1. International criminal tribunals: Experiments? Works in progress? Institutions that are here for good? Maybe not? Sir Geoffrey Nice QC Gresham Professor of Law This lecture will soon be available on the Gresham College website, where it will join our online archive of nearly 1,500 lectures. www.gresham.ac.uk

2. #List of ConflictYears# of deaths Judicial mechanis m? Alternative reconciliatory mechanism? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 1The Boxer Revolt1900 - 1900 13,00 0 No  Peace Agreement between the Eight-Nation Alliance and China (“Boxer Protocol”): ordered the execution of 10 high-ranking officials linked to the outbreak and other officials who were found guilty for the slaughter of foreigners in China. Fined China war reparations of 450,000,000 taels of fine silver to be paid in 39 years. 2Philippine insurrection/ Philippine– American War 1899 - 1902 70,00 0 No  Lodge Committee: The committee carried out an investigation into allegations of war crimes in the Philippine-American War. The hearing took place behind closed doors from 31 January 1902 to 28 June 1902, with a report issued at the end. The committee’s report resulted in the court martial of many American servicemen. 3Boer war1899 - 1902 50,50 0 No 4The War of a Thousand Days 1899 - 1903 100,0 00 No 5Ilinden Uprising1903 - 1903 4,000No 6Russian Revolution 1905 1905 - 1906 1,000No

3. #List of ConflictYearsNumber of deaths Judicial mechanism?Alternative reconciliatory mechanism? (truth commission) Other? (investigation, peace agreement, reparations etc) 7Uruguay Civil War1904 - 19041,000No 8Somali rebellion1899 - 19056,000No 9Russo-Japanese war1904 - 1905130,000No  Second Geneva Convention (for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Froces at Sea) 1906 – created to protect shipwrecked soldiers in the conflict after there was no agreed consensus on whether to rescue shipwrecked soldiers. 10Southwest African Revolt 1904 - 190578,000  Lawsuit by Hereros in US against Germany (2001) No  UN Whitaker Report (1985): classified the killings as an attempt to exterminate and one of the first instances of genocide in the 20 th century. 12Maji Maji revolt1905 - 1906140,000No 13Zulu Rebellion1906 - 19062,500No 143 rd Central American war 1906 - 19061,000No 154 th Central American war 1907 - 19071,000No 16Romania Peasants revolt 1907 - 19072,000No 17Morocco unrest1907 - 19081,000No 18Iran/Persian constitutional revolution 1908 - 19091,100No  Iranian constitution and parliament created

4. #List of ConflictYearsNumber of deaths Judicial mechanism?Alternative mechanism ? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 19The second Rif War1909 - 191012,000No 20Chinese/Xinhai Revolution 1911 - 19112,000No 21Paraguay Coups1911 - 19122,000No 22Italo-Turkish War1911 - 191220,000No 23Tibetan war/Wuchang uprising 1911 - 19122,000No 241st Balkan War1912 - 191382,000No 252nd Balkan War1913 - 191361,000No 26Kuomintang v. Chinese Army 1913 - 191310,000No 27Bandits v. China’s Government 1914 - 19145,000No 28Canton v. Beijing1917 - 19181,000No 29Spanish Army v. Rebels Morocco/ Battle of El Biutz 1916 - 19172,000No 30Armenian Genocide1915 - 19181,000, 000  Turkish Court martial trials: tried members of the Committee of Union and Progress  Trial of Soghomon Tehlirian for assassination of Grand Vizier Talaat Pasha No  Commission on Responsibility and Sanctions: est at the Peace Conference in Paris and chaired by US Sec State; Ottoman Empire officials tried for “offenses against the laws and customs of war and the principles of humanity” under Treaty of Sevres. 31World War I1914 - 191814,000,000  Leipzig War Crimes Trial: General military commanders tried by German Supreme Court for war crimes No  League of Nations

5. #List of ConflictYearsNumbe r of deaths Judicial mechanism?Alternative reconciliatory mechanism? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 32Amritsar massacre/Jallianwala Bagh massacre 1918 - 1919700No  Disorders Inquiry Commission/Humnter Commission: to investigate the recent disturbances, about their causes and the measures taken to cope with them; no penal disciplinary action ordered. 33Finnish Civil War1918 - 191820,000No 34Hungarian– Romanian War of 1919 1919 - 191911,000No  War reparations: controversy over reparations; taken by Romanians but considered looting by Hungarians 35Third Anglo-Afghan War 1919 - 19193,000No 36Polish–Soviet War1919 - 19201,000No  Anglo-American Investigating Commission: investigated acts of violence against Jews 37Mexican Revolution1910 - 1920250,00 0 No 38Hungary Civil War1919 - 19204,000No 39Franco-Syrian war1920 - 19205,000No 40Easter rising1916 - 1921600  Court martial trials: Of those who took part in the rebellion No  Royal Commission: to investigate the causes of the uprising 41Armenian Massacre Aftermath 1919 - 1923432,50 0 No  King-Crane Commission: recommended enlargement of Armenia  Harbord Report 42Turkish War of Independence 1919 - 192140,000No 43Iraq v. UK1920 - 19211,000No 44Russian Revolution1917 - 19222,000, 000 No

6. #List of ConflictYears# of deaths Judicial mechanism?Alternative reconciliatory mechanism? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 45India v. UK rebellion/ Malabar Rebellion 1921 - 192211,000No 46Greco Turkish War1919 - 192270,000  Trial of Commander of Greek army: initiated but later revoked. No  Inter-Allied Commission: found Greek forces committed systematic atrocities against Turkish civilians and the Muslim population; including ethnic cleansing 47Ireland freestaters v. Irregulars/ Irish Civil War 1921 - 19224,000No 48Honduras Coup1924 - 19241,000No 49Afghan Rebels v. Government 1924 - 19252,000No 50Third Rif War1920 - 192640,000No 51Druze revolt/Great Syrian Revolt 1925 - 19278,000No 52Northern Expedition1926 - 192810,500No 53Kuomintang v. Islamic rebels/Muslim conflict in Gansu 1928 - 1928200,00 0 No 54Afghanistan Civil War 1928 - 19297,500No 55Sino-Soviet war1929 - 19293,200No 56The Cristero War1926 - 193010,000No 57Kuomintang v. warlords/Beijing 1929 - 193075,000No 58French Equatorial Africa 1927 - 193155,000No 59Uprisings in French Indochina/ Viet Nam Quoc Dan Dang 1930 - 19311,000  300-400 trials: resulting from the assassination of Hervé Bazin; 78 convicted to 5-20 yrs jail No

7. #List of ConflictYearsNumber of deaths Judicial mechanism?Alternative reconciliatory mechanism? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 60Libya v. Italy1920 - 1932 96,000No 61Salvadoran peasant massacre 1932 - 1932 20,000No 62Brazilian Revolt /Constitutionalist Revolt 1932 - 1932 1,000No 63Manchurian War/Invasion 1931 - 1933 60,000No 64Kumul Rebellion1931 - 1934 20,000No 65Spanish socialists v. Government 1934 - 1934 2,000No 66Austrian Putsch1934 - 1934 1,000  Military tribunals: prosecuted rebels No 67Communists v. Koumintang 1930 - 1935 350,00 0 No 68Chaco War1931 - 1935 130,00 0 No 69Italo-Ethiopian War 1935 - 1936 175,00 0 No 70Changkufeng Incident/Battle of Lake Kasan 1938 - 1938 1,700No

8. #List of ConflictYearsNumber of deaths Judicial mechanism?Alternative reconciliatory mechanism? (truth commission etc) Other? (investigation, peace agreement, reparations etc) 71India v. UK rebellion 1936 - 1938 11,000No 72Spanish Civil War 1936 - 1939 780,00 0 No  2008 Baltasar Garzon investigation: violating 1977 amnesty law 73The battle of Khalkhin Gol 1939 - 1939 28,000No 74The Winter War in Finland 1939 - 1940 90,000No  Finish-Soviet Commission 75Sino-Japanese War 1937 - 1941 1,000,0 00  Khabarovsk War Crime Trials: examined the use of biological weapons from 1941 through WWII No 76Franco-Thai War1940 - 1941 3,400No 77World War II1939 - 1945 49,800, 000  Nuremberg Trials  American Military Tribunal in Manila  Khabarovsk War Crime Trials  Holoca ust Repara tions  United Nations War Crimes Commission

9. Robin Cook, Foreign Secretary The ICC is ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’

10. VERSAILLES TREATY ARTICLE 227. The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused……… In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex- Emperor in order that he may be put on trial. ARTICLE 228. The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. ARTICLE 229. Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.

11. Kaiser Wilhelm in a letter to Austrian Kaiser Franz Joseph : My soul is torn, but everything must be put to fire and sword; men, women and children and old men must be slaughtered and not a tree or house be left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance I have therefore been obliged to choose the former system."

12. WWI War Crimes Trials, at Leipzig Sergeant Karl Heyne, charged with mistreating British prisoners of war. he was sentenced to brief prison term of several months. Captain Emil Muller, charged with mistreating prisoners of war. He was sentenced to six months in prison. Private Robert Neumann, charged with mistreating prisoners of war. He was sentenced to six months in prison. Lieutenant-Captain Karl Neumann, charged with submarine warfare. He was found not guilty. First-Lieutenants Ludwig Dithmar and John Boldt, charged with war crimes on the high seas. They were two officers of the submarine SM U86 that had sunk the hospital ship Llandovery Castle and then attacked survivors in lifeboats. They were sentenced each to four years in prison. Max Ramdohr, charged with crimes against the civilian population of Belgium. He was found not guilty. Lieutenant-General Karl Stenger and Major Benno Crusius, charged with mistreating French prisoners of war. Stenger was found not guilty, while Crusius was sentenced to two years in prison. First-Lieutenant Adolph Laule, charged with crimes against the French population. He was found not guilty. Lieutenant-General Hans von Schack and Major-General Benno Kruska, charged with mistreating prisoners of war. Both were found not guilty

13. Executions in the British Army: 1914-1918 Offence 1914 1915191619171918 Desertion 346719035 Cowardice 14102- Quitting Post -2221 Disobedience -131- Murder -24310 Striking a superior officer --31- Casting away arms --11- Mutiny --12- Sleeping on post ---2- Totals4559510446

14. in Ryuichi Shimoda et al. v. The State The District Court of Tokyo declined to rule on the legality of nuclear weapons in general, but found that: "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."

15. International Peoples' Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki, 16 July 2007: "The Tribunal finds that the nature of damage caused by the atomic bombs can be described as indiscriminate extermination of all life forms or inflicting unnecessary pain to the survivors". "The... use of nuclear weapons in Hiroshima and Nagasaki was illegal in the light of the principles and rules of International Humanitarian Law applicable in armed conflicts, since the bombing of both cities, made civilians the object of attack, using nuclear weapons that were incapable of distinguishing between civilians and military targets and consequently, caused unnecessary suffering to the civilian survivors".

16. Deuteronomy 20 King James Version (KJV) 10 When thou comest nigh unto a city to fight against it, then proclaim peace unto it. 11 And it shall be, if it make thee answer of peace, and open unto thee, then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee. 12 And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it: 13 And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword: 14 But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.

17. The Lieber Code of 1863 …. Washington, April 24, 1863. 4. ……….As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity 13. Military jurisdiction..defined by statute;..and.derived from the common law of war. …… 16. Military necessity does not admit of cruelty-…..nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district…… 19. Commanders, inform the enemy of their intention to bombard a place, so that the non- combatants, and especially the women and children, may be removed 29 Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace…… 56. A prisoner of war ….. nor is any revenge wreaked…… the intentional infliction of any suffering, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. 76. Prisoners of war shall be fed upon plain and wholesome food,.. treated with humanity. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 154. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

18. Nuremberg Charter Article VI (c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

20. Lemkin’s initial use of the term, ‘Genocide’ in ‘Axis Rule in Occupied Europe’1944 outright extermination against Jews and Gypsies; also "coordinated plan of different actions" intended to promote such goals as an increase in the birthrate of the "Aryan" population, the physical destruction of the Slavic population over a period of years, and policies to bring about the destruction of the "culture, language, national feelings, religion" and separate economic existence (but not physical existence) of non- German "Aryan" nations thought to be "linked by blood" to Germany.

21. Genocide Convention 1948 Article 2 In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group

22. New art. 28F: Piracy New art. 28G: Terrorism “Terrorism” New art. 28H: Mercenarism Mercenary = –Specially recruited to fight in an armed conflict………Motivated essentially by the desire for private gain; –Neither a national, a resident, or a member of the armed forces of a party to the conflict; Any person, who recruits, uses, finances or trains mercenaries, commits an offence. New art. 28I: Corruption New art. 28Ibis: Money Laundering New art. 28J: Trafficking in persons “Trafficking in persons” = recruitment, transportation, transfer, harboring or receipt of persons for the purpose of exploitation. Exploitation includes: exploitation of the prostitution of others, sexual exploitation, forced labor or services, slavery, servitude or the removal of organs. New art. 28K: Trafficking in drugs New art. 28L: Trafficking in Hazardous Wastes New art. 28Lbis: Illicit Exploitation of Natural Resources New art. 28M: Crime of Aggression “Aggression” ………regardless of a declaration of war:

23. 35 th SDC Session – 13 April 1995

25. Minutes of 36 th SDC Session – 12 May 1995

29. Supreme Defence Council Session of 14 August 1995 In the session of 14 August 1995, the first reference to the fall of Srebrenica and Žepa was made. Milošević referred to his communication with Mladić saying: “Momo remembers well my conversation with Mladić on the occasion of attack on Žepa and Srebrenica. On that occasion I said: “Ratko, you are now measuring the military price of that success. The military price is six persons killed, 20 wounded, one vehicle destroyed, etc. It is inexpensive. However, the political price could be million times higher because there might be a concern for the interests of 12 million people!

30. NIOD – Dutch Institute for War Documenation Report ‘The existence of these intercepts was confirmed by a western diplomat. During a meeting at the White House between Gore and Bildt, the Swedish negotiator tried to convince the US vice-president that he should not form an excessively black-and-white image of President Milosevic. Gore responded to these statements by reading from US intercepts, which showed that Milosevic had consulted with Mladic about the attack on Srebrenica. Gore then reportedly said to Bildt: ‘Forget about this. Milosevic is absolutely not the friend of the West.’

31. “ It is war’s prize to take all vantages and ten to one is no impeach of valour” (Shakespeare’s Henry VI Part III Act I Scene 4).

32. The favourable view Sir Hartley Shawcross KC on the Nuremberg Trial: This Tribunal will provide a contemporaneous touchstone and authoritative and impartial record to which future historians may turn for truth and future politicians for warning

33. A More Cautious View Hannah Arendt on the Eichmann trial: The purpose of the trial is to render justice and nothing else; even the noblest of ulterior purposes can only distract from the law’s main business: to weigh the charges brought against the accused, to render judgement and to mete out punishment

34. DRAFT..AMENDMENTS..THE STATUTE OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS New art. 28A: International Criminal Jurisdiction of the Court … (d) the crime of unconstitutional change of Government, (e) piracy, (f) terrorism, (g) Mercenarism, (h) corruption, (i) money laundering, (j) trafficking in persons, (k) trafficking in drugs, (l) trafficking in hazardous wastes, (m) illicit exploitation of natural resources, and (n) the crime of aggression. New art. 28B: Genocide (f): Acts of rape that are intended to change the identity of a particular group. New art. 28D: War Crimes (vii): Conscripting or enlisting children under the age of 18 years into armed forces or groups or using them to participate actively in hostilities. New art. 28E: The Crime of Unconstitutional Change of Government NB: This article was referred to the Assembly through the Executive Council for consideration. “Unconstitutional Change of Government”: means committing or ordering to be committed the following acts, with the aim of illegally accessing or maintaining power: –Putsch/coup d’état against a democratically elected government (DEG);