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In the wake of political violence, the International Criminal Court (ICC) has shown a clear and continued preference for multiple trials to be pursued at both a national and international level. The Court’s approach to complementarity and it’s reading of what constitutes ‘a case’ under Article 17 of its Statute lays the legal foundation for this move.
The factual backdrop to this affair is well-known. FIFA, world football’s governing body has, for a number of years, been the subject of allegations of corruption. Then, after a series of dawn raids on 27 May 2015, seven FIFA officials, of various nationalities, the most famous being Jack Warner, the Trinidadian former vice president of FIFA, were arrested in a luxury hotel in Zurich where they were staying prior to the FIFA Congress.
There was a great change in peace settlements after World War I. Not only were the Central Powers supposed to pay reparations, cede territory, and submit to new rules concerning the citizenship of their former subjects, but they were also required to deliver nationals accused of violations of the laws and customs of war (or violations of the laws of humanity, in the case of the Ottoman Empire) to the Allies to stand trial.
This was the first time in European history that victor powers imposed such a demand following an international war. This was also the first time that regulations specified by the Geneva and Hague Conventions were enforced after a war ended. Previously, states used their own military tribunals to enforce the laws and customs of war (as well as regulations concerning espionage), but they typically granted amnesty for foreigners after a peace treaty was signed.
The Allies intended to create special combined military tribunals to prosecute individuals whose violations had affected persons from multiple countries. They demanded post-war trials for many reasons. Legal representatives to the Paris Peace Conference believed that “might makes right” should not supplant international law; therefore, the rules governing the treatment of civilians and prisoners-of-war must be enforced. They declared the war had created a modern sensibility that demanded legal innovations, such as prosecuting heads of state and holding officers responsible for the actions of subordinates. British and French leaders wanted to mollify domestic feelings of injury as well as propel an interpretation that the war had been a fight for “justice over barbarism,” rather than a colossal blood-letting. They also sought to use trials to exert pressure on post-war governments to pursue territorial and financial objectives.
The German, Ottoman, and Bulgarian governments resisted extradition demands and foreign trials, yet staged their own prosecutions. Each fulfilled a variety of goals by doing so. The Weimar government in Germany was initially forced to sign the Versailles Treaty with its extradition demands, then negotiated to hold its own trials before its Supreme Court in Leipzig because the German military, plus right-wing political parties, refused the extradition of German officers. The Weimar government, led by the Social Democratic party, needed the military’s support to suppress communist revolutions. The Leipzig trials, held 1921-27, only covered a small number of cases, serving to deflect responsibility for the most serious German violations, such as the massacre of approximately 6,500 civilians in Belgium and deportation of civilians to work in Germany. The limited scope of the trials did not purge the German military as the Allies had hoped. Yet the trials presented an opportunity for German prosecutors to take international charges and frame them in German law. Although the Allies were disturbed by the small number of convictions, this was the first time that a European country had agreed to try its own after a major war.
The Ottoman imperial government first destroyed the archives of the “Special Organization,” a secret group of Turkish nationalists who deported Greeks from the Aegean region in 1914 and planned and executed the massacre of Armenians in 1915. But in late 1918, a new Ottoman imperial government formed a commission to investigate parliamentary deputies and former government ministers from the Turkish nationalist party, the Committee of Union and Progress, which had planned the attacks. It also sought to prosecute Committee members who had been responsible for the Ottoman Empire’s entrance into the war. The government then held a series of military trials of its own accord in 1919 to prosecute actual perpetrators of the massacres, as well as purge the government of Committee members, as these were opponents of the imperial system. It also wanted to quash the British government’s efforts to prosecute Turks with British military tribunals. Yet after the British occupied Istanbul, the nationalist movement under Mustafa Kemal retaliated by arresting British officers. Ultimately, the Kemalists gained control of the country, ended all Turkish military prosecutions for the massacres, and nullified guilty verdicts.
Like the German and Ottoman situations, Bulgaria began a rocky governmental and social transformation after the war. The initial post-war government signed an armistice with the Allies to avoid the occupation of the capital, Sofia. It then passed a law granting amnesty for persons accused of violating the laws and customs of war. However, a new government came to power in 1919, representing a coalition of the Agrarian Union, a pro-peasant party, and right-wing parties. The government arrested former ministers and generals and prosecuted them with special civilian courts in order to purge them; they were blamed for Bulgaria’s entrance into the war. Some were prosecuted because they lead groups of refugees from Macedonia in a terrorist organization, the Internal Macedonian Revolutionary Organization. Suppressing Macedonian terrorism was an important condition for Bulgaria to improve its relationship with its neighbor, the Kingdom of the Serbs, Croats, and Slovenes. In 1923, however, Aleksandar Stambuliski, the leader of the Agrarian Union, was assassinated in a military coup, leading to new problems in Bulgaria.
We could ask a counter-factual question: What if the Allies had managed to hold mixed military tribunals for war-time violations instead of allowing the defeated states to stage their own trials? If an Allied tribunal for Germany was run fairly and political posturing was suppressed, it might have established important legal precedents, such as establishing individual criminal liability for violations of the laws of war and the responsibility of officers and political leaders for ordering violations. On the other hand, guilty verdicts might have given Germany’s nationalist parties new heroes in their quest to overturn the Versailles order.
An Allied tribunal for the Armenian massacres would have established the concept that a sovereign government’s ministers and police apparatus could be held criminally responsible under international law for actions undertaken against their fellow nationals. It might also have created a new historical source about this highly contested episode in Ottoman and Turkish history. Yet it is speculative whether the Allies would have been able to compel the post-war Turkish government to pay reparations to Armenian survivors and return stolen property.
Finally, an Allied tribunal for alleged Bulgarian war criminals, if constructed impartially, might have resolved the intense feelings of recrimination that several of the Balkan nations harbored toward each other after World War I. It might also have helped the Agrarian Union survive against its military and terrorist enemies. However, a trial concentrating only on Bulgarian crimes would not have dealt with crimes committed by Serbian, Greek, and Bulgarian forces and paramilitaries during the Balkan Wars of 1912-13, so a selective tribunal after World War I may not have healed all wounds.
Image Credit: Château de Versailles Hall of Mirrors Ceiling. Photo by Dennis Jarvis. CC BY-SA 2.0 via Flickr.
On 28 June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenberg, were assassinated in Sarajevo, setting off a six week diplomatic battle that resulted in the start of the First World War. The horrors of that war, from chemical weapons to civilian casualties, led to the first forays into modern international law. The League of Nations was established to prevent future international crises and a Permanent Court of International Justice created to settle disputes between nations. While these measures did not prevent the Second World War, this vision of a common law for all humanity was essential for international law today. To mark the centenary of the start of the Great War, and to better understand how international law arose from it, we’ve compiled a brief reading list.
How did international law develop from the 15th century until the end of World War II? This 2014 ASIL Certificate of Merit winnor looks at the history of international law in relation to themes such as peace and war, the sovereignty of states, hegemony, and the protection of the individual person. It includes Milos Vec’s ‘From the Congress of Vienna to the Paris Peace Treaties of 1919′ and Peter Krüger’s ‘From the Paris Peace Treaties to the End of the Second World War’.
A detailed study into the 1922-34 exchange of minorities between Greece and Turkey, supported by the League of Nations, in which two million people were forcibly relocated. Check out the specific chapters on: Wilson and international law; US jurisprudence and international law in the wake of WWI; and the failed marriage of the US and the League of Nations and America’s reaction of isolationism through WWII.
How could the world repress aggressive war, war crimes, terrorism, and genocide in the wake of the First World War? Mark Lewis examines attempts to create specific criminal justice courts to address these crimes, and the competing ideologies behind them.
How did the upheaval of the first half of the 20th century impact the creation of public law within and across states? Germany offers an interesting case given its central role in many of the events.
What exactly did ‘neutrality’ mean before, during, and after the First World War? The newly independent Ireland exemplified many of the debates surrounding neutrality and multilateralism.
The Signing of Peace in the Hall of Mirrors, Versailles, 28th June 1919 by William Orpen. Imperial War Museum. Public domain via Wikimedia Commons.
The Treaty of Versailles marked the first significant attempt to hold an individual — Kaiser Wilhelm — accountable for unlawful resort to major military force. Mary Ellen O’Connell and Mirakmal Niyazmatov discuss the prohibition on aggression, the Jus ad Bellum, the ICC Statute, successful prosecution, Kampala compromise, and protecting the right to life of millions of people.
Following the First World war, there was a general movement in international law towards the prohibition of aggressive war. So why is there an absence of legal milestones marking the advance towards the criminalization of aggression?
What is the bridge between the International Military Tribunal, formed following the Treaty of Versailles, and the International Criminal Tribunal for the former Yugoslavia? Mohamed Shahabuddeen examines the first traces of the development of international criminal justice before the First World War and today’s ideas of the responsibility of the State and the criminal liability of the individual.
When are sanctions doomed to failure? David J. Bederman analyzes the historical context of the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 from the 1919 Treaty of Versailles through to the present day.
How did legal terminology and provisions concerning hostilities, prisoners of war, and other wartime-related concerns change following the introduction of modern warfare during the First World War?
“League of Nations” by Christian J Tams in the Max Planck Encyclopedia of Public International Law
What lessons does the first body of international law hold for the United Nations and individual nations today?
“Alliances” by Louise Fawcett in the Max Planck Encyclopedia of Public International Law
Peace was once ensured through a complex web of diplomatic alliances. However, those same alliances proved fatal as they ensured that various European nations and their empires were dragged into war. How did the nature of alliances between nations change following the Great War?
In the midst of tremendous suffering and loss, suffragists continued to march and protest for the rights of women. How did the First World War hinder the women’s suffrage movement, and how did it change many of the demands and priorities of the suffragists?
A brief overview of the development of international law during the interwar period: where there was promise, and where there was failure.
Headline image credit: Stanley Bruce chairing the League of Nations Council in 1936. Joachim von Ribbentrop is addressing the council. Bruce Collection, National Archives of Australia. Public domain via Wikimedia Commons.
While human history is not without crime and slaughter, it is only in the twentieth century, especially following the Nuremberg and Tokyo trials, that people sought justice in the name of all humanity. To mark the World Day for International Justice we invited our authors and editors to answer the question: What do you consider to be the most important issue in international criminal justice today?
“The impression that international justice is a tool of powerful States directed against smaller, weaker, poorer, and more isolated countries and peoples is the greatest challenge to international criminal justice today. Some of these large, powerful nations are themselves guilty of terrible abuses that go unpunished. For example, the United States enthusiastically joins in efforts to prosecute Hissène Habré in Senegal under the Torture Convention, yet its administration has promised impunity to American leaders and military officials responsible for torture at Abu Ghraib, Guantanamo, and elsewhere. Until international justice satisfactorily addresses this double standard, there will be little satisfaction in more trials of the likes of Taylor, Lubanga, and Mladić. For this reason, the most inspiring development of the past year was the decision of the Prosecutor of the International Criminal Court to undertake a preliminary examination of the conduct of British forces in Iraq.”
— William Schabas, Professor of International Law, University of Middlesex, and author of Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2014)
“In my view, it is time to begin to question whether the International Criminal Court will ever play a major role in the fight against impunity. This is not an issue of bad management, poor decision-making, or anything else epiphenomenal and potentially fixable. Instead, it’s a question of institutional design: it is simply unclear whether the Court, by aiming to keep watch over both the victors and the vanquished, will ever be able to muster the kind of international support – from states, and most importantly from the Security Council – that it needs to conduct credible investigations and prosecutions. There is reason for scepticism, given the Court’s inability to prosecute both rebels and government officials in even one conflict. Indeed, it’s difficult to avoid wondering: for all its flaws, is victor’s justice the only international criminal justice possible? Is selectivity an inherent part of an international criminal tribunal that works?”
— Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London, and author of The Hidden Histories of War Crimes Trials (2013)
International Criminal Court (ICC) Haagse Arc. Photo by ekenitr. CC BY-NC 2.0 via 46774986@N02 Flickr.
“States need to overcome their alienation from international criminal justice. After the euphoria that allowed for the ‘Pinochet Saga’ to happen and led to the establishment of the International Criminal Court, states’ priorities, unfortunately, seem to have shifted – hardly surprising in times of financial crisis or mass surveillance. However, states still are and will ever be the backbone of the international criminal justice system – and this explicitly includes the so-called ‘third’ or ‘bystander’ states acting on the basis of universal jurisdiction. It’s in particular their role within the international criminal justice system that needs to be redefined by determining the parameters for complementarity and subsidiarity.”
— Julia Geneuss, Dr. iur., LL.M. (NYU), Senior Research Fellow and Lecturer at the University of Hamburg, and member of the Editorial Committee of the Journal of International Criminal Justice
“International criminal law has long chased the dream of permanence. Its foundations at Versailles and Nuremberg and its revival in the 1990s were acts of ad hockery, and in those contingent acts the failings of justice ad et post hoc were apparent; a permanent court, we though, might fix them. We have now had a decade and more of permanence, and with it a severe testing of that hope. Courts for Sierra Leone and Lebanon, and calls for more (like David Scheffer’s recent proposal for a third-party court for Syria), show that ad hoc, hybrid incentives did not disappear with the Rome Statute. The challenges to ICC jurisdiction in Kenya and Libya – and the increasingly assertive objections of African leaders – have exposed the illusion that we have devised a unitary, homogenous justice system suited to the varied needs of a notional international community. Global justice is ad hoc – permanently so.”
— Timothy William Waters, Professor of Law at Indiana University Maurer School of Law, and editor and co-author of The Milosevic Trial: An Autopsy (2014)
“Over past decades, international criminal justice has produced diverse political and social effects in the countries and communities where it intervened, either directly through investigations and trials or indirectly through the threat of investigations. But the international system is still at the beginning of a new era of interaction between domestic and international justice. International interventions remain contested because they are removed from broader socio-political concerns that are at the heart of societal priorities in conflict and post-conflict settings. Fundamental dimensions, such as the process of internalizing international concepts in the domestic realm, and most fundamentally, the ‘translation’ of justice into local concepts, language, or culture remain underdeveloped. There is need for a better nexus between three core dimensions in justice strategies: ‘institutional response’, ‘translation’, and domestic ‘reception’. Criticisms relating to selectivity, Western agendas or implicit biases of international justice are too easily discarded by quantitative justifications (e.g., gravity calculations), resource problems or formal notions of consent. This has created a push for new initiatives and responses at the domestic and regional level (e.g., criminal jurisdiction of the African Court on Human and Peoples’ Rights). International justice remains vital but needs to be re-thought. Core challenges include: (i) the need to devise accountability goals and models more carefully in light of their impact on local interests and realities of conflict, (ii) greater care in assessing the practicability and possibility of burden-sharing with domestic institutions, (iii) greater sensitivity to the empowering and disempowering effects of ICC intervention in situation countries, and (iv) the need for a better nexus between justice intervention and development strategies.”
— Carsten Stahn, Professor of International Criminal Law and Global Justice, Leiden University, and Editor of The Law and Practice of the International Criminal Court (2015), and Jus Post Bellum: Mapping the Normative Foundations (2014)
“The central issue confronting international criminal justice today is: at what level of governance should issues of global justice be decided? This question is confronted by the International Criminal Court but also more broadly as a global matter where there are evolving norms of universality which mean that serious crimes can be prosecuted in a number of jurisdictions, domestic, i.e. where the crime may have occurred but also in other countries where there are other ties, such as the nationality of victims, etc., or another nexus.
“The principle of ‘complementarity’ is appealing because it offers guidance in the general rule of the priority of the local, where the international plays a gap-filling role; namely in the language of the Rome treaty, contemplating international intervention only where the relevant state ‘is unwilling and unable’, i.e. where capacity to apply justice is unavailable and/or no will exists. In the words of the Rome Treaty Preamble, its aegis ‘shall be complementary to national criminal jurisdictions’, which is defined later on to mean that cases would be inadmissible internationally ‘unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.’
“But the simplicity of the rule as stated belies the complexity of the normative question. Hence, recent illustrations raised by, for example, the referral of the Libya situation and case of Saif Quaddafi shows us that willingness without capacity for a fair trial can result in risking an international imprimatur on sham or show trials; and by contrast in the case of ICC prosecutions relating to Kenya’s post election violence, where capacity exists, without related willingness, in light of regime change, may well require dynamic evaluation of the timing of international judicial intervention. So long as there are no ongoing human rights violations.
“When it comes to global justice, what makes for institutional legitimacy may well be a relative matter, requiring a nuanced analysis in both law and politics.”
— Ruti G. Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School, Visiting Fellow, London School of Economics, and author of Globalizing Transitional Justice: Contemporary Essays (2014), Humanity’s Law (Hardback 2011; Paperback 2013), and Transitional Justice (Hardback 2000; Paperback 2002)
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
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Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the final one, following The Act of Killing, Hannah Arendt, and The Lady.
By Roberta Seret
One can say that Dr. Josef Mengele was the first survivor of Auschwitz, for he slipped away undetected in the middle of the night on 17 January 1945, several days before the concentration camp was liberated. Weeks later, he continued his escape despite being detained in two different Prisoner of War detention camps.
He made his way to Rome, a sanctuary for Nazi war criminals, where he obtained a new passport from Vatican officials. Continuing to Genoa with the help of the International Red Cross and a Fascist network, he embarked on the North King ship in 1949 to Buenos Aires under the alias of Helmut Gregor.
President Juan Peron had 10,000 blank Argentine passports for the highest Nazi bidders. Buenos Aires became their home; there Mengele lived, respected and comfortable, until 1960 when Eichmann was kidnapped by the Mossad just streets away. Afraid he’d be next, Mengele decided it would be safer for him in Paraguay with the support of the pro-Nazi dictator, Alfredo Stroessner. He stayed in Asunción for one year.
The Argentine film, The German Doctor (2014), takes us in media res to 1960 Patagonia and Bariloche, a beautiful mountain oasis in the Andes that reminds Mengele of “home.” This fictional addition to his biography, serves as a six-month stopover before he escapes to Paraguay.
Lucia Puenzo, Argentine filmmaker, has adapted her own novel, Wakolda, for the screen. She adroitly mixes fiction with history and truth with imagination in a tight, tense-filled interpretation that keeps us mesmerized. Yet, as we watch the scenes unfold, we wonder which ones are based on fact and how far should poetic justice substitute for historical accuracy.
The director takes advantage of our “collective conscience” of morality and memory regarding the identity of Dr. Mengele. Despite not once hearing his name, we know who he is, although the characters do not. The director uses our associating him with evil to enhance tension and catapult plot – a clever device that works well.
What is biographically accurate in the film is that Mengele continues his experiments on human beings in order to create the perfect race. The director uses this premise, then extrapolates to fiction and sets the stage with a family that Mengele befriends. The doctor sees an opportunity to experiment with charming Lilith, the under-developed twelve-year-old and injects into her stomach growth hormones that work for cattle. He also gives “vitamins” to the girl’s pregnant mother, Eva, once he realizes she is carrying twins. When the babies are born, he continues his experiments by putting sugar in the formula for the weaker of the two. As the infant cries dying and Mengele studies the reaction, we shudder that the Angel of Death has once again achieved Evil.
The experiments on people that Mengele is obsessed with in the film, is a continuation of his sadistic work at Auschwitz with pregnant women, twins, and genetics. His lab experiment on a mother who had just given birth was notorious. He taped her lactating breasts while taking notes on how long the infant would cry without receiving her milk. When he left for dinner, the distraught mother desperately found morphine for her dying baby.
Mengele was also known to inject dye into the iris of prisoners’ eyes (without anesthesia) to see if he could change the brown to an Aryan blue. He documented his results by pinning each eyeball to a wooden board.
And there were more experiments on thousands of human beings.
Josef Mengele, from 1943-45, appeared each day at Auschwitz’s train station for Selektion. Wearing white gloves, polished high black boots, and carrying a stick, his evil hand pointed Left and Right to order more than 400,000 souls to leave this world through chimneys as ashes. His crimes against humanity can never be forgotten.
After living more than 30 years undetected in South America, Mengele died in 1979 of a heart attack while swimming in the warm waters near São Paulo. This peaceful death for such a monster reinforces his ultimate crime. Film director, Lucia Puenzo, would have been well-inspired to have finished The German Doctor with this horrific and true scene.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the second one, , following The Act of Killing.
By Roberta Seret
The powerful biographical film, Hannah Arendt, focuses on Arendt’s historical coverage of Adolf Eichmann’s trial in 1961 and the genocide of six million Jews. But sharing center stage is Arendt’s philosophical concept: what is thinking?
German director, Margarethe von Trotta, begins her riveting film with a short silent scene — Mossad’s abduction of Adolf Eichmann in Buenos Aires, the ex-Nazi chief of the Gestapo section for Jewish Affairs. Eichmann was in charge of deportation of Jews from all European countries to concentration camps.
Margarethe von Trotta’s and Pam Katz’s brilliant screen script is written in a literary style that covers a four-year “slice of life” in Hannah Arendt’s world. The director invites us into this stage by introducing us to Arendt (played by award-winning actress Barbara Sukova), her friends, her husband, colleagues, and students.
As we listen to their conversations, we realize that we will bear witness not only to Eichmann’s trial, but to Hannah Arendt’s controversial words and thoughts. We get multiple points of view about the international polemic she has caused in her coverage of Eichmann. And we are asked to judge as she formulates her political and philosophical theories.
Director von Trotta continues her literary approach to cinema by using flashbacks that take us to the beginning of Arendt’s university days in Marburg, Germany. She is a Philosophy major, studying with Professor Martin Heidegger. He is the famous Father of Existentialism. Hannah Arendt becomes his ardent student and lover. In the first flashback, we see a young Arendt, at first shy and then assertive, as she approaches the famous philosopher. “Please, teach me to think.” He answers, “Thinking is a lonely business.” His smile asks her if she is strong enough for such a journey.
“Learn not what to think, but how to think,” wrote Plato, and Arendt learns quickly. “Thinking is a conversation between me and myself,” she espouses.
Arendt learned to be an Existentialist. She proposed herself to become Heidegger’s private student just as she solicited herself to cover the Eichmann trial for The New Yorker. Every flashback in the film is weaved into a precise place, as if the director is Ariadne and at the center of the web is Heidegger and Arendt. From flashback to flashback, we witness the exertion Heidegger has on his student. As a father figure, Heidegger forms her; he teaches her the passion of thinking, a journey that lasts her entire life.
Throughout the film, in the trial room, in the pressroom, in Arendt’s Riverside Drive apartment, we see her thinking and smoking. The director has taken the intangible process of thinking and made it tangible. The cigarette becomes the reed for Arendt’s thoughts. After several scenes, we the spectator, begin to think with the protagonist and we want to follow her thought process despite the smoke screen.
When Arendt studies Eichmann in his glass cell in the courtroom, she studies him obsessively as if she were a scientist staring through a microscope at a lethal cancer cell on a glass slide. She is struck by what she sees in front of her – an ordinary man who is not intelligent, who cannot think for himself. He is merely the instrument of a horrific society. She must have been thinking of what Heidegger taught her – we create ourselves. We define ourselves by our actions. Eichmann’s actions as Nazi chief created him; his actions created crimes against humanity.
The director shows us many sides of Arendt’s character: curious, courageous, brilliant, seductive, and wary, but above all, she is a Philosopher. Eichmann’s trial became inspiration for her philosophical legacy, the Banality of Evil: All men have within them the power to be evil. Man’s absence of common sense, his absence of thinking, can result in barbarous acts. She concludes at the end of the film in a form of summation speech, “This inability to think created the possibility for many ordinary men to commit evil deeds on a gigantic scale, the like of which had never been seen before.”
And Eichmann, his summation defense? It is presented to us by Willem Sassen, Dutch Fascist and former member of the SS, who had a second career in Argentina as a journalist. In 1956 he asked Eichmann if he was sorry for what he had done as part of the Nazis’ Final Solution.
Eichmann responded, “Yes, I am sorry for one thing, and that is I was not hard enough, that I did not fight those damned interventionists enough, and now you see the result: the creation of the state of Israel and the re-emergence of the Jewish people there.”
The horrific acts of the Nazis speak for themselves. Director von Trotta in this masterpiece film has stimulated us to think again about genocide and crimes against humanity, their place in history as well as in today’s world.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
Oxford University Press is a leading publisher in international law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide. For the latest news, commentary, and insights follow the International Law team on Twitter @OUPIntLaw.
Subscribe to the OUPblog via email or RSS.
Subscribe to only law articles on the OUPblog via email or RSS.
Film is a powerful tool for teaching international criminal law and increasing public awareness and sensitivity about the underlying crimes. Roberta Seret, President and Founder of the NGO at the United Nations, International Cinema Education, has identified four films relevant to the broader purposes and values of international criminal justice and over the coming weeks she will write a short piece explaining the connections as part of a mini-series. This is the first one.
By Roberta Seret
American director, Joshua Oppenheimer, has merged theatre, psychology, and film in his innovative documentary, The Act of Killing, Jagal in Indonesian, meaning Butcher. (BAFTA Award for Best Documentary of 2013.)
We are taken to Indonesia 1965 when more than 500,000 citizens and thousands of Chinese residents were massacred because they were communists or communist sympathizers or born Chinese.
By 1965, there were 3 million communists in Indonesia and they had the strongest communist party outside the Soviet Union and China. During this time, the political and economic situation throughout the Archipelago was unstable with an annual inflation of 600% and impoverished living conditions. General Soeharto overthrew Soekarno, took control of the army and government, and led a ruthless anti-communist purge.
For eight years (2003-2011), director Joshua Oppenheimer, lived in Indonesia, learned the language, and set himself to expose in cinema this untold genocide.
The Act of Killing recreates scenes of mass execution in Indonesia from 1965-66. The main actor, Anwar Congo, and his auxiliary protagonist, Adi Zulkadry, are perpetrators from the past who re-enact their crimes. In reality, during 1965, they were both gangsters who were promoted from selling black market movies to leading death squads in North Sumatra. Anwar, before the camera, boasts that he killed approximately 1,000 people by strangling them with wire. “Less blood that way. Less smell,” he reminisces with a smile.
The initial question for the director is what structure to choose for his documentary? How to recreate this history 47 years later on the screen to viewers who will learn about these horrors for the first time?
Oppenheimer has been influenced by Luigi Pirandello’s structure as found in the play, Six Characters in Search of an Author (1921). Pirandello’s theatre of a play within a play merges drama and psychology (psychodrama/ group therapy). And Oppenheimer, a true master, takes this form to cinema. He becomes the leader, director of the action, and asks questions to his actors so they can re-enact the history. In turn, the actors use props and improvisation to respond. Scenes unfold in unpredictable ways and the actors, without realizing it, are taken back to the past. This structure of psychodrama is the director’s secret vehicle to open up the subconscious of his characters and free their suppressed memory.
For Oppenheimer, as for Pirandello almost 100 years before, it is Art that becomes a conduit for Truth. It is Art that reveals the Reality between the Self and the outside world. Oppenheimer has achieved this on a stage while filming his actors. He uses Pirandello’s role playing and re-experiencing to expose the truth to the actors and to the world about Indonesia’s horrific genocide and impunity for such crimes.
After Anwar and his co-actors voyage deep into their past, we see them as they see themselves – criminals with blood on their hands, monsters overwhelmed with fear that the ghosts of the past will curse them.
At the end of the journey, Anwar becomes victim. The act of filming the act of killing has made him realize the 1,000 deaths he had committed. The line between acting and reality becomes blurred and there is only one Truth that emerges.
Anwar’s last scene is his response to this intense journey. He gives us a guilt-ridden soliloquy reminiscent of Shakespeare and a scene of vomiting where he tries to purge himself of his victims’ blood. Oppenheimer does not rush this scene. He lets the power of film take over as the camera documents for history the criminal’s realization that he is a Butcher of Humanity.
Roberta Seret is the President and Founder of International Cinema Education, an NGO based at the United Nations. Roberta is the Director of Professional English at the United Nations with the United Nations Hospitality Committee where she teaches English language, literature and business to diplomats. In the Journal of International Criminal Justice, Roberta has written a longer ‘roadmap’ to Margarethe von Trotta’s film on Hannah Arendt. To learn more about this new subsection for reviewers or literature, film, art projects or installations, read her extension at the end of this editorial.
The Journal of International Criminal Justice aims to promote a profound collective reflection on the new problems facing international law. Established by a group of distinguished criminal lawyers and international lawyers, the journal addresses the major problems of justice from the angle of law, jurisprudence, criminology, penal philosophy, and the history of international judicial institutions.
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