Student Features – Page 17 – Harvard International Law Journal

Book Review: From Nuremburg to the Hague: The Future of International Criminal Justice

The last decade of the twentieth century witnessed the rapid expansion of international criminal law. Though catalyzed by many factors, signicant credit for this remarkable growth can be attributed to two mutually reinforcing phenomena. First, following the bloodshed in Rwanda and Yugoslavia, the international community resurrected the criminal tribunal as a fundamental component in defining and punishing criminal acts committed by state actors. Second, as the decade progressed, national governments became increasingly ready to protect their citizens’ rights by asserting “universal” jurisdiction over foreigners alleged to have violated those rights; most famously, this resulted in the London arrest of Augusto Pinochet. The growing acceptance of and jurisprudence surrounding both international criminal tribunals and universal jurisdiction came together in June 1998 when the United Nations adopted the Rome Statute, which defines the structure of the new International Criminal Court (I.C.C.).

Even if the immediate impetus for creating the I.C.C. was violence both in the Balkans and the African Great Lakes and related domestic judicial activism in the 1990s, the true forebear of the new Court is the Nuremberg Trials [hereinafter “the Trials”] following World War II; it was there that many of the notions later solidified by the Rome Statute were first promulgated, including the concept of “crimes against humanity.” Though the heritage of Nuremberg is evident in the I.C.C., the Trials have proven an uneasy foundation for the new body, with the precedent of Nuremberg’s dual political/judicial purpose causing some observers, and even potential I.C.C. member states, to shy away from endorsing the court. Philippe Sands’s edited work, From Nuremberg to the Hague: The Future of International Criminal Justice provides a wideranging examination of these issues, analyzing the Nuremberg Trials themselves, their impact on the ad hoc tribunals organized in response to Rwanda and Yugoslavia, and their likely impact on the potential of the I.C.C.

Book Review: Law and Colonial Cultures: Legal Regimes in World History, 1400–1900

July 1, 2004

Challenging scholars of both colonial history and globalization, Lauren Benton’s Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems. These conflicts led colonial states to assume increased control of important economic transactions. Benton tackles both the scholarly accounts that claim colonizers overran helpless native populations and those that argue only European or Western powers pursued policies aimed toward promoting markets or economic growth. Benton even takes on one of the sacred cows of traditional colonial studies: Chinua Achebe’s Things Fall Apart. In Achebe’s novel, the protagonist, Okonkwo, faces two trials: the first by his fellow villagers and the second by a British colonial tribunal. In Benton’s rendering, Achebe depicts the first as part of a generally well-functioning Nigerian society suddenly ripped apart by the arrival of British colonialists, and the second as an entity almost entirely foreign to Okonkwo. In essence, Benton argues that, as a historical matter, not only would Okonkwo have been aware of the law governing British colonialists, but he would have taken advantage of it if he saw the possibility of a better outcome.

Benton traces, through five episodes in world history, how the colonizer’s law began as one of several legal systems, then gradually expanded to areas of economic concern, such as the enforcement of contracts or the transfer of property, and finally made a place for both indigenous and colonizing litigants. In seventeenth-century North America and Iberia, eighteenth-century Africa and India, and nineteenth-century Uruguay, Benton traces parallels in the historical development of the state-centered order. The reader will find engaging and thorough narratives on the legal history of these regions, but will be left unconvinced that a single phenomenon is at work. Benton is more successful at completing the historical narratives that emphasize the colonial state as resulting from competing European empires or from local processes that developed “national” consciousness in colonies. To this end, she claims that jurisdictional conflict formed a type of regime for this period.