Report of a Conference held at the Institute of Advanced Legal Studies in 2009, published in the IALS News section of Amicus Curiae - Journal of the Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London

Charlesworth, Lorie

Kandiah, Michael

Rowbotham, Judith

English

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Conference reportWar Crimes – Retrospectives and Prospects,February 19-21, 2009The intention of this conference was to bring together, ina small forum, a group of individuals with real expertiseand insights in a range of areas. Originally a one-daycolloquium had been envisaged, but when the call forpapers resulted in a plethora of important and also wide-ranging options, the conference committee (JudithRowbotham, Lorie Charlesworth, Michael Kandiah andBelinda Crothers) agreed that we had to expand our visionin order to accommodate as many as possible. We took thegamble that such a diverse mix of experience and expertise,bringing together academics (lawyers, historians,anthropologists, political scientists) with practitioners andprofessionals (judges, barristers, NGO workers,researchers etc) would work: that brought together in aconference format but without packing the conferencewith large numbers of delegates, real debate would ensueand that commonalities, examples of good (and bad!)practice, and even – ambitiously – strategies for movingforward would emerge. It did work! The result was a lively,stimulating, engaging set of debates emerging from theseencounters between ﬁne minds and the commonpassionate determination to make a difference.The conference opened with a challenging plenary fromLesley Abdela. Drawing on her experience in theimmediate aftermath of conﬂict in Kosovo, Bosnia, SierraLeone, Iraq, Afghanistan, Acheh and most recently, Nepal,Lesley talked of the importance of making theidentiﬁcation and deﬁnition of war crimes, and theirsubsequent prosecution, more than an admirable concept;and into something which can actually help in post-conﬂictreconstruction in such societies. Her particular emphasiswas on gender as a key factor in reconstructing citizenship,and she talked of the issue of rape, and its widerimplications for the legal process. That was a theme whichregularly re-emerged during the conference, as part of thedebate over whether it was possible to identify someinternational code, and even more importantly, language,of rights which could unite all the participants in warcrimes trials. Deﬁning the nature of a war crime, in thecultural spaces of the local/national and the internationalwas a key problematic: Lesley pointed out it was onlyrecently that rape had been identiﬁed formally as a warcrime, and this identiﬁcation was hedged around withproblems. This led to another debate much discussedduring sessions, breaks and dinners in the conference: is ituseful to talk of the “victims” of war crimes, certainly whenwe are talking of the living? Are they not offered a betterrespect when the terminology of victimhood and itsimplications are avoided? Might “witnesses” or “survivors”be a better set of labels, especially in terms of their abilityto reconstruct themselves as individuals and communitiesin the post-conﬂict world? Debate over this was a sustainedtrope for the remainder of the conference.Another challenge was looking beyond the rhetoric tobegin to ﬁnd answers to, the question of who wasundertaking the war crimes trials and on whose behalf?The debate threw up another important point: that thepolitics of justice are complicated and it is not always easy14Amicus Curiae Issue 77 Spring 2009Monday, 8 JuneMURRAY HUNTLegal Adviser, Joint Committee on Human RightsScrutinising legislation for human rights compatibilityMonday, 15 June, 09.00-17.00Conference organisersPROFESSOR ERIKA SZYSZCZAKCentre for European Law and Integration, University ofLeicesterDR TARJEL BEKKEDALCentre for Research on Markets, Innovation andTechnology, Institute of Private Law, University of OsloPROFESSOR MADS ANDENASUniversity of Oslo and IALSGovernment and services of general interest in a global worldTuesday, 16 June, 08.30-15.30Workshop organisersPROFESSOR ERIKA SZYSZCZAKCentre for European Law and Integration, University ofLeicesterDR TARJEL BEKKEDALCentre for Research on Markets, Innovation andTechnology, Institute of Private Law, University of OsloPROFESSOR MADS ANDENASUniversity of Oslo and IALSWorkshop on SGEIs, the European social model and free movementTuesday 23 June – Thursday 25 June, 09.30 – 17.00W G Hart Legal Workshop 2009(see page 9 for further details)IALS Newsto apportion “blame” or the label of being “in the right”;partly because of the complications of the ways in whichtreaties are written (war crimes such as rape may continueafter a treaty is concluded, but they no longer acquire thelabel and so are not considered treaty violations). There isalso the issue of what should be the role of theInternational Criminal Court: should it involve itself inpost-conﬂict resolution, or was that aspect of war crimestribunals for other agencies and agendas? Was it possible,or desirable, to draw a line between the work of war crimestribunals, especially where the ICC was involved, and otheragencies (local, national and international)? And whatkind of justice was being sought? How could, and indeedshould, international jurisprudence trickle down intodomestic courts? Should the ICC have a role in this? It wasagreed that in many ways, “justice”, certainly as it wasperceived by those who suffered from or were affected bywar crimes in some way, was often contained in theinterstices of procedure, and that was a real complication.By the end of the opening session, it was plain that one ofthe themes that would regularly emerge was the challengeto academics to ﬁnd ways of providing work which couldbe used to inform and support war crimes initiatives,especially in the courts. A challenge for practitioners andprofessionals in the ﬁeld was ﬁnding the best way ofestablishing good practice, respecting local differenceswhile supporting the concept of international law (and socharacterised by a fundamental agreement on keyconstituent elements), and an international code ofpractice that respected – even gave primacy to? – thenational dimension. It was accepted that there were many(too many?) different jurisdictions and court processeswhen it came to war crimes tribunals. How did thiscontribute to, or work against, the ﬁght to establish goodpractice?For many, a core issue was where should prosecutions takeplace? Were hybrids between the national and theinternational tribunals the way forward? This was aparticularly crucial issue given the time factors and thegeographical realities of distance. The economic dimensionalso came up as a regular theme, but we all felt it to be ashortcoming that we had not had specialists in this aspectcome forward. It was pointed out that historically, andeven today, one of the things which was generally carriedon during a war was trade: today it was likely to be illegalrather than legal trade, as in the case of the Maﬁa in Bosnia,but that was a dimension that needed to be exploredfurther.Peter Rushton and Gwenda Morgan revealed the historicalorigins of attitudes which colour a state’s practice whendealing with war crimes. They explored the perceivedimportance of an observance of legal protocols during theAmerican Revolution/War of Independence, which foundreal echoes with the strategies adopted by defence lawyersas depicted in the powerfully-delivered panel featuring JoeMcMillan, Michel Paradis and Melissa Epstein Mills, onprosecutions in Guantanamo Bay, and the prosecution ofUS servicemen for misconduct during the Iraq war.Equally, the historical dimension demonstrated that it wasthe label of “war crime” that was new: many of the crimesnow encompassed under that banner were already well-established as atrocities in war, as in the case of rape. It wasvery impressive to hear the range of papers on Bosnia also;in particular the panel based around the experiences of theProsecutor’s Ofﬁce and the UNDP in Bosnia-Herzegovina.Aided by their Chair, Shireen Fisher (who, until 2008, wasan International Judge there), Toby Cadman, Iva Vukusicand Alma Dedic provided an absorbing set of insights intothe developments there.As well as Bosnia, attention was given to a range of Africanexperiences, and to the lesser known events in Cambodia(Silke Studzinsky brought us the latest news on the trialsjust beginning there) and South America: as well as Peru,where Jose Pablo Baraybar reported, the resoundingclosing plenary delivered by David Sugarman testiﬁed tothe importance of a global, as well as a historical,comprehension in order to understand the impact of warcrimes, especially when war crimes tribunals are not anautomatic resource. One of the great regrets of theconference was that the overly-complicated visa systemnow operating for entry to the UK meant that one speakeron African experiences in Uganda that many were veryeager to hear was not able to be present: Lawrence DuluAdrawa of the African Development and Peace Initiative.Despite the horrors that characterise war crimes, it has tobe commented that from the debate following the openingplenary on, one very positive aspect emerged organicallyand was sustained during the various papers anddiscussions, becoming a conference trope. That is theextent to which so many individuals professionally involvedin the aftermath of war crime, including investigators,judges, lawyers and others were passionately engaged in,and committed to their work beyond “normal”professional duties, in ways that commanded theenormous respect and admiration of the conferenceorganisers. The range and scope of the commitmentdemonstrated, in a humbling manner, that originaldiscipline and formal qualiﬁcations need be no bar toinvolvement, witness the role played by Konrad Kweit andhis team of historians in bringing Lithuanian Nazis to trialin Australia; something that was also emphasised by DavidFraser’s challenging plenary. It was not just the speakers:many of the delegates present had tales to tell whichdemonstrated the same energetic dedication. Such levels ofcommitment require broader public recognition.The creation of a synthesis – a manual – of what makes asuccessful tribunal was identiﬁed as a genuinely urgentneed. Whenever a new court is created, it has to create alegal culture for itself – a reference guide of what hasworked elsewhere could help to avoid the repetition of oldmistakes. In this sense also, speakers such as Cissa WaNumbe asked if, in the light of the ICC and international 15Amicus Curiae Issue 77 Spring 200916Amicus Curiae Issue 77 Spring 2009tribunals generally, it was possible to say that these courtswere appropriately accountable and were identifying thepeople who needed to be prosecuted. How far were suchcourts located in, and focusing on, the weaker states, theeconomically poorer and less powerful entities andindividuals? Was it necessary, if a genuine internationaljustice was to be achieved, to identify a second category ofwar crimes and criminals: those who aided or were in someway complicit in the committal of war crimes; those whoseaid or compliance was essential to the performance of warcrimes without them being actually the perpetrators? Itshould not matter, Cissa Wa Numbe challenged, who theperpetrators were, in terms of status, nationality orprominence: if they could be identiﬁed, should they not beprosecuted? All injustice needed to be dealt with. And asJose Pablo Baraybar insisted, given the numbers (ofvictims, witnesses, perpetrators) involved in so manymodern war crimes, there was also a problem with theretributive justice process of the law invoked in war crimestribunals. He urged the need to involve aspects of civilsociety in the delivery of justice to those awaiting it in theaftermath of what he described as a “permanent” crime forwhich society demanded justice, if it was to heal. Theconference ﬁnished on a high note with the concludingplenary from David Sugarman, reﬂecting through theexample of the trope of memory in Chile on many of thethemes and issues brought up elsewhere in the conference.In the concluding Round Table, several key points wereheld by speakers to have been identiﬁed during theconference. First, it is now time to have a review of theexisting war crimes tribunals, including the ICC, and toquestion the extent to which there is a rule of law which isstandard to them. It seems to be agreed by most there thatdistant courts are not the answer in the majority of cases oftrials for war crimes: there is a need for these to be as localas possible, which also raises issues of the compositions ofjuries in national and international tribunals. It is agreedthat there needs to be a focus on other institutions andwhat their role in the creation of post-war justice should be– including states and bodies such as the EU, the USA,NATO and the UN. It was suggested that while there wasmuch discussion from them, there needed to be talks aboutthem in this context.In organising this interdisciplinary conference at theInstitute of Advanced Legal Studies, facilitated by IALS,along with fellow institutions in the School of AdvancedStudy at the University of London (Centre forContemporary British History and the Institute ofCommonwealth Studies) SOLON owes a great debt toBelinda Crothers at IALS for her practical organisation(without her, it would never have happened!) – but onceagain, we return to the reality that we owe a great debt toour speakers and participants, many of whom made hugeefforts and considerable sacriﬁces to enable them to gethere, and who have now returned to work that is neither asinecure nor carries a guarantee of personal safety. It wasthey who made the conference the humbling, worrying butalso at times inspiring, call to action that it turned into.Thank you!Judith Rowbotham, Michael Kandiah, LorieCharlesworth**A fuller version of this report is available on the CCBH and the SOLONwebsitesCambridge International Symposium onEconomic Crime 2009The 27th Cambridge Symposium takes place at Jesus College, Cambridge from August 30 –September 6. Entitled “The Enemy Within – internal threats to the stability and integrity ofﬁnancial institutions”, this year’s event focuses on the extent of serious risks from insideinstitutions as a result of penetration and internal misconduct. Particular attention will begiven to initiatives designed to address the problems resulting from corruption and fraud.Further details are available from:Mrs Angela FutterSymposium ManagerJesus College, Cambridge CB5 8BL, UKTel: +44 (0) 1223 872160Fax: +44 (0) 1223 872160E-mail: info@crimesymposium.orgor visit www.crimesymposium.org

Conference report: War Crimes - Retrospectives and prospects, February 19-21, 2009

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