Nuremberg and the contemporary commitment to international criminal justice

The Nuremberg trial often stands as a nostalgic memory in the minds of international criminal lawyers. Perhaps it is the particular black and white simplicity of the trial, the mostly abject “bad guys” in the dock, the compound character of their evil deeds, and the justness of the Allied cause, tainted in sepia tones with the passage of time. Lawyers’ historicization of that episode tends to be saturated with commitments to the law, institutional destiny, or the anecdote of legal craft. What is missing is the sense that Nuremberg was part of a bigger, non-legal storyline that is both more complex and elusive. Priemel’s book is thus a useful reminder that Nuremberg was many things beyond the playing out of international criminal law, a “political” trial with quite specific early “transitional justice” goals. In particular, Nuremberg as itself a historical event was part of a larger instrumentalization of and reflection on history-writing.

In this respect, I see “The Betrayal” as an invitation to think about what one’s commitment to Nuremberg might mean for the commitment to the broader project of international criminal justice. International criminal law historiography has quite predictably claimed Nuremberg as its own, as the defining first step towards an eventual international criminal law order. This means that to be a supporter of international criminal justice is to be a supporter of the Nuremberg trial, and that to support the Nuremberg trial is to take position in favor of the general project of international criminal justice. Some individuals such as Ben Ferencz active at Nuremberg even incarnate that continuity by their very existence and advocacy to this day, linking yesterday’s project to tomorrow’s. The sense of continuity then feeds into a strong progressivist narrative that sees the advent of international criminal tribunals as part of a prophetic history in which ever more universal and permanent international tribunals eventually redeem the ad hoc and geographically particular origin of their forerunners. Specifically when it comes to international lawyers, it is part of an understanding that international tribunals are somehow mandated by international law, implicit in its promise of eventual enforcement and accountability.

The risk is to mistake the law’s own retrospective rationalization of how it came about, for law’s socially causal character. The Nuremberg trials were one of many possible outcomes after the war, and their verdicts even more so. Priemel’s book is a wonderful excuse to examine the problematic filiation of Nuremberg and contemporary international criminal justice precisely because it is a historian’s book, focused on all the crass contingency and complexity of any trial of that magnitude. If one adds the post-Nuremberg proceedings as well as subsequent German trials, the image becomes positively complicated. In this brief comment, I want to explore the possibility that Nuremberg is not the inevitable first step on a road that leads to the International Criminal Court and that it is arguably too specific to serve as an indisputable reference for international criminal justice. In other words, I want to argue that our commitment to Nuremberg – as it may be- hardly commits us to supporting all of the projects currently undertaken under the broad banner of international criminal law.

To begin with, it is quite clear that the Nuremberg tribunal was never created because international crimes had to be punished. Rather, Nuremberg answered that question (and it was an open question) in the affirmative, so that a certain politically conceived project of transition in Germany and new international liberal order could be set up. This does not undermine the Nuremberg precedent but it portrays it for what it was – for example, “by far the best option available” as Priemel sees it – rather than a necessary or even principally legal outcome. International law had a role in this because it was part of the values that the Allies sought to promote but it cannot be excluded, for example, that a victorious Nazi Germany would not have conducted its own trials under its own variant of international law. Nor did international law have quite the immanent or guiding role that international lawyers often see it as having. Nuremberg was part of a sophisticated liberal-legal morality play, in which the Allies were presented as having occupied the superior ground, and a certain optimistic post-war pondering of the “German question” was offered. The trial was a complex intellectual event weaving together debates that had started long before and would continue long after. In other words, the trial, as a historical event at least, was about much more than the trial itself. For example, as Priemel points out, the jurisdictional exclusion of the tu quoque argument did not mean that it would not continue to resonate far beyond the courtroom. Simply because many lawyers were involved in the Nuremberg trial hardly means that lawyers have a monopoly over its meaning.

The relative improbability of “Nuremberg” is what cautions against making too much of the tribunal as either heralding or strongly making the case for international criminal justice. Instead, we may want to be focused on what made Nuremberg a relative success in the conditions of the time and has generally led observers like Priemel to see it as, overall, justifiable. It is not simply, for example, that the Allies as victors were in a unique position to carry out the trial. Nazi crimes had been committed across states, for example, in ways that made non-localizability more than a technical conceit and militated for an international narrative. Individuals had played a larger than life, gang-like role in the overall design of aggression and the Holocaust which made international criminal justice particularly apt. At the same time, the trial was flexible enough that it could accommodate a range of analyses about Germany, the Nazis, war, militarism, etc. Taking seriously the element of history writing involved in any political trial – rather than simply focusing on the forensic dimensions of criminal justice – means that all of these historical-legal claims can be assessed on their own terms.

It may be, then, that the trial was exactly what Germany, as a cardinal participant in European history but also one that had significantly “diverged” from it, needed. Germany was in a sense judged by its own standards, standards that it had betrayed in the course of Nazism. Or at least it made political sense to present things in this way there and then. It made the trial into an intimate civilizational affair. The Nuremberg trial emerged as a problematic liberal-legal response to what had itself been a crisis of legal-liberalism. The trial made a case that needed to be made after this war and those crimes. It was not a slave to events or the law, but instead foregrounded those dimensions which, as a result of a complex political process, had been deemed worth emphasizing. Priemel’s book is at its best when it portrays Nuremberg and, especially, its successor trials as so many muddled but always interesting attempts to write history through law. The architects of the process are perhaps also notable for having known when to slow it down and eventually wind it down before it ran its course. In this they were obviously influenced by the early onset of the Cold War, but also a growing sensitivity to German misgivings about continued denazification. In a sense the trials were not merely writing history, but were themselves part of that history in the making.

It does not follow that international criminal justice today is Nuremberg’s heir. As Priemel makes clear, the overarching goal of reshaping societies in contemporary international criminal trials is often missing. One could say that trials have become much more about the abstract goal of punishing international crimes for its own sake, where the post-Second-World-War-rapport to criminal justice was much more instrumental. Nor does it follow, more normatively, that international criminal justice, even in its best form, is always the appropriate response to international crimes or transitional challenges. In fact, even if we broadly acknowledge the contributions of Nuremberg, that support is always and should remain an ambivalent one. The historiography of international criminal justice often glides rapidly past the weaknesses of the trial, only to remember its strong precedential value. But if we are to invoke the value of “grand” precedents, then we should do so with all the ambivalence characteristic of our evaluation of Nuremberg. This is even more the case in fraught contemporary contexts in which no compelling overarching narrative for international criminal justice here and then exists beyond a broad “struggle against impunity” narrative.

Frédéric Mégret is an associate Professor and a Dawson Scholar at the Faculty of Law, McGill University. He is interested in the historical and theoretical dimensions of international criminal justice.

Cite as: Frédéric Mégret, “Nuremberg and the Contemporary Commitment to International Criminal Justice”, Völkerrechtsblog, 22 February 2017, doi 10.17176/20170222-085319.