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Despite the thousands of pages written and words said about the Holocaust, I still am at a loss in trying to understand it. How a European people with a rich cultural tradition that produced some of the world's greatest composers, philosophers and poets could invent, enforce and docilely follow the first industrial genocide in human history remains, for me, an enigma. This essay focuses on the Jews, both numerically and ideologically the principal, but not the only, victims, the Roma being the other principal victims.

When the International Criminal Tribunal for the former Yugoslavia (ICTY) was established by the UN Security Council in 1993 to try individuals accused of war crimes, crimes against humanity, and genocide (or, as I shall refer to these international crimes herein, atrocity crimes), it marked in many ways a turning point in international law and relations. The creation of the ICTY reflected an effort not simply to address cries to bring an end to the horrible violence then ongoing in the Balkans but also to answer a groundswell of demands to end impunity for violations of international law more generally.

The centennial of the Hague Convention (No. II; No. IV in the 1907 version) on the Laws and Customs of War on Land and the fiftieth anniversary of the four Geneva Conventions for the Protection of Victims of War of August 12, 1949, present an opportunity to reflect on the direction in which the law of war, or international humanitarian law, has been evolving. This essay focuses on the humanization of that law, a process driven to a large extent by human rights and the principles of humanity. As the subject is vast, major issues must inevitably be left out of my discussion, including the impact of the prohibitions on unnecessary suffering and indiscriminate warfare on the regulation of weapons, the proscription of antipersonnel land mines and blinding laser weapons, and the progression of international humanitarian law from largely protecting noncombatants to protecting combatants as well.

Just over sixty years ago, the international community, seeking to heal the wounds of a brutal war, embarked on a bold legal experiment. For the first time in history, legal mechanisms were invoked to bring to justice the perpetrators of war crimes and crimes against humanity in international tribunals specifically established for that purpose. The trials at Nuremberg and Tokyo were extraordinary and risky; and, above all, unique in their time.

The West Bank and the Settlements, again? Readers may have had enough of this subject. But these are exceptional times. The adoption by the Security Council of Resolution 2334 on December 23, 2016, the unprecedented speech by Secretary Kerry delivered shortly thereafter, and the immediate rejection of both by Prime Minister Netanyahu, combined with the approach of the fiftieth anniversary of the Six-Day War in June 2017 and the continued march toward an inexorable demographic change in the West Bank, not to mention the nomination as U.S. Ambassador to Israel of a person reportedly supporting an active settlement policy and annexation: the confluence of these events demands our renewed attention. And while these developments undoubtedly have powerful political dimensions, they also call upon those of us who care about international law to speak up in support of its requirements and application.

[...]it is also undeniable that the Rome project still falls short of the expectations of the participants at the groundbreaking conference in Rome, with their visions of creating the best international criminal court possible: one that is efficient, economic, and fair, and one that applies a full panoply of human and due process rights. Former ICC judge Adrian Fulford writes of “significant lacuna in [the Court's] opportunities to act” with regard to the critical issue of states’ failure to enforce arrest warrants, a problem he believes has grown acute.3 He compares the real political and economic pressure applied by the European Union that produced the delivery of defendants to the International Criminal Tribunal for the former Yugoslavia with the lack of concerted pressure to enforce ICC arrest warrants. [...]Fausto Pocar, formerly a judge on the International Criminal Tribunal for the former Yugoslavia, tackles questions concerning the role of customary international law in filling lacunae in the Rome Statute itself.7 He explains that the Rome Statute departs from the ad hoc tribunals insofar as it treats statutory provisions as primary authority and customary law as secondary authority. Because the Rome Statute thus gives priority to the Statute over customary law, it has led to limited application of customary law by the Court. [...]all of the contributions highlight how different choices at different points have impacted the development of this young institution, and none is sparing in its critique of at least some of these decisions.

For readers whose first introduction to Shakespeare was through the widely seen film Henry V by Laurence Olivier, it is not surprising that Shakespeare was regarded as a patriotic, nationalistic and militaristic, rather pro-war playwright. Olivier's Henry V, as Ton Hoenselaars points out in his “Out-Ranting the Enemy Leader”: Henry V and/as World War II Propaganda, was entrenched in the British propaganda effort even before the thought of the film version of the war epic had occurred. Indeed, the film resulted from an invitation to produce it for the Churchill government. According to William Shaw, Olivier's film produced uplifting, patriotic propaganda for a war-weary England. It was the first Shakespeare play produced in Technicolor.

With sixty years of hindsight, it seems particularly appropriate to reflect on the trajectory of international humanitarian law (IHL) as shaped by the 1949 Geneva Conventions. The near universal acceptance of the Conventions and their secure integration into the international system can sometimes lead one to underestimate the significance of their impact.

Many countries have a long and sophisticated tradition of judicial independence and impartiality. For international criminal tribunals, of course, the subject is relatively new. In this editorial, drawing on the experience of judges in international courts and my own experience, I would like to emphasize a few themes that I think are crucial to the notions of judicial independence and impartiality in international courts, especially international criminal tribunals. Because of the exceptionally broad scope of its work, with literally hundreds of interlocutory decisions on procedural and substantive issues and many decisions resolving appeals from judgment, the International Criminal Tribunal for the Former Yugoslavia (ICTY) serves as an instructive vehicle for a broader discussion. Before turning to the Tribunal, however, I shall set out the subject in its broader, primarily national setting.

Theodor Meron has been a Judge and, between March 2012 and January 2019, was the President of the International Residual Mechanism for Criminal Tribunals (the Mechanism). He was also a Judge of the Appeals Chambers of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda from November 2011 until the closure of those tribunals. He served a total of four terms as President of the ICTY and three terms as President of the Mechanism. A leading scholar of international humanitarian law, human rights and international criminal law, Judge Meron is the author of thirteen books on international law and chivalry in Shakespeare and more than 100 articles, including some of the books and articles that helped build the legal foundations for the international criminal tribunals. His most recent book is Standing up for Justice (Oxford University Press, 2021). He is a member of the Institute of International Law and of the Council on Foreign Relations, a Fellow of the American Academy of Arts and Sciences, and the recipient of numerous awards, honours and medals, such as the Hudson Medal (American Society of International Law) and the Haskins Prize (American Council of Learned Societies). He is also an Officer of the French Legion of Honour, Grand Officer of the French National Order of Merit, Officer of the Order of Merit of Poland and Companion of the Order of St. Michael and St. George (United Kingdom). A past honorary President of the American Society of International Law and past Editor-in-Chief of the American Journal of International Law and Visiting Fellow of All Souls College, Oxford, he is Charles L. Denison Professor of Law Emeritus at NYU Law School and, since 2014, a Visiting Professor of Law at Oxford University. He is a Visiting Fellow at Mansfield College, an Academic Associate of the Bonavero Human Rights Institute and an Honorary Fellow at Trinity College.