Accountability for Human Rights Atrocities in International Law Beyond the Nuremberg Legacy

by Ratner, Steven R.; Abrams, Jason; Bischoff, James

• ISBN13: 9780199546664
• ISBN10: 0199546665
• Edition: 3rd
• Format: Hardcover
• Copyright: 2009-04-15
• Publisher: Oxford University Press

Summary

The fall of dictatorial regimes and the eruption of destructive civil conflicts around the world have led to calls for holding individuals accountable for human rights atrocities. This book offers a comprehensive study of the promise and limitations of international criminal law as a means of enforcing international human rights and humanitarian law. It provides a searching analysis of the principal crimes under the law of nations, such as genocide and crimes against humanity and an appraisal of the most important prosecutorial and other mechanisms developed to bring individuals to justice. After applying their conclusions in a detailed case study, the authors offer a series of compelling conclusions on the prospects for accountability. This fully updated new edition also contains expanded coverage of the increasing numbers of international criminal trials including the cases of Bosnia, Serbia, and East Timor. It also explores individual accountability for terrorist acts and accountability for acts undertaken in the name of counter-terrorism policy, and provides expanded coverage of aggression and crimes against peace.

Author Biography

Steven R. Ratner is Professor of Law at the University of Michigan Law School. He was previously the Albert Sidney Burleson Professor in Law at the University of Texas School of Law (Austin) and an Attorney-Adviser in the Office of the Legal Adviser at the U.S. State Department. Jason S. Abrams is an international lawyer residing in New York City. He has served as Legal Officer, Policy Coordination Officer and Consultant to the United Nations. His work has included private international matters involving UN Headquarters and Peacekeeping Missions, landmines, and management reform initiatives. Earlier in his career, Mr. Abrams was an Attorney-Adviser for the U.S. Department of State.

James L. Bischoff is a Law Clerk in the Chambers of the Honorable Juan R. Torruella of the United States Court of Appeals for the First Circuit. He previously worked as an Associate Legal Officer at the ICTY and served on the Secretariat of the standing committee charged with proposing amendments to the Tribunal's Rules of Procedure and Evidence.

Table of Contents

Abbreviations and Shorthand Forms in Footnotes	p. xiii
Acknowledgements	p. xv
Table of Authorities	p. xix
Introduction	p. xlv
Substantive Law
Individual Accountability for Human Rights Abuses: Historical and Legal Underpinnings	p. 3
A Brief History of Individual Accountability	p. 3
Four Bodies of Law	p. 9
The Nature of Legal Responsibility	p. 15
Individual Accountability as a Holistic Framework	p. 17
Methodology and Sources of International Law	p. 19
The Principles of Legality: Nullum Crimen Sine Lege and Related Concepts	p. 23
A Word on Cultural Relativism	p. 26
Genocide and the Imperfections of Codification	p. 27
Background and Preparation of the Genocide Convention	p. 27
Definition of Genocide	p. 30
Incitment to Genocide	p. 42
Genocide under Customary International Law	p. 42
Theoretical and Practical Challenges	p. 44
Crimes Against Humanity and the Inexactitude of Custom	p. 48
Evolution of the Concept	p. 48
Core Definitional Issues: Elements of the International Crime	p. 51
Offenses Constituting Crimes Against Humanity	p. 70
Theoretical and Practical Challenges	p. 79
War Crimes and the Limitations of Accountability for Acts in Armed Conflict	p. 82
From Ancient Origins to Modern Codes	p. 82
Offenses during International Conflicts	p. 85
Offenses during Non-International Conflicts	p. 98
Afterword on Destruction of Cultural Property	p. 110
Other Abuses Incurring Individual Responsibility Under International Law	p. 114
Slavery and Forced Labor	p. 115
Torture	p. 121
Racial Discrimination and Apartheid	p. 125
Forced Disappearances	p. 128
Terrorism	p. 130
A Brief Word on Crimes Against Peace	p. 136
Expanding and Contracting Culpability: Complicity, Defenses, and Other Barriers to Criminality	p. 141
Forms of Individual Criminal Responsibility	p. 141
Defenses under International Law	p. 150
Statutes of Limitations	p. 158
Theoretical and Practical Challenges	p. 161
Mechanisms for Accountability
Mechanisms for Accountability: Framing the Issues	p. 167
Legal Requirements of Individual Accountability	p. 167
Accountability in Context	p. 171
The Forum of First Resort: National Tribunals	p. 177
A Jurisdictional Primer	p. 177
Prosecutions before National Tribunals: Four Contemporary Cases	p. 185
Prosecutions before National Courts of Other States	p. 198
Opportunities and Challenges	p. 203
The Progeny of Nuremberg: International Criminal Tribunals	p. 209
The Nuremberg and Related Tribunals	p. 209
The International Criminal Tribunal for the Former Yugoslavia	p. 212
International Criminal Tribunal for Rwanda	p. 223
The International Criminal Court	p. 230
Hybrid or Internationalized Tribunals	p. 246
Opportunities and Challenges	p. 251
Afterword on the International Court of Justice and Regional Human Rights Courts	p. 256
Non-Prosecutorial Options: Investigatory Commissions, Civil Suits, Immigration Measures, and Lustration	p. 259
Investigatory Commissions: Accountability through Truth and Acknowledgment	p. 259
Civil Suits: An Alternative Day in Court for Victims	p. 272
Immigration Measures: Denying Refuge to Offenders	p. 281
A Word on Lustration	p. 285
Developing the Case: Comments on Evidence and Judicial Assistance	p. 288
Evidence: A Dearth of Uniform Standards	p. 288
Judicial Assistance and the Limits of International Cooperation	p. 294
A Case Study: The Atrocities of the Khmer Rouge
The Khmer Rouge Rule over Cambodia: A Historical Overview	p. 305
The Philosophy and Structure of the Khmer Rouge	p. 306
The Pattern of Abuses	p. 308
Hostilities with Vietnam	p. 314
The Khmer Rouge since 1979	p. 315
Applying the Law	p. 319
Genocide	p. 320
Crimes Against Humanity	p. 323
War Crimes	p. 325
Other Acts Incurring Individual Criminal Responsibility	p. 329
Defenses	p. 333
Crimes under Cambodian Law	p. 333
Engaging the Mechanisms	p. 341
Framing the Options	p. 341
National Trials	p. 344
International Criminal Tribunals	p. 349
The Option Realized: A Hybrid Tribunal	p. 350
Investigatory Commissions	p. 354
Civil Suits	p. 355
Immigration Measures	p. 356
Lustration	p. 357
International Court of Justice	p. 358
Evidence and Judicial Assistance	p. 358
Conclusions
Striving for Justice: The Prospects for Individual Accountability	p. 365
The State of the Law	p. 365
The Processes for Pursuing Justice	p. 369
The Fate of Individual Accountability: A Word of Caution	p. 376
Appendices
Charter of the International Military Tribunal at Nuremberg	p. 380
Allied Control Council Law No. 10	p. 382
Convention on the Prevention and Punishment of the Crime of Genocide	p. 384
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field	p. 385
Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea	p. 387
Geneva Convention (III) Relative to the Treatment of Prisoners of War	p. 387
Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War	p. 388
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery	p. 388
International Covenant on Civil and Political Rights	p. 389
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity	p. 390
International Convention on the Suppression and Punishment of the Crime of Apartheid	p. 391
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)	p. 393
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)	p. 395
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	p. 396
Statute of the International Criminal Tribunal for the Former Yugoslavia	p. 397
Statute of the International Criminal Tribunal for Rwanda	p. 402
International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind	p. 403
Statute of the International Criminal Court	p. 407
United States Alien Tort Claims Act	p. 427
United States Torture Victim Protection Act	p. 427
Bibliography	p. 429
Index	p. 473
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