Podcast Host (possibly Martin DeCaro) (2:16)

Yeah.

Interpreter/Translator or Actor (2:19)

Eiffel. Heil Hitler.

Podcast Host (possibly Martin DeCaro) (2:21)

James Vanderbilt's Nuremberg takes us back to a dark moment, but one full of opportunity to hold the perpetrators of history's worst crimes accountable. It was called Victor's justice, but it was justice nonetheless, and something to reflect upon today as civilians die in unjust wars across our troubled planet. That's next as we report history as it happens. I'm Martin DeCaro.

Alex Whiting (International Law Expert) (2:44)

Nuremberg is an incredible accomplishment because it is the first time that an international criminal tribunal applies international rules of war, crimes against humanity, aggression to a conflict. And it is a triumph of law over war.

Podcast Host (possibly Martin DeCaro) (3:06)

A complete and total solution.

Interpreter/Translator or Actor (3:09)

Complete and total.

Alex Whiting (International Law Expert) (3:10)

Yeah.

Podcast Host (possibly Martin DeCaro) (3:11)

A complete and total solution. You wanted the chief of the SS to enact.

Interpreter/Translator or Actor (3:16)

Yeah, but I would like to make an explanation.

Podcast Host (possibly Martin DeCaro) (3:20)

Oh, please do.

Narrator/Actor reading trial transcripts (3:31)

In bombed out Nuremberg, preparations go forward for the trials of Germany's major war.

Podcast Host (possibly Martin DeCaro) (3:36)

November 1945, Nuremberg, Germany.

Narrator/Actor reading trial transcripts (3:40)

In Nuremberg's court building, where the trials.

Podcast Host (possibly Martin DeCaro) (3:42)

Will be held, German prisoners, 24 Nazi leaders were brought before an international military tribunal. The indictment contains four counts. Crimes against peace, crimes against humanity, war crimes and a common plan or conspiracy to commit these acts.

Narrator/Actor reading trial transcripts (3:59)

You will see their own conduct and hear their own voices as these defendants reenact for you some of the events in the course of the conspiracy.

Podcast Host (possibly Martin DeCaro) (4:09)

The most significant defendant sitting in the dock was Reichsmarshal Hermann Goering. Here he is being cross examined by the lead American prosecutor, Supreme Court Justice Robert Jackson. The the audio from the Robert H. Jackson center with a modern interpreter.

Narrator/Actor reading trial transcripts (4:25)

I asked to have you shown. Kenniskin. I asked to have you shown document 710, United States 509.

Actor portraying Hermann Goering (4:37)

May I read it? As it is written here, complimenting the task which was conferred upon you already on 124 1939, to solve the Jewish problem by means of emigration and evacuation in the best possible way according to present conditions. I charge you herewith to make all necessary preparations as regards organizational, factual and material matters. Now comes the decisive word which has been mistranslated for total solution. Not for a final solution, for a total solution of the Jewish question within the area of German influence in Europe.

Narrator/Actor reading trial transcripts (5:21)

This letter itself was directed to the chief of the Security Police and the Security Service and SS Gruppenkur Heinrich. That's Istresch.

Actor portraying Hermann Goering (5:33)

That is correct, but I have to make an explanation in connection with that.

Narrator/Actor reading trial transcripts (5:37)

All right.

Actor portraying Hermann Goering (5:41)

The reason I sent this letter to him was that by the decree of 1 24, 1939, Heydrich, or it may have been Himmler, had been given the task of dealing with the emigration of the Jews. Therefore, this was the government department concerned. And it was to the department which had been given the tasks that I had to apply concerning all material and economic.

Podcast Host (possibly Martin DeCaro) (6:07)

Now here's that same scene attempting to establish Goering's culpability in the Nazi regime's crimes in filmmaker James Vanderbilt's Nuremberg, released in theaters last year, now available on streaming services. Am I correct so far?

Interpreter/Translator or Actor (6:22)

No, your translation is not correct.

Podcast Host (possibly Martin DeCaro) (6:28)

Then please give us your translation.

Interpreter/Translator or Actor (6:36)

Supplementing the task which was entrusted to you in the decree dated January 24, 1939, to solve the Jewish question by emigration and evacuation in the most favorable way possible, given present conditions. I herewith commission you to carry out all necessary preparations.

Podcast Host (possibly Martin DeCaro) (6:59)

A Sony Pictures release, Nuremberg has grossed $46 million globally. Not a blockbuster, but a strong performance, A reminder of what justice can look like when there is a will to seek it. Look around the world today and you'll see war crimes, crimes against humanity, genocide, the persecution of minority populations. Will there be any justice for, say, the people of Ukraine? Can you imagine Putin or Netanyahu or any of the world's war criminals sitting in the dock at the Hague? If not, why not? Alex Whiting is an expert on international law at Harvard Law School. Before returning to teaching, he worked as a prosecutor in the US and at the International Criminal Court. He was in the Kosovo Specialist Prosecutor's office in the Hague, where he served multiple roles. Our conversation next Remember, you can skip ads and get all our bonus content too by subscribing Tap. Subscribe now in the show notes or go to history as it happens.com and join the club for $5 a month. Well, the holidays have come and gone once again, but if you've forgotten to.

Alex Whiting (International Law Expert) (8:08)

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Podcast Host (possibly Martin DeCaro) (8:12)

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Alex Whiting (International Law Expert) (8:19)

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Podcast Host (possibly Martin DeCaro) (8:34)

Alex Whiting, welcome back.

Alex Whiting (International Law Expert) (8:36)

It's great to be here.

Podcast Host (possibly Martin DeCaro) (8:38)

It's been four years almost. I was just checking out the show notes to the first time you were on the podcast way back in April 2022. I want to you then and you were in the Hague at that point about the issue of war crimes and the difficulty of prosecuting these cases because way back In April of 2022 we were only a few months into the Russian invasion of Ukraine and it was already apparent that war crimes had been committed and would anyone ever be prosecuted, held to account for what was going on. And in the show notes I talked about in the 76 years since the Nuremberg trials, which set a standard for punishing individuals for crimes against humanity, war crimes investigators have faced many, many obstacles again in the 76 years since. We can add four years to that before we get into all those meaty issues. What did you think of the new movie. I mean, that's why I have you on now, the new movie with Russell Crowe, Rami Malek with the title Nuremberg. Did you like it?

Alex Whiting (International Law Expert) (9:34)

I'm going to say yes and no. I loved having a movie at this time about Nuremberg and we can talk about why that's important. And I thought that the movie captured certain really important things about the trial, about the. About what happened at Nuremberg dramatically. I wasn't crazy about the movie. I thought the story with the psychologists didn't work that well. And I found it a little bit overwrought and for me a little bit distracting. But I think it's a movie definitely worth seeing.

Podcast Host (possibly Martin DeCaro) (10:07)

Absolutely. You know, I agree with you about the storyline with the psychologist they took, and this will be a spoiler, they took an unnecessary liberty there, showing the. His name again was Kelly, right? Dr. Kelly, yes. Played by Rami Malek was doing, well, some subterfuge. He was interviewing Guring and then reporting back to the prosecutors what Guring's defense strategy would be. That never happened. The story's interesting enough already, right?

Alex Whiting (International Law Expert) (10:33)

There is so much that you can do with Nuremberg. And as I said, they do capture certain interesting and dramatic parts of the trial and the lead up to the trial. And so why they invented. I mean, there was a psychiatrist and that did happen. But all of that, as you say, about the sharing of the information and how that was central and how he leaked it and so forth, all of that is made up. And I don't know, I guess they found that they needed something like that, some kind of hook like that.

Podcast Host (possibly Martin DeCaro) (11:03)

Maybe. I guess because you already know the outcome, you know there's going to be a guilty verdict. There was no jury, it was a tribunal. So they had to somehow try to keep you in suspense. I don't know. And also Malik's character is then expelled from the premises. He was already out of Germany by that point. He didn't get in trouble. There was no big newspaper expose. But anyway, I feel like historical movies don't need to be accurate. They're supposed to take us away. They're supposed to connect with us emotionally. But on certain things they need to be, I would say, pretty close to the facts. How do you feel like the film portrayed Goering? How this first trial. So the movie Nuremberg is about the very first Nuremberg trial, about the 24 most important defendants who are still alive after the war. How do you feel like they depicted Guring's place in all of that?

Alex Whiting (International Law Expert) (11:53)

That I think they captured it. He was, of course Central to the trial, part of the drama of the movie is Robert Jackson, who was the American prosecutor, the lead American prosecutor at the trial, and who gives a brilliant and amazing opening statement at the trial. He has a battle with Guring in court. He cross examines him and that is captured quite accurately. And the drama of Jackson kind of struggles and stumbles. And that did in fact happen, as I said. Goering, lead defendant, and he is convicted. And then of course, he robs the executioner of the moment because he commits suicide. So I think it captured his place in the trial and the dynamic with the prosecutor and the battle that he had with the prosecutor.

Podcast Host (possibly Martin DeCaro) (12:44)

Here's a clip of the cross examination, Justice Jackson being played by Michael Shannon, Russell Crowe playing Herman Goering, about a reference to the Final Solution.

Interpreter/Translator or Actor (12:54)

Now here is the sentence for a complete solution, not a final solution, for a total solution of the Jewish question.

Podcast Host (possibly Martin DeCaro) (13:10)

A complete and total solution.

Interpreter/Translator or Actor (13:13)

Complete and total, Yeah, a complete and total solution.

Podcast Host (possibly Martin DeCaro) (13:17)

You wanted the chief of the SS to enact.

Interpreter/Translator or Actor (13:21)

Yeah, but I would like to make an explanation. Oh, please do. I sent this letter to Himmler and to Heydrich because It was some 18 months now since the declaration of 24th of January 1939, and Heydrich had achieved very little. So I charged him to accelerate the task of dealing with the emigration of the Jews.

Podcast Host (possibly Martin DeCaro) (13:52)

Immigration, you contend this letter was about immigration?

Interpreter/Translator or Actor (13:56)

It says so in the first line.

Podcast Host (possibly Martin DeCaro) (14:08)

That's just the first sentence. The letter goes on to state my.

Interpreter/Translator or Actor (14:12)

Desire for a complete solution to the Jewish problem and an end to their financial influence by their emigration and evacuation from Germany. It is in this document that you present to me.

Podcast Host (possibly Martin DeCaro) (14:32)

And Goering spoke English fluently, is that right?

Alex Whiting (International Law Expert) (14:35)

Yes. He was able actually to converse with the prison guards. And it also gave him an advantage at trial because he could understand the questions immediately without translation, though they were translated to him and he did not speak English at the trial. He spoke German, it was translated, but he was able to gain a little time because he could speak English.

Podcast Host (possibly Martin DeCaro) (14:57)

Ah, so the movie does take a liberty there. I was wondering about that. Because if they had to translate every single line, the movie would have been tedious. So they had.

Alex Whiting (International Law Expert) (15:07)

Right, exactly. In reality, I mean, I had experience with this in the Hague and with trials, international trials in the Hague. The translation does completely change the character of the trial. It slows it down. You have to change how you do examinations of witnesses, especially cross examinations, because the translation slows everything down.

Podcast Host (possibly Martin DeCaro) (15:29)

And also, sometimes translations aren't exact. There's idiom in different meanings. I'm Learning how to speak Italian. Supposedly I'm taking Italian classes. I'm trying to learn the idiom. And yeah, some things just don't make any sense. There is no translation.

Alex Whiting (International Law Expert) (15:44)

Correct. And when you have simultaneous translation, you get about 80, 85% of what is said gets translated. So there's not only difficulty of translating certain words, but you necessarily miss certain things. Sometimes there are disputes about the translation and what it means. There can be confusion. That's an important feature of international trials, which is taken out in the movie for dramatic effect.

Podcast Host (possibly Martin DeCaro) (16:09)

I think that was a wise choice. There wasn't a lot of the trial itself in the movie, which was two and a half hours, really only one scene, the cross examination and I guess some of the opening statement. But I was surprised by that because I started watching the 1961 classic Judgment at Nuremberg, which is about a different trial. There were like a dozen Nuremberg trials. The 61 movie, which is a classic, directed by Stanley Kramer, all star cast, Spencer Tracy, Even William Shatner is in there, although he didn't get top billing. Which was about the judges trial. There were a number of judges and other lower level Nazi functionaries who were put on trial for their role in all the war crimes and all the crimes against humanity. This more recent movie was a little light on that. I was actually a little disappointed about that.

Alex Whiting (International Law Expert) (16:58)

Yeah. Well, one thing about the first Nuremberg trial, which is featured in this new movie that we've been talking about, is that there actually weren't a lot of witnesses. The trial lasted for about a year, almost exactly a year. And the prosecution called only 30 some witnesses. Most of the evidence was documentary. Massive amounts of documents had been seized by Allied forces. And of course, the Nazis had meticulously written down both their plans and their purposes, but also what they actually did. And mountains of that evidence came in at the trial. One thing that the trial does capture, and I think this is really important, is that film was also an important part of the trial and that is shown in the movie. And in fact the movie uses actual footage that was used at the trial. And the footage is of the capture of concentration camps, when Allied forces captured concentration camps and discovered thousands of bodies of victims of the Holocaust. That is shown in the movies. And that was a very important and dramatic moment in the trial. Riveted the judges and had a dramatic effect on the defendants as well.

Podcast Host (possibly Martin DeCaro) (18:08)

Yeah, that was to me the most powerful moment in the film. As you say, most of the evidence was documentary. That doesn't really make for exciting filmmaking. Right. Just showing people leafing through papers or presenting papers to the tribunal. But the issue was whether Guring in the movie, whether he knew what had been happening, whether he played a role in what had been happening. Was there any really question about his culpability there? Because in the film, as you say, Justice Jackson, the prosecutor, was having trouble pinning him down on that. It seemed pretty obvious that he was involved in all, all this.

Alex Whiting (International Law Expert) (18:41)

Yes, I agree with you. I don't think there was really any doubt about his guilt. There are two things that happened in the cross examination that were dramatic but ultimately not that important to the outcome of the trial. The first thing is, as you say, it was cross examination, Jackson trying to pin him down. Now, one thing about Guring, and this has been true in my experience, prosecuting in the Hague at the international tribunals, prosecuting accused war criminals, high level people, they tend to be used to dominating the room. And they are good at that. They know how to do that. You know, Guring is no ordinary defendant that you can kind of pin down and trick and. Or not trick, but you can score some points on cross examination. He's a very smart, dominating guy who battled with Jackson and gave it back to him. And then the second thing is that it captured something about the purposes of these trials, because Jackson's trial and the trial is focusing on his criminal liability and his knowledge of the crimes and what his individual responsibility was. Guring was trying to turn this into bigger political questions about who was at fault in the war and who did what. And the Allies did things as well and trying to put blame everywhere. Jackson became a little frustrated that he kept trying to turn it in that direction.

Podcast Host (possibly Martin DeCaro) (20:04)

Oh, Guring had some charisma. He had a massive ego. And he and his henchmen had just been the masters of the universe and now they're in the dock after killing millions of people. So, yeah, I think you're right about how that was all depicted in the movie. That was effective. So why do you think it's important that a movie like this was made at this point in time?

Alex Whiting (International Law Expert) (20:26)

I think it's really an important moment because Nuremberg, and I'm just teaching this to my students right now at Harvard Law School. Nuremberg is an incredible accomplishment because it is the first time that an international criminal tribunal applies international rules of war, crimes against humanity, aggression to a conflict. And it is a triumph of law over war. In his opening, Jackson talks about how it is important to show and demonstrate and prove the illegality of their conduct for future generations. And he has no illusions that this is going to eliminate war, but he thinks it will contribute to it and that law can play a role in ending illegal war. He specifically says that this is towards the end of his opening statement. He specifically says, we're applying these rules today to the German war criminals, but these same rules will apply to us and they should apply to us.

Narrator/Actor reading trial transcripts (21:36)

They led their people on a mad gamble for domination. They diverted social energies and resources to the creation of what they thought to be an invincible war machine. They overran their neighbors to sustain the master race. In their war making, they enslaved millions of human beings.

Alex Whiting (International Law Expert) (22:01)

Nuremberg was the triumph of international institutions and international law that followed the catastrophe of World War II. Today, we're facing the dismantling of international laws and international norms, international institutions. It is a perfect moment to remember why those rules are important, why the law is important, how they were created after World War II. And we may have to go back.

Podcast Host (possibly Martin DeCaro) (22:26)

To recreating that again because we're witnessing all over the globe states using massive violence against other populations or their own populations. If you consider Gaza to be part of Israel, its occupied territory, the United States just kidnapped the leader of another country, sending in the special forces to carry off Nicolas Maduro from Venezuela. The Chinese have, I don't know, a million Uyghur Muslims locked up in a concentration camp. So we're seeing the shredding of the so called rules based order, international human rights law. Will the people who have perpetrated these crimes, Putin, Netanyahu and the others in the Israeli government, look what's happening in Sudan, for instance? Right. We can go on and on about this like the system's not working, there won't be a tribunal. Well, you worked at the icc. That place is supposed to deal with people like this. But Netanyahu's travel to Europe and other countries never been arrested, even though he's.

Alex Whiting (International Law Expert) (23:24)

Supposed to be, I'm going to say yes and no. So, yes, I think it's likely that many of the people you just referred to and many of the conflicts will not be subject to international criminal prosecutions. But on the other hand, there is still activity at the tribunal. So. So after Nuremberg, there were no other international tribunals until 1993. And then there was the Yugoslavia tribunal, the Rwanda Tribunal, and ultimately the International Criminal Court, as you said, which has been established under a treaty.

Podcast Host (possibly Martin DeCaro) (23:58)

Right, the Rome Treaty.

Interpreter/Translator or Actor (23:59)

Correct.

Podcast Host (possibly Martin DeCaro) (24:00)

Because you needed to have a system instead of just having ad hoc tribunals.

Alex Whiting (International Law Expert) (24:04)

Right. So the idea of the International Criminal Court exactly is let's not have a tribunal for each conflict that we create after the conflict happens is let's have one tribunal that's in operation at all time for all the conflicts. Now, it isn't universal. There's many countries that are not part of the International Criminal Court, including the United States, Israel, Russia's, not China. But the law is still working or it is still in operation and trying to address these things. So the International Criminal Court has been investigating crimes committed in Ukraine and has brought arrest warrants against Russian officials, including Putin, and for war crimes committed in Ukraine. The Europeans have been in the process of creating a tribunal for the crime of aggression for Ukraine. Netanyahu is of course under an arrest warrant from the International Criminal Court. There are discussions about whenever these other things happen, the arrests of Maduro, Sudan, they are framed in terms of laws of war crimes against humanity. So the framing, the laws and the mechanisms are still operating. Are they achieving anything today? Well, that's a different question. And no they're not. At the moment they're being blocked because countries are not supporting those efforts. We're falling back into a world where it's sovereign power, power instead of law.

Podcast Host (possibly Martin DeCaro) (25:33)

Yeah, I mean international law was violated when the US kidnapped Maduro. However, under US law, he was arrested to face charges in the United States after he had been indicted by a federal grand jury here for a number of crimes, possessing machine guns or something and also drug related charges which may or may not be bogus. But yeah, the point is under US law, he's being charged under international law, going into another country and carrying off their autocratic leader, no matter how big an SOB he was. You know, that's not playing by the rules. Correct? Yeah. So about Nuremberg, as you said, it was a year long trial about obviously October of 1946. The verdicts come down after 216 court sessions. 22 of the original 24 defendants were involved because two of them, well, one of them died or committed suicide. That's depicted in the movie. Robert Lay commit suicide. Another Gustav Krupp von Bohlen. His mental and physical condition prevented him from being tried. Three of the defendants were acquitted. Four were sentenced to terms of 10 to 20 years. Three were sentenced to life in prison. Twelve were sentenced to death by hanging and 10 were hanged. Martin Borman was condemned to death in absentia. And Goering cheated the hangman by biting on a cyanide capsule. So you said about how today people are going to be able to get away with crimes because this process can be blocked. Well, in 1945-46 there was no way to block it. Some said it was Victor's justice. The four winning powers of the war, ussr, France, Great Britain, the United States, put together the tribunal. The Germans were able to defend themselves. They were entitled to legal counsel. But the criticism at the time, and not just coming from Germans, there are questions even on the Allied side. Right. What's the precedent for something like this? Can you address that controversy about whether the tribunal was legitimate?

Alex Whiting (International Law Expert) (27:28)

Yes. So those are great questions. There are two big legitimacy criticisms of Nuremberg. The first is, as you mentioned, Victor's justice. It was a court that only had jurisdiction over crimes committed by the Axis powers. No crimes committed by the Allies could be considered by the tribunal. And then the second is what law it was grounded in. And here, if I can just take a moment. So there are three different crimes that are charged at Nuremberg. War crimes, the crime of aggression and crimes against humanity. With respect to war crimes, the court was on very solid footing. The crimes that were alleged were based in the Hague Convention of 1907 and the Geneva Convention of 1929. These were conventions that had become part of customary international law, which meant that they were binding on all nations, even if those nations hadn't signed up to the conventions. They were considered the practice and law of the international law. And there was also, it was part of customary international law that you could be criminally prosecuted. So there's a long history of war crimes being prosecuted by states. During World War I, there were prosecutions in the United States, there were war crimes prosecutions in the 19th century. So that is on solid footing. Then things get more complicated. The crime of aggression, which actually was the motivating crime for the tribunal, it was that the judgment called it the supreme international crime. And Robert Jackson focused on the crime of aggression in his opening statement. It was the main thing that he saw the trial being about that was on very shaky footing in terms of being a crime. In 1928, there was the Kellogg Briond Pact. It's a very short treaty which, in which nations it outlawed war. Germany and Japan were both part of that pact. And it just said, we renounce the use of war. It's outlawed. However, it did not define a crime of aggression. And so the Nuremberg Trial, from that and various other pronouncements about war being illegal that were in resolutions that weren't binding or in preambles, the Nuremberg Trial turned that into a crime that has been much criticized as being ex post facto law. Right. With respect to crimes against humanity, it's a similar. There's a similar dynamic. So Crimes against humanity didn't really exist. And the idea was drawn from the preamble of the 1907 Hague Convention, which is referred to as the Martin's Clause, also from a joint declaration in 1915 of France, great Britain and Russia condemning the Ottoman government's massacre of Armenians. In those things there was language of laws of humanity, crimes against civilization and humanity. And from that the court created a crime against humanity, massive crimes committed against civilians. The statute said you couldn't be convicted of a crime against humanity unless you were was also in connection with another crime. So it was kind of an add on to the other crimes. So that saved it a little bit in terms of being exposed facto, but really where the criticism has been aimed is at the crime of aggression.

Podcast Host (possibly Martin DeCaro) (30:56)

In his opening statement, Justice Jackson. The privilege of opening the first trial in history for crimes against the peace.

Narrator/Actor reading trial transcripts (31:04)

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored.

Podcast Host (possibly Martin DeCaro) (31:40)

The word that does not appear in his opening statement, genocide. What you're saying here is so important because from our vantage today we say, well, of course there were crimes committed. It's a no brainer. They invaded other countries aggressively. Their unjustified invasions slaughtered the populations, bombed entire cities to the ground. One of the German defenses was, well, you're making up a new, as you said, making up a new category of law here where in fact the Hague Conventions had already covered some of this. But it was still necessary to create like a new language or to cement this post World War II as to what actually did happen and why these men can be prosecuted, but also future perpetrators could be prosecuted as well.

Alex Whiting (International Law Expert) (32:23)

Right, right. When we often think about the Nuremberg trial as being about the Holocaust. It was about the Holocaust, but as I said, it was the thing that motivated it before the Holocaust was a crime of aggression, which is a crime which has not really featured in the modern tribunals. It is now part of the International Criminal Court statute, but it's never been prosecuted in modern times. Nuremberg is really the only example of it. You mentioned genocide. So the crime of genocide did not exist at the time of the Nuremberg trial.

Podcast Host (possibly Martin DeCaro) (32:58)

Lemkin tried to get the tribunal to embrace his coinage, but they didn't.

Alex Whiting (International Law Expert) (33:03)

Raphael Lemkin is the person who coined the term, invented the crime and advocated for it, and as you say, tried to get the tribunal to adopt it. It does appear in the indictment in reference to some war crimes. The word is in there, but. But the Americans did not embrace this as a concept and the judges did not either. It does not appear anywhere in the judgment and it did not formally become a crime until the Genocide Convention was adopted in 1948. Now, genocide is an important crime prosecuted at the modern tribunals. It is something that at the Rwanda Tribunal, for example, the Yugoslavia Tribunal, even at the International Criminal Court, the crime of genocide has been utilized. It did not exist at the time of the.

Podcast Host (possibly Martin DeCaro) (33:51)

So, yes, it was about the Holocaust. But at that point, and this is something that Dirk Moses has pointed out in his scholarship, I'm holding his book here, actually, the Problems of genocide in 1946, genocide was not the crime of crimes that it has become. As you say now, it's a very powerful piece of modern prosecutions at the icc, whereas no one's been prosecuted. No one. I'm talking about individuals or nation states here. The crime of aggressive war, a war of aggressions. Never. You said never been successfully prosecuted. That's something else.

Alex Whiting (International Law Expert) (34:22)

Yes. So the crime of aggression was not part of the statute for the Yugoslavia Tribunal, the Rwanda Tribunal, none of the ad hoc tribunals.

Podcast Host (possibly Martin DeCaro) (34:30)

Those are civil wars, so.

Alex Whiting (International Law Expert) (34:31)

Yeah, exactly. It only recently became part of the statute at the International Criminal Court. But it's defined in a way that the court will rarely have jurisdiction over it. It's very difficult crime to actually prosecute. The crime has resurfaced in public discussion after Russia's invasion of Ukraine, which brings us back to our last meeting, because that was clearly an act of aggression. There has been discussion about, and it's actually in the works to create a special tribunal to prosecute the crime of aggression for Ukraine. Will that ever be stood up? Will it ever be a successful court? That's for the future, sure. But suddenly now we are coming back to that precedent of the crime of aggression from Nuremberg.

Podcast Host (possibly Martin DeCaro) (35:21)

During Nuremberg, though, and this is something that Lemkin was concerned about. He was worried that the Hague laws wouldn't cover crimes against nations. For example, the Holocaust against the Jews.

Alex Whiting (International Law Expert) (35:34)

This is an interesting debate about how to think about international crimes. And Lemkin was concerned war crimes and even crimes against humanity failed to capture what was the central element of the Holocaust, which is it was aimed to eliminate a people, the Jewish people. That is what genocide tries to capture is the committing crimes against a population with the intent to destroy that population. It turns out that because of the way it's defined, it's a very difficult crime to prove and to prosecute.

Podcast Host (possibly Martin DeCaro) (36:12)

Narrowly defined in the UN Convention.

Alex Whiting (International Law Expert) (36:15)

Exactly. It's narrowly defined. The tribunals have taken the UN Convention definition. But there have been successful genocide prosecutions at the Yugoslavia Tribunal for Srebrenica and of course the Rwanda genocide of 1994. Many defendants have been prosecuted for genocide and for participating in that. I want to come back to something. I want to come back to two things about Nuremberg. The first is about the ex post facto criticism and about the law. You know, this is the first time and they weren't on notice and so forth.

Podcast Host (possibly Martin DeCaro) (36:49)

How can you prosecute us for mass murder? That can't possibly be.

Alex Whiting (International Law Expert) (36:53)

You're getting right to what I wanted to say, which is, you know, the ex post facto, that principle is to. To prevent people from being prosecuted for crimes that they didn't know was a crime. Right. And it's hard to shed many tears here or to think that an injustice was done because of course, what the Nazis did, there's no doubt about the criminality of that. The objection was precisely which crimes and which forum and how those crimes were defined. So it's hard to feel like a fundamental injustice was done there.

Podcast Host (possibly Martin DeCaro) (37:29)

Because as important as Nuremberg was and is today, the way that international law was written, influenced by the powerful states when it comes to things like either aggressive war or crimes against humanity, against individual people or groups, nations, which is genocide. Weren't these laws all crafted? Maybe not all, but with the most powerful nations in mind, Meaning they wanted to have leeway to use violence, massive amounts of violence if necessary, to defend themselves as nation states, or to say, put down revolts or insurrections or insurgencies.

Alex Whiting (International Law Expert) (38:07)

Yeah. So of course, the laws against aggressive war still of course, allow you to defend yourself against a war that's lawful. But this other point, the central point of what you're asking about, I think, is what about internal conflicts? Nuremberg is about states fighting each other and the crime of aggression of one state attacking another state. What about internally states committing crimes against their own people? Well, that is something that was developed in the modern tribunals. It's embedded in the notion of crimes against humanity. The idea of crimes against humanity is crimes committed against civilians. And the modern tribunals moved that into the internal space, internal conflicts, and began to apply that law to internal armed conflicts, civil wars, states committing crimes against their populations, conflicts, civil wars, where these kinds of crimes were committed. So that was breached in the modern tribunals and the laws of war, crimes against humanity, genocide, now apply to conflicts that are between states and conflicts which occur entirely within a state.

Podcast Host (possibly Martin DeCaro) (39:18)

What about the issue of a depoliticized definition of crimes against humanity. So, for instance, in the Soviet Union, getting rid of a class enemy, that's not covered under the law explicitly. I mean, you're the lawyer here. You would know. I mean, this is something that Dirk Moses has pointed out, that genocide is so narrow because it was depoliticized and some would argue would allow Israel to retaliate against Hamas in Gaza to the extent that it has. Again, I don't agree with that, but I guess that's what Dirk Moses refers to as permanent security.

Alex Whiting (International Law Expert) (39:52)

That's right. With respect to the crime of genocide, it's very narrowly defined in terms of which groups are protected, and it doesn't apply to crimes that are committed against political groups, for example. However, crimes against humanity is more broadly defined, and that covers any widespread or systematic crimes committed against a civilian population. You do not need to further define that civilian population. So, for example, Roberto Duterte, the former president of the Philippines, is in detention in the Hague at the International Criminal Court for extrajudicial killings of suspected drug dealers and drug users. They are obviously not a protected class under the Genocide Convention, but they're protected as civilians under the crimes against humanity. So crimes against humanity sometimes doesn't get enough attention. It is a powerful, important crime which is much broader in application and genocide and covers many of the kinds of crimes that we see going on around.

Podcast Host (possibly Martin DeCaro) (40:56)

The world today that we would equate with genocide. Yeah, I mean, there should be no hierarchy here. All these crimes are equally horrendous.

Alex Whiting (International Law Expert) (41:03)

Right.

Podcast Host (possibly Martin DeCaro) (41:03)

So, I'm sorry.

Alex Whiting (International Law Expert) (41:04)

That's right.

Podcast Host (possibly Martin DeCaro) (41:04)

I'm being a little imprecise with my language, but the ICC indictment of Netanyahu and his defense minister don't use genocide, but they do say crimes against humanity.

Alex Whiting (International Law Expert) (41:13)

That's right. So there is no hierarchy of crimes, politically, and in the public thinking there is. People think that genocide is the most supreme crime. And there are victim groups that feel cheated if the crimes committed against them is not designated as a genocide. That, I think, is an unfortunate development, unfortunate error, and it crimes against humanity should be considered as serious as genocide.

Podcast Host (possibly Martin DeCaro) (41:43)

The legacy of Nuremberg. What is it then? Today, based on everything we've just been discussing, it seems it is very much a mixed bag.

Alex Whiting (International Law Expert) (41:51)

Nuremberg is a really important precedent. And in 1993, when we started to have images of crimes being committed in the war in Bosnia, detention camps, bombings, stories of rapes and massacres, the precedent that everyone went back to is Nuremberg. If you look at the Security Council debate that established the first international Tribunal since Nuremberg, the Yugoslavia tribunal, everybody is talking about Nuremberg. We have to do as we did in Nuremberg. The president of Nuremberg still lives 50 years later. Same thing with the Russian invasion of Ukraine. Citing back as we talked about to the Nuremberg precedent. So these trials, sometimes people think, well, what is the like they have no impact, they're episodic, they're too rare, too few. But each one has precedent that victims look back to those and cite those and it has a force going forward. So. So Nuremberg has an enduring legacy as a precedent. It is at the foundation of the new tribunals. And these new tribunals are creating new precedents, which I think even though we're in a low moment right now for international law, we're going to return to international law and international institutions and these will be the precedents and institutions for the future.

Podcast Host (possibly Martin DeCaro) (43:19)

Well, what's the alternative? Chaos. It's easy to denigrate the rules based order post1945 or post1991 because of how often it was violated by the United States included. But the story's not entirely negative. Alex Deval made this point to me. He said, yes, the United States, other countries violated the rules based order, but they still acknowledged that the order existed. So yes, there are these rules, but we're going to carve out an exception to these rules because we have to invade Saddam Hussein's Iraq in 2003. Whereas today, with what Daval calls global mafia politics, it's we're making up the rules. There are no rules. It's whatever we say on this particular Tuesday or Wednesday. So we're going into Venezuela to card off Maduro or Putin is going to evade Ukraine and what's an obvious war of aggression, totally unjustified. Right. But the alternative, I know this is kind of a long point, I'm sorry, Alex, but the alternative is what? Total chaos. So I guess what I'm saying is, because we haven't been upholding international law, that is not a reason to continue to fail on that front. One day we need to aspire to see Putin and Medvedev and all the others in the dock somewhere.

Alex Whiting (International Law Expert) (44:34)

I couldn't agree with you more that the alternative is not sustainable. An absence of law internationally is not sustainable. And I think the world will soon return to recognizing that. The challenges we face as a planet today, whether it's climate, immigration, economic AI, are things that require international solutions and international approaches. And we will have to if we do not want to destroy the world, either through war or climate disaster. We're going to have to return to international approaches, international law, international institutions. Part of that, I hope, will include international accountability.

Podcast Host (possibly Martin DeCaro) (45:17)

Yeah. Instead of spheres of influence, spheres of cooperation.

Alex Whiting (International Law Expert) (45:22)

Correct.

Narrator/Actor reading trial transcripts (45:23)

That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant, significant tributes that power has ever paid to reason. This tribunal, while it is novel and experimental, is not the product of abstract speculation, nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 15 more, to utilize international law.

Podcast Host (possibly Martin DeCaro) (46:28)

On the Next Episode of History as It Happens, Xi Jinping is purging the Chinese military of its top driver generals. China has not fought a war since 1979. How can anyone be sure it's capable of fighting a war today? That's next. As we report History as It Happens, make sure to sign up for my free newsletter. Just go to Substack and search for History As It Happens.

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