryan HONG, XING Yun, CHOONG Xun Ning, Aarshi Tirkey, CHOW Jia Ying, Sangeetha Yogendran, Kristin Xueqin WU and Mark Ortega. We thank Alf Butenschøn Skre for his production expertise. Support was also provided by Tessa Bolton and Nathaniel KHNG. All chapters have been formatted according to the publisher’s style guide. An anthology of this scope, with chapter contributors of diverse linguistic backgrounds, would not be possible without our copy-editing and formatting team from Impress Creative and Editorial: Gareth Richards, Jaime HANG, Liani Manta- Khaira and Marco Ferrarese. Their well-rounded expertise and patience were priceless. Finally, we thank the Norwegian Ministry of Foreign Affairs for financial support for this research project of the Centre for International Law Research and Policy. Morten Bergsmo, CHEAH Wui Ling, YI Ping ii PREFACE BY DAVID COHEN The past few years have seen a renewed interest in historical trials of core international crimes. However, until now, such historical studies have for the most part focused on case studies of individual trials or groups of trials. The Historical Origins of International Criminal Law (‘HOICL’) research project and anthologies are the first to undertake the study of the historical development of international criminal law in a comprehensive, inclusive and systematic way. This project’s wide scope is reflected in its far-reaching temporal and geographical coverage. As represented in mainstream textbooks, the dominant narrative of international criminal law’s history usually begins with the Nuremberg and Tokyo trials at the end of the Second World War, with more focus given to the former than the latter. This conventional narrative then proceeds to examine the establishment and work of the ad hoc international criminal tribunals of Yugoslavia and Rwanda, the hybrid tribunals and the International Criminal Court (‘ICC’). The HOICL project and anthologies challenge this traditional historical narrative by not limiting themselves to the typical institutional trajectory of Nuremberg/Tokyo – 1990s ad hoc tribunals – ICC. Rather, HOICL questions this paradigm and examines a broad range of less explored time periods, geographical regions and institutional settings that demonstrate how communities, states and international organisations have sought to prosecute or deal with core international crimes. There are many reasons why the time is right for such a project. Due to technological developments and innovative efforts by research institutions, archival sources on these historical trials have been made available and “rediscovered” by scholars. These archival materials are made more easily accessible through Internet tools, such as the ICC Legal Tools Database (‘ICC LTD’). The ICC LTD makes available contemporary and historical case law and instruments through its search engine and well- organised user interface. Access is completely free of charge. All users need is an internet connection. Researchers no longer need to secure funds beforehand, and they no longer need to travel extensive distances to public or private archives where such historical records are stored. iii Such historical studies have become increasingly relevant as international criminal law enters a normative consolidation stage. The discipline is now leaving behind its frenetic stages of expansion and institution building. As it does so, it becomes ever more important to revisit the discipline’s historical origins so as to achieve a better understanding of where we are today and the challenges we will encounter in the future. Appreciating the diverse forms that international criminal law has historically taken contributes to a more critical understanding of our discipline and offers insight into how humanity has sought to address the worst types of atrocities over time. One of the key achievements of HOICL is the spotlight and attention given to less well-known non-Western cases or personas in international criminal law. Like many other areas of international law, Western actors or institutions continue to predominate in our discussions and research. We read about the role played by the Americans in shaping the direction of post-Second World War trials and of European efforts in the design of the ICC. Much less is known of the thinking and role of non-Western actors involved in or impacted by international criminal justice. Many chapters in the HOCIL anthology focus on trials conducted in non-Western societies and their impact, and on the thought and contributions of non-Western actors within the United Nations War Crimes Commission, the Tokyo Trial and other institutional settings. A number of these chapters have been written by young and upcoming scholars from non-Western societies. A more comprehensive and realistic understanding of how non-Western actors and societies perceive international criminal justice is necessary if the discipline is to be truly inclusive. HOICL authors come from different disciplinary backgrounds. Some are lawyers, others are historians, political scientists or sociologists. They employ a variety of theoretical and disciplinary perspectives and have different types of legal training and professional experience. They have chosen an eclectic and extensive range of research questions, which they have approached using different methodological frameworks. There are quite a few case studies of trials or institutions that take a detail- oriented and meticulous approach, which is useful and necessary when the research topic has yet to be mapped out or comprehensively studied. Some chapters take a comparative approach, juxtaposing different trials against one another to draw out and explain their similarities or differences. Other chapters take a more thematic or conceptual approach to view the justice process through the lenses of show trials, colonialism iv
The list of books you might like
