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.
