Transitional Justice: Postwar Legacies (Symposium: The Nuremberg Trials: A Reappraisal and Their Legacy)

Abstract

In the public imagination, transitions to liberal rule are commonly linked with punishment and the trials of ancient regimes. Thus, the trials of Kings Charles I and Louis XVI constitute enduring symbols of the English and French Revolutions, which both led to transformation from monarchic to republican rule. Similarly, more than sixty years ago, the Nuremberg trials were convened to bring to justice the masterminds of World War Il's terror, and to lay the foundation for a democratic Germany.

Even as the international community commemorates the anniversary of these trials, it is also in the midst of multiple efforts at international criminal justice. At the present moment, there are an unprecedented number of indicted political leaders in the dock, or, the shadow of its threat: Slobodan Milosevic, Saddam Hussein, Augusto Pinochet, Charles Taylor, Alberto Fujimori. Moreover, there are war crimes tribunals to prosecute violations of humanitarian law in former Yugoslavia, the attempted genocide in Rwanda, a hybrid court in Sierra Leone, as well the newly established standing International Criminal Court (ICC). These new tribunals re-raise the question of the ongoing legacy of the Nuremberg tribunal, and of how it informed the aims and forms of transitional and post-conflict justice.

Nuremberg established the principle of individual criminal accountability for human rights violations perpetrated against civilians in wartime: that certain crimes are so heinous that they violate the "law of nations" and may be prosecuted anywhere. The twentieth century has witnessed the commission of terrible atrocities: Turkey's massacre of the Armenians; Bangladesh; the Pol Pot regime in Cambodia; Iraq's brutal campaign against its Kurds; the more recent Hutu-Tutsi massacres in Rwanda; and the crimes of war-torn Yugoslavia. Yet, until recently, half a century after Nuremberg, there were few attempts to enforce international accountability. The twentieth century's record was largely one of state persecution and impunity, keeping alive the question of what is the meaning of rule of law when states turn on their citizens.

There is, therefore, a puzzling dimension to our understanding of Nuremberg's significance. Intended as a precedent for the future, the trials were aimed at teaching individual responsibility for crimes of aggressive war and crimes against humanity, so as to deter their re- occurrence. Nevertheless, it would be a full half-century before another international tribunal would be convened to bring a regime to justice for human rights abuses in times of conflict. Yet, despite the general record of failure of criminal accountability, and the Nuremberg Tribunal's anomalous nature, the Tribunal's impact transcends its circumstances to contribute a guiding force for a war-driven century.

The precedential ramifications extend well beyond the parameters of the postwar consensus to the prevailing international legal system. There continues to be a gap between international law's development of international humanitarian crimes and its enforcement. Yet, despite its extraordinary nature, the virtue of the international legal scheme is that it contributes a normative vocabulary that somehow mediates many of the dilemmas of transitional justice. The central dilemma intrinsic to transition is how to move from illiberal, often persecutory rule, and to what extent this shift is guided by conventional notions of the rule of law and principles of individual responsibility associated with established democracies. The exercise of criminal justice is thought to best undo past state injustice, and to advance the normative transformation of these times to a rule of law system. Repressive regimes are often characterized by criminal behavior-such as torture, arbitrary detention, disappearance, extrajudicial executions-that is substantially state sponsored. Even when past wrongdoing is perpetrated by private actors, the state is often nevertheless implicated, whether in policies of persecution, by acts of omission in failing to protect its citizens, or, finally, in the cover-up of criminal acts and impunity. While the circumstances of transition, that often imply the prior involvement of the state in criminal wrongdoing, make a compelling argument for punishment over impunity, the very transitional circumstances of the predecessor regime's implication in wrongdoing raise significant dilemmas that go to the purposes of the criminal law to advance the rule of law.

A core tension that emerges here goes to the potential use of law to advance transformation, rather than to adhere to conventional legality. To what extent is transitional criminal justice conceptualized and adjudicated as extraordinary in the relevant societies or guided by the ordinary rule of law of established democracies? This core dilemma implies many others. Where retributive justice is sought, what principles should guide the punishment policy? These are the dilemmas over which successor societies commonly struggle. Ultimately, confronted with these dilemmas, a transitional compromise is struck leading to the "limited criminal sanction," which, over time, frequently implied foregoing criminal justice, culminating in a symbolic form of punishment.

The gap between the international law apparatus for thinking about justice and its mechanisms for enforcement remains a yawning chasm. Nevertheless, despite its extraordinary nature, international law contributes a normative vocabulary that mediates many of the dilemmas of transitional justice. For this reason, more than a half century later, it is Nuremberg's legacy that continues to guide our thinking about transitional and post-conflict justice.

Keywords: international law, international human rights, transitional justice