International law has some characteristics that are similar to domestic law, but also some differences. First, international law does not form a single unified legal system. Rather, it's more of a fragmented web of rules that overlap with gaps in-between. That web of rules is designed to govern the behavior of states and its states that are the primary subjects of international law. The application of international law to individual responsibility, as in, for instance, criminal law is a relatively recent developed. International law and domestic law are mutually reinforcing. This means that international law will evolve as the consensus of domestic legal systems evolves. At the same time, domestic law will come to absorb aspects of international law. As a result, growing harmonization across borders can be spread by international law. International law has existed for hundreds of years, but it's really only developed in a significant way since the beginning of the 20th century. It really has outgrown exponentially since World War II, in particular. In addition, not all rules are written. This makes it somewhat similar to English common law. If states behave the same way for a period of time, state practice becomes binding. A state cannot derogate from its obligations in the future if it's always behaved a certain way. For example, prohibition of piracy on the high seas. There isn't a general unified treaty prohibiting piracy rather, piracy has been a legal and international law for hundreds of years. Despite the fact that there is no general treaty prohibiting piracy, states can be bound by prohibitions even if they haven't ratified a treaty. Genocide is a good example. No state is allowed to carry out genocide even if they haven't ratified the Genocide Convention. Now there aren't that many rules in that category. But genocide, piracy, torture, slavery, these are things that are binding on states even if they haven't ratified a treaty in a positive sense. There are some myths of international law. First international law is not real law. That isn't really true. It is true that enforcement can be weak, especially in the realm of human rights, although it's not always weak. Certainly, something like the laws of armed conflict can be quite strong if they trigger Security Council response. International trade law can be enforced by sanctions or suspension from the World Trade Organization or other trade agreements. But just because enforcement is weak in some areas, especially human rights, doesn't mean that international law is not law at all, rather countries absorb international law at varying rates and to varying degrees but frequently they have an interest in doing so. It's also not necessarily true that no one obeys international law. In reality, states have an interest in knowing how other states will behave and international law provides some parameters for state behavior. It isn't completely true that no one obeys international law. There are some states that perhaps have an advantage in defecting from international law. They have a comparative advantage, maybe standing up to international law and not complying with it, maybe North Korea or Iran. But by and large, most states comply most of the time because they have a mutual advantage in having other states also comply with international law and that includes the United States. Finally, powerful states say what international law is. Well, that myth is probably both true and false. That it is true that powerful states sometimes get away with violating international law, or at least with not complying with international law. The United States is perhaps a good example. United States can do some things that a small state can't, even if it's technically "Illegal" under international law. But it's also true that some norms of international law have crystallized, even without the support of the great powers. The prohibition on landmines, for instance. But international Ottowa convention prohibiting landmines was passed without any support by the great powers and yet it's been a relatively successful treaty at limiting the use of landmines in armed conflict. By contrast, something like nuclear weapons, does international law prohibit nuclear weapons? Well, the small states can say whatever they want about it, but the small states don't have nuclear weapons, only the big states do. To some degree it's true the powerful states say what international law is, but that isn't the end of the story. International law generally grew out of Continental European civil law, Roman-based civil law. Not only that, but it grew out of a particular school of Roman civil law, the natural law school based in the Netherlands. The Netherlands first defined freedom of the high seas as a rule of international law in the 1500 and 1600s and the British which had the strongest Navy at the time, found those rules are very convenient rather than have the Pope divide the world between Spain and Portugal, British wanted freedom of the high seas. They took the Dutch rule, freedom of the high seas, and impose it on everyone else through the strength of their navy. International law has grown manifold since the 1500s, but it still traces its origins to the Netherlands and so that Dutch school. The great Dutch civil law scholars like Hugo Grotius, [inaudible], and other scholars of their time helped develop the foundations of international law. Hugo Grotius, whose picture is seen here is frequently said to be the father of international law. Hugo Grotius positive that states must follow the rules of global society, just as individuals do in the domestic realm. The law of armed conflict, for instance, is very old. The countries have been complying, generally speaking, with the laws of war for hundreds of years. Now, it may be true that the nature of warfare has changed. It used to be the two armies would line up on the battlefield wearing uniforms and shooting one another. Obviously, that looks very different than warfare in the modern world. But the laws of armed conflict have proven surprisingly durable. Generally speaking, the law of armed conflict's divided into two branches. What we call Hague Law, defines when a country can go to war, and what we call Geneva Law, defines what a country can do once it is in war. The law of the Hague, including the Hague Convention of 1899 and 1907 and later conventions, prohibit the use of certain weapons and tactics in war. The Law of Geneva, most importantly, the four Geneva Conventions, protect the wounded POWs, shipwrecked sailors, and civilians in armed conflict. But the law of armed conflict traces back even further than that. The founding of the Red Cross in 1863, the code of Francis Lieber in the US Civil War by President Abraham Lincoln. Those are early instances of codifying the laws of war that had been observed for hundreds of years. The next major development of international criminal law after the end of the Cold War was the creation of the International Criminal Tribunal for Yugoslavia, sometimes called the ICTY or the Yugoslavia Tribunal. The Tribunal for Yugoslavia came into existence in 1993, created by the UN Security Council. This was for acts committed in the former Yugoslavia by the Croatian and Serbian malicious, primarily targeting Bosnian Muslims or Bosniaks. The worst crime in this conflict was the attack at Srebrenica in 1995. It was a Srebrenica that about seven or eight thousand Muslim men and boys were separated from women and girls and summarily executed. The tribunal would come to find that this attack constituted the crime of genocide. Whereas most of the other ethnic cleansing situations that occurred during this war constituted war crimes or crimes against humanity, and not necessarily genocide. We'll discuss in the next class what the legal definitions are of war crimes, genocide, and crimes against humanity. The Yugoslavia Tribunal was an improvement on the Nuremberg trials in several ways. First, because it was created by the UN Security Council, it was more representative of the global community. It didn't just represent the victorious powers, like at the Nuremberg trial. It made a strong effort not to be seen as victor's justice. A very elaborate code of criminal procedure was created for it. Defendants had the right to appeal. They didn't have that at Nuremberg. The Criminal Tribunal for Yugoslavia used a primarily adversarial system. We'll see that the International Criminal Court is pretty similar. But unlike a common law trial, it used panels of judges instead of juries. The trial of Slobodan Milosevic, the former president of Yugoslavia, was the most important event at the Criminal Tribunal beginning with his arrest in 2002. However, Milosevic died before his trial was concluded in 2006. The tribunal never got a conviction of this former head of state. The prosecution of Radovan Karadzic, including a conviction for genocide for the events in Srebrenica, was a major success for the tribunal. Karadzic was the head of the Serbian militia in Croatia. The trial of Ratko Mladic is still ongoing. In total, there were a 161 arrests at the tribunal, 74 convictions, 18 acquittals. The rest were transferred. In the case of Mladic, it's still in progress. However, there were some shortcomings of the tribunal that made it really difficult to replicate in other situations. First, it's sat far away from where the crimes took place. The tribunal sat in the Hague, in the Netherlands, and so defendants and witnesses and evidence all had to be transferred across the European continent. It was also extremely expensive. But the Rwanda and Yugoslavia Tribunals together had a staff of 1,000 and an annual budget of over a quarter million dollars. The International Criminal Tribunal for Rwanda was created two years later in 1995, and modeled on the Yugoslavia Tribunal. It was based in Arusha, Tanzania. But it shared an appeals chamber with the ICTY so that appeals went to the Hague. The tribunal was opposed by the Government of Rwanda. Rwanda viewed the tribunal as a losers justice that the UN and the other great powers had sat idly by as the Hutu majority inflicted a premeditated pattern of extermination on the Tutsi minority. In fact, the genocide only ended because the Tutsi rebels overthrew the genocidal Hutu regime. The ICTR was hampered by difficult to investigations because Rwanda was uncooperative. Lacks regard for due process in some cases, errors of strategy by the prosecutor, resource constraints that the Yugoslavia Tribunal also had to a lesser degree. At the Yugoslavia Tribunal, the prosecutor started with the middle ranks prosecuting people at the middle levels in order to build evidence against the bigger fish. Whereas Rwanda, the prosecutor sometimes try to target the bigger fish without sufficient evidence and so the trial limped along very slowly over the next 20 years. Ninety-five individuals were indicted, 59 perpetrators were convicted. This included the head of the hate radio station with broadcasts the list of names of Tutsis to be killed. Like the Nuremberg trial, it created historical record delegitimizing genocidal denialism. To this day, denying the Rwandan genocide is a crime in Rwanda, but also largely disproven because the massive evidence is so overwhelming. The tribunal had some jurisprudential successes. In particular, defining rape as a weapon of war, as a tool of genocide in fact. That using rape in order to impregnate the victims to exterminate their blood lines so that women give birth to children who are of the ethnicity of the perpetrators. The Rwandan Tribunal laid out for the first time that rape could be a form of genocide if it's carried out with that intent to wipe out an ethnicity by impregnating women so that they give birth to children who are of the ethnicity of the perpetrator. That could be a form of genocide. That jurisprudence came out of their Rwandan Tribunal. Viewing rape in general as a weapon of war, the Rwandan Tribunal really focused on women and gender-based violence. That was probably one of its greatest jurisprudential successes. The Rwanda and Yugoslavia tribunals were very expensive, and sat hundreds of miles away from where the crimes took place. New model followed that of the hybrid tribunal. The hybrid tribunal was placed in the country where the atrocities took place. Creating a hybrid domestic and international court, it would try both domestic and international law. This would make it more cost-effective, but also more responsive to the victims' communities who wouldn't be so far away. There have been several examples of hybrid tribunals since the late 1990s. The creation of the Special Court for Sierra Leone in Freetown was one, although Charles Taylor, the former president of Liberia, was tried in the Hague. This State Court of Bosnia Herzegovina was another hybrid tribunal. The Extraordinary Chambers of the Courts of Cambodia is still in operation. Trying the crimes of the Khmer Rouge in the 1970s. The Special Tribunal for Lebanon does sit in the Hague prosecuting Lebanese law, in particular for the 2005 assassination of former Prime Minister Rafic Hariri. Currently, there's a new tribunal coming into existence for the Central African Republic. Hissene Habre, the former dictator of Chad was put on trial in Senegal and convicted. Following the hybrid tribunals, although they're still very much a project in progress, internationalized courts were another model that were created. These were even more cost-effective. These were domestic courts that had jurisdiction to try international crimes. They were often for lower-level perpetrators, such as the Regulation 64 Panels in Kosovo, or the Special Panels for Serious Crimes in East Timor. In East Timor, the prosecutor had the problem of not being able to get jurisdiction over the perpetrators who were Indonesian, because Indonesia wouldn't turn the perpetrators over. Another court that's just been created are the Specialists Chambers for Kosovo, which sit in the Hague. These will try perpetrators of the Kosovo Liberation Army for war crimes. This is the first time there's ever been an international tribunal created for the victims of an armed conflict. The Kosovo Liberation Army was on the winning side in the war in Kosovo. The fact that it's submitting to a tribunal to try its own perpetrators, it's really quite remarkable in the history of international criminal law.

1. Some international criminal tribunals, like the International Criminal Court and Lebanon and Kosovo tribunals, allow victim participation in the proceedings. What purpose does this serve? What form does this participation take?

 

2.How did the International Criminal Tribunal for Rwanda (ICTR), created in 1994, improve on the experience of the Nuremberg trials? What were the ICTR's shortcomings?