Reflections on the Brooklyn Judge’s Rare Expertise and Commitment to War Crimes Accountability
Judge Martin Karopkin (right) is pictured with his judicial colleagues from the UN tribunal in Cambodia.
The deputy. Martin Karopkin, who has served in courts in Kosovo and Cambodia, brought his legal and police expertise on war crimes to a special lecture he recently gave at Congregation Mount Sinai in Brooklyn Heights. A resident of Heights and alumnus of Brooklyn Law School, he served as an international judge at the United Nations Mission in Kosovo and at the Extraordinary Chambers of the Cambodian Courts (the “Khmer Rouge Tribunal”). Judge Karopkin has also served in the New York State court system and as an assistant commissioner of trials for the NYPD.
More recently, Judge Karopkin communicated with the Ukrainian government regarding the practices and procedures of war crimes trials, before these trials began in Ukraine.
Roger Adler, a respected local criminal defense attorney, was present at the Brooklyn Heights conference. Adler is past president of the Brooklyn Bar Association, Kings County Criminal Bar Association, and president of the Criminal Justice Section of the New York State Bar Association.
Adler responded to Karopkin’s lecture with an essay titled “War Crimes in Ukraine – For Whom the Bell Tolls.”
War crimes in Ukraine – for whom the death knell tolls
The documented brutality of Nazi Germany and the Japanese Empire prompted the coalition of World War II allies to conduct war crimes trials after Germany and Japan surrendered unconditionally. Plans for such war crimes tribunals emerged around the time of the “Big 3” meeting in Potsdam. This marked (and was seen as) a novel and legally appropriate approach to the identification and proper prosecution of atrocities committed against both Allied servicemen and innocent civilians.
This included, but was not limited to, the continuation of unjust wars, the “Rape of Nanjing”, the cruel Bataan death march after the fall of Corregidor in the Philippines, and the establishment of concentration camps where some six million Jews were cruelly exterminated. Rather than resorting to military tribunals (or summary hearings), followed by death by firing squad (or hanging), the war crimes courtroom was designed as the most likely civilized response to deal with the depraved and deliberate behavior that occurred during the Second World War. Simply following orders from superiors was no longer a legal defense.
Many Americans are unaware that following the American Civil War there were military trials against a number of Confederates for war crimes. Thus, Henry Wirz, who commanded the Andersonville prison, stood trial for the deaths of nearly 13,000 Union soldiers from malnutrition, disease, and exposure. He was hanged in November 1865.
Champ Ferguson was an East Tennessee farmer who was convicted of killing fifty captured and hanged Union soldiers in October 1865. Robert Kennedy, a Confederate officer, committed arson while on a mission in New York and was tried before a military tribunal and hanged in March 1865.
The trials of prominent Nazi military and government officials and their supporters in Nuremberg, Germany, and Tokyo, Japan, prosecuted by Associate Justice of the United States Supreme Court Robert Jackson (and assisted by Telford Taylor) , were both historically significant and fascinating events, creating a history. record of crimes deliberately perpetrated by those who had “crossed the line” separating humanity from barbarism. Who can forget Stanley Kramer’s gripping film “The Judgment at Nuremberg”, starring Spencer Tracy as the American lawyer at the war crimes tribunal, Burt Lancaster as the German judge at trial or Maximilian Schell as of his defense attorney?
The Nuremberg War Crimes Trial led to the codification in 1950 by the UN of the list of Seven Nuremberg Principles:
1. Anyone who commits an act which constitutes a crime under international law is responsible and liable to punishment.
2. The fact that domestic law does not impose a penalty for an act which constitutes a crime under international law does not exonerate the person who committed the act from his responsibility under international law.
3. The fact that a person who has committed an act which constitutes a crime under international law, has acted as a Head of State or government official does not exempt him from his responsibility under international law.
4. The fact that a person acted on the orders of his government or of a superior does not exonerate him from his responsibility under international law, provided that a moral choice was in fact available to him.
5. Anyone accused of a crime under international law has the right to a fair trial on the facts and the law
6. The crimes listed below are punishable as crimes under international law: (a) crimes against peace, (b) war crimes and (c) crimes against humanity
7. Complicity in the commission of a crime against peace, a war crime or a crime against humanity as set forth in Principle VI is a crime under international law.
Decades later, these crimes were followed by war crimes trials in Kosovo in the Balkans, then in Cambodia in Southeast Asia, under the auspices of the United Nations. In 2006, Martin G. Karopkin, a Brooklyn Heights resident and former criminal court and Associate Justice of the Supreme Court of the State of New York, was appointed as an international judge to the tribunal designated to try crimes committed by the Khmer Rouge between April 1975 and January 1979. The tribunal, known as the Extraordinary Chambers of Cambodian Courts (ECCC), is a Cambodian tribunal with international participation through the United Nations. From 2006 to 2008, Judge Karopkin made several trips to Cambodia to help develop the rules and
procedures that guided the court.
In 2014, Judge Karopkin traveled to Cambodia to serve as a reserve judge for the Trial Chamber in the case against two of the Khmer Rouge regime’s top leaders. The verdict of this trial was delivered in 2019.
Civil War Union Army General William Tecumseh Sherman made a revealing observation that “war is hell.” While this is unquestionably true, there are limits to military action. The ongoing war crimes trials in Kyiv send a powerful message to the Russian military – there are civilized borders even in times of war and, if crossed knowingly and believable, they will result in a siege on the bench charged with significant sentences. An offered guilty plea does not preclude an independent investigation of the facts under civil law.
Earlier in June, media reported that United States Attorney General Merrick Garland traveled to Ukraine to speak with Ukrainian Attorney General Iryna Venediktova to help the Ukrainian government (a ) identify, (b) apprehend and (c) prosecute those involved in war crimes. . Attorney General Garland’s unprecedented focus on the issue of war crimes prior to a cessation of military action (and an armistice) underscores the United States’ continued commitment to the rule of law and is consistent with the leadership of the United States in the prosecution of war criminals, dating back to the Nuremberg and Tokyo war crimes trials involving a clear “war of aggression”.
At what level of the Russian military and governmental scale hot crime prosecutions will proceed is currently (and at best) unclear. However, to the extent that Serbian leader Slobodan Milosevic found himself indicted in the Kosovo war crimes trials, this prosecution sent a clear and unequivocal message to Russian President Vladimir Putin that, to paraphrase President Harry S. Truman, the war crimes stop. with him.
The Justice Department’s announced launch of a “War Crimes Accountability Team,” headed by former Justice Department (DOJ) Director of Special Investigations Eli Rosenbaum, Esq, reinforces the perception that US concerns about Russian war crimes constitute a willingness by the US government to take a decidedly more militant approach that will hopefully have a chilling effect on the Russian military and the military tactics it employs .
Only time will tell if this will have a deterrent effect on Russian military invasion. Ignoring it has made Russia, like Hitler’s Germany, an “outlaw nation” that favors civil intimidation over civilized standards. For Russian President Vladimir Putin, only time will tell if he is destined to take his seat in a 21st century Nuremberg war crimes trial bench. That President Putin orchestrated retaliatory war crimes trials, targeting suspected Ukrainian mercenaries, is just the latest iteration of the use of war crimes trials for general deterrence.
It is vital that we deny the cynical statement of Joseph Goebbels – the world does not remember the massacre of Armenians by the Turks. Never again!