Antonio Cassese 1937 – 2011: Obituary

Anna Marie Brennan

Antonio Cassese, a prominent lawyer and academic, who has often been described as the “father of international criminal justice” passed away on Saturday at his home in Florence, Italy after a lengthy battle with cancer.

Judge Cassese developed a branch of public international law that had remained quiescent in the aftermath of the Nuremberg and Tokyo trials. He established the Journal of International Criminal Justice and the European Journal of International Law and also served as the Editor-in-Chief of the Oxford Companion to International Criminal Justice. He was Professor of International Law at the University of Florence from 1975 until 2008 and was also Professor of Law at the European University Institute in Italy from 1987 until 1993.

Until just a couple of weeks ago, Antonio Cassese had been the President of the Special Tribunal for Lebanon (STL) and had previously been the first ever President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which was established in the aftermath of atrocities in the Balkans in the early 1990s. He has been succeeded at the STL by David Baragwanath who has stated that “the tragedy of Nino’s (Cassese) departure is beyond words” and that Cassese’s “towering ability as a jurist and a statesman was equalled by the immense personal warmth and humanity which made him our dear friend.”

Cassese became President of the ICTY in 1993 and led the way in developing rules that would guide the tribunal which have since served as a model for the foundation of other international tribunals such as the International Criminal Court and the International Criminal Tribunal for Rwanda. In particular, the Appeals Chamber over which he presided delivered a pivotal decision in the Tadic Jurisdictional Decision in 1995 which completely changed the basic principles of international criminal law by providing that war crimes could be punished where committed during a non-international armed conflict. The judgment also provided that crimes against humanity could be perpetrated during peacetime. Despite being contentious at the time, both principles were later accepted when the Rome Statute of the International Criminal Court was adopted in 1998.

Cassese also led the United Nations Commission of Inquiry on Darfur which eventually led to the UN Security Council requesting the International Criminal Court to initiate an investigation into alleged atrocities committed in the area. This investigation ultimately led the International Criminal Court to issue an arrest warrant for several government officials in Sudan most notably the president, Omar Hassan al-Bashir. He also served as an independent expert to review judicial efficacy at the Special Court for Sierra Leone. The current Secretary General of the United Nations, Ban Ki-moon, released a press statement at the weekend describing Cassese as a “giant of international law” as well as “an exceptionally charming and warm human being who courageously stood up for justice, for human rights and for humanity.”

Antonio Cassese is survived by his wife Sylvia, their son and daughter and two grandchildren.

May he rest in peace.

Panel 1: Responding to Sexual Violence – Recent Developments in International Law

The first panel session focused on the role played by International Law, and in particular, International Tribunals, in responding to Sexual Violence in conflicts. The session provided both an account of some positive developments in the area as well as problems, in respect of law (both International and domestic), and cultural and political challenges in responding to sexual violence.
The first speaker, Dr Kelly Askin, opened the session with an account of how the past 15 years has the recognition of Gender Based Violence (GBV) as a human rights issue. Taking the conference through the key court decisions from the International Criminal Tribunals for the former Yugoslavia and Rwanda, she informed the conference that the cases have established that GBV can be prosecuted as a war crime even in cases of defendants who were “in charge” rather than directly involved in the crimes. However, setting the tone for the rest of the speakers, Dr Askin went on to note the many missed opportunities and acquittals, and the fact that it takes sustained pressure for these crimes to be successfully prosecuted in practice. She also noted that now that the International Tribunals had set down the jurisprudence, it was time for the domestic courts to “step up” and do more to prosecute GBV.
The downbeat tone was picked up by the next speaker, Professor Doris Buss, who presented findings on the legacy of the International Criminal Tribunal for Rwanda. Reporting on the “bleak” record of the Tribunal she noted that there was a very low success rate in prosecuting sexual offences. Problems were found at all points in the system – investigations, prosecution and trials. Professor Buss noted that whilst in International Law rape had become visible as a mass crime, it remained almost invisible at the point of the individual; and whilst International Law has developed significantly in relation to prosecuting GBV, the institutional and the cultural problems continue.
The final speaker, Amira Khair, presented a disturbing account of the practical experience of working with women victims of sexual violence in Sudan. The experience made clear how Sudanese law is not a solution to GBV, but is in fact part of the problem. The law on rape exposes the victims to further abuse, as it requires four male witnesses to establish a victim did not consent to the sexual act. Without these witnesses there is a danger that the victim could be prosecuted for adultery because she had sex outside marriage. The law therefore does not provide the space for victims to seek legal protection and/or justice; something reinforced by the cultural context of not speaking out in relation to sex.
The session concluded that International Tribunals using International Law were only part of the way in which rape victims can obtain justice. Local courts, truth and reconciliation commissions, reparations, all had a part to play in tackling GBV after a conflict. It also took courage on the part of the legal players; which in itself was a telling issue as Professor Buss concluded “How did we get to the point where it needed courage to convict someone for rape?”