Argument: ICC is not historically comparable to the Nuremberg tribunal

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Gary T. Dempsey. “Reasonable Doubt: The Case Against the Proposed International Criminal Court”. CATO Institute. 16 July 1998 – It is common for proponents of the ICC to argue that it will function like a permanent Nuremberg tribunal.2 In fact, the city of Nuremberg, where 21 Nazis stood trial for their role in the deaths of more than 20 million people, is mounting a serious campaign to be the permanent home of the proposed court.3 Yet according to John R. Bolton, former assistant secretary of state for international organization affairs, the Nuremberg comparison does not withstand close inspection: “Whenever the idea of a war crimes tribunal is raised, Nuremberg is the model invariably cited. But an international criminal court [will be] nothing like Nuremberg.”4 Consider how the Nuremberg trials actually worked. They followed the unconditional military and political surrender of the Axis powers. Prospective defendants were already in custody, and extensive documentary and physical evidence was readily available. Moreover, the Allies shared a common vision of what the postoccupation government should look like, and the defeated peoples endorsed the legitimacy of the war crimes process. Simply reciting that history shows how different Germany and the Nuremberg tribunal were from contemporary cases, like Bosnia and the Yugoslavia tribunal.” Bolton points out,

the outside powers share no consensus about their ultimate objectives or how [the Yugoslavia tribunal’s] war crimes trials fit into an overall political resolution [in Bosnia]. Indeed, precisely because there was no clear military defeat, the future status of the warring parties is not finally decided. . . . Moreover, most key defendants are not in custody and not likely to be brought into custody in the foreseeable future. Evidence is unquestionably being concealed and destroyed in widespread fashion.5

Alfred P. Rubin, professor of international law at the Fletcher School of Law and Diplomacy at Tufts University, has a similar view of the Nuremberg comparison. He explains, “There is a frequently cited precedent for using a legal tribunal and the notion of war crimes to bring ‘justice’ to a legal order that seems incapable of enforcing the rules outsiders regard as vital: Nuremberg. But the precedent fails because the two situations are not analogous… Nuremberg was a victors’ tribunal.”6 Rubin adds that Nuremberg was also in the middle of Germany and its greatest success was in exposing to the German people themselves the crimes committed by their government. Furthermore, at Nuremberg the Nazi archives were open to the defense as well as to the prosecution, and the need for Allied secrecy did not inhibit the ability of the defense to present evidence. But the proposed ICC will not be a “victors’ tribunal,” and it will encounter many of the same problems the Yugoslavia tribunal does. Rubin explains that

the documents and testimony needed for an effective defense are hard to expose and bring to the tribunal; there is no reason to expect the Bosnian Serbs to publish their internal records, and no reason to think that the Serbian Serbs would want those records, or their own Cabinet minutes that might reflect those records, exposed. Nor is there any reason to expect the Bosnian Muslims of Croatians to volunteer their own records, which might exculpate some low-level defendants by incriminating higher-level officials.”

David B Jr Rivkin and Lee Casey. “The ICC’s Blow to Peace Hopes in Darfur”. Wall Street Journal. 23 July 2008 – It is true that the post-World War II war crimes trials in Germany and Japan targeted Axis leaders (with the exception of Emperor Hirohito). But they were exceptions and involved unique circumstances, in which the states concerned had surrendered their sovereignty to the Allies, who consented for them.