Today I'm going to share with you some important topics on international criminal law. Actually these lessons are taught by Michael Scharf, Interim Dean, Case Western Reserve University School of Law.
World War II and the atrocities of Nazi
are probably familiar to anybody who
knows anything about history.
But, to summarize basically during the
Nazi regime Adolf Hitler executed in
extermination camps, at least six million
Jews, three million others including Pols
and handicapped peoples and homosexuals.
He stripped these people of their
citizenship, and he committed all sorts
of atrocities.
So when the Allied countries got the
upper hand and were starting to close in
on Germany, a big debate arose between
the leaders.
At Potsdam, Winston Churchill suggested
to Franklin Delano Roosevelt and Joseph
Stalin that, the Allies ought to take the
captured Nazi leaders, and execute them
all.
Joseph Stalin, from the Soviet Union,
said, that's a great idea, Winston, and,
I have a list of 50,000 people who we'll
kill.
And what's interesting, is that, Franklin
Deleanor Roosevelt, didn't have a problem
with it, and the big debate, really, at
that time, was should there be a firing
squad, or hangings.
It wasn't until FDR passed away in April
of 1945 that the United States started to
surface the idea of instead of just
executing the captured Nazi's, why don't
we have an international trial to
prosecute them?
And the idea surfaced by the secretary of
war Henry Stimpson, who convinced Truman,
the new president of the United States,
that there were some real politic
reasons, for having trials, rather than
just executing the defeated enemies.
The first of these, was to try to create
a historic record that would withstand
the forces of revisionism.
Most people are probably aware of the
famous quote of Adolf Hitler who in 1939
on the eve of invading Poland, told his
German Generals who were squeamish about
what he was asking them to do, total
warfare, massive killing of civilians.
And he said, don't worry about it because
quote, who after all, today, remembers
the fate of the Armenians.
And what he was referring to is the fact
that in World War I, the Turks killed
millions of Armenians, and what many
think of as the world's first genocide.
And instead of prosecuting the leaders of
Turkey, after the war, they were given
amnesty in the Treaty of Lausanne.
So the question was, should we create a
precedent so that people are prosecuted
and have to stand trial for these heinous
atrocities, so that they can't say in the
future, who after all remembers the fate
of the German Jews?
Another reason that was based on real
politic considerations, was that the
allies had done some things that they too
were criticized about during the war.
One of these was famously the subject of
Kurt Vonnegut's book Slaughterhouse Five,
and that of course was the firebombing of
Dresdon.
The United States, the United Kingdom and
the other allies dropped so many bombs on
Dresden that they literally decimated the
entire city, which was a civilian
population center that had many historic
monuments.
Not only that, but there was criticism
about the United States' use of the
nuclear bombs.
We're the only country in the United
States, who have ever dropped atomic
bombs on Nagasaki and Hiroshima in Japan.
And with these criticisms in the
background the idea was, let's have a
trial so that we can show what the allies
were up against, which justified us
having to take these extraordinary
measures.
And then finally, there was the idea that
if you had a trial instead of having
punishing reparations against all of the
German people as that occurred in World
War I.
Something that many experts believe led
to the rise of Adolf Hitler and Nazism.
Instead of that, you could show that the
blame was on the leaders.
You would prosecute them and show their
guilt.
And you would create really a legal
fiction that everybody else was just
following orders.
There's actually a huge debate about
this.
historian from Harvard named Daniel
Goldhagen has a book called Hitler's
Willing Executioners in which he says
that, that legal fiction is not true at
all.
In fact everybody from the top down was
not coerced into committing atrocities
but voluntarily an eagerly joined in.
Then others say that Goldhagen doesn't
have it right, and it was only because
Hitler gave sanction and in some ways
coerced the population that these things
occurred.
But whatever the reason, the idea of
putting the blame just on the leaders was
something that caught hold.
And so the, four countries which were the
United States, the United Kingdom,
Russia, now joined by France who had been
recently freed, joined together and
created the first International War
Crimes Tribunal in history.
The Nuremberg tribunal.
And 17 other countries joined along and
signs the treaty that established the
Nuremberg Charter, and by 1945 the
Nuremberg trial was well under way.
In this picture behind me you see the
famous defendants, Herman Goering, and
the other Nazi leaders.
Adolf Hitler had committed suicide so he
wasn't there anymore.
And on the left side you see Robert
Jackson, who was the United States
Supreme Court Judge who had been picked
to be the chief prosecutor at Nuremberg.
Now, the Nuremburg trial also led to 12
other trials, of specialized groups.
There was the trial of the
Industrialists.
The trial of the German businessmen.
The trial of the doctors that had
committed atrocities.
And the most intersting of all these,
probably, was the trial of the German
judges.
That trial was made the subject of the
famous academy award winning movie,
Judgment at Nuremberg.
And in the next few minutes I'm going to
show some snippets from that movie.
Which really get the audience to focus in
on what the arguments were.
The story behind Judgement at Nuremberg
was that the German judges and
prosecutors had gone along with Hitler,
and had perverted the justice system and
turned it into a political weapon.
So in the first scene, we're going to
see, Colonel Lawson, played by Richard
Widmark is going to make the opening
statement, explaining why it was
important for the international community
to have a trial of these judges and
prosecutors.
Let's roll the clip.
>> The case is unusual.
In that the defendants are charged with
crimes committed in the name of the law.
These men, together with their deceased
or fugitive colleagues, are the
embodiment of what passed for justice
during the Third Reich.
The defendants served as judges during a
period of the Third Reich.
Therefore you, Your Honors, as judges on
the bench, will be sitting in judgement
of judges in the dock.
And this is as it should be.
For only a judge knows how much more a
court is than a courtroom.
It is a process and a spirit.
It is the house of law.
The defendants knew this too, they knew
courtrooms well.
They sat in their black robes and they
distorted, they perverted, they destroyed
justice and law in Germany.
[CROSSTALK] The prosecution.
>> Please watch the like.
The interpreter cannot follow you.
>> Sorry your honor.
They distorted, they perverted, they
destroyed justice and law in Germany.
Now this in itself is undoubtedly a great
crime.
But the prosecution is not calling the
defendants to account for violating
constitutional guarantees or withholding
due process of law.
The prosecution is calling into account
for murder, brutalities, torture,
atrocities!
They share with all the leaders of the
Third Riech responsibility for the most
malignant, the most calculated, the most
devestating crimes in the history of all
mankind.
And they are perhaps more guilty than
some of the others.
For they had attained maturity long
before Hitler's rise to power.
Their minds weren't warped at an early
age by Nazi teachings.
They embraced the ideologies of the Third
Reich as educated adults, when they, most
of all, should have valued justice.
But here they'll receive the justice they
denied others.
They'll be judged according to the
evidence presented in this courtroom.
The prosecution has nothing more.
>> Now.
His arguments seemed very compelling but
in the case as in real life there were
very able defense council appointed to
represent the German defendants.
In this case, Maxamillion Shell, who wins
an Academy Award for his performance of
defense council Herr Rolfe, explains to
the judges why this case is such an
important one, and that the facts need to
be established beyond reasonable doubt,
and the difficulty the prosecution will
have in making it's case.
Let's roll that clip.
>> [FOREIGN]
May it please the tribunal.
>> [FOREIGN] It is not only a great
honor.
>> [FOREIGN] But also, a great
challenge[CROSSTALK][FOREIGN] For an
advocate[FOREIGN] To aid this tribunal in
its task.
>> [FOREIGN] The entire civilized
world.
>> [CROSSTALK][FOREIGN] Will follow
closely what we do here.
>> [FOREIGN] For this is not an
ordinary trial,[FOREIGN] by any means of
the accepted parochial sense.
>> [FOREIGN] The avowed purpose of this
tribunal.
>> Is broader than the visiting of
retribution on a few men.
It is dedicated, to the reconsecration,
of the temple of justice.
It is dedicated to finding a code of
justice.
The whole world will be responsible to.
How will this code be established?
It will be established in a clear, honest
evaluation of the responsibility for the
crimes and the indictments stated by the
prosecution.
In the words of the great American
jurist, Oliver Wendell Holmes, this
responsibility will not be found only in
documents that no one contests or denies.
It will be found in considerations of a
political or social nature.
It will be found most of all in the
character of men.
What is the character of Ernst Janning?
Let us examine his life for a moment.
He was born in 1885, received the degree
of doctor of law in 1907, became a judge
in East Prussia in 1940.
Following World War I, he became one of
the leaders of the Weimar republic, and
was one of the framers of its democratic
constitution.
In subsequent years, he achieved
international fame not only for his work
as a great jurist, but also as the author
of legal text books which are still used
in universities all over the world.
He became Minister of Justice in Germany
in 1935.
If Ernst Janning is to be found guilty,
certain implications must arise.
A judge does not make the laws, he
carries out the laws of his country.
The statement, my country, right or
wrong, was expressed by a great American
patriot.
It is no less true for a German patriot.
Should Hans Janning have carried out the
laws of his country?
Or should he have refused to carry them
out, and become a traitor?
This is the crux of the issue at the
bottom of this trial.
The defense is as dedicated to finding
the responsibility as is the prosecution.
For it is not only Hans Janning, who's on
trial here, it's the German people.
>> Now, following these opening
statements, the prosecution gets to put
on its evidence and in the case of
Nuremberg most of the evidence was
documentary.
There's a famous saying that the Nazis
convicted themselves on the strength of
their own documents, and in this way
Nuremberg was actually an easier case to
try then some of the modern international
trials.
Let's see what Colonel Lawson does in
order to manufacture the case against
these German judges and prosecutors.
Let's roll the clip.
>> Your Honors, I offer in evidence a
decree signed by Adolph Hitler.
Directing that all persons accused or
suspected of disloyalty or resistance of
any sort might be arrested secretly with
no notice to friends or relatives without
any trial whatsoever and put into
concentration camps.
I also offer a group of orders issued
under that decree.
Each on signed by one of the defendants
by which hundreds of persons were
arrested and placed in concentration
camps.
Signed by Frederick Hachstedder, Vernor
Lampe, Emil Han, Ernst Jannig.
Your Honors, the defendants on trial here
today did not personally administer the
concentration camps.
They never had to beat victims or pull
the lever that released gas into the
chambers.
That as the documents we have introduced
into this case have shown, these
defendants fashioned and executed laws
and rendered judgments which sent
millions of victims to their
destinations.
Major Adniss.
>> Your honors, I would like to request
that Colonel Lawson be sworn in as a
witness.
>> Granted Thank you.
[NOISE]
>> Will you raise your right hand?
I swear by God the almighty and
omniscient, that I will speak the pure
truth and withhold and add nothing?
>> I do.
>> Were you active in the United States
Army, in 1945, at the close of the war?
>> Yes, I was.
>> Were you in command of troops
liberating concentration camps?
>> I was.
>> Were you in Dachau and Belsen?
>> Yes.
>> Were you present when the films we
are about to see were taken?
>> Yes, I was.
[SOUND]
Okay.
>> The map shows the number of and
location of concentration camps under the
Third Reich.
Buchenwald concentration camp was founded
in 1933.
Its inmates numbered about 80,000.
There was a motto at Buchenwald, break
the body.
Break the spirit.
Break the heart.
The ovens of Buchenwald, evidence of last
minute efforts to dispose of bodies.
The stoves were, manufactured by a well
known company, which also specialized in
baking ovens.
The name of the firm is clearly
inscribed.
And exhibit of biproducts, of Book and
Bomb.
Displayed for the local townspeople by an
allied officer.
Brushes of every description, shoes,
adults and children, spectacles, gold
from teeth melted down sent once a month
to the medical department of the Lossen S
S.
A lamp shade made from human skin.
Skin being used for paintings.
Many having an obscene nature.
The heads of two Polish laborers.
Shrunken to one fifth their normal size.
A human pelvis, used as an ashtray.
Children who'd been tattooed to mark them
for eventual extermination.
Sometimes mercy is shown to the children,
they were injected with morphine so
they'd be unconscious when hanged.
One of the doctors described how they'd
then place ropes around their necks and
in the doctor's own words, like pictures,
they were then hanged by hooks, on the
walls.
The bodies of those who'd come in
boxcars, without food and without air,
who hadn't survived the journey to
Dachau.
Hundreds of inmates were used as human
guinea pigs for atrocious medical
experiments.
A witness said, one of the executioners
at Dachau gave the following description.
Inmates were made to leave their clothing
on a rack.
They were told they were going to take
baths.
Then the doors were locked.
Tins of Zyklon B were released through
the specially constructed apertures.
You could hear the groaning and the
whimpering inside.
After two or three minutes, all was
quiet.
Death transports that had arrived
included 90,000 from Slovakia, 65,000
from Greece,11,000 from France, 90,000
from Holland, 400,000 from Hungary,
250,000 from Poland and upper Selesia,
and 100,000 from Germany.
And this is what was filmed when British
troops liberated Belsen concentration
camp.
For sanitary reasons British bulldozer
had to bury the bodies as quickly as
possible.
Who were the bodies?
Members of every occupied country of
Europe.
Two thirds of the Jews of Europe.
Exterminated.
More than 6 million, according to reports
from the Nazi's own figures.
>> Now following Colonel Lawson's
presentation of the evidence, Heir Rolf,
the defense council makes an impassioned
plea to the judges.
That this evidence was not appropriate as
applied to the judges.
Maybe it applied to Adolf Hitler but the
judges as you will see were not
responsible in his estimation, and he
tries to explain that if they are
responsible then we're all responsible.
Let's hear how that argument plays out,
let's roll the tape.
>> Yesterday the tribunal witnessed
some films that were shocking films,
devastating films.
As a German, I feel ashamed, that such
things could have taken place in my
country.
There can never be a justification for
them.
Not in generations.
Not in centuries.
But, I do think it was wrong, indecent
and terribly unfair of the prosecution to
show such films in this case, in this
court, at this time against these
defendants.
And I cannot protest too strongly against
such tactics.
What is the prosecution trying to prove?
Is it trying to prove that the German
people as a whole were responsible for
these events?
Or that they were even aware of them,
because if he is, he's not stating facts.
And he knows he's not.
The secrecy of the operations The
geographic location of the camps.
The breakdown of communications in the
last days of the war, when the
exterminations rose into the millions
show only too clearly that he is not
telling the truth.
The truth is that these brutalities were
brought about by the few extremists.
The criminals!
Very few German knew what was going on.
Very few!
None of us knew what was happening in the
places shown on these films.
None of us!
That the most ironic part of it is that
the prosecution showed these films
against these defendants, men who stayed
in power for one reason only, to prevent
worse things from happening.
Who's the braver man?
The man who escapes or resigns in times
of peril, or the man who stays on his
post at the risk of his own personal
safety?
The defense, will present witnesses and
letters and documents from religious and
political refugees all over the world
telling how Ernst Janning saved them from
execution.
The defense will show the many times
Ernst Janning was able to effect
mitigation of sentences, but without his
influence the results would have been
much worse.
The defense will show, that Ernst
Janning's personal physician was a non
Aryan.
A Jewish man, who he kept in attendance,
much to his own peril.
The defense presents affidavits from
legal authorities and famed jurors the
world over pleading that special
considerations must be made in this case,
saying that the entire work of Ernst
Janning was inspired by one motive and
one motive only, the endeavor to preserve
justice and the concept of justice.
Your honor.
It is my duty to defend Ernst Janning and
yet Ernst Janning has said he's guilty.
There's no doubt he feels his guilt.
He made a great error, in going along
with the Nazi movement, hoping it would
be good for his country.
But, if he is to be found guilty, there
are others, who also went along.
Who also must be found guilty.
Ernst Janning said we succeeded beyond
our wildest dreams.
Why, did we succeed Your Honor?
What about the rest of the world?
Did he not know the intentions of the
Third Reich?
Did he not hear the words of Hitler's
broadcast all over the world?
Did he not read his intentions in Mein
Kampf, published in every corner of the
world?
Where's the responsibility of the Soviet
Union?
Who signed in 1939 the pact with Hitler.
Enabled him to make war.
Are we now to find Russia guilty?
Where's the responsibility of the
Vatican, who signed in 1933 the concord
with Hitler, giving him his first
tremendous prestige.
Are we not to find the Vatican guilty?
Where is the responsibility of the world
leader, Winston Churchill, who said in an
open letter to the London Times in 1938,
1938!
Your honor, were England to suffer
national disaster, I should pray to god
to send a man of the strength of mind and
will of an adult Hitler.
Are we now to find Winston Churchill
guilty?
Where's the responsibility of those
American industrialists who helped Hitler
to rebuild his armaments, and profited by
that rebuilding?
Are we now to find find the American
industrialists guilty?
No, Your Honor.
No.
Germany alone is not guilty.
The whole world is as responsible for
Hitler's Germany.
It is an easy thing to condemn one man in
the dock.
It is easy to condemn the German people,
to speak of the basic flaw in the German
character that allowed Hitler to rise to
power.
The the same time comfortably, ignore the
basic flaw of character that made the
Russians sign pacts with him, Winston
Churchill praise him, American
industrialists profit by him.
Ernst Janning said he is guilty.
If he is Ernst Janning's guilt is the
world's guilt.
>> Now finally with all the evidence in
and the defense counsel having made an
excellent argument, it's time for the
judge to make its decision.
Here you'll see Spencer Tracy playing the
judge, explain to the defendant played by
Burt Lancaster why the evidence was
sufficient and why the precedent did
establish his guilt as a judge doing the
bidding of Adolf Hitler?
>> A trial conducted before this
tribunal began over eight months ago.
The record of evidence is more than
10,000 pages long.
And final arguments of counsel have been
concluded.
Simple murders and atrocities do not
constitute the gravimum of the charges in
this indictment, rather the charge is
that of conscious participation.
In a nation wide, government organized
system of cruelty and injustice, in
violation of every moral and legal
principle known to all civilized nations.
The tribunal has carefully studied the
record and found therein, abundant
evidence to support, beyond a reasonable
doubt, the charges against these
defendants.
[NOISE] Herr Rolf, this very skillful
defense has asserted that there are
others who must share the ultimate
responsibility for what happened here in
Germany, there is truth in this.
The real complaining party at the bar in
this courtroom is civilization, but the
tribunal does say the command the dock
are responsible for their actions.
Men, who sat in black robes, in judgement
on other men.
Men who took part in the enactment of
laws and decrees the purpose of which was
the extermination of human beings.
Men who in executive positions actively
participated in the enforcement of these
laws.
Illegal, even under German law.
The principle of criminal law in every
civilized society has this in common.
Any person who sways another to commit
murder, any person who furnishes the
lethal weapon for the purpose of the
crime, any person who is an accessory to
the crime, is guilty.
[NOISE] Herr Rolf, further asserts that
the defendant, Janning, was an
extraordinary jurist, and acted in what
he thought was the best interest of this
country.
There is truth in this also.
Janning, to be sure, is a tragic figure.
We believe he loathed the evil he did.
But compassion for the present torture of
his soul must not beget forgetfulness, of
the torture and the death of the
millions, of the government of which he
was a part.
Janning's record and his fate illuminate
the most shattering truth that has
emerged from this trial.
If he, and all of the other defendants,
had been degraded perverts.
If all of the leaders of the Third Reich
had been sadistic monsters and maniacs,
then these events would have no more
moral significance than an earthquake or
any other natural catastrophe.
But, this trial has shown that under a
national crisis, ordinary, even able and
extraordinary men can delude themselves
into the commission of crimes so vast and
heinous that they beggar the imagination.
No one who has sat through the trial can
ever forget them.
Men sterilized because of political
belief.
A mockery made of friendship and faith,
the murder of children.
How easily it can happen.
There are those in our own country, too,
who today, speak of the protection of
country, of survival.
A decision must be made in the life of
every nation at the very moment when the
grasp of the enemy is at its throat, then
it seems that the only way to survive is
to use the means of the enemy.
To rest survival upon what is expedient.
To look the other way.
Only, the answer to that is survival is
what?
The country isn't a rock.
It's not an extension of one's self.
It's what it stands for.
It's what it stands for when standing for
something is the most difficult.
Before the people of the world, let it
now be noted, that here in our decision
this is what we stand for.
Justice, truth, and the value of a single
human being.
The Marshall will produce before the
tribunal, the defendant Hahn.
Emil Hahn.
The Tribunal finds you guilty, and
sentences you to life in prison.
>> Today you sentence me, tomorrow the
Bolshevist sentence you!
>> [INAUDIBLE] .
>> The Marshall will produce the
defendant, Hofstadter, before the
Tribunal.
Friedrich Hofstetter, the tribunal finds
you guilty and sentences you to life
imprisonment.
The marshal will produce the defendant
Lampe before the tribunal.
Ferdinand Lampe, the tribunal finds you
guilty and sentences you to life
imprisonment.
The marshal will produce the defendant,
Ernst Janning before the tribunal.
Ernst Janning, the tribunal finds you
guilty and sentences you to life
imprisonment.
>> With those really ringing words,
let's now look at some of the criticisms
that were raised about having American
judges and judges from Russia, and
France, and the United Kingdom try the
German defendants for the crimes that
they were accused of.
The first of these criticisms was that
Nuremberg and the Control Council Law
number ten mini Nuremberg trials, like
the judges' trial, were basically
victor's justice.
And it is true that there were no Germans
or any countries who were allied with
Germans having anybody on the bench.
The bench was composed of just an
American judge.
A British judge, a Russian judge, and a
French judge.
And so, the concept then was how can this
be fair?
As we'll see in a few minutes, the
International Criminal Court solves that
problem by having many judges from all
over the world who are already appointed
before the atrocities in any given case
are arising.
Another of the criticisms, was that the
countries that prosecuted the Germans,
had unclean hands.
And as I mentioned earlier, they were
responsible for atrocities, like the
bombing of Dresden, like dropping the
atomic weapons on Hiroshima and Nagasaki.
That did show that they had done things
that were also of some guilt.
Now the answer to that has always been
that two wrongs don't make a right.
Even if the allies had committed some war
crimes, that doesn't mean that the Nazis
were not guilty of their war crimes, and
therefore, that the unclean hands
principle should not bar a prosecution of
the Nazis, whose crimes were much more
egregious.
And finally, and this is probably the
criticism that stung the worst, and that
is that Nuremberg was basically a
kangaroo court.
The problem with Nuremberg, well there
were several.
First of all, when they created the
Nuremberg charter, they had the four
prosecutors draft the charter, and then
those same four people drafted the
indictment, and then two of those people
who were prosecutors got promotions.
The Russian prosecutor became the Russian
judge.
The French prosecutor became the
alternative Judge, to the French judge.
And so you had a mix of roles where the
prosecutor also gets to play the judge,
that was very questionable.
Not only that, but the rules of procedure
were a scant four pages, compared to the
hundreds pages of detailed rules of due
process that the modern international
tribunals have.
There was also no Court of Appeal.
What the judges decided was the final
verdict.
And there was a clause in the Nuremberg
Charter that said that the defendants
were not allowed to claim that the judges
had any bias, and try to have them
removed, for any reason whatsoever.
And finally the evidence that came in was
not always evidence that would be allowed
in courts of many of the same countries
that were prosecuting these defendants
there were hundreds of thousands of
unsigned affidavits that were allowed
into evidence.
So Nuremberg had its moment of criticism
afterwards.
But at the same time Nuremberg created a
huge legacy.
It was a turning point for international
law.
As I mentioned earlier, before Nuremberg
there was no prosecutions of anybody for
things that they did in their own
country.
International law only dealt with the
relations between states and the
responsibility of states.
Nuremberg for the first time, said an
individual, who commits war crimes or
crimes against humanity or the crime of
waging an aggressive war, could be held
individually criminally responsible.
They could be prosecuted in any country
around the world, under what's known as
universal jurisdiction or they could be
prosecuted by an international tribunal.
Not only that, but the fact that domestic
law did not impose a penalty or did not
say something was a crime, was not a
defense.
The individuals at Nuremberg all said,
well we were just applying the law.
The judges as you heard, said a judge
doesn't make the law, he just implements
it.
That was held at Nuremberg not to be a
defense.
Also, the fact that you were a Head of
State could not exculpate you from
individual criminal responsibility, an
important precedent that was applied to
Herman Goring who was the last Head of
State of Nazi Germany.
And also has been applied more recently
to leaders like Charles Taylor and others
who were Head's of State at the time they
committed their atrocities.
And finally, and maybe most importantly,
is the fact that the obedience to orders
was not allowed as a defense.
You can't get away with international
crimes by saying I was ordered to do it,
I was only following orders.
Now, let's apply, these principles that
came out of Nuremberg, to a modern day
controversy.
This is a slide of the White House
torture memos.
And, the torture memos, if you're
familiar with them, basically were
written by a cabal of lawyers, John Yu,
Gonzalez, Addington, and Haynes.
Who classified these so top secret, that
they cut out all the other lawyers from
the government from having anything to
say about these memos.
So, the state department legal adviser
was cut out, the lawyers in charge of
each of the branches of the military were
cut out.
And they said in these memos, that it was
okay during a war on terror, to do things
like water boarding to get information
during interrogations.
Water boarding is essentially simulated
drowning and they water boarded some of
the people up to 180 times.
Not that they ever got any great evidence
from it, and this clearly was a memo that
told lower level people that it was legal
to commit atrocities.
So the question is, do these lawyers have
the same kind of responsibility that the
lawyers were held to have in the movie
Judgement at Nuremberg based on the real
life judgement trial?
The Alstadter case before the Nuremberg
tribunal.
And there are those who debate this back
and forth.
But many people do believe that that
Nuremberg precedent does apply here.
And several countries have actually
issued indictments under universal
jurisdiction for the authors of the White
House torture memos.
Now, after Nuremberg, the idea was
there'd be a permanent international
tribunal created.
But the Cold War descended, and the years
after Nuremberg became a golden age of
impunity.
First you had Joseph Stalin.
The leader of the Soviet Union, who
killed about 20 million people in his
purges.
These were political opponents of his
regime.
No one lifted a finger.
No one screamed a word, internationally,
that he should be held responsible under
Nuremberg precedent.
In fact, when a couple of years after
Nuremberg, in 1948, they negotiated the
genocide convention making genocide a
crime.
Joseph Stalin, and his delegation put in
a clause that said genocide does not
apply when a leader kills political
opponents.
It only applies when you kill opponents
who are from a different nationality,
race, or religion and the reason he did
this is because he did not want to be
subject to this international crime of
genocide which grew out of the Nuremberg
precedent.
And the rest of the world during the Cold
War wanted the Soviet Union and the other
half of the world that supported the
Soviet Union to join in this treaty.
And so they deferred to that, and
genocide doesn't apply to this day to
crimes against political opponents.
Well then you had, of course, the pole
pot regime and the famous killing fields
where about a million Cambodians were
killed and nobody did a thing.
Then you had Idi Amin, in Uganda who
killed about half of his population and
again, nobody lifted a finger.
And more recently, in the late 1980s, the
leader of Iraq, Saddam Hussein killed
millions of Kurds in the northern part of
his country using chemical weapons and at
the time nobody did a thing.
It was a sorry time for international
law.
In fact the high commissioner for human
rights said that a person stood a better
chance for being prosecuted for killing
one or ten people, then for killing
100,000 or a million.
And it was true.
But those days ended in 1993, when
genocide returned to Europe for the first
time since World War II.
And the international community dusted
off the old Nuremberg charter, and they
created the first international tribunal,
since Nuremberg, the Yugoslavia Tribunal.
A year later, there were atrocities in
Rwanda, where the Hutu killed 800,000
Tutsis.
And there, the international tribunal for
Yugoslavia's statute was then applied to
Rwanda.
A couple of years later, there were
atrocities in Sierra Leon, and again the
international community created a new
tribunal in 2002 to deal with those.
A tribunal that ultimately convicted the
leader of neighboring Liberia, Charles
Taylor.
And finally, Those atrocities in Cambodia
caught up with the surviving members of
the Khmer Rouge, and in 2006 an
international tribunal was launched to
prosecute them as well.
With all of these tribunals being created
there was a new era, an era of
accountability, and in the midst of that
the world decided to negotiate a
permanent International Criminal Court.
Thinking that the ad-hoc approach was too
costly, too time consuming and too
politically difficult.
They decided that they should have a
permanent court that would sit in the
Hague and be responsible for all the
atrocities.
Now the negotiations were successful and
the International Criminal Court emerged
as a new institution.
And here is a photo of what that
institution looks like.
The International Criminal Court however
was the subject of negotiations and
compromises.
Ultimately, they decided that the only
crimes within its jurisdiction to begin
with would be war crimes, crimes against
humanity, and genocide.
They left out the crime of aggression.
Now ten years later they decided that
they may add the crime of aggression but
there are several hoops that might have
to still be overcome.
Note, however that other crimes like
terrorism are not included, piracy are
not included within this new court's
jurisdiction.
The court's jurisdiction is not over
everybody.
It requires either one, that the country
where the atrocities occurred has
ratified the ICC statute, or two, that
the country whose national's perpetrated
the atrocities was a party to the ICC
Statue.
Or third, if there is a country that
commits atrocities that is not a party
and its nationals are not a party, the
security council can refer the case by
adopting a Chapter Seven resolution which
requires the consent of the permanent
five members of the Security Council.
Something that is extremely difficult,
but not impossible to achieve.
Now, another compromise that's built into
the new ICC statute is that the ICC is a
court of last resort.
It can only exercise jurisdiction if the
domestic courts, where the perpetrator
was found, are either unable, or
unwilling to do so, and they call this
the complementarity principle.
The countries that ended up signing the
ICC statute and ratifying it were many.
The signatories are those that are in
yellow or light orange on this map and
the parties, those that have ratified it,
are in red.
And the countries that are in blue have
not yet signed or ratified it.
But ultimately, there are 122 countries
that are party to this new permanent
International Criminal Court.
Note however, that the United States and
Russia have signed but not yet ratified
the ICC statute, and China has done
neither and other countries in the Middle
East and in Asia have also decided to
stay outside.
Now, one of the first and most important
actions of this International Criminal
Court to show its power and its role as a
institution of real politic in the modern
international system, was the indictment
Of Muammar Gadhafi of Libya.
Libya was not a party to the ICC
statutes, so this was a case where the
security council voted to refer the case
of Libya to the court.
After Gadhafi was indicted, this gave the
allied governments the political cover to
launch airstrikes for humanitarian
reasons, and ultimately the coalition
airstrikes were successful Gadhafi's
regime fell.
Gadhafi ended up, dying.
His son is now standing trial in Libya
and the International Criminal Court has
several indictments for leaders of that
regime.
Now others however have escaped justice,
not withstanding the ICC's attempts to
bring them to the Hague.
One of the most important of these is
Joseph Kony, the leader of the Lord's
Resistance Army that has been plaguing
Uganda and has kidnapped and captured
over 60,000 children over the last 20
years, turning them into child soldiers
and bush wives.
You also have al-Bashir, the president of
the Sudan who has been indicted by the
International Criminal Court for the
crime of genocide for what has happened
in the Sudan, and in particular, in
Darfur.
And he still alludes capture.
In fact, he goes visiting different
countries from time to time and so far
they have not lifted a finger to bring
him to justice.
And in the Congo they have other leaders
who continue to stay away from justice.
like Bosco Ntaganda who you see in this
photo.
Now, thinking about the International
Criminal Court brings us to the question
of whether, for those countries like the
United States, China and Russia who have
not yet ratified it, it would be in their
interest to do so.
The reason it might, be would include
that ratification of the statute would
support the concept of peace through
justice.
It would be an important symbolic
gesture.
And it would close the noose on the
individuals who commit atrocities so that
people can't say what Adolph Hitler did.
Who, after all, remembers the fate of the
Armenians, or the Jews, or the Bosnians.
Or the Tutsis in Uganda, or the
Cambodians, or the Ugandans.
the Tutsis, I think I meant in Rwanda.
So this would be an important symbolic
gesture.
Another reason that might fall again into
the avenue of real politic, and this is a
theme you'll see throughout this course.
International criminal law is related to
politics.
Governments don't do things that they
don't think are in their interest.
And ultimately the challenge for the
lawyers in the international community is
to convince the governments that
international justice is in their
interest.
Well one of the ways to do that, is to
tell those countries that if you are
afraid that the international tribunal
will come after you or go after your
allies, wouldn't it be better for you to
be an influential insider than a hostile
outsider?
In the early days of the International
Criminal Court, the United States under
the Bush administration literally
declared a kind of war against the
International Criminal Court.
Passing a law called the Hague Invasion
Act, according to other countries, or the
American Service Members Protection Act,
according to its drafters, including
Jesse Helms.
That law said that any country that
ratified the ICC statute would lose all
financial aid from the United States.
And unfortunately, like the old Christmas
time story by Doctor Seuss, the Grinch
that Stole Christmas, the United States
in its effort to try to keep countries
from ratifying the ICC failed miserably.
The ICC was ratified by more and more
countries, now 122, which is a majority
of the countries in the world.
The United States couldn't keep the ICC
from coming, but what it did was it hurt
the United States efforts in countries
like Latin America where financial aid
went to drug interdiction and was cut off
because one by one the Latin American
countries ratified the ICC statute.
Leading unexpectedly to a huge influx of
drugs back into the United States.
So, the consequences of being a hostile
outsider were not good for the United
States.
And for those countries that have joined
the ICC, they have found that being an
influential insider is a way to protect
their interest.
Now what about the comp, the cons, the
negative aspects.
I've told you about complementarity.
This is the concept that the ICC is a
court of last resort.
That it can only take a case when the
country is either unwilling or unable to
do so itself.
But that only works, when a country is
prosecuting low level defendants, because
most countries will prosecute, the
Lieutenant Callys, a person who, you will
hear later in this course, committed
atrocities in Vietnam.
at Myly and the United States did
prosecute him, and other low level people
do get prosecuted for the atrocities they
commit be they an Abu Grabe, or in
Guantanamo Bay.
But the leaders do not get prosecuted for
their official policies and that's where
the ICC's complimentarity principle hits
a road block for the United States and
Russia and China, who are very concerned
that their high level policies could be
indicted by an international criminal
court.
This could very damaging to their foreign
policy and I'll tell you a story that
indicates that.
In 1999, as some of you will recall, the
NATO countries had launched airstrikes
against Serbia in order to stop the Serbs
from ethnically cleansing the province of
Kosovo.
These airstrikes were not authorized by
the UN Security Counsel and therefore
they were very controversial.
And yet NATO supported them.
Then the air strikes stated to go astray.
They would hit things like the Chinese
embassy or convoys of civilians.
Or places like bridges and historic
buildings that should not have been
targets.
And the support for these air strikes
started to diminish.
As this moment, in the middle of this,
what ultimately was an 87 day bombing
campaign, there were two notifications
that ended up on the desk of the
Yugoslavia Tribunal.
The prosecutor's name was Louis Arbour,
she was from Canada.
One of those communications was from the
school where she had been a law
professor, Osgood Hall.
And it was a legal document that said
that the IC, that the Yugoslavia
tribunal, which is a precursor to the
ICC, should be indicting the leaders of
NATO for the airstrikes.
And she was considering this.
At the same time, David Scheffer, who was
ambassador-at-large for war crimes
issues, sent his deputy, Michael Newton,
to meet with Louise Arbour.
And he have her a giant box of documents
and intercepts and other information that
showed that Slobodan Milosevic was
responsible and should be indicted for
the atrocities against the Kosovar
Albanians.
Now the prosecutor is sitting there with
these two groups of documents, and she
has to make a decision.
Had she decided to indict NATO that could
have been the end of the bombing campaign
and the end of NATO as an allied group
forever.
It would have had huge political
consequences.
She ended up inditing Milosevic, and
Milosevic realized that he couldn't
withstand the new political pressure, the
new clout that the allies had gained
through this prosecution indictment, and
therefore he sued for peace, and he
agreed to a deal that ended up leading
toward ultimately the autonomy of Kosovo.
This shows that just an indictment, not
even bringing someone to custody, just
indicting them can have a huge effect on
foreign policy, including the foreign
policy of America, its allies, or Russia
and China as well.
And finally, there are questions in many
people's mind about whether the ICC
Statute is fair, compared to domestic
prosecutions.
And we have to indicate that the ICC has
differences from domestic prosecutions.
In the United States we have a jury.
In the ICC, you just get a panel of three
judges and you appeal to a panel of five
judges.
In the United States, you can't have
hearsay used against you.
That's out of court statements that are
not subject to cross examination and the
ICC hearsay and other loose evidentiary
standards are applied.
And therefore, the international
tribunals allow much evidence to come in
that would have been excluded in domestic
situations.
So, some of these countries say, well
that's just not fair for an American or
someone from another country, to be sent
to the International Criminal Court.
And that's why the United States or other
countries should not ratify its statute.
But to these, the supporters of the ICC
say, well you know what, you were willing
to extradite your nationals to other
countries where they don't have juries,
where they allow hearsay evidence to come
in, so why wouldn't you extradite your
nationals to an ICC, where they have
those kinds of rules?
And also they remind the big countries
that under complementarity, if you
prosecute your own people, if you do your
own thing, even if you just have an
investigation that's in good faith, and
you decide not to prosecute, that's
enough under complementarity, to keep the
ICC from intervening.
Well this debate about the pros and cons
of the ICC, is likely to go on for, many
years, in the United States, in Russia,
in China, and in other countries.
But meanwhile, more an more countries
have begun to ratify the ICC statute.
And the ICC has grown into an
institution, that has become, very
effective at indicting individuals, at
getting custody of individuals, and of
showing that International Criminal Law
is not just something that is to talk
about.
That it's not just a myth.
That it is something that is real.
Often people say, oh is international law
real law?
Well if you ask that question to a leader
who has stood trial before.
The Yugoslavia tribunal, the Rwanda
tribunal, the special court for Sierra
Leon, the Cambodia tribunal or the new
International Criminal Court, they'll
tell you it's real law.
And in the end the idea of International
Criminal Law is to bring peace through
justice.
To tell the world that these kinds of
crimes are unlawful.
And that if you support a leader who
commits these crimes, the leader can be
held responsible.
And so can you.
So with that we conclude our
introduction to International Criminal
Law.
In our next session we're going to be
talking about the really interesting
question of the tension between trading
justice in order to achieve peace and
whether international law allows those
kinds of justice for peace deals to be
made, and whether they are good policy.
Until next time, I'll look forward to
seeing you online and hearing what you
have to say about these issues.
World War II and the atrocities of Nazi
are probably familiar to anybody who
knows anything about history.
But, to summarize basically during the
Nazi regime Adolf Hitler executed in
extermination camps, at least six million
Jews, three million others including Pols
and handicapped peoples and homosexuals.
He stripped these people of their
citizenship, and he committed all sorts
of atrocities.
So when the Allied countries got the
upper hand and were starting to close in
on Germany, a big debate arose between
the leaders.
At Potsdam, Winston Churchill suggested
to Franklin Delano Roosevelt and Joseph
Stalin that, the Allies ought to take the
captured Nazi leaders, and execute them
all.
Joseph Stalin, from the Soviet Union,
said, that's a great idea, Winston, and,
I have a list of 50,000 people who we'll
kill.
And what's interesting, is that, Franklin
Deleanor Roosevelt, didn't have a problem
with it, and the big debate, really, at
that time, was should there be a firing
squad, or hangings.
It wasn't until FDR passed away in April
of 1945 that the United States started to
surface the idea of instead of just
executing the captured Nazi's, why don't
we have an international trial to
prosecute them?
And the idea surfaced by the secretary of
war Henry Stimpson, who convinced Truman,
the new president of the United States,
that there were some real politic
reasons, for having trials, rather than
just executing the defeated enemies.
The first of these, was to try to create
a historic record that would withstand
the forces of revisionism.
Most people are probably aware of the
famous quote of Adolf Hitler who in 1939
on the eve of invading Poland, told his
German Generals who were squeamish about
what he was asking them to do, total
warfare, massive killing of civilians.
And he said, don't worry about it because
quote, who after all, today, remembers
the fate of the Armenians.
And what he was referring to is the fact
that in World War I, the Turks killed
millions of Armenians, and what many
think of as the world's first genocide.
And instead of prosecuting the leaders of
Turkey, after the war, they were given
amnesty in the Treaty of Lausanne.
So the question was, should we create a
precedent so that people are prosecuted
and have to stand trial for these heinous
atrocities, so that they can't say in the
future, who after all remembers the fate
of the German Jews?
Another reason that was based on real
politic considerations, was that the
allies had done some things that they too
were criticized about during the war.
One of these was famously the subject of
Kurt Vonnegut's book Slaughterhouse Five,
and that of course was the firebombing of
Dresdon.
The United States, the United Kingdom and
the other allies dropped so many bombs on
Dresden that they literally decimated the
entire city, which was a civilian
population center that had many historic
monuments.
Not only that, but there was criticism
about the United States' use of the
nuclear bombs.
We're the only country in the United
States, who have ever dropped atomic
bombs on Nagasaki and Hiroshima in Japan.
And with these criticisms in the
background the idea was, let's have a
trial so that we can show what the allies
were up against, which justified us
having to take these extraordinary
measures.
And then finally, there was the idea that
if you had a trial instead of having
punishing reparations against all of the
German people as that occurred in World
War I.
Something that many experts believe led
to the rise of Adolf Hitler and Nazism.
Instead of that, you could show that the
blame was on the leaders.
You would prosecute them and show their
guilt.
And you would create really a legal
fiction that everybody else was just
following orders.
There's actually a huge debate about
this.
historian from Harvard named Daniel
Goldhagen has a book called Hitler's
Willing Executioners in which he says
that, that legal fiction is not true at
all.
In fact everybody from the top down was
not coerced into committing atrocities
but voluntarily an eagerly joined in.
Then others say that Goldhagen doesn't
have it right, and it was only because
Hitler gave sanction and in some ways
coerced the population that these things
occurred.
But whatever the reason, the idea of
putting the blame just on the leaders was
something that caught hold.
And so the, four countries which were the
United States, the United Kingdom,
Russia, now joined by France who had been
recently freed, joined together and
created the first International War
Crimes Tribunal in history.
The Nuremberg tribunal.
And 17 other countries joined along and
signs the treaty that established the
Nuremberg Charter, and by 1945 the
Nuremberg trial was well under way.
In this picture behind me you see the
famous defendants, Herman Goering, and
the other Nazi leaders.
Adolf Hitler had committed suicide so he
wasn't there anymore.
And on the left side you see Robert
Jackson, who was the United States
Supreme Court Judge who had been picked
to be the chief prosecutor at Nuremberg.
Now, the Nuremburg trial also led to 12
other trials, of specialized groups.
There was the trial of the
Industrialists.
The trial of the German businessmen.
The trial of the doctors that had
committed atrocities.
And the most intersting of all these,
probably, was the trial of the German
judges.
That trial was made the subject of the
famous academy award winning movie,
Judgment at Nuremberg.
And in the next few minutes I'm going to
show some snippets from that movie.
Which really get the audience to focus in
on what the arguments were.
The story behind Judgement at Nuremberg
was that the German judges and
prosecutors had gone along with Hitler,
and had perverted the justice system and
turned it into a political weapon.
So in the first scene, we're going to
see, Colonel Lawson, played by Richard
Widmark is going to make the opening
statement, explaining why it was
important for the international community
to have a trial of these judges and
prosecutors.
Let's roll the clip.
>> The case is unusual.
In that the defendants are charged with
crimes committed in the name of the law.
These men, together with their deceased
or fugitive colleagues, are the
embodiment of what passed for justice
during the Third Reich.
The defendants served as judges during a
period of the Third Reich.
Therefore you, Your Honors, as judges on
the bench, will be sitting in judgement
of judges in the dock.
And this is as it should be.
For only a judge knows how much more a
court is than a courtroom.
It is a process and a spirit.
It is the house of law.
The defendants knew this too, they knew
courtrooms well.
They sat in their black robes and they
distorted, they perverted, they destroyed
justice and law in Germany.
[CROSSTALK] The prosecution.
>> Please watch the like.
The interpreter cannot follow you.
>> Sorry your honor.
They distorted, they perverted, they
destroyed justice and law in Germany.
Now this in itself is undoubtedly a great
crime.
But the prosecution is not calling the
defendants to account for violating
constitutional guarantees or withholding
due process of law.
The prosecution is calling into account
for murder, brutalities, torture,
atrocities!
They share with all the leaders of the
Third Riech responsibility for the most
malignant, the most calculated, the most
devestating crimes in the history of all
mankind.
And they are perhaps more guilty than
some of the others.
For they had attained maturity long
before Hitler's rise to power.
Their minds weren't warped at an early
age by Nazi teachings.
They embraced the ideologies of the Third
Reich as educated adults, when they, most
of all, should have valued justice.
But here they'll receive the justice they
denied others.
They'll be judged according to the
evidence presented in this courtroom.
The prosecution has nothing more.
>> Now.
His arguments seemed very compelling but
in the case as in real life there were
very able defense council appointed to
represent the German defendants.
In this case, Maxamillion Shell, who wins
an Academy Award for his performance of
defense council Herr Rolfe, explains to
the judges why this case is such an
important one, and that the facts need to
be established beyond reasonable doubt,
and the difficulty the prosecution will
have in making it's case.
Let's roll that clip.
>> [FOREIGN]
May it please the tribunal.
>> [FOREIGN] It is not only a great
honor.
>> [FOREIGN] But also, a great
challenge[CROSSTALK][FOREIGN] For an
advocate[FOREIGN] To aid this tribunal in
its task.
>> [FOREIGN] The entire civilized
world.
>> [CROSSTALK][FOREIGN] Will follow
closely what we do here.
>> [FOREIGN] For this is not an
ordinary trial,[FOREIGN] by any means of
the accepted parochial sense.
>> [FOREIGN] The avowed purpose of this
tribunal.
>> Is broader than the visiting of
retribution on a few men.
It is dedicated, to the reconsecration,
of the temple of justice.
It is dedicated to finding a code of
justice.
The whole world will be responsible to.
How will this code be established?
It will be established in a clear, honest
evaluation of the responsibility for the
crimes and the indictments stated by the
prosecution.
In the words of the great American
jurist, Oliver Wendell Holmes, this
responsibility will not be found only in
documents that no one contests or denies.
It will be found in considerations of a
political or social nature.
It will be found most of all in the
character of men.
What is the character of Ernst Janning?
Let us examine his life for a moment.
He was born in 1885, received the degree
of doctor of law in 1907, became a judge
in East Prussia in 1940.
Following World War I, he became one of
the leaders of the Weimar republic, and
was one of the framers of its democratic
constitution.
In subsequent years, he achieved
international fame not only for his work
as a great jurist, but also as the author
of legal text books which are still used
in universities all over the world.
He became Minister of Justice in Germany
in 1935.
If Ernst Janning is to be found guilty,
certain implications must arise.
A judge does not make the laws, he
carries out the laws of his country.
The statement, my country, right or
wrong, was expressed by a great American
patriot.
It is no less true for a German patriot.
Should Hans Janning have carried out the
laws of his country?
Or should he have refused to carry them
out, and become a traitor?
This is the crux of the issue at the
bottom of this trial.
The defense is as dedicated to finding
the responsibility as is the prosecution.
For it is not only Hans Janning, who's on
trial here, it's the German people.
>> Now, following these opening
statements, the prosecution gets to put
on its evidence and in the case of
Nuremberg most of the evidence was
documentary.
There's a famous saying that the Nazis
convicted themselves on the strength of
their own documents, and in this way
Nuremberg was actually an easier case to
try then some of the modern international
trials.
Let's see what Colonel Lawson does in
order to manufacture the case against
these German judges and prosecutors.
Let's roll the clip.
>> Your Honors, I offer in evidence a
decree signed by Adolph Hitler.
Directing that all persons accused or
suspected of disloyalty or resistance of
any sort might be arrested secretly with
no notice to friends or relatives without
any trial whatsoever and put into
concentration camps.
I also offer a group of orders issued
under that decree.
Each on signed by one of the defendants
by which hundreds of persons were
arrested and placed in concentration
camps.
Signed by Frederick Hachstedder, Vernor
Lampe, Emil Han, Ernst Jannig.
Your Honors, the defendants on trial here
today did not personally administer the
concentration camps.
They never had to beat victims or pull
the lever that released gas into the
chambers.
That as the documents we have introduced
into this case have shown, these
defendants fashioned and executed laws
and rendered judgments which sent
millions of victims to their
destinations.
Major Adniss.
>> Your honors, I would like to request
that Colonel Lawson be sworn in as a
witness.
>> Granted Thank you.
[NOISE]
>> Will you raise your right hand?
I swear by God the almighty and
omniscient, that I will speak the pure
truth and withhold and add nothing?
>> I do.
>> Were you active in the United States
Army, in 1945, at the close of the war?
>> Yes, I was.
>> Were you in command of troops
liberating concentration camps?
>> I was.
>> Were you in Dachau and Belsen?
>> Yes.
>> Were you present when the films we
are about to see were taken?
>> Yes, I was.
[SOUND]
Okay.
>> The map shows the number of and
location of concentration camps under the
Third Reich.
Buchenwald concentration camp was founded
in 1933.
Its inmates numbered about 80,000.
There was a motto at Buchenwald, break
the body.
Break the spirit.
Break the heart.
The ovens of Buchenwald, evidence of last
minute efforts to dispose of bodies.
The stoves were, manufactured by a well
known company, which also specialized in
baking ovens.
The name of the firm is clearly
inscribed.
And exhibit of biproducts, of Book and
Bomb.
Displayed for the local townspeople by an
allied officer.
Brushes of every description, shoes,
adults and children, spectacles, gold
from teeth melted down sent once a month
to the medical department of the Lossen S
S.
A lamp shade made from human skin.
Skin being used for paintings.
Many having an obscene nature.
The heads of two Polish laborers.
Shrunken to one fifth their normal size.
A human pelvis, used as an ashtray.
Children who'd been tattooed to mark them
for eventual extermination.
Sometimes mercy is shown to the children,
they were injected with morphine so
they'd be unconscious when hanged.
One of the doctors described how they'd
then place ropes around their necks and
in the doctor's own words, like pictures,
they were then hanged by hooks, on the
walls.
The bodies of those who'd come in
boxcars, without food and without air,
who hadn't survived the journey to
Dachau.
Hundreds of inmates were used as human
guinea pigs for atrocious medical
experiments.
A witness said, one of the executioners
at Dachau gave the following description.
Inmates were made to leave their clothing
on a rack.
They were told they were going to take
baths.
Then the doors were locked.
Tins of Zyklon B were released through
the specially constructed apertures.
You could hear the groaning and the
whimpering inside.
After two or three minutes, all was
quiet.
Death transports that had arrived
included 90,000 from Slovakia, 65,000
from Greece,11,000 from France, 90,000
from Holland, 400,000 from Hungary,
250,000 from Poland and upper Selesia,
and 100,000 from Germany.
And this is what was filmed when British
troops liberated Belsen concentration
camp.
For sanitary reasons British bulldozer
had to bury the bodies as quickly as
possible.
Who were the bodies?
Members of every occupied country of
Europe.
Two thirds of the Jews of Europe.
Exterminated.
More than 6 million, according to reports
from the Nazi's own figures.
>> Now following Colonel Lawson's
presentation of the evidence, Heir Rolf,
the defense council makes an impassioned
plea to the judges.
That this evidence was not appropriate as
applied to the judges.
Maybe it applied to Adolf Hitler but the
judges as you will see were not
responsible in his estimation, and he
tries to explain that if they are
responsible then we're all responsible.
Let's hear how that argument plays out,
let's roll the tape.
>> Yesterday the tribunal witnessed
some films that were shocking films,
devastating films.
As a German, I feel ashamed, that such
things could have taken place in my
country.
There can never be a justification for
them.
Not in generations.
Not in centuries.
But, I do think it was wrong, indecent
and terribly unfair of the prosecution to
show such films in this case, in this
court, at this time against these
defendants.
And I cannot protest too strongly against
such tactics.
What is the prosecution trying to prove?
Is it trying to prove that the German
people as a whole were responsible for
these events?
Or that they were even aware of them,
because if he is, he's not stating facts.
And he knows he's not.
The secrecy of the operations The
geographic location of the camps.
The breakdown of communications in the
last days of the war, when the
exterminations rose into the millions
show only too clearly that he is not
telling the truth.
The truth is that these brutalities were
brought about by the few extremists.
The criminals!
Very few German knew what was going on.
Very few!
None of us knew what was happening in the
places shown on these films.
None of us!
That the most ironic part of it is that
the prosecution showed these films
against these defendants, men who stayed
in power for one reason only, to prevent
worse things from happening.
Who's the braver man?
The man who escapes or resigns in times
of peril, or the man who stays on his
post at the risk of his own personal
safety?
The defense, will present witnesses and
letters and documents from religious and
political refugees all over the world
telling how Ernst Janning saved them from
execution.
The defense will show the many times
Ernst Janning was able to effect
mitigation of sentences, but without his
influence the results would have been
much worse.
The defense will show, that Ernst
Janning's personal physician was a non
Aryan.
A Jewish man, who he kept in attendance,
much to his own peril.
The defense presents affidavits from
legal authorities and famed jurors the
world over pleading that special
considerations must be made in this case,
saying that the entire work of Ernst
Janning was inspired by one motive and
one motive only, the endeavor to preserve
justice and the concept of justice.
Your honor.
It is my duty to defend Ernst Janning and
yet Ernst Janning has said he's guilty.
There's no doubt he feels his guilt.
He made a great error, in going along
with the Nazi movement, hoping it would
be good for his country.
But, if he is to be found guilty, there
are others, who also went along.
Who also must be found guilty.
Ernst Janning said we succeeded beyond
our wildest dreams.
Why, did we succeed Your Honor?
What about the rest of the world?
Did he not know the intentions of the
Third Reich?
Did he not hear the words of Hitler's
broadcast all over the world?
Did he not read his intentions in Mein
Kampf, published in every corner of the
world?
Where's the responsibility of the Soviet
Union?
Who signed in 1939 the pact with Hitler.
Enabled him to make war.
Are we now to find Russia guilty?
Where's the responsibility of the
Vatican, who signed in 1933 the concord
with Hitler, giving him his first
tremendous prestige.
Are we not to find the Vatican guilty?
Where is the responsibility of the world
leader, Winston Churchill, who said in an
open letter to the London Times in 1938,
1938!
Your honor, were England to suffer
national disaster, I should pray to god
to send a man of the strength of mind and
will of an adult Hitler.
Are we now to find Winston Churchill
guilty?
Where's the responsibility of those
American industrialists who helped Hitler
to rebuild his armaments, and profited by
that rebuilding?
Are we now to find find the American
industrialists guilty?
No, Your Honor.
No.
Germany alone is not guilty.
The whole world is as responsible for
Hitler's Germany.
It is an easy thing to condemn one man in
the dock.
It is easy to condemn the German people,
to speak of the basic flaw in the German
character that allowed Hitler to rise to
power.
The the same time comfortably, ignore the
basic flaw of character that made the
Russians sign pacts with him, Winston
Churchill praise him, American
industrialists profit by him.
Ernst Janning said he is guilty.
If he is Ernst Janning's guilt is the
world's guilt.
>> Now finally with all the evidence in
and the defense counsel having made an
excellent argument, it's time for the
judge to make its decision.
Here you'll see Spencer Tracy playing the
judge, explain to the defendant played by
Burt Lancaster why the evidence was
sufficient and why the precedent did
establish his guilt as a judge doing the
bidding of Adolf Hitler?
>> A trial conducted before this
tribunal began over eight months ago.
The record of evidence is more than
10,000 pages long.
And final arguments of counsel have been
concluded.
Simple murders and atrocities do not
constitute the gravimum of the charges in
this indictment, rather the charge is
that of conscious participation.
In a nation wide, government organized
system of cruelty and injustice, in
violation of every moral and legal
principle known to all civilized nations.
The tribunal has carefully studied the
record and found therein, abundant
evidence to support, beyond a reasonable
doubt, the charges against these
defendants.
[NOISE] Herr Rolf, this very skillful
defense has asserted that there are
others who must share the ultimate
responsibility for what happened here in
Germany, there is truth in this.
The real complaining party at the bar in
this courtroom is civilization, but the
tribunal does say the command the dock
are responsible for their actions.
Men, who sat in black robes, in judgement
on other men.
Men who took part in the enactment of
laws and decrees the purpose of which was
the extermination of human beings.
Men who in executive positions actively
participated in the enforcement of these
laws.
Illegal, even under German law.
The principle of criminal law in every
civilized society has this in common.
Any person who sways another to commit
murder, any person who furnishes the
lethal weapon for the purpose of the
crime, any person who is an accessory to
the crime, is guilty.
[NOISE] Herr Rolf, further asserts that
the defendant, Janning, was an
extraordinary jurist, and acted in what
he thought was the best interest of this
country.
There is truth in this also.
Janning, to be sure, is a tragic figure.
We believe he loathed the evil he did.
But compassion for the present torture of
his soul must not beget forgetfulness, of
the torture and the death of the
millions, of the government of which he
was a part.
Janning's record and his fate illuminate
the most shattering truth that has
emerged from this trial.
If he, and all of the other defendants,
had been degraded perverts.
If all of the leaders of the Third Reich
had been sadistic monsters and maniacs,
then these events would have no more
moral significance than an earthquake or
any other natural catastrophe.
But, this trial has shown that under a
national crisis, ordinary, even able and
extraordinary men can delude themselves
into the commission of crimes so vast and
heinous that they beggar the imagination.
No one who has sat through the trial can
ever forget them.
Men sterilized because of political
belief.
A mockery made of friendship and faith,
the murder of children.
How easily it can happen.
There are those in our own country, too,
who today, speak of the protection of
country, of survival.
A decision must be made in the life of
every nation at the very moment when the
grasp of the enemy is at its throat, then
it seems that the only way to survive is
to use the means of the enemy.
To rest survival upon what is expedient.
To look the other way.
Only, the answer to that is survival is
what?
The country isn't a rock.
It's not an extension of one's self.
It's what it stands for.
It's what it stands for when standing for
something is the most difficult.
Before the people of the world, let it
now be noted, that here in our decision
this is what we stand for.
Justice, truth, and the value of a single
human being.
The Marshall will produce before the
tribunal, the defendant Hahn.
Emil Hahn.
The Tribunal finds you guilty, and
sentences you to life in prison.
>> Today you sentence me, tomorrow the
Bolshevist sentence you!
>> [INAUDIBLE] .
>> The Marshall will produce the
defendant, Hofstadter, before the
Tribunal.
Friedrich Hofstetter, the tribunal finds
you guilty and sentences you to life
imprisonment.
The marshal will produce the defendant
Lampe before the tribunal.
Ferdinand Lampe, the tribunal finds you
guilty and sentences you to life
imprisonment.
The marshal will produce the defendant,
Ernst Janning before the tribunal.
Ernst Janning, the tribunal finds you
guilty and sentences you to life
imprisonment.
>> With those really ringing words,
let's now look at some of the criticisms
that were raised about having American
judges and judges from Russia, and
France, and the United Kingdom try the
German defendants for the crimes that
they were accused of.
The first of these criticisms was that
Nuremberg and the Control Council Law
number ten mini Nuremberg trials, like
the judges' trial, were basically
victor's justice.
And it is true that there were no Germans
or any countries who were allied with
Germans having anybody on the bench.
The bench was composed of just an
American judge.
A British judge, a Russian judge, and a
French judge.
And so, the concept then was how can this
be fair?
As we'll see in a few minutes, the
International Criminal Court solves that
problem by having many judges from all
over the world who are already appointed
before the atrocities in any given case
are arising.
Another of the criticisms, was that the
countries that prosecuted the Germans,
had unclean hands.
And as I mentioned earlier, they were
responsible for atrocities, like the
bombing of Dresden, like dropping the
atomic weapons on Hiroshima and Nagasaki.
That did show that they had done things
that were also of some guilt.
Now the answer to that has always been
that two wrongs don't make a right.
Even if the allies had committed some war
crimes, that doesn't mean that the Nazis
were not guilty of their war crimes, and
therefore, that the unclean hands
principle should not bar a prosecution of
the Nazis, whose crimes were much more
egregious.
And finally, and this is probably the
criticism that stung the worst, and that
is that Nuremberg was basically a
kangaroo court.
The problem with Nuremberg, well there
were several.
First of all, when they created the
Nuremberg charter, they had the four
prosecutors draft the charter, and then
those same four people drafted the
indictment, and then two of those people
who were prosecutors got promotions.
The Russian prosecutor became the Russian
judge.
The French prosecutor became the
alternative Judge, to the French judge.
And so you had a mix of roles where the
prosecutor also gets to play the judge,
that was very questionable.
Not only that, but the rules of procedure
were a scant four pages, compared to the
hundreds pages of detailed rules of due
process that the modern international
tribunals have.
There was also no Court of Appeal.
What the judges decided was the final
verdict.
And there was a clause in the Nuremberg
Charter that said that the defendants
were not allowed to claim that the judges
had any bias, and try to have them
removed, for any reason whatsoever.
And finally the evidence that came in was
not always evidence that would be allowed
in courts of many of the same countries
that were prosecuting these defendants
there were hundreds of thousands of
unsigned affidavits that were allowed
into evidence.
So Nuremberg had its moment of criticism
afterwards.
But at the same time Nuremberg created a
huge legacy.
It was a turning point for international
law.
As I mentioned earlier, before Nuremberg
there was no prosecutions of anybody for
things that they did in their own
country.
International law only dealt with the
relations between states and the
responsibility of states.
Nuremberg for the first time, said an
individual, who commits war crimes or
crimes against humanity or the crime of
waging an aggressive war, could be held
individually criminally responsible.
They could be prosecuted in any country
around the world, under what's known as
universal jurisdiction or they could be
prosecuted by an international tribunal.
Not only that, but the fact that domestic
law did not impose a penalty or did not
say something was a crime, was not a
defense.
The individuals at Nuremberg all said,
well we were just applying the law.
The judges as you heard, said a judge
doesn't make the law, he just implements
it.
That was held at Nuremberg not to be a
defense.
Also, the fact that you were a Head of
State could not exculpate you from
individual criminal responsibility, an
important precedent that was applied to
Herman Goring who was the last Head of
State of Nazi Germany.
And also has been applied more recently
to leaders like Charles Taylor and others
who were Head's of State at the time they
committed their atrocities.
And finally, and maybe most importantly,
is the fact that the obedience to orders
was not allowed as a defense.
You can't get away with international
crimes by saying I was ordered to do it,
I was only following orders.
Now, let's apply, these principles that
came out of Nuremberg, to a modern day
controversy.
This is a slide of the White House
torture memos.
And, the torture memos, if you're
familiar with them, basically were
written by a cabal of lawyers, John Yu,
Gonzalez, Addington, and Haynes.
Who classified these so top secret, that
they cut out all the other lawyers from
the government from having anything to
say about these memos.
So, the state department legal adviser
was cut out, the lawyers in charge of
each of the branches of the military were
cut out.
And they said in these memos, that it was
okay during a war on terror, to do things
like water boarding to get information
during interrogations.
Water boarding is essentially simulated
drowning and they water boarded some of
the people up to 180 times.
Not that they ever got any great evidence
from it, and this clearly was a memo that
told lower level people that it was legal
to commit atrocities.
So the question is, do these lawyers have
the same kind of responsibility that the
lawyers were held to have in the movie
Judgement at Nuremberg based on the real
life judgement trial?
The Alstadter case before the Nuremberg
tribunal.
And there are those who debate this back
and forth.
But many people do believe that that
Nuremberg precedent does apply here.
And several countries have actually
issued indictments under universal
jurisdiction for the authors of the White
House torture memos.
Now, after Nuremberg, the idea was
there'd be a permanent international
tribunal created.
But the Cold War descended, and the years
after Nuremberg became a golden age of
impunity.
First you had Joseph Stalin.
The leader of the Soviet Union, who
killed about 20 million people in his
purges.
These were political opponents of his
regime.
No one lifted a finger.
No one screamed a word, internationally,
that he should be held responsible under
Nuremberg precedent.
In fact, when a couple of years after
Nuremberg, in 1948, they negotiated the
genocide convention making genocide a
crime.
Joseph Stalin, and his delegation put in
a clause that said genocide does not
apply when a leader kills political
opponents.
It only applies when you kill opponents
who are from a different nationality,
race, or religion and the reason he did
this is because he did not want to be
subject to this international crime of
genocide which grew out of the Nuremberg
precedent.
And the rest of the world during the Cold
War wanted the Soviet Union and the other
half of the world that supported the
Soviet Union to join in this treaty.
And so they deferred to that, and
genocide doesn't apply to this day to
crimes against political opponents.
Well then you had, of course, the pole
pot regime and the famous killing fields
where about a million Cambodians were
killed and nobody did a thing.
Then you had Idi Amin, in Uganda who
killed about half of his population and
again, nobody lifted a finger.
And more recently, in the late 1980s, the
leader of Iraq, Saddam Hussein killed
millions of Kurds in the northern part of
his country using chemical weapons and at
the time nobody did a thing.
It was a sorry time for international
law.
In fact the high commissioner for human
rights said that a person stood a better
chance for being prosecuted for killing
one or ten people, then for killing
100,000 or a million.
And it was true.
But those days ended in 1993, when
genocide returned to Europe for the first
time since World War II.
And the international community dusted
off the old Nuremberg charter, and they
created the first international tribunal,
since Nuremberg, the Yugoslavia Tribunal.
A year later, there were atrocities in
Rwanda, where the Hutu killed 800,000
Tutsis.
And there, the international tribunal for
Yugoslavia's statute was then applied to
Rwanda.
A couple of years later, there were
atrocities in Sierra Leon, and again the
international community created a new
tribunal in 2002 to deal with those.
A tribunal that ultimately convicted the
leader of neighboring Liberia, Charles
Taylor.
And finally, Those atrocities in Cambodia
caught up with the surviving members of
the Khmer Rouge, and in 2006 an
international tribunal was launched to
prosecute them as well.
With all of these tribunals being created
there was a new era, an era of
accountability, and in the midst of that
the world decided to negotiate a
permanent International Criminal Court.
Thinking that the ad-hoc approach was too
costly, too time consuming and too
politically difficult.
They decided that they should have a
permanent court that would sit in the
Hague and be responsible for all the
atrocities.
Now the negotiations were successful and
the International Criminal Court emerged
as a new institution.
And here is a photo of what that
institution looks like.
The International Criminal Court however
was the subject of negotiations and
compromises.
Ultimately, they decided that the only
crimes within its jurisdiction to begin
with would be war crimes, crimes against
humanity, and genocide.
They left out the crime of aggression.
Now ten years later they decided that
they may add the crime of aggression but
there are several hoops that might have
to still be overcome.
Note, however that other crimes like
terrorism are not included, piracy are
not included within this new court's
jurisdiction.
The court's jurisdiction is not over
everybody.
It requires either one, that the country
where the atrocities occurred has
ratified the ICC statute, or two, that
the country whose national's perpetrated
the atrocities was a party to the ICC
Statue.
Or third, if there is a country that
commits atrocities that is not a party
and its nationals are not a party, the
security council can refer the case by
adopting a Chapter Seven resolution which
requires the consent of the permanent
five members of the Security Council.
Something that is extremely difficult,
but not impossible to achieve.
Now, another compromise that's built into
the new ICC statute is that the ICC is a
court of last resort.
It can only exercise jurisdiction if the
domestic courts, where the perpetrator
was found, are either unable, or
unwilling to do so, and they call this
the complementarity principle.
The countries that ended up signing the
ICC statute and ratifying it were many.
The signatories are those that are in
yellow or light orange on this map and
the parties, those that have ratified it,
are in red.
And the countries that are in blue have
not yet signed or ratified it.
But ultimately, there are 122 countries
that are party to this new permanent
International Criminal Court.
Note however, that the United States and
Russia have signed but not yet ratified
the ICC statute, and China has done
neither and other countries in the Middle
East and in Asia have also decided to
stay outside.
Now, one of the first and most important
actions of this International Criminal
Court to show its power and its role as a
institution of real politic in the modern
international system, was the indictment
Of Muammar Gadhafi of Libya.
Libya was not a party to the ICC
statutes, so this was a case where the
security council voted to refer the case
of Libya to the court.
After Gadhafi was indicted, this gave the
allied governments the political cover to
launch airstrikes for humanitarian
reasons, and ultimately the coalition
airstrikes were successful Gadhafi's
regime fell.
Gadhafi ended up, dying.
His son is now standing trial in Libya
and the International Criminal Court has
several indictments for leaders of that
regime.
Now others however have escaped justice,
not withstanding the ICC's attempts to
bring them to the Hague.
One of the most important of these is
Joseph Kony, the leader of the Lord's
Resistance Army that has been plaguing
Uganda and has kidnapped and captured
over 60,000 children over the last 20
years, turning them into child soldiers
and bush wives.
You also have al-Bashir, the president of
the Sudan who has been indicted by the
International Criminal Court for the
crime of genocide for what has happened
in the Sudan, and in particular, in
Darfur.
And he still alludes capture.
In fact, he goes visiting different
countries from time to time and so far
they have not lifted a finger to bring
him to justice.
And in the Congo they have other leaders
who continue to stay away from justice.
like Bosco Ntaganda who you see in this
photo.
Now, thinking about the International
Criminal Court brings us to the question
of whether, for those countries like the
United States, China and Russia who have
not yet ratified it, it would be in their
interest to do so.
The reason it might, be would include
that ratification of the statute would
support the concept of peace through
justice.
It would be an important symbolic
gesture.
And it would close the noose on the
individuals who commit atrocities so that
people can't say what Adolph Hitler did.
Who, after all, remembers the fate of the
Armenians, or the Jews, or the Bosnians.
Or the Tutsis in Uganda, or the
Cambodians, or the Ugandans.
the Tutsis, I think I meant in Rwanda.
So this would be an important symbolic
gesture.
Another reason that might fall again into
the avenue of real politic, and this is a
theme you'll see throughout this course.
International criminal law is related to
politics.
Governments don't do things that they
don't think are in their interest.
And ultimately the challenge for the
lawyers in the international community is
to convince the governments that
international justice is in their
interest.
Well one of the ways to do that, is to
tell those countries that if you are
afraid that the international tribunal
will come after you or go after your
allies, wouldn't it be better for you to
be an influential insider than a hostile
outsider?
In the early days of the International
Criminal Court, the United States under
the Bush administration literally
declared a kind of war against the
International Criminal Court.
Passing a law called the Hague Invasion
Act, according to other countries, or the
American Service Members Protection Act,
according to its drafters, including
Jesse Helms.
That law said that any country that
ratified the ICC statute would lose all
financial aid from the United States.
And unfortunately, like the old Christmas
time story by Doctor Seuss, the Grinch
that Stole Christmas, the United States
in its effort to try to keep countries
from ratifying the ICC failed miserably.
The ICC was ratified by more and more
countries, now 122, which is a majority
of the countries in the world.
The United States couldn't keep the ICC
from coming, but what it did was it hurt
the United States efforts in countries
like Latin America where financial aid
went to drug interdiction and was cut off
because one by one the Latin American
countries ratified the ICC statute.
Leading unexpectedly to a huge influx of
drugs back into the United States.
So, the consequences of being a hostile
outsider were not good for the United
States.
And for those countries that have joined
the ICC, they have found that being an
influential insider is a way to protect
their interest.
Now what about the comp, the cons, the
negative aspects.
I've told you about complementarity.
This is the concept that the ICC is a
court of last resort.
That it can only take a case when the
country is either unwilling or unable to
do so itself.
But that only works, when a country is
prosecuting low level defendants, because
most countries will prosecute, the
Lieutenant Callys, a person who, you will
hear later in this course, committed
atrocities in Vietnam.
at Myly and the United States did
prosecute him, and other low level people
do get prosecuted for the atrocities they
commit be they an Abu Grabe, or in
Guantanamo Bay.
But the leaders do not get prosecuted for
their official policies and that's where
the ICC's complimentarity principle hits
a road block for the United States and
Russia and China, who are very concerned
that their high level policies could be
indicted by an international criminal
court.
This could very damaging to their foreign
policy and I'll tell you a story that
indicates that.
In 1999, as some of you will recall, the
NATO countries had launched airstrikes
against Serbia in order to stop the Serbs
from ethnically cleansing the province of
Kosovo.
These airstrikes were not authorized by
the UN Security Counsel and therefore
they were very controversial.
And yet NATO supported them.
Then the air strikes stated to go astray.
They would hit things like the Chinese
embassy or convoys of civilians.
Or places like bridges and historic
buildings that should not have been
targets.
And the support for these air strikes
started to diminish.
As this moment, in the middle of this,
what ultimately was an 87 day bombing
campaign, there were two notifications
that ended up on the desk of the
Yugoslavia Tribunal.
The prosecutor's name was Louis Arbour,
she was from Canada.
One of those communications was from the
school where she had been a law
professor, Osgood Hall.
And it was a legal document that said
that the IC, that the Yugoslavia
tribunal, which is a precursor to the
ICC, should be indicting the leaders of
NATO for the airstrikes.
And she was considering this.
At the same time, David Scheffer, who was
ambassador-at-large for war crimes
issues, sent his deputy, Michael Newton,
to meet with Louise Arbour.
And he have her a giant box of documents
and intercepts and other information that
showed that Slobodan Milosevic was
responsible and should be indicted for
the atrocities against the Kosovar
Albanians.
Now the prosecutor is sitting there with
these two groups of documents, and she
has to make a decision.
Had she decided to indict NATO that could
have been the end of the bombing campaign
and the end of NATO as an allied group
forever.
It would have had huge political
consequences.
She ended up inditing Milosevic, and
Milosevic realized that he couldn't
withstand the new political pressure, the
new clout that the allies had gained
through this prosecution indictment, and
therefore he sued for peace, and he
agreed to a deal that ended up leading
toward ultimately the autonomy of Kosovo.
This shows that just an indictment, not
even bringing someone to custody, just
indicting them can have a huge effect on
foreign policy, including the foreign
policy of America, its allies, or Russia
and China as well.
And finally, there are questions in many
people's mind about whether the ICC
Statute is fair, compared to domestic
prosecutions.
And we have to indicate that the ICC has
differences from domestic prosecutions.
In the United States we have a jury.
In the ICC, you just get a panel of three
judges and you appeal to a panel of five
judges.
In the United States, you can't have
hearsay used against you.
That's out of court statements that are
not subject to cross examination and the
ICC hearsay and other loose evidentiary
standards are applied.
And therefore, the international
tribunals allow much evidence to come in
that would have been excluded in domestic
situations.
So, some of these countries say, well
that's just not fair for an American or
someone from another country, to be sent
to the International Criminal Court.
And that's why the United States or other
countries should not ratify its statute.
But to these, the supporters of the ICC
say, well you know what, you were willing
to extradite your nationals to other
countries where they don't have juries,
where they allow hearsay evidence to come
in, so why wouldn't you extradite your
nationals to an ICC, where they have
those kinds of rules?
And also they remind the big countries
that under complementarity, if you
prosecute your own people, if you do your
own thing, even if you just have an
investigation that's in good faith, and
you decide not to prosecute, that's
enough under complementarity, to keep the
ICC from intervening.
Well this debate about the pros and cons
of the ICC, is likely to go on for, many
years, in the United States, in Russia,
in China, and in other countries.
But meanwhile, more an more countries
have begun to ratify the ICC statute.
And the ICC has grown into an
institution, that has become, very
effective at indicting individuals, at
getting custody of individuals, and of
showing that International Criminal Law
is not just something that is to talk
about.
That it's not just a myth.
That it is something that is real.
Often people say, oh is international law
real law?
Well if you ask that question to a leader
who has stood trial before.
The Yugoslavia tribunal, the Rwanda
tribunal, the special court for Sierra
Leon, the Cambodia tribunal or the new
International Criminal Court, they'll
tell you it's real law.
And in the end the idea of International
Criminal Law is to bring peace through
justice.
To tell the world that these kinds of
crimes are unlawful.
And that if you support a leader who
commits these crimes, the leader can be
held responsible.
And so can you.
So with that we conclude our
introduction to International Criminal
Law.
In our next session we're going to be
talking about the really interesting
question of the tension between trading
justice in order to achieve peace and
whether international law allows those
kinds of justice for peace deals to be
made, and whether they are good policy.
Until next time, I'll look forward to
seeing you online and hearing what you
have to say about these issues.
0 comments:
Post a Comment