The Nuremberg Paradox

Abstract

The United States is generally proud of its leadership role at the trials, making America's current rejection of the precedent they established seem paradoxical. This article approaches the Nuremberg Paradox by examining the French experience with the trials, and comparing France's adoption and internalization of international criminal law to that of its American cousin. The Article concludes that an important reason that the principles never took root in the United States stems from the different legal cultures and traditions of the two countries, particularly as regards the field of international criminal law. Examining the inter-war, post war and modern application of international criminal law in France and the United States, one is struck by the long-standing legal, philosophical and political differences exhibited by the two countries' approaches, and perhaps most starkly, the differences that appeared during the negotiation, adoption and ratification of the International Criminal Court Statute in 1998. Indeed, although the French Parliament was willing to ratify the ICC Statute and at the same time adopt a constitutional amendment abrogating the immunities and future amnesties granted to its own members and the President of the French Republic, U.S. opposition to the treaty has been consistent and, at times, overwhelming. In exploring these questions, the article surveys the interwar scholarship, the post-world war II prosecutions of Vichy collaborators and former Nazis in the Touvier, Barbie, and Papon cases, and France's more recent exercises of universal jurisdiction in the modern period of international criminal law. The implications of the French experience are analyzed in light of Harold Koh's transnational legal process theory, which captures the process by which France internalized the principles, but does not explain why that process took hold in France but not in the United States. The Article's central claim is that deeper historical, cultural and social factors that influenced French legal culture explain the differences between the two countries approaches. Indeed, an examination of the French precedent illuminates our understanding of how and why international criminal law remains only superficially and sporadically enforceable in the United States.