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Scholar John Hagan traces the development of the field of international humanitarian law. He locates the conflict over this field of law in the contest between the politics of state sovereignty and the commitment to international justice.
 

How is international law created? More specifically, how did the field of international humanitarian rights come into being?

Scholar John Hagan provides a detailed account of the creation of one field of law: international humanitarian law. The definition of international humanitarian law is still very much in process. Hagan focuses his account on the period from World War II to the creation of the International Criminal Court.

What Is a Legal Field?

First, what is a “field” of law?

When we talk about a “field” of law, we generally mean a substantive area of law (like commercial law or family law) in which a more or less stable group of legal practitioners operate. Established legal fields often have stable sets of organizations and associations relating to their work (for instance, the Chicago Bar Association or the World Trade Association). They may also have dedicated courts or tribunals with varying degrees of jurisdiction (e.g., traffic courts or criminal courts) or geographic scope (local county courts to the International Criminal Court).

Additionally, a legal field may incorporate non-legal advocacy groups as well as politicians. These non-legal groups may alternatively help or hinder the practice of law within a field. They may also work to redefine the field (for instance, helping define what subject matter is relevant and important, or limit the scope of practice—as in tort reform in the U.S.).

Legal fields do not simply spring into being. They are created over time and sometimes the creation process is highly contentious and political. What is less obvious is the answer to the question, “How do legal fields come into being?” How was the subject matter defined? Who were the major actors? What were the conflicts actors and organizations engaged in during the creation? What were the outcomes? What are the ongoing results?

Many legal fields have long histories. However, the field of international humanitarian law took shape, in fits and spurts, only within the past century. But how?

Defining the Field of International Humanitarian Law

Prior to World War II, what we now know as the field of international humanitarian law did not exist as it does now. That changed with the Nuremberg trials.

In the Shadow of Nuremberg

Even though rules of war have a long history, international humanitarian law is a recent field. International humanitarian law grew out of international rules of war. However it was not an easy birth.

Before World War II, international relations were based on the absolute sovereignty of states. This meant that states should be free from external influence with regard to their domestic policies and actions. In short, how a state treated its citizens was nobody's business but its own. States might enter into treaties or conventions regarding how wars were conducted, but a state's domestic issues were definitely off limits.

In the aftermath of World War II and the Nazi atrocities, some individuals and then states began to recognize that the notion of “war crimes” simply did not cover all the issues facing the international community. So began the development of the notion of “crimes against humanity” and the legal apparatus to deal with these crimes. The Nuremberg trials set the stage for a sea change in the way that international law was understood.

The Cold War Hiatus

The development of international humanitarian law has been anything but smooth. It was, and is, a highly politicized topic. It only got its start based on the “shaky alliance” between Western democracies (primarily the U.S. and Britain) and the Soviet Union immediately following World War II.

This alliance, of course, did not last very long. While the language of human rights continued to develop during the Cold War era, the international field of humanitarian law was largely on hold until the fall of communism in the late 1980s and early 1990s.

War in the Balkans

In the Balkans, the fall of communism brought to the fore simmering ethnic hatreds that had been supressed during the communist regime. With the fall of communism came the reassertion of nationalism and, ultimately, bloody conflict between ethnic Serbs, Croats and Bosnians. Like the Nazi genocidal campaign against the European Jews, the violence rested on ethnic or racial hatred. Even more so than with Germany, the conflict occurred within what had formerly been a “sovereign” state (Yugoslavia).

And, as in Germany, atrocities were occurring on a large and systematic scale.

The parallels between the events in the Balkans and the events in Nazi Germany were not missed. Indeed, one human rights advocate called for a “mini Nuremberg tribunal” to address the crimes against humanity occurring within the former Yugoslavia.

Politics Versus Justice

Initially, it was not obvious how the international community should deal with the conflict in the Balkans. The political solution was for members of the international community to press for a negotiated peace. The conflict was, according to some, among newly formed sovereign states. Therefore, the solution had to be political. What was needed to solve the problems in the Balkans was diplomacy and political negotiation.

However, many others, including women's and human rights groups, argued that merely negotiating a peace would only paper over the heinous crimes committed among ethnic groups. In light of the atrocities widely publicized by the media, many believed that it was not enough to merely stop the fighting. Those who had committed the crimes against humanity (for example, genocide, ethnic cleansing and rape as a tool for terror) should be brought to justice.

But, which approach was best? Powerful interests did not agree. And, even if the goal was justice and not simply peace, how would this be carried out?

 
Data and Methods:

Data Sources:

  • A survey was conducted in 2000-2001 of 109 employees from the International Criminal Tribunal of the Former Yugoslavia (ICTY).
  • The survey was followed up with over one hundred in-depth interviews (2000-2003).
  • Interviews included the chairman of the commission of experts that preceded the ICTY, all three chief prosecutors, the deputy prosecutor, four chiefs of investigations and prosecutions and employees at all levels.
  • The author also observed trials and analyzed trial transcripts over the same period.

Funding Sources:

  • American Bar Foundation
  • Social Sciences and Humanities Research Council of Canada
  • National Science Foundation
  • Russell Sage Foundation
 
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Reference

Hagan, John. 2003. Justice in the Balkans. Chicago: University of Chicago Press. Ch. 1, pp. 18-32.

 
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