The Complex Architecture of International Justice

• Citation: Vol. 10 No. 1
• Publication year: 2006

Gonzaga Journal of International Law

Gonzaga University 721 N. Cincinnati St Spokane, WA 99202 Phone 800 986 9585

Cite as: Naomi Roht-Arriaza, The Complex Architecture Of International Justice, 10 Gonz. J. Int'l L. (2006), available at http://www.gonzagajil.org/.

The Complex Architecture of International Justice

Naomi Roht-Arriaza*

Good morning. The International Military Tribunal at Nuremberg established some bedrock principles of international law: individual accountability for crimes against peace, crimes against humanity, including what we now call genocide, and war crimes. Nuremberg also established that there was no immunity from individual prosecution based on the official position of the defendant, whether it be as head of state or some other. It also established the idea that international crimes are crimes whether or not they're criminalized in domestic law. It established the idea that basic due process needs to be respected, even in dealing with the worst butchers. It established definitions of crimes against humanity that still largely embody the current definition. It established the potential responsibility of private actors, like corporations, that aid and abet genocide or crimes against humanity and much more. I'm not going to talk about any of that.

What I want to talk about are two aspects of the Nuremberg legacy. First, something that William Aceves already mentioned, the trials presupposed that different defendants would be dealt with by different courts and different levels of jurisdiction, and that a single jurisdiction was not adequate to deal with international crimes. It was neither necessary nor possible, and so we had the International Military Tribunal (IMT), which tried only 22 defendants, considered to be "the leaders and organizers," people whose crimes were not limited to any one country. As Justice Jackson put it, "these defendants were men of a situation and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders." This is an idea that has been carried forward from Nuremberg and one that I want to talk about both the advantages and the disadvantages of.

We also, as William mentioned, had trials carried out under Allied Control Council 10 of the "lesser" war criminals. These were carried out in national courts under international law. There were some 1,500 defendants in German courts under Allied control, mostly the U.S. and the U.K. There were also purely national trials of Nazi war criminals in a number of occupied countries. Those trials continued for several decades. You'll recall the Barbie trial in France, Touvier, and a number of other trials that were also carried out in a number of other European states.

So from Nuremberg, we get the idea that different types and levels of courts could act in complementary ways to enforce international law, and that leaders and organizers of a policy of war...