Conference examines legacy of World War II war crimes trials

BY ROBERT A. COHN, EDITOR-IN-CHIEF EMERITUS

In remarks to a symposium titled “Judgment at Nuremberg,” marking the 60th anniversary of the verdicts rendered in the cases of the 22 top surviving officers of Adolf Hitler and Nazi Germany, Sen. Christopher S. Dodd, D-Conn, said, “for 60 years, a single word has best captured America’s moral authority and commitment to justice: Nuremberg,” but warned that Senate passage of the military tribunals bill earlier that same week could lead to the loss of that moral authority.

Dodd, whose late father, Sen. Thomas Dodd has served as a prosecutor at Nuremberg, added, “If as some argued, we can trace the roots of our post-war moral authority to a single speech — the opening statement of (Presiding Judge) Justice (Robert H.) Jackson at Nuremberg, we may also be able to trace its loss to a single speech by an American president, standing in the Rose Garden, trying to convince members of his own party that America should reinterpret the Geneva Accords that have defined human rights in this world for half a century-to allow torture.”

This could lead, Dodd said to the risk “that future generations will look back at this time, as Ted Sorensen has suggested, and be able to capture the loss of America’s moral authority and commitment to justice also with a single word: Guantanamo.”

Dodd was the principal speaker at the dinner and speaker session on the second day of the three-day conference, which was presented by the Washington University School of Law, the Whitney R. Harris Institute for Global Legal Studies and the university’s department of philosophy. Speakers from all over the nation and around the world attended the conference, including all three surviving members of the original American prosecution team of Justice Robert H. Jackson, who headed the Nuremberg War Crimes Tribunal; a member of the International Criminal Court and leading local, national and international scholars on the Holocaust.

St. Louis attorney Whitney R. Harris, along with fellow attorneys Henry King and Benjamin Ferencz, the surviving prosecutors all spoke and presented papers at the symposium, at which most of the sessions were held in the Bryan Cave Moot Courtroom in the Anheuser Busch School of Law building on the main campus of Washington University.

Not only Senator Dodd, but numerous other speakers on the program expressed concern and even dismay over the passage of legislation by the U.S. Senate, which Dodd and others said “undermined” the principles of the rule of law, due process and respect for the Geneva Conventions and other precedents of international law which resulted from the l946 Nuremberg War Crimes Tribunal verdicts.

Dodd said “once again, history asks: why not just give in to vengeance? Why not just give in to the inhumane treatment of prisoners? Why not just lock them away in secret prisons? Why not just abandon the rule of law and the right to a fair trial?….Why not? Because America has always stood for something more….The idea that this nation nation should never tailor its eternal principles to the conflict of the moment, because if we did, we would be walking in the footsteps of the enemy we despised.

“At Nuremberg,” Dodd continued, “we rejected the certainty of execution for the uncertainty of a trial. The test was one of principle over power, and we passed the test.”

In his remarks, Dodd drew upon more than 400 letters sent by his late father, Sen. Thomas Dodd, a prosecutor at Nuremberg, had sent to his family. “You can imagine my shock when on the evening of July 28, l990, I sat down to begin reading the letters and realized that the first letter to my mother was written on July 28, l945 — 45 years earlier, to the day. We remember the prosecutors at Nuremberg as giants, and we don’t think back to the human side of the experience. Most of the letters were devoted to how much he missed his wife and children. Make no mistake about it, with five children at home, I think my mother had the harder job during Nuremberg.”

Dodd praised the post-Nuremberg role played by Whitney Harris and other former prosecutors. “When Nuremberg was over, men like Whitney Harris took those same ideals and argued for international institutions that would serve the common good of all nations — for a U.N. system, for NATO, for a World Bank, for an International Monetary Fund. Very few people knew their political leanings. But everybody knew they were patriots.”

The symposium alternated between carefully researched academic papers and speeches and frequent expressions of emotion and frustration not only over recent actions which speakers said violated the principles established by the Nuremberg Trials, and the fact that even as the conference unfolded, the slaughter continues in the Darfur region of Sudan, which has already claimed the lives of between 200,000 and 400,000 civilians and driven more than l million from their homes.

In his remarks, Henry R. King, Jr., one of the three surviving prosecutors in attendance, differentiated the Nuremberg Trials from more recent war crimes tribunals. “The Nuremberg Trials established the modern Laws of War and laid the ad hoc international tribunals erected in the past l5 years and the permanent International Criminal Court.

“One of the difficulties in comparing Nuremberg to its modern descendants is that the Nuremberg Trials were conducted under ideal conditions. Germany and Italy had unconditionally surrendered and the defendants were already in the custody and under the control of the victorious powers, as was the enormous amount of incriminating documentary evidence. The world’s nation states as a whole endorsed the trials and the daily press coverage made its proceedings transparent to and understandable to the general public, including the Germans,” King said.

King pointed out that in such cases as Darfur, the former Yugoslavia and western Africa, which have been investigated by ad hoc tribunals and the recently established International Criminal Court, “the modern war crimes tribunals have not been conducted under the same ideal circumstances. Major powers on the United Nations Security Council have not given their unstinting support, particularly when they deem their self-interests are at sake. Financial short-falls have hampered the gathering of evidence and the apprehension of indicted defendants, both tasks which have been made even more difficult by uncooperative local governments.”

The frustrations outlined by King were echoed by Leila Sadat, Washington University professor of law, who was a principal organizer of the conference, and who chaired some major sessions of the symposium. Sadat said she “shared the frustrations and deep concerns” over the failure of the international community to stop the slaughter in Darfur, which the U.S. Senate and State Dept. have labeled a “genocide,” but cited the under-funding of the efforts by the International Criminal Court as a major reason for this fact. Her concerns were shared by Justice Hans-Peter Kaul, who serves as Germany’s representative on the International Criminal Court.

Kaul and other speakers lamented the fact that although U.S. delegates and principles played major roles in the creation of the International Criminal Court, the U.S. has refused to ratify the treaty setting up the court, citing concerns that it could subject American military personnel to prosecution as war criminals.

“The problem basically that the government of the United States does not want to submit itself to the same rules that are applied to other countries, and has convinced the American people that this is the only way to keep them secure,” said King in his remarks.

“The United States now has the opportunity to take the lead in this aspect of international law,” King continued. “Identifying and addressing gaps in current laws and treaties could be the most significant legal development since Nuremberg…the U.S. could lead the world in agreeing to new playing rules which could effectively counter genocide, terrorism and the threat of rogue states.”

In his remarks, Whitney Harris, now 94 and in remarkably vigorous physical health, waxed philosophical, saying, “The challenge to man is to establish and maintain the foundations of peace and humanity upon the Earth for the centuries to come that God has allotted to us on this planet. We must learn and protect life, to seek justice and find mercy, to help others and embrace compassion. Each must respect every other person and honor the God who made this incredible mystery of life a reality.”

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