State Socialism and the Evolution of Post-War International Criminal and Humanitarian Law

by Raluca Grosescu

at Imre Kertész Kolleg, Jena, 9 October 2017

The paper presented the contribution of Eastern European socialist governments and legal experts to the development of international criminal law (ICL) and international humanitarian law (IHL) during the Cold War. It discussed the socialist engagements with several ICL and IHL aspects: the definition of the ‘crime of aggression’ and of the linked charges of ‘crimes against peace’ and ‘common plan or conspiracy’ used against the Axis leaders at the post-war tribunals at Nuremberg and Tokyo; the efforts to expand the Geneva Conventions to non-international conflicts, and the criminalization of apartheid under international law. Finally, the paper discussed the role of state socialist experts in encoding the non-applicability of statutory limitations to international crimes. The paper argued that the socialist engagements with these fields were a combination of both progressive ideas (anti-fascism, anti-colonialism, and anti-Apartheid), and Realpolitik (the geopolitical competition with the West, expanding socialism in the Third World, and the primacy of defending state sovereignty non-interventionism in national affairs). It was a mixture that simultaneously generated new forms of international law, and hindered its advance and enforcement during the Cold War.

Advertisements

State Socialism and the Development of International Criminal and Humanitarian Law during the Cold War

by Raluca Grosescu

at the workshop Socialist Experts, Humanitarianism, and the Latin American Cold War Conflicts, Andhes University, Bogota, 1-3 August, 2017.

Abstract

This paper examines the contribution of Eastern European socialist governments and legal experts to the development of international criminal law (ICL) and international humanitarian law (IHL) during the Cold War. It challenges the dominant scholarship that portray the Socialist Bloc as merely a roadblock to progress of international justice and humanitarianism and posits an alternative narrative: the socialist world in fact played a vital role for the emergence and consolidation of new ICL and IHL norms after 1945 and its participation was an essential element in the advancement of these fields of law. The paper discusses the socialist engagements with the definition of the ‘crime of aggression’, the linked charges of ‘crimes against peace’ and ‘common plan or conspiracy’ used against the Axis leaders at the post-war tribunals at Nuremberg and Tokyo, the expansion of the Geneva Conventions to non-international conflicts, the non-applicability of statutory limitations to international crimes and the criminalization of apartheid under international law.

Transnational and Global Dimensions of Justice and Memory Processes in Europe and Latin America

Interested in transnational and global dimensions of justice and memory processes? Our colleague Raluca Grosescu is co-organizer of the conference on Transnational and Global Dimensions of Justice and Memory Processes in Europe and Latin America, taking place in Paris on the 8-9th of June, at the Romanian Cultural Institute (Institut Culturel Roumain).

See the full presentation and program here: 

http://passes-present.eu/en/node/42322

Justice and memory processes that had accompanied the “third wave of democratisation” have been the subject of a large body of academic literature. These works have commonly taken certain approaches. Some have analysed these processes within national borders or by providing comparative accounts of countries seen as discrete units,
disconnected from transnational or global developments. Others, by contrast, have tried to account for the criminalization of dictatorships and conflicts in terms of the emergence of international norms based on an ethics of human rights and a “cosmopolitan memory” – often driven by a decontextualized remembrance of the Holocaust. This scholarship has however tended to overgeneralize global trends without always grasping the complexity of local attempts at dealing with the past. In the last ten years, a third approach, focusing on specific transnational entanglements, has gained ground. This emerging literature has started to analyze empirically transnational activism, exchanges of knowledge and expertise at bilateral, regional or international levels, the impact of legal and mnemonic narratives outside their countries of origin, and the role of international organizations and NGOs in dealing with mass violence.

Focusing on Europe and Latin America, this conference aims to take stock of this transnational turn in justice and memory studies and to develop a socio-historical analysis of the circulation of norms, repertoires of collective action and models adopted to deal with the legacies of authoritarian regimes and armed conflicts. It seeks to trace the interconnections and mutual influences of these processes both within Europe and Latin America and between the two regions, as well as the mobilizations of European and Latin American actors in international institutions, global NGOs, or at venues on other continents.

Retrospective Justice and Legal Culture

by Raluca Grosescu and Agata Fijalkowski

Chapter in Lavinia Stan, Lucian Turcescu (eds.), Justice, Memory and Redress: New Insights from Romania (Cambridge: Cambridge Scholars, 2017), pp. 100-123.

This chapter explores the relationship between legal culture and retrospective justice in transition, in post-1989 Bulgaria, Germany and Romania. It analyses the different legal narratives that framed trials regarding state crimes committed under communist rule. It specifically focuses on those cases where the application of retroactive law was necessary in order to prosecute, namely: the Bulgarian Lovech camp trial; the German Border Guards’ trials; and the Romanian cases concerning political crimes committed in the 1950s. Most of the scholarship on post-communist transitional justice has emphasised the nature of the communist regime, the exit from dictatorship, or the party struggle for political power during transition as the main determinants that influenced judicial accountability after 1989. We argue that the legal culture, in particular, the judiciary’s understanding of legal formalism and international human rights law, is another important determinant, generally overlooked by the literature.  The chapter first considers the evolution of legal ideology since World War II in Romania, Bulgaria, and Germany. It then analyses the legal debates on the application of retrospective accountability after 1989. It concludes that the different approaches to retrospective justice were strongly influenced by the dominant culture of legal experts.

Socialist Legal Experts and the Non-Applicability of Statutory Limitations to International Crimes

by Raluca Grosescu

at New Europe College, Bucharest, 12 October, 2016.

raluca_grosescu_nec_seminar

The presentation analysed the contribution of state-socialist governments and legal experts to the development of a major principle of international criminal law, namely the non-applicability of statutory limitations to war crimes, genocide, and crimes against humanity. On the one hand, it examines the transnational mobilization of socialist legal scholars and political elites – their cooperation with Western scholars and “third world” governments – with a view to bringing on the agenda of the international community and enabling the adoption of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. On the other hand, the presentation dealt with the negotiation of the 1968 UN Convention in historical context, with a special focus on its legal innovations and shortcomings, as well as its subsequent impact on the advance of prosecutions of dictatorial crimes in post-communist Eastern Europe (Estonia and Romania) or post-dictatorial Latin America (Argentina and Chile). I argued that state socialist elites played a major role in establishing the non-applicability of statutory limitations to international crimes as a principle of international law. Though intertwined with political agendas and not without flaws, these efforts contributed to the progress of both customary and conventional international criminal law.

The Legacy of State Socialism in International Criminal Law

The Legacy of State Socialism in International Criminal Law: The Case of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity

by Raluca Grosescu, at Justice in Communist and Post-Communist Regimes, Faculty of Law – University of Bucharest & The Institute for the Investigation of Communist Crimes and the Memory of the Romanian Exile (IICCMER), Bucharest, 6-10 October 2015.

 Abstract

This paper analyses the role of state-socialist countries in the development of international criminal law, through the example of the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. It examines the context, the negotiations and the interpretations that had been given to the Convention in 1968. It then focuses on the Convention’s application and its new readings in domestic prosecutions of human rights abuses in Argentina and Estonia in the 2000s. The paper argues that international criminal law norms initiated or supported by state-socialist countries during the Cold War have been instrumental in trials dealing with crimes of authoritarian regimes during the “third-wave of democratization” in Latin America and Eastern Europe. It also reflects on the historicity of law. It discusses how legal norms constructed in a particular historical context with a specific political purpose are re-interpreted and re-negotiated in order to fulfil new political goals in the present.

This slideshow requires JavaScript.