An Ancient Precedent of Ius Post Bellum: The Complex Interplay between Reconciliation and International Criminal Justice in Classical Greece

BUIS, EMILIANO JERÓNIMO

Nueva Delhi

Seminario; Seminar on the Historical Origins of International Criminal Law; 2014

Centre for International Law Research and Policy (CEIPIL)

Even if international legal history has proven to be recovering as a discipline in the last decades, historical questions dealing with the international law system in ancient times have been frequently disregarded. Very few voices have dealt with the legal aspects of interstate relations before the Christian era, and nevertheless, it seems a well-established fact today that classical Antiquity was well aware of the specific functionality and the relative importance of signing treaties and setting rules to regulate the behaviour among the autonomous and politically organized communities around the Mediterranean world between the VI and I centuries BC. The rules dealing with the reaction to crimes committed during situations of violence are an example of the ways in which Antiquity can provide us with precedents that may explain modern attitudes to ius post bellum. The last years of the V Century BC offer two examples that can show how ancient Greeks dealt with atrocities originated in the context of international or internal armed conflicts. In 405 a.C., after the naval battle of Aegospotami, the Lacedemonian admiral Lysander decided to transfer all prisioners to Lampsacus and to establish a tribunal ?composed by representatives of Spartan allies- in order to try those enemies (including generals Philocles and Adeimantos) who had killed the crew of two trirremes (Xenophon, Hellenica 2.1.31-32). The vocabulary used to explain this trial is similar to the one employed to justify the creation of the Nuremberg Tribunal after World War II, and thus represents our earliest known example of an international court dealing with the punishment of war crimes in Western history. Only two years after the condemnation of the Athenian generals, after the eight-month-long oligarchic regime led by the Thirty Tyrants ?which resulted in the extrajudicial killing of almost ten percent of all citizens, considered to be their opponents- the Athenians decided to implement a ?reconciliation? mechanism that managed to balance forgiveness and retribution: whereas the superior officials were granted an amnesty for the crimes that had taken place during the civil wars, ordinary citizens could assist in private arrests and therefore bring ?justice? to society by denouncing widespread attacks against civilians. This contribution intends to shed light on the different manners in which criminal offenses in times of armed conflict could be dealt with. My purpose here is to show that already in Greek antiquity it is possible to find complementary (and not completely compatible) methods of addressing simultaneously mass atrocities. This ancient landmark, which is complex and similar to more recent experiences, should be fully explained in order to have a better understanding of the historical logics underlying the growth and development of international criminal law in modern times.