The Nuremberg Principles, 80 years later
Eighty years ago, November 20, 1945, the victorious allies of World War II opened the Nuremberg war crimes trials. Twenty-four Nazi leaders stood accused of conspiracy to wage war, war crimes, crimes against humanity and crimes against the peace. Almost all were found guilty and hanged. Then, the Allies tried hundreds of defendants, including Nazi judges and lawyers who gave legal cover to the atrocities.
Besides seeking immediate justice, the Allies tried to put an end to such horrors for all time. International law, and the laws of many nations, including the US, codified proper conduct on the part of military forces in war and in occupied territories. These reforms outlawed indiscriminate killing and torture and specified humane treatment of civilian noncombatants. To ensure that the new order would operate in practice, a new rule established the culpability of anyone obeying an unlawful order.
The anniversary should give us an opportunity to assess the successes of the undertaking to celebrate them and the failures to fix them.
On the positive side, the Nuremberg Principles remain viable, even if sometimes ignored. The turn of this century saw the punishment of those responsible for the bloody Balkan Wars that ensued when Yugoslavia disintegrated. Just last week, a court in Bangladesh sentenced Sheikh Hasinah, the country’s former prime minister, to death for crimes against humanity in suppressing protests against her autocratic rule. Though India provides her sanctuary against immediate execution, the verdict still stands. She risks traveling abroad and even were she stuck in India, the future may provide redress.
Another seemingly positive development exposes the main failure of the post-Nuremberg legal structure. Yesterday, November 19, US Sen. Mark Kelly (D-AZ) and other lawmakers who had served in the Armed Forces issued a video informing members of the US military that the law forbids them from obeying illegal orders. Good to know, but will such warnings offer sufficient deterrence?
For two reasons, without further reforms, no.
In a television interview last night, Sen. Kelly explained that the efficacy of the rule against obeying unlawful orders depends on the underlying legal structure. The Armed Forces employ Judge Advocates General, lawyers who advise the troops on such matters. In addition, each government agency has an independent inspector general to investigate complaints of wrongdoing. Besides that, the Department of Justice’s Office of Legal Counsel issues legal opinions on proposed activities and the Office of Professional Responsibility investigates corruption and malfeasance of the department’s employees, including attorneys in the Office of Legal Counsel. The Office of Professional Responsibility can recommend prosecutions.
This looks good on paper. However, the arrangement depends on the professionalism of all the advisers and the willingness of the authorities to prosecute. On the first count, the former Secretary of the Air Force raised an alarm in a recent op-ed in the New York Times. A US president may fire the inspectors general. That future president may replace them with sycophants all too willing to toe the party line. A future president may clean house of judge advocates general in the same fashion. With no one informing the troops, impunity will reign.
The authorities may refuse prosecution in egregious cases and block compensation for victims through use of national security privilege and related legal doctrines. It happened, unfortunately, under the Obama Administration. After the attacks on Sept. 11, the Bush Administration used torture and other illegal means to question suspects in inhumane conditions. The Administration obtained authorization in the so-called Torture Memos.
A report from the US Senate Intelligence Committee, another from Human Rights Watch and an article in the George Washington University Law Review by a leading civil rights litigator documented that the writer and supervising attorney (who wound up as a judge on the court of appeals) distorted case law and overstated presidential power. It also came out that the request for authorization did not cover some techniques that the government employed. Indeed, the agents in charge of interrogation adapted methods that the Army Manual described as illegal and used to train soldiers on how to resist them.
The Obama Administration stood by the Bush Administration’s decision not to prosecute. The idea behind it, “We don’t look back,” may work in the case of South Africa, where the Afrikaner perpetrators of apartheid would never return to power. Not in this instance, where bad people can win elections.
The world must consider extra-territorial jurisdiction to prosecute lawyers and lower level officials who undergird war crimes, as much as to the war criminals themselves. In addition, just as with attempts to use Russian assets to compensate Ukraine’s victims of war crimes, so must assets of the officials and their government become subject to attachment to compensate victims of war crimes. Many details need to be considered, but we must start the process.
