LEGAL 392T Lecture Notes - Lecture 4: United Nations War Crimes Commission, Moscow Declarations, Nuremberg Charter

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6 Feb 2017
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Legal Studies 392T:
Transitional Justice and Truth Commissions
Professor: Jamie Rowen
Trials and Reconciliation
Lecture 2/6:
Take Away:
o Translating domestic criminal law for international crimes
o Challenge of conceptualizing and achieving reconciliation
What kinds of justice might have been used for abuses in the War on Terror?
o Criminal Justice
Government stated that criminal justice might have compromised National
Security
Which individuals should be responsible? And they were just doing their
job → why try them for doing their job?
o Historical Justice
Whose story do we tell?
Which victims do we care about?
o Reparatory Justice
Who should get the money?
o Administrative Justice
Whole new world of secrecy → don’t know where to start
o Constitutional Justice
No change in government
Novelty of International Criminal Law in Relation to politics
Relationship of international criminal law to domestic criminal law
Morality vs legality
WWII and UN
o Creation of UN 1948
o ILC formulates plan for international criminal court
o Jus ad bello & jus in bellum → how to worry about law before and during war
Crime of Aggression
o Jus ad bello
o The planning, preparation, initiation or execution of an act of using armed force
by a State against the sovereignty, territorial integrity or political independence of
another State
o The act of aggression includes, among other things, invasion, military occupation
and annexation by the use of force, blockage of the ports or coasts, if it is
considered being, by it character, gravity and scale, a manifest violation of the
Charter of the United Nations
o The perpetrators of the act of aggression is a person who is in a position
effectively to exercise control over or to direct the political or military action of a
State
Matters who’s in charge
Genocide
o Jus in bellum → what can you do in conflict?
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o YOU CANNOT: kill members of the group, cause serious bodily or mental harm
to members of the group, deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part, imposing
measures intended to prevent births within the group, forcibly transferring
children of the group to another group
Legal Issues
o Civil vs. Common Law
Statutory vs. Looking at previous judgements (adversarial system)
o Who is in charge (Judge vs. Police)
Judge has more power; Judge works closely with prosecutor and law
enforcement
o Elements of a Crime
o Evidence: Hearsay and Circumstantial
Worried about the integrity of the evidence
Judges decide what can be evidence
o “Collateral Damage”
o Modes of Liability
WWI: How to Punish?
o Commission on the Responsibility of the Authors of the War and on Enforcement
of Penalties
o “Outrages of every description committed on land, at sea and in the air, against
the laws and customs of war of the laws of humanity”
First time a peace negotiation punishes the perpetrators
o Such crimes should be prosecuted before an international “high tribunal”
composed of representatives of the Allied and Associated Powers or before
national tribunals
o Crimes include aggression
o Outcome
Recommendation to make an international criminal tribunal
No immunity for heads of state
US rejected the prosecution of heads of state, didn't want retroactive laws
and didn’t want standing international court but ad hoc ones for each
nation
Leipzig War Crimes Tribunals
Antecedents to Nuremberg: 1943
o UN War Crimes Commission
o Left evidence collection to member states
o Didn’t include holocaust
o Moscow declaration
o Nazis will be judged and punished according to laws of liberated countries
Deterrence → How do we use law to make war stop?
Retribution → Punishment for starting another World War
Allies WON WWII so they were not scared to arrest the Nazis
because there wouldn’t be a conflict that could overthrow the
Allies’ power
o Not international
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