The Mistakes ICTY and the ICC of the Nuremberg War Crimes Trials - Term Paper Example

The Mistakes ICTY And The ICC Of The Nuremberg War Crimes Trials To what extent have the practices of the ICTY and the ICC repeated the mistakes of the Nuremberg war crimes trials? It is agreeable that war crimes demean human dignity and result in calamitous social and economic destructions that cause much anguish and suffering to humanity. The world history is marked by several instances of war crimes such as the Rwandan genocide, war crimes in Yugoslavia and Germany among others. Since war crimes have serious and disastrous economic and social consequences, the international community and national governments have devised ways of preventing or punishing them in order to promote national and international peace and security, both in the short and long term. Among other ways, war crimes trials are one of the methods that have been used to punish the perpetrators of war crimes in a bid to provide justice to the victims, as well as ensuring that the perpetrators “pay” for their crimes. War crimes trials are defined as trials of individuals that are charged with criminal violation of the customs and laws of war and international law principles. The practice of war crime trials started after the First World War when some of the German leaders were tried by a court in Germany for the crimes that they committed during World War I. After the Second World War I, war crime trials referred to the trials of Japanese and German leaders in courts that the Allied nations had established. One of the most notable and important of these trials were held in Nuremberg, Germany, in what later came to famously be referred as the Nuremberg war crime trials. The Nuremberg war crimes trials were held under two legal instruments authority: The London Agreement which had been signed by the USSR, France, United States, and Great Britain in London in August 1945; and Law No. 10 which was promulgated in December 1945 by the Allied Control Council in Berlin, Germany. The Nuremberg war crimes trials of 1945-1946 were also known as the International Military Tribunal (IMT). These trials put in the trial the most prominent German leaders who were still surviving for their crimes against humanity. Apart from the primary trials, the Nuremberg trials had other twelve secondary trials that were conducted between 1946 and 1949. The first forty years after the Nuremberg war crimes trials, the world witnessed a period of slow progress in the development of the international criminal law. However, it is agreeable that in recent years, the international criminal law has developed tremendously. To a greater extent, it has been argued that the Nuremberg war crimes trials formed a fundamental basis upon which the international criminal law and courts were developed. These trials established that the whole humanity would be guarded by the international legal shield and that prominent persons including the head of states would be held criminally responsible if they commit crimes against humanity. There is a common ground among many international legal practitioners and scholars that the right of humanitarian intervention that is aimed at putting the end to crimes against humanity gradually emerged from the principles of Nuremberg and affirmed by the United Nations. After the Nuremberg trials, there were evident inadequacies and mistakes that were committed during the trials. Also, the awareness of the inadequacy of the law and the need for something to be done to enforce new war crime trials emerged. There was the evident failure by the international community to develop the international criminal law that was binding in 1946; the UN committees that were charged with this responsibility were slow in developing statutes to try perpetrators of the crimes against humanity. The slow development of these laws led to the flourishing of international crimes. It is estimated that about 170 million civilians were subjected to crimes against humanity in the twentieth century and some of these crimes were committed after the formation of the UN. Ethnic cleansing in the former Yugoslavia and the Rwanda genocide led to the international community to take actions towards the development of the international criminal law that would better guard against the commission of crimes against humanity, thereby fostering peace and security. The statutes for the International Criminal Tribunal for Yugoslavia (ICTY) helped in the speedy development of the same ad hoc tribunal to deal with crimes against humanity and genocide in Rwanda. These happenings heightened the need to create a permanent international criminal court that would form a critical component of a just world. After several years of struggle and work, the International Criminal Court with jurisdiction to try war crimes, Crimes against Humanity, and genocide became a reality and came into force on July 1, 2002. ICTY and ICC have tried several persons for crimes against humanity. However, some critics have argued that the practices of ICTY and the ICC repeated the mistakes of the Nuremberg war crimes trials. It is against this criticism that this paper will seek to find out the extent to which their practices have repeated the mistakes of the Nuremberg war crimes trials. It is important to first at the mistakes of the Nuremberg war crimes trials in order to evaluate how the practices of ICTY and ICC repeated them. The Nuremberg trials violated fundamental principles of justice. This is because the victorious Allies acted as the executioner, judge, and prosecutor of the German leaders accused of crimes against humanity. What was clear during these trials is that the charges were created especially for the occasion, and were only applied to the accused. In a further violation of the basic principles of justice, the Germans accused of crimes against humanity were not in a position to effectively defend against the charges that the Allied powers had fronted against them. It became apparent that the Nuremberg trials were organized for political reasons and not to dispense impartial justice as the fundamental of justice demands. It is reported that the British alternate Judge to the Nuremberg Tribunal, Sir Norman Birkett, had explained in a private letter that the trial was only in the form of judicial process but its main importance was political. The significant role of the Jewish in organizing the trial further demonstrated the largely political nature of the trial. Another mistake in the Nuremberg war crimes trials was that of the double standard. The fundamental principles of justice demand that the legal decisions made in any court should not only be fair, impartial, and just, but should also be deemed to be so. Even the legal proceedings should adhere to this basic principle. The allied governments greatly violated the international law during the Nuremberg trials, especially how they treated the military prisoners and the German defendants. Impartiality is measured by the standard of justice rather than vengeance. At the trials, the standard of justice only applied to the victims and not to the defendants. Injustice during the trial was also evidenced by the fact that the four Allied powers whose judges sat in the judgment were guilty of the crimes that they were accusing German leaders of. For example, the USSR had attacked Finland in December 1939 in what literally amounted to crimes against humanity. Also, while the Allied prosecutors charged the German leaders with “crime against peace” in planning the German invasion against Norway in 1940, France and Britain were guilty of the similar crime in preparing the invasion of Norway before Germany prepared the invasion. This explains why the Charter that created the Nuremberg Tribunal did not have the definition of the term “aggression”. The double standard of the Nuremberg Tribunal was condemned widely; it was pointed out that while France and Britain had supported the USSR expulsion from the League of Nations in 1939 for its invasion of Finland, they cooperated with USSR six years later as respected equals at the Nuremberg trials to charge German leaders for crimes against humanity. In addition, the problem of evidence has been cited as one of the mistakes of the Nuremberg war crimes trials. The victorious Allies scoured Germany thoroughly for any paper that could be used in incrimination of the defeated German regime. The ransacking of a German as a nation was unprecedented. The victorious Allies searched for the official government papers, secret documents, numerous private business and individuals’ documents. Injustice in this respect is evident by selective publication of evidence that was most incriminating and embarrassing. Refusal by the Allied prosecutors to allow defense attorneys to make their own selections of the evidence definitely amount to injustice. Injustice is further compounded by the fact that the Allies prosecutors ensured that the evidence that exonerates the defendants and incriminates the Allies disappeared; they confiscated and concealed all the documents that the defense attorneys specifically requested. Besides, contrary to the principles of justice, the Tribunal Charter permitted the use of evidence that is normally inadmissible. Article 19 of the Charter stated that the Tribunal should not be bound by evidence’s technical rules and that would admit any kind of evidence that would be deemed of probative value. Moreover, dubious testimony was the hallmark mistake of the Nuremberg trials. It has been argued that most of the evidence presented at Nuremberg trials is what can be termed as “survivor testimony.” Legal and history scholars acknowledge that such testimony is defective and may lead to the travesty of justice. Many of the testimonies at the Nuremberg trials were later found to be inaccurate as the dates and locations mentioned were found not to pass the requisite appraisal. Some of the testimonies that were provided were found to be grossly exaggerated and obviously fabricated thus rendering them unbelievable. So, to what extent have the practices of the ICTY and the ICC repeated some or all of the aforementioned mistakes of the Nuremberg war crimes trials? As has been noted, Nuremberg trials greatly contributed to the development of international criminal law and the formation of ICTY and the ICC. Just like the Nuremberg trials, the ICTY adopted practices that led to its isolation as an international court. ICTY repeated the mistake of attempting to dispense “political justice” rather than legal justice as the fundamental principles of justice demand. To a significant extent, ICTY was viewed as political in nature just like the Nuremberg Tribunal was viewed. While it is agreeable that the court needs political mechanisms that transcend national boundaries in order to obtain institutional cooperation needed in trying the accused, it was improper to try and seek political ends in the trials. In the Balkans, ICTY was viewed as a political animal that was created to achieve political goals. This was evident after the conviction of Tihomor Blaskic, a Croatian General, in 2000 where thousands of Croatian citizens demonstrated outside the United States embassy in Zagreb. The perception of the political nature of ICTY was also evidenced by the condemnations and threats against ICTY which emanated from Belgrade and the prosecutors being denied entry into some former Yugoslav states. The political nature of the Tribunal perception was informed by the concerns that were expressed by the citizens of the former Yugoslavia that the Tribunal did not contact in-country professional. Also, there were concerns that the Tribunal had the selectivity of its targets, practiced sealed indictments, and the length of trials and detention also raised eyebrows. All these factors, among others, made Bosnian-Serbs believe that ICTY was a political body that was an instrument of the West rather than being an independent judicial institution. The mistake of double standards was also evident in the ICTY as it was in the Nuremberg trials. The Dayton Accords that brought the Bosnia war to the end was in itself a political compromise that led to double standards in the administration of justice in the ICTY. The accord left many of the crimes against humanity perpetrators in power and numerous victims homeless. The question that arises is why did the Tribunal not prosecute all the perpetrators especially those in political power? This was clearly a double standard as most of the perpetrators of the crimes were seen to have won the war and remained in power because most of the victims did not have the way of returning to their ancestral villages and homes after the war. The ICC was formed to be a permanent international criminal court to try war crimes, the crime against humanity, and genocide. The process of its formation began back in 1948 when the UN General Assembly made a resolution reciting that as the international community is being developed, there was an increasing need for the international judicial organ that would try crimes under the international law. Since it was formed, the ICC has made notable efforts towards trying the perpetrators of crimes against humanity. However, it has been accused of repeating the mistakes that were committed in the Nuremberg trials. Most of its critics, especially from Africa have argued that the ICC is political in nature. The ICC has been accused of focusing more on Africa rather than on other parts of the world. While the ICC is said to have received over 2,000 communications on crimes against humanity from different parts of the world, its investigations have only been conducted in Africa. The view that it is not seen to try perpetrators of crimes against humanity and war crimes from the Western countries has led to a perception that it only seeks to pursue political goals, at national and international level. In particular, it has been accused of furthering unequal power relations and to further punish poorer nations. Furthermore, ICC has been seen to repeat the mistake of double standards in its trials. Just like in the Nuremberg Tribunal, the ICC fails to comprehensively investigate its crimes cases, leaving out some of the people who are perceived to have perpetrated crimes against humanity. In some quotas, the ICC is seen as seeking vengeance rather than justice. The same accusation of selective and incriminating evidence that were laid against the Nuremberg Tribunal has been fronted against the ICC. Its investigations are viewed as that which promotes the Western form of retributive justice and devalues other mechanisms that can holistically promote justice. The standards applied by the ICC have been considered by some political players and academic as working against the possibility of justice which is peace-sensitive. The perceived use of “foreigners” in most of its process is a repeat of the mistake of the Nuremberg war crimes trials where the prosecutors and judges were from the Allied countries. In conclusion, it is evidently clear that the international criminal law and its institutions have developed gradually to the level that it is at the moment. The slow process of developing comprehensive and stronger international criminal law and institutions in the past was seen as the reason why war crimes, crimes against humanity and some instances of genocide were witnessed after 1946, despite the commitment by the international community to ensure that they do not occur. As has been noted, the Nuremberg war crimes trials formed the basis upon which international criminal law was subsequently developed. However, some of its mistakes are still notable with the modern international criminal law and courts. Its mistakes included political justice, double standards, the problem of evidence, and dubious testimony. Political justice and double standards are the mistakes that still dominate the ICTY and the ICC. Finally, while the ICTY and the ICC have avoided many of the mistakes of the Nuremberg trials, they have repeated some of the mistakes to a considerable extent that cannot be ignored if at all they are to gain enhanced legitimacy. Bibliography Ginsburgs G, The Nuremberg Trial and International Law, Dordrecht: M. Nijhoff, 2004 Jackson R, The Influence of the Nuremberg Trial on International Criminal Law Retrieved from http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-related-to-robert-h-jackson/the-influence-of-the-nuremberg-trial-on-international-criminal-law/ Overy R, The Nuremberg Trials: International Law in the Making, Cambridge University Press, 2010. Sands P, From Nuremberg to the Hague: The Future of International Criminal Justice, Cambridge University Press, 2008 Wald P “The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court” Journal of Law & Policy, 87(5), 87-129 Read More