The National Catholic Review
Robert F. Drinan

The trial of Slobodan Milosevic dramatizes the new worldwide demand for accountability for public officials who violate internationally recognized human rights. That demand is behind the international court, and may soon be ratified by enough votes to make it operational worldwide.

These momentous events make The Memory, by a professor at Amherst College (in the department of law, jurisprudence and social thought), not only topical but indeed urgent. Lawrence Douglas reviews the trials at Nuremberg, the proceedings against Adolf Eichmann in Israel, the charges brought against Claus Barbie in France, the torturous legal charges against John Demjanjuk and the indictment in Canada against Ernst Zundel, who denied that the Holocaust ever happened.

Even readers familiar with these events will find Douglas’s account filled with new and intriguing details. His interest is not only to review the jurisprudence of these legal proceedings but to speculate on the lessons taught by these world events. The author is not always clear or precise on the didactic impact of the trials he describes. But he emphasizes the pedagogic effects of his five cases with unusual force. He traces the history of the invention of genocide and crimes against humanity, and how these ghastly evils became operational in the cases described.

The amazing range of information about crimes against humanity in this book illustrates vividly the abiding moral power of the six million deaths in the Holocaust. But, more important, it points up the acute relevance of the work of forensic teams that today search the rugged countryside of Kosovo for evidence of atrocities. The trials described by Douglas furnish us with the background and facts that can provide the foundation for a new world in which accountability for crimes done by public officials will be certain and, one hopes, swift.

Americans will remember the ordeal of John Demjanjuk who, having been taken to Israel for alleged collaboration with the Nazis in evil deeds, had his convictions by a trial court reversed in 1993 by the Supreme Court of Israel. The 400-page opinion is arid and technical, but it refutes the contentions of the opponents of the International Criminal Commission that no foreign tribunal will give fairness to an American.

In 1985 courts in Toronto, Canada, tried Ernst Zundel for his participation in the publication of Did Six Million Really Die? Using a law enacted in 1970 criminalizing hate crimes, the Crown indicted Zundel for publicly denying the Holocaust. The Supreme Court of Canada ultimately exonerated Zundel, ruling that he issued a false but honestly held belief. The decision may have been predictable, but now the scurrilous and false document Did Six Million Really Die? is available on the Internet and is preceded by the statement that the concepts expressed in this document are protected by the basic human right of freedom of speech.

The United States and the Allied powers, victors in World War II, prosecuted the vanquished at Nuremberg and in Tokyo. A permanent Nuremberg, with universal jurisdiction, should have been created in the early 1950’s. But the Soviets had seized Eastern Europe, and in 1949 China fell to the Communistskilling the very idea of a world court. Its rebirth came in June 1998 as the International Criminal Commission was adopted in Romealas without the vote of the United States.

The trials described by Professor Douglas reveal some of the reasons why the world is eager, almost desperate, to have a global tribunal in which crimes against humanity done in the 190 nations on the planet could be prosecuted by a world judicial body deemed to be fair.

In the next few years the United States will be the key player in developing the concept of imposing accountability on those world leaders who violate the internationally recognized human rights of their citizens. Some 20 nations have in the recent past initiated units or tribunals comparable to the Commission of Reconciliation in South Africa. These entities have been praiseworthy but are not satisfactory for a global tribunal.

The United States walked out of the International Criminal Commission in Rome in June 1998. But President Clinton signed the treaty just before leaving office. The International Criminal Commission seeks to create for the world a single tribunal that avoids the limitations of the proceedings in Nuremberg and the ad hoc tribunals created in several places since that time.

If the United States continues to boycott the International Criminal Commission, the global desire for a permanent Nuremberg may end with disappointment everywhere.

Those who want the United States to fulfill its noble role in helping to create a world court to inhibit and punish the worst malefactors on the planet should ponder the lessons and wisdom in Professor Douglas’s valuable book.

Robert F. Drinan, S.J., is a professor at Georgetown University Law Center. His latest book is The Mobilization of Shame: A World View of Human Rights (Yale University Press).