War crimes in the Ukraine – for whom the bell tolls

July 19, 2022 Roger Bennet Adler, Esq.
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Roger Adler, the former President of the Brooklyn Bar Association, the Kings County Criminal Bar Association, and Chair of the New York State Bar Association Criminal Justice Section.
Photo courtesy of Roger Bennet Adler

The documented brutality of Nazi Germany and the Japanese Empire prompted the coalition of World War II allies to conduct war crimes trials after both Germany and Japan unconditionally surrendered. The plans for such war tribunals emerged at around the time of the “Big 3” meeting at Potsdam. They marked – and were perceived to be – a fresh and legally appropriate approach to the identification and appropriate prosecution of atrocities committed against both allied military servicemen, and innocent civilians.

This included, but was not limited to, the prosecution of unjust wars, the “Rape of Nanking,” China, the cruel Bataan Death March following the fall of Corregidor in the Philippines and the establishment of concentration camps where some six million Jews were cruelly exterminated. Rather than resort to military tribunals (or summary hearings), followed by death by firing squad (or hanging), the war crimes courtroom was conceived as the civilized response most likely to address depraved and willful behavior occurring during World War II. Merely following the orders of superiors was no longer a legal defense.

Many Americans are unaware that, following the American Civil War, there were military trials of a number of Confederates for war crimes. Thus, Henry Wirz, who commanded the Andersonville Prison, was tried in connection with the deaths of nearly 13,000 Union soldiers from malnutrition, disease and exposure. He was hanged in November, 1865.

Champ Ferguson was an east Tennessee farmer who was convicted of killing fifty captured Union soldiers, and hanged in October, 1865. Robert Kennedy, a Confederate officer, committed arson during a New York City mission, and was tried before a military tribunal and hanged in March, 1865.

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The trials of prominent Nazi military and governmental officials and supporters at Nuremberg, Germany, and Tokyo, Japan, prosecuted by U.S. Associate Supreme Court Justice Robert Jackson (and assisted by Telford Taylor), were both historically significant, and riveting events, creating a historical record of the willfully performed crimes perpetrated by those who had “crossed the line” separating humanity from barbarism. Who can forget the riveting Stanley Kramer film “Judgment at Nuremberg,” starring Spencer Tracy as the American jurist on the war crimes tribunal, Burt Lancaster as the German Judge on trial, or Maximilian Schell as his defense attorney?

The Nuremberg war crimes trial led to the 1950 codification by the U.N. of the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal:

  1. Any person who commits an act which constitutes a crime under international law is responsible and therefore liable to punishment.
  2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
  3. The fact that a person who committed an act which constitutes a crime under international law, acted as head of state or responsible government official, does not relieve him from responsibility under international law.
  4. The fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
  5. Any person charged with a crime under international law has the right to a fair trial on the facts and law.
  6. The crimes hereinafter set out are punishable as crimes under international law: (a) crimes against peace, (b) war crimes and (c) crimes against humanity
  7. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

Decades later, these crimes were followed by war crimes trials in Kosovo in the Balkans, and later in Cambodia in southeast Asia, under the auspices of the United Nations. In 2006, Brooklyn Heights resident and former Criminal Court and Associate Justice of the New York State Supreme Court Martin G. Karopkin was appointed as an International Judge with the tribunal designated to try the crimes committed by the Khmer Rouge in the period from April 1975 to January 1979. The court, known as the “Extraordinary Chambers of the Courts of Cambodia” (ECCC) is a Cambodian Court with international participation through the United Nations. From 2006 to 2008, Judge Karopkin made multiple trips to Cambodia to help craft the rules and procedures which guided the court.

In 2014 Judge Karopkin traveled to Cambodia to serve as a Trial Chamber reserve judge in the case against two of the main leaders of the Khmer Rouge regime. The verdict in that trial was issued in 2019.

Civil War Union Army General William Tecumseh Sherman tellingly observed “War is hell.” While that is unquestionably true, there are limits to military actions. The current Kiev-based war crimes trials send a powerful message to the Russian military – there are civilized boundaries even in war, and, if knowingly crossed and credible, will result in a seat in the dock with significant sentences. A proffered guilty plea does not obviate independent fact finding under civil law.

Recent developments

Media reports earlier in June indicated that U.S. Attorney General Merrick Garland flew to the Ukraine to confer with Ukrainian prosecutor General Iryna Venediktova to assist the Ukrainian government in (a) identifying, (b) apprehending, and (c) prosecuting individuals involved in war crimes. Attorney General Garland’s unprecedented focus on the issue of war crimes prior to the cessation of military action (and an armistice) underscore the United States’ continued commitment to the Rule of Law, and is consistent with the United States’ leadership in prosecuting war criminals, dating back to the Nuremberg and Tokyo war crimes trials involving a clear “war of aggression.”

It is not clear how high the prosecution will ascend the Russian military and governmental ladder, or how the prosecution of war crimes will proceed. However, to the extent that Serbian leader Slobodan Milosevic found himself a defendant in the Kosovo war crimes trials, this prosecution sent a clear, and unmistakable message to Russian President Vladimir Putin that, to paraphrase President Harry S. Truman, the war crimes buck stops with him.

The Justice Department’s announced launch of a “War Crimes Accountability Team,” led by former Department of Justice Director of Special Investigations Eli Rosenbaum, Esq., buttresses the perception that U.S. concerns about Russian war crimes constitutes a willingness by the U.S. Government to take a decidedly more activist approach which will hopefully have a deterrent effect on the Russian military and the tactics it employs.

Only time will tell if this will exercise a deterrent impact over the invading Russian military. To ignore it has marked Russia, like Hitler’s Germany, as an “outlaw nation” favoring civilian intimidation over civilized norms. For Russian President Vladimir Putin, only time will tell if he is destined for his seat in a 21 st century Nuremberg-like war crimes trial dock. That President Putin has orchestrated war crimes trials in retaliation, targeting alleged Ukrainian mercenaries, is only the most recent iteration of the use of war crimes trials for general deterrence.

It is vital that we put the lie to Joseph Goebbels’ cynical observation: the world does not recall the massacre of the Armenians by the Turks. Never again!

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