Telford Taylor: Pioneer of International Criminal Law
Columbia Journal of Transnational Law: Inmemoriam
Nov. 1 1998
Telford Taylor (TT), gifted author, lawyer, prosecutor, professor, sportsman, musician, composer and visionary, will best be remembered as a far-sighted and courageous champion of universal human rights. He was a General whose primary concern was the preservation of peace. Nuremberg made plain that aggressive war was not a national right but an international crime. Principles of humanity that had slowly been evolving were articulated, codified and enforced. Taylor recognized that to avoid the aspersion that Nuremberg's legal prohibitions were intended only for Germans it would be necessary to create a permanent international criminal court.
Taylor had served under Justice Robert H. Jackson as one of the main prosecutors in the Nuremberg trial against Goering et al before the International Military Tribunal (IMT). Taylor found inspiration in Jackson's ringing opening statement:
We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well... The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated... *1 The IMT judgment, rejecting the contention that no sovereign had previously been charged with a crime against peace, held that aggression was "the supreme crime" and that leaders who conspired or planned aggression are accountable since crimes are committed by men, not by abstract entities. *2 When Jackson returned to the U.S. Supreme Court, Taylor was appointed Chief of Counsel for the twelve subsequent trials at Nuremberg under Control Council Law No.10, which clarified and improved the Charter of the IMT by, inter alia, making explicit that crimes against humanity could be punishable even if not related to war. Taylor's primary objective was to establish an incontestable record of Nazi criminality while reaffirming existing international law and moral standards on which the future of humankind depended. In a speech delivered (in French) in Paris in 1947, Taylor noted: "Judicial recognition of the long-established and universal conviction of civilized men that aggressive war is a crime is a milestone in the development of international law and a new foundation stone of civilization." He concluded:
It should not be beyond the resources of human ingenuity to establish an appropriate judicial mechanism for the prevention and punishment of crimes against humanity, even in time of peace...and if the nations of the world can establish a permanent jurisdiction for their punishment, based on practical, enforceable, and enlightened principles, we will indeed have reached a turning point in the history of international law.*3 When the Nuremberg trials were over, Taylor noted that the first and most important category of crimes condemned at Nuremberg was war-making itself. *4 TT always insisted that "The laws of war are not a one-way street." *5 The first assembly of the United Nations unanimously approved the principles of the Nuremberg Charter and Judgment and soon appointed committees to codify international criminal law and move toward creating a permanent international criminal court. But cold war antagonisms blocked significant progress. Nations sought to justify inaction by their professed inability to reach agreement on a definition of the crime of aggression - an obstacle that neither Justice Jackson nor Telford Taylor found insurmountable. While diplomats quibbled, sovereign nations returned to old habits: crimes against humanity and aggression raged throughout the world. And there were no trials to deter or punish the criminals. Taylor, a trained historian, sought to understand and write about Nazi aggressions and crimes and why decent people allowed such things to happen. *6 As a constitutional lawyer, TT upheld the American constitutional system against witch-hunts aimed at suspected "communist sympathizers" by Senator Joseph McCarthy and the "nationalist alignment". *7 He spoke out against the Soviet judicial system and traveled to the Soviet Union to seek the release of imprisoned dissidents.*8 He traveled to North Vietnam and sharply criticized his own government for having forgotten the lessons it tried to teach the rest of the world at Nuremberg. *9
Fortunately, Taylor lived long enough to see the creation of the first truly international criminal court since Nuremberg. In response to mass rapes of thousands of Muslim women, and public outrage of women all over the world, the United Nations Security Council created the International Criminal Tribunal for Crimes in former Yugoslavia to prosecute those responsible for genocide, crimes against humanity and massive war crimes *10 Its first Prosecutor, the respected South African Judge Richard Goldstone, visited the aging TT in New York as a sign of respect and admiration. Despite initial organizational difficulties, the ICTY, located in the Hague, is now a "vibrant, fully functioning judicial body." *11 It will be even more effective if it receives the full support of the Security Council to enforce its arrest warrants and mandates. A similar tribunal was created by the Security Council when half-a-million Tutsi fell victim to genocidal slaughter in Rwanda. *12 Both the ICTY and the International criminal Tribunal for Rwanda were important steps forward after Nuremberg but they did not go far enough.
A string of special courts created by the Security Council after the tragedies have occurred , with competence to try only a very restricted number of crimes committed during a limited time-frame, is hardly the best way to establish the universal justice envisaged by Justice Jackson or Telford Taylor. An agreed definition of aggression, the stated barrier to codifying crimes against the peace and security of mankind, was overcome by a consensus definition reached by the United Nations in 1974. *13 The long-delayed Code of Crimes and the statutes for an international criminal court were completed by 1996 *14 UN committees intensified their efforts to reach agreement on a permanent court. The high-point was reached at a Diplomatic Conference in Rome on July 17, 1998 when by an overwhelming vote, nations finally agreed to create the first permanent International Criminal Court (ICC) in history. TT, age 90, had passed away two months earlier.
The treaty creating the court must still be ratified by at least 60 nations before it can go into effect. Legal, administrative and procedural problems must still be overcome. The ICC will only have jurisdiction to prosecute after a number of conditions have been met and it is clear that the state of the accused' nationality is unable or unwilling to provide a fair trial. The IMT Charter crimes of aggression, crimes against humanity and war crimes, together with genocide, will be punishable by the ICC. But the most important crime - aggression - will not come with ICC's competence until a new definition is reached and the role of the Security Council in determining the aggressor is clarified. Those pre-conditions can only be met at a review conference scheduled for 7 years after the treaty goes into effect - whenever that may be.
The United States has been a strong supporter of the ICTY and the ICTR and both the President and the Secretary of State have spoken out in favor of an ICC. But other voices in the country, notably the Chairman of the Senate Foreign Relations Committee and voices from the Pentagon, have argued against the treaty as long as it contains any risk that an American soldier might be tried by the ICC for war crimes. It remains for the American public, and the legal community in particular, to let its views be known. The highest tribute we could pay to the memory of General Telford Taylor would be to sign the treaty and reassert the noble principles for which he and our government stood when the United States and its visionary representatives inspired the world at Nuremberg. *15
BENJAMIN B. FERENCZ
The author was hired by Telford Taylor in 1946 and became his Executive Counsel as well as the Chief Prosecutor in the Nuremberg trial against 23 SS Einsatzgruppen (extermination squad) members convicted of murdering over one million people. He was later Taylor's law partner in New York.
1- See TT Anatomy p. 167, 168; 1945, Jackson, quoting precepts going back to Grotius, reported to President Truman: "It is high time that we act on the juridical principle that aggressive war-making is illegal and criminal." See TT report 130.
2- See TT Report. p. 66, 145, 146.
3-Unpublished speech, "The Meaning of the Nuremberg Trials", Paris, 25 April, 1947. I am grateful to Drexel Sprecher for having provided me with the text. In his concluding argument in the trial against the I.G. Farben company, Taylor noted..."no voice is heard to say that aggression is not a crime. There is no longer any real doubt about the law against aggression..." (International Conciliation, April 1949. p.237).
4- TT Report p. 64, 66
5- Anatomy p. 641
6- Sword and Swastika - Generals and Nazis in the Third Reich (1952); The March of Conquest - The German Victories in Western Europe 1940 (1958); Munich - The Price of Peace (1979).
7- Grand Inquest - The Story of Congressional Investigations (1955).
8- Courts of Terror - Soviet Criminal Justice and Jewish Emigration (1976).
9- Nuremberg and Vietnam - An American Tragedy (1970).
10- SC Res. 808, 22 Feb. 1993; S/25704, 3 May 1993
11- See Report of the Presidents of the ICTY to the UN.
12 Res. 955, 1994
13- XXX See Ferencz, The UN Consensus Definition of Aggression: Sieve or Substance, 10 Jour. of Int. Law and Economics, George Washington University, Aug.-Dec. 1975 p.701.
14- A/49/355 1 Sept.1994, ILC Draft Statute for an ICC; A/CN.4/L.532, 8 July 1996, ILC Draft Code of Crimes.
15- A detailed analysis of the crime of aggression can be found in Gabrielle Kirk McDonald and Olivia Swaak-Goldman, Editors, Substantive and procedural Aspects of International Criminal Law, Spring 1999. See also B. Ferencz, A Prosecutor's Personal Account - From Nuremberg to Rome, Journal of International Affairs, Columbia University, Spring 1999