International Criminal Court Takes Center Stage
By STEVEN M. SWEENEY
CHAUTAUQUA — International law scholars and practitioners are taking every opportunity on the 60th anniversary of the Nuremberg trials to hash out what happens next — if anything.
For many attending the symposium at Chautauqua Institution this week, the inevitable conclusion includes the International Criminal Court — founded by 120 members nations with the 1998 Rome Statute. The court now sits in The Hague, Netherlands, and is currently trying former Yugoslav president Slobodan Milosevic.
‘‘It’s ironic that (Robert H.) Jackson, an American, was the architect of the trials of Germans, but it is now the German jurists who are codifying the (international) law,’’ said Lawrence Douglas, Amherst College law department chairman.
Douglas was one of a panel dedicated to reviewing Nuremberg issues and accomplishments, which dedicated much of its time to discussing the failed follow through of the United States to participate in a world court.
Even former Nuremberg prosecutor Henry King roused his luncheon audience with calls to greater American participation in the current ICC.
‘‘Unrestricted national sovereignty really means international anarchy,‘‘ King said to his audience of about 100 who mostly nodded their approval. ‘‘The world needs to institutionalize its principles in dealing with international accountability.‘‘
He says the U.S. should join the world in abolishing old laws that protect government officials from personal liability for national acts — following in Nuremberg traditions. For contrast, Steven Voigt proclaims himself a lonely ICC opponent in the symposium.
‘‘One of the problems that I have with the ICC is that it would take away the moral responsibility of nations to deal with crimes,’’ said Voigt, a practicing Philadelphia attorney. ‘‘And it does not provide for a trial by jury — a right guaranteed by the Bill of Rights. Trials will always be held by three judges and with only two out of three to convict. It’s a different standard to find guilt. Any practitioner in the U.S. would reject it based on that principle alone.‘‘
But he believes court falls flat in an even more important way.
‘‘It is never going to be enough of a deterrent. Hitler knew if we ever caught him he would be prosecuted in front of our tribunals, it didn’t stop him,’’ he said.
At Chautauqua, he couldn’t find more a more diametrically opposed audience.
‘‘Ultimately, what we’re talking about is aggressive war — the ability to commit mass murder. Mass murder has been left out of the ICC,’’ said Michael Mandel, a York University, Osgoode School of Law professor. ‘‘It punishes everything but aggressive war. What you’ve got is half a loaf focused on punishing small criminals.‘‘
Examples of these Mandel finds throughout Africa where prosecutors and courts indict warlords and not the governments he thinks instigated the problems — wealthy nation and corporation-backed civil wars over sought-after diamonds in Sierra Leone and bloodshed over African oil deposits are examples he cites.
‘‘The ICC has done a good job of rounding up the usual suspects, but who’s responsible for these horrible conflicts?’’ the Toronto law professor asked. ‘‘The point is that the crime is (not a violation) of the Geneva Conventions, but war itself.‘‘
Mandel reasons that strict punishment for aggressive war would not put U.S. soldiers in the harm’s way of kangaroo courts, but would force all nations, including the United States, to pause before attempting a ‘‘pre-emptive’’ strike or intermeddling with the behind-the-scenes affairs with other nations.
‘‘The Holocaust wouldn’t have happened without Germany’s aggressive war. There was no Holocaust between 1933 and 1939 — it was only after the invasion of Poland. Then Jews were deported to camps in Poland,’’ Mandel said. ‘‘If you can stop aggressive war, you can avoid war crimes.‘‘
For Mandel, in an ideal world, the ICC or something like it would be universally accepted. The Toronto professor is steeped in reality instead.
‘‘Not the kind of court we have and it’s not the kind of court we’re going to get,’’ he said.