Law

Shaping custom
Kasey McCall-Smith

This chapter delivers an account of the way in which the engagement between States and the United Nations human rights treaty bodies plays a clear, but often overlooked, role in shaping customary international law. It proceeds from the accepted notion that international organisations contribute to international law-making in a number of ways. It argues that the responses by States to human rights treaty body interpretations support a conclusion that treaty bodies can, and do, contribute to the development of customary international law through their relationships with States parties. As a starting point, this chapter delivers an account of the treaty bodies as primary interpreters of human rights treaties and contributors to the development of human rights law followed by consideration of the prohibition against torture as a human right that is also recognised as a customary rule of international law. While it is clear that the core prohibition against torture is undoubtedly recognised in customary international law, the analysis demonstrates that further dimensions of the prohibition reflecting treaty body interpretations are on the horizon.

in International organisations, non-State actors, and the formation of customary international law
Jean-Baptiste Merlin

The role of international organisations in the formation and expression of customary international law remains quite controversial as shown in the works of the International Law Commission leading to the adoption on second reading of the draft conclusions on identification of customary international law. As an international organisation of a universal character, the United Nations holds a unique place in this regard. The contribution of some of its organs to the formation and/or expression of rules of customary international law is complex and manifold. It may be direct, or indirect; and it bears a close link with the States’ reaction to positions taken by the relevant United Nations organs. This chapter examines the specific contribution of the United Nations Secretariat to the formation and expression of rules of customary international law. Such contribution is apprehended through various forms of conduct of the Secretariat, including legal opinions of the Secretariat, the Secretary-General’s practice relating to multilateral treaty depositary, and the interaction between the Secretariat and other United Nations organs. Based on this analysis, it is advanced that the United Nations Secretariat plays a direct and indirect role in the formation and expression of rules of customary international law.

in International organisations, non-State actors, and the formation of customary international law
Jean d’Aspremont

This chapter reflects on the last decade of scholarly reflections on the question of non-State actors and customary international law and revisits some of the specific argumentative constructions and presuppositions that have informed – and continue to inform – discourses on the contribution of non-State actors to the formationof customary international law. It is argued here that three tropes have been mechanically repeated in previous rounds of scholarly debates on non-State actors and customary law. These constructions can be summarised as follows: the idea that the two-element variant of the doctrine of customary international law originates in article 38 of the Statute of the Permanent Court of International Justice; the continuous attachment of international lawyers – including the International Law Commission – to the distinction between practice and opinio juris; the understanding of the concept of non-State actors as a plain and innocent descriptive category.

in International organisations, non-State actors, and the formation of customary international law
Open Access (free)
Aurore Schmitt and Welmoet Wels
Human Remains and Violence: An Interdisciplinary Journal
Open Access (free)
Élisabeth Anstett, Jean-Marc Dreyfus, and Caroline Fournet
Human Remains and Violence: An Interdisciplinary Journal
The Tomašica mass grave and the trial of Ratko Mladić
Caroline Fournet

This article focuses on the judicial consideration of the scientific analysis of the Tomašica mass grave, in the Prijedor municipality of Republika Srpska in Bosnia-Herzegovina. Often referred to as the largest mass grave in Europe since the Second World War, this grave was fully discovered in September 2013 and the scientific evidence gathered was included in the prosecution of Ratko Mladić before the International Criminal Tribunal for the Former Yugoslavia. Based on the exhaustive analysis of all the publicly available trial transcripts, this article presents how the Tomašica evidence proved symptomatic of the way in which forensic sciences and international criminal justice intertwine and of the impact of the former over the latter on the admissibility of evidence, the conduct of proceedings and the qualification of the crimes perpetrated.

Human Remains and Violence: An Interdisciplinary Journal
Cambodia’s bones
Fiona Gill

The display of human remains is a controversial issue in many contemporary societies, with many museums globally removing them from display. However, their place in genocide memorials is also contested. Objections towards the display of remains are based strongly in the social sciences and humanities, predicated on assumptions made regarding the relationship between respect, identification and personhood. As remains are displayed scientifically and anonymously, it is often argued that the personhood of the remains is denied, thereby rendering the person ‘within’ the remains invisible. In this article I argue that the link between identification and personhood is, in some contexts, tenuous at best. Further, in the context of Cambodia, I suggest that such analyses ignore the ways that local communities and Cambodians choose to interact with human remains in their memorials. In such contexts, the display of the remains is central to restoring their personhood and dignity.

Human Remains and Violence: An Interdisciplinary Journal
Sacralisation and militarisation in the remembrance of the ‘cursed soldiers’
Marije Hristova and Monika Żychlińska

Between 2012 and 2017, at the Ł-section of Warsaw’s Powązki Military Cemetery, or ‘Łączka’, the Polish Institute of National Remembrance exhumed a mass grave containing the remains of post-war anti-communist resistance fighters. Being referred to as the ‘cursed soldiers’, these fighters have become key figures in post-2015 Polish memory politics. In this article we focus on the role of the volunteers at these exhumations in the production of the ‘cursed soldiers’ memory. Following the idea of community archaeology as a civil society-building practice, the observed processes of sacralisation and militarisation show how the exhumations create a community of memory that promotes the core values of the currently governing national-conservative PiS party. We found that tropes related to forensic research and typically identified with cosmopolitan memory paradigms are used within a generally nationalist and antagonistic memory framework.

Human Remains and Violence: An Interdisciplinary Journal
Yann LeGall

Debates on the relevance of repatriation of indigenous human remains are water under the bridge today. Yet, a genuine will for dialogue to work through colonial violence is found lacking in the European public sphere. Looking at local remembrance of the Majimaji War (1905–7) in the south of Tanzania and a German–Tanzanian theatre production, it seems that the spectre of colonial headhunting stands at the heart of claims for repatriation and acknowledgement of this anti-colonial movement. The missing head of Ngoni leader Songea Mbano haunts the future of German–Tanzanian relations in heritage and culture. By staging the act of post-mortem dismemberment and foregrounding the perspective of descendants, the theatre production Maji Maji Flava offers an honest proposal for dealing with stories of sheer colonial violence in transnational memory.

Human Remains and Violence: An Interdisciplinary Journal
Greer Vanderbyl, John Albanese, and Hugo F. V. Cardoso

The sourcing of cadavers for North American skeletal reference collections occurred immediately after death and targeted the poor and marginalised. In Europe, collections sourced bodies that were buried and unclaimed after some time in cemeteries with no perpetual care mandate, and may have also targeted the underprivileged. The relationship between socio-economic status (SES) and abandonment was examined in a sample of unclaimed remains (603 adults and 98 children) collected from cemeteries in the city of Lisbon, Portugal, that were incorporated in a collection. Results demonstrate that low SES individuals are not more likely to be abandoned nor to be incorporated in the collection than higher SES individuals. Furthermore, historical data indicate that the poorest were not incorporated into the collection, because of burial practices. Although the accumulation of collections in North America was facilitated by structural violence that targeted the poor and marginalised, this phenomenon seems largely absent in the Lisbon collection.

Human Remains and Violence: An Interdisciplinary Journal