Last Friday, 20 November 2020, marked the 75th anniversary of the Nuremberg trials. What should have been a historic event achieving reckoning for the victims of the atrocities of II World War (WW2) remains besmirched by accusations of victors’ justice, with a former US Chief Justice calling it a “high-grade lynching party” (Mason, p. 716). The political retributivist desires of the victors of WW2 gave rise to certain legal features in the creation of the International Military Tribunal (IMT), namely retroactivity, victor judges, and command responsibility. Underpinning and permitting these legal features was the ad-hoc nature of the tribunal’s creation, as orchestrated by the victors of war.
War and Retribution
The early 20th century was a turning point in international law thinking, pivoting towards a rules-based global legal order upholding universal standards. This mirrored the post-WW1 Paris Peace Conference debate over judicial or political punishment, with countries that had suffered heavier losses calling for the former, whilst others (most notably the US) demanded the latter. The irony was that calls for juridification were largely driven by domestic political sentiments, and the trials were likewise eventually thwarted by political interests relating to the Weimar Republic’s stability. Ever since its inception, international criminal law (ICL) never seemed fully able to escape politicisation.
This conversation resurfaced after WW2, with the US more heavily involved and changing its tune. When it comes to assessing the legality of the trials, it is perhaps telling that states in favour of summary execution (in particular the UK) were quickly amenable to trials as an alternative. Early discussions surrounding the genesis of the international criminal trials took on a retributivist tone, giving rise to a brand of legal retributivism manifesting itself in specific legal features of the trial.
One of the most contentious issues was the creation of retroactive laws. As unashamedly proclaimed by British representative Fyfe: “We declare what international law is so that there won’t be any discussion on whether it is international law or not” (Jackson Report, p. 99). The liberal agreement of legal principles according to the victors’ wills came under criticism, with a judge at Tokyo dissenting that the proceedings failed to be dictated by ‘rules of international law existing at the date of the commission of the alleged acts’. Retroactive rule-making permitted the broad construction of crimes, such as the use of the phrase ‘shall include but not limited to’ (Art. 6(b) IMT Charter). Meanwhile, the definition of ‘crimes against humanity’ remained open-ended, contained no concrete standard, and could be construed to encompass most wartime acts.
These open-ended definitions were subsequently left to be interpreted by judges nominated by victors of the war. This reflected French PM Clemenceau’s opinion after WW1 that countries who had ‘lost most men’ had the most right to appoint tribunal judges (Bass, p. 86). Of course, this does little for public perceptions of impartiality, a fact which then-US Chief Justice Jackson was aware of when mounting a weak defence of the Nuremberg tribunal’s composition – most of the victors (UK, France, US) had the ‘blessing of an independent judicial tradition’ regularly litigating against the Government domestically. However, this did not account for the fact that war crimes tribunals operate in a highly politicised context, where impartiality is difficult – indeed, he admits this fact in claiming, in the very same address, that few parties remained neutral, in defending the decision not to choose neutral judges. He even conceded on the issue of Soviet neutrality, unconvincingly claiming that the arithmetic of decision-making rendered it irrelevant.
The doctrine of command responsibility meanwhile allowed for the attribution of individual responsibility without establishing guilt. It ignored local institutional structures that defendants operated within, disregarding that many might have merely been acting under state authority and the consequences of refusing to comply within that context (Tallgren, p. 575). The doctrine was not included in the IMT Charter but established in Tokyo’s Yamashita decision, in which ‘victim-focused teleological reasoning’ was employed to illustrate the rule’s ‘desirability’, instead of demonstrating its existence (Robinson, p. 933). By beginning from the premise of the defendant’s guilt, expansive interpretations are justified. This is understandably problematic, given that the point of legal proceedings is to establish guilt.
Taking these features in tandem, Nuremberg permitted the retrospective creation of expansively-defined crimes to establish enemy guilt, interpreted by victor-appointed judges who took it upon themselves to engage in some law-making of their own, as manifested in doctrines like command responsibility.
Jackson doth protest too much
Jackson had argued that, since traditional diplomatic international law permitted the political punishment of the vanquished, the fact that trials were administered to ensure ‘they punished only the right men […] for the right reasons’ should not make it less valid. This might ring true if it had been the ‘good-faith trial’ which he so strongly asserted it was. However, its features demonstrated above make it more akin to a ‘show trial’. There was an overwhelming sense of a predetermined outcome – perhaps most foretold by the Soviet prosecutor’s infamous toast before Nuremberg: ‘To the defendants, they will all hang’ (Kastner, p. 18).
Judge Pal’s damning dissent likens the legal injustices of the IMTs to ‘revert[ing] to those days… [of] devastat[ing] the occupied country with fire and sword’. This imagery of international politics and anarchy is not too far-fetched an assessment – the retributive undertones of the trials allude to a Foucauldian disguising of politics and war as law.
This juridification of politics does more harm than good. Whilst the rights of victims remain disregarded, the institutionalisation of victor-created rules allow for the victor’s narrative to be centralised into universal truth (Foucault, p. 53). Thus, as per Jackson, the conscience of mankind becomes ‘the conscience of the American people’ (Simpson, p. 21). Here, the irony of Jackson sanctimoniously denouncing the Soviet Union for seeing the court as an ‘organ of governmental power, a weapon in the hands of the ruling class for the purpose of safeguarding its interests’ reveals itself. If anything, the Soviets proved more prophetic than wrong.
This blatant victor’s justice was enabled by the ad-hoc nature of the tribunal’s creation. Such ad-hocery is common to ICL, which is riddled with historical instances of the instrumentalisation of trials for the interests of the powerful. The ICTY further expanded rules established at Nuremberg, turning command responsibility into the controversial ‘joint criminal enterprise’. ICL furthermore finds its origins in such ad-hocery – pirates, the original international outlaws, were only deemed ‘enemies of mankind’ when their actions began to disrupt trade (and ergo, the interests of the empire), going from privateers of the Crown to enemies of the empire.
Ad-hocery leads to the conflation of the ‘general justifying aim’ of the system with the purpose of the rules within that system (Robinson, p. 938). Fletcher’s tax regime analogy demonstrates how individual decisions should not be solved with reference to the overarching goal of the system, but from the rules governing the system. However, this conflation is something that ad-hoc tribunals cannot help but do. Ordinary legal systems are ‘constitutive conventions’ with ‘partial autonomy’ (Marmor, 2009). This means that the rules within these systems are ‘radically underdetermined’ by the values which the system instantiates, as the rules derive a level of normativity from the system itself. However, with ad-hocery, the situation is unprecedented and the rules of the system are designed for one specific purpose, normally in response to that particular context. As such, the normative value of the rules created are drawn from that purpose, and in the context of a trial, the rules collapse into instantiating that singular purpose. At Nuremberg, the purpose was retribution through prosecution.
The problem of ad-hocery is evident when contrasted with the ICC, a permanent court more closely resembling a legal system in its complexity. As an ‘unsafe’ tribunal (in contrast to a ‘safe’ tribunal in which its creators are not at risk of being litigated in), its creators have taken a wider view of its objectives. Behind Rawls’ ‘veil of ignorance’, ‘potential exposure sharpens sensitivity to fairness’ (Robinson, p. 958). The system balances different objectives (fair trial, ending impunity, national justice, etc.), and a rule’s normativity derives from its place within the complex calculations of the system, rather than any stand-alone objective of the system. Whilst the ICC is far from perfect, it is a more measured form of international criminal justice than that administered by ICL in ad-hoc form.
The issue of victor’s justice continues to characterise the Nuremberg trials, as the ad-hoc creation of the tribunal allowed for the emergence of legal features of which the goal was to punish. Contrasting ad-hocery to the permanent ICC demonstrates how the former’s simplicity as a system allows it to be easily instrumentalised by victors to facilitate retribution through prosecution in the wake of war, under a veneer of legality.
Although the ICC has meanwhile had difficulty shaking off the label of being a tool of powerful countries, recent decisions demonstrate its attempts to ‘escape [its] creators to become over time [a] cosmopolitan institution dedicated to the realization of universal values’ (Mégret, p. 85). Casting our minds back to the Nuremberg trials of 75 years ago might perhaps allow us to better appreciate the strides that have been made in this regard.