FROM NUREMBERG to the ICC
By: Gerald F. Witherspoon, Sr. 20141201
In a video published by PBS entitled Legacy of War, Walter Cronkite offered a heartfelt narrative which demonstrated the significance of the Nuremberg trial. He reminisced about how the Vietnam conflict stemmed from “a clash of ideologies” owned by Roosevelt, Churchill, and Stalin (PBS 2008). He transitioned by pointing out how the decision to allow Hitler’s henchmen to be tried in Germany was an American idea. He then quoted a line from Robert Jackson: “The meaning of Nuremberg will come to be understood in the century run and we’re only two thirds of the way along that century run” (PBS 2008). He concluded by offering a reminder of the millions who were aided by the United States in hopes that the lives of the soldiers who fought for peace would not be in vain (PBS 2008).
There are three priority considerations to be taken here:
- Conflict stems from ideological differences as evidenced in Vietnam.
- America has long understood, and sometimes respected, the legal relevancy of jurisdiction.
- The Nuremburg trial was essentially an experiment that would require refinement.
In regard to the first consideration (above), Phillipe Sands (author of From Nuremburg to the Hague) argued that the trials were politically motivated and the “…choice of defendants and the definition of the charges were arbitrary in the extreme…” (Sands 2003, 29). Particularly, whether the choice of defendants and arbitrary definitions could be justified across a universal domain of ideologies would be an important intellectual question in regards to what qualifies as “justice.” Albeit, it remains of little significance in an environment where might is right or power overrides justice.
In regard to the second consideration, the ICC has claimed jurisdiction over non-parties to the Rome statute (including U.S. nationals, officials, and military personnel) (Schaeffer 2009). More clearly, the U.S. flexed muscle at the Nuremberg trial, but respected the principle of national sovereignty in regards to the trial. Therefore, it would be mindless to turn around and allow the broad autonomy and jurisdiction of the ICC to undermine U.S. sovereignty.
Finally, in regard to the third consideration, the U.S. did not refuse to sign the treaty or join the ICC, it demanded refinement; A refinement that would ensure U.S. protection against political motivations that could damage diplomatic relations, foreign policy efforts, and national interests (Schaeffer 2009). Without refinement, the U.S. should not join the ICC.
As Phillip Sands put forth, “Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect (2003, 61).
This international-legal principle also known as the responsibility to protect or R2P shines a light on the political imbalances of influence that exist within the international community of states, and the difficulties of arriving at “just” conclusions when faced with transnational issues. Further, it lends itself to a plethora of questions such as:
Where are populations suffering serious harm, if not everywhere?
What is happening that is comparatively worse than what has/is occurred/occurring elsewhere that would constitute the need to use the term “serious” to define the type of harm?
For example, if 100 innocent and unarmed civilians have become casualties of an internal war in state A and 50 civilians have become casualties in state B, would it be “just” to justify intervention in state B, but condemn intervention in state A?
Who establishes the threshold and why would one innocent-civilian casualty be any less significant than 1,000?
Is there such a thing as a “not-so-serious” harm?
These are just a few questions raised from a single international dilemma. Imagine how many others exist and the level of scrutiny required when engaging in transnational or cross-jurisdictional and prosecutorial analysis.
Until international tribunals move beyond the point of anticipating cases that wind up succumbing to political gridlock, Max Frankel’s perception as witnessed in “The War and the Law” may not be pessimistic entirely. It may be more of an assessment rooted in the traditions of realism that has not been contradicted thus far, but holds fast to the notion that states do whatever is necessary to gain or maintain the balance of power within the international system.
On a different note, Human Rights Watch noted how victims in Bangladesh (more than 300,000 killed and approximately 10 million displaced) have been overlooked by the international community for four decades (HRW 2011). In 1973, trials were halted because of political reasons and justice is still lagging. Important changes have been implemented such as amendments, replacing military judges with civilian judges, and other implementations such as the Rules of Procedure in 2010 (HRW 2011). But these have not been enough to constitute real progress as several improvements were negated by evolutions in international criminal law.
There are several recommendations offered by Human Rights Watch to improve the chances of justice occuring on behalf of the vicitims of Bangladesh; Eliminating the vaguness of definitions of crime, allowing challenges to the constitution of the tribunal and appointees, ensuring rules align with due process rights and international standards, allowing full protection of fundemental rights for the accused and planning for their protection and support before, during, and after proceedings, ensuring “equality of arms”, and equipping prosecutors and judges with the necessary competence to perform to international standards (HRW 2011).
These recommendations offer a glimpse into a diverse range of issues that complicate the domestication of international law and and how precedents evolve that encourage or discourage support from the wider international community.
Frankel, Max. 1995. “The War and the Law” New York Times Magazine, May 7.
Legacy of War. Directed by Alastair Layzell. Produced by Alastair Layzell. Public Broadcasting Service (PBS), 2008. Accessed December 9, 2014. http://search.alexanderstreet.com/view/work/1791830.
Sands, Philippe. From Nuremberg to The Hague: The Future of International Criminal Justice. Cambridge: Cambridge University Press, 2003. eBook Collection (EBSCOhost), EBSCOhost(accessed December 9, 2014).
Schaeffer, Brett. The U.S. Should Not Join the International Criminal Court. August 18, 2009. http://www.heritage.org/research/reports/2009/08/the-us-should-not-join-the-international-criminal-court (accessed December 11, 2014).
Watch, Human Rights. Bangladesh: Unique Opportunity for Justice for 1971. May 19, 2011. http://m.hrw.org/news/2011/05/19/bangladesh-unique-opportunity-justice-1971-atrocities (accessed December 14, 2014).