Legal history

Part 2 : modern codification

Chapter 1 : modern codification

1. Modern codification after the French Revolution: definitions

During the 18th century, there’s a growing movement of centralization and bringing laws of
European states together.
The European world of 1789 was one of diversity, including in their legal system. That means
that multiple codes exist (all states had some form of Codes). Historians call them compilation
codes since they bring together rules and customs of different states.
There are a few different definitions to the act of codification
- « A written composition of the law in a particular area with exclusive force issued by a
government »
➔ A top-down movement = something imposed from the top (government) to down (the
society). It’s an object, namely a written text with the government being the author of
it.

- « A systematic compilation of clear principles, an all encompassing law »

➔ Not specific enough ; too vague to define modern codification because it is more than
just a compilation, but indeed codification is an all encompassing law.

- « A new text specially drafted for the occasion, containing a comprehensive and
systematic exposition of the norms in some important field of law and replacing all
previous laws, customs and authorities »
➔ Systematic reform and reorganization ; it’s the most complete definition, it
emphasizes the idea of a profound and systematic reform of the legal landscape. This
landscape = restructured, meaning we go to a new reorganization !

- « Un ensemble de règles juridiques mises en forme, la codification étant alors cette

opération de mise en forme de règles juridiques en un ensemble »
➔ Legal security ; insists that codification leads to legal security

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 2. Dynamics of codification

Composing the code will take a lot of time, because a strong political will is needed. The
problem is that not everyone is always ok with the ideas of others. One needs to reach some
sort of agreements. Codes are also part of the unification movement as they emerge when
states unify.

There a few reasons for codification :

- Social need for legal security
- A strong political will
o A specific framework:
▪ Nation-States (mostly)
▪ Enforcing authority on subjects
▪ Political unification
▪ Nationalism
The idea of the code emerges late, more or less in 1815. The code adopted by Napoleon is
going to be used as a legal tool by other states as well.

It’s a new legal phenomenon which ruptures with the laws of the old regime, it freezes the
new laws. The autonomy and recognition of the codified subject is achieved and there is some
sort of “completeness”, the code is complete in every way. As a consequence of this, judges
don’t have a specific role as they used to. They just need to read the texts of the Code.

Codification will happen in the wake of the French Revolution. It is an ambition of the French
revolutionaries : "Il sera fait un Code général de lois simples, claires, et appropriées à la
Constitution" In 1800, we see the set up of a commission of 4 lawyers who will study different
legal traditions and will make some sort of transaction between written laws and customs.
Napoleon is going to be personally involved and the State itself will reorganise society.
A new legal culture
The Codes are a compromise that retains elements of different traditions in order to obtain a
compromise.
- New principles are brought forward.
- Classification of society and the status of people
- Completeness as it is a code for “ages”

“The French Civil Code (1804) is a product of the Enlightenment and of absolutism, but it is
fundamentally a result of French Revolution (...). It combines the confirmation of revolutionary

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conquests (civil equality, secularized marriage, property liberated from feudal duties) with an
authoritarian frame for the family (very limited ability to divorce, strong paternal power, low
status for illegitimate children)".
➢ Good summary: The Code is a compromise and stands between the progressive and
conservative point of view (because of the lawyer’s different backgrounds)
Codification with various impacts:
- Cohabitation with customs
- Limited areas of law
- Progressive or conservative
Whose code?
- A product of jurists
- A product of bourgeoisie
- A mix of modernity and tradition

Conclusion

The 19th c. was a century of legal unification through the concept of codification.
This process also results in a compromise btwn old and new ways of organizing society
(cohabitation w customs). Again we see that codification is connected with the social and
political transformation of that time (limited areas of law). We can conclude that it had various
impacts.

Chapter 2 : international society and international law 1814-1914

Introduction

The trajectory of international law

• A moment of emergence : the "empire of law"

o 1863- 1914
● New settings for international law

o 1899-1948
● Subjects of international law:

o From States to individuals ○ 1918-2018

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"The word international, it must be acknowledged, is a new one: though it is hoped, sufficiently
analogous and intelligible. It is calculated to express (...) the branch of law which goes
commonly under the name of the law of nations" Bentham

There’s a will to clarify the distinction between a country's law and interstate's law created
the word international. This will grew thanks to Bentham’s influence. He added that
international law is used as a discourse by some states which don't even apply it.

International law is
o A discourse
o A tool
o A language and a promise

If a some point a text is adopted it is because it is seen as a useful discourse for countries but
a promise between them as well.

1. International society in the late 19th century

How is the conflict settled and is there a rule applied to this conflict ?

International society since 1815 had been “ the concert of Europe “ and European great
powers were huge parts of it (if not the only). Law was a tool for interstate relations and
an aristocracy of states. The late 19th century moved towards an international
government.

International law is back then used as a tool for interstates relations, not an
institutionalized law.
For the first time, European powers start to intervene truly in the internal affairs of other
states.

There is a will to shape international law as a discipline. First of all, this will is created
with intellectual ambitions
o How to achieve a lasting peace ?
o A belief in the equalising and pacifying impact of international law

But, the historical context : globalisation and colonial expansion “helped”. In 1873,
institute of international law in Ghent is created and it received the Nobel Prize in 1904.

International lawyers at that time "rooted their discipline in the regnant ideological
assumptions of the age"
• Civilisation
• Reciprocity
• Dichotomy

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 2. War and peace

In 1859, we have the Battle of Solferino. Henry Dunant, from Switzerland published "a
memory of Solferino" in 1862 about the soldiers whom weren't taken care of. This publication
triggered some things :
• The creation of the international committee of the red cross in 1863
• The Geneva convention of 1864
o The recognition of neutral Organizations
o The protection of wounded soldiers and medical personnel
o The red cross insignia

Attacking a wounded soldier becomes illegal.

➢ See article 6 from the Geneva Convention

Towards international humanitarian law. The Enlightenment brought the idea of protection of
non-combatants. The French Revolution and subsequent wars change the conduct of warfare
and brought the distinction between civilians and combatants. But also, total mobilisation
(total war)

The American civil war (1861-1865) and the Lieber code changed some things as well. The
legal issue of non international armed conflict, the non recognition of the legality of the
secessionist states and the notion of prisoners of war. The necessity of codifying the laws of
war was felt, this codification would bring a new military document regulating action between
hostile armies with 157 provisions. The impact was beyond the American context.

3. Codifying the laws of war in the long 19th century

A. The international committee of the red cross, ICRC, 1863

It’s a private humanitarian organisation and brings a shift in scope and dynamics. A private
humanitarian organization, created by 5 men (a lawyer, businessman, two medical doctors
and someone with military background). The ICRC is constructed and based on the
experiences of these men in the military field. The fact that there is a lawyer in the team is
important because the organization seeks recognition of the state.
It is not a convention signed between some states, but a convention between an organization
representing citizens and some states.
Let’s note that these 5 men also wanted to push the issue of international humanitarian law
at the forefront of the international discussions. Thereby, states which do not conform
themselves to the laws of war (even after signing the convention) could be
punished/sentenced for it

The Geneva convention is going to give legal statuses to the ICRC and it is going to be the first
modern text of international humanitarian.

Later on, a political force is given to ICRC.

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 B. The Hague regulations of 1899

An international peace conference and a technical solution to international problems (as it

brings codification of the laws of war). It’s a permanent court of arbitration : international
disputes and there’s a selective application to civilized nations. There are 26 participating
states.

C. The Hague regulations of 1907

Forty four participants states and the adoption of 13 conventions (written, specific and
conventional law). It’s a new international framework. It will fail to stop the arm race since
there is a codification without enforcement.

The notion of humanity is being used over and over.

Conclusion

Before the first world war we come from customary laws to attempt codification (Lieber Code
of 1863 which codifies laws of war, there are the Hague conventions limiting types of
weapons/outlawing pillaging/protecting civilians but there are no privisions for prosecution).

It is also the age of colonial expansion, the age of nationalism but pacifist movement as well.
There is are reluctance from the states to limit their war conduct but there is a growing
protection for wounded, prisoners and civilians. There are few failed attempts at international
justice, how can you enforce it ? The failure of any form of international justice is linked to
the strong impact of sovereignty and the fact that we are in an age of ‘nationalism’, which
means more arms, an army, etc…

Text 4 : "Mark Mazower" : the strange triumph of human rights. The minorities rights have
the purpose of making citizen ships right respected

Chapter 3 : international society and international law (1918-1948)

1. First world war, justice as war aim ?

The first world war is a total war, a war to a scale that was never seen before. When the
Germans invade Belgium they're going to burn down of the Leuven University. Burning a
library is an attack on a civilization.

One of the major event of WWI was the sinking of the Lusitania. Germans did not warn the
ship which was supposed to bed one. The Germans argue that the British were hiding arms
there but it was not enough.

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The allies sent a joint declaration on the massacre of the Armenians, 29 May 1915, the allies
express that the Armenians are innocent and were not involve in the war. The allies see the
massacre but don’t act.

The allies decide to divide the Middle East with the Sykes Picot agreement (May 1916). They
support the Arab nationalists and there is the division of the Ottoman Empire with an
independent pro British Armenia emerging.

With WWI, we see the indication of justice as a new war aim : the German invasion of Belgium
qualified as a "criminal act" in October 1914 (“brave little Belgium” and propaganda).

The French include the Hague prohibitions into national legislation (1915) and the indignation
after the sinking of the Lusitania (qualified as a violation of the rules of sea warfare)

In September 1918, French Prime Minister said that no amnesty would be enough for so many
crimes. The British campaign for punishment as well. We see that the countries are looking
for revenge rather than justice. Here are a few examples of some “hot topics” for each
countries :
o UK
▪ Submarine warfare
▪ Execution of Edith Cavell by the Germans
o French position
▪ Debate during the war on the punishment of foreign nationals and the
application of criminal law to acts of war
o The US position
▪ Condemning war crimes
▪ Respecting legal immunity for heads of State
▪ No outlawing of war

2. Justice as a war aims : limits

But justice as a war aims has some limits. At the end of the war, Germany is defeated but still
a sovereign State (mostly). Also, there’s a weak international framework. The provisions of the
peace treaty and their difficult application

Allies had different views on post war justice :

o Extensive punishment
o Exemplary punishment
o The weight of public opinions
o Respecting legal immunity for heads of State

3. Negotiating peace

After 1918 a permanent institution was established where nations could meet to discuss
problems that threatened the peace (League of Nations based on Wilson's 14 points plan)
➔ See point 7 and 14 of Wilson’s plan

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The Versailles Peace conference (18/01/19-16/01/20) put post war political, legal and moral
responses. It gives a new model of international sanctions (a commission on the responsibility
of the war, collective guilt and criminalizing states and punitive measures against States) and
minority protection treaties.

The league of nations is created the 10/01/20, the seat is in Geneva, Palais des Nations
From 42 states to 60 (1934) and then decreasing due to annexations, withdrawals or expulsion
because states don't recognize themselves within it (Germany, Japan)
Structure is : council, assembly and secretariat.

A lot Germans found themselves outside the German border designed by the League of
Nations and it will be source of unrests.

4. Institutionalizing peace

In 1918, Woodrow Wilson made the “Fourteen Points” and in n°14 he talks about a global
association. The US didn’t want to punish Germany too harshly, he wanted to included
Germany as quickly as possible to avoid making them a threat.

Belgium became an important symbol (was invaded, resisted, etc…) and therefore in n°7,
Wilson talks about rescuing and evacuating Belgium and restoring its sovereignty as well.

After peace negotiations the League of Nations was made. The idea was to design a new
architecture for states to discuss with one another, participation was not mandatory. The
structure of the League was kind of the same than the Security Council now. The basis was
consensus.
In the 30s this League of Nations failed due to annexations, withdrawals (ex.: Japan),
expulsions, etc…
Making consensus and new deal was difficulte.

What also caused the failure of the League was that the Mandate Commission dealt with those
new territories, and “helped” them gaining more independence. “Helping” meaning that they
had even more of an international supervision (by the UK, etc…), so those ex-colonial states
were not seen anymore as ‘colonial parts’ but are still under ‘supervision’.

The same old ideas of the 19th century were still strong within the League of Nations itself.

5. Impact of total war

The impact of total war was, for example, the destroying of cities and more. But
dehumanization as well. Total war, total destruction, total enemy.
Victims are not individual victims anymore but statistics figures.

There is a lasting impact of this war on European society : brutalisation (les gueules cassées)

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Casualties : 10 million military died, 20 to 30 million injured. We see nations honouring the
"unknown soldier" starting 1920. The 11th of November becomes a public holiday in France
(since 1922). Suffrage becomes somewhat universal and a new map of Europe dissolving the
great empires.

• The peace treaties "The Versailles model"

o The protection of minority rights imposed upon Eastern and New states where
about 35 millions "minority inhabitants" lived
▪ The idea of civilized states opposed to immatures states
o Guarantor of the minorities : the league of nations
o Collective rights to be guaranteed
▪ Citizenship (political rights) : equality before the law, religious freedom, right
to collective forms of organisation (school for example)

Text 4 : Mark Mazower "the strang triumph of human rights"

There is a fragile inter war democratic institutions. There are multiple international crises and
countries leave the league of nation.
• The league of nations seems to be opposed to the traditional diplomacy and great
powers politics
• 1928 : the briand kellogg pact, outlawing war ?

Liberal universalism under attack with the nazi’s implementation of the imperial program of
"lebensraum"
The conception of international law : blood is stronger than a passport. A passport is linked to
the idea of citizenship and the rights coming with it. This sentence is linked to the organic
community and the blood of Germans.

6. The second world war : war time declarations

Saint James declaration : January 1942

• Inter allied declaration
▪ 9 European governments in exile (including France, Belgium and Poland)
▪ Punishing war crimes as a war aim
▪ Responsibility for the crimes, whether it was ordered, perpetrated or
participated in them
▪ Focus on occupation and occupied populations

Moscow declaration :
Belgians will be judged in Belgium for crimes they committed in Belgium

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 The united nations war crimes commission (UNWCC)
• Creation : London, October 1943
• Investigating Nazi atrocities and recording evidence of war crimes
• Identifying individuals
• 17 nations
• Reporting to governments on future prosecutions
• The progressive creation of national offices
• Civilian populations under occupation
• The importance of documentary evidence

7. The second world war : justice as a war aim ?

An international tribunal is created. The Soviets emphasized on three crimes :

aggressions, atrocities against civilians and violations of the laws of war. The American
wanted in addition that waging was treated as an illegal war and membership in the SS
or the Gestapo to be criminalized. Hersch Lauterpacht’s (British) role in speaking of war
crimes and crimes against humanity had a great influence.
The question on having the tribunal set in Nuremberg or Berlin was brought.
The USA plan of the liberation of the Nazi camps focused on the "crime of aggression"
and on conspiracy. They broadcast image of the concentrations camps throughout the
state.

As steps towards the Nuremberg trial were taken, Germany was occupied by the Allies
and a list of defendant (24) was established in August 1945.

8. New institutions : the UN

The Atlantic Charter, joint statement by Roosevelt and Churchill, is very important in the
construction of the UN.
During the war, they agreed on a new permanent international body to monitor
international security and peace. In June 1945, there is the San Franscico Conference

➢ "to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained"

➢ "to unite our strength to maintain international peace and security"

The system of military tribunal is used for Nuremberg. Even though it was temporary,
the UN recognized the experimentary tribunal as a founding point of international law

➢ “"Affirms the principles of international law recognized by the Charter of the

Nuremberg Tribunal and the judgment of the Tribunal" » which encourages the
codification of international law

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 9. Genocide Convention

The Genocide Convention of 1948 created a new legal concept within national legal systems
(according to Mark Lewis). The Convention did not explicit about universal jurisdiction but it
was accepted, on the other hand, it did mention territorial or international courts.
The qualification in time of peace or war opposed to the association of aggressive war.
• See art 2 of the Convention

Belgium did ratify the convention very early but did not take steps to include the crime into
national legislation. By 1994, Belgium had no legal tool to deal with the situation happening.

One of the question dealt by the ICTR is defining ethnic group, the answer lies by how the
group is defined by the perpetrator himself.
The groups identified were divided and protected by the Convention are groups where you
don't choose your community, your belonging.
The political groups were not included.

Cultural genocide is mentioned by Lemkin, as something where one tries to destroy one's
culture (such as natives in Canada).

The art 2 mentions punishable acts and art 3 mentions additional acts.

At the time, and still now, the crime of rape is not in the Convention.

The Convention is revised in 1949 and protects people not participating in the hostilities.

This Convention is the Cornerstone of humanitarian law.

There was a necessity to amend the Geneva Conventions in order to protect people that
weren’t participating to the war.

4 conventions were part of it:

- On wounded and sick in Armed forces in the field (I)
- On wounded, sick and shipwrecked of Armed forces at sea (II)
- On prisoners of War (III)
- On civilians (IV) >< previous Geneva conventions

▪ New element!!! + Replaces the Hague Convention

▪ Additional protocols (I-III, 1977)

Historically:
1864 - the wounded and the sick
1899 - 1907 - the Hague Convention
1949 - Geneva Convention replaces the Hague Convention!

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The article 3 is common to all conventions in the case of an armed conflict (which is not a
international one). So if there is a civil war, both parties still need to respect what is mentioned
in this article.

Although Belgium did not include the Convention into its legislation, Belgium will use the
convention when using the universal competence after the genocide.

Some myths about the Convention :

• Myth 1: There are no limits to human suffering in war.
• Myth 2: Some groups cannot or should not be engaged with.
• Myth 3: The Geneva Conventions are out of date.
• Myth 4: We are unable to act together to solve the threats that face us.
• Myth 5: International treaties don't make a difference

Conclusion

Starting the beginning of the 90’, we’re leaving the post cold war era for a new configuration
of the world.

This new configuration of the world explains somewhat the creation of ad hoc tribunal. This
tribunal are created for specific situation in a specific place (former Yugoslavia, Rwanda). This
new configuration explains the creation of the International Criminal Court as well.

Chapter 4 International criminal justice in the 1990s

TRANSITIONAL JUSTICE
is a "fluid concept embracing judicial as well as non-judicial approaches to regime change and
human-rights violations"

International criminal law since WWII

- Party to the IMT Charter (1945)
- In 1951 Belgium signs the convention on genocide (ratification), however Belgium will
not adapt its national legislation to this convention
- Belgium signed the Geneva Convention, which deals with rules of warfare and
protection of civilians the wounded
- Law of 1993: gives extra territorial jurisdiction to Belgian courts

➢ Universal jurisdiction = gives extraterritorial jurisdiction to the Belgian court,

which means that Belgium can open jurisdictions and trials even if the Belgian state ≠ involved
in the conflict, even if the accuse is not a Belgian national and even if the victims are not of

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Belgian nationality. The crimes included in this universal jurisdiction were taken from
humanitarian law, wounded and sick and non-combatants.

Remark: crimes against humanity and crimes of genocide are absent of this universal
jurisdiction. It’s only in 1999 that those two categories enter Belgian legislation! It was
nevertheless abrogated in 2003.

➔ The context of the ICTY

At the beginning of the 90’, the “transitional justice” is created. This tool is a fluid
concept embracing judicial as well as non judicial approaches to regime change as well
as humans rights violation.

What was striking was the massing scales of the crimes but also the number of people
involved.

90 sentenced, 19 acquitted, 13 referred to a national jurisdiction

Similarities and differences between Yugoslavia and Rwanda

Similarities
▪ Commission of experts (commission
of inquiry), which has to analyse if we
deal with breaches in international
law + respond to the Q: if there
should be an international court →
they analyse the situation.
▪ Both created by the UN Security
Counsel. → Close to the IMT because
next to those 2 resolutions a charter
of the tribunal in question is
attached.
▪ Both rely on state cooperation
(international police). If the tribunals
want to arrest someone in a state,
the member-state has to give the
person who has to be judged. Note
that NGOs also participate in order to
conduct investigations in the fields!
▪ Common appeal chamber and
prosecutors aiming at unifying
jurisprudence
Differences
▪ The ICTY and the ICTR both have their
own charter based on previously
defined international offenses, but
they also amend them and add new
types of crimes into it.
▪ ICTY = the first international tribunal
dealing w this category of crimes
since WWII → it brings to a future
permanent court.
• 90 sentenced
• 19 acquitted
• 13 cases were referred to national
jurisdiction after it had to closed.
▪ The ICT? Can act only if the national
court ≠ act → supremacy of the
national court

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 ▪ They both involved state and non
governmental cooperation (with
international judges)
▪ They both had primacy over national
court
▪ They both shared a common appeals
chamber

➢ Concerning the ICTY

- Jurisdiction over the following categories of crimes

o Grave breaches of the Geneva Convention of 1949
o Violation of the laws or customs of war
o Genocide
o Crimes against humanity
- Temporal jurisdiction
o Prosecute persons responsible for specific crimes since January 1991
- Territorial jurisdiction (former Yugoslavia)

➢ Rwanda Timeline :
1962 - Rwanda gains independence
1993 - Arusha Peace Agreements : Rwandese government, designated by international “help”
of the UN in order to settle down a democracy, so they make an agreement with the RPF. But,
due to political violence after the independence, the UN keeps observing the country with
their UNAMIR peace keeping mission (which is deployed in October 1992 till April 1994
1994 – April - President Habyarimana was killed and first massacres in Kigali
-April-June – expansion of the massacres
21 April 1994- adjustment of the UNAMIR mandates : from 2500 blues helmets to only
270 in the field

4 stages in the creation process if the ICTR

1. Early proposals on a form of international investigation and tribunal at diplomatic level
2. NGO’s pressure international governments and try to put the “judicial horizon” central to
their actions. Note that in the creation of international tribunals scientist, experts, etc…,via
NGO’s, talked about the kind of violence that was at stake.

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See J. Siméant’s speech
3. Victims file first complaints in Belgium in July 1994 brings questions of post judicial justice
4. The Commission of Human Rights called a special section for Rwanda but it was too late.
There were already high numbers of causalities. Nevertheless, it put on the debate concerning
the political definition of what happened. This was thereby put to public attention (media
coverage and such) and not behind curtains.
5. The Commission of experts of the UN in the summer of 1994

Rwanda was present in the Security Council at the time (till the end of June, when they are
replaced by a new government).

The Akayesu case: the first trial before the ICTR

➢ Read indictment in the syllabus of sources (the part on the charters)

The first trial was the one of JP Akayesu, a former teacher and Mayor, and raised a lot of
questions which helped the future organization of the ICTR (how to organize is…). He was not
what one could expect a main organizer of genocide to be.
He was indicted for his role of organizing the massacres and not stopping them as well.
With him, the Court discussed genocide trough a local political actor (not international
expertise trial, a powerful person, etc…). They talked about their own experiences of hiding,
trying to escape.
During this investigation, the investigators had collected a fair numbers of information
concerning the rape of women. Yet, the problem that investigators had is that they couldn’t
make the link between the defendant and the victims.
Pioneering jurisprudence
- 2 September 1998
- Jean-Paul Akayesu is sentenced to life imprisonment
- A 300-page judgement
- Individual criminal responsibility
- Verdict: Guilty of ○ Genocide
o Direct and Public Incitement to Commit Genocide
o Crimes against Humanity (murder, torture, rape, other inhumane acts)
o

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Jean Kambanda, Arusha, ICTR
The Prime Minister, J Kambanda, was also convicted, but the difference between him and the
other case is that he pleaded guilty. This meant that there was no “real trial” because no
evidences, no witnesses were put forward. So when you plead guilty, you do it on some
negotiated and accepted terms.
Result: judgment is 19 pages long even if the case was of national importance. Verdict: guilty
of: genocide, conspiracy to commit genocide, direct and public incitement to commit
genocide, complicity in genocide and crimes against humanity (murder, extermination)

Trial Chronology
At the day of their trials, people fled to neighbouring countries, occidental countries, etc…
and detaining them was not easy because they had no police of their own and need helped of
the other states (theoretically obliged to do so) … This was also the case for Akayesu, who fled
to Zaire but got arrested.

Central in this trial: mostly based on witnesses (unlike Nuremberg which was documents
based). Here there were almost no documents, but it was mainly through witnesses that
judges cross-referenced evidences.
➢ It’s not through national and highest level of leadership that the court rules for the first
time through the genocide convention, but local evidences and witnesses!

Issue of collective guilt and individual responsibility

- Individual responsibility
-
By taking the timeline, we see that the trial deals with 3 days (out of the 100 days of massacre),
but cover 300 pages of documents released by the Tribunal… The tribunal analysed the
situation: the men who were tortured, inspecting the houses, etc… every paragraph explains
a small episode which has to be proven by witnesses : all stories, memories are being assessed
by the judges.
Akayesu was sentenced to life in prison because of genocide, incitement to commit genocide
and crimes against humanity. Note that rape was understood (for the 1st time) as constitutive
to the crime of genocide!!!
 Very specific trial with one person being targeted → individual criminal responsibility

- Collective guilt

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Note that the court also had to judge the general massacre: but who is going to be the
responsible of the whole massacre? When reading through witness statements we see a whole
network of people participating to the genocide, which makes it very complex…
In order to do so, the tribunal relied on experts.
A general picture is given to what happened in Rwanda, it was conveyed by expert witnesses,
historians, linguists, etc…

➢ Remark: The media did not directly understand the importance of that case, in their
eyes the government, militia had to be judged (not a single individual) → this was the
public opinion (public attention faded away quickly).
Amended indictment (p. 85 of Syllabus of sources)
● The first trial at the ICTR
● The significance of the trial ○ From the legal perspective
○ From the historical perspective
● The first trial as a laboratory of international justice
● The challenges of building a new institution

The ICTR is groundbreaking as it is the first time where the genocide convention will be
applied. As for the main figures, 74 were judged, 55 trials were done (individual cases and
collective trials), 14 were acquitted, 23 have served their sentence, 5 referred to a national
jurisdiction.

➢ Rwandan law on genocide in 1996

➢ The Gacaca jurisdictions, “local” justice : many survivors found it very difficult to give
their testimony.
➢ The Belgians Assizses courts trials (2001, 2005, 2007, 2009)
➢ Prosecutions by other states (France, Sweden, ….)
Conclusion
From Versailles to The Hague and Arusha
The ICTR and case of Akaye was particular. Today international justice is challenged, they have
not been big progress since Nuremberg. International justice is selective (focuses on some
states, not on others…) and struggles, notably because of members which do not want to sign
the conventions (like China, USA, etc…), etc…

We are not in a situation (like Nuremberg) where states cooperate

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Chapter 5 : Human rights

Introduction

The Universal Declaration of Human Rights is the first codification of individual rights into an
international legal instrument. This Declaration is still used and important today, different
actors use it.

Why and when did this notion of universal human rights emerged?
There are different point of view concerning the reasons and date:

(1) Some consider that these rights were already declared as sth
universal in the 19th c. This interpretation connects
revolutions in France, USA w human rights.
(2) Others say that human rights as a universal concept emerges
in the 1940’s because at this moment it was common to talk
about “human rights”. And more than that: it can also be
seen when looking at wartime declarations, as human rights
were present in the mind of people signing and negotiating
declarations.
(3) Others say that those universal human rights only emerged in
the 1970s → truly becomes international bc international
civil society use these rights.

Why did human rights become central after WWII?

Firstly because people, such as Lemkin and others, made it the struggle of their life to make
human rights the central topic.
A second aspect was that human rights emerged in the 1940s as a reaction to the Nazi state
and crimes, result of WWII.
It was also seen as a way to re-establish liberal democracies
Over the war, human rights also included different declarations, nevertheless the protection
of minorities in interwar years completely failed. There was the invention of collective rights
of minorities which ended up in a dramatic failure…

1. Human rights are integrated in post- war programmes

This means that the language of human rights appears during the war.

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 The legacy of the interwar years

The League of Nation had failed and was discredited because of the failure of the post-WWI
treaties organized international protection of minorities. The war showed the need to change
these treaties into universal principle.

The US - 1941, Roosevelt gave the "State of the Union Speech" for a new world order
"This nation has placed its destiny in the hands and heads and hearts of its millions of free men
and women; and its faith in freedom under the guidance of God. Freedom means the
supremacy of human rights everywhere. Our support goes to those who struggle to gain those
rights or keep them. Our strength is our unity of purpose. To that high concept there can be no
end save victory"
 It took an international sense: proposition of program of a new world order where
freedom is defined as the supremacy of human rights everywhere.
 4 types of freedom are given.

The Atlantic Charter, August 1941: joint statement by Roosevelt and Churchill (USA-GB)
Both issued statements that were not really an official document, but rather a statement of
principles. Those were related to the policies their states would follow, the common shared
principles and the way to see a better future for the world.
Idea: stop Nazi’s tyranny, respect peoples rights, seek no aggrandizement.

26 Nations sign the Declaration of the United Nations, January 1942

Just after the USA entered WWII, a new declaration was adopted by 26 members: the
Declaration of the UN, which states that they are going to preserve human rights and justice!

➢ The issue of human rights came up, but surprisingly the Charter of the UN didn’t give
a central role to human rights

Preparing the United Nations, 1944

From this moment on the precise architecture of the UN was discussed, (how is the institution
going to work, who will sit in the Security Council, etc…) and so human rights faded away… in
the end those were ignored and forgotten in the talks of 1944. Soon after these talks a first
draft of the UN Charter was issued and mentioned human rights but in a very timid way
 Critics: they didn’t accept human rights to be put aside in such a clear way!
 We move from the centrality to the ignorance of human rights in the UN Charter.

2. The United Nations Charter and Human Rights

June 1945: San Francisco conference
Human rights fade away from the discussions and is only found in the preamble of one of the
charters;

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 June 1945: San Francisco conference and the UN Charter (preamble, excerpts)
USA did their own thing but at the same time Roosevelt talked about human rights worldwide.
The Charter was compromise and result of discussion of member states of the UN. This
Charter of UN was based on search of balance of power in this new world order… in the
preamble we see that the UN reaffirms human rights but explains that the main task of the
UN would be to deal with interstate relations.

June 1945: San Francisco conference and the UN Charter (article 1, 3))
Art. 1 UN Charter - “in promoting and encouraging respect for human rights and for
fundamental freedoms for all (…) ». In this first article they reach an agreement: UN promotes
an encourages human rights: it is just a wish. So no obligation is included
Art. 3 UN Charter - states still have a saying in dealing with the issue of human rights

Human rights are only used as an embellishment. The Charter of the UN ≠ resolves the issue
of having an international Bill of rights. Many people wrote texts etc. for an international bill
of human rights, but w/o success.
Ex.: Lauterpach

Conclusion: Human rights are connected to the United Nation invention but once the UN really
starts forming itself, we see that human rights are actually put aside. In the end, the UN talks
about making a Commission of human rights within the UN itself.
In an international way those human rights are discussed where legal traditions will be put
into question vis-à-vis human rights.

The UN Commission on Human Rights

The Commission on Human Rights is created in 1946. Its first tasks are to:
 Compile and publish a year-book on law related to human rights
 Survey existing bills and declarations
 Collecting and publishing information concerning human rights arising from war crimes
trials
 Survey the development of human rights
 Gathering information by specialized agencies and NGOs

The General Assembly entrusted the Commission on Human Rights with drafting a
Declaration. The commission was composed of different delegates of the member-states of
the UN and received echoes from the commission of Human rights from everywhere in the
world. Eleanor Roosevelt chaired the Commission; she was very active in the civil society,
peace movement and protection of the workers rights.

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 3. The Universal Declaration
Procedural history
18 members, chaired by Eleanor Roosevelt, were part of the commission of the Human Rights.
The question was what to draft exactly? Should it be a declaration (without binding effects), a
convention (legally binding for those who sign it), etc…? In the end a Declaration was adopted.
 It was actually related to the role that was going to be given to the UN: encouraging
states to adopt the declaration without binding effects.
It was criticized because there was no obligation towards the states, but this is kind of justified
with the context of the adoption: the Cold War: during that time the declaration was already
seen as a small success, thereby some states implemented the declaration into their intern
system.
Remark: nobody voted against the declaration (48 votes in favour, 8 abstentions).

In comparison to the League of Nations, a lot more states participated to the UN!

Limitations and context

There were a lot of critics towards the text because of its limitations and because some rights
were absent from the Declaration, f.ex. collective rights. Thereby the text lacked legal
enforcement mechanisms, self-determination and other difficulties like tensions between
national and international enforcement appeared.
Nevertheless, the Declaration should be read in parallel with other texts (ex.: genocide
Convention, Social and Cultural Rights, etc…)

1789 versus 1948

Comparing the The Declaration of the Rights of Man and the Citizen, 1789 (France) w the
Universal Declaration of Human Rights, 1948.

DRMC (1789) UDHR (1948)

Preamble Adopted to create a A cnsq of WWII, the main aim was the protection of
= Helps us new thing, new ideas, people + rights in their global sense
understand why new principles after
the text was overthrowing the
adopted. regime
First set of articles Basic ideas, which were Easy to adopt bc most of the states sitting in the
used again (later): commission of Human Rights already implemented
freedom, protection, those principles into their national legislation and had
property, etc… a similar view on democracy.

The commission had to confront different national

laws and constitutions + structure them.

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 => New kind of protection: “without distinction of
religion, race, coulour, sex etc…”
Other articles Special International Human Rights - Morsink → rights
that cannot be implemented only by 1 state, bc include
idea of cooperation btwn states.
Ex.: Art. 13, 14 and 15 of the UDHR

Legal Human Rights → A category of rights for the first

time defined at the international level.
Idea: going further, ≠ only protect citizens but all those
defined in the text! Everyone on earth should receive
the same type of protection.
Ex.: Art. 6, 7, 8, 9, 10, 11 and 12 of the UDHR

Conclusion: part of the second Declaration = mostly

what was already said, but not the whole set of articles
adopted!!

Chapter 6 : Refugee

Persons of concern for the UNHCR in 2018 Refugees

- +20.360.562 Asylum-seekers
- +3.500.000 IDPs
- +41.000.000 Returnees
- +2.900.000 Stateless persons
- +2.8200.000 Others +3.770.000
Refugees, Asylum-seekers, IDPs (biggest group → Internally Displaced Person = people fleeing
their city/village but go to refugee camps within their state), Returnees (= people that have
returned + protected by a special category of rights), Stateless persons and others.

 All these people have different legal status

United Nations High Commission for Refugees (UNHC): Definitions

▪ Refugees “include individuals recognized under different international legal
instruments”
▪ Asylum-seekers “are individuals who have sought international protection and whose
claims for refugee status have not yet been determined, irrespective of when they may
have been lodged”, difficult for the state to which they apply
▪ Internally Displaced persons (IDP) “are people or groups of individuals who have been
forced to leave their homes (...) and who have not crossed an international border”.

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 IDP is not a legal status, they are not protected by a Treaty but by different texts mixed
together.
▪ Stateless persons “are defined under international law as persons who are not
considered as nationals by any State under the operation of its law” have lost their
nationality and are people seeking protection of their rights outside the frontiers of
their birth nation

Other categories, not taken into account in the UNHCR are undocumented workers and
migrants.
Let’s note that other categories of people are not included here. Nevertheless, all categories
struggle with their new legal identity.

1. Mobility and the Modern State

Types of mobility in the 19th century
Before the 19th c. - freedom of movement, but people don’t move far away from where they
lived.
During the 19th c. - long distance mobility linked to the economic situation (find work, industry
that needs more man power, etc…), which is labour migration. On the other hand the Modern
State is not really busy with the issue of refugees but political asylum was the concern and
topic of discussions, political refugees were considered important especially regarding the
evolutions of the 19th c. (ex.: 1848 - movement for political equal rights).
Remark: States had the right to expel people (political refugees) from the territory without
any restriction: The state just said the people had to leave the country. There was no dynamic
(like today) where we expel people back to the state they come from (based on their
nationality).

Different forms of mobility coexisted: traditional mobility, colonial mobility (people forced to
move because of mines in Congo f.ex.), Immigration states like in the USA, etc…
- Traditional mobility in Asia, Africa, Europe : pastoralism
- Colonial economy
o Wage labor in mining and settler farms
- “Immigration” States
o The case of the United States

The reaction of the Modern state

The Modern state was confronted to all these kinds of mobility. Progressively the states
imposed a monopoly on this movement choosing who could (not) move, some sort of
restriction on people’s freedom of movement. We moved towards an administrative

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management of this mobility: receiving ID/Passport for the identification of subjects/groups
who could (not) travel, institutionalization and documentation.
This leads us also to the states wanting to protect the intern economy which happens notably
by codifying laws the state tried to protect their workers without migrants taking away the
jobs. It also translates some sort of protection towards the nationals against the foreigners.

Towards WWI:
 State takes care/accept (or not) categories of people
 More repressive attitude of the modern states towards foreigners by the end of the
19th c.
 Institutionalising differences between nationals and “others”

2. The interwar years

National and international frameworks

Two main issues :

1. Economic dimension: Movement towards protecting the national economy and

national classes against foreign workers. If the state accepted foreign workers, they
had some restriction linked to their status.
2. Flood of refugees as a result of the war. Huge numbers of people (minorities) moved
around, those refugees became a category progressively defined in the international
system by new institutions (ex.: League of Nations).
Problem: People moved around, but when they left, they sometimes became stateless (ex.:
Russians losing their nationality after leaving the country) stateless people are rising

The Nansen Passport

Solution: The League of Nation started developing the Nansen Passport which was an
international passport. Fridtjof Nansen was the man behind the international passport idea,
he was in charge of the refugee issue and later received the Nobel Peace Prize. At the
beginning of the Nansen Passport, the point was helping the stateless ex-Russians, but they
saw that those people probably would never go back to their country. Therefore, it was
important to develop a passport recognized by other states (extending its recognition), making
people able to travel around, etc… with this passport. Afterwards, it was extended to the
Armenians and other populations.

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International responses after WWI
The 1933 was a turning point as Nazi Germany started to control everything :
denationalization of Jewish nationality, internal control,…
Being faced with the issue of the war Be., Fr.,… had to find a solution for the Jewish refugees
and therefore adopted laws for those refugees so they would be able to seek recognition as
refugees in those countries (Fr., Be., etc.). From this moment on the Modern State became an
expert of the refugee status (knows who can (not) receive the status, the conditions, etc…).
Instruments and institutions created at the time had a very limited impact : ad hoc reactions.

Remark: In the end Jewish Refugees are no longer obliged to prove they are refugees
ATT.: it doesn’t mean they are easily welcomed by those states but at least are recognized by
the state.

3. The aftermath of the Second World War

After the Second World War

Approximately 40million displaced Europeans and other conflicts triggered by the floods of
refugees.
Problem: those refugees were refugees because of prosecution, because of what they were
not because of what they had done.

1946 - The International refugee Organization (IRO) was put in place, with national
institutions representing them in different states and dealt with the refugees “applications” it
was an international response because it was international issue. This IRO gave a first
definition of refugee which was a contextual one: they specifically defined refugees of war
(because that was the reality at the time).
The International Refugee Organisation, 1946 (preamble)
“Recognizing:

• that genuine refugees and displaced persons constitute an

urgent problem which is international in scope and character;
• that as regards displaced persons, the main task to be
performed is to encourage and assist in every way possible their
early return to their country of origin;
• that genuine refugees and displaced persons should be assisted
by international action (...);

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Refugees are (following the IRO’s contextual definition):
a. Victims of the Nazi or fascist regimes or of regimes which took part on their side in the
second world war, or of the quisling or similar regimes which assisted them against the
United Nations, whether enjoying international status as refugees or not;
b. Spanish Republicans and other victims of the Falangist regime in Spain, whether
enjoying international status as refugees or not;
c. Persons who were considered refugees before the outbreak of the second world war,
for reasons of race, religion, nationality or political opinion. Ex : the Russians, Jews,
Armenians, the Rumanians, etc… are encompassed.

National initiatives
Problem of the IRO: it was temporary which meant that its actions would be stopped. Thus,
national offices had to find a solution to deal with all those refugees inside the borders.
In France the French Ministry of foreign affairs protected refugees and they created the
OFPRA1

Later on the UN took action and made the UN High Commissioner’s Office for Refugees
(UNHCR), 1950, for the first time a permanent institution would protect refugees
(internationally) relying on a text: The Convention relating to the Status of Refugees (1951).
ATT.: at start it was only a contextual text (focusing on some categories of refugees at the
time).

4. The Convention of 1951 and the Protocol of 1967

Convention relating to the Status of Refugees, 28 July 1951
Here we see that the first step to define “refugee” takes into account the previous
international agreements. So the convention of 1951 relied on what was done before BUT also
added a concrete definition of the refugee saying that a refugee is someone who has fears of
being prosecuted “for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to it. »
 The definition is broader than before, encompassing more categories of refugees.
Remark: it only covers people that applied to that status BEFORE 1951 (“As a result of events
occurring before 1 January 1951 owing to well-founded fear of being persecuted for reasons
of… »)

1 OFPRA : Office français de protection des réfugiés et apatrides

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Important article → article 28 - “Travel Documents” had to be given by the State to refugees
lawfully staying on the state’s territory
Digression: Trial at the end of the 1940s - Man in charge of the Camp where Jews were held
captive, was accused of atteinte à la pudeur on women in the camps. Approximately ½ of the
women were stateless. It was an important problem because it was a real situation
experienced in big amounts.

Protocol relating to the Status of Refugees, 1967

The situation changed after the war: there were still high numbers of refugees, but not all
were refugees before 1951… To solve the problem, in 1967, a new text was adopted in order
to lift the limit of 1951 → Protocol relating to the Status of Refugees: The text states that there
is a first text (1951), that it considers new situations of refugees and an equal status between
all refugees without focusing on the date (« before 1951 ») !

Conclusion
The Second World War as a turning point
WWII is a turning point to understand the current legal framework regarding the status of
refugees. We move from a situation where refugees = defined for specific situation
(//contextual definitions) to (by lifting these limits of 1951) a universal definition of refugees.
However, this move towards a universal definition is also a turning point for the state: states
create their own national office in order to deal w refugees inside the borders and determine
the refugee status on a case-by-case basis.

Some scholars say that we are moving towards a right to seek asylum rather than a right to
asylum. This is still put in question today…

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Anissa Toual

Table des matières

Legal history ............................................................................................................................................ 1
Part 2 : modern codification ................................................................................................................ 1
Chapter 1 : modern codification ..................................................................................................... 1
Chapter 2 : international society and international law 1814-1914 ............................................... 3
Chapter 3 : international society and international law (1918-1948) ............................................. 6
Chapter 4 International criminal justice in the 1990s ................................................................... 12
Chapter 5 : Human rights .............................................................................................................. 18
Chapter 6 : Refugee ....................................................................................................................... 22

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