Shattering Nuremberg
Toward a Jurisprudence of Atrocity

The international law should strive to respect the intimate connections between proceeding, place and public that give legal judgments potency and meaning.

Lawrence Douglas

The fabric of international law has been radically and irrevocably changed as a result of its contact with atrocity - first in the form of Nazi crimes, and more recently in the shape of atrocities in the Balkans and genocide in Rwanda. Unfortunately, the effort to gain legal dominion over acts of atrocity has not been matched by similar efforts to examine the purposes served by prosecuting the perpetrators of such acts. In this essay, I will argue that the bold promise of international criminal justice can best be fulfilled by tying perpetrator trials to international law's expressive function: the punishment of atrocities must be seen as a means of serving the interests of history and memory in communities riven by extreme crimes.
The Nuremberg Paradigm
The 20th century witnessed a paradigm shift in the basic model of criminality. In the familiar domestic national paradigm, law views criminal behavior as a deviant act harmful to community norms and interests. In this model, the culprit is an individual and the state intervenes as the accuser and as the agent of enforcement, defending violated norms of community order. This model was not created to deal with situations in which the state itself is the sponsor of crimes or the agent of criminality. To the contrary, the state has classically been seen as the locus of legality, insulated from international interference by prerogatives of immunity and sovereignty.
Perhaps, then, the clearest way in which contact with atrocity has changed law is by puncturing the shield of sovereignty. Today, we accept without argument the idea that state actors responsible for atrocities should have to answer for their conduct in courts of criminal law - be they domestic, international, or hybrid tribunals. But we run the risk of forgetting how deeply radical this idea was before Nuremberg. Sovereignty-articulated in the political theory of Hobbes, enshrined in the Treaty of Westphalia-was, before Nuremberg, an absolute bar to international prosecutions. I do not want to overstate the practical significance of the puncturing of the shield of sovereignty. Sixty years after Nuremberg, the shield remains strong, and from the perspective of human rights lawyers, frustratingly so. Yet the conceptual shift has been dramatic.
We get a clearer sense of the importance of this conceptual shift when we look closer at the four foundational international crimes that can puncture the shield of sovereignty: crimes against the peace, war crimes, crimes against humanity, and genocide. Of these, crimes against the peace may seem the most anomalous inasmuch as this incrimination has never acquired a coherent definition and will only fall under the jurisdiction of the fledgling International Criminal Court if and when a satisfactory definition can be agreed upon. But, if we turn the clock back to Nuremberg, the crime against the peace was the gravamen of the prosecution's case - it was understood as the principal international crime. This, in fact, made perfect sense from the perspective of the classic theory of sovereignty. Definitional problems aside, criminalizing the unprovoked attack of one nation on another can be seen as deeply conservative, an attempt not to disrupt but to safeguard the system of sovereign nation states. The jurisprudential theory of Nuremberg can be stated thusly: on certain rare occasions, such as in the case of unprovoked warfare, it may be necessary to puncture the shield of sovereignty in order to protect the larger system of sovereign nation-states.
This same jurisprudential understanding was expressed in the other crimes adjudicated at Nuremberg: war crimes and crimes against humanity. As is the case with prosecuting crimes against the peace, prosecuting war crimes permits the international community to shatter sovereignty for the ultimate purpose of preserving it. The International Military Tribunal's (IMT) conceptualization of crimes against humanity, a crime first recognized at Nuremberg, also fits this pattern. At Nuremberg, a crime against humanity had to have a demonstrable nexus to aggressive war in order to be justiciable before the IMT. But this nexus requirement was not simply a cynical effort on the part of the United States to insulate Jim Crow laws from judicial scrutiny. It also reflected the larger jurisprudential vision of Nuremberg that conceived of international crimes literally as crimes between legal entities called nation-states. If Nuremberg pioneered the radical idea of shattering the prerogatives of the sovereign, it was toward the conservative end of preserving, not supplanting, the larger system of sovereign nation-states.
Shattering the Nuremberg Paradigm
The incrimination that remained most volatile or unstable vis-à-vis this conservative ambition was the crime against humanity. Even before the end of the IMT trial, Control Council Law no. 10, the Allied document which set forth the legal basis for each occupying power to conduct war crimes trials in its respective zones of occupation, had severed the nexus requirement from its definition of crimes against humanity. As an international crime that now no longer needed to demonstrate a connection to international conflict, the crime against humanity was soon joined by another novel incrimination. The term genocide was first coined by Raphael Lemkin, a Polish-Jewish jurist who long before the Nazi extermination of the Jews had agitated for international legal recognition of Turkish atrocities perpetrated against the Armenians. But it was not until 1943 and the advent of the Nazis' techniques of administrative massacre that Lemkin coined his neologism to denote the destruction of a group qua group. The term genocide first appears in a legal document in the Nuremberg indictment (albeit as a description of war crimes) and by 1948, genocide already finds itself elevated by the international legal community to the status of an independent international crime. Indeed, genocide is now considered the international crime, supplanting crimes against humanity as the gravest violation of any legal code, domestic or international.
The concepts of crimes against humanity and genocide, however, are radical not only in naming radical transgressions or in authorizing the shattering of sovereign prerogatives. They are radical in that the very term "international" is something of a misnomer. They do not reach conduct between nations; on the contrary, they can, and most typically will, reach actions perpetrated against groups or populations controlled within the territorial bounds of a coherent nation-state. This remarkable trend toward severing "international crimes" from any connection to conduct between states finds further elaboration in the recent jurisprudence of war crimes. In one of its most important rulings, the International Criminal Tribunal for the former Yugoslavia (ICTY) concluded in its Tadic decision that a conflict need not be strictly international to be justiciable in an international court. Thus, although Nuremberg continues to be viewed as the most important precedent in international criminal law, developments in the field post-Nuremberg have largely dismantled its basic paradigm. The crime of aggressive war, which maintained the clearest connection to international conduct, has become largely a dead letter and in its stead we find the development of a rich jurisprudence of three international crimes - crimes against humanity, genocide, and war crimes - which have largely eliminated Nuremberg's connection to the core meaning of the concept of "international." Indeed, these crimes can better be described as transcending the nation-state, or as "supranational." Although these crimes may, at times, assume an entirely intrastate quality, I call them supranational to remind us that the traditional fixation on the nation-state as the relevant unit of analysis has receded in importance. "Supranational" crimes permit shields of sovereignty to be punctured but not toward the larger end of protecting the system of nation states. Rather, the prosecution of supranational crimes claims to vindicate the interests of humanity writ large.
Some theorists have found support for this position by explicating the core idea of "humanity" contained in the term "crimes against humanity." Already at Nuremberg we find jurists who parsed the term as referring to a collective ideal of humanity against those who understood it as referencing a basic notion of humaneness. This ambiguity found its way into official translations prepared by the IMT: German documents at times refer to Menschlichkeit (humaneness) and at others to Menschheit (humanity). Yet, since Nuremberg, the conceptual shift has been clear. Hannah Arendt famously parsed the crime against humanity as a vindication of the interests of Menschheit, understanding the crime as an assault on the human status as such. More recently, David Luban has attempted to identify the crime as, at its core, an attack on the human status as a political animal. Since Nuremberg, then, the trend has been to understand supranational crimes as protecting not the interests of nation-states but of humanity as a whole.
Our three supranational crimes - crimes against humanity, genocide, and war crimes - are extraordinary in another sense. It is no exaggeration to say that they explode law's spatio-temporal coordinates. Most crimes tend to be controlled by a statute of limitations, but with the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes Against Humanity of 1968, the international legal community agreed that these supranational crimes should not be controlled by a prescriptive period. Thus, as was the case with Maurice Papon, the former Vichy official and French Minister of Finance who was convicted of complicity in crimes against humanity in 1998 (and who died earlier this year), prosecutors are authorized to pursue perpetrators a half century after the commission of their crimes.
More remarkable still is the spatial dimension. Recent conferences commemorating the sixtieth anniversary of the IMT trial champion Nuremberg as the great innovation in international criminal law; the Adolf Eichmann trial, by contrast, tends to be seen as an important social and cultural event, but not as a particularly important precedent in the development of international law. While fair in its general terms, this conventional wisdom presupposes a strict, and in my mind, untenable, separation between the legal and the cultural meaning of a trial. More to the point, it overlooks a crucial legal legacy of the Eichmann trial - its jurisdictional profile. The Eichmann court established jurisdiction over the accused through an extremely unorthodox reading of the principle of passive personality, the idea that a state can claim jurisdiction over criminal acts in which its nationals count among the victims. Here, the Israeli court claimed that the victims of the Holocaust were would-be citizens of Israel, an argument that overlooked the fact that the state might never have been established but for the horrific crime. More radically, the court relied on a theory of universal jurisdiction, that is, jurisdiction conferred exclusively by the nature of the crime. Here again, the idea is that supranational crimes are so extreme as to authorize any court, anywhere to sit in judgment on alleged perpetrators. In the decades following the Eichmann trial, universal jurisdiction seemed to be little more than a moribund juridical curiosity, only to experience a remarkable revival with the Pinochet affair, and with the prosecution of Serbs in Germany for atrocities in the Balkans and Rwandans in Belgium for genocide.
The Problem of Punishment
Law's contact with atrocity has thus led to the articulation of supranational crimes that explode law's spatio-temporal dimensions. These conceptual innovations have been matched by a remarkable commitment of institutional resources. The ICTY currently has a staff of 1,100 and an annual budget of a quarter of a billion US dollars. The fledgling International Criminal Court (ICC) has yet to stage a single trial, but already has a staff of 600 and an annual budget of 90 million Euros. But what is the purpose behind these extraordinary acts of the legal imagination and of institutional will? If the answer appears self-evident - to put an end to impunity for perpetrators of atrocity and to bring them to justice - then this response only begs the question. For what does it mean to bring a perpetrator of atrocity to justice? Again, the answer might appear obvious: justice demands placing a perpetrator on trial, and in cases in which guilt has been established beyond a reasonable doubt, putting the perpetrator in prison. But here I share the concerns of scholars, notably Mark Drumbl, who have located a troubling disconnect between the radical and creative efforts to gain legal dominion over acts of atrocity and the deeply conventional outcome of the process: incarceration. This disconnect becomes more troubling when we recall that the theory of penology does not defend incarceration as an end unto itself; it has certain instrumental justifications and is intended to serve broad societal purposes. How well do these purposes serve the ends of doing justice to crimes of atrocity?
American prisons are today referred to as correctional institutions and at least nominally, most institutions are designed to reform, rehabilitate, and correct. But however fanciful that goal may be in the case of common criminals, it plays virtually no role in the literature on the punishment of perpetrators of supranational crimes. Whatever we hope to gain by incarcerating perpetrators, it is not their reform. If taking them out of circulation were the only purpose, it is far from clear that a political solution like the one that sent Napoleon to his island retreat, or Idi Amin to Saudi Arabia, or Baby Doc Duvalier to the Cote d'Azur, would not be equally efficacious.
Then, of course, there is the goal of deterrence. Deterrence is specifically mentioned as a goal in the statute of the ICC as well as in the charters of the Yugoslav and Rwandan tribunals. Whether the trial and incarceration of perpetrators of supranational crimes serves the ends of deterrence remains, however, an open question. It seems dreadfully obvious that the Nuremberg and Eichmann trials did little to deter Pol Pot, and that the work of the ICTY and ICTR has done little to put a brake on genocide in Darfur. This might simply be a consequence of the fact that perpetrator prosecutions have until now been extremely rare and anomalous events, and as the institutions of supranational justice gain greater traction, the deterrent effects will become more visible. But even this seems highly questionable. Deterrence as a justification for punishment remains, then, almost entirely speculative and aspirational.
Then there is the retributive function of punishment. But here again we run into problems that have vexed all perpetrator trials. At the time of the Nuremberg trial, Hannah Arendt wrote to Karl Jaspers, "For these crimes, no punishment is severe enough." If retribution is anchored in some notion of proportionality, no punishment would seem proportional to crimes of atrocity. This identical concern surfaced at the time of the Eichmann trial. In his summation before the court, Israeli Attorney General and lead prosecutor Gideon Hausner openly acknowledged the inadequacy of even the most extreme punishment for Eichmann's atrocities, conceding, "It is not always possible to apply a punishment which fits the enormity of the crime." If these issues plagued debates about the imposition of the death penalty, they apply with only greater vigor in the case of the ICC whose maximum sanction is generally set at thirty years imprisonment. Actors associated with the ICTY have likewise expressed concerns about the unseemliness of sentencing a convicted perpetrator of crimes against humanity to, say, eleven years in prison. This is not to say that the death penalty would better satisfy the retributive goals of perpetrator prosecutions, but it does drive home the notion that no matter how severe the penalty, retribution necessarily provides a weak justification for the prosecution of perpetrators of extreme atrocities.
Expressive Punishment and the Didactic Trial
This then leaves the expressive purpose of punishment. In my mind, this is the most compelling and perhaps the most under-theorized reason to punish supranational crimes. The expressive function implicitly recognizes that punishing perpetrators is in the first instance a symbolic, declarative act, one that is closely associated with the didactic purpose of the perpetrator trial. As I argue in my book The Memory of Judgment , the perpetrator trial can serve two central didactic ends: First, it can serve as a tool of political-legal legitimation by making visible the sober operation of the rule of law. Second, it can serve the ends of history and memory. In this latter respect, it can play a powerful role in clarifying a history of horror often obscured in rumor, denial, and silence; it can establish a baseline account that may serve the interests of transition; and it can confer public recognition upon the memories of survivors and honor upon the memory of victims. Certainly, my defense of the didactic trial is not uncontroversial. But if we agree that the punishment of perpetrators bears an uncertain relationship to correction, retribution, and deterrence, then we might be all the more prepared to accept the trial as an expressive, didactic exercise. Indeed, we might go further still and insist that legal didactics are a necessary feature of the justificatory logic of any jurisprudence of atrocity.
My position challenges the views of those, such as Arendt and Luban, who understand the prosecution of supranational crimes as vindicating the interests of humanity writ large. In the last pages of Eichmann in Jerusalem, Arendt clearly locates a universalist message in the punishment of the condemned SS officer. In my view, however, the trial of perpetrators of atrocity should push in precisely the opposite direction. By using the prosecution of perpetrators as a tool for clarifying contested history and defining the terms of collective memory, the didactic trial ties the crimes of atrocity to the experiences of specific communities. Seen in this light, prosecuting supranational crimes attends less to the interests of abstract humanity than it seeks to contribute to the repair of the violated bodies and spirits of members of definable groups and communities.
Moreover, I would insist that my defense of trial didactics is faithful to the underlying theory of the supranational crime. Here I take issue with those theorists who parse crimes against humanity and genocide as offenses against the human status (pace Arendt) or against the political animal (pace Luban). Against these universalists, I would insist that supranational crimes are, in their essence, crimes against plurality, directed against identifiable groups and communities. This is clearest in the crime of genocide, which, by definition, criminalizes behavior directed toward the destruction of a group qua group. But a similar observation may be made about crimes against humanity. Certainly, that subset of crimes against humanity which deals with persecution-type offenses presupposes that those crimes will be directed against persons by virtue of their inclusion in groups or communities, be they defined in terms of race, ethnicity, religion, or political beliefs.
Having located a basic affinity between the nature of the supranational crime - as a foundational attack on collective existence of groups and communities - and the expressive function of the trial as a didactic tool in the service of history and memory, we may ask what turns on this insight. Given her belief that Eichmann's crimes were an affront to humanity writ large, Arendt understandably insisted that Eichmann's trial should have been removed to an international court. Indeed, the failure to try Eichmann before an international tribunal constituted in Arendt's mind the greatest shortcoming of the Jerusalem trial. Yet, history has surely proven her wrong. If anything, the Eichmann trial powerfully succeeded as a didactic event precisely because it was staged in Israel. The intimate connections between perpetrator, place, and public that made the Eichmann proceeding such a powerful didactic drama-not simply in Israel, but in Germany, the United States, and across the globe-would surely have been lost in an international trial. This is not meant to indict the work of international courts. Yet, it does support the jurisprudential theory that undergirds the ICC, a theory that sits uncomfortably with universalists such as Arendt: that international courts should function as courts of last resort. In the crucial effort to submit acts of atrocity to legal judgment, the international law should strive to respect the intimate connections between proceeding, place and public that give legal judgments potency and meaning.

(Lawrence Douglas is the James J. Grosfeld Professor of Law, Jurisprudence, and Social Thought at Amherst College. This article is adapted from his current book project, Reflections on the Glass Booth, to be published by Princeton University Press.

Source: www.harvardir.org)