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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)
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