The Use and Abuse of Nuremberg by the Bush Administration

Over the past few weeks, the Bush administration has repeatedly tried to legitimize the military commissions by comparing them to the trials held at Nuremberg. First, William Haynes invoked Nuremberg in defense of his belief that the military commissions would provide detainees with fair trials:

When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

I’m not sure that Nuremberg is or should be considered the “model of procedural rights.” Defendants’ limited appellate rights, for example, have been justifiably rejected by later international tribunals. Comparing Nuremberg to the military commissions, however, is an insult to Nuremberg. The judges at the IMT and NMT were completely independent. Secret and coerced evidence was not allowed. Defendants were given their counsel of choice, as well as full confrontation rights. Trials were held in public. And, of course, the defendants were never tortured…

Haynes’ specious comparison, however, pales in comparison to the Bush administration’s latest claim — that Nuremberg justifies the military commissions’ use of the death penalty:

A four-page cable sent to American embassies says that execution as punishment for extreme violations of the laws of war is internationally accepted and points to the 1945-46 International Military Tribunals as an example. Twelve of Adolf Hitler’s senior aides were sentenced to death at the trials in Nuremberg, Germany, although not all were executed in the end.

The unclassified cable was sent by the State Department to all American diplomatic missions worldwide late yesterday.

In it, the department advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the September 11 cases.

“International Humanitarian Law contemplates the use of the death penalty for serious violations of the laws of war,” the cable, which was written by the office of the department’s legal adviser, John Bellinger, says.

“The most serious war criminals sentenced at Nuremberg were executed for their actions,” it said.

This is a stunningly misleading argument. Yes, the IMT imposed the death penalty. But that does not mean that IHL “contemplates the use of the death penalty for serious violations of the laws of war.” After all, every international tribunal created since World War II has prohibited capital punishment — the ICTY, the ICTR, the SCSL, the ECCC, the ICC, etc. Pick your acronym. Indeed, even the newly-created Special Tribunal for Lebanon, which is unique among hybrid tribunals in that it will apply only Lebanese criminal law, cannot apply the death penalty. The fact that the international community was prepared to accept capital punishment 60 years ago, therefore, says nothing about its willingness to accept it today.

To be sure, Bellinger’s statement is not wrong — just misleading. International law does not categorically prohibit domestic courts from imposing capital punishment; it simply provides that — to quote Article 6(2) of the ICCPR &mdash “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime.” Serious violations of IHL clearly qualify, which means that international law would not prohibit the U.S. from imposing the death penalty for those violations as long as “the law in force at the time of the commission of the crime” permitted it. But again, the analogy to Nuremberg is nothing more than a craven attempt to cloak the military commissions in the mantle of Nuremberg’s legitimacy, because international law no longer permits international tribunals to impose the death penalty even for serious violations of IHL — and the IMT was an international tribunal, not a domestic court. (The same is true of the NMT. The Tribunals uniformly held that they were international tribunals applying international law, even though all of the judges and prosecutors were American and they were exclusively financed by the U.S.)

Finally, cravenness aside, it’s worth wondering what the Bush administration hopes to gain by analogizing the military commission’s use of the death penalty to the Nuremberg executions. From a PR standpoint, the IMT and NMT’s executions were a disaster — they were overwhelmingly opposed by the German people, they undermined the legitimacy of the tribunals, and they played a major role in the ultimate collapse of the war crimes program as a whole. Here is a snippet from Ulrich Herbert’s book Werner Best. Biographische Studien über Radikalismus, Weltanschauung und Vernunft, 1903-1989:

The campaign against “victor’s justice” mainly targeted the Allied war crime trials rather than the German proceedings. The High Commissioners, especially John McCloy, were confronted with a growing flood of petitions, statements, and demands of German origin that all called for a revision of the sentences passed against German war criminals and heightened the expectations of the German public, especially after the German “Christmas amnesty”.

The Americans endeavoured to alleviate this pressure by releasing about 60 prisoners at the turn of the year and installing a clemency board in March 1950. This board was to revise all sentences of the trials of war criminals by the US Army and the US High Commissioner. When it became clear in the course of the year that the West Germans were expected to provide a “defence contribution” due to the increasingly acute East-West confrontation, the statements of the German side started becoming more and more self-confident and demanding.

The result of the revision was announced in January 1951. It represented a major, though not all-out success of this campaign: of the 28 death penalties, 21 were converted to prison terms; 69 of the 74 prison sentences handed in for revision were reduced. 32 detainees were released immediately. In view of the magnitude of the committed atrocities – the massacres of the Task Forces, the shooting of partisans, the mass killings in concentration camps – the extent of the mitigation of the penalties was no less than stunning.

In doing this, the American occupation administration had actually greatly harmed, if not destroyed, the idea of legal prosecution of Nazi criminals. In the public perception of these sentences, the main point was not the act of mercy of the Americans toward the former enemy, which was meant to promote the political future of the fledgling West German state, but rather the associated putative admission that the war crime trials had been based on an inadequate legal, historical, and moral foundation. Thus, three quarters of the Germans rejected the revisions as insufficient, and even more regarded the seven confirmed death sentences as unjustified.

Not surprisingly, the Bush administration’s insistence on convicting and executing the Gitmo detainees has already met with international criticism, further undermining the military commissions’ legitimacy in the eyes of the international community. In that respect, at least, the analogy to Nuremberg does work.