THE OF WAR CRIMES (LL211)

Course duration: 54 hours lecture and class time (Over three weeks) LSE Teaching Department: Department of Law Lead Faculty: Professor Gerry Simpson (Dept. of Law) Pre-requisites: Introduction to legal methods or equivalent. (Basic legal knowledge is a requirement. This would be satisfied by, among other things, Professor Lang’s LL105 course in the previous session).

Introduction The following provides a course outline, list of lecture topics and sample readings. Use the list to familiarize yourself with the range and type of materials that will be used. Please note that the full reading lists and tutorial discussion questions will be provided at the start of the course. Welcome to this Summer School course in The International Law of War Crimes. The course will consist of twelve three-hour lectures and twelve one-and-a-half-hour classes. It will examine the law and policy issues relating to a number of key aspects of the information society. 1 The course examines, from a legal perspective, the rules, concepts, principles, institutional architecture, and enforcement of what we call international criminal law or international criminal justice, or, sometimes, the law of war crimes. The focus of the course is the area of international criminal law concerned with traditional “war crimes” and, in particular, four of the core crimes set out in the Rome Statute (war crimes, torture as a crime against humanity, genocide and aggression). It adopts an institutional (Nuremberg, Rwanda, the Former Yugoslavia), philosophical (Arendt, Shklar) and practical (the ICC) focus throughout. There will be a particular focus on war crimes trials and proceedings e.g. Eichmann, Milosevic, Pinochet and Goering et al.

Course outcomes

At the end of the course, students should be able to:

. Critically evaluate ongoing developments in international criminal law. . Demonstrate an understanding of how these developments relate to one another and to global politics more generally. . Understand some of the political and philosophical dilemmas surrounding the decision to convene war crimes trials. . Evaluate theories of international criminal law

Course content is subject to change. Last updated: December 2016

Course Materials and On-line Support: This course is supported by a Moodle site. Once the course begins operation (i.e. from the 1st day of the course) you will be able to access the site via http://shortcourses.moodle.lse.ac.uk. This site will contain copies of handouts and lecture slides as well as coursework requirements. It will be updated regularly and online assignments may be posted via this page. If you need instruction on using Moodle please follow the online guides at http://shortcourses.moodle.lse.ac.uk.

Students will be expected to check the Moodle site on a regular basis.

Course Assessment: The course will be assessed by means of one two-hour unseen examination to be held during the examinations period on the last Friday, at a time to be advised by the Summer School Office. In addition you will be required to submit one summative essay of no more than 2000 words by Thursday of week two of teaching.

You will also receive feedback on two pieces of formative coursework to be completed in weeks one and two 2 of the course. This feedback will help with your summative work and your exam preparation.

Recommended Reading: The recommended textbook is:

Simpson: Law, War and Crime (Polity 2007).

Texts for Reference Purposes:

Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011). Kenneth Anderson, ‘The Rise of International Criminal Law: Intended and Unintended Consequences’ 20 (2) European Journal of International Law (2009) 331 at www.ejil.org Mark Osiel, Making Sense of Mass Atrocity, Cambridge University Press, 2009. Judith Shklar, Legalism, (1964)

Course content is subject to change. Last updated: December 2016

Maurice Hankey, Politics, Trials, Errors (1950) Christine Schwobel, Critical Approaches to International Criminal Law: An Introduction (2015) Sam Moyn, The Last Utopia, (2010) Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 (2014). Gerry Simpson, “Atrocity, Law, Humanity” in Cambridge Companion to Human Rights Law (eds. Gearty and Douzinas), 2013. F. Jessberger and J. Geneuss, “Down the Drain or Down to Earth? International Criminal Justice under Pressure” J. Int Criminal Justice (2013) 11 (3): 501-503

David Luban, “After the Honeymoon: Reflections on the Current State of International Criminal Justice” J Int Criminal Justice (2013) 11 (3): 505-515

Payam Akhavan, “The Rise, and Fall, and Rise, of International Criminal Justice” J Int Criminal Justice (2013) 11 (3): 527-536

Naomi Roht-Arriaza ”Just a ‘Bubble’?: Perspectives on the Enforcement of International Criminal Law by National Courts” J Int Criminal Justice (2013) 11 (3): 537-543

William A. Schabas “The Banality of International Justice”, J. Int Criminal Justice (2013) 11 (3): 545-551 3 Kirsten Sellars, “Delegitimizing Aggression: First Steps and False Starts after the First World War” J Int Criminal Justice (2012) 10 (1): 7-40

Gary Bass, Stay the hand of vengeance: the politics of war crimes tribunals (2000)

For those who want a deeper background, the key English-language works in contemporary international law and theory in general, in no particular order, are Martti Koskenniemi’s From Apology to Utopia: The Structure of International Legal Argument, (1989) and (2007, which contains an indispensable epilogue) and his The Gentle Civiliser of Nations (2002); Philip Allott, Eunomia (1997); David Kennedy’s Of Law and War, “Spring Break” and “The Move to Institutions”; Tony Anghie’s Sovereignty; Chris Reus-Smit’s The Moral Theory of the State; Carl Schmitt’s The Nomos of the Earth; James Crawford’s The Creation of States; Susan Marks’ The Riddle of all Constitutions (2003); Tom Franck’s Fairness in International Law (1995); Gerry Simpson’s, Great Powers and Outlaw States (2004); Martin Wight’s “Western Values”; Sundhya Pahuja’s Decolonising International Law (2011) and Anne Orford’s, International Authority and the Responsibility to Protect. Crawford and Koskenniemi, The Cambridge Companion to International Law (2012) is the defining current collection of essays. Susan Marks’ edited volume, International Law on the Left, Fleur Johns et al, Events: The Force of International Law, and Anne Orford’s edited volume International Law and its Others, each contain some excellent work.

Course content is subject to change. Last updated: December 2016

Media

It is also important to read at least one newspaper or journal with a good coverage of international affairs, such as The Guardian, The Economist, The New Left Review, the London Review of Books, The New York Times or Le Monde Diplomatique, or the International Herald Tribune, or to subscribe to the BBC News Feed.

Other Recommended Reading:

(1) Source Material

International Legal Materials (ILM) is published six times a year with a wide variety of contemporary documents; the International Law Reports (ILR) contains the English text of most major cases; there are notes on Australian practice in the Australian Yearbook of International Law, British State practice in the British Year Book of International Law (BY), on United States practice in the American Journal of International Law (AJ) and on contemporary issues in the ‘Current Developments’ section of the International and Comparative Law Quarterly (ICLQ). 4

(2) Periodicals and Law Reports

Journal of International Criminal Justice at http://jicj.oxfordjournals.org/

The principal general international law periodicals to which reference will be made are:

AJ American Journal of International Law [AMER] (also available electronically) BY British Year Book of International Law [K 1 BRIT] CLJ Cambridge Law Journal [CAMB] (available electronically) EJIL European Journal of International Law [EURO] (also available electronically) ICLQ International and Comparative Law Quarterly [INTE] (also available electronically) LQR Law Quarterly Review [LAW] LRIL London Review of International Law MJIL Melbourne Journal of International Law [MELB]

Course content is subject to change. Last updated: December 2016

MLR Modern Law Review [MODE] RC Receuil de cours (text of lectures given at Academy)

Decisions of courts are reported in the main systems of law reports. International decisions are usually in the following series:

ICJ International Court of Justice Reports (eg ICJ Reps, 1996, p. 457) ILR International Law Reports (eg 98 ILR 456 – arranged by volume number, not date)

(3) Websites

Dozens of websites provide information on international law but the following are particularly useful:

ICTY: www.icty.org ICC: https://www.icc-cpi.int/

The Hague Justice Portal http://www.haguejusticeportal.net/index.php?id=1974 5 United Nations: http://www.un.org International Court of Justice: http://www.icj-cij.org American Society of International Law: http://www.asil.org Lauterpacht Research Centre: http://www.law.cam.ac.uk/rcil/home European Journal of International Law: http://www.ejil.org

Course content is subject to change. Last updated: December 2016

Lecture Outline:

Week One Subject Lecture Date

Concepts of International What is going on in international criminal law? Why is Mon Criminal Law there so much of it? What happened when it didn’t yet exist (i.e. prior to, say, 1919)? What has changed? Are these unequivocally positive developments?

Why international criminal law? Why international criminal law? Why international criminal law?

History of International In this session we consider the origins of ICL in the Tues Criminal Law: Versailles work of the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties at Versailles after the Great War. What is at stake in the disagreements between the majority and minority at Versailles? How does the Great War 6 carnage play out in the arguments of the parties? What does the Treaty of Versailles say about war crimes?

History of International In this session we will examine the influence of the Wed Criminal Law: Nuremburg Nuremberg and of the Tokyo Trials to the and Tokyo development of International Criminal Law before going on - in later classes - to consider the way in which these two landmarks led to the adoption of the UN Convention against Genocide (1948), the work of the General Assembly and of the International Law Commission, the Geneva Conventions of 1949, the Additional Protocols of 1977 and the UN Convention against Torture (1984).

Is it all Victors’ Justice? Why shouldn’t it be victors’ justice? Does the answer depend on the nature of the victors? Or some abstract principle? Or the type of

Course content is subject to change. Last updated: December 2016

war? Or a commitment to liberal legalism (Bass) or illiberal legalism (international criminal law’s critics)? Is it all an ex post facto application of law? Are the Nuremberg and Tokyo Trials procedurally dubious? Fatally so? Just politics in another guise? Is criminal prosecution the answer to the problem of international crime? Is it all “just politics”? None of it? Some of it?

Crimes: Piracy Why was piracy the first crime? Is universal jurisdiction Thurs the same as international crime? Were pirates heinous? Is “heinousness” the test? Or something else altogether? What distinguishes our enemies from criminals? Does international criminal law do this? Does the “war on terror”? Is terrorism a crime under international law? Are terrorists latter-day pirates? Compare the U.S. Dissent at Versailles to the U.S. opposition to the ICC. 7

Universal Jurisdiction What is the difference between international and Friday universal jurisdiction? Why not universal universal jurisdiction? Are there dangers in this as judicial policy? Is it judicial imperialism? What does the Pinochet case say universal jurisdiction? Does the Torture Convention indicate a preference for territorial jurisdiction? For universal jurisdiction? Civil suits under Article 14? International prosecutions? What does it have to say about immunity? Is there “enough” jurisdiction? Too much “immunity”?

Crimes: Genocide What does “genocide” add to the existing crimes Mon (crimes against humanity, war crimes etc)? What is the special significance of the crime? What is especially injurious about having “an intent to destroy in whole or in part…”? Isn’t it almost impossible to prove intent? Can intent be inferred from act? If so, why “intent”?

Course content is subject to change. Last updated: December 2016

Crimes: Crimes Against What are the three essential elements of a crime Tues Humanity against humanity? Why widespread and/or systematic? Why crimes against humanity? What does “humanity” mean here? Why offer civilian populations special protections? Was the 2001 attack on the Pentagon a crime against humanity? Or an act of war? Was it illegal under international law? The Twin Towers attack?

Crimes: The Crime of The International Military Tribunals at Nuremberg and Wed Aggression Tokyo tried and convicted German and Japanese defendants for their involvement in planning, instigating and waging aggressive war. Since then there has been some controversy surrounding the crime of aggression in international criminal and no- one has been charged with the crime since the end of World War II. Until the recent Kampala Agreement (2010), efforts to define the crime of aggression since Nuremberg and Tokyo had failed to achieve consensus. The Rome Statute allows for the future 8 prosecution of the crime after 2017. Meanwhile, suggestions that, for example, coalition governments responsible for the invasion of Iraq without UN Security Council authorisation are also responsible for perpetrating the international crime of aggression continue to provoke controversy.

Crimes: War Crimes Do we still need “war crimes”? What does this Thurs category add to crimes against humanity or aggression or genocide? Does it refer to a series of lesser crimes? What is the distinction between “War crimes” and “Grave breaches” of the Geneva Conventions and their Additional Protocols? Why does the distinction between the law regulating international armed conflict and the law regulating non-international armed conflict matter so much? What about the repression of violations of international humanitarian

Course content is subject to change. Last updated: December 2016

law not qualified as grave breaches? What would the laws of war look like without the law of war crimes?

Immunity Why should people be immune? What general Mon principles can be drawn about the immunity of Heads of State before national courts, and their immunity before international criminal tribunals? What about other government officials? Is it relevant whether the person in question is still employed in their official government capacity, or has finished their term of office?

The International The Rome Statute of the ICC was finalised at a UN- Tues Criminal Court sponsored diplomatic conference signed in July 1998 and entered into force in July 2002. Since 2003 the Court has been working on a number of cases, several of which were referred by the ICC States Parties and two of which were referred by the UN Security Council (Darfur, Sudan and Benghazi, Libya). This session will consider some fundamental issues relating to the 9 process leading to the setting up of the Court (the work of the UN General Assembly, most notably the International Law Commission and the Preparatory Committee; the Rome Conference and Preparatory Commission) as well as general issues concerning the work of the Court (ICC jurisdiction, admissibility and procedure; the composition and functioning of the Court; and prosecutorial discretion).

Impunity A Reading of Professor Simpson’s latest essay: Anti- Wed Anti-Anti-Impunity

Revision Revision Lecture Thurs

Course content is subject to change. Last updated: December 2016

INDICATIVE READINGS

Week One:

Concepts

Simpson, Law, War and Crime (2007) (Chapter One) Simpson, “Atrocity, Law, Humanity” in Cambridge Companion to Human Rights Law (eds. Gearty and Douzinas), 2013

History: Versailles

Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties, Report 10 Presented to the Preliminary Peace Conference, March 29, 1919, 14 American Journal of International Law, Supplement (1920) 95-98,107,112-125 and Annex II, Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, April 4, 1919, ibidem, 127, 135-154 (1919) Kirsten Sellars, “Delegitimizing Aggression: First Steps and False Starts after the First World War” J Int Criminal Justice (2012) 10 (1): 7-40

Gary Bass, Stay the hand of vengeance: the politics of war crimes tribunals (2000)

History: Nuremberg and Tokyo.

London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, and Charter of the International Military Tribunal at Nuremberg, 8 August 1945, 82 United Nations Treaty Series 279-285 PM International Military Tribunal for the Far East (IMTFE) Charter (Tokyo Tribunal Charter) (1945) PM

Course content is subject to change. Last updated: December 2016

Crimes: Piracy Simpson, Law, War and Crime, Chapter Seven (2007) United Nations Convention on the Law of the Sea, 1982, Articles 100-107, 21 ILM 1261 Security Council Res. 1851 (Dec. 16, 2008) Republic of Bolivia v. Indemnity Mutual Marine Assurance Co., (1909) 1 KB 785 (Westlaw) (surnames A-H) E. Kontorovich, “Piracy off the Coast of Somalia”, ASIL Insights, 2009

Universal Jurisdiction Attorney-General of the Government of Israel v. Adolf Eichmann, Israel, District Court of Jerusalem, December 12 1961, 36 International Law Reports (1961) PARAS: 1-3, 7, 11-13, 19-22, 25, 30, 33, 36-37, and verdict. PM Jones v Saudi Arabia [2006] UKHL 26, para 15-28 (see extract from Session One)* War Crimes Act (UK) (1991) and Criminal Justice Act (UK) (1988) s134

Week Two:

11 Crimes: Genocide Convention on the Prevention and Punishment of the Crime of Genocide, 78 United Nations Treaty Series 277 PM Prosecutor v Krajisnik, ICTY Case No 00-39-T, Trial Chamber, Judgment of 27 September, 2006 at paras 850- 869 PM Prosecutor v Bashir ICC Prosecutor v Stakic, ICTY Case No 97-24-A, Appeal Chamber, Judgment of 22 March, 2006 at paras 14-36 (defining target group); paras 37-57 (mens rea) PM

Crimes: Crimes Against Humanity Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984) Jones v Saudi Arabia [2006] UKHL 26, para 15-28 Prosecutor v Stakic, ICTY Case No 97-24-A, Appeal Chamber, Judgment of 22 March, 2006 paras 245-264. Prosecutor v Krajisnik, ICTY Case No 00-39-T, Trial Chamber, Judgment of 27 September, 2006 paras 702- 713. Prosecutor v Mrksic, ICTY Case No 95-13-1A, Appeal Chamber Judgment of May 5, 2009 (Vukovar Hospital Case) at 19-44 (civilians as victims)

Course content is subject to change. Last updated: December 2016

Crimes: Aggression R v Jones [2006] UKHL 16 at PM (see Session One) Rome Statute 1998 Article 5(2) Kampala Agreement on Aggression (RC/Res6) (2010) at Treaty of Versailles, Articles 227-230 at PM * General Assembly Resolution 3314 (1974) at PM * Gerry Simpson, ‘ “Stop Calling it Aggression”: War as Crime’, Current Legal Problems (2008)

Crimes: War Crimes Rome Statute Article 8. PM Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field of August 12, 1949, art 1-3, 49-52 PM Geneva Convention relative to the treatment of prisoners of war of August 12, 1949, art. 4, 130 PM Geneva Convention relative to the protection of civilian person in time of war of August 12, 1949, art 4, 147 PM Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977, art 85 PM

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Week Three:

Immunities

Germany v Italy ICJ (2008) (see earlier) Prosecutor v. Slobodan Milosevic, ICTY Case No. IT-02-54, Trial Chamber Decision on Preliminary Motions (“Kosovo”), 8 November 2001 [Excerpts] PM Arrest Warrant Case (DRC v Belgium), ICJ Reports (2001) (Separate Opinion of Higgins, Kooijmans and Burgenthal) at paras 66-85

The International Criminal Court Rome Statute of the International Criminal Court PM Mireille Delmas-Marty “Ambiguities and Lacunae: The International Criminal Court Ten Years on J Int Criminal Justice (2013) 11 (3): 553-561 (On Line)

Course content is subject to change. Last updated: December 2016

Impunity

Gerry Simpson, “Anti-Anti-Anti-Impunity” (forthcoming, 2017)

Revision

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Credit Transfer: If you are hoping to earn credit by taking this course, please ensure that you confirm it is eligible for credit transfer well in advance of the start date. Please discuss this directly with your home institution or Study Abroad Advisor. As a guide, our LSE Summer School courses are typically eligible for three or four credits within the US system and 7.5 ECTS in Europe. Different institutions and countries can, and will, vary. You will receive a digital transcript and a printed certificate following your successful completion of the course in order to make arrangements for transfer of credit. If you have any queries, please direct them to [email protected]

Course content is subject to change. Last updated: December 2016