Statement by Judge David Re

I must first recognise CILRAP’s remarkable contribution to international legal scholarship and once again congratulate Professor Morten Bergsmo for his impressive organisational skills in bringing this outstanding project together. I feel honoured and privileged to have been asked to participate in this unique and historical event. The level of scholarship and its reach is exceptional. Bringing together scholars from all over the world – and most particularly from Asia – in this manner is a momentous achievement. Congratulations to everyone involved and thank you to the co-sponsors of today’s event.

We must recognise – as the authors in these two publications teach us – that everything in international criminal law has an historical basis. And, going back to 1945, we can say that, “in the beginning there was Nuremberg”. Necessity, in the absence of any precedent, was the mother of invention.

And now that you’ve been lured in here by the title of “evolutionary, revolutionary or something more sinister” of my chapter in Volume 4, I will explain the three themes in their historical context and why the structures, procedural rules and practices of the Nuremberg and Tokyo Tribunals continue to heavily influence international criminal law today. The answer to whether it is “evolutionary, revolutionary or something more sinister”, it appears, is a mixture of the three.

It has been often said – and even by distinguished commentators – that there were no Rules at Nuremberg. The judges, it is said, made it all up as they went along – and it was all documents anyway. (Nuremberg, let us not forget, had only had 33 witnesses called to the courtroom.) Well, how wrong were they? The London Charter actually had 11 substantive rules with 35 sub-sections. Its judge-made rules had 9 rules divided into 20 sub-sections.

And, remarkably the core of the structures, the procedures and the crimes at Nuremberg and Tokyo continues in a modified form in modern international courts and tribunals. Some significant structures, rules and practices developed at Nuremberg and Tokyo have inspired key international criminal procedural law rules. What has survived?

• The most basic aspects of an adversarial trial;
• mixed panels of international judges;
• an independent investigating prosecutor – as part of the court structure; and
• inclusionary rather than exclusionary rules for admitting evidence.7

There are also other less fundamental practices and principles which persist:

• a heavy reliance on documents (in some cases) including affidavit type witness testimony;
• indictments that do not contain evidence;
• pleas of guilty;
• judicial notice of adjudicated facts – a wider form of res judicata spilling over into other cases;
• pre-trial motions;
• the order of calling evidence at proceedings;
• full pre-trial disclosure of prosecution evidence; and
• allowing defendants both to testify in their own case and give unsworn statements.

Others, such as challenges to jurisdiction, emerged from the 1940s practices rather than the rules. Another category of practices adopted by some modern international courts and tribunals but not others is, for example, judicial rule-making (by all bar the ICC where it exists in a modified form in the Regulations of the Court). And even with the intervention of international human rights law, similar procedural regimes continue in modern international criminal trials.

In 1945, procedurally, the Allies were united in their desire to conduct a rapid trial with procedures favouring an inclusionary approach to admitting evidence. They wanted documents, not witnesses, to decide the result. Consequently, they adopted a hybrid combining features of both the common law and civil law systems. The Rules were fundamentally derived from the American military commissions invented to try non-enemy combatant Nazi saboteurs who had landed in the United States – to ensure that the common law evidentiary exclusionary rules applicable in civilian trials and courts-martials – did not apply. These came from a Presidential executive order (this was upheld in the US Supreme Court in ex parte Quirin in 1942).

The Americans proposed to their post-war Allies (the Soviet Union, France and the United Kindom) using these same rules – and they were accepted. The International Military Tribunal for the Far East in Tokyo adopted virtually the same procedural and structural route. And, for transparency, judges and prosecutors from each Ally had to be part of the Tribunal. And they had to work together in an international environment.

Moving forward some fifty years, the ICTY in 1993 and 1994 (and then the ICTR) adopted very similar rules and structures.

But why? The best explanation for the ICTY and then the ICTR, the SCSL, the STL and, to a large extent, the ICC keeping the Nuremberg evidentiary procedures – inclusionary rules, not bound by technical rules, the evidence having to be relevant and probative, hearsay being admissible etc. – is cost, pragmatism and precedent.

Lawyers (and diplomats) naturally lean towards the known rather than the unfamiliar. International criminal proceedings – involving multiple international actors – require hybrid structures and procedures. Nuremberg was a known precedent.

The procedures also contained a built-in transparency, resulting from needing a public showing of both the evidence and the prosecution case of each Nuremberg Ally.

Transparency is the bedrock of international trials. International trials may involve devolved sovereignty and confidence is needed in this process of devolution. Procedural transparency can build such confidence. This helps to overcome the mutual mistrust and suspicion – a less polite way of referring to mutually assured transparency – existing between Soviet Union and the other three Allies – and continues to exist.

So, evolutionary, revolutionary, or something more sinister? The answer combines the three themes. As the first international criminal trial, the Nuremberg IMT was revolutionary.

Evolutionary? The structures and procedures have morphed into those used by the modern international criminal courts and tribunals. A network of institutions has emerged and expanded and evolved to encompass the international human rights law guarantees. Other features include the role of victims and witnesses, sophisticated state co-operation regimes and sentencing regimes.

And sinister? Well, due to the motivations in constructing the original court processes – a rapid, documentary trial of the defeated enemy, but with the appearance of fairness – it was understandably somewhat sinister. The Nuremberg negotiations reveal a strong desire to buttress the prosecution and to suppress defence rights. To restrict the defence’s capacity to challenge the prosecution’s case, they had to dispense with any “technical” rules of evidence. They wanted to use the Nazi documents against the defendants but without oral evidence. The procedures were accordingly designed. But, at the same time, the trial had to appear fair.

But this convergence of mistrust and common interest demanded public transparency in the procedures of any resulting international criminal tribunal.

The conflict though was less about legal cultures – between the civil law and common law traditions, or even between authoritarian and more democratic regimes – than about the appearance of justice. The US negotiating proposals of April 1945 for the London negotiating drafts compromised into the Nuremberg IMT procedures and rules. And then – by the 1993 accident of history of a tribunal in search of a structural form and procedures – they mutated into a legal hybrid that has more or less survived today in the modern international criminal courts and tribunals.

This same theme could also be applied to the Centre for International Law Research and Policy’s project. Like Nuremberg it is the first and hence has the honour of being revolutionary. Evolutionary? Indeed – four volumes have evolved and undoubtedly others will follow CILRAP’s lead – particularly, I hope, in Asia.

But sinister? Well, only if you oppose casting sunlight onto the past, from which we can learn so much, to explain where we are today. But I know that none of you here today would do that.