The Nuremberg legacy and the International Criminal Court.

• Published date: 22 September 2013
• Author: Kaul, Hans-Peter
• Date: 22 September 2013

We are assembled today in honor of Whitney R. Harris, a great American, a great advocate of the rule of law and international justice. We are also assembled here today, and tomorrow, to reflect on the International Criminal Court (ICC) and its fight against impunity until the present day. It is quite a noteworthy coincidence that this year we celebrate both the 100th birthday of Whitney R. Harris (1) and the 10th birthday of the International Criminal Court (ICC). (2)

The "Symposium on the International Criminal Court at Ten" which takes place tomorrow is, in my view, the most important conference on the "ICC at Ten" being held in the U.S. this year--not in Washington or New York, not at Harvard or Yale Universities--but here in St. Louis, organized by the Whitney R. Harris World Law Institute and Professor Leila Sadat. In my opinion, the citizens of this beautiful city, the members of Washington University, have reasons to be proud of this. And as it was someone from this city who was the first to fly over the Atlantic, to good old Europe, let me add: This is really the "Spirit of St. Louis."

Now, a flashback to the summer of 1998, to Rome:

At the U.N. building nearby the Colosseum, delegates from all around the globe are having five decisive weeks of negotiations on the future International Criminal Court. The stakes are high, the negotiations often difficult, even heated. Each morning, though, when I sit at the bench of the German delegation, I observe the same scene: punctually, at 9:00 a.m., a white-haired, quite distinguished man, certainly in his 80s, enters the room and takes a seat reserved for non-governmental organization (NGO) observers. This person, then unknown to me, about six and a half feet tall, blue-grey eyes, with an appealing face, a face full of character, somehow exudes an aura of authority. When I look at him, day-by-day, more and more curious, I think to myself, quite instinctively, what a noble appearance. As the members of the U.S. delegation--I know practically all of David Scheffer's people--speak with him quite often, always with all signs of respect, I assume that this NGO delegate is probably American.

Then my guessing is over: Professor Whitney R. Harris, President of the Committee of former U.S. Nuremberg Prosecutors, has himself taken the initiative to discuss with me, the head of the German ICC delegation, the current situation in the negotiations.

I am deeply impressed--yes, fascinated. It becomes obvious that Mr. Harris, unlike some other delegates, is fully aware of the current situation, including certain differences of view among states present at the conference. My interlocutor sees the German delegation in a special role, with a special responsibility to ensure the success of the conference. (3) Time and again in our meetings--which soon are becoming a regular feature--he stresses two points in particular: firstly, the conference must create the treaty basis for a future international criminal court; secondly, its criminal law must include crimes against peace, or in modern language, the crime of aggression. (4) Time and again, he admonishes me; he emphasizes that Germany must insist on an effective and credible court, that the German delegation should not accept a foul compromise. In the meantime, he has become some kind of ally and informal adviser; the conversations with him are both inspiring and encouraging.

Then, on 17 July 1998, after a last dramatic tussle, comes the breakthrough--the climax.

After the decisive vote on the Rome Statute, (5) our founding treaty, there is some kind of explosion, an enormous outpouring of emotions of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless, "Herr Kaul, Herr Kaul, we've done it! We're getting an international criminal court!"

And then, in all this "Tohuwabohu," in all this chaos of clapping and screaming, something strange, something unexpected happens: I see Professor Harris standing up, and with a serious face, he begins to walk towards the German delegation, across the entire conference hall. While he is striding towards us, maybe forty yards, undisturbed by the cheering delegates, I realize that he is constantly looking at me. Even today, this scene is still in my head. I see his walk in some kind of slow motion; I ask myself why? What does he want?

A moment later, he shakes my hand and says--I do not recall his exact words--this is a great day for the entire world. It is a breakthrough, the fulfillment of many hopes. In a foreseeable future, we will have a world criminal court. He believes that the German delegation has played a decisive role--that without Germany, the crime of aggression would not have been included in the treaty. (6)

I admit, I am shaken, confused, and touched at the same time. That this prominent former U.S. Nuremberg prosecutor is acknowledging the work of my people and of myself is almost too much. Finally, Mr. Harris takes me by the shoulders. Then he says: "Now you must promise that from now on we will remain in close contact." Still shaken, I promise.

Then comes a further sentence, almost an order: "And from now on, you call me Whitney, understood?"

When he embraces me briefly to say goodbye, I feel, for the first time, the special heartiness and warmth of Whitney, which were so characteristic of him.

Well, this is the beginning of a lasting friendship with Whitney, a relationship for more than a decade, with countless exchanges and contacts--with meetings in Germany, in Berlin, in Nuremberg, in St. Louis and elsewhere. And it is so wonderful that the friendship with Whitney soon includes Anna Harris and Elisabeth, my wife, and also Leila Sadat.

THE CONTINUING SIGNIFICANCE OF THE NUREMBERG TRIALS

There is no doubt: Whitney was one of the foremost pioneers of the Nuremberg Trials--and I am convinced not only of their continuing historic significance, but also of their significance for the world of today and tomorrow. (7) Today, we realize, and it is obvious, that these trials were based on a breakthrough, on some kind of intellectual and legal quantum leap of enormous significance. Notwithstanding the involvement of the three other victorious powers, Nuremberg is in essence an American invention, a contribution of men like Justice Robert H. Jackson, Telford Taylor, Whitney Harris, Benjamin Ferencz and others. Their ideas and actions made a difference; they provided lasting international awareness for the necessity of the rule of law in international relations. All these innovative ideas, the contribution of the Nuremberg Trials and of the underlying principles, have had a decisive and on-going influence on international law. Thus, without Nuremberg, there would have been no ad hoc tribunals; without Nuremberg there would have been no International Criminal Court. There would be no recognition for the principle that is universally recognized today: nobody is above the law. There can be no impunity for grave crimes, which concern the international community as a whole, regardless of the rank or nationality of the perpetrators in question. (8) And, above all, Nuremberg achieved, for the first time, clarity about a fundamental principle: aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime. (9)

When truly historic events take place, historical developments, which may shape the future of humanity or at least affect entire nations, regularly many people, sometimes thousands or more, are personally involved.

Experience shows that in such situations you can essentially distinguish between two types of reactions, two types of people involved: most, the great majority, will, while the events are on-going, do their job as usual; however, when it is over, they will go on living as before, leaving this chapter behind them.

On the other hand, however, a few individuals involved will, while the events are still on-going, not only contribute to them to the best of their abilities, but they will already then think about the higher meaning, the implications of what is happening, think about possible consequences and conclusions for the future--and they will continue to analyze these historic events once they are over.

I have personally...