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.

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Dutch Imperial Past Returns to Haunt the Netherlands

Paul Doolan
University of Zurich and Zurich International School

Cross-posted from http://imperialglobalexeter.com/

07/04/14

In July 2012 a Dutch national newspaper, de Volkskrant, published two photos on its front page showing Dutch soldiers brutally shooting and killing unarmed victims in a mass grave. The images were shocking to a nation that prides itself as being upright and humanitarian. Never mind that the photos were nearly 70 years old. Found in a rubbish tip, they were, in fact, the first ever photos to be published of Dutch soldiers killing Indonesians during a war of decolonization that is still euphemistically referred to as a “Police Action.”

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Photos in De Volkskrant, 10 July 2012.

Why did it take so long for such images to reach the public?

Just a month earlier Dutch TV news, as well as national newspapers, had reported that three leading Dutch historical research institutes were calling upon the Dutch government to allocate funds in order to initiate a major research project to uncover what had happened in the Dutch East Indies during the period of decolonization, 1945-1949. The government decided, perhaps not all that surprisingly, to do no such thing. In an interview in December 2013, the Minister for Foreign Affairs, Frans Timmermans, had to defend his change of heart, because as a member of Parliament he had supported the call for a full-scale investigation into Dutch atrocities. However, once appointed minister, he quickly changed his mind. He now claimed that such research would “bring harm to our relationship with Indonesia. And that is not in the Dutch interest.”[1] In other words, business comes before coming to terms with Dutch decolonization.

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Writing Human Rights into the History of State Socialism

Ned Richardson-Little

Associate Research Fellow, University of Exeter

Cross-posted from http://imperialglobalexeter.com/

24/03/14

The collapse of the Communist Bloc in 1989-1991 is viewed as one of the great triumphs of the human rights movement. But this ignores how socialist elites of the Eastern Bloc viewed themselves: not as the villains in the story of human rights, but as the champions.

In recent years, the rapidly expanding field of human rights history has done much to complicate triumphalist narratives of inevitable victory for Western liberal democracy over the forces of tyranny. Recent collections including those edited by Stefan-Ludwig Hoffmann, Jan Eckel and Samuel Moyn, have opened up new lines of inquiry exposing not only the contingency of these ideas, but also the conflicts amongst those claiming the mantle of universal human rights. On this blog in recent weeks, Fabian Klose has examined the important role of decolonization and post-colonial states in shaping the development of human rights politics, and Robert Brier has interrogated the idea of human rights as a product of neo-liberalism in the context of the Polish opposition. Here, I want to look beyond the human rights campaigns of dissident Eastern Europeans to that of the states they fought against.

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One of a number of East German postage stamps commemorating International Human Rights Year 1968. The hammer and anvil represent the right to work.

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Human Rights Day 1973: The “Liberation” of the Universal Declaration

While the 1970s have been, properly, identified by recent scholarship as a moment of efflorescence for universal human rights, the picture, at least in the earlier part of the decade, was less than radiant.  The Universal Declaration’s twenty-fifth anniversary was, for the most part, submerged – much more thoroughly so than it had been at ten, or even at twenty.  The occasion was instead the platform to launch the International Decade to Combat Racism and Racial Discrimination.   At the Plenary meeting which ratified the decision in October 1972, a few minutes were devoted to the agenda item on a “Programme for the observance of the twenty-fifth anniversary of the Universal Declaration of Human Rights” – which was concluded rapidly, to allow for hours of rhetoric on national liberation, racial discrimination, and the importance of armed struggle in southern Africa and, on Cuba’s insistence, Puerto Rico. It was the most striking symbolic representation of the relationship between universal human rights, anti-racism, and violent insurrection.  The struggle against racial discrimination, a sub-set of a much broader human rights concept, had almost consumed the parent category.  1948 was cited insofar as it underwrote the crusade, rarely much further. Continue reading

Human Rights, “Neoliberalism”, and 1989

“1989” has become shorthand both for the triumph of human rights over state-socialist dictatorship and the subsequent implementation of a “neoliberal” reform agenda. Yet the coalescence of these two phenomena in Eastern Europe twenty-five years ago is quite surprising once we focus on the prehistory of 1989. Following the crooked paths that led to the annus mirabilis is thus a great opportunity to assess the transformation of human rights discourses during the 1980s.

Twenty five years ago, on 6 February 1989, representatives of Poland’s government and of the illegal democratic opposition began negotiations on political and economic reforms. Inaugurating their meetings at a round table that had been crafted specifically for this occasion, they set events in motion that became a major catalyst for the collapse of the “Soviet bloc.” As we look ahead to a series of events celebrating “1989,” Samuel Moyn’s post from December—urging us to think about connections between the rise of human rights and of “neoliberalism”[1]—may thus prove timely because few events exemplify the coalescence of these two discourses more clearly than the end of the Cold War.

On one hand, “1989” meant an enormous boost for human rights: The collapse of the state-socialist regimes in Central Europe seemed to vindicate the so-called “dissidents”—embattled intellectuals who had spent the 1970s and 1980s in and out of prison, working unskilled jobs and drafting human rights petitions or learned essays on totalitarianism at night. The dissidents, to be sure, did not cause the collapse of Communism, but they did become the figureheads of the protest movements that toppled the regimes in Central Europe. The subsequent expansion of international human rights treaties, the democratization of many post-communist countries and their later EU accession all have dramatically increased the respect and protection of individual liberties in Europe and worldwide. Continue reading

Human Rights in the Romanian Orthodox Church After 2008

The human rights issue is meanwhile a familiar theme for the Western Christian Churches such as the Roman-Catholic and the Protestant Churches. After the problematic relation during the 18th and 19th century concerning the human rights affirmations of the American ‘Declaration of Independence’ (1776) and the French Revolution (1789 or 1791) the Roman Catholic Church succeeded to relax its attitude towards human rights and to assimilate the pattern in its own social ethics, of course underpinning it with theological and biblical argumentations in its attempt to de-secularize this discourse. The Protestant Churches demonstrate a broad and differential approach to the social, political and ethical function of human rights, despite their apparent congruity exhibited by the statements of the Lutheran or Reformed World Federations (1970) (as shown by Christopher Voigt-Goy in his previous post). Continue reading

Human Rights and Modern Christianity – Historical Perspectives

Christianity has its own rather difficult history in relation to modern human rights. While reluctance to the ideas of ‘human rights’ and ‘human dignity’ dominated the theology of the main church bodies well into the 20th century, the situation drastically changed after 1945. Since the 1970’s, then, the debate on ‘human rights’ and ‘human dignity’ is at the core of theological ethics. The conference  ‘Difficult Tolerance. The Dealings with Dissidents and Dissenters in the History of Christianity’ (‘Schwierige Toleranz. Der Umgang mit Andersdenkenden und Andersgläubigen in der Christentumsgeschichte’, held from 6th to 8th May 2010 in Fribourg/Switzerland) devoted a whole section to this significant shift. The attitudes to the notion of human rights and human dignity in Catholicism, Eastern Orthodoxy and Protestantism are presented in the section of the resulting edited volume:

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http://www.kohlhammer.de/wms/instances/KOB/appDE/Theologie/Kirchen-Theologie-und-Dogmengeschichte/Schwierige-Toleranz

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France in Africa – Imperialist Humanitarian?

Martin Thomas

Director, Centre for the Study of War, State and Society, University of Exeter

Cross-posted from http://imperialglobalexeter.com/

13/01/14

As the UN warns of an impending humanitarian disaster in the Central African Republic (CAR), what should we make of France’s recent back-to-back interventions in sub-Saharan Africa? Is there an echo in this of the clientalist politics pursued by France in Africa in the years after formal decolonization?

François Hollande, a Socialist president flagging in domestic opinion polls as France languishes in recession, has been credited with exceptional decisiveness in international affairs. The French President’s willingness to restore France’s role as a global policeman became apparent soon after he took office. He lent unflinching support to the overthrow of Colonel Gaddafi, for which France, like Britain, contributed combat aircraft (although maintaining their strike capability was substantially down to the Americans). He made no secret of his disappointment at the successive refusals of London and Washington to endorse missile strikes against President Assad’s Syrian regime in the aftermath of its proven chemical weapons attacks. And French nuclear negotiators among the team that concluded November’s transitional deal with Iran were, it transpires, especially hawkish over monitoring and inspection regimes. Continue reading

Essay on “Humanitarian Intervention and International Jurisdiction in the 19th Century”

Concerning my post on the research and discussion on the topic of the “Courts of Mixed Commission for the Abolition of the Slave Trade and International Human Rights Law” (see my post, 11/10/2013) I would like to point to my article Humanitäre Intervention und internationale Gerichtsbarkeit – Verflechtung militärischer und juristischer Implementierungsmaßnahmen zu Beginn des 19. Jahrhunderts (“Humanitarian Intervention and International Jurisdiction. The Entanglement of Military and Juridical Enforcement in the 19th Century”), which was recently published in the journal: Militärgeschichtliche Zeitschrift, 72 (2013) Heft 1, p. 1-21.

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In this essay I argue that the origins of the phenomena of international jurisdiction and humanitarian intervention can already be found in the beginning of the nineteenth century. The article combines both topics and shows that these two concepts are directly related to one another. Beginning with the international ban of the slave trade at the Congress of Vienna in 1815 the analysis focuses on the corresponding implementation machinery created under the significant leadership of Great Britain. This machinery consisted of a hitherto unique combination of military and juridical measures – the naval anti-slave trade patrols and the “Courts of Mixed Commission” – which were both directly dependent on each other. The main argument of the article is that the geneses of the concept of international jurisdiction and humanitarian intervention are significantly entangled with each other and both of their origins lie in the fight against the transatlantic slave trade in the beginning of the nineteenth century.

If you are interested in reading my essay you will find it @:

http://www.degruyter.com/view/j/mgzs.2013.72.issue-1/issue-files/mgzs.2013.72.issue-1.xml

“Boycotting Apartheid: the Global Politics of ‘Fair Trade’” by David Thackeray

David Thackeray

Senior Lecturer at the University of Exeter

Cross-posted from http://imperialglobalexeter.com/
17/12/13

As  a  child  there  were  few  experiences  I  looked  forward  to  more  than  a  trip  up  to  London  with  my  father  to  visit  Hamleys  toy  store  in  the  run-up  to  Christmas.  Rather  unusually  perhaps,  these  visits  to  the  capital  were  also  occasionally  marked  by  a  stop  at  South  Africa  House  to  see  the  Anti-Apartheid  picket  of  the  embassy,  organised  to  call  for  the  release  of  ANC  leader  Nelson  Mandela.  We  had  moved  to  the  UK  from  New  Zealand  a  few  years  beforehand,  and  Dad  would  always  use  such  occasions  to  regale  me  with  proud  memories  of  the  protests  which  greeted  South  Africa’s  notorious  rugby  tour  in  1981.  When  the  Springboks  came  to  our  home  city  of  Hamilton,  a  key  centre  of  Maori  culture,  crowd  protests  led  to  the  abandonment  of  a  test  against  the  All  Blacks.  Another  game  became  a  farce  when  flour  bombs  and  leaflets  were  scattered  over  the  pitch  from  a  light  aeroplane.

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Human Rights and “Neoliberalism”

Much ink has now been spilled on the historical origins of human rights. That debate will continue no doubt. I have surveyed the wreckage in a recent review essay (in English here, but for some similar thoughts auf Deutsch see here) but there is no doubt that problems large and small remain to resolve.

One of the biggest is how to formulate the historical relationship between humanitarianism and human rights. In my view, the best thing to say is that the former is old and the latter (conceptualized as the quest for an international regime pursued by transnational movements) is new, though humanitarianism certainly did create many   norms originally framed outside an individualist or rights-based paradigm that contemporary movements have now put in one.

A new debate, however, has arisen, and to me it is much more interesting than continuing to scavenge among the early constituents of our human rights era. It is a debate — especially if along the lines of my book The Last Utopia you adopt my chronology — that engages the historical relationship between human rights and market fundamentalism.

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Essay on “Crimes against Humanity” by Kerstin von Lingen

Kerstin von Lingen, Lecturer at the University of Heidelberg, has recently published a very readable online essay on the term of “Crimes against Humanity” and its historical development in the course of the twentieth century. You will find Kerstin’s essay in Zeithistorische Forschungen/Studies in Contemporary History published by the Zentrum für Zeithistorische Forschung Potsdam @:

http://www.zeithistorische-forschungen.de/site/40209177/default.aspx

Kerstin is the Coordinator of the Junior Research Group: Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1946-1954.

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Debate on the “Courts of Mixed Commission for the Abolition of the Slave Trade” and International Human Rights Law

Jenny S. Martinez, Professor of Law at Stanford Law School and former associate legal officer at the UN International Criminal Tribunal for the former Yugoslavia in The Hague, has published in 2012 her compelling law study The Slave Trade and the Origins of International Human Rights Law, Oxford University Press 2012.

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In her very readable book she argues that international human rights law derives its origins from the “Courts of Mixed Commission for the Abolition of the Slave Trade”, which were located around the Atlantic in West Africa, South Africa, South America as well as the Caribbean and were established to judge captured slave ships in the period from 1819 to 1871. Thus Martinez draws a direct line to the development of the International Criminal Justice system of the 20th and 21st centuries. Continue reading

Additional Article on “Human Rights and Decolonization”

Additionally to my last post I would like to point to the article “’We Had Been Fooled into Thinking that the UN Watches over the Entire World’: Human Rights, UN Trust Territories, and Africa’s Decolonization” by Meredith Terretta, who is Assistant Professor at the University of Ottawa. In her interesting article Meredith Terretta emphasizes the importance of international human rights in the context of decolonization. By focusing on the case of the British and French Cameroons she demonstrates  “that African nationalists and the Western anti-imperial human rights advocates who supported them viewed UN Trust Territories as the most politically and legally viable channel through which to address the human rights abuses particular to colonial rule.” In her article she challenges the notion prominently articulated by Jan Eckel (http://www.humanityjournal.org/humanity-volume-1-issue-1/human-rights-and-decolonization-new-perspectives-and-open-questions) and Sam Moyn (Chapter 3 “Why Anticolonialism Wasn’t a Human Rights Movement”, in The Last Utopia. Human Rights in History, Cambridge (M.A.) 2010, p. 84-119.), that human rights ideas only played an insignificant role in the anti-colonial struggle for independence.

You will find Meredith Terretta’s essay in:

Human Rights Quarterly, Vol. 34, No. 2, May 2012, p. 329-360

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or online at:

http://muse.jhu.edu/journals/human_rights_quarterly/v034/34.2.terretta.pdf

Discussion on “Human Rights and Decolonization”

Additionally to my last post concerning the publication of my book “Human Rights in the Shadow of Colonial Violence. The Wars of Independence in Kenya and Algeria” and the related research on “Human Rights and Decolonization” I would like to point to the important publication of Roland Burke, Decolonization and the Evolution of International Human Rights, Philadelphia 2010 (http://www.upenn.edu/pennpress/book/14717.html). In his book Roland Burke, Lecturer at La Trobe University Melbourne, analyzes the changing impact of decolonization on the UN human rights program. In showing the crucial importance of Third World influence on the international human rights agenda he offers an inspiring new perspective. You will find my review of the book at:

http://www.sehepunkte.de/2013/06/17799.html

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In October 2010 “humanity” (editor: Sam Moyn, Columbia University, New York), a peer-reviewed academic journal, started to publish research and reflections on human rights, humanitarianism, and development in the modern and contemporary world. I strongly recommend the journal and the related blog, which you can find at: http://www.humanityjournal.org/blog

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In the first issue of “humanity” Jan Eckel, historian at the University of Freiburg, wrote an essay review on Roland’s book and the German version of my book “Menschenrechte im Schatten kolonialer Gewalt” (https://www.oldenbourg-verlag.de/wissenschaftsverlag/menschenrechte-im-schatten-kolonialer-gewalt/9783486588842), in which he raised some interesting questions. On the journal’s blog Roland and I used the opportunity to respond to Jan’s essay review and we started a fruitful discussion on the topic of “human rights and decolonization”.

If you are interested in following the discussion you will find