Historical Origins of International Criminal Law: Volume 1 Morten Bergsmo, CHEAH Wui Ling and YI Ping (Editors)

Historical Origins of International Criminal Law: Volume 1 Morten Bergsmo, CHEAH Wui Ling and YI Ping (editors) E-Offprint: Geoffrey Robertson, “Foreword”, in Morten Bergsmo, CHEAH Wui Ling and YI Ping (editors), Historical Origins of International Criminal Law: Volume 1, FICHL Publication Series No. 20 (2014), Torkel Opsahl Academic EPublisher, Brussels, ISBN 978-82-93081-11-1. First published on 12 December 2014. This publication and other TOAEP publications may be openly accessed and downloaded through the website www.fichl.org. This site uses Persistent URLs (PURL) for all publications it makes available. The URLs of these publications will not be changed. Printed copies may be ordered through online distributors such as www.amazon.co.uk. © Torkel Opsahl Academic EPublisher, 2014. All rights are reserved. FOREWORD BY GEOFFREY ROBERTSON QC It is a privilege to introduce this important anthology on historical origins of international criminal law, which honours the memory of Judge LI Haopei through the 2014 LI Haopei Seminar. A distinguished diplomat and professor of international law, he lent academic credibility to the International Criminal Tribunal for the former Yugoslavia when, at the age of 87, he became a member of its first bench. His warning in that court’s first case, that judges should not stray beyond their competence as lawyers into political jungles where they were likely to get lost, laid down a challenge to his brethren that they must constantly keep in mind. His very presence, in those years, was a comforting signal that whatever China’s reluctance to approve humanitarian incursions on state sovereignty, it was nonetheless willing to abide by – and to participate in – the enforcement of a new international criminal law that had been too long absent from the world since it was apparently discovered at Nuremberg. There is a widespread belief that this all began at the London Conference in 1945, and was created by Robert H. Jackson and Harry S. Truman over the objections of Winston Churchill and the British. There was, indeed, a political deadlock between those two allies: Churchill wanted to give the captured Nazi leaders six hours to say their prayers before putting them in front of a firing squad. Truman famously responded that this course “would not sit easily on the American conscience or be remembered by our children with pride”. They had to be given a trial “as dispassionate as the times and horrors we deal with will permit, with a record that will leave our reasons and motives clear”. The deadlock was broken by the third ally: Joseph Stalin loved show trials, as long as everyone was shot at the end. From his somewhat bloodthirsty vote, the Nuremberg trials proceeded. But Nuremberg had been preceded by the remarkable work of the United Nations War Crimes Commission on international law, fashioning centuries-old war crimes law into an instrument for prosecuting and punishing military leaders who had caused untold suffering, especially in Eastern Europe and China. It took up the baton which had been dropped by Woodrow Wilson at Versailles, when he invoked sovereign immunity and refused to allow prosecutions of the Kaiser for aggressively invading vii Belgium and instigating unrestricted submarine warfare – a demand for justice made then by the British, under the vengeful slogan “Hang the Kaiser”. Article 227 of the Versailles Treaty actually set up an international criminal court – five judges, from Britain, the US, Japan, France and Italy – that never sat. The Kaiser remained unhung and lived happily ever after as a guest of the Dutch government, leaving us with one of history’s great hypotheticals: Would Hitler have been given pause had the Kaiser been put on trial? Articles 228 and 229 provided that Germany should try its own war criminals, and “losers’ justice” went on display at Leipzig. Of 901 defendants, 888 were acquitted, and the rest were allowed to escape. These failures to envisage, let alone to find any means to enforce, international criminal justice were compounded by the abject failure to punish the authors of the Armenian massacres. These were the first atrocities to be denounced as a “crime against humanity” at an international conference in 1915 – a Grotian moment that came when the draft resolution put forward by Britain and France to condemn “a crime against Christianity” was amended by Russia to read “a crime against humanity”. But nemesis never took wing. Britain removed the Young Turks for trial in Malta, but could not work out how international law could punish state officials for obeying their state and killing their own people. They were guilty, Churchill said, of a “crime without a name” and it took international justice 30 years to find that name, with the help of the scholar Raphael Lemkin. It was the name for a crime that goes back to the destruction of Carthage. At least the Armenian genocide is well known – thanks to Turkey’s disgraceful refusal to acknowledge the genocidal truth of Ottoman conduct. In this, Turkey parallels Japan, which whitewashed the bestial treatment of its prisoners of war and its “comfort women”, and honours the graves of those responsible for atrocities in the Asia-Pacific. How much is this a consequence of the misbegotten Tokyo trial, which maintained the dishonest pretence that Emperor Hirohito – that worst of war criminals – was totally innocent? As a result of a legally orchestrated lie, this wicked man was kept on his throne – in the 1970s he travelled to Britain to meet the Queen, to Washington to meet Henry Kissinger, and to Los Angeles to meet Mickey Mouse. His impunity led his people to believe that they had every right to whitewash their school textbooks and honour the graves of their criminal commanders, whose guilt was proven but never published because the Allies were so embarrassed at rigging the evidence to exculpate Hirohito that they made no attempt to publicise the viii reasoning of the Tokyo and other military tribunals, thus helping modern Japan to consign them to oblivion. That is why it is so important that this anthology includes examples of the scholarship which is beginning to illuminate, for example, the record of Australian military tribunals which condemned Japanese commanders who marched prisoners to their death, and the Russian court which tried the scientists of Unit 731 in Manchuria, where experiments took place that were more hideous than Josef Mengele ever envisaged. Unlike Germany, Turkey and Japan have not faced up to their historical demons. It is the task of international law scholarship to reincarnate their commanders, to place them in the dock of history and to assist our understanding of how best to deal with any who emulate their crimes in future. The cases examined in this anthology show the striving of humankind to find a satisfactory intellectual and practical basis to bring to justice the perpetrators of torture and mass murder, when these crimes are ordered or supported by a sovereign state. We can trace the roots of international criminal justice back to the Roman lawyers who identified jus gentium – rules they found to be common to all societies, for which reason they had a specially binding quality. Not because of their intrinsic or self-evident merit, but simply because they were in service in all civilised societies. This did not, of course, take the ancient world very far, and never made a theoretical leap to the idea of universal jurisdiction. Later, the power of great religions led to some regional enforcement of rules from the Bible and the Qu’ran, with Canon law laid down by the Pope and Sharia law practised through the mosques. The Catholic Inquisition and Muslim apostasy laws crossed state borders. Religion influenced the customs of war: the first war crime was declared by the Lateran Council in 1139, to punish those who used crossbows in wars between Christians. Thereafter, war law developed apace – there were lots of wars in Europe to develop it. Christian soldiers in the fifteenth century were punished for desecrating churches and killing prisoners, while Shakespeare’s pedantic Welsh Captain, Fluellen, could, by 1590, point out that killing the boys in the baggage train was “expressly against the law of arms”. But although you could always kill a prince on the battlefield, and hold him as a hostage, you were not allowed to put him on trial. Rulers were appointed by God, and had sovereign immunity, a position declared in 1648 by the Treaty of Westphalia. This Treaty was the foundation of international law in Europe, based on the divine right of Kings and the principle of non-intervention in their behaviour, however ix barbaric towards their own subjects. The best thing about the Treaty of Westphalia was that England was not part of it. When Charles I was brought to trial in 1649, his first words to his judges were these: “I would know by what power I am called hither – by what lawful authority?” These were the same words, in translation, that Milošević hurled at his international jurists and that Saddam Hussein flung at his local judges. The simple answer – you are called before the power that has supplanted yours – is now inadequate to explain the power that is international criminal law, a power that much depends on moral suasion and on concerns about history repeating itself (Nunca Mas!), and which actually draws strength from the increasing doubt about the existence of a vengeful God. We no longer believe in Hell – a place that would be in any event contrary to the Torture Convention – or that murderers will receive justice in the hereafter. International criminal law is fortified by the increasing belief that they either receive it on earth, or not at all.

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