Preventive International Criminal Justice Crimes against Humanity Revisited
At the time of the Eichmann Trial, where my father Gideon Hausner was the chief prosecutor, I was exactly 11 years old.
The impressions I had then are completely different from the impression I have now, of which I am going to talk to you today.
In 1961, when the trial has just started, the world looked a better place than 2 decades before that. It seemed that a phenomenon like the holocaust may never happen again. At that time the world nations were unified and passed international conventions against genocide, and countries were passing laws against denial of the holocaust. Everybody realized and recognized that something horrible of this sort may never take place again. So we thought.
At that time, the most important part of the trial was to punish for what was performed, and to make the entire world realize what crimes against humanity really were, as was presented in the trial. Some people complained after the end of the trial: Why did you have to bring witnesses from all the areas where the Nazis had committed their crimes? Yes, it was important. Because where the act of genocide is the issue, it is important not only to prove that just one person or even several people were killed. It was important that each and every one of the victims – to the best of our ability – would be represented in this trial. This was the most important part of this trial: the evidence, listening to these people: the live evidence of the survivors. And at that time, there was only one verdict, only one judgment, only one sentence possible.
After the trial ended we were all left with the conviction: that genocide is something intolerable, that crimes against humanity must never occur again.
But don't they? Sure they do. We all know that in Africa hundreds of thousands of Tutsi's were killed by the Hutus. We know that Pol Pot slaughtered millions of people in Cambodia, and we know that there occurred many other acts of genocide. So we can say from the 50 years perspective: the Eichmann trial was good as a lesson of the past, but where the lesson for the future is concerned, a lot of work still must be done. There are trials taking place even right now. We are talking for instance about the trial in Hague relating to the crimes committed in Srebrenica, and in the trials in Rwanda and Cambodia. Certainly, there are trials pending, but are they effective to deter other international criminals, who also have been actually committing in these decades inconceivable crimes against humanity? Are we doing our utmost for prevention? This is actually the jest of this lecture. Because it turned out, that international law was good enough as punitive law: to punish people. But it has never been implemented as preventive law, in order to prevent such crimes from happening.
In my opinion, this is the most important part of this well intent international law: prevention. This is the most important part of the international law that deals with "crimes against humanity" and this is exactly the portion of the law which has not implemented...
Now we get to the issue of the international law, and look what is going on today. We have a person such as the president of the Islamic Republic of Iran, who is committed, and has conspired with others, to commit such a crime. Actually, he is talking about his intent to destroy the state of Israel. In order to do that, he is gathering thousands, ten of thousands, of people in the squares of Teheran, and is lecturing to them: "Death to Israel", he shouts. He has conspired with his subordinates to make available such weapon of mass destruction in order to fulfill his desire to commit this crime against humanity, to commit this crime of genocide. Although he has not yet committed the crime of killing people, he has done a significant preparatory work towards it with others. This is all. But when we perceive the true aim of the international law to PREVENT crimes against humanity at large, certainly it encompasses someone who is actually developing – at this very moment – nuclear weapons, in order to perform such genocide, to perform a crime against humanity.
This is, in my opinion, exactly the stage where the international law should intervene. Not to wait until the crime against humanity has been committed already, because at that time there may not be "humanity" at all that we are trying to save.
We have come to the stage, when the preventive international law may be even more important – or even much more important – than the punitive international law, than the punishing international law...
As preventive international law is what we should be talking about. Do we know when such conspiracy has already occurred? Sure we do. This person for instance in Teheran is not making a secret of his intentions; and what a presumption is stronger in the criminal law, than that a person intends that the natural consequents of his activities shall occur. This is exactly what this person is doing right now, and it certainly falls within the preventive international law.
In their wording, the international conventions already speak about "conspiracy"; but have you ever heard about somebody been tried for "conspiracy to commit an international crime"- when the crime itself has not been committed yet? This has never happened. We only wait until thousands, hundreds of thousands, or even millions of people are already terminated, and only then the international law comes and intervenes. This is exactly, in my opinion, the wrong approach. The right approach – in my opinion – should be that the role of international law must come before the fact, not after it.
We see some activities of this nature already implemented against Iran in the form of sanctions. But such sanctions are of a completely different nature. They are of the form of international cooperation between some world nations, not in the framework of the international preventive justice, which I am talking about: preventive international justice, not a political coordination between nations that may or may not be effective, and it is not within the frame of the preventive criminal law.
This I bring to this important gathering, for all of us to consider, to talk about, and to see how important it is that this new policy of implementation of international law will actually take place...
I think that we should define the "international crime against humanity", and once again, in its preventive capacity, and to make it applicable also to those who have prepared the infrastructure for the commitment of such crimes against humanity and genocide, like in this example. We should prevent them from paving the ground for the commitment of these crimes.