The Nuremberg moment and the birth of international law

The Nuremberg moment happened in 1945: a group of countries came together to create the first-ever international criminal tribunal with jurisdiction over crimes against humanity and war crimes. It was the famous Nuremberg tribunal, and it sat for about a year in the German city of Nuremberg, trying a number of senior Nazis for crimes committed during their rule.

What followed Nuremberg was the creation of new international treaties preventing genocide, and the coining of the idea of human rights – that each of us has basic rights under international law – and that was accompanied by new international organisations and, for the first time, international courts and tribunals: the International Court of Justice, the European Court of Human Rights, the Court of Justice of the European Union and various other bodies which were intended to ensure the rights of individuals and groups were fully protected.

It took time, and it wasn’t until the 1990s, in the context of the terrible events in Yugoslavia and Rwanda, that two new international criminal tribunals were created. Then, in 1998, an international criminal court was established; for the first time, a permanent body which had jurisdiction not only over war crimes and the crime of aggression, but also crimes against humanity and genocide. This represents the coming of age of the idea of human rights, of international criminal law and of the role of international courts and tribunals in our daily lives.

The terrible events in Yugoslavia and Rwanda happened in 1993 and 1994, and ran for several years. The international community failed to prevent the atrocities, and I believe that, motivated by pangs of guilt and conscience, they decided that having not prevented these things from happening, they would at least punish the perpetrators. In the context of the Security Council, a body created under the auspices of the United Nations charter, it was decided to create two new international criminal tribunals: one for Yugoslavia and one for Rwanda. These were the first international tribunals created since Nuremberg and its parallel Tokyo tribunal, and these tribunals had jurisdiction over the most heinous of international crimes – war crimes, genocide and crimes against humanity. They operated for about 20 years, trying the perpetrators who were still alive and who had been caught.

The Yugoslav and Rwandan tribunals indicted, prosecuted and convicted a great number of individuals. Did they succeed? The jury, I believe, is still out. What they allowed was a story to be told in both parts of the world about what had happened. Will they prevent further atrocities in those areas or in other parts of the world? We will have to wait and see. Did they punish all the perpetrators? No, they did not. Did they set a standard? Yes, they did, and from this standard, there will be further developments going forward over time. But Yugoslavia and Rwanda were crucial moments. After 50 years of quiescence, Nuremberg took off again, and all roads in international criminal justice today lead back to that Nuremberg moment of 1945.

After the Nuremberg Judgment, which was handed down in 1946, the governments of the world decided that what they really wanted was a permanent international criminal court. That, however, didn’t happen for 50 years. Finally, in the summer of 1998 – I was there for the negotiations – States agreed to sign the statute of the International Criminal Court, which would have jurisdiction over war crimes, crimes against humanity and genocide and the crime of aggression. That international court began to operate three or four years later, and it’s been operating for about twenty years now.

It is not a perfect court. For example, if you go onto the website of the International Criminal Court, you will see that every single person who has been indicted is Black and from Africa – and Black people and African people do not have a monopoly on international crime. So, it reflects a sort of lopsided justice. A lot of people are aware of this problem, and it’s one that needs to be addressed urgently.

The Nuremberg moment had another consequence because it ratified the idea of the most terrible international crimes: war crimes, crimes against humanity and genocide. What followed was the development of international criminal law at the national level. The national criminal courts and other courts will also exercise jurisdiction on the principle of universal jurisdiction. That’s to say, certain crimes are so terrible that any court anywhere in the world has the power to exercise jurisdiction over them.

The Pinochet moment, which followed about 50 years after the Nuremberg moment, was revolutionary. This was the first time ever that a national court had exercised jurisdiction over a former head of state for international crimes. This, of course, opened the door. New cases were brought and proceedings have subsequently been entertained in different places. For example, the leader Hissène Habré was indicted, charged and convicted. We now have established the principle that there is no impunity for international crimes. Wherever they are committed, you are liable to the possible prosecution not only in international courts but also if you travel in national courts.

That is one of the reasons, for example, I am told former President George W. Bush doesn’t travel abroad, because he authorised an act known as waterboarding, which I consider to be torture. Other people like Donald Rumsfeld do not apparently travel abroad because of, in part, a fear that they might be questioned or prosecuted.

Until 1945, heads of state and leaders were free to treat their citizens as they wished. The idea that they were subject to limits was entirely new and revolutionary, in 1945. You cannot expect a set of principles that have applied for millennia to suddenly be changed and take effect. So, we are in the very early stages of a change that will take many decades, if not centuries, to bear full fruition. There is resistance against the idea of international criminal justice in some quarters, and that is why some perpetrators of the most serious international crimes – for example, President Assad of Syria – have not been subjected to criminal investigation or prosecution. Some governments have blocked efforts to create a new international tribunal to refer his case to the International Criminal Court. So, it’s a long game and we’re still in the early days in constructing this international justice project.