JUSTICE - No. 65
5 Fall 2020 holding violators liable was Abraham Lincoln’s General Order No. 100,“Instructions for the Government of the Armies of the United States in the Field.”This Order governed Union Army conduct of operations and treatment of prisoners. 3 Lincoln’s code reflected the development of practices that, over centuries, had come to constitute laws of war: notions of chivalry and, above all, comity — what one army might do to another. Rules regarding surrender, quarter, pillage, and duplicity had emerged as practical answers to practical questions. General Order No. 100 became the foundation for international treaties on the subject from the end of the 19 th century to the present day. Collectively, those treaties have been the basis for holding violators legally responsible and accountable. The first attempts at holding violators accountable in courts were made after World War I: the victorious Allies required that German courts hold trials of a few German war criminals, and the British encouraged the Turkish government to try some persons involved in the Armenian genocide. 4 However, nothing was done to hold soldiers of imperial powers accountable for what today would be called crimes against humanity, in Africa and elsewhere outside of Europe. Europe’s colonial wars operated by different rules or even without rules at all. 5 The Nuremberg and Tokyo trials after World War II and their progeny, not only created accessible records of German and Japanese atrocities, but also set precedents in international criminal law that continue to be relevant today. These trials created enduring controversy over victor’s justice, accusations of selective prosecutions and double standards, and the application of ex post facto law. 6 They nonetheless provided impetus for the idea of establishing an impartial, permanent, international criminal court that could hold violators of the laws of war and perpetrators of crimes against humanity and genocide accountable. 7 The aim was to put an end to victor’s justice. 8 The result was the Rome Statute, adopted in 1998. While a substantial number of supporters of the idea acted from motives of justice for victims, others had a more complicated, and political, agenda. 9 Shortly before leaving office, on December 31, 2000, President Clinton authorized signature for the United States to the Rome Statute, but issued a statement that undermined the significance of the signature in legal terms. The statement read in pertinent part: Under the Rome Treaty, the International Criminal Court (I.C.C.) will come into being with the ratification of 60 governments, and will have jurisdiction over the most heinous abuses that result from international conflict, such as war crimes, crimes against humanity and genocide. The Treaty requires that the I.C.C. not supersede or interfere with functioning national judicial systems; that is, the I.C.C. prosecutor is authorized to take action against a suspect only if the 2. Congress ofVienna, Declaration of March 13, 1815, quoted in Rory Muir, WELLINGTON : WATERLOO AND THE F ORTUNES OF P EACE , 1814-1832, 23 (New Haven:Yale University Press, 2015). 3. See John Fabian Witt, LINCOLN’S C ODE : T HE L AWS OF WAR IN A MERICAN H ISTORY (NewYork: Free Press, 2012). 4. See Gary Bass, S TAYTHE H AND OF V ENGEANCE : T HE P OLITICS OF W AR C RIMES T RIBUNALS (Princeton: Princeton University Press, 2000). 5. See e.g. Isabel V. Hull, A BSOLUTE D ESTRUCTION : M ILITARY C ULTURE ANDTHE P RACTICES OF W AR IN I MPERIAL G ERMANY (Ithaca: Cornell University Press, 2005). 6. See Philippe Kirsch, “From Nuremberg to The Hague,” ICC (Nov. 19, 2005), available at https://www.icc-cpi.int/ N R / r d o n l y r e s / 0 8 A B 9 F 8 F - 5 3 A 2 - 4 5 3 3 - BCE0-887419726332/143894/PK_20051119_En.pdf 7. The U.S. was a leader in this international effort. See e.g. Vijay Padmanabhan,“From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference,” C OUNCIL ON F OREIGN R ELATIONS S PECIAL R EPORT N O . 55 (N.Y.: Council on Foreign Relations, Apr. 2010). 8. See M. Cherif Bassiouni, “Establishing an International Criminal Court: Historical Survey,” 149 M IL . L. R EV . 49 (1964). 9. See M. Cherif Bassiouni, “FromVersailles to Rwanda in Seventy-FiveYears: the Need to Establish a Permanent International Criminal Court,” 10 H ARV . H UM . R TS . J. 11 (1997). Bassiouni, a tireless advocate of the International Criminal Court and a participant in the negotiations of the Rome Statute, said at the closing of the Rome conference: “The ICC reminds governments that realpolitik, which sacrifices justice at the altar of political settlements, is no longer accepted.” See M. Cherif Bassiouni, “Negotiating the Treaty of Rome on the Establishment of an International Criminal Court,” 32 C ORNELL I NT'L L.J. 443, 468 (1999). Such a statement begs questions such as what is justice? What is Realpolitik? Who, and by what authority, decides?