Historical origins of international criminal law Volume 3 PDF
Preview Historical origins of international criminal law Volume 3
Historical Origins of International Criminal Law: Volume 3 Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping (editors) Historical Origins of International Criminal Law: Volume 3 Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping (editors) 2015 Torkel Opsahl Academic EPublisher Brussels This and other books in our 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 19 November 2015. © Torkel Opsahl Academic EPublisher, 2015 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 978-82-8348-015-3 (print) and 978-82-8348-014-6 (e-book) Dedicated to my husband CHEN Fang, for giving me the best years of my life. YI Ping EDITORS’ PREFACE The Historical Origins of International Criminal Law (‘HOICL’) Project has grown beyond all our expectations, and it was difficult to choose from the many high quality contributions that we received. This third volume contains contributions by 28 authors from around the world. Most chap- ters were first presented as papers at the second conference in the HOICL Project held in New Delhi 29−30 November 2014, co-organized by the Centre for International Law Research and Policy, NALSAR University of Law, O.P. Jindal Global University, Peking University International Law Institute, Waseda University Law School, European University Insti- tute (Department of Law), Indian Society of International Law, Royal Norwegian Embassy in New Delhi, Delegation of the European Union to India, and the Asian-African Legal Consultative Organization. The preparation of this book for publication has been a comprehen- sive undertaking for the editorial group and the production experts of the Torkel Opsahl Academic EPublisher. We would like to place on record our sincere gratitude to each member of the diverse and skilled team, in particular, Mr. Gareth Richards (who has made an extraordinary contribu- tion), Assistant Professor ZHANG Binxin, Ms. Pauline Brosch, Mr. CHAN Icarus, Mr. Alf Butenschøn Skre, Ms. Shama Abbasi, Mr. Ryan Nicholas Hong, Mr. Devasheesh Bais, and Dr. WEI Xiaohong. As editors, we are responsible for the final result. But the team stands together in having managed to complete the project in a timely fashion. We would also like to thank the German Ministry of Foreign Af- fairs, for support to finalize the editing of this volume, and the Royal Norwegian Ministry of Foreign Affairs, for support in other aspects of the HOICL Project. Morten Bergsmo CHEAH Wui Ling SONG Tianying YI Ping i FOREWORD BY NARINDER SINGH It is an honour to write a foreword to this important anthology which hap- pens to be the third volume in the ‘Historical Origins of International Criminal Law’ series. This volume brings together papers which were presented at the Historical Origins of International Criminal Law Seminar (‘HOICL’), held at New Delhi on 29 and 30 November 2014, which I had the privi- lege of attending. This was the second of two seminars analysing the main historical origins of international criminal law, the first having taken place in Hong Kong on 1 and 2 March 2014. The Centre for International Law Research and Policy (acting through her department FICHL), the European University Institute (De- partment of Law), Peking University International Law Institute, Waseda University Law School, NALSAR University of Law, O.P. Jindal Global University, the Asian-African Legal Consultative Organization, and the Indian Society of International Law co-organized the seminar. The Seminar brought together more than fifty experts from different parts of the world, covering all continents. Their backgrounds and experi- ences were equally wide ranging and included: Judges and prosecutors of international and regional courts and tribunals, human rights experts, ex- perts from the International Committee of the Red Cross, professors, and research scholars interested in the subject. The papers presented at the seminar analyse the trials, treaty provisions, national laws, declarations or other acts of States, and publications that constitute significant building blocks of contemporary international criminal law. The last century especially the period after the establishment of the United Nations has seen a tremendous growth in international law, includ- ing in the field of international conventions covering individual criminal responsibility in areas such as trafficking in narcotics, organised crime, money laundering, international humanitarian law, human rights (includ- ing prohibition of torture, apartheid and enforced disappearances) and in- ternational terrorism. However, apart from the development of substantive laws identify- ing various acts as criminal acts under international law – which States Parties to the relevant conventions are required to proscribe as crimes un- iii der their national laws, and to co-operate with other States in their preven- tion, investigation and prosecution – the most important development in this process has been the establishment, after long years of effort, of an International Criminal Court, with the jurisdiction to try persons accused of the most serious crimes of concern to the international community. Kofi Annan, the United Nations Secretary-General, welcoming the adoption of the Court’s Statute, said: For nearly half a century – almost as long as the United Nat- ions has been in existence – the General Assembly has re- cognized the need to establish such a court to prosecute and punish persons responsible for crimes such as genocide. Many thought […] that the horrors of the Second World War – the camps, the cruelty, the exterminations, the Holocaust – could never happen again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in Rwanda. Our time – this decade even – has shown us that man’s capacity for evil knows no limits. Genocide […] is now a word of our time, too, a heinous reality that calls for a historic response. At the start of the Rome Diplomatic Conference, he had stated that “[i]n the prospect of an international criminal court lies the promise of universal justice”. It may be recalled that the draft Statute for the International Crimi- nal Court, together with its commentaries, finalised by the International Law Commission (‘ILC’) in 1994, had constituted the basis for the work of the Rome Conference, and that the ILC had as early as its second session, in 1950, in response to a request by the General As- sembly made in the context of the Genocide Convention, concluded that the establishment of an international judicial organ for the trial of persons charged with genocide or other crimes was both desirable and possible. It took nearly fifty years after this for the International Criminal Court to become a reality. Another topic of relevance currently being examined by the Interna- tional Law Commission is “Immunity of State officials from foreign crim- inal jurisdiction”. The question of the immunity of State officials from foreign criminal jurisdiction has attracted greater academic and public discussion as well as State practice, including domestic case law, espe- cially following consideration of the case of former Chilean dictator Gen- eral A. Pinochet in Great Britain. A number of attempts were made to in- stitute criminal proceedings in domestic courts against senior incumbent and former officials of foreign States. In 2002 the International Court of iv
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