On May 16, 2011, the Museum held a special event to discuss the legacy of the International Military Tribunal at Nuremberg, how the trials helped shape international law, and their impact on current-day issues of international justice and accountability. The event featured legal experts Ambassador Stephen Rapp and Jonathan Bush and was moderated by Marvin Kalb.
Marvin Kalb: Mr. Ambassador, what were the international expectations as we entered the Nuremberg trials, and looking back upon it what was achieved literally?
Stephen Rapp: Well the expectation was that there would be accountability for these crimes and that the other new thing beyond going after the top leaders, the top surviving leaders which had never been done before, as Jackson said, “The law should not just stop at petty crimes by small men. It should reach the men in great positions who by their concerted actions set in motions evils that leave no home in the world untouched.” But it also was the idea that there was individual criminal responsibility. There had been this attitude that international law only applied to states, and so you could maybe go to the International Court of Justice and get a judgment against the state because it breached the treaty. In this situation they said crimes are committed by real men. They’re not committed by abstract entities, and if you want to enforce international law, you have to punish those responsible for the crimes. And this was a proceeding that Jackson in his opening speech said would seek to condemn the Nazis, not by the evidence of the victors, but by the evidence of the Nazis themselves who had been as he said “meticulous record keepers” and it was possible by their own records to abundantly prove their responsibility for these crimes.
Marvin Kalb: Mr. Rapp, so you’re involved now with a huge responsibility at the State Department and I’m wondering what is the linkage between what we’ve been talking about, Nuremberg and the trials, and your current effort to try to find some way of taking the lessons of Nuremberg and apply them to today’s search against those people responsible for crimes against humanity?
Stephen Rapp: Well we had this period after Nuremberg of the Cold War where it was impossible to hold anyone to account but after the end of the Cold War when we had the atrocities in Yugoslavia and Rwanda, the world, the United Nations Security Council, went back to the Nuremberg precedence and essentially took, for instance, the provisions on crimes against humanity from the Nuremberg Charter on which the Nazis had been charged together with the other crimes, and put them in the statute of the International Criminal Tribunal for Yugoslavia and for Rwanda. And so with relatively little variation, at least scenario, crimes against humanity, we’ve been trying those responsible for the Rwanda genocide and the crimes in Yugoslavia on the same law that was established at Nuremberg. And then other courts have subsequently been created, mixed courts to try in other places and the International Criminal Court of which we’re not a member, but 114 countries are, and its law on crimes against humanity. Again, with some additions, comes from Nuremberg.
Marvin Kalb: What then, Mr. Ambassador, are the large unanswered questions, the needs that have to be addressed today?
Stephen Rapp: Well the need, the largest need is how you obtain state cooperation, how you investigate, get the evidence, how you arrest the people that are charged. At Nuremberg as has been noted, there was an occupation government and Germany. The four powers had total and complete power to do what they needed to do to arrest people, to hold the trial, to execute them in what we’ve established since 1993 under the United Nations still recognizes that this is a world of states. We have to have each state cooperate if we’re going to get what we want to do, and that creates a situation where it’s often very difficult to bring people to trial. With the Yugoslavia Tribunal it was possible by using conditionality, by essentially countries in the former Yugoslavia couldn’t move toward the EU unless they gave up their war criminals. I mean you use that political tool and that’s made it possible for that court to arrest about 148 of its 150 fugitives. In the Rwandan case because the genocidal government was overthrown and the accused traveled the world and ended up in about 26 different countries, countries were willing to adhere to their obligations under the U.N. Charter which is binding on them because it was a Security Council Resolution and turn those folks over and send them to Arusha. Now with the International Criminal Court they’re relying on Sudan to arrest al-Bashir, their own president and send him to The Hague. Obviously that’s not going to occur. This morning the prosecutor of the ICC, as I think everyone has heard, has indicted, or sought, to be quite precise, sought arrest warrants. [The request] had to go to the judges- judges are going to sit on this for three to four weeks- but he sought arrest warrants against Muammar Gaddafi, his son, Saif, and the head of the Secret Service, Abdul Senoussi, for crimes against humanity, persecution, the crime that Streicher was convicted of by the way at Nuremberg. But they ask him, “Well where are you going to get cooperation?” “Well I’ll seek cooperation first from the government of Libya.” Obviously impossible in the sense that the Gaddafi is the head of Libya. On the other hand he then said but then he’d turn to the Security Council and perhaps ask the Security Council for a resolution similar to what they did with the no-fly zone that might authorize international forces to go in and get an arrest. That’s never been done. Whether countries are ready to do that is still a very, very open question. But the point is it’s very difficult to enforce these measures and to the extent that now in the ICC you have 14 people indicted, and only five of them that have been arrested, this creates the perception that maybe you can do the crime and get away with it.
Marvin Kalb: Do you think, Professor, that the issue of genocide is a very large one with this community and probably all over the world today. The Ambassador has just spelled out, I think very eloquently, the problems involved in trying really to establish a smoothly functioning international criminal system that will deal with the issue of genocide. Do you believe that in the next, what, 10, 20, 50 years we’re going to have an international system in place that would allow for an International Criminal Court that everyone would subscribe to?
Jonathon Bush: No one would have believed that the immovable fact of the post-war half century would have changed and in the aftermath of the end of the Cold War the idea that there’s a court at all, that there are a bunch of courts, is remarkable. Whether it will go farther, I mean, I don’t take odds. I have- just this week one of my oldest defendants, and I was the junior-most lawyer on the case, got convicted, Demjanjuk. He was, when I went to the Justice Department the case was already five years old. This is 30 years now. I don’t- I have Holocaust survivors in my family, none of them feel particularly vindicated- whether their story was told because this old man is convicted and the judge announced how terrible it was but he would be- he’s under house release. I don’t know that the international process is all that it’s built up to be. Whether it will be in effect, I don’t know, but the idea that one Cambodian has been convicted in all these years, and a pretty nasty guy is still in power. You know the mid-level former Khmer Rouge is sort of smiling at the process and making sure it never reaches him or his loved ones, I don’t know. I don’t think it’s just if the process only went farther and we had more tribunals reaching farther it would be better.
Stephen Rapp: Let me just add because obviously in Cambodia they are about ready to begin in June, the trial of the four surviving leaders of the Pol Pot government. Killed two million of their own people. Tried to take their country back to year zero including the number two person under Pol Pot and the titular Chief of State, the Foreign Minister and his wife, the Social Welfare Minister. They’ll be on trial. I mean what’s- I tend to be more optimistic though, whether we will have everyone in the ICC, I think that’s something you could question. But part of the principle of the ICC is that justice needs to be done somewhere at the local level, even at the regional level. And the ICC only is involved if there’s no will or capacity at those lower levels. And I think we’re seeing them. I’m traveling all over. Just in Bangladesh they’re trying people for the 1971 atrocities that killed three million in Bangladesh. Everywhere when folks see a Milosevic brought to trial, when they see a Charles Taylor brought to trial, when they see these cases where victims are receiving justice they say, “Is our blood not red? Is what happened to our people insignificant in the world?” And so there’s a demand for justice and an effort to fulfill that justice. If not at the international level, at a regional or national level and I think that pressure will continue. And even if people- you’ll have situations where people will be tried in countries other than their own potentially- when they try to seek refuge- and so I think that we’re moving toward a system, a hybridized one, that will I think send a message that if you commit crimes like genocide, you’ll face consequences.
Audience Question: Occasionally the U.S. has to hesitate before accusing countries of crimes. For example, in the post-war period the United States picked and chose which Nazis to prosecute. Some of the Nazis were useful to us for scientific or intelligence reasons. And at other times we have to worry about our allies or we use these people because they’re enemies or were enemies. Can you comment on the realities of these choices that the United States has to make?
Stephen Rapp: I just want to jump in there as a prosecutor because it’s clear I always found people who would come in and say, “Why am I being charged? There’s somebody else down the road that you didn’t charge.” That’s never a defense. It’s the case that’s before the court: whether this person did the crime and they should face consequences for it. Obviously there’s a lot to answer for during the recent history and some of those countries that we’re allied with. In Latin American countries people that allied on our side in the Cold War, who then committed atrocities against their own people, are facing consequences now because of amnesties from the ’70s and ’80s are being lifted so justice is being done. But I will say that going forward in the future as we deal with policy and as we deal with allies in the world, this question about whether we’re supporting bad guys or we’re doing horrible things is something that’s in front of us all the time, and I think that as we’ve discovered during the spring in the Arab countries that allying ourselves with folks that are committing human rights violations may not in the end be a wise strategy; that indeed the best strategy is to work with people that don’t commit atrocities.
Marvin Kalb: Ambassador, if you have a 30-second or so concluding thought that you’d like to leave us with
Stephen Rapp: I saw it in Sierra Leone that when we prosecuted those that were responsible for these horrible atrocities, that the situation in terms of the rape, the killings, dramatically fell and that they were able then to go through elections without lethal violence, change power, and people had a chance to build their country back. And so I actually do think that holding people to account can break this cycle of impunity and make it possible for people to live freely.