International Courts/International Law
There are 3 international courts. They all meet in The Hague, in the Netherlands. They will all have a growing role in our lives as the global economy marches on.
The first international court of consequence opened its doors for business on March 13, 1946 in the town of Nuremberg, Germany. As early as December 1942 the English cabinet had held discussions regarding the appropriate punishment for Nazi leaders once they were caught. Churchill proposed summary execution (no trial), but was talked out of it by U.S. officials later in the war. In 1943, Stalin proposed that 50,000 to 100,000 German staff officers simply be executed summarily, but this time Churchill was opposed as these were line officers doing as they were told, but that the higher ranking officials should be tried. In the end, interestingly, it was the Soviets who pushed for a post-war judicial trial. A plan for such a trial was drafted by Secretary of War Henry Stimson in April of 1945 and the new U.S. President Truman agreed. There were discussions regarding this matter at the Yalta and Potsdam conferences, and again London. On August 8, 1945 the London Charter was established which, among other things, created an International Military Tribunal. This tribunal was given the power by the U.S., France, England and the Soviet Union (the victors) to prosecute German and Japanese officials for war crimes and crimes against humanity. The Soviets wanted the trials of the Germans to take place in Berlin, but Nuremberg was chosen as a symbolic locate for several reasons:
l. The first anti-Jewish laws were passed there (the 1934 Nuremberg Laws)
2. Nuremberg was the historic center/the heart really of Germany and holding the
trials there had the symbolic value of dominance and ascendency.
3. Nuremberg was the center of the early Nazi movement (after the Munich Putch,
Hitler came to Nuremberg to re-start his movement) and it was the site of many
Nazi rallys.
4. Finally pragmatic, as Nuremberg had one of the few standing courthouses left in
all of Germany
There was a compromise however as the International Military Tribunal opened initial proceedings in Berlin on October 18, 1945, and then moved proceedings to Nuremberg. The initial hearing resulted in the indictment of 24 major war criminals and 6 criminal organizations. The Nuremberg proceedings began in November of 1945. One individual managed to commit suicide before the trials began and another was found medically unfit, so the Nuremberg Trials as they are known in the popular press involved 22 cases. 19 of the men were found guilty and 2 were acquitted. 12 were hung (on 10/16/46), 3 got life, 4 got between 10 and 20 years, and one (Herman Goring) committed suicide the day before the hangings were to be carried out. What is often overlooked is that over the course of the ensuing 3 years, some 200 others were also tried in Nuremberg as war criminals, and another 1,600 were tried under traditional channels of military justice.
The trial and execution German leaders raised serious legal problems regarding crime and criminal law. I would suggest that the Nuremberg trials were little more than a veneer for vengeance – Victor’s Justice. There was no judicial basis for the proceedings whatsoever. It was used as a civilized means of killing our enemies. We
soothed our conscience that we proceeded legally before killing rather than simply killing in cold blood. Some of the legal problems:
l. The International Military Tribunal operated without legal precedent, as it was formed by the victors to punish the vanquished. If Germany had won, one can assume that the German military system would have charged U.S. and British leaders with similar offenses.
2. The trials were military trials, not civilian trials, and they did not follow civilian law.
3. The International Military Tribunal served as a source of new law (legislative) as we as prosecutor, judge and jury (judicial), and executioner (executive). It did not adhere to the democratic ideals of separation of powers/balance of powers
4. The International Military Tribunal created law after the fact, that is, for acts that occurred before the law was stated. The is ex post facto law, which violated the principle of legality as found in nullum crimen sine lege.
5. The Nuremberg trials violated German sovereignty.
6. The war crime trials found persons guilty of acts committed while carrying out the orders of the superiors. There was not intent per se, but rather obedience. This is knows as the Superior Order defense. Is a soldier guilty of a war crime or a crime against humanity if they kill another human being on orders from a superior officer? A soldier is trained to kill and must obey an order from a superior officer or is subject to disciplinary action through a court martial would could result in their execution. A soldier is thus put into a Catch-22 situation. If they obey the order and are subsequently captured, they could face execution as a war criminal. If they soldier refuses to obey the initial order, they could be court marshaled as executed by their own troops. The Nuremberg defendants raised the Superior Order defense, but the military tribunal ruled that a superior order does not relieve a soldier of legal responsibility under international law if a legal and moral choice was possible. But, how does a soldier know if an order is legal, and how does legality enter in? It was legal to kill Jews in Hitler=s Germany. It was legal to kill Native American=s in the U.S. An assumption was made in Nuremberg that individuals have an innate sense of what is right and legal (that transcends learning and conditioning), but from a psychological point of view, a soldier is conditioned to obey, without question. These matters were simply never address by the Nuremberg court and frankly remain a point of contention within the War Crimes Tribunals to this day.
The Nuremberg Trials were based on the somewhat tenuous notion of international law, not on the traditional concept of state sovereignty. The law that was applied was done so in an ex post facto context. The defendants did not need to possess mens rea. The Nuremberg trials procedurally violated basic principles of Western criminal law. Substantively, the men did despicable things, but the entire Nuremberg affair were equally despicable in a procedural context, and the West substituted power for principle, a sanctimonious fraud undertaken to suit the passion and clamor of the times. It was not much more than a high-grade lynching party (paraphrased from the comments of U.S. Supreme Court Justices Harlan Stone and William Douglas).
Nuremberg was a mask for retribution. It was merely a case of victors justice - victor=s justice is an attempt by the victor to institute a scheme of justice by which the actions, policies, and participants of the losing side may be judged and punished with a veneer of propriety. Some have called it camouflaged retribution.
Interestingly, while Nuremberg attempted to establish the fact that a Arule of law@ should always prevail, the failure of the global community to respond to all war crime/crimes against peace/crimes against humanity violations suggests a decidedly uneven distribution of justice and the rule of law. Until all that violate international law are brought before some kind of international tribunal, it is a mockery, a case of victor=s justice. In a similar vein, the fact that international justice is frequently not pursued when aggressors are leading powerful states also highlights the hypocrisy of it all. In a more positive tone, in the aftermath of the Nuremberg trials, the United Nations (created 10/24/45) began to discuss the need to establish some aspects of international law. As a result of the Nuremberg trials, several international conventions were forthcoming:
l. Genocide Convention (1948)
2. Universal Declaration of Human Rights (1948)
3. Convention on the Abolition of the Statute of Limitation on War Crime and Crimes
Against Humanity (1968)
4. The Geneva Convention on the Laws and Customs of War (1949)
In addition in the aftermath of the Nurenberg trials, the United Nations also began to discuss the need to create some kind of permanent international tribunal. The idea of a world court and international law in general was first hammered out by Hugo Grotius in 1625 in his book, De Jure Belli ac Pacis. He noted then, as we note to this day, that international law is custom, tradition and common consent rather than hard and definitive substantive code. Secondly, as we also noted today, he was concerned about the fact that a world court would lack any mechanism to enforce its rulings. Despite these problems, the United Nations moved forward, drawing upon the experiences of the League of Nations and the looming Nuremberg situation, and established the International Court of Justice, or what we call the World Court in 1945.
Two footnote thoughts:
1. The League of Nations had created a Court of International Justice that met
from 1921 to 1939, but it was truly toothless.
2. In the end, perhaps the Nuremberg Trials served as a somewhat flawed but
important first step forward in extending principles of law and concepts of equity and justice into a new era, a globalized era and international era. Social progress tends to come in asymmetric stops and starts with much injustice along the way. As much as it pains me to say it, for I see so much that was wrong with the Nuremberg Trials, in sum, they clearly did serve as the scaffolding upon which international law of all kinds is being built. There was a silver lining.
The International Court of Justice (the World Court) first set in 1946, and as noted a moment ago, meets in The Hague, in the Netherlands. It is financed by the United Nations and is the judicial arm of that entity. There are 15 judges elected to 9 year terms by the U.N. General Assembly. These judges act as independent magistrates and do not represent their governments. Judges deliberate in secret, and render their verdicts in open court, with majority opinions and dissenting opinions coming forth. The court’s judgment is final – there are no appeals. Since 1946, the World Court has dealt with roughly cases, delivered judgements on disputes, and issued roughly advisory opinions. The U.S. does have a representative on the bench
[NOTE – U.S. 1790s parallel of Aglobalization@ in that era (commerce between Virginia and Vermont - tobacco for maple syrup) and globalization today. Some sovereignty concerns, then and now (Jefferson not like the idea of a U.S. federal Supreme Court)]
In some ways, it is still largely a symbolic and ceremonial entity, and is used primarily to sway public opinion and allow for international diplomatic positioning and posturing, though there is evidence that the Court is gaining in stature of late. The World Court, like other courts, is an evolving entity that seems poised to become a force of some significance in the 21st century.
The real problem is to try and establish/clarify/articulate points of international law. At this juncture, the World court defines international law as principles reflected in international conventions, international customs, general principles of law recognized by civilized nations, judicial decisions, and writing of the most highly qualified experts on international law. It has been dealing with this matter since 1947 when, again in the aftermath of the Nuremberg trials, the U.N. began to try and codify AOffenses Against Peace and Security of Mankind.@ The original draft was completed in 1954, and it has been modified and debated, and debated and modified ever since. As of this writing, there are now 22 recognized international crimes. While originally focusing on war crimes and crimes against humanity, the list has been expanded to include other things now:
genocide
war crimes
aggression (crimes against peace)
crimes against humanity
unlawful use of weapons/unlawful emplacement of weapons
racial discrimination and apartheid
slavery and related crimes
torture
unlawful medical experimentation
piracy
aircraft hijacking
threat and use of force against internationally protected persons
taking of civilian hostages
drug offenses
international traffic in obscene publications
destruction and/or theft of national treasures
environmental protection
theft of nuclear materials
unlawful use of the mails
interference with submarine cables
falsification and counterfeiting
bribery of foreign public officials
I do wish to divert the discussion for a moment and raise really two issues:
1. Should those involved in these kind of ventures be charged with a crime? Should those involved be shielded from liability by the law of their land? It was legal, after all, to kill Jews in Germany in the WWII era. It was legal to kill Indians in America for many years. It was legal to kill Moslems in the Philippines in the 1970s. How can you charge someone with a Acrime@ when they are engaging in activities that are substantively legal within the sovereign realm in which they reside? This is one of the damning fundamental question facing those who wish to develop the concept of international law and a world court.
2. The other major problem is the enforcement problem. If international law is ever to be enforced, it will ultimately be enforced by a nation, at least until there is an enforcement arm of the UN. The major difference between domestic criminal law and international law is that in the case of international law there is no enforcement machinery. On the other hand, that is not totally true. The great achilles heel of domestic courts is that they lack enforcement powers. Nine old men told U.S. President Nixon to turn over the Watergate tapes in 1975. What were they going to do if he didn=t...walk down Pennsylvania Ave., push their way past the 2 million soldiers that Nixon had at his command and get the tapes. In the end, Nixon turned over the tapes because of the traditional power of the court, the traditional acceptance by the public of their power. The ultimate power of the court is their ability to get people to do what they say. To do so, they must be cognizant of public opinion and not rule outside, what Barnard calls, the zone of indifference. Constant ruling outside that zone will erode public confidence in the court, and their rulings will go unheeded.