Remarks of Henry T. King, Jr.
Chautauqua Institution
Chautauqua, New York
June 14, 2003
There is no greater challenge currently confronting the
international community than that of defining the scope of international human
rights. At this instant the world is engaged in a global war on terrorism
while the United States and its “coalition of the willing” are
rebuilding the recently war-trodden countries of Iraq and Afghanistan. Consequently,
the international community is compelled to face the challenges of dealing
with the human elements of these wars, whether in the form of refugees returning
to the bombarded landscape of Afghanistan, instilling democratic ideals in
Iraq, citizens subjected to midnight raids and arrests in the streets of Spain
or Pakistan, or dealing with prisoners who have been captured and sent to
distant prisons to be later tried by military tribunals such as those being
held at Guantanamo Bay. Similarly, on this very day the world seeks to convict
and punish those who allegedly have violated the rights of countless citizens
as witnessed in the trials of Slobodan Milosevic in The Hague as well as in
the Rwandan War Crimes Tribunal.
I raise these issues not to promote or resolve the vigorous debate that such
topics generate among governments, scholars, practitioners, pundits and the
media. Rather, I offer them as a symbol of where we have come during the past
half century since the Nuremberg War Crimes Trials. I ask you, why is the
torture or summary execution of the Al Qaeda and Iraqi leaders beyond the
scope of imagination? Or why are Slobodan Milosevic and his henchmen sent
to trial rather than to the roaring mobs where they would be brutally tortured
and executed as in the case of Mussolini during World War II? The answer is
simply that the world refused to accept such practices and will deem such
conduct as a violation of basic human rights.
As elementary as the concept is to those of us examining the issues from a
twenty-first century perspective, let us remember that this answer was not
always readily accepted.
It is the legacy of justice and fairness that has led legal scholars and historians
to state that Nuremberg marked the effective start of the International Human
Rights movement. I believe that this is true.
For example, under the Crimes Against Humanity Count of the London Charter
certain offenses against human beings that warrant punishment are defined.
In stating that these are offenses, this count by negative implication supports
the view that human beings have the right to have protection against these
crimes. The thrust of this is to recognize, again by negative implication,
certain international human rights. Additionally in the Crimes Against Humanity
County as developed in the London Charter for use at Nuremberg, it is said
that local law offers no out for those charged with these crimes. The thrust
of this is to recognize, again by negative implication, certain international
human rights. Additionally in the Crimes Against Humanity Court as developed
in the London Charter for use at Nuremberg, it is said that local law offers
no out for those charges with these crimes. Put succinctly, this meant that
Hitler’s oral order for ”the final solution” offered no
defense for those defendants who were tried for this offense. This was the
first time that it had been said that authorization by local or national authorities
is not a defense in human rights. It meant that for the first time in history
human rights had achieved an international dimension.
The Nuremberg rulings in the slave labor cases involving Albert Speer, Fritz
Sauckel and Erhard Milch confirmed that forced slavery was an international
crime and should be punished as such. The rulings in the Hermann Goering and
Hans Frank cases on offenses against Jews are a vital part of Nuremberg. But
above all, in the subsequent Nuremberg proceedings, the findings of the Courts
in the Einsatzgruppen, Medical Experiment’s and Justice cases reflect
the conviction that human rights are not solely a matter of national jurisdiction
but that a higher law – international law – is applicable in such
cases and that human beings have status under this law.
As a follow-up to Nuremberg, the U.N. sponsored several human rights conventions
and covenants. There was, first of all, the Universal Covenant on Human Rights,
followed by the Genocide Convention and the Convention Against Torture. These
conventions have been ratified by many countries in the world today. They
constitute collectively an International Law of Human Rights based on conventions
and customs and also the Nuremberg principles, which were endorsed by the
U.N. General Assembly on December 14, 1946.
The U.N. Security Council resolutions covering crimes in the former Yugoslavia
and Rwanda incorporate the Nuremberg principles in the protection of international
human rights when they refer to “crimes against humanity and genocide.”
The same can be said for the Rome Statute covering the establishment of an
international criminal court, which, as we will discuss in a few moments,
is fully operational.
Nuremberg’s contribution to international human rights is found also
in its endorsement of the principles of universal jurisdiction. As Jackson
said in his opening statement at Nuremberg on November 21, 1946, “the
complaining party at your bar today is civilization.” The Nuremberg
Court applied the concept of universal jurisdiction when it said that the
nations who were plaintiffs at Nuremberg were doing collectively what each
one of them could have done individually. In essence what Jackson was saying
was that some crimes that were dealt with at Nuremberg were so terrible (i.e.,
crimes against humanity) that any legitimate court could take jurisdiction
of them because they were crimes against all humanity – literally and
collectively.
The court in the Adolf Eichmann case applied this concept in convicting Eichmann
of crimes against Jews that had at the time of their commission no legal standing
in Israel because Israel was not then a nation state. There was no Israeli
law in effect when they were committed which Eichmann could be charged with
violating. But, said the Court, these were crimes that were so massive that
they were crimes against all humanity and it held that Eichmann should pay
with his life for their commission. The U.S. Court of Appeals in the Demjanjuk
case endorsed this concept and it is included in the restatement of the Foreign
Relations Law of the U.S. The concept is now firmly entrenched as witnessed
during its recent application during the trials of Chilean dictator Augusto
Pinochet.
The inheritance of Nuremberg in Europe is reflected in the creation of the
European Court of Human Rights and the Convention on which it is based. Under
the Convention an individual located in a member state that feels that his
individual rights as defined by the Convention are violated by his country
can bring a proceeding against his country to establish his rights. If the
Court confirms his rights, the country must abide by the European Court’s
ruling or withdraw from the Convention.
As I have stated, Jackson’s concepts on human rights are set forth explicitly
in the London Charter and in his presentation of the prosecution’s case.
These concepts are firmly established today as we see presumption of innocence
and the right to counsel as pillars of international criminal jurisprudence.
Moreover, Jackson’s insistence on convicting defendants with their own
documents is on stage at the Milosevic trial in The Hague, where Chief Prosecutor
Carla de la Ponte is presenting volumes of the Yugoslavian leader’s
former documents in an effort to demonstrate the crimes of genocide.
Nuremberg added a new dimension to the rights of individuals in our world
of today – an international dimension. This dimension will grow and
firm up in the world of the future. We are, indeed, all citizens of the world
and this needs to be confirmed by a rule of law governing human rights for
all of us.
The history of human rights during the Cold War was particularly distressing.
Indeed, critics of Nuremberg often point to great genocides and armed conflicts
of the 60s, 70s and 80s to suggest that the Nuremberg ideals have failed.
It must be conceded that the legacy of the Cold War is one of sacrificing
the rights of individuals for the stated goal of eradicating the world of
communism. But this legacy reinforces the Nuremberg ideals. Simply, all of
the treaties, conventions, and humanitarian laws enacted without effective
enforcement were paper – the leaders of nation states acted without
threat of one day being brought before the bar of justice. Fortunately, since
the end of the Cold War the Yugoslavian Tribunal, the Rwandan Tribunal, the
Tribunal for addressing War Crimes in Sierra Leone, and now the ICC all have
put the world on notice that the universality of basic human rights exists
– and will be enforced. Just and fair enforcement is the legacy of Nuremberg
and the world will achieve peace and prosperity as a result. Robert Jackson’s
raw courage in pressing forward at Nuremberg for the establishment of a new
rule of law in the world governing human rights has vastly impacted our world
of today. It means that all citizens are human beings, and that as human beings
they ultimately have certain rights that warrant recognition just as our rights
are recognized. Jackson’s dream has not as yet been ultimately implemented
but I am confident that with the passage of time we will recognize, as he
did, our common humanity.
Each of you must dedicate yourself to honoring his memory and his legacy through
a commitment to vigilance in the face of continuing onslaughts on international
human rights. Jackson led the way; our job is to follow the blueprint that
he left for us and for all mankind. The road ahead will not be easy, but it
is a smooth highway when compared to the uncharged territory that Jackson
faced and conquered. Truly, Robert Jackson was a giant of a man whose dignity,
courage and brilliance changed the course of history guiding us to a new day
when justice, tempered with both compassion for victims and fairness to perpetrators,
will rule the world.
Transcribed by Charlene J. Peterson, 2003