Judge Thomas Buergenthal was one of the youngest survivors of the Auschwitz and Sachsenhausen concentration camps. He immigrated to the United States at the age of 17. Judge Buergenthal has devoted his life to international and human rights law. A former chairman of the Museum’s Committee on Conscience, he is currently the Lobingier Professor of Comparative Law and Jurisprudence at the George Washington University Law School and served for a decade as the American judge at the International Court of Justice in The Hague. He served as a judge and president of the Inter-American Court of Human Rights and of the Administrative Tribunal of the Inter-American Development Bank, and was the first US national to be elected to the UN Human Rights Committee, a member of the UN Truth Commission for El Salvador, and vice chairman of the Claims Resolution Tribunal for Dormant Accounts in Switzerland. With a unique perspective shaped by his experiences as a Holocaust survivor and international jurist, Judge Buergenthal has taught at several leading law schools and written more than a dozen books and numerous articles on international law and human rights.
First of all to answer the question about how international tribunals decide whom to try, especially international criminal tribunals, I think the easy answer is of course they try to get the ones most responsible. But they're not always easy to get, and we see this of course in the former Yugoslavia. They go into hiding or the governments refuse or try not to extradite them. So that's the first approach. The second point is that international tribunals really cannot try everybody responsible for large-scale violations of international criminal law. It's simply impossible. I remember right after Rwanda -- the genocide in Rwanda -- I was asked by a Rwandan delegation how to go about establishing an international criminal court, and I said, "Well how many people are you thinking of trying?" and they said "Well at least a hundred thousand." I just couldn't believe it because you can't ... in an international court the thought that you would be able to try a hundred thousand criminal defendants is just, it boggles the mind, it's just impossible. You have to have a small, at most a group of 30, 40 people, if you don't want to be trying them for 40, 50 years, assuming you're prepared to do everything by applying due process of law, rules, etc. etc. So the second limit, the second restraint on international criminal tribunals in terms of selecting whom they're going to try is simply the fact that they cannot try everybody. And so they try to try those who have committed serious crimes and who also in many ways symbolize some of the offenses that have been committed. They don't always succeed. They manage to get hold of some and not of others, and it's sometimes catch as catch can as we see in both of these tribunals.