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"Justice and Accountability after the Holocaust"
Wednesday, 9 November 2011
6:30 p.m.  – 8:30 p.m.

Remarks by Cecile Aptel

Cecile Aptel is Co-Chair of the International Bar Association (IBA) War Crimes Committee, Professor at Fletcher School of Law and Diplomacy, Tufts University


Excellencies, Ladies and Gentlemen,

The International Bar Association (IBA) is honored to partner with the United Nations and its Department of Public Information’s Holocaust and the United Nations Outreach Programme to sponsor this roundtable discussion on ‘Justice and Accountability after the Holocaust’.

The aftermath of World War II and of the Holocaust was a period marked by both somberness and amazing hopes.  As Holocaust survivors and war victims were tending their wounds, the Organization of the United Nations was created in 1945, the International Military Tribunal of Nuremberg was established in 1945, shortly followed by the Tokyo Tribunal, in 1946.  The Universal Declaration of Human Rights was adopted in 1948, as was the Convention on the Prevention and Punishment of the Crime of Genocide. It is also during this period, in 1947, that the International Bar Association was founded, inspired by the vision of the United Nations, with the aim of supporting the establishment of law and administration of justice worldwide, representatives of 34 national bar associations gathered in New York on 17 February 1947 to create the IBA.

The IBA, which is today the world’s leading organization of international legal practitioners, bar associations and law societies, embodies the undertaking of the legal profession to be concerned not only with the application of the law, but also with its development – not only with the laws, but also with justice.

One of the key questions posed to our panel is: what should judges, lawyers and other legal practitioners do in a country where the legal and political systems, not only fail to safeguard the rights and dignity of individuals, to offer redress to those who have suffered great wrongs but also turn against some of its own citizens, as was the case in Germany under Nazi rule?

Should the judges and other legal practitioners implement and enforce grossly unjust – yet arguably binding - laws?  Should they follow orders that are ‘legal’ but also manifestly wrong, in that they violate civil liberties and persecute certain individuals?

Humanity has faced such conflicting imperatives since Abraham and Antigone, and there is no easy answer.  Yet, since Nuremberg, there are some directions as to how one should act when confronted with manifestly unlawful orders – and I would add manifestly wrong laws-: individuals, be they military personnel or the judiciary, have a duty not to blindly apply or follow these orders or so called laws.

This principle was asserted in Nuremberg, and is one of its greatest legacies.  It is now enshrined in international law and is one of the cornerstones of international criminal justice. The fact that individuals acted pursuant to the order of their Government or of a superior does not relieve them from responsibility under international law, provided a moral choice was in fact possible.

This recognition does not merely call on the individual sense of responsibility and morality, it also opens the space for holding accountable those who implement unlawful orders, or those who enforce abusive laws.  It is on this basis that, in 1948, Alstötter and fifteen other members of Hitler’s ministry of justice or courts were tried in Nuremberg, bringing to the fore the role and responsibility of judges in the Nazi regime.

Crucially, in Nuremberg, those who enforced the law were not the only ones held accountable: those who designed the laws and gave the orders were prosecuted too. The creation of the International Military Tribunal of Nuremberg, and the subsequent trials signaled that some crimes are just too serious and grave to be left unpunished, and that claiming that one followed orders to justify such crimes is not a valid defence.  This was ground breaking.

The Nuremberg Tribunal was not without its shortfalls, but its legacy is immense, and daunting.  It led the way for the creation by the UN of several tribunals, including the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.  The Rwanda Tribunal was for its part the first international jurisdiction to render a judgment on the crime of genocide, in 1998.  I was extremely lucky to be part of the small team which drafted this judgment: we clearly had a sense of achievement in defining genocide and its constitutive acts, notably rape.  1998 was a truly historical year for international criminal justice as it was also the year when the Rome Statute establishing the International Criminal Court was adopted. 

All these international criminal jurisdictions are based on similar principles.  These courts try individuals, usually high-ranking leaders, for international crimes: such as war crimes, crimes against humanity and genocide.

Whilst much can be said about these courts, notably the ICC, I only have time to make two short comments at this stage:

First, in relation to victims: while there have been great improvements over time to enable the participation of victims in international criminal proceedings, and the granting of compensation or reparation at the end of the process, much more remains to be done to ensure that victims are placed at the center of the process of international criminal justice, rather than on its margin.

Second, in relation to the future of international criminal jurisdictions and in particular of the ICC, a major challenge stems from the fact that accountability for genocide, crimes against humanity and war crimes remains the exception, not the rule, even with the advent of the International Criminal Court.  Occasional justice means limited justice, it also leads to criticisms that this justice is selective. We need to guarantee that accountability for international crimes is systematic, that the system of complementarity between domestic and international jurisdictions put in place through the statute of the International Criminal Court leaves no loopholes for impunity.

See http://www.ibanet.org/About_the_IBA/About_the_IBA.aspx
Principle IV, 1950 Principles of International Law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal.
The Justice Trial, United States of America v. Alstötter et al. ("The Justice Case") 3 T.W.C. 1 (1948), 6 L.R.T.W.C. 1 (1948), 14 Ann. Dig. 278 (1948).


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