Sunday, December 9, 2012

Nuremberg legacy & International Criminal Court

(My thanks to IntLawGrrls for the opportunity to contribute this post, an excerpt from "'The Nuremberg Legacy and the International Criminal Court': Lecture in Honor of Whitney R. Harris, Former Nuremberg Prosecutor," which I delivered last month in St. Louis. The full text of that lecture is here.)

1998 Rome Conference (c) Coalition for the International Criminal Court
Then, on 17 July 1998, after a last dramatic tussle, comes the breakthrough, the climax.
After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,
'Herr Kaul, Herr Kaul, we've done it! We're getting an international criminal court!'
And then, in all this "Tohuwabohu", in all this chaos of clapping and screaming, something strange, something unexpected happens: I see Professor Harris standing up, and with a serious face, he begins to walk towards the German delegation, across the entire conference hall. While he is striding towards us, maybe 40 yards, undisturbed by the cheering delegates, I realise that he is constantly looking at me. Even today, this scene is still in my head, I see his walk in some kind of slow motion; I ask myself, why, what does he want?
A moment later, he shakes my hand and says – I do not recall his exact words – this is a great day for the entire world. It is a breakthrough, the fulfilment of many hopes. In a foreseeable future, we will have a world criminal court. He believes that the German delegation has played a decisive role, that without Germany the crime of aggression would not have been included in the treaty.
I admit, I am shaken, confused, and touched at the same time. That this prominent former US Nuremberg prosecutor is acknowledging the work of my people and of myself is almost too much. Finally, Mr Harris takes me by the shoulders, then he says: now, you must promise that from now on we will remain in close contact. Still shaken, I promise.
Then comes a further sentence, almost an order:
'and from now on, you call me Whitney, understood?'
When he embraces me briefly to say goodbye, I feel, for the first time, the special heartiness and warmth of Whitney which were so characteristic of him.
Well, this is, this was the beginning of a lasting friendship with Whitney, a relationship for more than a decade, with countless exchanges and contacts; with meetings in Germany, in Berlin, in Nuremberg, in St. Louis and elsewhere. And it is so wonderful that the friendship with Whitney soon includes Anna and Elisabeth, my wife, and also Leila Sadat.
Whitney R. Harris (1912-2010)
There is no doubt: Whitney was one of the foremost pioneers of the Nuremberg Trials – and I am convinced not only of their continuing historic significance, but also of their significance for the world of today and tomorrow. Today, we realize and it is obvious that these trials were based on a breakthrough, on some kind of intellectual and legal quantum leap of enormous significance. Notwithstanding the involvement of the three other victorious powers, Nuremberg is in essence an American invention, a contribution of men like Justice Robert H. Jackson, Telford Taylor, Whitney Harris, Benjamin Ferencz and others. Their ideas and actions made a difference, they provided lasting international awareness for the necessity of the rule of law in international relations. All these innovative ideas, the contribution of the Nuremberg Trials and of the underlying principles have had a decisive and on-going influence on international law. Thus, without Nuremberg, there would have been no ad hoc tribunals, without Nuremberg there would have been no International Criminal Court. There would be no recognition for the principle which is universally recognised today: nobody is above the law; there can be no impunity for grave crimes which concern the international community as a whole, regardless of the rank or nationality of the perpetrators in question. And, above all, Nuremberg achieved, for the first time, clarity about a fundamental principle: aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

When truly historic events take place, historical developments which may shape the future of humanity or at least affect entire nations, regularly, many people, sometimes thousands or more, are personally involved.
Experience shows that in such situations you can essentially distinguish between two types of reactions, two types of people involved: most, the great majority, will, while the events are ongoing, do their job as usual; however, when it’s over, they will go on living as before, leaving this chapter behind them.
On the other hand, however, a few individuals involved will, while the events are still ongoing, not only contribute to them to the best of their abilities, but they will already then think about the higher meaning, the implications of what is happening, think about possible consequences and conclusions for the future – and they will continue to analyse these historic events once they are over.
I have personally seen this phenomenon, for example, during the month and years of the process of German reunification in the last century in which I myself was deeply involved. Likewise, I am convinced that Whitney, even when he was still working very hard in Nuremberg in 1945/46, he was already thinking about the implications and likely consequences of the International Military Tribunal (IMT), of the lessons of the trials for the future. Yes, I believe that he was aware that history was taking place, that he would later be a witness of history.
Thus, his intellect, his knowledge of history, of law, and his analytical mind enable him to act as the first eloquent advocate of the Nuremberg legacy. Already in 1954, he publishes this book, “Tyranny on Trial”, the first authoritative account of the Nuremberg trial. When I eventually read it, after my return from the Rome Conference, it is a revelation, an eye-opener. What a comprehensive legal and historic account, what an objective account of the Nazi crimes and their prosecution in Nuremberg, indeed! What a compelling summary of the lessons to be drawn for the future! It is therefore that today this book can be found in most libraries all over the world. When in 2008 a translation into German is published, hundreds of Germans, in Nuremberg, in Marburg, in Frankfurt, absolutely want his autograph – and Whitney patiently signs every single book people present to him.
To prevent war, to end and to repress further crimes against peace, to fight against further uses of aggressive armed force, this was and continues to be one of the main lessons and challenges emanating from Nuremberg. If you look at the writings and speeches of Robert H. Jackson, Telford Taylor, Whitney Harris, Benjamin Ferencz and others, it becomes clear that all leading Americans involved in the Nuremberg Trials are united in this common conclusion; they are united in their abhorrence for the aggressive use of armed force.
This is the Nuremberg legacy. This is of the greatest importance for generations to come.

Chancellor Angela Merkel
It is equally significant for the future work of the ICC, when the Court, after 2017, will have, at least to a certain extent, jurisdiction with regard to future crimes of aggression. In Germany, the ratification law on the crime of aggression amendments has already been approved by the Cabinet of Chancellor Angela Merkel; the draft law is already in the Bundestag.

What I am trying to explain to you – Whitney, again, in his 2004 book “The Tragedy of War”, was capable of brilliantly summarising his lifelong conviction in one single phrase:
'The Crime of aggressive war must be recognised, defined and punished when it occurs, for war is the greatest threat to the survival of civilisation.'
As some of you may know, I have often quoted this statement of Whitney, in speeches, articles and interviews. I have used it to emphasise the absolute necessity to criminalise aggressive uses of armed force. As somebody who was born during the Second World War, who grew up amidst ruins and destruction, who gradually understood the terrible consequences of the aggressive wars started by Adolf Hitler and his followers against so many nations, I continue to believe:
War – this is the ultimate threat to all human values; war is sheer nihilism. It is the total negation of hope and justice. Experience shows that war, the injustice of war in itself, begets massive war crimes and crimes against humanity. In my nine years as a Judge of the ICC, I have seen that, as in the past century, a terrible law still seems to hold true: war, the ruthless readiness to use military force, to use military power for power politics, regularly begets massive and grievous crimes of all kinds.

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