Nuremberg Misremembered

Abstract

Nuremberg Misremembered Jeremy Rabkin (bio) More than fifty years after they ended, the Nuremberg Trials have been much in the news over the past year. A short piece in the New York Times magazine, published in early January of this year, perfectly captured the appeal of such reminiscences: “The war crimes tribunals for Bosnia and Rwanda, the newborn international criminal court and a Spanish judge’s indictment of Gen. Augusto Pinochet of Chile are expressions of the idea that how a nation treats its own citizens is everybody’s business. That principle was established 50 years ago at the Nuremberg trials.” 1 In fact, the International Criminal Court remains quite controversial in this country, at least under the terms concluded at a United Nations Conference in Rome in July 1998. 2 The Clinton administration has refused to support the resulting treaty text, for fear that it might expose U.S. military personnel to international prosecutions. So too, there is much controversy about whether General Pinochet should have been seized while on an official diplomatic mission to Britain last summer and held for extradition to Spain. While the European Parliament expressed strong support for trying Pinochet in Europe—for tortures and killings of Chileans, on Chilean soil, while Pinochet was head of state in Chile—the U.S. State Department has pointedly refrained from endorsing such a trial. Yet there are many advocates in this country (including human rights activists, international law scholars, and enthusiasts for global cooperation) who urge the United States to endorse the International Criminal Court and to support such ventures as a European prosecution of Pinochet. Such advocates now summon [End Page 81] the Nuremberg precedent to show that ventures of this kind are, after all, in our own national tradition. As law professor Diane Orentlicher flatly declared in the Los Angeles Times last December, we have “derived from Nuremberg,” the principle “that the law of humanity can be enforced by any state....For justice will likely elude victims of mass atrocities unless bystander states take up their claims.” 3 Before Nuremberg becomes, in this way, an unquestioned axiom for arguments on vexing contemporary issues, we should recall with more precision what actually was done there. The actual record of Nuremberg is different, in many ways, from the iconic image now invoked by contemporary advocates for “international justice.” The Nuremberg Trials were more flawed than we like to remember, but also less truly international. If we are going to draw lessons from that experience, we might profitably attend to the self-protectiveness of the states that organized the trials—and their understanding of the responsibility of great powers. “Crimes Against Humanity” Were Peripheral The International Military Tribunal (IMT) for the trial of Nazi leaders was established at a conference of delegates from the Big Four Allied Powers, that met in London in July 1945—at the same time as the Big Four Conference at Potsdam was making wider decisions about the Allied occupation of Germany. After very hasty trial preparations, the IMT convened in Nuremberg in November of 1945 for the joint trials of twenty-four defendants. Almost a full year later, the tribunal handed down its verdicts, which included eleven death sentences and three acquittals. Apart from the contemporaneous trial of Japanese war criminals by an international tribunal in Tokyo, there has been nothing quite like it to this day. One of the reasons for the absence of such international tribunals is that, at the time, the Nuremberg Trials were enveloped in considerable controversy. Many Americans, including some very distinguished jurists, regarded the proceedings at Nuremberg as political “show trials.” Harlan Fiske Stone, the chief justice of the United States Supreme Court, refused to take part in a swearing-in ceremony for the U.S.-appointed judges to the IMT. Stone characterized the whole undertaking (in private) as “a high-grade [End Page 82] lynching party.” 4 Only a few years later, Supreme Court Justice William O. Douglas protested—in print—that the leading Nazis had been tried under “an ex post facto law” and “their guilt did not justify us in substituting power for principle.” By the mid-1950s, Senator John F. Kennedy thought it...