By Kristen BoyertKristen Boyert is a third year student at Albany Law School pursuing a certificate in International Law. This past summer, she spent five weeks interning in Abidjan, Côte d’Ivoire researching and compiling a report on human rights issues during the 2011 post- electoral crisis for ONG Transparency Justice. She serves as a Senior Editor for both International Law Studies and the Center for Judicial Process.
This essay was prepared for Professor Bonventre’s International Law of War and Crime Seminar, Fall 2012.
We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.
Justice Robert H. Jackson[1]
It is with the best intentions for repair and reconciliation that the Nuremberg Trials took place. The inception of the tribunal intended to repair the wounds so deeply inflicted upon a ravaged region, as well as aid in the prevention of further atrocities. However, the inherent inception of the Nuremberg Trials is based upon the victors, and as critics argue, the jurisdiction of the tribunal is dubious, among other issues.[2]
It is universally accepted—save for a misguided few—that actions taken by the Nazi government and Nazi officials alike rose above the horrors of war to an apex that “shocked the conscience of all civilized peoples . . . .”[3] It also goes without saying that individuals should face the consequences of their actions. The tribunal “manifested the practicability of a fair trial of war crimes in an international tribunal . . . [and] [i]t established important precedents for the development of international law concerning the definition of certain crimes . . . .”[4]
Nevertheless, as George A. Finch and Quincy Wright discuss, the tribunal steps onto unsteady ground with this venture and opens itself to criticism.[5] Both authors describe the notion that no country is without blame.[6] Each has waged war and defended against it.[7] Although the Nuremberg Trials stand as a glimmer of hope for good-intentions towards persecuting wrongdoers, it also leaves questions regarding jurisdiction and sentencing.[8]
In Côte d’Ivoire, the losing presidential candidate, Laurent Gbagbo, was released into the custody of the International Criminal Court and is currently awaiting prosecution.[9]Based on my speaking to Ivorian civilians and reading partisan newspapers, it seems that some harbor distrust towards the international court and a general fear regarding a “victor’s justice” mentality.[10]
In their eyes, the international courts, and their progenies of Nuremberg, stand for “justice for some.”[11] Those who lose a conflict will face the consequences of justice, while those who win inevitably continue to act with impunity and are guarded by the laurels of victory. This continues to hinder the reconciliation process and foster continued violence.
Currently, South African Archbishop Desmond Tutu is calling for Tony Blair and George W. Bush to face the consequences of their actions for the Iraq war at the International Criminal Court.[12] Tutu cites the fictitious justification of weapons of mass destruction in order to invade Iraq.[13]
As Finch discusses, “[w]ar itself is the ultimate legal procedure against disturbers of the international peace, and from time immemorial nations have taken summary action against enemies who have fallen into their hands and who are not punishable according to law.”[14] Although it is an imperfect system, it is still a system. Sometimes the threat of consequences will keep people from actions rising to the level witnessed in Nazi occupied territory.
As Sir Thomas More wrote: “What you cannot turn to good, you must at least make as little bad as you can.”[15] This is the purpose of Nuremberg and its legacy. Perhaps not to exact perfect justice, but to implement a “justice” nonetheless.
[1] Justice Robert H. Jackson, Opening Statement at Nuremberg Trials, (Nov. 21, 1945), available at http://www.pbs.org/wnet/supremecourt/personality/sources_document12.html.
[2] E.g., Kevin R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 Dick. J. Int'l L. 57 (1995)
[8] See Write, supra note 4, at 43 (author states that critics “fall into two classes:” ones who object to the decisions and sentences; and those who view the Tribunal as having no jurisdiction under international law and applying ex post facto law); see also Finch, supra note 3 (author reviews the same criticisms in his article).
[9] World Report 2012: Côte d’Ivoire, Human Rights Watch, available at www.hrw.org/world-report-2012/c-te-d-ivoire (last visited 27 JUL 2012); Country Reports on Human Rights Practices for 2011: Côte d’Ivoire, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dlid=186187, available at http://www.state.gov/documents/organization/186399.pdf (last visited 5 SEP 2012); Ivory Coast pro-Laurent Gbagbo General Dogbo Ble on Trial, BBC.co.UK, Oct. 2, 2012, available at http://www.bbc.co.uk/news/world-africa-19797488(last visited Oct. 4th, 2012).
[10] Albany Law School, Boyert ’13 Tackles Judicial Transparency in Cote d’Ivoire, Student Spotlight, available at http://www.albanylaw.edu/students/spotlight/Pages/Boyert-%2713-Tackles-Judicial-Transparency-in-Cote-d%27Ivoire.aspx[author spent five weeks in Abidjan, Cote d’Ivoire during her summer 2012 break to intern with Transparency Justice and wrote a report on human rights violations].
[11] Id.
[12] CNN Wire Staff, Desmond Tutu says Blair, Bush should be 'made to answer' for Iraq, cnn.com, Sep. 3, 2012, available at http://edition.cnn.com/2012/09/02/world/europe/desmond-tutu-oped/index.html?hpt=iaf_c2(last visited Oct. 4, 2012).
[15] Thomas More, Utopia, Book 1 (1516), available at http://etext.lib.virginia.edu/etcbin/toccer-new2?id=MorUtop.sgm&images=images/modeng&data=/texts/english/modeng/parsed&tag=public&part=all.
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