Eichmann was charged with violating the Israeli Nazi
Collaborators Law of 1950
Eichmann defense:
1. Illegally kidnapped (territoriality challenge)
2. Superior order defense (mens rae challenge)
3. Territorial jurisdiction (extra-territoriality)
a. Intrapersonal jurisdiction
b. Protective jurisdiction
c. Passive Personality Principle
d. Piracy Principle
e. Princeton Principle on Universal Jurisdiction
(Erga Omnes; Jus Cogens)
4. Ex post facto concerns
5. Israeli government opposition to the death penalty
6. Administrative legality (not used)
7. Change the venue (too late)
Eichmann was found guilty of crimes against the
Jewish people, and was executed in May of 1962.
The London Charter (signed 8/45) established the
International Military Tribunal – U.S., France, England
and the Soviet Union gave themselves the power to
prosecute German officials for war crimes.
Soviet Union wanted the trials to be held in Berlin, but
the others wanted the trial to be held in Nuremberg.
A compromise was reached. The International Military
Tribunal opened in Berlin (10/45), but then moved to
Nuremberg thereafter (11/45)
1. The first anti-Jewish laws were passed there, the 1934
Nuremberg Laws.
2. Nuremberg was the historic center/the heart really of
Germany and holding the trials there had the
symbolic value of dominance and ascendency.
3. Nuremberg was the center of the early Nazi
movement (after the Munich Putsch, Hitler came to
Nuremberg to re-start his movement) and it was the
site of many Nazi rally's.
4. Nuremberg had one of the few standing courthouses
left in Germany after World War II (pragmatic reality –
no place else to hold it!)
Initially hearing in Berlin resulted in the indictment of 24
major war criminals and 6 criminal organizations. Of
those 24 individuals who were indicted:
- One committed suicide before the trial began
- One was found medically unfit to stand trial
- Three were acquitted
- 19 were found guilty:
a. 12 were sentenced to death (10 eventually hung)
b. 3 received life sentences
c. 4 received prison sentences between 10 & 20 years
What of the two who were sentenced to death but not hung?
a. Herman Goring committed suicide the day before he was
to be hung.
b. Martin Bormann was tried and convicted in absentia. It
was not known until 1972 that he had committed
suicide in May of 1945.
Over the course of the ensuing 3 years, 175 others were also
tried in Nuremberg as war criminals in further proceedings,
and another 1,600 were tried for lessor offenses utilizing
existing military disciplinary protocols. There were in total,
13 different trial settings in Nuremberg that lasted until
October of 1949.
l. Victor’s “Justice” (gave the pre-disposed executions
the sanctimonious veneer of legality)
2. Military trials, but civilians tried
3. Violated the separation of powers principle
4. Ex post facto concerns
5. Violated German sovereignty
6. Superior order defense (no individual mens rae)
7. Administrative legality (not used)
The Nuremberg “trials” were pre-disposed hearings driven by a
desire for revenge under the stench of a self-righteous guise of
judicial impartiality.
Consider further these ironies:
1. Prosecutors from England put the case together regarding
German forced colonialization.
2. Prosecutors from France put the case together regarding
German’s theft of art.
3. Prosecutors from Russia put the case together regarding
German crimes against humanity.
4. These trials were paid for by America, with its long history of
Jim Crow laws and genocidal treatment of Native Americans.
Quintessential hypocrisy
The International Military Tribunal for the Far East (the
“Tokyo Trials”) convened 4/46 and adjourned 12/48. A panel
of 12 judges from 9 nations were appointed. The Trials
covered activities from 9/31 to 8/45. In the primary trial, 28
military leader were charged with war crimes. Of those, 7
were hung, 16 received life sentences, 2 received lighter
sentences, 2 died during the trial and 1 was declared insane.
More than 5,700 were charged in other proceedings.
China held 13 post-WWII trials resulting in 149 executions.
The Soviet Union held a number of post-WWII trials, but the
details and outcomes were never publicized.
1. Egyptian/Hittite agreement of 1259 (Eternal
Treaty; Silver Treaty; Treaty of Kadesh)
2. Treaty of Mesilim; Lagash Umma Treaty (2550
BC?)
3. Treaty of Windsor of 1386
4. Hugo Grotius, De Jure Belli ac Pacis (1625)
International law is not “law” in the strict sense but
rather custom and tradition. It’s evolving norms,
standards and guidelines generally accepted by/shared
by the international community in a common consent
context (Erga Omnes).
International courts will lack mechanisms to enforce
their rulings. Treaties, protocols and conventions can
be written with cooperation and adherence as the goal,
but there is nothing to ensure or force compliance.
Drawing on the writings of Grotius, the looming
Nuremberg and Tokyo trials, and the League of
Nations experience, the United Nations
established the International Court of Justice
(first met 4/46).
Footnote thought – Permanent Court of
International Justice was active from 1922 to
1940 and handled 29 cases. Was formally
dissolved 4/48.
The Father of International Law, Grotius wrote his 3volume work, On the Law of War and Peace (1628)
primarily while in prison in his home country of the
Netherlands, arrested for his attempt to calm the civil
and religious wars that racked his country during his
entire lifetime
Dickinson was a Professor at Cambridge University.
Familiar with Grotius’ work, he began to champion the
idea of international law at the outset of WWI. He
actively advocated and promoted the establishment of
a cooperative league of nations.
First met in April of 1946
Located in The Hague
Is an entity of the United Nations
There are 15 judges who serve 9-year terms
Handles legal disputes between member states of the
United Nations, provides advisory options to the
United Nations and to other international entities, and
has jurisdiction over 22 international crimes (though by
agreement, the ICC takes on the four war crime-type
cases).
1. aggression (crime against peace)
2. war crimes
3. crimes against humanity
4. genocide
5. unlawful use of weapons/unlawful emplacement of weapons
6. racial discrimination and apartheid
7. slavery and related crimes
8. torture
9. unlawful medical experimentation
10. piracy
11. aircraft hijacking
12. threat and use of force against internationally protected persons
13. taking of civilian hostages
14. drug offenses
15. international traffic in obscene publications
16. destruction and/or theft of national treasures
17. environmental protection
18. theft of nuclear materials
19. unlawful use of the mails
20. interference with submarine cables
21. falsification and counterfeiting
22. bribery of foreign public officials
Proposed in 1872 after the brutal Franco-Prussian War
Concept discussed again after WWI
Concept reviewed again after WWII in the aftermath of the
Nuremberg and Tokyo Trials
United Nations entities began a review of the matter in the
late 1940s
United Nations again reviews the matter in the 1990s after
the Yugoslavian and Rwandan genocides
The U.N.’s International Law Commission is tasked in 1994
to develop a proposal to establish an international war
crimes tribunal, and to look to the recently U.N. created war
crime tribunals in Rwanda and Yugoslavia
ICTY – Established in May of 1993 by the Untied
Nations to examine war crimes perpetrated during
the Yugoslavian conflict in the early 1990s. The
court met for 24 years and handed down 161
indictments.
ICTR – Established in November of 1994 by the
United Nations to examine war crimes perpetrated
during the Rwandan conflict in 1994. The court met
for 21 years and handed down 95 indictments
The International Law Commission presents a draft proposal to the
United Nations calling for the creation of the International
Criminal Court that would handle car crime-type cases in late
1994.
That draft went thru many iterations, and the final proposal was
adopted by the United Nations General Assembly at a meeting in
Rome in by a vote of 120 – 7 in July of 1998 (the 7 opponents were
China, Libya, Yemen, Qatar, Libya, Israel, United States)
The proposal was ratified by enough nations (60) in April of 2002
and the court official began operations later that year.
First met in July of 2002
Located in The Hague
It is a free-standing entity (not tied to the U.N.)
123 countries are participating members
There are 18 judges who serve 9-year terms
Shares jurisdiction with the ICJ over war crimes, crimes
against peace/crimes of aggression, crimes against
humanity and genocide but by agreement, the ICC
takes these war crime-type cases as they are too time
consuming for the ICJ
War crimes - Acts of violence against civilian populations or prisoners of war
by military personnel in violation of the laws and customs of war, not justified by
military necessity; Acts involving weapons or military methods of unusual
cruelty or devastation. Violence is the nature of warfare, though it is generally
recognized that violence should be limited to military personnel and military
targets.
Crime Against Peace/Crimes of Aggression - Acts based on the distinction
between offensive and defensive warfare. Offensive wars are illegal, but wars
in defense of one’s country and sovereignty are considered legal.
Crime Against Humanity - Acts that violate concepts of natural law and natural
rights of human beings as human beings.
Genocide - The deliberate extermination of one class, race, or religious group b
another.
The ICC is too methodical, too slow
The IIC is toothless (has no enforcement powers)
The ICC infringes on territorial sovereignty (Jus Cogens
challenges)
The latter is a bogus argument used to save face by the
powerful nations who wish to move with impunity – to
do as they please with no consequences. The United
States, which is not a member state of the ICC, is both
the quintessential case in point, and the quintessential
hypocrite in this context.
The United Nations has no kinetic enforcement
powers of any consequence. What it does have
is something even stronger – it is a setting for
aggregate decision making which builds on the
principle of convergence theory.
Collective decision-making yields intrinsic
adherence and cooperation and that velvet
glove is far stronger than the iron fist in the
long-run.
Many in the U.S. cling to a strict territoriality or
sovereignty principle. With the passage of the Protect
Act of 2003, that notion was undercut as this law
leaned in the direction of Universal Jurisdiction in both
an Erga Omnes and Jus Cognes context.
American citizens who engage in sexual activities with
minors on foreign soil may be prosecuted in American
courts for this activity, even if the activity was not
illegal in the country where the activity took place.
First met in 1899
Located in The Hague
It is a free-standing entity (not tied to the U.N.)
122 countries are participating members
Assists in resolving disputes between countries,
intergovernmental organizations and private
companies on an international level. Has great
power today
American Diversive Jurisdiction analogy
Facilitated globalization and greatly impacts us
Supranational court established in 1957
Located in Strasbourg, France
It is an entity of the Council of Europe
47 countries are participating members
As its name implies, it deals with violations of
human rights by government officials in any of
the 47 Council of Europe member nations
Principle established with the Alien Tort Claims Act of 1789
Citizens and foreign residents of the U.S. may sue, in U.S. civil courts,
those who break the law of nations or a treaty of the United States.
Originally designed to go after pirates who were breaking American
laws on the “high seas”
Ancillary acts passed since allows U.S. residents (or their surviving
family) who have been harmed overseas by non-U.S. citizens to
obtain damages from the said non-U.S. perpetrators
Known in slang as the Filartiga Principle. Filartiga was tortured and
killed in Paraguay. One of those involved in the killing came to the
U.S. and was successful sued by the Filartiga family members who
had moved to the U.S.
The trick is actually getting the money, as the perpetrators typically
flee the country and it is too hard to attach a lien on assets that are
abroad
Established in 1947
An entity of the United Nations
Develops and refines international protocols,
agreements, and Conventions (ie., Genocide
Convention; Geneva Convention)
Monitors the 560 international agreements and
conventions that are currently “out there”
Refers violations to the U.N. Security Council,
the ICJ, the ICC and other appropriate entities
1. Predisposed Cross-National Tribunals (Nuremberg, Tokyo, Eichmann) – a legal proceeding with judges
from countries whose citizens have been violated/harmed by citizens from other countries.
2. Predisposed Internal/National Tribunals or Truth Commissions (Argentina, Chile, South Africa) – a legal
proceeding with judges from tribes or groups of people in a country who were violated/harmed by other
tribes or groups of people from that same country.
3. Impartial International/Supranational Tribunals – a legal proceeding with impartial 3rd party judges
who are external to the dispute such as:
a. International Criminal Court (the War Crimes Tribunal)
b. International Court of Justice (the World Court)
c. Permanent Court of Arbitration (civil-based entity)
d. European Court of Human Rights (supranational court)
e. International Criminal Tribunal - Rwanda; International Criminal Tribunal - Yugoslavia
4. Hybrid Tribunals (Burundi, Cambodia, East Timor, Lebanon, Sierra Leone) – a legal proceeding with a
mixture of allegedly impartial, 3rd party judges who are external to the dispute, and internal judges (from
groups that have been violated/harmed by those on trial).
International tribunals advance two bi-polar punishment
perspectives:
1. Strict accountability (micro justice) – hold individuals
accountable/punish individuals who were responsible; few are
captured and brought to justice, it is extremely expensive, often
descends into a pre-determined Victor’s Justice proceeding
2. Social reconciliation (macro justice) – heal the torn social
fabric and get on with life leaving the hate behind; no attempt to
hold people accountable to any degree of significance, even
basic restitution not mandated; they functioned in the end with
impunity/they got away with it, they just say they are sorry and
that is it
There are obviously pros and cons of each international tribunal
punishment perspective. Neither model meets the needs of all
concerned/all who were harmed. Regardless of the outcome,
there will be disappointment.
There are no tidy endings following mass atrocities, following
genocides, in the aftermath of war. We all like tidy endings, we
like closure and accountability and the opportunity to move on
in an un-fettered context. Hollywood certainly plays to these
sentiments, but there are no tidy endings in real (vs. reel) life
when it comes to these matters.
There is a great lesson that we can take from Eva Mozes Kor and Farid
Ahmend and so many others. As injustices are done to us in our lives
– great and small, we should respond as did they. There are no tidy
endings, just acknowledge, forgive and forget, and move on, get on
with it, let it be.
I have certainly had wrong things done to me over the years, as have
you all and you wil have many more crooked barbs and arrows yet
coming your way. The relevant issue of concern here is we need to
achieve, accomplish, and make contributions of significance. A soul
cankered soul, replete with hate and revenge diminishes the ability to
achieve and accomplish. A cankered soul diminishes life – that is the
theme of Victor Hugo’s masterpiece, Les Miserables. Do not become a
miserable, unforgiving cankered Javert. Let it be, move forward with
dogged persistence, get on with it, and make contributions of
significance wherever you are.