by Luther Washington (3L)(1999)
Since the Nuremberg Trials, it is estimated that close to 100 million people have died as a result of war crimes, crimes against humanity, and genocide. That number seems unusually high to the casual observer. However, consider a small country, like Cambodia, lost twenty percent of its population or close to 2 million Cambodians, to genocide. One can see how 100 million is readily achievable. The twentieth century has seen ethnic cleansing conducted by the Serbs on the Muslims in the former Yugoslavia, the Rwanda genocide of Tutsis and Hutus, and the Cambodia massacre--to name just a few of its horrors. Latin America's dictators and African megalomaniacs have a played a role in raising the numbers.
What has happened since Nuremberg? The trials were supposed to serve as a lesson to those might believe that they could engage in these acts of horror with impunity. the consequences of Nuremberg can be viewed on a variety of levels.
First, there are the consequences of Nuremberg for the individual defendants. Of the eleven condemned to death, Hermann Goering cheated the executioners by committing suicide. The ten others condemned to hanging were von Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodl, and Seyss-Inquart. On October 13, 1946, in less than two hours, all ten were executed at the Nuremberg prison. Following the trial, the acquitted Fritzsche, Schacht, and von Papen spent some time in protective incarceration. After leaving prison, Fritzsche was charged and convicted by a German court as a "major offender" in the Denazification program. He served nine years hard labor, plus loss of voting, pension, and public office rights. He was pardoned and freed in September 1950 but died of cancer in 1953. Like Fritzsche, Schacht was also arrested, labeled an "arch-criminal," and sentenced to eight years in labor camp. He was released in 1950. Upon release, Schact wrote and served as a consultant to the Indonesian and Syria governments. He died at the age of ninety-two. Franz von Papen was also charged under the Denazification program. Sentenced to ten years in labor camps, he spent most of his time in labor hospitals because of poor health. Later, his sentence was reduced and he was released. He lived with family until his death in 1969.
Nine months after the trial, the seven remaining prisoners were moved to Spandau Prison. Those sentenced to life--Hess, Funk, and Raeder--shared vastly different fates. Raeder after serving nine years was released for ill health. Funk, a diabetic, remained in bad health and was bedridden while imprisoned. He was released in 1957 and died three years later. Hess committed suicide at the age of ninety-three after serving forty years in prison. Telford Taylor, one of the Allied prosecutors, offered this opinion of Hess's imprisonment: "such long-continued incarceration, especially in a huge prison where he was the sole inmate, was a crime against humanity." The remaining four--Speer, Nuerath, Doenitz, and Shirach-- were sentenced to prison terms from 10 to 20 years. Speer exercised and wrote extensively. After his release, he wrote three books. He died in 1981. Neurath suffered a heart attack in 1953 and was released. He died in 1960. Doenitz was sentenced for ten years and served them. After his release, he wrote a book and died in 1980. Schirach suffered from an embolism in his leg and other medical problems. He was released with Speer.
Beyond the fate of the defendants, any examination of Nuremberg must consider its consequences for the law. Nuremberg has become "a name which conjures up the moral and legal issues raised by applying judicial methods and decisions to challenged wartime acts." And, the law, as applied in the Nuremberg trials, is subject to some evaluation. The ex post facto prosecution of crimes against peace was a new concept. The United States Prosecutor Jackson wanted to establish a precedent. Although many defendants were convicted under this count, the ambiguity about the substance of the "crime" is still raises questions. The UN has found it difficult to define aggression which is at the heart of the charge. A working definition is "the first use of armed force by a state in contravention of the charter."(2) (If the first use of force, but not in contravention of the charter, it would not constitute aggression.) Some critics believe the statute is too vague and has doubtful application. To date there has been no prosecutions under it.
"The United Nations and the Nuremberg Trials were virtually twin offspring of the Allied negotiations and agreements with respect to the peace that would follow victory. It was at the Moscow Conference in October, 1943, that Eden, Hull and Molotov issued joint declarations pledging their countries to the establishment of an international organization to maintain peace and security.(3) The Charter of the UN. established the United Nations Organization "to maintain peace and security. . .promoting respect for human rights."(4) With the charter for the United Nations came the creation of the International Court of Justice (ICJ) .
Over the years, the United Nations has played a significant role in setting the agenda of international human rights. "The Nuremberg Tribunals of 1945 set down the principle that there were such things as crimes against humanity, systematic crimes against civilians that can occur inside a country but that might be tried anywhere else."(5) In 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide to give meaning to this principle. In 1951, the Convention came into effect. Prosecuting the violators was left up to the signatory countries to arrange.
Among the first of the UN's measures was the Universal Declaration of Human Rights often referred to as the International Bill of Rights. Adopted on November 10, 1948, by a vote of 48 to 0 with eight abstentions, the Declaration is not a treaty, nor statement of law or legal obligation. It is quoted extensively with approval by all states. In fact, the Declaration has acquired a status extending beyond that originally intended for it. This has occurred in a couple of different ways. First, the Declaration serves "as a yardstick by which to measure the content and standard observance of human rights," according to a former UN Secretary. " Second, the reaffirmation of the Declaration and its provisions in a series of other instruments (including Universal Declaration of Human Rights and four other Geneva Conventions relating to handling of wounded soldiers and the protection of civilians) make up the "rules governing war between states, differentiating legal conduct from illegal and criminal acts in war."(7) Sometimes these laws are referred to as "International Humanitarian Law."
Other landmark measures were the UN's call for periodic reports on the state of human rights from member states. It was the "precursor to the reporting requirements contained in many subsequent human rights covenant."(8) In 1966, the United Nations established the Human Rights Commission and subsequently authorized it to examine information relevant to gross violations of human rights and fundamental freedoms. Later in 1968, the General Assembly eliminated the statutory limitations on War Crimes. Another convention outlawed torture and other cruel, inhuman or degrading treatment or punishment. Then in 1984 and 1985, the UN adopted principles relating to extralegal, arbitrary, and summary executions, as well as to the protection of persons under detention or imprisonment. Finally, during the 90s, the UN adopted a declaration for the protection of ethnic, religious, and minority rights.
The use of an international tribunals to prosecute war crimes did not end in Nuremberg. Two major proscutions occurred in the 90s. One grew out of the ethnic conflict in the former Yugoslavia. Under the Communists, the state of Yugoslavia was "cobbled together with Serbs, Croats, and Slovenes. The breakup of communism triggered the demise of the state and produced flash points in ethnic conflict. Egregious human rights violations. . .characterized the conflict." (9) As a result of suspected war crimes and ethnic cleansing in the former Yugoslavia, the United Nations established the ad hoc International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law. The Tribunal was given the power to prosecute persons who committed "grave breaches of the Geneva Conventions of 1949, violated the laws and customs of war, committed genocide, and crimes against humanity."(10) The Tribunal indicted and convicted numerous war criminals.
Another situation involved the Rwandan genocide campaign of 1994. Over 800,000 Rwandans were slaughtered by their countrymen and women simply because they belonged to a different ethnic group. In fact, the Rwanda President, Juvenal Habyarimana, and his government carried out a planned genocide against the Tutsi and the Tutsi returned the favor against the Hutus. As defined by the 1948 Convention for the Prevention and Punishment of Genocide, it is certain acts "committed with an intent to destroy, in part or in whole, a national, ethnic, racial, or religious group." The Secretary General of the United Nations called the action, "Genocide in its purest and most evil form." Although Article 1 of the Genocide Convention binds the signatories to act to prevent as well as punish, the international community failed to act. The UN force on the ground stood by and watched as the killing took place. After the slaughter was over, an international tribunal was established to bring the guilty to trial. The Tribunal arrested former cabinet members and brought many of them to trial. Many other of the accused still languish in prisons awaiting trial by the local authorities.
Some human rights experts believe that the creation of ad hoc criminal tribunals present a problem with selective justice. Under what circumstances are tribunals formed and by whom? A permanent court would solve the problem. In 1998, 120 nations voted to establish a new institution for bringing the world's worst human rights criminals to justice. The institution, the International Criminal Court (ICC), would be under the auspices of the United Nations and housed with the International Court of justice at the Hague. The Secretary General of the United Nations, Kofi Annan, stated, "In the prospect of an international criminal court lies the promise of universal justice."(13) That is the simple and soaring hope of this vision. The ICC is the result of pressure from the human rights movement "desire to build on the precedents set at the Nuremberg and Tokyo tribunals."(14) According to some human rights experts, "The ICC promises to be the most far-ranging and powerful institution yet."(15) The ICC would be a permanent institution to prosecute "those responsible for future genocide, crimes against humanity, and war crimes." The Court would only take jurisdiction if the country of origin of the accused criminal refused to investigate or prosecute. The prosecutor and eighteen judges would be chosen by a majority of the governments that accept the court's jurisdiction. The critical difference between the current International Court of justice (ICJ) and the International Criminal Court (ICC) is that the ICC has the ability of prosecuting individuals while the ICJ resolves dispute between governments. Although most of Americans allies are in favor of the Court, the United States declined to support the ICC. Nations in favor of the Court include Britain, Canada, and Germany. Joining with these traditional democracies were many newer and emerging democracies. Over the next few years, these governments are expected to ratify the agreement. Their actions would affirm the significant of the Universal Declaration of Human Rights by providing a permanent institution to prosecute those guilt of atrocities. Former Nuremberg Prosecutor Benjamin B. Ferencz said in regard to the international court, "There can be no peace without justice, no justice without law and no meaningful law without a Court to decide what is just and lawful under any given circumstance."(16)
The International Criminal Court also solves the problem of immunity. Numerous dictators negotiate amnesty for their crimes as a condition for relinquishing the reigns of power. General Pinochet former President of Chile is an excellent example. Pinochet is accused of widespread human rights abuses, torture and detention of political opponents, and murder while in office. The former dictator negotiated an amnesty to avoid prosecution for these crimes. However, Pinochet was arrested while on a visit to the United Kingdom based on a Spanish provisional arrest warrant. The warrant alleged that the General was responsible for the murder of Spanish citizens in Chile. After protracted legal maneuvering, the British High Court decided that former heads of government are not immune from prosecution for crimes committed while in office. The court affirmed that people accused of crimes such as torture can be prosecuted anywhere in the world. Human Rights advocates claimed that he could be extradited and the High Court affirmed their view, but decided that Pinochet was too ill to stand trial. Thereafter, he returned to Chile. According to Human Rights Watch, "The Pinochet case affirmed the principle that human rights atrocities are subject to universal jurisdiction and can be prosecuted anywhere in the world."
In addition to the international prosecution of war crimes, there is the prosecution of these crimes at the national level. As mentioned above, Rwanda is pursuing the prosecution of crimes against humanity. Israel prosecuted Adolph Eichmann and John Demjanuk. Frances tried Klaus Barbie. The United States tried Lieutenant William Calley and Captain Ernest Medina for their actions in My Lai in 1968. The basic question "confronting all transitional governments, of course, is whether to undertake the prosecution of the leaders of the ousted regime... for the abuses they inflicted upon the nation."(17) As Nelson Mandela, the former President of South Africa said, the countries have to "devise mechanisms not only for handling past human rights violations, but also to ensure that the dignity of victims, survivors, and relatives, is restored." And, "the issue that has concerned the international community is the problem created by the incompatibility of such amnesties with a state's international obligations."(18)
Many argue that justice can only be achieved through these prosecutions. Others argue that the best approach is to forgive and forget. The argument continues with each new government making the hard choices as they move toward democracy. Legal questions abound in the treatment of these crimes. Many of the abuses were crimes under the former governments. Should they be prosecuted after 25 years? Should everyone who participated in the crimes be prosecuted? What crimes should be dealt with in the prosecution? What should be the limits on the penalties for the crimes? Should there be non-criminal sanctions? Should there be compensation for the victims? Who will finance the compensation? These are not easy questions. However, what is becoming increasing clear is that a "full, official accounting of the past is increasingly seen as an important element to a successful democratic transition."(19) With the collapse of the Iron Curtain, many former communist countries have devised national mechanisms to deal with these issues. Countries like Hungary, the Czech Republic, Bulgaria, and Germany created their own methods to facilitate the transition to democracy. In the Czech Republic, Hungary, Lithuania, Bulgaria and Germany, they used a method of purging and screening to prevent collaborators and members of the former authoritarian regime from holding high public and political offices. One out of every five people in East Germany was an informant on their friends and neighbors and, sometimes, their husband or wives. As part of the healing process in that country, German officials have opened the secret flles for public examination with some restrictions. In addition, many of these countries have chosen to pay compensation to the victims of these crimes. The techniques employed by these former communist states are not isolated examples.
In South American, many countries--including El Salvador, Honduras, Nicaragua, Argentina, Uruguay, and Chile-- have made the transition from dictatorial rule to democracy. El Salvador created a Commission on Truth to spearhead its inquiry, as did Guatemala, Chile, and Argentina. No fewer than fifteen truth commissions were established between 1974 and 1994; the present tally is probably closer to twenty. "In truth commissions," said one author, "there is a strong element of political theater; they are a kind of public morality play."(20)
The most publicized truth commission inquiries have been the South African Commission headed by Bishop Tutu. Who can forget the scene of him openly weeping listening to the stories of victims of the state police force and army? These countries also combined other techniques such as prosecution, purging, especially the armed forces, and compensating the victims in order to right the wrongs of prior government conduct. "The arguments made for confronting the past are moral, psychological, and political," according to one expert. "Above all, there is the political idea that this will help to prevent a recurrence of the evil."(21)
Political constraints reduce the number of options available to a new democracy. Liberal use of amnesty undermines the respect for the law. Many victims have complained in South Africa that their torturers and murderers are going free simply because they confessed to the crime. There is often no easy solution. Other issues, like the gravity of the crimes, the balance of power between the armed forces and the civilian authorities are also determining factors. The preferences of the power elite also, of course, play a role in decisions. In addition, pressure from organized interest groups may bear on the decision making process.
Cambodia's case is prime example of perhaps the failure of conventional methods of prosecution. The magnitude of the killings and crimes against humanity in that country under the Pol Pot regime was staggering. The Khmer Rouge killed, starved, and executed nearly twenty percent of their own people. It would seem impossible for the country or the world to allow any thing on that scale to go unpunished. But who should be punished? Thousands of functionaries carried out the brutal policies of the Khmer Rouge. Many of them were "young, barely literate peasants who were recruited and indoctrinated by the Khmer Rouge and terrorized into unquestioning and enthusiastic obedience."(22) In addition, the current President, Hun Sen, may be concerned about his own prosecution. He was a commander in the Khmer Rouge during the time that some of the killings occurred. The balance of power between the military and the civilians is also delicate. Prime Minister Hun Sen has incorporated remnants of the Khmer Rouge into the country's army. He says that "the problem is not the Khmer Rouge but their relations with others."(23) Hun Sen fears that a large scale trial would disturb the balance he has achieved, "one that has rabid guerrillas, royalist, and former communist from his own party in check under his stringent authority." He says, "For the first time in 20 years Cambodia is at peace."(24) Can Cambodia comfortably absorb thousands of war criminals into its society without losing a sense of justice?
In recent years, non-government organizations such as Human Rights Watch and Amnesty International "have worked closely with sympathetic governments to establish new legal approaches ranging from the truth commissions of Latin America and South Africa to the International tribunals for Rwanda and the former Yugoslavia." Success in this area is encouraging. In addition, the development of international agreements on the legal aspects of human rights law is inspiring. But war crimes and crimes against humanity have not stopped. An interesting question, and one that is not easy to answer, is: How many war crimes have NOT been commited because of Nuremberg?
Footnotes
1 Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, (New York: Alfred A. Knopf, 1992), 618.
2 Roy Gutman and David Rieff, ed., Crimes of War: What The Public Should Know, (London: W.W. Norton & Company, 1999), 8.
3 Louis Henkin and et. al., International Law, (St. Paul: West Publishing Co., 1993), 884.
4 Ibid.
5 Roy Gutman and David Rieff, ed., Crimes of War: What The Public Should Know, (London: W.W. Norton & Company, 1999), 8.
6 Louis Henkin and et al., International Law, (St. Paul: West Publishing Co., 1993), 607.
7
8 United Nations Landmarks in Human Rights: A Brief Chronology, (visited on March 20, 2000), http://www.un.org.
9 Thomas M. Magstadt, Nations & Governments: Comparative Politics in Regional Perspective, (New York: St. Martin's Press), 251.
10 United Nations: Statute of the International Tribunal, adopted 25 May 1993, as amended 13 May 1998, Article 2.
11 Roy Gutman and David Rieff, ed., Crimes of War: What The Public Should Know, (New York: W.W. Norton & Company, 1999), 154.
12 Kofi Annan, The Secretary-General of United Nations, Statement On Receiving The Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, 16 December 1999.
13 United Nations statement re: Establishment of an International Criminal Court-overview, (visited on 18, 2000), http://www.un.org/law/icc/general/overview.htm.
14 Kenneth Roth, "The Court The US Doesn't Want," The New York Review of Books, 19 November 1998, 45.
15 Ibid.
16 United Nations statement re: Establishment of an International Criminal Courtoverview, (Visited on 19 March 2000), http://www.un.org/law/icc/general/overview.htm.
17 Neil J. Kritz, ed., Transitional justice: How Emerging Democracies Reckon Fonner Regimes: Volume 1 (Washington, D.C.: United States Peace Institute, 1995), xxi.
18 Ibid., xi.
19 Ibid.
20 Timothy Garton Ash, "The Truth About Dictatorship," The New York Review of Books, 19 February 1998, 37.
21 Ibid.
22 Seth Mydans, "A Tale of a Cambodian Woman: Assigning the Guilt for Genocide," New York Times, 20 January 1999, A10.
23 Terry McCarthy, Survival of the Paranoid, Time, 22 March 1999, 59.
24 Ibid.