-OpEd-
BUENOS AIRES — The devastation and massive human casualties of World War II were lessons for the international community, which duly converted them into institutions intended to stabilize geopolitical relations.
The accords signed in Tehran in 1943, Moscow in 1944, Yalta in February 1945 (three months before Germany surrendered) and Potsdam in August of that year, led to the creation of the Nuremberg and Tokyo war crimes trials, and in time, the United Nations.
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On November 21, 1945, Chief U.S. Prosecutor Robert H. Jackson told the International Military Tribunal in Nuremberg, set up to try Nazi crimes in Europe, that while the tribunal was novel, it was “not the product of abstract speculations nor is it created to vindicate legalistic theories.”
Common sense, he said, dictated that the law should not be restricted to “petty crimes by little people” but reach individuals “who possess themselves of great power and make deliberate and concerted use of it to set in motion evils, which leave no home in the world untouched.”
Crimes threatening civilization
Jackson actively contributed to creating the Nuremberg court and legal norms on prosecuting great crimes, which he said threatened civilization itself.
In following decades, the Cold War kept war at bay between the two emerging ideological blocs — the Western alliance led by the United States, and the Soviet-led Warsaw Pact — each of which exerted influence over its power sphere. It was a tense, though relatively stable, regime that took its calculated risks in lesser or “marginal” conflicts in the Korean peninsula, Cuba, Vietnam or the see-saw struggle for power in Latin America, between conservatives and revolutionaries.
In the mid-1980s, the Soviet bloc began to fray in the wake of the reforms initiated by the last Soviet leader, Mikhail Gorbachev, while the fall of the Berlin Wall became a seminal and dramatic symbol of the Soviet empire’s end. All this changed the geopolitical map and upset the structure of alliances at the UN Security Council.
The bloodiest transition was in the Balkans
It meant the International Criminal Court (ICC) would no longer enjoy the backing of all permanent members of the Security Council, but only France and Britain.
Restoring equilibrium
The former members of the Soviet bloc had a varied transition toward their independence. While the German Democratic Republic disappeared peacefully to reunite with West Germany, the bloodiest transition was in the Balkans, with Yugoslavia’s dismemberment through civil war. Despite the efforts made to create institutions designed to restore balance to the world, those bodies gradually ceased to be effective in curbing atrocities after the 1990s.
In the late 20th century, the Security Council could not tackle the unfolding massacres in Yugoslavia and Rwanda, although it created two ad hoc tribunals in The Hague to deal with crimes committed there. Both included judges from the five permanent members of the Security Council — the U.S., Russia, China, France and UK.
Nor could it deal with the 9/11 terror attacks, which millions in the West perceived as an attack on its very culture and values.
Totalitarian violence
The world is going through a period of growing geopolitical instability. The UN has failed — in spite of the secretary-general’s exhortations — to restabilize flash points like Ukraine and the Middle East. And the effects extend beyond any one region. As the American novelist Don DeLillo wrote in his essay The Ruins of the Future, occupied territories are no longer a piece of land but “it is our lives and minds that are occupied now.”
The world needs new rules of coexistence.
In her collection of essays Men in Dark Times, German-American philosopher Hannah Arendt (1906-1975) observed on people’s plummeting expectations in “dark times” characterized by “totalitarian violence,” when all they could hope from politics was that it “show due consideration for their vital interests” and basic freedoms.
This is not irrelevant to today, as international criminal justice becomes a buttress against the failures of politics and statesmanship.
Peace and progress
What international tribunals on war crimes and massacres have done so far is to enable victims to recount their plight in a juridical setting. Despite charges that it is colonial instrument, focusing excessively on Africa, or Western tool to be used against Russia, the ICC has recorded testimonies, providing if nothing else, a rounded narrative and a sounding board for muffled or silenced voices.
Today, the ICC has lost the support of the Security Council’s three major powers. And the international community, as a community of values, lacks a power to ensure the enforcement of international criminal law. In the 20th century, the Security Council played that role.
While wars drive the evolution of international criminal laws, it is only during times of peace that states can agree on restructuring the international justice system. Today, the world needs new rules of coexistence, based on shared values, to ensure our collective peace and progress.
*Inés Weinberg is a judge of the Higher Court of Justice of the City of Buenos Aires.
