Victor Klemperer's war diaries, I Shall Bear Witness, record the growing tide of horror faced by a Jewish German after Hitler came to power in 1933. Note that Klemperer regarded himself as a Jewish German, not a German Jew. He had fought in the front line during the Kaiser's war. He had married an "Aryan", who stuck with him. For a time, these facts postponed the application of some of the anti-Jewish laws. But gradually, between diary entries about dental problems, his wife's illnesses and his motor car comes seeping through the evil of Nazi rule. By the time the war came, he was treated little different from other Jews. By 1941 he was obliged to wear the "Jew's Star". This upset him so much, that he could not leave his house in daylight for weeks afterwards, such was the shame of being labelled.
The tale of Klemperer's extraordinary survival is arresting. But as one reads this story of a rather ordinary human being- a professor of French literature until his lost his post- one would have to be heartless not to be moved to a determination that those responsible for such wrongs (and the vortex of wickedness into which those who did not survive were gathered) should be brought to justice.
The Holocaust was a vital stimulus on humanity's journey to asserting and upholding international human rights and bringing those who oppress them before courts and tribunals. The first effort to do this occurred in the trials conducted by the victorious allies at Nuremberg and Tokyo, following the Second World War. At the time some legal theorists condemned those trials as the retrospective imposition of the victors' laws upon the vanquished, although such laws were not formally in force at the times of the crimes. The answer which the Nuremberg Tribunal gave to this complaint was that such wrongs were so obviously and grossly affronting to human right in every country that they were already part of international law.
The same challenge to the validity of the prosecution was raised in Israel when Adolf Eichmann was captured in Buenos Aires in April 1960 and smuggled out to Jerusalem. This was a serious breach of Argentina's sovereignty for which Israel later offered an apology. But instead of inflicting on Eichmann the kind of arbitrary execution that he and his like had inflicted on millions of people similar to Victor Klemperer, the Israeli government put him on trial. He got his day in court.
Eichmann's judge, Moshe Landau, rebuffed complaints that the proceedings were illegal based on the abduction, and lack of jurisdiction of the Israeli courts. To establish jurisdiction he relied on a 1950 law, passed by the Israeli Knesset, for the punishment of Nazis and Nazi collaborators. Eichmann's legal team took a challenge against his conviction and sentence of death to the Supreme Court of Israel. How, they asked, could a 1950 Israeli law give a court power over Eichmann's conduct outside Israel, indeed even before the State of Israel had been established? The Israeli Supreme Court held that it did not have to go behind the 1950 law which was binding on it. But some of the Israeli judges, at least, suggested that there was a deeper foundation, for Israel's power to try Eichmann. This was the answerability of such criminals to a law even higher than those of a nation state. They propounded the proposition that people who engage in the gravest breaches of international law could be tried anywhere in the world. This was so in crimes of "universal jurisdiction".
Since Nuremberg and Eichmann, courts in many countries have been exploring, and sometimes upholding, the claim of universal jurisdiction. It was on that basis that a Spanish magistrate sought extradition from Britain to Spain of General Pinochet for the crimes he had allegedly committed, not in Spain but in Chile. The House of Lords in London upheld as lawful the possibility that Pinochet could be extradited to Spain. In the end, the Home Secretary of Britain sent the old dictator back to Chile on grounds of age and illness. But for the first time in the highest court of Britain, words were expressed that suggested that English law too might, in some circumstances, uphold the idea of universal jurisdiction. One Law Lord said expressly that it would. Others seemed sympathetic to the notion.
In January 2001 a conference was held at Princeton University in the United States to explore the principles which could guide courts throughout the world in responding to invocations of universal jurisdiction. So far, without legislation, no top court of the English-speaking world has applied universal jurisdiction as a general principle of law. On the other hand, for many years, our legal tradition had accepted special rules to permit courts to exercise their jurisdiction over pirates and to protect slaves from their owners. A slave who could invoke the process of an English court has, for centuries, been entitled to secure orders for release, whatever the nationality of his master or of the ship on which the slave is found. The basic idea was that pirates and slave traders are enemies to all humanity. If their victims could invoke the powers of the courts of any civilised country, those courts could give relief.
In the aftermath of the Holocaust, and our knowledge of many other wrongs of genocide, crimes against humanity, war crimes and the like, an important question is now posed for the legal systems of the world. How do we bring alleged oppressors of such basic rules of civilisation to justice before an independent court that will observe fair procedures? This question must be answered by citizens, not just by lawyers.
In part, the answer to this question appears to lie in the future International Criminal Court and in the current tribunals that exist for the grave crimes done in the former Yugoslavia and Rwanda. Additional tribunals of the United Nations are now being established for Cambodia, Sierra Leone and East Timor. There is a growing conviction that the oppressors must not get away with their crimes but must be made to answer publicly.
Such tribunals will be part of the international response. However, their resources will always be confined. The challenge to humanity will always be much greater than specialised tribunals can respond. So it may prove necessary to decide whether courts of countries of refuge (such as Australia) will uphold the idea of universal jurisdiction. For some lawyers, this notion presents significant difficulties. Criminal law is normally enforced only in respect of wrongful acts done within the judge's own territory. Yet computer crime and crimes against humanity challenge this basic postulate. A judge might be tempted to conclude that he or she should not uphold jurisdiction over offences done in other countries, perhaps long ago. Judges are usually conscious of the comity that is observed between nations in such matters. If Pinochet can be arrested in Britain, could Mrs Thatcher be arrested whilst visiting a developing country, to answer allegations arising out of the Falklands War? Could Henry Kissinger be arrested and tried for his conduct of the Vietnam War? Is it appropriate for judges to uphold universal jurisdiction of this kind? Is it right for them, in effect, to apply international law in order to give answer to the pleas of victims and their families who demand a chance to prove, in an independent court, the terrible wrongs done to them?
Obviously, it would be better for national parliaments and the international community to develop clear rules and approaches that should be taken to render the rule of law effective against tyrants who are on the run or who are still too powerful to be prosecuted successfully at home.
The Princeton Conference concluded that, in a limited number of cases, international law is moving to accept the principle of universal jurisdiction in the case of crimes such as genocide, crimes against humanity, war crimes and crimes against UN personnel. Whether this movement will become part of Australian law remains for the future.
To those who think that Australia should simply pull up its drawbridge and disengage itself from such questions, the proponents of universal jurisdiction invite them to read of the terrors of Eichmann, the cruelty of Pinochet, the horrors of Pol Pot and others who have affronted human rights. They ask whether, as a nation, Australia should really wash its hands of such awfulness? Or are we involved simply because, as with the pirates and slave-owners of old, these are wrongs done against humanity everywhere?
At Nuremberg, the world changed. From 1946, no tyrant could assume, with certainty, that grave crimes against human rights would go unpunished simply because no court could be found with the power to bring the oppressors to book. The establishment of the International Criminal Court is one way to secure such accountability. But the more fundamental question is whether courts everywhere should respond, when their powers are invoked, so as to make accused oppressors answer to their victims.
Good people cannot read Holocaust stories- like Victor Klemperer's diaries- without feeling an overwhelming determination to render those accused of the gravest affronts to humanity accountable under conditions that ensure the victims a voice and the accused a trial before a competent, independent and impartial court. In this sense we have turned a corner. After Nuremberg, Eichmann and Pinochet, nothing would be quite the same again for the oppressors of fundamental rights.