Legacies of Empire in Int’l Criminal Law: Strategy & Accountability, 1914-39

• In Event: Law, Power, and Governance of the International

Abstract

In the years between 1914 and 1939, the ideal of “international criminal justice” went from obscurity to the forefront of international politics. Why did the legal category of “international crimes” and the policy goal of establishing internationalized tribunals empowered to adjudicate those accused of committing them enjoy such a resurgence during this period? And how did the contentious imperial politics of this era influence the goals, limits and success of this nascent international criminal justice system?

This article will discuss a number of conceptual institutional and doctrinal developments that occurred during this contentious period, touching upon a series of pivotal events including: the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties; the allocation of former Ottoman and German colonial territories among Allied powers; the 1920 Treaty of Sèvres’ provisions providing for individual liability for massacres of Armenians under a hypothetical criminal tribunal to be created by the League; the debates around cases of international criminal liability and granting the Permanent Court of Justice jurisdiction over such cases among the members of the 1920 Advisory Committee of Jurists; the draft statute for a permanent international criminal court developed by international jurists during a 1922 meeting of the International Law Association; the 1921 Leipzig War Crimes Trials; the inclusion of a provision mentioning the “crime of aggression” in a 1923-24 Draft Treaty of Mutual Assistance; the negotiations leading to the 1924 Geneva Protocol for the Pacific Settlement of International Disputes; the founding of l’Association Internationale de Droit Penal in 1924 out of the ashes of the International Union of Penal Law; two further proposals for an international criminal court in 1926 and 1927 by the Inter-Parliamentary Union and the International Law Association respectively; and the 1935 Draft Convention on Jurisdiction with Respect to Crime.

In discussing these events, I will focus on the ways in which The discussion of these events will center on the ways in which powerful colonial states sought to shape these events – and the legal norms that grew out of them – and to use processes of legalization and institutionalization to gain an advantage over both colonized polities and imperial rivals. In particular, this paper will address post-war discussions among international jurists and diplomats in which they grapple with the need to accommodate political calls for holding officials of the Central Powers to account for violations of the laws of war during and before WWI and the difficulty of squaring the notion that an individual could commit a crime against the society of states with prevailing positivist views of international law. Other themes to be addressed include: the discussions taking place during and after the war between European powers regarding the status of former Ottoman and German territories, the incorporation of paternalist concepts like the “civilizing mission” that had previously driven liberal justifications for empire into the League’s Mandate system, and the differences in tone and legal standards applied between the Leipzig tribunals and the Ottoman/Armenian trials.

This paper and the larger dissertation project of which it is a part engage with a variety of related literatures. These include a growing body of work in critical and postcolonial approaches to the history of international law that has sought to uncover the ways in which imperialism and colonialism shaped the development of international law over the full course of its history. This project also speaks to debates taking place in a number of issue areas of international relations theory, including: discussions of how institutional design shapes the behavior of individuals, discussions of how path dependence can lock in the policy preferences of powerful actors even over the long term (a central theme in historical and sociological institutionalism), and discussions of the ways in which international actors deploy international norms and seek to shape their content in order to promote their own national interests (addressed in recent constructivist work on the instrumental uses of norms in international relations).

Author

• Mackenzie Eason, University of California, Los Angeles