By Sophie Brinkel
On the 10th of November, we visited the International Nuremberg Principles Academy, created in 2014 to teach students from all over the world about international criminal law and human rights. Here we interviewed Bernd Borchardt, the founding director of the Academy, and dr. Sigall Horovitz, who works for the Educational Department of the Academy and who is a specialist in international criminal law and transitional justice.
Q: Was the idea of transitional justice part of the negotiations on the Tribunal?
Mr. Bernd Borchardt: It was not, as the conceptual idea of transitional justice was only developed much later. Nevertheless, the allies had drafted and implemented a plan to re-educate the Germans and many elements of this re-education plan would be considered today as part of transitional justice. This plan consisted of criminal justice, comprising the Tribunal and the subsequent trials, as well as an elite change, the payment of compensation and finally it encompassed complex political questions aimed at avoiding reoccurrence.
Dr. Sigall Horovitz: The rule of law was a fundamental principle that was part of the negotiations on the Tribunal, and one which the allied forces tried to promote globally. This is a change from power politics to rule-of-law-based politics. This connects to ideas on transitional justice, of turning a dictatorship, a man-based power structure, into more peaceful and rule-based regime. The whole notion of the rule of law and installing that, not only in Germany, but also in international politics, provides a link between the Tribunal and transitional justice on a more global level. We do still speak of the rule of law as one of the fundamental goals of transitional justice.
Q: After the trial, was there a general feeling that justice had been done – on both sides?
Mr. Bernd Borchardt: The effects of the trials on the German population, how these trials were perceived and why they were perceived in that way, are some of the issues which are fairly under-researched. The Americans conducted several polls in Germany in 1945-1946 and the reaction of the majority was positive. The public opinion changed with the start of the 1950s, late 1940s, as subsequent trials dug deeper into society. The general population could no longer simply blame the upper bourgeoisie because the subsequent trials concerned diplomats, doctors and army generals. Furthermore, people in Germany got more aware of German victims and German suffering.
Dr. Sigall Horovitz: The legal debates of the time show that German lawyers were criticizing the Tribunal for targeting only the German side, and it was regarded as victor’s justice. The allied forces had committed crimes as well and that they were not standing trial for it. Additionally, German victims were not accounted for in the context of the trial. So these were the arguments which challenged and criticized the Tribunal, brought forward by German legal scholars throughout the 1950s and 1960s. Eventually, there was a change in perception: the inclination of Germans to deal with the past on many levels increased over time and gradually the Tribunal, its results and procedures were more accepted.
Mr. Bernd Borchardt: This was a very long process. One could say that it started with the Auschwitz trial, from 1963-1965. A new generation questioned the parent generation: what have you done? More trials followed, and these were covered extensively by the media. More people had television sets at home and they could see all the pictures. So this contributed to a gradual shift in the public perception in Germany.
Q: The Tribunal was the first international criminal tribunal that could hold individuals responsible under international law. Why did the parties involved decide to create such a tribunal at this moment in history?
Dr. Sigall Horovitz: There was a willingness to shift from power politics to rule-based politics. It was also part of the lessons learned from World War I: the Leipzig trials were more or less a farce. Consequently the allied powers decided against Germany conducting national trials and – with the desire to move towards this rule-of-law-based international politics – reasoned that an international tribunal could be the only solution. Additionally, there was this idea that international law prohibited certain acts, even if these acts were considered legal internally. It is exactly this idea that is the main contribution to the field of international criminal law.
Q: The American judge of the Tribunal proposed the drafting of a code of international criminal law in 1946 – why did it take 43 years before negotiations started in 1989 on a permanent international criminal court?
Dr. Sigall Horovitz: The Cold War. The impossibility of collaboration between the world powers on basically any subject. This polarized world prevented cooperation. Nevertheless, already in the early 1950s there was a draft statute of crimes against mankind which the International Law Commission had presented in the United Nations. However, when it came down to actual decision-making on the international level, progress was hampered by the power politics of the time. But drafts were being prepared and work was being done behind the scenes, so there was a process that was ongoing that could only materialize after the end of the Cold War.
Q: How can one justify that the Tribunal’s Charter, the case law of the tribunal and the Nuremberg principles in general are the basis for modern international criminal law if only a few countries were involved in its creation? Can one say that the basis for modern international criminal law lies in the negotiations, agreements and judgments of the war’s victors?
Dr. Sigall Horovitz: The idea of introducing the rule of law as the basis for international relations was revolutionary at the time, but it was endorsed by the larger international community. So while these ideas were proposed by only a few states at that time, they became very quickly endorsed by the international community as a whole. These ideas were incorporated in the Nuremberg Principles, in all the human rights conventions and later in the international tribunals. So even though the origins of international criminal law lie in the proposals of a few states, these proposals and ideas were quickly endorsed by many nations. Therefore these origins can still be accepted as a legitimate basis for modern international criminal law.