A New Nuremberg?

The following essay is based on presentations given recently at the University of Michigan, Harvard Law School and the Fletcher School of Law and Diplomacy. While most citations have been removed for publication here, the author gratefully acknowledges the work of Mark Osiel, whose article, "Ever Again: Legal Remembrance of Administrative Massacre," 144 University of Pennsylvania Law Review 463 (1995), inspired much of the analysis here On May 25, 1993, acting under the same powers it had used to authorize the Gulf War, the United Nations Security Council established the first international war crimes tribunal since post World War II trials at Nuremberg and Tokyo. This "independent" international tribunal, with jurisdiction to prosecute persons responsible for grave violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, was soon followed by a similar one for recent atrocities in Rwanda. In both cases the decision to bypass the arduous and probably inconclusive path of attempting to negotiate a multilateral treaty in favor of acting by Council fiat was taken on the ground of "necessity," namely, the fear that any other alternative would have taken such a long time that any hope of convicting the guilty would have perished along with the evidence of their crimes.