Book Description
In 1995, the International Committee of the Red Cross, along with a range of renowned experts, embarked upon a major international study into current state practice in humanitarian law in order to identify customary law in this area. This book (and its companion, Volume 2: Practice) is the result of that study. Volume 1 is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts.
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What is law? What is it for? How should judges decide novel cases when the statutes and earlier decisions provide no clear answer? Do judges make up new law in such cases, or is there some higher law in which they discover the correct answer? Must everyone always obey the law? If not, when is a citizen morally free to disobey?
A renowned philosopher enters the debate surrounding these questions. Clearly and forcefully, Ronald Dworkin argues against the "ruling" theory in Anglo-American law-legal positivism and economic utilitarianism and asserts that individuals have legal rights beyond those explicitly laid down and that they have political and moral rights against the state that are prior to the welfare of the majority.
Mr. Dworkin criticizes in detail the legal positivists' theory of legal rights, particularly H. L. A. Hart's well-known version of it. He then develops a new theory of adjudication, and applies it to the central and politically important issue of cases in which the Supreme Court interprets and applies the Constitution. Through an analysis of Rawls's theory of justice, he argues that fundamental among political rights is the right of each individual to the equal respect and concern of those who govern him. He offers a theory of compliance with the law designed not simply to answer theoretical questions about civil disobedience, but to function as a guide for citizens and officials. Finally, Professor Dworkin considers the right to liberty, often thought to rival and even pre-empt the fundamental right to equality. He argues that distinct individual liberties do exist, but that they derive, not from some abstract right to liberty as such, but from the right to equal concern and respect itself. He thus denies that liberty and equality are conflicting ideals.
Ronald Dworkin's theory of law and the moral conception of individual rights that underlies it have already made him one of the most influential philosophers working in this area. This is the first publication of these ideas in book form.
Customer Reviews:
Absolute Classic.......2006-07-29
Things are quite simple. If there is A contemporary debate in jurisprudence, it is the so-called Hart/Dworkin debate. It all starts with this wonderful book that cuts deeply and challenges the theory of legal positivism on many levels. As for the theory of rights, Dworkin is a proponent of one of the most coherent, interesting and complex articulations of liberalism. In short: to the extent that fundamental rights are in play, the "political majority" (if such a thing exists) does not have the moral right to tell members of the minority what to do with their own lives. Is not this a simple but powerful moral truth?
Tyranny of a minority.......2003-02-17
Dworkin's thesis is that a tyranny of a minority is better than a tyranny of the majority. His argument is based on rigorous logic. But Justice Holmes observed that, "The life of the law has not been logic, it has been experience." Dworkin's theory is similar to those of Plato and Marx. But experience with the latters' theories has been negative. For an analysis of that experience, read Kark Popper's The Open Society and Its Enemies.
His Logic is Flawless.......2002-11-25
... and this is a welcome breeze in the current political fog of an America drowning in six-shooters and visceral-response-teams. The Dworkin-challenge before us is the discovery of rights as emanating from the individual, and their use in daily life. This is where Dworkin may break down. Unlike Dershowitz's "Shouting Fire", for example, Dworkin does not write as if there is a human behind the logic who is actually extolling our necessary freedoms. Perhaps it is just me, but I'd like to hold on to and celebrate my rights and yours; I'd also like to affect change-- as would Dworkin, on a global scale. Though he sees humanity's natural path to decency, his writing "feels" far too cold to be effective.
Dworkin is provocative, complex and though-full. This work shifts between levels of abstraction and works toward grand theories of natural-law that will flip less talented contemporaries on their collective heads. Because our job as citizens includes the requirement that we think (far beyond our childhood systems of ordering the world), "Taking Rights Seriously" should indeed be taken to heart and mind. My instinct is to suggest that one supplement Dworkin with John S. Mill and Dershowitz. With a nod to Dworkin, I "think" the latter suggestion is well-reasoned.
misleading title.......2001-12-25
I have only read the first two chapters so far but mostly it is an attempt to discredit Justice John Marshall and his judicial review or judicial activism to cultivate individual rights or protect the common man from an abusive govt and the rich who have bought local and national politicians, with some nonsense about the priority of community or majority rules and principles. How dare the common man protest abuse by the majority!!! So much for freedom and the Bill of Rights. There is some suggestion that may redeem from the prospective that there maybe a better way to challenge injustice of the majority than use of judicial activism, but I haven't got that far yet.
A Clear Window on Rights.......2000-07-31
It is a brave author that attempts a new perspective on a topic that has been fodder for politicians and philosophers for thousands of years. Dworkin clears out the old cobwebs and provides insights and new perspectives for the 21st century. It is a must read for anyone serious about our dwindling rights in today's modern society. Well written, not an academic sleeping pill.
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The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence
Nihal Jayawickrama
Manufacturer: Cambridge University Press
ProductGroup: Book
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ASIN: 052178042X |
Book Description
The original human rights concepts articulated in the 1948 Universal Declaration have evolved considerably. Nihal Jayawickrama encapsulates the judicial interpretation of human rights law from all available sources in one comprehensive volume, covering superior court case law of over fifty-five countries, the jurisprudence of the U.N. Human Rights monitoring bodies, the European Court of Human Rights, and the Inter-American system. This definitive compendium will be essential for legal practitioners, government and non-governmental officials, and academics and students of constitutional law and the international law of human rights.
Book Description
There is considerable writing on the laws designed to regulate war, but most of this material is devoted to international wars between different states. Lindsay Moir examines the laws which exist to protect civilians caught up in armed conflicts within a single state. This book traces the development of international law from the nineteenth century, up to events arising from the conflicts in Rwanda and the former Yugoslavia. It demonstrates how human rights can offer protection during armed conflict and how effectively (and by whom) the relevant rules can be enforced.
Download Description
Laws regulating armed conflict have existed for centuries, but the bulk of these provisions have been concerned with wars between states. Relatively little attention has been paid to the enormously important area of internal armed conflict. At a time when international armed conflicts are vastly outnumbered by domestic disputes, this book seeks to redress the balance through a comprehensive analysis of those rules which exist in international law to protect civilians during internal armed conflict. From regulations in the nineteenth and early twentieth centuries according to the doctrine of recognition of belligerency, this book traces the subsequent development of international law by the Geneva Conventions and their additional Protocols, as well as through the more recent jurisprudence of the Yugoslav and Rwandan tribunals. The book also considers the application of human rights law during internal armed conflict, before assessing how effectively the applicable law is, and can be, enforced.
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International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis
Francisco Forrest Martin ,
Stephen J. Schnably ,
Richard Wilson ,
Jonathan Simon , and
Mark Tushnet
Manufacturer: Cambridge University Press
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International Human Rights and Humanitarian Law (Cambridge Studies in International and Comparative Law)
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International Human Rights in Context: Law, Politics, Morals
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The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary
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International Human Rights in a Nutshell (3rd Edition) (Nutshell Series)
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International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (Oxford Monographs in International Law)
ASIN: 0521858860 |
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This volume introduces law students to the international legal instruments and case law governing the substantive and procedural dimensions of international human rights and humanitarian law, including economic, social, and cultural rights. It also discusses the history and organizational structure of human rights and humanitarian law enforcement mechanisms. Relevant to U.S. audiences, a chapter is devoted to the issues surrounding the incorporation of international law into U.S. law, including principles of constitutional and statutory interpretation, conflict rules, and the self-execution doctrine. Questions & Comments sections provide critical analyses of issues raised in the materials.
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Humanitarian Intervention: An Inquiry into Law And Morality
Fernando R. Teson
Manufacturer: Transnational Publishers
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ASIN: 1571052488 |
Customer Reviews:
Good contemporary Overview.......2007-03-16
International Humanitarian Law: Prospects, 3rd Edition, fully revised and updated edition edited by John Carey, William V. Dunlap, R. John Pritchard (International Humanitarian Law: Transnational Publishers) Excerpt: When the contributors gathered in Vienna in 1998 for the workshops that were eventually to grow into this series of volumes on the origins, challenges, and prospects of international humanitarian law, the horrendous and world-changing events of September 11, 2001, were nearly as far in the future as they are now in the past as the third and final volume goes to press.
Since that day, millions of people who had never heard of-- or at least thought much about -international humanitarian law have been bombarded daily with news and commentary that impressed its existence and importance on the public consciousness and conscience. For many, for the first time, the laws of war meant something more than "name, rank, and serial number," never a completely accu¬rate delimitation of the interrogation of prisoners of war, but close enough for pop¬ular consumption. Abu Ghraib and Guantanamo soon supplanted Tamarkan ("The Bridge on the River Kwai"), Stalag Luft III ("The Great Escape"), Stalag 13 ("Hogan's Heroes"), and the eponymous Stalag 17 as the popular images associ¬ated with prisoners of war, and these real-life images--whether of the prisoners or of the guards--were grimmer than most had expected. In the popular, some¬times comedic, representations of POW camps, the guards (invariably German or Japanese) were the villains, and it came as a shock to the American national psy¬che that this could be so even when the guards were Americans.
The response of the American government was swift and predictable: It never happened. If it did happen, they were just a few isolated incidents. And anyway, they did not violate international law, because the Geneva Conventions do not apply to "terrorists." By now, we know that none of that was true. The incidents are well documented and numerous, and President Bush himself has announced that the Geneva Conventions apply to all detainees in what he proclaimed as "the war on terror," now "the long war." The apparent change in direction is due in large part to the United States Supreme Court's ruling in Harridan v. Rumsfeld, 548 U.S. , 126 S.Ct. 2749 (2006), which not only reinforces the role of the Congress in determining United States policy but also makes clear that the Geneva Conventions do apply, to the surprise of few outside of the United States.
One can hope that the Hamdan case marks the end of a brief diversion from the history of progressive development that the law of armed conflict has been enjoying for the past century and more. It was a sharply divided Supreme Court that rebuked the President and his attempts to evade his constitutional limitations and the international obligations of the United States, but it was a rebuke nonethe¬less. It is not at all clear whether that diversion was fueled by a misreading of the end of the cold war and America's role as the "world's sole superpower," or by a exuberance at finally being in a position to put neoconservative ideas to work, or by a misguided notion of American exceptionalism, or just by a good old Texas-style I've-got-a-job-to-do-and-nothing's-gonna-stand-in-my-way attitude. Whatever prompted it, it now appears that the political appointees in the White House who have been dictating the legal analysis to the professional lawyers at the Justice Department, the Pentagon, and the State Department Legal Adviser's Office--instead of the other way round--may be getting the message. This vol¬ume, then, is coming out at a most propitious time.
It became clear soon after September 11, 2001, that the world would be look¬ing differently at international humanitarian law. What to do, then, with a vol¬ume--well under way--on the prospects of international humanitarian law. The regime of the Hague and Geneva Conventions was facing perhaps its gravest chal¬lenge ever, even while other developments--notably the creation of the Inter¬national Criminal Court--were carrying international humanitarian law in new directions. After much consideration, we decided that the new debates over Guantánamo, "enemy combatants," and the Geneva Conventions should not draw attention away from the broad range of issues addressed in this volume--the ICC, victims' rights, sanctions regimes, and ad hoc tribunals--and that it would be a disservice to sideline these discussions while reshaping the book around the Guantanamo and Abu Ghraib phenomenon. So we retained our original structure, updated the contributions, and invited a particularly respected scholar to address the new central question raised by the United States' response--Do terrorists have rights under international humanitarian law?
Leslie C. Green, among the most distinguished commentators on the law of armed conflict, answers that question with a resounding "yes" in the opening chapter, "The Relevance of Humanitarian Law to Terrorism and Terrorists" (the only essay here to have been written entirely after the events of 2001). Professor Green, after reviewing the antiterrorist conventions, the UN principles on the treatment of prisoners, international human rights treaties, the Geneva Conventions, and judicial decisions in Canada, Britain, and the United States, reaffirms the universality of humanitarian law and its application to everyone, even terrorists. If "they" had treated "our" personnel as "we" have treated "theirs" at Abu Ghraib and Guantánamo, he reminds us, captured offenders would have been charged with war crimes and, on conviction, would have been sentenced to long terms of imprisonment or condemned to death. Meanwhile, the Bush admin¬istration, as this volume goes to press, seems to be, gradually and grudgingly,coming around to this point of view while denying that the doctrine of command responsibility appears to lead directly to the Pentagon and the White House.
Nevertheless, in a British case that, like Hamdan, was decided too late for Professor Green to discuss, it would appear that the House of Lords has restricted the reach of international humanitarian law. The Lords held, in R. v. Jones, [2006] UKHL 16, that, in the absence of appropriate legislation by Parliament, the courts of the United Kingdom (and by extension the far-flung British Commonwealth) are powerless to recognize the authority of international law and that they lack capacity to rein in the actions of the Crown when any British Government--under cloak of the royal prerogative to wage war--commits crimes against peace or crimes against humanity. It is not open to the courts, said the Lords, even to con¬sider whether such crimes have been committed by a British Government. Thus while the power of any British Government to try enemy war criminals for war crimes, crimes against humanity, or crimes against peace has been demonstrated in the distant and not-so-distant past, its power to hold British subjects to account may be highly restricted.
Shortly after the end of the Second World War, a young Army lawyer asked the Nuremberg Tribunal to affirm, through law, the human right to live in peace and dignity. Nearly sixty years later, Benjamin B. Ferencz, who in the meantime has become one of the world's most passionate and eloquent spokesmen for inter¬national law and justice, repeats, this time to the world community, that same "Plea of Humanity to Law." Whether through ad hoc international criminal tri¬bunals, or the International Criminal Court, or the Security Council's enforcement powers--or all of the above--those who violate the international laws of human¬ity must answer for their deeds. The people of the world must send this message to their leaders--or pray that they themselves do not become the next victims.
"International criminal law in any true sense does not exist," wrote Georg Schwarzenberger (one of Leslie Green's law professors at University College, London, before the Second World War), midway through the twentieth century. At the opening of the twenty-first, the Statute of Rome went into effect, creating the world's first standing international criminal court. Even if Schwarzenberger was correct at the time, does the birth of the ICC mean that an international crim¬inal law in some true sense does now exist? What is the implication of the ICC for the concept of national sovereignty, for the state's monopoly on criminal juris¬diction, or the implication of sovereignty for the success of the ICC? In "The Creation of the International Criminal Court and State Sovereignty: 'The Problem of an International Criminal Law' Re-examined," Frederic Megret, one of Canada's outstanding international legal scholars and a former UNPROFOR "blue helmet" in Sarajevo, examines in extraordinary detail and depth these tensions and contradictions, wondering whether the ICC can ever become a defining force in global relations.
Wade Mansell of the University of Kent can muster but "Two Cheers for the International Criminal Court." He welcomes the creation of the ICC but with a caveat: One byproduct, not necessarily unintended, is a formal relegation to sec¬ond-class status of economic, social, and cultural rights, as opposed to the civil and political rights that the court will have jurisdiction to enforce. He sees this as one more step in the triumph of liberal rights over economic rights, which earlier was reflected in the decision to enforce the Universal Declaration of Human Rights by two separate international covenants and which has accelerated with the ascendancy of liberal capitalism over socialism. Why, he asks, should a fail¬ure to protect economic rights not be as much an offense as a violation of civil and political rights? Like any other international instrument, the Treaty of Rome was a product of realpolitik and idealism. As Mansell implies, there were limits to what influential countries were prepared even to consider.
In much the same way, compromises can be found in the Rome Statute's def¬initions of crimes, which define the ICC's jurisdiction. On the one hand, its def¬inition of genocide is virtually synonymous with that of the Genocide Convention and of a growing body of customary international law, but there the similarity ends. The ICC's jurisdiction over the other categories of offenses within the ICC's jurisdiction--crimes against humanity and war crimes--is severely limited by, for example, the use of such limiting words as "widespread" and "systematic," which do not appear in other international instruments and case law defining, refining, and even extending these offenses. This means, says Professor Jordan Paust, a leading scholar of international criminal law, in describing the restrictive nature of the "Crimes within the Limited Jurisdiction of the International Court," that primary competence and responsibility for prosecuting (or extraditing) those accused of war crimes and crimes against humanity continues to lie with nation-states and the international ad hoc tribunals.
As this volume goes to press, it appears that a new mixed tribunal of Cambo¬dian and international prosecutors and judges will be convened after all, ending the long period of uncertainty about that which has lain across the conscience of mankind since the 1970s. It was hard enough to persuade the international com¬munity that, as a general proposition, a Cambodian war crimes tribunal was a good idea. Once it had finally been agreed that the Khmer Rouge would be held accountable for their atrocities in Cambodia, the debate had just begun. Under whose authority would a tribunal be established--the Security Council, the General Assembly, the Cambodian government, a "third" country" a Nuremberg-style coalition? The question of venue, too, was critical, for where a tribunal sits bears heavily on cost, political interference, witness protection, and the message that the trials would send to the survivors. Questions of temporal and personal jurisdiction--which crimes and which persons are to be prosecuted--may be influenced as much by raw politics as by notions of justice. In "Designing Justice for Cambodia's Khmer Rouge," Craig Etcheson, who helped found and then directed the Documentation Center of Cambodia in Phnom Penh, examines these "practical issues" that will face the organizers of every future ad hoc tribunal.
In the spring of 1999, as NATO forces launched an intensive humanitarian intervention to suppress the ethnic cleansing and other large-scale violations of international humanitarian law in Kosovo, the Federal Republic of Yugoslavia brought eleven actions in the International Court of Justice, asking the court to find that members of NATO had violated their obligations under the UN Charter. As it was undisputed that NATO forces were attacking Yugoslavia, what was the legal justification? Given that the UN Security Council had not specifically authorized this particular intervention, was this no more than regional vigilante justice? The ICJ has since dismissed all the cases on jurisdictional grounds, so the question remains judicially unresolved. One possible answer lies with the ICTY, the International Criminal Tribunal for the Former Yugoslavia. In "NATO's Attack on Yugoslavia: The Deputation of an Ad Hoc International Constabulary," Paul Rutkus, lecturer of international criminal law at Carleton University, explores whether the Security Council could have delegated a measure of Chapter VII peacemaking authority to the ICTY, which in turn could have authorized NATO's member states to assist the Tribunal in protecting victims and witnesses, secur¬ing evidence and crime scenes, and detaining suspects and surrendering indictees for trial.
Economic sanctions, originally conceived as measures of international col¬lective coercion short of military force and as mechanisms for enhancing the role of the less-powerful but peaceable states, have proved to be highly controversial. They have been denounced as genocide and as institutionalized racism, and, says Paul Conlon, the United Nations in recent years has spent as much effort miti¬gating the effects of its own economic sanctions as it has enforcing them. Dr. Conlon, a former official of the United Nations Centre against Apartheid and of the Security Council's Iraq Sanctions Committee, suggests that sanctions as they have been applied violate the principles and goals of international humanitarian law, particularly the Fourth Geneva Convention, concerning civilian populations. Sanctions, he suggests, should be administered with humanitarian considerations and general legal principles in mind. Proportionality, for example, dominates every legal discussion of military reprisal but seldom enters into the evaluation of sanctions--either their enforcement or humanitarian measures to mitigate their effects. With well over half a million deaths in Iraq caused by U.S.-led UN sanc¬tions between 1991 and 2003, it is easy to argue that proportionality must rein in what can be permitted in the name of international law or international politics. Dr. Conlon proposes not only adapting sanctions regimes to humanitarian law but also "Adapting Traditional Humanitarian Law to Sanctions."
Until the mid-twentieth century (and in some countries, such as Japan, even to this day) individuals were generally regarded exclusively as objects, rather than subjects, of international law, enjoying no personal rights and holding no obliga¬tions. Perpetrators of war crimes, in the broad sense, have marked a sharp excep¬tion to the rule, as they (sometimes) can be brought to personal justice under the Geneva Conventions and the Nuremberg principles. Avril McDonald suggests that the perpetrators' victims, too, are now beginning to find recognition in the international criminal justice system. Though the statutes of the ad hoc tribunals made little or no effort to accommodate the interests of the Yugoslav and Rwandan vic¬tims of those atrocities, the Statute of the ICC has integrated victims into the process by requiring their interests to be considered at every stage--by the pros¬ecutor, the Pre-Trial Chamber, the Trial Chamber, and the Appeals Chamber. Significantly, victims may make submissions directly to the court. In "The Devel¬opment of a Victim-Centered Approach to International Criminal Justice for Serious Violations of International Humanitarian Law," Dr. McDonald, an IHL scholar at the T.M.C. Asser Instituut and editor of the Yearbook of International Humanitarian Law, suggests that this is a good start but that a great deal more remains to be done, especially regarding reparations.
As the volume ends, so does the series--as it began--with R. John Pritchard examining British war crimes trials in the aftermath of past wars, in the hope that these experiences might offer some insight into the implications of how such tri¬als may be conducted today or in the future. In "The Parameters of Justice: The Evolution of British Military and Civil Perspectives on War Crimes Trials and Their Legal Context," Dr. Pritchard, one of the most prolific and distinguished historians of war crimes trials, concludes that concerns about fairness to perpe¬trators gave way to political expedience and haste in the disposition of clemency, displacing concern for victims and justice and ultimately poisoning Britain's rela¬tionship with Germany, Italy, and especially Japan after the Second World War. As we face the winding down of the International Tribunals for Yugoslavia and Rwanda and other ad hoc tribunals, who is going to govern the administration of clemency and parole when the judges are no longer there? Will the prisoners be in the hands of some other legal authority, or will these important questions of justice fall to politicians?
* * *
In the meantime, the scope and concerns of international humanitarian law continue to grow. The Bush administration may, paradoxically, have strengthened the IHL regime through its efforts to disregard the Geneva Conventions. Public disgust at efforts to deny or condone torture and inhumane treatment, combined with a pragmatic recognition that U.S. soldiers taken prisoner elsewhere in the world could be on the receiving end of such treatment, reinforced in the public mind the need for binding international rules of war. Indeed, it was military lawyers who led the opposition, within government and without, against the administration's efforts to undercut the Geneva Conventions.
Will the public support of the Geneva Conventions translate into similar sup¬port for the International Criminal Court? There is no logical reason that it must. The United States has long been legally bound by the Geneva Conventions, and the reciprocal benefits they provide are, or so one might have thought until recently, beyond questioning. The debate over the ICC, on the other hand, is whether tosign on to a new venture, and whether the benefits are worth the costs. The reci¬procity that is inherent in the Geneva regime does not, as Frédéric Mégret observes, become a factor in the ICC regime unless the United States chooses to join, which is the very issue being debated. Nevertheless, the experience with the Geneva Conventions may have awakened the American public to the importance of international cooperation and the difficulty, even futility, of trying to go it alone, "sole superpower" or not.
Through all this, the scope of international humanitarian law continues to grow. War-crimes victims caught in the seemingly faceless and unfeeling justice system, and innocent civilians trapped in the squeeze of the sanctions regime, have caught the attention of the IHL theorist. Women suffer disproportionately in war--particularly in modern social conflict, where the battlefields are not well defined--and have found little justice in the legal system for the sexual violence systematically directed at them. Kelly Askin, in Volume II--Challenges--looks at the jurisprudence of the Rwandan and Yugoslav ad hoc tribunals and finds cause for hope.
Therein lies the importance of books like these and the essays they comprise. Grand projects have grown out of a single writing. Henri Dunant's Souvenir de Solferino was the conception of the modern law of armed conflict, as we used to call international humanitarian law, and the Genocide Convention was adopted in 1948 and entered into force in 1951, just a few years after Rafael Lemkin coined the word in 1944 in Axis Rule in Occupied Europe. In fields that are, like law, by nature practical, theory often develops a bad name, especially when the practi¬tioners or the victims cannot see that the theory describes a real problem and, sometimes at least, offers a real-world solution. These essays are rooted in real¬ity and may even change that reality for the better.
Book Description
Arguably the most significant international organization to be created since the United Nations, the International Criminal Court ushers in a new era in the protection of human rights. The direct descendant of the Nuremberg and Tokyo trials, as well as those of the more recent international criminal tribunals for the Former Yugoslavia and Rwanda, the International Criminal Court will prosecute genocide, crimes against humanity and war crimes when national justice systems are either unwilling or unable to do so themselves. This new book reviews the history of international criminal prosecution, the drafting of the Rome Statute of the International Criminal Court and the principles of its operation, including the scope of its jurisdiction and the procedural regime. Three of the Court’s fundamental documents - the 1998 Rome Statute itself, the Rules of Procedure and Evidence, and the Elements of Crimes - are reproduced in the Appendix. Indispensable for students and practitioners.
Download Description
Arguably the most significant international organization to be created since the United Nations, the International Criminal Court ushers in a new era in the protection of human rights. The direct descendant of the Nuremberg and Tokyo trials, as well as those of the more recent international criminal tribunals for the Former Yugoslavia and Rwanda, the International Criminal Court will prosecute genocide, crimes against humanity and war crimes when national justice systems are either unwilling or unable to do so themselves. This new book reviews the history of international criminal prosecution, the drafting of the Rome Statute of the International Criminal Court and the principles of its operation, including the scope of its jurisdiction and the procedural regime. Three of the Court's fundamental documents - the 1998 Rome Statute itself, the Rules of Procedure and Evidence, and the Elements of Crimes - are reproduced in the Appendix. Indispensable for students and practitioners.
Customer Reviews:
Very helpful.......2005-01-05
For this reviewer, who is definitely not a legal expert, this book was read with the goal of understanding to what extent pre-emptive wars can be viewed as `legal', to discover the reasons why the United States chose to withdraw its participation in the International Criminal Court, and to gain basic knowledge on the tenets and origins of international law in order to find out if indeed the current conflict in Iraq could be viewed as a `war crime' or some other severe violation of international law. Before reading this book, this reviewer was very unknowledgeable about legal concepts and reasoning in the context of international law, and had the opinion that international legal agreements were very fragile and tenuous. This view did not really change after reading the book, but its perusal did offer a few surprises and was thought provoking to a large degree. Like most legal treatises, this book suffers from the typical `tyranny of the footnote' that accompanies legal or history books. This minor annoyance that causes the flow of the reading to be disrupted is perhaps compensated by the need for the reader to know that the sources are available and that they can be checked if necessary.
Readers who are not legal experts will no doubt think of the Nuremberg trials as being the best representative of what an international court can accomplish given the jurisdiction. Their biases in this regard are in fact true as is brought out many times in the book, particularly in the discussion on genocide and `crimes against humanity', which the Nuremberg trails were set up to deal with after the second world war. The word `genocide' apparently originated with Raphael Lewkin in 1944. Lewkin wanted to make sure that crimes against groups were prosecuted. It was later adopted in 1946 by the Nuremberg prosecutors and declared an `international crime' by the General Assembly of the United Nations. Genocide was to be distinguished from `crimes against humanity' since the latter was only to hold in the context of an international armed conflict. The author argues that the distinction is not really significant today, with `crimes against humanity' now referring to atrocities committed in wartime and in peacetime. However, genocide is to be distinguished from `crimes against humanity' and `war crimes' in that it must be committed with the `intent' of destroying a national, ethnic, racial, or religious group. It is this `special intent' the author argues, that makes genocide different from the other two crimes.
According to the author, the designation of an activity as a `war crime' began with the 1907 Hague Convention IV and was refined in the 1919 Commission on Responsibilities. From then on says the author, "there is little argument about the existence of war crimes under international law." The Nuremberg charter listed as a war crime the murder or ill treatment of prisoners of war, the killing of hostages, the wanton destruction of cities, villages, or towns, and devastation not justified by military necessity, among other activities. In reference to this, it would seem that the war in Iraq should be labeled as a war crime given that some of the activities to date in this war do satisfy these criteria. In addition, the fire bombing of Tokyo and Dresden, and the atomic bombing of Hiroshima and Nagasaki could be classified as war crimes according to the Nuremberg charter.
Of all the characteristics of the International Criminal Court, its jurisdiction is the most problematic. Its creators were very ambitious in their goals, for it was to have the most general scope and application of any international body to date. The author emphasizes that its creation rests on the voluntary participation of countries that decide to be subject to its jurisdiction. The ICC though has a narrower jurisdiction than the individual countries that participate in it. The drafters were careful to grant the individual countries the first crack at the prosecution of certain crimes. If the domestic justice system is `unwilling' or `unable' to prosecute then the ICC can take over. The author refers to this as `admissibility' in the book, which is to be distinguished from jurisdiction. Jurisdiction refers to the `situation' in which a crime has been committed, whereas `admissibility' refers to the proper identification of a `case' that can be taken up by the ICC. The jurisdiction of the ICC though can be prevented by the UN Security Council, this being called `deferral' by the author, and was put in so that the ICC would not be able to act effectively as no veto on issues brought to the Security Council.
When reading the book one is struck by the extreme fragility of international law and the difficulties needed to enforce it. The author describes the statutes of the Nuremberg, Tokyo, Yugoslavia, and Rwanda tribunals as being "very thin" when viewed in the context of criminal law. These tribunals allowed the judges much discretion, but the ICC under the Rome statute attempted to limit judicial discretion to a very large degree. The ICC was to draw on many sources of legal doctrine in order to define the general principles upon which it was to operate. As examples, the author quotes Romano-Germanic and Sharia forms of penal justice, reflecting of course the international character of the ICC, and the diversity of the states that elect to be under its jurisdiction.
In the opinion of this reviewer, the best feature of the International Criminal Court is its insistence on trying and punishing individuals, and not states, or other "abstract entities" like corporations (although corporate liability was debated considerably by the delegates according to the author). Commanders who order their subordinates to carry out war crimes or do not act to prevent them are particularly culpable. Without such an international legal body, disputes or grievances between states will be settled by the use of military power. The victor will have no one to answer to, regardless of the heinous acts it committed to win.
A nice historical introduction.......2003-03-12
I have attended author's lectures at Strasbourg. This book is a nice historical introduction about the ICC. I guess after the court is established and the Judges settle down on their chairs and volumes of case laws come out in Report form -- till then this book is a must read for everyone interested in this field.
Ignore Bush, Read This Book.......2002-11-02
Schabas succeeds fully in introducing the reader to the main features of the new International Criminal Court (ICC). His book is a model of legal exposition. He writes clearly, situates the ICC within the history of international law, relates the substantive law of the ICC to the jurisprudence of the Yugoslavia and Rwanda tribunals, and has interesting comments on the negotiating history that led to the ICC. After finishing Schabas' book, I was struck most of all by the care and thought that went into the design of the ICC, which conforms to the main lines of international law as the law has developed since 1945. The ICC is the world's best hope for bringing war criminals, human rights violators, and genocidalists to justice. It is a disgrace that the U.S. has tried to smother it in the cradle. (I am a U.S. State Department official.)
Book Description
"The genocide in Rwanda showed us how terrible the consequences of inaction can be in the face of mass murder. But the conflict in Kosovo raised equally important questions about the consequences of action without international consensus and clear legal authority. On the one hand, is it legitimate for a regional organization to use force without a UN mandate? On the other, is it permissible to let gross and systematic violations of human rights, with grave humanitarian consequences continue unchecked?" (United Nations Secretrary-General Kofi Annan). This book is a comprehensive, integrated discussion of `the dilemma' of humanitarian intervention. Written by leading analysts of international politics, ethics, and law, it seeks, among other things, to identify strategies that may, if not resolve, at least reduce the current tension between human rights and state sovereignty. Humanitarian Intervention is an invaluable contribution to the debate on all aspects of this vital global issue. J.L. Holzgrefe is a Visiting Research Scholar in the Department of Political Science, Duke University. He is a former Lecturer in International Relations at the University of St. Andrews, Scotland, and visiting scholar at the Center of International Studies, Princeton University, the Center for International Affairs, Harvard University, and elsewhere. He was educated at Monash University, Australia and Balliol College, Oxford. He has published on the history of international relations thought. Robert O. Keohane is James B. Duke Professor of Political Science, Duke University. He is interested in the role played by governance in world politics, and in particular on how international institutions and transnational networks operate. He is the author of After Hegemony: Cooperation and Discord in the World Political Economy (Princeton, 1984), for which he was awarded the second annual Grawemeyer Award in 1989 for Ideas Improving World Order. He is also the author of International Institutions and State Power: Essays in International Relations Theory (Westview, 1989), co-author of Power and Independence: World Politics in Transition (Little, Brown, 1977; 3rd edition 2001), and co-author of Designing Social Inquiry: Scientific Inference in Qualitative Research (Princeton, 1994). He is a fellow of the American Academy of Arts and Sciences and has been the recipient of a Guggenheim fellowship.
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Human Rights Protection in the Field (International Studies in Human Rights)
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Sexual Offenses in Armed Conflict & International Law
Noelle N. R. Quenivet
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