Copyright (c) 2010 The John Marshall Law School
The John Marshall Law Review
ARTICLE: VICTOR'S JUSTICE: SELECTING "SITUATIONS" AT THE INTERNATIONAL CRIMINAL COURT
John Marshall Law Review
43 J. Marshall L. Rev. 535
William A. Schabas*
The great ruling of the International Military Tribunal (IMT), perhaps better known to non-specialists as the Nuremberg judgment, 1 has often been criticized as an exercise in "victor's justice." The charge has two somewhat different dimensions. First, procedural shortcomings in the trial and in the application of substantive norms, including a rather flexible approach to the rule against non-retroactivity of criminal law, are said to be the consequence of a conviction-oriented framework imposed by the four great powers that established the court. A very early ruling of the International Criminal Tribunal for the former Yugoslavia (ICTY) said that in devising their Rules of Procedure and Evidence, "the Judges were conscious of the need to avoid some of the flaws noted in the Nuremberg and Tokyo proceedings." 2 But it is unrealistic to assess trials in 1945 and 1946 by human rights standards that prevail six decades later, and that have evolved progressively. On balance, the proceedings certainly met the highest standards of the time on a procedural level. Many contemporary critics disliked the Nuremberg process because its flexible rules of evidence offended their own rather narrow vision of fairness. These had been conditioned by common law concepts about the admissibility of hearsay and similar issues. As for the retroactivity issue, although the nullum crimen sine lege norm is now presented as a more rigorous and absolute proposition than perhaps it was in the 1940s, no longer subject to limitation or derogation, as a practical matter even today's judges adopt ...
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