Michael P. Scharf

Peace with Justice? War Crimes and Accountability in the Former Yugoslavia

Part 1 Part I: Structuring an Inquiry into the Role of Justice During the Peace-building Process Chapter 2 The Cognitive Contextual Process: Melding International Relations and International Legal Theory Chapter 3 Justice and Anti-Justice: The Functions of Accountability in the Peace-building Process Chapter 4 Peace vs. Justice: The Relationship between Accountability and Other Relevant Peace-building Approaches Part 5 Part II: Precursors to Justice: Self-Identity, Political Will, and Moral Obligation in the Peace-building Process Chapter 6 The Road to War: War Crimes and the Crime of War in Yugoslavia Chapter 7 The International Response: Self-Interest Wrongly Understood Part 8 Part III: Creating and Employing Justice Based Institutions During the Initial Phases of the Peace-building Process Chapter 9 Establishing the Yugoslav War Crimes Commission and Yugoslav Tribunal: A Judicial Placebo Chapter 10 The Operation of the Yugoslav Tribunal: A Record of Self-Imposed Limits Chapter 11 The International Court of Justice: A Blunt Tool for Peace-building Part 12 Part IV: The Role of Justice in the Negotiation Phase of Peace Building Chapter 13 The Dayton Negotiations: Getting to Yes with War Criminals Chapter 14 Seeking Peace in Kosovo: The Relegation of Justice Chapter 15 The Rambouillet/Paris Negotiations: From Coercive Appeasement to Humanitarian Intervention Part 16 Part V: The Role of Justice in the Implementation Phase of Peace-building Chapter 17 Apprehending War Criminals: Mission Creep or Mission Impossible? Chapter 18 Linking Justice and Economic Inducements: A Road to Peace Chapter 19 The Cohabitation of Justice and Peace: Concluding Observations

The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes

In the past several years, Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Uruguay, and South Africa have each granted amnesty to members of the former regime that commanded death squads that tortured and killed thousands of civilians within their respective countries. With respect to four of these countries (Cambodia, El Salvador, Haiti, and South Africa), the United Nations pushed for, helped negotiate, and/or endorsed the granting of amnesty as a means of restoring peace and democratic government. At the preparatory conference for the establishment of a permanent international criminal court in August 1997, the U.S. Delegation circulated a paper suggesting that the proposed permanent court should take into account such amnesties in the interest of international peace and national reconciliation when deciding whether to prosecute. Numerous scholars have made the case against granting amnesty to those who commit violations of international humanitarian law (the laws of war), or who commit other serious human rights crimes (genocide, torture, and crimes

An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia: A Documentary History and Analysis

Preface Foreword Table of Abbreviations Table of Authorities Chapter I - The Contemporary ICT: Distinctions and Main Characteristics Chapter II - Classification and identification of the Major International Crimes by ICT Chapter III - General Principles of Substantive Criminal Law Envisioned by ICT Chapter IV - General Principles of Procedural Criminal Law Envisioned by ICT Chapter V - Principles of Criminal Evidence Before ICT Chapter VI - The Emergence of Uniform Standards of Due Process Before ICT Influence on (Inter)national Criminal Law(s) Chapter VII - International State Cooperation With ICT: Obtaining (Forensic) Evidence Abroad Chapter VIII - Redressing Wrongful Prosecutions and Convictions or Miscarriages of Justice by ICT Appendix Bibliography Index.

Custom's Future: International Law in a Changing World. Edited by Curtis A. Bradley. Cambridge, New York: Cambridge University Press, 2016. Pp. xii, 379. Index.

the Court in Oil Platforms, the Israeli Wall advisory opinion, Genocide (Bosnia v. Serbia), Merits, and others receive similar scrutiny and criticism. This chapter also presents the author’s view that a number of the Court’s exercises in treaty interpretation failed to apply, or to apply properly, the rules of treaty interpretation set forth in Articles 31–32 of the Vienna Convention on the Law of Treaties. Among the cases receiving unfavorable attention in this regard are Certain Expenses,21 LaGrand,22 Avena,23 Israeli Wall, and Genocide (Bosnia v. Serbia), Merits. The chapter concludes with the author’s reflections on a number of outcomes that he regards as having been shaped by “strategic” concerns involving the Court’s own institutional interests, not necessarily rigorous legal analysis (pp. 325–36). Weisburd’s fifth and final chapter seeks to explain the reasons for what are seen as the Court’s “performance problems,” offering “with some trepidation” (pp. 339–40) possible explanations of varying persuasiveness. These lead, in the author’s view, to an inference that “the Court is not really independent, free to decide cases, without considering any issue beyond the legal merits” (p. 362). Given its role as an organ of the United Nations, facing a caseload that increasingly presents legal issues with significant political overtones, and reluctant to accept a doctrine of justiciability that recognizes courts’ institutional limitations, “the Court will have reason to avoid rendering judgments that will anger significant groups of states, are likely to be disobeyed, or that can lead to negative consequences for which it does not care to take responsibility” (p. 363). Readers may not agree with the author’s positivist view of international law, or accept his overall assessment of the Court and its work. Neither is required in order to benefit from this well-written book. The ICJ is, after all, a court. It is fair and useful to subject any court’s procedure, fact-finding, and legal analysis to careful analysis from the perspective of legal craft. That is what the work largely accomplishes. The author, an international lawyer, but clearly of the common law persuasion, subjects a significant cross section of the Court’s work to a common lawyer’s critical search for rigor, consistency, and coherence. He finds some of it seriously wanting. Many specific criticisms of the Court’s past work come unsettlingly close to the mark. Both the author’s criticisms and conclusions are clearly presented for readers to assess and accept or reject. The previous paragraph referred to “some” of the Court’s work. It should be noted that, except for a critical discussion of the Court’s 2014 decision in Peru v. Chile,24 Weisburd has relatively little to say about the Court’s work in addressing land and maritime boundaries, which, after all, constitutes half or more of its workload. (The author notes that seven of the eleven active cases pending at the time of writing involved either territorial disputes or maritime delimitations.) These are cited as evidence that states will “invoke the Court’s jurisdiction only in cases they can either afford to lose entirely or in which they expect that the Court will not leave either party completely empty-handed” (p. 364). Libya and Chad, Cameroon and Nigeria, the United States and Canada, and many other states that have resorted to the Court to resolve vexing boundary or delimitation disputes may find this a bit glib.

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This book chapter was published as Chapter 11 in the Cambridge University Press Volume entitled Forging a Convention for Crimes Against Humanity. The Crimes Against Humanity convention project was conceived to provide a gap-filling convention in the pantheon of international agreements regulating atrocity crimes, and this commissioned chapter addresses the debate whether terrorist crimes should be characterized within the overall rubric of crimes against humanity. The authors can imagine some theoretical advantages to characterizing some incidents of terrorism as a new discrete crime against humanity. For example, this would create universal jurisdiction (and trigger a duty to prosecute or extradite) at the national level with respect to terrorist acts that are not presently covered by the laws of war or one of the dozen multilateral antiterrorism conventions in peacetime. It would also create uniformity of jurisdiction and prosecutorial obligation with regard to any States that have ratified the Proposed Crimes Against Humanity Convention to supplement the likelihood of prosecution when domestic prosecution under existing statute or extradition to another State are legally or politically unfeasible. There are, nevertheless, no compelling values served by deeming terrorism as a crime against humanity through the vehicle of a new Convention. Indeed, in the opinion of the authors, the creation of a wholly new specified offense under the rubric of crimes against humanity is inadvisable for several reasons. First, most widespread terrorist acts are already covered by the laws of war or would constitute the existing crime against humanity of murder, without having to address the thorny definitional question of what is terrorism. There are no lacunae that can be constructively addressed. As a matter of qualitative jurisprudence, terrorist offenses are on substantive par with the grave breaches provisions of the 1949 Geneva Conventions, the 1948 Genocide Convention, and the provisions of the Torture Convention; the same aut dedere aut punire obligation that applies to grave breaches, genocide, and torture also applies to terrorism covered by the international conventions. Second, the determination of whether an alleged act short of mass murder (such as systematic kidnappings by a terrorist group) qualifies as a particular crime within the established array of crimes against humanity is best handled as a judicial determination made on a case-by-case basis, taking into account the nature of the alleged act, the context in which it took place, the personal circumstances of the victims, and the physical, mental, and moral effects of the perpetrator’s conduct upon the victims. Finally, the effort to achieve international consensus on the inclusion of a specific crime against humanity of “terrorism” would introduce a whole new level of uncertainty and politicization into the existing legal structures and definitions.