Case Western Reserve University School of Law
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Research Guide: International Humanitarian Law
The modern history of war crimes began with the Nuremberg Trial following World War II that pierced the veil of national sovereignty and command responsibility and held major German leaders responsible for their actions during World War II.1 The Charter of the International Military Tribunal sought to prosecute crimes against peace, war crimes, and crimes against humanity.2 The Statute of the Tribunal for the Former Yugoslavia expanded the definition of crimes against humanity to include rape, persecution, and other inhumane acts.3 The International Tribunal for Rwanda clarified the various guises that genocide takes.4 The Rwandan situation also allowed Belgium to successfully test its then-existing law claiming universal jurisdiction to prosecute persons committing crimes against humanity.5 The Special Court for Sierra Leone included in its Statute that involving or conscripting children in the conflict was a violation of international humanitarian law.6 The International Criminal Court provides a potentially permanent institution to address future war crimes, although the lack of participation by the United States raises concerns.
Human Rights and Humanitarian Law
René Provost succinctly summarizes the difference between human rights and humanitarian law:
The emphasis of human rights law is on granting positive rights to the individual, while humanitarian law protects the interests of the individual through means other than the granting of rights." 7These areas of law are primarily treaty-driven.8 However, public international law principles, such as general principles and custom may also be relevant.9
Primary Sources (Tribunals)
The International Criminal Court and the major war crimes tribunals (Former Yugoslavia, Rwanda, and Sierra Leone) all have Internet sites that disseminate primary source documentation such as their respective statutes, indictments, and case decisions. Harvard and Yale have independently undertaken efforts to make documents related to the Nuremberg Trials available via the Internet as well. Potential print sources for the recent tribunals include Global War Crimes (multi-volume), Annotated Leading Cases (Yugoslavia), Annotated Leading Cases (Rwanda), and International Legal Materials. The authoritative print sources for the Nuremberg Trial are Trial of the Major War Criminals before the International Military Tribunal10 and Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, Nuremberg, October 1946-April, 1949.11 The preeminent print source for the Tokyo tribunal is The Tokyo Major War Crimes Trial ... edited by R. John Pritchard.12
The International Humanitarian Law Research Initiative includes a section on war crimes as part of its comprehensive and current portal on humanitarian law.13 Free registration is required. Case law students may avail themselves of tools such as the Social Science Research Network14 and the Current Index to Legal Periodicals (via Westlaw (CILP)) or in print) for more scholarly law review articles and working papers. The aforementioned tribunal websites are implicitly relevant current awareness sources. Websites maintained by organizations, such as the International Center for Transitional Justice,15 may prove useful. The American Society of International Law (ASIL) publishes an Internet newsletter that occasionally includes short articles written by experts on ripe international criminal law issues.16
Primary Sources (Foreign Law)
It is often necessary to find sources of foreign law. From a U.S. perspective, this entails the legislation, case law, and administrative regulations of any other sovereign nation-state. An excellent source to identify such sources, and the potential availability of translations in English or another "accessible" language, is Reynolds and Flores, Foreign Law: Current Sources of Codes and Legislation in Jurisdictions of the World17). Stating the obvious, not all 191 states (nations) comprising the United Nations18 share the United States' fondness for the English language. Primary sources for other countries may be available only in the vernacular, and may only be available, if at all, via fee-based subscription services. Mirela Roznovschi at NYU School of Law Library maintains the preeminent collection of links to foreign law databases. She also has produced an excellent guide on evaluating such sources.19 Stating the less obvious, many nations are civil law countries that place decidedly less emphasis on case law than common law systems such as the U.S. Another relevant, if less intuitively obvious fact, is that for-profit publishers are more likely to make available, for example, commercial codes (and English translations thereof) useful to business transactions, rather than penal codes (and English translations thereof), relevant to war crimes research.20 A unique source for finding article, both in English and in the vernacular, is the Index to Foreign Legal Periodicals.21 For more staid foreign topics, the Szladits bibliography, though dated, may be useful.22 Foreign Law provides brief histories of foreign legal systems; more in depth historical, but dated, information may be found in the Modern Legal Systems Cyclopedia.23 A quick and dirty way to update foreign law is Martindale-Hubbell's International Law Digest24, although it tends to be Eurocentric and probably does not address countries dealing with war crimes issues. Searching an online catalog (see infra) will likely lead to treatises either on a particular jurisdiction's legal system in general or even its criminal law system specifically.
Today, international law embraces not only nations, but also international organizations, multinational corporations, nongovernmental organizations (NGOs) and even individuals. (Black's Law Dictionary, 7th ed., 1999). For example, individuals and NGOs have standing under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms as Amended by Protocol No. 1125, and individuals, even an acting head of state (a position that traditionally enjoyed sovereign immunity pre-Pinochet) can be prosecuted for war crimes.26
Article 38 of the Statute of the International Court of Justice defines international law as international conventions, international custom, general principles, judicial decisions, and the teachings of the most highly qualified publicists of various nations.
As mentioned earlier, the official source for recent multilateral treaties is the Treaty Series of the United Nations (Case Law Stacks JX 170.U35), but there are several reliable Internet sites that provide access to international human rights treaties.27
Good research guides are essential to an efficient research effort involving foreign and international law. In addition to this Case School of Law guide, New England School of Law and Georgetown School of Law have excellent research guides devoted to war crimes.28 The American Society of International Law and LLRX.com provide two excellent research guides on international criminal law.29 ASIL offers an additional research guide on human rights, whereas LLRX features several guides to foreign legal systems written by foreign professionals.30
Obviously, numerous books have been written on war crimes specifically and international criminal law in general. The majority of treatises related to war crimes are print publications that would either have to be owned by the Library itself, borrowed from a consortium such as OhioLINK, or borrowed through traditional Interlibrary Loan. Rarely, a title may be available and borrowed online as an "e-book."
Case Western Reserve University's holdings of print and electronic titles can be accessed. via its Library Catalog (http://www.cwru.edu/uclibraries.html). This site provides Case users with access to a myriad of additional resources, primarily indexes and full-text sources to be discussed later. Case users, and other members of OhioLINK institutions may use OhioLINK may use a shared library catalog, with the option of direct, patron-initiated ordering of items to be delivered by courier. Additional sources for finding information on potentially useful treatises (which could potentially be ordered via Interlibrary Loan) include WorldCat and the RLG Union catalog for OhioLINK patrons, and Books in Print for Case users.
Modern library catalogs offer advantages over services such as Amazon.com for persons researching scholarly topics. Advanced keyword searching allows users to search for relevant chapters in recent books as well as relevant book titles. Subject headings, such as those put out by the Library of Congress (LC), though often not intuitive, can allow a user to find similar titles with a click of the mouse after a successful keyword search. The subject headings also subdivide geographically, so you may be able to find country-specific resources (e.g. criminal law-Rwanda). The LC subject headings are generally transferable from one institution (e.g. Case) to a consortium (e.g. OhioLINK) - again, with a click of the mouse) to a world-wide database (e.g. WorldCat, although this is not so seamless.) Remote access to most academic and larger public libraries allow users to search catalogs of libraries in cities they may be visiting or catalogs of institutions with particularly strong collections that may be able to provide relevant sources via Interlibrary Loan (ILL).
Examples of relevant LC subject headings to war crimes research include:
War crime trials
Crimes against humanity
Crimes against peace
Trials (crimes against humanity)
Criminal procedure (International law)
Criminal liability (International law)
Indexes and Full-Text Sources
In the pre-digital world, print indexes provided a one-to-many access point to find topical articles available in many other print sources. The Index to Legal Periodicals (ILP) functioned effectively in this environment until 1979. Given its editorial enhancements, it is still a useful source for historical research, such as issues that were contemporaneously relevant to the Nuremberg. However it in 1980, ILP (an OhioLINK database) began to offer cumulative, electronic access to its database. Recently, it has started to index books as well as legal articles. However, it does not offer full text access to the articles it indexes. ILP's major competitor, LegalTrac (a Case resource) has offered cumulative, electronic access to its database since 1981. LegalTrac indexes U.S. legal newspapers as well as law review articles. LegalTrac upped the ante by offering selected full-text access to some titles. To those having unlimited Lexis and Westlaw access (with extensive full-text law journal coverage), this distinction is less relevant. While Lexis and Westlaw may offer these same indexes through their proprietary systems, the novice user may prefer the OhoiLINK version of ILP and the Case student may prefer to use the Case version of LegalTrac. ILP and LegalTrac offer the most comprehensive, editorially-enhanced access to post-1980 legal issues such as the Yugoslav and Rwandan tribunals. Subscription-based services such as SSRN may offer more current, though less editorially-enhance citations, as well as unique full-text sources not available elsewhere (such as working papers). For a fee, Current Index to Legal Periodicals will e-mail current law review citations in areas of law the user selects, with links to full-text Lexis and Westlaw sources. The trend in non-legal resources, such as academic and business sources, is to offer a hybrid of citations with abstracts and citations with abstracts and links to full-text.31 For non-Case-affiliated patrons, it is important to ascertain what institutional and consortium resources are available. Overzealous Case students may also want to check out the additional resources of Cleveland Public Library, which allows additional access to electronic resources, upon procurement of a library card.32
Case-affiliated patrons have access to 221 research databases.33 OhioLINK users have access to a smaller, though highly relevant, universe of research databases, as well as the crucial Electronic Journal Center (EJC).34
Though the user is cautioned to consult the entire list of available resources, the following resources have been help to students researching war crimes issues in the past:
Academic Search Premier
This source contains a lot of interdisciplinary information. It provides a lot of full-text sources, but the scholarly researcher is advised not to choose the "full-text only" option, because a highly pertinent citation that lacks full-text, but may be obtained through other means, may thus be omitted. There is a useful "peer/scholarly reviewed only articles" option that may prove useful to the serious researcher.
Article First and (OCLC) Contents First may be useful for current awareness.
Books in Print bibliographic information for books currently in print or forthcoming books
Contemporary Women's Issues and Genderwatch may help with issues involving war crimes against women, but would also likely include a great deal of extraneous issues, and probably would lack jurisdictional relevance.
EBSCO Electronic Journal Service may be for "quick and dirty' full-text searching, but it is much less relevant than OhioLINK's Electronic Journal Center for international issues, including war crimes.
Electronic Journal Center (OhioLINK) this crucial database of full-text sources features highly relevant titles such as The Law and Practice of International Courts and Tribunals, Leiden Journal of International Law, European Journal of International Law, and Human Rights Quarterly. Three levels of searching are available, including full Boolean searching at the expert level. All articles are available to be printed full-text, and many contain abstracts. The inclusion of several Kluwer International Law titles makes this source highly relevant to international legal research. A caveat is that coverage varies by title (up to about the most recent 6 years), and complete runs are not generally available. This resource is an excellent supplement to, but not replacement for, the other legal indexes and full-text sources.
Ethnic Newswatch potentially relevant, with the same earlier caveats: potentially extraneous information and potential lack of jurisdictional relevance
Expanded Academic Index: good for interdisciplinary issues and it even specifies law as a topic; substantive full-text article may have to be obtained elsewhere
Hein Online innovative service that is amassing a digital database of law reviews in pdf format. This unique source provides virtually complete runs of electronic versions of key titles such as American Journal of International Law, American Journal of Comparative Law, International Legal Materials, and several international law journals. Search mechanism pales in comparison to Lexis and Westlaw, but a great alternative to copying older law review articles.
IFLP excellent resource for the aforementioned reasons
ILPB (aka ILP; Index to Legal Periodicals and Books) excellent resource for aforementioned resources
Index to United Nations Documents and Publications (Smith Library Cd-ROM product) good for in-depth research in matters related to the UN. Less in-depth research, such as recent resolutions and Security Council recommendations may be satisfied by the UN's web site (www.un.org)
InfoTrac general interest sources, including law and social sciences
Ingenta publicly-available database of article citations that also provides an optional, high-cost document delivery service (though quick fax turnaround is available). Potentially useful for finding citations, but the less desperate patrons can obtain needed articles through other means (e.g.ILL).
JSTOR full-text source for historical (due to copyright issues) academic journals in a wide array of academic disciplines. Good for supplemental sources in interdisciplinary and historical matters. Those looking for historical legal articles should use the print ILP and Hein Online.
Legal Journals Index (1986-; Westlaw: LJI; Case Law also owns print version) focuses on legal articles relating to the United Kingdom, Europe, and the European Community
LegalTrac excellent source for the aforementioned reasons
LexisNexis Academic "pay-to-play" OhioLINK database of little relevance to law students and legal academics (who have full Lexis access), for those lucky OhioLINK members whose libraries subscribe, this source provide access to federal and states statutes and case law, recent law review articles, and selected legal news. The major flaw is a lack of a citator (other than U.S. Supreme Court decisions) to update an authority
Newspaper Source in addition to the obvious current events function; newspapers often summarize, and occasionally reprint, pending or recently passed legislation or case law. For those with access, Lexis and Westlaw may have more full-text sources, including wire services and the popular BBC materials
OhioLINK Electronic Journal Center see Electronic Journal Center
PAIS International public affairs database that goes back to the 1972, focusing on government and, indirectly at times, law. In addition to articles and books, PAIS has recently been selectively, but effectively, indexing interesting web sites.
Public Law International (Case Law JX23.P8) print source that indexes articles, including a hierarchical structure that helps explains how various facets of international law interact. Rumored to have an Internet sister database called "RAVE," dealing with European topics.
SIRS Researcher and Social Science Index potentially useful sources for possibly tangentially-related social science information
Social Science Information Gateway
"best of the web for social science"
WorldCat holdings of libraries world-wide that may be available for borrowing via ILL
Worldwide Political Science Abstracts "provides citations, abstracts, and indexing of the international serials literature in political science" and allied fields, including law, since 1975
Tribunal Web Sites
1 definition (The Columbia Encyclopedia, 6th ed., 2001)
see also "War Crimes," in Encyclopedia of Public International Law , vol. 4, Q-Z (Max Plack Institute, 2000) (print edition)
2 Charter of the International Military Tribunal ("London Charter," Aug. 8, 1945)
3 Article 5. For additional information on war crimes against women, see the works of Kelly Dawn Askin and Patricia Sellers.
4 Statute of the Rwandan Tribunal, Article 2
5 http://www.washingtonpost.com/ac2/wp-dyn/A42755-2001Jun8. The Rwandan nuns case also proves how elusive foreign law sources can be even to veteran researchers. But see http://www.dw-world.de/english/0,3367,1433_A_978973,00.html for war crimes cases against Bush and Sharon being dropped due to the lack of a legal basis.
6 Article 4. According to participant at the War Crimes Research Symposium held at Case Law School on Feb. 28, 2003, the Special Court considered, but ultimately rejected, the prosecution of children who had been combatants.
7 René Provost, International Human Rights and Humanitarian Law, Cambridge University Press, 2002, at p. 16. Two great starting points for finding human rights treaties are Fletcher-Ginn http://fletcher.tufts.edu/multi/humanRights.html and http://fletcher.tufts.edu/multi/warfare.html and the University of Minnesota http://www1.umn.edu/humanrts/instree/auoy.htm. The authoritative source for multilateral treaties is the United Nations Treaty Series, available as a subscription database or in print.
8 e.g. Universal Declaration of Human Rights, the Geneva Conventions (on the Laws of War), and conventions against torture and genocide.
9 For example, the abolition of the death penalty, in general, may be considered an emerging norm or custom. For a discussion of the death penalty in relation to the ICC, see Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law, Ardsley, NY: Transnational Publishers, pp 167-168. A better example of customary international law would be the refusal to enforce the death penalty against minors or the mentally ill.
10 Case Law Stacks JX 5439.3.T74 1971 (ISBN # 0404536506, reprint of 1947-9 ed.)
11 Case Law Stacks JX 6731.W3G4 (ISBN # 713712).
12 Case Law Stacks KZ 1811.I5746 1998 (ISBN # 07734825X). See also Tokyo War Crimes Trial: Index and Guide: Case Law Stacks JX 5438.3.P744 1981. Suppl. 1-5 (ISBN # 7737825).
16 http://www.asil.org/ilibindx.htm The archives may also provide a starting point for events that occurred after Aug. 24, 1998.
17 17 Case Law Reference K38.R49 1989--. Also available as a fee-based database service
19 http://www.law.nyu.edu/library/foreign_intl/index.html; http://www.llrx.com/features/evaluating.htm
20 On the other hand, the Internet does allow special interest group to selectively translate and disseminate pertinent domestic criminal statutes, if not entire penal codes, related to their cause. See, e.g.: http://www.preventgenocide.org/
21 For sources on international legal issues, the sources listed under Indexes and Full-test, such as ILP, LegalTrac, EJC, PAIS, etc..
22 Charles Szladits, A Bibliography on Foreign and Comparative Law (Case Law Stacks K38.B53, but only current through 1997-8).
23 Case Law Stacks K530.M62 (Although the entire set is updated frequently, the currency of specific country data is often lacking.)
24 Case Law Reserve KF190.M322; also available via Lexis
27 http://fletcher.tufts.edu/multi/humanRights.html; http://www1.umn.edu/humanrts/instree/ainstls2.htm; http://www.icrc.org/eng/ihl#doc For treaty research in general, see the guide by Hoffman (U.S. treaties) http://www.llrx.com/features/ustreaty.htm and Wegimann (Non-U.S. Treaties) http://www.llrx.com/features/non_ustreaty.htm
29 http://www.asil.org/resource/crim1.htm; http://www.llrx.com/features/int_crim3.htm
30 http://www.asil.org/resource/humrts1.htm; http://www.llrx.com/comparative_and_foreign_law.html
31 Yet again, in deference to the marketability of business information, a major business index, ABI/Inform, offers subscribers (of which Case is a member) access to a surprising amount of full-text back as far 1918. While not overtly relevant to war crimes issues, business sources may be tangentially relevant to, say, the issue of conflict diamonds in Sierra Leone or terrorist funding of poppy farmers in Afghanistan.
32 http://www.cpl.org/linkslibrary.asp?FormMode=DBList Rewarding those who actually read this footnote, CPL also offers registered users an excellent 24x7 chat reference service.
34 http://www.ohiolink.edu/ An additional benefit of OhioLINK is that many of the resources, including ILP, IFLP, EJC, and WorldCat, may be accessed at any remote Internet location for two hours, provided that the OhioLINK-affiliated users establishes a PIN number in her hone institution's online catalog. Case users should access "View your record" on the EuclidPLUS catalog (https://catalog.cwru.edu/patroninfo/).