essay

“History of International Criminal Law” was the topic on which I was honored to present Wednesday alongside two eminent historians. Our session formed part of “Human Rights, Criminal Justice and International Law,” the 20th Specialization Course in International Criminal Law for Young Penalists organized by the Siracusa International Institute for Criminal Justice and Human Rights, under the direction of Professor William A. Schabas.

This annual summer course typically takes place on the island of Ortigia, the ancient quarter of Siracusa, a Sicilian city founded 2,700 years ago. This year found it online because of the pandemic. That happenstance enabled well over a hundred persons from around the world to attend.

My panel participants and I focused on a founding moment of international criminal law; specifically, the post-Wold War II international criminal courts and tribunals established at Nuremberg, Germany, Tokyo, Japan, and other sites in Europe and Asia.

First, Francine Hirsch, the Vilas Distinguished Achievement Professor of History at the University of Wisconsin-Madison (above center) presented “Nuremberg at 75: Revisiting the History of the International Military Tribunal and Its Lessons.” Drawing from her book Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II (Oxford University Press 2020), she argued that the participation of the Soviet Union was essential to what was achieved at Nuremberg.

Next, Kerstin von Lingen (above left), Professor of Contemporary History at the Department for Contemporary History of the University of Vienna, Austria, addressed “Crimes Against Humanity: A Neglected Concept within the Asian War Crimes Trials?” Her careful tracing of the origins of the ethical concept and legal doctrine of crimes against humanity talk drew upon her extensive research and publications related to the postwar emergence of international criminal justice in Europe and Asia – among these is her contribution and co-editorship of The Tokyo Tribunal: Perspectives on Law, History and Memory (Torkel Apsahl 2020), a Nuremberg Academy anthology to which I also contributed.

Yours truly, Diane Marie Amann (above right), Regents’ Professor of International Law at the University of Georgia School of Law, then discussed “Women and the Nuremberg-Tokyo Era.” Featured in my talk were the lawyers and other women professionals who are the subjects of my ongoing research, and about whom I have published here, here, and here.

Then followed a spirited Q&A, with queries, ranging from colonialism to sexual slavery to the substantive content of international criminal law, demonstrating the continued importance of exploration of the field’s early days.

In recognition of today’s entry into force of the Treaty on the Prohibition of Nuclear Weapons, with 81 signatories and 51 states parties, I’m republishing the essay below, which I posted at my Gloss site on August 10, 2020.

 

 

 

“There, in the tin factory, in the first moment of the atomic age, a human being was crushed by books.”

I spent yesterday reading, for perhaps the 3d time in my life, “Hiroshima,” the 30,000-word epic published in an August 1946 New Yorker. This time around, it’s the 19-word sentence quoted above that stuck in my mind.

Among this article’s many remarkable facets is the absence of overt commentary. It narrates the first atomic bombing not in the voice of author John Hersey, by then a Pulitzer Prizewinning journalist who’d covered World War II alongside US troops. Instead, Hiroshima is revealed through the eyes of 6 unknowns:

  • Miss Sasaki, a young clerk caught in the rubble at the tin factory where she works;
  • 2 physicians, Dr. Sasaki (no relation), a Red Cross Hospital surgeon who treats the clerk’s mangled leg, and “hedonistic” Dr. Fujii, who runs his own private hospital;
  • Mrs. Nakamura, whose husband, a tailor, had enlisted in the Army and died at Singapore 3 years earlier; and
  • 2 clerics, an Emory-trained Methodist, Reverend Tanimoto, and a Jesuit priest, Father Kleinsorge.

Each was stunned by the bomb’s “Noiseless Flash” at 8:15 a.m. on August 6, 1945, and over the next year, and each managed to eke out a kind of survival.

The article reads like a matter-of-fact recitation of the experiences of these 6. Yet the facts, as marshalled, leave little doubt of Hersey’s point of view: 12 months on, the clerk is “a cripple”; one doctor is “not capable of the work he once could do” and the other has “no prospects of rebuilding.” The pastor has lost his both his church and “his exceptional vitality,” while the misnamed priest (in German, Kleinsorge = “little worry”) is “back in the hospital.” And these are “among the luckiest in Hiroshima.”

The choice of voices is itself a commentary. These are ordinary people. Two are reading newspapers when the bomb drops. They differ from Hersey’s own readers only because all are citizens of Axis countries, of vanquished Japan and Germany. “Hiroshima” humanizes them, and so upends the Allies’ postwar mindset.

Hersey reports that on the 1st anniversary of the bombing, many, though not all, in Hiroshima “feel a hatred for Americans which nothing could possibly erase.” Hypocrisy surfaces, too, for US-led proceedings before the International Military Tribunal for the Far East already were well under way:

“I see,” Dr. Sasaki once said, “that they are holding a trial for war criminals in Tokyo just now. I think they ought to try the men who decided to use the bomb and they should hang them all.”

Within that sentence, of course, lies a central conundrum of international criminal law – a sin of omission that dogs international criminal justice to this day.

Yesterday marked the 75th anniversary not of Hiroshima, but rather the atomic bombing 2 days later of Nagasaki. Together these conflagrations forced the surrender to Japan and ended a war begun with another bombing, that of Pearl Harbor, on a date that Truman’s predecessor declared would “live in infamy.”

In victory, Allies worked to mute misgivings about their own bombing raids – carpet bombing of cities in Europe and Asia, as well as the Hiroshima-Nagasaki nuclear moment. But misgivings existed, as my own research on participants at the Nuremberg trials has revealed. Sometimes they surfaced in commentaries and in longer writings by Hersey and others. Yet questioning has remained sporadic, and much more needs to be done.

On this anniversary, what I find myself pondering the sentence quoted at top: “There, in the tin factory, in the first moment of the atomic age, a human being was crushed by books.” At a site where workers produced (no doubt for war matériel) a metal that humans first had forged in the Bronze Age, the centuries-old storehouse of human knowledge revealed itself quite literally to be a weapon of the Nuclear Era.

Would that so much human effort were applied to the ends of peace.

Among the more captivating women who worked at the 1st Nuremberg trial – women whose stories I’m now researching – was Dame Laura Knight. Already celebrated as the 1st woman in over 150 years to win election to Britain’s Royal Academy of Arts, Knight, then 68, arrived in January 1946, about a third of the way before the year-long proceedings before the International Military Tribunal. Soon after her departure 4 months later she unveiled a 5-foot by 6-foot oil painting, “The Nuremberg Trial,” at a London exhibition.

That work forms the centerpiece of “What We See When We See Law … Through the Eyes of Dame Laura Knight,” my contribution Monday to an ongoing Opinio Juris symposium on Justice as Message: Expressivist Foundations of International Criminal Justice, a new Oxford University Press book by Carsten Stahn, an international criminal law professor at Leiden Law School and Queen’s University Belfast.

My post began by discussing Stahn’s 2020 book in light of my own 2002 article about expressivist theories and international criminal law. The focus was Nuremberg: not only is it much-discussed in Stahn’s book, but the book’s cover features her 1946 painting, pictured above. Those facts launched my post’s cameo about Knight-as-messenger, available here.

Contributors of other posts in the ongoing book series include Marina Aksenova, Mark A. Drumbl, Angela Mudukuti, Darryl Robinson, Priya Urs, and Stahn himself.

Delighted to announce that my article “Glimpses of Women at the Tokyo Tribunal” is now in print, part of a brilliant essay collection released last week.

The book, entitled The Tokyo Tribunal: Perspectives on Law, History and Memory, is the work of four editors: Professor Kerstin von Lingen, Universität Wien, Austria; Professor Philipp Osten, Keio University, Japan; and Dr. Viviane E. Dittrich and Jolana Makraiová, both of the International Nuremberg Principles Academy, Germany. 

These four took part last week in a launch discussion, archived at YouTube, along with two others among the book’s contributors: Professor Gerry Simpson, London School of Economics and Political Science, England; and Professor Yuma Totani, University of Hawai’i, United States.

Further contributing essays to The Tokyo Tribunal were, besides me, David M. Crowe, Diane Orentlicher, Kayoko Takeda, Robert Cribb, Donald M. Ferencz, Marina Aksenova, David Cohen, Narrelle Morris, Beatrice Trefalt, Sandra Wilson, Franziska Seraphim, Kuniko Ozaki, and Christoph Safferling.

Here’s the abstract for my contribution (prior post):

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

The Tokyo Tribunal volume, which was published by the Brussels-based Torkel Opsahl Academic Epublisher, may be downloaded as an e-book, or ordered in hard copy, here. It is also available at outlets such as Amazon.

It is the third book in the “Nuremberg Academy Series” produced by the International Nuremberg Principles Academy, located at the Palace of Justice in Nuremberg, Germany. It was in Courtroom 400 of that building that a conference took place which launched this just-published volume.

It was an honor to speak today on “Children and the Women, Peace and Security Agenda,” my contribution to a year-long “WPS@20” seminar series hosted by the Transitional Justice Institute at the University of Ulster.

As its title indicates, the series, which began in February, has featured numerous speakers’ reflections on the WPS Agenda, which began with the passage on October 31, 2000, of UN Security Council Resolution 1325 on Women and Peace and Security. Since that date this agenda has inspired a range of activities, in the United Nations (as depicted in this UN Women 20-year  timeline) and other international organizations, and also in nongovernmental organizations and academia.

My contribution to the series benefited greatly from the team of University of Georgia School of Law student researchers with whom I worked this summer, and to whom I am very grateful: Zoe Ferguson (JD’20), 3L Charles Wells, and 2Ls Courtney Hogan and Michael Ramirez.

This online seminar focused not on women, but on an adjunct constituency cited in Resolution 1325; that is, on children. Here’s the abstract:

UN Security Council Resolution 1325 on Women, Peace and Security contains more than a dozen mentions of young people; to be precise, it refers twice to “women and children” and more than a dozen times to “women and girls.” Since the resolution’s adoption 20 years ago this week, many initiatives have arisen to combat conflict-related harms to children. These include the Children and Armed Conflict Agenda launched by Security Council Resolution 1612 (2005) and other inter- and non-governmental efforts. This seminar will evaluate the WPS resolution, 20 years on, as a child-rights instrument. Consideration of the interim initiatives will help frame that assessment, as will evolving understandings of children’s sexual and gender identities, of children’s agency and children’s autonomy – all factors that may counsel against too-quick conjoinments of “children,” or “girls,” with “women.”

A rich set of questions followed my presentation. Ably moderating was Dr Catherine O’Rourke, Senior Lecturer in Human Rights/International Law at Ulster Law and TJI’s Gender Research Coordinator, to whom I am grateful for the invitation to speak.

The seminar is available as a PowerPoint presentation and as an audio podcast at TJI’s Apple and Spotify accounts.

The inaugural Global History and International Law seminar (prior post) concluded today with a final session, entitled “New Methodological Perspectives.”

Several of us who had discussed our scholarship earlier in the summer-long seminar were honored to return. Focusing on the methodologies that informed our work were:

  • Daniel Joyce, of the law school at the University of New South Wales in Sydney, Australia, on “International Law’s Objects” and  International Law’s Objects (OUP 2018), the essay collection he co-edited with Jessie Hohmann.
  • Kerstin von Lingen, Department of Contemporary History, University of Vienna. Her concluding remarks on “Transnational Biographies and Legal Flows” related both to her seminar presentation, “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” (podcast), a new book and article on the same topic, and books like Transcultural Justice: The Tokyo Tribunal and the Allied Struggle for Justice, 1946-1948 (Brill 2018), which she edited.
  • Yours truly, Diane Marie Amann, Dean Rusk International Law Center, University of Georgia School of Law. My concluding remarks on “Intersectional Approach” (2 slides pictured at top) related both to my seminar presentation, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” (podcast), and to my in-progress book on the roles that women played at the Trial of the Major War Criminals before to the International Military Tribunal at Nuremberg. (prior posts)
  • A. Dirk Moses, Department of History, University of North Carolina-Chapel Hill, on “Conceptualizing Genocide and Mass Violence.” His concluding remarks related to his seminar presentation, “Genocide in Historical Perspective. The Language of Trangression” (podcast), and his book The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming CUP 2021).

Leading the stimulating discussion that followed was one of the seminar’s earlier discussants, Charles S. Maier, emeritus professor of history at Harvard University, along with the seminar’s founding organizer, Anne-Sophie Schoepfel of SciencesPo.

Schoepfel, who will soon take up a postdoc position at Harvard’s Weatherhead Initiative on Global History, announced that the Global History and International Law seminar will continue, with the next edition focusing on geographies of justice.

A podcast of today’s session soon will be available here.

 

What an honor to present my work in progress, “Intersectional Sovereignties: Dr. Aline Chalufour, Woman at Nuremberg – and at Paris, Ottawa, and Dalat” last week in “Global History and International Law”, a months-long seminar under way online.

Organizer of this superb scholarly offering is Dr. Anne-Sophie Schoepfel of the Institut d’études politiques de Paris, better known as SciencesPo. Her affiliation struck me as serendipitous, given that the subject of my paper was a graduate of SciencesPo. Born in 1899, Chalufour was also the 6th woman ever to earn a Ph.D. in international law from the University of Paris. In 1945-1946, she was the only woman lawyer on the French team that joined U.S., British, and Soviet allies in prosecuting vanquished Nazi leaders at Nuremberg.

Chalufour is one of the women on whom I’m focusing in my book-length study of women’s roles at that first Nuremberg trial, before the International Military Tribunal. But the richness of her experiences inspired this separate article.

Among the other highlights in Chalufour’s 90-year life: practice before the Paris Bar; activism in national and international feminist groups; teaching at colonial schools in what’s now Vietnam; serving de Gaulle’s Fighting French as a propagandist in Canada; gathering evidence about war crimes from liberated ex-detainees; taking part as the only French prosecutor in Britain’s first trial on Ravensbrück, a Nazi concentration camp for women; and, starting a few years after Nuremberg, service as a national judge.

My paper considers these episodes in light of of 3 theorizations: 1st, the shared sovereignty of the post-World War periods; 2d, sovereignty dynamics in colonial and imperial sites; and 3d, sovereignties of the person, imagined and corporeal. The paper then examines interrelations among these 3.

Serving as my discussant at last Wednesday’s session was Dr. George Giannakopoulos of King’s College London and NYU London. Numerous other participants offered valuable comments.

This was the 5th session in the seminar, which is slated to run through June 24 and has attracted law and history scholars from Asia and Latin America as well as Europe and North America. Next up, at 3 pm EDT this Wednesday, May 20, are 2 papers within the umbrella theme “Imperial Origins of the World Order”; details here.

What’s more, in due course Dr. Schoepfel and her SciencesPo colleagues are posting edited podcasts of each session. (Update: My own presentation is available at the seminar website and on YouTube.)

Already available at the seminar’s website and its YouTube channel:

  • “Epistemic Communities in Exile: Coining ‘Crimes against Humanity’ at London, 1940-45” by Dr. Kerstin von Lingen of the University of Vienna, Austria and author of a new journal article on this subject, as well as ‘Crimes against Humanity’. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864-1945 (Paderborn 2018), a monograph soon to be available in English. Discussants were Dr. Barak Kushner of the University of Cambridge, England, and Dr. Sabina Ferhadbegović of Imre Kertész Kolleg Jena, Germany.
  • “Genocide in Historical Perspective. The Language of Trangression” by Dr. Dirk Moses, of the University of Sydney, Australia, and author of The Problems of Genocide. Permanent Security and the Language of Transgression (forthcoming Cambridge University Press). Discussant was Dr. Charles Maier of Harvard University.
  • “The Nuremberg Moment. International Trial, American Lawyers and the Racial Question” by Dr. Guillaume Mouralis of Centre Marc Bloch in Berlin, and author of Le Moment Nuremberg. Le procès international, les lawyers et la question raciale (Presses de Sciences Po 2019). Discussant was Dr. Elizabeth Borgwardt of Washington University in St. Louis.

The full list of seminar participants is here; full schedule and registration information, here.

Caution in giving too much credit, or blame, to one individual formed the focus of my contribution to last week’s symposium on “The Next ICC Prosecutor.”

Entitled “Placing the Prosecutor within the International Criminal Justice Project,” my post appeared Friday at Opinio Juris, cosponsor along with Justice in Conflict of the online symposium.

My post began by welcoming the rich dialogue – in anticipation of December’s election of the 3d Prosecutor of the International Criminal Court – that had unfolded all week. Fueling that discussion were contributions from a couple dozen commentators on international criminal law: Ewan Brown, Danya Chaikel, David Crane, Geoff Dancy, Tom Dannenbaum, Christian De Vos, Elizabeth Evenson, Kate Gibson, James Goldston, Douglas Guilfoyle, Kevin Jon Heller, Mark Kersten, Patryk Labuda, Stephen Lamony, Luis Moreno Ocampo, Jonathan O’Donohue, Mariana Pena, Priya Pillai, William Schabas, Melinda Taylor, Valerie Oosterveld, Beth Van Schaack, and Kate Vigneswaran, Alex Whiting, and William H. Wiley.

My post then pointed to risks involved in “placing too much weight on the person and position of Prosecutor.” These included:

  • the risk of generating expectations, “inevitably doomed to disappoint”; and
  • the risk that “the very association of a complex project with a lone person or position” obscures the myriad ways that many other actors “play roles, in helping to construct perceptions of the project and in contributing, or not, to the project.”

My contribution is available in full here. For additional posts in the symposium, see list here.

Very pleased to announce the publication of my new article, “The Policy on Children of the ICC Office of the Prosecutor: Toward greater accountability for crimes against and affecting children.”

As indicated in the just-before-publication version that I’ve posted at SSRN, the International Review of the Red Cross placed this article online last month, on February 21. Currently, that published version is available to Cambridge Core subscribers at a First View page; once it appears in print, in a special issue on “Children and War,” it will be freely accessible at the Review‘s website.

Here’s the abstract:

The Policy on Children published by the International Criminal Court Office of the Prosecutor in 2016 represents a significant step toward accountability for harms to children in armed conflict and similar extreme violence. This article describes the process that led to the Policy and outlines the Policy’s contents. It then surveys relevant ICC practice and related developments, concluding that despite some salutary efforts, much remains to be done to recognize, prevent and punish the spectrum of conflicted-related crimes against or affecting children.

This article represents my latest effort to assist in raising awareness and developing strategies respecting children and conflict (prior posts). It’s an effort in which I’ve been deeply involved since my 2012 appointment as the International Criminal Court Prosecutor’s Special Adviser on Children in and affected by Armed Conflict.

Central to this effort was the multiyear process of researching and drafting, along with an Office of the Prosecutor working group and in consultation with others, of the document published in 5 languages and launched in November 2016 as the Policy on Children. Other aspects have included:

Happy to provide further details. And as always, comments welcome.

The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.