Why the Hague is not Nuremberg

As Slobodan Milosevic makes legal history by becoming the first former head of state to be prosecuted by an international war crimes tribunal, some legal experts and commentators have criticised the tribunal’s procedures.

They point to the admission of hearsay evidence, the use of anonymous witnesses and the absence of a jury as evidence that the tribunal falls far short of Western standards of justice. They attack the alleged cosy relationship between prosecutors and judges, the fact that appeal judges are trial judges with a temporary promotion, and the claim that Milosevic hasn’t been allowed to consult lawyers in private (1).

None of these complaints can be dismissed lightly – and it is only right that a person charged with the most serious of crimes should be afforded every opportunity to defend himself. But these criticisms of the International Criminal Tribunal for the Former Yugoslavia (ICTY) are minor in comparison to the criticisms now made of the Nuremberg International Criminal Tribunal that was set up after the Second World War. UK human rights lawyer Geoffrey Robertson describes Nuremberg as ‘a showtrial’, where the odds were stacked against the defendants (2).

You can make many legal criticisms of Nuremberg, but two have particular force: the retrospective nature of the charges and the dismissal of relevant evidence. Three of the four charges levelled against the Nazi defendants did not exist before Nuremberg: conspiracy to wage aggressive war, crimes against peace, and crimes against humanity. By relying on these charges, the prosecution offended a fundamental principle of criminal justice: that it should not be retrospective. In short, a person should not be convicted for something that was not a crime when it was committed.

The fourth Nuremberg charge of ‘war crimes’ was at least grounded in the attempt to outlaw the worst excesses of war. But the accused were denied a proper right to defend themselves from this charge, because the defence of tu quoque (‘I did it, but you did it too’) was ruled irrelevant. As a matter of law, tu quoque evidence should have been central to assessing whether a mode of warfare – such as the bombing of cities – was justified and therefore lawful.

At the time, legal criticisms of Nuremberg troubled neither the public nor the Nuremberg judiciary – as people were not prepared to allow the Nazis to escape justice. The Nuremberg judiciary dismissed the Nazis’ attempts to fall back on tu quoque evidence with such speed that it was clear they were determined to silence any allegations of Allied war crimes.

The relative fairness of today’s Hague tribunal, at least by Nuremberg standards, is important – because it suggests that a purely legal critique of the tribunal does not explain its more substantial failings. In legal terms Nuremberg may have been unfair, but it was a political success. In legal terms The Hague is fairer, but politically it is criticised in the West and denounced by people in the former Yugoslavia either for being too weak or for being illegitimate. The success or failure of a war crimes tribunal, it seems, cannot be gauged in purely legal terms.

Institutions that dispense criminal justice cannot be effective without the moral authority to act as they do. Courts in the UK and throughout the West rarely have to face this difficulty – their very creation is predicated on the basis of popular national support. The common criminal, whether shoplifter, mugger or murderer, has offended a socially agreed code of behaviour. At times this code is debated, criticised and amended by parliament, but such debates do not indicate a fundamental questioning of the criminal justice system. So recent cases in the UK might have raised questions about certain aspects of the law, like the debate about the law of self-defence that followed the conviction of Norfolk farmer Tony Martin for shooting dead a burglar in 1999 (3) – but they do not call into question the essential legitimacy of the criminal justice system. The right of the courts to try the accused is accepted across the board.

The same cannot be said for international prosecutions of war criminals. These tribunals are not like national criminal courts. For a start, they seek to determine criminal behaviour in a context characterised by the breakdown of law and order – war. In such circumstances it can be difficult, if not impossible, to draw a clear line between legitimate and illegitimate ways of waging war.

Take the issue of whether NATO itself should be indicted for some of its actions in the Kosovo war in 1999. In March 1996, Serb leader Milan Martic was indicted by The Hague tribunal for launching a rocket cluster-bomb attack on military targets in Zagreb in May 1995, on the grounds that the rocket was not designed to hit military targets but to terrorise Zagreb civilians (4). Similar allegations could be made against NATO for numerous bombing raids – such as the cluster-bombing of Nis in May 1999, in which a market and hospital far from any military target were hit in separate strikes.

But no indictment will be brought against NATO leaders. Why? Because the decision about where to draw the line between lawful and unlawful acts of war is a political one.

A political judgement is required when deciding how, when and why to draw the line on war crimes – and it is for this reason that political support and accountability for the drawing of the line is particularly important when it comes to war crimes prosecutions. But the political process that oversees a national court system does not work when it comes to international tribunals.

International criminal tribunals claim a universal, rather than a national, jurisdiction to act on behalf of humanity as a whole. As Carla Del Ponte, The Hague tribunal’s chief prosecutor, said in her opening address at the Milosevic trial: ‘The law of this tribunal – international humanitarian law – is the concern of people everywhere.’ (5) But how does the tribunal know what people everywhere are thinking? How does it take into account the views of the nation most affected by the alleged crimes? Or the effect that a prosecution might have on that nation’s stability?

National courts act within the framework of a concrete entity: the nation state. When The Hague tribunal claims to act in the name of humanity, it is acting within the framework of an abstract entity. In practice, that abstract entity is defined by those who have power on the international stage.

At The Hague tribunal, NATO has decided who will be prosecuted and why. Geoffrey Robertson suggests that for much of the 1990s NATO went ‘out of its way to protect Milosevic against indictment by the Hague Tribunal’. But a few weeks into NATO’s Kosovo campaign, the position had changed: ‘Now, war required [Milosevic’s] criminalisation, so the Hague prosecutor, Louise Arbour, was summoned to London to be handed by UK foreign secretary Robin Cook some NSA/GCHQ intercepts.’ Shortly afterwards, Milosevic was indicted (6).

Two years later, Milosevic was transferred to The Hague – a transfer secured by international coercion in the form of $1.3billion in international aid and contrary to the wishes of Yugoslavia’s elected president (7). Now that Milosevic’s trial has started, even Zoran Djindjic, Serbian prime minister and one of Milosevic’s most bitter opponents, has denounced the tribunal as a ‘circus’ and warned that handing over its number one targets, former Bosnian Serb leaders Radovan Karadzic and General Ratko Mladic, could lead to civil war. Indeed, as Kosovo Albanians testify in the tribunal that they witnessed no bombing of civilians by NATO in 1999, many Serbs with vivid memories of the bombardment are starting to see Milosevic as their ally. In Belgrade, Radmila Simic, the wealthy wife of a successful Yugoslav businessman said: ‘I really, really hate the West now, even more than during the bombing. I am so afraid now that they are going to make me love Milosevic.’ (8)

Carla Del Ponte claims to be acting in the name of humanity – but in reality she is acting in NATO’s interests and with scant regard to the interests of people in Yugoslavia, most of whom regard Milosevic’s prosecution as an irrelevance or, worse, a travesty of justice.

So how did Nuremberg deal with these two peculiar features of an international criminal prosecution? After all, at a technical level the bombing of Warsaw, London, Rotterdam, Coventry and Belgrade by the Nazis may have been equivalent to the bombing of Hamburg, Dresden and other German cities by the Allies. But they were not considered to be morally equivalent. The wholesale defeat of Nazism allowed the Nuremberg tribunal to draw a moral distinction between Nazis and their opponents. Nazis were responsible for plunging the world into a war during which they committed the most appalling atrocities; they were war criminals who should be hanged. Their opponents, by contrast, were viewed as war heroes who had fought for freedom.

Strictly speaking, the Nuremberg tribunal, unlike The Hague tribunal, didn’t have to address the issue of universal jurisdiction. Instead, it exercised the sovereign power that existed in Germany after the German Reich’s unconditional surrender. But Nuremberg could no doubt have claimed to be acting on behalf of humanity, such was the worldwide revulsion felt for the Nazis.

Nuremberg was unique. The unique horror of the Holocaust and the subsequent defeat of Nazism gave Nuremberg the moral authority to draw a line between good and evil. Justice was swift – after a 10-month trial 19 Nazis were convicted, 12 of whom were sentenced to death (9). The modern-day supporters of international criminal law who criticise Nuremberg for administering ‘victor’s justice’ miss the point entirely. It was precisely victory over Nazism that made justice possible. This justice may not have been legally fair – but still, justice in its more rounded sense was done and was seen to be done.

The uniqueness of Nuremberg is highlighted by the comparative failure of its sister tribunal that sat in Tokyo after the Second World War. The Allies’ big problem in the Far East was that they did not have the moral authority that they had in Europe, due to their record of imperialism in Asia. Also, the catastrophic effect of dropping the atom bomb over Hiroshima and Nagasaki made many question why Allied leaders were not in the Tokyo dock.

The Tokyo tribunal accommodated to these sentiments by granting Emperor Hirohito immunity from prosecution. The USA’s General MacArthur wanted to prevent a possible violent reaction from the Japanese people seeing their God-monarch in the dock of a Western-run trial. But Hirohito’s immunity undermined the prosecution of his ministers and generals, who would not have acted as they did if His Majesty had so ordered (10).

The Tokyo trials lasted twice as long as Nuremberg, and the judges spent seven months writing their opinions. Whereas all four of the Nuremberg judges had agreed on the guilt or innocence of their defendants, in Tokyo all 28 defendants were found guilty by a majority vote of eight to three (seven defendants were hanged and the rest received lengthy prison sentences). The Tokyo tribunal’s majority judgement was followed by four dissenting opinions. Given the unsatisfactory nature of the trial there was no official publication of the judgment – but the forthright dissent by Justice Pal, who had found each defendant not guilty, was published privately in 1952 under the title On Japan Being Not Guilty.

Today’s supporters of international criminal justice often talk fondly of Nuremberg while conveniently forgetting about Tokyo. But Tokyo deserves greater consideration, because it highlights the uniqueness of Nuremberg and shows what can go wrong when an international criminal tribunal lacks the degree of moral authority necessary to judge suspected war criminals.

In contrast to the Second World War, the problem for The Hague tribunal is that there have been no victors in the wars that engulfed the former Yugoslavia during the 1990s. During the Bosnian conflict in the early 1990s through to the Kosovo campaign of 1999, many Western commentators and politicians compared the Serbs to the Nazis, with talk of concentration camps and genocide. Subsequently, however, it is more widely understood that the war in the former Yugoslavia was a tragedy for all who became embroiled in it, with many atrocities committed on all sides. For all The Hague prosecution’s talk of Milosevic’s ‘mediaeval savagery’, his actions cannot be compared to the actions of the Nazis.

This makes it difficult to view the war crimes tribunal in clear-cut terms, as a forum for dispensing universal justice. The tribunal was set up by the West as a symbol of its moral authority to provide justice, but the fact that it actually lacks the authority to do this is indicated by the defensiveness of those running the tribunal. The emphasis on making a show of fairness, and the extent to which the tribunal has had to accommodate to criticisms, is a long way from the absolute authority of the Nuremberg courts. The prosecution has emphasised that international justice is on trial, whereas in Nuremberg, it was very clear that the Nazis were on trial. Some even thought that this was unnecessary – Winston Churchill famously remarked that the Nazis should just be put up against a wall and shot.

Unlike Nuremberg, today’s war crimes tribunal expresses neither national sovereignty nor the popular will. In so far as the tribunal has secured cooperation from Croatia, Bosnia and Yugoslavia (that is, Serbia and Montenegro), it has been done by NATO arm-twisting rather than by moral persuasion. NATO’s continuing failure to apprehend Karadzic in Bosnia and to secure the extradition of Mladic from Serbia captures the tribunal’s lack of authority over Serbs in Bosnia and Yugoslavia.

By Nuremberg standards, Milosevic is being treated fairly – although that isn’t saying much. Since the trial got underway, the judges aren’t turning off his microphone so often (as they did at the start), and he has succeeded in excluding the hearsay evidence of a key prosecution witness who had gathered more than 1000 witness statements from Kosovars. The Hague tribunal is trying to boost its legitimacy by acting fairly.

But acting fairly could actually undermine the tribunal’s raison d’être – calling into question the court’s claims to be acting on behalf of humanity. The acts of war being tried at The Hague do not compare to the crimes carried out by the Nazis, robbing the tribunal of the claims to absolute moral authority that were made by the Nuremberg tribunal. Instead, fairness might even mean allowing Milosevic to expose the deals that the West did with him for most of the 1990s and allow him to call evidence of alleged NATO war crimes in Kosovo.

No wonder the USA has been kicking up a stink about the cost of the tribunal, blocking its budget for the next two years and calling on it to come up with a ‘completion strategy’ (11).

While Milosevic fights it out in The Hague, the irony is that the people of Yugoslavia are being denied the right to try their former president for crimes of their choosing. If Milosevic, who was overthrown by a popular uprising, had not been transferred to The Hague he would probably have been tried in Yugoslavia for corruption. A Yugoslav court, applying Yugoslav laws against a Yugoslav defendant, would not have been short of legitimacy. Such a court could have ensured that Milosevic got justice.

Jon Holbrook is a barrister based in London. Email Jon.Holbrook@btinternet.com

Read on:

In defence of sovereignty, by Jon Holbrook

Spotlight on Camp X-Ray, by Jon Holbrook

(1) See, for example, An Unindicted War Criminal: Louise Arbour and the International Crimes Tribunal, Christopher Black and Edward S Herman, Z Magazine, February 2000

(2) Crimes Against Humanity: The Struggle for Global Justice, Geoffrey Robertson QC, 2000, Penguin, p214

(3) Martin is cleared on murder count, Richard Alleyne, Daily Telegraph, 31 October 2001

(4) Indictment of Milan Martic

(5) Transcript: Carla Del Ponte’s address, BBC News, 12 February 2002

(6) Crimes Against Humanity: The Struggle for Global Justice, Geoffrey Robertson QC, 2000, Penguin, p418

(7) ‘Government collapses as ministers quit’, The Times, 30 June 2001

(8) Back to the bad old days, Eve Ann Prentice, The Times, 5 March 2002

(9) Judging War Criminals: The Politics of International Justice, Yves Beigbeder, Palgrave, 1999, p38

(10) Judging War Criminals: The Politics of International Justice, Yves Beigbeder, Palgrave, 1999, p57

(11) ‘Trial’s political and financial cost questioned’, The Times, Misha Glenny, 14 February 2002