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The Nuremberg trials began a transition from concept of “war crimes” to “crimes against humanity” in international law. Following World War II, politics between sovereign states began to give way to international justice in the area of human rights. Vengeance began to give way to justice in international relations.
 

The story of the International Criminal Court begins with the Nuremberg Tribunal that tried Nazi war crimes after World War II. It is not simply, or even primarily, that Nuremberg provided an organizational model for trying crimes against humanity in an international forum.

The real gifts of Nuremberg were two ideas. The idea that there was such a thing as “crimes against humanity,” and the idea that the rule of law and not vengeance should govern international relations.

Questioning Absolute State Sovereignty

The ideas of crimes against humanity and international law may be largely taken for granted now, but it wasn't always so. Up until the period just before the start of World War II, it was assumed that states had the right to carry out their domestic affairs without intrusion by outsiders. States were sovereign, and what they did with their own citizens on their own territory was no one else's business.

A state could be held accountable for war crimes—crimes against the soldiers or citizens of another country. But, there was no clear framework or procedure whereby government officials could be held accountable on an international stage for the treatment of their own citizens.

That changed with Nuremberg.

Beyond War Crimes

Allied states inadvertently started the process of developing international humanitarian law when they began the process of holding Germany responsible for the execution of downed allied flyers. In the winter of 1944, the Holocaust was not yet center stage.

Washington contacted Harvard law professor Sheldon Glueck—an expert on war crimes. They asked Glueck to recommend someone for the new war crimes program. Glueck recommended a student of his, Ben Ferencz. Ferencz was in the European theater serving under Patton and was assigned the job of gathering evidence and information on war crimes perpetrators. Ferencz was joined by Private Jack Nowitz, a Yale law graduate. Together they began their work, following advancing allied forces into Germany.

Encountering Nazi concentration camps, Ferencz and Nowitz were faced with the grisly task of gathering evidence. But in the Nazi death camps they were also presented with a different problem. The crimes of the Nazis were not merely (or even primarily) against enemy combatants (which would be a crime of Germany against the Allied states). Nor were they faced with one individual's crime against another human being. Rather, they were confronted by a state's crimes against a race—German and non-German Jews. The idea that the Nazi government somehow had the right to treat its citizens (or any humans for that matter) in this way, even in their own territory, was unconscionable.

And so began the eclipse of “war crimes” by the notion of “crimes against humanity.”

Beyond Vengeance

The first war crime “trials” were conducted by Ferencz and Nowitz at Nazi death camps. The very first was at Dachau.

But, why bother with a trial at all? Why not just shoot the offenders where they stood? Certainly, the Russians could not understand the need for a trial, requiring the inconveniences of evidence and procedure. Russian soldiers, to the extent that they understood the rule of law at all, laughed off the trials as a useless gesture.

But were they useless gestures?

It was not enough merely to be outraged at the Nazi treatment of Jews. In order to move the punishment of German atrocities beyond mere vengeance, the passion for punishment had to be moved above retaliation of one individual or state against another. There needed to be a standard and a procedure that existed beyond the jurisdiction of any single state to which all states were accountable. This procedure needed to be dispassionate and rational, something that was not defined by the particular view or whims of individual states.

Crimes against humanity were crimes that lay beyond a single state. As such, addressing the crimes required a method or procedure that was not contingent on the whims or politics of a any one state. In short, prosecuting crimes against humanity called for a supranational procedure: the rule of law.

Bottom Line

The events leading up to the Nuremberg trials after World War II brought about a sea change in the way that people thought about international relations. Prior to Nuremberg, international relations were a matter of politics between absolutely sovereign states. States were free to do as they pleased with people within their territory. Confronted with the horrors of the Holocaust, it was an outrage to think that Germany, as a sovereign state, had the right to do what they did to Jews (and others) within their territory. Retribution after World War II was expanded beyond the notion of “war crimes” to “crimes against humanity.” Additionally, Nuremberg helped change the legitimate process for dealing with crimes against humanity from political vengeance to the international rule of law.

 
Data and Methods:

Data Sources:

  • A survey was conducted in 2000-2001 of 109 employees from the International Criminal Tribunal of the Former Yugoslavia (ICTY).
  • The survey was followed up with over one hundred in-depth interviews (2000-2003).
  • Interviews included the chairman of the commission of experts that preceded the ICTY, all three chief prosecutors, the deputy prosecutor, four chiefs of investigations and prosecutions and employees at all levels.
  • The author also observed trials and analyzed trial transcripts over the same period.

Funding Sources:

  • American Bar Foundation
  • Social Sciences and Humanities Research Council of Canada
  • National Science Foundation
  • Russell Sage Foundation
 
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Reference

Hagan, John. 2003. Justice in the Balkans. Chicago: University of Chicago Press. Ch. 1, pp. 18-32.

 
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