Nuremberg: A Prosecutor’s Perspective

By Benjamin B. Ferencz

How it Looked in 1987:

At the end of 1987, a major International Human Rights Conference took place at the faculty of Law of McGill University in Canada. Its theme was "Nuremberg Forty Years Later: The Struggle against Injustice in Our Time." I was privileged to address the conference with some personal observations. Now that the fiftieth anniversary of the judgment of the International Military Tribunal at Nuremberg is upon us, I have been invited to reexamine and update my earlier views to see what lessons may be derived that might guide us to a more humane world. Let me begin by reviewing observations that seemed pertinent when the topic was considered by the distinguished jurists assembled in Montreal.

What it Looks Like Ten Years Later:

The first forty years after Nuremberg was a period of slow progress in developing international criminal law. The years since then have witnessed great changes. The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and crimes against humanity. The right of humanitarian intervention to put a stop to crimes against humanity - even by a sovereign against his own citizens - gradually emerged from the Nuremberg principles affirmed by the United Nations. Traditional notions of sovereignty began to be challenged. It was increasingly recognized that in a democratic society it is the individual who should be served by the sovereign and not vice versa. It was slowly being recognized that accepting binding rules of the road serves everyone's interest and that human rights must prevail over human wrongs.

To be sure, this awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the snail's pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court. While the law limped lamely along, international crimes flourished. Nations were accused of aggression in Korea, Czechoslovakia, Hungary, Vietnam, Cambodia, Afghanistan, Iran, Iraq, Grenada, Nicaragua, Cuba, Panama, the Middle East, Africa and other parts of the world. Millions of innocent people were killed in such conflicts, which frequently violated established laws of war, such as illegal use of poison gas, genocide, terrorism and similar atrocities. Idi Amin of Uganda and Pol Pot of Kampuchea were denounced, but never tried, for murdering millions of their own people. All of these terrible crimes, - despite Nuremberg - went untried and unpunished - to the everlasting shame of the international legal community!

The sleeping giant of international law began to stir when armed forces of Iraq, led by its dictator Saddam Hussein, launched an unprovoked attack against its peaceful Arab neighbor, the sovereign state of Kuwait in August 1990. The Security Council of the United Nations responded promptly with a barrage of resolutions followed by action under Article VII of the UN Charter authorizing the use of military force to expel Iraq and restore peace. An allied coalition led by the United States immediately began to bombard Iraqi troops. Within 100 hours, the Iraqi army was in complete rout. Military action, authorized by the Security Council, brought a halt to Saddam's aggression. But no legal action was taken to put the aggressor on trial.

It should have been no surprise when Saddam began to slaughter his own Iraqi citizens who were Kurdish guerrillas and Shiite Muslims opposed to his tyrannical regime. No international court existed to condemn his terrible crimes against humanity. Those who had the power to act chose, for their own political reasons, not to turn to the Nuremberg principles and the enforcement of international law. It was sadly ironic that a great military victory won by brave young people fighting in distant lands would be followed by a great human rights disaster and a lack of legal courage by political leaders back home There is always a price to pay for such temerity and vacillation.

The end of the cold war opened the door to further progress. In 1991, when violence erupted among ethnic groups in former Yugoslavia, graphic reports of "ethnic cleansing", including mass rapes, appeared on worldwide television. Public opinion was outraged. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statutes for the International Criminal Tribunal for Yugoslavia in about 8 weeks - the same time it had taken to agree upon the Charter for the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and crimes against humanity in Rwanda. The existence of these two tribunals demonstrates that - where the political will is present - it is possible to create a fair international criminal tribunal in a matter of weeks. But, law is not a one way street. What is needed is a permanent international criminal court to punish such crimes wherever and whenever they occur. That's what Nuremberg was all about.

The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statute for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law. The technical legal problems of form, substance and procedure are now being debated by various UN committees. There are major differences among many nations on many problems. But all have agreed that it is feasible to convene a conference of diplomats by the year 1998 to draw up a treaty establishing the first permanent international criminal court since Nuremberg. Whether they will actually do so, and whether such a treaty reconciling differences will be ratified by many states, remains to be seen. It will not be quick or easy.

The views of all nations must be respected, but we must not forget that the goal is to close an existing gap in the international legal order as quickly as possible. In the last analysis it will depend upon the will of the public. If the leaders won't lead, it is up to the public to lead and the "leaders" will follow. The most important immediate problem is to make sure that the two existing ad hoc criminal tribunals created by the Security Council succeed in their mission. These tribunals will need all of the help they can get - from the UN and the public. Indicted suspects, no matter how high their rank or station, should not be allowed to flout the will of the international community - as they are now doing. All nations must honor their legal commitment to support Security Council decisions.

An international criminal court is a vital component for a rational and more humane world order. But it is only one component. We also need clearer laws, a world court with compulsory and binding jurisdiction and a system of effective law enforcement. The United Nations is the only agency accepted by 185 member states to organize a more rational world. But its Charter purposes must be respected and its members must provide the rules and the tools to do its job. Disarmament under effective international controls is vital for as long as we spend enormous resources on weapons of mass destruction there will never be enough money left to meet legitimate social needs that give rise to unrest. Revolting conditions inspire revolt. Social justice - economic, environmental and human - are equally important requirements for a peaceful world. As we move toward the next millennium, diplomats and decision-makers must demonstrate that they care enough and dare enough to move courageously toward a new world order of peace under law for all of humankind. That would be the enduring legacy and greatest tribute to the work done at Nuremberg many years ago.