Table Of ContentHUMAN RIGHTS INTERVENTIONS
DAMIEN L AW, POLITICS AND THE
ROGERS LIMITS OF PROSECUTING
MASS ATROCITY
Human Rights Interventions
Series Editors
Chiseche Mibenge
Stanford University
Stanford, California, USA
Irene Hadiprayitno
Leiden University
Leiden, The Netherlands
The traditional human rights frame creates a paradigm by which the duty
bearer’s (state) and rights holder’s (civil society organizations) interests col-
lide over the limits of enjoyment and enforcement. The series departs from
the paradigm by centering peripheral yet powerful actors that agitate for
intervention and influence in the (re)shaping of rights discourse in the midst
of grave insecurities. The series privileges a call and response between theo-
retical inquiry and empirical investigation as contributors critically assess
human rights interventions mediated by spatial, temporal, geopolitical and
other dimensions. An interdisciplinary dialogue is key as the editors encour-
age multiple approaches such as law and society, political economy, histori-
ography, legal ethnography, feminist security studies, and multi-media.
More information about this series at
http://www.springer.com/series/15595
Damien Rogers
Law, Politics and the
Limits of Prosecuting
Mass Atrocity
Damien Rogers
Centre for Defence and Security Studies
Massey University
Auckland, New Zealand
Human Rights Interventions
ISBN 978-3-319-60993-5 ISBN 978-3-319-60994-2 (eBook)
DOI 10.1007/978-3-319-60994-2
Library of Congress Control Number: 2017950297
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For Francesca,
unflinching warrior and fierce keeper of the peace
P
reface
This book is the culmination of yet another long night’s journey into day.
While it has taken me many years to write, its arguments rest largely on
foundations built by others. What began as a somewhat timid response to
Gerry Simpson’s excellent Law, War and Crime: War Crimes Trials and
the Reinvention of International Law (Cambridge: Polity, 2007) was soon
buttressed by the authoritative contents of International Prosecutors,
edited by Luc Reydams, Jan Wouters and Cedric Ryngaert and published
by Oxford University Press in 2012. The publication of Christine
Schwöbel-Patel’s Critical Approaches to International Criminal Law: An
Introduction (London and New York: Routledge, 2014) offered much-
needed reassurance that other scholars were grappling with the vexing
issues perplexing me. Without quality scholarship like theirs, it would not
have been possible to write this book.
I am also grateful to the Macmillan Brown Library at the University of
Canterbury for granting me access to their Justice Erima Harvey
Northcroft Tokyo War Crimes Trial Collection. It is, without doubt, a
national treasure.
My hope is that this book encourages its readers to consider the rela-
tionship between law and politics in a new light. The book not only dem-
onstrates that law can constrain politics and that politics can create,
animate and saturate the law, but also shows that international criminal
law constitutes its own type of international politics. In my view, too often
politics is conceptualised, unduly narrowly, as only cohering around a state
leader and his or her prerogatives. When this happens, law—especially the
enforcement of international criminal law—is routinely seen as a by-p roduct
vii
viii PREFACE
of politico-strategic affairs. While states are undoubtedly important to the
conduct of contemporary world affairs, including as makers of public
international law as well as its subject and object, states are not the only
entities through which people, acting as individuals or in concert, seek to
obtain and use power over others for substantive ends. Focusing on the
state as the primary entity of contemporary world affairs neglects the
importance of economic and social actors, and of their broader move-
ments. It can also blind us to the ways in which international prosecutors
of mass atrocity express their preferences for democracies, markets with-
out fetters and individuals as sovereigns unto themselves. These expres-
sions are important because those who do not share these preferences can
find themselves transformed initially into suspects, then into the accused
before becoming defendants standing in the dock. Denounced as enemies
of mankind, defendants are essentially excommunicated from humanity’s
ranks. In this regard I also hope the book encourages its readers to enter-
tain the possibility that prosecutions of mass atrocity occur as part of a
silent war fought for control over the politico-cultural project of
modernity.
Earlier drafts of this book were improved by comments and suggestions
generously offered by Neil Boister and Gay Morgan as well as by Gerry
Simpson and Wouter Werner. Three anonymous reviewers deserve praise
too for their penetrating criticism, responses to which I have done my best
to incorporate in the pages that follow. While they might not always agree
with everything I have done, the book is certainly better for their efforts.
My colleagues at Massey University’s Centre for Defence and Security
Studies and the politics programme provided ample encouragement and,
in particular, Professor Graeme Fraser offered wise council when it was
most needed. I also wish to thank Cambridge University Press for permis-
sion to reprint parts of my chapter entitled ‘Prosecutors’ Opening
Statements: The Rhetoric of Law, Politics and Silent War’ in Nabou
Hayash and Cecilia Bailliet (eds) The Legitimacy of International Criminal
Tribunals (Cambridge: Cambidge University Press, 2017). Any errors of
fact, lapses of expressions and all violations of academic conventions con-
tained in this book are my own.
c
ontents
1 Introduction 1
Part I Prosecuting Mass Atrocity After
the Second World War 31
2 International Military Tribunals 33
3 Indictment of German and Japanese War Leaders 57
4 Opening Statements at Nuremberg and Tokyo 85
Part II Prosecuting Mass Atrocity After the Cold War 103
5 Ad-hoc International Criminal Tribunals 105
6 Indictment of Yugoslav and Rwandan Troublemakers 133
7 Opening Statements at The Hague and Arusha 153
ix
x CONTENTS
Part III Prosecuting Mass Atrocity During
the War on Terror 171
8 International Criminal Court 173
9 New Generation of Prosecutors: Warrants,
Summonses and Opening Statements 199
10 Conclusion 223
Index 237
