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A Critical Look at Nuremberg
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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. |
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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.’”
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...
- Frankel is pessimistic regarding the effectiveness of international tribunals. He writes, “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...” Do you agree with Frankel’s assessment? At the time he wrote this column, there was no International Criminal Court (ICC) and the Rome Treaty of 1998 to create it had not yet been written. Research the ICC. Are there terms in the Rome Treaty, and evidence in the work of the ICC, which challenge Frankel’s arguments? Brainstorm ideas on how international justice might be more effective in achieving justice for past atrocities, and preventing future ones.
- In your journal, reflect on E.B. White’s quote: “When a man hangs from a tree it doesn't spell justice unless he helped write the law that hanged him.” Share your reflections in a class discussion.
- For more background information on the Nuremberg trials:
1“The War and the Law” by Max Frankel, New York Times Magazine, May 7, 1995.
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