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

by Ratner, Steven R.; Abrams, Jason S.

• ISBN13: 9780198265504
• ISBN10: 0198265506
• Format: Hardcover
• Copyright: 1998-01-08
• Publisher: Oxford University Press

Summary

Fifty years after the Nuremberg and Tokyo trials, nations worldwide still struggle with the necessity of holding individuals accountable for human rights violations. This book offers an unprecedented progress report on this crucial enterprise. After examining the scope of international crime, the mechanisms created by states for enforcing laws, and the practical difficulties of applying such laws, the authors conclude their comprehensive study with an important assessment of the future of accountability.

Author Biography

About the Authors
Steven R. Ratner is Professor of Law at the University of Texas School of Law.
Jason S. Abrams is a Legal Officer with the Office of Legal Affairs at the United Nations.

Table of Contents

Abbreviations and Shorthand Forms in Footnotes	xiv	(3)
Table of Authorities	xvii	(14)
Introduction	xxxi
PART I: SUBSTANTIVE LAW	1	(130)
1 Individual Accountability for Human Rights Abuses: Historical and Legal Underpinnings	3	(21)
A Brief History of Individual Accountability	3	(5)
Four Bodies of Law	8	(5)
The Nature of Responsibility	13	(3)
Methodology and Sources of International Law	16	(3)
The Principles of Legality: Nullum Crimen Sine Lege and Related Concepts	19	(3)
A Word on Cultural Relativism	22	(2)
2 Genocide and the Imperfections of Codification	24	(21)
Background and Preparation of the Genocide Convention	24	(3)
Definition of Genocide	27	(11)
Reservations to the Genocide Convention	38	(1)
Recent Jurisprudential Developments	39	(1)
Genocide under Customary International Law	40	(1)
Theoretical and Practical Challenges	41	(4)
3 Crimes Against Humanity and the Inexactitude of Custom	45	(33)
Evolution of the Concept	45	(3)
Core Definitional Issues: Elements of the International Crime	48	(19)
Acts Constituting Crimes Against Humanity	67	(7)
Theoretical and Practical Challenges	74	(4)
4 War Crimes and the Limitations of Accountability for Acts in Armed Conflict	78	(26)
From Ancient Origins to Modern Codes	78	(3)
Offenses During International Conflicts	81	(10)
Offenses During Non-International Conflicts	91	(10)
Afterword on Destruction of Cultural Property	101	(3)
5 Other Abuses Incurring Individual Responsibility Under International Law	104	(14)
Slavery and Forced Labor	105	(5)
Torture	110	(3)
Racial Discrimination and Apartheid	113	(3)
Forced Disappearances	116	(2)
6 Expanding and Contracting Culpability: Related Crimes, Defenses, and Other Barriers to Criminality	118	(13)
Related Crimes	118	(3)
Appraising the Defenses under International Law	121	(4)
Statutes of Limitations	125	(2)
Theoretical and Practical Challenges	127	(4)
PART II: MECHANISMS FOR ACCOUNTABILITY	131	(96)
7 Mechanisms for Accountability: Framing the Issues	133	(6)
8 The Forum of First Resort: National Tribunals	139	(23)
A Jurisdictional Primer	139	(7)
Precedents for Prosecutions Before National Courts: Four Recent Cases	146	(10)
Prosecutions Before National Courts of Other States	156	(3)
Opportunities and Challenges	159	(3)
9 The Progeny of Nuremberg: International Criminal Tribunals	162	(31)
The Nuremberg and Related Tribunals	162	(3)
The International Tribunal for the Former Yugoslavia	165	(8)
The International Tribunal for Rwanda	173	(4)
Toward a Permanent International Criminal Court	177	(7)
Opportunities and Challenges	184	(5)
Afterword on the International Court of Justice and Regional Human Rights Courts	189	(4)
10 Non-Prosecutorial Options: Investigatory Commissions, Civil Suits, and Immigration Measures	193	(23)
Investigatory Commissions: Accountability Through Truth and Acknowledgment	193	(11)
Civil Suits: An Alternative Day in Court for Victims	204	(8)
Immigration Measures: Denying Refuge to Offenders	212	(4)
11 Developing the Case: Comments on Evidence and Judicial Assistance	216	(11)
Evidence: A Dearth of Uniform Standards	216	(4)
Judicial Assistance and the Limits of International Cooperation	220	(7)
PART III: A CASE STUDY: THE ATROCITIES OF THE KHMER ROUGE	227	(62)
12 The Khmer Rouge Rule Over Cambodia: A Historical Overview	229	(14)
The Philosophy and Structure of the Khmer Rouge	230	(2)
The Pattern of Abuses	232	(6)
Hostilities with Vietnam	238	(1)
The Khmer Rouge Since 1979	239	(4)
13 Applying the Law	243	(23)
Genocide	243	(4)
Crimes Against Humanity	247	(2)
War Crimes	249	(5)
Other Abuses Incurring Individual Criminal Responsibility	254	(4)
Defenses	258	(1)
Cambodian Law	258	(8)
14 Engaging the Mechanisms	266	(23)
National Tribunals	269	(6)
International Criminal Tribunals	275	(2)
Investigatory Commissions	277	(3)
Civil Suits	280	(1)
Immigration Measures	281	(1)
International Court of Justice	282	(1)
Evidence and Judicial Assistance	283	(6)
PART IV: CONCLUSIONS	289	(16)
15 Striving for Justice: The Prospects for Individual Accountability	291	(14)
The State of the Law	291	(4)
The Processes for Pursuing Justice	295	(7)
The Fate of Individual Accountability: A Word of Caution	302	(3)
APPENDICES	305	(36)
1. Charter of the International Military Tribunal at Nuremberg	306	(2)
2. Allied Control Council Law No. 10	308	(2)
3. Convention on the Prevention and Punishment of the Crime of Genocide	310	(1)
4. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field	311	(1)
5. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea	312	(1)
6. Geneva Convention (III) Relative to the Treatment of Prisoners of War	313	(1)
7. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War	313	(1)
8. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others	313	(1)
9. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery	314	(1)
10. International Covenant on Civil and Political Rights	315	(1)
11. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity	316	(1)
12. International Convention on the Suppression and Punishment of the Crime of Apartheid	317	(2)
13. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I)	319	(2)
14. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)	321	(1)
15. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	321	(1)
16. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991	322	(6)
17. Statute of the International Tribunal for Rwanda	328	(1)
18. International Law Commission Draft Statute for an International Criminal Court	329	(7)
19. International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind	336	(4)
20. United States Alien Tort Claims Act	340	(1)
21. United States Torture Victim Protection Act	340	(1)
Bibliography	341	(20)
Index	361