RUNNING THE TRIAL OF THE CENTURY:
THE NUREMBERG LEGACY
Patricia M. Wald*
In the end, it is the caliber and performance of the judges that
determine the reputation and the worthiness of a court. This is
particularly true of courts which are tasked to handle novel proceedings
in unchartered legal territory where they have little or no precedent to
draw upon. In those pioneering situations, the attitudes and aspirations
of the judges, the way they interact with one another, the improvisations
they adopt to get on with their jobs, their relationships with the other
players in the courtroom, the prosecutor and defense counsel, and their
involvement with the public can all assume an importance equal to their
more formal judicial functions. This essay is an attempt to survey from
limited sources1 the context in which the Nuremberg judges made
critical decisions about the kind of trial the original twenty-four top
Nazi leaders would receive in 1945. It then analyzes how those
decisions have influenced the way proceedings have been carried out
before the International Criminal Tribunal for the former Yugoslavia 50
years later in the Hague, and how they continue to influence the
embryonic International Criminal Court.
I. WHO ARE THE JUDGES AND HOW DID THEY GET THERE?
A.
Nuremberg
The Nuremberg Tribunal was established by Charter2 pursuant to
the London Agreement among the principal Allied powers of World
War II—the United States, the United Kingdom, France, and Russia.
* Judge, United States Court of Appeals for the District of Columbia (1979-1999); Chief
Judge (1986-1991); Judge, International Criminal Tribunal for the former Yugoslavia (19992001).
1 For the background on the Nuremberg trial, I have principally relied on TELFORD TAYLOR,
THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR (1992) and FRANCIS
BIDDLE, IN BRIEF AUTHORITY (1962).
2 Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat.
1544, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter].
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Technically, it was a military tribunal legitimized by the status of its
sponsors as occupying powers, but, by dint of the men who dominated
it, it aspired to and did in fact achieve much greater historic status. It
was the first international criminal court trying wartime leaders for
crimes committed against international laws of war. Its judges were not
military men but civilian jurists of the first order; its proceedings were
open for the world to see, and its avowed aims were not simply to
punish wrongdoers, but to educate Germany and the world on the
horrors perpetrated by the Third Reich against its enemies, occupied
countries, and its own people. Most importantly, it sought to establish
enforceable fundamental rules for individual conduct during and leading
up to war and to begin to lay down a powerful benchmark for future
international criminal tribunals. Its Chief Prosecutor, U.S. Supreme
Court Justice Robert Jackson, called it “the most important, enduring,
and constructive work of my life.”3
The Charter of the Nuremberg Tribunal called for one regular
judge and one alternate judge to be named by each of the four major
Allies.4 The alternate judges who sat side by side with the regular
judges and deliberated with them did not vote. As it turned out,
however, the alternate judges played a significant role in the trials. “As
judges,” Telford Taylor, the chronicler of the Nuremberg trial and a
successor Chief Prosecutor to Jackson, wrote, “the nonvoting members
of the Tribunal seemed to me more level-headed than their seniors,” a
fact Taylor attributed to their greater judicial experience.5
In the case of the United States, President Truman picked the
regular and alternate judges, but not without input from Jackson, the
Prosecutor-designate, who had been a dominant figure in the drafting of
the Tribunal Charter. Jackson issued a “clarion call” to all the Allies to
appoint respected jurists who would tolerate “no drumhead court
martial, no Moscow-type show trial, no foregone conclusions.”6 His
3 TAYLOR, supra note 1, at 625. See also John Shattuck, From Nuremberg to Dayton and
Beyond: The Struggle for Peace with Justice in Bosnia, 3 HOFSTRA L. & POL’Y SYMP. 27, 29
(1999):
At the Nuremberg Tribunal, the Allies laid the foundation for a new international order
in which institutions of justice would hold leaders accountable for genocide and crimes
against humanity. The Nuremberg trials and to a lesser extent the Tokyo Trials
succeeded in demonstrating to weary Allied publics just what had been at stake in the
struggle against fascism and in educating future generations about what had happened
and why it must never be repeated.
4 Nuremberg Charter, supra note 2, art. 2.
5 TAYLOR, supra note 1, at 632.
6 Id. at 45. Jackson had previously announced at an American Society of International Law
speech in 1945:
I am not troubled as some seem to be over problems of jurisdiction of war criminals or
of finding existing and recognized law by which standards of guilt may be determined.
But all experience teaches that there are certain things you cannot do under the guise of
judicial trial . . . . You must put no man on trial before anything that is called a
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first choice for the American spot was retiring Supreme Court Justice
Owen Roberts, who, however, turned out not to be available.7 Truman
turned instead to Franklin Roosevelt’s Attorney General Francis Biddle,
whom he had dismissed on taking over the Presidency, a decision about
which Truman admittedly later felt guilty.8 For alternate judge he
selected Fourth Circuit Chief Judge John J. Parker, warmly sponsored
by fellow South Carolinian Secretary of State James Byrnes. Biddle
had a long active career in federal service as both Attorney General and
Solicitor General, but had served only a few not-so-happy months as a
Third Circuit judge. According to Taylor, “Biddle was in fact an able
lawyer and a charming man but was not generally regarded as a great
jurist. He was not the prestigious judicial figure Jackson had been
hoping to attract.”9 Parker, whose judicial credentials were impeccable,
was reluctant to accept the alternate spot. He dreaded “leaving home
and his comfortable, well-defined life” and worried that “as an alternate
he would be a voteless cipher.”10 This latter concern surfaced when the
judges’ chairs were originally placed in two rows with the alternates’
smaller chairs behind those of the regular judges. Parker became
visibly angry and as a result eight chairs of equal size were set in single
file. Otherwise, Biddle spoke well of Parker, describing him as “liberal
enough to know that he lived in a changing world, a leader in
progressive law reform, admired by the American Bar Association,”
adding, however, with reference to Parker’s earlier failure to obtain
confirmation of his Supreme Court nomination, “Parker never got over
it.”11 Nonetheless, Biddle reiterated that he was “the most considerate
and unselfish of associates, resourceful, just, hard-working” with,
however, a penchant for telling his colleagues on the bench how any
comparable situation would be handled in the Fourth Circuit.12
The United Kingdom chose Sir Geoffrey Lawrence, a member of
the Court of Appeals and later a Law Lord, as its regular judge and
Norman Birkett, a leading barrister, as its alternate. Biddle describes
Lawrence in his official memoirs as “looking like John Bull-rubicund,
healthy, a twinkling eye and pleasant English humor, friendly and
court . . . under the forms of judicial proceedings if you are not willing to see him freed
if not proven guilty.
Id. at 44-45.
7 Id. at 94. Taylor raised questions about the prosecution becoming involved in picking the
judge, but Jackson “did not see how he could avoid having a hand in it.” Id.
8 Biddle, who felt he had left under a cloud, was so bold as to say to Truman in accepting the
Nuremberg appointment, “Mr. President, am I right in thinking that your appointment says to the
country that you have confidence in me?” BIDDLE, supra note 1, at 373.
9 TAYLOR, supra note 1, at 95.
10 Id.
11 BIDDLE, supra note 1, at 372-73.
12 Id. at 374. General I.J. Nikitchenko, the Russian judge, would announce when Parker
entered the room, “Here comes the Fourth Circuit!” Id.
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attractive. As time wore on we became close friends.”13 Sir Norman
Birkett he described as “six feet three, beak-nosed, . . . lean, angular,
hawklike, . . . broadly read, . . . impulsive and generous. I liked Birkett
at once,” remarked Biddle.14 Birkett had been the British Government’s
first choice as its representative on the Tribunal until the Foreign Office
insisted that only a Court of Appeals judge, not a nisi prius judge,
should hold the office.15 Birkett’s diary reveals his “secret anguish” at
the rejection, and Taylor notes that Lawrence’s “legal abilities had won
little acclaim” but nonetheless concludes, “[a]s matters worked
out . . . Lawrence and Birkett were rightly cast for the coming trial.”16
Lawrence was chosen by acclimation as President of the Tribunal.
Biddle had wanted the job but was dissuaded by American diplomatic
advisers on the ground that “the whole enterprise already had too much
of an American cast and that if Lawrence were to preside, the British
government would be committed to ensuring the success of the
undertaking.”17 A good sport and handicapper, Biddle wrote to his
wife, “[o]f course it would have been fun to preside, but I have no regret
as this is the wiser choice. Lawrence depends on me for everything and
I’ll run the show.”18
The French judges were Henri Donnedieu De Vabres, an
international law professor, and alternate Robert Falco, a judge on the
Cour de Cassation (France’s highest court) as well as a fellow
negotiator with Jackson on the writing of the Charter. These “two
funny little men,”19 as Biddle referred to them, were destined to play a
lesser and occasionally, in the case of De Vabres, a more irritating role
in the Tribunal’s deliberations than their U.S., British, and Russian
counterparts. De Vabres knew only three or four words of English,
“usually out of context,” Biddle wrote, and described his alternate as
“skeptical, ironic, hard-working.”20
The Russian judge, Major General I.J. Nikitchenko, had been a
Judge Advocate, a Vice President of the Soviet Supreme Court, and a
well-known Stalinist prosecutor. (He wore his Soviet Army uniform
throughout the trial.) In Biddle’s words, he was “grave, dignified, thinlipped” and “capable, I thought, of using cruelty when it seemed
appropriate.”21 His alternate, Lieutenant Colonel A.F. Valchkov, a
13
14
15
16
17
18
Id. at 379.
Id. at 379-80.
Id.
TAYLOR, supra note 1, at 120.
Id. at 123.
Id. at 124. But in his diary entry from May 22, 1946, referring to Lawrence, Biddle wrote,
“[b]ut the old goat is so dumb, so inept, that it becomes a long series of petty annoyances.” Id. at
227.
19 Id. at 120.
20 BIDDLE, supra note 1, at 380-81.
21 Id. at 381.
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member of the Soviet District Court, was less impressive. Biddle
thought he had an “unclear mind, and never seemed to grasp the point
of what was going on. He bored Nikitchenko, and was a little afraid of
him.” Nikitchenko, too, had participated in the negotiations on setting
up the Tribunal.22
These then were the eight men who would deliberate and try the
top tier of Nazi leaders in the trial of the century. They had uneven
judicial experience, although the presence of the alternates added
immeasurably to that component; several of them had already taken
positions as to the scope and purpose of the Tribunal in drafting its
Charter and were worldly men but hardly impartial or dispassionate as
to what they wanted to happen. Most crucially, in the eyes of the world,
they represented the victors and their impartiality in judging the
culpability of individual defendants was unproven. (A cynical Chief
Justice Stone refused to swear Biddle in as a Nuremberg judge and
referred to the Tribunal as Jackson’s “lynching expedition.”23) Taylor
thought the presence of the Russian judges on the bench, given the
Soviet Union’s own record on war crimes and crimes against peace, a
“political wart.”24 The credibility of the entire enterprise lay in their
hands.
B.
The Hague
Fifty years later, after interminable wars, internal and international,
the first successor to Nuremberg came into being during the Bosnian
War in 1993. This time around, the International Tribunal for the
former Yugoslavia (ICTY) was established by a United Nations
Security Council Resolution under its Article 7 peacekeeping authority
for the purpose of deterring further war crimes and facilitating the end
of the conflict in the territory of the former Yugoslavia, as well as for
the Nuremberg purposes of punishing wrongdoers and enforcing
international laws of war. The Hague Tribunal would consist of eleven
judges (later increased to sixteen and supplemented by a corps of
twenty-three ad litem judges sitting for a few trials only) to be
nominated by member countries of the U.N. and selected by the General
Assembly with no more than one regular judge to a country. As with
Nuremberg, the ICTY was vigorously supported with money, personnel,
and logistical help by the United States. The crimes it would try and
punish were also remarkably similar to Nuremberg—war crimes, crimes
against humanity—but with two major differences. Crimes against
22
23
24
Id.
Id. at 374-75.
TAYLOR, supra note 1, at 639.
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peace, a lynchpin of the Nuremberg Charter, were not resurrected in the
ICTY, and genocide, which stands at the apex of the crimes in the
ICTY, had not yet been recognized under international law as a separate
crime in Nuremberg’s time, though its components could be tried under
the rubric of a crime against humanity. (The ICTY’s jurisdiction was
further limited to crimes committed on the territory of the former
Yugoslavia after January 1, 1991.25)
There were of course other meaningful events that transpired in the
fifty years between Nuremberg and the Hague: the exponential
development of international humanitarian law (the laws of war) to
include many new types of violations; the Geneva Conventions of 1949
and later Protocols on the treatment of prisoners of war and residents of
occupied countries; coverage of some internal civil wars; and a host of
treaties dealing with torture, hostages, and other relevant topics. There
was also the emergence of a healthy community of nongovernmental
organizations (NGOs) devoted to monitoring human rights violations
and international courts, as well as the beginnings of a jurisprudence of
war crimes prosecuted in national courts. All of these developments
had an impact on how Nuremberg practices would be accepted and
followed at the ICTY.
Insofar as selection and tenure of the Yugoslav Tribunal judges
were concerned, the ICTY Charter required that they be “persons of
high moral character, impartiality and integrity who possess the
qualifications required in their respective countries for appointment to
the highest judicial offices,” and that “due account . . . be taken of the
experience of the judges in criminal law, international law . . . and
human rights law.”26 These mainly aspirational criteria have been
translated by the nominating countries as they see fit; while many of the
judges at the ICTY are experienced jurists, many have not had prior
judicial or criminal experience of any kind. The U.N. has never
attempted to second guess the merits of individual nominations; its
members more often vote on the basis of regional concerns and
tradeoffs. Although, in the interlude between Nuremberg and the ICTY,
the women’s movement has taken center stage in a large part of the
world, the all-male cast of Nuremberg judges has been replaced by only
two women of the sixteen permanent judges of the ICTY sitting at any
one time (though a considerably larger number are among the
temporary ad litem judges). Two out of three of the American judges
since 1993 have been women.
In my own experience, the lead on proposing nominations came
from the Department of State with a diplomatic nod to the White House
25 Statute of the International Tribunal art. 1, Apr. 2004, U.N. Doc. S/25704, available at
http://www.un.org/icty/legaldoc-e/index.htm [hereinafter ICTY Statute].
26 Id. art. 13.
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Counsel’s Office. So far as I know, the President has had no direct
involvement with ICTY appointments as Truman did with the
Nuremberg judges. The ICTY judges serve a four-year term and can be
reelected indefinitely. Perhaps because of a natural inhibition to dig up
roots and move to another country (even to the Hague, where the living
is quite upscale), the job may have less allure than the less-than-a-year
tenure that the Nuremberg judges anticipated when they entered their
duty. (Biddle was assured the Nuremberg trial would be over in three to
four months.27) Both the Nuremberg and ICTY experiences support a
proposition that at least the trial bench in an international criminal court
profits from the participation of a majority of judges with some kind of
criminal courtroom experience.28
It should be noted that the drafters of the Rome Statute,29 creating
the new International Criminal Court, drew on lessons from Nuremberg
and the ICTY in setting the rules for the selection of judges. Article 36
of the Rome Statute sets out the usual formula that the judges must be
“persons of high moral character, impartiality and integrity who possess
the qualifications required in their respective States for appointment to
the highest judicial offices.”30 But it goes further to require that every
judge candidate have established either competence in criminal law and
procedure and relevant experience as judge, prosecutor, or advocate in
criminal proceedings or competence in international humanitarian law
and human rights and extensive experience in a professional legal
capacity relevant to the judicial work of the court.31 The nomination
procedures in the individual states that are parties to the statute must be
either those used to appoint the highest judicial offices in the country or
those used to nominate persons to the International Court of Justice in
their state, and nominations must be accompanied by a declaration of
the person’s specific qualifications. There are two lists of candidates:
one with qualifications in criminal law, the other with qualifications in
international law.32 Nine judges are to come from the criminal law list
and five from the international law list. Election is by secret ballot at a
meeting of the State parties (that is, those that have ratified the Rome
Statute). The parties are told to take into account the need for
representation of different legal systems, geographical representation,
27
28
BIDDLE, supra note 1, at 369.
For a more extensive discussion on ICTY selection judicial processes, see Patricia M.
Wald, Reflections on Judging: At Home and Abroad, 7 U. PENN. J. OF CONST. L. 219, 229-30
(2004).
29 Rome Statute of the International Criminal Court, July 17, 1989, U.N. Doc.A/CONF.
183/9, 37 I.L.M. 999, available at http://www.un.org/law/icc/statute/romefra.htm [hereinafter
Rome Statute].
30 Id. art. 36, § 3(a).
31 Id. art. 36, § 3(b).
32 Id. art. 36, § 5.
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and—for the first time—gender representation. (There is also an
expressed desire for judges with specific experience in violence against
women and children.33) The eighteen candidates who get the highest
number of votes with a two-thirds majority of the states present and
voting will become judges. Judges can serve for one nine-year term.
Article 39 of the Rome Statute also mandates that in assigning judges to
chambers (five to the appellate chamber, six each to the trial and pretrial
chambers) the principal functions of the division shall be aligned with
the experience of the judges, and the trial and pretrial divisions
specifically shall be composed predominantly of judges with criminal
trial experience.34
These details attempt not only to provide for more transparency in
the in-country nomination process, but also to ensure that adequate
numbers of judges with criminal trial experience are assigned to the trial
chambers. The first eighteen judges were elected on March 18, 2003,
and for the main part appear to fill the qualifications nicely; seven are
women. However, it took thirty-three voting rounds to elect the
eighteen, and at the end there was some negotiated trading among
member countries. But because of the structural nature of the selection
process, the trading played a much smaller part than in the earlier
tribunals. More significant perhaps were the relatively powerful
pressures by local and international NGOs operating inside the member
countries to withdraw unqualified candidates and to nominate more
suitable ones.
Parenthetically, the Nuremberg judges came exclusively from the
World War II victor nations. The ICTY judges have never included
judges from the Balkan warring countries—Serbia, Bosnia, and Croatia.
More recent “hybrid” war crimes courts, however, like Sierra Leone,
East Timor, Kosovo, and prospectively Cambodia, have specifically
decided to combine local judges with international ones and sometimes
to make the court itself a part of the national judiciary with the hope of
bringing its proceedings closer to the people affected. Still other
countries, like Iraq and Indonesia, have (in the case of Iraq, with U.S.
backing) decided to go it alone, though there is always the risk that local
judges, especially in countries recently plagued by war or tyranny, are
unlikely to have international law expertise, and may have intractable (if
disguised) loyalties with one or the other side of the conflict.35
Despite their origins, the Nuremberg judges for the most part set a
sterling standard for independence. Taylor comments that never once
33
34
35
Id. art. 36, § 8.
Id. art. 39, § 1.
Taylor concluded, “[t]he laws of war do not apply only to the suspected criminals of
vanquished nations. There is no moral or legal basis for immunizing victorious nations from
scrutiny. The laws of war are not a one-way street.” TAYLOR, supra note 1, at 641.
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did any “instructions” on rulings come from the U.S.; the same seems
true of Britain and France.36 In the case of Russia, the problem was
more conceptual than personal; both Biddle and Taylor explain in their
memoirs that the Soviet conception of law was that it was a “servant of
the political leadership.”37 AndrJ Vishinsky, the Soviet delegate to the
U.N., dined with the Nuremberg judges during a trial visit and proposed
this toast: “To the German prisoners, may they all be hanged.”38
I am happy to relate that the ICTY judges during my time at the
Tribunal similarly evidenced no bias toward one or another of the
national or ethnic groups involved in the trials. The Office of the
Prosecutor has been criticized by some of the Balkan media for
weighting the number of prosecutions toward Serbs and Croatians, and
not Bosnian Muslims, but the judges to my knowledge have not been
accused of any prejudicial attitudes. The notion that an international
judge is not a representative per se of his or her country devoted to
promoting its interests, but rather someone entrusted to enforcing an
international norm of justice, despite inevitable skeptics, put down roots
in Nuremberg and has certainly carried through to the ICTY.
II. WHAT HELP DID THE JUDGES GET?
Given the uniqueness and enormity of their responsibilities, to do
their jobs well, judges on an international court need as much—and
likely more—assistance as their national counterparts. The murkiness
of much international law, its multiple sources embedded in different
languages, the lack of judicial precedent for its varied applications, the
melding of widely disparate rules of procedure and evidence found in
the common law and civil law systems all make the international
judge’s tasks more difficult. Plainly put, the international judges need
astute assistants. Ironically, in the Nuremberg trial, the judges—at least
the American judges—had ready access to the “best and the
brightest.”39 At the ICTY, the United Nations bureaucracy sometimes
imposed significant obstacles to a judge’s ability to get the best help
available.
36
37
38
39
Id. at 215-16.
Id. at 59; BIDDLE, supra note 1, at 411.
BIDDLE, supra note 1, at 428.
TAYLOR, supra note 1, at 119.
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Nuremberg
The American judges, because of their prestige at home and the
high visibility of the impending trial, were able to bargain for top-tier
legal talent.40 While Taylor rated the judges of the Tribunal “not a
brilliant group,” he considered their performance “professional, honest,
and [it] did no discredit to the heavy task that was set before them.”41
The quality of their work he attributed in large part to the “exceptionally
strong supporting cast” of assistants.42 Many of these “bright
assistants” were no mere law clerks, but legal experts in their own right
who had already achieved or were on the threshold of brilliant careers of
their own. Herbert Wechsler, a Columbia Law School professor and
former Assistant Attorney General, probably led the list. Throughout
the year Wechsler produced sage analyses and memoranda when
impasses or potential embarrassments threatened the Tribunal. Other
legal luminaries who worked for the American judges included
Professor Quincy Wright, a leading international law professor at the
University of Chicago, James Roche, a former Presidential assistant and
Assistant Attorney General, and Robert Stewart and Adrian Fischer,
former Supreme Court law clerks.43 Biddle recounts that upon taking
the job he knew an “immense amount of work would have to be done to
bring orderly procedure and rational justice out of the trial . . . . I must
have an international law expert to keep us out of the pitfalls of that
boggy and uncertain territory . . . . I needed a first-rate criminal-law
man . . .” and someone to “handle the military.”44 He got them. Biddle
cites Professor Wright’s memorandum on international law
demonstrating: (1) that the definitions of the crimes in the Tribunal’s
Charter were based on preexisting international law; (2) that individuals
could not avoid responsibility for their acts on grounds they were
authorized by a government if that government lacked power under
international law to give such authority; and (3) that the state had no
authority under international law to resort to war except in necessary
self-defense or as permitted by appropriate international procedures.
These three key principles, Biddle observed, made their way into the
final Nuremberg judgment in substantially unmodified form.45 In
another instance, a potential walkout by the Russian judge was averted
when a Wechsler memorandum, incontrovertible in its logic, “in
40 The military provided the logistical support needed to set up courtrooms, locate
interpreters, ensure security and recordkeeping, find residences, drivers, and house help for the
judges, etc. See id. at 144-45, 221.
41 Id. at 632.
42 Id. at 119.
43 Id. at 119, 632.
44 BIDDLE, supra note 1, at 375.
45 Id. at 375-78.
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dignified but forceful language, made mincemeat of” the Russian
prosecutor’s petition that a Soviet Union Special Commission Report on
a disputed massacre, attributing blame to the Poles rather than the
Russians, be given “binding weight” under the Tribunal Charter.46
Indeed, much of the final Nuremberg judgment was based on endless
discussion drafts and testimony summaries written by the legal
assistants in the spring of the year, months before the judgment was
handed down in late autumn.47
B.
The Hague
The willingness to accord the American judges “the best and the
brightest” assistants is to be compared favorably with later courts. The
ICTY (and its Rwandan counterpart, the ICTR) are U.N. courts, and
chambers personnel, including legal assistants, are subject to U.N.
personnel requirements. They are typically selected by a Committee of
Registry officials and a designated ICTY judge. Great weight is laid on
geographical diversity in picking Chambers assistants, and although
fluency in either French or English is required, fluency is flexibly
interpreted. As a result, for an English-speaking judge such as myself
assigned to a “French chamber,” memoranda drafted by predominantly
French-speaking assistants can be difficult to understand and sometimes
impenetrable. These assistants have work doled out by a chief legal
officer who also does their evaluations. While many of the young
assistants are bright and idealistic, few, if any, rise to the level of a Herb
Wechsler or Quincy Wright. Fortunately, there is some give in the
system to the extent that each judge can pick one legal assistant of her
own, assuming the candidate meets the official criteria. (I could not
have survived my first year without the U.S.-trained law clerk who
came over with me.) Yet overall the bureaucratic selection of legal
assistants can rarely produce the kind of fine-tuned seasoned analyses
that the Nuremberg judges had available, and few American professors
are likely to want to spend a year or more at the Hague on a U.N. entrylevel salary. I personally think judges should be allowed freely to select
their legal assistants and use them as we do our law clerks in the federal
judicial system. In that way international courts may enjoy, for brief
periods at least, the services of the best legal talent the member
countries can offer.
This may seem like a small detail in the workings of a court with
immense substantive duties, but I can assure you that Biddle was
46
47
TAYLOR, supra note 1, at 468-69.
Id. at 549. But see id. at 553-54 (recalling that judges rewrote Fisher’s draft on evidence of
conspiracy).
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right—the quality of assistants can make an immeasurable difference in
the productivity of a judge and in the merit of the final work product of
a court.
III. SETTING THE STAGE: PRETRIAL PROCEEDINGS
A.
Nuremberg
In setting up a court, an original group of judges must make many
small and seemingly unimportant decisions that can have a major
influence on the way the court is perceived by the other courtroom
participants—the defendants, the prosecutors, the defense counsel, and
the public at large. The Nuremberg judges made a bevy of initial
choices that became staples of practice in later international courts,
though a few failed the test. At their earliest organizational meetings
the judges had to decide if they would wear robes and, if so, whether it
should be their own country’s or a uniform robe. All except the
Russians, who wore their Soviet Union Army uniforms throughout the
trial, decided on a simple black robe.48 They also had to decide whether
one judge—the President of the court—would preside permanently or
whether, as was the custom in many international bodies, the judges
would rotate in the chair. Here the Nuremberg judges opted for the
appearance of stability with a single presiding judge at the courtroom
proceedings (a practice that has been carried over into later courts) but a
rotation of judges at private sessions.49 Adventurous, the court agreed
to experiment with the first simultaneous translation system used in a
major trial to translate the participants’ questions and answers back and
forth into German, French, English, and Russian.50 Though crude by
modern standards, it was successful. The system has been improved
over the years and is a mainstay in international courts; none could
survive without simulcast systems and the bank of translators who
man—and more frequently woman—them.
Dealing with the language differences in international trials is
perhaps the most critical aspect. Technology can certainly help in
breaching the gap (I know of no judge in such a tribunal who does not
acknowledge that he or she is totally at the mercy of the translator in the
courtroom). But the problem goes much deeper, as Biddle recognized:
This is an expert field, in which intimate knowledge of two
languages is by no means enough to insure proficiency; it is essential
48
49
50
TAYLOR, supra note 1, at 122; BIDDLE, supra note 1, at 383.
BIDDLE, supra note 1, at 382-84.
Id. at 398-99.
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to seize and render the substance of what is said—translation must
not be too literal or the core of the meaning will be lost.51
Taylor described some of the translations during preparation of the
Nuremberg indictment as “like conversation[s] through a double
mattress.”52
The ICTY courtrooms are supplied with first-rate translators who
provide the judges with instantaneous translations through high-tech
audio, supplemented by close-captioned television monitors in English,
French, and Serbo-Croat—the native language of most defendants,
witnesses, and many defense counsel. In the trial chamber in which I
served, the presiding judge spoke in French; I spoke in English with
limited French; the third judge alternated between the two. Typically
the prosecution asked a question in English, pausing while it was
translated to the witness in Serbo-Croat, whose answer in Serbo-Croat
was translated into both French and English for the court and
prosecution. There is no question that the process slowed down trial
proceedings measurably (some estimates are by fifty percent).
Translation disputes frequently arose. And if the judges had to huddle
together to make a ruling on some procedural matter, we usually had to
do so in vaguely imperfect English with asides in French. In chambers
deliberations—again without translators—it was perceptibly more
difficult to debate or argue; there was first the problem of finding the
counterpart words in the other language for what you wanted to say,
but, perhaps more basically, finding the contextual analog in a different
legal system for the procedure or the concept that you want to discuss—
which in the end might not even exist outside your own legal system.
Decisions—interim and final—at the ICTY had to be issued in both
English and French, but only one was the authoritative version. In my
own case, if it were drafted in French, it would have to await my final
approval until translated into English (reportedly, some judges were
willing to sign on to a document in a different language on faith; I was
not). Often my collegial colleagues blinked first and were willing to
approve a final version in English after our legal assistants mediated the
discussion in both languages. Language vexed elsewhere in the process
as well. Accuseds had to be provided discovery documents in their own
language—Serbo-Croat—which, if originally written in English or
French, took extra time.53 And at the core of the judging process I
found it a vastly more difficult job to evaluate a witness’s demeanor and
51
52
53
Id.
TAYLOR, supra note 1, at 101.
Louise Arbour, a former Chief Prosecutor at the ICTY, points out that pretrial disclosure
requirements of prosecution evidence to defendants have grown exponentially in the intervening
period between Nuremberg and the ICTY. See Louise Arbour, The Status of the International
Criminal Tribunals for the Former Yugoslavia and Rwanda: Goals and Results, 3 HOFSTRA L. &
POL’Y SYMP. 37, 37 (1999).
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credibility when I did not understand directly what she was saying, but
heard her speak only through the translator’s voice and idiom.
Other courtroom relationships bore the brunt of language
differences. Defense counsel came from all over the world, often drawn
by salaries higher than at home; many were not familiar with the
adversarial mode of trial and at best were initially maladroit at crossexamination. Although all counsel were supposed to have fluency in
either English or French, the requirement was often waived for Balkan
counsel because their clients insisted on a native speaker.
The result was that questioning often proceeded in a slow and
awkward fashion, and the crackling give-and-take of cross-examination
as we know it in the American courtroom was impossible. Briefs
written by counsel who were not really comfortable with the operative
language—French or English—proved hard to follow, and the judge
often had to work overtime even to understand arguments that she had
then to evaluate. The prosecutors on the other hand were usually well
trained regulars in the courtroom and possessed greater language skills.
Fifty years of technology have not solved this inherent problem of
international courts. The failure of the American educational system to
stress foreign languages has not helped either. Only greater language
proficiency on the part of all the participants can accomplish that.
Back to Nuremberg: the paperwork at first threatened to
overwhelm the judges—thousands of pages of petitions and motions.
Biddle and Parker appealed directly to General Eisenhower and got
military assistance in the form of a Brigadier General to organize the
paper trail. No funds had been allocated for defense lawyers either;
they reported to Eisenhower, who responded by barking an order to a
subordinate: “Print enough money to keep Judge Biddle going.”
(Defense counsel were thereafter paid $300-$400 a month.54)
Timely translation of mountains of documents posed an ongoing
logistical nightmare. In Nuremberg, Justice Jackson grew increasingly
irritated with the French and Russians who said they had no staff to
translate their documents into German and wanted the Americans to do
it for them.55 At one point it turned out that some prosecutors were not
providing copies of documents introduced at trial to all the defendants
and their counsel (even though copies were being made available to the
press). In this instance, the court came down initially on the side of
insisting that no documents be introduced that had not been translated
into the accused’s language and provided to them and their counsel, a
vital component of a fair trial that has been incorporated into the
practice of later courts.56 Because of the shortage of translators,
54
55
56
BIDDLE, supra note 1, at 396-98.
TAYLOR, supra note 1, at 140.
Id. at 173-75, 203.
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however, a temporary compromise had to be worked out whereby
documents were read into the record so that they would be available in
the daily transcripts—an imperfect and time-consuming process but not
unreasonable under the circumstances. When after a few months
translation services improved, the court required all documents to be
given to the defense in their own language before introduction into the
record.
A second document dilemma arose when the court was initially
faced with a choice as to whether common law or civil law practice
would be followed as to the contents of the indictments offered against
the twenty-four defendants. The French and Russian judges wanted the
indictments to be accompanied by all documents supporting the
charges—a civil law practice which would have not only posed
formidable translation problems up front but also confounded the
prosecutors, who had only begun to sift the carloads of documents in
their possession. (They eventually examined 100,000 documents and
put 2,000 into evidence.) In this case the common law judges
convinced their brethren to abandon the civil law practice in favor of
factual pleading within the confines of the indictment and a limited
number of accompanying documents.57 Other compromises between
the two systems of trial had to be made: Continental practice, unlike
common law, did not permit a defendant to testify under oath but
allowed him to make an unsworn statement. The judges decided to
allow both—sworn testimony and/or an unsworn statement. Such
examples illustrated a basic ad hoc approach toward procedural
requirements adopted in an effort to get the trial underway—in Taylor’s
words, “compromises which were crude but proved workable.”58
But melding two disparate systems of proving guilt was not always
easily resolved. Great Britain and the United States used an adversarial
common law mode of trial requiring the prosecutor to prove guilt
beyond a reasonable doubt and employing cross-examination as a tool
for testing the credibility of witnesses. France and the Soviet Union
were civil law countries where an investigating judge supervised the
investigation and questioned the witnesses, then prepared a dossier
which became the focus of any subsequent trial. Taylor said, “there is
no evidence that either group had given any prior attention to the
problem of how, if at all, the two systems could be married.”59 In the
end, the Nuremberg court adopted a basic common law mode of trial
with the burden of proof beyond a reasonable doubt on the prosecutor,
but no jury and no appeal. Rules of evidence were relaxed to allow
probative evidence without regard to its hearsay character, though the
57
58
59
Id. at 64, 117.
Id. at 63-64.
Id. at 59.
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judges put their own judicial gloss on just what kind of non-live
testimony would be accepted.
The Americans, from the President on down, were vitally
concerned that the trial look fair. In his memoirs, Biddle remembered
that Truman “was very anxious that the four powers should co-operate
in this new and complex undertaking, and that the world should be
impressed by the fairness of the trial. These German murderers must be
punished, but only upon proof of individual guilt at a trial.”60 Jackson
had been equally adamant that as sound an evidentiary record as
possible be made to undergird convictions: “Unless we write the record
of this movement with clarity and precision, we cannot blame the future
if in days of peace it finds incredible the accusatory generalities uttered
during war.
We must establish incredible events by credible
evidence.”61
Despite occasional breaches (which I will note), this was an
attitude that permeated the judges’ conduct of the trial as well. They
took the trial very seriously. Norman Birkett, the British alternate,
wrote:
This is supposed to be, and no doubt is, the greatest trial in history.
The historian of the future will look back to it with fascinated
eyes. . . .62
And Biddle wrote, after the trial was over:
The unity of action for which the President had hoped a year ago,
when he had appointed us, had been realized, and the fundamental
principles of international law stated unanimously in the judgment,
as a result of a mutual confidence between the members, which had
been achieved only slowly. We were not interrupted by other
engagements. We stayed in Nuremberg for a year, until the job was
done, sitting six hours a day in court, holding private sessions three
or four times a week to iron out differences and keep the work
current. From the beginning we established a rule which was rigidly
adhered to that no member should talk to the press or give
interviews. In my opinion these simple practices accounted for the
confidence and co-operation that resulted.63
Several early procedural rulings showed the court’s focus on the
appearance of impartial justice in the face of widespread skepticism
engendered by the judges’ status as representatives of victor nations.
One such decision centered about the problems of ensuring that the
defendants had adequate opportunities to mount their defenses. Jackson
initially offered to take on the job of assigning defense counsel and
securing defense witnesses, purportedly to save the court’s time and
60
61
62
63
BIDDLE, supra note 1, at 372.
TAYLOR, supra note 1, at 54.
Id. at 226.
BIDDLE, supra note 1, at 477.
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because, he predicted, the defendants would not be able to find many
witnesses to testify on their behalf. The other judges had the good sense
to reject Jackson’s offer because of the message it might convey if the
court ceded control over its own processes to the prosecutor.64
Assuring a fair and vigorous defense gave rise to other problems.
The twenty-two defendants65 were housed in separate Spartan-like cells
in a jail adjoining the Palace of Justice where the Nuremberg trial was
held.66 They were given copies of the indictment in German and told of
their right to assigned counsel. Several, however, wanted to be
represented by German counsel who were themselves members of the
Nazi party, and Julius Streicher, the notorious propagandist, wanted
specifically “a lawyer who is anti-Semitic.”67 After deliberations, the
court honored the defendants’ choices, despite the potential for added
tensions in the courtroom.68
During this pretrial period, the court met twenty-six times privately
and five times publicly. In order to present a unified front to the
watching world, it decided that any dissents from preliminary
organizational and administrative decisions would be kept in a “secret
record” but not announced publicly.69
Several critical decisions involved whether some of the defendants
should stand trial at all. One defendant (Julius Streicher, Editor-inChief of the notorious anti-Semitic paper, Der Steurmer) was often
incoherent in his speech and obviously obsessed about Jews; the court,
after ordering a psychiatric examination, found him sane and fit for
trial; Rudolph Hess, Hitler’s Deputy for Nazi matters and his designated
successor, who had defected to England mid-war, appeared to have an
almost total amnesia as to the indictment charges. There was a dispute
as to whether he was truly amnesiac or malingering. A medical
commission, composed of doctors from all four Allied countries, found
him mentally able to participate in the trial, though he continued
64 TAYLOR, supra note 1, at 132-34. Taylor also commented negatively on the frequent
occasions Jackson and Biddle conferred ex parte on speeding up the trial. Id. at 121. Jackson’s
reply to Biddle’s reluctance to let him handle defense summonses was, “This is not an ordinary
trial. Some of the proprieties went by the way when General Nikitchenko, who had been the
Soviet Prosecutor, was made a member of the Tribunal.” Id. at 134.
65 One defendant was confined to his bed, and one’s whereabouts were unknown.
66 The cells contained a bed, table, chair, and water closet. Defendants could send one letter a
week, work in the yard one day a week, and confer with lawyers through screens. The cells were
often cold and the prisoner received food of the same quantity and quality as was available to the
German population at large. TAYLOR, supra note 1, at 229-30; see also id. at 131 (containing
pictures of the cells). ICTY detainees were treated more generously, with daily recreational and
educational programs, showers and computer facilities in the cells, and conjugal visits, but could
be detained two to four years awaiting completion of their trials and appeals.
67 Id. at 133.
68 Id. at 132-33. In the end, fourteen out of thirty-five counsel were past members of the Nazi
party. Id. at 627.
69 Id. at 143; BIDDLE, supra note 1, at 402.
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throughout to behave inappropriately, speaking out loud at the wrong
times and gesturing wildly (ironically, he was convicted and ended up
serving the longest sentence of any defendant spared the death penalty).
Gustav Krupp, the German industrialist, was certified by physicians to
be too ill to leave his bed. After the indictments had been filed,
Jackson, in what many thought an ill-considered move, tried at the last
minute to substitute Krupp’s son as a defendant should the father be
ruled unfit for trial. Biddle called Jackson’s try “a cheap speech.”
Unsuccessful in that move, Jackson asked for the elder Krupp’s trial to
be held in absentia, a device permitted by the Charter only when a
defendant purposely evades trial. Prudently, the court acted to postpone
the trial of the elder Krupp until he was fit, an event that everyone knew
would not and did not occur. Martin Bormann, Hess’s successor and
Hitler’s Secretary, present in the bunker at the end of the Fuhrer’s life,
had disappeared; no one knew if he was dead or alive; he never
appeared in the courtroom but was tried and convicted and sentenced to
death in absentia, a decision to which many commentators also reacted
negatively.70 These were close calls and perhaps they were not all
called correctly. They did, however, except for Bormann, evince a
serious concern on the part of the judges for the appearance of fairness
insofar as the defendant, however heinous his crime, must have been
capable of knowing what was happening at trial and of helping his
counsel mount a defense.
But it was inevitable that the authority of the court under existing
international law to try and punish “crimes against peace,” i.e., waging
aggressive war, as defined in the Charter, but heretofore never
articulated as a violation of international law, would be challenged at an
early point in the proceedings. This crime was the heart and soul of the
Nuremberg enterprise so far as Jackson was concerned and the aspect of
the trial for which the American prosecutors took virtually total charge.
It was also the part of the indictment about which the other Allies had
the most doubt. The defense counsel petitioned the court to seek an
opinion from recognized international law authorities on the “legal
elements of this Trial under the Charter,” a motion that was summarily
denied by the court on the basis that Article 3 of the Charter, which
gave the court jurisdiction over the listed crimes against peace, said that
neither the legitimacy of the Tribunal nor its membership could be
challenged.71 Fifty years later, in the ICTY’s first prosecution,
Prosecutor v. Tadic,72 the challenge to the Security Council’s power to
establish such a tribunal under Chapter 7’s peacekeeping function was
70
71
72
TAYLOR, supra note 1, at 263, 150-61; BIDDLE, supra note 1, at 402.
TAYLOR, supra note 1, at 166.
See Prosecutor v. Tadic, Case No. IT-94-1-T, Decision on Defense Motion for
Interlocutory Appeal on Jurisdiction (Oct. 2, 1995).
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dismissed on basically the same grounds, i.e., that the legitimacy of the
court’s action could not be evaluated by the organ it had itself created.
The failure of both Tribunals to decide the issue of their own legitimacy
presents a basic question still unanswered—are a defendant’s rights
impaired when there is no way to challenge the legitimacy of the court
that is trying him?73
B.
The Hague
The ICTY, which became operative in 1993, began with no
defendants in the dock at all; its first trial was not held until three years
later. In the interim, investigations were conducted, indictments were
drawn up, and the judges formulated a detailed code of rules and
procedures, attempting to meld elements of both the common law and
civil systems, but based largely on the adversarial Anglo-Saxon model.
Those rules were amended about thirty times over the next decade with
increasing input from the civil law side.
Many of the Nuremberg dilemmas resurfaced: the ICTY judges
settled on exuberant robes of red and black. There were no alternate
judges, as there had been at Nuremberg, which may have been a loss
since the alternates there, especially those with judicial experience,
appear to have contributed greatly to both deliberations and judgment
writing. But, of course, the main Nuremberg trial was a single shot
while the ICTY and later international courts were designed to try
dozens, even hundreds of cases over a longer period.
Nuremberg innovations like the simultaneous translation system
were technologically improved upon, but the Nuremberg judges had
translators on the bench for immediate deliberations—the ICTY judges
did not, and when judges didn’t speak each other’s languages this
resulted in awkward and difficult exchanges before a ruling could be
made. Like the Nuremberg judges, ICTY jurists tended to take the
hardest rulings under consideration and deliberate them in chambers,
but that was not always possible if the trials were to be kept moving. It
remains to this day extremely difficult to evaluate testimony of
witnesses speaking different languages and to negotiate fine legal
distinctions among judges speaking different tongues.
Like the Nuremberg Charter, the ICTY Charter set up a separate
branch, the Registry, to deal with the administrative aspects of the
proceedings: appointment of defense counsel, detention of prisoners,
storage, replication and dissemination of court documents, translations,
and courtroom logistics. The downside of the Registry operation was
73
See id.
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the occasional bureaucratic delay and snafu. I have already spoken
about my perception of the need for judges to have greater control over
their chambers assistants.
Just as critical as at Nuremberg, there was also the problem of
identifying and assigning adequate defense counsel. Under the ICTY
regime, defendants are entitled to assigned counsel if they cannot afford
retained counsel. All but a very few have taken advantage of this
assigned system, although it is often impossible to verify their
“indigency” and indeed investigations in some cases showed that the
lawyers were paying back part of their fees to the defendant or his
family in exchange for having been selected. Unlike our assigned
counsel in the United States, ICTY defendants could pick their own
counsel from a list of qualified counsel in the Registry office; to qualify,
counsel had to be members in good standing of their national bars, have
trial experience and speak either English or French fluently; the latter
requirement was often waived because ICTY defendants wanted
counsel who spoke their Balkan dialect. In general, defense counsel ran
across the spectrum; many were not at all experienced in crossexamination, which is not a feature of civil law trials. Defense counsel
often, justifiably, complained that they were not accorded equal
treatment with the prosecutor so far as access to computers, deliberation
rooms, and prompt service of documents was concerned, and they
continually fretted about the pay system and the number of co-counsel
or investigators the Registry would allow them. They have now formed
international defense bar associations to advance their advocacy for
better working conditions. It should certainly be noted that it is not an
easy job to be a defense counsel in an international court; he/she is away
from the home office and its support system; there is much commuting
back and forth, dependent on the trial schedule; surface mail service in
the Balkans is not always dependable or electronic mail service
available so counsel may not get prompt service of filings; and the
concept of complete candor between a lawyer and his client is
frequently not a well-established aspect of the relationship. Training for
defense counsel in international court practice is now more readily
available than a few years ago. The Rome Statute and the ICC Rules
contain specific provisions for Codes of Conduct for defense counsel
and for disciplinary proceedings if these rules are violated.74
Intervening events like the adoption of the International Covenant
on Civil and Political Rights,75 which was basically incorporated into
the ICTY Charter and Rules, have elaborated the express rights of a
defendant beyond those in the Nuremberg Tribunal. There is no trial in
74 Rome Statute, supra note 29, art. 70-71; I.C.C. R. PROC. EVID. 8 (2002), available at
http://www.icc-cpi.int/library/about/officialjournal/Rules_of_Proc_and_Evid_070704-EN.pdf.
75 999 U.N.T.S. 171, 6 I.L.M. 368 (1966).
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absentia in U.N. courts, there is no death penalty, there is a guaranteed
appeal from a conviction (also from an acquittal), the prosecution has an
obligation to disclose any evidence helpful to the defense, and there are
also specific provisions for the defense of insanity or lack of capability
to stand trial. Yet, when all is said and done, the Nuremberg trial comes
off reasonably well as having honored most of the fundamentals of a
fair trial, even by modern standards: notice of charges; disclosure of
evidence; opportunity to challenge evidence; right of counsel; and rights
to present a defense.
The ICTY, based on its own decade-long experience, has adopted
an extensive pretrial procedure to simplify charges, keep the later trial
within reasonable time limits, rule on potential evidentiary disputes, and
even to limit the number of witnesses. It also disposes of jurisdictional
motions before the trial begins. (The new ICC has an entire Pretrial
Chamber to deal initially with such tricky questions as subject matter
jurisdiction and admissibility based on the submissions of the
implicated party states that they will investigate or prosecute the alleged
crimes nationally, and other in limine matters.76) Nuremberg showed
that early decisions can affect mightily the appearance and the reality of
a fair trial; later courts have found that additional early rulings can spell
the difference between expeditious and interminable trials.
IV. AT TRIAL
A.
Nuremberg
Nuremberg tried twenty-one defendants77 in a joint trial lasting less
than a year. Yet the drafters of the Charter thought it could be done in
much less time, a few months. The prosecutor’s office believed initially
that they would not need many live witnesses—“document books” from
the captured German Reich Archives would be adequate to prove
guilt—and that the meticulous nature of the German bureaucrats from
the top down had created a voluminous paper trail.78 But discounting
live witnesses turned out to be premature; the trial ended up with
ninety-four witnesses, thirty-three for the prosecution and sixty-one for
the defense.79 And issues arose throughout the trial about when
affidavits could be used in lieu of live witnesses, although they never
culminated in a policy that was entirely predictable. That dispute
76
77
Rome Statute, supra note 29, art. 57-62.
Of the twenty-four defendants indicted, two (Ley and Goering) committed suicide in their
prison cells and one (Krupp) had his trial postponed until he recovered.
78 TAYLOR, supra note 1, at 57, 136, 148.
79 Id. at 574.
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continues today in successor tribunals.
The Nuremberg Charter provided that to be admissible, evidence
need only be probative to a reasonable person (this standard was of
course considerably looser than our hearsay rules). Article 19 freed the
Tribunal from “technical rules of evidence”—adjuring it to adopt
“expeditious and nontechnical procedures.”80 Thus the affidavit of the
American Ambassador to Mexico, formerly the Ambassador to Austria
during the Anschluss, had been accepted, based on the circumstances of
his current obligations and his advanced age. Jackson then asked the
Tribunal to permit the evidentiary use of affidavits generally so long as
they were not directed against any particular accused, subject to the
condition that the defense could call the affiants for questioning.
Specifically, he wanted to introduce affidavits from German Army
leaders concerning Hitler’s aggressive intentions toward countries he
later invaded. (The prosecutors thought bringing the German leaders to
the courtroom would be time-consuming and their testimony might
actuallly weaken the prosecution’s case.) The defense objected and
asked for a rule that affidavits not be accepted for witnesses living in
Germany and available to testify in court. Tribunal President Lawrence,
however, made rulings on individual affidavits without laying down a
general rule or giving the reasons for individual rulings which
sometimes seemed conflicted. According to Jackson, “the Tribunal’s
failure to lay down any general rule left us uncertain of its action on
future affidavit presentations” and in a state of “nervous hope.”81
The Tribunal also accepted captured German films and
photographs as evidence without the kind of document authentication
normally required in Anglo-Saxon courts. “[T]he source was German,
and the pictures often portrayed identifiable locations or
individuals . . . . The scenes were in line with the content of the
documentary evidence.”82 Soviet motion pictures were also admitted,
showing “acres of corpses of Russian P[o]Ws murdered or left to starve
on the fields where they had been captured; the torture instruments,
mutilated bodies, guillotines and baskets of heads . . . the crematoria
and gas chambers; the piles of clothes; the bales of women’s hair at
Auschwitz and Maidanek.”83 Only Goering attacked the credibility of
the film as susceptible to having been faked. He was unsuccessful.
Article 21 of the Charter also provided that the official reports of
Allied countries documenting the scope and nature of war crimes in
80
81
Nuremberg Charter, supra note 2, art. 19.
See TAYLOR, supra note 1, at 240-43; see also Patricia Wald, To Establish Incredible
Events by Credible Evidence: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal
Proceedings, 42 HARV. INT’L L.J. 535 (2001).
82 TAYLOR, supra note 1, at 316.
83 Id.
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occupied countries could be admitted into the record by notice alone.84
These in-country reports were indeed the principal source of proof of
war crimes and crimes against humanity. Taylor wrote about them:
“For four days the courtroom was an echo chamber of unthinkable
torture and unaccountable killings throughout the German occupied
areas in the Soviet Union and in Poland, Yugoslavia and
Czechoslovakia.”85 On the basis of the reports, the Soviets claimed
civilian death tolls in the millions. Taylor asks:
Were the statistics inflated? Were the atrocities invented or
overstated? Total reliance on official reports based on untested
depositions by unseen witnesses is certainly not the most reliable
road to factual accuracy. . . . [N]ot only faulty observation but
deliberate exaggeration must have warped many of the reports. But
granting all that, were the flaws so numerous and so deep as to
undermine the general accuracy of the picture presented?86
He thought not, and Judge Birkett agreed:
15 February. . . . The impression . . . on my mind is that there has
been a good deal of exaggeration, but I have no means of checking
this. But no doubt can remain in any dispassionate mind that great
horrors and cruelties were perpetrated.87
But a special problem arose in the case of the Soviet Commission
Report about the infamous massacre of Polish PoW soldiers in Katyn
forest. The Report unequivocally attributed it to German soldiers, a fact
disputed by the Germans, who claimed the Soviets committed the
crime. German counsel wanted to submit their own evidence to rebut
the Report, but the Soviet prosecutor, backed by the Soviet judge,
insisted that was not permissible; it had been found by the Soviet
government that the Germans committed the massacre and to put that
finding to a trial would be a “travesty.”88 The court finally agreed to let
each side put on three witnesses to counter or support the Report but,
perhaps wisely, never referred to it again in the final judgment or made
a ruling on who in fact committed the massacre.89
Several incidents in the Nuremberg trial illustrated what judges on
all international courts quickly learn—the court occupies a small center
in a whirling international vortex. Almost everything the court does has
84
See Nuremberg Charter, supra note 2, art. 21; see also ICTY Statute, supra note 25, art. 21:
The Tribunal shall not require proof of facts of common knowledge but shall take
judicial notice thereof. It shall also take judicial notice of official governmental
documents and reports of the United Nations, including the acts and documents of the
committees set up in the various allied countries for the investigation of war crimes,
and of records and findings of military or other Tribunals of any of the United Nations.
85 TAYLOR, supra note 1, at 314.
86 Id. at 315.
87 Id. at 315.
88 Id. at 471.
89 Id. at 466-72.
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political implications. There is very often a history of intensely bitter
political relations between the countries of the defendants and the
countries of the judges that one side or the other will argue is relevant to
the issues before the court. How much of that history is really relevant
is often a hard question; introduction of past wrongs not on trial can be
mischievous to the purposes of the trial. Yet the undercurrent of
resentment in Nuremberg—why should you be trying us when you too
are guilty?—has continued to plague successor courts.
From the beginning of the Nuremberg trial, the judges, particularly
the British judges, had two fears: that the accused would use the trial as
a bully pulpit for preaching Nazi propaganda to the German public and
for airing accusations that the British and the French had contributed to
the rise of Fascism by their vindictive policies against Germany after
World War I. The Russians in turn feared any inquiry into their own
actions in Poland and other occupied countries during the period when
the Soviet-Axis pact was in force.90 The courtroom as a bully pulpit, of
course, is still a source of concern today in the Milosevic trial, as well
as in the trial of Saddam Hussein. To reduce the likelihood of such
happenings, the Nuremberg court, at the initial appearance of the
defendants, insisted they make a simple plea and cut off Herman
Goering’s attempt to make an accompanying statement. (Goering
released his statement to the press anyway.91) The court also refused to
let the defendants personally question the witnesses.92 Hess’s counsel
tried to introduce documents dealing with the disastrous effects of the
Versailles Treaty on Germany and the duress that surrounded its
signing. They were ruled inadmissible.93
But in two instances the court, over the prosecution’s objection,
refused to limit the scope of the defense’s proof, even at the risk of
opening up the trial to inevitable comparisons between the conduct of
the victors and the vanquished. Jackson argued vehemently that
witnesses, especially defense witnesses, should not be allowed to
amplify their Yes, No, or direct replies to questions, at least until the
direct and cross-examinations were completed. The judges disagreed.
“We were all of the opinion that witnesses after answering should be
allowed to explain their answers at once, as was the usual practice, and
90 Id. at 51; BIDDLE, supra note 1, at 370 (“Anthony Eden did not want ‘a full-dress parade’
which would ‘afford the Germans an unparalleled opportunity for propaganda’ . . . .”).
91 TAYLOR, supra note 1, at 166-67, 639. Goering’s statement acknowledged “political
responsibility” for his acts, denied their criminality, and rejected responsibility for acts of others
not known to him or which he could not prevent. It has also been widely commented upon that
the Allies, and particularly the United States, had themselves committed war crimes in the case of
mass civilian aerial bombardments in Germany and Poland. Taylor, however, differentiates their
involvement as not having been defined as a possible war crime until 1977. Id. at 640.
92 Id. at 190.
93 Id. at 349-50.
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not be forced to wait until the examination was over,” wrote Biddle.94
This liberal view toward defense witnesses reportedly enraged
Jackson to the point that he personally visited the two American judges
to complain.95 Jackson had particularly wanted Goering’s answers kept
to a minimum “because of a chimerical fear of propaganda.”96 Indeed,
it was generally agreed that Jackson’s cross-examination of Goering
went badly and some of Jackson’s zealous pursuit of brevity on the part
of witnesses stemmed from that debacle. He accused the Tribunal of
letting the trial get out of hand by allowing the defendants to “revive
and perpetuate [Naziism] by propaganda from this trial . . . .”97
Despite the judges’ indulgence of defense witnesses’ rights to
explain their answers—and their separate ruling that a defendant could,
but need not, testify under oath (an impermissible practice in the Anglo
system but a common practice in the civil law system)—the judges did
impose an additional and problematical burden on the defense. After
three months spent on the prosecution case, Jackson sought to “curtail
[the defense] as much as possible” and invoked Article 20 of the
Charter, which allowed the Tribunal to require that it be informed of
“the nature of any evidence before it is offered so that it may rule upon
the relevance thereof.”98 Jackson wanted a full statement of what each
defendant sought to prove by calling on particular witnesses. The court
acceded to the extent that it heard argument on each potential defense
witness from both sides, a hurdle the prosecution had not been subjected
to. The somewhat dubious barrier was justified on the ground that it fell
to the Secretariat of the Tribunal to secure the presence of defense
witnesses and that it therefore had the right to be assured of their
relevancy.99
In a second ruling, the court showed greater sensitivity to
appearances of fairness in permitting one of the defendants, counsel for
Admiral Karl Doenitz, Commandant of the German U-Boat fleet, to
secure answers to interrogatories on the comparable behavior of his
Allied counterparts under battle conditions. Doenitz was accused of the
war crime of ordering, contrary to international law, that enemy ships be
94
95
96
97
BIDDLE, supra note 1, at 410; TAYLOR, supra note 1, at 336-40, 342.
BIDDLE, supra note 1, at 410-11.
TAYLOR, supra note 1, at 342.
Id. at 339. Birkett thought Goering’s mastery of Jackson “the critical moment of the trial.”
“The trial from now on is really outside the control of the Tribunal, and in the long months ahead
the prestige of the trial will steadily diminish.” Id. at 341. He thought Jackson “had never learnt
the very first elements of cross-examination as it is understood in the English courts.” Id. at 34041. According to Janet Flanner, one of the most famous and perceptive chroniclers of the trial,
Jackson treated the witnesses “in a blustering police court manner, which was successful with the
craven small fry but disastrous for him in cross-examining that uncommon criminal . . . .” Id. at
343.
98 Nuremberg Charter, supra note 2, art. 20; see also TAYLOR, supra note 1, at 319.
99 TAYLOR, supra note 1, at 319-21.
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sunk without warning and that survivors be left in the water or shot.
Despite the general view of the British Admiralty that the German Navy
had on the whole performed honorably in the war, Doenitz was indicted
because he had been named by Hitler as his successor and actually
wielded power as Chief of State for two weeks after Hitler’s death.
Doenitz’s principal defense was that he was doing no more than the
Allies did under the same circumstances, and he sought to call British
Admiralty witnesses to testify as to the practices they followed when
their submarines sunk German ships. This request was refused by the
court, but Doenitz’s counsel, based on information that the U.S. Navy
had routinely sunk Japanese merchant ships without warning,
nevertheless sent an interrogatory to Admiral Chester Nimitz,
Commander of the U.S. Naval Forces, inquiring of his practices in the
Pacific. Over vigorous prosecution objection, the court admitted
Nimitz’s answers that it was customary to attack merchantmen without
warning, and that generally the U.S. fleet did not rescue enemy
survivors. This reply proved to be “the most important single factor in
saving the two [German] admirals’ skins.”100 (They were given the
lightest sentence of any defendants—ten years.101)
The Nuremberg court, ever aware of its responsibility to conduct a
trial that appeared fair to the world, nonetheless grew increasingly
“bored and testy.”102 The management of a twenty-one-person trial on
four major criminal counts—conspiracy to wage war, waging of
aggressive war, war crimes, and crimes against humanity—was
complex. Each of the four Allies had seven barristers, but only one
prosecutor and defense counsel per accused were allowed in the
courtroom at a time, and the defendants could not consult with counsel
there.103 The American judges at one point tried to speed up the trial by
proposing limits on the prolonged testimony of Russian witnesses, but
they were adamantly opposed by the Russian judges who plausibly
argued it would look like anti-Soviet bias.104 The judges met with
prosecutors and defense lawyers to find ways to expedite the
proceedings. Jackson continued to complain that the judges were
allowing defendants to introduce anti-Semitic “rubbish” and irrelevant
criticism of Allied policies.105
Goering was twelve days on the stand. Birkett expressed fears that
his testimony would “restore German belief in their leaders . . . .”106 As
a result, President Lawrence firmly ordered that the court “not propose
100
101
102
103
104
105
106
Id. at 401.
BIDDLE, supra note 1, at 450-53; TAYLOR, supra note 1, at 399-409, 591.
TAYLOR, supra note 1, at 264, 294.
Id. at 227.
BIDDLE, supra note 1, at 420.
TAYLOR, supra note 1, at 358-59.
Id. at 341.
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to allow any of the other defendants to go over the same ground in their
evidence except insofar as it is necessary for their own defense.”107
And in fact, the other defendants took no longer than four days on the
stand.108
The greatest impediment to speed appeared to be the inexperience
of continental counsel in cross-examination. Only the British and
American lawyers knew how to cross-examine—the French, Russians,
and German defense counsel “showed [no] talent for this ungentle
art.”109 Accordingly, the British and American prosecutors handled
seventeen to nineteen cross-examinations of defense witnesses; only
two prosecutors were allowed to cross-examine a single witness.
According to Biddle, “The Russian idea of cross-examination was to
read a long incriminating question, . . . look[] up at the witness [and]
expect him to admit to everything. . . . The Russians were used to cooperation from a defendant.”110 At one point Biddle intervened for an
hour conducting “the deftest cross-examination of the entire trial.”111
Biddle wrote, “[t]he French and the Russians had been quite inadequate
and I decided to go to town on [the witness]. . . . I really got him.”112
Birkett, the veteran jurist, grew increasingly impatient. “He was so
wedded to the crisp, no-nonsense procedures of his beloved English
courts that he could not abide the stumbling slowness of the German
lawyers.”113 Lord Lawrence, the Tribunal’s President, was more “aware
that fairness required patience and firmness rather than lectures on the
merits of Anglo-American criminal procedure.”114
For closing argument each defendant had one-half day and the
prosecution had three days. By the end of the trial, everyone was
exhausted. Rebecca West wrote:
The trial was then in its eleventh month, and the courtroom was a
citadel of boredom. Every person within its walk was in the grip of
extreme tedium. . . . [T]his was boredom on a huge historic scale. A
machine was running down, a great machine by which mankind, in
spite of its infirmity of purpose and its frequent desire for death, has
defended its life.115
A few final words about the “atmospherics” outside the courtroom
at Nuremberg.116 Biddle described the members of the Tribunal as
“longing to be home, trying to remember that they must behave like
107
108
109
110
111
112
113
114
115
116
Id. at 347.
Id. at 347.
Id. at 396.
BIDDLE, supra note 1, at 413.
TAYLOR, supra note 1, at 431.
Id. at 431.
Id. at 418.
Id.
Id. at 546.
See id. at 208.
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judges.”117 The judges were lodged comfortably in grand houses along
with their aides; they had drivers at their disposal and the Americans
and British socialized frequently among themselves, less so the French
and Russians. The President gave many dinners and receptions at
which the American and British prosecutors were regular guests. Brief
encounters among trial players were not unknown, but the German
lawyers were notably absent. Taylor noted the contrast with British
barristers “where those who had been at each other’s throats in court
that day could settle down together that evening for a friendly drink and
chat. The appalling organized atrocities of the Nazi leaders lay between
us, and we seldom encountered the German counsel outside the Palace
of Justice.”118
Indeed, this remoteness carried over to the German people as well,
and little attempt appears to have been made to inspire interest or
attendance by the German people at the proceedings. (Interestingly, the
court itself stayed away from the media and Taylor concluded that the
treatment by the German media had no influence on it at all.119) Taylor
also comments that it would have been difficult to lure ordinary German
citizens into the courtroom, “given the shock, destitution, and
destruction under which Germany lay,” but, he concedes, “much more
could have been accomplished than the very little that was
attempted.”120 In general, there was no attempt by the Tribunal staff to
attract media worldwide; they relied on German journalists to cover the
proceedings; German newspapers in the American zone dedicated less
than twenty percent of news coverage to the trial, the citizens having
“neither time nor taste” to listen to (what they considered) the incredible
horrors being invented about their former leaders.121
Taylor admits, “we . . . were about as indifferent to the Germans as
they to us” and Nuremberg participants maintained “a standoffish
attitude toward the Germans, compounded by self-consciousness and
suspicion, even among those who, like myself, had not felt it before
exposure to the Nuremberg evidence.”122 This, Jackson later concluded,
was a “neglected opportunity” as far as the impact of the trial on the
Germans themselves was concerned.123
117
118
119
120
121
122
123
BIDDLE, supra note 1, at 420.
TAYLOR, supra note 1, at 212-17, 232.
Id. at 220.
Id. at 233.
Id. at 233-34.
Id. at 232.
Id. at 235.
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1587
The Hague
The ICTY encountered many of the same evidentiary problems
that surfaced at Nuremberg and appear to be endemic to war crimes
tribunals. In the main it has had to depend more on live witness
testimony than Nuremberg; the Balkan military and civilian officials
were not so accommodating as the Nazi leaders in keeping detailed
records of their decisions, policies, and propaganda campaigns. As a
result, much more attention has been given to the risks and plight of live
witnesses in the ICTY, many of whom come from other countries where
they have relocated to, or, in some cases, from the villages where the
crimes took place and their alleged perpetrators often continue to wield
power. Victim/witness units have been set up in the ICTY and in all of
the successor courts to Nuremberg. The Rules of those courts allow the
judges many options in protecting witnesses, such as pseudonyms, gag
orders on disclosure of the witness’s identity to anyone other than the
defense team, voiceovers and hidden screens to prevent public
revelation of their identities, withholding their names in the final
judgment or other public records, and even witness relocation programs.
When the ICTY proceedings were broadcast into the Balkans, the risks
of testifying increased; up to half of all witnesses coming before the
Tribunal now ask for some kind of protection, and the judges have
generally been forthcoming. Because the ICTY, unlike Nuremberg, has
no process to compel witnesses to attend, the necessity of
accommodating witnesses’ requests is heightened.124
In my experience, the judges of the ICTY were empathetic to
witnesses’ apprehensions, particularly victim and survivor witnesses.
They were willing to listen to long, sometimes repetitive, accounts,
recognizing the cathartic effect for witnesses of “telling their stories.”
This concern is underscored by the widespread publicity that has been
given to the victims’ dilemmas by international NGOs, new but
important players on the war crimes scene since Nuremberg, who
monitor trials and publicize any callous or abusive treatment of
witnesses. On the other hand, the attempted use of the trial as a pulpit
for national leaders intent not so much on avoiding conviction as on
124 See Patricia M. Wald, Dealing With Witnesses in War Crimes Trials: Lessons From the
Yugoslav Tribunal, 5 YALE H. RIGHTS & DEV. L.J. 217 (2002). The ICTY additionally must
depend far more heavily on cooperation of States who possess relevant evidence and where the
indicted defendants themselves may be located than the Nuremberg Court, who had twenty-three
to twenty-four of their main defendants in custody and carloads of Nazi archive materials. See
Louise Arbour, The Status of the International Criminal Tribunals for the Former Yugoslavia and
Rwanda: Goals and Results, 3 HOFSTRA L. & POL’Y SYMP. 37, 43 (1999) (“[Nuremberg] had the
people it was trying in custody. The Nuremberg Tribunal was working in a potent environment
and could certainly function in a very robust fashion. . . . [The ICTY functions at] a considerably
lower level of potency.”).
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playing to their home populaces is still very much with us. Milosevic is
probably the most prominent example, though Hussein promises to be a
close second. Milosevic’s trial has lasted over three years and he
continues to dominate the courtroom. Recently, defense counsel
appointed over his objection asked to be excused on the ground that no
defense witnesses would come unless Milosevic was allowed to
participate in the questioning of witnesses, and an uneasy compromise
to that effect allows the trial to continue. The Nuremberg court was
lucky in the sense that no one, even Goering, who originally wanted to
be his own lawyer but eventually acceded to having appointed counsel,
ever carried on propaganda attempts to the lengths Milosevic has.
The ICTY, much more than Nuremberg, has suffered from
prolonged trials. Initially, the ICTY judges were reticent to exercise
strong control over the number of witnesses or length of their testimony.
(General Tomas Blastic was on the stand for over fifty days defending
himself.) But responding to severe criticism from U.N. experts and
from the media, the judges have amended the Rules to permit judicial
limits on the number of witnesses and the length of their testimony in
advance of trial. Except for Milosevic, ICTY trials have receded from a
year-long average to nine months, and a newly-adopted guilty plea
regime has increased the number of convictions and reduced the average
time from initial appearance to disposition. (There were no guilty pleas
at Nuremberg.) The ICTY, like Nuremberg, has joint trials, sometimes
with as many as a half dozen defendants; it authorizes two defense
counsel apiece in the courtroom and a team of several prosecutors.
The inexperience of civil law defense counsel—mainly Balkan
attorneys—with cross-examination continues to slow down proceedings
although there are now training courses given by both the Registry and
defense counsel organizations on this important technique. I did see
younger Balkan counsel improve rapidly over my two years. For the
future we can expect greater proficiency in cross-examination as
practitioners in older war crimes tribunals gain experience, new ones
come into being, and training becomes a qualifying condition of
representation.
Another unsolved problem carried forth from Nuremberg deals
with the use of written testimony in lieu of live witnesses. Although the
ICTY Rules initially stated a clear preference for live testimony, they
have always contained more liberal allowances than the American
system for depositions, video testimony, transcripts of prior testimony,
and judicial notice of “adjudicated facts.” In the early years, ICTY
appeals chambers, often citing Nuremberg precedent, insisted that
written testimony contain indicia of credibility and reliability, rejecting,
for example, admission of an unsworn statement of a deceased witness
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to a field investigator.125 In recent years, however, the Rules have been
liberalized specifically to allow admission of written witness statements
so long as they do not go to the core of the challenged conduct or role of
the accused. The latest decisions have permitted written statements to
be introduced across-the-board so long as the witness is held available
on request for cross-examination (eliciting, I note, a blistering dissent
from one of the Tribunal’s most able appellate judges—predictably
from a common law jurisdiction).126 At the present juncture, the ICTY
appears more willing to accept written and affidavit testimony than the
Nuremberg Tribunal. The ICTY does not, however, have any
equivalent to Article 20 of the Nuremberg Charter for in-country
national commission reports collecting accounts of individual atrocities,
so that much trial time is taken up in these witness accounts (probably
the prosecutors prefer it that way for its emotional effect). ICTY
investigators have also been allowed to recount not only their findings
but inferences drawn from their investigations without directly
introducing the testimony of witnesses or the items of evidence to which
they refer.
The ICTY has, belatedly, recognized the need to engage the
peoples of the countries where the war crimes were committed in the
trials of the perpetrators. Surveys have shown that the Balkan
population has been intermittently—like the Germans at Nuremberg—
indifferent or skeptical of the Tribunal’s impartiality. An outreach
program to bring judges, prosecutors, and defense counsel to the actual
sites of the war crimes has recently been initiated, and newer “hybrid”
tribunals, like Sierra Leone, have engaged in extensive outreach
activities even before the trials begin. One of the main purposes of war
crimes trials—from Nuremberg to Yugoslavia and beyond—has been to
expose the atrocities, especially those attributed to national leaders, to
their citizens in order to deter future tyrannies, but the impact is often
diffuse. The interest of the people has to be courted, their natural
reluctance to believe their own leaders would commit such atrocities
must be overcome.
Finally, on a personal note, the judges at the Hague had little
125 See, e.g., Prosecutor v. Kordic & Cerkez, Case No. IT-95-14/2-AR73.5, Decision on
Appeal Requesting Statement of a Deceased Witness (July 21, 2000).
126 See Wald, supra note 81. As Judge David Hunt saw it:
The only reasonable explanation for these decisions appears to be a desire to assist the
prosecution to bring the Completion Strategy to a speedy conclusion. I have been
unable to agree with those decisions because I do not believe that, in doing so, I would
be performing my duties “honourably, faithfully, impartially and conscientiously” as
the solemn declaration which I took when I became a judge of the Tribunal requires me
to do.
Prosecutor v. Milosevic, 2003 I.C.T.Y. No. IT-02-54-AR73.4, Dissenting Opinion of Judge
David Hunt on Admissibility of Evidence in Chief in the Form of Written Statement (Oct. 21,
2003) (footnote omitted).
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personal logistic support. They had to find their own housing, buy and
drive their own cars, or travel by tram or bicycle (as I did). Social
interchange among judges and prosecutors or defense counsel was more
cautious than the Nuremberg accounts reveal, probably because ethical
constraints on judges speaking ex parte to counsel on either side have
become more rigid in the intervening years.
Situated in the
Netherlands, ICTY judges’ contacts with the people of Bosnia, Serbia,
or Croatia were virtually nil except for the occasional formal outreach
visit—perhaps a sound reason why most of the recent war crimes
tribunals (except the ICC) are purposely located in the country or
countries involved in the trials.
V. JUDGMENT DAY
A.
Nuremberg
The trial phase ended in June 1945. The Nuremberg Charter
provided that the “judgment shall give the reasons on which it is
based.”127 The aides had begun drafting evidence summaries and
memoranda on legal issues in the spring while the trial was still in
progress. Each of the four main sections of the judgment, according to
Biddle, went through at least a half dozen drafts.128 The judges wanted
badly to present a unanimous front and to avoid dissents. At first the
Russian and French judges urged dividing the judgment into four parts
and making each judge responsible for drafting the parts dealing with
German crimes in his designated zone of interest. The judges also
considered the customary practice in other international bodies of
having the President of the Tribunal author the first draft and then pass
it around for review.129
But two of the four pairs of judges were English-speaking and the
Charter and Indictment showed the distinct influence of Anglo-Saxon
legal practice. It was therefore widely assumed the British and
Americans would take on the major part of the opinion writing. This
meant Biddle and Birkett (the alternates) since “Lawrence made no
bones of his distaste for voluminous paperwork . . . it had already
become the practice that Birkett, a skilled legal draftsman, would
produce drafts of the Tribunal’s important documents.”130 According to
Taylor, Birkett drafted the preliminary document which, upon review by
127
128
129
Nuremberg Charter, supra note 2, art. 26.
BIDDLE, supra note 1, at 466.
Biddle said, “I do not believe in dissents, any more than resignations, simply to make one’s
position clear, particularly in this case where international team-play was important.” Id. at 475.
130 TAYLOR, supra note 1, at 549.
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Lawrence, Biddle, and Parker, became the subject of the full Tribunal’s
attention at eight meetings in September. (Altogether the judges met
twenty-one times between June and September on the writing of the
judgment.) Nikitchenko thought it was too long. Lawrence wanted a
greater unity of style—“one hand”; Lawrence and Biddle pressed for a
stronger statement on aggressive war, and Biddle wanted more of his
own (and his aide’s) memo on international law incorporated.131
According to Biddle, Birkett wrote the historical part of the judgment
and Biddle the legal analysis and the sections dealing with the guilt of
individual defendants. It turned out to be a “longish document, over
50,000 words,” and had four main parts: a description of the rise of
Naziism and the evidence against individual defendants; a discussion of
the charges against organizations; decisions on guilt of the individuals;
and finally, the penalties to be imposed on them.132 The judges shared
the reading when it was announced in open court.133
As to style, the judges sought to avoid cliques and emotional
appeals, preferring instead to let the facts speak for themselves. The
Russians, however, were inclined to favor graphic language and to
include raw details, including “gruesome items of evidence” such as use
of one concentration camp victim’s skin for making ladies’ handbags.134
In the end, however, the judges came together and Taylor evaluated
their overall performance as satisfactory: “[D]espite the members’
disagreements and profound differences, they were bent on bringing
their enterprise to a successful conclusion.”135
Before the Nuremberg judges could decide on guilt or sentencing
they had to confront three major legal issues that had been simmering
through the trial. Briefly summarized, these issues were whether
waging or conspiring to wage aggressive war was a crime against
international law for which individuals could be held responsible. The
Nuremberg Charter and the Indictment had put a resounding Yes to the
question but the judges still thought it important enough to discuss
extensively before rendering judgment. They relied, some thought
tenuously, on the Kellog-Briand Pact of Paris condemning war as a
recourse for settling international disputes and a military tradition of
enforcing Hague Convention prohibitions by individual courts martial.
Yet a substantial number of commentators, including Taylor himself,
later criticized the aggressive war count as violating the international
law principle that no one can be held culpable for actions which were
not expressly defined as crimes at the time of their commission. Crimes
131
132
133
134
135
Id. at 550.
BIDDLE, supra note 1, at 465.
See id.; TAYLOR, supra note 1, at 550.
BIDDLE, supra note 1, at 474.
TAYLOR, supra note 1, at 631.
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against peace were, however, the centerpiece of Jackson’s prosecution
strategy, and the Nuremberg court went along with his theory although
only one defendant was convicted on that count alone.136 Interestingly,
until the ICC no subsequent war crimes tribunal charter has included
crimes against peace in its jurisdiction, and in the case of the ICC, a
definition of crimes of aggression was deferred in the Rome Statute,
after a vigorous debate, until a special committee’s proposals are
debated seven years after the court has been in operation.137
The conspiracy counts in the Nuremberg Indictment provoked
even more internal discussions among the judges. The French judge
wanted them thrown out altogether as antithetical to the notion of
individual versus collective guilt. Maintaining that conspiracy was
unknown to international law, and never precisely defined in the
indictment, he moved to strike the conspiracy count. Nikitchenko,
impatient with the “hairsplitting,” remarked they were a “practical
group, not a discussion club,” and argued for two hours that the court
was not an institution set up to protect old law—why not allow this new
innovation?138 The French law of accomplices—he said—did much the
same thing as the concept of conspiracy. But the American judges also
worried Jackson’s theory of conspiracy, covering all the events leading
up to and including the outbreak of World War II, went too far and
could bring into its net virtually all Germans alive at the time.
According to Biddle, “the decision [about conspiracy] must rest on a
basic sense of justice in determining the line that divided those who
should be held accountable and those who should not.”139 Biddle drew
from his early experience as an Assistant U.S. Attorney a skepticism
about the potential overreach of conspiracy doctrine, and thought it was
“used too often by the government to catch anyone however remotely
connected with the substantive crime.”140
Biddle’s aide, Herb
Wechsler, drafted a compromise insisting the conspiracy “must be
clearly outlined in its criminal purpose,” and “not too far removed from
the time of decision and action.”141 In the end no defendant was
convicted of conspiracy alone and the conspiracy count was not only
restricted to conspiracy to wage aggressive war—and not conspiracy to
commit any of the other indictable war crimes or crimes against
humanity—but defined on the basis of not one giant but several smaller,
more discrete conspiracies. And all eight defendants convicted of
conspiracy were also convicted of the main substantive count of waging
136
137
138
139
140
141
TAYLOR, supra note 1, at 581, 629.
Rome Statute, supra note 29, art. 121.
BIDDLE, supra note 1, at 467.
Id. at 468.
Id.
Id.
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aggressive war.142 The crime of conspiracy has not subsequently
appeared in the charters of later war crimes tribunals, though it is
included in the definition of Genocide taken from the Genocide
Conventions. And the ICTY and other war crimes tribunals have
developed a “criminal enterprise” doctrine, based substantially on
Nuremberg jurisprudence, that imposes guilt on all individuals who
knowingly join and contribute substantially in a group effort with an
unlawful purpose.143
There were similar doubts among the judges about the provisions
in the Charter and Indictment involving prosecutions of organizations
like the German High Command, the SS, and the Nazi Party.
Organizational crime was a totally foreign concept to the other Allies
and much debate went on among the judges and in open court with the
prosecutors about what its acceptance would entail. The original notion
of the drafters was that once the organization was declared criminal the
guilt and punishment of individual members would be adjudicated by
lower echelon courts. But since some of these organizations had
millions of members, questions immediately arose as to whether those
members’ knowledge of the illegal purposes of the organizations, even
the voluntariness of their membership, would be necessary or relevant
for individual guilt. Jackson eventually argued that to be found guilty
the organization itself must be composed predominantly of persons who
had joined with knowledge of its collective general purpose of
wrongdoing, and an objective reasonable man standard would be used
to ascertain knowledge of that illegal purpose. The problem of
subsequent prosecution of individual members was further alleviated by
the adoption of a de-Nazification program to be administered by the
military government and allied military courts. The court ultimately
found only two organizations (the Gestapo and the SS) to be criminally
guilty and it set out requirements of knowledgeable and voluntary
participation by members for later findings of individual guilt. Again, it
is of interest that no subsequent international criminal court has been
given jurisdiction to find organizations guilty. Taylor thought the
judges had wisely rendered the organizational guilt counts
“harmless.”144
142 Id. at 466-69; TAYLOR, supra note 1, at 550-53. Far less controversial were the discussions
of the evidence underlying crimes of war and crimes against humanity. Finally, Nazi atrocities in
Germany prior to 1939 were deemed noncognizable because they were not committed in
connection with the crimes against peace, a somewhat technical reading of the Charter. But in
deciding these more limited conspiracies to wage aggressive war the judges had to confront the
behavior of Allied countries themselves who had participated in the division of Poland, the
introduction of British troops in Greece, and the “secret pact” between Germany and the Soviet
Union. By ignoring these situations altogether, Taylor acknowledged “the Tribunal was engaging
in half-truths.” TAYLOR, supra note 1, at 555.
143 See, e.g., Prosecutor v. Kvocka, Case No. IT-98-30/IT (Nov. 2, 2001).
144 TAYLOR, supra note 1, at 555, 581, 628; BIDDLE, supra note 1, at 469.
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The judges had their hardest time with sentencing. Taylor thought
they did not do a thoughtful enough job. There was no sentencing
protocol to which they had to adhere, and the death penalty was on the
table at all times. Only the crudest attempts seem to have been made to
compare the penalties to the comparative gravity of the crimes for
which the defendants were convicted. Taylor cites the French judge’s
“capricious insistence that all the defendants should be convicted,
coupled with his dislike of heavy sentences” that “would have been
laughable if his votes had not often been skewed.”145 The Russian
judge, without exception, voted against acquittals and for the death
penalty for all convicted defendants and wrote a dissent to that effect.
Of the twenty-one defendants, three were acquitted, seven sentenced to
imprisonment, and eleven sentenced to be executed by hanging within
days of the judgment. Hess was saved from the hangman because “after
watching the crazy behavior of a man plainly unable to defend himself,
it would take an ice-cold judge to send him to the gallows.”146 There
was strong but not sufficient sentiment for holding at least two others
not guilty—Admiral Docnitz and the anti-Semitic publisher, Streicher;
the evidence in both cases was thin (Taylor thought “the carefree way in
which the Tribunal members sent him [Streicher] to the gallows, as if
they were stamping on a worm, is especially hard to condone”).147 It
took three votes to convict, and there were many hesitations and
compromises on the fate of several defendants. In the end, Taylor
thought the sentencing phase had been “mismanaged.”148
B.
The Hague
Trials at the ICTY in the majority of cases culminate in a finding
of guilty beyond a reasonable doubt which, ironically, can be found on a
two-to-one decision of the three-judge panel, followed immediately by
sentencing.149 The ICTY has minimal sentencing guides other than the
Charter’s ban on capital punishment. The judges are told in the Charter
and in the Rules to “take account” of sentences in the former
Yugoslavia where, except for limited circumstances in which the death
penalty can be imposed, the upper limit on incarceration is forty years.
Gravity of the crime and the presence of mitigating and aggravating
circumstances are frequently cited as criteria for sentencing, but there is
no sentencing tariff or range for particular crimes or categories of
145
146
147
148
149
TAYLOR, supra note 1, at 631.
Id. at 560.
Id. at 562.
Id. at 559-70.
See ICTY Statute, supra note 25, art. 23.
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crimes (war crimes, crimes against humanity, genocide). The Appeals
Chamber has ruled that there is no hierarchy among the types of crimes
in the court’s jurisdiction. Informally, ICTY judges do think about
saving the highest sentence—life imprisonment—for the worst
criminals; two of the most prominent candidates for that status have not
yet been apprehended (Karadzic and Mladic). A life sentence has been
imposed in only one case so far, although sentences in the range of
thirty to forty-five years are not uncommon.
Within the last two years, the ICTY has adopted rules establishing
a sentencing regime for guilty pleas; the prosecutor may make a
recommendation for leniency based on the defendants’ cooperation in
saving trial time and in providing evidence against other perpetrators.
Though not bound by such recommendations, some but not all trial
judges have given the defendants a benefit by way of reduced sentences
based on their plea bargain. Another new factor has entered the ICTY
equation. International NGOs that monitor the trials are generally very
critical of sentences short of life imprisonment. They have publicly
chastised judges for sentences in the six to ten year range imposed upon
abusive prison guards and sentences less than twenty-five years for
murderers. In general it is fair to say the ICTY sentences, except for
those imposed on the top-tier civilian and military leaders, have been on
the lighter side, certainly as compared to our own national sentences.
ICTY judgments are per curiam and for the most part unanimous,
though separate statements and even dissents are not unusual. Aides
play a strong role in the drafting, although a few judges draft substantial
parts of a judgment themselves. In the early years the judgments tended
to follow a template: bland statements of the applicable law up front,
followed by recitation of facts and then judgment with scant analysis in
between as to how the law was applied to the facts—ironically,
producing a result much like our jury verdicts. But over time the
bureaucratic style of the earlier ICTY judgments has been replaced by
more reader-accessible discussions of how the factual and legal findings
relate to the ultimate outcome of the case, reflecting the court’s
increasing adjustment to the bright rays of transparency, the maturation
of its own jurisprudence, and the increased familiarity of its judges to
both common law and civil law systems. ICTY opinions continue to be
on the long side, however, sometimes displaying the mark of a
committee product. The decisions themselves, unfortunately, are not
reproduced in any permanent hard-copy form like our federal reporter
system until years later; they are available in the short term only
unbound and online; probably few outside of international law scholars
and practitioners read them. Decisions—interim and final—at the
ICTY are issued in both English and French but only one is the
authoritative version and I am told there are often not insubstantial
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variations in the two versions.
The Rules of the ICC provide more detailed guidance than
Nuremberg or the ICTY Charter on both the criteria to be considered in
determining a sentence and the nature of mitigating or aggravating
circumstances. Special circumstances are required and defined for a life
sentence; otherwise the sentence may not exceed thirty years; fines,
forfeiture; and, in special cases, compensation for victims are authorized
and regulated.150
There was no judicial appeal from the Nuremberg sentences. In
order to meet international norms, the ICTY and later war crimes
tribunals have established an Appeals Chambers to which appeals from
convictions, acquittals, and sentences may be taken by both prosecution
and defense.151
CONCLUSION
Among the many “firsts” of Nuremberg was its demonstration of
how the appearance as well as the reality of fairness could be achieved
by an international criminal court established and run by the victors in
the immediate aftermath of an apocalyptic world war. The first
Nuremberg trial was not perfect but through a pragmatism rooted in
good will and a realization of the historic role they were playing, the
judges from disparate backgrounds and of widely differing
temperaments, with the help of the most able assistants and with the
exception of the Russians, avoided the worst pitfalls of vindictiveness
and bitter divisiveness and in general made reasonable rulings and set
up reasonable procedures for later international courts to consider and in
many cases emulate. In Shakespeare’s words, the Nuremberg judges
had “greatness thrust upon them” and they did not fumble.152 Today’s
U.N. and “hybrid” courts follow much of their lead, but concepts of
human rights and of international humanitarian law have developed in
the half century between Nuremberg and the ICTY—mostly but not
always to the better—so that the challenge to the new breed of
international judges is to combine these advances in international norms
with the quick-paced practical determinism of the Nuremberg jurists
that the trials must go on—fairly but efficiently.
150 See
I.C.C. R. PROC. EVID. 145 (2002), available at http://www.icccpi.int/library/about/officialjournal/Rules_of_Proc_and_Evid_070704-EN.pdf.
151 All but two defendants appealed to the Allied Central Council—consisting of the
commanders of the four Allied occupied zones—which under Article 29 of the Charter could
“reduce or alter the sentences.” The Council based its decisions mainly on political, not legal,
grounds and confirmed all sentences. TAYLOR, supra note 1, at 603-07.
152 WILLIAM SHAKESPEARE, TWELFTH NIGHT act 2, sc. 5.
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“Though small in the number of defendants, . . . [Nuremberg] has
remained the most striking and important trial of them all . . . a name
which conjures up the moral and legal issues raised by applying judicial
methods and decisions to challenged wartime acts.”153
153
TAYLOR, supra note 1, at 626.