War Crimes Tribunal

This article is published by invitation in a special symposium issue of the John Marshall Law Review entitled “International Law in the 21st Century: The Law and Politics of the International Criminal Court.” The article compares the International Military Tribunal (also known as the Nuremberg Tribunal) with the International Military Tribunal for the Far East (also known as the Tokyo Tribunal), the two ad hoc international war crimes tribunals the Allies established after World War II to prosecute suspected atrocity perpetrators from Nazi Germany and Imperial Japan, respectively. The article examines these two tribunals’ similarities and differences, especially as they relate to the tribunals’ designs, staffs, and operations. The article concludes by suggesting that future research should consider whether and, if so, how similarities and differences between the Nuremberg and Tokyo tribunals affected their results, including their durations and judgments.

It’s a quarter of a century – and a half of my lifetime – since the 1995 Srebrenica genocide happened. Actually, to be more accurate, this genocide (like any other genocide) did not just happen; it was a planned, intentional crime committed by an army and the police trained, equipped and sponsored by Bosnia’s neighbour, the state of Serbia. They were the perpetrators –“beyond a reasonable doubt”, as numerous judgments by the ICTY have established– but this genocide was, in many regards, allowed to happened by the important actors within the international community who had chosen to play the role of passive bystanders, even though such a role was not only morally wrong but also against the international law and the 1951 Convention on the Prevention and Punishment of the Crime of Genocide. Moreover, while representing the first act of genocide in Europe after the Holocaust, this was also the first genocide ever to happen in a United Nations Safe Area (which sadly proved to be rather an un-safe area). At the time, the United Nations had its troops on the ground in Srebrenica with the mandate to protect people trapped in this largest refuge for Bosniaks in eastern Bosnia. However, instead of this mission becoming a triumph of the United Nations, in July 1995 Srebrenica became a triumph of the evil and the lowest point in the UN history.

These notes are extracted from slightly longer writer's notes published as part of my playtext of "Ubu and the Truth Commission". The play is performed by Handspring Puppet Company and was directed by WIlliam Kentridge. The play is being revived at Edinburgh this month, and so I am attaching the notes as they have edited them. There is also a link to a series of photos taken by Luke Younge, of the production. The link to see the images is:
    https://www.icloud.com/photostream/#A3G4TcsmGKz48i

Unit 731, at the forefront of Japan’s wartime bacteriological warfare programme, is deeply reviled in China but virtually forgotten in Japan today. Scholars have argued that this forgetting is largely the result of a United States cover-up of the Khabarovsk Trial, the 1949 Soviet military tribunal that brought the activities of Unit 731 to light.

This paper uses previously un-translated Japanese newspaper reports and clippings from People’s Daily, as well as British Foreign Office records and Russian Presidential Archive material to argue that the forgetting of the Khabarovsk Trial can be understood as the result of an “active forgetting” and a “passive forgetting”.

The official portrayal of the Soviet detention of Japanese soldiers in Siberia and the change in Soviet and Chinese policy towards Japanese war crimes between 1950-1956, this paper demonstrates, both had much to do with how the Khabarovsk Trial came to be forgotten.

It’s a quarter of a century – and a half of my lifetime – since the 1995 Srebrenica genocide happened. Actually, to be more accurate, this genocide (like any other genocide) did not just happen; it was a planned, intentional crime committed by an army and the police trained, equipped and sponsored by Bosnia’s neighbour, the state of Serbia. They were the perpetrators –“beyond a reasonable doubt”, as numerous judgments by the ICTY have established– but this genocide was, in many regards, allowed to happened by the important actors within the international community who had chosen to play the role of passive bystanders, even though such a role was not only morally wrong but also against the international law and the 1951 Convention on the Prevention and Punishment of the Crime of Genocide. Moreover, while representing the first act of genocide in Europe after the Holocaust, this was also the first genocide ever to happen in a United Nations Safe Area (which sadly proved to be rather an un-safe area). At the time, the United Nations had its troops on the ground in Srebrenica with the mandate to protect people trapped in this largest refuge for Bosniaks in eastern Bosnia. However, instead of this mission becoming a triumph of the United Nations, in July 1995 Srebrenica became a triumph of the evil and the lowest point in the UN history.

Although, there is a considerable literature which analyzes the UN Mission in Kosovo from different perspectives, limited attention has been given to the mission " s contribution in confronting with war crimes and crimes against humanity in Kosovo committed by the Milosevic regime against Kosovo Albanians during the 1998-1999. This article intends to provide a comprehensive analysis of international justice mechanisms – UNMIK and the ICTY – in dealing with the past injustices in Kosovo by identifying their flaws and shortcomings, as well as exploring factors that impacted their performance and effectiveness. By using the existing literature, international organizations " reports, governmental documents, and media articles, the article argues that international community failed to deal with transitional justice issues in Kosovo – fighting impunity and delivering justice to victims as well as strengthening the rule of law and achieving reconciliation between the communities. In its endeavors to documenting the past crimes, international mechanisms relied mainly on retributive justice whilst ignoring restorative and reparation measures under justifications to preserving peace and stability in Kosovo. Regretfully, seventeen years after the war, justice in Kosovo remains an " unfinished business, " with a potential of negative implications to peace and reconciliation amongst the ethnic groups.

Book chapter appeared in 'Cultural Memories of Nonviolent Struggles: Powerful Times', Anna Reading & Tamar Katriel (eds.), Palgrave Macmillan (2015). Investigates the so called 'Russell Tribunal', an independent tribunal which accused the US and its allies for crimes against humanity in the war in Vietnam in 1967. It has since been relegated to the peripheries of history.

The article explores the manifestly allegorical nature of Kurosawa's controversial 1950 film Rashomon, and how it was directly responding to the dishonesty of individuals called before recent war crimes trials (1946-48). After noting the overt symbolism of the film's opening setting, which manifestly alludes to the plight of Japan, the trials which dominated the nation's media in the late 1940s are also discussed (it notes 29 employees of the film company had been purged). As is stated at the film's onset, the community was distressed because it was evident that lies were being told and the truth concealed: similarly, in post-war Japan no one knew who to believe about war atrocities. Testimony is compromised, Rashomon shows, because the guilty seek to hide their misdeeds. A direct comparison is made with Clouzot's film from the Nazi-Occupation Period, Le Corbeau of 1943, which told a story of village life to likewise highlight dishonesty and betrayal in time of war. As with Rashomon, there was a local backlash against the film due to the plain, if uncomfortable contemporary message it delivered. Kurosawa's use of a medieval setting/story to moralise, again, about post-war Japan in his later samurai films, 'Seven Samurai' and 'Yojimbo', is considered; although, as is pointed out, his allegorical purpose was completely lacking in the popular Western versions of these films, 'The Magnificent Seven' and 'A Fistful of Dollars'. (Another cowboy film, 'High Noon', is praised in passing and likened to Kurosawa's approach.) Rashomon's seeming influence on Ingmar Bergman's 'The Seventh Seal', another allegorical tale of ethics and personal conduct against a medieval war setting, is also highlighted. 5pp

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 (ICTY) was established by Resolution 827 of the UN Security Council, on 25th May 1993. Such establishment of the international tribunal led to it being disputed, primarily due to the fact that it was established by the UN body, which does not have judicial authorizations and therefore cannot transfer them to one of its subsidiary organs. However, the ICTY has successfully fought all challenges of such nature out, but it triggered a series of debates in the professional community with promotion of new forms of criminal responsibility - from impugnment to unconditional approval. With critical review of specific interpretation of the concept of command responsibility and construction of joint criminal enterprise through practice of ICTY, the autor points out the tribunal’s inconsistency in interpretation of these forms of criminal responsibility, as well as the presence of elements of strict liability, otherwise unallowed in criminal law.

Die ÖH Doktorat Jus und das Institut für Strafrechtswissenschaften laden gemeinsam zu einem Kinoabend mit anschließender Podiumsdiskussion zum Spielfilm "Murer-Anatomie eines Prozesses". Anhand originaler Gerichtsdokumente wird der Fall des angesehenen steirischen Politikers Franz Murer erzählt, der im Zweiten Weltkrieg einer der Hauptverantwortlichen für die Tötung der Juden in Vilnius war. "Der Schlächter von Vilnius" kommt in Österreich vor Gericht und wird trotz erdrückender Beweislage nicht verurteilt. Ein historisches Präzisionskino stellt die damaligen Geschehnisse eindrucksvoll nach. "Einer der größten Justizskandale der Zweiten Republik-politische Strategie jenseits moralischer Werte" In der anschließenden Diskussion analysieren am Podium Univ.-Prof Dr. Miloš Vec (Universität Wien, Lehrstuhl für Rechts-und Verfassungsgeschichte), Mag. a Agnes Sirkka Prammer (Juristin, Justizsprecherin Die Grünen), Dr. Siegmar Lengauer (Universitätsassistent am Institut für Strafrechtswissenschaften) und Oberstaatsanwalt Mag. Herbert Harammer, LLM (Fachreferent für Strafrecht und Einzelstrafsachen im BMJ) die Hintergründe und Geschehnisse aus den unterschiedlichen Perspektiven. Gemeinsam diskutieren sie unter anderem die Frage, wie ein solcher Prozess heutzutage ausgehen würde. Gab oder gibt es eine Zwei-Klassen-Gerichtsbarkeit? Wie sieht es aktuell mit politischer Einflussnahme in der Justiz aus? Wäre ein solcher Ausgang bei derartiger Faktenlage immer noch möglich?

Crimes Against Humans and Crimes against Humanity. Implications for Modern Criminology. 18th Annual Conference of the European Society of Criminology, European Society of Criminology and University of Sarajevo, Sarajevo, Bosnia and Herzegovina (20180829-20180901). ”Crimes Against Humans and Crimes Against Humanity: Analysis of Documents Produced During Trials at Tribunals After the War in North-West Bosnia and Herzegovina”, with Zlatan Delić.

The aim of the study is to analyse documents produced during trials at the International Criminal Tribunal for the former Yugoslavia and the Section for War Crimes of the Court of Bosnia and Herzegovina concerning the 1992 war in north-west Bosnia and Herzegovina. The documents construct and reconstruct the categories of victim and perpetrator at a symbolic level. Punishing the offenders for war crimes is a means by which local and international courts attempt to eliminate the ideology on which the atrocities were based. The study interprets the documents as rhetorical warnings to future belligerents. Warfare that targets civilians and lack of respect for human rights are construed as unacceptable. In revealing the scope of war crimes committed during the period, the documents represent an attempt to influence the local and international community. They implicitly define the categories of victim and perpetrator, highlighting the individual and visible punishment to which the latter are subject while implying that their ideology has thereby been eliminated. The documents emphasize the role of individual responsibility in future wars. The presumption is that peer pressure is no excuse for war crimes and that civilians are never to be targeted.

Come sostiene il poeta ceco Vaclav Havel "il rispetto per i diritti umani è la condizione fondamentale e la sola, genuina garanzia della vera pace". Questo legame storicamente discontinuo verrà qui indagato a partire dal secondo dopoguerra soffermandosi sulla Dichiarazione universale dei diritti umani del 1948, soffermandosi poi su alcuni punti specifici: la ripresa dell'attivismo per i diritti umani nel contesto della guerra del Vietnam; la fondazione del tribunale Russell, e gli sviluppi degli anni Settanta riguardanti i dissidenti sovietici. A guisa di conclusione ci saranno considerazioni sugli effetti all'epoca non previsti degli accordi di Helsinki.

Design/Methods/Approach: The article is based on the current work of the judiciary and the prosecutor of the republics of Serbia, Bosnia and Herzegovina, as well as Croatia. We chose these three countries as the spatial framework for our research because during the civil wars in the Western Balkans most war crimes were committed on their territories. Through content analysis of existing domestic literature and our own survey research, the findings were comparatively analysed. In order to obtain further empirical and relevant information regarding the investigation and prosecution of war criminals in the Western Balkans, the methods of direct observation and analysis of the content of the judicial proceedings were applied.

The appropriate form of the legal address and redress to the victims of contemporary conflicts has received increasing attention in transitional justice literatures and debates. However, few scholarly analyses engage with civilians and military personnel as differential categories of unlawfully victimised persons. In seeking to address this gap, this article explores the construction of legal representation of civilian and military victims by the International Criminal Tribunal for the former Yugoslavia (ICTY). It first examines the prevalence, patterns and practices of their unlawful victimisation during the Yugoslavian conflicts, and then considers how civilians and military personnel are made visible at the ICTY as differential collectivities of victims by analysing patterns in its criminal prosecutions. This analysis shows that the ICTY constructs a legal record of acts of civilian victimisation, but an ambiguous account of its military victims.

Purpose: The aim of this paper is to present the situation regarding the detection and prosecution of war crimes in the Western Balkans, as well as to point out the main specifics or, better said, problems encountered by judicial authorities while dealing with these crimes. Design/Methods/Approach: The article is based on the current work of the judiciary and the prosecutor of the republics of Serbia, Bosnia and Herzegovina, as well as Croatia. We chose these three countries as the spatial framework for our research because during the civil wars in the Western Balkans most war crimes were committed on their territories. Through content analysis of existing domestic literature and our own survey research, the findings were comparatively analysed. In order to obtain further empirical and relevant information regarding the investigation and prosecution of war criminals in the Western Balkans, the methods of direct observation and analysis of the content of the judicial proceedings were applied. Findings: The work on detecting and prosecuting war crimes in attempting to provide evidence for use in criminal war crimes proceedings in the Western Balkans is a daunting task. This is because these crimes are both factually and legally of the most complicated sort, not the least in terms of their severity. Therefore, the research started by presenting the structure of the responsible governmental bodies conducting proceedings against war crime perpetrators in Bosnia and Herzegovina, Croatia, and Serbia. Special attention was paid to legal and practical problems in this field. The authors point to the many challenges making the detection and prosecution of these crimes both difficult and complicated. Thus, the aim of this article is to examine the aforementioned problems and, on the basis of analysis, contribute to building more effective legal and criminalistics methods for detecting and prosecuting war crime offenders in the Western Balkans. Research Limitations/Implications: The research results for the analysis of the investigative procedure and prosecution of war criminals in the Republic of Serbia, Bosnia and Herzegovina, and Croatia focus specifically on material collected regarding crimes committed in the period 1991 to 1999 only.

Practical Implications:
The research results can be used to develop a strategy for detecting and prosecuting war crimesby suggesting improved methods for gathering quality personal and material evidence in the Western Balkans. In addition, the paper provides information for practitioners and theorists outside of the Western Balkanscurrently dealing with issues related to such crimes. By familiarising themselves with the research findings herein, they will be able to expand their knowledge and use it as a basis for new research in this field. Lawmakers can also benefit from the results and make necessary amendments to the legislation and regulations of criminal procedures in the Republic of Serbia, Bosnia and Herzegovina, and Croatia to enhance the efforts in the area of countering war crimes. Further, by identifying the problems of conducting and processing investigations in the region, and by stressing the restricted prosecutorial resources, including the limited number of specialised prosecutors of war crimes, crimes against humanity and genocide, the shortage of prosecutors and support staff, as well as the lack of specialisation and expertise among defence counsel the findings of this research can contribute to the curriculum for the education of future lawyers (prosecutors, investigators, judges etc.) in this field.

Originality/Value:
The originality of this paper is reflected in the empirical study of procedures related to investigating and prosecuting war criminals inthe Western Balkans. This approach explores the challenges associated with a variety of issues. As such, it may also provide valuable information to be used in creating new methodologies for detecting and gathering evidence in legal and criminalistics practice. Lastly, it can serve as a basis for other research in the field.

Keywords: war crimes, investigation, prosecution, proving, legal and practical problems

This MA thesis is about the discursive battle between radical Bengali nationalists and the Islamist supporters of accused and convicted war criminals in Bangladesh where the gendered issues are used as weapons. In Bangladesh, the online discursive frontier emerged from 2005 as a continuing battle extending from the 1971 Liberation War when the punishment of war criminals and war rapists became one of the central issues of political and public discourse. An online community emerged with the ideological debate between the Bengali nationalist ‘pro-Liberation War’ and the supporters of the accused war criminals. These online discourses created the background of protest 2013 and at the time of the protest, the online community played a significant role. In this research as a past participant of Shahbag protest, I examined this online discourse and there gendered and masculine expression. To do that I problematized the idea of Bengali and/or Muslim women which are related to the identity contest. I examined that, to protest the misogynist propaganda of Islamist fundamentalists in Bangladesh, feminists and women’s organizations are aligning themselves with Bengali nationalism and thus cannot be critical about the gendered notions of nationalism. I, therefore, tried to make a feminist scholarly attempt to be critical of the misogynist and gendered notion of both the Islamists and Bengali nationalists of Bangladesh to contribute not only a critical examination of masculine nationalist rhetoric but will also to problematize that developmental feminist approach. I believe a meticulous feminist analysis of Bangladeshi nationalism is important within the feminist critical debates and the online sphere as a significant zone of discursive formation and power relations to analyze that national rhetoric.

Аннотация. Предметом исследования являются послевоенные международные отношения между СССР, США и Японией. В частности, вопрос передачи императора Японии Хирохито под суд Международного военного трибунала за военные преступления. Вопрос о целесообразности наказания императора решался американским командованием на основании анализа специалистов, исходя из политических последствий этого шага для политики Соединенных штатов в отношении Японии. Вопрос о наказании императора являлся одним из ключевых противоречий между СССР и США в области послевоенного устройства Японии, став одним из катализаторов осложнения отношений между СССР и Японией. Исследование произведено на основании изучения исторических документов, свидетельств очевидцев событий, а также статей и научных работ ведущих специалистов в этой области. В статье продемонстрировано, что американские специалисты прекрасно изучили ментальность японского народа, на основании чего сумели выработать успешную политику в отношении Японии и СССР. Используя в своих целях вопросы о наказании императора, о репатриации японских военнопленных, о территориальной принадлежности Курильских островов, США создало для СССР «японскую проблему», нерешенную до нашего времени.
Ключевые слова: Япония, Император Хирохито, Отношения США-СССР, Послевоенные отношения, Японские военные преступления, Вторая Мировая Война, Русско-японские отношения, Холодная война, Внешняя политика, Капитуляция Японии.
Review: The article focuses on the postwar relations between the Soviet Union, the USA and Japan, particularly, on the issue of extradition of the Emperor Hirohito to the international Military Tribunal for war crimes. The question of appropriateness of punishment was considered by American command on the base of the analysis of specialists and in terms of the political consequences of this step for the American policy towards Japan. The issue of the emperor prosecution was one of the main contradictions between the USSR and the USA in the sphere of a postwar order in Japan and served as one of catalysts of worsening of relations between the USSR and Japan. The research is based on the historical documents, the evidences of the witnesses of those events and the articles and scientific works of the leading specialists in this sphere. The author concludes that American specialists had a perfect understanding of the mentality of the Japanese and managed to choose a successful strategy in relation to Japan and the USSR. Using the issues of prosecution of the emperor, repatriation of Japanese prisoners of war, territorial belonging of the Kuril Islands, the USA created a “Japanese problem” for the USSR, which hasn’t been solved yet.
Keywords: Russian-Japanese relations, WWII, Japan war crimes, Postwar relations, Relations USA-USSR, The Emperor Hirohito, Japan, Cold war, Foreign policy, capitulation of Japan.

Оригинал статьи: http://nbpublish.com/library_read_article.php?id=-34034

There is a mistaken assumption which Pakistan takes for granted that the 1973 Delhi Agreement and 1974 Tripartite Agreement relieved the Pakistani prisoners of war (POWs) from all sorts of accountability for the 1971 genocide. Speaking truly, while signing the Tripartite Agreement, Pakistan "condemned and deeply regretted" the 1971 atrocities and appealed to the Bangalees to "forgive and forget the mistakes of the past" in order to promote reconciliation. In response, Bangladesh agreed not to proceed with the trial "as an act of clemency" to achieve "reconciliation, peace, and friendship in the sub-continent."

Dopo aver esaminato le diverse dinamiche della diplomazia italiana durante la fase di defascistizzazione, l’autore prende in esame il caso di studio dei rappresentanti diplomatici italiani inviati in Germania occidentale a partire dal 1946 e fino al 1953. Il saggio si basa su una documentazione inedita proveniente dall’archivio del ministero degli Esteri italiano, dall’archivio Centrale dello Stato e dall’archivio dell’Auswärtiges Amt di Berlino. Il tentativo di defascistizzazione del ministero degli Esteri fu ostacolato e poi vanificato da un complesso intreccio di condizionamenti politici e burocratici. Il caso dei primi rappresentanti italiani nella Repubblica federale di Germania mostra uno schiacciante livello di continuità del personale. Diversi diplomatici, che prima del 1945 erano stati in stretto contatto con i rappresentanti del Terzo Reich, furono inviati a rappresentare l’Italia repubblicana presso il governo del Cancelliere Adenauer.