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Laying the Groundwork for International Humanitarian Law

Politics and Justice in Creating the International Criminal Court

How Rape Became a Crime against Humanity

From Vengeance to Justice at Nuremberg

Jurisdiction of the International Criminal Court

For centuries before World War II, the absolute sovereignty of states was not questioned as a practical matter. International relations among states were carried out by politics or by war. This was the only option since states were officially free from all external interference in their domestic affairs.

The Nuremberg trials changed that. In response to the atrocities carried out by the Nazis in World War II, the Nuremberg tribunal established the principal that there are certain standards for conduct that states and all individuals must abide by. States were not completely free to do whatever they wanted with their citizens. Individuals, when faced with the command of carrying out state directives to commit war crimes, had a moral obligation to resist those commands.

States and individuals, at least with respect to war crimes, answered to a higher authority: an international legal order.

Legal Liberalism and Living Law

However, the notion of a rule of law to which all nations should submit flew in the face of the sacrosanct sovereignty of the state. What law could there be above nations? International relations were governed by politics, not by law.

Sovereign States and the Holocaust

Leading up to Nuremberg, this was the U.S. view of things (and remained the Soviet's view). As odd as it may seem now, many, if not most of the politicians simply did not see the relevance of the Holocaust for the Nuremberg trials. Some politicians frankly dismissed the importance of the Holocaust—not as a moral outrage, but as applicable to Nuremberg prosecutions. In the words of Henry Stimson, U.S. architect of the Nuremberg trials, “I have great difficulty in finding any means whereby military commissions may try and convict those responsible for excesses committed within Germany both before and during the war which have no relation to the conduct of war.”

Two key points in Stimson's statement highlight the limits imposed by the “sovereign state” view:

1. The “excesses” were within Germany,

2. The “excesses” were not, strictly speaking, carried out as an act of war.

Legal Liberalism

Key features of legal liberalism include a commitment to universal principles and the importance or need to secure those principles within a firm legal process. Harvard law professor Sheldon Glueck saw that attempting to uphold “universal values” (or any values) without a legitimate, independent legal process would continue business as usual in international relations. Values would remain a function of power.

Legal procedure—the rule of law—was necessary to secure the notion of human rights beyond power politics. Glueck argued that punishing crimes against humanity within a formal trial context was important because it would inform public opinion as well as fix the record of history.

But, how did such a massive change in international relations come about? How did the ideas of legal liberalism become law?

From Idea to Law

John Hagan argues that there was nothing at all inevitable about this change. Several conditions had to be in place. Notably, not only did the social climate and situation have to be right, but the change depended as well on the efforts of passionate and committed individuals who had enough authority and discretion to be able to turn their vision into a reality.

What were the conditions that made the legal activism supporting legal liberalism a reality?

Political Opportunity

The liberal democratic West and the communist Soviet Union found themselves in a shaky alliance at the end of World War II. Though they differed in exactly how to punish German crimes, they at least agreed that they should be punished. The alliance, temporary though it was (the opportunity disappeared with the beginning of the Cold War), provided a common goal and purpose. This kind of political opportunity was not to appear again until the 1990s with the fall of communism.

Regularized Patterns of Action

How, in a concrete, on-the-ground way can an idea such as liberal legalism be turned into a reality?

An idea—any idea—to become living and livable, must rest on regularized, predictable patterns of behavior. Humans have to do something, and do it in a way that can be reproduced over time and across situations.

Leading up to Nuremberg, Glueck saw that administering the rule of law depended, in part, on the ability to gather evidence in a way that was legitimate and reproducible. To this end, Professor Glueck created an evidence system that consisted of forms used to gather and present evidence. Ben Ferencz and Jack Nowitz (both law school graduates before joining the military) used these forms to gather evidence against the Nazis. By their actions, these men created a pattern of action and a template, so to speak, of how to gather and mobilize evidence in the pursuit of international justice.

Liberal Legalism as a New Interpretive Framework

How do we understand what is going on? How do we decide what is the most appropriate course of action?

The rule of law provided a different way of seeing or interpreting international relations and crimes than the previous sovereignty of states view. According to the idea of the rule of law, it was legal justice and not political vengeance that should guide our understanding of crimes and how to deal with those crimes.

This way of interpreting international relations and crimes was not the norm prior to Nuremberg. It was a new idea that had to be fought for and pursued against the inertia of the existing way of interpreting international relations. This battle of ideas rests heavily on the actions and charismatic qualities of individuals.

“Conversion” Experiences

If changes in world views depend upon the actions of individuals, how are the views and commitments of individuals changed? In other words, how do individuals “convert” from one way of seeing the world to another?

Hagan says that shared, dramatic experiences may provide the catalyst for a change in world views. The experiences of Ferencz and Nowitz in the Nazi death camps was an example of this kind of conversion experience (sometimes called an “alternation experience.” ) Their jarring, disruptive experiences not only forced them to call into question the way that they had previously understood “war crimes,” but solidified their emotional commitment to a new way of understanding crimes against humanity and the importance of the rule of law.

Conversion experiences of this sort can create the passion, drive and commitment necessary to pursue and champion new ideas. In short, the experiences that give rise to conversions can imbue individuals with a sort of charisma that enables them to mobilize others.

Bottom Line

Before World War II, international rule of law had yet to become a reality in the area of human rights. However, at the end of World War II the political landscape was right and charismatic individuals were available to make international human rights law into a reality. This began with the process of setting up the Nuremberg tribunal.

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From Vengeance to Justice at Nuremberg

Laying the Groundwork for International Humanitarian Law