Wednesday, December 16, 2015

Gordon on International Criminal Law, 1894-1900

Gregory S. Gordon, Chinese University of Hong Kong Faculty of Law, has posted International Criminal Law's "Oriental Pre-Birth": The 1894-1900 Trials of the Siamese, Ottomans and Chinese, a reprint from Historical Origins of International Criminal Law, ed. M. Bergsmo et al. Volume 4  (TOAEP 2015), 4: 119-180:
Conventional wisdom often traces the origins of international criminal law (ICL) to the 1474 prosecution for atrocities in Alsace of Burgundian governor Peter von Hagenbach and then straight to the Nuremberg and Tokyo trials post-World War II. But this paper demonstrates that history has ignored a remarkable decade at the end of the nineteenth century when three international criminal proceedings with links to the Orient took place: (1) in 1894, a French-Siamese mixed court sat in judgment of Phra Yot, a Siamese governor charged with the death of a French military commander; (2) in 1898, an International Military Commission of four European powers prosecuted versions of war crimes and crimes against humanity arising from Muslim-Christian inter-communal violence on the Ottoman-controlled island of Crete; and (3) in 1900, another international criminal tribunal, this one also consisting of four European powers, presided over the trial of participants in the Boxer Rebellion for proto-crimes against humanity.
More after the jump.

The paper describes the origins of these three "Oriental" tribunals, including an overview of the noble, and at turns, cynical rationales that inspired the Great Powers to turn to adjudication efforts and international processes. ICL scholarship has examined the trials separately but never together, within their broader historical context. Doing so reveals that they took place during an odd confluence of European colonialism's apogee and the international peace movement's founding. This fascinating period features the erosion of the Congress of Vienna framework, Industrial Revolution demand for overseas cheap labor, raw materials, and new markets, and nascent efforts at establishing transnational arbitral institutions. While Africa was carved up among the European powers at the 1884 Berlin Conference, there was no such orderly division of territory in the Orient. The paper posits that the featured trials are the product of peace movement arbitral impulses in coping with outbursts of violence and resulting tensions among the Europeans competing for imperial possessions in the context of that violence -- without a Berlin Conference-style regional master plan. The trials anticipated many important ICL developments, including proto-formulations of war crimes and crimes against humanity and the establishment of ad hoc and hybrid tribunals. But, sadly, they did not pave the way for Allied use of ICL to achieve justice in the imminent wake of World War I. At that point in history, the Europeans were ready to sit in judgment of their imperial subjects but not of themselves. Thus, these remarkable ICL efforts seem more a subliminal outgrowth of the era's Zeitgeist than a needed groundwork for post-Versailles justice. Still, when viewed holistically and contextually, these late-nineteenth century inquests supply an important missing link between the Hagenbach trial and the proper advent of ICL in the twentieth century.

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