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.