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Lessons from Nuremberg -Global Policy Forum - International Justice Lessons from Nuremberg
By Ian Williams
Japan Today
January 19, 2003These are trying times. The rest of the world is trying to try war criminals — while the Bush White House is trying to cover up some war crimes and try others. It has been a busy month for international lawyers.
In Britain, they have discovered that — since the U.S. and Iraq are united in their refusal to ratify the treaty establishing the International Criminal Court — British troops could be prosecuted for any war crimes they may commit in the event of an attack on Iraq, but not their American allies or their Iraqi enemies.
In Belgium on the other hand, the government is filling the gap in its laws that stopped the proceedings against Ariel Sharon for the Sabra and Shatila massacres. The courts had ruled that the accused had to be in Belgium. Brussels is now changing the rules specifically with the Israeli Prime Minister in mind, so that if he visited not only Belgium, but any country with which the Belgians had an extradition treaty, which is most of Europe, he could end up in the dock.
It is of course, not a moment too soon, since UPI's intelligence correspondent, Richard Sale, reported last week that Israel, not content with assassinating Palestinian leaders in the Territories whenever it looked like a ceasefire was holding, was resuming a policy of murdering people in the U.S. and other countries.
He quoted a former Israeli government official who said that diplomatic constraints have prevented the Mossad from carrying out "preventive operations" (targeted killings) on the soil of friendly countries until now," but that now Sharon is "reversing that policy, even if it risks complications to Israel's bilateral relations."
So in a way it is fitting that Belgian law change will put Sharon along with Kissinger and Pinochet in the elite group of those who have to take their lawyers with them to their travel agents when they book a trip.
In the U.S. of course, justice is simpler. The authorities know that Muslims are guilty and the purpose of law enforcement is simply to find out just what it is that they are guilty of. So Pakistani student Khurrum Ali, who has a valid student visa and is enrolled at New York's Hunter College was arrested by the INS because another college alleged that he owed them $2,000 in outstanding college loans.
For most people, the American revolution stopped the old English custom of imprisoning debtors, but the new Ashcroft era continues its innovative ways with the Constitution. Attorney General John Ashcroft, the fundamentalist who had a statue of Justice covered because of a naked breast, may not have realized that Justice is not really blind. His day may come soon. Afghanistan is on the verge of ratifying the ICC treaty. Which could be interesting, since it means there may a case on behalf of Afghan nationals at present in Guantanamo, where Ashcroft has ruled that they have no legal rights under international or domestic law.
In the Nuremberg Trials, German General Alfred Jodl was charged with violation of the Geneva Conventions for shackling Canadian prisoners of war taken in the Dieppe Raid — and refusing to treat captured British commandos as POWs. From the dock he explained, "the Fuhrer had received very bad reports. We had captured all the orders of the Canadian brigade, which had landed at Dieppe. These orders said that, wherever possible, German prisoners were to have their hands shackled. Some time later, a commando troop made an attack on the island of Sark. Again we received official reports that German prisoners had been shackled." Note that this was on the beachhead in the heat of battle, not 12,000 miles in the heat of a tropical prison camp.
In retaliation, Hitler ordered that the thousands of Canadian prisoners taken at Dieppe were to be shackled, and issued his Commando Order: that commandos were not to be treated as prisoners of war, but were to be summarily shot, unless some were kept for interrogation — after which they were to be shot. Ironically Jodl testified that he, the German High Command and Foreign Ministry both disagreed with Hitler's orders — and by extension with the Bush administration.
In his evidence, German Vice Admiral Leopold Buerkner reinforced the disquiet of his high command. He told the Nuremberg judges that the German High Command secured a legal opinion "to the effect that even if the British had violated the Geneva Convention first by shackling German prisoners of war, as had been reported, for the Germans to institute reprisals was contrary to that Convention. I personally did all in my power to have this order withdrawn, as did Admiral Canaris, but we were unsuccessful."
The Nuremberg verdict said "Jodl testified he was strongly opposed on moral and legal grounds, but could not refuse to pass it on. He insists he tried to mitigate its harshness in practice by not informing Hitler when it was not carried out." Nonetheless they concluded, "Participation in such crimes as these has never been required of any soldier and he cannot now shield himself behind a mythical requirement of soldierly obedience at all costs as his excuse for commission of these crimes." Jodl was hanged in 1946.
Ashcroft's military tribunals have yet to execute any of their prisoners in Afghanistan - and luckily for him the ICC did not take its cue from Texas and has no power to order executions. But one cannot help hoping that he is worried about more than Justice's naked breast. Let us hope that these are indeed trying times.
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