By Rob CawstonopenDemocracy
November 21, 2005
"We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow".
These were the words delivered by Robert H Jackson on 20 November 1945 as he stood before twenty-one of the Nazi regime's leading political figures charged with crimes against peace and humanity. As chief prosecutor for the Nuremberg trials, Jackson's opening statement sealed the Allied victory and sought to usher in a new era of international relations governed by the quiet power of the law over the might of armed aggression. In the second half of the 20th century these aspirations all too often became lost in the fog of the cold war or scattered over the killing fields of the world's continuing armed conflicts. The previous decade however has witnessed new international tribunals, truth commissions, reparation initiatives and the creation of an International Criminal Court devoted once again to applying the rule of law to crimes against humanity and state-sponsored atrocity. On the tribunal's sixtieth anniversary, how should history now judge the proceedings at Nuremburg and their legacy?
The International Military Tribunal (IMT) at Nuremberg was unique for both its aims and the legal basis of proceedings. The period between the two world wars had produced international peacekeeping agreements without either the will to implement them or the mechanisms to enforce them. Several European signatories of the 1928 Kellogg-Briand pact which promised to renounce war as an instrument of foreign policy broke their word within a few years; a draft convention produced in 1935 for the creation of an international criminal court under the League of Nations gained few true supporters. From the fire of another intense international conflict, the Nuremberg trials applied the principle of law to acts of international aggression for the first time in modern history, and established new crimes of war for which individuals at all levels can be held to account. It was nearly very different. Winston Churchill had proposed that the leaders of the German regime be simply taken out and executed, and his foreign secretary Anthony Eden believed that the guilt of individuals was "so black that they fall outside the scope of any judicial process". Joseph Stalin also wanted to keep proceedings in the political realm, agreeing in principle to a tribunal only as a Soviet-style "show trial" which would dispense preordained capital punishment.
It was only after intensive talks in London on 8 August 1945 that France, the Soviet Union, the United States and Great Britain signed the charter creating the IMT for the prosecution and punishment of major war criminals. Twenty-four Nazi leaders in positions of political influence – including Herman Goering, chief of the Luftwaffe, and Hitler's deputy Rudolf Hess – were charged with the four counts falling within jurisdiction of the court: crimes against peace; planning and waging aggressive war; war crimes; and crimes against humanity (genocide and persecutions of civilian populations). Perhaps the most astonishing thing about the Nuremberg trials at the time were not their legal foundations, but the simple appearance of monumental figures, for so long shrouded in the myth and fantasy of war-time propaganda, at a public trial sitting calmly in front of their enemies and even those they had individually persecuted. In the archive footage they seem small, indistinguishable men, many of whom visibly shrunk to hollow shells as footage of the Auschwitz and Belsen concentration camps was shown before the court.
It was this documentary evidence, taken by the advancing Allied troops, and the documents retrieved from the Nazi party archive that sealed the fate of the defendants. From the group of twenty-four, two died before the end of the trials (one of them Goering, who took his own life with a cyanide pill), twelve were sentenced to death by hanging, seven were given sentences of between ten years and life imprisonment, and three were acquitted. A recurring criticism of the Nuremberg trials has been the accusation that the tribunal administered "victor's justice". Despite Jackson's remark in his opening statement that "to pass these defendants a poisoned chalice is to put it to our own lips as well", such criticism is justified, but only up to a point. The international tribunal was not unbiased, for the process was presided over by non-neutral judges from the Allied nations. Defendants were also not allowed to submit evidence in their defence that pointed to the Allied forces' own actions (except in one count involving the duplicate tactics of U-boat and American submarine forces). Moreover, the Russians tried to have their own troops' massacre of Polish officers in the Katyn forest laid at the Nazis' door; this was later removed from the court's final ruling, although the Soviet Union admitted its responsibility only in 1990. Such double standards were perhaps inevitable considering the war waged over the previous four-to-six years; the court was never likely to investigate alleged Allied crimes, such as the firebombing of Dresden in 1945, which were to become matters of sustained controversy only years later.
The successful convictions and reasonably high standards of the first trial led to a further twelve trials involving a total of 177 defendants. However, it is not the charges or sentences handed out, but the legal precedents they set that remain Nuremberg's great achievement. The establishment in law of crimes "against humanity" – acts offending the whole of mankind by their very nature – in Article 6 of the charter, and the ascribing of individual (as opposed to state) responsibility for such crimes, opened the possibility of breaking through the sovereign immunity shrouding the heads of state and the architects of mass atrocity. Rather than a poisoned chalice, the Nuremberg precedent offered the world a model from which to build a global order accountable under international law. As Benjamin Ferencz, chief prosecutor for the United States at the tribunal, stated in the trial against the Nazi Einsatzgruppen: "The case we present is a plea of humanity to law â€¦ if these men be immune then the law has lost its meaning and man must live in fear".
Leaving a legacy
Robert H Jackson stated after the Nuremberg tribunal that "it would become clear in the century-run what its meaning would be". Such patience has been needed. The dreams of Nuremburg and all it stood for were quelled by the renewal of political hostilities and ideological division. The first half of the century-run has been a crawl through turgid diplomacy and renewed impunity for crimes against humanity. Money and political will soon floundered for the continuation of the trials and the political landscape changed rapidly as states set up camp on either side of the rising cold war ideological mountain. The trial of Japanese leaders at the Tokyo trials of 1946-48 presented a perfect opportunity to apply and even build on the Nuremberg precedents, but America exempted Emperor Hirohito for reasons that had as much to do with politics as justice. This process was closer to a show trial in which Japanese leaders were arraigned for actions they undertook in the name of an absent defendant: the emperor.
It was not until the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993, almost fifty years after Nuremberg, that the legal hiatus was ended. Founded in response to the unfolding atrocities perpetrated in the wars of a disintegrating Yugoslavia – and the failure of the international community to halt these or arrest those responsible – the Hague tribunal has suffered from procedural obstacles and a lack of enforcement mechanisms. A similar tribunal for Rwanda (ICTR) was established in 1994 in response to the genocide of the Tutsi population. This time the focus fell on crimes committed within a national boundary and not between international borders, pushing one step further the reach of the Nuremburg precedents in international law. On 16 October 1998 the arrest of the former Chilean dictator, General Augusto Pinochet, in London forced open the doors further to a modern form of "transnational justice". Judge Balthasar Garzón of the Spanish Audencia Nacional issued an extradition request on charges of crimes against humanity under international law committed during Pinochet's dictatorial rule in Chile from 1973-90. Despite the collapse of proceedings on health grounds the so-called "Pinochet effect" echoed across Latin America opening the domestic courts of both Chile and Argentina to cases and crimes previously sealed under state-issued amnesty and buried under a collective amnesia.
The Pinochet case and its aftermath highlighted the necessity of a fully functional international criminal court. On 11 April 2002, the sixty ratifications needed to bring the 1998 Rome statute into effect were achieved against vigorous United States opposition; a month later, assistant secretary of state John Bolton (now UN ambassador) filed notice with the UN to the effect that the United States of America did not accept the jurisdiction of any foreign court over its citizens. Without US support, and with a rule against retroactivity (the charging of crimes committed before the date of the court's establishment), Geoffrey Robertson has labelled the court "a global cop-out" and warned against triumphant flag-waving. The ICC was born at a turbulent time and, as Benjamin Ferencz concedes, "every newborn child must crawl before it can walk". It represents the institutionalisation of the principles and precedents established at Nuremberg and yet it clearly needs space to articulate for itself, learn from its mistakes, and grow into an established institution with a truly global jurisdiction. Under the subsidiary principle the ICC only punishes cases that domestic courts are either unwilling or unable to prosecute themselves. Luis Moreno Ocampo, the ICC's chief prosecutor, has said that his real job is to make his role ultimately unnecessary. In many ways, the post-9/11 international context and the continuing "war on terror" has ensured international law remains a blunt instrument wielded by those pushed to the fringes of power and influence. There are signs though, that in other areas of the world, international law is quietly winning the day. In July 2005, a former Afghan warlord was tried and convicted in a British court under charges of torture and hostage-taking. Sudan's special court for Darfur crimes has sentenced two army soldiers to death for torturing and killing a civilian; the ICC issued its first arrest warrants for Lord's Resistance Army leaders in northern Uganda in October 2005; and Chile itself has arrested the exiled former leader of Peru, Albert Fujimori, who now waits to see if he is to be extradited back to the country he once led.
What is the true legacy of the Nuremberg tribunal, sixty years on? Noam Chomsky argues that an application of the Nuremberg laws would lead to every single post-war American president being charged. The law professor Philippe Sands points out in his book Lawless World: America and the making and breaking of global rules, case law exists to suggest that western lawyers and policy-makers could also be criminally liable for the participating in state-run crimes or acts of aggression, putting much of the Bush administration under risk. The application of such rulings is more than unlikely but the precedent is there waiting for a change in circumstances, a defeat, a retreat, an opening amongst the politics and politicians of power. The lessons of Nuremberg are still there to be learnt. They include top-down institutional practices pushing through the Nuremberg precedents of law, and bottom-up responses focusing on education policy and practice including the teaching of history and religious studies, the training of soldiers and the opening of cross-cultural communications. Meeting Benjamin Ferencz at a recent conference (Pursuing Human Dignity) in the green pastures of Harvard University, I was struck by the sheer sense of determination and belief emanating from this tiny, 86-year-old Jewish American. After talking passionately about his experiences he asserted simply that: "if you believe law is better than war then support law and stop glorifying war". History may have taught us to temper our expectations of international law's reach and bite. But we must never allow our aspirations for a peaceful world governed by international standards of law to falter.
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