Nuremberg's Continuing Importance

The Nuremberg trials of the Nazis after World War Two are arguably the bedrocks of international law. The Nation memorialized Telford Taylor, a Nuremberg prosecutor who died in 1998, as the man to whom the "human rights movement owes much of its legal foundation. . . [Taylor's work in] Nuremberg gave legitimacy to the concept that the world had something to say about how governments treat their own citizens. In 1950 the United Nations codified Nuremberg's most important statements into seven Nuremberg Principles, which have since been adopted by the legal systems of almost every major nation." Wikipedia suggests the conclusion of Nuremberg led to four important conventions now considered sacrosanct in international law: (1) The Genocide Convention, 1948, (2) The Universal Declaration of Human Rights, 1948, (3) The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity, 1968, and (4) The Geneva Convention on the Laws and Customs of War, 1949; its supplementary protocols, 1977.

Eric Posner, a professor of law at the University of Chicago, criticizes the Nazi war crimes tribunal by suggesting that the judgements of Nuremberg are not law in any meaningful sense. If Posner is correct, then all of the conventions, treaties, and norms that declare Nuremberg as their inspiration are legally smoke and mirrors. Let us begin with Posner's comments on Nuremberg. After that, I shall briefly point out some flaws in Posner's critique and offer why Nuremberg is still important.

Posner's observations crystallize around three points. One, Nuremberg was a legal act in only the thinnest sense. The "legal" basis of Nuremberg stemmed directly from a policy paper, the London Charter, and was nothing more than a "sensible, politically expedient decision [disguised] as a moral judgment." Any enforcement of this policy paper would be political and not truly legal. Posner himself develops that point most succinctly: "Involvement of lawyers and judges does not convert an administrative procedure into a legal procedure, much less convert a political act into a tribute to Reason, at least not in any morally important sense."

Two, contrary to Jackson's assertions, the Allies did not stay hand of vengeance in any meaningful way. By the time the war ended, the Soviets, the British, and the Americans had bombed thousands of German civilians and massacred millions of German troops. Those Germans who were fortunate enough to survive watched the victors divide their country and rape the women while the neighboring countries purged their territories of Germans. There was indeed vengeance, Posner argues, and the Germans felt it.

Three, Posner continues, Nuremberg tried the leaders as symbols of Nazi criminality and forced them to give account and take responsibility for the atrocities they caused. The allies made no attempt to try, detain, arrest, and indict all those responsible for the war and for implementing the dictates of the National Socialist party--indeed they could not if they wanted Germany to continue as viable nation. Pragmatism demanded that "thousands of culpable nationalists and militarists were permitted to resume ordinary life." Trying the symbols of the failed regime, Posner concludes, "might have been sensible from an administrative perspective, from a public relations perspective...[or even] politically shrewd under difficult circumstances. But it was not a great moral victory, much less a vindication of the rule of law." In fact, the limitations and expediency of the entire Nuremberg process, in that "it did not establish an effective international rule of law that would constrain states over the next half century," suggests that its celebration as "one of the most significant tributes that Power has ever paid to Reason" is unwarranted.

Gary Bass's, a professor of political science at Princeton, work on Nuremberg is useful for contextualizing Posner's point about the postwar situation. He wrote a book entitled, appropriately enough "Stay the Hand of Vengeance:
The Politics of War Crimes Tribunals", and came here to the University of Chicago, at Eric Posner and Eugene Kontorovich's invitation to present his work at the International Law workshop. Bass maintains that war crimes tribunals, of which Nuremberg was not the first or the last, are messy affairs, especially "if one wants to get rid of undesirables; using the trappings of a domestic courtroom is a distinctly awkward way to do it. Sustaining a tribunal means surrendering control of the outcome to a set of unwieldy rules designed for other occasions, and to a group of rule-obsessed lawyers. These lawyers have a way of washing their hands of responsibility for the political consequences of their own legal proceedings." Postwar diplomacy is messy and legal rules and trappings don't help. So why use war crimes tribunals? Bass develops the answer at length:

The core argument...is that some leaders do so because they, and their countries, are in the grip of a principled idea....Some decision makers believe that it is right for war criminals to be put on trial—a belief that I will call, for brevity's sake, legalism.

There are strict limits to the influence of legalism. Above all, legalism is a concept that seems only to spring from a particular kind of liberal domestic polity. After all, a war crimes tribunal is an extension of the rule of law from the domestic sphere to the international sphere. Although illiberal or totalitarian states accustomed to running domestic show trials might try to do the same at the international level, the serious pursuit of international justice rests on principled legalist beliefs held by only a few liberal governments. Liberal governments sometimes pursue war crimes trials; illiberal ones never have.

In fact, even though Winston Churchill wanted to shoot all the Nazis after the war, President Roosevelt right before the Yalta conference, had become persuaded by the need for a case to document the crimes of the Nazi regime. Stalin agreed with Churchill's basic sentiment of shooting Nazi leaders but quipped, "In the Soviet Union, we never execute anyone without a trial." Churchill agreed saying, "Of course, of course. We should give them a trial first." All three leaders issued a statement in Yalta in February, 1945 favoring some sort of judicial process for captured enemy leaders. Stalin and Churchill's support of the trials, however, were only intended as cover for doing what they wanted to do anytime: stick it to the Germans and the Nazis for their third major war in seventy years.

The British and American judges, however, saw the point differently, and were committed to a fair process. Justice Robert Jackson conceded that although whether to hold trials or not was a political question. "It's a political decision as to whether you should execute these people without trial, release them without trial, or try them and decide at the end of the trial what to do. That decision was made by the President, and I was asked to run the legal end of the prosecution", once the politicians had decided in favor of trials, the rule of law should reign supreme. Jackson, in his discussion with negotiators from the other nations, further stipulated: "What we propose is to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code." This might have, and indeed did, lead to some leaders being acquitted under the rules established for the proceedings. In fact, as Bass pointed out in the workshop--between making fun of my purple hat--the Soviet judges, accustomed to rubber-stamping the political decisions of the Communist party, were upset when their British and American colleagues voted to acquit some Nazi leaders.

For the Americans and the British, the tribunals represented the postwar moment where, through legal proceedings and the rule of law, the vengeance expected on the battlefields and in the prison camp was bracketed and sublated into the rules-governed adversarial process of legal adjudication. The Soviets, on the other hand, saw trials, massacres, and shootings as equal opportunity tools of a victor's justice of vengeance. Leaders were tried before they are shot--the judicial legitimates the political and the violent--;the soldiers and POWs were executed and deported; the women, at the mercy of the soldiers, were raped to atone for the German crimes of aggression; and the industry and workers of E. Germany, where the Soviets reigned supreme, were shipped back to the homeland to aid in the cause of socialism. Posner pointed out that some militarists went back into civilian life because we couldn't catch them all. That was only really true in W. Germany; in the east, the Communists, after spending years in the prison and death camps, sought to purge Germany of the fascist militarism, and largely did through the wholesale slaughter and internment of a good portion of the adult population.

Does it matter that even in W. Germany, Nuremberg wasn't really law in the way that American domestic law is law? Not really. That Nuremberg took the form of law and legal processes was important--that it was a vindication of the rule of law was less central to the lessons of Nuremberg. Posner is disappointed because Nuremberg was essentially legal enforcement of a policy decision. But the strength of Nuremberg is not the fact that it's good law--Posner's right on that point--but that it underscored the importance of (1) using lawyers, judges, and legal processes to carry out politically sensitive jobs and (2) time-bounded institutions as means of resolving delicate questions.

First, because of the professional importance of following rules and procedures, and, more importantly, creating legitimacy for their actions, legal processes and languages have become important ways of cooling down hot potatoes. What do we do with Saddam, Milosevic, and Pinochet? We could shoot them; it's probably more than they deserve. No, instead, the United States wants to try them and demonstrate, plainly for all to see, that like Eichmann, these men are not just criminally culpable, they represent a type of evil in the international system that can only be contained by leaders who submit their authority to the rule of law. Like Eichmann, Napoleon, or any of the others leaders tried before tribunals, Pinochet, Milosevic, and Hussein "never aspired to be villains. Rather, they over-identified with an ideological cause and suffered from a lack of imagination or empathy: they couldn't fully appreciate the human consequences of their career-motivated decisions." Even American presidents have done atrocious things in the name of power politics--Bush I watched the Kurds die and Nixon destroyed many countries in South Asia--but ultimately the rule of law, in this case elections and threat of impeachment--removed the cancerous sores from the American polity.

Second, these temporally specific institutions, established to do one job, grant states and non-state actors a place where they can create political frameworks designed to deal with a specific situations. This political understandings often create convergence around new normative frameworks--like the principle of distinction or the concept of genocide after Nuremberg--that give state leaders rhetorical tools to legitimate their actions and non-state actors normative tools to mobilize support and criticize states.

Legal process are the best forms of institutional legitimation and power to accomplish the resolution of delicate political questions.

Posted by John Stevenson at 7:00 PM |