New Book Project on the Nuremberg Military Tribunals
As our readers have probably noticed, I have been posting fairly regularly about World War II over the past few months. I’m delighted to finally be in a position to explain why: I am beginning to write to write a book on the jurisprudence of the Nuremberg Military Tribunals for Oxford University Press.
Here is a snippet of the proposal for the book, which is provisionally entitled The Nuremberg Military Tribunals and the Origins of International Criminal Law:
In his final report on the 12 trials held in the American zone of occupation between 1946 and 1949, collectively known as the Nuremberg Military Tribunals (NMT), General Telford Taylor, the NMT’s Chief of Counsel, opined that “there will be no lack of books and articles in the years to come” on “the actual outcome of the trials, the legal reasoning of the judgments, the historical revelations of the documents and testimony, or the immediate and long-term significance of the trials in world affairs.”
Nearly six decades later, it is safe to say that Taylor was a far better prosecutor than prognosticator. No book on the NMT trials has ever been written, and although many important legal theorists published articles on the NMT in the immediate post-war years –- Hans Kelsen, Herbert Wechsler, Karl Loewenstein, Otto Kirchheimer –- the number of articles that have been published on the trials in the last three decades can be counted on two hands. Indeed, the NMT is probably best known today through Stanley Kramer’s 1961 film Judgment at Nuremberg, a heavily fictionalized account of the Justice trial that won two Academy Awards.
This lack of scholarly attention to the NMT is both perplexing and unfortunate, because the Tribunals’ judgments have played a critical role in the development of international criminal law. Most often, their jurisprudence was very progressive: holding that aggressive war does not require actual armed conflict (Ministries); insisting that international humanitarian law limits military necessity “even if it results in the loss of a battle or even a war” (Hostage); delinking crimes against humanity from war crimes and crimes against peace (Einsatzgruppen) and recognizing genocide as a crime against humanity (Justice); developing the concept of “systemic” joint criminal enterprise (Pohl); expanding the reach of command responsibility (High Command) while curtailing the defense of superior orders (Einsatzgruppen). Other times, however, the Tribunals set international criminal law on the wrong path, such as when Einsatzgruppen held that international law permitted morale bombings of civilians, even with atomic weapons; when Ministries insisted that knowingly financing crimes against humanity did not make bankers complicit in those crimes; and when Hostage concluded that under certain conditions innocent civilians could be executed in reprisal.
The NMT is also of tremendous historical importance, because the 12 trials painted a far more comprehensive picture of Nazi atrocities than the International Military Tribunal ever did. The IMT focused exclusively on the “major war criminals” –- the Goerings, the Hesses, the Speers. The NMT, by contrast, prosecuted a much wider range of defendants: doctors, lawyers, judges, industrialists, bankers, extermination-squad leaders – the private citizens and lower-level functionaries whose willingness to take part in the wholesale slaughter of millions of innocents manifested what Hannah Arendt famously called “the banality of evil.” Indeed, although the Nazis’ crimes against the Jews played little more than an ancillary role at the IMT, the Holocaust was front and center at the NMT, which explored –- inter alia –- the preparation and implementation of the Nuremberg Laws (Ministries), the deportation of Jews from Western Europe (RuSHA) and the extermination of Jews in the Soviet Union (Einsatzgruppen), the administration of concentration camps (Pohl), and the use of Jewish slave labor by German industry (Krupp).
There is, in short, a serious need in the legal and historical scholarship for a book on the NMT. This book will address that need.
The NMT’s jurisprudence remains critically important today. I recently blogged about the Second Circuit’s misplaced reliance in Khulumani on the Ministries case for the mens rea of aiding-and-abetting under customary international law. And there is currently a fascinating debate going on in the blogosphere about whether John Yoo could be held liable for the legal advice he gave the Bush administration — an issue for which the primary, and perhaps only, precedent remains the prosecution of Nazi lawyers in the Justice and High Command cases. I hope that my book will, in some small part, help resolve such difficult legal questions.
I have always received extremely helpful feedback on the law-review articles I have mentioned on the blog. I hope the same will prove true for the book. The complete proposal can be downloaded directly here.