Public Lecture "100 Years of Turpitude: A Century of War Crimes Trials" by Prof. Gerry Simpson

ladies and gentlemen welcome to Nuremberg welcome to courtroom 600 wonderful to see you it's my great pleasure to introduce the lecture of tonight my name is Vivian Dietrich deputy director of the international Nuremberg principles Academy it is our great pleasure today to host Professor Gary Simpson who's an eminent expert in the field he's a chair of public international law at the London School of Economics and political science and also a fellow at the British Academy he has published many many articles which would not be able to enumerate here but of course he's also the author of a number of prize-winning books including great powers and outdoor states including law war and crime including war crimes trials and the reinvention of international law the hidden histories of war crimes trials beyond Victor's justice the Tokyo war crimes trials revisited and who's afraid of international law he teaches public international law and international criminal law at the London School of Economics and political science and was here fairly recently in Nuremberg at the international conference that the International Nuremberg principles Academy organized in May 2018 on the 70th anniversary of the judgement of the International Military Tribunal for the Far East so it's a wonderful pleasure to welcome you yet again here in Nuremberg and we very much look forward to your lecture tonight with the intriguing title 100 years of turpitude a century of war crimes truths so without further ado I hand the floor over to Professor Simpson and very much look forward to the discussion afterwards thank you very much and welcome [Applause] well thank you so much for the end for that introduction and thank you Marian for for setting up this trip for me it's it's just such a privilege to be speaking in this courtroom I think I've always had a sort of long-standing interest in the euro burg war crimes trials which precedes my time as a as an academic and writer on this matter so it's yes it's a double thrill to be to be standing here I'm giving this this talk today so 100 years of turpitude it's actually you know 104 years of turpitude I was speaking about because my story begins in 1915 this fitted better as a lecture in 2015 and 2019 but it but I think it will work here too so I'm gonna start really in a way towards the end of the story of international criminal law with a moment's in New York in 2015 involving the then foreign secretary of Australia Julie Bishop and let me just read out a quote from the New York Times despite and she's here in 2015 just after the downing of the Malaysian Airlines jet over the Ukraine in in this particular period so this is a quote from the New York Times despite an impassioned speech by its foreign minister there was a failure to win Security Council support today for a resolution condemning the state for the downing of the airliner diplomats said they would have to settle for a less harshly worded statement interesting thing about that quote is it's not from 2015 it's from 1988 July the 14th so in this report in 1988 the destruction of the airliner is described by the sponsoring state as an act of pure terrorism a ruthless crime but the state allegedly responsible for the act called it a tragic but understandable mistake so in early July 1988 an Iranian Airbus flight 655 carrying 290 passengers was shot out of the sky by two missiles fired from a US warship the captain of the US warship was eventually commanded for his action with a legion of merit soon to be President George Bush senior said on the election trail at the time I will never apologize for the United States I don't care what the facts are the International Civil Aviation Council meanwhile at its meeting in Montreal in March 1989 and I quote deeply deplored the tragic incident which occurred as a consequence of events and errors resulting in the accidental destruction of an Iran Air airliner well all of this in 1988 sounds awfully like the events surrounding the shooting down of mh17 but one very important distinction between the incident in 1988 and the incident in 2015 and said it's a distinction that lies at the heart of my top tonight is that the Iranians in 1988 wanted a Security Council resolution condemning the United States The Australian's in 2015 certainly wanted that but they wanted something else as well they asked the council to establish a war crimes tribunal to try those responsible for the deaths of the passengers so the Security Council draft resolution in 2015 was very circumspect in its language with the council convinced that in the particular circumstances of this incident the establishment of an international criminal tribunal is warranted and deciding to establish an international tribunal for the sole purpose of prosecuting those responsible I hope to show tonight that the particular this particular ISM and the language of the draft resolution is a standard feature of war crimes law and that it rubs up awkwardly against the apparent universalism of international criminal justice itself and the requirements of generality in at the heart of the rule of law now in my circumspect language Julie Bishop said that the failure to establish a court would be an insult to the memory of the dead and an affront to the survivors nothing less than war crimes prosecutions would satisfy the Australian government and the Australian people there must be no impunity she said the Russians vetoed the resolution naturally and the Russian veto as she put it only compounds the atrocity the Australian Prime Minister too called the Russian veto outrages Samantha power the u.s. permanent representative to the UN and the author of a well known book on war crimes and genocide described the attack as heinous and the use of the veto as tragic well it's doubtful that too many people listening to the radio broadcast of miss bishops speech would have found much to disagree with after all who could disagree with a call for justice so here we enter the literary part of the presentation in Sloane Wilson's novel the man in the gray flannel coat a judge Bernstein receives a phone call from Shultz a man demanding justice once Schultz get gets off the phone Bernstein reflects on the call how violent Schultz had sounded over the phone I want justice he had said the judge then reflects I wonder how many murders have been committed and how many wars have been fought with that as its slogan justice is a thing that is better to give than to receive but I am sick of giving it meanwhile another magistrate in John qetsiyah's waiting for the barbarians has bent his life administering law in a small fort at the end of an unnamed Empire when Colonel Joel from the state security services arrives to dispense justice in the form of lethal torture to two barbarian fishermen accused of terrorism the magistrate too becomes sick of justice justice he says once the word is uttered where will it all end later Colonel Joel of the State Security Service discovers that the magistrate has a collection of barbarian Scrolls he then takes this to be evidence of treason and the magistrate himself is then tortured at one point the magistrate is asked to read one of the scrolls see there is only one character it's the barbarian character war but it has other senses too it can stand for vengeance and if you turn it upside down like this it can be made to stand for justice there's no knowing what sense is intended and John Briggs the coroner in Roman Bennett's havoc in its third year too grows weary of the endless calls for justice and correction and like could see as magistrate Brig ends up choosing the refuge of the road over the administration of law so these novels are haunting studies about lives doing justice and the refusal in the end to do or continue to do justice there comes a point it seems when doing just this when one can no longer do public justice the world won't allow it or justice has become a revenge or the society has succumbed to what Judith but they're called penitentiary logic these three works of literature then describe a world weary of the endless search for perpetual justice an international law begins in this mode in 1648 when the great european religious wars of the sixteenth and seventeenth-century come to an end Muenster and osnabrück we have this from the peace of westphalia the treaties signed at Westphalia in that period and I'm quoting again that there shall be on the one side and the other a perpetual amnesty or pardon of all that has been committed since the beginning of these troubles and that all that has passed on one side and the other during the war shall be buried in eternal oblivion so it's these amnesties and pardons essential to the great diplomatic achievement at Westphalia that are now so often deplored of course by Amnesty International and others when mechanisms are used or when such mechanisms are used to shield human rights violators well I want to offer a critical stocktaking tonight of a century of doing or attempting to do international criminal justice and the central question I think can be posed in the following terms can international justice be done in this world and I mean this in non metaphysical terms in other words I'm not so interested in whether it can be done elsewhere though this was one of the standard lines of thought advanced by the Nazi war criminals Adolphe Eichmann for example whose name comes up a fair bit tonight demanded that he be judged before God and not before the district court of Jerusalem but let's bracket theological inquiry and ask whether the world is constituted in a way that permits us to do justice to put this simply is the international diplomatic system ready for international criminal justice to put it even more simply was the Nuremberg trial for example the trial of the century as it was described by the newspapers when the Allies in Robert Jackson's famous phrase stayed the hand of vengeance or was it in the words of another judge Jackson's US Supreme Court colleague Harlan Fiske stone a high grade lynching party or was it something in between so in the case of these magistrates in Bennett's and qetsiyah's are novels the societies in which justice is print being pronounced just seem too fragile violent radically unequal and full of crazy superstitions to accommodate a form of law this was the insight that the diplomats brought to Saxony in 1648 in a world where claims to justice or religious truth are pursued through violence its best the international diplomacy sets aside the claims of justice altogether and simply gets on with the not so simple task of making sure sovereigns at least get on with each other sovereignty in this way displaces or replaces justice now Antonio kisses a who many of you will of course have heard of defended international criminal law by saying that some of it was better than not all and this is an absolutely standard defense of the imperfections of international criminal justice is it possible that instead some of it might be worse than none of it indeed that a lot of it might be worse than none of it and that in order to think about this one must be attentive to the intimacy's between laws violence and the violence that law is intended to repress and alert to to the violence that law certainly international criminal law might be implicated in the perpetuation of well at the very least in my view these are possibilities worth considering but it's rather important that I say something else as well the trial of Hussein Harbor a or of Adolf Eichmann represent moments of tremendous catharsis and perhaps healing for the victims of mass atrocity so any critique of international criminal justice has to reckon with the enormous an entirely understandable emotional appeal of such trials well let me tease all of this out by returning to Julie Bishop there are a few things to notice about this tussle over mh17 between the Russians and the Australians and these markers will appear and reappear as we move through the century of war crimes trials this evening first of all something really profound has happened to the way we think about the world and I think this shift in sensibility can be felt in the differing responses to the 1988 incident and the present crisis or the crisis in 90 in 2015 it now seems entirely natural to call for war crimes trials in 2015 or 2019 in a way that would have seemed altogether incongruous or diplomatically malla Jawad's even as recently as 1988 but certainly in the 19th century and this reflects an adjustment in our thinking that dates back to the beginning of the 20th century in essence you could argue that we seem to be in a more retributive age now than we were at the end of the 19th century or at least that the mood of retro retribution now is much more juridical or law based than it was at the end of the 19th century so that what might have seemed entirely unnatural in 1915 has become utterly commonplace in 2015 of course we punish our enemies in trials haven't we always and indeed the language of war crimes law has become a primary idiom through which law is resisted too so in 2015 to argue against the misery of war is to speak like a lawyer in 1915 resistors spoke like poets now serious violations of the laws of war article 3 of the ICTY statute have displaced in our language what Seyfried Sassoon in 1915 called the butchered frantic gestures of the dead and you know one argument i've been making over the years is that this mayor this may represent both a loss again for us the shift from a poetic language in 1915 to a legal language in 2015 so this leads on to a second aspect of the mh17 and Iranian air bus disputes notice the way in which in both cases the injured State Australia and 2015 Iran in 1988 cast the offense in the language of crime or atrocity while the respondents state Russia in 2015 the United States in 1988 preferred to characterize the event as a human error or a political misjudgment and this I think to sums up the way in which the move from the 19th century to the 20th century can be thought of in terms of a revolution in the meaning of what it means to be defeated in war so what was once political folly became at a certain point a criminal act or as AJP Taylor the English historian once said in response to the call for war crimes trials states don't commit crimes they make mistakes so the 19th century we could call here the era of the mistake and the 20th century and the century were in the era of the crime so that among the North America North Atlantic elites decisions to go to war remain at worst mistakes in the 19th century style to be subject to administrative action see the various inquiries set up by the British government into the Iraq war Chilcott Hutton and Butler or subject to electoral reversal Blair aznar but elsewhere such mistakes quickly become crimes see Gaddafi's war on Benghazi so to put this much more rhetorically and a bit crudely their mistakes have become crimes while our mistakes remain mistakes third it's worth attending to the silences and evasions present when there's a call for a war crimes trial what is not being demanded might be a useful question in the case of the mh17 incident we might know that the Austria were not calling for a permanent tribunal to consider civil aviation terrorism or we might notice the lack of enthusiasm for a tribunal to look into alleged sri lankan killings of Tamils or the destruction of cultural property in Tibet so one encounter such proposals like the Australian proposal and thinks well why this and why not that and I think any institutional history of war crimes trials has to continually reckon with this question so with all that in mind let me begin my stocktaking of a hundred years of international criminal law in 1915 it's almost difficult to know when to begin a history of a particular field and just as a preliminary point one of the things I've noticed over the years is how international criminal lawyers have pushed the beginning of their history back further and further so it used to be the case that almost every standard history of war crimes trials began here in 1945-46 then the history was pushed back to Versailles and that's where I want to begin but of course people have pushed back further than that he proposed tribunals in the middle of the 19th century in Syria or indeed to ancient piracy as an example of early universal jurisdiction but I want to begin on August the 3rd 1915 with the court-martial of an English nurse called Edith Cavell so cavil had been found guilty of aiding allied prisoners in their escape from Belgium during the German occupation of Belgium she was convicted of a breach of German military regulations and an act of treason despite a flurry of diplomatic protests Cavell was executed on the morning of October the 14th at the National rifle range in Brussels the Germans already accused often falsely of unspeakable crimes against the Belgian population were immediately demonized further lloyd-george went to the 1918 election with one of the most compelling election slogans in British 20th century history hang the Kaiser so the promise was made and though the Kaiser remained resolutely unhanged after the war this promise becomes the foundation for international criminal law Kaiser Wilhelm died peacefully on June the 3rd 1941 a month or so before Hitler's invasion of the Soviet Union and these two events together in a way bring together two origins of the field one at Versailles and the other at Nuremberg where Hitler's march on Moscow is prosecuted as a crime of aggression back in 1918 though at the imperial war cabinet meeting at 12:00 noon on November the twentieth Lloyd George is presenting his proposal to try the Kaiser for the crime of aggression and the the image on the right the image on the left is a poster from an American film about the Cavell case and part of the purpose of the film was trying to try to bring the Americans into the war so cavil became used not just to promote the idea of war crimes trials but also to promote American involvement in the in the First World War the image on the right is a meeting of the Imperial War Cabinet during the periods of which I speak so lurk Lord Curzon the Lord President of the Council opens the meeting by remarking that there's no need even to argue for the trial of the Kaiser he is after all the arch criminal as kurzon puts it indeed as Curzon reports the French had not yet bothered to consult their own international lawyers about international law no matter the Kaiser could be put on trial and declared a universal outlaw indeed curtain goes on wouldn't it be ideal to begin the League of Nations experiment on this note of trial and retribution Lloyd George continue that continues the discussion with regard to international law well we're making international law and all we can claim as the international law should be based on justice and there is a sense of justice in the world there's some resistance to this innovation though Billy Hughes the Australian Prime Minister is puzzled by the suggestion that the Kaiser be tried as he famously puts it well why not Alexander the Great or Moses Hughes point arm seems to be that what we call now the crime of aggression used to be known as history you cannot indict a man for making war he news continues and in a supremely evocative phrase he equates the whole idea of criminalizing war with what he called treason against mankind well Hughes's in the end I voted but not before he received some support from the Ministry of munitions only there in an advisory capacity and sitting standing more or less on the far right for the the the image this Minister Winston Churchill argues that the Allies would be within our rights to kill the Kaiser as an act of vengeance but that it would be much more dubious to deal with him on the basis of what is so-called international law and justice and indeed Churchill remained attached to this idea in 1945 when it when he at first seemed to support summary execution for the defeated Nazi elites so at Versailles the law of war crimes begins with some familiar patterns there's an anxiety about the relationship between revenge and justice a cavalier attitude to the use of actual lawyers a belief on the part of the proponents of the trial that the justice of the cause renders wholly unnecessary legal process and precedent and the first sign that when it comes to war crimes and crimes against humanity the identity of the perpetrator is matter as much as the identity of the crime treason of course depends less on what is done and more on where one stands and where one stands can be a matter of chance or as Lenin once put it he went into one room and found himself in another usually the history of war crimes trials passes over the interwar years in silence so there's a straight move from Versailles to Nuremberg in many histories of the discipline this was a period after all the interwar period in which the efforts of progressives seemed to be directed at social and economic change through the League of Nations but are the Moscow show trials perhaps the missing link between Versailles and Nuremberg historians of international criminal law tend to think of sulfur Reno or The Hague peace conferences or German war crimes trials in Leipzig as the precursors to the trials in post-war Germany Moscow 1937 is a pretty embarrassing antecedent after all Judith Sklar defines show trials as the liquidation of political enemies using legal procedure well Stalin knew all about that but in that sense he's not so far removed from Lord Curzon and Lloyd George establishing a tribunal for the specific purpose of liquidating or punishing an enemy that's exactly what the Allies were doing in the Imperial War Cabinet debates in 1918 of course the Moscow show trials were very unlike than yeren burg war crimes trials and many very important respects but the idea that people's justice or humanities justice or a sense of justice can somehow dispose of the need of proper legal procedure represents a sort of sibling dark side to these trials a show trial is one in which it's obvious already that the guilty are guilty before the trial the trial seems ot owes the mere performance of a justice already delivered elsewhere wyszynski the soviet prosecute Moscow was also at Nuremberg during dinner with the judges at Nuremberg he raises a toast to the defendants they will all hang but this was before the trial had begun Roosevelt too though was worried about acquittals and his concerns made their way into IMT charter article 19 the Nuremberg tribunals charter article 19 which states the tribunal shall not be bound by technical rules of evidence as one of the observers of the Moscow show trials yearly put it these were dramas of subjective innocence and object of guilt this objective guilt was repeatedly enunciated in the months preceding the major trials at Nuremberg where the Nazis are repeatedly described as the world's worst criminals and where the defendants were chosen with great care on the basis of the political impact they might make the show trials themselves of course continued in the night into the 1950s most famously in Prague where the purpose was not to determine guilt or innocence nor even to remove political opponents but rather to create them as for the existence of legal norms again this didn't matter the instincts of the proletariat would stand in for what Kirilenko one of the Moscow prosecutors called bourgeois sophistry and this recalls to a Nazi law of June 28 1935 referring to the need to punish criminals and deviants according to the sound perception of the people ten years later though President Roosevelt as I said was worrying about acquittals on technicalities and Robert Jackson pressed on the existence of crimes against humanity or aggression in the first place replied by saying we can avoid these pitfalls of definition if our test of what is a crime gives recognition to those things which fundamentally outraged the conscience of the American people this became of course at the trial the idea of shocking the of mankind mankind of course has now become humanity just as the old language of enemies of mankind has been reworked as crimes against humanity when someone at the Imperial War Cabinet asks what crime the Kaiser has been charged with Lloyd George replies the crime of plunging this country into war Sir Robert Borden the Canadian Prime Minister smoothly offers a gloss on this by interjecting that it was a crime against humanity and there is the moment when the great powers begin to think of themselves as humanity rather than just a coalition of great powers at least the victors at Vienna a hundred years earlier merely thought of themselves as Europe but the idea of crimes against Europe while far more accurate as a description of extra-textual law might seem to openly self-serving well Francois comments on the french prosecutors stood here in 1945 and 46 invoked three distinguishable concepts of humanity the first two were familiar enough but the third and most radical concept of humanity saw it as a unified and indivisible category a moral or juridical agent the favorite penalties of humanity though often come in forms of extreme violence applied to those Outsiders for those outside humanity and there's an enormous amount of self-confidence when someone announces themselves to be acting in the name of humanity so the French president at Versailles said humanity can place confidence in you the delegates the victorious powers at Versailles because you are not among those who have outraged the rights of humanity but humanity here included Belge the Belgians French and British each of whom were by this time respond for three centuries of sometimes violent certainly racially inflected Empire though the Imperial War Cabinet meeting on November the 20th began at noon there was a lot to get through the main line of business was the disposition of the Kaiser what were the representatives of humanity going to do about this outlaw but first there were some minor matters to take care of here's lloyd-george again there are two or three questions we are not clear about minor questions Palestine East Africa questions of that kind as he puts it we have not quite settled in our minds what sort of government we want to set up in Iraq it was ever thus here are the representatives of civilization and humanity just prior to elaborating the idea that aggressive war is a crime against humanity reordering their Imperial outposts themselves as justice power marked at Tokyo the results of three centuries of aggressive war well mankind is of course shocked by many different things at different times something the u.s. advisors at Versailles argued when they resisted the whole idea of crimes against humanity claiming that there was no such thing as humanity only nations with different moral outlooks in Jerusalem Adolf Eichmann seemed unshockable this is Nabokov by the way not at all five men on the left most of you will have realized and this is a this is an image from the trial itself so most mostly when someone talks at a public lecture about Adolf Eichmann as a picture of Eichmann in his in his infamous box his glass cage the petty bureaucrat he's alleged to have been in some writings on unlike my but I prefer this image because it shows the Israeli public you know utterly engage in fact and thrilled and raptured by by the trial in Jerusalem as I say idle pikemen seemed unshockable his thoughtlessness indeed was was his most remarkable quality Hannah Arendt said said of Eichmann but longer one listen to him the more obvious it became that his inability to speak was closely connected to his inability to think he was genuinely incapable of uttering a single sentence that was not a cliche he seemed curiously affectless in other words at one point he's handed some novels to read one of them is Lolita after two days Eichmann returns the novel to the guards visibly indignant this is quite an unwholesome book he tells the guard well while Eichmann was running the final solution from an office in Berlin and then Budapest Klaus Barbie was hunting down Jean Milan the French resistance leader in Lyon in 1942 that's Barbie on the far left Barbie might have found Mulan in francois de mantains house where he occasionally spent time to mint on the french prosecutor from earlier at this time had become a resistance sympathizer Barbie tortured Milan to death but the Manton went on to develop the concept of crimes against humanity at Nuremberg a category of criminality that would be later applied to Barbie himself during his trial in Leon in 1985 the Barbie case ought to be given its full name though the federation of resistance fighters v klaus barbie this was to be the trial that established a judicial record of the heroism of the french resistance there was a small problem though at 10 past 8:00 on the morning of April the 6th 1944 Klaus Barbie had sent a telex to the office for Jewish affairs in Paris it reads this morning the Jewish Children's Home the colony on farm in Izu was cleaned total 41 children aged 3 through 13 years have been apprehended transport - don't say to follow the children were transported in manacles to Paris and then sent east to the camps all of them were murdered two of the boys were executed in Tallinn Estonia but the trial was a curious affair what was about from the perspective of the French state it was about the French resistance to Nazi occupation Jewish groups in Leon needless to say believed that the trial would provide some reckoning for barbies mini Holocaust at a zoo Barbie's defense lawyer the shock Virgenes let later to defend Carlos the Jackal and saddam hussein believed that the trial was an opportunity to embarrass the french state by pointing to crimes against humanity closer to home institutionalized torture in algeria fascist collaboration in wartime Vichy and so a problem emerged from the perspective of the prosecuting state crimes against humanity in there now standard-definition were pulled over and under-inclusive over-inclusive in the sense that the broader one define crimes against humanity the more they threatened to encompass French colonialism in Algeria something the French definitely didn't want but to under inconclusive and then attacks on civilians could not encompass barbies murderous behavior towards the French Resistance but as someone once said every war crimes trial is saying at least this of the prosecuting state we at least and whatever we have done or might do in the future are not Nazis and so crimes against humanity in the bar Barbie trial were defined as crimes committed in furtherance of a policy of racial discrimination broad enough to cover the resistance crimes narrow enough to exclude Algeria where the French at least were not Nazis well we might say that international criminal law went through two phases then and that a modern D mattified retributive legalism begins on May the a 1997 the day that do Scottish in the centre of the image is convicted of a murder of murder as a crime against humanity the first non Nazi to be tried before an international court in Europe since 1946 and one of the first known Nazis to be tried anywhere for crimes against humanity or maybe this post Nazi period begins a year later when a set of human remains are subject to DNA testing and Frankfort this is my image of the DNA by the way on the far right are subject to DNA testing in Frankfort and determined to be those of Martin Berman the last Nazi or at least the last of the Nuremberg defendants to be unaccounted for Berman's ashes are scattered in the Baltic just as Eichmann's were disposed of in the Mediterranean well let me come to some sort of conclusion here and it will be quite a lengthy conclusion has modern international law somehow cleansed itself of the moral obtuseness and political opportunism of these early trials the legal principle certainly seemed much more transparent yet the institutions still seem engineered in a way that makes even facially a political prosecution and trial unlikely to situate the development of international criminal law in its historical setting and then is to suggest that crimes against humanity do not simply exist in some supervening ethical space to be picked off by appropriately articulated rules instead we might say and sounding vaguely Marxist that crimes against humanity are violent acts committed by enemies of mankind in concrete circumstances so in particular international criminal law properly anatomized continues to be in most instances the law applied to enemies of mankind well what should we make of all this history this is a matter that requires I think enormous delicacy thousands of people work conscientious in the field of war crimes trials investigating prosecuting helping victims trying to reform the system calling for Universal forms of justice arguing against great power immunity many more victims of horrible atrocities view trial as their last great hope for justice no one can read about the moral strenuousness of the witnesses in the Eichmann trial or the personal anguish of a man like Hersh larger packs struggling in Cambridge to develop a workable theory of crimes against humanity while his family disappears into the polish and Ukrainian blood lands or the bravery of those testifying and the bulkan trials in The Hague no one can encounter all this without stopping to acknowledge that the law of war crimes has become a site of great courage and the beer of some of the ethical hopes of humanity yeah there's something still awry with this system of justice the history I've recounted leads to a possible conclusion that crimes against humanity are those crimes committed by enemies of mankind or let me put the two problems in this way the identity of the violator sometimes seems more significant decisive even than the identity or nature of the violation but more than this the identity of the violation is already too narrowly imagine creating morally suspect distinctions between different types of violence so how should we respond to atrocity the truth is I don't really know I'm not even sure that war crimes trials aren't sometimes the right answer maybe in North Korea maybe in Colombia maybe in Georgia but law often is experienced as in Congress or technocratic or literal could it be that the more we memorialized through elaborate legal ritual the less were capable of remembering as a moral event when Prima Livy the Italian chemist and OSHA Bert's survivor of what he feared most of all on his release from the death camps disbelief in one of his earliest books he describes a meeting with a lawyer shortly after the liberation of Auschwitz the interview is mark 11 the Olivia in the end and the lawyer that the interview is marked by awkwardness on the part of the author and on the lawyer site incredulity now the conclusion of the meeting the lawyer gets up shakes the writer's hand and herb mainly excuses himself there was nothing the lawyer could do in the face of this survivor testimony he could neither believe it nor find a legal response to it perhaps if I had to sum up the argument I would argue that we might consider sometimes electing the agonizing uncertainties of the author over the solemn and definitive judgments of international criminal justice unusually for a law journal each front cover of the London Review of international law features a different photograph the 2015 volume had a photograph by Simon Norfolk from his series a place of refuge and this place is a refugee camp on the border of Russia many of the people living there had been in the camp since 1999 it's a bleak place but the center of the photograph is an image of Malik who Sonova and her family standing outside their military green ten surrounding the tent though is a formal vegetable garden a mini Versailles we might say and a small gesture of hopefulness after atrocity the story I told today begins near the gardens at Versailles where the great powers in 1919 engineered one of the most transformative reforms in the international legal history when war for the first time in history became crime 20 years later working outside another green house probably in Tavistock square in Bloomsbury Leonard Woolf was interrupted in his gardening by a all from his wife Virginia Hitler is on the radio giving a speech she shouts Leonard calls back I shan't come I'm planting iris and they'll be flowering long after he is dead iris reticula is a is a violet colored iris in the final sentence of Leonard Wolf's biography with the very English title downhill all the way these irises are still blooming 21 years after Hitler's suicide nine months after Hitler's suicide the Nuremberg war crimes trials began right here of course in a train of powder Rebecca West remembers being asked what was the most remarkable thing she had witnessed that Nuremberg well she said there was a man with one leg and a girl growing sick lemons in a greenhouse and I've always imagined the green house to be where that car repair plant is now in front of the in front of the trial building well as I've said elsewhere the bay thoughts in this a sort of decentering of the trial makes a smile this little girl growing sick lemons is demanding our engaged sentiments not our pity in tears we want her horticultural to succeed here she is growing sick lemons only a few months after bomber commands final assault on the civilian population of this city on the night of the 16th and 17th of March 1945 when 277 Lancaster bombers pulverized the remnants of the historic center of Nuremberg for the second time yeren Berg then refers to the trial of course but also to the bombing and the greenhouse Rebecca West sounds as if she's a little disaffected by the Justice on offer at Nuremberg and this mirrors the mood of Hannah Arendt when she goes to Jerusalem in search of justice and discovers instead spectacle well in light of all this history it's perhaps not surprising that international criminal justice the great Institute machine engineered by talented and humane diplomats kept in motion by lawyers who've sacrificed material reward for a life in pursuit of humanitarians directed at putting defeated enemies and human rights violators in jail and celebrated every week in a public lecture advertising its virtues is entering one of its most difficult periods thank you [Applause] [Music] [Applause] [Music] [Applause] wonderful well thank you very very much professor Simpson it's than an absolute pleasure to listen to your tour de force of the last century really intriguing and interrogating a numerous of the moments that crystallized the edifice of modern international criminal law as we know it today you interrogated obviously the concept of justice a number of the silences of the field as well as the linearity or the non-linearity of narrative surrounding the development of international criminal law so thank you very much for this wonderful Illustrated Lecter very very many intriguing moments and I think the next few minutes we would like to use the opportunity to delve into some of the questions you raised some of the dilemmas you raised that states faced as well as other actors in the field as well as scholars or commentators who observe and comment on what they have seen so allow me to start and obviously we will open the floor to the audience in the course of the discussion and I need to start by inquiring about the choice of the constitutional moments are there a fixed set of constitutional moments and was there a panoply was it difficult to choose those particular moments that you did decide to illuminate further and what is their relative weight in other words you know is one silence in there or is there you know proactive choice that you said oh I left that out precisely because of a particular reason yeah what a great question um and no one's ever asked me it before so Kant the idea of constitutional moments comes partly from an American constitutional scholar you'll be familiar with Bruce Ackerman who thought the best way to study US constitutional law was through a series of moments of change and that lawyers didn't tend to do this very well we study the Slom movement of the law through time and he thought we might be able to figure out a better way of studying constitutional law through these moments and I first applied this idea to a book I wrote on the great powers so now the history of the international diplomatic system where I had a look at a set of very so standard constitutional moments 1648 Westphalia 1815 in Vienna 1918 at Versailles 1945 at the UN and I guess I was mimicking that process in this paper but I also wanted to offer up what I thought of as a counter history if you like or an anti history of war crimes trials to try and tell a story of war crimes trials for the last hundred years through a series of moments which were not typically considered as constitutional moments anti-constitutional moments perhaps or have been ignored altogether or couldn't even be recognized as international criminal law so I mean I guess that's part of the answer I don't know about the relative weight I would give each of these each of these moments I tend to think that this moment between 1915 and 1918 or 1919 is very very significant for the history of international criminal law but in a way international criminal law kicks off so it kicks off at Versailles are almost kicks off at Versailles it sort of stops in its tracks I was once introduced in the Netherlands by I don't know Dutch government minister who was chairing a panel and I was giving a talk on on international criminal law and he talked about how instrumental the Dutch had been in the history of international criminal law and I stood up and say well actually you know the Dutch stopped the whole business it is tracks in 1918 1919 by refusing to surrender the Kaiser to the Allies the Dutch felt the honoring hospitality was more important than honouring retribution and that I could be seen as a very very noble move on the part of the the Dutch government in in 1918 1919 and as we know the Kaiser died peacefully though unhappily in the Netherlands in 1941 so I thought that was you know rather interesting moment for international criminals in the sense of what happens and what didn't happen and because we have a certain pawnshop for looking at things that have to dull the time I was quite interested in the things that didn't happen and then just before I around blown any further with this answer I'd say that you know Moscow 1937 is regarded as a rather incendiary constitutional moment for international criminal lawyers who like to track the history of the discipline through Versailles Nuremberg Tokyo and The Hague Moscow is as I put it in the paper a bit of a dark sibling or cousin to all of this but I I do think that it's not just the historical proximity of of Moscow to Nuremberg that counts here it's not even the continuity in the personnel the same prosecutors at Moscow turn up again at you remember there's something about the way that both Moscow and Nuremberg gesture towards this was the conscience of the people or the conscience of mankind or the the conscience of the proletariat and it's something that that Soviet law and international law seemed seemed to share and even more provocatively something that Nazi law shared with both of them I mean you mentioned that the common refrain obviously is from Nuremberg to the Hague or from Nuremberg to the Hague to you know by a Rome for example so I was curious you you didn't mention the Rome Statute this 1998 moment which for many is an iconic moment in the development of international criminal law so I was curious if you could elaborate whether you would see that at all as a constitutional moment how would it fit in again to this story of linearity non-linearity and pointing out the silences the history the anti history of international criminal law Rome the Rome statue where the ICC was established is is you know a really enormous his significant moment for the history of of international criminal law I guess if I was giving a talk to say a Rotary Club in my home town I would talk about the Rome Statute in 1988 but in 1998 but talking to an audience already educated in international criminal law I felt that that that moment was almost too familiar or to iconic it's also the only moment where I was actually present myself so maybe I've just grown a bit weary of the of the room conference and I did a lot I did a lot of writing on on the ICC statute in the room conference around that time I was at the General Assembly for a couple of years in the lead-up to the the draft statute and then the eventual statute that was put before the delegates at Rome I was in Rome with the Australian Government and I guess I just feel as if I've in a way to a certain extent said as much as I can possibly say about that subject and so much is written on the Rome Statute if you if you compared how much had been written on the Rome Statute to how much had been written about the Moscow show trials in relation to international criminal law it would come out as about you know 7,000 to to in article numbers not that I've done the research on this but thank you but just briefly returning to your starting point Versailles which you rightly pointed out is is oftentimes forgotten recently at a international conference here in Nuremberg this preeminent Germans gonna also mentioned that this refrain from the Haake to Nuremberg needs that extension from Versailles to the Hague and indeed he very much pointed to the birth of the Dewan Thomas turn over the the new international law that was born precisely in Versailles but briefly turning to Nuremberg and obviously we are in Nuremberg here so I think it you know feels fitting to briefly speak about this moment of Nuremberg before will come to the Nuremberg comparison shortly I think a lot of course has been written about Nuremberg and I think many have looked at what it actually means I mean Robert Jackson indeed in the opening speech also was very conscious of history passing a judgement then on those sitting in judgment and and I quote he said we must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow so there was already this sense of gravitas of the world is watching this enormous Lee important trial so I'd like to ask you in light of some of the comments made about Nuremberg I mean Chavez pointing it as a turning point in human history that it will be regarded in a few centuries from now if it has not already seen as such a turning point for mankind or for humanity how do you see that again this this moment of Nuremberg fits in to the wider narratives of the development of the field in terms of this birthplace of modern international criminal law would you recalibrate that kind of founding myth if you like that is often of course reiterated and re-emphasized here and how do you see it playing out from your perspective well I'm gonna sound like a very good guest here because I think that you and Burke whatever I say or whatever anyone else says about international criminal law over the next 50 years Nuremberg has already already occupies the place as the central moment the the main constitutional moment in international criminal law at least for at least for our generation I mean I was speaking to my daughter about this is in the audience and I think for younger twenty-something generation may not be as well-known I think that's some nature we spoke about this to our own it's a major task for you here to educate a group of people for the Nuremberg trials you know loom as large as they did for me and I grew up during the Cold War but I think you know most people in my school you war crimes trials were and they didn't know anything about Versailles and they knew nothing about Tokyo and I suspect even the room statute won't be that widely known by schoolchildren today but but Nuremberg was a major major moment and I think when historians look back in 200 years if indeed historians exist in 200 years they'll see you remember as I think the monumental moment of international legal history but I've spent a bit bit of time in my work at trying to D Center you and Berg and in some ways you've done that here in Europe Berg itself you hold that trial and you say yeah you you held a conference on the on the Tokyo war crimes trials a year ago so part of an effort to situate Nuremberg in a context beyond Nuremberg the situated in the in the Tokyo context of the Versailles context or the other Rome Statute context and that seems like a very very important political didactic and juridical exercise exercise to engage on in but you know the last thing I'll say about the Nuremberg war crimes trials are the the difference between urine Berg and Versailles say is that of course there was a trial here I mean there were many trials here the Americans of course had their there the zonal trials in Nuremberg and there is an enormous trial proceeding when I was a student in Aberdeen in 1986-87 I looked up one day for my desk and I saw a row of trial reports that just looked at bit unfamiliar and it was actually the first moment in my life when I realized it needed glasses as well because I couldn't read I could read what was on these trial reports and I went closer to them in real life that they were the proceedings of the of the Nuremberg Tribunal and I got one of these little cheers you get in libraries or you used to get in libraries I sat down and I began reading one of them sort of random and it was as I say it was absolutely enthralling I'm just sitting there for about two or three hours and I think it was my first exposure to the to the field of international criminal law and possibly my first exposure to reading history in its archival form I don't know what I was reading even looking back on it you know was it was a you know the the the cross-examination of Carlton Bruner or something not not something probably anybody really thinks about that much but for me there was a sort of living breathing textual history came off the pages and I suspect that's going to be the case whenever anyone picks up these proceedings in the next few centuries engine Tokyo and allow me to ask you you've created a neologism Tokyo burg I'd be curious if you could briefly rien abaray thanh this constitutional moment the dual moment of Nuremberg and Tokyo and in a nutshell what you mean precisely by Tokyo burg in other words yes creating was new noticing well well yeah so I I now call this constitutional moment Tokyo burg and I'm hoping it gets taken up widely as a term and I guess what I was trying to do is to put together the the somewhat authoritative history of the events in the 1930s and early 1940s that one finds in the Nuremberg proceedings with the slightly more eccentric idiosyncratic judgments one finds it you're in Tokyo particularly justice Paul's famous 900-page descent Tokyo in which he acquits all all the accused Japanese war criminals and I think if you put together in particular these two sets of documents you get a very very things subtle nuanced possibly contradictory picture of just what it means to participate in international criminal justice but I think it's to go back to a word you use it's much more interesting than that there's a linear accounts that we're used to were you know Nuremberg was a great achievement it led to the hague and rome and so on I think if you put together urine Burke and Tokyo you you see both a desperate desire for a reckoning with Nazi evil combined with a serious doubt that the history of European imperialism and colonialism just wasn't part of the tokyo berg picture apart from injustice paul's justice Paul's dissent solutely allow me to briefly come to one of your previous works law one crime you really you know make a very very interesting argument you challenge the orthodoxy of war crimes trials being political trials in the way that they're often portrayed as political trials and you say they are political not because they lack a foundation and or or because they are the crude product of political forces but rather war crimes Charles are political trials because concepts of the political remain perpetually in play so you disentangle this then and produce four concepts of the political and I'd be curious how you might map that on to these constitutional moments do see a you know panoply of concepts of the political play at each of these constitutional moments is there a particular you know dominant concept of the political that you might identify across the various moments that you have sketched for us well that's a really complicated question I guess the the answer let me to offer a slightly cowardly simple answer to that which is to say that the idea that war controls were political goes back to somebody I mentioned earlier on Judith Sklar the American legal theorist who wrote a book called legalism in 1961 or 62 was one of the very first serious jurisprudential studies of the of the Nuremberg war crimes trial and her point our main point was the the choice of a legal proceeding the choice of a Nuremberg or a Tokyo or a trial no Hague is is a political choice and and to describe it as a political choice it's not to discredit it the way many people do they say this this trial is political and therefore it's a show trial and therefore it's discreditable Sklar was making a much a much more a much more subtle point saying when we choose trials let's just be aware that we are choosing trials let's not think that the trial is imposed on us and we're the reluctant or willing willing recipient of law instead we're so we're choosing law legalism is a choice of law I mean as she put put it in her book legalism there are lots of different ways to deal with something like atrocity you could deal with it through through literature you could deal with it through execution you could deal with it through a Truth and Reconciliation Commission you could deal with it through immunity or amnesty you could deal with it through theatre you could deal with it through trial and if you deal with it through trial you're making an anterior political and cultural and ethical decision to use a trial proceeding in order to achieve some sort of justice not not to say by any means that a trial proceeding lacks a literary or theatrical dimension I mean just speaking in here you you know you can sense that the theater of the proceeding you can imagine you can imagine being in this courtroom and experiencing that moment in 1944-45 46 and feeling that one one was at the center of a piece of human drama as well as a trial allow me briefly before we open the floor up to the audience I'd be curious David Rubin wrote a piece called the legacies of Nuremberg and identified three particular legacies one the crimes against the peace crimes against humanity second the rule of law and the third threat of bureaucracies without going into further detailed I'd be curious this notion of rule of law obviously this year is also the 30th anniversary of the fall of the Berlin Wall which opened up a new political space that this notion of rule of law was taken up in international discourse by international organizations how do you see the interplay of these constitutional moments with the affirmation of the rule of law also in light of the current political situations where we see a lot of rule of law backsliding within Europe but also more worldwide yeah well from from from a from a conventional perspective the rule of law feels like the rule of laws in a lot of trouble ah the idea of using legal and constitutional principles to resolve political political struggle it just seems so obvious to us for at least half a century but and I feel like I've got a kind of commercial duty to invoke brexit at least once and every public engagement I'm involved in but if you come out out of a brexit Britain you realize what a fragile thing the rule of law is it seems to me that the rule of law is a bit like an angel every time you declare you don't believe in angels an angel dies so when Boris Johnson or indeed anyone says well you know this constitutional rule maybe next Wednesday I won't bother with it or yet Parliament might pass a law but I intend to disregard it you know a little bit of me dies in that moment because the rule of law is just a fiction that we all believe and if we believe that it's a good thing then we have to also appreciate the fragility of the fiction and so anyone who uses the soft language of a brain you know breaking breaking a constitutional convention or disregarding parliamentary statute it's really playing with fire given the history that led up to 1946 47 only briefly returning to this thought with which you ended really the quote you referenced the more we were more realized the less able we are to remember I'd like to ask you about your view or your perspective about the relationship between history and memory or rather you know taking taking your talk seriously histories and memories because clearly there is not the history or the memory and the singular so I'd be curious if you see their you know work done by scholars as well as literary experts and authors on this notion of history and memory and how we might see a you know conflation of the two oftentimes in public discourse or even in scholarship yeah I do think the the question about how to memorialize certain events is a is a controversial one it's it's it's an interesting it's an interesting question you know how exactly do you go about you're marking a period of atrocity or atrocious political rule and if we choose trial it brings with it certain very obvious benefits we have in relatively impartial judges applying the techniques of Piper cereal law cross-examination tera Gatien of witnesses a serious mindedness around truth and we produce a trial record and all that seems like a very good thing on the other hand trial judgments are the judgments of lawyers legally trained experts judges and judges are not historian judges don't are not privy to or are not experts injured in historical method and one of the problems with war crimes trials perhaps is that they seek to provide or they are said to provide an authoritative record of what happened but the trouble is that there are many possible authoritative records of what happened and it's likely that several records disappear in the moment of one be made prominent or exemplary by an International Criminal Court so I think that's one of the I think that's one of the dangers of at least conflating history and memory with trial thank you I think we could continue for some time but I would like to invite the audience to ask questions and any comments any thoughts you have about the lecture about some of the answers that have been given first of all thank you very much for the presentation it was very interesting also in a great location what I would like to ask is slightly maybe not directly on topic to what was being discussed today but it has more to do with and the two big events also in the last hundred years first of all Stalin's purges in earlier early twentieth century and then the kind of great cultural revolution that happened in China which when looking at it kind of from an absolute perspective had a huge amount of casualties and maybe this is something to do in my opinion based off of what you said this kind of language or this kind of rhetoric that is kind of doable according to which side it comes from the the victors versus the the loser is kind of in a certain conflict but what would interest me and what I haven't really been able to figure out so far is that the kind of reaction kind of the cultural reaction where they're talking about kind of the symbolism that was used in a lot of these movements you know for example you can buy in shops t-shirts with the face of Mao Zedong on them you know as if kind of glorifying this this individual or you know the communist parties even here in Germany still use the hammer and the sickle as a kind of the symbolism of this communist ideology and this to me is a bit of a paradox when kind of put into context of what actually happened during these periods and so what would interest me in light of what I would say also are these great atrocities that happen during these periods maybe you could shed some light on why there wasn't a sort of backlash like in the IMT or the the Tokyo trials why kind of society never really approached these situations with the aim of bringing to those victims some form of justice thank you well that's an extraordinarily interesting and broad ranging question so one part of the question is not really a legal question it's the question about why we have a different attitude to Chinese and Soviet Communism see the one we have towards Nazism and people have different views on this one book I do recommend is Martin Amis escoba the dread in which he asks precisely your question why is it that people are going around with with with some small busts of Lenin or mozzie tongue or marks on their desks or what why is there a hole par família around communism that people embrace I was in Berlin yesterday in fact and that checkpoint charlie there's all this sylvia stuff you can buy soviet hats and little t54 tanks and so on and so forth so it's definitely there's an acceptability around that that doesn't exist in relation to to Nazism I mean either that may be the cause of the nuremberg trial or may be a consequence of it it's a bit hard to tease that is it the fact that the trial are thoroughly discredited Nazism that makes it impossible to imagine something similar with say Nazi insignia in see indecent serious circles I mean I don't mean that people who still use neo-nazis insignia but but is that is it that Nuremberg created an environment where that became impossible or is it because there's something essentially different about the two sets of projects so that that would be a question I don't feel remotely qualified to really really answer all I've done it so rephrase the question but I would say this that I think a trial of those responsible for the worst excesses of Stalinism might have might be regard might have been regarded as a bit of a serious mistake if it had happened in 1989 1990 91 so there may be moments in international history when trial is is just not appropriate where there may be sort of bigger goals in mind so but at Nuremberg the idea the idea of setting out a record to show that Nazism and neo Nazism would not be tolerated in international society or domestic society was something that seemed very necessary but in 1989 1990 with the the Soviet experiment already largely discredited that might have come across as both unnecessary and unnecessarily punitive and there might have been dangers in humiliating the Russians in 1980 along those lines it's it's notorious that Hitler and Goering met at a protest rally against the Versailles peace treaty and the proposal that there be trials after Versailles those trials would have been would have felt unjust to most Germans I think in a way that the Nuremberg trials may not have felt so unjust I mean there's a mixed record on that but on the whole they were they were relatively well received according to at least some historians so I think it would have been serious risk in inconvenient trials convenient draws along those lines thank you very much for the lecture was very interesting I would like to ask about the notion of justice because you you mentioned if a couple of times you posed a lot of questions but you didn't you put a lot of rhetorical questions and you mentioned the fact that the Dutch did not Astrid I it's Kaiser vellum and in 2015 we see Omar al-bashir in South Africa and he was also not arrested by the South African government and so you talk about these constitutional moments would you say that each of these movements represents a development we talk of development of international criminal law would you say that these constitutional moments represent a development or is each moment just represents a moment where one political entity is superior over the other and indeed you you talked about the fact that rule of law is a fiction but I just want to know your opinion about whether we can really see a real developments in ICO or you sense a form of stagnation yeah good question I mean when I when I say that the rule of law is a fiction or not I'm not saying that in a dismissive sense I don't say it's a fiction so we can disregard it quite the opposite you know when I when I described the rule of law as a fiction I mean to emphasize its vulnerability not not not to emphasize that it's beside the point or other this constitutional moments idea of yours Vivian has really taken off here III just curse think I've been asked more questions about your question than I have about my old paper but this was obvious this is obviously relevant to the things I say on the question of justice before I get to your progressive development question I guess each of these moments the moment when the Kaiser isn't surrendered by the Dutch to the Allies or the al-bashir case we can have two different views of this I think there are what you might think of a sort of justice purists around and there are many of them amongst these of international law elites who think that justice is the is that is the preeminent ambition in any political negotiation that if there's a legal principle that requires al-bashir or the Kaiser to be surrendered then he ought to be surrendered and it's a breach of justice or a breach of international law not to do that and that's wrong they would say and then there's a second group of people like Judas klar who say actually just this is a choice here either we have to put justice into conversation with other aims we might have like for example maintaining stability in a particular region or we put just this into conversation not so much with pragmatic ends but with other moral categories and I mentioned hospitality is one of those you know old Kantian notion of hospitality that the Dutch were relying on to hold on to the Kaiser so here we see just this is in a lot a dialogue with hospitality and reasonable people can disagree when justice and hospitality clash you may I don't know you may have a fugitive from justice in your house who arrives in your back garden and a disheveled state you know you take her in and you feed her and you discover that the police are after her what do you do reasonable people would disagree some people would hand this person in to the police and other people wouldn't and and I think decent people might end up doing both of those things or either of those things I could imagine a situation where I hold on to the person i v they've they've they trust me I trust them I decide to look after them that the main prerogative here is to look after somebody who is in a disheveled burn itíd fragile state rather than to hand them in to the authorities so I do understand that there are these two sort of views of justice the absolute position and a more a sort of more complex tradition of thinking about justice or situating justice amidst other concerns your question about whether international criminal law is developing through these constitutional moments and I think it in one sense it is in this in the sense that international criminal law has become much more legal there's more of it around for a star the procedures the general part of the criminal law defenses immunities all of this is much more complicated much more legalistic much more comprehensive than it was when I first started studying international criminal law so internet so there's more of a about and it looks more like a criminal law system that you'd find in in a domestic legal order so in that sense there has been what we might think of as a technical progress but at the same time politically I think history looks much more like an undulation than a progression so though the the techniques of international criminal law like that they are heading for some tell us that they're progressing the the sort of relationship between politics and law through the history of international criminal law has been a sort of undulation sometimes crude politics have dominated at other times crude law has dominated other times there's been some complex mixture or amalgam of the two so I think it depends like everything else on how you a particular view you take of the word development to just briefly touch upon that you mentioned some of the examples have an international dimension and some of the example you use to have a clearly domestic dimension like the Klaus Barbie trial and so I'd be curious there if you see an interplay of the international and the domestic in this century of war crimes Charles that you look at because clearly I mean we've we've seen some scholarship that saying the future of international law is domestic in other words we now of course also see a fragmentation possibly of jurisprudence given that the domestic courts are really taking the lead and doing a lot of pioneer work especially if we think about the current cases in the Syrian context where there is no war crimes trials whether UNS stepped up there is the triple IM and now a number of countries including germany on the avant-garde of prosecuting at the national level do you see is there a different quality if it's an international or a domestic trial does that have any bearing on the gravitas or on the kind of histories or memories that any trial may create well Karl Jasper's who is one of Hannah Arendt's lovers said that crimes against humanity should be prosecuted in the course of humanity so he took a very some internationalist view of this but I think most international criminal lawyers don't take that view or no longer take that position for me so one of the things I always say to students at the beginning of I have about 35 international criminal law students each year at LSE and one of the things I say at the beginning of each class is that international criminal law is not quite international not quite criminal and not quite law in other words and to take the first part of that equation it's not it's certainly not always international criminal law and if you just reel off the the names the names of iniquity in international criminal law I don't Goering Eichmann Barbie Pinochet Milazzo fish and so on what you end up with is a mixture of international trials held in international courts under Internet proceedings and international law and a series of domestic trials like like sometimes sometimes these aren't even trials sometimes it's not even international criminal law sometimes it's just an extradition proceeding like the proceedings involving General Pinochet in 1988 and 1999 at the Royal Courts of Justice in London so my view on this has always been that that's not quite right either though that each of these two go back to your constitutional moments again each of these constitutional moments isn't really domestic or international that each of these moments is a mixture or a combination of the domestic and the international they're always the sort of cosmic Paul's and internationalist impulses playing out alongside much more localised parochial forms of justice so Pinochet is a case involving the House of Lords in England applying English state immunity law but the court also looks at the Nuremberg war crimes trials and the coming ICC statute and so on the ICC itself okay it's an International Court but but actually at the first national courts it says look we only get involved in national courts failed to come up with the goods so there's a preference built into the ICC statute for national for national jurisdictions or finally take the Eichmann trial where the subject matter of the of the trial was you know crimes against humanity the internationalist face and crimes against the Jewish people a much more particular caste and that to me that seems quite appropriate but international law international criminal law is always both international cosmopolitan on one side and local provincial national on the other hi thanks a lot for your talk in which you mentioned the difficult relationship between international criminal and international diplomacy which is quite exciting and public international law in general I think so if we make the conscious choice demanded by Judith Claire for international trials for war crimes trials I think we should also make a very conscious choice for the people we pick as judges for those trials because some of them have a diplomatic or political agenda not just looking at list B of the ICC but also to past trials we had past trials with military men sitting as judges but not too much judicial experience and it well I I studied law so at first I'm quite reluctant to non lawyers sitting in judgment in such important trials but then when looking at Tokyo my doctoral research topic I saw that the defense welcomed trauma the second American judge asked being a military man and hoping that he would understand better some military exigencies and problems the Japanese head which led to crimes so I'm quite curious about your thoughts whether you have ever thought about that and and maybe the results you found out about judges in international law yeah good question I I do think they're two slightly separate matters in play here which you will be aware of one is the question of technical proficiency which could be about whether someone has an international law training or a criminal law training or as a judge or is a lawyer in the first place so there have been lots of questions about that through again throughout the history of international criminal law is this person actually qualified to sit in this courtroom and given the choice of judges whether it be at the International Court of Justice or the ICC is you know again it's a choice of judges and the choice is often through a pretty arduous and politicized diplomatic process quite often or sometimes should I say judges are not regarded as fully qualified or proficient that's one problem the separate problem is that sometimes even highly qualified proficient judges are regarded as somehow too political or they're regarded as the wrong sort of judge you know they're there they're a military lawyer or they're not a military lawyer and that's likely to create a bias of some sort that somebody doesn't like so I suppose part of the answer to this is to not get hung up on on categorizations around this international lawyers are obsessed with levels you know what level is something Donna is it is it done at the international level is it the domestic level is this a military court or is a non-military Court is there a representation from this group the Western European group or the African group on the on the Judicial Panel and maybe most of our attention should be asking simpler questions like is this working or is it any good so to go back to Nuremberg I was very struck during the period of the Bush administration military commissions there was a lot of focus on the fact that these commissions were military remember in the Bush administration set up military commissions to try those alleged to be responsible for the 9/11 attacks and this time obey and so on but there's a lot of criticism of the fact that the the Americans has set up military commissions and I used to hear people say you know this is this totally against international criminal law which begins at Nuremberg with the guess war international military tribunal so when we look back on Nuremberg and if we look back on you and Burke with fondness then we might have to accept that sometimes military judges do a good job and it may not matter whether judges are military or not what may matter is whether the job was good or not but I'd be you know even much more interested to read your thesis than to to listen to my answer again so you know good luck with that question thank you again for the interesting lecture and I apologize I still a bit abstract you did mention a very interesting sort of if during the lecture and you said that at some point there's been a gradual shift where we've started the resistors stopped talking like poets and start talking like lawyers staying true to those sensibilities I was wondering when the next constitutional moment is identified and its history written what would you hope will be equality or a value that it will fulfill that these proceedings wants have failed to possess big question oh well I do rather oh that we can maintain what I call a literary sensibility as you put it around trials if we can just we can understand them as forms of communication in which a lot of different values might be in play we've talked about the relationship between hospitality and retribution at Versailles and that we approach these values with a degree of sympathy and candor and we try and put these values into a relationship that isn't merely technocratic but is also language based and literary and it's hard to if I was training judges in international criminal law and I said say well I've just said they look a bit baffled understandably but each comes to their you know each comes to the end of their journey in a different way and I just I just think that perhaps that could be a bit more of that and one of the projects I've been involved in while I've been studying international criminal law is the project of getting people to understand what's been lost in the move to judicialization you know we're here about the gains of law the gains are are in many ways to so obvious I'm sure all the visitors who went through the exhibition today were really mainly alert to the gains well you know before Nuremberg there was none of this these people just with anything in the international system you know you could kill thousands of people your own civilians it was just called sovereignty in fact and then after Nuremberg we put a stop to it and this is a glorious and heroic story it's told in the genre of the of the heroic epic we start off with very little law we build law from scratch Tokyo Berg we refine it at Rome and we apply it to wrongdoers around the planet this is a this is a great heroic story there could be a number of other different genres in which one could tell the story of international criminal law well I becoming some cynic or perpetual holier-than-thou critic of international criminal law at every turn so to you know feel the historical resonance of speaking in this courtroom here at Nuremberg while at the same time being alert to some of the failings of international criminal law seems to be the proper position to take on these matters it just happens to be the position I take too so on this note I think of historical significance maybe one more question and then we'll have some closing remark I've units you see many of the Japanese scholars criticizing the tribunal say it was mainly Victor's justice and if you compare to the penalties they were actually applied in Donbas and the ones applied in Tokyo there's a difference and they say there was damn much more restricted in Japan and they say this was basically tribunal and it was from the Western point of view that didn't take the Japanese and Asia background into consideration nowadays with the ICC we also have similar accusations towards the focus of the court on African countries and many argued that until nowadays international criminal law is basically done from a Western point of view and it doesn't take into consideration cultural sensibilities and specifically specificity of each region of the world so what are your thoughts on those claims would you say it is really this Victor's justice in Tokyo and what her to say about the criticisms towards the ICC today yeah I mean this is really very sensitive matter to go to the ICC point I I've never been on a panel with Luis moreno-ocampo and it was going very well and then there were about three or four hundred people in the audience of the LSE and I noticed that no one had asked him anything about the defendants and the African focus of the course I thought oh I better ask that question because it seemed like my duty as a chair and everyone's curious about it and I asked it and he was quite enraged by the question he accused me of being a North Earnest which is of I guess it's a kind of variation on Western imperialist whatever it is for demanding that the ICC not look at Africa somehow so so it's a sensitive matter I guess one way to think about institutions is that and this goes back to conversations that were taking place in Berlin this this week on on cynicism an international law is that is that that that sometimes people who continue to act virtuously and neutrally and have pretty good racial politics within institutions can still produce institutional outcomes that look heavily racialized from the outside so I would say that I'd say it's not always about intentionality but but but but to look at what the ICC is doing right now if somebody arrived from Mars and consider what the ICC was doing they might say what what's this about you know this is a simple question is this a childlike question no I think it's often useful to hold on to us off childlike bearing in these matters say it's a funny system of law you've got most of your defendants are like this and none of your defendants are like that why is that so I think it's not it's not doing the credibility of the ICC much good whether it's it's got parallel with Tokyo is a tricky one I mean in some ways in some ways Tokyo I've always described Tokyo as a form of victims justice partly rather than Victor's justice in that victim states like the Philippines China India had judges representatives in the courts and and the dissenting judge judgments are people like rolling the Dutch judge and justice bar the Indian judge are really powerful moments in the history of international criminal law so I can see the flaws in the Tokyo war crimes trials I've heard Japanese scholars talk about this over the last 15 20 years but I've also thought of Tokyo as having a redemptive quality it's probably too early to really tell whether the ICC judgments around Africa will have this will have a similar redemptive quality or not maybe maybe the acquittals will be thought of differently they'll be thought of as a bit like Paul's dissents at some point who knows thank you very much and are there any final questions thank you very much for the very interesting lecture my question is back to the concept of justice the development of international criminal law and historically it's it's very undeniable and a concept of justice as you mentioned before instead of retributive justice now we see the latest ears this concept especially in countries like Afghanistan Iraq and Syria this concept may be countries they have more of national problems if we go after those criminals and perpetrators it may create some problems in terms of their peace and it should somehow that peace is somehow interrupted and one of the aims of the humanity may be also living in peace and peace as one of the goals of the United Nations it's a it's a very important and central concept so do you think that this concept of retributive justice is somehow we can reflect on that and say maybe there is an alternative or maybe we should maybe focus more off on restorative justice or what do you think about the whole developments because now the if we look at it history the the wars are more of international nature but now it's a very complex situation the wars are very different and oftentimes they have a national kind of characteristics so what do you think generally about this thank you one of the presiding ethos of the traditional criminal law has been to regard national matters as international though one of the projects of international criminal law since the beginning of the 20th century has to has been to take matters or circumstances that once looked local national and to describe them as matters of international concern that's what the UN Charter does in Chapter seven it's what the Nuremberg war crimes trials did it's what article 6 of the IMT Charter does it strongly suggests for example that the events taking place in Germany before the war were of relevance to international criminal law an advance that took place exclusively in Germany were of interest to international criminal law so it took the local and turned it into an international matter that's what international criminal lawyers have done so they wouldn't be put off by the fact that that some issues look very national from certain perspectives but your your question about restorative justice is interesting because in criminal law and criminology in places that I've worked and studied like the United States and Australia and the United Kingdom there's been a shift from retributive justice to restorative justice at least in theorizing about crime and punishment this is why I send people to jail they're not going to be rehabilitated it doesn't deter anyone there are different ways of doing this let's let's send them out for community service let's get them counselling it moved to all sorts of rather clever ways of achieving non retributive justice through restoration or restorative forms of justice and we've seen a little bit of this in the inter at the international level as well in South Africa with Truth and Reconciliation commissions and so on but on the whole international law has gone in the other direction if you like international law used to be all about restorative justice there was no retributive justice there were no international criminal tribunals before in 1945 so it was all restorative for those days we've taken the opposite journey from domestic lawyers in other words we've gone all retributive and we've become very excited about that you can you can censor in conferences or even at dinner parties people will say hey you know this international thing it's great somebody got in prison last week or they executed a guy in 1946 this is a real form of laws doing the sorts of things we associate with with with real law it's putting real human beings in jail or indeed hanging them back in the 19 back in the 1940s but this was a slightly strange move for international law to make given all this other this this criminological study at the domestic the domestic level and I think what's happened now is that there's probably being a bit of a backlash against this project of criminalization and we may move back different forms of restorative justice I think that some of the debates around the ICC in Colombia and so on are precisely debates between retributive and restorative forms of justice and they're playing out around the concept of complementarity in the ICC in the ICC statue wonderful thank you ever so much I think I would like to take the opportunity to thank you ever so much for this you know very eloquent exquisite journey that you've taken us on to see some of the silences and and some of the blind spots as well as decentralizing would be centering the oftentimes narrated story of international criminal law and this in this very room has been absolutely remarkable so I'd like to all of you join me in thanking professor Simpson for this very inspiring insightful lecture as well as the discussion thank you ever so much it's been a great pleasure thank you [Applause]

Channel: Nuremberg Academy

Views: 732

Rating: 5 out of 5

Keywords: International Criminal Law, Gerry Simpson, Nuremberg Trials, War Crimes Trials, International Nuremberg Principles Academy, Courtroom 600, Lecture, Völkerstrafrecht, Droit international pénal

Id: OPy9pX1Xl4o

Length: 107min 51sec (6471 seconds)

Published: Thu Oct 10 2019