MuseumDESCRIPTION:
U.S. Holocaust Memorial Museum historian, Edna Friedberg, and Case Western Reserve University law professor Michael Scharf discuss the meaning of justice in the context of Nuremberg, the international tribunals for Yugoslavia and Rwanda, and the International Criminal Court with regard to Darfur.
TRANSCRIPT:
NARRATOR: Welcome to Voices on Genocide Prevention, a podcasting service of the United States Holocaust Memorial Museum. Your host is Jerry Fowler, Director of the Museum’s Committee on Conscience.
JERRY FOWLER: Sixty years ago, top Nazis were on trial at Nuremberg. To discuss the significance and legacy of Nuremberg, we have two guests today. Edna Friedberg is a historian and my colleague here at the United States Holocaust Memorial Museum. She recently curated a special anniversary exhibition entitled, “The Nuremberg Trials: What is Justice.” It will be at the Museum throughout this anniversary year. Michael Scharf is professor of law and Director of the Frederick K. Cox International Law Center at Case Western University Law School in Cleveland. Last year, he was nominated for the Nobel Peace Prize by the Chief Prosecutor of the Special Court of Sierra Leone. Edna and Michael, welcome to the program.
EDNA FRIEDBERG: Happy to be here.
MICHAEL SCHARF: Good to be on Jerry.
JERRY FOWLER: Edna, let me begin with you, and take us back sixty years ago. What was happening in Nuremberg?
EDNA FRIEDBERG: I would like to place the Nuremberg Trials in context, to remember the chaotic situation in which the prosecutors established this court was really a challenge. I think one of the most important things to remember is that it was never assumed that there would be a trial following the war. In fact, during the summer of 1945, the allied authorities met in London and engaged in heated negotiations about whether or not to hold a trial, and if they were to hold one, what type of trial it would be. In particular, the British and the Soviets were arguing very strongly in favor of summary executions of Nazi perpetrators, and that is an understandable impulse and certainly would have satisfied many around the world had that happened, but instead, in August of 1945, they signed a charter establishing an International Military Tribunal with jurisdiction to try these crimes.
JERRY FOWLER: The international part of it was that it was being presided over by the major powers who ultimately won the war, right?
EDNA FRIEDBERG: Exactly. It was presided over by representatives of the victorious allied nations: the United States, Great Britain, France, and the Soviet Union.
JERRY FOWLER: Let me ask you this Michael. We look back, and of course, I think it is widely accepted that the Nazis committed horrendous crimes, but the law was not necessarily that clear at the time, was it?
MICHAEL SCHARF: No, not at all Jerry. The war crimes were clear. Those had been codified in the 1907 Hague Convention, in the 1929 Geneva Conventions, which have now been updated in the 1949 Geneva Conventions, but crimes against humanity was a new category, and it was not codified until 1949 with the Genocide Convention, and much later with the Statutes of the Yugoslavia Tribunal and the Rwanda Tribunal, and the permanent International Criminal Court. The crime of aggression was the most controversial of all the crimes. It is a crime that has only been prosecuted at Nuremberg; never in the sixty years since. None of the modern tribunals have that in their statute, except for, interestingly, the Iraqi High Tribunal which is possibly going to prosecute Saddam Hussein for that crime.
JERRY FOWLER: For the crime of aggression?
MICHAEL SCHARF: That is correct.
JERRY FOWLER: Against Iranians in the 1980s?
MICHAEL SCHARF: No, most particularly for the invasion of Kuwait.
JERRY FOWLER: Right. This is a little bit of a detour, but would they be able to prosecute the United States for aggression against Iraq?
MICHAEL SCHARF: The Tribunal only has jurisdiction over the former Bathist regime, so much like the Nuremberg Tribunal that only had jurisdiction over the Nazis; it is a very narrowly focused court.
JERRY FOWLER: Right. Let me go back to you Edna. One thing that we often hear about, and actually the title of your exhibition is the “Nuremberg Trials,” suggesting that there was more than one trial at Nuremberg.
EDNA FRIEDBERG: That is correct. The Nuremberg Trial is a sort of shorthand that we use commonly to refer to the initial International Military Tribunal which was held from 1945 to 1946, but in fact, there were actually twelve additional trials held in Nuremberg, known as the subsequent Nuremberg Trials, and those were held or conducted by American authorities alone. They ranged from prosecutions of those involved with the Einsatzgruppen, the mobile killing units to Nazis involved with medical experiments; the range of crimes.
JERRY FOWLER: Who were the defendants at the trial that was happening sixty years ago?
EDNA FRIEDBERG: Those were actually the leadership; they were selected from a cross section of German economic, diplomatic, political, and military leadership. Twenty-four defendants were selected to represent this cross section.
JERRY FOWLER: In the exhibition that you created—it is in one room, in what is called the Wexner Learning Center—and one wall is dominated by a huge picture of a number of female clerks sitting amidst 80,000 sheets of paper. Why did you choose that image to be so dominant in that room?
EDNA FRIEDBERG: That image is a really powerful one, and it is available on the Museum’s web site. It is a color image of these female clerks really wading through almost knee-high paper. They are in the mimeograph room—the copy room for the Tribunal. I chose that image for a few reasons. One is that the prosecutors at the Nuremberg Trial—the initial trial—made a conscious decision to base their case primarily on documents created and written by the Germans themselves. They made this decision in order to avoid any future accusations of relying too heavily on possibly bias witness testimony. Additionally, since this was an International Tribunal, the court conducted itself in four official languages, and every piece of evidence, every transcript, everything, had to be copied and translated into these four languages. I also felt that this image drives home the fact that it was an incredible logistical challenge to pull off this trial.
MICHAEL SCHARF: Can I interject Jerry? Robert Jackson, the Chief Prosecutor at Nuremberg famously said to the President of the United States, on the eve of the Nuremberg Trial that “we must establish incredible events by credible evidence,” and this has also been something that the other tribunals have wrestled with. Interestingly, in the Saddam trial, which was largely discredited in its early months as witnesses were testifying and then being cross-examined, it was the moment when twenty-five documents were entered into evidence that public opinion started to come around and say, “Yes, this in fact is a legitimate trial and Saddam Hussein is actually going to be proven guilty based on the strength of his own documents like the Nazis were at Nuremberg.”
JERRY FOWLER: Is it the case that if you have a trial where you do not have incriminating documents produced by the defendant themselves that it is difficult to establish their guilt?
MICHAEL SCHARF: I think it becomes very difficult, and we have these mega-trials where you have hundreds of witnesses testifying and each one can be cross-examined for a possible bias. When you have people who are victims of ethnic cleansing or genocide, there is going to be a natural bias that can come out, and that is why the modern tribunals have had to rely on such things as command responsibility as a way of convicting because there is not the document trail that they had at Nuremberg to show actual responsibility.
JERRY FOWLER: When you say, “command responsibility,” what do you mean by that?
MICHAEL SCHARF: It is a legal theory that say that a commander, a president, or a military general is responsible for the acts of his subordinates if he knew of even should have known of the atrocities but failed to either prevent them or punish the perpetrator, and therefore, it is a negligence standard, and it allows convictions of people without any actual evidence that they gave orders.
JERRY FOWLER: If there is no evidence that they gave orders that would cast out on their culpability I would guess?
MICHAEL SCHARF: The legal theory again is that because they are in command and in affective control of their subordinates, then they have a duty to either prevent these atrocities or to punish the perpetrators, and if they fail in that duty, they can be held responsible even without the actual evidence linking them to the crimes.
JERRY FOWLER: Edna, the subtitle of this exhibition is the question: “What is Justice?” What led you to pick that title?
EDNA FRIEDBERG: I chose that actually to encourage visitors to think about the limits of justice and the limits of law. When trying to see justice in a situation after genocide; a post-genocide situation, justice, obviously, is bigger than any court, than any verdict, punishment, or sentence that could be handed down. It can run the gamut from feelings of revenge, desire for revenge, to cash reparations, to monetary reparations to a victim. I think that trials only tell part of the story. I also wanted it to talk about the limits of any kind of justice. The word “justice” implies making something just, making it right and there is no way to right a wrong on a scale of that magnitude, so it is about limits and the legacy of these trials.
JERRY FOWLER: I wonder, Michael, as we look at what has been in last ten or fifteen years, a number of high profile international trials of Slobodan Milosevic, for example, of people who committed the Rwanda genocide or were responsible for the Rwanda genocide who are being tried in Arusha, Tanzania; are these trials achieving justice? Or in what sense are they achieving justice?
MICHAEL SCHARF: First, let me back up because, “what is justice,” I think people come at different approaches. When Edna was talking about the history of Nuremberg and she mentioned that originally they did not even want to have a trial, it was not until Roosevelt died in 1945 and Truman was convinced by his Secretary of War, Henry Stimson that a trial would actually have really powerful real politic benefits for the United States. I do not think they were so interested in justice as they were interested for example delegitimizing the Nazi regime, and then highlighting the atrocities which would then have the world’s attention focused on that, legitimizing the allied conduct during and after the war, including some things that were very controversial like the fire bombing of Dresden and the dropping of bombs on Hiroshima-Nagasaki. Justice can mean many different things in many contexts.
Also, I want to add that there is a myth of Nuremberg, that after the trial, the German people were convinced of the Nazis’ guilt, and that Nuremberg achieved these real politic objectives of the United States and the allies. That is actually not true, and we did not find that out for sure until five years ago when a series of opinion polls that were taken by the United States Department of State from 1947 to 1957 were declassified, and finally released to the public, and what these opinion polls showed was that during the ten years after the Nuremberg Trials, the German people were asked, “Did you think the Nazis were guilty?” and overwhelmingly they said, “No, we don’t think so.” In fact the statistics were eighty-five percent in some polls, up to ninety percent in others. Then they asked, “Do you think the Nuremberg Trial itself was legitimate?” and they said, “No, we thought it was a show trial; it was victors’ justice.” In the immediate aftermath of Nuremberg, it did not actually convince the German people that the Nazis were guilty, and in fact, that did not happen for another generation, and there were all sorts of other causes that had to conspire to change the attitudes in Germany. If you understand that historic lens when you look at the Milosevic trial, you can understand that it did not really convince the Serb people that he was innocent, and in fact, in the early months and years of his trial, his popular opinion went up as he was playing the role of the Serb Perry mason, defending himself in court. At one point in the trial, however, the prosecution submitted a video of the atrocities at Srebrenica showing the responsibility of his subordinates for these genocidal acts, and at that point, his popular opinion plummeted again. I think, however, that we should not have a high expectation that international war crimes trials or domestic war crimes trials will have a positive affect in local populations in the near future, that it may take a generation or two for the historic record of those trials to permeate into the local consciousness.
EDNA FRIEDBERG: Jerry, if I could interject, I think Michael has touched on a number of very important points; one of which is that the goal of trials is also to establish an agreed upon public record often, of what atrocities were actually committed. I do not think that one can actually underestimate the power of that for victims, for survivors of a genocide or another atrocity type situation. To know, to see someone, standing in the dock, facing justice however inadequate the justice may be, and to have the world recognize that this crime actually happened and record it.
JERRY FOWLER: I wonder though, part of what Michael was saying is that in some ways the historic view of peoples’ guilt or lack of guilt, is established by historical processes, and trials almost are secondary to that.
MICHAEL SCHARF: Let me answer that. The Nuremberg Trial may have been secondary. In fact, there is some anecdotal evidence that when the German government decided in the 1960s to have its own domestic trials focusing on the prison camp commanders in the Holocaust, that that was one of the major events that started to bring German public opinion around. For that reason, even advocates of the permanent International Criminal Court will say that an International Tribunal is always a second best approach, only good when the domestic processes are unavailable, because a domestic trial is seen as more powerful and has more significance to the local population than an international trial taking place in the Hague or somewhere far off.
EDNA FRIEDBERG: There is also the practical matter of simply gathering the evidence. The Nuremberg Trial was convened within mere months of the end of the war; it was incredibly fast, and they had nineteen investigative teams scouring Germany, looking for records. Those records are invaluable; you cannot determine how valuable they are to historians today just to have those. It was at the Nuremberg Trial that the first time estimate of six million murdered Jews came forward. That was the first time that evidence was provided of the Auschwitz death machinery. Whatever the limitations of the trial itself, the evidence that it gathered remains and is still available for scholars to use today.
MICHAEL SCHARF: One other interesting tidbit: in Germany, polls have indicated that one of the things that really changed German opinion and cemented it in favor of the Nuremberg Tribunals, two generations later, was a 1970s TV movie called The Holocaust, in which the producers of the movie drew heavily on the actual documents and the judgment of the Nuremberg Tribunal, but they created a fictional historic account that the German people felt was very compelling and moving, and that sort of cemented their popular positive view of Nuremberg, which was different than their parents and grandparents’ view.
JERRY FOWLER: One thing that Michael mentioned a few minutes ago was the idea that international trials are of secondary value compared to domestic trials. Were there domestic trials of Nazis in Germany after the war?
EDNA FRIEDBERG: Yes, there certainly were and in fact, defendants who were acquitted at Nuremberg, at the International Military Tribunal, were subsequently tried by these German so-called De-Nazification Courts.
JERRY FOWLER: Were those Denazification Courts administered by Germans or were they under the occupying authorities?
MICHAEL SCHARF: If I can chime in; the Denazification Process has been highly criticized, and one of the reasons that the German people were not that excited about the whole Nuremberg experience is that even those who were acquitted suffered what we would consider in the United States as double jeopardy. They were retried for the same crime by these local courts that were really not made by neutral people, but by people who really might have had an ax to grind. That process has not really withstood the historic views. It was really again in the 1960s, when they had very neutral judges preside over trials that were focused on really the crimes against humanity and the Holocaust, rather than the crime of aggression which was much more controversial, that the trials in Germany were seen as legitimate and people started to really believe in their verdicts.
EDNA FRIEDBERG: In answer to your question, Jerry, there were multiple types of courts that tried Nazi or Nazi collaborator defendants later. Some were domestic German trials, and some have continued to this day, including denaturalization civil proceedings against suspected Nazis living in the United States today.
JERRY FOWLER: Let us turn now to the present and the future. Michael, you had referred to the permanent International Criminal Court which came into existence in 2002, and now is investigating massive human rights abuses in Darfur and the Democratic Republic of Congo and Uganda. What are the prospects for its ability to provide this amorphous sense of justice in these areas where there have been such huge crimes committed?
MICHAEL SCHARF: First of all, I think the importance of the existence of a permanent International Criminal Court is that it fulfills the ideas of the drafters of the Nuremberg Charter, that there should someday be a permanent Nuremberg. In fact, after Nuremberg, there was hope that ‘Never Again,’ would mean that they would create a permanent international tribunal, and the United Nations started negotiating for one and it took fifty-five years for them to come up with this statute that has now been ratified by over one hundred countries around the world.
JERRY FOWLER: Although the United States is one of the countries that has not been very supportive of the court.
MICHAEL SCHARF: That is right, although the Clinton Administration had signed that statute, not yet giving it to Congress to ratify. When the Bush team came in, the first thing they did was to withdraw the United States signature, however, there may have been a change in attitude in the Bush Administration last year when they decided not to veto an attempt to have the Security Council send the Darfur situation to the International Criminal Court, and through that act, most people think that the United States has lost the ability to claim that the International Criminal Court is an illegitimate institution, since the United States, in fact, is using the International Criminal Court to handle the Darfur situation. Going back, during the period after Nuremberg, ‘Never Again,’ actually turned into again and again. It was a period of impunity. It was a period when United Nations officials said you had a better chance of standing trial for killing one person that 10,000 or 100,000 or even a million. You saw people, like Pol Pot, get away with the killing fields in Cambodia, and in Uganda, and no one ever even talked about prosecuting them. Now, things have changed radically in the last ten years. We have seen the creation of all sorts of United Nations Security Council established tribunals, high bred international tribunals, internationalized domestic tribunals, and now this permanent International Criminal Court. The very fact that it is in existence, and that the Security Council is now sending cases to it, I think shows that we are in a new era of accountability and that the hopes of those who worked at Nuremberg are actually now being fulfilled. Now, on a case by case basis, just how successful the tribunal will be will depend on the political will of the members of the Security Council. Will they, in fact, force the people in the Sudan to turn over evidence and perpetrators to the court? It is the Security Council, now, who is on the line, not the International Criminal Court, because the Security Council sent the case to the court, and their credibility is now at stake.
JERRY FOWLER: Let me just push on that for a second. The Nuremberg Tribunal, obviously, was set up as the war was coming to an end and the defendants were being defeated, but in the Balkans, the creation of a tribunal in some ways was a substitute for actually doing something to end the killing. In Rwanda, the creation of the tribunal was not until after the Security Council had failed to do anything to stop the killing, and in Darfur, the referral to the International Criminal Court in some ways seems to have been a substitute for doing something affective to stop the killing. Doesn’t that kind of diminish the value of so-called accountability if we talk about punishment without actually taking steps to stop the crimes that are being committed?
MICHAEL SCHARF: I would say two things about that Jerry. First of all, yes, when you have to have international trials, that means that the international community failed to prevent atrocities and that the trials are an after-the-fact approach which is obviously not as good as actually preventing or halting the atrocities.
JERRY FOWLER: The trials are being set up while the crimes are being committed, as opposed to stopping the crimes.
MICHAEL SCHARF: I do not agree that it is an alternative though. I think that whether you had the trials set up or not, there was not the political will to send an army in to stop atrocities as they were occurring in either Bosnia or Rwanda, so I do not think you can blame the creation of the tribunals for the failure of the international community to halt atrocities. On the other hand, although there is no systematic way of proving a negative, I do think that the tribunals are starting to have a deterrent value. When you talk to military commanders around the world, they are very conscious of the existence now of these international tribunals, of the International Criminal Court, of the fact that leaders like Charles Taylor, Slobodan Milosevic, Saddam Hussein are now being brought to justice. The hope is that even if the international community is not going to intervene with an army to stop these wars that the idea that people could be held accountable might make the military leaders think twice. For example, when Adolf Hitler was about to invade Poland in 1939, he gave a famous speech to his military commanders who were very weary of what he was asking them to do because he wanted to wage total war and commit all sorts of atrocities. He said, “Don’t worry, who after all remembers the fate of the Armenians,” and he was referring to the fact that during World War I, the Ottoman Empire had killed maybe up to a million Armenians, and no one every tried to prosecute anyone for that. In fact, they were given amnesty in the Treaty of Liaison. Adolf Hitler was saying that they were not going to be prosecuted either. Today’s leaders cannot say that, and the military people under them are much more worried than they would have been in 1939. Hopefully, that will have a deterrent affect.
JERRY FOWLER: We are coming near the end of our time. Let me ask you Edna, for visitors who come to Washington, who come the Holocaust Museum, how long is the special exhibition on Nuremberg going to be available?
EDNA FRIEDBERG: It will be up for another year, until early in 2007, and it is on the second floor of the Museum. I hope they will come and explore.
JERRY FOWLER: Very good. Edna Friedberg is an historian and a colleague of mine at the United States Holocaust Memorial Museum. Michael Scharf is professor of law and Director of the Frederick K. Fox International Law Center at Case Western Reserve University in Cleveland. Edna and Michael, thanks for being with us.
EDNA FRIEDBERG: It was a pleasure. Thank you.
MICHAEL SCHARF: Good talking to you Jerry.
NARRATOR: You have been listening to Voices on Genocide Prevention, a podcasting service of the United States Holocaust Memorial Museum. To learn more about the Museum’s Committee on Conscience, visit our website at www.committeeonconscience.org.
