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A Tribute Paid to Reason

Cross-examining the legacy of the Nuremberg war-crimes tribunals

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The Special Court for Sierra Leone stands on a hill overlooking the ragged cityscape of Freetown. UN soldiers in dark sunglasses guard the thick concrete walls that surround the court, shielding it from the impoverished and war-ravaged streets below. Just six years ago, rebel fighters carved their way through these neighbourhoods, leaving thousands of corpses, burning houses, and hacked-off limbs in their wake. It took three years for UN and British troops to strong-arm the militants into a peace agreement. Today, Sierra Leoneans can visit the Special Court and study the impassive faces of the men charged with orchestrating the war and its atrocities.

On the first day of the trials, David Crane stepped to the podium to explain why the accused men deserved the censure of all humanity. Throughout his opening address to the blackrobed judges, Crane felt an invisible presence at his side. “It was eerie,” he later told me. “I felt that Robert Jackson was standing right next to me.” Jackson, who led the prosecution of twenty-two Nazi leaders at the end of World War II during the famed trials in Nuremberg, Germany, was the only other American to have acted as chief prosecutor of an international war-crimes tribunal. On a shelf in his office, Crane kept a memoir of the Nuremberg trials, bookmarked to the page with Jackson’s opening address. That historic speech began:

…The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

Before he came to Sierra Leone, Crane was the deputy inspector-general of the US defence department. In the corner of his Freetown office sat a large wooden carving of a swooping eagle with a snake in its talon. The statue screamed “American justice.” Indeed, the United States has done more than any other country to spur the war-crime trials that have appeared in the last fifteen years, beginning with the International Criminal Tribunal for the former Yugoslavia and now tribunals for Rwanda and Sierra Leone, and (likely) Cambodia and East Timor.

“Nuremberg is the foundation stone for what we are doing here in Sierra Leone, as well as the courts for Yugoslavia and elsewhere,” says Crane, who stepped down as chief prosecutor this July. “And the culmination of the Nuremberg movement is the International Criminal Court (icc).”

But as Crane well knows, his own government is a stalwart opponent of the icc, and many consider his country a rogue state when it comes to international law. Around the world, the legality of the Iraq invasion is still being debated, and there is a broad consensus that the American military has subverted or ignored the Geneva Conventions, from Abu Ghraib to Guantánamo Bay. All this points to a paradox in contemporary international relations: as we mark the sixtieth anniversary of the Nuremberg trials, the United States is both a great champion of the Nuremberg legacy and its most powerful adversary.

On weekdays, a desultory parade of accused murderers, thieves, and other criminals appears in Courtroom 600 of the Nuremberg Palace of Justice. But on this Sunday evening in July, the court is empty except for a German television crew and an impatient American. “Come on, make it quick, I’m on the fly, I’m in demand,” Ben Ferencz says in mock exasperation while the Germans fiddle with a boom microphone.

Ferencz, an eighty-five-year-old New Yorker with a vaudeville impresario’s patter, once stood in this room and accused twenty-two men of killing more than a million civilians, mostly Jews. He was the chief prosecutor in what press reports called the biggest murder trial in history—the trial of the leaders of the Einsatzgruppen, the Nazis’ mobile killing squads.

Courtroom 600 is an elegant room with two-tiered crystal chandeliers, sombre wood panelling, and windows smothered with heavy velvet drapes. Over the entryways are green marble arches with statuettes of Adam and Eve, the scales of justice, and, most conspicuously, a bust of Medusa, her hair a writhing mass of serpents and her mouth frozen in a silent shriek.

The room looks nearly the same as it did in 1945. There, sitting in the prisoner’s dock near the Medusa arch, Nazi Germany’s leaders declared themselves nicht schuldig of launching an illegal war that cost over fifty million lives. Here, in front of the judge’s bench, prosecutors stood at a temporary lectern and proved that the Germans had slaughtered millions of Jewish civilians. At the back of the room, a pack of more than 160 journalists—at that point the largest press gallery in history—watched the test run of this new tactic in international relations: powerful men, leaders of their nation, being held legally responsible for wartime atrocities.

Ferencz finishes with the television crew and leans against a wooden bench in the audience gallery. He is a diminutive man, sharply dressed in a dark suit with a crimson handkerchief and a tie dotted with tiny black frogs. Although he was born in Transylvania, Ferencz grew up in the notoriously rough Hell’s Kitchen neighbourhood in New York. His parents were poor, uneducated immigrants, but he attended college and then Harvard Law School on a series of scholarships. Four years after he graduated, a boyish-looking twenty-seven-year-old, he stood in this courtroom and confronted twenty-two mass murderers.

Ferencz is quiet for the briefest of moments as he peers through thick glasses at the prisoners’ dock where his former adversaries sat. “You know why I had twenty-two defendants when there were 3,000 men who for two years had done nothing but go out and murder Jews and gypsies? ” he asks. “Because that’s how many chairs would fit in the dock! That’s an absurd way to do justice, but that’s how things happened back then.”

The Nuremberg trials were an imperfect but crucial development in the evolution of international law, he says. He has spent most of his life since then trying to educate, coax, and berate a world that has often seemed reluctant to build on that legacy. Three years ago, he attended an event that should have been the high point of his six-decade campaign. On April 11, 2002, delegates at a special United Nations ceremony erupted in applause to celebrate the birth of the International Criminal Court, fifty-four years after the idea was first proposed by the UN General Assembly as the logical conclusion of the Nuremberg process.

But for Ferencz it was a bittersweet moment. At the celebration, the seat reserved for the American ambassador to the United Nations was conspicuously empty. Even before his election, George W. Bush had expressed a certain disdain toward international mechanisms such as the Comprehensive Nuclear-Test-Ban Treaty and the icc, which he believed might constrain US power. His foreign policy in office was being guided by men such as Dick Cheney, Donald Rumsfeld, and John Bolton, all proponents of the unfettered use of American might. That philosophy became more strident after the 9/11 terrorist attacks, and the model of law enforcement through international cooperation became an afterthought to America’s pursuit of security through its global military presence. In keeping with this, the Bush administration had declared that the United States would neither join nor support the icc.

So at the UN celebration, Ferencz made a symbolic protest against his government. He planted himself proudly in the vacant US seat and, calling himself the “unofficial representative of the American people,” he flashed the audience the V sign, for victory.

Ferencz is convinced that all people, including Americans, will be best safeguarded by an international system that tightly and effectively regulates the use of military force. The icc, he argues, is a key step toward that goal, and he plans to devote the rest of his life to convincing Americans that the Bush administration is making an “outrageous” mistake when it casts aside the icc and other international legal norms. “The United States,” he says, “seems to have forgotten what we tried to teach the world at Nuremberg.”

Back when the battles of World War II were still raging, the United States and its allies didn’t look as though they would be teaching the world any great lessons in jurisprudence. Winston Churchill repeatedly argued that leading Nazis should be shot as soon as they were identified. And when Joseph Stalin, at what has been described as “a very boozy evening” in Tehran in November 1943, half-jokingly proposed that Allied armies should “liquidate” 50,000 officers of the German General Staff, Franklin Roosevelt replied playfully that 49,000 would do.

Roosevelt didn’t mean it, of course, but the impulse for swift vengeance was certainly there. Public opinion polls showed that Americans wanted executions, not trials. One of Roosevelt’s most powerful cabinet ministers, Henry Morgenthau, Jr., the secretary of the treasury, was calling for the decimation of Germany’s heavy industry and the execution of hundreds of “arch-criminals” by military firing squads. But the secretary of war, Henry L. Stimson, appealed to the president’s better angels. He argued that it would have a “greater effect on posterity” if Germany’s leaders were tried and punished “in a dignified manner consistent with the advance of civilization.” Shortly after Harry Truman became president, US policy started to shift in favour of fair trials for Nazi leaders.

By that time, Ben Ferencz had become disillusioned with American post-war justice. As the US Army swept across Germany in the spring of 1945, Ferencz—then a lowly infantry sergeant—had received orders from General George Patton’s office to collect war-crimes evidence in the newly conquered territory. When American forces liberated concentration camps, Ferencz would jump in a jeep, drive like hell, find the camp office, and seize the death registries and other damning records. “The objective was to get in and get out as fast as possible,” he says, “because that was no place for a human being to be. I don’t know all the diseases they had. Diarrhea. Dysentery. Lice. Typhus!

“The bodies were lying all over the ground. Bones wrapped in skin and rags. And then, when you thought they were all dead, sometimes they would move,” he says, his voice starting to thicken. “I have flashbacks from time to time so I don’t want to pause on this.”

At the Dachau concentration camp, Ferencz helped an American military tribunal deliver rough justice to lowand mid-level German officers. “Those trials lasted a couple of minutes,” he says. “People were lined up, thirty or forty in a room. They were called upon to admit or deny being accomplices to mass murder and other war crimes. They invariably said they were innocent or acting under orders or some alibi, but they were usually all convicted. Many were executed.”

These Dachau trials were what one might expect of victors’ justice. Many of the defendants had been captured in the concentration camps—with their complicity so obvious, the American authorities reasoned that there was no need for a difficult, time-consuming trial. “I didn’t think much of the Dachau trials,” says Ferencz. “I didn’t think much of the army and I didn’t think much of my officers, either.” He left Germany, and the Armed Services, with no plans to return. But the United States’ commitment to principled legalism drew Ferencz back, and he became one of a team of American prosecutors determined to prove that senior Nazis were not just defeated opponents and evil men, but also criminals under international law.

On November 21, 1945, Robert Jackson stepped to the lectern in Courtroom 600 to deliver his opening address. To Jackson’s right were eight judges—two from each Allied country—sitting in front of their respective national flags. But it was the prisoners’ dock on Jackson’s left that held the audience’s attention. These twenty-one politicians, state officials, and military commanders—along with Adolf Hitler, Joseph Goebbels, and Heinrich Himmler, who had all committed suicide—were the upper echelon of a nation that had laid waste to Europe. (Martin Bormann, Hitler’s private secretary and the head of the Nazi party chancellery, was tried and sentenced in absentia.)

The most notorious of the defendants was Hermann Göring, the World War I flying ace who had been Hitler’s strongman in the Nazi Party, and had gone on to become the German Reichsmarschall. Göring had turned into a bloated painkiller addict by the dying days of the war, but in prison he shed his excess weight and drug-induced fuzziness and became the defendants’ unofficial leader.

For Jackson, the most important charge against Göring and other Nazi leaders was that they had planned and waged an illegal war. Before he became chief prosecutor, Jackson had represented the United States in the Allied negotiations over the creation of the International Military Tribunal at Nuremberg. Jackson believed that the trials should be more than just a tool to punish Nazi leaders—they should help create an international legal framework to tame war itself. To achieve this goal, he wanted to try the Germans on a charge that had never before been laid: the crime of aggression. “War had been criticized and abhorred, but as to defining the waging of aggressive war as a crime, that was unprecedented,” says Whitney Harris, a square-jawed, ninety-three- year-old Midwesterner who, as a part of Jackson’s team, had been given the task of prosecuting crimes related to the Holocaust.

In Jackson’s view, the German decision to launch an illegal war was the supreme crime, explains Harris. The other crimes the Nazi leaders were charged with—war crimes against soldiers and “crimes against humanity”—could never have happened had an illegal war not begun in the first place.

The trial lasted eleven gruelling months. On October 1, 1946, the German leaders appeared one by one in Courtroom 600 to receive their verdicts. Of the twenty-two defendants, three were acquitted of all charges, seven were given prison terms of various lengths, and twelve (including Bormann) were sentenced to hang.

The executions were carried out on October 16. Just hours before he was to be hanged, Göring was found dead on his cot. Somehow, despite spending eleven months under twenty-four hour surveillance, he had smuggled a cyanide capsule into his cell. The ten other men were hanged in a gymnasium attached to the Palace of Justice. Each was cut down afterward and photographed with the thirteen-coiled noose still hung around his neck. To prevent future commemoration, the bodies were cremated and the ashes scattered in secret. “In the evening the eleven urns containing the ashes were taken away to be emptied into the river Isar,” Harris wrote in Tyranny on Trial. “The dust of the dead was carried along in currents of the stream to the Danube—and thence, to the sea.”

Both Harris and Ferencz believe that the criminalization of aggressive war was the most important development at Nuremberg. “Torture, rape, and every other crime will always occur in wartime, no matter what rules you lay down or what punishment you inflict on a handful of criminals,” says Ferencz, who has written a two-volume book on the crime of aggression. “The only answer is to prevent war-making itself.”

In 1998, Harris and Ferencz participated in the deliberations that led to the Rome Statute, the treaty that would establish the International Criminal Court. The crime of aggression was one of the most contentious issues. There was little doubt that the icc would have jurisdiction over war crimes, crimes against humanity, and genocide. But the crime of aggression was trickier: what looks like a humanitarian intervention to one nation might look like an aggressive war to another. (Or, to take a more recent example, one man’s war of pre-emptive self-defence is another man’s military adventure to secure oil supplies.)

In Rome, the delegates could not agree on the definition of aggression. Nor could they agree on the conditions under which the icc would be able to exercise its jurisdiction. US representatives insisted that the UN Security Council must first declare that a war of aggression had taken place, and only then would the icc be able to investigate and prosecute individuals for their personal culpability. Quite understandably, some nations opposed this arrangement, since it meant that any of the five permanent members of the Security Council could use its veto to shield itself or its allies from prosecution.

The disagreement proved intractable. To prevent a complete breakdown of the negotiations, the delegates decided that the crime of aggression would remain undefined, and that the icc could not prosecute the crime until the state parties agreed on a definition. (They are supposed to do so at a review conference scheduled for 2009.)

President Bill Clinton asked the lead US negotiator, David Scheffer, to sign the Rome Statute on December 31, 2000, in the last moments of his government. Clinton knew there was no chance that the United States would ratify the treaty anytime soon—that would require the support of two-thirds of a hostile, Republican-dominated Senate—but by affixing its signature, the United States could continue to participate in negotiations. Scheffer believes that given time, American negotiators would have been able to convince a large coalition of states to support the US position on crimes of aggression. But the Bush administration walked out of the talks in 2001, leaving the US position unrepresented. “It’s a sad situation,” Scheffer says. He believes in the icc’s mission but noted in an email interview that “if there is any crime US leaders would be accused of before the icc, it would be aggression . . . almost anything our military does elicits politically motivated charges of aggression.”

George W. Bush’s administration was unambiguous in its dislike of the International Criminal Court. John Bolton, the mustachioed anti-diplomat who recently became the American ambassador to the United Nations, had long vowed to take a “big bottle of Wite-Out” to America’s signature on the agreement.

Because the United States had never before “unsigned” an international treaty, Bolton, at the time a State Department official, called up sympathetic legal scholars to find out if doing so was even possible. Jeremy Rabkin, Bolton’s former colleague at the American Enterprise Institute, says he was delighted to hear from his old friend. “That’s a really unusual step, to ‘unsign’ a treaty, and in a way it’s undiplomatic,” says Rabkin, a professor of government at Cornell University. “But it is also very principled. [Bolton] wanted to send a clear message that, ‘No, we are never, never going to ratify this thing.’ ”

On May 6, 2002, the United States sent a letter to the United Nations, retracting its support for the treaty. Bolton, who signed the letter, announced that it was “the happiest moment of my government service.” A few months later, the US passed the American Servicemembers’ Protection Act, a clear counterattack on the newly ratified icc. Nicknamed “The Hague Invasion Act,” it gave the president the authority to use military force to extract citizens of the United States and its allies from the custody of the icc. The act also made it possible to cut military assistance to countries that refused to enter into bilateral immunity agreements with the United States. More than 100 countries have now signed these agreements, which are necessary, the US argues, because the icc claims jurisdiction over the citizens of countries that have not ratified the Rome Statute, in cases where the crime involves a citizen or the territory of a country that has signed on.

Most democracies, including Canada and all of the European Union except the Czech Republic, have signed and ratified the Rome Statute. So why the US opposition? For starters, says Rabkin, senior members of the Bush administration don’t believe the icc will work. The “monsters” who commit genocide and mass murder aren’t the kind of people to be intimidated by the threat of judicial action, he says. What they do understand is military force. “People like Ben Ferencz give the impression that the most important thing that happened in World War II is Nuremberg. That’s bizarre!” he says. “The heroes of World War II were Eisenhower, Montgomery, Patton. A bunch of lawyers strutting around afterward is just a footnote.”

Today, Rabkin adds, the country that is most able to deploy force to stop atrocities is the United States. And it is true that only the United States has both the military muscle to undertake several major campaigns at one time and a self-proclaimed “mission” to bring democracy and liberty to the world.

American critics of the icc point to possible conflicts between the court and the US Constitution, such as the right to a jury trial and other aspects of American due process. They also point out that the icc could make it more difficult to end conflicts, since it robs individual states of the ability to grant amnesties in order to secure peace agreements. (The counter-argument is that amnesties weaken the court’s role as a deterrent to mass atrocities.) But their most vehement criticism, and the one that Republican leaders use to stoke public hostility toward the institution, is the fear that weak, envious countries will use the court to target the United States. “We insist on giving ourselves the benefit of the doubt, because it’s our blood on the line in places like Iraq, Afghanistan, Kosovo, or wherever,” Rabkin says. “You can say that’s selfish or unilateral, but that’s the history of the world. Even at Nuremberg.” He eagerly embraces the criticism that the Nuremberg trials were merely victors’ justice. “We organized these trials to make us feel good,” he says. “It was, of course, a show.”

Ferencz and Harris disagree. At the end of the war, Harris notes, citizens of the United States and other Allied countries wanted swift executions, not trials. (A poll conducted near the end of the war showed that 40 percent of French citizens wanted Hitler executed immediately. Thirty percent wanted him tortured first.) It was a political risk to give the Nazi leaders a trial with a real chance of acquittal. “It was not victor’s justice,” says Ferencz. “It was a fair trial based upon existing international law, which was articulated clearly in the statute and the judgments that followed.”

Harris admits that the Allies absolutely refused to put their own wartime conduct on trial. But, he says, the Nuremberg tribunals were intended to help move the international community “to the point that if conflicts were to arise again in the future, the victors as well as the vanquished would be subject to trial.”

For Harris, the triumph of Nuremberg is not that individual Nazis were punished, but that they established an enduring legal and intellectual legacy. On October 27, 2000, he was in the Reichstag for the final debate on the icc treaty. At the end of the session, the German parliament voted unanimously in favour. “Just imagine!” Harris says. “This is Germany, the country we prosecuted, whose leaders were executed as a result of that prosecution. That this country turned around and said, ‘You’re right. This has got to be universal’…”—he pauses to savour the memory—”…that is the most significant approval possible of the whole procedure we initiated at Nuremberg.”

Ben Ferencz did not use a single witness in his prosecution of the senior members of the Einsatzgruppen. His evidence was contained in boxes of Einsatzgruppen records. A typical example, he says, would read, “We entered Town X and in the first twenty-four hours we ‘eliminated’ 4,376 Jews, 820 gypsies, and 48 others.”

To many people, the Einsatzgruppen’s crimes defied comprehension, but Ferencz had a name for them. In his opening address, he told the judges that the twenty-two defendants were guilty of “genocide, the extermination of whole categories of human beings.”

Ferencz was the first person to articulate the term “genocide” in a court. He had learned the word from an odd, dishevelled legal scholar then wandering the halls of the Palace of Justice as part of the Polish delegation. Raphael Lemkin’s family had been killed for being Jewish, and Lemkin wanted to outlaw any future attempts to destroy a social group. He named the crime by combining genos (Greek for “race” or “kind” ) with cide ( Latin for “killing” ).

In 1948, the year after Ferencz used the term in the Nuremberg courtroom, the United Nations General Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide. Many democratic countries ratified the treaty in the first decade—but not the United States. It took forty years before the US government finally gave its legal backing to the treaty, and even then it attached a list of reservations.

Such behaviour is not unusual for the United States. Although it is a strong advocate of human rights and international criminal justice, it rarely enters into multilateral agreements to support these principles. Ferencz sees it this way: political power in his country is like a metronome, swinging back and forth between two camps. There are those who believe that the only thing that counts is military might and those, like him, who believe that “the rule of law will provide an eventual solution to the problem of conflict among nations.”

Ferencz’s position might seem naive, but he counters that those who believe in the rule of force can only point to a legacy of war and bloodshed in reply. It is his own memory of war, of the dead and half-dead scattered about the concentration camps like discarded rags, that keeps the eighty-six-year-old working seven days a week. “My greatest difficulty today is one I created myself,” he says of his all-consuming campaign to make war illegal. “Because I have dedicated myself to a goal that is impossible to meet in a human lifespan.”

Ultimately, Ferencz says, Americans will benefit if the metronome swings the other way and the United States decides to support endeavours such as the International Criminal Court. The US is in a position to spread the international rule of law; if it chooses not to do so, he warns, it may regret the missed opportunity when it slips from its current position of global pre-eminence. “As ye reap, so shall ye sow,” he says.

In Nuremberg, Robert Jackson made a pronouncement that carries an echo of that warning. As he stood in Courtroom 600 on the first day of the trials, he told the court:

We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.