A Critical Look at Nuremberg
In the aftermath of genocide or mass violence, why might it be problematic when the process of justice is determined only by those parties who were victorious? Is it fair when only certain people or nations are held accountable in an international court of law, and not others? Is it possible for international judicial efforts to be untainted by the politics of individual nations?
Although international criminal tribunals have helped on some levels to bring about justice for some nations transitioning from genocide and mass violence, these tribunals are nevertheless subject to the politics of the nations who have created them. This reading looks at these international efforts through a critical lens. By asking the reader to consider the implications of prosecutions when those being prosecuted “did not participate in making the rules,” New York Times Magazine columnist Max Frankel challenges us to reflect on the ethics of international prosecutions.
In 1995 international criminal tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were getting under way. Frankel thought about those tribunals as he reflected on his own childhood in Germany, his terrifying flight from the Nazis and the unease that the Nuremberg trials created in him. Frankel wrote that as an adolescent he “could never endorse the pretense that by starting a war, like men in every generation, and murdering civilians, as even the ancient Greeks had done, the Nazis had violated some kind of ‘law’ and were now subject to trial and sentenced by a hurriedly conjured ‘court.’” 1“The War and the Law” by Max Frankel, New York Times Magazine, May 7, 1995.The War and the Law
There in a Nuremberg dock sat the porcine Hermann Goering and 21 other German warlords before four Allied ‘judges’ pretending to weigh the defenses that a pickup team of German lawyers could muster against the massive evidence of the Nazi barbarities and aggressions. There was no doubt about that gang’s guilt before God and the victors’ duty to avenge the Nazis’ victims. But the winners were producing a false image of justice, a theater of the absurd, as if the peoples of the world had created a government and passed laws against war and wartime acts of cruelty.
...Don’t misunderstand: the sins of the Nazis and their contemporary successors are unforgivable and deserve to be avenged. But in an anarchic world where there is no authority to define the crimes of nations or individuals who lead them, those deeds are not unlawful. No one has been authorized to write such laws or to appoint judges and prosecutors and to raise the taxes to pay jailers and executioners. In the evolution of human institutions, these are major missing links.
...As we can see in the case of Bosnia or Rwanda, not even outraged nations elsewhere are disposed to go to war in the service of justice. So the chances are slim that anyone will ever catch up with the major perpetrators of crimes against humanity in those countries. The tribunals that have been convened for them trace their authority to resolutions of the United Nations—a league of nations formed to protect, not to penetrate, the “sovereignty” of its members. If it were otherwise, many of the members, from Argentina to Zaire, would be hauled into courts for their crimes against humanity.
It is deplorable that a great many such crimes go unpunished. But even more regrettable is the pretense, over these past 50 years, that the world’s nations and their leaders are moving to subject themselves to a regime of supranational law. The ugly truth is that international crime pays. Aggressors walk free if they win the wars they start. Atrocities are customarily cited only against losers. The civilized world cannot prosecute the most heinous crimes without first defeating the perpetrators. It can’t defeat them without an army. It can’t raise an army without levying taxes. And it can’t collect taxes without a Parliament or an Internal Revenue Service.
We are no closer to such a regime than we were at the end of WW II, when E. B. White offered this prescient warning in The New Yorker: These so-called war trials…will be extremely valuable as precedents if they are presented as a preview of the justice that may some day exist, not as an example of the justice that we have on hand….Nobody, not even victors, should forget that when a man hangs from a tree it doesn’t spell justice unless he helped write the law that hanged him.1
Connections for the Classroom...
