3
ELIZABETH BORGWARDT
The seven so-called Nuremberg Principles marked an attempt to begin the codification process around issues of individual responsibility, the role of superior orders, and the relationship of domestic to international law in the wake of World War II. These principles also spelled out the so-called Nuremberg offenses of individual responsibility for crimes against peace, war crimes, and crimes against humanity as punishable offenses under international law beyond the context of the war.
The Nuremberg Principles affect how military manuals are drafted to train soldiers; under what circumstances political leaders might be called to account for impunity; and the way we conceptualize international justice, “shrinking alternatives,” in the words of one commentator, to respond to mass atrocities with judicial proceedings. Even more broadly, the Nuremberg Principles reinforce the idea of a direct relationship between violations of human dignity and some set of supranational legal norms, not dependent on the intervening layer of a possibly repressive sovereign state. The “thickening” of such a relationship is a key component of our contemporary conception of international human rights.1
In an American context, the Nuremberg Principles have served as a site of contestation between “inward-facing” and “outward-facing” visions of the U.S. Constitution, according to international legal scholar Noah Feldman’s framing. The Nuremberg Principles—and related UN human rights instruments such as the Universal Declaration of Human Rights (1948) and the Genocide Convention (1948)—arguably lost what this chapter calls the “Bricker Amendment battle” in domestic American politics in the late 1940s and early 1950s, and indeed throughout much of the Cold War era. Yet these same principles, viewed as part of a longer historical trajectory, seem to be winning a larger war over the legitimacy of a more expansive vision of rule of law ideals.2
“It deserves to be studied and weighed by the best legal minds the world over”
A recent book entitled Human Rights at the UN: The Political History of Universal Justice does not mention the Nuremberg Principles, and it only touches on the Nuremberg Trials once in passing. Similarly, historian of modern Europe Tony Judt spends barely two pages each on Nuremberg and human rights respectively in his masterful Postwar—an 878-page book featuring a very textured and nuanced treatment of issues of guilt and responsibility. Former U.S. secretary of state Henry Kissinger—understandably rather less preoccupied by questions of guilt and responsibility—similarly does not mention Nuremberg at all, much less the Nuremberg Principles, in a detailed meditation on geopolitics focusing on the twentieth century.3
Yet, on another level, the Nuremberg Principles are so familiar they are regularly invoked to the point of being taken for granted in legal and even popular cultures, especially in the West (including Latin America). A casual reference to the principles features in a Doonesbury cartoon; Bertrand Russell and Jean-Paul Sartre staged a set of public hearings formally named the “International War Crimes Tribunal,” based on the Nuremberg Principles to discuss U.S. accountability for Vietnam-era atrocities, which continued through a second set of hearings on human rights violations in Brazil, Chile, and Uruguay. After about 1990, the City of Nürnberg itself decided to embrace—and to seek to shape—the idea of a Nuremberg legacy. It recently designated itself a “city of Peace and Human Rights,” even as it placed its famous Courtroom 600 on display as part of a museum exhibition.4
What Nuremberg is “about” now is arguably the norms embodied in the Nuremberg Principles—yet commentators have often noted how these issues were not really the focus of the trials in real time. If we were able to shake Nuremberg Chief Prosecutor Robert H. Jackson awake in the middle of the night and question him about the pith of these proceedings as they were unfolding, our sleepy Supreme Court justice would most likely have murmured, “it’s about aggression—the outlawry of aggressive war.” Nuremberg’s real-time headlines did not lead with crimes against humanity and certainly not with genocide, a locution coined before the trial’s charter was negotiated but not widely absorbed as a mental construct until years later.5 Similarly, while individual responsibility was on one level an organizing concept of the International Military Tribunal (IMT)—why have a trial at all, rather than some more collective form of accountability?—the defendants were also selected for their capacity to serve as exemplars of various “guilty” sectors of German politics and society, such as the army, navy, general staff, media, the professions, and wartime industry.6
Nor were the Nuremberg Principles codified in an international instrument in the way originally envisioned by the UN General Assembly. UN accounts of the genesis of the “Principles” project reprint some 1946 correspondence between the American judge at Nuremberg, former U.S. Attorney General Francis Biddle, and President Harry Truman, where Biddle indicated that “the time has now come to set about drafting a code of international criminal law,” and that part of this proposal should include the United Nations formally “reaffirm[ing] the principles of the Nürnberg Charter in the context of a general codification of offenses against the peace and security of mankind.” Truman replied that “the setting up of such a code” would be “an enormous undertaking, but it deserves to be studied and weighed by the best legal minds the world over,” before confirming that the UN was the appropriate forum and that he approved of the description and scope of the endeavor.7
In 1947 the General Assembly approved a resolution calling for the drafting of a convention “incorporating the principles of international law recognized by the Charter of the Nuremberg Tribunal and sanctioned by the judgment of that tribunal,” looking toward “a detailed draft plan of general codification of offenses against the peace and security of mankind.”8 These projects were housed with a working group called the Committee on the Progressive Development of International Law and its Codification under the auspices of the Sixth Committee of the General Assembly (the Legal Affairs Committee), before that group recommended expanding its membership and mandate more formally, reconstituting itself as the International Law Commission (ILC).9 Manley O. Hudson of Harvard Law School served as chair of the fifteen-member ILC, and the group framed its approach as a “compromise between the codification of international law through official conventions, as had been tried under the auspices of the League of Nations, and codification through the unofficial scientific restatement of positive law,” meaning experts getting together, debating and writing reports, and then agreeing on what they think the state of the law is, an approach that had proved especially popular—and singularly ineffectual—in the interwar era.10
The ILC’s ultimate vision was the elusive goal of “codification,” a process discussed in the Statute of the International Court of Justice under the traditional heading “sources of international law.” International law may be created by a variety of processes, listed in order of perceived legitimacy as explicit agreements among sovereign states—i.e., by means of treaties and conventions—or in several other less favored ways, such as through recognized international custom; or, even more amorphously, the “general principles of law recognized by civilized nations”; and, least favored of all, “the teachings of the most highly qualified publicists of the various nations,” listed explicitly as a “subsidiary means for the determination of rules of law.” In short, the ILC saw itself as synthesizing these generative sources in an ambitious bootstrapping measure, using a group of experts to generate a draft convention (treaty) to which sovereign states would then adhere.11
As with the earlier Nuremberg Trials, the centerpiece of this program was the outlawing of aggressive war, driven by “the conviction crystallized in the minds of thinking people” that “war is a crime against the human race,” along with the perhaps wishful assessment that “the public opinion of the world has been clamoring for the establishment, in one form or another, of an international jurisdiction competent to deal with international crimes.”12 As the politics of the surrounding Cold War context heated up with the advent of the “police action” in Korea, however, the atmosphere surrounding the codification of the Nuremberg Principles cooled off. Ostensibly because they could not agree on a working definition of aggression, the ILC shunted the resulting draft convention aside as “not ripe” for reconsideration until 1980, and the text was not presented for a formal “second reading” by the ILC until 1996.13
It was, of course, nothing new to see powerful countries failing to sign up for binding international provisions to be invoked against themselves—although many did eventually include Nuremberg-related standards in their domestic laws and military manuals.14 As Nuremberg slipped into the past, it quickly came to be reframed as a Cold War set-piece, with one of the most lyrical passages of Robert H. Jackson’s opening statement becoming one of the most derided for hypocrisy: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”15
How can a set of norms fail and succeed at the same time? How can legal ideas be said to have become “constitutionalized”—achieving the status of a body of fundamental principles—when they fall short of the status of ordinary law? More specifically, how did the thirteen trials in the ruins of the medieval city of Nürnberg—which the essayist Rebecca West had dismissed as a “citadel of boredom”—become the Nuremberg of the iconic Spencer Tracy peroration, as somehow emblematic of the “value of a single human being” under the rule of law?16
Cold War Considerations: “To slow the State Department in its mad pursuit for a World Bill of Rights”
As noted, the Nuremberg Principles highlighted the ideas that individuals and states have obligations under international law and that the demands of international law may take precedence over national laws. The Nuremberg Principles also asserted that the Nuremberg crimes had transcended the status of treaty law and had entered the generally applicable realm of laws that are universally valid whether or not a particular state has agreed to them.17
The historian Richard Overy observed that “what is striking about the summer of 1945 is … that so much was achieved in the chaos of post-war Europe in building the foundations for contemporary international law on war crimes, and contemporary conventions on human rights.”18 He goes on to cite the 1998 creation of the International Criminal Court as a “direct descendant of the Nuremberg Military Tribunal,” along with the European Convention on Human Rights, and the Genocide Convention. These treaties, declarations, conventions, and institutions were meant to work together, to “produce” international justice in an almost mechanistic way. Indeed, American internationalists—many of them former New Dealers—would often speak about the workings of the United Nations using mechanical imagery, perhaps as a way of depoliticizing the underlying implications for national sovereignty and emphasizing the role of “experts” in institutional design.19
Early postwar public pronouncements by the U.S. State Department embed the development of what they unblinkingly termed a “world rule of law” ideology in fairly straightforward institutional terms. A State Department pamphlet from 1949 on the UN and international organization states plainly that a major goal of the postwar international order was “the establishment of the method and precedents of a world rule of law in which disputes among nations would be resolved just as most disputes among individuals are resolved today—through recourse to a proper and established court of justice.” After explaining that “the United Nations exists today as a living organization accurately reflecting the aspirations, the difficulties, and the immaturities of our world society,” the pamphlet goes on to assert, just a tad defensively, that “the United Nations is not, and never was intended, to be a super-state. It is not a world government in the sense that the member states have assigned their sovereignty to a central body.”20
But even this carefully hedged language dredged up some venerable American anxieties, complete with rhetoric reminiscent of the interwar era “World Court” battles and even the ratification debates over the League of Nations. A number of activist domestic groups in the U.S.–whom their opponents tended to label “isolationist” but who generally preferred the moniker “nationalist”—came to believe that “America has been caught in a noose which can only be removed by a constitutional amendment.”21 Such an amendment was necessary because “the American people want to make certain that no treaty or executive agreement will be effective to deny or abridge their fundamental rights. Also, they do not want their basic human rights to be supervised or controlled by international agencies over which they have no control.”22
This “noose” was any kind of multilateral treaty such as the Genocide Convention, the UN Human Rights Covenants, or the 1949 revisions to the Geneva Conventions, but also included looser, normative commitments such as the Universal Declaration of Human Rights or, indeed, the Nuremberg Principles themselves.23
One result of this unilateralist agitation was the Bricker Amendment controversy of 1951–53. The text of the proposed amendment underwent various mutations, but the debate centered on the possibility of amending Article 6 of the U.S. Constitution to ensure that no treaty could alter domestic law unless Congress passed supplemental enabling legislation—an extremely cumbersome process—to close what proponents called “a loophole in the Constitution through which our fundamental rights might be lost.”24
John W. Bricker, a Republican senator from Ohio who had served as Thomas E. Dewey’s vice presidential running mate in 1944, launched the campaign for his eponymous amendment by asserting that “my purpose in offering this resolution is to bury the so-called covenant on human rights so deep that no one holding high public office will ever dare to attempt its resurrection.” More informally, he asserted that his proposed amendment would “slow the State Department in its mad pursuit for a World Bill of Rights.”25
Even though the Bricker Amendment ultimately failed, when it was first introduced it had sixty-one co-sponsors, including forty-four of the forty-seven Republicans in the Senate and was only two votes shy of the necessary two-thirds majority. The ferment around this proposed amendment put a tremendous amount of pressure on President Dwight D. Eisenhower—a group called “Vigilant Women for the Bricker Amendment” collected half a million signatures on behalf of the amendment within a few months, for example. In seeking to short-circuit Senate support for the Bricker Amendment, Eisenhower sent Secretary of State John Foster Dulles to assure the Senate Judiciary Committee that an Eisenhower administration would never even submit a number of human-rights-related covenants—notably the Genocide Convention—to the Senate for ratification. Such human rights treaties would “commit one part of the world to impose its particular social and moral standards upon another part of the world community, which has different standards,” as Dulles explained in his testimony, and would represent “a device to circumvent” the provisions of the U.S. Constitution relating to issues that were “essentially matters of domestic concern.”26
International relations scholar Natalie Hevener Kaufman was still able to assert in the 1990s that “during the Bricker Amendment debates, human rights treaties were effectively branded as dangerous to the American way of life and cast into a senatorial limbo from which they have never been released.”27 Such an analysis fits with a traditional “rise and fall” narrative about the U.S. reception of various kinds of multilateral initiatives over the course of the entire postwar era: American multilateralism may have won certain battles—such as the struggle over the Bricker Amendment—but nevertheless lost the wider war. Perhaps the U.S. “unsigning” of the ICC statute under the George W. Bush administration was an emblematic moment, or even more recent expressions of unilateralist anxiety such as the “Bill of Federalism” movement, a set of ten constitutional amendments proposed by Tea Party theorist Randy Barnett.28
A deep fear and mistrust of multilateralist initiatives, particularly those originating in the United Nations, underpinned much of the emotional support that the proposed Bricker Amendment received from American conservatives. Their disillusionment with the UN was embedded in a wider Cold War story taking in the 1949 defeat of Jiang Jieshi (Chiang Kai-shek) and the attendant “loss” of China to communism; the successful Soviet explosion of a nuclear device in September 1950; the conviction of State Department official Alger Hiss for perjury, also in 1950; and fears aroused by North Korean successes in the Korean conflict. The Truman administration’s strategy for garnering Senate approval of the Marshall Plan, initiated in 1947, had also explicitly involved playing up conservatives’ fears of the Soviet threat, as well as further inflaming public anxieties.29
A strong supporter of the Bricker Amendment, Senator Everett M. Dirksen, Republican of Illinois, told the press in 1953: “We are in a new era of international organization. They [the UN] are grinding out treaties like so many eager beavers which have an effect upon the rights of American citizens.” Frank Holman, president of the American Bar Association in 1948, argued:
The Internationalists in this country and elsewhere really proposed to use the United Nations and the treaty process as a lawmaking process to change the domestic laws and even the Government of the United States and to establish a World Government along socialistic lines.30
This fear of putative multilateralist penetration as “socialistic”—either Soviet inspired or perhaps projecting the revolutionary values of what only the year before came to be labeled the Third World—offers the explanatory engine that gives Secretary Dulles’s comments, quoted earlier, their power and traction.31
Another way to tell this same story would be as part of a narrative with a much longer term trajectory in the history of U.S. foreign relations, that is, authority and influence in the realm of diplomacy gravitating toward the executive branch and moving away from the legislative. Eisenhower quickly determined that the Bricker Amendment would have to be either rejected outright or drastically modified, fearing it would “hamstring” the president’s conduct of foreign policy in a nuclear age, remarking at one point that “this whole damn thing is senseless and plain damaging to the prestige of the United States.”32 The president reportedly observed to his press secretary that “if it’s true that when you die the things that bothered you most are engraved on your skull, I am sure I’ll have there the mud and dirt of France…. and the name of Senator Bricker.”33 Another map for the Bricker Amendment controversy is the way a vigilant executive drew lines to stop a perceived encroachment by the legislative branch. Eisenhower was focused on protecting executive prerogatives in the realm of foreign affairs; it was merely an extra irritant that the Bricker initiatives originated in the unilateralist wing of the president’s party.
Yet another domestic dimension to this controversy, ably demonstrated by historians Carol Anderson, Penny von Eschen, and others, is the way the Bricker story may also be framed as a story of domestic racial politics. Amendment supporters argued that ratification of various proposed United Nations’ covenants on human rights, labor, and genocide would force on American society socialized medicine, mandatory unionization, and, especially, racial desegregation and accountability for racialized violence. In ABA President Holman’s memorable formulation:
I pointed out that if, in driving me from the airport, [a white driver] had unfortunately run over a Negro child running out into the street in front of him, what would have been a local offense under a charge of gross negligence or involuntary manslaughter would, under the Genocide Convention, because of the racial differential, not be a local crime but an international crime and that [the driver] could be transported some place overseas for trial where he would not have any of the protections of the Bill of Rights to wit: presumption of innocence, trial by jury, etc.34
While it is hard to know where to begin in debunking the various inaccuracies in the preceding statement, one starting point might be the text of the Genocide Convention, which requires intent to destroy a definable group “as such.”35 The larger point is that from the perspective of these unilateralist critics, international norms and institutions for transnational governance were threatening to intrude into the “domestic” sphere in both traditional senses of that term: domestic as in not international, and domestic as in private realms of conduct that should be insulated from international or other official scrutiny.
In addition to the race-related angle, this dimension of unilateralist outrage had a gendered aspect to it, as well. For example, Senate testimony offered in favor of the Bricker Amendment by W. L. McGrath, president of the Williamson Heater Company of Cincinnati and a representative of the U.S. Chamber of Commerce at the International Labor Organization, noted with alarm how international agencies could use treaties as a device to institute “socialistic legislation” relating to issues such as maternity benefits, benefits for illegitimate children, or even time off for nursing mothers. Describing a debate he had witnessed at the ILO over this latter issue, McGrath reported that “labor and employer delegates from all over the world, debated the question as to whether a woman nursing her baby, on time paid for by the employer, should do so in a single period of one hour per day, or two periods of one-half hour each.”36
Even on paper and at a remove of almost sixty years, we can still hear the disdain in his voice as he sneered, “on this great international point the representatives of the United States Government appeared neutral,” before concluding that the Bricker Amendment was necessary because “nobody could have dreamed that proposed international treaties could ever be devised which would include subject matter such as is now included in the ILO conventions,” provisions which in another publication he termed “socialist gobledegook.”37 Aside from the truly mind-boggling ignorance about infant care exhibited by the underlying debate, the tone in the Senate also tells us something about the anxiety over perceived violations of privatized spaces previously dominated by (male) employers and legislators.
And there is arguably a fourth way to analyze the Bricker Amendment episode, in addition to the Cold War story, the executive authority story, and the race-and-gender stories outlined previously. We might also fold in a narrative about Supreme Court jurisprudence, or more specifically, the congressional response to an era of anxiety over the constitutional role of treaties as analyzed by the U.S. Supreme Court, initiated by the ruling in Missouri v. Holland (1920) and not assuaged until Reid v. Covert (1957). Missouri v. Holland had interpreted Article 6 of the Constitution as upholding the federal government’s ability to regulate certain activities that would otherwise fall within the jurisdiction of the states. The case involved a treaty that the U.S. State Department had negotiated with Great Britain protecting flocks of migratory birds flying south from Canada.38 Expansive language in Justice Holmes’s opinion in Missouri v. Holland struck fear into conservatives of various stripes, not exclusively unilateralists but also those who we would now call strict constructionists.
In explaining why such a treaty necessarily implied the supremacy of the federal government’s ability to make treaties over competing concerns about states’ rights under the Tenth Amendment, Holmes offered his famous statement about a “living Constitution”:
[W]hen we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.39
Even now, it is hard to imagine a more succinct statement of how norms might over time become “constitutionalized.” Contemporaneous critics were also alert to these implications. While one Bricker Amendment supporter complained that the Holmes opinion left the Tenth Amendment “dead as a dodo,” Bricker explained that the “major problem is not how to protect States’ Rights as such, but how to protect all purely domestic matters, Federal and State, from the consuming ambition of the United Nations and its specialized agencies to regulate those matters by treaty.”40
The 1957 Supreme Court holding in Reid v. Covert quieted some of these concerns. There the Court held that agreements with foreign powers could not abrogate the Bill of Rights, and that “no agreement with a foreign nation can confer power on the Congress, or on any other branch of government, which is free from the restraints of the Constitution,” in Justice Black’s plurality opinion. In Reid, the decision reversed the conviction of an American civilian on an overseas military base who had been convicted by a military tribunal of murdering her husband, a member of the U.S. armed forces. A treaty or an executive agreement could not deprive Covert of her right to a jury trial.
The Court’s decision in Reid undercut the Bricker position that a constitutional amendment was necessary to protect the Constitution from being gutted by executive agreements and treaties—quite intentionally, according to some correspondence between Justices Black and Felix Frankfurter.41
This last retelling offers an important corrective to persistent attempts to separate Supreme Court jurisprudence from an artificially delineated realm of “politics.” At a minimum, these four different narrative strands of the Bricker story all support the assertion that domestic politics was the key determinant whether multilateralist initiatives stood or fell in this initial postwar phase of U.S. history, with the further refinement that the viability of postwar human-rights-related proposals was inversely correlated with the virulence of domestic Cold War preoccupations. Such a framing also offers a twist on some political science literature highlighting the tendency of liberal states to seek to project their own domestic legal norms and to take in circumstances when international legal norms and ideals are able to percolate into domestic political debates, along with the backlash such perceived threats then generate.
“Constitutionalizing” Human Rights Ideas
“The relationship between the Nuremberg process and modern war crimes tribunals is not a one-way street,” in the assessment of defense attorney Guénaël Mettraux of the International Criminal Tribunal for the former Yugoslavia. This added dimension of change over time is where the “rise and rise” dimension comes in most clearly—Mettraux elaborates on how “the Nuremberg Trial has itself grown in stature and significance, both historically and legally, with the advent of its modern successors.”42 So too with the resulting Nuremberg Principles: what was, in many ways, perceived as a dubious and controversial set of innovations has become, over the ensuing decades, a touchstone in the development of human rights ideas and institutions. This assessment offers a kind of international version of Barry Friedman’s recent analysis about how the meaning of the U.S. Constitution evolves as part of a “dialogue” with American public opinion that is processed through another conclave of elites, the U.S. Supreme Court.43
Human rights norms are becoming constitutionalized because they percolate through specific institutions in concrete, operational ways, such as the way the Nuremberg Principles are being “adopted in the constitutive documents of all modern international criminal tribunals,” as Mettraux elaborates. Such institutions have “generative power,” in Cardozo’s language, in the most basic sense of constituting something new.44 This includes expressions at regional levels; for example, the European Union has developed a treaty regime at its core that trumps later laws deemed to be inconsistent, even when duly enacted by member states.45
This “institutionalizing” level also includes incorporation into domestic law. Democratic theorist Seyla Benhabib calls these domestic processes “jurisgenerative politics,” where the transparency of democratic states allows citizens to become increasingly convinced of the independent validity of human-rights-related norms.46 One example is that the criteria related to medical experimentation stemming from one of the twelve subsequent Nuremberg Trials (the “Doctors’ Trial”) became codified internationally and then adopted nationally, in a variety of environments, as the Nuremberg Code, both in domestic legislation and as part of the Code of Research Ethics of the American Medical Association.47 Again, the key distinction is not so much domestic versus international, or written versus unwritten, as it is institutionalized versus aspirational, or in the terms of some strands of social theory, “thick” versus “thin.”48
This “thickening” process can accommodate, but goes beyond, models of the migration of human rights norms outward from the center to the periphery and is best analyzed in the burgeoning scholarship on the growth of the European Union. Comparative constitutionalist Vicki C. Jackson discusses how states such as New Zealand and the United Kingdom are incorporating “legal norms drawn from transnational or international sources” by means of statutes, due to systemic changes in what she calls “the global sociology of law.”49
The charters of the international institutions of the 1940s, notably Nuremberg but also the United Nations and Bretton Woods charters, did indeed serve to thicken international politics somewhat, in the sense of jumping ideas about international justice across a realm of thin precepts to one of thicker rules, in part by injecting a strengthened sense of community standards and even a mild enforceability into the international realm. Not that an international community was constituted that is somehow like a national community writ large; the idea is much more diluted. The afterlife of the Nuremberg idea and the subsequent career of the Nuremberg Principles is nevertheless emblematic of what international relations specialist Andrew Hurrell calls “the greatly increased normative ambition of international society” in the postwar era.50
The Nuremberg moment was a turning point in what Hurrell calls “the marked, and normatively highly significant, shift towards individual criminal responsibility for grave human rights violations.” Institutionally, the clearest offspring of the Nuremberg-related lineage are the various ad hoc international courts and tribunals, most notably the tribunals established for the former Yugoslavia (ICTY) and Rwanda (ICTR) and the creation of the International Criminal Court; but also in the increased number of domestic trials, such as trials in Spain for human rights abuses in Latin America. This lineage also arguably includes processes that do not involve assigning individual criminal responsibility but nevertheless address issues of accountability, transparency, and due process that are clearly recognizable as Nuremberg inspired.51
These various multilateral instruments were also “words that are also a constituent act,” in the terms of the Holmes quotation from Missouri v. Holland. Moreover, the developing legitimacy of these norms—what legal theorist Gerald Neuman calls their “suprapositive status”—seems to be consolidating over time, even as the so-called international bill of rights remains emphatically unincorporated.52 Despite the pronounced lack of enthusiasm in official U.S. circles, we do indeed seem to be moving from amorphous human rights norms about dignity toward a more concrete corpus of human rights law about accountability, in a perhaps unexpected challenge to received ideas about American exceptionalism.
NOTES
The author thanks Akira Iriye, William Hitchcock, Petra Goedde, and Susan Ferber for their patience, tact, and guidance. Thanks also to the Legal History Colloquium at Harvard Law School; the workshop on “Transatlanticism: The Impact of Lawmakers and Judges” at the Heidelberg Center for American Studies; the conference on “Decline of the West? The Fate of the Atlantic Community after the Cold War” at the University of Pennsylvania; the Mershon Center for International Security at Ohio State University; co-panelists from a panel on “Sovereignty and Citizenship at War” at the 2009 meeting of the American Historical Association; and co-panelists on a roundtable on “Historical Attitudes of the United States Toward International Law” at the American Branch of the International Law Association. Special thanks to Manfred Berg, John Harlan Cohen, Andrea Friedman, Philipp Gassert, Peter Hahn, Robert McMahon, Jed Shugerman, Jim Sparrow, and Kara Swanson for invitations to speak; Daniel Cohen, Michael Geyer, Daniel Hamilton, the late Tony Judt, Linda Kerber, Samuel Moyn, Gerald Neuman, Harry Scheiber, Jonathan Simon, David Tanenhaus, Lori Watt, and Lora Wildenthal for various opportunities to present new work or helpful comments on the broader project from which I draw this material.
1. Guénaël Mettraux, “Judicial Inheritance: The Value and Significance of the Nuremberg Trial to Contemporary War Crimes Tribunals,” in Perspectives on the Nuremberg Trial, ed. Mettraux (Oxford: Oxford University Press, 2008), 599–614, at 603; see generally, Norbert Ehrenfreund, The Nuremberg Legacy: How the Nazi War Crimes Trials Changed the Course of History (New York: Palgrave Macmillan, 2007). Ehrenfreund points out, importantly, that when the “legacies of Nuremberg” are broadened to include the twelve subsequent Nuremberg Trials, additional legacies include an influential medical code of conduct and the groundwork for current human-rights-related responsibilities of large corporations.
2. Noah Feldman, “When Judges Make Foreign Policy,” New York Times Sunday Magazine, September 28, 2008, 50–57; 66–70; UN General Assembly, Universal Declaration of Human Rights, UN GA Res. 217A(3), A/810, 71, adopted December 10, 1948; UN General Assembly, Third Session Part 1, Official Records, Convention on the Prevention and Punishment of the Crime of Genocide, UN GA Resolution 260A(III), A/810, 1948, entered into force January 12, 1951; ratified by the U.S. Senate February 19, 1986, and entered into force for the United States February 23, 1989.
3. Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of Universal Justice (Bloomington: Indiana University Press, 2008); Tony Judt, Postwar: A History of Europe since 1945 (New York: Penguin Press, 2005); Henry Kissinger, Diplomacy (New York: Simon & Schuster, 1995).
4. Gary Trudeau’s Doonesbury, August 16, 2008. I thank Kara Swenson of Harvard Law School for calling the Doonesbury strip to my attention, at http://www.gocomics.com/doonesbury (accessed February 14, 2010); John Duffet, ed., Against the Crime of Silence: The Proceedings of the Russell Tribunal (New York: Russell Peace Foundation, 1968); “Memorium Nürnberger Prozesse: Projekt zür Schaffung einer Erinnerungsstätte im Justizgebäude Nürnberg,” Museen der Stadt Nürnberg, May 29, 2008.
5. Commentators who should know better sometimes assert that the term genocide was not mentioned at Nuremberg, despite the efforts of Polish jurist and coiner of the neologism Raphael Lemkin as a sometime consultant at the IMT. The term genocide did not feature in the trial’s charter, as noted, but it was mentioned in the IMT’s rambling sixty-seven-page indictment, which sought to apply the various “counts” in the charter to each individual defendant. The point is not so much to gainsay the not quite accurate assessment that genocide went unmentioned at Nuremberg, but rather to highlight that even though the concept was at least preliminarily in place and even deployed in 1945, it was not “processed” on a meaningful level until well after the flagship trial was over. Indictment in International Military Tribunal, Trial of the Major War Criminals, Official Text, 42 vols. (Nuremberg: Secretariat of the International Military Tribunal under the jurisdiction of the Allied Control Authority for Germany, 1947) (IMT) 1, 27–92. See generally, “The Challenge of the Unprecedented—Raphael Lemkin and the Concept of Genocide,” Jahrbuch des Simon-Dubnow Instituts 4 (2005): 397–42.
6. The twelve subsequent trials run by the Americans from 1946–49, indicting an additional 185 defendants arranged by thematic groups (industrialists, doctors, judges, etc.), served as a kind of mop-up operation on this score. American prosecutors were particularly frustrated by their inability to prosecute a representative of the Krupp concern as part of the main trial, due to their having erroneously indicted the ailing Krupp patriarch, rather than the son. Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council No.10 (Washington, DC: GPO, August 15, 1949). On the Krupp debacle, see Airey Neave, “Memorandum for the General Secretary of the International Military Tribunal,” October 24, 1945, PRO, United Kingdom National Archives, LCO 2 2982 x/LO6978.
7. Correspondence quoted in UN, report by Jean Spiropolous, Special Rapporteur, A/CN.4/25, April 26, 1950, 255–56.
8. UN General Assembly, Official Records, 177 (II) November 21, 1947; A/CN.4/3; ILC 129–30.
9. The memorandum arguing most forcefully for this expansion was by committee member Donnedieu de Vabres, who had also served as France’s representative on the Nuremberg Tribunal.
10. UN, International Law Commission, “Summary Records of the First Session, Opening Remarks by Mr. Kerno, Assistant Secretary-General in Charge of Legal Affairs, April 12, 1949,” Yearbook of the International Law Commission 1949, 9; pre-1945 examples of such expert conclaves and the dates of some of their statements regarding international criminal jurisdiction include the Advisory Committee of Jurists (1920), the International Law Association (1922), the Inter-Parliamentary Union (1925), the International Association of Penal Law (1926), the committee of experts contributing to the Geneva Conventions for the Prevention and Punishment of Terrorism and for the Creation of an International Criminal Court (1937), the London International Assembly (1941), the International Commission for Penal Reconstruction and Development (1942), and of course, the United Nations War Crimes Commission (1943).
11. Article 38(1), Statute of the International Court of Justice, annexed to the United Nations Charter of June 26, 1945.
12. UN General Assembly, “Question of International Criminal Jurisdiction,” report by Ricardo J. Alfaro, A/CN.4/15, March 3, 1950, 2, 15. For a recent analysis on how American public opinion in particular was actually much more internationalist in the interwar era than widely believed, see Trygve Throntveit, “Related States: Pragmatism, Progressivism, and Internationalism in American Thought and Politics” (PhD diss., Harvard University, 2008).
13. The draft convention is widely held to have influenced the 1998 Rome Statute of the International Criminal Court. Kai Ambos, “General Principles of International Law in the Rome Statute,” Criminal Law Forum 10, no. 1 (March 1999): 1–32; Rosemary Rayfuse, “The Draft Code of Crimes against the Peace and Security of Mankind: Eating Disorders at the International Law Commission,” Criminal Law Forum 8, no. 1 (February 1997): 43–87.
14. On Nuremberg standards in domestic laws, see, for example, Canadian Criminal Code sec. 6.1.91; Michele Jacquart, “La notion de crime contre l’Humanité en droit international contemporain et en droit canadien,” 21 Revue Générale de Droit (1990): 607; for Britain, see Report of the War Crimes Inquiry, Cmnd. 744 (1989), which served as the basis for the House of Commons War Crimes Bill of May 2, 1991. See also the Australian War Crimes Amendment Act 1988, assented to January 25, 1989 (amending the War Crimes Act of 1945).
15. Opening Statement of U.S. Chief Prosecutor Robert H. Jackson, November 21, 1945, IMT 5:371ff; video available on YouTube at www.youtube.com/watch?v=L50OZSeA (accessed February 14, 2010). On the Cold War dimensions of the main trial, see Francine Hirsch, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” American Historical Review 113, no. 3 (June 2008): 701–30.
16. See Gerald Stourzh, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century,” in Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988) and reprinted in From Vienna to Chicago and Back: Essays on Intellectual and Political Thought in Europe and America (Chicago: University of Chicago Press, 2008), 96–97; Rebecca West, articles from The New Yorker reprinted in A Train of Powder (London: Macmillan, 1955), 13–14. For the speech voiced by Spencer Tracy on the meaning of the Nuremberg Trials, see the film Judgment at Nuremberg produced and directed by Stanley Kramer, written by Abby Mann (United Artists, December 1961).
17. UN, International Law Commission, Nuremberg Principles, A/CN.4/Ser. A/1950/Add.1, Yearbook of the International Law Commission 1951, vol. 2; UN, “Formulation of the Nuremberg Principles,” report by Jean Siropoulos, A/CN.4/22, April 12, 1950.
18. Richard Overy, “The Nuremberg Trials: International Law in the Making,” in From Nuremberg to the Hague: The Future of International Criminal Justice, ed. Geoffrey Wawro and Philippe Sands (Cambridge: Cambridge University Press, 2003). For the opposite perspective, see Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA: Harvard University Press, 2010).
19. Overy, “Nuremberg Trials” in From Nuremberg to the Hague, Wawro and Sands; Convention for the Protection of Human Rights and Fundamental Freedoms, initially 1950, as amended and with additional protocols, available online from the Human Rights Education Association at http://www.hrea.org/erc/Library/hrdocs/coe/echr.html (accessed February 14, 2010); UN GA, Convention on the Prevention and Punishment of the Crime of Genocide.
20. U.S. Department of State, The United Nations: Four Years of Achievement, Department of State Publication 3624, International Organization and Conference Series III, 36 (Washington, DC: GPO, September 1949), 13; 1–2.
21. Frank E. Holman, speech to the Tacoma Council of World Affairs, 1951.
22. Ibid. See also Senate Subcommittee on the Judiciary, Treaties and Executive Agreements 1953, 11; see generally Natalie Hevener Kaufman, Human Rights Treaties and the Senate: A History of Opposition (Chapel Hill: University of North Carolina Press, 1990); Duane Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (Ithaca, NY: Cornell University Press, 1988); Frank E. Holman, Story of the “Bricker” Amendment (New York: Committee for Constitutional Government, Inc., 1954).
23. The United States did not ratify the International Covenant on Civil and Political Rights until 1992; it has never ratified the International Covenant on Economic, Social, and Cultural Rights. While the United States ratified the1949 revisions to the Geneva Conventions in 1955, it did not adopt conforming legislation until 1996, and as noted earlier, did not ratify the Genocide Convention until 1988. See University of Minnesota Human Rights Library, Ratification of International Human Rights Treaties, http://www1.umn.edu/humanrts/research/ratification-USA.html (accessed January 15, 2011); 18 U.S.C. 2441.
24. For an excellent account of the Bricker Amendment battle as a defensive scenario of “performative sovereignty,” see Mark Bradley, “The Ambiguities of Sovereignty: The United States and the Global Rights Cases of the 1940s,” in Art of the State: Sovereignty Past & Present, ed. Douglas Howland and Luise White (Bloomington: Indiana University Press, 2008); see also Richard O. Davies, Defender of the Old Guard: John Bricker and American Politics (Columbus: Ohio State University Press, 1993); text of the proposed amendment in Cong. Rec., 83rd Cong., 1st sess. (1953), 99, pt. 1:160.
25. S. Res. 177, 82nd Cong., 1st sess. (July 17, 1951); 97 Cong. Rec. 8254, 8263; Bricker to Holman, July 23, 1951, as quoted in Tananbaum, The Bricker Amendment Controversy, 35; see also the New York Times, July 18, 1951, 5.
26. Department of State, Bulletin, 28, no.721 (April 20, 1953), 591. See also L. H. Woolsey, “Editorial Comment: The New Policy Regarding United Nations Treaties,” American Journal of International Law 47 no. 3 (July 1953): 449–51; Louis Henkin, “U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker,” American Journal of International Law 89 no. 2 (April 1995): 341–50.
27. Kaufman, Human Rights Treaties, 94; see also Justus D. Doenecke, Not to the Swift: The Old Isolationists in the Cold War Era (Lewisburg: Bucknell University Press, 1979), 236–38.
28. Edward T. Swaine, “Unsigning,” Symposium on Treaties, Enforcement, and U.S. Sovereignty, Stanford Law Review (May 2003); Randy E. Barnett, “The Case for a Federalism Amendment,” The Wall Street Journal, April 24, 2009, A17. Note that Amendment IV of the proposed bill echoes the Bricker Amendment; see “Bill of Federalism Project—About Us” at http://www.federalismamendment.com/about.html (accessed January 15, 2011).
29. Richard Treeland, The Truman Doctrine and the Origins of McCarthyism (New York: Alfred A. Knopf, 1972), 11.
30. Davies, Defender of the Old Guard, 154; Holman, Story of the Bricker Amendment, 22.
31. See the text accompanying note 27 for Dulles remarks; “Tiers monde” as a locution is generally attributed to the French demographer Alfred Sauvy, in “Trois Mondes, Une Planète,” l’Observateur no. 118 (August 14, 1952): 14.
32. Davies, Defender of the Old Guard, 155.
33. Diary of Eisenhower Press Secretary James Hagerty as quoted in Tananbaum, The Bricker Amendment Controversy, 151.
34. Anderson, Eyes Off the Prize; Penny Von Eschen, Race against Empire: Black Americans and Anticolonialism, 1937–1957 (Ithaca, NY: Cornell University Press, 1997); Frank E. Holman, The Life and Career of a Western Lawyer, 1886–1961 (Baltimore, MD: Port City Press, 1963), 570.
35. See Convention on the Prevention and Punishment of the Crime of Genocide cited in note 2, especially the provisions in articles 2, 5, and 6 specifying that intent to destroy a group is necessary; that killings and persecutions must be deliberate; that contracting parties should in the first instance enact necessary legislation and that parties must have accepted the jurisdiction of any relevant penal tribunal; see generally William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge: Cambridge University Press, 2000).
36. 1953 hearings as quoted in Tananbaum, The Bricker Amendment Controversy, 84–85.
37. Ibid. W. L. McGrath, “What Should We Do About the ILO?” The Freeman: A Fortnightly for Individualists 3, no. 8 (June 1, 1953): 627–28, 628. I thank Linda Kerber for encouraging me to search for a gender-related angle on this material.
38. State of Missouri v. Holland, United States Game Warden, 252 U.S. 416, 40 S.Ct. 382 (1920), interpreting the Migratory Bird Treaty Act of 1918. Diplomats from the British Foreign Office still tended to handle many dimensions of Canada’s foreign relations in this era.
39. Ibid., 433.
40. 252 U.S, 433; Carl Rix to Zechariah Chafee, Jr., June 2, 1952, Chafee papers (microfilm), Reel 9, Harvard Law School; John Bricker, “The Fight for a Treaty-Control Amendment: Round One,” address by Senator Bricker before the Western Regional Conference of the American Bar Association, Bricker papers, Box 110, Ohio Historical Society.
41. Reid, Superintendent, District of Columbia Jail v. Clarice Covert, 354 U.S. 1, 77 S.Ct. 1222 (1957); Editorial, “Trial of Civilians Abroad,” Washington Post, June 12, 1957, A14; Memorandum, Felix Frankfurter for the Conference re: Nos 701 and 713, official transcript, 1955, June 5, 1957, Box 326, Hugo Black Papers, LOC. Yet another nail in the coffin of the Bricker rationale is offered by José Ernesto Medellín v. Texas, 552 U.S. 491 (2008), 128 S.Ct. 1346 where a Roberts opinion indicated that a treaty or a judgment of the International Court of Justice was not binding on the United States unless Congress has enacted statutes implementing it, or the treaty is specifically designed to be self-executing.
42. Mettraux, “Judicial Inheritance,” 612.
43. Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus & Giroux, 2009).
44. Ibid., 609, Cardozo quoted in ibid., 610; see also Gennady M. Danilenko, “The Changing Structure of the International Community: Constitutional Implications,” Harvard International Law Journal 32, no. 2 (Spring 1991): 353–61.
45. See, for example, Neil Walker, “Reframing EU Constitutionalism,” in Ruling the World? Constitutionalism, International Law, and Global Governance, ed. Jeffrey L. Dunoff and Joel P. Trachtman (Cambridge: Cambridge University Press, 209), 149–77; Joseph H. H. Weiler and Marlene Wind, eds., European Constitutionalism Beyond the State (Cambridge: Cambridge University Press, 2003).
46. Benhabib takes the term “jurisgenerative politics” from legal theorist Robert Cover but develops it further. Seyla Benhabib, Another Cosmopolitanism: The Berkeley Tanner Lectures (New York: Oxford University Press, 2006), 4.
47. United States of America v. Karl Brandt, et al., Trials of War Criminals before the Nuremberg Military Tribunals, November 21, 1946–August 20, 1947 (Washington DC:GPO, 1974); the ten principles of the Nuremberg Code—a code of medical ethics not to be confused with the broader Nuremberg Principles—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. See “The Nuremberg Code,” Journal of the American Medical Association 276, no. 20 (November 27, 1996): 691.
48. In the context of ethics and politics, the locution “thick and thin” is identified most recently with the thought of Michael Walzer, but is also well developed in the scholarship of Avishai Margalit, Jürgen Habermas, and, arguably, Hegel (especially his division between “ethics” and “morality”). See, for example, Michael Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 2004); Kenneth Cmiel, “Review Essay: The Recent History of Human Rights,” American Historical Review 109, no. 1 (February 2004): 117–35, n.26 (reprinted in this volume); Richard Mullender, “Hegel, Human Rights, and Particularism,” Journal of Law & Society 30, no. 4 (December 2003): 554–74; Avishai Margalit, The Ethics of Memory (Cambridge, MA: Harvard University Press, 2002), 7–9.
49. Vicki Jackson, Constitutional Engagement in a Transnational Era (New York: Oxford University Press, 2010), 2; see also Melissa Waters, “Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law,” Georgetown Law Journal 93 (2005).
50. Andrew Hurrell, On Global Order: Power, Values, and the Constitution of International Society (Oxford: Oxford University Press, 2008), 143. See also Gennady M. Danilenko, “International Jus Cogens: Issues of Law-Making,” European Journal of International Law 2, no. 1 (1991): 42–65.
51. Hurrell, On Global Order, 146. See, for example, Bruce Broomhall, International Justice and the International Criminal Court (Oxford: Oxford University Press, 2003); Ellen Luz and Kathryn Sikkink, “The Justice Cascade: The Evolution and Impact of Human Rights Trials in Latin America,” Chicago Journal of International Law 2, no. 1 (2001): 1–34, as well as the examples in Gerald L. Neuman, “Human Rights and Constitutional Rights: Harmony and Dissonance,” Stanford Law Review 55 (2002): 1863–1900. On truth commissions and other nonjudicial processes see, for example, the essays in Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton, NJ: Princeton University Press, 2000), especially the essays by Sanford Levinson, “Trials, Commissions, and Investigating Committees: The Elusive Search for Norms of Due Process,” 211–34; and Martha Minow, “The Hope for Healing: What Can Truth Commissions Do?” 235–60.
52. On the “suprapositive” content of human rights law, see Neuman, “Human Rights and Constitutional Rights,” 1866–67. On consolidation over time, see, for example, Dieter Grimm, “The Constitution in the Process of Denationalization,” Constellations 12, no.4 (2005): 447–63, and the syllabus designed by Michael Geyer and James Sparrow on “The History and Theory of Human Rights,” Department of History, University of Chicago, especially the unit “Can Global Society be Constitutionalized?” available online at http://humanrights.uchicago.edu/curriculum.shtml (accessed January 15, 2011). On the so-called international bill of rights, the UN’s Universal Declaration was the first of three human-rights-related instruments that when bundled together are sometimes referenced as an international bill of rights. See Stephen Gardbaum, “Human Rights as International Constitutional Rights,” European Journal of International Law 19, no.4 (2008).