History and international law : an intertwined relationship

226 Pages·2019·6.188 MB·English

by  Annalisa Ciampi (editor)

© Annalisa Ciampi 2019
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2019951075
This book is available electronically in the
Law subject collection
DOI 10.4337/9781788977494
ISBN 978 1 78897 748 7 (cased)
ISBN 978 1 78897 749 4 (eBook)
Contents
List of contributors vii
Acknowledgements viii
Foreword by Giorgio Gaja ix
PART I HISTORY AND INTERNATIONAL LAW: AN
INTRODUCTION
1 Creative forces and institution building in international law 2
Rolf Einar Fife
2 Eastern Europe’s imprint on modern international law 22
Stefan Troebst
PART II HISTORY AND INTERNATIONAL HUMAN
RIGHTS LAW
3 History, isolation and effectiveness of human rights 44
Annalisa Ciampi
4 EU human rights law and history: a tale of three narratives 82
Sionaidh Douglas-Scott
PART III HISTORY, INTERNATIONAL
HUMANITARIAN LAW AND
INTERNATIONAL CRIMINAL LAW
5 ‘Treaty after trauma’: ‘protection for all’ in the Fourth
Geneva Convention 103
Gilad Ben-Nun
6 History and core international crimes: friends or foes? 135
Olympia Bekou
v
vi History and international law
7 The legacy of the ICTY in Croatia, Bosnia and Serbia 168
Katarina Ristić
8 The rise and demise of the ICC relationship with African
states and the AU 191
Erika de Wet
Index 213
Contributors
Olympia Bekou is Professor of Public International Law and Head,
International Criminal Justice Unit, Human Rights Law Centre, School of
Law, University of Nottingham.
Gilad Ben-Nun is Senior Scholar in Residence and EEGA Fellow, Centre
for Area Studies, Leipzig University and Former EU Marie Curie Individual
Fellow, University of Verona, 2016–2018.
Annalisa Ciampi is Professor of International Law, University of Verona,
Visiting Professor of European Human Rights law, Monash University,
and formerly UN Special Rapporteur on the Rights to Freedom of Peaceful
Assembly and of Association.
Sionaidh Douglas-Scott is Anniversary Chair in Law, Queen Mary University
of London, Honorary Research Fellow, Lady Margaret Hall, University of
Oxford and Leverhulme Major Research Fellow, 2018–2021.
Rolf Einar Fife is Ambassador of Norway to the European Union, formerly
Director General for Legal Affairs and Legal Adviser of the Norwegian
Ministry of Foreign Affairs 2002–2014.
Katarina Ristić is Researcher Associate, Global and European Studies
Institute, Leipzig University.
Stefan Troebst is Professor of East European Cultural History, Leipzig
University.
Erika de Wet is SARChI Professor of International Constitutional Law,
Faculty of Law, University of Pretoria; Honorary Professor, Faculty of Law,
University of Bonn.
vii
Acknowledgements
I am grateful to Elgar external anonymous reviewers for their comments and
advice. My associate editor and friend, Gilad Ben-Nun, has encouraged and
supported me in many ways, and Amber Watts and Fiona Todd have skilfully
and patiently guided me through the production process. The book would not
have been possible without the hard work of the contributors, whom I thank
for agreeing to participate.
Annalisa Ciampi
viii
Foreword
Giorgio Gaja
The present collection of essays intends to address both the impact of history
on international law and the contribution that international law makes to
history. The subject is clearly huge and may be considered only under some
limited aspects. These are mainly from the areas of international human rights
law and international humanitarian law, but, notwithstanding the absence of an
essay devoted to methodology, the book offers reflections that cover a wider
ground.
This is in particular true of the introductory study by Rolf Einar Fife. He
examines some significant moments in the development of international law.
The stress is on the influence played by certain international lawyers on the
elaboration and consolidation of some significant concepts. His first example
is taken from the principle of the stability of frontiers, as applied in Latin
America and in Africa and more recently in Europe. He then examines the
elaboration of the concept of the self-determination of peoples and finally
the emergence of the concept of a supranational organ (High Authority) with
regard to the European Communities and later the European Union. The
references to these developments are meant to illustrate how concepts may
influence the course of history.
Stefan Troebst’s essay is dedicated to the impact that events and scholarly
work in Eastern Europe had on the development of international law. He
considers in particular the so-called ‘Brezhnev Doctrine’ on intervention
and the evolution of practice through the application of the principle that
intervention should not take place outside one state’s sphere of influence. He
further stresses the erosion of the uti possidetis principle over Kosovo and the
development from a policy of exchanges of population to the configuration of
ethnic cleansing as a crime against humanity.
The concepts taken as examples have certainly had great significance. Their
elaboration was one of the main reasons for their impact. However, what con-
tributed greatly to their influence is the fact that the political context provided
a favourable ground to their reception when their application was sought. For
instance, when the concept of self-determination was successfully applied
in the 1960s to non-self-governing territories, several administering powers
ix
x History and international law
found it expedient to replace colonialism with neo-colonialism, which implied
the formal independence of the former colonial people.
Annalisa Ciampi’s essay provides an ample survey of the development of
international human rights law. The main focus is on the divide between civil
and political rights, on the one hand, and economic, social and cultural rights,
and later the right to development, on the other. One of her points is that,
while human rights are often described as ‘indivisible’, their protection hardly
follows a unitary approach. She stresses the need for a greater integration of
human rights in development and economic activities.
The analysis emphasizes the gaps in the protection of human rights as they
result from practice. Ratification of human rights treaties and adoption of
instruments proclaiming rights rarely lead to a higher protection. Moreover,
states are reluctant to pursue the settlement of international disputes in this
field. While there is much truth in these propositions, one may suggest that the
survey could have given greater weight to the role that human rights bodies
play with regard to individual applications and in making general comments.
Sionaidh Douglas-Scott examines the development of the protection of
human rights within the European Union. The analysis is centred on the rela-
tions between human rights and free market rights. The author notes that the
pursuit of the objectives of progressing towards an ever closer Union and of
defending the supremacy of European Union law do not provide an exhaustive
explanation of the development of the protection of human rights within the
Union. She underlines also the importance of discontinuities, giving weight
to economic rights in a free and equal market society. One may agree with
the author’s remark that institutions of the European Union are reluctant to
expand their role with regard to the protection of human rights in the Union.
However, the institutional system would not be able to take on new tasks, such
as providing a judicial remedy against violations of human rights, and would
risk collapsing.
The next section consists of four contributions that concern specific issues
of international humanitarian law or of international criminal law.
Gilad Ben-Nun makes an in-depth analysis of the preparatory work to
common Article 3 of the 1949 Geneva Conventions, in particular the Fourth
Convention on the Protection of Civilians. This study is based on some
unpublished material relating to the discussions that took place at Stockholm
before the Geneva Conference and that led to the scope of the protection of
civilians being extended to include nationals targeted by the government of
a state involved in a conflict not of an international character. In this regard,
the author underlines the shift in the position of the International Committee of
the Red Cross and the role played by the Soviet Union.
The following contributions address the repression of international crimes.
Olympia Bekou examines how some historical events led to drafting the
Foreword xi
repression of genocide, crimes against humanity and war crimes in the Statute
of the International Criminal Court (ICC). She outlines how the definition of
crimes against humanity has moved away from the requirement of a connection
with war, which was implied in the Charter of the Nuremberg Tribunal, and
has included apartheid. This is described as a ‘regime of systematic oppression
and domination by one racial group over any other racial group or groups’
(Article 7(2)(h) of the ICC Statute), reflecting the situation prevailing in South
Africa until 1994. The author then considers the developments in Rwanda and
former Yugoslavia that led to the inclusion of ‘forced pregnancy’ among the
crimes against humanity (Article 7(1)(g) and (2)(f) of the ICC Statute). She
advocates that for both crimes, and also for genocide, a wider definition be
adopted in order to take more recent events into account. She suggests that for
that purpose the ICC Statute be considered a ‘living instrument’. However,
this approach conflicts with the need not to widen retroactively conduct that
is punishable.
Katarina Ristić analyses the attitude taken in Bosnia, Croatia and Serbia
towards the International Criminal Tribunal for the former Yugoslavia (ICTY).
She recalls that victims’ organizations in Bosnia criticized the leniency of
certain sentences and the dismissal of charges of genocide for events other than
those of Srebrenica. In Croatia there was an outright rejection of the view that
Croat leaders, including President Tuđman and General Gotovina, could be
considered war criminals. There was also strong criticism of the ICTY’s failure
to recognize that genocide had been committed by Serbia in Vukovar. Serb
public opinion considered the ICTY a politically biased entity and insisted on
the symmetry between crimes committed by Serbs and Bosnians in what was
defined a civil war; the genocide in Srebrenica was downgraded to a massacre.
The impact of public opinion explains the failure of the prosecution of war
crimes by national courts. Notwithstanding the predominant narratives, some
non-governmental organizations and certain media argued in favour of justice
for victims, including in the criticism of some questionable acquittals. With
regard to the findings of the ICTY concerning genocide in Srebrenica, in other
parts of Bosnia and in Vukovar, one may add that they have all been endorsed
by the International Court of Justice.
Erika de Wet examines the criticism voiced by several African states about
the International Criminal Court (ICC), which they had originally supported.
The indictment of African leaders, especially President Bashir of Sudan and
the future President of Kenya, Uhuru Kenyatta, have been considered as an
expression of bias. Moreover, self-referrals by African states have led to unsat-
isfactory results. For the time being, the threat of some African states to with-
draw from the ICC Statute has had very limited impact. The author advocates
the strengthening of the prosecution of international crimes through national
and regional courts, such as the African Criminal Chamber under the 2014
xii History and international law
Malabo Protocol. However, financial considerations may well be an obstacle
to regional developments, as shown by the events concerning the prosecution
in Senegal of the former President of Tchad, Hissène Habré.
The variety of issues examined in the contributions to the present volume
and the brevity of the considerations generally dedicated to the legal impli-
cations of political events do not point to specific conclusions, which are
therefore not offered by the editor. However, the book offers several examples
of interesting analysis which may be taken as paradigms and should stimulate
further research.