From Nuremberg to The Hague*
I am grateful to John Norton Moore and Robinson O. Everett for inviting me to this important conference on Nuremberg and the Rule of Law: A Fifty-Year Verdict. Both the establishment of the Nuremberg Tribunals and of the ad hoc Tribunals for the Former Yugoslavia and Rwanda were of major, perhaps even monumental importance for the establishment of the rule of law in the international community. My task as a commentator has been made easy by the comprehensive and thoughtful paper of my friend Graham Blewitt.
The time could not be more suitable for such a conference, and especially for some reflections on ad hoc Tribunals half a century after Nuremberg. The subject is vast and I have selected a few themes as a focus for my remarks comparing the two ad hoc Tribunals established by the Security Council to Nuremberg.
We often describe the ad hoc Tribunals as the first international criminal tribunals since Nuremberg. The institutional settings are quite different, however. Nuremberg was the first multinational criminal tribunal. I hesitate to repeat the commonly used term "victors' court" because this would imply an arbitrary, perhaps unjust tribunal. Yet, despite certain shortcomings of due process rules of Nuremberg, which I shall mention, Nuremberg was neither arbitrary nor unjust. It tempered the Charter's harsh rules to protect the accused, it assessed evidence according to accepted and fair legal standards, and was even ready to acquit outright some defendants. Although tu quoque arguments were not addressed directly, they were important as the underpinnings of the proceedings. Because of them, some offences were not prosecuted (e.g., the bombing of Coventry) and some charges were rejected on the ground that similar practices of the Allies demonstrated that certain norms did not harden into clear prohibitory rules ( Doenitz, von Raeder, and unrestricted submarine warfare).
That victors sat in judgment did not corrupt the essential fairness of the proceedings. Some German critics of Nuremberg acknowledged that____________________