At the end of October,  I had the pleasure of spending a few days at the UN in New York where I was invited to speak to the annual meeting of the Legal Advisers of Foreign Ministers of Member States of the UN. The annual meeting of Legal Advisers is held during what has come to be known as International Law Week at the UN. The meeting takes place during the period in which the International Law Commission’s report is being debated in the Sixth (Legal) Committee of the General Assembly and around the time the President of the International Court of Justice delivers its annual report to the UN. In the period I was there the President of the International Criminal Court also spoke to the General Assembly. It was also an interesting time to be there because this was the time in which candidates for elections to the various UN legal bodies show up in New York to “campaign” (if that is not too ugly a word). There are also a number of receptions held in the evenings by State’s missions to the UN to promote their candidates. There are quite a number of elections to legal bodies this year so there was a lot of this sort of promotional activity. This year there are elections to the ICJ (see here), elections to the International Law Commission (which were held yesterday), elections for ICC Prosecutor and for a number of ICC judges.

The annual meeting of the Legal Advisers was a 2 day affair and I was invited to speak on a panel on the Contribution of the International Court of Justice to the Development of International Law. My co-panellists were President Hisashi Owada of the ICJ and UN Under-Secretary General Patricia O’Brien (the UN’s Legal Counsel). The panel was chaired by Ambassador Anders Ronquist who is the Director General for Legal Affairs at the Swedish Ministry for Foreign Affairs (and sitting to my right was Alan Kessel the Legal Adviser of the Canadian Dept of Foreign Affairs who was one of the co-ordinators of the Meeting of Legal Advisers).

President Owada spoke about the contribution made by the ICJ through it’s advisory jurisdiction. Patricia O’Brien spoke about the contribution of the ICJ to the development of the law relating to the UN touching in particular on questions of personality and immunity. I spoke about the contribution of the ICJ to the development of the law relating to the use of force. My speech is below. There was an interesting question and answer session following our session and I got lots of good questions about issues I covered as well as questions about issues I did not cover (eg about cyberwarfare).

Read the rest of this entry »

Last week the United Nations General Assembly and Security Council conducted  elections to elect judges to the International Court of Justice (ICJ) (see UN Press Releases here and here). Under Articles 4 and 8 of the Statute of the ICJ, ICJ judges are elected by an absolute majority of General Assembly and the Security Council which are to meet separately. Five judges are elected to the Court every 3 years with each judge being elected to a 9 year term. The usual procedure for the elections is that both the GA and the SC meet separately, but concurrently. Once five judges have obtained an absolute majority in one organ the President of that organ will notify the President of the other organ of the names that candidate. In the election held last week, four candidates received an absolute majority in each organ and were elected to the Court. Three of those were judges were reelected to the Court, namely: President Hisashi Owada (Japan), Vice President Peter Tomka (Slovakia) and Xue Hanqin (China) who was elected to the Court for the first time last year (see previous post here). In addition, one new judge Professor Giorgio Gaja (Italy) was elected. Professor Gaja is a member of the International Law Commission and was special rapporteur on the recently adopted articles on the responsibility of international organizations (see posts here and here). When he takes up his position, Professor Gaja will effectively replace Judge Bruno Simma on the Court. These four judges were elected in the first round of balloting in the General Assembly and the Security Council.

Unusually, the GA and SC were unable to fill the fifth vacancy on the Court as both organs failed to agree on a candidate for that vacancy. That vacancy was effectively reserved for an African candidate and was contested by Judge Abdul Koroma (Sierra Leone) who is the most senior judge at the ICJ, having already served on the Court for 18 years, and Judge Julia Sebutinde (Uganda) who is the Presiding Judge in the Trial Chamber of the Special Court for Sierra Leone hearing the Charles Taylor case. Judge Koroma obtained a majority in each of the five rounds of balloting held in the Security Council. However, though the General Assembly had seven rounds of balloting, Judge Koroma failed to obtain a majority in that organ and it was Judge Sebutinde who obtained a majority in five of those rounds. In the last four rounds of balloting in the GA the votes were extremely close with there being a difference of no more than four votes (out of 193) between the two candidates in each of those rounds. In fact in the 7^th round, Judge Sebutinde only just obtained an absolute majority of votes (97) and Judge Koroma obtained just one vote less (96).

So what happens next? Both organs decided to adjourn and to continue the voting on a date to be announced later (see UN Press Releases here and here). However, the Statute of the ICJ appears to suggest an alternative course of action in the case of disagreement between the two electing organs. Read the rest of this entry »

 Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers,  51 Harv. Int’l L.J. 113 (2010)

Introduction:

In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.

The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.

Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry »

Christiane Ahlborn is Ph.D. Candidate at the Amsterdam Center for International Law and member of the project on Shared Responsibility in International Law (SHARES)

On 31 October 2011, the UN Educational, Scientific and Cultural Organizations (UNESCO) approved the bid of Palestine for full membership with the necessary two-thirds majority. Although 107 UNESCO States voted in favor of Palestinian membership, the approval also faced notable opposition by 14 States. The overall number of 173 votes cast included 52 abstentions. Among the States voting against the bid were the United States, Canada and several EU member States, including Germany and the Netherlands. While the diverging positions of EU member States thus reveals once again the lack of unanimity in EU external relations policy, the US disapproval of the Palestinian UNESCO membership may have more serious consequences at the level of US-UNESCO relations. For after the approval of Palestine’s membership bid, the US immediately announced that it would cut off its funds to UNESCO, which amount to 60 million USD annually. This decision is based on several US laws that prohibit the US government to provide funds to any United Nations agency or affiliated organization that “accords the Palestine Liberation Organization the same standing as member states” (see P.L. 101-246, Title IV [1990] and P.L. 103-236, Title IV [1994]).

International Responsibility for Withholding Membership Dues

Since the US is the largest contributor to the UNESCO budget with a share of 22 percent, its decision to withhold its contributions will most likely impede the effective functioning of the organization. As the Director-General of UNESCO stated on 2 November 2011, the continued withholding of dues may severely affect UNESCO’s activities in a variety of areas. UNESCO already felt the repercussions of the lack of US funding after 1984 when the United States withdrew from UNESCO due to the increasing politicization of the Organization, rejoining only in 2003 (for a discussion of the reasons for the withdrawal see Hans N. Weiler, ‘Withdrawing from UNESCO: A Decision in Search of an Argument’ (1986) Comparative Education Review 132).

Considering the potentially detrimental effects of US withholdings, this contribution seeks to examine whether the US could be held internationally responsible for its acts under the law of international responsibility. After all, Article IX of the constituent instrument of UNESCO (the UNESCO Constitution) states that member States of the organization have a “financial responsibility” towards the Organization, i.e. an obligation to provide the Organization with the necessary financial resources, as decided by the General Conference of UNESCO. Although this obligation arguably could have been formulated in more concrete terms, it is suggested that the United States would breach its obligations under the UNESCO Constitution by withholding its membership dues, and accordingly be under a secondary obligation to make reparation either in kind and/or by means of compensation.

Read the rest of this entry »

We again wish to extend our thanks to all of the discussants of Kevin Heller’s book on both EJIL: Talk! and Opinio Juris. In addition to Kevin’s introduction, readers can find at the specified links the contributions of Michael Marrus, Alexa Stiller, and Rob Cryer with Kevin’s reply on EJIL: Talk!, and those of Dave Glazier, Detlev Vagts, Roger Clark, and Devin Pendas with Kevin’s response on Opinio Juris. We hope our readers enjoyed our first joint book discussion.

As part of our joint Opinio Juris/EJIL: Talk! symposia on Kevin and Marko’s books, Oxford University Press has offered to give readers a 20% discount on each book.  To purchase Kevin’s The Nuremberg Military Tribunals and the Origins of International Criminal law, click here.  When you add the book to your OUP basket, the 20% discount will automatically be deducted.  The discount is good until 31 January 2012. We will post a similar link for Marko’s book when we host that discussion.

I am indebted to Professors Marrus, Stiller, and Cryer for their responses to my book – their criticism as well as their praise.  (Though I confess to considerable relief that the praise seems to outweigh the criticism.)   Writing this reply is no easy task, not least because I find myself in agreement with much of what all three professors have to say.  But I’ll respond as best I can below.

Read the rest of this entry »

Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School.

Let me say at the outset that I think that Kevin has done an excellent job on the book (as have OUP in its production). I should probably also say, in the interests of full disclosure, that I flatter to call myself a friend of Kevin’s and have enjoyed the discussions we have had over aspects of the book during its gestation. The book is exceptionally well researched and written, and fills a significant lacuna in the literature. It has a strong narrative flow, and skilfully entwines the historic and legal aspects of the cases. There are many rich seams to mine in the book, but I will limit myself to one, and one of the rare instances where I disagree with Kevin, at least a little. This is the issue of the legacy of the Tribunals.

We used to hear quite a lot about the Nuremberg legacy; often in terms that bemoaned its betrayal. The International Criminal Tribunals for Yugoslavia and Rwanda, and the Special Court for Sierra Leone are now all self-consciously attempting to shape their respective legacies. Sadly, it is not clear to me that, in spite of Telford Taylor’s hopes and desires, the Nuremberg Military Tribunals had much of a legacy. In contrast, in the book, Kevin is relatively upbeat about aspects of their legacy (although other aspects are characterised, rightly, as “a complete failure” (p.400)).

Read the rest of this entry »

Alexa Stiller is a Lecturer in the Department of History, University of Bern, Switzerland; e-mail: alexa.stiller [at] hist.unibe.ch

Kevin Heller has written a very important book that provides the first comprehensive legal analysis of the Nuremberg Military Tribunals (NMTs). His main argument is that the twelve trials are of paramount historical importance, not only because they created a huge amount of documentary evidence of the crimes of the Third Reich but first and foremost because the tribunals played an important role in the development of international criminal law (and to make this clear from the outset, I absolutely agree with his assumption).

Heller’s book is divided in five sections, each consisting of three chapters. Sections one and five, the origins of the NMT trials and the aftermath as well as their legacy, are the historical parts of the book, the middle sections are dedicated to a legal discussion of the Tribunals, the law and procedure, the jurisprudence, and the modes of participation and defenses that the Tribunals approved. Although Heller has written an essentially juristic book, he has no blinders on concerning historical methods. He tries to connect both disciplines and I highly appreciate the effort. In this comment I would like to show two aspects – strictly from the viewpoint of a historian – where his analysis does not make full use of the potential for differentiation. First, in examining the people who played an active role in the trials; secondly, in analyzing the interpretations and narratives in the courtroom. (This and the following reflections are presented in more detail in my co-edited volume Unearthing the Subsequent Nuremberg Trials. Transitional Justice, Trial Narratives, and Historiography. Oxford/New York: Berghahn 2012 (forthcoming)).

Read the rest of this entry »

Michael R. Marrus is Chancellor Rose and Ray Wolfe Professor Emeritus of Holocaust Studies and Adjunct Professor of Law at the University of Toronto, and the author of The Nuremberg War Crimes Trial l945-46: A Documentary History (Bedford Books).  His most recent book is Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Wisconsin).

Hats off to Kevin Jon Heller, not only for a splendid and comprehensively learned survey of these important trials, but also, and at long last, for putting the Nuremberg Subsequent Proceedings (as I still prefer to call them) properly on the legal and historical map.   As Heller acknowledges, the sad truth is that these twelve trials of 177 accused German war criminals – held under American auspices and in the American zone of occupation of Germany between 1946 and 1949 – have been relatively little studied; particularly when compared to the much more famous trial before the International Military Tribunal (IMT), familiarly known as the Nuremberg Trial.   Just a week ago I read an judicious book by a learned jurist who erroneously (as indeed with many of my students, not to mention distinguished historians, lawyers, judges, journalists and statesmen) referred to the Nuremberg Trials, in the plural, while intending to denote the proceedings before the IMT.  Egregiously, this error was once committed by none other than Brigadier General Telford Taylor himself, the man in charge of the Nuremberg Subsequent Proceedings, who entitled his book on the IMT The Anatomy of the Nuremberg Trials (sic), a work that has scarcely a word about the Nuremberg Military Trials.  Over and over again, colleagues will acknowledge, this mistake reappears – reminding us that the “Nuernberg Military Tribunals, Trials, War Criminals before the Nuremberg before the Nuremberg Military Tribunals under Control Council Law No. 10” (to cite the official reference to the so-called ‘Green Series,’ those trials’ proceedings, bound in green) or the “Subsequent Nuremberg Proceedings” or the “Nuremberg Subsequent Proceedings” have persistently failed to find a commensurate place in the scholarly discourse – or the discourse on justice-seeking following the end of the Second World War, or even, for that matter, the general discourse on international criminal law.  I cannot say that no one will commit this error after this important book appears; but Heller’s work will surely lend conspicuous authority to the requirement that the IMT be distinguished from the Nuremberg Trials!

Read the rest of this entry »

I am deeply grateful to both my co-bloggers at Opinio Juris and the editors of EJIL: Talk! – particularly my friends Marko Milanovic and Dapo Akande – for this remarkable opportunity to discuss my new book.  I look forward to hearing what the impressive, and frankly intimidating, group of commenters have to say about it.

I wrote this book for one simple reason: I wanted to read it.  I first became interested in the Nuremberg Military Tribunals (NMTs) in the context of aggression.  Roger Clark, who was at that time deeply involved in the ICC’s Special Working Group on the Crime of Aggression (SWG), asked me to prepare a report on the Nuremberg-era approach to the crime’s leadership requirement, which was then being debated by the SWG.  (The report eventually became this article in the European Journal of International Law.)  My research led me to the NMTs – and I was surprised, even shocked, to discover that apart from a couple of book chapters and articles, many written by the participants themselves, there was almost no serious legal scholarship about the trials.  It didn’t take long for me to decide that I would try to fill that rather gaping lacuna in international criminal law.

I’m often asked to summarize the thesis of my book.  That’s a difficult task.  It’s easier to describe what I hoped to accomplish by writing it, which involves a constellation of three interrelated goals.  First, I wanted to provide a comprehensive and synthetic analysis of the jurisprudence produced by the 12 trials – an analysis that scholars, attorneys, and judges who work in ICL will find useful in their work.  I hope that I have accomplished that goal: the book contains individual chapters on evidence, procedure, crimes against peace, war crimes, crimes against humanity, modes of participation (including a separate chapter on conspiracy, enterprise liability, and criminal membership), defenses, and sentencing.  Each chapter attempts to identify not only the points of agreement between the tribunals, but also – and perhaps more importantly – where the tribunals disagreed with each other, sometimes passionately.

My second goal was to provide a (relatively) complete historical account of the twelve trials.  I spent a number of months mired in archives, most usefully Telford Taylor’s papers at Columbia Law School.  That was a wonderful, if grueling, part of my research – and it only increased my respect for professional historians, whose ranks I sincerely doubt I’ll ever be skilled enough to join.  I managed to find literally hundreds of documents about the NMTs that had never been discussed in ICL scholarship and that concerned critical issues in the trials – records of defendants Telford Taylor decided not to prosecute and trials he abandoned; letters that indicate the Americans made a conscious decision to try to establish genocide as a crime against humanity in the later trials; conversations that make clear the drafters of Control Council Law No. 10 intended the NMTs to prosecute pre-war crimes against humanity that had no connection to the war (the so-called “nexus” requirement); and many more.  That research forms the heart of the historical chapters in the book, which trace the Allied decision to hold zonal trials instead of a second IMT, the evolution of the NMTs trial program, and the shameful collapse of the war-crimes program after the NMTs closed down.

My third and final goal was to situate the trials in their political context.  The history of the trials, it is fair to say, is the history of the then-nascent Cold War.  While the trials were being planned, Churchill gave his “Iron Curtain” speech, the United States conducted atomic tests Able and Baker, and the French landed in Indochina.  The trials themselves witnessed Truman’s announcement of his famous doctrine, Czechoslovakia’s fall to the Soviets, and the beginning of the Berlin Blockade. After the trials were over, the fate of the convicted defendants was determined alongside the emergence of the Soviet Union as the world’s second atomic power, the rise of McCarthyism, the beginning of the Korean War, and the formation of the Warsaw Pact.  Throughout the book, therefore, I try to identify and explain the myriad ways in which Cold War pressures affected – and often distorted – the jurisprudence the NMTs produced.

I dedicate my book, as all first-time authors should, to my parents.  Intellectually, though, the book is profoundly indebted to Telford Taylor, without whom the trials would not have achieved the success that I believe they did.  Taylor always intended to write a book about the NMTs, a sequel to his seminal work The Anatomy of the Nuremberg Trials.  Unfortunately, at the time of his death, Taylor had completed only three chapters.  I regret that he was never able to finish his book; I’m sure it would have been superb.  It is my profound hope that he would have been happy with mine.

(Cross-posted on Opinio Juris.)