Nuremberg's legacy lives on in a world determined to prosecute the worst of crimes

Ellen J. Kennedy
Ellen J. Kennedy: The International Criminal Court replaces what had been a scatter-shot approach to justice.
Photo Courtesy of Ellen J. Kennedy

Ellen J. Kennedy is executive director of World Without Genocide at William Mitchell College of Law.

Last September, in The Hague, Netherlands, 92-year-old Ben Ferencz spoke impassioned words in the prosecution's closing arguments against Thomas Lubanga, who was charged with abducting and using hundreds of young children as soldiers in the Congo.

More than half a century earlier, Ferencz had liberated the Nazi death camps of Buchenwald, Mauthausen and Dachau as a soldier in the U.S. Army. He then became chief prosecutor for the United States in the Einsatzgruppen Case, which the Associated Press called "the biggest murder trial in history." Twenty-two Nazi defendants were charged with murdering over a million people. It was Ferencz's first case.

All of the defendants were convicted. Thirteen were sentenced to death. This trial, held in Nuremberg, Germany, in 1945, was one of 13 trials organized by the four major Allied forces (the United States, France, England and the Soviet Union) to prosecute the worst perpetrators of the Holocaust.

This was the first time in the history of the world that nations came together to adjudicate crimes that occurred not on their own soils but elsewhere, and crimes perpetrated not by their own citizens but by others.

This was a seismic change in efforts to create global justice and global jurisprudence. Nothing like it was seen again until after the Cold War.

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In 1993, the United Nations established an international tribunal to prosecute perpetrators of the crimes occurring in the former Yugoslavia. This tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), was also breathtakingly precedent-setting on several counts. First, it was established by the United Nations, not by a small group of victorious countries. Second, the tribunal began while violence was still occurring, so the goal was not only to track down and remove those who were organizing the mass atrocities, but also to act as a deterrent to others.

A year later, 800,000 people were slaughtered in a genocide in Rwanda. Again, the United Nations established an international court, the International Criminal Tribunal for Rwanda (ICTR), to prosecute the worst of those responsible for organizing, inciting and carrying out the violence. At ICTR, the first person ever to be charged with the crime of genocide was found guilty, and rape was officially labeled a crime of genocide.

These two United Nations tribunals, and others like them, are ad hoc courts, designed solely to adjudicate perpetrators in specific conflicts — former Yugoslavia, Rwanda, Sierra Leone, Kosovo. When the judges and lawyers in these courts complete their tasks, these tribunals will disband.

This was a scatter-shot approach to justice, however, depending on the United Nations Security Council members' approval to create and fund these tribunals, a process often mired in political complexity and expediency. A permanent court was needed to prosecute genocide, war crimes and crimes against humanity on an ongoing basis.

In 2002 that permanent court came into being, the International Criminal Court. It is at that court, headquartered in The Hague, where Lubanga was on trial for rape, murder and the heinous crime of using children, often as young as 7 or 8, as soldiers. It was at that trial, more than 60 years after Ben Ferencz prosecuted Nazis, that he urged the judges to find Lubanga guilty.

And just as in Ferencz's first case, when all the defendants were found guilty, so, too, was Lubanga. It was the first verdict of this new global court, a court Ferencz had devoted his life to create.

The legacy of Nuremberg has reached across the ocean and across the decades to create a permanent court of justice. Ben Ferencz says that this court reflects "the awakened conscience of the world."

Today, April 19, we honor Holocaust Remembrance Day and think about the 6 million Jews, and millions of others, who perished under the Nazi regime. It is a good day to think, also, about Ben Ferencz and his journey — from that heroic young man's successful prosecution of those responsible for killing more than a million Jews, to his words at the world's first permanent court to prosecute the perpetrators of humanity's worst crimes.

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World Without Genocide is hosting three events to commemorate the legacy of Nuremberg and Holocaust Remembrance Day: at 7 p.m. today, the film "Nuremberg: Its Lesson for Today"; at 7 p.m. Friday, April 20, the play "If the Whole Body Dies: Raphael Lemkin and the Treaty against Genocide"; and at 1 p.m. Saturday, a conference titled "Nuremberg: Its Legacy for Today - from the Holocaust to Rwanda." For details, visit worldwithoutgenocide.org.