Stepping Beyond Nuremberg's Halo: The Legacy of the Supreme National Tribunal of Poland

50 Pages Posted: 3 Mar 2015 Last revised: 15 Apr 2015

See all articles by Mark Drumbl

Mark Drumbl

Washington and Lee University - School of Law

Date Written: March 2, 2015

Abstract

The Supreme National Tribunal of Poland (Najwyższy Trybunał Narodowy (Tribunal)) operated from 1946 to 1948. The Tribunal implemented the 1943 Moscow Declaration in the case of suspected Nazi war criminals. This paper unpacks two of the Tribunal’s trials: that of Rudolph Höss (Kommandant of Auschwitz (Oświęcim), described as the site of the largest mass murder in history) and that of Amon Göth (commander of the Kraków-Płaszów labor camp).

The Tribunal pursued punitive as well as didactic goals in conducting its trials. On this latter note, the Tribunal aspired to educate the world about Poland’s suffering during the Nazi occupation. Notwithstanding these expressive ambitions, strikingly little has been written about the Tribunal outside Poland. While more robust, discussion within Poland has nonetheless failed to catalyze a broader transnational conversation. The neglect of the Tribunal’s work disappoints in light of the distinctive quality of its jurisprudence, its salience to Poland, and its myriad doctrinal contributions. This paper seeks to recover the Tribunal’s place within the imagined spaces of international criminal accountability. Relatedly, this paper also excavates the Tribunal’s doctrinal innovations and frustrations, in particular regarding how it understood genocide, organizational liability, membership in criminal organizations, medical war crimes, and sexual torture. The decrees that comprised key elements of the Tribunal’s substantive law of application, and that delivered justice for Nazi human rights abusers, had initially been adopted for a different purpose, that is, to consolidate the authority of Polish Communist authorities. These decrees were used before, during, and after the Tribunal’s operation to persecute dissidents, at times former members of the Polish resistance, who were labeled ‘traitors’. The irony emerges, then, that decrees adopted in the name of repression can come to serve purposes that international lawyers would see as beneficial. The Polish experience thereby reveals that accountability for grave international crimes, and the pursuit of justice, may spring from illiberal origins. Obversely, this experience also cautions against undue celebration of the domestication of international criminal law which can (and in many instances has) become deployed for coercive ends and, hence, is neither inexorably nor eschatologically progressive. Law is malleable and shape-shifting: for better or for worse. This paper proceeds in four parts. Part I sets out the Tribunal’s provenance and background, while also offering a flavor of the politics and pressures that contoured (and co-opted) its activities. Parts II and III respectively examine the Göth and Höss cases. These parts set out the two defendants and their crimes, while also raising doctrinal quandaries and contributions. Throughout, references are made to other cases pursued by the Tribunal. Part IV concludes. It does so by returning to several of the elements discussed in part I and by gesturing toward a broader set of epistemological, motivational, and penological questions central to the operation of transitional justice.

Keywords: War crimes, Second World War, International criminal law, Post-conflict justice

JEL Classification: K10, K30, K33

Suggested Citation

Drumbl, Mark, Stepping Beyond Nuremberg's Halo: The Legacy of the Supreme National Tribunal of Poland (March 2, 2015). Washington & Lee Legal Studies Paper No. 2015-25. Available at SSRN: https://ssrn.com/abstract=2572463 or http://dx.doi.org/10.2139/ssrn.2572463

Mark Drumbl (Contact Author)

Washington and Lee University - School of Law ( email )

Sydney Lewis Hall
Lexington, VA 24450
United States
540-458-8531 (Phone)
540-458-8488 (Fax)

HOME PAGE: http://law.wlu.edu/faculty/profiledetail.asp?id=11

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