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

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

• ISBN13: 9780198298717
• ISBN10: 0198298714
• Edition: 2nd
• Format: Paperback
• Copyright: 2001-06-07
• Publisher: Oxford University Press

Summary

More than fifty years after the Nuremberg and Tokyo trials, nations 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. In this new edition the authors also cover recent developments such as the jurisprudence of the UN's Yugoslavia and Rwanda tribunals, new domestic attempts at accountability, and the International Criminal Court.

Author Biography

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	xvi
Table of Authorities	xxi
Introduction to the Second Edition	xxxix
Introduction to the First Edition	xli
PART I: SUBSTANTIVE LAW
Individual Accountability for Human Rights Abuses: Historical and Legal Underpinnings	3	(23)
A Brief History of Individual Accountability	3	(6)
Four Bodies of Law	9	(6)
The Nature of Legal Responsibility	15	(2)
Methodology and Sources of International Law	17	(4)
The Principles of Legality: Nullum Crimen Sine Lege and Related Concepts	21	(3)
A Word on Cultural Relativism	24	(2)
Genocide and the Imperfections of Codification	26	(20)
Background and Preparation of the Genocide Convention	26	(3)
Definition of Genocide	29	(10)
Reservations to the Genocide Convention	39	(2)
Genocide under Customary International Law	41	(1)
Theoretical and Practical Challenges	42	(4)
Crimes Against Humanity and the Inexactitude of Custom	46	(34)
Evolution of the Concept	46	(3)
Core Definitional Issues: Elements of the International Crime	49	(20)
Acts Constituting Crimes Against Humanity	69	(8)
Theoretical and Practical Challenges	77	(3)
War Crimes and the Limitations of Accountability for Acts in Armed Conflict	80	(31)
From Ancient Origins to Modern Codes	80	(3)
Offenses During International Conflicts	83	(12)
Offenses During Non-International Conflicts	95	(12)
Afterword on Destruction of Cultural Property	107	(4)
Other Abuses Incurring Individual Responsibility Under International Law	111	(18)
Slavery and Forced Labor	112	(5)
Torture	117	(3)
Racial Discrimination and Apartheid	120	(3)
Forced Disappearances	123	(1)
A Brief Word on Crimes Against Peace	124	(5)
Expanding and Contracting Culpability: Related Crimes, Defenses, and Other Barriers to Criminality	129	(22)
Related Crimes	129	(6)
Appraising the Defenses under International Law	135	(8)
Statutes of Limitations	143	(2)
Theoretical and Practical Challenges	145	(6)
PART II: MECHANISMS FOR ACCOUNTABILITY
Mechanisms for Accountability: Framing the Issues	151	(9)
Legal Requirements of Individual Accountability	151	(4)
The Broader Context	155	(5)
The Forum of First Resort: National Tribunals	160	(27)
A Jurisdictional Primer	160	(8)
Precedents for Prosecutions Before National Tribunals: Four Recent Cases	168	(10)
Prosecutions Before National Courts of Other States	178	(4)
Opportunities and Challenges	182	(5)
The Progeny of Nuremberg: International Criminal Tribunals	187	(41)
The Nuremberg and Related Tribunals	187	(3)
The International Criminal Tribunal for the Former Yugoslavia	190	(11)
The International Criminal Tribunal for Rwanda	201	(5)
Toward the Permanent International Criminal Court	206	(13)
Opportunities and Challenges	219	(6)
Afterword on the International Court of Justice and Regional Human Rights Courts	225	(3)
Non-Prosecutorial Options: Investigatory Commissions, Civil Suits, and Immigration Measures	228	(25)
Investigatory Commissions: Accountability Through Truth and Acknowledgment	228	(12)
Civil Suits: An Alternative Day in Court for Victims	240	(8)
Immigration Measures: Denying Refuge to Offenders	248	(5)
Developing the Case: Comments on Evidence and Judicial Assistance	253	(14)
Evidence: A Dearth of Uniform Standards	253	(5)
Judicial Assistance and the Limits of International Co-operation	258	(9)
PART III: A CASE STUDY: THE ATROCITIES OF THE KHMER ROUGE
The Khmer Rouge Rule Over Cambodia: A Historical Overview	267	(17)
The Philosophy and Structure of the Khmer Rouge	268	(2)
The Pattern of Abuses	270	(7)
Hostilities with Vietnam	277	(1)
The Khmer Rouge Since 1979	277	(7)
Applying the Law	284	(23)
Genocide	284	(4)
Crimes Against Humanity	288	(2)
War Crimes	290	(4)
Other Acts Incurring Individual Criminal Responsibility	294	(4)
Defenses	298	(1)
Cambodian Law	299	(8)
Engaging the Mechanisms	307	(24)
National Tribunals	310	(6)
International Criminal Tribunals	316	(2)
Investigatory Commissions	318	(3)
Civil Suits	321	(2)
Immigration Measures	323	(1)
International Court of Justice	324	(1)
Evidence and Judicial Assistance	325	(6)
PART IV: CONCLUSIONS
Striving for Justice: The Prospects for Individual Accountability	331	(16)
The State of the Law	331	(5)
The Processes for Pursuing Justice	336	(7)
The Fate of Individual Accountability: A Word of Caution	343	(4)
APPENDICES	347	(50)
1. Charter of the International Military Tribunal at Nuremberg	348	(2)
2. Allied Control Council Law No. 10	350	(2)
3. Convention on the Prevention and Punishment of the Crime of Genocide	352	(1)
4. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field	353	(2)
5. Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea	355	(1)
6. Geneva Convention (III) Relative to the Treatment of Prisoners of War	355	(1)
7. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War	355	(1)
8. Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others	356	(1)
9. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery	356	(1)
10. International Covenant on Civil and Political Rights	357	(2)
11. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity	359	(1)
12. International Convention on the Suppression and Punishment of the Crime of Apartheid	359	(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)	361	(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)	363	(1)
15. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	364	(1)
16. Statute of the International Criminal Tribunal for the Former Yugoslavia	365	(5)
17. Statute of the International Criminal Tribunal for Rwanda	370	(1)
18. International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind	371	(4)
19. Statute of the International Criminal Court	375	(21)
20. United States Alien Tort Claims Act	396	(1)
21. United States Torture Victim Protection Act	396	(1)
Bibliography	397	(30)
Index	427