“Punishing bad things is not such an easy task” : a conversation with Philippe Sands
First published on the Leuven Transitional Justice Blog.
On 7 September 2021, we had the pleasure of hosting an online conversation between members of the Leuven Institute for Criminology (LINC) and Philippe Sands to discuss the legacies of the Nuremberg Tribunal, how the research for his books The Ratline and East West Street has impacted his views on the Nuremberg trials, and the future of international criminal justice. In this final instalment of our special series on the Nuremberg Trials, we offer a summary of this discussion between Prof. Sands and LINC researchers Valerie Arnould, Calixto Avila, Lene Guercke, Ahmet Gumusbas, Stephan Parmentier, and James Rischbieth. The post was written by the LINC researchers and no part of the below text can therefore be directly attributed to Prof. Sands.
The celebration of the 75th anniversary of the issuance of verdicts by the International Military Tribunal at Nuremberg against high-raking officials of the Nazi regime offers an opportune time to reflect on the enduring legal, sociological and political legacies of the trials. As Sands points out: “In relation to the modern system of international criminal justice, such as it is, all roads lead to Nuremberg. But for the Nuremberg charter, statute, proceedings, judgements, we would not have what we call today a modern system of international criminal justice.” Not all of Nuremberg’s legacies though are unproblematic and it is necessary to remain humble about what the law can achieve in terms of dealing with the past. Nonetheless, the revolutionary project that is international criminal justice is one that remains worth working towards.
Justice as a political instrument
One of the more troublesome legacies of the Nuremberg Tribunal is that it has made the idea of lopsided justice more acceptable than it should be. The French writer Balzac said that the law is like a spider’s web: it catches the little flies, but the big flies can find their way through and not be caught. This observation is certainly applicable to our modern system of international criminal justice, when we see that the International Criminal Court (ICC) has mostly indicted individuals from Africa while Africans do not have a monopoly on international criminality, any more than Nazis had a monopoly on international criminality. It begs the question whether this state of affairs is seen as relatively acceptable today because it was acceptable 75 years ago. The Nuremberg model, which has been qualified as a form of victor’s justice, set in train an approach which, not in the rules but nevertheless in informal terms, allowed that lopsided nature to be taken forward across 75 years.
Nuremberg also enshrined the idea of international criminal justice as a political instrumentality. The idea of using a newly created system of criminal justice to further the aims of the war was already embedded from late 1941 onwards. And this entailed the idea that criminal justice only applies to some and not others. Nuremberg was part of the instrumentalisation of the law to send out a signal that ‘we’ are different from ‘them’ – even though, in reality, ‘we’ are not so different from ‘them’, ‘we’ just do things in more subtle ways. This sense that international criminal justice is fine so long as it is used for others, persists today. The moment it is used for us, it becomes problematic.
We have seen this in the reaction of the United States Administration to the decision of the ICC Appeals Chamber to allow an investigation into what happened in Afghanistan and in particular at Bagram. And we see it also with the kinds of political pressure that the British government is bringing to bear in relation to the Iraq investigation or its rejection of the International Court of Justice’s advisory opinion on the Chagos Archipelago. And, of course, there is a certain irony in the fact that the two countries that did more probably than any other to create the modern system of international criminal justice – by providing the leading prosecutors and negotiating a statute in London – have in effect turned their backs on the application of a system of international criminal justice to themselves.
The issue of the law as a political instrument must be at the heart of any conversation about the legacy of Nuremberg. One can be positive about the legacy of Nuremberg, without being starry-eyed about it. To put it simply: it is positive that Nuremberg, imperfect as it was, happened rather than that it did not happen but there is a need to be critical of the Nuremberg legacy.
The boundaries of criminal liability
Another important legacy of Nuremberg is that its focus on individual criminal responsibility has made it challenging for international criminal justice to broaden its scope to also address corporate liability or to deal with environmental crimes. For Sands, who was a member of the Independent Expert Panel for the Legal Definition of Ecocide, a focus on individuals continues to be relevant even for dealing with corporate involvement in international crimes because at the end of the day, corporations are run by individuals. It was said at Nuremberg by Hersch Lauterpacht that: ‘states do not commit crimes, human beings do’. That answer applies with equal force to the corporate sector: corporations do not commit crimes, the individuals who run corporations do. Ultimately, what matters most is a form of international criminal justice that concentrates the mind of the actors who may be on the cusp of committing an international crime. And at the end of the day, all the corporation is going to do is pay a fine. Nothing concentrates the mind more than a spell behind bars and you cannot put a country, a corporation, an NGO or an association behind bars.
The binary individuals/corporations may therefore not be as illuminating as is often thought because, ultimately, if a corporation is engaged in an activity which gives rise to international criminality, it should be possible to bring individuals who are responsible for decision-making within the jurisdiction of the ICC or other international or national courts. We can be a lot more creative about the way we look at the nexus between an individual and international criminal justice. For example, why not extend the scope of international criminal justice to any individual who is employed by a corporation that has the nationality of a state that is a party to the ICC? Why does it have to be a national of the country that is a party to the ICC? There are also a lot of different ways of exploring the question of how we use the force of the international criminal legal order to bring corporations into compliance where they are crossing lines. Corporate criminality is one way, but it is not the only way.
Nuremberg itself has, of course, also highlighted the challenges in applying the idea of collective criminal liability. There has been a lot of debate about collective criminality in the sense that being a member of the SS made you a criminal within the jurisdiction of the Nuremberg Tribunal. It is problematic in modern thinking, that simply by being a national of a country or by being a member of an organisation, elements of which are engaged in criminal activity, an individual can be criminalised.
The law and changing values
All of this does, of course, not mean that we should be entirely closed off to any discussion about the value of developing new legal concepts. After all, there have been no new international crimes since 1945 – aggression has a new name but it was there in the Nuremberg Charters and ‘crimes against peace’ – and values move on. Back in 1945, no one was thinking about the environment, perfectly reasonably perhaps, while today we are and this confronts us with a legal gap. It cannot just be about slotting damage to the environment in as a new crime against humanity because the protection of the environment should be an end in itself and not a means to protecting the well-being of humans. So, we should be open to imagining new international crimes to fill gaps left by a list that reflects a set of values at a particular moment in time but not the values or the needs of today.
The law is an inherently conservative creature though and it is important to keep in mind the possible larger scale implications of legal innovations. Regarding ecocide, there are considerable challenges in starting a process of amendment to the ICC Statute to get it on the Statute in the foreseeable future; the idea of adding on top of it a whole debate on corporate criminality is not attractive. An incremental approach seems more advised: let’s get ecocide, or other crimes, onto the agenda and then let’s work out how we can enhance the ways of effectively applying and enforcing those international crimes.
And then there is the related issue that once you open the door to corporate criminality, what do you do about state criminality? For instance, what would be the implications of labelling an entire country as ‘genocidaire’ – rather than doing, for instance, as the International Court of Justice did in 2007 when it ruled that Serbia was ‘only’ responsible for failing to prevent others from perpetrating the crime of genocide? Because once you have put such a label on a whole country, that label is forever. And is that a label you want to put on some countries but not others? This raises complex, temporal issues about why countries that happen to do terrible things today rather than 200 years ago should have a label put on them. Other countries can arguable be considered to have been genocidaire but since their genocides took place centuries ago in relation to, for instance, slavery, they have managed to escape that label.
As another illustration of the need to reflect on the implications of legal innovations: intentioned acts like Lauterpacht’s putting crimes against humanity into the Nuremberg Charter and Lemkin’s invention of the concept of genocide have had unintended consequences because our value systems have changed. Two men, Lauterpacht on an afternoon in Cambridge in July 1945 and Lemkin sitting in his office at Duke University, came up with these ideas; there was no proper legislative process for taking them forward, no proper informed reflective debate about what the invention of genocide would do. And the consequence is that we are stuck for the foreseeable future with a definition of genocide which is deeply problematic, as it provides that killing people because of their religion is bad as a group but killing them as a group, for instance, because of their sexual orientation is not. It reflects a set of values that were set with all the best of intentions in 1945 but of course values change, and the law tends to follow rather than lead. One lesson therefore to draw from Nuremberg is that actions taken for the best of reasons but in too great a haste can have lasting negative consequences. Lauterpacht said of the genocide concept: ‘it will replace the tyranny of the state with the tyranny of the group’ — and he has been proven right to a large extent. On the other hand, Lemkin was equally right; people get killed not because of what they have done individually but because they happen to be the member of a group hated from time to time. A lesson of Nuremberg is therefore an increased awareness that punishing bad things is not such an easy task.
Domestic legacies of Nuremberg
When we talk about the legacy of Nuremberg, the focus is often on the international level, however it is also important to consider its domestic impacts, including in countries and regions that were not directly concerned by the Nuremberg Trials. For instance, the 1998 arrest of Augusto Pinochet in London on charges of crimes against humanity and genocide would not have been possible but for Nuremberg. Similarly, a South African jurist described, when growing up in the 1970s in South Africa as a student, how important Nuremberg was for her in identifying the tools to allow them to make arguments that discrimination was a crime under international law and that apartheid was wrong. Even if there haven’t been any international criminal trials against South American or South African officials, that does not mean that Nuremberg has left no legacy. Its impact is demonstrated by the fact that the legal ideas and concepts it developed have been taken up at the domestic level by activists and courts across different regions. It is no coincidence that the first ICC prosecutor was an individual who prosecuted generals and others for international crimes committed in Argentina in the 1970s-80s.
To take another more recent example: which is the country in the world that is doing more to prosecute individuals associated with ISIS for the crime of genocide in relation to Yazidi populations in Syria and Iraq? It is Germany. There are no international cases but there are legal proceedings being brought by an extremely courageous federal prosecutor and principles federal prosecutor, whose is likely driven in part by the legacy of his parents’ and grandparents’ activities or inactivity at an earlier time in history. Hybrid courts have also become an important component in the armory of responses to gross horror and criminality. They have a potentially useful role to play in building a bridge between the national and the international level, and in ensuring that judicial proceedings have a lasting impact in the countries where the crimes were committed.
Looking beyond the legal ghetto
Equally, to assess the legacy of Nuremberg it is important to look beyond the narrow boundaries of legal formalism and to look at other ways in which the ideas and values represented by Nuremberg have trickled down. Literature, for example, also helps us to see how public consciousness has been shaped. There are many great Chilean novels that have been written about the Pinochet era and his arrest, and those novels have legs today only because of the ideas that were given reign in the Nuremberg courtroom. It is fascinating to see these novels talk about crimes against humanity, genocide and crimes perpetrated against the forcibly disappeared – this is a rich form of public consciousness. When looking at the legacy of Nuremberg, it is important to not only look at the legal realm but also at justice in the realm of political processes, literature, and cinematographic and other artistic productions as they have a tremendous impact on the way we think about things. We can ask ourselves: what changed the world – was it a song or was it a court? And, more likely than not, it will be a song. We lawyers must be humble about our capacity to change human behaviour. We have a role, but we are but one of the instrumentalities amongst many.
Sand’s experience with writing his most recent book The Ratline has further underscored for him the limits of legalism. The subjects of the book, the wife and son of SS Brigadeführer Otto Freiherr von Wächter were able, in their minds, to continue believing in Otto’s innocence and good character because even though he was indicted for mass murder he was never caught and tried. International criminal justice cannot catch and try everyone, nor can national criminal justice. And this leaves space for countries, communities and families to make their own interpretations of guilt and innocence and to refuse to come to terms with what has happened. The case of the Wächter family shows us the limits of the law and requires us to place the formal process of the law within a broader set of processes. How does a community come to terms with the wrongs of its past? How does a family come to terms with the wrongs of one of its forebearers? It is important to come out of the legal ghetto and speak, contribute, participate as part of a broader set of communities on dealing with these issues. We lawyers tend to have been too narrowly focused and talk amongst ourselves far too much.
International criminal justice as a revolutionary project
A final point is the importance of incrementalism in how we approach and assess the international criminal justice project. We cannot assess the legacy of Nuremberg without situating it in its temporal, political and institutional context. In a way, there are similarities between the development of international criminal justice and domestic criminal justice. In English law, centuries had to pass before the Crown could be subject to legal proceedings in the regular courts. Sands recalls that when he was a young international lawyer and teaching in Cambridge, a colleague, who was professor of English legal history, would often ask him over lunch what he was working on. The professor’s response to Sands’ topics of interest would often be to say ‘ah yes, we had a similar problem in English law in the middle of the 15th century and it took 287 years to sort it out’. So, in a way we can see Nuremberg as being set in 1472 and thus situated at the start of a multi-century project. And the time will maybe come in 2523 when, whatever exists then, whether they be called countries or other things, may be subject to the full force of the international legal order.
We cannot engage in a revolutionary moment, as happened in 1945, and expect that suddenly the powers of the sovereign will be limited and that the rights of the individual who serves the sovereign will be exempt from criminal processes in an unlimited fashion. Transformation does not happen overnight; it isn’t even realistic to expect the situation to transform within 75 years. We find ourselves right at the beginning of a very long process and so it is within such a long-time frame that we need to understand the legacy of Nuremberg. We must have limited expectations because we are engaged in a revolutionary activity, which has enormous consequences for the most powerful players. And they are not going to take those consequences lying down; it will take time for those consequences to work their way through. Let’s therefore have limited expectations and deal with the challenges, obstacles and limitations of the international criminal justice project incrementally.
On a more positive note, it was very sobering to see Aung San Suu Kyi before the International Court of Justice in December 2019 over alleged crimes of genocide committed in Myanmar against the Rohingya. That would not have happened but for the precedent set by Nuremberg – it is as simple as that. But, of course, the crucial question that one must ask is: did those developments stop the horrors from happening? And the answer is: no, they didn’t. But they did force a leader of a country responsible for those alleged horrors to have to appear before an international court in The Hague, and that in itself is pretty extraordinary.
Another illustration of this incremental development of international criminal justice is the place of victims. At the time of the negotiation of the Rome Statute, many people, especially those educated in the UK legal regime which took little account of victims at the time, held the view that the provisions on victim participation that were on the negotiating table were not very useful in the ICC context. Some countries though pushed hard for this, including, somewhat ironically, Austria – and in hindsight they were, of course, absolutely right. This is a sea-change in thinking from Nuremberg, where survivor and victim testimonies were not dealt with properly. There is the instance of a man called Samuel Rajzman who was one of the very few people to survive Treblinka and who gave testimony; what that man went through is beyond imagination and yet there he was, wheeled out, subjected to examination and cross-examination. Today, there is widespread recognition that the voice of victims is indispensable and necessary, something that was not adequately considered in the Nuremberg process. To an extent this is understandable since it was the first ever such process and there was consequently a lack of understanding on how to do this. Luckily, there has been a marked improvement in giving victims a place in international criminal justice processes.
Philippe Sands is Professor of the Public Understanding of Law and Director of the Centre on International Courts and Tribunals at University College London. He is also a lawyer at Matrix Chambers. Sands appears as counsel and advocate for numerous courts and tribunals, including the International Court of Justice, the European Court of Human Rights, and the International Tribunal for the Law of the Sea. He was involved in some of the most important international cases, from Pinochet to Guantánamo. Sands is also frequently quoted as an expert in news media including BBC, CNN and The Guardian. He has authored several books, included the award-winning East West Street. In November 2019, he was awarded an honorary doctorate by the KU Leuven.