A Negotiator's Reliance on the Nuremberg Legacy

A Negotiator's Reliance on the Nuremberg Legacy

Originally published at KU Leuven Transitional Justice Blog

Last updated November 22, 2021 2:57 pm (EST)

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This year we commemorate the 75th anniversary of the verdict of the Nuremberg Tribunal: on 30 September and 1 October 1946, the International Military Tribunal (IMT) delivered its Judgement in the trial against the most high-ranking political and military leaders of the German Nazi regime. On this occasion, the Leuven Transitional Justice Blog commissioned a special series to examine the lasting legacy of the Nuremberg Trials. In this seventh instalment, David J. Scheffer looks back on the influence of the Nuremberg precedent on the subsequent drafting processes of the statutes of international courts.

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The influence of the London Charter and Nuremberg principles on international criminal tribunal-building since 1993 has been profound and lasting. As I wrote in my memoir, All the Missing Souls: A Personal History of the War Crimes Tribunals: “The charters of the Nuremberg and Tokyo international military tribunals were the templates for the drafting endeavours of the modern tribunals. They confirmed the core definitions of crimes against humanity and war crimes and set the stage for the Geneva Conventions in 1949. The military tribunals deprived leaders of any immunity from prosecution and soldiers of the defence of superior orders. Their charters insisted on due process protections for the defendants, regardless of how repulsive or guilty they appeared.”

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As a statute-drafter and negotiator on behalf of the United States Government during the 1990’s in the creation of five tribunals (the International Criminal Tribunals for former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court (ICC)), I relied upon the London Charter and Nuremberg principles as the opening template for fundamental principles of law and due process. The endeavour, of course, evolved with successive tribunal statutes that were negotiated and drafted, as each one built upon the experience of immediately preceding statutes.  But the London Charter and Nuremberg principles stood guard, essentially, as the gold standard that I relied upon as a reminder of the origins of international criminal law that must be engraved for the ages.

During the initial weeks of the Clinton Administration in early 1993, I happened to be reading The Anatomy of the Nuremberg Trials: A Personal Memoir, by Telford Taylor, a senior U.S. prosecutor at Nuremberg. The book had just been published and I devoured it as I began my work as Senior Adviser and Counsel to the new U.S. Permanent Representative to the United Nations, Dr. Madeleine Albright. We were thrust immediately into dealing with the atrocities of the Balkans War, which I have written about in The Sit Room: In the Theater of War and Peace.  Ambassador Albright led in the U.N. Security Council to create an international criminal tribunal quickly to bring perpetrators of atrocity crimes (genocide, crimes against humanity, and war crimes) in the Balkans to justice. The precedents of the London Charter and Nuremberg principles loomed foremost in our minds as we sought, and obtained, Security Council approval and then as the statute of the ICTY was negotiated and drafted. Indeed, on 22 February 1993, which was the day Resolution 808 authorising the establishment of the ICTY was approved, Ambassador Albright told her Security Council colleagues: “There is an echo in this chamber today. The Nuremberg principles have been reaffirmed. We have preserved the long-neglected compact made by the community of civilised nations 48 years ago in San Francisco to create the United Nations and enforce the Nuremberg principles. The lesson that we are all accountable to international law may have finally taken hold in our collective memory. The debates over the state of international law that so encumbered the Nuremberg Trials will not burden this tribunal.”  I drafted those words for her with Taylor’s book on my desk, reminding me of the powerful precedent of almost a half century earlier and upon which the ICTY would be built.

On 13 May 1993, Ambassador Albright convened a working session at the U.S. Mission to the United Nations in New York of academic and practitioner experts to review various draft statutes of the ICTY, as a final draft would soon be put to a vote in the Security Council. I invited Telford Taylor, who was teaching at Columbia University, to join the session. He would be the voice of Nuremberg. Taylor stressed the criticality of the documentary record that underpinned the prosecution of the Nuremberg cases. He foresaw, correctly, a more difficult task in the Balkans, where the ICTY would need to rely much more on witness testimony.

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One can draw a straight line between many of the London Charter provisions and what appeared in the ICTY statute. The London Charter had become well established as the plausible template for an international criminal tribunal (despite the Nuremberg court being a military tribunal) that had avoided attracting much academic or political objections over the decades since the Nuremberg Trials. That point was critical to ICTY drafters, including the U.N. lawyers who produced the final draft. To garner a unanimous Security Council vote on 25 May 1993, for Resolution 827, the argument had to prevail that the ICTY statute essentially reflected customary international law principles emerging from the London Charter. Since the major legal debate would be about whether the Security Council had the legal authority under the U.N. Charter to create an international criminal tribunal as a subsidiary organ, we wanted any concerns about the substantive character of the ICTY statute to be minimal and successfully rebuttable. So, to ground the ICTY statute in the London Charter and the legacy of Nuremberg was essential.

In the drafting of the ICTR statute, one Nuremberg issue that served as a precedent for what to avoid reared its head: collective culpability. As I wrote in All the Missing Souls: “The Rwandans also wanted to cover groups as well as individuals in the tribunal statute. This would have meant that mere membership in a Hutu group, such as the National Police, Coalition for the Defence of the Republic, Democratic Republican Movement, or murderous Interahamwe, would have subjected an individual to criminal liability. The same tactic was employed in 1945 with the London Charter, which empowered the Nuremberg Tribunal to define as criminal any group or organisation to which any defendant appearing in Nuremberg belonged. In the end, the Nuremberg Tribunal declared three of six organisations named in the indictment as criminal in character. But no one else at the table wanted to go down that path in Rwanda, as it pointed toward collective culpability—precisely what we argued must not be the future of justice in the Balkans or Rwanda. The Rwandan negotiators backed down.”

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During the long years of negotiations leading to the Rome Statute of the ICC, the Nuremberg precedent was a persistent touchstone of reference and reliance. As the U.S. Ambassador at Large for War Crimes Issues during the second term of the Clinton Administration, I led the U.S. delegation to the U.N. talks. I vividly recall the many times that the German delegation would invoke the Nuremberg precedent to emphasise the imperative of creating the ICC, particularly with respect to the crime of aggression. The Japanese delegation, on the other hand, invoked both the Nuremberg and the Tokyo Tribunals’ precedents to emphasise the due process protections that all defendants before the ICC must be accorded.

The early objection to and longstanding criticism of the Nuremberg Trials as “victor’s justice” reverberated throughout the years of negotiation of the Rome Statute and to the present day regarding the ICC. While the ICC is a broadly subscribed treaty-based institution of presumptively objective application to all individuals and nations falling within its jurisdiction, the fact that some major powers and populous nations remain outside of its reach for all intents and purposes points to the argument of impunity for the “victors”. The People’s Republic of China, United States, Russia, India, Pakistan, Turkey, Myanmar, Indonesia, Thailand, Vietnam, Saudi Arabia, Israel, Iran, South Sudan, Eritrea, or Ethiopia, for example, can play victor in their internal repression or foreign military adventures without necessarily attracting accountability before the ICC. Thus, the claim of “victor’s justice” has persisted, albeit differently conceived, with the precedent of Nuremberg its stepfather.

Remarkably, one of the American prosecutors, Ben Ferencz, at Nuremberg survived long enough to have relentless influence on the creation and operation of the ICC and, in particular, the Rome Statute’s long journey to codify the crime of aggression. The aim to prosecute aggression dominated Justice Robert H. Jackson’s approach to the initial Nuremberg Trials and Ferencz carried forth that mandate as he lobbied for its inclusion in the Rome Statute. I first met Ferencz when the ICC negotiations commenced at the United Nations in 1995. He skilfully lobbied me in my role as the U.S. negotiator for years thereafter. The memory of Nuremberg shaped all that he said, including long into the 21st century as the definition of and procedural requirements to prosecute the crime of aggression finally were agreed to and codified at the Review Conference of the Rome Statute convened in Kampala, Uganda, in 2010.

Nuremberg is a “forever legacy” that will continue to shape the growth of international criminal law. I have no doubt that a century from now judges will cite the London Charter, the Nuremberg principles, and the jurisprudence of the Nuremberg Trials as they render justice in the wake, tragically, of further atrocity crimes.

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