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Boister, Neil; Schultz, Michelle; Hopkins, John --- "Book Reviews" [2008] NZYbkIntLaw 15; (2008) 5 New Zealand Yearbook of International Law 375

Book reviews

Title: War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy

Publisher: Routledge

Year: 2008

Pages: xii + 213

ISBN-10: 0-415-42673-1

Author: Madoka Futamura

This addition to Routledge’s Contemporary Security Studies series is one of a small number of welcome new works in the literature in English on the hitherto largely unexplored International Military Tribunal for the Far East (IMTFE) or Tokyo Trial that have been published on the sixtieth anniversary of the trials.[1] This book is not an examination of the legal context of the trial or the peculiar history of the trial. Rather the focus of Futamura’s study is Japanese reaction to and perception of the Tokyo Trial, which she uses as a case study to test the thesis made by many advocates of international criminal justice that the ‘Nuremberg Legacy’ is necessarily a good thing. In arguing for the creation of the ad hoc international criminal tribunals and the International Criminal Court modern proponents of international criminal justice have contended that the ‘Nuremberg Legacy’ is a necessary part of transitional justice in post-conflict societies. This belief has given rise to Futamura’s interest in testing the historical efficacy of this norm in the context of the IMTFE as a near contemporaneous international trial to that held at Nuremberg. Her methodology in measuring the impact of the trial includes both extensive reference to commentators but also interviews and focus groups conducted with ordinary Japanese. One of the very useful features of the book is that it makes these responses available to a non-Japanese speaking audience.

Her main thrust is to question the utility of two devices used in the Nuremberg approach – the individuation of criminal responsibility and the creation of an historical record – in Japan. Chapter one of her study focuses on the purpose of international criminal tribunals. Taking a constructivist position she points out that Nuremberg has evolved from an event into a norm. Chapter Two examines the teleological function of this norm in providing the rationale for the emergence of modern international criminal tribunals. In her third chapter she shifts to the main thrust of the study which is to examine the validity of this norm when used at Tokyo. She argues that the trial’s record reveals the selectivity of crime, accused, evidence and adjudicator, which indelibly tarnishes the trial. Chapter Four moves to the Japanese perceptions of the trial. Interestingly, she rolls these perceptions out chronologically thus revealing the shift in perception over time. Generally apathy or resignation has prevailed as the trial seemed to vanish from history. However, for a limited number Judge Pal’s dissent has become a beacon of dissent as to the trial’s fairness, matched by the polemical views of those who felt the trial did not go far enough. This polarization has continued through the text-book rows, the emergence of victims’ rights groups such as the ‘Comfort Women’ and the controversy surrounding renewed Prime Ministerial visits to the Yasakuni shrine which houses the remains of a number of the accused. Chapter Five examines the Trial’s claim to provide an historical record of the war and the impact of this contested record on Japan. Futamura records how the “Tokyo Trial view of history” became a pejorative phrase for an active minority. Although the majority have remained silent, Futamura makes the subtle point that this silence is significant – their apparently uncritical acceptance of the Trial’s view of history keeps Japanese wrongdoing at a safe distance enabling many Japanese to avoid confrontation with history. But crucially for her thesis she concludes that it remains questionable whether the Tokyo Trial has cultivated the collective memory necessary for social transformation in Japan. In Chapter Six examining the impact of individual criminal responsibility she denies that it has achieved its aims of freeing the population from collective guilt thus leading to social transformation. She finds instead that it enabled the Japanese to immunise themselves from responsibility, they justified the trial on the basis of Japan’s defeat not on the basis of the Japan’s waging of war. She examines both the horizontal de-collectivization of war responsibility at the end of the war and the vertical de-collectivization down through the generations until the present. One of the critical differences from Nuremberg – that of differentiating the accused from the ordinary population – has given the far right purchase in their criticisms of the legacy of the trial. In this instance the IMTFE must be the norm and thus the lesson for most modern international criminal trials, and Nuremberg with its clear (if perhaps artificial distinction) between Nazis and ordinary Germans, the deviation. Finally, Futamura illustrates through her interviews the paradox that while ordinary Japanese have detached themselves from the trial they are frustrated for being blamed at the trial. It seems they cannot escape it.

Futamura goes to some length to avoid placing too much responsibility on the Tokyo Trial for current Japanese attitudes to the war. But she cannot, to some extent, avoid making it carry a heavy causal responsibility when she states:

The scar of ‘victor’s justice’ remains in the Japanese collective memory, which leads to a vague sense of war guilt at best, a repellent nationalistic attitude at worst, and frustration in general. The fact that the trial was ‘victor’s justice’ degraded any positive significance that the trial might have had. What is more, the passive Japanese attitude towards, or ‘silence’ over, the issue of reflecting on the war and the war crimes legacy can be attributed to the fact that it was an international tribunal that has given judgment on Japan’s war.[2]

To an extent the conception of the IMTFE’s Japanese defence counsel that their role was to act in the defence of Japan rather than of the accused appears to continue today; Japan lost the war and thus the trial, not because Japan was wrong, but because it lost. Whilst the trial may have been conducted in a way which dealt unjustly with Japan, it is difficult to accept that the Trial is a significant cause of Japanese failure to master Japan’s modern history. Futamura’s broader thesis that individual responsibility and historical recording have complex and sometimes counterproductive results is sustained because her examination illustrates that international criminal tribunals may produce unanticipated results. But it remains, I think, an open question whether trials, as a formal device, produce these unanticipated results, or whether the substantive content of a trial and the fairness of its process are critical in producing such results.

Futamura’s study is interdisciplinary, but it has much to offer public international lawyers because it challenges the “safe” assumptions on which the edifice of international criminal justice is built.

Neil Boister

University of Canterbury

Title: The Triggering Procedure of the International Criminal Court Publisher: Martinus Nijhoff Publishers

Year: 2005

Pages: xix + 400

ISBN 90 04 14615 6

Author: Héctor Olásolo

This book is an abbreviated, revised and updated version of Corte Penal International: ¿Dónde Invesitigar? published in 2003 (Tirant lo Blanch, Valencia, Spain), which was based on Dr. Héctor Olásolo’s PhD. Having been part of the working group for the drafting of the Rules of Procedure and Evidence instituted by the Preparatory Commission in 2000, Olásolo is familiar with the Court’s procedural rules, and in this book he offers an innovative interpretation of the trigger mechanisms.

Following the path of many other scholars, Dr. Olásolo begins with a detailed illustration of the historical and theoretical framework of the Rome Statute. The aim of this first chapter is to invite the reader not to consider his book in absracto, but in the light of the ICC’s creation and consolidation process. He specifies that, although it is of the ‘utmost importance’ to understand ‘the intricate, tortuous and often discouraging’ creation process, the consolidation process is dynamic and as such is not ‘perpetually’ defined by the difficult political circumstances surrounding the creation of the Rome Statute.

In the second half of the chapter Olásolo explores this conceptual approach. While arguing that the prominent role of the ‘will’ of States in the ICC’s creation is incompatible with the definition of the Rome Statute as an act of the international community, he does not deny the universal aspiration of the Rome Statute. In this respect he states:

[T]he RS has the soul of a legislative act of the international community in the body of a legislative act of the States Parties.

This statement might appear incongruous but it is consistent with the author’s idea of a dynamic consolidation process. For Olásolo the ICC is an international organisation created by the Rome Statute whose ‘exclusive goal’ is to foster the material conditions that will enable an effective exercise of a stable and permanent interstate criminal justice regime. It is autonomous and independent of other political entities such as the United Nations or individual States.

The heart of the book commences with the second chapter. Here Olásolo offers his innovative interpretation of the trigger mechanisms introducing the notions of ‘dormant jurisdiction’, ‘activation prerequisites’, and the distinction between a ‘situation’ and a ‘case’.

For Olásolo the ICC has a ‘dormant jurisdiction’ because its permanent and universal nature makes it impossible to determine a priori when the Court’s jurisdiction will be triggered. The States therefore have established a number of ‘activation prerequisites’ that need to be met before the criminal procedure can be initiated through the exercise of investigative, prosecutorial, declarative and enforcement powers. In the light of the notions of ‘dormant jurisdiction’ and ‘activation prerequisites’ the trigger mechanisms become an autonomous stage. The specific object of this stage is a given ‘situation’, and not a ‘case’ which is the object of the criminal procedure.

This is an innovative interpretation of the trigger mechanisms because Olásolo, differently from many other scholars in the field, does not limit himself to considering the particular parties and proceedings in his interpretation of the trigger mechanisms. Most descriptions of the trigger mechanisms debate the role of States, the Security Council and the Prosecutor, and discuss the procedures which follow the respective referrals. However they fail to analyse or define in depth the object of these referrals. Olásolo, focusing on the specific object of the trigger mechanisms, emphasises the autonomy of the trigger stage and seeks to interpret the role of the parties and the procedures accordingly.

In the remaining paragraphs of the second chapter Olásolo discusses in a comprehensive and analytical fashion the procedures, objects and parties involved in each type of trigger procedure. Olásolo’s analysis of the priorio motu referral is particularly interesting when he discusses the relationship between the Prosecutor’s and the Pre Trial Chamber’s assessment of the ‘activation prerequisites’. This discussion offers a good overview of the never ending debate between the cumulative and substitutive models. Supporters of the former argue that the Prosecutor’s assessment must be followed by the Pre Trial Chamber’s assessment. Supporters of the latter, Olásolo included, advocate for a sole assessment by the Prosecutor.

Olásolo’s analysis of State referrals is also of interest, in particular his argument that the specific elements of such referrals comprise not only an ‘activation request’, but also an eventual ‘opposition to the activation request’. Finally, Olásolo’s analysis of Security Council referrals, although not isolated, will undoubtedly be a source of discussion. His argument is that, given the aim of the Security Council to guarantee international peace and security and that the purpose of the ICC to exercise its functions independently, both goals are achieved by guaranteeing the Council the procedural status as petitioner or requesting party in the trigger procedure.

In the third chapter Olásolo analyses in detail the ‘material prerequisites’ for the triggering of the dormant jurisdiction of the ICC over a situation. He identifies three categories of criteria as prerequisites that need to be assessed in a preliminary investigation before awakening the dormant jurisdiction of the ICC: the personal, subject matter, and temporal and territorial scope.

He then discusses the principle of complementarity. Of particular interest is Olásolo’s analysis of the principle of the primacy of national jurisdictions and his argument that the attribution of jurisdiction to the ICC on the a priori or a posteriori inaction, unwillingness and inability of national jurisdictions brings about the ICC’s material primacy over them.

Finally he discusses the Security Council’s power of deferral. He argues that the material basis of a Security Council resolution requiring the ICC not to activate its dormant jurisdiction does not have to be that the ICC’s action could constitute a threat to international peace and security but that it could undermine the Security Council’s efforts to maintain international peace and security.

In the introduction Joaquin Martin Canivell, “Ad litem” Judge of the International Criminal Tribunal for the former Yugoslavia, appropriately presents Dr Olásolo’s work as ‘a comprehensive and analytical presentation’ of the trigger mechanisms. The reader is overwhelmed by a significant amount of detailed consideration, which sometimes obscures the author’s main contentions. Nonetheless, the wealth of information presented in all three chapters encourages further research. This publication is well structured, comprehensive and ultimately informative. It is a worthwhile addition to the bookshelf of any scholar or NGO that is concerned with the pragmatic operation of the International Criminal Court.

Michelle Schultz

Parliamentary Library

Title: Constitutionalism, Multilevel Trade Governance and Social Regulation (Studies in International Trade Law)

Publisher: Hart,

Pages: 554 pp.

Year: 2006

ISBN 1841136654

Editors: Christian Joerges and Ernst-Ulrich Petersmann

The subject of global governance and constitutionalism is a neglected one. This lacuna is slowly being filled and the shelves of law libraries are beginning to weigh heavy with titles examining these complex issues. In the main, however, these contributions have proved disappointing with such texts often consisting of no more than random collections of papers, which lack coherence and overall consistency. Possibly due to the multi-disciplinary nature of the global governance phenomenon, this particular subject has been poorly served in this regard. Every now and again, however, we are blessed with a volume that advances our knowledge of this complex subject. This is one of them.

This volume, which comprises volume nine of the Studies in the International Trade Law Series, presents a series of papers which have emerged from the work of the co-editors and a wider team of academics in this area. The fact that the papers that have emerged in this volume are so well crafted and fit into a coherent whole is as a result of the process that led to the book's publication. Centred around a series of conferences and a research project based at the University of Bremen, the final book represents a real advance in the field of global governance. In particular it presents a welcome critical approach to a subject that is far too often dominated by acolytes of one theory or another.

The book itself is divided into three sections. The first brings together papers examining the wider issue of constitutionalism in the global governance structure and the WTO in particular. This first section is the part of the volume with the widest relevance. It brings together some excellent pieces and provides some stimulating discussions on the wider issues of global governance, legitimacy and judicialisation. The second and third are focussed on more particular examples in the fields of Product Safety and Environmental Governance. Although not so generally relevant than the wider introductory section, the examination of specific elements of the global governance structure adds to the volume as a whole by showing the significant impact that supposedly ‘technical’ rules have on the system as a whole. Hans Schepel's chapter in particular gives an excellent rendition of the potential impact of elements of the Technical Barriers to Trade agreement (TBT).

The overall structure of the volume is to group the papers into sub-sections which at times present competing views. This leads to some stimulating discussions and gives the book an overall coherence and readability. The opening chapters of Petersmann and Manz on the subject of the legitimacy of the emerging global order for example offer some interesting comparisons and contrasts between legal and political approaches to these issues.

The nature of a volume with so many diverse papers makes it difficult to comment on them individually, but mention needs to be made of Jorges' conclusion. This is a real tour de force which draws the papers together and makes two important connections. Firstly, the importance of domestic conceptions of public law to the developing structure of international governance and secondly the need to recognise and learn from the European Union as the most advanced structure of international governance.

Overall, this volume provides an interesting and coherent collection of papers which examine the complex and developing subject of global governance as is emerging from trade co-operation. It cannot help but leave us with the feeling that this development is something of a Frankenstein's Monster which lacks sufficient constitutional controls to use it for good. The book does not provide the solutions to this phenomenon but at least Joerges, Petersmann and their fellow authors leave us with the comforting thought that finally someone is beginning to ask the right questions.

John Hopkins

University of Canterbury

[1] See also Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford: OUP, 2008); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Cambridge, Mass.: Harvard East Asian Monographs, 2008).

[2] At p.150.

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