Historical Origins of International Criminal Law: Volume 4 Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping (editors) Historical Origins of International Criminal Law: Volume 4 Morten Bergsmo, CHEAH Wui Ling, SONG Tianying and YI Ping (editors) 2015 Torkel Opsahl Academic EPublisher Brussels This and other books in our FICHL Publication Series may be openly accessed and downloaded through the web site http://www.fichl.org/ which uses Persistent URLs for all publications it makes available (such PURLs will not be changed). Printed copies may be ordered through online and other distributors, including https://www. amazon.co.uk/. This book was first published on 19 November 2015. © Torkel Opsahl Academic EPublisher, 2015 All rights are reserved. 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ISBN 978-82-8348-017-7 (print) and 978-82-8348-016-0 (e-book) Dedicated to CHEAH Choo Kheng and GOH Yuen Yong EDITORS’ PREFACE With the release of this Volume 4 of Historical Origins of International Criminal Law, the research project with the same name has fulfilled its publication goals. As editors we hope the four volumes – containing in their first editions more than 3,000 pages of materials – have increased our knowledge on historical antecedents and factors contributing to the development of international criminal law, and helped crystallise the community of those interested in the sub-discipline of the history of inter- national criminal law. The scope of the project has been unusually comprehensive. The re- sponse from scholars around the world was very encouraging, suggesting that the project theme has united relevant actors by speaking to a shared curiosity and wish to construct a more mature hinterland for international criminal law, similar to what criminal law enjoys within some countries. This should consolidate further the consensus around the basics of inter- national criminal law – in particular the principles born out of the Nurem- berg and Tokyo trials – regardless of differences of opinion about issues such as the International Criminal Court, universal jurisdiction or im- munity of state officials. International criminal law is much older than these controversies. International criminal law is much more than the In- ternational Criminal Court. Current controversies should not be allowed to cloud this historical reality. We would like to recognise the visionary role played by the Centre for International Law Research and Policy which has conceptualised and carried this research project from the beginning to the end. As with Vol- ume 3, we would also like to place on record our sincere gratitude to each member of the diverse and skilled editorial team and experts of the Torkel Opsahl Academic EPublisher, in particular Mr. Gareth Richards (who has again made an extraordinary contribution), Assistant Professor ZHANG Binxin, Mr. Moritz Thörner, Mr. Alf Butenschøn Skre, Ms. Shama Ab- basi, Mr. Ryan Nicholas Hong, Mr. Devasheesh Bais and Dr. WEI Xiaohong. As editors, we are responsible for the final result. But all the members of the team stand together in having completed this aspiring pro- ject. i Finally, we thank the German Ministry of Foreign Affairs for sup- port to finalise the editing of Volume 4, and the Royal Norwegian Minis- try of Foreign Affairs for support in other aspects of this research project. Morten Bergsmo CHEAH Wui Ling SONG Tianying YI Ping ii FOREWORD BY WEGGER CHRISTIAN STRØMMEN Volumes 1–4 of Historical Origins of International Criminal Law contain more than 80 chapters by over 100 contributors from every continent. They cover a broad spectrum of aspects of the historical evolution of in- ternational criminal law, falling into 13 main clusters: 1) Early anteced- ents of international criminal law; 2) the aftermath of the First World War; 3) the period between the two World Wars; 4) the Nuremberg lega- cy; prosecutions in 5) Japan, 6) China and Southeast Asia, and 7) Europe after the Second World War; origins of 8) core international crimes and 9) principles of individual criminal responsibility; contributions by 10) in- ternationalised jurisdictions, 11) national courts, and 12) other actors and methods; and 13) additional disciplinary perspectives. The scope of the four volumes is broad and inclusive. They contrib- ute important knowledge on the making of international criminal law over decades. They show how the sufferings of victims in armed conflicts around the world gradually made states hold those responsible accounta- ble through criminal trials. They discuss in depth how atrocities of the Second World War were subjected to several thousand trials in Japan, China, Southeast Asia and Europe. War victimisation cut across nations, religions, ethnic and other groups, and so did the trials. They were not reserved for one nation, region or skin colour. But states did not only hold trials at the national level. In resolution 95(1) of 1946 the United Nations General Assembly affirmed the Nurem- berg and Tokyo principles, and later new international law instruments such as the 1948 Genocide Convention and the 1949 Geneva Conventions were developed. States also started a long-drawn process to develop common international jurisdiction to enforce individual criminal respon- sibility when national criminal justice systems cannot provide accounta- bility for core international crimes. This ultimately led to the establish- ment of the International Criminal Tribunals for the former Yugoslavia and Rwanda and several other ad hoc internationalised criminal jurisdic- tions, prior to the entry into force of the Statute of the International Crim- inal Court (‘ICC’) in 2002. My country Norway has been fully supportive of these later devel- opments of international criminal justice. This active support has, indeed, iii become an important part of Norway’s foreign policy in the past two dec- ades, and continues to be so. But some other countries have adopted a wait and see attitude to parts of the newer developments, like the establishment of the ICC. Bring- ing the historical perspective of these four volumes into today’s debates on international criminal law may enhance our comprehension of the past, and thus help us overcome diverging views when they come to the fore- front today, and look forward. The wide geographical scope of the contri- butions makes them particularly relevant. The four volumes remind us that such contemporary controversies should not make us loose sight of the strong consensus around the central principles of international crimi- nal law. The fires and torment of the Second World War made minds so- ber and clear. At the heart of the common purpose of states and peoples were the United Nations Charter and the Nuremberg and Tokyo princi- ples. They remain pillars of the international legal order. Their contribu- tion in the past, present and future continue to serve international peace, security and justice. Through this large research project, the Centre for International Law Research and Policy draws our attention to the common legacy and interests at the core of international criminal law. By creating a discourse community with more than 100 scholars from around the world, the Cen- tre has set in motion a wider process that will serve as a reminder of the importance of the basics of international criminal law. Others may wish to follow this example and construct common ground in sister disciplines of international law, by that helping states to not get bogged down in current disagreements when they seek to develop the international legal order fur- ther. History can be our instrument to find this common ground in the field of international criminal law and related disciplines. Wegger Christian Strømmen Secretary General, Royal Norwegian Ministry of Foreign Affairs iv