Sir Geoffrey Nice QC Gresham Professor of Law

1. International criminal tribunals:  Experiments?  Works in progress?  Institutions that are here for good? Maybe not? Sir Geoffrey Nice QC Gresham Professor of Law This lecture will soon be available on the Gresham College website, where it will join our online archive of nearly 1,500 lectures. www.gresham.ac.uk

9. Robin Cook, Foreign Secretary The ICC is ‘not a court set up to bring to book prime ministers of the United Kingdom or presidents of the United States.’

10. VERSAILLES TREATY ARTICLE 227. The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused……… In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex- Emperor in order that he may be put on trial. ARTICLE 228. The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. ARTICLE 229. Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will be brought before the military tribunals of that Power.

11. Kaiser Wilhelm in a letter to Austrian Kaiser Franz Joseph: My soul is torn, but everything must be put to fire and sword; men, women and children and old men must be slaughtered and not a tree or house be left standing. With these methods of terrorism, which are alone capable of affecting a people as degenerate as the French, the war will be over in two months, whereas if I admit considerations of humanity it will be prolonged for years. In spite of my repugnance I have therefore been obliged to choose the former system."

12. WWI War Crimes Trials, at Leipzig Sergeant Karl Heyne, charged with mistreating British prisoners of war. he was sentenced to brief prison term of several months. Captain Emil Muller, charged with mistreating prisoners of war. He was sentenced to six months in prison. Private Robert Neumann, charged with mistreating prisoners of war. He was sentenced to six months in prison. Lieutenant-Captain Karl Neumann, charged with submarine warfare. He was found not guilty. First-Lieutenants Ludwig Dithmar and John Boldt, charged with war crimes on the high seas. They were two officers of the submarine SM U86 that had sunk the hospital ship Llandovery Castle and then attacked survivors in lifeboats. They were sentenced each tofour years in prison. Max Ramdohr, charged with crimes against the civilian population of Belgium. He was found not guilty. Lieutenant-General Karl Stenger and Major Benno Crusius, charged with mistreating French prisoners of war. Stenger was found not guilty, while Crusius was sentenced to two years in prison. First-Lieutenant Adolph Laule, charged with crimes against the French population. He was found not guilty. Lieutenant-General Hans von Schack and Major-General Benno Kruska, charged with mistreating prisoners of war. Both were found not guilty

14. in Ryuichi Shimoda et al. v. The State The District Court of Tokyo declined to rule on the legality of nuclear weapons in general, but found that: "the attacks upon Hiroshima and Nagasaki caused such severe and indiscriminate suffering that they did violate the most basic legal principles governing the conduct of war."

15. International Peoples' Tribunal on the Dropping of Atomic Bombs on Hiroshima and Nagasaki, 16 July 2007: "The Tribunal finds that the nature of damage caused by the atomic bombs can be described as indiscriminate extermination of all life forms or inflicting unnecessary pain to the survivors". "The... use of nuclear weapons in Hiroshima and Nagasaki was illegal in the light of the principles and rules of International Humanitarian Law applicable in armed conflicts, since the bombing of both cities, made civilians the object of attack, using nuclear weapons that were incapable of distinguishing between civilians and military targets and consequently, caused unnecessary suffering to the civilian survivors".

16. Deuteronomy 20 King James Version (KJV) 10 When thou comest nigh unto a city to fight against it, then proclaim peace unto it. 11 And it shall be, if it make thee answer of peace, and open unto thee, then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee. 12 And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it: 13 And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword: 14 But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.

17. The Lieber Code of 1863 ….Washington, April 24, 1863. 4. ……….As martial law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity13. Military jurisdiction ..defined by statute; ..and .derived from the common law of war. …… 16. Military necessity does not admit of cruelty-…..nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district…… 19. Commanders, inform the enemy of their intention to bombard a place, so that the non-combatants, and especially the women and children, may be removed 29 Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace…… 56. A prisoner of war ….. nor is any revenge wreaked…… the intentional infliction of any suffering, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. He that uses it puts himself out of the pale of the law and usages of war. 76. Prisoners of war shall be fed upon plain and wholesome food,.. treated with humanity. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 154. Treating in the field the rebellious enemy according to the law and usages of war has never prevented the legitimate government from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty.

18. Nuremberg Charter Article VI • (c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious groundsin execution of or in connectionwith any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

20. Lemkin’s initial use of the term, ‘Genocide’ in ‘Axis Rule in Occupied Europe’1944 outright extermination against Jews and Gypsies; also "coordinated plan of different actions" intended to promote such goals as an increase in the birthrate of the "Aryan" population, the physical destruction of the Slavic population over a period of years, and policies to bring about the destruction of the "culture, language, national feelings, religion" and separate economic existence (but not physical existence) of non-German "Aryan" nations thought to be "linked by blood" to Germany.

21. Genocide Convention 1948 Article 2 In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group

22. New art. 28F: Piracy New art. 28G: Terrorism “Terrorism” New art. 28H: Mercenarism Mercenary = Specially recruited to fight in an armed conflict………Motivated essentially by the desire for private gain; Neither a national, a resident, or a member of the armed forces of a party to the conflict; Any person, who recruits, uses, finances or trains mercenaries, commits an offence. New art. 28I: Corruption New art. 28Ibis: MoneyLaundering New art. 28J: Traffickinginpersons “Trafficking in persons” = recruitment, transportation, transfer, harboring or receipt of persons for the purpose of exploitation. Exploitation includes: exploitation of the prostitution of others, sexual exploitation, forced labor or services, slavery, servitude or the removal of organs. New art. 28K: Traffickingindrugs New art. 28L: TraffickinginHazardousWastes New art. 28Lbis: Illicit Exploitation of Natural Resources New art. 28M: Crime of Aggression “Aggression” ………regardless of a declaration of war:

23. 35th SDC Session – 13 April 1995

24. 35th SDC Session – 13 April 1995

25. Minutes of 36th SDC Session – 12 May 1995

26. Minutes of 36th SDC Session – 12 May 1995

27. Minutes of 36th SDC Session – 12 May 1995

28. Minutes of 36th SDC Session – 12 May 1995

29. Supreme Defence Council Session of 14 August 1995 • In the session of 14 August 1995, the first reference to the fall of Srebrenica and Žepa was made. Milošević referred to his communication with Mladić saying: • “Momo remembers well my conversation with Mladić on the occasion of attack on Žepa and Srebrenica. On that occasion I said: “Ratko, you are now measuring the military price of that success. The military price is six persons killed, 20 wounded, one vehicle destroyed, etc. It is inexpensive. However, the political price could be million times higher because there might be a concern for the interests of 12 million people!

30. ‘The existence of these intercepts was confirmed by a western diplomat. During a meeting at the White House between Gore and Bildt, the Swedish negotiator tried to convince the US vice-president that he should not form an excessively black-and-white image of President Milosevic. Gore responded to these statements by reading from US intercepts, which showed that Milosevic had consulted with Mladic about the attack on Srebrenica. Gore then reportedly said to Bildt: ‘Forget about this. Milosevic is absolutely not the friend of the West.’ NIOD – Dutch Institute for War Documenation Report

31. “It is war’s prize to take all vantages and ten to one is no impeach of valour” (Shakespeare’s Henry VI Part III Act I Scene 4).

32. The favourable view Sir Hartley Shawcross KC on the Nuremberg Trial: This Tribunal will provide a contemporaneous touchstone and authoritative and impartial record to which future historians may turn for truth and future politicians for warning

33. A More Cautious View Hannah Arendt on the Eichmann trial: The purpose of the trial is to render justice and nothing else; even the noblest of ulterior purposes can only distract from the law’s main business: to weigh the charges brought against the accused, to render judgement and to mete out punishment

34. DRAFT ..AMENDMENTS ..THE STATUTE OF THE AFRICAN COURT OF JUSTICE AND HUMAN RIGHTS New art. 28A: International Criminal Jurisdiction of the Court … (d) the crime of unconstitutional change of Government, (e) piracy, (f) terrorism, (g) Mercenarism, (h) corruption, (i) money laundering, (j) trafficking in persons, (k) trafficking in drugs, (l) trafficking in hazardous wastes, (m) illicit exploitation of natural resources, and (n) the crime of aggression. New art. 28B: Genocide (f): Acts of rape that are intended to change the identity of a particular group. New art. 28D: War Crimes (vii): Conscripting or enlisting children under the age of 18 years into armed forces or groups or using them to participate actively in hostilities. New art. 28E: The Crime of Unconstitutional Change of Government NB: This article was referred to the Assembly through the Executive Council for consideration. “Unconstitutional Change of Government”: means committing or ordering to be committed the following acts, with the aim of illegally accessing or maintaining power: Putsch/coup d’état against a democratically elected government (DEG);