The Historical Origins of International Criminal Law

Crystallising a Sub-discipline of the History of International Criminal Law

International Criminal Law, as a relatively young discipline, occasionally still struggles with certain weaknesses in its own theoretical foundation. In an attempt to address this problem the Forum for International Criminal and Humanitarian Law (FICHL) organised an international conference entitled “The Historical Origins of International Criminal Law”. According to the organisers, the intention of the conference was “to pursue the vertical consolidation of international criminal law, by increasing knowledge about its historical and intellectual foundations and its social function, enhancing the quality, independence and viability of criminal justice for core international crimes in diverse and rapidly changing social contexts”.

The two day conference was held at the City University of Hong Kong (CityU) on March 1st and 2nd 2014. The co-organizers of this event included the Centre for International Law Research and Policy, Peking University International Law Institute, City University of Hong Kong, and the European University Institute (Department of Law). The persons mainly responsible for the coordination were Assistant Professor Yi Ping (Peking University Law School), Professor Morten Bergsmo (Peking University Law School), and Assistant Professor Cheah Wui Ling (National University of Singapore).

The conference opened with a round of introductory remarks. Professor Mark D. Kielsgard (CityU) and CityU’s acting dean Professor Lin Feng welcomed speakers and guests as representatives of the host university. One of the distinguished guests of the conference, Geoffrey Robertson QC (Doughty Street Chambers), spoke for the conference participants. Professor Bergsmo, as part of the organizing team, then gave a short introduction to the seminar theme and commented on its relevance for modern international criminal law.

Next, Professor David Cohen (University of Hawaii and Stanford University) delivered the 2014 Li Haopei Lecture entitled “Taking a Historical Approach to International Criminal Law”. This lecture forms part of a lecture series honouring of the late Chinese judge and jurist Li Haopei. The first session of the conference was concluded by the paper “Chinese Law and Legal Tradition in the Spring and Autumn Periods of China’s History and International Criminal Law” presented by Judge Liu Daqun (Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and Rwanda).

Over the next two days over forty speakers presented their papers in eight different panels, leading the participants in chronological order from the early developments of international criminal law up to the post-World War II period, starting with a keynote delivered by Geoffrey Robertson QC on the Trial of Charles I., and lectures ranging from Kirsten E. Sellars (NU Singapore) talk on the “Stillbirth of International Criminal law at the Paris Peace Conference 1919”, Wolfgang Form (U Marburg) who spoke about the “Miscariage of Justice at the German Leipzig trials”, Anatoly Levshin (U Princeton) explained the “Genesis of the Crime of Aggressive War in International relations”, and Axel Fischer (U Marburg) presented on the “Nuremberg Trial Film Project of the US Signal Corps”.

Amongst the participants at Hong Kong were also Dr. Kerstin von Lingen from the Cluster of Excellence “Asia and Europe in a Global Context” at the University of Heidelberg and her Research Group ‘Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1945-1954’ .

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The central research focus of this group is to analyse the interaction of concepts of legality and justice between Asia and Europe during the war crimes trials program in various countries in East Asia between 1945 and 1954. The analysis is based, on the one hand, on the legal discussions that took place in the United Nations War Crimes Commissions and, on the other hand, on several selected case studies of war crimes prosecutions in East Asia. All research takes into account the historical background of the legal developments discussed and seeks to uncover the entangled history of law and politics. The different case studies shed light on the impact of Decolonization and the Cold War on the development of international legal norms in the post-World War II period. A central hypothesis of the research project is that western debates on the history of international law cannot be seen in geographic isolation, but emerged within a broader transcultural space of discourse and related movement of people and ideas between Asia and Europe. The group consists of the individual projects of Dr. Kerstin von Lingen, four doctoral, and one post-doctoral research projects.

On the first day two members of the Heidelberg group presented their papers on the work of the United Nations War Crimes Commission (UNWCC) during a panel on the Inter-War Period. Dr. Kerstin von Lingen spoke on the impact of the War Crimes Commission on the development of international law by drawing on the concept of crimes against humanity as an example. Her research sees the UNWCC as an important forum for transcultural legal debates and will trace the ways in which the work of the commission influenced notions of justice in East Asia. By focusing on individual actors in the commission as well as war crimes trials in Asia and Europe it raises the interesting question whether there was a flow-back of legal ideas from Asia to the West.

Ms. Anja Bihler presented her research on the Chinese participation in the War Crimes Commission in London and Chongqing, which is part of her PhD project on war crime trials that were conducted under the Chinese Nationalist government in the Republic of China. Two of the main questions the project tries to answer are what policy the Nationalist government adopted towards Japanese war criminals and how the actual war crimes trials managed to implement this policy.

Day two saw another panel with three speakers from Heidelberg: Ann-Sophie Schoepfel, Lisette Schouten, and Milinda Banerjee. The Panel was opened with a talk of Neil Boister (U Waikato, NZ) on the International Trial at Tokyo seen as a “Show Trial”, and Yuma Totani (U Hawaii) on its conduct and impact. Ms. Schoepfel then presented a case study on the prosecution of Japanese war criminals in Indochina at the French Military Tribunal in Saigon, a synthesis of her PhD project on the French engagement at the Tokyo trial and in Indochina. These trials in Indochina took place during the decolonization period, which is a highly contested moment of political and cultural transition in East Asia. Ms. Schouten spoke on the Dutch judge and legal scholar B.V.A. Röling and the International Law Commission’s work on the establishment of a permanent international criminal court. This talk was part of her broader PhD project which uses the Dutch War Crimes Trials in Indonesia – which were conducted from the vantage point of a colonial power, involved colonial staff and focused on maintaining the old world order – as a case-study and enquires whether an east-west counter-current on European legal practice, emanating from the experience in Asia, existed and if the Asian experience and decolonization reshaped the nature of discourse on legality, retribution, war crimes, responsibility and memory in the Netherlands itself.

Assistant Professor Milinda Banerjee (Presidency University, Kolkata) presented on the emergence of new legal concepts in international criminal law through encounters between Asia and the ‘West’. His Heidelberg project entitled ‘Decolonizing International Law: Radhabinod Pal, Dharmic Justice, and the War Crimes Trial in East Asia’ will bring attention to the important contributions of non-western intellectuals, judges and politicians to the development of international law. In order to explore this extra-European contribution he will focus on the Indian jurist Radhabinod Pal, famous for his dissenting judgment at the International Military Tribunal for the Far East.

The next team member to speak was Ms. Valentyna Polunina who presented a paper on the Soviet war crimes trials policy in the Far East and the trial at Khabarovsk in 1949, the only trial to address Japan’s wartime biological weapons program. The onset of the early Cold War and Soviet desire to improve relations with the newly founded People’s Republic of China influenced the way in which this war crimes trial was conducted. Her research promises new insights to the contributions which legal scholars from the Soviet Union made to the development of international law.

On one of the concluding panels termed “Beyond Nuremberg and Tokyo”, Barak Kushner (U Cambridge) spoke on Chinese War Crimes trials of Japanese, 1945-1956, whilst Wui Ling CHEAH (NU Singapore) focused on the “British trials in Singapore”, and Narelle Morris (U Curtis, Australia) gave an account about the Australian war Crimes Trails Program, followed by the second keynote on Danish and Norwegian trials, delivered by Ditlev Tamm (U Copenhagen). This section saw also an analysis of the Finish War Crimes Trials program  by Immi Tallgren (U Helsinki), and of the British War Crimes Trials Programm within Germany, given by Christian Pöpken (U Marburg). A last keynote with the inspiring title “Stepping outside Nuremberg’s Halo: the Supreme National Tribunal of Poland and the history of International Law”, held by Mark Drumbl (U Washington), opened the conference for the final round-table debate and some inspiring transnational perspectives on the institutional, political and normative natures of international criminal law.

Whilst the Hong Kong conference covered historical developments up to the post World War II period, a follow-up conference in New Delhi in November this year will mainly focus on more recent developments in International Criminal Law.  The conferences will result in two comprehensive volumes, the first of which will be published in December 2014, with an official book launch at a formal side-event during the upcoming session of the ICC Assembly of States Parties.

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