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A New Deal for the Nuremberg Trial: The Limits of Law in Generating Human Rights Norms

Published online by Cambridge University Press:  18 August 2010

Elizabeth Borgwardt
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This article distills several arguments from a larger book project, framed as an international history of the idea of crimes against humanity, with the 1945–46 Nuremberg trial serving as a fulcrum. The project as a whole first traces the origins of the idea of a “crime against humanity,” before this concept was crystallized in the Nuremberg charter; followed by a large central section on the unfolding of the Nuremberg trials themselves; with a concluding section on some of the post-Nuremberg legacies of these ideas. This article draws on material from all three sections, but focuses on how we might understand the politics of the flagship Nuremberg trial itself, as opposed to its antecedents or longer-term legacies.

Type
Part IV. Law, War, and Human Rights
Information
Law and History Review , Volume 26 , Issue 3: Law, War, and History: A Special Issue , Fall 2008 , pp. 679 - 705
Copyright
Copyright © the Board of Trustees of the University of Illinois 2008

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References

1. For the limited purposes of this article, “Nuremberg” refers to the trial of twenty-two top-ranking Nazi leaders at the Palace of Justice in Nuremberg during 1945-46. It explicitly does not include the twelve subsequent U.S.-sponsored trials or other so-called “zonal trials.” The larger project also discusses the way the subsequent trials address the theme of crimes against humanity.

2. On transitional justice, a term about twenty-five years old, see, for example, Sriram, Chandra Lekha, Review Essay, “Transitional Justice Comes of Age: Enduring Lessons and Challenges,” Berkeley Journal of International Law 23 (Summer 2005): 506–23Google Scholar; Elster, Jon, Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004)Google Scholar; Posner, Eric A. and Vermeule, Adrian, “Transitional Justice as Ordinary Justice,” Harvard Law Review 117 (January 2004): 761–825Google Scholar; Teitel, Ruti G., Transitional Justice (New York: Oxford University Press, 2000)Google Scholar; Hesse, Carla and Post, Robert, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999)Google Scholar; Kritz, Neil, ed., Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols. (Washington, D.C.: U.S. Institute of Peace Press, 1995)Google Scholar; Herz, John, ed., From Dictatorship to Democracy: Coping with the Legacies of Authoritarianism and Totalitarianism (Westport, Conn.: Greenwood Press, 1982)Google Scholar.

3. Prominent analyses of alternatives to juridical processes in the realm of transitional justice includeTorpey, John, ed., Politics and the Past: On Repairing Historical Injustices (Lanham, Md.: Rowman & Littlefield, 2003)Google Scholar; Roht-Arriaza, Naomi, “Punishment, Redress, and Pardon: Theoretical and Psychological Approaches,” in Impunity and Human Rights in International Law and Practice, ed. Roht-Arriaza, Naomi (New York: Oxford University Press, 2001), 13–23Google Scholar; Rotberg, Robert I. and Thompson, Dennis, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000)Google Scholar; and Brooks, Roy L., ed., When Sorry Isn't Enough: The Controversy over Apologies and Reparations for Human Injustice (New York: New York University Press, 1999)Google Scholar.

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5. Work on this topic that has informed my analysis includesIkenberry, G. John, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars (Princeton: Princeton University Press, 2001)Google Scholar; Kennedy, Paul and Hitchcock, William I., eds., From War to Peace: Altered Strategic Landscapes in the Twentieth Century (New Haven: Yale University Press, 2000)Google Scholar; on denazification, see, for exampleGehrz, Christopher, “The Reeducation of Germany and the Education of the West, 1945-1949” (Ph.D. diss., Yale University Department of History, 2002)Google Scholar; Moeller, Robert G., ed., West Germany under Construction: Politics, Society, and Culture in the Adenauer Era (Ann Arbor: University of Michigan Press, 1997)Google Scholar; Merritt, Richard L., Democracy Imposed: U.S. Occupation Policy and the German Public, 1945-1949 (New Haven: Yale University Press, 1995)Google Scholar; Ermarth, Michael, ed., America and the Shaping of German Society, 1945-1955 (Providence, R.I.: Berg, 1993)Google Scholar; Vaillant, Jérôme, ed., La denazification par les vainqueurs: La politique culturelle des occupants en Allemagne, 1945-1949 (Lille: Presses Universitaires de Lille, 1981)Google Scholar; FitzGibbon, Constantine, Denazification (London: Michael Joseph, 1969)Google Scholar; Ebsworth, Raymond, Restoring Democracy in Germany: The British Contribution (London: Praeger, 1960)Google Scholar.

6. See Ikenberry, , After VictoryGoogle Scholar; Bass, Gary Jonathan, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000)Google Scholar; Carlton, Eric, Occupation: The Policies and Practices of Military Conquerors (London: Routledge, 1992)Google Scholar.

7. Torpey, , ed., Politics and the PastGoogle Scholar; Elster, , Closing the BooksGoogle Scholar; Teitel, , Transitional JusticeGoogle Scholar. Historians also play various roles in the ongoing politics of restitution and reconciliation. SeeFeldman, Gerald, “The Historian and Holocaust Restitution: Personal Experiences and Reflections,” Humbolt Kosmos: Mitteilungen der Alexander von Humboldt-Stiftung 82 (December 2003), 30–32Google Scholar; Maier, Charles S., “Doing History, Doing Justice: The Narrative of the Historian and of the Truth Commission,” in Truth v. Justice, 261–78Google Scholar.

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9. U.S. Treasury Department, “Program to Prevent Germany from Starting a World War III,” September 9, 1944Google Scholar, in Foreign Relations of the United States, Quebec, 1944, 131-40; this proposal elaborated on a September 5, 1944 memorandum from Morgenthau to Roosevelt entitled “Suggested Post-Surrender Policy for Germany” in ibid., 101-6; see alsoMorgenthau, Henry, Germany Is Our Problem (New York: Harper, 1945)Google Scholar; Kimball, Warren F., Swords or Ploughshares? The Morgenthau Plan for Defeated Nazi Germany, 1943-1946 (New York: Lippincott, 1976)Google Scholar.

10. Morgenthau Diary, entry for September 2, 1944 inBlum, John Morton, ed., From the Morgenthau Diaries (Boston: Houghton Mifflin, 1959-1967), 3:353Google Scholar; see also the summary of the Morgenthau approach inElster, , Closing the Books, 199–207Google Scholar.

11. Pearson, Drew, “Morgenthau Plan on Germany Splits Cabinet Committee,” New York Times (September 24, 1944)Google Scholar; Editorial, “Morgenthau's Plans for Germany,” Washington Times-Herald (September 26, 1944)Google Scholar; Lewis, Ted, “Morgenthau Plan Blamed for Stiffening of Nazis,” Washington Times-Herald (September 30, 1944)Google Scholar; Smith, Fred, “The Rise and Fall of the Morgenthau Plan,” United Nations World (March 1947)Google Scholar, clipping in Box 12, Bernstein Papers, Harry S. Truman Presidential Library; see alsoCasey, Steven, Cautious Crusade: Franklin D. Roosevelt, American Public Opinion, and the War against Nazi Germany (New York: Oxford University Press, 2001), 183Google Scholar.

12. Samuel Rosenman draft of what would become the Nuremberg charter, appended to “Memorandum: Prosecution of War Criminals,” Department of State, Office of the Legal Adviser (April 21, 1945), referencing an April 20, 1945 meeting attended by Rosenman and State Department Legal Adviser Green Hackworth, Assistant Secretary of War John J. McCloy, Assistant Attorney General Herbert Wechsler, and Colonel Ammi Cutter of the War Department. In the memo, “Judge Rosenman reports that all British officials with whom he discussed the matter, including Churchill, are opposed to such a [war crimes trial] procedure and proposed that [war criminals] be dealt with politically by the Governments.” Papers of Edward M. Stettinius, Jr., Albert and Shirley Small Special Collections Library, University of Virginia.

13. The most remarkable feature of “Malmédy fever” may have been its belated and provincially partisan nature. While the slaughter of these seventy military prisoners was doubtlessly very shocking to American sensibilities, it is in its own way at least as shocking that the slaughter of millions of noncombatant European Jews of all ages and both genders over the preceding three and a half years had failed to generate even a fraction of this outrage.Biddle, Francis, “Memorandum re: Punishment of War Criminals,” January 5, 1945Google Scholar; see also Weingartner, James J., A Peculiar Crusade: Willis M. Everett and the Malmédy Massacre (New York: New York University Press, 2000)Google Scholar.

14. As discussed in the Memorandum referenced in note 12, above.

15. Lower-level assistants in the State Department were exchanging memoranda over what to do with the tens of thousands of messages of condolence related to the death of FDR that were pouring in during the San Francisco conference. Eventually they decided to compile them into hundreds of massive scrapbooks that were presented to Eleanor Roosevelt. Stettinius Diaries, April 1945, Stettinius Papers.

16. This aspect of the Nuremberg trial is probably the most well-articulated aspect of the existing secondary literature on the trial. See, for example,Taylor, Telford, The Anatomy of the Nuremberg Trials: A Personal Memoir (New York: Knopf, 1992)Google Scholar; Varaut, Jean-Marc, Le Procés de Nuremberg (Paris: Perrin, 1992)Google Scholar; Tusa, Ann and Tusa, John, The Nuremberg Trial (London: Hodder & Stoughton, 1988)Google Scholar; and Harris, Whitney, Tyranny on Trial: The Trial of Major War Criminals at the End of World War II at Nuremberg, Germany, 1945-1946, rev. ed., (Southern Methodist University Press, 1999)Google Scholar; as well as treatments that discuss other trials in addition to Nuremberg, notablyBloxham, Donald, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (New York: Oxford University Press, 2001)Google Scholar; Douglas, Lawrence, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven: Yale University Press, 2001)Google Scholar; Bass, Gary, Stay the Hand of VengeanceGoogle Scholar; Neier, Aryeh, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Times Books, 1999)Google Scholar; and Osiel, Mark, Mass Atrocity, Collective Memory, and the Law (New Brunswick, N.J.: Transaction Publishers, 1997)Google Scholar.

17. For contemporaneous assessments of the Leipzig trials, and the decision not to try the Kaiser, see Editorial, “Convicting Itself,” New York Times (July 9, 1921), 9Google Scholar; Mullins, Claud, The Leipzig Trials: An Account of the War Criminals' Trials and a Study of German Mentality (London: H. F. & G. Witherby, 1921)Google Scholar; Wright, Quincy, “The Legal Liability of the Kaiser,” American Political Science Review 13 (February 1919), 120–28Google Scholar; extensive World War II-era assessments seeking the “lessons” of the Leipzig approach may be found in various memoranda in the war crimes files of Sheldon Glueck of Harvard Law School, a legal adviser at Nuremberg, particularly in documents circulated by the London International Assembly Commission II on the Trial of War Criminals. Glueck Papers, Reel 40, Harvard Law School microfilm collection. See also the discussion in Bass, Stay the Hand of Vengeance, chap. 2; and inWillis, James F., Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Westport, Conn.: Greenwood, 1982)Google Scholar.

18. Secretary Stimson may in turn have absorbed such a perspective from the international relations of his own mentor, Elihu Root, who had served as President McKinley and Theodore Roosevelt's secretary of war and the elder Roosevelt's secretary of state. (Root had served as one of the prosecutors of the infamous “Boss Tweed.”) For more discussion of the genesis of the aggressive war charge, see the chapter on Nuremberg inSellars, Kirsten, The Rise and Rise of Human Rights (London: Sutton Publishing, 2002)Google Scholar.

19. The London Conference began on June 26, 1945, the day the UN Charter was signed in San Francisco, and ended August 7, 1945, the day news reports were published announcing the previous day's explosion of an American atomic weapon over Hiroshima. The memoranda and summaries of negotiating sessions of the London Conference are reprinted inJackson, Robert H., Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (Washington, DC: US GPO, 1949)Google Scholar.

20. Sherwood, Robert E., Roosevelt and Hopkins: An Intimate History (New York: Harper & Bros, 1948)Google Scholar; on the junior New Dealers at the Nuremberg trial, see assistant prosecutormemoir, Telford Taylor's, Anatomy of the Nuremberg TrialsGoogle Scholar; Nuremberg interpreterDiary, Edith Helga Simon, “My Trip to the Nuremberg Trials,” private collection, entry for November 12, 1945Google Scholar. See generallyMitchell, Dalia Tsuk, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca: Cornell University Press, 2007), 183–86 (“From a pluralist nation to a pluralist world”)Google Scholar.

21. Childs, Marquis, “They Hate Roosevelt!” pamphlet circulated by the Democratic National Committee, Hotel Biltmore, New York (New York: Harper & Bros, 1936)Google Scholar; Roosevelt, Franklin D., “Annual Message to Congress, January 6, 1941,” Public Papers and Addresses of Franklin D. Roosevelt, 1940 volume, compiled by Rosenman, Samuel I. (New York: Harper, 1940), 672Google Scholar.

22. Borgwardt, Elizabeth, “‘All the Clauses in the Preamble to the Constitution Are Worth Fighting For’: FDR's Four Freedoms and Social and Economic Rights in America's World War II,” in Bringing Human Rights Home: A History of Human Rights in the United States, ed. Soohoo, Cynthia, Albisa, Catherine, and Davis, Martha F. (New York: Praeger, 2007), 1: 31–55.Google Scholar

23. For a discussion of the older locution “human rights” as becoming infused with a newer and more widely understood content in the early 1940s, seeBorgwardt, Elizabeth, A New Deal for the World: America's Vision for Human Rights (Cambridge: Belknap/Harvard, 2005), 53–61CrossRefGoogle Scholar.

24. Sumner Welles testimony before Congress, Nov.-Dec. 1945, Report of the Joint Committee Investigating the Pearl Harbor Attack, Part 2, 536ff.

25. For a fuller version of this argument, seeBorgwardt, , “‘When You State a Moral Principle, You Are Stuck With It’: The 1941 Atlantic Charter as a Human Rights Instrument,” Virginia Journal of International Law 46.3 (Spring 2006): 501–62Google Scholar.

26. Biddle, Francis, quoted in Ireland, Gordon, “Ex post facto from Rome to Tokyo,” Temple Law Quarterly 21 (1947): 27, 54–55.Google Scholar

27. Schivelbusch, Wolfgang, Three New Deals: Reflections on Roosevelt's America, Mussolini's Italy, and Hitler's Germany, 1933-1939 (New York: Metropolitan Books, 2006), 10, 15.Google Scholar

28. For a traditional two-part parsing of the New Deal, see, for example,Tugwell, Rexford G., The Democratic Roosevelt (Garden City: Doubleday, 1957)Google Scholar; Schlesinger, Arthur M. Jr, The Age of Roosevelt: The Politics of Upheaval (Boston: Houghton Mifflin, 1960), 392Google Scholar. For skeptical commentary on this bifurcated approach, seeLeuchtenburg, William E., Franklin D. Roosevelt and the New Deal, 1932-1940 (New York: Harper & Row, 1963), 162–64Google Scholar; Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Belknap/Harvard, 2001), 410Google Scholar.

29. FDR, Press Conferences (Dec. 28, 1943), PPA, 1943, 569–572Google Scholar. Jeffries, Historian John W. finds a “new” New Deal extending from 1937 to 1945Google Scholar; similarly, Alan Brinkley sees a transformed New Deal in the turn toward social Keynesianism that New Dealers pursued after what Brinkley calls “the end of reform” in 1937. Policy historian Katznelson's, Ira forthcoming book, The Southern Cage: New Deal Democracy and the Origins of Our Time,Google Scholarposits the international security dimensions of the New Deal as enduring well into the Truman administration, whileSchivelbusch's, WolfgangThree New DealsGoogle Scholarplaces the New Deal's “cultural moment” in transnational perspective.Jeffries, John W., “The ‘New’ New Deal: FDR and American Liberalism,” Political Science Quarterly 105 (1990): 397–418Google Scholar; Brinkley, Alan, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995), 3–10Google Scholar.

30. Hauser, Ernest O., “The Backstage Battle at Nuremberg,” Saturday Evening Post (January 19, 1946), 18, 138.Google Scholar

31. Vagts, Alfred, Defense and Diplomacy: The Soldier and the Conduct of Foreign Relations (New York: King's Crown, 1956), 327Google Scholar. The German-born Vagts had served as a decorated officer in the Imperial Army in World War I; he was an early critic of National Socialism and emigrated to the United States in 1933.

32. On the Hague Conventions of 1899 and 1907 and the 1928 Kellogg-Briand Pact (Pact of Paris), and their respective approaches to regulating international lawlessness, see Borgwardt, , A New Deal for the World, 61–68.Google Scholar

33. “AHR Conversation: On Transnational History,” American Historical Review 111.5 (December 2006): 1440–64.Google Scholar

34. Margalit, Avishai, The Ethics of Memory (Cambridge: Harvard University Press, 2002), 7–9Google Scholar. The terms “thick” and “thin” are drawn from the cultural anthropology of Clifford Geertz, who famously advocated “thick description” in the struggle to understand diverse societies from the position of an outsider. On “thick and thin” in the context of ethics and politics, seeCmiel, Kenneth, “Review Essay: The Recent History of Human Rights,” American Historical Review 109.1 (February 2004): 117, 126 n.26Google Scholar; Walzer, Michael, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 2004)Google Scholar; Geertz, Clifford, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973)Google Scholar. See generally,Rosenfeld, Michel and Arato, Andrew, eds., Habermas on Law and Democracy: Critical Exchanges (California: University of California Press, 1998)Google Scholar.

35. Ishay, Micheline R., ed., The Human Rights Reader: Major Political Essays, Speeches, and Documents from the Bible to the Present (London: Routledge, 1997), 5, 42Google Scholar; Armitage, David, The Declaration of Independence: A Global History (Cambridge: Harvard University Press, 2007)Google Scholar. I note in passing that the Nuremberg judgment was analogized to the Ten Commandments by no less sober a commentator thanLippmann, Walter: “For my own part, I do not think it rash to prophesy that the principles of this trial will come to be regarded with the Magna Charta, the habeas corpus and the Bill of Rights as landmarks in the development of law.”Google ScholarLippmann, , “The Meaning of the Nuremberg Trial,” Ladies' Home Journal 63 (June 1946), 32Google Scholar.

36. Danilenko, Gennady M., “International Jus Cogens: Issues of Law-Making,” European Journal of International Law 2.1 (1991), 42–65Google Scholar; Hyde, Susan, “Observing Norms: Explaining the Causes and Consequences of Internationally Monitored Elections” (Ph.D. diss., University of California, San Diego, 2006)Google Scholar. On norm identification and consolidation, see generallyKacowicz, Arie M., The Impact of Norms in International Society: The Latin American Experience, 1881-2001 (Notre Dame: University of Notre Dame Press, 2005)Google Scholar; Cortell, Andrew P. and Davis, James W. Jr, “How Do International Institutions Matter? The Domestic Impact of International Rules and Norms,” International Studies Quarterly 40 (1996): 451–78Google Scholar; Finnemore, Martha, “International Organizations as Teachers of Norms: The United Nations Educational, Scientific, and Cultural Organization and Science Policy,” International Organization 47 (1993): 565–97Google Scholar.

37. For an overview of the Tokyo trial, including a table summarizing charges, verdicts, and sentences, seeBorgwardt, Elizabeth, “Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial,”Google Scholarreprinted in War Crimes Law, ed. Gerry Simpson (London: Ashgate, 2004), 373-443.

38. Commentators contrasting the legitimacy of the Tokyo trial unfavorably with Nuremberg includeShklar, Judith in LegalismGoogle Scholar, Sellars, Kirsten in The Rise and Rise of Human Rights (Stroud: Sutton Publishing, 2002)Google Scholar, Robertson, Geoffrey in Crimes against Humanity: The Struggle for Global Justice (New York: New Press, 1999)Google Scholar, andElster, Jon in Closing the Books.Google Scholar

39. There are of course many broader and more elaborate ways of delineating rule of law ideals, several of them sketching the rule of law as basically co-extensive with liberalism itself; for a sampling, seeTamanaha, Brian Z., On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar. Each of the various permutations summarized by Tamanaha emphasizes protection from ex post facto legislation, however.

40. See, for example, “The Individual Responsibility of the Defendant Hermann Goering for Crimes Against the Peace, War Crimes, and Crimes Against Humanity,” Box 301, Thomas J. Dodd Papers, Nuremberg Series, Archives and Special Collections at the Thomas J. Dodd Research Center, University of Connecticut.

41. Elster, , Closing the BooksGoogle Scholar. The image of using institutional mechanisms to transform vengeance into retribution is fromMinow, Martha, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998)Google Scholar.

42. The Nuremberg charter defined crimes against humanity as: [M]urder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Original intentions, and the plain meaning of this wording, point to this definition as encompassing pre-war Nazi atrocities against German Jews. In practice, however, the Nuremberg tribunal interpreted limiting language in the charter as circumscribing the more radical dimensions of these provisions. Specifically, the tribunal decided to interpret crimes against humanity as justiciable only when committed in connection with the two other categories of crimes outlined in the charter, namely crimes against peace (waging a war of aggression) and conventional war crimes (committing battlefield atrocities). Accordingly, the tribunal held that prewar atrocities against Jews did not fall within its jurisdiction. The technical rationale for this astonishing interpretation is as follows: The semicolon after “war,” which appeared only in the English and French versions, was also held to divide the list into two distinct categories of crimes against humanity: the murder-like crimes before the semicolon, and the persecution-related crimes, which were limited by the extra clause about jurisdiction. The tribunal later issued a “protocol” changing the semicolon to a comma, in order to clarify that the jurisdictional limitations were meant to apply to the entire list of crimes against humanity.International Military Tribunal, Trial of the Major War Criminals, Official Text, 42 vols. (Nuremberg: Secretariat of the International Military Tribunal, Allied Control Authority for Germany, 1947) 1:11; 22:498Google Scholar; “Protocol to Agreement and Charter, Oct. 6, 1945, in Papers of Wilhelm Keitel, Institute of Contemporary History, Munich.

43. Among the few differences between the Nuremberg and Tokyo charters was that an international team handled the prosecution at Nuremberg, sharing responsibility more or less equally, whereas the Tokyo charter provided for a single American chief of counsel, chosen by Supreme Commander General Douglas MacArthur, to lead an “International Prosecution Section.” Other differences included the fact that the Tokyo charter provided for eleven judges rather than Nuremberg's four, with no alternates, and the Tokyo charter provided for review of the sentences by MacArthur. The text of the Tokyo trial's judgment itself asserted that “in all material respects the Charters of this Tribunal and the Nuremberg Tribunal are identical.” See“Special Proclamation: Establishment of an International Military Tribunal for the Far East” (Tokyo Charter), January 19, 1946Google Scholar, inThe Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East, ed. Pritchard, R. and Zaide, S., 22 vols., 20: Annex No. A-4, 16–18Google Scholar; Borgwardt, , “Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial”; Shklar, , Legalism, 156Google Scholar.

44. This list of factors is a modified version of a list explained to me by Yuma Totani in a recent conversation: she offers her own, somewhat different list in her current book project. Although I take issue with her interpretation at several points, just the idea of developing such a list at all has been very helpful in clarifying my thinking.

45. Under the Nuremberg charter, conspiracy was not listed as one of the three categories of justiciable crimes (crimes against peace, war crimes, and crimes against humanity), but it was mentioned in two places in the same part of the charter listing and explaining these three categories of crimes. First, at the end of the paragraph defining crimes against peace, described as the “planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.” Because aggression was the only crime that included conspiracy as part of the underlying offense, the Nuremberg tribunal limited the application of conspiracy to evidence related to waging a war of aggression. It basically chose to ignore the second appearance of the term, in a catchall provision at the end of the entire list of crimes, as follows: “Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” The Tokyo charter used the same wording, but its tribunal took a different interpretive tack, focusing more on this catchall provision. The Tokyo approach meant that all three categories of crimes had a conspiracy dimension, and indeed two Tokyo defendants were found guilty only of conspiracy and sentenced to life in prison.“Agreement by the Government of the United States, the Provisional Government of the French Republic, the Government of the United Kingdom of great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis” (Nuremberg Charter), IMT 1:8–16Google Scholar; Special Proclamation: Establishment of International Military Tribunal for the Far East (1 19, 1946) (Tokyo Charter)Google Scholarin IMTFE Transcript, Annex No. A-4 at 16-18.

46. Eventually, Japanese counsel were backstopped by a more aggressive and vigilant U.S. defense team, and an arbitration board was formed within the interpreters' division to decide translation questions on the spot.Sutton, , “The Trial of Tojo: The Most Important Trial in All History?” ABA Journal 36 (February 1950): 95Google Scholar; Ireland, Gordon, “Uncommon Law in Martial Tokyo,” Year Book of World Affairs 4 (1950), at 71Google Scholar.

47. Totani, Yuma, “The Tokyo War Crimes Trial: Historiography, Misunderstandings, and Revisions” (Ph.D. diss., University of California at Berkeley, 2005)Google Scholar, under contract with Harvard University Press. Totani agrees that Keenan's announcement-and of course the fact that the emperor was indeed never tried-had a big impact on Japanese perceptions of the trial, calling into question the whole point of having one, even though she argues that Keenan's announcement was in error. Totani's important new interpretation will challenge a great deal of received wisdom about the role of MacArthur, as well. See, for example,Robertson, Geoffrey, Crimes against Humanity, 224Google Scholar; Bix, Herbert, Hirohito and the Making of Modern Japan (New York: HarperCollins, 2000)Google Scholar. On preliminary plans to try Hitler, see Glueck Papers, notes in Reel 40.

48. Kirchheimer quoted inArendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. and enl. edition. With a new introduction by Amos Elon (1963; New York: Penguin Classics, 2006), 244Google Scholar. On the Soviet role, seeHirsch, Francine, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” American Historical Review 113.3 (June 2008): 701Google Scholar.

49. The premier example of such a free-spirited participant at Tokyo would doubtlessly be Justice Pal of India, who refused to sign a memorandum early on circulated by members of the tribunal calling for consensus among the judges and used his lengthy dissent to criticize the entire system of public international law as a Eurocentric club, hypocritically conspiring to exclude new members. This astonishing document remains the most trenchant critique of the trial. The typescript version is 1,235 pages; a 701-page typeset version was published by Sanyal & Co. in India under the titleInternational Military Tribunal for the Far East: Dissentient Judgment, in 1953Google Scholar.

50. Totani spells out the consequences of Keenan's alcoholism, penchant for publicity, and lack of careful preparation, as does Tokyo assistant prosecutor Kurt Steiner, more obliquely, in his forthcoming memoirThe Tokyo Trial and the Progressive Development of International Law, ed. Borgwardt, Elizabeth (Stanford University Press, forthcoming, 2009)Google Scholar.

51. Pal's dissent itemized procedural concerns but centered around Allied commissions of crimes against humanity; the published version was illustrated with photographs of atomic destruction. See alsoMaga, Timothy P., Judgment at Tokyo: The Japanese War Crimes Trials (Lexington: University Press of Kentucky, 2001)Google Scholar; Borgwardt, , “Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial”Google Scholar; Minear, Richard H., Victor's Justice: The Tokyo War Crimes Trial (1971; Ann Arbor: University of Michigan Press, 2001)Google Scholar; Falk, Richard, “Forty Years after the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law,” American Society for International Law, Proceedings of the 80th Annual Meeting, 1986, 65Google Scholar.

52. Shklar, , Legalism, 145, 160-62, 168Google Scholar; on German critiques of Nuremberg, seeBurchard, Christoph, “The Nuremberg Trial and Its Impact on Germany,” Journal of International Criminal Justice 4.4 (October 2006): 800–29Google Scholar; Eser, Albin, “Das Internationale Militärtribunal von Nürnberg aus deutscher Perspektive,”Google Scholarconference paper, “Judging Nuremberg: The Laws, the Rallies, the Trials,” July 17, 2005, NurembergGoogle Scholar; Benton, Wilbourn E. and Grimm, Georg, eds., Nuremberg: German Views of the War Trials (Dallas: Southern Methodist University Press, 1955)Google Scholar.

53. On a role for intuition in shaping political sensibilities, seeHunt, Lynn, Inventing Human Rights: A History (New York: W. W. Norton & Co., 2007), 27Google Scholar.

54. The article continued: “The Japanese government formally accepted the [Tokyo] tribunal's rulings as part of the 1951 peace treaty that it signed with Allied powers ….”Fackler, Martin and Sang-Hun, Choe, “Japanese Researchers Rebut Premier's Denials on Sex Slavery,” New York Times (April 18, 2007), A3Google Scholar.

55. Isaiah Berlin, “Winston Churchill in 1940,” reprinted in Berlin, The Proper Study of Mankind: An Anthology of Essays, ed. Henry Hardy and Roger Hausheer (1949; New York: Farrar, Strauss & Giroux, 2000), 615.

56. Rabinbach, Anson, “The Challenge of the Unprecedented-Raphael Lemkin and the Concept of Genocide,” Jahrbuch des Simon-Dubnow Instituts 4 (2005): 397-42, at 408Google Scholar. (Rabinbach was writing about the narrower legal concept of genocide, not the wider workings of the trial. His argument about problems posed by the newness of such abstractions also applies to the forum that first tried to implement them, however.)

57. Moreno-Ocampo also appealed to his audience of law students, saying that “to keep the legitimacy of the institution, I need scholars to explain it.”Moreno-Ocampo, Luis, “The International Criminal Court and Human Rights in the 21st century,” Address at Stanford Law School, January 30, 2006Google Scholar.

58. Benhabib, Seyla, Another Cosmopolitanism: The Berkeley Tanner Lectures (New York: Oxford University Press, 2006), 4.CrossRefGoogle Scholar

59. United States of America v. Karl Brandt, et al., Trials of War Criminals before the Nuremberg Military Tribunals, Nov. 21, 1946-Aug. 20, 1947 (Washington, 1974)Google Scholar; the principles of the Nuremberg Code, relating to informed consent and absence of coercion, are codified at Title 45 of the Code of Federal Regulations, Public Welfare, Subtitle A, Department of Health and Human Services, Part 46, Protection of Human Subjects. In the United States, the Nuremberg Code has also been incorporated into the laws of individual states and the codes of various universities and professional associations.

60. On the “democratization” of the past, see, for example,Sriram, , “Transitional Justice Comes of Age,” 510Google Scholar; Bodnar, John E., “Public Sentiments and the American Remembrance of World War II,” in Public Culture: Diversity, Democracy, and Community in the United States, ed. Shafer, Marguerite (Philadelphia: University of Pennsylvania Press)Google Scholar. See alsoKansteiner, Wulf, In Pursuit of German Memory: History, Television, and Politics after Auschwitz (Ohio: Ohio University Press, 2006)Google Scholar, and Seixas, Peter, Theorizing Historical Consciousness (Toronto: Toronto University Press, 2004)Google Scholar.