Nuremberg vs. Guantanamo

"Francis A. Miniter" <faminiter.DeleteThis@comcast.net> wrote in message
news:YaGdnUKEo8Wp7ArVnZ2dnUVZ_v7inZ2d@comcast.com...

> Nuremberg established that humans are capable, acting as an
> international group, to effect justice against true war
> criminals, persons who engaged in mass murder and similar
> crimes against humanity. The procedure established and the
> rules of evidence were respected by all, the judges were
> from multiple countries, the trials were open - indeed,
> televised - and the outcomes were, therefore, accepted by
> the world. The true heir of this court is the International
> Criminal Court, by was of the special criminal tribunals at
> the Hague over the years, such as the current International
> Criminal Tribunal for the Former Yugoslavia.
>
> On the other hand, we have the Guantanamo tribunals, which
> try to prove that Bin Laden's driver is a war criminal of
> the magnitude of Goering. . . .
>
> These Guantanamo tribunals are a farce and should be ended.

Timing reinforces this opinion. The Nuremburg International
Military Tribunal started hearings within months of VE Day and
concluded within less than one year. Several years have passed
since US extra-constitutional legal proceedings, but not one
defendant has yet been arraigned before a legally competent
court, let alone been tried and a judgment reached.

Western jurists agree that detention in prison is punishment,
and detention under specific conditions (e.g. solitary confinement
with no visitors or mail) is harsh punishment. Secondly most
Western constitutions prohibit punishment without trial and have
annulled certain prosecutions deemed tardy. The political
decision for Americans is whether the failure to try Guantanamo
defendants demonstrates administrative incompetence or
government determination to punish defendants with or without trial.

--
Don Phillipson
Carlsbad Springs
(Ottawa, Canada)
 >> Stay informed about: Nuremberg vs. Guantanamo 

On Aug 5, 12:14 am, "Francis A. Miniter" <famini....TakeThisOut@comcast.net>
wrote:
> Nuremberg established that humans are capable, acting as an
> international group, to effect justice against true war
> criminals, persons who engaged in mass murder and similar
> crimes against humanity.  The procedure established and the
> rules of evidence were respected by all, the judges were
> from multiple countries, the trials were open - indeed,
> televised - and the outcomes were, therefore, accepted by
> the world.  The true heir of this court is the International
> Criminal Court, by was of the special criminal tribunals at
> the Hague over the years, such as the current International
> Criminal Tribunal for the Former Yugoslavia.

There are, however, some problems with the whole notion
of international war crimes tribunals, such as:

1) It's usually victor's justice. The Nazi leaders were
put on trial by the victorious Allies at Nuremberg, but
Kissinger has never been brought to trial for the carpet
bombing in Vietnam that killed thousands. And who believes
that Bush, Cheney and Rumsfelt will ever be put on trial
for starting the Iraq War, a war of aggression
(and hence a war crime according to the Charter
of the Nuremberg Tribunal)? This means that such cases
are a way for powerful Western countries to apply notions
of ethics and justice to weak countries that the
powerful countries do not apply to their own leaders.
It's hypocrisy and a way of making the Western countries
feel better about themselves morally.

2) The very idea that the political leaders of a
country at war whose army commits mass murder are
personally responsible in a legal sense is not
clear. Is, say, Radovan Karadzic personally responsible
for the murders of 8,000 men and boys at Srebrenica
in 1995 and the 10,000 civilian deaths during the
siege of Sarajevo? He didn't kill a single person
with his own hands. He was the political leader of the
Bosnian Serbs in the armed forces who did the actual
killing. Are the soldiers innocent? Why are they not
on trial? They weren't just obeying orders, they
followed Karadzic willingly in the ethnic cleansing.
In some sense, Karadzic is a scapegoat for the
guilt of the soldiers.

3) There is the problem of jurisdiction. The International
Criminal Court in the Hague, for example, was set up
through an internationally treaty under UN auspices,
i.e. it is basically diplomacy. Not all UN members have
signed the treaty, including the most powerful country
in the world, the U.S. Jurisdiction is essentially
something that goes together with sovereignty. There is
no world government, and thus as a matter of principle
there can be no world jurisdiction. International law
is not really law, it's diplomacy.

4) There is the risk that the prosecutors of international
tribunals will seek to prosecute prominent current or
former heads of state and government to further their own
careers. Getting a conviction of such a prominent
defendant is a good way to make a name for yourself.

5) There are practical problems with completing such a
legal process. Slobodan Milosevic's trial at the Hague
tribunal for the former Yugoslavia lasted four years
and Milosevic died in prison before the trial could
be completed. The cases can be incredibly complex and
it is difficult to establish guilt for charges such as
genocide, war crimes and crimes against humanity.
Karadzic's trial will arguably be simpler than Milosevic's
but there could still be problems with getting enough
clear evidence.

6) When warrants are issued for the arrest of current
(not former) heads of state this action can lead to
political instability inside the country and increased
tension between countries. This is the case with Sudan
and Western countries right now because the Hague
court issued a warrant for the arrest of Omar Hasan
al-Bashir, the president of Sudan (on charges of
genocide in Darfur). In the worst case scenario, the
arrest of a current head of state by order of an
international tribunal could lead to war. The modern
concept of sovereignty was established following the
Thirty Years War because in a sense European countries
realised that jurisdiction must be restricted to the
territory of one state. The princes of foreign states
could not act with impunity within the territory of
other states because that would lead to armed conflict.
Europe learned this lesson the hard way as millions
of people died in the Thirty Years War. What would
happen if United Nations military police arrested
al-Bashir and forcibly brought him to the Hague
for trial? Or indeed, what would the United States
do if the police of another country arrested Henry
Kissinger on charges of war crimes in Vietnam?
 >> Stay informed about: Nuremberg vs. Guantanamo 

"Marko Amnell" <marko_amnell RemoveThis @hotmail.com> wrote in message
news:56420b82-7c87-45a8-b41d-0cee142ef893@34g2000hsf.googlegroups.com...

> There are, however, some problems with the whole notion
> of international war crimes tribunals, such as:
>
> 1) It's usually victor's justice. The Nazi leaders were
> put on trial by the victorious Allies at Nuremberg . . .

Judges and probably all lawyers were aware in 1945-6
the International Military Tribunal at Nuremburg might
later be accused of being "victor's justice" i.e. an unfair
proceeding, thus went to considerable lengths to enable
the accused to defend themselves with lawyers of their
choice and submission of evidence, argument in
mitigation etc. "Victor's justice" usually means hanging
malefactors out of hand. The IMT acquitted a couple of
the 19 defendants and sentenced half a dozen to
prison terms.

Its weakest points were:
1. Acceptance of a Russian judge tainted by his role
in the "show trials" of the 1930s: but the IMT probably
had no discretion to refuse nominees of member
governments.
2. Sentencing defendants who were probably
legally insane (Hess and Streicher.)
Minor criticisms may also be made of Jackson's
incompetent examination of Goering and of failure
to produce (in less than 6 months) full details of
the death camp system. But otherwise the IMT
seems to have been both fair and effective,
fully cognisant of future historical revisionism.

--
Don Phillipson
Carlsbad Springs
(Ottawa, Canada)
 >> Stay informed about: Nuremberg vs. Guantanamo 

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"The Other" <other.TakeThisOut@address.invalid> wrote in message
news:lyod46me7x.fsf@circe.aeaea...

> An essential
> element of modern (16th-19th centuries) sovereignty is that in
> international law, as opposed to municipal law, war crimes are
> committed by *states*, not by individuals. Hence it's states, not
> individuals, who are penalized or punished by other states, regardless
> of what some individuals may be guilty of. This might seem strange
> now, after Nuremberg, but it used to be taken for granted as part of
> the world order.

Not so. The codes of military justice of most Western
countries identify a number of war crimes of which individuals
may be convicted (e.g. looting, shooting prisoners) and specify
their punishment. The WW1 German soldier even carried a
written summary, printed in his paybook. Notoriously after
WW2 the Yugoslavs tried for war crimes the German air force
commander responsible for bombing Belgrade (1941) and the Dutch
tried the German commander responsible for bombing The Hague
(1940.) One was acquitted and the other convicted.

Hague negotiations and treaties of 1905-1909 imply that
states might be indicted and tried. But I do not think this
ever happened before the new International Criminal Court
was founded.

--
Don Phillipson
Carlsbad Springs
(Ottawa, Canada)
 >> Stay informed about: Nuremberg vs. Guantanamo 

"The Other" <other DeleteThis @address.invalid> wrote in message
news:lytzdyme9h.fsf@circe.aeaea...

> Nuremberg was a classic case of victor's justice. . . .
> I don't know the details, but as I understand it, many of the "crimes"
> were no such thing. There was no treaty specifying "crimes against
> humanity," whatever that means. The principle of "nullum crimen,
> nulla poena sine lege" was totally thrown out.

Since you do not know the details, you might be interested to
find out, because the Nuremburg IMT devoted so many pages
of proceedings to defining "crimes against humanity" and
justifying their prosecution under common i.e. unwritten law,
which is a part of the German justice system just as in the UK.
Crimes against humanity were in 1945-46 obviously cruel actions
that were not defined by Hague and Geneva conventions as
war crimes, e.g. forced relocation of civilians (now called
"ethnic cleansing") as undertaken when the Third Reich
annexed two Polish rural provinces and evicted the inhabitants
to resettle ethnic Germans on the land, e.g. refusal to release
PoWs when Poland and France surrendered (French PoWs
being later exchanged for goods extorted from Vichy France.)
These were "crimes against humanity" for which evidence could
be produced, thus were punished. Only later did UN specifications
enlarge this category to add crimes penalized elsewhere (e.g. looting,
wanton destruction, mayhem, murder.)

Nuremburg officlals went to great lengths to explain themselves,
foreseeing criticism later. I doubt if they foresaw our generation's
readiness to dismiss their reasoning without reading it first.

--
Don Phillipson
Carlsbad Springs
(Ottawa, Canada)
 >> Stay informed about: Nuremberg vs. Guantanamo 

On Aug 4, 4:14 pm, "Francis A. Miniter" <famini... DeleteThis @comcast.net> wrote:
> Nuremberg established that humans are capable, acting as an
> international group, to effect justice against true war
> criminals, persons who engaged in mass murder and similar
> crimes against humanity.  The procedure established and the
> rules of evidence were respected by all, the judges were
> from multiple countries, the trials were open - indeed,
> televised - and the outcomes were, therefore, accepted by
> the world.  The true heir of this court is the International
> Criminal Court, by was of the special criminal tribunals at
> the Hague over the years, such as the current International
> Criminal Tribunal for the Former Yugoslavia.
>
> On the other hand, we have the Guantanamo tribunals, which
> try to prove that Bin Laden's driver is a war criminal of
> the magnitude of Goering.  

But there is also the fellow who is alleged
to have planned the WTC attacks as well.
And, as you mention, the privacy prevents us
from knowing who else is a prisoner.

>In addition to the pathetic
> comparison of crimes invovled, we have no international
> involvement (far from it, none of our allies would touch
> this from a mile), procedure and rules of evidence that have
> been challenged and overturned as unfair, trials that are
> secret, evidence that cannot be viewed by the defendants or
> their attorneys, and outcomes which, therefore, will never
> be accepted by the world.
>
> These Guantanamo tribunals are a farce and should be ended.
>
> Francis A. Miniter

Now, I thought that the Supreme Court had ruled a few
times in favor of the Guantanamo prisoners. The most
recent was just a few weeks ago, and the ruling,
if I understood correctly, said that the prisoners should
have the same rights in court as an American citizen.
I wonder if that is because allegations of terrorism are
related to crimes against citizens rather than crimes
against soldiers(?)

Many have objected to that because it is thought that
these prisoners now have more rights than someone in
our military. The President evidently gets around this
kind of ruling by pushing new laws through Congress.
Yet I think this time some will finally go to a more
publicized and more fair trial.

Is the issue that military trials are somehow
not fair, or that the U.S. isn't even obeying the
standard rules of military trials? (I realize there are
issues even beyond that, but I'll stop there.) I
think that is what you are suggesting.

C.
 >> Stay informed about: Nuremberg vs. Guantanamo 

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laraine wrote:
> On Aug 4, 4:14�pm, "Francis A. Miniter" <famini....DeleteThis@comcast.net> wrote:
>> Nuremberg established that humans are capable, acting as an
>> international group, to effect justice against true war
>> criminals, persons who engaged in mass murder and similar
>> crimes against humanity. �The procedure established and the
>> rules of evidence were respected by all, the judges were
>> from multiple countries, the trials were open - indeed,
>> televised - and the outcomes were, therefore, accepted by
>> the world. �The true heir of this court is the International
>> Criminal Court, by was of the special criminal tribunals at
>> the Hague over the years, such as the current International
>> Criminal Tribunal for the Former Yugoslavia.
>>
>> On the other hand, we have the Guantanamo tribunals, which
>> try to prove that Bin Laden's driver is a war criminal of
>> the magnitude of Goering. �
>
> But there is also the fellow who is alleged
> to have planned the WTC attacks as well.
> And, as you mention, the privacy prevents us
> from knowing who else is a prisoner.
>
>> In addition to the pathetic
>> comparison of crimes invovled, we have no international
>> involvement (far from it, none of our allies would touch
>> this from a mile), procedure and rules of evidence that have
>> been challenged and overturned as unfair, trials that are
>> secret, evidence that cannot be viewed by the defendants or
>> their attorneys, and outcomes which, therefore, will never
>> be accepted by the world.
>>
>> These Guantanamo tribunals are a farce and should be ended.
>>
>> Francis A. Miniter
>
> Now, I thought that the Supreme Court had ruled a few
> times in favor of the Guantanamo prisoners. The most
> recent was just a few weeks ago, and the ruling,
> if I understood correctly, said that the prisoners should
> have the same rights in court as an American citizen.
> I wonder if that is because allegations of terrorism are
> related to crimes against citizens rather than crimes
> against soldiers(?)

The recent ruling had to do with the ancient right of the
Writ of Habeas Corpus, which goes back to the Magna Carta in
1215. The Constitution provides that it may be suspended in
time of war. But that is not what was done. The
administration got Congress to pass legislation depriving
the federal courts from hearing Habeas Corpus cases IF they
came from the Guantanamo detainees. The Supreme Court said
that was an unconstitutional way to try to get around Habeas
Corpus and that, in any case, the suspension of Habeas
Corpus cannot be done piecemeal or against selected groups
of people.

Thus, the Guantanamo detainees may have their cases reviewed
by civilian US courts and are not stuck with the limited
form of justice meted out by military tribunals that won't
even let the defendant know the evidence against him.

>
> Many have objected to that because it is thought that
> these prisoners now have more rights than someone in
> our military.

No. The writ of Habeas Corpus has never been suspended
against our troops. They have always had the right to
appeal to the civilian courts, and evidence cannot be used
in secret against them. As to the Uniform Code of Military
Justice, it only applied to those who VOLUNTEER to serve in
the armed forces.

> The President evidently gets around this
> kind of ruling by pushing new laws through Congress.
> Yet I think this time some will finally go to a more
> publicized and more fair trial.

This latest one will be impossible to get around.

>
> Is the issue that military trials are somehow
> not fair, or that the U.S. isn't even obeying the
> standard rules of military trials? (I realize there are
> issues even beyond that, but I'll stop there.) I
> think that is what you are suggesting.
>
>
It is not that military trials are per se unfair, but these
tribunals vary from the procedure of Courts Martial.
However, one pundit recently remarked that in civilian life
you have a right to a trial by your peers. In the military
you do not. That may be one issue of fundamental fairness
that is lost in a military tribunal.


Francis A. Miniter
 >> Stay informed about: Nuremberg vs. Guantanamo 

"The Other" <other.RemoveThis@address.invalid> wrote in message
news:lyhc9xky8a.fsf@circe.aeaea...

> I'm aware that "crimes against humanity" were defined, but my point is
> that they were defined arbitrarily by the victors. For instance, they
> didn't include fire-bombing Dresden or dropping atom bombs on Japan.

You seem mistaken. The earlier Hague conventions forbade
bombardment of undefended cities, i.e. defined this as a war
crime so that making the same act a "crime against humanity"
was unnecessary. There is also jurisprudence on this specific
point, viz. the Yugoslav conviction of the Luftwaffe general
responsible for bombing Belgrade (1941) and the Dutch aquittal of the
general responsible for bombing Rotterdam (1940.) Both were
prosecuted under the Hague Convention (1909?) for "bombarding"
"undefended cities." (Dresden and Hiroshima were obviously
defended cities, having significant AA batteries and night fighter
defence, however enfeebled in 1945.)

> Nuremberg officials . . . explicitly said that
> theirs was not "victor's justice," for instance that crimes committed
> by the Allies would be investigated and punished just like those
> committed by the Axis powers. There's a gap between word and deed.

I do not recall this word. The Nuremberg judges argued in writing
before the trials why the IMT should not be repudiated as "victor's
justice" -- but the main reason is probably the verdicts, acquitting a
couple of defendants and sentencing 4 or 6 to prison terms, not death.
But I recall nothing in the Nuremberg record promising "crimes committed
by the Allies would be investigated and punished just like those
committed by the Axis powers." The principals were all lawyers, thus
knew they could not possibly commit their parent governments
in this way.

NB the first two of the four Nuremberg charges (crimes against
peace, viz. going to war without cause or formal declaration, and
conspiracy for this purpose) could be laid against hardly any Allied
power, perhaps none. The other two Nuremberg charges were "crimes
against humanity," chiefly deportations (cf. evidence) and "war
crimes" meaning specific crimes as defined at The Hague or
Geneva, cf. bombardment of undefended cities as mentioned,
e.g. submariners sinking unarmed ships without warning
or machine-gunning survivors, e.g. shooting PoW escapers
out of hand.

A few Allied combatants were of course tried for a variety of war
crimes, e.g. murder, rape, treason -- but each was tried by
his own country. as normal under prewar military codes.
Similarly, Yugoslavs and Dutch tried the Luftwaffe commanders
under their own and German law in Yugoslav and Dutch courts,
just as US courts martial tried the perpetrators of the Malmedy
Massacre, a Canadian court tried Kurt Meyer for crimes in
Normandy etc. There was no need to create another international
military tribunal in the absence of any indictment requiring it. (Red
Cross records appear to have no complaints that British or US
submariners massacred survivors of sunk ships, shot PoW
escapers etc.)

It seems exceptionally difficult to find crimes by Allied governments
or individuals "just like those committed by the Axis powers," thus
requiring similar proceedings, viz. an IMT. (But I doubt that
the Nuremberg judges made any declarations that "crimes committed
by the Allies would be investigated and punished just like those
committed by the Axis powers.")

--
Don Phillipson
Carlsbad Springs
(Ottawa, Canada)
 >> Stay informed about: Nuremberg vs. Guantanamo