Wednesday, January 13, 2016

Remembering the Nuremberg Trials: Part II

Part II of “Remembering the Nuremberg Trials” by Reference Librarian Marguerite Most (see part I) introduces several documents which predated World War II and were cited by the victor allies to support the legitimacy of the trials, and continues with an introduction to the significance of the trials for international criminal law today. 

Following the unconditional surrender of Germany in 1945 and the signing of the London Charter, the Nuremberg trials (formally known as the International Military Tribunal (IMT)) opened. The trials established a framework for what is now commonly understood to be "international criminal law." But for nearly the entire seventy years since the Nuremberg trials ended in October 1946, lawyers and historians have discussed the repercussions of the trials as legal and historical precedent. Here is how Amnesty International explains the legacy. The United States Holocaust Memorial Museum explains the significance of the trials here.

Some legal scholars have suggested that the "Nuremberg Legacy" finds its best expression today in the intellectual ferment which has developed in the wake of World War II and in the precedent the trials serve as a jurisdictional model. This is sometimes identified as the moral-ethical component of the "Nuremberg Legacy." That moral-ethical component can be traced in a heightening social consciousness in many individuals, and to increased moral and political recognition that a court of law is capable of sanctioning the commission of international crimes.

Although there have been laws of war since ancient times, scholars  often refer to two 19th century events as marking the beginning of International Humanitarian Law (IHL), and as helping to secure the legitimacy of the tribunal at Nuremberg: the Lieber Code and the Battle of Solferino during the early wars of Italian unification. The Lieber Code, which provided an early codification of the laws of war, was prepared by Francis Lieber and promulgated by President Lincoln as General Orders No. 100 on April 24, 1863. The Code set out sanctions for pillage, rape, inhumane treatment of prisoners, and other atrocities. The Code remains the basis of most regulations of the law of war for the United States and under international law. Prosecutions for war crimes under the Lieber Code, however, were conducted only by national courts.

The 1859 battle of Solferino led to the first Red Cross societies and to early campaigns to adopt the armed conflict rules of International Humanitarian Law (IHL), including those set out in the Geneva Conventions. These rules specifically protect people who are not taking part in the hostilities (civilians, health workers and aid workers) as well as the wounded and prisoners of war.
The International Red Cross sets out the history of what is known as the Martens clause, a part of the preamble of the 1907 Hague Convention, on its website. The clause has been invoked time and again as providing a morality of law and is seen as proclaiming for the first time that principles of customary international law arise from laws of humanity and public conscience, and exist separate from nation states. In Nuremberg the clause was invoked in response to assertions that the Nuremberg Charter constituted retroactive penal legislation. 
In 1946 the UN General Assembly affirmed the principles of the Nuremberg Charter and the Nuremberg Tribunal’s judgment in Resolution 95(I). In 1950 these rules were codified by the International Law Commission as the Nuremberg Principles. The 1948 Genocide Convention arose from a proposal to "correct" the Nuremberg judgment by including "peacetime genocide" as an international war crime. The Commission continues to address crimes against humanity today.

Attempts to establish an international criminal court can be traced to the 1948 adoption by the United Nations General Assembly of the Universal Declaration of Human Rights, but momentum slowed during the cold war. Calls for such a court returned to the UN agenda in 1989 as the cold war ended and later in response to limitations seen in the tribunals established by the Security Council for the former Yugoslavia in 1993 and Rwanda in 1994. These tribunals were established to try crimes within a specific time period and a specific conflict; scholars and commentators have interpreted the importance of the tribunals in different ways, shaped by the conflicts and political concerns of their own times. And some voices in the international community advocated for a permanent criminal court.

In 1998 the Rome Statute, a treaty providing for the creation of the International Criminal Court, was ratified by the requisite 60 nation states and the ICC was established. By April 2015, the treaty had been adopted by 123 countries. The Rome Statute gives the ICC jurisdiction over crimes broadly categorized as genocide, crimes against humanity, and war crimes. Cultural and political issues around the ICC today include questions of jurisdiction, varying concepts of justice, the redress of victims, and definitions of sexual and gender-related crimes. 
The trials at Nuremberg are also recognized as the beginning of the international human rights movement – the IMT was the first international adjudication of human rights. Its effect is felt in the United Nations Genocide Convention, the United Nations Universal Bill of Rights, the American Convention on Human Rights, and the European Convention on Human Rights and Fundamental Freedoms.

Telford Taylor, former Chief Prosecutor during the Nuremberg Trials, wrote in Nuremberg and Vietnam: An American Tragedy (included in the library display) that the trials "cast a long shadow into the future." "Today," he wrote, "'Nuremberg' is both what actually happened there and what people think happened, and the second is more important than the first." In 1970 after the revelations of the My Lai massacre in Vietnam, Taylor wrote this about the Nazi trials, "sea change is itself a reality, and it is not the bare record but the ethos of Nuremberg with which we must reckon today." Not all reckoning has been favorable.

Nonetheless, by recognizing that individuals have rights that are not dependent on nation-state recognition and by holding individuals responsible for violations of international law, Nuremberg should be remembered as an important step forward in the evolution of a civilized world.

--Marguerite Most, Reference Librarian & Senior Lecturing Fellow