Making Good on Nuremberg

>KAMPALA -- On the margins of the Review Conference for the International Criminal Court -- a two-week convocation at Lake Victoria, outside the Ugandan capital -- delegates and non-governmental officials from more than 100 countries have attended screenings of a newly restored version of "Nuremberg: Its Lesson for Today," a 1948 documentary on the trial of key members of the Nazi hierarchy. The film concludes with a powerful summation by the chief U.S. prosecutor for the trials, Robert H. Jackson: "Nuremberg stands as a warning to all those who plan and wage aggressive war." It's a message echoed by former Nuremberg prosecutor Benjamin B. Ferencz and others here this week, who hope to spur conference delegates to approve a new statute for prosecuting the crime of aggression.


Whether or not delegates succeed in codifying such a crime before the conference closes on Friday, Nuremberg's unfinished business has been one of its major themes. And it's a major conference: the most significant convocation of international law experts since the gathering in Rome 12 years ago that gave birth to the International Criminal Court (ICC). Nearly 65 years after the Nuremberg judgment of 1946, the world has yet to achieve a reliable system for assuring that perpetrators of society's worst offenses -- genocide and crimes against humanity -- are held to account.

The ICC was intended to achieve such a system, but even supporters of the Court are ambivalent about its record to date, given that it has yet to complete its first trial, and that its most celebrated indictees -- Sudan's president Omar al-Bashir and Joseph Kony, the notorious Ugandan leader of the Lord's Resistance Army -- are still at large. Plans to implement a system of victim reparations remain unfulfilled, as is the intention to help strengthen judicial and other institutional capacities of member states, such as the Democratic Republic of Congo, so that they can take the lead in prosecuting their own cases.

While the court is still young -- and some of its problems can be traced to non-cooperation by individual states and other political factors beyond the ICC's control -- at this point, the court's track record cannot match those of the more focused tribunals that prosecuted war-crime perpetrators in the former Yugoslavia, Rwanda, and Sierra Leone. "The most important thing this conference can do is improve the Court and strengthen the system of international justice," War Crimes Ambassador Stephen J. Rapp, the co-chair of the U.S. delegation here, told me.

The presence of a sizeable and active U.S. delegation, led by Rapp and State Department legal adviser Harold Hongju Koh, is a big story here in Uganda. The Bush Administration had been deeply skeptical of the Court, and early in its tenure had "unsigned" the Rome statute -- which President Clinton had previously agreed to but did not submit for Senate ratification. In later years, Bush officials relaxed their opposition to the Court and permitted the UN Security Council to refer the atrocities in Darfur for consideration by the ICC prosecutor. 

Although the 18-person U.S. delegation is only here as a "non-state party" -- and the U.S. officially joining the Court is not in the cards for now -- its presence looms large. The size and composition of the delegation, which includes officials from State, Justice, and the Pentagon, are signals that the administration is committed to strengthening the Court. They are also perhaps signs of the political sensitivities of deepening U.S. involvement with an institution that has many vocal critics at home.

The debate over the crime of aggression has been the major focus of the talks here, with the United States and the other permanent members of the Security Council on one side and Germany, Brazil, and many smaller countries, on the other. Proponents see the statute under debate as a key step to fulfilling the Nuremberg legacy while reining in aggressor states. The U.S. and others are worried, however, that such a statute could be used to criminalize the lawful use of force (to stop a genocide, for instance) or lead to unjustified prosecutions of political leaders by other countries. Negotiations for a compromise have been intensifying in recent days.

The focus on aggression has perhaps distracted from the other main purpose of the conference: to take stock of how the international justice system is functioning. Last week, delegates engaged in lengthy explorations of related themes, such as the impact of the Rome Statute on victims and enhancing the cooperation of states with the ICC. One particularly involving discussion for delegates, on the tensions between peace and justice, looked at the question of whether ICC prosecutions have interfered with the resolution of conflict in places like Sudan and Uganda.

Whatever the flaws of the ICC, the discussions here have highlighted the extent to which the Court has become a consequential presence on the international scene. Many countries are clearly committed to making the Court the key international institution for enforcing accountability for gross human right violations. The president of Sudan and other alleged perpetrators cannot travel freely for fear that they will end up in the dock in the Hague. For better or worse, mediators seeking to end longstanding conflicts can no longer promise leading war criminals that they will not be prosecuted, because Court prosecutors are not bound by mediated agreements. "Amnesty is now off the table in the era of the ICC," said David Tolbert, the new president of the International Center for Transitional Justice, addressing delegates last week.

Perhaps most significantly, victims and survivors of atrocities are now looking to the Court for some measure of justice. One of the more moving elements of the week's proceedings has been the presence and testimony of ordinary people from places such as Congo and Sudan, who have been celebrating court indictments and prosecutions, even some that so far remain incomplete, as a promise that the crimes they suffered will not go unpunished.

I spoke with two women from Northern Uganda, where a brutal 20-year conflict involving Kony's Lord's Resistance Army displaced close to 2 million people and resulted in some of the worst atrocities endured by civilians anywhere in recent years. The Ugandan government's decision to refer Kony and his associates to the ICC, which has issued a warrant for their arrest, was controversial in Africa. But Margaret Elem, a teacher, and Odongkara Lilly Apio, a social worker and local political leader, said that they wanted to come to the conference to make clear their support for the ICC's action -- and their conviction that the Court has finally put justice within their reach.

Kony and his dwindling band of militia fighters are believed to be operating somewhere in eastern Congo or the Central African Republic, but they have disappeared from the region in Uganda they once terrorized, and peace has largely returned. "We are so grateful for what the ICC has done," said Apio. "Whether we like the ICC or not, it is the ICC which made Kony take off. That is when the guns went silent."

Apio said that unless perpetrators like Kony are held to account, post-conflict societies will never be able to fully heal. "Victims and survivors will keep it in their hearts for 100 years if they don't have justice," she said. "If justice prevails, people will say it is time for forgiveness."
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Michael Abramowitz directs the genocide prevention program of the U.S. Holocaust Memorial Museum.

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