On August 15, as the Prime Minister trumpeted his promise of a ‘Transformed India’ from the ramparts of the Red Fort, the last stronghold of the Afghan government fell to the Taliban. The pullout of the American troops from Afghanistan marked an end to another of America’s ‘Forever Wars’. The blood and gore that followed the Taliban’s capture was a retelling of America’s invasion of Iraq
In 2003, America invaded Iraq to seize the ‘alleged weapons of mass destruction’. The toppling of the secularist dictator Saddam Hussein left a power vacuum that was utilized by sectarian power groups to create an empire of their own. In the battle that ensued, al Qaeda in Iraq (AQI), a local offshoot of al Qaeda, emerged victorious. The group became the infamous Islamic State of Iraq and Syria (ISIS).
ISIS had spurred terrorist attacks around the globe. This has led to a crackdown on the group by foreign armies and local groups who were stationed in the Middle East. Many of them are rounded up in the prisons of Syria, Iraq and Guantanamo Bay (Cuba). They have also spawned armed groups in Libya, Egypt and Philippines and inspired lone wolf attacks in Europe. The terrorists and their families who languish in the cells of Guantanamo and the refugee camps of Al-Hol (Syria) are characterized as ‘ticking time bombs’, using their respective bases to spread propaganda. The harsh treatment meted out by guards and the languid condition of the prisoners have also been engineered to induce others to fight for their cause.
The case of a terrorist proves to be a quandary; with the boundaries between a ‘lawful combatant’ (entitling them to ‘prisoner of war ‘status under Geneva Convention) and ‘unlawful combatant ‘blurred. Therefore, it is at the behest of the court to decide whether a captured person is a lawful combatant or not. In case the person is proved to be an unlawful combatant (s)he should be tried as a felon. And what better model to be followed for trial than the one set out in Nuremberg.
NUREMBERG-THE FORERUNNER OF WAR CRIME TRIALS
The Nuremberg trial spearheaded the development of the Rome Statute of 1998, the building block of ICC. The International Criminal Court (ICC) is the custodian of justice in cases of war crimes, crimes against humanity, genocide and crimes of aggression.
The Nuremberg charter led to the revamp of archaic clauses. The London Agreement of 1945, ratified by the four major allied power in World War II, acted as the springboard for the modern notion of “crimes against humanity”. The Martin’s Clause of 1899 and Joint Declaration of 1907 Hague Convention restricted the definition of ‘crimes against humanity’ to be committed only against enemy nationals. This interpretation was overhauled in Article 6(c) of the Nuremberg Charter that defined ‘crimes of humanity’ as “murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population” including “persecutions on racial or religious groups”. Further changes to it were made after the Tokyo trials and an enhanced approach is given under the Rome Statute. The Nuremberg trial succeeded in creating ripples beyond its sphere.
The regime of the Islamic State witnessed gruesome atrocities and gender-based violence committed on a mass scale against Yazidis and other minorities. With the alterations incorporated, ISIS criminals could be convicted. Besides, the use of chemical weapons by the Syrian President, Bashar -Al-Assad on his nationals, resonated an act of war crime. Human Rights lawyers have submitted war crime cases against Assad before ICC. Therefore, the heads of the state too are not immune to inviolable provisions laid down in Nuremberg.
State Sovereignty also suffered a setback in the aftermath of the trial. The trial precipitated the dilution of state boundaries and the unification of countries as an international community. Therefore, nations could interfere in the ‘former internal matters’ of the country under the auspices of an international authority. The Rohingya case brought before the ICC by Gambia is a perfect example of this. Stateless organizations, such as armed groups engaged in proxy wars such as the one in Libya and Yemen could also be held accountable for the glaring “crimes against humanity” committed in the region. Additionally, the impunity with which terrorist groups operated, under foreign backing also suffered a beating.
Nadia Murad, the Yazidi Nobel Peace Laurette, and her lawyer, Amal Clooney are out in a crusade to ensure justice to the victims hounded by ISIS. They demand an open trial of the ISIS militants parallel to Nuremberg. The Security Council approval of Resolution 2379 mandates an investigation into the crimes of ISIS.
Nuremberg trial is also way ahead of the times for its recording of court proceedings and reliance on video footage and audio clips as sources of evidence.
BEYOND THE TRIAL
Whether the foreign fighters should be repatriated to their home nations is open to question. Countries are contemplating whether accepting their ‘estranged’ citizens, puts public security in jeopardy. Recently, United Kingdom closed the door on Shamima Begum’s ( A former IS bride) plea to return home. A similar case turned upon the doorstep of Kerala High Court, where the mother of an IS widow, Nimisha Fathima, approached the court requesting the safe return of her daughter and grandchild home. The High Court sought the center’s response for repatriation.
Just as Europe opened its borders to asylum seekers who washed ashore, it should also provide refuge to those seeking justice. Lately, a German Court has set the precedent by convicting an ex-Syrian intelligence officer, who was complicit in the crimes against humanity. An IS member was also convicted in Germany.
Moreover, as nations recognize genocides and seek forgiveness for the crimes committed under their watch, justice should be dispensed to the victims in a trial that mirrors the Nuremberg. Even when truces enter into force and pacts are being signed to prevent war crimes, the fact that these atrocities show no sign of receding is telling. Harking back to its previous regime, the Taliban2.0 is perpetrating crimes against Shia Hazara minorities and women. Rape is being wielded as a tool of war in the camps of Eritrea and Israeli mortars are indiscriminately targeting Palestinian civilians. As crimes against humanity continue to be inflicted, the living legacy of Nuremberg trial is a silver lining.
Author’s Name: Neena Susan Babu (Banaras Hindu University)