One must bear in mind that an international military tribunal takes at least two years before it can be established and start functioning.
by Dr. Ruwantissa Abeyratne in Montreal
Ye are my witnesses…Isiah 43:10
Every year politicians say never again. Now I see that these words are worthless. In Europe a people are being destroyed…President Volodymyr Zelensky addressing the German Bundestag
As one enters the portals of the Holocaust Museum in Washington DC one notices on the wall the aforementioned prophesy of the scriptures. At my unforgettable visit there, which left the most profound impact in me – an experience I have not had in all my travels - I was left with a mixed sense of intense sadness and unbridled anger – that the world stood by and allowed the travesty of the Holocaust to happen. I was profoundly moved to see youngsters holding hands and crying at various exhibits of the Museum. At the same time, I was glad that I was carrying the burden of a legal education which left me with the hope that whatever happens, justice will eventually prevail.
After 76 years, Nuremberg has seemingly reappeared – and this time in the context of the ongoing war in Ukraine. While President Biden has called President Putin of Russia a war criminal, contemporaneously The Guardian has reported: “ The former UK prime ministers Gordon Brown and Sir John Major are among those calling for the creation of a new international tribunal to investigate Putin and those who helped plan his invasion of Ukraine. They have joined a campaign – along with leading names from the worlds of law, academia, and politics – aiming to put the Russian president and others on trial”. The campaign has been backed by 740,000 people demanding a Nuremberg type tribunal. Various parts of news media report atrocities perpetrated by the Russian forces on Ukrainians and their property while The Guardian goes on to say that “Ukrainian officials accused Russian forces of further atrocities in the besieged city of Mariupol, including an airstrike on a theatre where hundreds of displaced people were believed to have been sheltering, and a strike on a swimming pool where pregnant women and young children had gathered. Russian forces were also accused of shelling a convoy of cars of civilians fleeing the city”.
One must bear in mind that an international military tribunal takes at least two years before it can be established and start functioning. Firstly, there has to be international consensus. Then a Charter has to be drawn up and agreed upon containing the rules and procedure of the tribunal. The Charter forms the seminal and integral portion of the trials as it has to set out in limine the elements of crimes to be considered. In the context of Nuremberg, the Charter defined three categories of crimes: crimes against peace (including planning, preparing, starting or waging wars of aggression or wars in violation of international agreements), war crimes (including violations of customs or laws of war, including improper treatment of civilians and prisoners of war) and crimes against humanity (including murder, enslavement or deportation of civilians or persecution on political, religious or racial grounds). It was determined that civilian officials as well as military officers could be accused of war crimes.
The concept of the Nuremberg Tribunal had its genesis in December 1942, when the Allied leaders of Great Britain, the United States and the Soviet Union issued the first joint declaration officially noting the mass murder of European Jewry and resolving to prosecute those responsible for violence against civilian populations. The Nuremberg Trials, involving eventually over a thousand employees, took approximately 2 years from conceptual stage to functional stage, as evidence had to be collected; witnesses had to be located and interviewed; judges and prosecuting counsel had to be appointed and the court’s infrastructure had to be properly put in place.
The Nuremberg Trials were meant, not merely to administer justice and punish guilty Nazi war criminals. It was, a fortiori a seminal pronouncement of morals and ethics that brought to bear profound issues which were calculated to guide future generations. British Judge Norman Birkett, sitting in judgment said that Nuremberg was “the greatest trial in history”. American prosecutor Justice Robert Jackson said: “ This trial has a scope that is utterly beyond anything that has ever been attempted that I know of in judicial history”. Judge Jackson explained his statement by observing that in a single litigation, a whole continent was involved with innumerable players and multifarious instances. The defendants were not all born and brought up in Germany. On the contrary, they were from different countries and that effectively precluded a possible assumption that the Nazis had targeted a particular race. The victims were persecuted, tortured, and killed based on their ethnicity, religion, political beliefs, or sexual orientation. The Nazis had been involved in annihilating, in the cruellest possible manner, not only Jews, but also Russians, Belarusians, Poles, Ukrainians and Serbs, Romanis (gypsies), LGBT people (lesbian, gay, bisexual, transgender), the mentally or physically disabled, mentally ill; Soviet POWs, Roman Catholics, Protestants, Jehovah's Witnesses, people of the Baháʼí Faith, among others.
Trials and judgments do not merely render punishments on offenders but also offer lessons to future generations. In this context, according to President Zelensky, The Nuremberg Trials and Judgments seem to have lost their mark. Be that as it may, The Nuremberg judgment resonated, 76 years ago, that a global war would probably annihilate the human race. The attendant reasoning was based on the covert premise that individual acts of henchman that go to further the persuasions of an ideologue could be the pivot to devastation and destruction. All this would hinge on individual power and action. This should not be so. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, in her book Humanity’s Law (Oxford University Press: 2011) says: “sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”. This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being-oriented approach”.
Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, "In free governments the rulers are the servants and the people their superiors and sovereigns." The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable. There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape, and killings in circumstances of internal strife and military warfare.
This shift led to the solid grounding of international society in an area of law called humanitarian law, encompassing human rights. From there came international criminal justice. Spawned by the Nuremberg rules which were formulated on the basic observation of Justice Robert Jackson who said: “Of course, it was, under the law of all civilized peoples, a crime for a man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act?”
International criminal justice has, through its ancestor – the Nuremberg rules –made crimes against humanity an arm of positive law. The younger generation should be nurtured on this fundamental truth.
In writing this article, the author extracted some text from an earlier essay of his appearing in this newspaper.
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