International Courts/International Law
There are 3 international courts. They all meet in The Hague, in the Netherlands. They
will all have a growing role in our lives as the global economy marches on.
The first international court of consequence opened its doors for business on March 13,
1946 in the town of Nuremberg, Germany. As early as December 1942 the English
cabinet had held discussions regarding the appropriate punishment for Nazi leaders
once they were caught. Churchill proposed summary execution (no trial), but was
talked out of it by U.S. officials later in the war. In 1943, Stalin proposed that 50,000 to
100,000 German staff officers simply be executed summarily, but this time Churchill
was opposed as these were line officers doing as they were told, but that the higher
ranking officials should be tried. In the end, interestingly, it was the Soviets who
pushed for a post-war judicial trial. A plan for such a trial was drafted by Secretary of
War Henry Stimson in April of 1945 and the new U.S. President Truman agreed. There
were discussions regarding this matter at the Yalta and Potsdam conferences, and
again London. On August 8, 1945 the London Charter was established which, among
other things, created an International Military Tribunal. This tribunal was given the
power by the U.S., France, England and the Soviet Union (the victors) to prosecute
German and Japanese officials for war crimes and crimes against humanity. The
Soviets wanted the trials of the Germans to take place in Berlin, but Nuremberg was
chosen as a symbolic locate for several reasons:
l. 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
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trials there had the symbolic value of dominance and ascendency.
3. Nuremberg was the center of the early Nazi movement (after the Munich Putch,
Hitler came to Nuremberg to re-start his movement) and it was the site of many
Nazi rallys.
4. Finally pragmatic, as Nuremberg had one of the few standing courthouses left in
all of Germany
There was a compromise however as the International Military Tribunal opened initial
proceedings in Berlin on October 18, 1945, and then moved proceedings to
Nuremberg. The initial hearing resulted in the indictment of 24 major war criminals and
6 criminal organizations. The Nuremberg proceedings began in November of 1945.
One individual managed to commit suicide before the trials began and another was
found medically unfit, so the Nuremberg Trials as they are known in the popular press
involved 22 cases. 19 of the men were found guilty and 2 were acquitted. 12 were
hung (on 10/16/46), 3 got life, 4 got between 10 and 20 years, and one (Herman
Goring) committed suicide the day before the hangings were to be carried out. What is
often overlooked is that over the course of the ensuing 3 years, some 200 others were
also tried in Nuremberg as war criminals, and another 1,600 were tried under traditional
channels of military justice.
The trial and execution German leaders raised serious legal problems regarding crime
and criminal law. I would suggest that the Nuremberg trials were little more than a
veneer for vengeance – Victor’s Justice. There was no judicial basis for the
proceedings whatsoever. It was used as a civilized means of killing our enemies. We
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soothed our conscience that we proceeded legally before killing rather than simply
killing in cold blood. Some of the legal problems:
l. The International Military Tribunal operated without legal precedent, as it was formed
by the victors to punish the vanquished. If Germany had won, one can assume that the
German military system would have charged U.S. and British leaders with similar
offenses.
2. The trials were military trials, not civilian trials, and they did not follow civilian law.
3. The International Military Tribunal served as a source of new law (legislative) as we
as prosecutor, judge and jury (judicial), and executioner (executive). It did not adhere
to the democratic ideals of separation of powers/balance of powers
4. The International Military Tribunal created law after the fact, that is, for acts that
occurred before the law was stated. The is ex post facto law, which violated the
principle of legality as found in nullum crimen sine lege.
5. The Nuremberg trials violated German sovereignty.
6. The war crime trials found persons guilty of acts committed while carrying out the
orders of the superiors. There was not intent per se, but rather obedience. This is
knows as the Superior Order defense. Is a soldier guilty of a war crime or a crime
against humanity if they kill another human being on orders from a superior officer? A
soldier is trained to kill and must obey an order from a superior officer or is subject to
disciplinary action through a court martial would could result in their execution. A
soldier is thus put into a Catch-22 situation. If they obey the order and are
subsequently captured, they could face execution as a war criminal. If they soldier
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refuses to obey the initial order, they could be court marshaled as executed by their
own troops. The Nuremberg defendants raised the Superior Order defense, but the
military tribunal ruled that a superior order does not relieve a soldier of legal
responsibility under international law if a legal and moral choice was possible. But, how
does a soldier know if an order is legal, and how does legality enter in? It was legal to
kill Jews in Hitler=s Germany. It was legal to kill Native American=s in the U.S. An
assumption was made in Nuremberg that individuals have an innate sense of what is
right and legal (that transcends learning and conditioning), but from a psychological
point of view, a soldier is conditioned to obey, without question. These matters were
simply never address by the Nuremberg court and frankly remain a point of contention
within the War Crimes Tribunals to this day.
The Nuremberg Trials were based on the somewhat tenuous notion of international
law, not on the traditional concept of state sovereignty. The law that was applied was
done so in an ex post facto context. The defendants did not need to possess mens
rea. The Nuremberg trials procedurally violated basic principles of Western criminal
law. Substantively, the men did despicable things, but the entire Nuremberg affair were
equally despicable in a procedural context, and the West substituted power for
principle, a sanctimonious fraud undertaken to suit the passion and clamor of the times.
It was not much more than a high-grade lynching party (paraphrased from the
comments of U.S. Supreme Court Justices Harlan Stone and William Douglas).
Nuremberg was a mask for retribution. It was merely a case of victors justice - victor=s
justice is an attempt by the victor to institute a scheme of justice by which the actions,
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policies, and participants of the losing side may be judged and punished with a veneer
of propriety. Some have called it camouflaged retribution.
Interestingly, while Nuremberg attempted to establish the fact that a Arule of law@
should always prevail, the failure of the global community to respond to all war
crime/crimes against peace/crimes against humanity violations suggests a decidedly
uneven distribution of justice and the rule of law. Until all that violate international law
are brought before some kind of international tribunal, it is a mockery, a case of victor=s
justice. In a similar vein, the fact that international justice is frequently not pursued
when aggressors are leading powerful states also highlights the hypocrisy of it all. In a
more positive tone, in the aftermath of the Nuremberg trials, the United Nations
(created 10/24/45) began to discuss the need to establish some aspects of international
law. As a result of the Nuremberg trials, several international conventions were
forthcoming:
l. Genocide Convention (1948)
2. Universal Declaration of Human Rights (1948)
3. Convention on the Abolition of the Statute of Limitation on War Crime and Crimes
Against Humanity (1968)
4. The Geneva Convention on the Laws and Customs of War (1949)
In addition in the aftermath of the Nurenberg trials, the United Nations also began to
discuss the need to create some kind of permanent international tribunal. The idea of a
world court and international law in general was first hammered out by Hugo Grotius in
1625 in his book, De Jure Belli ac Pacis. He noted then, as we note to this day, that
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international law is custom, tradition and common consent rather than hard and
definitive substantive code. Secondly, as we also noted today, he was concerned
about the fact that a world court would lack any mechanism to enforce its rulings.
Despite these problems, the United Nations moved forward, drawing upon the
experiences of the League of Nations and the looming Nuremberg situation, and
established the International Court of Justice, or what we call the World Court in 1945.
Two footnote thoughts:
1. The League of Nations had created a Court of International Justice that met
from 1921 to 1939, but it was truly toothless.
2. In the end, perhaps the Nuremberg Trials served as a somewhat flawed but
important first step forward in extending principles of law and concepts of
equity and justice into a new era, a globalized era and international era.
Social progress tends to come in asymmetric stops and starts with much
injustice along the way. As much as it pains me to say it, for I see so much
that was wrong with the Nuremberg Trials, in sum, they clearly did serve as
the scaffolding upon which international law of all kinds is being built. There
was a silver lining.
The International Court of Justice (the World Court) first set in 1946, and as noted a
moment ago, meets in The Hague, in the Netherlands. It is financed by the United
Nations and is the judicial arm of that entity. There are 15 judges elected to 9 year
terms by the U.N. General Assembly. These judges act as independent magistrates
and do not represent their governments. Judges deliberate in secret, and render their
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verdicts in open court, with majority opinions and dissenting opinions coming forth. The
court’s judgment is final – there are no appeals. Since 1946, the World Court has dealt
with roughly
cases, delivered
judgements on disputes, and issued roughly
advisory opinions. The U.S. does have a representative on the bench
[NOTE – U.S. 1790s parallel of Aglobalization@ in that era (commerce between Virginia
and Vermont - tobacco for maple syrup) and globalization today. Some sovereignty
concerns, then and now (Jefferson not like the idea of a U.S. federal Supreme Court)]
In some ways, it is still largely a symbolic and ceremonial entity, and is used primarily to
sway public opinion and allow for international diplomatic positioning and posturing,
though there is evidence that the Court is gaining in stature of late. The World Court,
like other courts, is an evolving entity that seems poised to become a force of some
significance in the 21st century.
The real problem is to try and establish/clarify/articulate points of international law. At
this juncture, the World court defines international law as principles reflected in
international conventions, international customs, general principles of law recognized by
civilized nations, judicial decisions, and writing of the most highly qualified experts on
international law. It has been dealing with this matter since 1947 when, again in the
aftermath of the Nuremberg trials, the U.N. began to try and codify AOffenses Against
Peace and Security of Mankind.@ The original draft was completed in 1954, and it has
been modified and debated, and debated and modified ever since. As of this writing,
there are now 22 recognized international crimes. While originally focusing on war
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crimes and crimes against humanity, the list has been expanded to include other things
now:
genocide
war crimes
aggression (crimes against peace)
crimes against humanity
unlawful use of weapons/unlawful emplacement of weapons
racial discrimination and apartheid
slavery and related crimes
torture
unlawful medical experimentation
piracy
aircraft hijacking
threat and use of force against internationally protected persons
taking of civilian hostages
drug offenses
international traffic in obscene publications
destruction and/or theft of national treasures
environmental protection
theft of nuclear materials
unlawful use of the mails
interference with submarine cables
falsification and counterfeiting
bribery of foreign public officials
I do wish to divert the discussion for a moment and raise really two issues:
1. Should those involved in these kind of ventures be charged with a crime?
Should those involved be shielded from liability by the law of their land? It was
legal, after all, to kill Jews in Germany in the WWII era. It was legal to kill
Indians in America for many years. It was legal to kill Moslems in the Philippines
in the 1970s. How can you charge someone with a Acrime@ when they are
engaging in activities that are substantively legal within the sovereign realm in
which they reside? This is one of the damning fundamental question facing
those who wish to develop the concept of international law and a world court.
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2.
The other major problem is the enforcement problem. If international law is ever
to be enforced, it will ultimately be enforced by a nation, at least until there is an
enforcement arm of the UN. The major difference between domestic criminal
law and international law is that in the case of international law there is no
enforcement machinery. On the other hand, that is not totally true. The great
achilles heel of domestic courts is that they lack enforcement powers. Nine old
men told U.S. President Nixon to turn over the Watergate tapes in 1975. What
were they going to do if he didn=t...walk down Pennsylvania Ave., push their way
past the 2 million soldiers that Nixon had at his command and get the tapes. In
the end, Nixon turned over the tapes because of the traditional power of the
court, the traditional acceptance by the public of their power. The ultimate power
of the court is their ability to get people to do what they say. To do so, they must
be cognizant of public opinion and not rule outside, what Barnard calls, the zone
of indifference. Constant ruling outside that zone will erode public confidence in
the court, and their rulings will go unheeded.
Back to the list of 22 international crimes and the World Court - the more serious
crimes (war crimes, crimes against peace, crimes against humanity) have been
assigned to the International Criminal Court, or what we in slang we call the War
Crimes Tribunal. Despite this auspicious list of 22 offenses, in a practical sense, the
World Court deals with legal disputes between member states, and provides advisory
opinions on legal question submitted by the U.N. General Assembly, as well as other
international organs and agencies.
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In addition to the World Court which deals with criminal matters, there are two other
international courts that also meet in the Hague, the most visible being the entity we
just made reference to, International Criminal Court (ICC), or what is generally known
as the War Crimes Tribunal. Substantively, the International Criminal Court is really
more of the child of the Nuremberg Trials than the World Court. The ICC handles war
crime-type cases in situations where the accused is a national or state official and the
suspects’ national court is not willing/unable to prosecute. The ICC looks primarily at
crimes against peace, crimes against humanity (which includes genocide), and war
crimes, and considers them in the broad context of crimes committed by the state:
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. Examples - American bombing of Dresden during WWII; German V1
and V2 rocket attacks; American atomic bomb attacks on Japan.
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. Examples Soviet invasion of Afghanistan; American invasion of Panama; Nazi invasion of
Poland; Iraq invasion of Kuwait, Japanese invasion of China.
Crime Against Humanity - Acts that violate concepts of natural law and natural
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rights of human beings as human beings. Genocide (the deliberate
extermination of one class, race, or religious group by another) is listed
separately, but is often considered a component of this category. Examples Serbian purge of Bosnia; Jewish holocaust of WWII; Turkish genocide of
Armenians in WWI; Iraq purge of Kurds; American internment of Japanese
during WWII; Rwanda Hutu and Tutsi genocides, Rape of Nanking, the
Holodomor.
Prosecution of war crimes can be handled by the World Court (the International Court
of Justice), but it is the ICC that generally takes these war crime-type cases. Do note
that:
a. The ICC can deal with other violations, though generally only if they are part of a
larger war crimes picture.
b. There have been a number of temporary war crimes tribunals that have
examined war crimes over the years (Nuremberg court that convened after
WWII; Tokyo Trials also after WWII; Yugoslavia due to expire 2010; Rowanda
suppose to expire 2010 but will likely continue).
1. International Criminal Tribunal - Yugoslavia: Established in May of
1993, its work should be done by 2010. This is an entity of the United
Nations. It has examined allegations of genocide, crimes against
humanity, and crimes against laws and customs of war with respect to
the Yugoslavian situation in the 1990s. As of this writing, there have
been 161 indictments, 100 trials completed, 26 underway, and the rest
in various stages. There are 16 judges and a staff of some 1,200
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people involved with this Court.
2. International Criminal Tribunal - Rwanda: Established in November of
1994, its work is scheduled to be done by 2010 but will probably have to
be extended. This is an entity of the United Nations. It has examined
allegations of genocide, crimes against humanity, and crimes against
laws and customs of war with respect to the Hutu and Tutsi uprisings in
Rwanda in the 1990s. There have been 21 trials to date, 11 trials are
underway and 14 cases in earlier stages of processing.
Seeing the need for a permanent court of this nature, the U.N. began to formulate such
a body in the 1990s, and utilized the Rome Statute of the International Criminal Court
as the founding treaty. The Rome treaty was formally approved by the U.N. in July of
l998 by a vote of 120 to 7 (7 opponents were China, Iraq, Yemen, Qatar, Libya, Israel,
U.S.), and was ratified by enough nations (60) in April of 2002 so that it officially began
operations July 1, 2002 and court began in March of 2003. As of
, 105 countries
have formally signed on as participating members of the court (99 of which are active
members of the Assembly of State Parties as of
), and 41 have not formally signed
but have ratified the founding Rome treaty. The International Criminal Court is now a
free standing body with no formal organizational or financial ties to the United Nations.
The Assembly of State Parties (nations who are a party of this court) serves as the
overall governing body. Each country receives one vote.
There are 18 judges who serve 9 year terms, 6 assigned to pre-trial matters, 6 to the
trial component, and 6 to the appellate division. They are elected to the Court by the
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Assembly of State Parties, as is the Chief Prosecutor who also serves one, 9-year term.
The current Chief Prosecutor is Serge Brammertz, Belgian, who is serving a term from
2007 - 2016. There is a staff of 485 persons and the headquarters are in The Hague,
but they can hold trial anywhere in the world. A trust fund has been established to
make reparations to victims and families. As of July 2007 there were 7 trails underway
involving 25 persons. To date, the Court has dealt with situations in four countries,
Darfur/Sudan, Central African Republic, North Uganda, Democratic Republic of the
Congo.
This body is struggling with definitions - what is a war crime, a crime against peace, a
crime against humanity. Another issue is where individuals can be arrested, and in a
broader sense, where can they be tried if they don=t come to this court. The latest
notion is the Princeton Principle of Universal Jurisdiction. No matter where the offense
was committed, fugitives accused of war crimes, crimes against peace and crimes
against humanity should be liable for trial in the courts of the country where they are
found. This is counter of course to the principle of Territorialty. So, former Chilean
Dictator Pinochet, who fled Chile for England, should be able to be arrested and tried in
England for the crimes against humanity that he committed in Chile, or, arrested in
England and turned over to the ICC. He died before the matter could be resolved.
Several footnote thoughts:
1. Obviously it is a crime in the U.S. for adults to engage in sexual activities with
minors, but, the legal principle of extra-territoriality says that American citizens could go
to other countries (Thailand, Cambodia) and engage in sexual activity of this nature
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there. They would face possible legal sanctions in Cambodia or Thailand, but not here
in the U.S. since they committed the offense external to our sovereign territory, ie., if
you are caught speeding in Germany, you could not be charged with speeding in the
United States; if you were caught speeding in Florida you could not be charged with
speeding in Nebraska. All that changed with respect to child sexual abuse in April of
2003 when Congress passed the Protect Act. This Act allows American federal
prosecutors (note – not state but federal) to charge American citizens with sex crimes
against minors committed on foreign soil. The idea is that in reality, no such charges
would ever be filed in Cambodia or Thailand, and that the only way to start to shut down
this substantively despicable international child sex trade (involving 1.8 million children
include 1 million in Southeast Asia), is to get the developed nations to adjust its longstanding procedural extra-territoriality position, and start prosecuting in this extraterritoriality fashion – to have the laws of a country apply outside of its borders.
a. Should the laws of a country apply outside of its borders?
b. If so, which laws should apply in an extra-territorial sense?
c. Should the extra-territoriality principle apply only to citizens (ie., the U.S. can
prosecute its own citizens who engage in child sexual abuse outside of U.S.
borders) or can non-citizens be prosecuted as well (a Canadian can be
prosecuted in the U.S. for child sexual abuse while in Thailand). The
Princeton Principle of Universal Jurisdiction says the latter.
I don’t believe this will stand up in Court. To date, only one person has been charged
under the child sexual abuse provision (30 year imprisonment max), and it is a
particularly grievous case (the Feds were waiting to charge someone who is really bad
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so that they could use it as a test case – Michael Clark who was arrested in 2003 (age
69 at the time). He allegedly traveled overseas regularly to have sex with young boys in
Southeast Asia (USA Today, 9/25/03). One conviction to date under this act, but that
was for the possession of virtual child porn (Dwight Whorley of West Virginia).
Appellate Court upheld convictions (12/08), but did so in a way that was an apparent
contradiction with a previous Supreme Court ruling and thus it will likely not stand.
Again, per above, I ask what other acts should also come under this extra-territoriality
exemption? In this case, Congress ignored procedural standards of basic Constitution
law/Western law due to the substantive stench of the behavior.
2. President Clinton signed a treaty enjoining the U.S. with the ICC in 1998, but Bush
withdrew U.S. support and sought to undercut its power over U.S. citizens. The United
States have been reluctant to sign on as a member-state of the International Criminal
Court because many of its actions would be called into question. Consider the case of
Vietnam where from 1965 to 1974 the U.S. forces killed at least half a million
Vietnamese citizens. In response a non-governmental International War Crimes
Tribunal (sometimes called the Russell Tribunal) was convened in Copenhagen in 1966
and again in 1967 in Stockholm. The Tribunal concluded that the U.S. had engaged in
serious acts of aggression against Vietnam in violation of international law and that the
U.S. was guilty of deliberate and systematic bombardment of civilian targets. The U.S.,
of course, continued to function with complete impunity, as it did in Panama and
Granada and in Iraq. The development of a true international court has been hindered
because leading states engage in bullying immunity tactics and operate above the law
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simply because they can. The failure of the international community to respond equally
to all contemporary violations of international law reveals that the notion of international
criminal law has yet to fully evolve. If geo-political forces continue to determine which
offenders will be prosecuted, then international criminal law is destined to be a
substantive fantasy. Until all that violate the law are brought before it, the international
community must face the realization that global victimization cannot elicit
commensurate universal jurisprudence (see generally, L. Friedman AWar Crimes,@ in
S. H. Kadish (ed) Encyclopedia of Crime and Justice, New York, Free Press, 1983, p.
1645).
3. In a similar vein, I should point out that the U.S. is a vocal opponent of the ICC due
ostensibly to sovereignty concerns. But that is just a guise or a ruse, floated about to
obscure the real issue. The fundamental concern is that the U.S. wishes to move and
function as it pleases; it wishes to avoid international scrutiny; it wishes to operate with
impunity and immunity. In other words, we want to do what we want to do without other
nations telling us we can’t. We want to act with no repercussions or liabilities. The
paradox, the hypocrisy in this scenario is that we at the same time reserve the right to
tell other nations what they can and cannot do, and threaten to respond/prosecute
accordingly, with rather significant repercussions and liabilities forthcoming from us
(Nuremberg Trials, Tokyo Trial, Noriega episode, Iraq, Afghanistan, Vietnam, countless
trade embargos and economic sanctions), rather than from an international body.
Since we now have the big stick and are the world power at present, we can operate
above the law, independent of the law. We wish to be a law unto ourselves, to
establish and adjust our own morality and legality as it suits us, without
external/international review. The fact that we simultaneously tout and flaunt the rule of
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law and yet still hold ourselves up as an ensign to all nations reeks with the stench, with
an extreme stench, of self-righteous certitude and hypocrisy, and is extremely
troublesome.
4. One of the interesting features that has arisen from the defense teams that have
appeared in the War Crimes Tribunal has been the use of creative language in the
court, and the argument that their behavior was not criminal per se, that they did not kill,
that they merely neutralized. There has been the growth of what psychologists and
sociologists call euphemistic labeling - activities are sanitized via clean terminology.
We talk of Afinal solutions,@ Aneutralizing someone,@ Aresponding with extreme
prejudice (the CIA term for killing someone),@ we tend to de-humanize the whole
experience and give it some kind of, again, sanitized label which allows us to become
morally disengaged from the event, it allows us to put some moral distance between
ourselves and act. What we are talking about is death, destruction, atrocious acts of
incommunicable horror. By using clean terms, the deplorable acts do not seem quite
as atrocious, and we then successfully disengage ourselves, morally and ethically, from
the horrific acts. Another very common psychological response to charges arising in
the ICC has been, what psychologists call, advantageous comparison, which uses
events from the past to make the current event seem morally justifiable.
In addition to these points, I would also reinforces the Synanon experience, as also
articulated by Bandura… AThe overall findings from research (is that human atrocities)
require conducive social conditions rather than monstrous people to produce heinous
deeds. Given appropriate social conditions, decent, ordinary people can be led to do
extraordinarily cruel things.@ (see, Albert Bandura AMechanisms of Moral
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Disengagement,@ in W. Reich (ed) Origins of Terrorism, Cambridge MA: Cambridge
University Press, 1990, pp. 161-191. This cite on page182).
The third and last international court is the Permanent Court of Arbitration. This is the
oldest institution for international dispute resolution. It is not tied to the United Nations.
It was established in 1899 during the Hague Peace Conference. The Court sits in the
Hague, and there are now 107 countries part of this Convention. The PCA is not a
Acourt@ in the conventional understanding of that term, but an administrative
organization with the object of having means available to assist in international
arbitration and commissions of inquiry and conciliation. The PCA provides services for
the resolution of disputes involving various combinations of states, state entities,
intergovernmental organizations, and private parties. The PCA administers cases
arising out of international treaties (including bilateral and multilateral investment
treaties), disputes over territorial and maritime boundaries, sovereignty, human rights,
international investment (investor-state arbitrations), and matters concerning
international and regional trade. Hearings are rarely open to the public and sometimes
even the decision itself is kept confidential at the request of the parties. The focus
tends to be in the realm of civil law.
As with the other World Courts, this court too has no power to enforce their rulings
other than the willingness of those involved to do as they have been so ordered;
societal expectation, public pressure and acquiescence, very much akin to U.S. courts
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as they marched to power in the last 200 years; is a desire in the international business
community to bring some stability into the global markets so they are pushing for this as
well, even if they lose a case or two in the short run, they see a decided long-term
advantage.
(see generally Day and Reilly, Journal of CJ Education, 10/0)
(International Courts1.doc
395 folder)
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