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The Present “Nuremberg” Precedent and Absent “Tokyo” Precedent

The USG and other international actors cited various aspects of “Nuremberg” as precedents during the process of establishing the ICTY. The USG invoked the 1943 Allied War Crimes Commission that preceded the IMT as a basis for creating the CoE that preceded the ICTY. The USG also pointed to the IMT as a precedent for establishing—and model for designing—the ICTY. Finally, the USG referenced the principles the IMT established as principles guiding the creation and operation of the ICTY.

The process of establishing the IMT appeared critical to the process of establishing a transitional justice institution for the FRY. U.S./DoS talking points reflected a belief that the sequence of events leading to the IMT, in which an investigatory commission was first established, offered “the best means to justice” in the FRY.221

The USG consciously modeled the CoE largely on the 1943 commission. Two internal U.S./DoS memoranda each twice refer to “the 1943 War Crimes

Commission” as a model on which a war crimes commission for the FRY could be based.222 Another U.S./DoS memorandum notes that the creation of a UN War Crimes Commission on Yugoslavia “would follow the Nuremberg precedent,” where a war crimes commission in 1943 was created “to receive and collate information pertaining to war crimes allegations” and led to the 1945 decision to establish the IMT and other tribunals.223 U.S./DoS talking points from September 15, 1992, echo this sentiment.224

Yet another U.S./DoS memorandum, which first provides background information on the 1943 commission, declares that “[s]everal aspects of the Commission’s work are most relevant to the commission [for the FRY] now proposed.”225 The memorandum proceeds by listing four such considerations. The first concerns the scope of each commission:

although the 1943 Commission focused on gathering information, it also made recommendations on policy questions. For example, it recommended that “crimes against humanity” (i.e., acts that arguably did not violate the laws of war as understood at that time) be described as a separate war crime; for the proposed Commission, a possible comparable question is whether “ethnic cleansing” is an independent war crime. The Commission now proposed should have comparable breadth.226

The second matter related to limits on that authority: “the participating governments retained decisionmaking authority on all policy questions, including individual prosecutions, nature of tribunals, and definitions of war crimes. For the [CoE] now proposed, the [UNSC] might be appointed to play this role. In any event, the [CoE] itself should not have decisionmaking authority.”227 On this point and to delineate further the CoE’s powers, the memorandum added: “The [CoE] should not serve as a prosecutor. Decisions about whom to prosecute, and in what forum, should be made by the [UNSC].”228 The third issue concerned the CoE’s ability to determine the jurisdictional scope of a potential follow-up tribunal over certain defendants:

like the 1943 Commission, the proposed Commission should have the latitude to recommend whether an international tribunal is appropriate for every defendant. In keeping with previous declarations by the [UN], only twenty-two defendants—those whose war crimes had no “particular geographic location”—were tried before the [IMT], twenty-five before the [IMTFE]. The remainder were tried under the auspices of the states concerned (i.e., those with custody of the defendant or in whose territory the alleged war crime occurred).229

The fourth matter related to the investigatory scope of the CoE:

the 1943 Commission was primarily a clearinghouse for information provided by the governments concerned. The proposed Commission, conversely, should have authority to conduct independent investigations and resources adequate to that task. Allegations received by the 1943 Commission had often been investigated and evaluated by experts in the participating governments before the Commission received them. No comparable process has occurred with regard to war crimes violations in the [FRY].230

The IMT itself then served as a critical precedent to the ICTY. The USG prepared talking points to answer affirmatively the question of whether the Nuremberg trials were a “useful precedent” to a transitional justice institution for the FRY.231 The USG even referred to what would become the ICTY as a “second Nuremberg.”232

The USG publicly reinforced the importance of the IMT precedent in two senses. The IMT episode provided a rationale for pursuing transitional justice for the FRY in the first place. The precedent also shaped the USG’s rationale for the type of transitional justice it pursued for the FRY. The USG cited the general principles embodied in the IMT as a helpful model for the transitional justice institution for the FRY. According to U.S./DoS talking points, “the basic lessons of Nuremberg—deterrence and individual responsibility—should guide us today.”233 The USG also cited “the Nuremberg principles” for requiring atrocity perpetrators in the FRY to be punished.234 In a separate set of talking points, the USG noted the IMT’s categories of crimes when describing the subject-matter jurisdiction an ICT for the FRY could claim.235

The strong reference in these USG talking points to the “Nuremberg” precedent is somewhat puzzling, given that precedent’s problematic history. For example, even though the 1943 Commission was widely regarded as a “failure,”236 USG officials still embraced it as the model—in structure, function, and name—for the CoE established in 1992.

Finally, even though the USG cited the “Nuremberg” precedent in its arguments to create the ICTY, the USG also cited the “Nuremberg” precedent in its arguments not to create other ICTs. For example, as discussed above, the USG referenced the IMT’s prosecution of “only” twenty-two defendants as a reason that domestic prosecution should be the default transitional justice option for handling alleged Iraqi atrocity perpetrators.237

Although the USG cited multiple institutional and procedural elements of “Nuremberg” to justify certain decisions regarding the FRY, “Tokyo” is conspicuously absent from its analogical reasoning with respect to the FRY.238 Various explanations might resolve this oversight paradox. First, “Nuremberg” is often used as shorthand to refer to the negotiations leading to, the operation of, the results from, and other developments surrounding both the IMT and the IMTFE.239

Second, USG officials intentionally may have neglected to mention the IMTFE because they felt that the IMT was a more successful institution. If so, pragmatism would suggest coupling the transitional justice institution for the FRY with a more positive historical example than one that provoked mixed feelings. Scharf recalls this sentiment as the reason “Tokyo” was not invoked in the course of creating the ICTY. Recalling that the UNGA adopted the Nuremberg principles in 1946,240 that the IMT’s verdict achieved greater consensus than that of the IMTFE, and that the creation of the IMT was a collaborative effort (compared to the IMTFE, which was created by MacArthur’s “executive fiat”), Scharf maintains that “history was never all that excited about the Tokyo experience. So, it was Nuremberg we looked to and not Tokyo. We had read up on Tokyo and used it as an example of what not to do.”241 Scharf’s perspective contradicts the previous explanation of using “Nuremberg” to refer to both the IMT and the IMTFE, as those who shared Scharf’s view did, in fact, deliberately attempt to differentiate the two tribunals.

Third, the IMT, like the ICTY, was a truly pathbreaking institution, on which the sister tribunal created shortly thereafter (in the case of the IMT, the IMTFE, and in the case of the ICTY, the ICTR) was modeled. Consequently, the IMT experience could properly be thought of as the fundamental guide on which the ICTY could be based, just as the IMTFE was. To that end, the IMT was the more famous, novel institution,242 and citing to it was done for that reason (without necessarily any criticism of the IMTFE).

Finally, USG officials may have deliberately focused on the IMT rather than the IMTFE for geographic reasons: the IMT operated and responded to atrocities perpetrated in Europe, just as the ICTY would. The USG might have thought that mentioning the IMTFE was irrelevant or at least peripheral.

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