Trials for International Crimes in Asia
Edited by Kirsten Sellars
Cambridge University Press, 2015
The issue of international crimes is highly topical in Asia, with still- resonant claims against the Japanese for war crimes, and deep schisms resulting from crimes in Bangladesh, Cambodia and East Timor. Over the years, the region has hosted a succession of tribunals, from Manila, Singapore and Tokyo after the Asia-Pacific War to those currently at work in Dhaka and Phnom Penh. This book draws on extensive new research and offers the first comprehensive legal appraisal of the Asian trials. As well as the famous tribunals, it also considers lesser-known examples, such as the Dutch and Soviet trials of the Japanese, the Cambodian trial of the Khmer Rouge, and the Indonesians’ trials of their own military personnel. It focuses on their approach to the elements of international crimes, and contribution to general theories of liability. In the process, the book challenges some of the prevailing orthodoxies about the development of international criminal law.
The contributors are: Rehan Abeyratne, Mark Cammack, Cheah Wui Ling, Simon Chesterman, Robert Cryer, Tara H. Gutman, M. Rafiqul Islam, Neha Jain, Bing Bing Jia, Nina H.B. Jørgensen, Osawa Takeshi, Valentyna Polunina, Abdur Razzaq, Lisette Schouten and Kirsten Sellars.
‘Crimes against Peace’ and International Law
Cambridge Studies in International and Comparative Law, Cambridge University Press, 2015
Now out in paperback
Kirsten Sellars’ latest book, ‘Crimes against Peace’ and International Law, has just been released in paperback. Published by Cambridge University Press as part of its Cambridge Studies in International and Comparative Law series, it traces the idea of criminalising aggression — encapsulated by the ‘crimes against peace’ charge — from its origins after the First World War, through its high-water mark at the post-war tribunals at Nuremberg and Tokyo, to its abandonment during the Cold War. Today, a similar charge, the ‘crime of aggression’, is being mooted at the International Criminal Court, giving new impetus to old debates about aggression.
‘Crimes against Peace’ and International Law
Cambridge Studies in International and Comparative Law, Cambridge University Press, 2013.
In 1946, the judges at the International Military Tribunal at Nuremberg declared ‘crimes against peace’ – the planning, initiation or waging of aggressive wars – to be ‘the supreme international crime’. At the time, the prosecuting powers heralded the charge as being a legal milestone, but it later proved to be an anomaly arising from the unique circumstances of the post-war period. This study traces the idea of criminalising aggression, from its origins after the First World War, through its high-water mark at the post-war tribunals at Nuremberg and Tokyo, to its abandonment during the Cold War. Today, a similar charge – the ‘crime of aggression’ – is being mooted at the International Criminal Court, so the ideas and debates that shaped the original charge of ‘crimes against peace’ assume new significance and offer valuable insights to lawyers, policy-makers and scholars engaged in international law and international relations.
‘[This] book is more than a history of aggression; the product of comprehensive and in-depth archival research from an enviable range of sources, it is also an excellent general history of the development of international criminal law itself. There are many good books on the road to international criminal law, but if you were to read just one, I would recommend this. Its lucid pungent analysis makes it a pleasure to read.’ — Neil Boister, Edinburgh Law Review, January 2014
‘Sellars does an excellent job of highlighting the various controversies and personality clashes that almost scuttled these early, and flawed, experiments in international criminal justice. She succeeds in synthesizing a narrative in the form of a dialectic, in which the pertinent questions of international law that were raised and argued ad nauseam by the prosecution and defence, are placed in the context of great power politics, with the Allies emerging victorious from the Second World War.’ — Victor Kattan, Journal of International Criminal Justice, November 2013
‘Kirsten Sellars concentrates… on the formative period in the development of the idea of ‘crimes against peace’ in the years after the Great War through to the Nuremberg and Tokyo prosecutions that followed the Second World War. And with this focus, Sellars does a masterful job. Drawing heavily on period documents, many of them unpublished at the time, she provides a highly readable account of the fits and starts that accompanied the emergence of the notion that individuals may be prosecuted for a war of aggression.’ — John B. Quigley, International Affairs, September 2013
The Rise and Rise of Human Rights
Sutton Publications, 2002.
The Rise and Rise of Human Rights investigates the legal and political history of the human rights doctrine from the Second World War to recent conflicts in the Balkans and the Middle East. Using archival material, some of it previously unpublished, it examines the Cold War rivalry that overshadowed negotiations over the UN’s Universal Declaration and the human rights covenants; and analyses the factors that shaped the Nuremberg and Tokyo war crimes tribunals. It chronicles the debates about the European Convention in the fifties, the disagreements over President Carter’s human rights policy in the seventies, the issues arising from Reagan’s policies in Central America in the eighties, and, finally, assesses the significance of the recent campaigns against slavery and religious discrimination during the post-Cold War era.
Selected as one of the books of the year, New Statesman, 2002
‘It is the eradication of evil and cruelty in society that was the engine room of the human rights revolution, no better chronicled than in The Rise and Rise of Human Rights’ — John Cooper QC, The Times (London)
‘This book is essentially a polemic, although a well-researched one, on the gap between appearance and reality with respect for the campaign for human rights’ — Stephen A. Garrett, International Affairs (London)
‘Kirsten Sellars’ Rise and Rise of Human Rights… challenges triumphalist multilateralist narratives about the abatement of traditional conceptions of sovereignty even as it highlights the way human rights ideas have come to the fore – and exerted influence – at moments when other ideals were exhausted or in abeyance’ — Elizabeth Borgwardt, Harvard Law School Legal History Colloquium
‘Sellars has a sharp eye for colourful detail, and tells a good story’ — Noel Malcolm, Sunday Telegraph (London)
In-gwon Geu Wiseon-eui Yeoksa
(The Rise and Rise of Human Rights)
Translator: Oh Seung-hoon, Eunhaengnamu, 2003.
Delegitimising Aggression: First Steps and False Starts after the First World War
Journal of International Criminal Justice (10th anniversary issue), 10 (2012), 7-40.
The interwar years marked the movement in international law towards the prohibition of aggressive war. Yet a notable feature of the 1920s and 1930s, despite suggestions to the contrary at the Nuremberg and Tokyo tribunals, was the absence of legal milestones marking the advance towards the criminalization of aggression. Lloyd George’s proposal to arraign the ex-Kaiser for starting the First World War came to nothing. Resolutions mentioning the ‘international crime’ of aggression, such as the draft Treaty for Mutual Assistance and the Geneva Protocol, were never ratified. And the Kellogg-Briand Pact, while renouncing war ‘as an instrument of national policy’, made no mention at all of aggression, much less individual responsibility for it. Not until the closing stages of the Second World War, with defeat of the Axis powers within sight, did politicians and jurists reconsider the problem of how to deal with enemy leaders, and contemplate the role that a charge of aggression might play in this process.
William Patrick and ‘Crimes Against Peace’ at the Tokyo Tribunal, 1946-48
Edinburgh Law Review 15 (2011) 166-196.
After the Second World War, the victorious allies convened the International Military Tribunal for the Far East to punish Japan’s leaders for crimes against peace and other war-related crimes. The crimes against peace charge had proved controversial at the Nuremberg Tribunal, and the sponsoring powers made considerable efforts to ensure that the Tokyo judgment reinforced the Nuremberg determination on it, thereby investing it with greater legal credibility. The scope and significance of these efforts has been largely unacknowledged, as has the central role in them of the British member of the court, William Patrick, a Senator of Scotland’s College of Justice.
Imperfect Justice at Nuremberg and Tokyo
European Journal of International Law 21 (2010) 1085-1102.
When the international criminal tribunals were convened in Nuremberg and Tokyo in the mid-1940s, the response from lawyers was mixed. Some believed that the Second World War was an exceptional event requiring special legal remedies, and commended the tribunals for advancing international law. Others condemned them for their legal shortcomings and maintained that some of the charges were retroactive and selectively applied. Since then, successive generations of commentators have interpreted the tribunals in their own ways, shaped by the conflicts and political concerns of their own times. The past two decades have seen the establishment of new international courts, and an accompanying revival of interest in their predecessors at Nuremberg and Tokyo. Recent commentaries have analysed the founding documents, the choice of defendants, the handling of the charges, the conduct of the cases – and also the legal and political legacies of the tribunals. They demonstrate that long-standing disagreements over antecedents, aims and outcomes have still not been settled, and that the problems inherent in some of the original charges have still not been solved, despite the appearance of similar charges within the remit of the International Criminal Court today.
Human Rights and the Colonies
Round Table 93 (2004) 709-724.
When anti-colonialism was at its peak in the 1950s and 1960s, many colonial powers stonewalled, but Britain accommodated. It extended the European Convention on Human Rights to most of its colonies, and helped to nurture the fledgling British human rights movement. Its motive was self-interest: by being seen to invoke human rights, it hoped to neutralize attacks on its colonial practices emanating from the United Nations, and to curry favour with critics at home. This seemed to be a low-risk strategy, yet it was to prove otherwise. In the 1950s the European Commission for Human Rights investigated a complaint that Britain was breaching the European Convention in Cyprus. And in the 1960s Whitehall was forced to review its relationship with human rights NGOs after headline-making revelations about its covert support for Amnesty International. As it learnt to its cost, human rights advocacy could be a double-edged sword.
Treasonable Conspiracies in Paris, Moscow and Delhi: The Legal Hinterland of the Tokyo Trial
in Kirsten Sellars (ed.) Trials for International Crimes in Asia (Cambridge University Press, 2015), pp. 25-54.
It is widely held that the idea of transplanting ‘conspiracy’ from domestic law into international criminal law was first conceived by an American working in the US War Department in the final year of the Second World War. Yet this account is not the whole truth. It is merely a part – and an atypical part at that – of a much bigger story that had begun a full quarter of a century earlier. Discussion about internationalised modes of liability had first arisen during the closing phase of the First World War, when French lawyers had grappled with the problem of prosecuting Wilhelm II and his circle; and it developed further during the Second World War, when Soviet lawyers contemplated similar actions with respect to Hitler and his minsters. This civil law approach made more sense than the Americans’ conceptual leap from the Marino conspiracy to the Nuremberg Charter, and more accurately reflected the climate of realism that gave rise to international criminal law.
Treason trials provided a template for international tribunals, and in the process, the latter spawned new charges of international treason. Interaction between the different bodies of law created the potential for ideas to travel both ways, and this is exactly what happened at the British-run treason trial convened to try senior figures in the Indian National Army at the Red Fort in Delhi in 1945. The defence counsel, Bulabhai Desai, turned the treason charges back against the prosecution, stating: ‘What is now on trial before the Court is the right to wage war with immunity on the part of the subject race for their liberation.’ Thus, from within a treason trial emerged a legal critique of the supremacy of domestic security law. This argument strongly influenced Indian advocates and judges, one of whom, Radhabinod Pal, would take it to the International Military Tribunal for the Far East, and use it to challenge the charges of conspiracy to commit ‘crimes against peace’.
World War I, Wilhelm II, and Article 227: The Origin of the Idea of ‘Aggression’ in International Law
in Claus Kress and Stefan Barriga (eds), The Crime of Aggression – A Commentary (Cambridge University Press, 2016, forthcoming).
At the end of the First World War, David Lloyd George, campaigning on behalf of his coalition government, declared: ‘The Kaiser must be prosecuted. The war was a crime. Who doubts that?’ This was a radical departure from the traditional approach to war, containing within it two innovative ideas: that embarking upon an aggressive war was a crime, and that a head of state could be held personally responsible for it. This would soon become an important theme in discussions between the entente nations at the Paris Peace Conference about the viability of trying Wilhelm II for war-related crimes. Now, nearly a century later, with the idea of charging leaders for the ‘crime of aggression’ on the International Criminal Court’s agenda, the issues first raised by Lloyd George and others continue to resonate.
The Defence Response to the ‘Crimes against Peace’ Charges at the International Military Tribunals
in Christoph Safferling et al (eds.), The Defence in International Criminal Courts (T.M. Asser, 2016, forthcoming).
The day before the opening of the trial of the German leaders at Nuremberg on 20 November 1945, the defence lawyers jointly presented a motion to the Tribunal addressing the crimes against peace charges. In this submission, signed by Göring’s lawyer Otto Stahmer, they stated that while public opinion had demanded that those who waged unjust wars be held to account, this idea had not yet been accepted as international law. This article examines the arguments advanced in this theme by two defence lawyers: Hermann Jahhreiß at Nuremberg, and Takayanagi Kenzo at Tokyo.
The Legacy of the Tokyo Dissents
in Claus Kress and Stefan Barriga (eds), The Crime of Aggression – A Commentary (Cambridge University Press, 2016, forthcoming).
It is widely held that the Nuremberg Tribunal had an enduring influence, whereas the Tokyo Tribunal did not. On the issue of aggressive war, however, the reverse is true. Nuremberg’s great innovation, the crimes against peace charge, designed to highlight German aggression, was almost immediately dismissed as a legal anomaly. By contrast, the debates that arose at Tokyo in relation to crimes against peace — on just and unjust wars, the scope of self-defence, and old and new forms of domination — endured for another quarter of a century. Yet it was not Tokyo’s majority judgment, but rather the dissents from it that prevailed. Several judges took issue with the charge at the time, and (after the sentences were handed down) almost all other jurists, including those advising the prosecuting powers, tacitly followed suit.
Trying the Kaiser: The Origins of International Criminal Law
in Morten Bergsmo, Cheah Wui Ling, and Yi Ping (eds.), Historical Origins of International Criminal Law (TOAEP, Torkel Opsahl Academic EPublisher, 2014), pp. 195-211.
In late 1918 the Entente powers proposed trying the just-abdicated Kaiser and his subordinates for starting the war and committing crimes during its course. Policymakers and jurists not only set out an international jurisdiction over war crimes for the first time; they also proposed new categories of crimes (the precursors to ‘crimes against peace’ and ‘crimes against humanity’). In the process, they engaged in sophisticated debates about the implications of these steps – arguments that would later be rehashed at Nuremberg. Here, we will examine these original perspectives, focusing on the work of the official advisors to the British and French governments – including John Macdonell, John Morgan, Ferdinand Larnaude and Albert Geouffre de Lapradelle – as well as three influential commentators: the French jurist, Louis Le Fur, the American lawyer, Richard Floyd Clarke, and the British official, James Headlam-Morley. Over the course of just eight weeks, from late October to early December 1918, they turned their attention to the proposed trial of Wilhelm II, and offered strikingly prescient insights into the issues that shaped – and would continue to shape – international criminal law.
Another Meaning of Treason: The Legacy of the Red Fort Trials in International Law
in Kerstin von Lingen and Robert Cribb (eds.), War Crimes Trials in Asia: Collaboration and Complicity (Palgrave Macmillan, 2016).
In 1945, the British convened the first trial at the Red Fort to deal with senior figures in the Indian National Army. At first, this appeared to be a straightforward domestic case of treason. But the defence team, led by Bhulabhai Desai, turned the case on its head, arguing that the matter was not a question for municipal law, but rather one for international law — namely, ‘the right to wage war with immunity on the part of the subject race for their liberation’. Moreover, just as Desai’s critique of ‘treason’ dominated the discussion about the first Red Fort trial, so the Indian judge Radhabinod Pal’s critique of its international equivalent — ‘crimes against peace’ — defined the debate about the Tokyo tribunal. Desai and Pal’s arguments heralded a new perspective on international law, and in future decades their successors would demand a radical reordering of global priorities, with justice taking precedence over security, rather than security taking precedence over justice.
Founding Nuremberg: Innovation and Orthodoxy at the 1945 London Conference
in Morten Bergsmo, Cheah Wui Ling, and Yi Ping (eds.), Historical Origins of International Criminal Law (TOAEP, Torkel Opsahl Academic EPublisher, 2014), pp. 541-562.
No document better conveys the roughness and expediency of the negotiations leading up to the tribunal at Nuremberg than the transcript of the four-power London Conference, held from 26 June to 2 August 1945. Their success was by no means assured: the Americans repeatedly threatened to walk out, the British fretted over German counter-charges, the French objected to crimes against peace, and the Soviets refused anything other than ad hoc charges. This was history in the making, and its making was an unedifying business.
in David P Forsythe (ed), The Encyclopedia of Human Rights (New York: Oxford University Press, 2009) 247-251.
Jimmy Carter’s election as President of the United States in 1976 heralded a new era after the ordeals of Vietnam and Watergate. His emphasis on human rights was intended to signal a return to traditional American values, although the tension between his attempt to capture the public imagination and the need to maintain a flexible foreign policy resulted inevitably in compromise. His human rights policy has nevertheless endured, and its influence can be seen in the words and actions of all his successors.
in David P Forsythe (ed), The Encyclopedia of Human Rights (New York: Oxford University Press, 2009) 162-165.
Peter Benenson was a champion of ‘prisoners of conscience’ and founding member of Amnesty International. During his five years at its helm, he developed an approach to campaigning that provided a blueprint for the human rights movement. He was ambitious, innovative, and occasionally reckless, sparking controversies that would cast a shadow over the organisation he had founded.
International Law and Organizations
(No Enchanted Palace: The End of Empire and the Ideological Origins of the United Nations by Mark Mazower), International Affairs 86 (2010) 764-765.
Human Rights and Ethics
(A New Deal for the World by Elizabeth Borgwardt), International Affairs 82 (2006) 576-577.
The Review, Autumn 2008
The Review, published by the Aberdeen University Alumnus Association, Vol. LXII, 1 No. 217 Autumn 2008. Featuring Alexander Fenton, Kebbocks, Kail, Brose and Breid; Cosmo Landesman, Publish and Be Depressed; Alistair Dawson, Walls of Water; Richard Turbet, ‘Things Worthy of Note’: The Common Knowledge of the Chapbook; and Hugh Pennington, The Microbe-hunters of Aberdeen.
The Review, Winter 2009
The Review, published by the Aberdeen University Alumnus Association, Vol. LXII, 2 No. 218 Winter 2009. Featuring Isobel Murray, Travelling Light; Forbes W. Robertson, Spade, Rake, Dibble: Gardeners’ Fraternities in Scotland; Mick Hume, The Ferguson Factor; Amanda Wrigley, Antigone and the ‘Theban Maidens’ in Aberdeen, 1919; Gwen Chessell, The Many Lives of Alexander Collie.