My idea behind batesmith law and the batesmith law blog is to provide a focus for my ever-expanding international consulting practice, which over the last three years has seen me in such disparate places as Tashkent, Freetown, Beirut, Pristina, Ottawa, The Hague, Zagreb, Lisbon, Warsaw, Zurich Airport (more times than I'd care to remember), Lancaster...and many more places in between.
I would also like to share some thoughts on the inter-linked worlds of international criminal law, transitional justice and human rights, and will also post links to articles I have found interesting or events within these fields that might be of interest.
I'll start off very briefly by musing how international criminal law may have developed very differently (or may not have developed at all?) had the senior Nazis been summarily executed at the end of World War II rather than being put on trial at Nuremberg. An article appearing in today's Guardian newspaper describes how the British favoured hanging Goering et al, and felt that the proposal advanced by the Americans and the Russians to put the Nazis on trial was 'quite dreadful' to use the words written by Guy Liddell, head of counter-espionage at MI5, in his now-declassified diary of 21 June 1945. Liddell believed that the prosecutions would be no better than the Stalin-era show trials - in fact, Stalin himself seems to have believed that the Nazi prosecutions would have 'excellent propaganda value.'
The argument over whether Nuremberg's IMT was victor's justice has long since gone stale (so I won't rehearse it here), and we all knew that Churchill was not in favour of a tribunal (see for example the excellent description of this in Gary Jonathan Bass's Stay the Hand of Vengeance: The Politics of War Crimes Tribunals), but it's worth bearing in mind that holding up Nuremberg as a flawless paradigm rightly championed by the free world is not an accurate historical (or legal) portrayal.
Rather, the creation, functioning and legacy of the International Military Tribunal, as with each of the subsequent steps taken in the development of international criminal law, should be seen as more nuanced, complex and at times controversial than we sometimes allow for.
Is the world a better place because Roosevelt and Stalin outvoted Churchill at Yalta in February 1945? Unquestionably. However flawed the Nuremberg model was, however imperfect the subsequent iterations of international criminal justice have been, the recognition at the IMT of individual criminal responsibility for atrocities committed on behalf of States was an unarguable milestone. No longer could leaders perpetrating egregious crimes against humanity evade personal prosecution and conviction by claiming act of State. Even the decision to commit such serious crimes is taken by human beings: and it is they who should be held accountable.
The development of international criminal law is far from complete. Respect for it is far from universal. Practice of it is far from uniform. But without the work of the tribunals, from Nuremberg to the ICC and beyond, there would be more impunity.
The more difficult question to answer, however, is how far selective prosecutions (and no-one could seriously argue that the ICC's prosecutions are significantly representative of all the international crimes committed in the world since 2002) are a necessary evil in the development of international criminal law, or how far they will ultimately contribute to the disintegration of this nascent legal system....
...which might be a good cliff-hanger to end on. To be continued at some later stage.