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International Criminal Justice 5.0

Written by  Harold Hongju Koh

The project of securing international criminal justice for the worst atrocities is approaching its seventieth birthday. At this milepost, it is worth looking back both on what international criminal justice has accomplished and what the United States has contributed to it. To use computer programming terminology, you may think of us as now experiencing what I call “International Criminal Justice 5.0.” Let me review the five phases of this historic global project, the role of the United States in advancing it, and the challenges that still loom ahead for international criminal justice and the United States.

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Let me begin with Nuremberg, what could be called the “beta testing” phase for International Criminal Justice 1.0. Nearly seventy years after the Nuremberg Trials, what seems most remarkable now is that they happened at all. Looking back, we sometimes think of trials—particularly the International Military Tribunal at Nuremberg and the subsequent U.S. Nuremberg proceedings—as the logical and inevitable response to Nazi atrocities. But at the Tehran Conference, Stalin reportedly suggested that World War II conclude with the summary execution of at least fifty thousand Germans. At Yalta, Churchill apparently “thought a list of the major war criminals . . . should be drawn up . . . [and] they should be shot once their identity is established.” Even Roosevelt’s Secretary of the Treasury, Henry Morgenthau, suggested that war criminals be summarily liquidated.