Courtesy of guest blogger, Ambassador Stephen J. Rapp

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I want to thank you for honoring me with your invitation to speak with you here at the Thomas Dodd Research Center.

I am particularly happy to join you in remembering the speech delivered by President Clinton twenty year ago at the dedication of the Dodd Center, which commemorated the 50th anniversary of the opening of the Nuremberg Trials. President Clinton spoke of the importance of successful prosecutions to send a signal to war criminals that they cannot escape consequences for committing terrible atrocities and that the signal would come across even more loudly and clearly with the establishment of a permanent international criminal court.
It is also a great honor to speak at a center named for a great prosecutor, Thomas Dodd. President Truman awarded him the Medal of Freedom for his service at Nuremberg. In the President’s proclamation, he spoke of Dodd’s outstanding professional skills, brilliant cross-examinations, sound grasp of legal issues, his tact, and diplomacy.

He was largely responsible for the cooperation with the other prosecuting powers and the success of the International Military Tribunal (IMT). As a fellow former national and international prosecutor, I can think of no higher praise.

We are here today to commemorate the 70th anniversary of the opening of the trial at the IMT. It arose in response horrendous violence of the Nazi regime in World War II. Well before the end of the war, the nations that united to defeat Germany decided that the leaders of the German state and society who were individually responsible for this violence should face judgment for their crimes.

When Justice Robert Jackson was asked by President Truman in April 1945, to take a year away from the US Supreme Court, to organize and prosecute the trials, it was not certain that it would be possible. Churchill had favored summary execution for the Nazi leaders. Even in the Spring of 1945, Lord Simon, the British Lord Chancellor, pushed for proceedings through an “Act of Arraignment” –charges read out, with the defendant asked to respond orally, without the opportunity to present witnesses or other evidence, followed a by quick decision on guilt and sentence. There was no precedent for a trial of this kind and under the concept of sovereignty, established in the Peace of Westphalia of 1648, there was no right to judge the leader another country.

Prior to Nuremberg, leaders of nations never needed to worry about facing justice for committing crimes against their own people or anyone else. They could kill tens of thousands and at best expect to die in their beds in their palaces or mansions, or at worst in a villa or other resort in comfortable exile. Even when they violated international treaties or committed horrible crimes against occupied peoples, their borders might be adjusted, but as long as their own domestic systems allowed them to continue to rule, they would not generally be disturbed by their former enemies.

But what emerged, thanks to US leadership, after six weeks of negotiation in the summer of 1945 at Church House in London, and key decisions made by the four power leaders at Potsdam, was a code of law and procedure for trials of the Nazi leaders in Nuremberg, formally approved by representatives of the US, UK, France and the Soviet Union on August 8, 1945.

Beyond violations of the laws of war, established by convention and custom, the introduction of the concept of “crimes against humanity” made the commission of violent acts, such as murder and enslavement, as part of widespread or systematic attacks against civilian populations a grave violation of international law, suggesting that the leaders held a duty to all humanity beyond those set forth in the statutes and agreements made by states.

The trial of the IMT opened on Nov 21, 1945, with one of the greatest addresses ever given in a courtroom, by Justice Jackson, leading the case for the United States. In the second minute of his speech, Jackson was clear about the necessity of law applying to the most powerful people:

“The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”

This was a speech of great dignity by Supreme Court Justice. But was it revolutionary? When later asked his opinion, Jackson responded that the tribunal was recording an accomplished advance in international law. What was new was to apply it. And that application was indeed revolutionary: The most powerful leaders in the world owed obligations to all of humanity, and the intentional violation of these obligations could be prosecuted and punished. Of course, it was the four victorious powers doing the prosecuting, but as Jackson said, the plaintiff at the bar was civilization.

Jackson also suggested that this was not likely to be just a “one off” effort, he believed it could become a universal project that could be applied in the future to others and to ourselves. This is why it was so important that the alleged perpetrators, even of great evils, must also be entitled to the laws protections. As he said:

“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”

This was a historic break from past practice. While even today the universality of justice may not be fully recognized by all, there can be no doubt that it was something new to place the criminal law over power.

After a little more than nine months of proceedings, and one month for deliberations, the IMT rendered historic judgments on September 30 and October 1 1946 on the Nazi leaders, convicting 18 and acquitting three. There followed in Nuremberg 12 additional trials of members of the leadership groups of Nazi Germany, from the doctors to the diplomats, industrialists who manufactured the arms and lethal agents to the commanders of forces like the Einsatzgruppen, who used the weapons to deliver death to millions. This also laid the foundation for the Germans themselves in national trials in Frankfurt in the 1960s of lower level actors responsible for the mass exterminations perpetrated at Auschwitz and elsewhere.

With the advent of the Cold War, the necessity of international trials came to end for a time. That is not to say that there were no atrocities, but leaders who were responsible, even after they were overthrown, did not face justice and instead found safe havens, with Idi Amin of Uganda in Saudi Arabia, Mengistu of Ethiopia in Zimbabwe, and the Shah of Iran in Panama.

It was only after 1990, following the mass targeting of civilians in a civil war that broke out in the former Yugoslavia, that it became possible to revive international justice. The vehicle was a resolution in the U.N. Security Council, based on a creative reading of Chapter 7 of the U.N. Charter giving the Security Council authority to take all necessary steps to restore international peace and security. In the absence of the will to send in military and civilian forces with the mandate and means to protect civilians directly, the idea was to deter the violations by sending in prosecutors and judges who could charge and then remove the worst alleged perpetrators until the end of their trials and more permanently if they were convicted. In 1993, after almost 100,000 civilians had been killed, the U.N. Security Council established the International Criminal Tribunal for the former Yugoslavia and the next year, a similar court, the International Criminal Tribunal for Rwanda. Later in the same decade, a new hybrid model was deployed, the Special Court for Sierra Leone, based on an agreement between the United Nations and the government of Sierra Leone.

These tribunals were different from Nuremberg. The IMT was conducted by forces of occupation, where the winners of the war had the power of a state to investigate, arrest, try individuals, and to enforce their judgments. But the post-cold war tribunals required cooperation of states.

While expectations were low and it was slow going, the Yugoslavia Tribunal was eventually able to gain the arrest or appearance of all 161 people it charged, a record unparalleled in the annals of such criminal justice. The Rwanda and Sierra Leone tribunals charged fewer and brought almost all to court. Each aimed for the top, and hit their targets, including Jean Kambanda of Rwanda, who headed the extremist government that implemented the genocide. Convicted of that crime, he is now serving life imprisonment in Mali. The ICTY tried a European president, Slobodan Milosevic of Serbia, who died just before the end of his trial. There was also Charles Taylor of Liberia was convicted of crimes against humanity and war crimes at the SCSL and is now serving a sentence of 50 years in the United Kingdom.

The challenge of establishing separate courts for specific situations led many countries to push for the creation of a permanent international court that would have global jurisdiction to try cases of genocide, war crimes, or crimes against humanity in situations where domestic justice systems did not have the will or capacity to do so. A treaty was negotiated in Rome in 1998, and the resulting “Rome Statute” came into effect when the 60th ratification was obtained in 2002. By 2015, the International Criminal Court had 123 member states, with all of South America, almost all of Europe, and most of Sub-Saharan Africa on board. Significantly 72 UN member countries have not joined, including the United States, Russia, China, and most of Asia and North Africa.
There have been challenges in the effectiveness of the ICC with only three trials completed and two convictions. The recent withdrawal of the Jomo Kenyatta case early in the trial, and fugitives like Joseph Kony, Omar al Bashir, Sylvestre Mudacumara highlight this.

The ICC is only a court of last resort, but there has been no coordinated effort to achieve complementarity. There is also an impunity gap. The ICC’s jurisdiction generally extends only to the territory or citizens of its member states, although it can reach beyond the 123 member states if an alleged crime is referred by the U.N. Security Council. But when that has happened – twice, with Sudan/Darfur in 2005 and Libya in 2011 – the ICC was unable to obtain the cooperation of the subject governments and bring any of the individuals it indicted into custody.

It was tried again in May 2014 with a resolution to refer the Syrian situation to the ICC received the votes of 13 of Council’s 15 members, but the two negative votes were vetoes – by Russia and China. The resulting legal inability of the ICC to reach the massive crimes in Syria, where more than 200,000 civilians have been killed, was an advertisement for the irrelevance of the ICC.
Another issue is that of ungoverned spaces. There was more political support to go after non-state actors, like Kony’s Lord’s Resistance Army, and leaders of armed groups in the Democratic Republic of Congo. Now we have the Islamic State and other jihadist groups from Timbuktu to Tikrit. The ICC recently charged and took custody of Ahmad Al-Faqi al Mahdi for destruction of tombs and religious scrolls in Mali.

Legitimacy and double standards remain a challenge but the effectiveness of the court is often underestimated. It is clear that no one wants to be caught in the cross-hairs of the ICC. The following examples highlight this: the 2014 Kenyan election was the first without violence in a quarter century, as the loser in a close contest decided not to unleash the militants of his party, Rwanda curtailed its support of a proxy militia in the Congo in 2013 and 2014, a president in Burkina Faso who in 2014 sought to extend his 28 years of rule decided to relinquish power and leave the country rather than shoot down demonstrators in the street and perhaps make himself an internationally wanted man. In Senegal, the Trial of Hissène Habré is another promising example.

In Sri Lanka a UN Human Rights Council resolution authorized an investigation by the High Commissioner for Human Rights. Thereafter, in Sri Lankan elections, the pressure of the US and its allies may have contributed to the voters’ decision to elect a new president and government that would end international isolation by being more open to domestic accountability and reconciliation with the Tamil community.

There is room for flexibility of models, but the importance of international participation remains. There’s no Habré prosecution without an international campaign to assist the victims and pay for the court. The International Commission against Impunity in Guatemala and the new hybrid court for the Central African Republic represent real complementarity.
What is the continuing relevance of this project in a world where violent religious extremists can shoot down 129 innocent human beings while they enjoy a concert or dine out with their families? Of course it is necessary to defeat the Nazis militarily, but that success was much more durable because it was accompanied by a fair process that revealed the truth to Germans and to the world of how it happened, and that held the surviving major actors to account. In 1945-46, it involved going “all-in” for justice, with the occupying armies gathering evidence and arresting and detaining accused persons. It brought the former Attorney General of the US, a sitting Justice of the USSR at the counsel table, and joined by great prosecutors like Thomas Dodd. This laid the foundation for a peaceful, law-abiding, and prosperous Germany and Europe. Since then, international judicial accountability has worked when nations like ourselves have brought mind to muscle in support of justice.

Today one sometimes hears that “perpetrators will be brought to justice,” when the speaker means that a bomb will be dropped where we think they are. Of course, we must defeat our enemies on the battlefield. But in the end, just as Hitler and Goebbels, were ready to die rather than face us, many of these enemies are prepared for martyrdom that will draw others to their cause, and would look in horror at spending the rest of their lives in a prison cell.

The answer should be as Jackson said in his opening: in order for power to pay the tribute to reason we need to submit captive enemies who are believed responsible for great crimes to judgment of the law.

–Ambassador Stephen J. Rapp
US Ambassador at Large for War Crimes Issues (2009-2015)

 

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Images available in Thomas J. Dodd Papers.