Fall  2008                                                    Prof. Herbert Bix

Binghamton University                               Office: LT 814

Hist. 430, Soc 430/501C/661A                   tel. 607-777-3417

                                                                     email  hbix@binghamton.edu

 

WAR CRIMES, TRIALS, AND JUSTICE

                                                                                                           

[Monday Seminar days 3:30-6:30 pm in STUDENT WING, Rm. 310:

Aug.  25; Sept.1 [no class], 8, 15, 22, 29 [no class]; Oct. 6, 13, 20, 27; Nov. 3, 10, 17, 24; Dec. 1, 8] 

 

My office hours are Mon. (2:00-3:00) and Thur. (3-5); I may also be reached by email.                                                                  

 

COURSE DESCRIPTION:

FORMAT & CRITERIA For ASSESSMENT: short class reports based on readings plus three essays which draw on assigned materials. The essays must be polished and written in grammatically correct English. Never submit first drafts. The three papers will constitute two-thirds of the final grade; quality of class preparation and active participation will figure in the calculation. There is no Final Exam. In assessing papers, account will be taken of clarity of presentation, logical structure, strength of argument, extent of research, plus (of course) grammar, spelling, proper attribution, and formatting.

 

The course is open to graduates from any department plus seniors and juniors, especially those majoring in History, Sociology, and Political Science.

 

We start with very short introductory lectures after which students lead discussions based on assigned primary and secondary materials. As the semester progresses, we may change this approach.   NB: Drop/Delete deadline is Feb. 2.

 

Oct. 6_lst Essay due (for graduate students 8 to 10 pages of text, not including endnotes, double-spaced; 7 pages for undergraduates).

Nov. 10 __2nd Essay due

December  11__3rd Essay due                           These are real deadlines.

 

COURSE REQUIREMENTS

*Weekly class attendance and active participation in discussion is mandatory. More than two absences will be penalized. Come to class having done the assigned readings and prepared to discuss questions raised in the readings.

*Required written work: weekly short (1 page) reports on assigned readings (unassessed) plus three assessed essays. The third essay, due on Dec. 7, should draw on assigned material for the course to discuss issues arising out of the Nuremberg and Tokyo war crimes trials. Remember that all three essays must be tightly focused; your aim must always be to write with absolute clarity and honesty. Diffused expression usually means your rhetoric is special, i.e. a technical jargon—or worse, not a clear reference at all. So write these papers simply and clearly, and as much as possible in the active voice.  There is NO Final Exam.

*Two-thirds of your Final grade will be calculated on the basis of these three papers, the remainder on the quality of your preparation and class participation. That means you must come prepared. Two medically approved cuts will be accepted; anything more will result in a lowered grade.

 

SOME TOPICS for discussion:

 

(1) What are “war crimes"? Why are torture and “cruel and inhumane treatment” war crimes?

(2) What is the “Martens Clause” and why is it important?

(3) What is the “Crime Against Peace”? What are its elements? When and why was it eclipsed by “Crimes against Humanity”?

(4) What was the idea of “Crimes against Humanity” meant to cover?

(5) What is the definition of “Aggression” used by the American delegation at Nuremberg?

(6) What role do ethical norms play in international relations? What role did they play in 20th century wars?

(7) What is the “international community”? Whom does it include or exclude? Who gets to decide?

(8) What is the doctrine of “command responsibility”? Of  “superior responsibility”? Of “collective responsibility”? What is political responsibility?

(9) What are the “Nuremberg principles”? Were there flaws in the Nuremberg legacy? If so, identify them.

(10) What was the Nanking massacre? How does it differ from the Son My massacre? How has rape been treated by war crimes tribunals?

(11) What was the Tokyo Trial? How does it compare to the Nuremberg Trial? Why, in what sense(s) is “victors’ justice” an inadequate term of criticism of this event?

(12) What are “humanitarian interventions” or “the imperialism of human rights”? How have such interventions been justified in different historical periods? Did “humanitarian interventions” pave the way for US criminal behavior in the current global “war on terror”?

(13) What institutions, if any, prevent the law from being used as a standard for criticizing official behavior or attributing responsibility?

(14) What is the difference between legal and historical truth”? Cite examples.

(15) What is “political justice” and how does it differ from “legal justice”?  What is “Judicial proof”? Historical Proof?

 

***

            The following books, articles, and document, esp. numbers 1-12, provide the data for our discussions. They are on reserve in the library. Most articles and short excerpts from books are also on electronic reserve and can be downloaded. Read them in the order listed. Never borrow the books for more than 1.5 hours at a time. Never check them out overnight or over the weekend.

 

·         1. Malcolm Shaw, International Law, 5th Edition (Cambridge Univ. Press, 2003), pp. 13-41, 143-151, 1017-1048; Arthur Nussbaum, A Concise History of the Law of Nations (The Macmillan Company, 1958; earlier editions 1947,1954), pp. 102-114 [on Hugo Grotius] and pp. 251-285 [From Treaty of Versailles to WWII].

 

·         2. George Ginsbergs, Moscow’s Road to Nuremberg: The Soviet Background to the Trial (Springer 1995/The Hague 1996), Ch. II, pp. 25-43; Ch. III, pp. 45-69; IV, p. 71-93;  Ch. VI, pp. 127-129; 141-152,    

 

·         3. Francine Hirsch, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” The American Historical Review, Vol. 113 (June 2008), pp. 701-730.

 

·         4. “Document LI. Minutes of [London] Conference Session of July 25, 1945” in Report of Robert H. Jackson U.S. Representative to the International conference on Military Trials, London, 1945 (Dept. of State Pub. 3080, GPO, 1949), pp. 376-389.

 

·         5. Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust  History and Memory (Oxford Univ. Press, 2001), pp. vi-xiii, 1-13, 133-172, and 218-228.

 

·         6. Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules (Viking, 2005). ISBN 0-670-03452-5

 

·         7. Eric Hobsbawm, On Empire (Pantheon Books, 2008), Ch. 3 [War, Peace, and Hegemony at Beginning of 21st Century] (pp. 35-60).  ISBN 978-0-375-42537-0

 

·         8. Nisuke Ando, ed. Japan and International Law: Past, Present and Future (Kluwer Law International 1999). Read “Modern Japan, War and International Law,” pp. 7-26; and “The Impact of Nuremberg and Tokyo,” pp. 59-84. ISBN 90-411-1194-8

 

·         9. Herbert P. Bix, Hirohito and the Making of Modern Japan (HarperCollins, 2000).  Read Introduction and Chapters 15 (“The Tokyo Trials”) and 16 (“Salvaging the Imperial Mystique”). Compare Bix and Dower (Chapter 15) on the Tokyo trials. See below under Reference Works.

 

·         10. Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford Univ. Press, 2008), Read Ch. 5 (“Crimes Against Peace”), Ch. 6 (“The Murder Counts”), Ch. 7 (“War Crimes”), Ch. 10 (“The Tokyo IMT and Legal Philosophy”); Ch. 11 (The Functions and Legacies of the Tokyo IMT);  Conclusion.

 

·         11. Kirsten Sellars, The Rise and Rise of Human Rights (Sutton Publishing, UK, 2002), Ch. 3 (Trouble at Tokyo”), pp. 47-67..

 

·         12. Jane Mayer, ”The Battle for a Country’s Soul,” New York Review of Books, Aug. 14, 2008), pp. 41-43.

 

·         13. Michael Mandel, How America Gets Away With Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004). ISBN 0 745321518 

 

·          14. The Trial of German Major War Criminals: Opening Speeches of the Chief Prosecutors, Closing Speeches, and Judgment (Williams S. Hein & Co., Inc., Buffalo, New York, 2001). Read opening and closing speeches by Robert Jackson and others.

 

·         Helena Cobban, Re-Engage: American and the World After Bush (Paradigm Publishers, 2008. Read 1-110.

 

 

REFERENCE MATERIALS [“A” LIST on Reserve in Library]:

*CONSTITUTIVE DOCUMENTS: excerpts from Constitution of the USA (1787); Hague Convention IV (1907); PART I of the Treaty of Peace signed at Versailles on June 28, 1919; Protocol for the Prohibition of the Use of Chemical and Biological Methods of Warfare (1925); General Treaty for the Renunciation of War [Kellogg-Briand Treaty] (1928); London Agreement of Aug. 8, 1945 and Charter of the IMT; UN Charter (1945); Geneva Convention of 1929 Relative to the Treatment of Prisoners of War; Geneva Conventions of 1949, esp. “common article three” and Third Convention on Treatment of Prisoners of War; the 1977 Protocol Additional to the Geneva Conventions of 1949; the War Crimes Act of 1996, the Rome Statute of 1998, and US Code: Title 18, Section 2441, Chapter 118-War Crimes.

 

1. Elizabeth Anscombe, “War and Murder,” in Richard A. Wasserstrom, ed., War and Morality (Wadsworth Publishing Co., 1970), pp. 42-53.

 

2. Herbert P. Bix, "War Crimes Law and American Wars in 20th Century Asia," Hitotsubashi Journal of Social Studies, Vol. 33, No. 1 (July 2001), pp. 119-132.  This essay provides an overview of many concerns of the course.

 

3. Herbert P. Bix, “From Nanjing 1937 to Falluja 2004: War Crimes in Perspective.” Available at  japanfocus.org

 

4. Herbert P. Bix, “The Faith That Supports U.S. Violence: Reflections on the Arrogance of Empires.” Available at  japanfocus.org

 

5. Herbert P. Bix, ““War Responsibility and Historical Memory: Hirohito’s Apparition,” Japan Focus, full text version posted May 10, 2008 at Japan Focus.org.

 

6. Paul Kramer, “The Water Cure: Debating Torture and Counterinsurgency—a Century Ago,” The New Yorker (Feb. 25, 2008), pp. 38-43.

 

7. James J. Weingartner, “Trophies of War: U.S. Troops and the Mutilation of Japanese War Dead, 1941-1945,” Pacific Historical Review, Vol. LXI, No. 1 (Feb. 1992), pp. 53-67.

 

8. Bruce Cumings, “”Occurrence at No Gun Ri Bridge: An inquiry into the History and Memory of a Civil War,” David Arase, ed., The Challenge of Change: East Asia in the New Millennium (Univ. of California, Berkeley, 2003), pp. 311-335.

 

9. “AP: US Okayed Korean War Massacres,” posted at rawstory.com, July 5, 2008 [http://rawstory.com//printstory.php?story=10995]

 

10.  **Nick Urse, “The Tip of the Iceberg: Report on Vietnam ‘Tiger Force’ Atrocity Only the Tip of the Iceberg,” available at http://www.antiwar.com/orig/turse1.html

   **”Report: Soldiers Killed  Hundreds of Vietnamese Over Seven Months”, AP (Oct. 19, 2003);

   ** “Pentagon Refuses to Reopen Probe into Alleged Vietnam War Atrocities,” Agence France Presse (Oct. 19, 2003);

   **”Tomgram: Mike Davis on War Crimes” (Nov. 14, 2003).

 

11. Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton Univ. press, 2000). Read selections from Chapters 1, 3, 4, 5 (pp. 3-37, 58-205).

 

12. Peter Schrijvers, The GI War Against Japan: American Soldiers in Asia and the      Pacific During World War II (New York Univ. Press, 2002), Ch. 9 (“Rage”), pp. 207-225.  ISBN 0-8147-9816-0

 

13. Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (Clarendon Press Oxford, 1996). Read Chapter 5, pp. 133-178 and 304 to end.

 

Reference Works [“B” LIST, also on reserve in library]

 

·         E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser press, 2003), pp. 119-135.

·         Telford Taylor, Nuremberg and Vietnam: an American Tragedy (New York times Book, Random House, 1970). Read pp. 1-41 and pp. 154-207. [out of print but on reserve

·         Sidney Alderman, “Negotiating on War Crimes Prosecution, 1945” in R. Dennett & J.E. Johnson, eds., Negotiating with the Russians (Boston: World Peace Foundation, 1951), 59-98.

·         John W. Dower, Embracing Defeat: Japan in the Wake of World War II (W.W. Norton & Co., 1999), pp. 443-484. This is Chaper 15 (“Victor’s Justice, Loser’s Justice”)

·         Arieh J. Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Univ. of North Carolina Press, 1998), Chapters 1, 2, 4, 5, and 7. This study details the confusion that reigned in Allied nations over the issue of punishing the top German war criminals.

·         Philippe Sands, Torture Team (Palgrave Macmillan, 2008), read pp. 1-27 and 210-236   ISBN-10: 0230603904  

·         Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International law (Oxford Univ. Press, 2001).Read Introduction and Chs. 1, 2, 6.

·         Mark Curtis, Unpeople: Britain’s Secret Human Rights Abuses (Vintage 2004), pp. 1-46.  ISBN 0 099 46972

·         Michael Byers, George Nolte, eds., United States Hegemony and the Foundations of International Law (Cambridge Univ. Press, 2003). Read: Part I, “International Community,” pp. 25-116.   ISBN  0-521-81949-0

·         Noam Chomsky, Hegemony and Survival: America’s Quest for Global Dominance (Metropolitan Books, 2003). ISBN 0-8050-7400-7. Read chapters 1-5 and 7-9.

 

 

CLASS MEETINGS: MONDAY.  [Aug.  25; Sept. 8, 15, 22, 29; Oct 6, 13, 20, 27; Nov  3, 10, 17, 24;  Dec 1, 8]

 

READING SCHEDULE:

Aug-Sept ---Introductory ----Reading Shaw, Ginsbergs,  Hirsch, Sands,

Oct. **---- Continue with above; take up “Constitutive Documents”

Nov. **— [assignments of materials to be specified later]

 

TERMS AND DEFINITIONS

Make your own list of frequently occurring Latin and English terms, using Black’s Law Dictionary for definitions. Include jus cogens, erga omnes, pacta sunt servanda, tu quoque, nulla poena sine lege, and due process.  Also remember that “international humanitarian law” simply means “laws of war.”