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Response to Marrus, Stiller and Cryer

Published on November 4, 2011        Author: 

I am indebted to Professors Marrus, Stiller, and Cryer for their responses to my book – their criticism as well as their praise.  (Though I confess to considerable relief that the praise seems to outweigh the criticism.)   Writing this reply is no easy task, not least because I find myself in agreement with much of what all three professors have to say.  But I’ll respond as best I can below.

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The Nuremberg Military Tribunals, Naturalism, Authority, and Causation

Published on November 3, 2011        Author: 

Robert Cryer is Professor of International and Criminal Law at the University of Birmingham Law School.

Let me say at the outset that I think that Kevin has done an excellent job on the book (as have OUP in its production). I should probably also say, in the interests of full disclosure, that I flatter to call myself a friend of Kevin’s and have enjoyed the discussions we have had over aspects of the book during its gestation. The book is exceptionally well researched and written, and fills a significant lacuna in the literature. It has a strong narrative flow, and skilfully entwines the historic and legal aspects of the cases. There are many rich seams to mine in the book, but I will limit myself to one, and one of the rare instances where I disagree with Kevin, at least a little. This is the issue of the legacy of the Tribunals.

We used to hear quite a lot about the Nuremberg legacy; often in terms that bemoaned its betrayal. The International Criminal Tribunals for Yugoslavia and Rwanda, and the Special Court for Sierra Leone are now all self-consciously attempting to shape their respective legacies. Sadly, it is not clear to me that, in spite of Telford Taylor’s hopes and desires, the Nuremberg Military Tribunals had much of a legacy. In contrast, in the book, Kevin is relatively upbeat about aspects of their legacy (although other aspects are characterised, rightly, as “a complete failure” (p.400)).

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Discussing Heller’s The Nuremberg Military Tribunals and the Origins of the International Criminal Law

Published on November 2, 2011        Author: 

Alexa Stiller is a Lecturer in the Department of History, University of Bern, Switzerland; e-mail: alexa.stiller [at] hist.unibe.ch

Kevin Heller has written a very important book that provides the first comprehensive legal analysis of the Nuremberg Military Tribunals (NMTs). His main argument is that the twelve trials are of paramount historical importance, not only because they created a huge amount of documentary evidence of the crimes of the Third Reich but first and foremost because the tribunals played an important role in the development of international criminal law (and to make this clear from the outset, I absolutely agree with his assumption).

Heller’s book is divided in five sections, each consisting of three chapters. Sections one and five, the origins of the NMT trials and the aftermath as well as their legacy, are the historical parts of the book, the middle sections are dedicated to a legal discussion of the Tribunals, the law and procedure, the jurisprudence, and the modes of participation and defenses that the Tribunals approved. Although Heller has written an essentially juristic book, he has no blinders on concerning historical methods. He tries to connect both disciplines and I highly appreciate the effort. In this comment I would like to show two aspects – strictly from the viewpoint of a historian – where his analysis does not make full use of the potential for differentiation. First, in examining the people who played an active role in the trials; secondly, in analyzing the interpretations and narratives in the courtroom. (This and the following reflections are presented in more detail in my co-edited volume Unearthing the Subsequent Nuremberg Trials. Transitional Justice, Trial Narratives, and Historiography. Oxford/New York: Berghahn 2012 (forthcoming)).

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A Comment on Kevin Heller’s Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on November 1, 2011        Author: 

Michael R. Marrus is Chancellor Rose and Ray Wolfe Professor Emeritus of Holocaust Studies and Adjunct Professor of Law at the University of Toronto, and the author of The Nuremberg War Crimes Trial l945-46: A Documentary History (Bedford Books).  His most recent book is Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Wisconsin).

Hats off to Kevin Jon Heller, not only for a splendid and comprehensively learned survey of these important trials, but also, and at long last, for putting the Nuremberg Subsequent Proceedings (as I still prefer to call them) properly on the legal and historical map.   As Heller acknowledges, the sad truth is that these twelve trials of 177 accused German war criminals – held under American auspices and in the American zone of occupation of Germany between 1946 and 1949 – have been relatively little studied; particularly when compared to the much more famous trial before the International Military Tribunal (IMT), familiarly known as the Nuremberg Trial.   Just a week ago I read an judicious book by a learned jurist who erroneously (as indeed with many of my students, not to mention distinguished historians, lawyers, judges, journalists and statesmen) referred to the Nuremberg Trials, in the plural, while intending to denote the proceedings before the IMT.  Egregiously, this error was once committed by none other than Brigadier General Telford Taylor himself, the man in charge of the Nuremberg Subsequent Proceedings, who entitled his book on the IMT The Anatomy of the Nuremberg Trials (sic), a work that has scarcely a word about the Nuremberg Military Trials.  Over and over again, colleagues will acknowledge, this mistake reappears – reminding us that the “Nuernberg Military Tribunals, Trials, War Criminals before the Nuremberg before the Nuremberg Military Tribunals under Control Council Law No. 10” (to cite the official reference to the so-called ‘Green Series,’ those trials’ proceedings, bound in green) or the “Subsequent Nuremberg Proceedings” or the “Nuremberg Subsequent Proceedings” have persistently failed to find a commensurate place in the scholarly discourse – or the discourse on justice-seeking following the end of the Second World War, or even, for that matter, the general discourse on international criminal law.  I cannot say that no one will commit this error after this important book appears; but Heller’s work will surely lend conspicuous authority to the requirement that the IMT be distinguished from the Nuremberg Trials!

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The Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on October 31, 2011        Author: 

I am deeply grateful to both my co-bloggers at Opinio Juris and the editors of EJIL: Talk! – particularly my friends Marko Milanovic and Dapo Akande – for this remarkable opportunity to discuss my new book.  I look forward to hearing what the impressive, and frankly intimidating, group of commenters have to say about it.

I wrote this book for one simple reason: I wanted to read it.  I first became interested in the Nuremberg Military Tribunals (NMTs) in the context of aggression.  Roger Clark, who was at that time deeply involved in the ICC’s Special Working Group on the Crime of Aggression (SWG), asked me to prepare a report on the Nuremberg-era approach to the crime’s leadership requirement, which was then being debated by the SWG.  (The report eventually became this article in the European Journal of International Law.)  My research led me to the NMTs – and I was surprised, even shocked, to discover that apart from a couple of book chapters and articles, many written by the participants themselves, there was almost no serious legal scholarship about the trials.  It didn’t take long for me to decide that I would try to fill that rather gaping lacuna in international criminal law.

I’m often asked to summarize the thesis of my book.  That’s a difficult task.  It’s easier to describe what I hoped to accomplish by writing it, which involves a constellation of three interrelated goals.  First, I wanted to provide a comprehensive and synthetic analysis of the jurisprudence produced by the 12 trials – an analysis that scholars, attorneys, and judges who work in ICL will find useful in their work.  I hope that I have accomplished that goal: the book contains individual chapters on evidence, procedure, crimes against peace, war crimes, crimes against humanity, modes of participation (including a separate chapter on conspiracy, enterprise liability, and criminal membership), defenses, and sentencing.  Each chapter attempts to identify not only the points of agreement between the tribunals, but also – and perhaps more importantly – where the tribunals disagreed with each other, sometimes passionately.

My second goal was to provide a (relatively) complete historical account of the twelve trials.  I spent a number of months mired in archives, most usefully Telford Taylor’s papers at Columbia Law School.  That was a wonderful, if grueling, part of my research – and it only increased my respect for professional historians, whose ranks I sincerely doubt I’ll ever be skilled enough to join.  I managed to find literally hundreds of documents about the NMTs that had never been discussed in ICL scholarship and that concerned critical issues in the trials – records of defendants Telford Taylor decided not to prosecute and trials he abandoned; letters that indicate the Americans made a conscious decision to try to establish genocide as a crime against humanity in the later trials; conversations that make clear the drafters of Control Council Law No. 10 intended the NMTs to prosecute pre-war crimes against humanity that had no connection to the war (the so-called “nexus” requirement); and many more.  That research forms the heart of the historical chapters in the book, which trace the Allied decision to hold zonal trials instead of a second IMT, the evolution of the NMTs trial program, and the shameful collapse of the war-crimes program after the NMTs closed down.

My third and final goal was to situate the trials in their political context.  The history of the trials, it is fair to say, is the history of the then-nascent Cold War.  While the trials were being planned, Churchill gave his “Iron Curtain” speech, the United States conducted atomic tests Able and Baker, and the French landed in Indochina.  The trials themselves witnessed Truman’s announcement of his famous doctrine, Czechoslovakia’s fall to the Soviets, and the beginning of the Berlin Blockade. After the trials were over, the fate of the convicted defendants was determined alongside the emergence of the Soviet Union as the world’s second atomic power, the rise of McCarthyism, the beginning of the Korean War, and the formation of the Warsaw Pact.  Throughout the book, therefore, I try to identify and explain the myriad ways in which Cold War pressures affected – and often distorted – the jurisprudence the NMTs produced.

I dedicate my book, as all first-time authors should, to my parents.  Intellectually, though, the book is profoundly indebted to Telford Taylor, without whom the trials would not have achieved the success that I believe they did.  Taylor always intended to write a book about the NMTs, a sequel to his seminal work The Anatomy of the Nuremberg Trials.  Unfortunately, at the time of his death, Taylor had completed only three chapters.  I regret that he was never able to finish his book; I’m sure it would have been superb.  It is my profound hope that he would have been happy with mine.

(Cross-posted on Opinio Juris.)

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Book Discussion: Kevin Jon Heller, Nuremberg Military Tribunals and the Origins of International Criminal Law

Published on October 31, 2011        Author: 

Opinio Juris and EJIL: Talk! are happy to announce that we will be doing two joint book discussions. The first book we will be discussing is Kevin Heller’s Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford UP) and that discussion starts today. We have a fantastic lineup of discussants, to whom we are most grateful for their time and insight. On EJIL: Talk! it’ll be Michael Marrus (Toronto), Alexa Stiller (Bern), and Rob Cryer (Birmingham), and on Opinio Juris, David Glazier (Loyola, LA), Detlev Vagts (Harvard), Roger Clark (Rutgers-Camden), Devin Pendas (Boston College) and Lawrence Douglas (Amherst).   The discussion will start with a cross-posted introduction by Kevin on Monday, and end with his reply to the discussants on Friday. Both the discussants and our readers are of course welcome to join in in the comments.

Following discussion of Kevin’s book, Opinio Juris and EJIL:Talk! will host a joint discussion of Marko Milanovic’s book: Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy (Oxford UP)

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The Hague Court of Appeal on Dutchbat at Srebrenica Part 1: A Narrow Finding on the Responsibilities of Peacekeepers

Published on October 25, 2011        Author: 

Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)

Introduction:

This summer, the Dutch Court of Appeal in The Hague issued simultaneous and almost identical rulings in two crucial lawsuits regarding the actions of U.N. peacekeepers during the Srebrenica genocide – Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands. The cases involve civil claims with respect to the deaths of four Bosnian civilians in the Srebrenica genocide. The victims were killed by Bosnian Serb forces after being evicted by the Dutch battalion (Dutchbat) of UNPROFOR from the U.N. compound at Potočari on the 13th of July 1995. The Court of Appeal decided that Dutchbat acted unlawfully in evicting two of the male victims, that this triggered legal responsibility for the deaths of all three male victims (but not the sole female victim), and that the wrongs could be attributed to the Netherlands.

In this post, I provide a brief description of the procedural and factual background to the case and address the legal issue of Dutchbat’s wrongdoing. Later this week, I will address the potentially more consequential issue of the attribution of that wrongdoing to the Dutch state.

The Court’s analysis of Dutchbat’s wrongdoing has two key features. First, the Court applied human rights obligations abroad. However, it did not do so by finding the relevant treaties to have extraterritorial effect. Instead, it found (i) that the ICCPR had been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and (ii) that the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, the ruling characterized Dutchbat’s wrongdoing narrowly: (i) relying on the eviction of the victims from the U.N. compound, not on any responsibility to protect those already outside the compound, and (ii) noting that since the victims were the last persons to be evicted, the judgment provided no indication of whether earlier evictions would have been unlawful (the probable consequences of eviction having become more apparent to Dutchbat over time). Read the rest of this entry…

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Antonio Cassese, 1 January 1937- 22 October 2011 RIP

Published on October 24, 2011        Author: 

The Editor-in-Chief, the Board of Editors, the Scientific Advisory Board and the entire EJIL family mourn the death of Antonio Cassese, a founding Editor of the European Journal of International Law. Nino Cassese played a decisive role not only in the establishment of EJIL but also in its continuous evolution and success. He was a regular contributor to EJIL, some of his articles becoming iconic. An illustrious jurist, judge and teacher, he will be remembered for his profound humanity and generosity of spirit. We extend our heartfelt condolences to the family.

 

JHHW

Messages of condolence from EJIL authors and readers sent to ejil {at} eui(.)eu will be forwarded to the family.

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Antonio Cassese Passes Away

Published on October 22, 2011        Author: 

We are sad to report the passing of Antonio Cassese, one of the greatest international lawyers of his generation and one of the EJIL’s founders. Nino worked tirelessly despite his illness almost until the end, having resigned as president of the STL just a few weeks ago. Few scholars have had as much impact, or were so gracious towards others. He will be missed.

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Call for Papers: ESIL Conference in Valencia, September 2012

Published on October 21, 2011        Author: 

The European Society of International Law has announced a call for papers for the Valencia conference in September 2012 (note that there has been a slight change of dates with regard to what was previously advertised). The PDF of the call for papers with all off the relevant deadlines and information is here: CfP English.

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