The Western Criminologist:
Barbara Bloom
As violations of international criminal law intensify in both breadth and severity, the global community faces the challenge of enacting and enforcing regulations that adequately and expeditiously stifle international criminal enterprises. Thus, international criminal law should become increasingly more consequential to contemporary society. The development of consistently applied international criminal law standards is significant to the stability of the world order.
Part I of this analysis assesses the development of an international
criminal code and an international criminal court. Part II appraises
the enforceability of the crime of genocide with respect to the
Holocaust and the Vietnam War. Part III considers the future
direction of international criminal law.
International Criminal
Law
Social control is predicated on the
assumption that law-abiding citizens will be protected from
law-violators via [successful] criminal prosecution and eventual
punishment. The importance of social control is no less meaningful
when discussing violations of international criminal law. Indeed, the
obligation to develop adequate enforcement mechanisms is perhaps more
essential internationally because of the comprehensive and
threatening nature of the crimes. The consequences of genocide, for
example, are clearly more ominous than any single violation of
domestic statutory law.
The absence of a supreme international law-giving authority has often
been used as a reason for denying the existence of an
‘international criminal law.’ As Schwarzenberger (1950:
295) stated over four decades ago, “international criminal law
that is meant to be applied to the world powers…presupposes an
international authority which is superior to these States.”
Schwarzenberger (1950) maintained that ‘international criminal
law’ was an irresolvable contradiction because the most powerful
territories could not be guided or controlled by universal
legislation. In that the most powerful states could not be governed
by a universal jurisprudence, international criminal law was an
unattainable ideal. The ironic conundrum of the international legal
community is how it is possible to know the content of international
criminal law without an authoritative entity to clarify norms.
International Criminal Code
In 1947, the General Assembly
mandated the International Law Commission (ILC) to codify
“Offenses Against the Peace and Security of Mankind”
(Ferencz, 1992). In response to that mandate, the ILC did complete a
Draft Code of Offenses Against the Peace and Security of Mankind in
1954. The 1954 Draft Code was comprised of thirteen criminal acts,
notably concerned with aggression and genocide. The 1954 Draft Code
was tabled however, primarily because the term ‘aggression’
could not be defined. As Ferencz (1992: 377) affirms,
“…there was no purpose in trying to reach an agreement
about an international criminal code and court as long as the
principal international crime, aggression, was not yet defined.”
For several decades it was easier to commit aggression than it was to
define it.
Though the international community was finally able to define
aggression in 1974, debates continued over which crimes should be
included in a revised international criminal code. While leading
states, such as the United States, preferred the focus to be on
threats such as terrorism and nuclear proliferation, Third World
nations insisted the focus be violations of human rights (Williams,
1986). This debate continued until July 1991, when the ILC completed
a redesigned Draft Code of Offenses Against the Peace and Security of
Mankind. The 1991 Draft Code marks the second major attempt by the
United Nations in the past forty years to introduce a comprehensive
and universal normative framework for international criminal justice.
There are twenty-two recognized international crimes: aggression; war
crimes; unlawful use of weapons/ unlawful emplacement of weapons;
crimes against humanity; genocide; racial discrimination and
apartheid; slavery and related crimes; torture; unlawful medical
experimentation; piracy; aircraft hijacking; threat and use of force
against internationally protected persons; taking of civilian
hostages; drug offenses; international traffic in obscene
publications; destruction and/or theft of national treasures;
environmental protection; theft of nuclear materials; unlawful use of
the mails; interference with submarine cables; falsification and
counterfeiting; and bribery of foreign public officials. These crimes
are so designated because they either constitute offenses against the
world community (international), or the commission of the acts
affects the interests of more than one state (transnational).
International criminal laws are considered supreme. The rights and
obligations that a state has under international criminal law are
superior to any it may possess under domestic law. Despite this
guiding standard, the administration of international criminal
justice is frequently not pursued when aggressors are leading states.
This contradiction is evidenced by the failure of the global
community to develop an international criminal court in which to
prosecute offenders.
The lack of a permanent tribunal to try individuals charged with
international crimes is one ingredient that has prevented the
creation of a tangible international criminal justice system. While
the international community has sought to establish a permanent
international criminal court (ICC) since the end of World War I, the
goal has yet to be realized (Bassiouni, 1995; Ferencz, 1992; Pella,
1950). As Pella (1950: 68) stated over four decades ago, “...
international criminal law can achieve nothing unless there be an
international court to apply it.” In 1989, the General Assembly
requested that the ILC prepare a report on the establishment of an
international criminal court for the crime of drug trafficking
(Bassiouni, 1995). Though the completed report was not limited to
drug trafficking alone, the General Assembly encouraged the ILC to
continue its work. From 1992 through 1994, the ILC proceeded to
develop and finally adopted a Draft Statute for an international
criminal court.
The proposed ICC will be a permanent institution designed to
prosecute individuals who commit the most serious crimes of concern
to the international community, such as genocide and crimes against
humanity. From March to August 1996, several Preparatory Committees
were convened to discuss issues of jurisdiction, trigger mechanisms,
procedural questions, and the relationship of the Court to the UN
Security Council. On December 17, 1996, the General Assembly adopted
the resolution on the establishment of an international criminal
court by consensus (Wisskirchen, 1997). By the summer of 1998, it is
anticipated that an international treaty conference will be convened
in Rome, with signature and treaty ratification following shortly
thereafter.
Every civilized society is organized with clear laws and courts to
determine whether the laws have been violated. These two features are
clearly interdependent. The codification of principal crimes against
the security of mankind and the creation of an international criminal
court is not a simple matter. A serious effort to reconcile divergent
legal systems and reach acceptable compromises requires diligence,
patience, and the willingness to relinquish jurisdictional power.
Though progress has been made in recent years, the question remains
as to whether the work completed by the ILC will actually become
reality. Geopolitical forces continue to hinder the creation of this
entity. This assertion is subsequently examined with respect to the
crime of genocide.
International Military Tribunal at
Nuremberg
In the aftermath of World War II,
the governments of the victorious Allied nations agreed to establish
a special ‘international’ court at Nuremberg for the
purpose of prosecuting some of the major Nazi war criminals. The
historical uniqueness of the IMT was prompted by the response of the
Allies to the horrific nature of the crimes committed. It was
intended that legal responsibility be fixed for the atrocities that
were committed under or by the Nazi military and political
leadership. After a long and complicated trial, the historic
judgments of the court were delivered on September
30th and October 1st, 1946. Of the
22 indicted war criminals at Nuremberg, 19 (86%) were convicted, with
a variety of sentences ranging from prison terms to death imposed
(Rosenbaum, 1993).
When analyzing the IMT, the question of ‘victor’s
justice’ persists. The term ‘victor’s justice’
connotes, “the attempt by the victor to institute a scheme of
justice by which the actions, policies, and participants of the
losing side may be judged” (Rosenbaum, 1993: 37). Although the
IMT is sometimes viewed as camouflaged retribution (Rosenbaum, 1993),
it was in fact used to develop a set of legal and moral standards. As
such, ‘victor’s justice’ was, and is, more than just
the imposition of the conqueror’s will. It refers to a higher
responsibility incumbent on a law-respecting victor to secure a world
based on the ideals of law, morality, and justice.
The IMT made a significant contribution to international criminal
law. Clearly however, in order for the ‘rule of law’ to
prevail, it must be applicable to everyone. It is when the ‘rule
of law’ becomes inapplicable to those who initially endorsed it
that ‘victor’s justice’ becomes unjustifiable. The
value of Nuremberg has indeed been deflated because subsequent
developments did not validate it, symbolizing failed international
criminal law. This failure is subsequently examined with respect to
the International War Crimes Tribunal.
International War Crimes Tribunal
During the 1960’s and
1970’s, there were widespread charges that the United States was
waging a genocidal war in Vietnam (Duffett, 1968; Sartre, 1968). In
response to these allegations, a non-governmental International War
Crimes Tribunal (the Russell Tribunal) was convened in Copenhagen in
1966 and Stockholm in 1967 (Duffett, 1968). Unlike the IMT, the
Russell Tribunal rendered its judgments while the crimes were taking
place. The Tribunal was asked to determine whether the government of
the United States had, first, committed acts of aggression in
violation of international law, and second, intentionally bombarded
targets of a purely civilian character. Citing firsthand reports from
soldiers, professors, and scientists, the Tribunal reached two
conclusions (Duffett, 1968). First, that the United States had
engaged in serious acts of aggression against Vietnam in violation of
international law. Second, that the United States was guilty of the
deliberate and systematic bombardment of civilian targets.
Sartre (1968) advanced the most persuasive argument on the notion of
intent of American soldiers to commit genocide in Vietnam. Pointing
out that the memories of the Holocaust were still fresh, and that the
government of the United States had not still ratified the Genocide
Convention, Sartre (1968) argued that no governments would make the
mistake made by Hitler and actually proclaim a genocidal mindset. The
dilemma therefore, was whether studying the facts objectively could
discover genocidal intentions. Sartre (1968:79) concluded that the
“truth [was] apparent on the
battlefield in the racism of the
American soldiers.” The genocidal intent was implicit in the
facts, and therefore, was necessarily premeditated.
These episodes of genocidal behavior clearly demonstrate the extent
to which human depravity can extend. In an era of human progress, it
seems unfathomable that, first, such a brutal phenomenon can be
repeated so consistently, and second, that so few perpetrators of
genocidal acts have been held accountable for their actions. The
mechanisms by which violations of international criminal law are
enforced should dictate their global. Unfortunately, for the crime of
genocide, they do not.
The IMT demonstrated that
international criminal justice could, and should, be imposed to
frustrate the use of violence. Though critics maintain that Nuremberg
was a mask for retribution, crimes of war and crimes against humanity
and peace are unquestionably acts deleterious to the stability of the
international community. While Nuremberg established that the
‘rule of law’ should always prevail over the use of
violence, the failure of the global community to respond to
all contemporary violations of international criminal
law symbolizes that international criminal law has not yet fully
evolved. If geopolitical forces continue to determine which offenders
will be prosecuted, then international criminal law is destined only
to be a substantive fantasy.
Genocide is an indignity to the world community—an inhuman
onslaught against civilization (Yacoubian, 1997). Despite the
recognition that the crime of genocide is prohibited by international
criminal law, genocidal events continue to be committed before the
passive eyes of the international community. The universal failure to
take effective action against genocide has made a mockery of the most
sacred values of civilization. That today genocidal perpetrators
still live, unprosecuted by the international legal community, should
be an indignity to any that value a peaceful global existence. The
mitigation, if not the elimination, of these problems devolves upon
the further development of international criminal law. Unfortunately,
a specter of traditional, political forces may continue to thwart the
initiation of effective relief, indefinitely postponing the
redemption of these hopes. Until all that violate the law are brought
before it—an example of genuine international criminal
law—the international community must face the realization that
global victimization cannot elicit commensurate universal
jurisprudence.
Bassiouni, C. (1995). Establishing an
International Criminal Court: Historical Survey. Military Law Review 149, 49–57.
Duffett, J. (1968). Against the
Crime of Silence. New York:
O’Hare Books.
Ferencz, B. (1992). An International Criminal Code and Court: Where
They Stand and Where They’re Going. Columbia Journal of Transnational
Law 30, 375–399.
Lewy, G. (1978). America in
Vietnam. New York: Oxford
University Press.
Pella, V. (1950). Towards an International Criminal Court.
American Journal of International
Law 44, 37–68.
Research Note
Western Society of Criminology members Barbara Owen (CSU Fresno),
Barbara Bloom (SJSU), Jill Rosenbaum (CSU Fullerton), and Libby
Deschenes (CSULB) have been conducting an Office of Criminal Justice
Planning (OCJP) sponsored study entitled Modeling Gender-Specific Services in Juvenile Justice:
Policy and Program Recommendations.
This research project consists of three major components. First is a
literature and policy review which summarizes issues relating to
girls and young women at-risk or involved with the juvenile justice
system, research findings concerning risk and resiliency factors,
promising program components and a summary of federal and state
policy initiatives. Second is an analysis of data collected from a
statewide survey of juvenile justice practitioners, which identifies
available resources for girls and young women; and third is a report
summarizing the results of a series of interviews and focus groups
conducted with young women and professionals serving this population.
The final report will provide recommendations regarding existing
services, improving and expanding services to girls and young women,
and increasing gender parity in programs serving juveniles. If you
would like further information about this project, please contact
Barbara Bloom at (707) 778–7270 or e-mail at bloom@sonoma.edu.
WSC Awards 1998
Recipients of the Western Society of Criminology Fellow Awards
1997–98 David Huizinga, D. Kim Rossmo, Alice McGrath, and Mark
Umbreit
Recipients of the Western Society of Criminology Awards —
1997–1998
The Paul Tappan Award — For Outstanding Contributions to the
Field of Criminology Travis Hirschi
The Joseph D. Lohman Award — For Outstanding Service to the
Western Society of Criminology Inger Sagatun-Edwards
The June Morrison-Tom Gitchoff Founders Award —For Significant
Improvement of the Quality of Justice James I. Cook
President's Award — For Contributions to the Field of
Criminology and Positive Influence on the Current President's Career
Malcolm W. Klein
Special Recognition — Edgar Boyko
Acknowledgment of Sponsors
The Executive Board of the Western Society of Criminology, on behalf
of itself and all of the members of the association, wishes to
express thanks and appreciation to all of the individuals and groups
who supported the 1998 annual conference in Newport Beach with their
sponsorship of different events. We realize that without your ongoing
support of our organization, we would not be able to maintain a
reasonable dues structure while still providing the membership with a
newsletter and an exciting and intellectually engaging annual
program.
Our heartfelt thanks are extended to all of our sponsors: Dean
Michael Harter, School of Health and Human Services, California State
University, Sacramento; Sage Publications; Keith Boyum, Chair,
Division of Political Science and Criminal Justice, California State
University, Fullerton; Ron Vogel, Chair, Department of Criminal
Justice, California State University, Long Beach; Robert Nash Parker,
Director, Robert Presley Center for Crime and Justice Studies,
University of California, Riverside; Dean Morton O. Schapiro, School
of Letters, Arts, and Sciences, University of Southern California;
Malcolm W. Klein, Director, Social Science Research Institute,
University of Southern California; Henry Pontell, Department of
Criminology, Law and Society, School of Social Ecology, University of
California, Irvine; and Simon and Schuster.
The 1999 Western Society of Criminology (WSC) Annual Meeting is scheduled for February 25–28, 1999 at the Oakland Marriott in Oakland, California. The theme of the conference is The Challenge of Crime and Justice in the Millennium. Please contact Marilyn McShane, Program Chair, at Northern Arizona University, Criminal Justice Department, P.O. Box 15005, Flagstaff, AZ 86011–5005; (phone) 520–523–9519 or 520–523–6528; (fax) 520–523–8011; or (e-mail) marilyn.mcshane@nau.edu to submit panel or paper ideas.
The Board is excited about having our program in Oakland. The hotel
site is a 15-minute BART ride to and from San Francisco; it’s a
thoroughly multicultural city with some exciting arts and other
projects; The Oakland Museum is a little known gem. The building
itself is terrific with many interesting exhibits, including
California historical, anthropological and geological-botanical
sections; Jack London Square is delightful on a sunny winter day with
the flags fluttering, the ships and crew teams passing by almost
within reach and the crowds swarming through. It contains an
excellent Barnes and Noble bookstore, Yoshi’s, one of the
country’s great jazz clubs, and waterfront restaurants; and
finally, there are some very fine restaurants downtown, including
Chinese and Vietnamese.
Students On the Go
Siobhan Hanlon, a Criminology Major at Southern Oregon State College,
has been accepted into the Oregon Higher Education System’s
program call Global Graduates. Siobhan will be spending a term in
London doing a practicum at a solicitor’s firm that handles
defense work for juvenile offenders. The Global Graduates program
helps students with the costs of international travel and living
abroad while working and getting some academic credit for work. We
all wish her well during her term in London.
Call for Reviewers
The Western Criminology
Review is in need of reviewers. WSC
members can help out with the journal by making themselves available
to review manuscripts submited to the journal for publication
consideration. Although some have indicated that they are willing to
review, there is a need for more.
To be placed in the reviewer pool, mail your name, postal address,
e-mail address (if you have one), a phone number, a brief biography,
areas of specialization, and the type of computer and word processing
program(s) you use to Pat Jackson, WCR
Editor, Criminal Justice, Sonoma State
University, Rohnert Park, CA 94928; or fax it to (707) 664–3920.
For web surfers an online form is available at http://wcr.sonoma.edu/Inquiry.html. You can e-mail the information to wcr@sonoma.edu.
The first issue of the Western
Criminology Review will be released in
May. Although the WCR will not always address thematic issues, the
first one does. The papers relate to the theory and practice of
restorative justice. The Proceedings of the 25th Annual Meeting of
the WSC will also be included.
To learn the moment that we come online, join the WCR Listserv. Address your
e-mail to LISTSERV@SONOMA.EDU and leave the subject area blank. The text area type
SUBSCRIBE WCR-L and send your message.
The Western Criminologist Editor:
Dr. Miki Vohryzek-Bolden, Criminal Justice Division, CSU-Sacramento, 6000 J St. Sacramento, CA 95819-6085.