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A one-day conference will be held on this topic in Trinity College Dublin on Friday, 24 February 2006. It will consist of an introduction and six papers and the proceedings will form an issue of the European Review, the journal of the Academia Europaea published by Cambridge University Press. The aim of both conference and journal is to bring current academic work on the subject to a broader public of lawyers, civil servants, policy-makers, politicians, graduate students and others. The intellectual exchange at the heart of the project is between academic lawyers and historians on the nature, significance and lessons of international criminal proceedings under humanitarian law as these have evolved over the past three-quarters of a century. THE ARGUMENT International trials of war crimes, crimes against humanity and genocide are currently a matter of considerable interest - legal, political and human. The work of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR), set up respectively in 1993 and 1994, and the establishment of the International Criminal Court (ICC) at the Hague in 2002, have focused attention on the practice and value of such juridical processes both as forms of law and in terms of the events they address. Politics, history, memory, mourning, reparation and even reconciliation are inescapably part of the legal proceedings, often in an explicit and even formal manner. This means that scholars in disciplines other than legal science and people from many backgrounds are interested in the work of such international tribunals and in the types of 'truth' that they seek to establish. Such trials are not new. The idea stems directly from the intersection of military violence and humanitarian impulses in the 19th century. Geneva law, emanating from the International Red Cross (founded after the main war of Italian unification), dealt with the humane treatment of wounded and prisoners. Hague law, which codified the conduct of belligerents towards non-combatants, grew from the Lieber Code devised by the Union during the American Civil War and from the attempts by European powers to regulate military conduct after the Franco-Prussian War, culminating in the Hague conferences of 1899 and 1907. Together, Geneva and Hague Law provided the basis for the prosecution of war crimes. The first, unsuccessful, attempts to conduct war crimes trials were held in Constantinople in 1920 and in Leipzig in 1921 in response to the Ottoman massacres of the Armenians and to German war crimes during the First World War. This strand of legislation has been revised continuously, most notably in the Geneva Conventions of 1949 and the Additional Protocols of 1977. That the violence of war might result in crimes of deliberately collective brutality was an idea already present in the Hague debates, and the concept of 'crimes against humanity' was first formulated in the Allied note to the Ottoman Empire in May 1915 in response to what many now consider to have been the genocide of the Ottoman Armenians. But it was only in 1945 that this was given legal status in the U.N. Statute establishing the International Military Tribunal which sat at Nuremberg in 1945-6, where, along with war crimes, it served as the principal head under which Nazi crimes were prosecuted. Simultaneously, the specificity of the Nazi attempt to exterminate European Jews, only indirectly addressed at Nuremberg, was conceptualized in 1944 by the American scholar, Raphael Lemkin (himself deeply influenced by the Armenian precedent), and led to the 1948 U.N. Convention on Genocide which focussed on crimes that sought to destroy an entire ethnic, national, religious or racial group. At the same time, the International Military Tribunal for the Far East (or Tokyo Tribunal) was established by the Allies under international law to prosecute Japanese war criminals. The Cold War polarized the U.N. and limited the development of international juridical proceedings on these three strands of international law - which, taken together, have been termed 'international humanitarian law' - though a symptomatic exception was the surrogate International Peoples' Tribunal established by Bertrand Russell. But the end of the Cold War and the re-emergence of the United Nations as a weak but genuine supra-national authority allowed international criminal proceedings to be initiated in response to crimes against humanity and war crimes in the former Yugoslavia (1992-5 and 1999) and to the genocide of the Tutsi population of Rwanda (1994). This new phase has reinforced two processes already long in evidence. The first is the extension of humanitarian law from situations of international war to civil war and to peacetime. Allowed in principle by the Charter establishing Nuremberg, crimes against humanity committed before the war were precluded in practice by the tribunal. However, genocide was made independent of the states of war and peace in the 1948 Convention, and the ICTR has dealt with a genocide conducted in a society ostensibly not at war. The second process has been the translation of international into national law. This was was already evident in response to what in Allied eyes was the fiasco of the Leipzig war crimes trials of 1921, when French and Belgian military courts went on to try the accused in absentia. After 1945, various countries prosecuted war criminals under international law, perhaps most famously Adolf Eichmann in Israel (1961) and Klaus Barbie, Paul Touvier and Maurice Papon in France in the 1980s and 1990s. Instituting national proceedings under international humanitarian law on the basis of a universal jurisdiction has been taken furthest in Belgium, but the tendency has been more general. It seems timely to reflect on the question of international trials of crimes against humanitarian law in a broader perspective for at least three reasons. First, since the initial attempts to instigate such proceedings in 1919-21, it is possible to discern a sharply uneven development whose rhythm has been driven by responses to the two world wars and the upsurge of violence after the ending of the Cold War. Of course, war is not the only phenomenon that produces extreme forms of violence, as indicated by the internal history of revolution in the USSR and China or the genocide in Rwanda - though war informed the model of Soviet and Chinese revolutionary mobilization and it could be argued that the genocide in Rwanda was in effect a civil war of the most lethal kind. But the new forms of violence that were central to the two world wars resulted in the comprehensive transgression of existing norms for the conduct of war, so that during and above all after the conflicts, it became essential to redefine the norms of acceptable behaviour in order to conceptualize and stigmatize the new types of violence. Humanitarian law redefined the norms while international trials applied them retrospectively to those accused of the most heinous transgressions. Events in the former Yugoslavia and Rwanda did not produce new crimes so much as resurrect levels and types of violence against civilians which many imagined had become impossible after the end of the world wars and the Cold War (notably 'ethnic cleansing' and genocide). Over a period of eighty-five years, therefore, the shock of war has triggered new developments in international humanitarian law which have then been tested in international trials. The nature and coherence of that history seem worth considering. Second, societies try to come to terms with the transgression of norms and with new forms of violence by many other means than the law and legal proceedings. Adjusting to the previously unthinkable, finding ways to represent and explain it in the self-understandings of nations and their histories, and ensuring that the moral and ideological compass is reoriented so as to both register and outlaw the transgressions concerned is central to how societies exit from wars and other situations of extreme violence. History, education, the media, politics and many other activities engage in this process. Consequently, legal innovation and criminal trials, where they occur, do so in the context of multiple attempts to make judgments on the recent past, which may result in similar or very different explanations and kinds of moral truth-telling. Yet since criminal trials, and especially international trials, occupy a central place in this process, usually attracting enormous attention and expectations, they cannot escape didactic and historical functions and indeed (as in the case of Nuremberg) may often explicitly embrace them. The consequent 'didactic legalism' raises fundamental issues. Is it possible to capture in a legal process the enormity of the collective crimes for which individuals are being prosecuted? Are the 'truths' arrived at compatible with those that others - historians, theologians, politicians - might derive from analysis of the same events? Until the creation of ICTY, ICTR and the ICC, did the inevitably one-sided nature of 'victor's justice' vitiate the legal proceedings? If the trials are to function didactically, in a moral and educational sense, how are they to be publicized? Do they in fact function as intended, both when they take place and over time in the societies concerned? There is no presumption that lawyers and historians will line up on opposed sides of these complex questions. Rather a spectrum of views will be juxtaposed and hopefully will stimulate debate, both in the conference and through the review. Finally, it seems inconceivable that a development that has marked most of the twentieth century and recently taken on new life will not intensify in the near future. The 'globalization' which affects so much of contemporary life faces one of its most basic challenges in envisaging an international humanitarian law on the basis of a universal jurisdiction. It is important to broaden current debates on 'globalization' from the economic sphere to issues such as these. It therefore seems particularly appropriate to do so in the twin frameworks of the Institute for International Integration Studies in Trinity College Dublin, which is funding and organizing the conference, and the Academia Europaea, a European non-governmental association, founded in 1988 with over 2,000 members in 35 countries, which is publishing it. Introduction : 9:15-9:30 Professor John Horne, Department of History, Trinity College Dublin Session 1 : 9:30- 11:00 Professor William A. Schabas, Director, Irish Centre for Human Rights, National University of Ireland Galway,
Professor Alan Kramer, Department of History, Trinity College Dublin,
Session 2: 11:30-13:00 Dr Donald Bloxham, School of History and Classics, University of Edinburgh,
Dr Madoka Futamura, King's College London,
Session 3: 14:00 - 15:30 Dr Rosemary Byrne, School of Law, Trinity College Dublin,
Dr Bob de Graaff, Centre for War Studies, University of Utrecht,
Session 4: 16:00-17:00 Round table discussion (all speakers, audience).
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