Response to Glazier, Vagts, Clark, and Pendas
My thanks to Dave Glazier, Detlev Vagts, Roger Clark, and Devin Pendas for their insightful comments on my book. At the risk of sounding like I’ve plagiarized my response at EJIL: Talk!, I find it difficult to respond to those comments, because I almost completely agree with them. But I’ll give it a shot…
My basic response to Dave’s comments is delight – I’m glad he finds the book useful for his own work, which is the highest compliment an author can receive. He does not offer any substantive criticisms of the book, so I will just expand here upon one of the ideas that he discusses: the rejection of conspiracy as an independent crime. According to Dave, the book does not establish (pp. 275-80) that the three tribunals that rejected conspiracy – Medical, Justice, and Pohl – did so on the ground that customary international law did not recognize it. He’s probably right about that; I wrote Chapter 12 before the question of whether conspiracy is a war crime became so important in al-Bahlul. But I still think that it’s difficult to argue that the tribunals rejected conspiracy simply because it was not included in Law No. 10; as I note in a number of places in the book, the tribunals consistently insisted that customary international law took precedence over the literal text of Law No. 10, regardless of whether custom expanded or contracted the scope of individual criminal responsibility. The Hostage tribunal, for example, refused to hold that killing hostages was per se criminal, even though Article II(1)(b) specifically deemed the “killing of hostages” a war crime (p. 216) – a reading that narrowed Law No. 10. Conversely, the Milch and Farben tribunals were willing to criminalize enslavement as a war crime, even though Article II(1)(b) criminalized only “deportation to slave labor” (pp. 220-21) – a reading that expanded Law No. 10. Had the tribunals believed that conspiracy was an independent crime under customary international law, therefore, I find it nearly impossible to believe that the tribunals would have rejected that idea conspiracy simply because it was not included in Law No. 10.
Detlev Vagts rightly takes me to task for not exploring the impact of the NMTs on the concentration-camp cases held in Germany in the 1960s, on Eichmann, or on Demanjuk. I particularly regret not discussing Eichmann, which was simply an inexcusable oversight on my part. (The paperback edition, perhaps?) The District Court of Jerusalem relied heavily on Law No. 10, Justice, and Einsatzgruppen to hold that crimes against humanity did not require a nexus to war crimes or crimes against peace. That was a questionable decision, for all of the reasons I discuss in the book. But at least the District Court was honest enough to acknowledge that Flick and Ministries reached the opposite conclusion – the same cannot be said of the ICTY!
Roger and I had extensive discussions about the NMTs and the crime of aggression before I wrote the book, which perhaps explains why he does not offer any specific criticisms of the book in his response. (I’m glad I didn’t make any new mistakes!) I continue to believe that the ICC made a bad decision by limiting aggression to individuals able to “control or direct” the political or military action of a state that commits an aggressive act, because I still fail to see how a private economic actor – a banker or an industrialist – could ever satisfy that requirement. As I note in the book, the tribunals did not convict any of the industrialist defendants of crimes against peace, but they uniformly declined to hold that such defendants were excluded from the crime as a matter of law.
As for the possibility of mistake of law, I’m of two minds. I do indeed think it’s clear that the Ministries tribunal spoke for all of the tribunals when it held that a defendant could not be convicted of a crime against peace unless he knew that the war or invasion violated international law. But I would not want the current crime of aggression to recognize a mistake of law defense, because leaders rarely believe that their uses of force are illegal. George Bush, for example, may have genuinely believed that the U.S.’s catastrophic invasion of Iraq was consistent with international law – but I don’t think that belief should have insulated him from criminal responsibility, had the crime of aggression existed in 2003.
I don’t have much to add to Devin’s response, other than to admit my relief that he doesn’t think I’m too awful of an historian. Like the commenter on the response, I am fascinated by the two additional historical contexts for the NMT trials that he provides. Particularly interesting is his claim that “[t]he Nuremberg trials were not only part of a broader effort by the Americans to reconfigure international society along multilateral, ‘New Deal’ lines; they were an effort to reconstitute civilization, with at least an implicit eye on the threat that European barbarism posed for European imperialism.” That statement seems to be a compelling deconstruction of the inside/outside distinction that has always structured Western-centric international law; as Devin reminds us, sometimes the barbarians are already within the gates.
In the spirit of reciprocal admiration, I want to call readers’ attention to Devin’s book, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law (CUP, 2010) – one of the trials that Detlev Vagts correctly faults me for ignoring. It’s a superb book, a must-read for anyone interested in the judicial response to Nazi criminality.
Again, my thanks to my co-bloggers and to the four professors who were kind enough to respond to my book. It’s been a wonderful discussion.