History of Transnational Justice – from Nuremberg to the ICC

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  • Week 2: History of Transnational Justice – from Nuremberg to the ICC
    Lesson
  • Week 2 Lesson 

CO2:  Compare and contrast contemporary approaches to transitional and transnational justice.

“I drove to the site . . . and saw near it great mounds of earth, about 30 meters long and 2 meters high. Several trucks stood in front of the mounds. Armed Ukrainian militia drove the people off the trucks under the supervision of an SS-man. The militia men acted as guards on the trucks and drove them to and from the pit. All these people had the regulation yellow patches on the front and back of their clothes, and thus could be recognized as Jews. . . .”Excerpt from Hermann Friedrich Graebe’s Nuremberg Affidavit: Description of Massacre in Dubno, Oct. 5, 1942

As we learned last week, prior to the creation of the International Convention on the Prevention and Punishment of the Crime of Genocide (1948 resolved, 1951), there were no standing definitions of, and repercussions for, war crimes including mass violence and genocide. It took the horrors of WWII to provide a context for a combined international effort which recognized the collective responsibility for the protection against and reparations for crimes against humanity.  In 2017, the last surviving prosecutor from the Nuremberg trials recalled that he still wrestles with the horrors inflicted during World War II.  Watch this short clip of his story.

We may take a closer look at the eight stages of genocide to help us to understand the complexity and magnitude of such crimes as described by Gregory H. Stanton in his briefing paper to the US State Department in 1996: http://www.genocidewatch.org/images/Eight_Stages_of_Genocide_and_Preventing_Genocide_by_Gregory_Stanton,_Genocide_Watch_May_2008.ppt / http://www.genocidewatch.org/aboutgenocide/8stagesofgenocide.html

Our discussion focuses on the 8th stage which is Denial.

Note how important the establishment of authority to prosecute is to the success of a tribunal. Yet when looking to punish those responsible for atrocities, is the same consideration given as you would see in a regular criminal trial? How can international courts and tribunals ensure that all parties responsible are accounted for in the process and justice remains “blind”, especially in a post conflict situation in the very shape of a nation, its geography and leadership may be entirely altered? Nuremberg was the beginning of a new stage in international relations and the acceptance of norms among a body of member states willing to partake in the processes of justice to ensure that human dignity was preserved and the mistakes of the past not repeated. Yet a short fifty years later, again international advocates and judges were asking the question of what had now transpired in the former Yugoslavia? Had the intentions of those war criminals been so very different from the Nazis?

It is said that history is written by the victorious. We can’t help but wonder if the allies had lost to Nazi Germany if the war trials would have taken quite the same shape, or if Truman had not carried on the process upon Roosevelt’s death?  Or if Clinton had intervened in the Bosnian conflict much sooner, declaring genocide at the first recognition of mass murder?

While sheer political will have provided the landscape for compliance and cooperation, there’s no conclusive evidence that today’s judges may not be tomorrow’s defendants.

At this point in the lesson it is useful to take a look at the transcript for a video on Nuremberg. http://www.pbs.org/wgbh//amex/nuremberg/peopleevents/e_warcrimes.html

New York Times Magazine columnist Max Frankel a victim of Hitler’s persecution himself, stated his ambiguity and concern about the future of the war crimes tribunal mechanism when he wrote:

“Indeed, the fastidious framers of the Nuremberg rules claimed no right to punish non-war crimes — those committed either before September 1939 or after V-E Day. Though they proclaimed all nations subject to the same rules in the future, they never addressed the problem of who could punish atrocities committed in peacetime or in undeclared wars. They could thus escape the paradox that one of the Nuremberg judges was hanging Nazis for conduct that both before and after the war was rewarded in his own country with Orders of Stalin” (Frankel 1995).

Frankel’s point is that this justice, the justice of a human population understanding themselves to be something greater than individuals in a sovereign state, relies upon the ideals of a global conscience, a recognition of, and adherence to a code of engagement before, after and in spite of war.

This concept is not foreign to us in the twenty-first century. However, judging (to Frankel’s point) the actions of a collection of Nazi criminals against a set of legal parameters heretofore not in existence was problematic indeed.

“The ugly truth is that international crime pays. Aggressors walk free if they win the wars they start. Atrocities are customarily cited only against losers. The civilized world cannot prosecute the most heinous crimes without first defeating the perpetrators. It can’t defeat them without an army…”  (Frankel 1995).

Three years after this article was written, the International Criminal Court (ICC) would be established through the Rome Statute of 1998. Initially ratified by 60 countries, its members number 123 today.

Review the following article from the BBC on the work of the ICC.  In light of Frankel’s comments what is your assessment of the US opposition to the ICC? Of the African criticism?

http://www.bbc.com/news/world-11809908

 

For more background information on the Nuremberg trials:

Testimony of Nuremberg Prosecutors and Defendants.

 

And the Rome Statute:

http://legal.un.org/icc/index.html.

 

 

REFERENCE LIST

 

“What Does the International Criminal Court Do? – BBC News.” BBC News.

http://www.bbc.com/news/world-11809908.

Frankel, Max.  1995. “The War and the Law.” The New York Times.  http://www.nytimes.com/1995/05/07/magazine/word-image-the-war-and-the-law.html.

“Convention on Genocide.” Convention on Genocide.

http://www.hrweb.org/legal/genocide.html.

“The Rome Statute of the International Criminal Court.” Web Site of the Rome Statute of the International Criminal Court. http://legal.un.org/icc/index.html.

Stanton, Gregory H.  1998. “The 8 Stages of Genocide.” Genocide Watch. http://www.genocidewatch.org/aboutgenocide/8stagesofgenocide.html.

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