[MUSIC]. Hello, I'm Michael Scharf and welcome to our online course on International Criminal Law. Today in our initial session we're going to be looking at the origins of International Criminal Law. From the Nuremberg trials and then looking at it's development all the way through the permanent international criminal court in the[INAUDIBLE] . Our objective's are first of all, to learn the history of international criminal tribunals. We'll learn why the Nuremberg Tribunal was created and what it's legacy was. Then we will explore the criticisms of the Nuremberg Tribunal and how the world has learned from those lessons. Next, we'll apply the Nuremberg principles to a modern controversy, the White House Torture Memos. And finally, we'll have a debate, of the pros and cons, of the United States, Russia, China, and the other countries who have not yet ratified the international criminal court statute, about whether they should join up with the other 122 countries, that already are parties. Let's begin with the origins. World War II and the atrocities of Nazi are probably familiar to anybody who knows anything about history. But, to summarize basically during the Nazi regime Adolf Hitler executed in extermination camps, at least six million Jews, three million others including Pols and handicapped peoples and homosexuals. He stripped these people of their citizenship, and he committed all sorts of atrocities. So when the Allied countries got the upper hand and were starting to close in on Germany, a big debate arose between the leaders. At Potsdam, Winston Churchill suggested to Franklin Delano Roosevelt and Joseph Stalin that, the Allies ought to take the captured Nazi leaders, and execute them all. Joseph Stalin, from the Soviet Union, said, that's a great idea, Winston, and, I have a list of 50,000 people who we'll kill. And what's interesting, is that, Franklin Deleanor Roosevelt, didn't have a problem with it, and the big debate, really, at that time, was should there be a firing squad, or hangings. It wasn't until FDR passed away in April of 1945 that the United States started to surface the idea of instead of just executing the captured Nazi's, why don't we have an international trial to prosecute them? And the idea surfaced by the secretary of war Henry Stimpson, who convinced Truman, the new president of the United States, that there were some real politic reasons, for having trials, rather than just executing the defeated enemies. The first of these, was to try to create a historic record that would withstand the forces of revisionism. Most people are probably aware of the famous quote of Adolf Hitler who in 1939 on the eve of invading Poland, told his German Generals who were squeamish about what he was asking them to do, total warfare, massive killing of civilians. And he said, don't worry about it because quote, who after all, today, remembers the fate of the Armenians. And what he was referring to is the fact that in World War I, the Turks killed millions of Armenians, and what many think of as the world's first genocide. And instead of prosecuting the leaders of Turkey, after the war, they were given amnesty in the Treaty of Lausanne. So the question was, should we create a precedent so that people are prosecuted and have to stand trial for these heinous atrocities, so that they can't say in the future, who after all remembers the fate of the German Jews? Another reason that was based on real politic considerations, was that the allies had done some things that they too were criticized about during the war. One of these was famously the subject of Kurt Vonnegut's book Slaughterhouse Five, and that of course was the firebombing of Dresdon. The United States, the United Kingdom and the other allies dropped so many bombs on Dresden that they literally decimated the entire city, which was a civilian population center that had many historic monuments. Not only that, but there was criticism about the United States' use of the nuclear bombs. We're the only country in the United States, who have ever dropped atomic bombs on Nagasaki and Hiroshima in Japan. And with these criticisms in the background the idea was, let's have a trial so that we can show what the allies were up against, which justified us having to take these extraordinary measures. And then finally, there was the idea that if you had a trial instead of having punishing reparations against all of the German people as that occurred in World War I. Something that many experts believe led to the rise of Adolf Hitler and Nazism. Instead of that, you could show that the blame was on the leaders. You would prosecute them and show their guilt. And you would create really a legal fiction that everybody else was just following orders. There's actually a huge debate about this. historian from Harvard named Daniel Goldhagen has a book called Hitler's Willing Executioners in which he says that, that legal fiction is not true at all. In fact everybody from the top down was not coerced into committing atrocities but voluntarily an eagerly joined in. Then others say that Goldhagen doesn't have it right, and it was only because Hitler gave sanction and in some ways coerced the population that these things occurred. But whatever the reason, the idea of putting the blame just on the leaders was something that caught hold. And so the, four countries which were the United States, the United Kingdom, Russia, now joined by France who had been recently freed, joined together and created the first International War Crimes Tribunal in history. The Nuremberg tribunal. And 17 other countries joined along and signs the treaty that established the Nuremberg Charter, and by 1945 the Nuremberg trial was well under way. In this picture behind me you see the famous defendants, Herman Goering, and the other Nazi leaders. Adolf Hitler had committed suicide so he wasn't there anymore. And on the left side you see Robert Jackson, who was the United States Supreme Court Judge who had been picked to be the chief prosecutor at Nuremberg. Now, the Nuremburg trial also led to 12 other trials, of specialized groups. There was the trial of the Industrialists. The trial of the German businessmen. The trial of the doctors that had committed atrocities. And the most intersting of all these, probably, was the trial of the German judges. That trial was made the subject of the famous academy award winning movie, Judgment at Nuremberg. And in the next few minutes I'm going to show some snippets from that movie. Which really get the audience to focus in on what the arguments were. The story behind Judgement at Nuremberg was that the German judges and prosecutors had gone along with Hitler, and had perverted the justice system and turned it into a political weapon. So in the first scene, we're going to see, Colonel Lawson, played by Richard Widmark is going to make the opening statement, explaining why it was important for the international community to have a trial of these judges and prosecutors. Let's roll the clip. >> The case is unusual. In that the defendants are charged with crimes committed in the name of the law. These men, together with their deceased or fugitive colleagues, are the embodiment of what passed for justice during the Third Reich. The defendants served as judges during a period of the Third Reich. Therefore you, Your Honors, as judges on the bench, will be sitting in judgement of judges in the dock. And this is as it should be. For only a judge knows how much more a court is than a courtroom. It is a process and a spirit. It is the house of law. The defendants knew this too, they knew courtrooms well. They sat in their black robes and they distorted, they perverted, they destroyed justice and law in Germany. [CROSSTALK] The prosecution. >> Please watch the like. The interpreter cannot follow you. >> Sorry your honor. They distorted, they perverted, they destroyed justice and law in Germany. Now this in itself is undoubtedly a great crime. But the prosecution is not calling the defendants to account for violating constitutional guarantees or withholding due process of law. The prosecution is calling into account for murder, brutalities, torture, atrocities! They share with all the leaders of the Third Riech responsibility for the most malignant, the most calculated, the most devestating crimes in the history of all mankind. And they are perhaps more guilty than some of the others. For they had attained maturity long before Hitler's rise to power. Their minds weren't warped at an early age by Nazi teachings. They embraced the ideologies of the Third Reich as educated adults, when they, most of all, should have valued justice. But here they'll receive the justice they denied others. They'll be judged according to the evidence presented in this courtroom. The prosecution has nothing more. >> Now. His arguments seemed very compelling but in the case as in real life there were very able defense council appointed to represent the German defendants. In this case, Maxamillion Shell, who wins an Academy Award for his performance of defense council Herr Rolfe, explains to the judges why this case is such an important one, and that the facts need to be established beyond reasonable doubt, and the difficulty the prosecution will have in making it's case. Let's roll that clip. >> [FOREIGN] May it please the tribunal. >> [FOREIGN] It is not only a great honor. >> [FOREIGN] But also, a great challenge[CROSSTALK][FOREIGN] For an advocate[FOREIGN] To aid this tribunal in its task. >> [FOREIGN] The entire civilized world. >> [CROSSTALK][FOREIGN] Will follow closely what we do here. >> [FOREIGN] For this is not an ordinary trial,[FOREIGN] by any means of the accepted parochial sense. >> [FOREIGN] The avowed purpose of this tribunal. >> Is broader than the visiting of retribution on a few men. It is dedicated, to the reconsecration, of the temple of justice. It is dedicated to finding a code of justice. The whole world will be responsible to. How will this code be established? It will be established in a clear, honest evaluation of the responsibility for the crimes and the indictments stated by the prosecution. In the words of the great American jurist, Oliver Wendell Holmes, this responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found most of all in the character of men. What is the character of ďťżErnst Janning? Let us examine his life for a moment. He was born in 1885, received the degree of doctor of law in 1907, became a judge in East Prussia in 1940. Following World War I, he became one of the leaders of the Weimar republic, and was one of the framers of its democratic constitution. In subsequent years, he achieved international fame not only for his work as a great jurist, but also as the author of legal text books which are still used in universities all over the world. He became Minister of Justice in Germany in 1935. If Ernst Janning is to be found guilty, certain implications must arise. A judge does not make the laws, he carries out the laws of his country. The statement, my country, right or wrong, was expressed by a great American patriot. It is no less true for a German patriot. Should Hans Janning have carried out the laws of his country? Or should he have refused to carry them out, and become a traitor? This is the crux of the issue at the bottom of this trial. The defense is as dedicated to finding the responsibility as is the prosecution. For it is not only Hans Janning, who's on trial here, it's the German people. >> Now, following these opening statements, the prosecution gets to put on its evidence and in the case of Nuremberg most of the evidence was documentary. There's a famous saying that the Nazis convicted themselves on the strength of their own documents, and in this way Nuremberg was actually an easier case to try then some of the modern international trials. Let's see what Colonel Lawson does in order to manufacture the case against these German judges and prosecutors. Let's roll the clip. >> Your Honors, I offer in evidence a decree signed by Adolph Hitler. Directing that all persons accused or suspected of disloyalty or resistance of any sort might be arrested secretly with no notice to friends or relatives without any trial whatsoever and put into concentration camps. I also offer a group of orders issued under that decree. Each on signed by one of the defendants by which hundreds of persons were arrested and placed in concentration camps. Signed by Frederick Hachstedder, Vernor Lampe, Emil Han, Ernst Jannig. Your Honors, the defendants on trial here today did not personally administer the concentration camps. They never had to beat victims or pull the lever that released gas into the chambers. That as the documents we have introduced into this case have shown, these defendants fashioned and executed laws and rendered judgments which sent millions of victims to their destinations. Major Adniss. >> Your honors, I would like to request that Colonel Lawson be sworn in as a witness. >> Granted Thank you. [NOISE] >> Will you raise your right hand? I swear by God the almighty and omniscient, that I will speak the pure truth and withhold and add nothing? >> I do. >> Were you active in the United States Army, in 1945, at the close of the war? >> Yes, I was. >> Were you in command of troops liberating concentration camps? >> I was. >> Were you in Dachau and Belsen? >> Yes. >> Were you present when the films we are about to see were taken? >> Yes, I was. [SOUND] Okay. >> The map shows the number of and location of concentration camps under the Third Reich. Buchenwald concentration camp was founded in 1933. Its inmates numbered about 80,000. There was a motto at Buchenwald, break the body. Break the spirit. Break the heart. The ovens of Buchenwald, evidence of last minute efforts to dispose of bodies. The stoves were, manufactured by a well known company, which also specialized in baking ovens. The name of the firm is clearly inscribed. And exhibit of biproducts, of Book and Bomb. Displayed for the local townspeople by an allied officer. Brushes of every description, shoes, adults and children, spectacles, gold from teeth melted down sent once a month to the medical department of the Lossen S S. A lamp shade made from human skin. Skin being used for paintings. Many having an obscene nature. The heads of two Polish laborers. Shrunken to one fifth their normal size. A human pelvis, used as an ashtray. Children who'd been tattooed to mark them for eventual extermination. Sometimes mercy is shown to the children, they were injected with morphine so they'd be unconscious when hanged. One of the doctors described how they'd then place ropes around their necks and in the doctor's own words, like pictures, they were then hanged by hooks, on the walls. The bodies of those who'd come in boxcars, without food and without air, who hadn't survived the journey to Dachau. Hundreds of inmates were used as human guinea pigs for atrocious medical experiments. A witness said, one of the executioners at Dachau gave the following description. Inmates were made to leave their clothing on a rack. They were told they were going to take baths. Then the doors were locked. Tins of Zyklon B were released through the specially constructed apertures. You could hear the groaning and the whimpering inside. After two or three minutes, all was quiet. Death transports that had arrived included 90,000 from Slovakia, 65,000 from Greece,11,000 from France, 90,000 from Holland, 400,000 from Hungary, 250,000 from Poland and upper Selesia, and 100,000 from Germany. And this is what was filmed when British troops liberated Belsen concentration camp. For sanitary reasons British bulldozer had to bury the bodies as quickly as possible. Who were the bodies? Members of every occupied country of Europe. Two thirds of the Jews of Europe. Exterminated. More than 6 million, according to reports from the Nazi's own figures. >> Now following Colonel Lawson's presentation of the evidence, Heir Rolf, the defense council makes an impassioned plea to the judges. That this evidence was not appropriate as applied to the judges. Maybe it applied to Adolf Hitler but the judges as you will see were not responsible in his estimation, and he tries to explain that if they are responsible then we're all responsible. Let's hear how that argument plays out, let's roll the tape. >> Yesterday the tribunal witnessed some films that were shocking films, devastating films. As a German, I feel ashamed, that such things could have taken place in my country. There can never be a justification for them. Not in generations. Not in centuries. But, I do think it was wrong, indecent and terribly unfair of the prosecution to show such films in this case, in this court, at this time against these defendants. And I cannot protest too strongly against such tactics. What is the prosecution trying to prove? Is it trying to prove that the German people as a whole were responsible for these events? Or that they were even aware of them, because if he is, he's not stating facts. And he knows he's not. The secrecy of the operations The geographic location of the camps. The breakdown of communications in the last days of the war, when the exterminations rose into the millions show only too clearly that he is not telling the truth. The truth is that these brutalities were brought about by the few extremists. The criminals! Very few German knew what was going on. Very few! None of us knew what was happening in the places shown on these films. None of us! That the most ironic part of it is that the prosecution showed these films against these defendants, men who stayed in power for one reason only, to prevent worse things from happening. Who's the braver man? The man who escapes or resigns in times of peril, or the man who stays on his post at the risk of his own personal safety? The defense, will present witnesses and letters and documents from religious and political refugees all over the world telling how Ernst Janning saved them from execution. The defense will show the many times Ernst Janning was able to effect mitigation of sentences, but without his influence the results would have been much worse. The defense will show, that Ernst Janning's personal physician was a non Aryan. A Jewish man, who he kept in attendance, much to his own peril. The defense presents affidavits from legal authorities and famed jurors the world over pleading that special considerations must be made in this case, saying that the entire work of Ernst Janning was inspired by one motive and one motive only, the endeavor to preserve justice and the concept of justice. Your honor. It is my duty to defend Ernst Janning and yet Ernst Janning has said he's guilty. There's no doubt he feels his guilt. He made a great error, in going along with the Nazi movement, hoping it would be good for his country. But, if he is to be found guilty, there are others, who also went along. Who also must be found guilty. Ernst Janning said we succeeded beyond our wildest dreams. Why, did we succeed Your Honor? What about the rest of the world? Did he not know the intentions of the Third Reich? Did he not hear the words of Hitler's broadcast all over the world? Did he not read his intentions in Mein Kampf, published in every corner of the world? Where's the responsibility of the Soviet Union? Who signed in 1939 the pact with Hitler. Enabled him to make war. Are we now to find Russia guilty? Where's the responsibility of the Vatican, who signed in 1933 the concord with Hitler, giving him his first tremendous prestige. Are we not to find the Vatican guilty? Where is the responsibility of the world leader, Winston Churchill, who said in an open letter to the London Times in 1938, 1938! Your honor, were England to suffer national disaster, I should pray to god to send a man of the strength of mind and will of an adult Hitler. Are we now to find Winston Churchill guilty? Where's the responsibility of those American industrialists who helped Hitler to rebuild his armaments, and profited by that rebuilding? Are we now to find find the American industrialists guilty? No, Your Honor. No. Germany alone is not guilty. The whole world is as responsible for Hitler's Germany. It is an easy thing to condemn one man in the dock. It is easy to condemn the German people, to speak of the basic flaw in the German character that allowed Hitler to rise to power. The the same time comfortably, ignore the basic flaw of character that made the Russians sign pacts with him, Winston Churchill praise him, American industrialists profit by him. Ernst Janning said he is guilty. If he is Ernst Janning's guilt is the world's guilt. >> Now finally with all the evidence in and the defense counsel having made an excellent argument, it's time for the judge to make its decision. Here you'll see Spencer Tracy playing the judge, explain to the defendant played by Burt Lancaster why the evidence was sufficient and why the precedent did establish his guilt as a judge doing the bidding of Adolf Hitler? >> A trial conducted before this tribunal began over eight months ago. The record of evidence is more than 10,000 pages long. And final arguments of counsel have been concluded. Simple murders and atrocities do not constitute the gravimum of the charges in this indictment, rather the charge is that of conscious participation. In a nation wide, government organized system of cruelty and injustice, in violation of every moral and legal principle known to all civilized nations. The tribunal has carefully studied the record and found therein, abundant evidence to support, beyond a reasonable doubt, the charges against these defendants. [NOISE] Herr Rolf, this very skillful defense has asserted that there are others who must share the ultimate responsibility for what happened here in Germany, there is truth in this. The real complaining party at the bar in this courtroom is civilization, but the tribunal does say the command the dock are responsible for their actions. Men, who sat in black robes, in judgement on other men. Men who took part in the enactment of laws and decrees the purpose of which was the extermination of human beings. Men who in executive positions actively participated in the enforcement of these laws. Illegal, even under German law. The principle of criminal law in every civilized society has this in common. Any person who sways another to commit murder, any person who furnishes the lethal weapon for the purpose of the crime, any person who is an accessory to the crime, is guilty. [NOISE] Herr Rolf, further asserts that the defendant, Janning, was an extraordinary jurist, and acted in what he thought was the best interest of this country. There is truth in this also. Janning, to be sure, is a tragic figure. We believe he loathed the evil he did. But compassion for the present torture of his soul must not beget forgetfulness, of the torture and the death of the millions, of the government of which he was a part. Janning's record and his fate illuminate the most shattering truth that has emerged from this trial. If he, and all of the other defendants, had been degraded perverts. If all of the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake or any other natural catastrophe. But, this trial has shown that under a national crisis, ordinary, even able and extraordinary men can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat through the trial can ever forget them. Men sterilized because of political belief. A mockery made of friendship and faith, the murder of children. How easily it can happen. There are those in our own country, too, who today, speak of the protection of country, of survival. A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat, then it seems that the only way to survive is to use the means of the enemy. To rest survival upon what is expedient. To look the other way. Only, the answer to that is survival is what? The country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult. Before the people of the world, let it now be noted, that here in our decision this is what we stand for. Justice, truth, and the value of a single human being. The Marshall will produce before the tribunal, the defendant Hahn. Emil Hahn. The Tribunal finds you guilty, and sentences you to life in prison. >> Today you sentence me, tomorrow the Bolshevist sentence you! >> [INAUDIBLE] . >> The Marshall will produce the defendant, Hofstadter, before the Tribunal. Friedrich Hofstetter, the tribunal finds you guilty and sentences you to life imprisonment. The marshal will produce the defendant Lampe before the tribunal. Ferdinand Lampe, the tribunal finds you guilty and sentences you to life imprisonment. The marshal will produce the defendant, Ernst Janning before the tribunal. Ernst Janning, the tribunal finds you guilty and sentences you to life imprisonment. >> With those really ringing words, let's now look at some of the criticisms that were raised about having American judges and judges from Russia, and France, and the United Kingdom try the German defendants for the crimes that they were accused of. The first of these criticisms was that Nuremberg and the Control Council Law number ten mini Nuremberg trials, like the judges' trial, were basically victor's justice. And it is true that there were no Germans or any countries who were allied with Germans having anybody on the bench. The bench was composed of just an American judge. A British judge, a Russian judge, and a French judge. And so, the concept then was how can this be fair? As we'll see in a few minutes, the International Criminal Court solves that problem by having many judges from all over the world who are already appointed before the atrocities in any given case are arising. Another of the criticisms, was that the countries that prosecuted the Germans, had unclean hands. And as I mentioned earlier, they were responsible for atrocities, like the bombing of Dresden, like dropping the atomic weapons on Hiroshima and Nagasaki. That did show that they had done things that were also of some guilt. Now the answer to that has always been that two wrongs don't make a right. Even if the allies had committed some war crimes, that doesn't mean that the Nazis were not guilty of their war crimes, and therefore, that the unclean hands principle should not bar a prosecution of the Nazis, whose crimes were much more egregious. And finally, and this is probably the criticism that stung the worst, and that is that Nuremberg was basically a kangaroo court. The problem with Nuremberg, well there were several. First of all, when they created the Nuremberg charter, they had the four prosecutors draft the charter, and then those same four people drafted the indictment, and then two of those people who were prosecutors got promotions. The Russian prosecutor became the Russian judge. The French prosecutor became the alternative Judge, to the French judge. And so you had a mix of roles where the prosecutor also gets to play the judge, that was very questionable. Not only that, but the rules of procedure were a scant four pages, compared to the hundreds pages of detailed rules of due process that the modern international tribunals have. There was also no Court of Appeal. What the judges decided was the final verdict. And there was a clause in the Nuremberg Charter that said that the defendants were not allowed to claim that the judges had any bias, and try to have them removed, for any reason whatsoever. And finally the evidence that came in was not always evidence that would be allowed in courts of many of the same countries that were prosecuting these defendants there were hundreds of thousands of unsigned affidavits that were allowed into evidence. So Nuremberg had its moment of criticism afterwards. But at the same time Nuremberg created a huge legacy. It was a turning point for international law. As I mentioned earlier, before Nuremberg there was no prosecutions of anybody for things that they did in their own country. International law only dealt with the relations between states and the responsibility of states. Nuremberg for the first time, said an individual, who commits war crimes or crimes against humanity or the crime of waging an aggressive war, could be held individually criminally responsible. They could be prosecuted in any country around the world, under what's known as universal jurisdiction or they could be prosecuted by an international tribunal. Not only that, but the fact that domestic law did not impose a penalty or did not say something was a crime, was not a defense. The individuals at Nuremberg all said, well we were just applying the law. The judges as you heard, said a judge doesn't make the law, he just implements it. That was held at Nuremberg not to be a defense. Also, the fact that you were a Head of State could not exculpate you from individual criminal responsibility, an important precedent that was applied to Herman Goring who was the last Head of State of Nazi Germany. And also has been applied more recently to leaders like Charles Taylor and others who were Head's of State at the time they committed their atrocities. And finally, and maybe most importantly, is the fact that the obedience to orders was not allowed as a defense. You can't get away with international crimes by saying I was ordered to do it, I was only following orders. Now, let's apply, these principles that came out of Nuremberg, to a modern day controversy. This is a slide of the White House torture memos. And, the torture memos, if you're familiar with them, basically were written by a cabal of lawyers, John Yu, Gonzalez, Addington, and Haynes. Who classified these so top secret, that they cut out all the other lawyers from the government from having anything to say about these memos. So, the state department legal adviser was cut out, the lawyers in charge of each of the branches of the military were cut out. And they said in these memos, that it was okay during a war on terror, to do things like water boarding to get information during interrogations. Water boarding is essentially simulated drowning and they water boarded some of the people up to 180 times. Not that they ever got any great evidence from it, and this clearly was a memo that told lower level people that it was legal to commit atrocities. So the question is, do these lawyers have the same kind of responsibility that the lawyers were held to have in the movie Judgement at Nuremberg based on the real life judgement trial? The Alstadter case before the Nuremberg tribunal. And there are those who debate this back and forth. But many people do believe that that Nuremberg precedent does apply here. And several countries have actually issued indictments under universal jurisdiction for the authors of the White House torture memos. Now, after Nuremberg, the idea was there'd be a permanent international tribunal created. But the Cold War descended, and the years after Nuremberg became a golden age of impunity. First you had Joseph Stalin. The leader of the Soviet Union, who killed about 20 million people in his purges. These were political opponents of his regime. No one lifted a finger. No one screamed a word, internationally, that he should be held responsible under Nuremberg precedent. In fact, when a couple of years after Nuremberg, in 1948, they negotiated the genocide convention making genocide a crime. Joseph Stalin, and his delegation put in a clause that said genocide does not apply when a leader kills political opponents. It only applies when you kill opponents who are from a different nationality, race, or religion and the reason he did this is because he did not want to be subject to this international crime of genocide which grew out of the Nuremberg precedent. And the rest of the world during the Cold War wanted the Soviet Union and the other half of the world that supported the Soviet Union to join in this treaty. And so they deferred to that, and genocide doesn't apply to this day to crimes against political opponents. Well then you had, of course, the pole pot regime and the famous killing fields where about a million Cambodians were killed and nobody did a thing. Then you had Idi Amin, in Uganda who killed about half of his population and again, nobody lifted a finger. And more recently, in the late 1980s, the leader of Iraq, Saddam Hussein killed millions of Kurds in the northern part of his country using chemical weapons and at the time nobody did a thing. It was a sorry time for international law. In fact the high commissioner for human rights said that a person stood a better chance for being prosecuted for killing one or ten people, then for killing 100,000 or a million. And it was true. But those days ended in 1993, when genocide returned to Europe for the first time since World War II. And the international community dusted off the old Nuremberg charter, and they created the first international tribunal, since Nuremberg, the Yugoslavia Tribunal. A year later, there were atrocities in Rwanda, where the Hutu killed 800,000 Tutsis. And there, the international tribunal for Yugoslavia's statute was then applied to Rwanda. A couple of years later, there were atrocities in Sierra Leon, and again the international community created a new tribunal in 2002 to deal with those. A tribunal that ultimately convicted the leader of neighboring Liberia, Charles Taylor. And finally, Those atrocities in Cambodia caught up with the surviving members of the Khmer Rouge, and in 2006 an international tribunal was launched to prosecute them as well. With all of these tribunals being created there was a new era, an era of accountability, and in the midst of that the world decided to negotiate a permanent International Criminal Court. Thinking that the ad-hoc approach was too costly, too time consuming and too politically difficult. They decided that they should have a permanent court that would sit in the Hague and be responsible for all the atrocities. Now the negotiations were successful and the International Criminal Court emerged as a new institution. And here is a photo of what that institution looks like. The International Criminal Court however was the subject of negotiations and compromises. Ultimately, they decided that the only crimes within its jurisdiction to begin with would be war crimes, crimes against humanity, and genocide. They left out the crime of aggression. Now ten years later they decided that they may add the crime of aggression but there are several hoops that might have to still be overcome. Note, however that other crimes like terrorism are not included, piracy are not included within this new court's jurisdiction. The court's jurisdiction is not over everybody. It requires either one, that the country where the atrocities occurred has ratified the ICC statute, or two, that the country whose national's perpetrated the atrocities was a party to the ICC Statue. Or third, if there is a country that commits atrocities that is not a party and its nationals are not a party, the security council can refer the case by adopting a Chapter Seven resolution which requires the consent of the permanent five members of the Security Council. Something that is extremely difficult, but not impossible to achieve. Now, another compromise that's built into the new ICC statute is that the ICC is a court of last resort. It can only exercise jurisdiction if the domestic courts, where the perpetrator was found, are either unable, or unwilling to do so, and they call this the complementarity principle. The countries that ended up signing the ICC statute and ratifying it were many. The signatories are those that are in yellow or light orange on this map and the parties, those that have ratified it, are in red. And the countries that are in blue have not yet signed or ratified it. But ultimately, there are 122 countries that are party to this new permanent International Criminal Court. Note however, that the United States and Russia have signed but not yet ratified the ICC statute, and China has done neither and other countries in the Middle East and in Asia have also decided to stay outside. Now, one of the first and most important actions of this International Criminal Court to show its power and its role as a institution of real politic in the modern international system, was the indictment Of Muammar Gadhafi of Libya. Libya was not a party to the ICC statutes, so this was a case where the security council voted to refer the case of Libya to the court. After Gadhafi was indicted, this gave the allied governments the political cover to launch airstrikes for humanitarian reasons, and ultimately the coalition airstrikes were successful Gadhafi's regime fell. Gadhafi ended up, dying. His son is now standing trial in Libya and the International Criminal Court has several indictments for leaders of that regime. Now others however have escaped justice, not withstanding the ICC's attempts to bring them to the Hague. One of the most important of these is Joseph Kony, the leader of the Lord's Resistance Army that has been plaguing Uganda and has kidnapped and captured over 60,000 children over the last 20 years, turning them into child soldiers and bush wives. You also have al-Bashir, the president of the Sudan who has been indicted by the International Criminal Court for the crime of genocide for what has happened in the Sudan, and in particular, in Darfur. And he still alludes capture. In fact, he goes visiting different countries from time to time and so far they have not lifted a finger to bring him to justice. And in the Congo they have other leaders who continue to stay away from justice. like Bosco Ntaganda who you see in this photo. Now, thinking about the International Criminal Court brings us to the question of whether, for those countries like the United States, China and Russia who have not yet ratified it, it would be in their interest to do so. The reason it might, be would include that ratification of the statute would support the concept of peace through justice. It would be an important symbolic gesture. And it would close the noose on the individuals who commit atrocities so that people can't say what Adolph Hitler did. Who, after all, remembers the fate of the Armenians, or the Jews, or the Bosnians. Or the Tutsis in Uganda, or the Cambodians, or the Ugandans. the Tutsis, I think I meant in Rwanda. So this would be an important symbolic gesture. Another reason that might fall again into the avenue of real politic, and this is a theme you'll see throughout this course. International criminal law is related to politics. Governments don't do things that they don't think are in their interest. And ultimately the challenge for the lawyers in the international community is to convince the governments that international justice is in their interest. Well one of the ways to do that, is to tell those countries that if you are afraid that the international tribunal will come after you or go after your allies, wouldn't it be better for you to be an influential insider than a hostile outsider? In the early days of the International Criminal Court, the United States under the Bush administration literally declared a kind of war against the International Criminal Court. Passing a law called the Hague Invasion Act, according to other countries, or the American Service Members Protection Act, according to its drafters, including Jesse Helms. That law said that any country that ratified the ICC statute would lose all financial aid from the United States. And unfortunately, like the old Christmas time story by Doctor Seuss, the Grinch that Stole Christmas, the United States in its effort to try to keep countries from ratifying the ICC failed miserably. The ICC was ratified by more and more countries, now 122, which is a majority of the countries in the world. The United States couldn't keep the ICC from coming, but what it did was it hurt the United States efforts in countries like Latin America where financial aid went to drug interdiction and was cut off because one by one the Latin American countries ratified the ICC statute. Leading unexpectedly to a huge influx of drugs back into the United States. So, the consequences of being a hostile outsider were not good for the United States. And for those countries that have joined the ICC, they have found that being an influential insider is a way to protect their interest. Now what about the comp, the cons, the negative aspects. I've told you about complementarity. This is the concept that the ICC is a court of last resort. That it can only take a case when the country is either unwilling or unable to do so itself. But that only works, when a country is prosecuting low level defendants, because most countries will prosecute, the Lieutenant Callys, a person who, you will hear later in this course, committed atrocities in Vietnam. at Myly and the United States did prosecute him, and other low level people do get prosecuted for the atrocities they commit be they an Abu Grabe, or in Guantanamo Bay. But the leaders do not get prosecuted for their official policies and that's where the ICC's complimentarity principle hits a road block for the United States and Russia and China, who are very concerned that their high level policies could be indicted by an international criminal court. This could very damaging to their foreign policy and I'll tell you a story that indicates that. In 1999, as some of you will recall, the NATO countries had launched airstrikes against Serbia in order to stop the Serbs from ethnically cleansing the province of Kosovo. These airstrikes were not authorized by the UN Security Counsel and therefore they were very controversial. And yet NATO supported them. Then the air strikes stated to go astray. They would hit things like the Chinese embassy or convoys of civilians. Or places like bridges and historic buildings that should not have been targets. And the support for these air strikes started to diminish. As this moment, in the middle of this, what ultimately was an 87 day bombing campaign, there were two notifications that ended up on the desk of the Yugoslavia Tribunal. The prosecutor's name was Louis Arbour, she was from Canada. One of those communications was from the school where she had been a law professor, Osgood Hall. And it was a legal document that said that the IC, that the Yugoslavia tribunal, which is a precursor to the ICC, should be indicting the leaders of NATO for the airstrikes. And she was considering this. At the same time, David Scheffer, who was ambassador-at-large for war crimes issues, sent his deputy, Michael Newton, to meet with Louise Arbour. And he have her a giant box of documents and intercepts and other information that showed that Slobodan Milosevic was responsible and should be indicted for the atrocities against the Kosovar Albanians. Now the prosecutor is sitting there with these two groups of documents, and she has to make a decision. Had she decided to indict NATO that could have been the end of the bombing campaign and the end of NATO as an allied group forever. It would have had huge political consequences. She ended up inditing Milosevic, and Milosevic realized that he couldn't withstand the new political pressure, the new clout that the allies had gained through this prosecution indictment, and therefore he sued for peace, and he agreed to a deal that ended up leading toward ultimately the autonomy of Kosovo. This shows that just an indictment, not even bringing someone to custody, just indicting them can have a huge effect on foreign policy, including the foreign policy of America, its allies, or Russia and China as well. And finally, there are questions in many people's mind about whether the ICC Statute is fair, compared to domestic prosecutions. And we have to indicate that the ICC has differences from domestic prosecutions. In the United States we have a jury. In the ICC, you just get a panel of three judges and you appeal to a panel of five judges. In the United States, you can't have hearsay used against you. That's out of court statements that are not subject to cross examination and the ICC hearsay and other loose evidentiary standards are applied. And therefore, the international tribunals allow much evidence to come in that would have been excluded in domestic situations. So, some of these countries say, well that's just not fair for an American or someone from another country, to be sent to the International Criminal Court. And that's why the United States or other countries should not ratify its statute. But to these, the supporters of the ICC say, well you know what, you were willing to extradite your nationals to other countries where they don't have juries, where they allow hearsay evidence to come in, so why wouldn't you extradite your nationals to an ICC, where they have those kinds of rules? And also they remind the big countries that under complementarity, if you prosecute your own people, if you do your own thing, even if you just have an investigation that's in good faith, and you decide not to prosecute, that's enough under complementarity, to keep the ICC from intervening. Well this debate about the pros and cons of the ICC, is likely to go on for, many years, in the United States, in Russia, in China, and in other countries. But meanwhile, more an more countries have begun to ratify the ICC statute. And the ICC has grown into an institution, that has become, very effective at indicting individuals, at getting custody of individuals, and of showing that International Criminal Law is not just something that is to talk about. That it's not just a myth. That it is something that is real. Often people say, oh is international law real law? Well if you ask that question to a leader who has stood trial before. The Yugoslavia tribunal, the Rwanda tribunal, the special court for Sierra Leon, the Cambodia tribunal or the new International Criminal Court, they'll tell you it's real law. And in the end the idea of International Criminal Law is to bring peace through justice. To tell the world that these kinds of crimes are unlawful. And that if you support a leader who commits these crimes, the leader can be held responsible. And so can you. So with that[MUSIC] we conclude our introduction to International Criminal Law. In our next session we're going to be talking about the really interesting question of the tension between trading justice in order to achieve peace and whether international law allows those kinds of justice for peace deals to be made, and whether they are good policy. Until next time, I'll look forward to seeing you online and hearing what you have to say about these issues. I'm Michael Scharf, and you've been listening to International Criminal Law. [SOUND]
