Will Trump’s Goons Ever Be Held Accountable?

Written By Leeja Miller

Sources:

Transcript:

Welcome to Why, America? I’m Leeja Miller. Whenever I’ve asked you to pose your biggest questions lately, the same thing keeps coming up again and again: how do we hold Trump and his goons accountable for their alleged crimes, after all of this is said and done? While I think it’s a bit premature to discuss holding these people accountable AFTER they commit atrocities, and we should be focused on attempting to stop the atrocities now, I also understand that this question comes from a growing sentiment that no one is coming to save us, we have to look out for each other and hunker down while this all plays out, and we’ll get our retribution in the end. So while I encourage you to take hope from the massive turnout for this weekend’s No Kings rallies across the country, to continue to organize within your communities, to provide aid where you can, and to stand up against injustice in the ways that make sense for you, because the Trump administration may be powerful but we have the power of numbers, I did want to answer this often posed question because it brings up interesting dilemmas with international law, justice and retribution that I think are important to answer and think about even now as it feels we’re still in the midst of what might be just the beginning. How might Trump and his goons face justice in the future?

When you think about justice and retribution in the face of fascism, at least for me, my first thoughts go to the Nuremberg trials, so that’s where we’ll start, too. Then we’ll discuss developments in international law and how Trump and his operatives might be held accountable for everything from their treatment of immigrants to their aggressions bombing boats off the coast of Venezuela.

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In the aftermath of the atrocities committed during World War II, the world had to come to terms with what had happened, and the call for retribution was swift. The Allied powers took it upon themselves to ensure that this retribution happened. From 1945 to 1949, 199 defendants were tried at the International Military Tribunal in Nuremberg in relation to their alleged crimes during the war. 161 were convicted, and 37 were sentenced to death. A lot of the information I’m using comes from the National World War II museum in New Orleans, as always sources are linked in the description.

The International Military Tribunal was created by agreement between the US, Great Britain, France, and the Soviet Union. It was the first tribunal of its kind, taking judges and prosecutors from each of the four countries to create a truly international tribunal. The original trial at Nuremberg occurred in 1945 and 24 Nazi officials were indicted for crimes against peace (meaning instigating war, invasion, etc), war crimes, and crimes against humanity, plus conspiracy to commit crimes against humanity. War crimes had largely already been established before the second world war and continue to be generally understood to include the following:

Wilful killing; Torture or inhuman treatment, including biological experiments; Wilfully causing great suffering, or serious injury to body or health; Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; Unlawful deportation or transfer or unlawful confinement; and Taking of hostages.” For a crime to be a war crime it must happen during times of armed conflict. Crimes against humanity was a novel concept and was defined as quote “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

The trial lasted a full year, during which time the prosecutors presented mountains of evidence of the atrocities committed under the Nazi regime. For the Allied forces, the trials were as much a means of memorializing the war and adding the mountain of evidence to the historical record for all to see and learn from as they were about retribution and justice. So a big show was made of ensuring that the worst atrocities were presented at the trial. According to the National World War II Museum, quote “During the trial, the Tribunal—and the world—learned about the Nazi Party and its "planning, initiating and waging of aggressive war" from the beginning. Footage of Nazi concentration camps taken by Allied military photographers during liberation was shown to the court. The graphic scenes of what had taken place in Europe were the most powerful evidence presented at the trial. Other memorable moments of the trial were the screenings of the Nazi Concentration and Prison Camps and The Nazi Plan films, the detailed description of the Final Solution, the murders of prisoners of war, atrocities in extermination camps, and countless cruel acts to prosecute Jews.”

After the trial concluded in October of 1946, 19 of the defendants were convicted, and 12 were sentenced to death. That was not the conclusion of the Nuremberg trials, however. An additional 12 trials were held solely by the United States at Nuremberg. 177 defendants were named across the trials, and many of the trials were aimed at a different sector of the German population that helped perpetrate the Holocaust. There was a trial against leading physicians that supported the regime, against judges, against government administrators, and against military officials. Of the 177 defendants, 24 were sentenced to death, 20 to life in prison, and 98 to shorter prison sentences. 25 were acquitted. In the years since then, numerous other trials have happened domestically in Germany against accused Nazis with varying success. But the numbers should make obvious one thing: not many people stood trial for the Holocaust. There were millions of people who were members of the Nazi party, of the Hitler Youth, and of other third-reich serving institutions. Millions. Thousands of the highest ranking among them fled Europe and lived largely quiet unbothered lives in Argentina, Chile, and Brazil, among other far flung countries. And even the justice meted out by the Nuremberg trials didn’t stick for long. Soon, underlying tensions with the Soviet Union and the growing Cold War directed attention elsewhere and led to questioning of the outcomes of the trials. To many in Germany, especially the subsequent US-led trials were seen not as aiming for justice but instead aiming for revenge. Many questioned whether the defendants were given fair trials and whether their continued confinement was unjust given the fact that the International Military Tribunal disbanded and they, therefore, had nowhere to file challenges to their confinement or appeal their convictions. According to the National WWII museum, quote “officials eventually concluded that German war criminals were criminals first and war criminals second, entitled to all the remedies of US laws to better their conditions and reduce their sentences.”

In order to ensure these prisoners were offered clemency and a fair shot at appealing their convictions, the American High Commissioner for Occupied Germany John J. McCloy, working with an Advisory Board on Clemency for War Criminals, conducted a review of the Nuremberg cases in 1950. Just a few years later. According to the National WWII Museum quote “The Advisory Board’s review was rushed. Its members had neither the time nor the inclination to re-examine evidence from the trials, or carefully weigh it against the misleading information presented by the prisoners in their clemency petitions. Instead, in a few hectic weeks from mid-July to mid-September 1950, the Board skimmed judgements, perused petitions, took a 30 minute meeting with defense counsel, ruled, and moved on to the next case. It had no investigative staff to interrogate the “new,” (more often repackaged assertions already dismissed by the tribunals) exculpatory evidence presented by the prisoners, heard from neither witnesses nor prosecutors, and demanded no expressions of remorse or regret from the prisoners.” As a consequence of this review of the Nuremberg convictions, by 1951, of the 142 people convicted of war crimes at Nuremberg, 89 people remained incarcerated, and 78 of them received clemency, including commuting 10 death sentences, and were released from prison. According to the national WWII museum again, that move to approve clemency to those convicted of war crimes was a calculation of the Cold War–it was meant to show that “American Justice” was reasonable and protected the rights of the accused, which was in direct opposition to the Soviet justice system which was seen as violent and arbitrary. It was a move to spread benevolent American justice and democracy across the globe. German society’s apathy about their role in WWII soon followed.

Quote “In East Germany, a Soviet puppet state, the government released thousands of Nazis and enlisted their help in forming a police state. The Soviet Union also began promoting the belief that western capitalists were basically responsible for the rise of the Nazi Party. Meanwhile, in West Germany the Western Allies ended all their efforts at denazification in favor of enlisting the help of former Nazis in the fight against Communism. Discussion of the Holocaust virtually disappeared from the public sphere in West Germany in the 1950s. School textbooks barely mentioned German war crimes, and former Nazis rejoined civil society, many resuming positions similar to those they held under Hitler’s regime. By the 1950s, nearly 90 percent of judges in West Germany had formerly belonged to the Nazi Party. Just as alarming, in 1950 a survey of West Germans indicated that a third of Germans believed the IMT had been unfair. The same proportion of respondents stated that the Holocaust had been justified.”

It wasn’t until the 1960s and later, when new generations of Germans learned about the war, that interest grew around commemorating and condemning the war and German society’s role in it.

A similar tribunal to punish international crimes wasn’t reconvened until the early 1990s when the UN Security Council established the International Criminal Tribunal for the former Yugoslavia to prosecute crimes related to the widespread atrocities committed during the Yugoslov Wars and the International Criminal Tribunal for Rwanda in the wake of the Rwandan genocide. These tribunals led to the creation of a more permanent means by which the international community could seek to punish major international crimes: the International Criminal Court, created by the United Nations in 2002 through the passage of the Rome Statute. Only 7 countries voted against the treaty: China, Iraq, Israel, Libya, Qatar, Yemen, and the United States. What a group. There are 125 state parties to the ICC, meaning they signed on to be part of it, to participate in it, to be held liable to it. The 7 countries that voted against it are not member states to it, which includes the US and Israel, who are therefore not bound by the jurisdiction of the Court, though of course if they act in violation of the Rome Statute against other countries who ARE members of the court, there is an argument that the ICC can step in on behalf of its member country. Venezuela is a member country. But before we go down that rabbit hole, let’s take a peak at the crimes outlined in the Rome Statute, the ones the ICC is tasked with enforcing against individuals and groups who would commit said crimes. Those include the War Crimes I’ve already listed, plus the crime of genocide, crimes against humanity, and the crime of aggression. Those are the only crimes within the court’s jurisdiction. And I think it’s important to understand what those crimes are, like let’s really understand them.

Article 6 of the Rome Statute defines genocide as follows: “For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group.” This is why people have been calling Israel’s actions in Gaza genocide. I see comments on my videos from people saying that calling Israel’s actions a genocide somehow takes away from the suffering of the Jewish population during the Holocaust. But the law is clear, and Israel has committed what the international community has roundly agreed is a genocide. It’s not an opinion, it is a legal fact.

Article 7 defines crimes against humanity as follows: “For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

I’ll note that section goes on to say quote “For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Basically, trans people and the violence against them does not exist nor is it protected in the Rome Statute–which I point out to note that international law is far from perfect and trans rights are human rights even if the international community falls despicably short of acknowledging that fact.

Okay and like I said Venezuela is a signatory to the Rome Statute, as is Canada, Colombia, El Salvador, and Mexico, among obviously many others but I point out those specific states because there are things Trump and his goons are attempting to do that implicate those countries in ways where the ICC may attempt to get involved. The ICC has jurisdiction where crimes are committed in the territory of a State Party, against a citizen of a state party, or, if at high sea, against a vessel registered to a state that is party to the agreement. And irrespective of whether the actors involved are party to the Rome Statute, if a case is recommended to the ICC by the UN Security Council then they can get involved.

The ICC has issued arrest warrants for, among other people, Benjamin Netanyahu despite Israel not being a party of the ICC, and the court claims jurisdiction over the issue because back in 2015 the state of Palestine, though not a signatory of the Rome Statute, formally declared acceptance of the jurisdiction of the court. As such, the court has jurisdiction over what happens in Palestine. Which is all well and good but my number one critique of international law and the reason I decided not to pursue practicing it despite an interest in doing so was that international law has no teeth. Canada has promised to arrest Netanyahu for the ICC if he ever sets foot in Canada, but short a member state stepping in to use its own forces to enforce the will of the ICC, the court itself doesn’t have its own police force to go out and find someone and arrest them. International law places the supremacy of individual state sovereignty over pretty much everything else. So we can sign nice treaties and promise to be on our best behavior (or in the case of the US refuse to sign said treaties) but if anyone violates them, even states that signed on to them, the only way to enforce the treaties is to name and shame the states for their violation or band together to impose sanctions on the violating states. It is largely left in the hands of individual countries to manage their own criminal cases and prosecute their own crimes based on their own laws. That is evidenced by the limited scope of the ICC. In nearly 25 years of existence, the ICC has seen 33 total cases. Issued 61 total arrest warrants. And issued a total of 14 convictions. In 25 years. Short the kinds of atrocities we saw in WWII, in Yugoslavia, in Rwanda, where a special tribunal is set up to address the unprecedented level of atrocity, there isn’t much that will happen to Trump and his Goons on an international level.

It could be that the ICC may take action related to Trump’s bombing of Venezuelan boats, which would clearly be a crime against humanity because you cannot just blow up civilians, that is an extrajudicial killing. Even if he tries to claim we are “at war” with drug cartels and these people were members, there is an argument to be made that this is a war crime because no evidence has been presented yet that the people on those boats were members of any gang or smuggling drugs at all.

Crimes against humanity include murder, enslavement, deportation, imprisonment, persecution against an identifiable group, and disappearing people. Ample evidence is mounting that the Trump regime, through Stephen Miller, Tom Homan, Kristi Noem, and ICE, is committing crimes against humanity in their treatment of immigrants in the United States. There are no international protections, really, for those of us who are US citizens, because the US is not a signatory to the ICC and we are on US soil. But for nationals of countries like Mexico, Venezuela, and Colombia, member states of the ICC, a case could be made that would implicate Trump and all the officials I’ve mentioned in the ICC. And then the ICC will issue arrest warrants. And then nothing will happen.

So it is likely that any justice against Trump and his goons would have to be meted out by our own justice system. Remember how 90% of judges in Germany after the war were former Nazis. Yeah–it’s very likely that any sort of reckoning with what’s unfolding in this country will take many years, will be met with extensive denial, and will involve very little punishment for the perpetrators. As they attempted to hold Nazi sympathizers accountable within Germany, the Allied forces realized, according to the National WII Museum, quote “it soon became apparent that there would not be enough qualified doctors, lawyers, judges, teachers, and civil servants if former Nazi Party members were excluded from those professions.” The ICE officers, the low level MAGA diehards, the rank and file voters will likely go on to live quiet normal lives no matter what kinds of atrocities unfold under MAGA leadership in the coming years. But I hold out hope that our own justice system may hold some of the worst people accountable. Maybe. Probably not Trump, he’s on death’s doorstep and will likely meet Hades long before he sees the inside of a courtroom again. But Stephen Miller’s only 40. JD is 41. There’s still time. And there are laws on the books that are clearly being violated as the administration orchestrates its anti-immigrant cleansing of the country. Widespread denial of due process has been heavily documented. Excessive use of force as well. First Amendment freedoms are being violated. 4th amendment freedom from unreasonable search and seizure. The list goes on.

Qualified immunity, which protects government officials from liability, may likely apply to cases against, for example, Stephen Miller, just to use a random hypothetical, however that immunity only goes so far. If an official violated a clearly established law or constitutional right, then that immunity goes away and they can be held liable or found guilty for their crimes. Again, Trump would get off scot-free likely by succumbing to the sweet embrace of death or because the Supreme Court granted him absolute immunity for pretty much anything, but other government officials do not have that luxury. Not yet anyway. Which actually works against them, because we all know Trump is just a figurehead but people like Stephen Miller are the ones actually running the government. Proving that in court is a whole other beast, however. Again, any legal retribution would be slow and take years to play out. If history teaches us anything, it is that justice is never swift and it is almost never very fulfilling. That was a hard lesson I learned during law school, watching trials, watching sentencing, meeting formerly or currently incarcerated individuals. Even a successful prosecution of an individual who did horrible crimes doesn’t really feel that good. Not in my experience. It mainly feels deeply sad. Because it doesn’t undo the lives that the perpetrator ruined. Our criminal justice system rarely produces reformed inmates. One person sentenced rarely fixes the problems with the world that led them to the courtroom in the first place. The world is still left to pick up the pieces and deal with the consequences of criminality. It is deeply, deeply dissatisfying in a way that movies and TV do not prepare you for.

And I am not saying all this to make you depressed, though I understand if that is the effect of it. But I wanted to take today to explain how the international criminal process works. And to implore you not to look to eventual legal retribution as something that will make you feel satisfied or avenged once all of this is over. Because it will eventually end–it doesn’t feel like it now. I’m sure it didn’t feel like it in Germany in 1941 either. But it will. And any criminal prosecutions that come from it will feel woefully inadequate. I promise you that. So I implore you not to sit back and say ah well Stephen Miller will get his just desserts some day. He probably won’t. I want instead to empower you to find what you can do now to make yourself feel satisfied today, not in retribution but in helping others, in finding shared humanity, in fighting against injustice as it is happening and not relying on a military tribunal to do so 15 years from now. And this satisfaction will probably come not from a giant symbolic action but instead from showing up daily to do the work of community building. Check in with your neighbors. Coordinate amongst yourselves. Form mutual aid groups. Protest against ICE. Volunteer. You don’t need to reinvent the wheel or create something new and revolutionary, you just need to show up. People with more experience than you will tell you what they need and put you to work. Whether that’s in your neighborhood coalition or your friend group or your local indivisible chapter. Don’t underestimate the power of showing up, ready to do the hard work of fighting against injustice as it is happening. I will continue to do my part by bringing you this information every week.

If you have a question you’d like me to answer in a future video, comment QUESTION in all caps along with your question so that I can see it from amongst the trolls.

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And if you liked this episode, you’ll like the one from last week about how humor can topple dictators.

Leeja Miller
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Humor Can Topple Dictators