Current Concerns: Seventy-five years ago, in November 1945, the trial of Germany’s main war criminals began in an international court in Nuremberg specially set up for this purpose by the allied victorious powers. How is the establishment of this court by the victorious powers of the Second World War to be assessed from a political and legal perspective? What has the Court of Justice achieved? What has it not achieved? What were and are the consequences of the fact that the victorious powers themselves were not put on trial for their war crimes?
Alfred de Zayas: Without a doubt the Nuremberg Trials constituted a major step in developing what we know as international criminal law, and is the predecessor of ad hoc criminal tribunals like the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and hybrid tribunals like the Sierra Leone Tribunal etc.
Whether we like it or not, judicial/political spectacles after armed conflicts are here to stay. The question is whether such trails can be rendered more “objective” and more in conformity with fundamental principles of justice and the rule of law, like nulla poena sine lege, in dubio pro reo, or whether they will be a mere continuation of wars by other means, and will contribute to facilitate the establishment of a “new order” based on a skewed historical narrative in which the vanquished people are made to bear responsibility for the outbreak of the conflict and all the ensuing atrocities. Alas, the concept of “collective guilt” has become prevalent, tacitly accepted not only by the victors, but by the vanquished as well.
Prevention of conflicts more important than tribunals ex post facto
Personally, I am troubled by the focus on the Nuremberg Principles and on international criminal tribunals in general, as if such tribunals were a genuine solution to international criminal behaviour. We know that tribunals and “punishment” are always ex post facto. Would it not be far more important to focus on preventing conflicts? If we really want to prevent war crimes, we must actively promote peace as a human right and devise better mechanisms of mediation of disputes before they explode into local, regional or international conflicts. I do not believe in the concept of “deterrence”, because experience shows that none of the accused in Nuremberg or before the ICTY or ICTR ever thought that they would ever find themselves on the dock. When it comes to war, the name of the game is to win, by whatever means, and if one loses, it really is of much less importance that a given individual is tried and punished, it is a banal anticlimax. Such punishment only satisfies the old practice of the lex talionis – an eye for an eye – but it does nothing to redress the injustices or to rehabilitate the victims.
Throughout history the principle Vae victis – woe to the defeated has taken different forms. Vercingetorix, the leader of the Gauls, was defeated by Julius Caesar, taken to Rome, incarcerated, publicly humiliated and strangled. Many wars have been accompanied and ended with enormous massacres, e.g. the destruction orgies of Genghis Khan in China, Persia, Russia. Timur (Tamerlane) massacred millions in India, Persia, Syria, Azerbaijan. The British massacred many in India and China, especially during and after the Opium wars.
“We must never forget …”
The idea of conducting judicial proceedings at the end of a war is a particularly Anglo-French invention, incorporated into the Treaties of Versailles and Sèvres. But at the end of WW II Stalin was hardly interested in conducting trials and he proposed killing 50,000 German politicians and military and leave it at that. Churchill, however, persuaded him of the advantages of conducting a “proper” criminal trial, which was formalised in the London Agreement of 8 August 1945, two days after the nuclear annihilation of Hiroshima and one day before the destruction of Nagasaki. Yeas ago I delivered a lecture on the Nuremberg Trials at the Freie Universität Berlin, which was subsequently published in the bestselling book edited by Professor Alexander Demandt, “Macht und Recht, Grosse Prozesse der Geschichte”, (Beck’sche Reihe, Munich, 1996, pp. 311–340). I focused on the inspiring opening statement by the American Prosecutor, Robert Jackson, and endeavoured to make a reality-check in the light of what has since transpired. (https://www.youtube.com/watch?v=OU-d9esunwc; https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal/.) Jackson said:
“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” (IMT, vol. 2, p. 101) and also: “while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”(IMT, vol. 2, p. 154)
Greatest “forced population transfer” in history
Surely the Nuremberg Tribunal would have had greater credibility if among the judges there had been genuinely neutral jurists drawn from countries not directly involved in the war. Surely its credibility would have been enhanced if it had been given jurisdiction over all war crimes and crimes against humanity committed during World War II – but Allied crimes were never prosecuted, and the tu quoque (you also) defence was explicitly rejected by the Tribunal. It is a historical irony that while the Nazis were being convicted of the crime of “deportation” because of expelling Poles out of their homes in West Prussia and into central Poland and expelling Frenchmen out of Alsace-Lorraine, the greatest “forced population transfer” in history was in progress, a result of decisions taken by the US, UK and the Soviet Union at the Conferences of Teheran, Yalta and Potsdam. Some 14 million ethnic Germans were brutally expelled from their homelands in East Prussia, Pomerania, Silesia, East Brandenburg, Bohemia, Moravia, Hungary, Yugoslavia – with an estimated two million deaths among the German expellees.
The expulsions were purely racist, since the only criterion was being German – not even whether one was a Nazi. Even German-Jews were subjected to expulsion and confiscation. These expulsions are the subject of my book “Nemesis at Potsdam” (Routledge, with a preface by Eisenhower’s political advisor, Ambassador Robert Murphy; German version “Die Nemesis von Potsdam”, Herbig, Munich 2005). It is estimated that 600,000 German civilians in hundreds of cities and villages died under carpet bombing by Anglo-American planes; at least four million German women were raped by Soviet, French, American, and British forces. Two million civilians were deported to forced labour in Russia, what the Yalta Conference declared to be “reparations in kind”. The Soviets, on orders of Marshall Stalin, executed in 1940 some 20,000 Polish officers at Katyn and elsewhere – all of the above in total impunity.
Personal liability for crimes instead of collective guilt
In 1950, the United Nations incorporated the criminal law principles of the Nuremberg Trials into international law as the Nuremberg Principles. What political and legal significance did this have? When and where over the past 70 years has the United Nations also applied these principles?
The Nuremberg Principles belong to international law “doctrine” – which, however, is applied in a selective manner. If anything, the Nuremberg Principles have been “weaponised” to denounce the “crimes” of geopolitical and geo-economic rivals. Every law school teaches the Nuremberg Principles; countless General Assembly and Security Council resolutions refer to them, every politician pays lip service to them, but the bottom line is that the principles are applied only against defeated enemies or against ousted political leaders. Alas, the principles have not prevented the commission of the crime of aggression, war crimes, crimes against humanity and genocide since 1950.
If Nuremberg meant something positive, or should be regarded as an ethical development of international law, then because of the establishment of the principle of individual penal liability. After the Nuremberg trials politicians and military are not able to hide behind the “Act of State” doctrine or behind the “superior orders” defence. As a corollary, if there is personal liability for crimes, then there should not be “collective guilt” of a whole people. On this basis, people like Goering, Frank and Keitel were tried and convicted. And yet, the entire German population was also held co-responsible, to this day, and many Germans are stigmatised 75 years after Nuremberg. Yet, if individual penal liability should now be the rule, shouldn’t persons like George W. Bush, Tony Blair, Donald Rumsfeld, Nicholas Sarkozy (because of Libya!), Mohammad bin Salman al Saud (think of Yemen!) be also tried and convicted of the crimes of aggression and war crimes?
After the Second World War, a culture of violence and impunity became well-established
Time and again after the Second World War, states have violated the Nuremberg Principles without being prosecuted by the United Nations. What were the consequences of this and what are the consequences to this day?
Alas, there have been no consequences for the criminals. China did not suffer when it invaded Tibet in 1950. The Soviet Union did not suffer when it invaded Hungary in 1956 and Czechoslovakia in 1968. Israel suffered no consequences when it aggressed its neighbours several times, i.a. Lebanon, Syria, Jordan, Egypt. Israel occupied Palestine expelled Palestinians, ignored to this day Security Council Resolution 242 of 22 November 1967 and even the Advisory Opinion of the International Court of Justice of 9 July 2004. Turkey did not suffer when it invaded the island of Cyprus in 1974, occupied 37% of its territory and expelled 200,000 Greek Cypriots whose ancestors had lived there for 5000 years. Turkey suffered nothing when it repeatedly massacred the Kurds and when it continues to commit aggression against Syria. Azerbaijan did not suffer when it aggressed the Armenians of Nagorno Karabagh with the help of Turkey and Syrian mercenaries and violated the Armenian’s right of self-determination. Nigeria did not suffer when it committed genocide on the Igbos and Ogonis of Biafra during the 1967-70 war. Sri Lanka did not suffer when it committed crimes against humanity in massacring the Tamils. India does not suffer because of its occupation and continued massacres against the Kashmiris.
The United States has a particularly bad record. Two Democratic presidents, John F. Kennedy and Lyndon B. Johnson, are responsible for the Vietnam War. The aggressions against Grenada and Nicaragua are on Republican Ronald Reagan’s conscience. The Republican George H.W. Bush pushed “regime change” in Panama, killing some 600 civilians and staged the 1991 war against Iraq with at least a hundred thousand deaths among the overwhelmed Iraqis. The Democrat Bill Clinton carried out the aggressions in the Balkans, especially the NATO attacks against Yugoslavia, introduced the use of depleted uranium weapons, while the mainstream media applauded and actively helped with disinformation and fake news. The Republican George W. Bush is responsible for the genocidal aggression against Afghanistan in 2001 and Iraq in 2003. The Democrat Barak Obama has his hands full of blood because of Libya and Syria, the “regime changes” in Ukraine and a constant drone war against “terrorists”, which countless civilians have fallen victims to. There is a well-established culture of violence and impunity.
Wars of aggression are the supreme international crime…
Many hoped that the Rome Statute and the establishment of the ICC would enable something like a tangible implementation of the Nuremberg principles. To what extent have these hopes been fulfilled?
Personally, I never had any illusions about the ICC and understood it as a tool of the powerful against the weak, as an convenient structure to consolidate political gains, impose the badge of ignominy on the targeted countries and individuals, and formalize war propaganda and “fake news” into the “New Normal” and ultimately into “fake history”.
True enough, the hopes of many have been dashed, and yet many still harbour hopes that in some utopian future justice will prevail and all criminals, without distinction, will be tried and punishment. Yet, hitherto only Africans have been indicted by the ICC, whereas the really big criminals, those who have started aggressive wars and bear responsibility for torture in Guantanamo, “extraordinary renditions”, secret prisons, engaged in war crimes and crimes against humanity – like Bülent Ecevit, George W. Bush, Tony Blair, Donald Rumsfeld, Recep Erdogan, Ilham Alijev, Mohammed bin Salman, Ariel Sharon, Ehud Barak, Benjamin Netanyahu – have thus far enjoyed impunity.
The genocide against the Yazidis, the bombardment of civilians in Yemen by Saudi Arabia, the massacres committed by Indian soldiers against Kashmiris, the Israeli crimes against the Palestinian in the occupied territories and Gaza – all await official investigation and prosecution. The ICC will only then acquire credibility when it prosecutes not only Africans, but also Americans, Brits, Turks, Saudis, Indians, Israelis, etc.
What would be necessary to ensure that war crimes committed by all states can be prosecuted in the future?
To this day we dream of a rules-based international order, in which international norms will be applied uniformly and not selectively. No international treaty or tribunal can guarantee that, because it depends on the honesty of politicians, on the political will of governments, on the conscious decision by those who hold power to apply the rules to themselves, on an educated and well-informed civil society that calls their own governments to account, on a responsible media that takes its role as “watchdog” seriously. As an American citizen I have condemned the crimes committed by the US in Vietnam, Panama, Afghanistan, Iraq, Libya, Syria, etc. – and joined many others like Noam Chomsky, Francis Boyle, John Quigley, Dan Kovalik, Stephen Kinzer, Jeffrey Sachs, William Blum in saying “not in our name”. But the system is such that the voice of civil society is ignored without consequences.
The world has not evolved much since the Peloponnesian Wars between Athens and Sparta. As we know from Thucydides’ historical masterpiece – the fundamental rule “might makes right” prevails to our days, and, as the Athenian general bluntly told the Melians “The strong do as they want and the weak suffer as they must.” (see the Melian dialogue)
In the seven decades since the end of the Second World War, the crime of aggression has enjoyed general impunity, notwithstanding the Nuremberg Trial and its Judgment. Indeed, 23 out of the 24 Nazi accused were indicted for the crime against peace and 8 were convicted pursuant to article 6(a) of the Statute which defines the crime as: “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”. In this sense the judgment of the tribunal formulated a great truth. Indeed, “[t]o initiate a war of aggression […] is […] the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”1
Alas, these noble words were not followed by international action, and no subsequent trial of other aggressors has taken place. The application of the Nuremberg precedent on the crime of aggression could have been tested in hundreds of cases. Perhaps the most blatant case was the assault on Iraq in March 2003 by the 43 countries that made up the ‘coalition of the willing’. This was nothing less than a concerted revolt against international law, a frontal attack against the United Nations Charter and the Nuremberg Principles. Even Secretary-General Kofi Annan called this geopolitically motivated war an ‘illegal war’.2
International conflicts can only be resolved through states working collaboratively together
As I earlier said, punishment is always ex post facto. What the world really needs is effective prevention, and this requires international solidarity and multilateralism. We need to silence the drums of war, stop war propaganda and sable-ratting. Our concern must be to stop the arms race, to prohibit the sale of arms to countries in conflict, to pursue a concerted policy of disarmament, especially nuclear disarmament, in order to advance the right to development and the achievement of the Sustainable Development Goals.
What is most necessary today is for states to work collaboratively together on resolving the root causes of local, regional and international conflict, often emerging from the unrepresentative nature of governments, great injustices and inequalities prevailing in the world, the race for natural resources and the asymmetries of trade relations. Over the past seventy years many armed conflicts and several genocidal wars had their origin in the denial of the right of internal or external self-determination. There are still many indigenous peoples, non-self-governing peoples and peoples living under occupation who have a legitimate claim to self-determination, including the Mapuches of Chile, the Saharaouis of Western Sahara, the Kurds of Turkey and Iraq, the Igbos and Ogonis of Nigeria, the Tamils of Sri Lanka, the Catalans of Spain, the Kashmiris, the Palestinians – the list is very long. It is time for the United Nations to proactively support the realisation of self-determination as a conflict-prevention strategy, requiring mediation and, where appropriate, United Nations organised and monitored referenda.
It is tempting to compare the Potsdam Conference and the Nuremberg Trials with the Peace of Westphalia of 24 October 1648, which ended the 30 Years’ War, during which millions of civilians were massacred and war crimes and crimes against humanity were committed on a very large scale. Article 2 of the Treaties of Münster and Osnabrück provided for a general amnesty, because it was felt, that Europe had already suffered too much and the war should not be perpetuated by means of political show trials, which would only keep the hatreds alive. The text of Article 2 reads in part: “There shall be on the one side and the other a perpetual oblivion, amnesty, or pardon of all that has been committed since the beginning of these troubles...in such a manner, that no body, under any pretext whatsoever, shall practice any acts of hostility, entertain any enmity, or cause any trouble to each other …”3
Professor de Zayas, thank you very much for the interview. •
1 (1948) 22 IMT 411, at p. 427.
2 ‘Iraq war illegal, says Annan’, BBC News, 16 September 2004.
3 https://pages.uoregon.edu/dluebke/301ModernEurope/Treaty%20of%20Westphalia%20%5BExcerpts%5D.pdf; Alfred de Zayas, “Westphalia, Peace of” in Rudolf Bernhardt, Encyclopedia of Public International Law, Elsevier, Amsterdam, Vol. IV, 2000, pp. 1465-1469
* Prof. Dr. iur. et phil. Alfred de Zayas, UN Independent Expert on the Promotion of a Democratic and Equitable International Order (2012–2018).
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