01 Nov The Legacy of the Nuremberg Military Tribunals in International Humantarian Law
In a brief chapter titled “Legacy” Kevin Jon Heller opens up the issue of the influence of the Nuremberg Military tribunals (NMTs) on the later development of the international law of war. This contribution will expand on that chapter. First, it discusses the effect of the trials on the later behavior of nations and individuals. Did it deter potential criminal activities? A second section looks at the influence of the NMTs on the subsequent codification of international humanitarian laws. The third section explores their impact on the work of later tribunals, both national and international.
Criminal law enforcement is supposed, aside from imposing retribution and disabling the convicted, to deter others from committing crimes. Did Nuremberg deter? The answer to this question is blurred by the fact that one can have no idea as to who might have instigated some horrendous mass killing but refrained from doing so out of fear. We do know that there have been episodes of gruesome massacres in recent history. One cannot overlook events in the former Yugoslavia, in Rwanda and other African countries, in Cambodia and Chechnya. Only Yugoslavia is so closely connected with Europe for there to have been any carry forward in individuals’ consciousness of World War II and Nuremberg. Deterrence evidently did not happen.Of course to have been deterred one would have had to believe that an international coalition could be put together. Just possibly the creation of the International Criminal Court will cause somebody to refrain from bloodshed.The Sudan may afford the first test of this. One asks the same question about the crime of waging an aggressive war. A conspicuous, clear cut aggression was Saddam Hussein’s invasion of Kuwait twenty years ago. It was quite universally condemned and there was widespread approval of the U.S.-led coalition’s ouster of his forces. The U.S. incursion into Iraq in 2003 did not garner the same approval.
Re-codification of the law of war began in Geneva just as the NMTs were winding down. The conference here produced four conventions replacing the prisoner of war Convention of 1929 and the 1899 and 1907 regulations. Heller’s “Legacy” stresses two changes in the law: the prohibition on taking civilian hostages and reprisals against civilians. Reluctantly, the NMTs had found that the then customary international law did not ban those practices.Another important response to Nazi practices was the ban on individual or mass transfers or deportations of nationals of the occupied state out of their territory and of transfers into the occupied zone. This is controversies in respect of Israel and the West Bank. Nearly all international lawyers outside of Israel are of the opinion that its settlements in the West Bank are illegal. This has an influence on current endeavors to create a resolution of the Palestine conflict. The same provision created difficulties for a CIA program in 2003 designed to take detainees out of Iraq and bring them to other countries where they could be interrogated more conveniently. The Office of Legal Counsel rendered an opinion that the term “deportation” did not cover persons who were not nationals of Iraq. Outside observers tend to disagree.
There came to be another attempt at codification—the Additional Geneva Protocols of 1977. The focus of this effort was on the protection of civilians from the devastation of war. In World War II both sides resorted to the blanket bombing of cities—often at night—that killed hundreds of thousands of noncombatants. Nobody was tried for these killings; If the Axis had won the war they would surely have tried “Bomber Harris” for the RAF’s actions.Laser guided missiles and unmanned drones have made more accurate targeting feasible. Although the United States has never become a party to the Protocols, its armed forces have tried hard to minimize civilian casualties in Serbia, Iraq and Afghanistan. Finally, we come to the latest codification enterprise, the Rome Statute of the International Criminal Court that restates much substantive international criminal law.
Third, we come to the case law and the claim that the NMT laid the basis for a customary law of war crimes. Here the book is a trifle sketchy.For one thing, it does not mention the national court trials for Nazi war criminals started by Germany in the 1960s, particularly the concentration camp cases, nor the Israeli prosecution of Eichmann and Demjanjuk. It does, however, study the work of the ICTY and the ICTR. One of the contributions of the NMTs to the activity of the Yugoslavian and Rwandan courts is that it protects them from the charge of violating the rule against retroactivity in criminal charges. The ICTY has in its now rather extensive case law often referred to NMT precedent ((Heller cites more than 30 cases).They involve such issues as the conditions for imposing command responsibility, and liability for aiding and abetting. These decisions also rely on the NMTs for learning on such defenses as coercion and ‘tu quoque” (you also did it). The book also cites a handful of U.S. Court opinions tied to the work of the NMTs. These involve the Alien Tort Claims Act that gives U.S. district courts jurisdiction over torts in violation of the “law of nations.” The particular thrust of these cases lies in the question whether corporations can be held liable for violations of the law of nations. It is generally assumed that this is the same question as whether they can under international law be found guilty of crimes. Several cases involve the charge that a multinational corporation aided and abetted the governments of Myanmar and South Africa in violating human rights. Several courts have upheld the idea that they could be but the Court of Appeals opinion in Kiobel has gone against the stream.The NMT cases do not clarify this; corporate managers but not their employers were found guilty then.
Thus Nuremberg lives, making its presence felt right down to today.The NMTs also live in another sense: the Harvard Law School library is digitizing the NMT records. This is a necessary task because so many researchers have handled the paper documents that they are deteriorating rapidly.