OPED: Nuremberg: Evil isn't just immoral, it's illegal

David Scheffer
Tribune News Service

Seventy years ago this past weekend, an international military tribunal here rendered judgment against 22 senior Nazi defendants for the most systematic global assault on national sovereignty and civilians in the history of humankind.

Hermann Goering, center, stands in the prisoners box with his fellow Nazi defendants on August 31, 1946, to make his final plea as the war crimes trial there came to a close. (AP Photo/B.I. Sanders)

Courtroom 600 in the Palace of Justice seized the world's attention with the tribunal's bold scrutiny of military, political, media and business leaders who never imagined — until far too late — that they would stand trial for the crimes of the Nazi era.

The four victorious powers — the United States, Britain, the Soviet Union and France — held the upper hand and refused to empower the military tribunal to scrutinize their own conduct during World War II, such as the fire-bombing of Dresden and Hamburg and the Soviets' role in the Katyn Forest massacre. But the defendants were granted a credible level of due process before reasoned guilty verdicts were delivered against 19 of them.

Defeated Germans criticized the Nuremberg trial as a biased demolition of Nazi leaders for ex post facto violations of "laws" that defense counsel claimed had never governed warfare. There was something to their argument: Prosecutors more or less gambled on the legality of some of their charges. Of course most people today think that was a good thing and credit the trials with creating a framework for international justice still in use today. Even the convention against genocide stemmed from Nuremberg, where the Holocaust of the European Jews was prosecuted as a crime against humanity.

During the Cold War, the Nuremberg precedent occupied dusty law library shelves as superpowers fought proxy wars and showed no interest in holding war criminals accountable — they were too useful. The Korean War, Cultural Revolution, Vietnam War, Indonesian massacres, Cambodian atrocities and Latin American tortures and disappearances largely escaped judicial scrutiny until, in some cases, many years later.

Yet, over the last two decades the international community established six major war crimes tribunals to defeat the presumption of impunity that was center stage at Nuremberg. The Yugoslav conflict of the early 1990s altered the equation and reintroduced the Nuremberg principles in the middle of a war that seemed without end. The U.N. Security Council found the will to begin holding the warring parties accountable before the fighting ended with the Dayton Accords in late 1995.

After the creation of the International Criminal Tribunal for the former Yugoslavia, there followed the International Criminal Tribunal for Rwanda (genocide of 1994), the Special Court for Sierra Leone (civil war of the 1990s), the Extraordinary Chambers in the Courts of Cambodia (Pol Pot regime of the late 1970s), the Special Tribunal for Lebanon (assassination of Prime Minister Rafiq Hariri in 2005), and the permanent International Criminal Court (supported by 124 member states and litigating 10 atrocity situations).

Each of these modern tribunals owed an enormous debt to Nuremberg; indeed, the drafters of the modern tribunal statutes looked first to Nuremberg for guidance in their work at crafting judicial accountability for atrocity crimes.

The six tribunals have convicted about 160 defendants since 1994. They include top Pol Pot aides Khieu Samphan and Nuon Chea, former Bosnian Serb President Radovan Karadzic and colleagues Momcilo Krajisnik and Gen. Radislav Krstic in Bosnia, former Prime Minister Jean Kambanda and Gen. Theoneste Bagosora in Rwanda, former Liberian President Charles Taylor and Congolese leader Jean-Pierre Bemba Gombo. Special tribunals also emerged in East Timor, Kosovo and recently Senegal, where former Chad President Hissene Habre was convicted of crimes against humanity.

Thanks to Nuremberg and its successor trials, policymakers can no longer safely assume that they will escape international justice by claiming a legal or political right to impunity. The jurisdictional reach of the tribunals grows each year. Many leaders will physically evade the courtroom but they still risk indictment, accelerating their political downfall. Slobodan Milosevic, Moammar Kadafi and Charles Taylor learned that lesson.

This knowledge, unfortunately, doesn't seem to act as a fully reliable deterrent. The massive assaults on civilians and persistent illegal warfare devastating Syria, Iraq, Darfur, Yemen, South Sudan, Ukraine and other societies remind us that the Nuremberg legacy is cold comfort when faced with the reality of leaders who disdain international law.

While judicial intervention is essential to punish war criminals, the tougher assignment is to prevent atrocities from occurring in the first place. Smart diplomacy succeeds only sometimes.

Nuremberg established seven decades ago that aggression and atrocities against civilians were not just immoral, they were illegal; but not even Nuremberg extinguished the need to act decisively, in real time, and with military force, when countless innocent lives are in peril.

— David Scheffer, a law professor at Northwestern University, was the first U.S. Ambassador at Large for War Crimes Issues (1997-2001).