Contrasting Strategies within the War Crimes Trials of Kesselring and Wolff

This article compares the different ways in which, during the post-war decades, the Allied war crimes trials programme responded to the war criminality of two prominent German officials: Field Marshal Albert Kesselring and SS General Karl Wolff. It explores the question of why Wolff, whose complicity was arguably much greater than that of Kesselring, received more favourable treatment, and the role of various political and geo-political factors, including those influencing the interventions of US intelligence officials, as explanations for this apparent legal discrepancy. Dr. Kerstin von Lingen is a researcher at the Centre for Studies on Experiences in War (SFB 437 “Kriegserfahrungen”) at Tubingen University, Germany; Dr. Michael Salter is Professor of Law at The Law School, University of Central Lancashire, United Kingdom.     

国内武装冲突中的战争犯罪审判问题研究

针对国内武装冲突中的战争犯罪行为,国家立法机关应当提供必要的惩处依据。我国现行刑法、刑事诉讼法和人民法院组织法尚不能适应追究这类犯罪的客观需要。建议通过法律修正案或单行法规的形式,尽快完善相关的实体法、程序法和组织法,促进中国特色社会主义法律体系的健全发展,为军事斗争准备提供必要的法律保障。     

The Reality of Conducting a War Crimes Trial

Since proceedings at the international criminal tribunals areessentially adversarial in nature they inevitably are party-led,rather than judge-led. The inherent challenges of conductinga large-scale war crimes trial are further exacerbated whenthe accused chooses to represent himself. However, the authorbelieves the bench has the opportunity, by robust applicationof a number of rules already available, to exert considerableinfluence over the course of events at all stages of proceedings,thereby ensuring fair and expeditious war crimes trials. Thereal benefits of the judicial process are to be found in thesuccessful prosecution of the guilty and exoneration of theinnocent: in view of the massive size of cases before the tribunals,that is only achievable by judicial control and focus on thereal issues in dispute, even if this implies that the tribunalscan no longer satisfy some of the original expectations withwhich they were set up. The author identifies a number of practicalissues, to which judges at tribunals should always be alert,and illustrates some by reference to events during the trialof Slobodan Miloevi, as well as current proceedings before theICTY.     

Corporate Liability for International Crimes under Canada's Crimes Against Humanity and War Crimes Act

Given that the Rome Statute does not provide jurisdiction totry corporations for breaches of international criminal law,it has been suggested that national jurisdictions might be usedto fill this impunity gap. The author presents several arguments.First, the international criminal law system, including theRome Statute — and particularly the principles of universaljurisdiction and complementarity — provides the theoreticalgrounding for states to assert jurisdiction over internationalcrimes wider than the International Criminal Court (ICC). Second,Canada, owing to interactions between its domestic legislationimplementing the ICC Statute and existing national criminallaw, is now able to prosecute corporations for breaches of internationalcriminal law. Finally, this increased jurisdiction of Canadiancourts is consistent with the current status of corporationsunder international criminal law. What is really interestingabout Canada's approach, however, is not so much that it hascreated a new legal principle, but rather that it is one ofthe first countries to establish jurisdiction over internationalcrimes committed by corporate entities which were previouslycommitted with impunity.

By stating that I could not guaranteethat the army is not using forced labour, I certainly implythat they might, (and they might) but I am saying that we donot have to monitor the army's behaviour: we have our responsibilities;they have their responsibilities; and we refuse to be pushedin to assuming more than what we can really guarantee. Aboutforced labour used by troops assigned to provide security onour pipeline project, let us admit between Unocal and Totalthat we might be in a grey zone.¹

     

Establishing Universal Human Rights through War Crimes Trials and the Need for Cosmopolitan Law in an Age of Diversity

This article explores the practical and philosophical issues associated with bringing diverse moral conceptions into the judgments of international crimes. It is argued that a Habermasian view of cosmopolitan law provides a possibility for envisioning the way international courts can contribute to a universal morality across culturally disparate human rights conceptions. It is also argued that the most universally acceptable human rights conceptions reflect a convergence of procedures and substance. The author explores the treatment of rape in international war crimes tribunals in order to demonstrate how these judgments advance a more universally-acceptable human rights conceptions. Barbara Korth Faculty of Education. Indiana University 201 North Rose Ave Bloomington IN 47405, USA.     

战争罪的国内立法研究

战争罪是在战争或者武装冲突中发生的违反战争法规、严重侵犯人权的罪行。战争罪主要是国际法上的罪行,但国内法院也承担着追究战争罪罪犯刑事责任的重要任务。将我国缔结的国际公约里规定的战争罪转化为国内刑法上的犯罪,是我国作为缔约国应当履行的条约义务。但我国《刑法》只有第446条和第448条规定的两个犯罪才基本符合国际法对于战争罪的定义。我国《刑法》应当专章设立“危害人类和平与安全罪”,使其包括战争罪等核心罪行,这样可以更好地维护我国的刑事管辖权,有效地避免我国公民受到国际刑事法庭的审判,以便享受《国际刑事法院规约》补充管辖原则提供的益处。     

The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today

This article discusses aspects of the origin and development of jurisprudence relating to the prosecution of sexual and gender-based violence (SGBV) in the context of international criminal law. It examines a selection of archival material from the United Nations War Crimes Commission (UNWCC) and other bodies connected to it, noting that the UNWCC was the first multinational criminal law organization to explicitly endorse SGBV crimes as international crimes. UNWCC-supported trials in both Europe and Asia suggest that rape committed in the context of armed conflict or situations of mass violence was punishable as a serious crime nearly 70 years ago. Moreover, many of the theories of liability used by contemporary tribunals today were used in the UNWCC-supported cases. The authors maintain that the UNWCC archives are not only valuable for tribunals prosecuting conflict-related SGBV cases today, but the jurisprudence emerging from UNWCC-supported cases may also be quite relevant to contemporary policy debates.     

Shutting Down the United Nations War Crimes Commission

This article presents the struggle between factions in the executive branch of the US government over post-war relations with Eurasia in general and Germany in particular. It argues that the legal and moral divide between the groups concerned interpretation of war crimes, crimes against humanity, and the limits of national sovereignty. It discusses the discontent of members of the UNWCC over US and UK efforts to close the Commission and how the United Nations dealt with the remaining UNWCC cases and records.     

Comprehension of War Crimes Against Civilian Population by the Tribunal in The Hague

In the text, the author criticizesattitudes and conclusions in the document ofthe Hague Tribunal under the title ``FinalReport to the Prosecutor by the CommitteeEstablished to Review the NATO Bombing CampaignAgainst the FRY'. At the beginning of thepaper, it is indicated to what extent generallegal estimation on damage inflicted to naturalenvironment, the use of projectiles withdepleted uranium, cluster bombs as well aslegal questions related to the choice oftargets for attacks are controversial andhardly maintainable.Also, it is given a comment on thegeneral estimation of the bombing campaign withan attitude that a number of killed civilians(around 500) ``does not indicate that NATO mayhave conducted a campaign aimed at causingsubstantial civilian casualties either directlyor incidentally', by which an interestingcriterion for the estimation of somebody'sintention – the number of victims – isintroduced.Considering ``specific incidents',it is stated which of them the Commission didnot explain. Those mentioned in the Report arecommented as well as the estimations related tothem. It is especially done in the case of thebombing of the RTS building in Belgrade, untilthen, without precedent in the history of wars.The author considers that only dueto the stated negligence, the anonymousCommission could conclude ``that neither anin-depth investigation related to the bombingcampaign as a whole nor investigation relatedto specific incidents are justified'.