Nuremberg Revisited: The Tadic Case

III. The Yugoslav Tribunal's Legacy

It is appropriate that the 50th anniversary of the Nuremberg Trials has produced a new international juridical body that is attempting to reinvigorate their legacy. It has been argued that the legacies of Nuremberg were compromised, among other reasons, because Nuremberg did not follow through on its original vision: to vindicate and enforce the rights of human beings no matter when these are violated or by whom. David Luban, for instance, has argued that by limiting the scope of Nuremberg to crimes committed in the course of aggressive war by those defeated in that war, and not, for example, prosecuting crimes committed in Germany before the onset of war or by Allied war criminals, the creators of Nuremberg undermined their intended legacy.¹⁰¹

Luban sees in this a failure to resolve the tension between statism and human rights. By vindicating only those human rights that result from a violation of a state sovereignty (because only when committed in the course of aggressive war) and only if committed by the agents of some defeated states, Nuremberg sent mixed signals about the primacy of human rights over claims of violations of state sovereignty. To help remedy this, Luban advocates that crimes against humanity be permitted to `flower . . . into the politics of human rights' by permitting such charges whether or not committed in the course of interstate conflict; the emphasis would be on `wars that violate human rights' and not on `wars that violate state sovereignty.'¹⁰²

For many, the grandest legacy of the Tadic trial might be the Tribunal's jurisdictional holding: its finding that charges can be brought against Tadic even for acts committed in the course of an `internal' conflict.¹⁰³ These Tribunal findings go a considerable way towards Luban's position. Whether or not one believes the Tribunal when it asserts that it is only applying `established' law, its holdings with respect to the scope of humanitarian law, not discussed here, repeatedly emphasize that a `State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach.'¹⁰⁴ The Yugoslav prosecutions may also reflect progress from the standpoint of Nuremberg in another sense: as a product of Council action, they are less susceptible to criticism that they constitute victors' justice.¹⁰⁵

But, as the foregoing criticisms of the Tadic opinions suggest, while the judges resolved some of the statism/human rights dilemmas faced by the Nuremberg judges, they faced new statism/human rights challenges because their Tribunal was created by the Security Council. To justify prosecutions that are more consistent with a human rights paradigm than were those at Nuremberg, the judges found themselves privileging Council statism. The judges could not adequately bridge this new statism/human rights chasm because international law has, as yet, no adequate tools to do so.

Answering Tadic's defenses more fully would have would have required articulating a model of legitimation from among several possibilities: `democratic legitimacy' generated by perceptions of broad participation, `formal legitimacy' produced by democratic institutions adhering to established rules, or `social legitimacy' connoting commitment to particular values.¹⁰⁶ Ideally, it would have required adopting some model of judicial review and of UN constitutional interpretation. These choices include: (1) a consent-based model, grounded in the proposition that whatever judges do is subject to correction via Charter amendment or, alternatively, needs to find support in original intent; (2) a participation-based model, premised on protecting the participation rights of UN members; (3) a minority protection model, premised on protecting the substantive interests of particular states or a minority group of states whenever the majoritarian or hegemonic processes of the Council threaten them; or (4) a teleological model, grounded in achieving, for example, international peace and security or, alternatively, human rights at all costs.¹⁰⁷ Hints of these approaches appear throughout the Tadic opinions, but no one model is uniformly adopted by any one appellate judge, much less by either chamber. This is hardly remarkable since the ICJ, despite its prominent role in interpreting the Charter, has failed to articulate which of these, if any, are appropriate.

Consider as a more concrete example of the inadequacies of international law that Tadic's judges faced the problem of the effect of a finding of illegality. The appellate majority assume that they are free to determine that establishment of the Tribunal or that any aspect of its jurisdiction is ultra vires. Since the judges do not find any illegality, however, they are not forced to confront the problem that there are no clear international legal rules as to the effects (if any) of a judicial finding of illegality.¹⁰⁸ Judge Sidhwa, in his separate opinion, readily acknowledges the difficulty and speculates as to possible solutions. He indicates that were the Tribunal to find such illegality, it might make `a simple declaration to that effect and leave it to the Security Council . . . to correct the situation, or having made such a declaration, continue as an ad-hoc tribunal til the said body or Organisation comes to its aid.'¹⁰⁹ While Judge Sidhwa is probably correct that such possibilities are theoretically open, he does not address the possible consequences on the Tribunal's independence or on the rights of defendants. A Tribunal that indicates, as part of its `incidental, inherent' jurisdiction, that some aspect of Council action is illegal and goes on to correct that illegality -- as through a modification of the Tribunal's Statute (originally approved by the Council) - would boldly give priority to human rights over Council statism. On the other hand, a deferential Tribunal that permits a criminal prosecution subject to a fundamental legal flaw to continue, subject to possible correction by a political body like the Council, would appear to violate the human rights ethos that created it in the first place.

Thanks in part to such gaps in international law, the Tribunal's judges are cast adrift, buffeted by the pleas of Judge Abi-Saab for teleological interpretation and the positivist inclinations of Judge Li, by resort to Council determinations to support propositions of substantive law to no less numerous affirmations that the Council is a `political' body incapable of `legislative' action, and by denials of the power of `judicial review' amidst abundant de facto demonstrations of review by any other name. Given such shifting cross-currents within its judges' opinions, reflective of unresolved tensions among international lawyers generally, supporters of the Tribunal, and of ad hoc war crimes tribunals, will need to complement the Tribunal's opinions with other arguments.

That is no surprise. The equivocal judgments of the proceedings at Nuremberg and Tokyo have been only partly inspired by the judicial pronouncements issued during those trials. Supporters and detractors of Nuremberg have long debated philosophical and other issues that cannot, realistically, be expected to be part of any judicial record.

Supporters of today's ad hoc war crimes tribunals might argue that the Council's choice to enforce only some war crimes in some parts of the world is no more damaging to the rule of law than that only some drug traffickers are caught and prosecuted by national authorities. Critics might contend that Tadic is no less a victim of illegitimate or selective enforcement than the Nuremberg defendants on at least three grounds: (1) because the definition of cognizable war crimes under international law still remains statist, excluding (at least in the views of many), for example, human rights violations that the permanent members of the Security Council continue to accept such as aerial bombardment or the threat or use of nuclear weapons;¹¹⁰ (2) because unlike drug traffickers who face a uniform threat of national prosecution and are appropriately on notice, war criminals (at least outside of the former Yugoslavia and Rwanda) face an unequal prospect of international prosecution; or (3) because the enormity of the crimes likely to be left unaddressed given the unlikely prospects of effective enforcement within the confines of the former Yugoslavia `mocks justice.'¹¹¹ The `selective' enforcement charge is made more likely if, as some contend, the UN is either purposely or ineptly denying the Tribunal's prosecution office the financial support required for it to do a credible job.¹¹²

Supporters and detractors are also likely to differ on whether the Yugoslav Tribunal, or any ad hoc body created by the Council, is the appropriate body to judge its own legality. Supporters might rely, as the Tadic judges did, on the Tribunal's juridical nature to demonstrate that it is an `objective' forum capable of credibly addressing such issues. Critics might suggest that whatever the judges' capabilities with respect to determining guilt or innocence, these do not apply to issues that strike at the very heart of the enterprise of which the judges are a prominent part. They might find it incredible that judges selected with one purpose in mind - to help convict alleged war criminals - are ever likely to vote themselves out of job through an `objective' finding that the Tribunal is ultra vires. Critics will find support in those portions of the Tadic opinions that suggest a politicized show trial coming to foregone conclusions - as when the judges turn to `necessity' as an ultimate justification to dismiss Tadic's arguments.¹¹³

Yet necessity was ultimately the justification offered by the Secretary-General. The Secretary-General was much more direct and frank than any of the judges. He simply said that the normal treaty route to establishing such a tribunal would be too time-consuming and possibly ineffective at achieving relevant participation.¹¹⁴ He rejected a constitutive role for the General Assembly on the grounds of the need for `urgency.'¹¹⁵ He saw establishment by the Council as the only viable route to expeditious and effective prosecutions. Judges, being judges, must be more circumspect since they are restricted to traditional `legal' arguments and constrained to `legal' sources. This is both their strength (from the perspective of potential legal legitimacy) and their weakness - as when the law fails them.

Fortunately for those who support prosecutions of these horrible crimes, the fulfillment of particularistic legal niceties may not be the sole test of legitimacy. Just as compliance with law does not ensure justice, justice may not always comply strictly with law. Like Nuremberg, the Yugoslav Tribunal might, in the end, be vindicated on the basis of broader inquiries, including those suggested by the Secretary-General. Ultimately, it is likely to be judged precisely on those criteria that the judges, appropriately, avoided: its contribution to deterrence, reconciliation, peace.

101 Luban, supra note 1, at 335-62.

102 Luban, supra note 1, at 344 and n. 21.

103 Appellate Chamber, paras. 65-142. The Tribunal specifically finds that the nexus required at Nuremberg between crimes against peace and crimes against humanity is no longer required by customary international law. Ibid. paras. 138-142.

104 See, e.g., Appellate Chamber, para. 97. Of course, to the extent the Tribunal is applying new law, the prospect of ex post facto imposition of criminal liability looms. Cf. Luban, supra note 1, at 349-357 (discussing the ex post facto problem as applied to Nuremberg); Hans Kelsen, `Will the Judgement in the Nuremberg Trial Constitute a Precedent in International Law?', 1 Int'l L. Q. (1947) 153, at 164-165 (same).

105 Compare Luban, supra note 1, at 360-362 (criticizing Nuremberg for failure to prosecute Allied war criminals) with Judge Sidhwa, Separate Opinion, para. 72 (arguing that while Nuremberg can be termed victors' justice, no such grievance applies to the Yugoslav Tribunal). Human rights advocates might also see progress in the Council's refusal to accept the death penalty, trials in absentia, or liability for membership in a `criminal' organization.

106 See generally, Joseph Weiler, `The Transformation of Europe,' 100 Yale L. J. (1991) 2403, at 2468-69.

107 See Alvarez, supra note 36, at 19. Cf. Judge Sidhwa, Separate Opinion, para. 17 (outlining different national approaches to `judicial review').

108 See, e.g., Elihi Lauterpacht, `The Legal Effect of Illegal Acts of International Organisations,' in Cambridge Essays in International Law: Essays in Honour of Lord McNair (1965) 88. Domestic courts have varied in their responses to this issue. See, e.g., Donald W. Jackson and C. Neal Tate (eds.), Comparative Judicial Review and Public Policy (1992).

109 Judge Sidhwa, Separate Opinion, para. 36.

110 See generally, Chris af Jochnick and Roger Normand, `The Legitimation of Violence: A Critical History of the Laws of War,' 35 Harv. Int'l L. J. (1994) 49.

111 See, e.g., Kenneth Anderson, `Nuremberg Sensibility: Telford Taylor's Memoir of the Nuremberg Trials,' 7 Harv. Int'l L. J. (1994) 281, at 292. For these reasons, unlike most commentators, Anderson suggests that a military victory on par with that in WWII, is `not simply a practical prerequisite to a trial . . . but a moral necessity. . . . to hold a war crimes trial in the former Yugoslavia today would be like holding Nuremberg after acquiescing in the German annexation of Poland, the Ukraine, and the rest of the eastern lands.' Ibid. at 292-93.

112 Cf. Iain Guest, `Will the UN Smother Its Conscience?,' New York Times, Dec. 17, 1994. For one survey of arguments, pro and con, on the establishment of the Tribunal, see `Symposium,' 6 Pace Int'l L. Rev. (1994) 1.

113 See, for example, the appellate judges' contention that Tribunal primacy over national prosecutions is needed because the `very purpose of the creation of an international criminal jurisdiction' would otherwise be defeated. Appellate Chamber, para. 58.

114 Secretary-General's Report Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, May 3, 1993, at paras. 19-20.

115 Ibid. at para. 21. Significantly, the Secretary-General did not suggest that the General Assembly was not legally capable of establishing an ad hoc war crimes tribunal. Cf. supra note 50 (views of Judge Sidhwa).

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