THE POLITICS OF WAR CRIMES TRIBUNALS

GO 238j JanPlan 2003

Prof. Ken Rodman
karodman@colby.edu
Miller 255
x3270
Office Hours:
Tuesday and Thursday, 10-12
Wednesday, 3-4

COURSE DESCRIPTION:

This course examines the politics of international accountability over violations of the laws of war, crimes against humanity, and genocide. In so doing, it poses questions at the intersection of politics and law. Can an international system without a central sovereign authority establish an international rule of law and assert criminal accountability over those who violate it? How willing are states to establish institutions that prosecute war criminals, particularly when the victims are not one’s own nationals? Do war crimes tribunals represent progress in the development of the international rule of law or are they little more than "victor’s justice"? Should political considerations influence decisions regarding prosecutions or do they compromise efforts to construct an international legal order that ends impunity? Are there circumstances when amnesties or truth commissions are preferable to prosecutions? Are there circumstances where a legalistic approach to war crimes might work at cross-purposes with diplomacy and peacemaking?

These questions will be addressed first by looking at the Nuremberg Trials after the Second World War and the degree to which they challenged traditional international law and the realpolitik considerations that undergird it. The significance of the Nuremberg precedent will be examined vis-à-vis the US approach to war crimes committed during the Vietnam War, alternatives to prosecutions such as South Africa’s Truth and Reconciliation Commission, the UN tribunals for war crimes in the former Yugoslavia and Rwanda, universal jurisdiction cases such as the Pinochet extradition hearing in Britain, the debate over the International Criminal Court, and the controversy surrounding US tribunals for Taliban and Al Qaeda prisoners in Guantanamo Bay.

REQUIRED READINGS:
The following are available at the bookstore for purchase:

  • Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals
  • Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice
  • Steven Ratner & Jason Abrams, Accountability for Human Rights Atrocities in International Law (SELECTED CHAPTERS IN COURSE PACK)
  • Council on Foreign Relations, Toward an International Criminal Court
    • You should also purchase the following two case studies on-line:
  • Paul Sondrol, "The English Patient: General Augusto Pinochet and International Law" (Case 230)
  • Eric K. Leonard, "Establishing an International Criminal Court: The Emergence of a New Global Authority?" (Case 258)

    • ASSIGNMENTS:
    1. Attendance and Participation (15%)
    2. Midterm Examination on January 14 (25%)
    3. Final Examination on January 30 (30%)
    4. Simulation Paper and Presentation (30%) – each student will be assigned a role for a simulated debate or court case between January 22 and 29. The paper for the class is due at 10 A.M. the day of the class for which it is to be presented. Preference sheets and assignments will be made during the first week of class.

    OFFICE HOURS:
    I am in my office most of the time, but will set aside office hours on Tuesday and Thursday from 10-12 and Wednesday from 3-4.

    COURSE OUTLINE:

    January 6: Introductory Lecture - War Crimes Legalism versus Realism
    There were two required readings for the first class. First, you should have read pages 1-16 from the first chapter of Gary Jonathan Bass, Stay the Hand of Vengeance. Second, you should read the essay, "The Pitfalls of Universal Jurisdiction" by Henry Kissinger that was emailed to you the day before class.
    For those of you interested in examining the classic realist critique of legalism and foreign policy, see George F. Kennan, "Diplomacy in the Modern World," in American Diplomacy, (University of Chicago Press, 1984), pp. 91-103. 91-103.

    January 7: The Early Development of the Laws of War and impact of Politics on their Implementation
    Required:
  • Robertson, pp. 80-92, 167-184
  • Bass, pp. 16-36, 58-82

    • January 8: The Road to Nuremberg
    Required:

  • Bass, ch. 4 (skim to get the basic point), 5
    • January 9: Nuremberg: Legalist Precedent or Victor’s Justice?
    Required:
  • Robertson, ch. 6
  • Nuremberg Handout
    • January 10: The Legacy of Nuremberg - International Law and State Practice
    Required:
  • Ratner & Abrams, pp. 27-44, 80-107
  • Robertson, 20-56

    • Recommended:
  • Robertson, pp. 92-123
    • January 13: Nuremberg and the Vietnam War – The My Lai Massacre
    ***CLASS WILL MEET FROM 2:00-3:45***
    Required:
  • My Lai Handout
    • January 14: Midterm Examination

    January 15: Amnesty and Truth Commissions as Alternatives to Prosecution: South Africa’s Truth and Reconciliation Commission (1-3:30 Class)
    Required:

  • Robertson, ch. 7
  • Tina Rosenberg, "Recovering from Apartheid," The New Yorker, November 18, 1996: 86-95
  • David Goodman, "Why Killers Should Go Free: Lessons from South Africa" Washington Quarterly (Spring 1999): 169-181
    • January 16: The International Criminal Tribunals in the Hague and Arusha
    Required:
  • Bass, pp. 206-271
  • Robertson, pp. 70-79
    • January 17: The ICTY and Bosnian War Crimes
    Required:
  • Robertson, ch. 8
  • Ratner and Abrams, pp. 190-201
    • January 20: The Rwanda Tribunal – National versus International Options
    Required:
  • Ratner and Abrams, ch. 8 & 201-206
  • Samantha Power, "Rwanda: The Two Faces of Justice" New York Review of Books, January 16, 2003: 47-50
    • January 21: Kosovo Video (1-3:30 Class)
    Required:
  • Bass, pp. 271-275,
  • Robertson, ch. 11 (skim sections not on Kosovo)
  • Ratner & Abrams, pp. 129-147
    • January 22: Simulation - Trying Milosevic for Genocide in Kosovo (2:30 Class)
    Required:
  • Joseph Lelyveld, "The Defendant" New Yorker, May 27, 2002: 82-95
  • Tim Judah, "The Star of the Hague," New York Review of Books, April 25, 2002: 37-39
    • January 23: Simulation - The Pinochet Extradition Hearing before the British Law Lords (1-3:30 Class)
    Required:
  • Robertson, ch. 10
  • Sondrol, :The English Patient" (Pew Case 230)
    • Recommended:
  • Jeremy Rabkin, "First They Came for Pinochet," Weekly Standard, November 23, 1998 (accessible through Lexis-Nexis)
  • Ricarcdo Lagos and Heraldo Munoz, "The Pinochet Dilemma," Foreign Policy (Spring 1999): 26-39
  • http://search.epnet.com/direct.asp?an=1700746&db=aph
    • January 24: Simulation - Belgium’s Universal Jurisdiction Law Before the International Court of Justice
    Readings TBA

    January 27: International Criminal Court (ICC): Negotiating the Treaty
    Required:

  • Leonard, "Establishing an International Criminal Court" (Pew Case258)
  • Robertson, ch. 9
    • January 28: Simulation: Should the US Oppose the ICC (1-3:30 class)
    Required:
  • Council on Foreign Relations, Towards and International Criminal Court. Entire
    • January 29: Terrorism: The Geneva Convention and the Prisoners at Guantanamo
    Required:
  • Aryeh Neier, "The Military Tribunals on Trial" New York Review of Books, February 14, 2002: 11-15
  • Jeremy Rabkin, "After Guantanamo: The War over the Geneva Convention" National Interest (Summer 2002)
  • http://search.epnet.com/direct.asp?an=6870670&db=aph
    • January 30 Final Examination