Comment & Debate
Rebecca Roe. “The U.S. should embrace the international justice system”. Seattle Times. 20 Sept 2007 – “The ICC, established in 2002, has a distinguished history. The permanent court arose from several temporary or ad hoc courts including Nuremberg (1945-1949), International Criminal Tribunal Yugoslavia (ICTY, 1995 to present), ICT-Rwanda (ongoing in Arusha, Tanzania) and Special Court Sierra Leone (SCSL, 1994-ongoing). The international courts prosecute genocide, ethnic cleansing, crimes against humanity, systematic rape, child soldiering and similar atrocities.”
The Nuremberg trials resulted in convictions, imprisonment of and death sentences against many high-ranking Nazis. While specific accountability for some was a sufficient reason to support Nuremberg, the trials had greater intangible benefits. Nuremburg provided a forum for the world to hear what happened and how, though perhaps not why. Had there been no Nuremberg, the atrocities would have ended without the true extent of the Holocaust ever being known.
Most important was the impact on the development of international criminal law. International laws on genocide, war crimes, crimes against humanity and the Geneva Conventions were born in the late 1940s as a result of the issues identified during the Nuremburg trials. These laws set universal standards of conduct and an international system of accountability.
Judge Philippe Kirsch, President of the International Criminal Court. “Applying the Principles of Nuremberg in the ICC”. Keynote Address at the Conference “Judgment at Nuremberg” held on the 60th Anniversary of the Nuremberg Judgment. 30 Sept. 2006 – III. The Legacy of the Nuremberg Trials I would like to turn now to the legacy of the Nuremberg trials. If the message of Nuremberg is that those committing international crimes should be punished, then it is logical that there should be a court – or several courts – to punish these crimes. And these courts must rigorously uphold the standards of fairness and due process. The Nuremberg trials were never intended to be only a historical event. Those who participated in these trials saw them as the beginning of a new era of accountability. For example, shortly after the Nuremberg Tribunal concluded, one of the Tribunal’s alternate Judges, John Parker, said “It is not too much to hope that what we have done may have laid the foundation for the building of a permanent court with a code defining crimes of an international character and providing for their punishment.” Ideally, all crimes would be prosecuted by domestic courts. In ordinary circumstances, this is what happens. However, it is precisely in exceptional circumstances – in the face of the worst atrocities – that national courts have been either unwilling or unable to act. This may be because – as was the case in Nazi Germany – agents of the State themselves are complicit in or even directing the crimes. Or as we have seen in other situations, conflict can lead to the collapse of government structures, including the judiciary. In these situations, an international court is needed to punish serious crimes. For nearly fifty years, the Cold War prevented the establishment of any international criminal court. During this time, serious crimes were committed around the world and went unpunished. The Nuremberg legacy was unfulfilled.
The situation changed when the Cold War ended in 1989. International criminal justice once again became a realistic possibility. The United Nations established ad hoc tribunals in response to atrocities first in the Former Yugoslavia, and then in Rwanda. These tribunals are descendants of the Nuremberg trials. They again showed that international criminal justice is possible. However, they only partially fulfil the legacy of Nuremberg. This is because ad hoc tribunals face several limitations:
o First, such tribunals have only covered a particular country or geographical region. Crimes which occur elsewhere cannot be punished by these tribunals. o Second, these tribunals respond primarily to events in the past. They are by and
large not designed to address future crimes. o Third, their creation depends on the political will of the international community of the day. As a result, such tribunals have been the exception, not the rule. These limitations also diminish the possible deterrent effect of ad hoc tribunals. A permanent, truly international criminal court is necessary for the punishment of
international crimes. Equally important, only a permanent, readily available court can most effectively deter future crimes. IV. The International Criminal Court I would like to turn now to the International Criminal Court and how it is intended to fill this need. The ICC was established through a treaty negotiated in 1998 by 160 States meeting in Rome.
The ICC builds on the two core principles of Nuremberg – the need for accountability for serious crimes and the importance of fair trials. I will start with the need for accountability for serious crimes. Like Nuremberg, the ICC is intended to hold individuals accountable for the most serious international crimes. The Nuremberg Tribunal had jurisdiction over both crimes against humanity and war crimes. The ICC also has jurisdiction over these crimes. In addition, the Nuremberg Tribunal had jurisdiction over crimes against peace. In the ICC Statute, this is referred to as the crime of aggression. The States which negotiated the ICC Statute could not agree on a definition of aggression or conditions for the exercise of the Court’s jurisdiction. They considered that the ICC should not exercise jurisdiction over a crime if it could not be precisely defined. In addition, there was no agreement on how the ICC’s exercise of jurisdiction should relate to the Unite Nations Security Council’s role in finding that a State has committed aggression. Nonetheless, the legacy of Nuremberg was so strong that most
States insisted it be included in the Statute. However, the ICC will only exercise jurisdiction over this crime once it is defined and conditions for the exercise of the Court’s jurisdiction are agreed. The ICC Statute builds considerably on the initial crimes tried at Nuremberg in two ways.