Home 2011 October

The Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on October 31, 2011        Author: 

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.)

Filed under: EJIL Book Discussion
Comments Off on The Nuremberg Military Tribunals and the Origins of International Criminal Law

Book Discussion: Kevin Jon Heller, Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on October 31, 2011        Author: 

Opinio Juris and EJIL: Talk! are happy to announce that we will be doing two joint book discussions. The first book we will be discussing is Kevin Heller’s Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford UP) and that discussion starts today. We have a fantastic lineup of discussants, to whom we are most grateful for their time and insight. On EJIL: Talk! it’ll be Michael Marrus (Toronto), Alexa Stiller (Bern), and Rob Cryer (Birmingham), and on Opinio Juris, David Glazier (Loyola, LA), Detlev Vagts (Harvard), Roger Clark (Rutgers-Camden), Devin Pendas (Boston College) and Lawrence Douglas (Amherst).   The discussion will start with a cross-posted introduction by Kevin on Monday, and end with his reply to the discussants on Friday. Both the discussants and our readers are of course welcome to join in in the comments.

Following discussion of Kevin’s book, Opinio Juris and EJIL:Talk! will host a joint discussion of Marko Milanovic’s book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford UP)

Filed under: EJIL Book Discussion
Comments Off on Book Discussion: Kevin Jon Heller, Nuremberg Military Tribunals and the Origins of International Criminal Law

The Hague Court of Appeal on Dutchbat at Srebrenica Part 1: A Narrow Finding on the Responsibilities of Peacekeepers

Published on October 25, 2011        Author: 

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)


This summer, the Dutch Court of Appeal in The Hague issued simultaneous and almost identical rulings in two crucial lawsuits regarding the actions of U.N. peacekeepers during the Srebrenica genocide – Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands. The cases involve civil claims with respect to the deaths of four Bosnian civilians in the Srebrenica genocide. The victims were killed by Bosnian Serb forces after being evicted by the Dutch battalion (Dutchbat) of UNPROFOR from the U.N. compound at Potočari on the 13th of July 1995. The Court of Appeal decided that Dutchbat acted unlawfully in evicting two of the male victims, that this triggered legal responsibility for the deaths of all three male victims (but not the sole female victim), and that the wrongs could be attributed to the Netherlands.

In this post, I provide a brief description of the procedural and factual background to the case and address the legal issue of Dutchbat’s wrongdoing. Later this week, I will address the potentially more consequential issue of the attribution of that wrongdoing to the Dutch state.

The Court’s analysis of Dutchbat’s wrongdoing has two key features. First, the Court applied human rights obligations abroad. However, it did not do so by finding the relevant treaties to have extraterritorial effect. Instead, it found (i) that the ICCPR had been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and (ii) that the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, the ruling characterized Dutchbat’s wrongdoing narrowly: (i) relying on the eviction of the victims from the U.N. compound, not on any responsibility to protect those already outside the compound, and (ii) noting that since the victims were the last persons to be evicted, the judgment provided no indication of whether earlier evictions would have been unlawful (the probable consequences of eviction having become more apparent to Dutchbat over time). Read the rest of this entry…


Antonio Cassese, 1 January 1937- 22 October 2011 RIP

Published on October 24, 2011        Author: 

The Editor-in-Chief, the Board of Editors, the Scientific Advisory Board and the entire EJIL family mourn the death of Antonio Cassese, a founding Editor of the European Journal of International Law. Nino Cassese played a decisive role not only in the establishment of EJIL but also in its continuous evolution and success. He was a regular contributor to EJIL, some of his articles becoming iconic. An illustrious jurist, judge and teacher, he will be remembered for his profound humanity and generosity of spirit. We extend our heartfelt condolences to the family.



Messages of condolence from EJIL authors and readers sent to ejil {at} eui(.)eu will be forwarded to the family.

Filed under: Editorials
Comments Off on Antonio Cassese, 1 January 1937- 22 October 2011 RIP

Antonio Cassese Passes Away

Published on October 22, 2011        Author: 

We are sad to report the passing of Antonio Cassese, one of the greatest international lawyers of his generation and one of the EJIL’s founders. Nino worked tirelessly despite his illness almost until the end, having resigned as president of the STL just a few weeks ago. Few scholars have had as much impact, or were so gracious towards others. He will be missed.

Filed under: EJIL Reports

Call for Papers: ESIL Conference in Valencia, September 2012

Published on October 21, 2011        Author: 

The European Society of International Law has announced a call for papers for the Valencia conference in September 2012 (note that there has been a slight change of dates with regard to what was previously advertised). The PDF of the call for papers with all off the relevant deadlines and information is here: CfP English.

Filed under: Conference, EJIL Reports
Comments Off on Call for Papers: ESIL Conference in Valencia, September 2012

Kenya Invades Somalia Invoking the Right of Self-Defence

Published on October 18, 2011        Author: 

Vidan Hadzi-Vidanovic is a doctoral candidate at the University of Nottingham School of Law.

At a press conference held in Nairobi on 15 October 2011, the Kenyan ministers of defence and interior announced that Kenyan security forces will engage in military operations against the Al-Shabaab militants in Somali territory. They invoked Article 51 of the UN Charter as a legal basis for these actions and pledged that all measures taken in the exercise of the right of self-defence will be reported to the Security Council. Additionally, they invoked the right to hot pursuit, although it is not clear whether it was regarded as a part of the right to self-defence or as a self-standing right. The announcement comes after a number of incidents which involved the incursions of Al-Shabaab elements as deep as 120km inside Kenyan territory, and abductions of several foreign nationals.

At the time of the writing of this post, reports indicate that the border between Kenya and Somalia has been closed and that Kenyan troops are gathering in the border area, preparing to invade Somali territory. It has also been reported that Kenyan troops have already entered 100km deep into Somali territory by Monday evening seizing two Al-Shabaab controlled towns. The Somali representative at the UN suggested that the Transitional Federal Government (TFG) would see the incursion as a violation of Somali sovereignty while expressing some understanding for the Kenyan legitimate concerns.

Some Problems with the Kenyan Invocation of the Right to Self-Defence

According to Article 51, every state has an inherent right to defend itself by employing military means if it has been subjected to an armed attack. The traditional view—which still has a significant support—is that an armed attack must be attributable to a state.

Read the rest of this entry…


Are Extraterritorial Armed Conflicts with Non-State Groups International or Non-International?

Published on October 18, 2011        Author: 

From time to time we have had discussions on this blog about the classification of extraterritorial or transnational conflicts between States and non-State groups. In other words, when States use force abroad against non-State groups, does this lead to an armed conflict between the State and the non-State group? If so, what law applies to that armed conflict, the law of international armed conflict or that of non-international armed conflicts. In most cases, when we’ve had this discussion the focus has been the situation between the US and Al Qaeda.  Earlier discussions of this issue can be found in comments to Marko’s post of May 2010 on What Exactly Internationalizes an Internal Armed Conflict?; to Constantin von der Groeben’s post of April 2010 and to my post of March 2009 on the Obama’s Administrations Interpretation of the Authority to Detain At Guantanamo: Some Areas of Progress. As readers will have seen there was renewed discussion of this issue in the comments on Alon Margalit’s recent post on the killing of Bin Laden .

I have given quite a lot of thought to this issue and have recently set out my thoughts on the issue as part of a chapter I am writing on the classification of armed conflicts. The chapter is part of a project on Classification of Conflicts being undertaken under the auspices of the International Law Programme at Chatham House. The project is led by Elizabeth Wilmhurst and includes distinguished academics and practitioners of  international humanitarian law (mainly on this side of the Atlantic). Members of the group include Michael Schmitt (now at the US Naval War College), Jelena Pejic at the ICRC, Professor Francoise Hampson (Essex University), Professor Iain Scobbie (SOAS) and Dr Noam Lubell (now also at Essex). I am a member of the group. Each of us is tasked with writing a chapter and most chapters deal with issues relating to the classification of particular conflicts (eg Iraq, Afghanistan, Gaza, Lebanon, Colombia, DRC, Al Qaeda). However, some of the chapters deal with general conceptual issues. We have had several delightful meetings at Chatham House to discuss and revise our chapters. Earlier this year, we also held a weekend workshop in Oxford (hosted by the Oxford Institute for Ethics, Law and Armed Conflict).  My own chapter seeks to provide a general overview of the legal concepts relevant to classification. The chapter (and indeed the result of the entire project) are not yet published but should be soon. We expect the essays to be collected in a book on Classification of Conflicts. In my chapter, I deal with the history of the distinction between international and non-international armed  conflict, the consequences of the distinction and whether it still has validity.  The chapter then discusses legal concepts relevant to the two categories, including the differences between a non-international conflict and other  violence and conflicts in which UN ‘blue helmets’ are engaged. I conclude with a discussion of extraterritorial conflicts between States and non-State groups.

Those who have read our earlier discussions will know that my view is that where a State uses force against a non-State group on the territory of another State, without the consent of that latter State, the State using force is bound by the law applicable in international armed conflicts. In summary, the use of force by one State on the territory of another, without the consent of the latter leads to an international armd conflict between the two States. Also that conflict is inextricably linked with any conflict with the non-State actor such that the State using force will have to follow the law applicable in international armed conflicts. In my draft, I provide a sustained defence of this position and how it accords with international practice. I also show how the position has the support of most international tribunals. The relevant section of my draft chapter now follows. I invite your comments. Read the rest of this entry…


Eurozone Crisis: All Eyes on Karlsruhe

Published on October 17, 2011        Author: 

Michael Waibel is a British Academy Postdoctoral Fellow at the University of Cambridge.

On 7 September 2011, the German Federal Constitutional Court gave judgment in three joined cases regarding the constitutionality of German financial assistance to Greece and of its guarantees to the European Financial Stability Facility (EFSF). The Eurozone rescue efforts are widely seen to stand (or fall) with the government in Berlin. Germany is the largest contributor to the Greek rescue and the EFSF with more than 27 percent, or 119 billion €, of the 440 billion € in guarantees and one of only six AAA-rated sovereigns remaining in the Eurozone (alongside Austria, France, Finland, Luxembourg and the Netherlands).

Financial markets breathed a collective sigh of relief once the court upheld the rescue measures, even though few had expected the Court to strike down the laws authorizing the German guarantees. They had waited for word from Germany’s highest court with a mix of anxiety and hope. The decision removed an important source of uncertainty that had weighted on financial markets over the summer of 2011. At the same time, the judgment also raises several questions with regard to German participation in future rescue efforts, and in particular, how far fiscal integration in the European Union may go without infringing the German constitution.

The threat of constitutional review limited the German government’s room for manoeuvre in the Eurozone crisis, slowed down the policy response and explains some features of the ongoing rescue efforts, such as the structure of the EFSF and the requirement of strict conditionality attached to financial assistance to struggling Eurozone economies. The Constitutional Court has been a central player in the drama surrounding the efforts to resolve the Greek debt crisis. In a telling sign of the court’s importance, Chancellor Merkel postponed her intervention in the general budgetary debate on 7 September in the German Parliament to await the court’s ruling.

Read the rest of this entry…

Comments Off on Eurozone Crisis: All Eyes on Karlsruhe

International Law and the Prosecution of Medics in Bahrain

Published on October 13, 2011        Author: 

Sarah Fulton is International Legal Officer at REDRESS.

The trial and sentencing of 20 medical professionals in Bahrain in the past two weeks has again turned the spotlight on the small Gulf Kingdom’s unfinished ‘Arab Spring’ and the repressive methods used to contain it.

The sentencing of doctors, nurses and paramedics who treated injured protesters to imprisonment of five to fifteen years has grabbed the world’s attention in a way that trials of others involved in protests in Bahrain – including human rights activists, bloggers, and teachers – has not.  Imprisoning doctors, it seems, is a step too far – a signal taken on board by the government, which announced last week that the 20 will be retried in a civilian court.

The strong international reaction that the case has provoked focuses attention on the value placed on respect for medical neutrality in times of conflict and civil unrest.

In the wake of popular uprisings in Egypt and Tunisia, Bahrain too saw mass protests in February and March from citizens demanding constitutional change.  Although initially tolerated by the regime, the protesters quickly faced a sharp crackdown, as security forces backed by tanks and helicopters drove them out of Pearl Roundabout where they had gathered.  In the aftermath and over the following weeks injured protesters were taken to Bahrain’s main hospital for treatment.  Medical staff gave interviews to the international media describing the casualties and the injuries that they were seeing, with some of them accusing the government of atrocities.  At the same time the grounds of the hospital became a refuge and rallying point for protesters, including some medical staff.

This became a pretext for the regime to treat the hospital as a legitimate military target and on 16 March – the day after a state of emergency had been declared – security forces stormed it.  Credible reports tell of security forces setting up checkpoints and stationing military officers to search and check the identity of all those entering the hospital, diverting and attacking ambulances carrying the wounded, beating medical staff, and segregating those with protest-related injuries into one ward where they were beaten. According to Human Rights Watch, this was part of “what appear[ed] to be a systematic campaign … aimed at punishing and intimidating medical professionals suspected of sympathies with protesters and hindering access to health care facilities for persons wounded by security forces”.

Read the rest of this entry…

Filed under: EJIL Analysis, Human Rights
Comments Off on International Law and the Prosecution of Medics in Bahrain