International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Fall 2016/Winter 2017 Issue

Hague Happenings


Legacies of Nuremberg: Report From an International Conference

Iva Vukusic
By: Iva Vukusic, International Judicial Monitor Correspondent in The Hague

Prosecutors at international and hybrid tribunals and practitioners, scholars, and advocates gathered in Nuremberg, Germany, in late September, 2016 to mark the 70th anniversary of the landmark judgment of the International Military Tribunal (IMT) that followed the end of the Second World War. The judgment in this groundbreaking trial was delivered on October 1, 1946. The Supreme Court Justice and American prosecutor Robert H. Jackson put in memorable words the significance of the Tribunal that are so often quoted, when affirming the decision of the Allies to “stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law”. The trial was an expression of that firm belief that law must impose limits on power, and that instead of revenge, criminal proceedings will take place against those deemed most responsible for the suffering caused by the murderous campaign unleashed in Europe by the Third Reich.  

Prosecutors from institutions like the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Mechanism for International Criminal Tribunals (MICT), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) have been gathering for ten years at the annual meetings called the International Humanitarian Law Dialogues. The Dialogues in Nuremberg focused on the legacy of the IMT and the challenges for the fight against impunity today.

The prosecutors, former United States Ambassadors-at-Large for War Crimes Issues Stephen Rapp and David Scheffer, scholars such as William Schabas and John Barrett - they all discussed the legacies of the Nuremberg trial, the problems, expectations and accomplishments of the IMT and subsequent trials and what impact they had on German society and more broadly, international law. They reflected on how international criminal law and courts changed over the past seventy years and what the most serious challenges are to the current efforts to fight impunity. Part of the program was held in the iconic Courtroom 600, where the IMT trial against the senior Nazis was held, and which continues to be a functional courtroom. It was there that ICC Chief Prosecutor Fatou Bensouda spoke about the responsibility of the international community and states around the world to address atrocity crimes. Bensouda delivered a passionate message about the importance of leaders committing to respecting the law and pursuing accountability for the most serious offences.

It was made clear in a number of discussions how the Nuremberg trial was made possible because it was a unique moment in history that allowed a significant leap forward. In that moment, leaders of victorious powers decided that senior officials of defeated Germany would stand trial, instead of facing a firing squad. The experts agreed – the IMT proceedings, and the judgment, were not perfect – but they were solid and they created an important historical record for subsequent generations to study. Another unique moment in history was in the early 1990s, when political circumstances made the establishment of the ICTY and ICTR possible. The members of the United Nations Security Council, the establishing body of the two ad hoc tribunals, and in particular its veto-holding powers, agreed to the establishment of institutions to investigate and prosecute crimes committed in the former Yugoslavia and Rwanda. That is the sort of agreement that is lacking in Syria – the enthusiasm and political will that existed in the 1990s is simply not there. 

The roundtable with international prosecutors discussed obstacles in the way of seeking accountability in Syria, a country that has been engulfed in horrific violence for over five years, and


which has become almost a symbol of impunity for atrocity crimes. The word ‘Aleppo’ is now synonymous with barrel bombs, attacks on hospitals, siege and utter desperation. ICC Chief Prosecutor Bensouda expressed once again that the ICC has currently no jurisdiction, which invited discussions about other options for Syria, such as ad hoc, hybrid models and more local judicial processes. The latter would be beneficial, most participants seemed to agree, but expressed doubts that states emerging from conflicts as violent as the one in Syria have the independence and strong institutions required to prosecute sensitive cases impartially and efficiently.  

One topic that came up during the gathering in Nuremberg was the duration of trials. In comparison to most contemporary war crimes trials, the IMT trial was extremely quick and efficient. It lasted only one year (and had no appeal). A good example of the length of contemporary proceedings is the ICTY trial of Bosnian Serb general Ratko Mladic, that was recently concluded and now awaits first instance judgment to be delivered by judges in The Hague. After being a fugitive for years, Mladic was arrested and transferred and his trial for genocide, crimes against humanity and war crimes in a number of municipalities in Bosnia and Herzegovina (BiH) between 1992 and 1995, started in 2012 and the judgment is expected in 2017. The case was run efficiently and massive amounts of evidence regarding the removal of non-Serb populations from large areas of Bosnia-Herzegovinia, the shelling and sniping of citizens of Sarajevo, and massacres after the fall of Srebrenica were introduced by both the prosecution and the defense. In trials that are this long, and that revolve around complex legal issues it is difficult to explain what goes on in the courtroom to the populations the trial concerns. That is why, as many participants of the conference stressed, paying particular attention to outreach and ways to communicate with local populations, and managing expectations, are key for the success of these trials.

Huge advances were made in international law in a number of ways since Nuremberg. The prosecution of sexual and gender-based crimes has become a focus for international prosecutors since the first ruling that rape can be genocide in the Akayesu trial at the ICTR in 1998. Another key breakthrough are the advances in the prosecution of the crime of aggression which are yet to come to fruition at the ICC, but that signaled that states are willing to move forward with criminal prosecutions and develop international law. As we look to the future, new issues are coming to the fore at the ICC such as the danger of some states parties possibly abandoning the Court. In the courtroom, Dominic Ongwen’s trial will challenge the ICC judges to consider questions of responsibility and blame, as Ongwen was abducted as a child and forcefully turned into a soldier of the Lord’s Resistance Army in northern Uganda. Ongwen is now charged with crimes such as the murder of civilians, the abduction of children and using them as child soldiers, torture, rape, and sexual slavery. The crime of aggression and the thorny issue of Ongwen being both a victim and a perpetrator signify just some of the new areas international criminal law is moving towards. Those are some of the advances that build on the legacy of Nuremberg.

These are particularly challenging times for international justice and the political landscape is anything but reassuring for international law, and the words of U.S. then Attorney General Loretta Lynch who has taken part in the conference are inspiring: “…the onslaught of evidence of man’s inhumanity to man can leave one dispirited and discouraged.  But we cannot – and we should not – give in to despair, because the legacy of Nuremberg is that when we are called to confront the evil that walks this earth, we turn to the law.  When we need to mete out justice to those who have reaped the whirlwind and revel in the chaos resulting therefrom, we turn to the law.  And through the law we give voice to those shattered souls who seek redress, and we provide a reckoning to those who trade in fear and trembling.”

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with assistance from the American Society of International Law.

Editor: James G. Apple.
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