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The voyage towards an evaluation of the first international war crimes trial in fifty years is pe... more The voyage towards an evaluation of the first international war crimes trial in fifty years is perilou

ILSA Journal of International and Comparative Law, 1997

I. THROUGH A GLASS DARKLY ......................................... 598 II. V OX POPULI ............ more I. THROUGH A GLASS DARKLY ......................................... 598 II. V OX POPULI ............................................................. 601 III. THE TRIAL OF THE CENTURY ........................................ 601 IV. THE PROSECUTION PLODS ON ....................................... 602 V. THE LOST EYES OF OMARSKA ....................................... 606 VI. WITHER THE PROSECUTION? WHITHER TADIC? ....... .......... 608 VII. WHO IS DAVID DUKE? .................... ............................. 610

Valparaiso University law review, 2016

Law School, on January 14, 2016 as part of the school's commemoration of Dr. Martin Luther King J... more Law School, on January 14, 2016 as part of the school's commemoration of Dr. Martin Luther King Jr.'s birthday. The attempt to convert the rhythms of spoken language into the meter of the written word is always a special challenge, which the authors have tried to meet with fidelity to the original. The challenge of producing this Transcript was compounded by the fact that the lecture featured the contrapuntal dynamic of frequent exchanges between the two, further leavened by the fact that they are husband and wife. Additionally, they did not speak from a prepared text, but from notes and ideas hammered out in advance. They have also, where appropriate, referenced subsequent materials and events that seem relevant to the views expressed at Valparaiso, but do not necessarily represent the views of the Valparaiso University Law Review.

The Nuremberg Trials: International Criminal Law Since 1945 / Die Nürnberger Prozesse: Völkerstrafrecht seit 1945, Jan 31, 2006

It is an honor to attend this 60 th Anniversary Nuremberg conference and to explore the American ... more It is an honor to attend this 60 th Anniversary Nuremberg conference and to explore the American perspective on the Nuremberg trials. There are many states of mind appropriate to examining the US point of view. At this moment in history, however, the most appropriate mental state is a healthy taste of irony. 1 1 would like to explore three of these ironies. The first emanates from the contrast between the profound impact the Nuremberg trials have had on international law, and the fact that the United States, a prime moving force behind the trials came close to neither fostering nor participating in them. A second flows from the fact that the paramount legal principle motivating US participation at Nuremberg, criminalizing aggression, has been the least durable of the Nuremberg principles. The final, and most dramatic irony lies in the efforts of the current American Administration to advocate new norms governing the use of force and to foster new attitudes suggesting US unwillingness to adhere to international law. These efforts could nullify much of the meaning of Nuremberg for the US. However, before examining these ironies let me suggest a framework for analyzing the American role at Nuremberg. Professor Richard Falk has described a post war "normative architecture" 2 which rejects "genocide, crimes against humanity" and other violations of human rights and humanitarian law. The foundation for this architecture can be found in a trilogy 3 of documents, the London Charter, the Universal Declaration of Human Rights, and the UN Charter. This trilogy and the resulting normative architecture has provided a quantum leap in the protections afforded to two vulnerable groups: (1) noncombatants during armed conflict and (2) all human beings subject to persecution by government authorities. Those protections include establishing and confirming norms, criminalizing violations of many of those norms and, where necessary, conferring jurisdiction on international courts and tribunals to adjudicate major norm violations. Within this trilogy of documents and the resulting normative architecture, the London Charter is unique in providing all these forms of protection. It assessed individual criminal responsibility before a multinational tribunal, established new norms and reaffirmed aspects of customary law. Additionally, in charging violations of "crimes against humanity" the Charter challenged the idea that Westphalian ' It is not suggested that this paper constitutes an exhaustive or comprehensive exploration of the US contribution to Nuremberg. See for example Evan J. Wallach, The Procedural And Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide An Outline For International Legal Procedure?' 37 COLUMB. J. TRANSNAT'L L. 851 (1999) on the US contribution to the Rules of Procedure and Evidence at the trial. 2 Richard Falk has explained the term in the following way: "There has been the remarkable emergence of what I would call a normative architecture that repudiates genocide and crimes against humanity that has been erected in the half century since World War II." Keynote Speech, Remembering the Holocaust and the Geopolitical Persistence of Indifference, Conference on Law and the Humanities: Representation of the Holocaust, Genocide, and Other Human Rights Violations at Thomas Jefferson School of Law (Jan. 17, 2005). For those who might see the "normative architecture" as an ideological construct, see the view from a career military officer, Lt Col. Schmitt. [f]or nearly as long as humans have engaged in organized violence, there have been attempts to fashion normative architectures to constrain and limit it. Such architectures-labeled the law of armed conflict in late Twentieth century parlance-are the product of a symbiotic relationship between law and war.

African American Review, 1996

The voyage towards an evaluation of the first international war crimes trial in fifty years is pe... more The voyage towards an evaluation of the first international war crimes trial in fifty years is perilou

ILSA Journal of International and Comparative Law, 1997

I. THROUGH A GLASS DARKLY ......................................... 598 II. V OX POPULI ............ more I. THROUGH A GLASS DARKLY ......................................... 598 II. V OX POPULI ............................................................. 601 III. THE TRIAL OF THE CENTURY ........................................ 601 IV. THE PROSECUTION PLODS ON ....................................... 602 V. THE LOST EYES OF OMARSKA ....................................... 606 VI. WITHER THE PROSECUTION? WHITHER TADIC? ....... .......... 608 VII. WHO IS DAVID DUKE? .................... ............................. 610

Valparaiso University law review, 2016

Law School, on January 14, 2016 as part of the school's commemoration of Dr. Martin Luther King J... more Law School, on January 14, 2016 as part of the school's commemoration of Dr. Martin Luther King Jr.'s birthday. The attempt to convert the rhythms of spoken language into the meter of the written word is always a special challenge, which the authors have tried to meet with fidelity to the original. The challenge of producing this Transcript was compounded by the fact that the lecture featured the contrapuntal dynamic of frequent exchanges between the two, further leavened by the fact that they are husband and wife. Additionally, they did not speak from a prepared text, but from notes and ideas hammered out in advance. They have also, where appropriate, referenced subsequent materials and events that seem relevant to the views expressed at Valparaiso, but do not necessarily represent the views of the Valparaiso University Law Review.

The Nuremberg Trials: International Criminal Law Since 1945 / Die Nürnberger Prozesse: Völkerstrafrecht seit 1945, Jan 31, 2006

It is an honor to attend this 60 th Anniversary Nuremberg conference and to explore the American ... more It is an honor to attend this 60 th Anniversary Nuremberg conference and to explore the American perspective on the Nuremberg trials. There are many states of mind appropriate to examining the US point of view. At this moment in history, however, the most appropriate mental state is a healthy taste of irony. 1 1 would like to explore three of these ironies. The first emanates from the contrast between the profound impact the Nuremberg trials have had on international law, and the fact that the United States, a prime moving force behind the trials came close to neither fostering nor participating in them. A second flows from the fact that the paramount legal principle motivating US participation at Nuremberg, criminalizing aggression, has been the least durable of the Nuremberg principles. The final, and most dramatic irony lies in the efforts of the current American Administration to advocate new norms governing the use of force and to foster new attitudes suggesting US unwillingness to adhere to international law. These efforts could nullify much of the meaning of Nuremberg for the US. However, before examining these ironies let me suggest a framework for analyzing the American role at Nuremberg. Professor Richard Falk has described a post war "normative architecture" 2 which rejects "genocide, crimes against humanity" and other violations of human rights and humanitarian law. The foundation for this architecture can be found in a trilogy 3 of documents, the London Charter, the Universal Declaration of Human Rights, and the UN Charter. This trilogy and the resulting normative architecture has provided a quantum leap in the protections afforded to two vulnerable groups: (1) noncombatants during armed conflict and (2) all human beings subject to persecution by government authorities. Those protections include establishing and confirming norms, criminalizing violations of many of those norms and, where necessary, conferring jurisdiction on international courts and tribunals to adjudicate major norm violations. Within this trilogy of documents and the resulting normative architecture, the London Charter is unique in providing all these forms of protection. It assessed individual criminal responsibility before a multinational tribunal, established new norms and reaffirmed aspects of customary law. Additionally, in charging violations of "crimes against humanity" the Charter challenged the idea that Westphalian ' It is not suggested that this paper constitutes an exhaustive or comprehensive exploration of the US contribution to Nuremberg. See for example Evan J. Wallach, The Procedural And Evidentiary Rules of the Post-World War II War Crimes Trials: Did They Provide An Outline For International Legal Procedure?' 37 COLUMB. J. TRANSNAT'L L. 851 (1999) on the US contribution to the Rules of Procedure and Evidence at the trial. 2 Richard Falk has explained the term in the following way: "There has been the remarkable emergence of what I would call a normative architecture that repudiates genocide and crimes against humanity that has been erected in the half century since World War II." Keynote Speech, Remembering the Holocaust and the Geopolitical Persistence of Indifference, Conference on Law and the Humanities: Representation of the Holocaust, Genocide, and Other Human Rights Violations at Thomas Jefferson School of Law (Jan. 17, 2005). For those who might see the "normative architecture" as an ideological construct, see the view from a career military officer, Lt Col. Schmitt. [f]or nearly as long as humans have engaged in organized violence, there have been attempts to fashion normative architectures to constrain and limit it. Such architectures-labeled the law of armed conflict in late Twentieth century parlance-are the product of a symbiotic relationship between law and war.

African American Review, 1996