Response to Marrus, Stiller and Cryer

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.

Marrus

Professor Marrus’s first point is terminological: he prefers to describe the twelve trials as the “Nuremberg Subsequent Proceedings,” whereas I obviously prefer “Nuremberg Military Tribunals.”  De gustibus non disputandum est!  More seriously, though, Professor Marrus is quite right to emphasize the confusing terminology that scholars – and the U.S. government – have used to describe the vast array of tribunals that were created in the wake of World War II.  As I discuss in Chapter 15 (pp. 335-36), critics of the U.S. war-crimes program, most notably Bishop Wurm, the chairman of Germany’s Protestant Church Council, deliberately tried to blur the lines between the NMTs and the much more procedurally problematic Dachau trials, hoping to delegitimize the former by associating them with the latter – “a good strategy,” according to Drexel Sprecher, one of Telford Taylor’s top deputies.  I have no idea whether terminological confusion facilitated such guilt by association, but I would not be surprised if it did.

Professor Marrus’s next point is that the Holocaust played a much more central role in the IMT than I – and many actual historians – acknowledge.  I did not mean to imply that the Allied prosecutors introduced little evidence of the Holocaust at the trial, and Professor Marrus ably summarizes the evidence that they did introduce.  I had two things in mind when I described the Holocaust as, quoting Douglas, “largely ancillary.”  The first concerned the historical framing of the IMT: the Allied prosecutors, particularly Justice Jackson, were far more concerned with dramatizing the Nazis’ numerous wars of aggression than with crimes against Jews.  The second concerned the legal framing of the Holocaust: as Professor Marrus notes, the NMTs developed the category of crimes against humanity – the key crime regarding the persecution and destruction of the Jews – far more systematically, and with far greater precision, than the IMT.  Indeed, as I discuss in Chapter 10 (pp. 249-50), the Americans, prompted by Raphael Lemkin, made a self-conscious decision during the Medical case to try to establish genocide as the ideal-typical crime against humanity in the later trials.  That strategy paid off: two defendants, Oswald Rothaug and Ernst Lautz, were specifically convicted of genocide in the Justice case – the first convictions for genocide in the history of international criminal law.

Professor Marrus’s final point is that I am being too hard on Telford Taylor when I argue (pp. 80-81) that his refusal to hold a Holocaust-centered trial or expand the Ministries case at the request of the World Jewish Congress indicates that he did not take crimes against the Jews as seriously as he should have.  Professor Marrus claims that “the evidence for intentional trivialization” is weak,” and he may well be right.  As I pointed out in the book, it is unwise to read too much into a single memo dismissing the idea that the Holocaust deserved a trial of its own.

But I remain troubled by Taylor’s comment, offered in said memo to justify not holding a Holocaust-centered trial, that “most of the people who played  an important role in ordering and planning the Jewish extermination probably committed many other crimes as well.”  With respect to Professor Marrus, that statement does not appear to reflect a “failure of imagination” on Taylor’s part with regard to the Holocaust.  On the contrary, it seems to imply an awareness of the crimes paired with a belief that there was nothing particularly unique about them.  Is that “intentional trivialization” of the Holocaust?  Perhaps not.  At a minimum, though, it was a missed opportunity – and one that did not have to be missed.

Stiller

Professor Stiller offers five criticisms of the book, all of which deserve a response.  First, she argues that, perhaps a result of my “strict legal approach” to the trials, I find “no connection between the very conservative interpretation of the law and the judges’ standpoints.”  In particular, she mentions the Hostage tribunal’s reluctant endorsement of the legality of killing hostages; one of the judges on that tribunal, Charles Wennerstrum, was deeply conservative and provoked a major controversy by condemning the NMTs as “victor’s justice” in an interview with the Chicago Tribune the day after the verdicts in the case were announced (see pp. 97-98).  I completely agree with Professor Stiller’s insistence on political contextualization, but I’m not sure I’m quite as guilty of separating the law from the “situatedness” of the judges as she believes.  I discuss how the political commitments of various judges affected their legal views in a number of places in the book; I note, for example, that Judge Maguire’s decision to run as a Republican for a seat on the Oregon Supreme Court likely led to his decision to reconsider (and overturn) von Weizsaecker and Woermann’s convictions for crimes against peace in the Ministries case (p. 344).

That said, I think it is also a mistake (one that I am not attributing to Professor Stiller) to assume that a judge’s approach to law is somehow completely determined by his or her politics.  One of the most notable aspects of the trials, it seems to me, is how little predictive value the political affiliation of the judges had – Democratic judges voted to acquit defendants; Republican judges voted to convict them.  In fact, I’m not even sure what the “conservative” and “liberal” positions would have been on many of the legal issues in the trial.  Consider the example Professor Stiller mentions: hostage-taking.  The Hostage tribunal may have reluctantly acknowledged the legality of executing hostages, but it is important to remember that the tribunal did not conclude that any of the defendants’ actual executions were legal (pp. 214-15).  Nor did the tribunal uphold executing hostages on the ground of an expansive view of military necessity.  Instead, it simply held – almost certainly correctly – that as barbaric as the practice might have been, it was simply not prohibited by either conventional or customary law (p. 217).  Was that a liberal or conservative conclusion?  I honestly have no idea – interpreting customary international law narrowly might be seen as conservative, but protecting the rights of defendants (even Nazi ones) might be seen as liberal.

Second, and relatedly, Professor Stiller claims that I decontextualize the NMTs by failing to individuate the German defense attorneys, despite the key role they played in the trials.  Here I have to plead guilty.  I simply did not have enough time – especially given how slowly I read German – to do the defense attorneys justice.  That’s a shame, because many of them are fascinating – none more so than Robert Servatius, who defended Sauckel at the IMT, Karl Brandt and Paul Pleiger at the NMTs, and Adolf Eichmann in the District Court of Jerusalem.  I hope that scholars will rectify my oversight in future work on the NMTs!

Third, Professor Stiller faults my failure to address Telford Taylor’s “institutional approach” to structuring the trials, which she traces – no doubt correctly – to Franz Neumann’s magisterial book, Behemoth.  I am guilty of this, as well.  That said, I do spend a significant amount of time discussing Taylor’s emphasis on constructing trials around specific spheres of activity within the Nazi regime (industrialist trials, SS trials, etc.) – and I attempt to show that constructing crime-centered trials may have been more successful, particularly with regard to crimes against peace (see, for example, pp. 47-48).

Fourth, Professor Stiller says that I fail to consider the “legitimizing function” of the trials in a time of “political transition.” Here I have to demur.  It is true that, as she notes, the term “transitional justice” does not appear in the book.  But I spend a good deal of time in Chapter 16 (see pp. 372-74) explaining why the didactic function of the trials – Taylor and the Americans’ explicit goal of educating ordinary Germans about the atrocities committed in their name and thereby convincing them to turn away from Nazism and anti-Semitism – was, as I put it, a “spectacular failure.”  I have always considered the American war-crimes program to be the first transitional-justice project of the modern era.  Unfortunately, it was no more successful than current iterations of that project have proven to be.

Fifth, and finally, Professor Stiller questions my assertion that, contrary to popular belief, the sentences in the trials became increasingly lenient over time.  Indeed, she claims that if I “had looked at the atrocity cases,” I “would have come to a different conclusion.”  I have to disagree here, as well.  As I note in the book (p. 329), there is no question that some of the later atrocity sentences seems incongruously lenient, such as the 20 years Hans Lammers, the Chief of the Reichschancellery, received in Ministries and General von Kuechler received in High Command; earlier tribunals would almost certainly have sentenced both to life imprisonment.  But I stand by my claim that the tribunals did not generally become more lenient over time; some tribunals were simply more lenient than others.  After all, Einsatzgruppen was Case No. 9, and that tribunal sentenced more defendants to death than all of the other tribunals combined.

Cryer

In the spirit of full disclosure, I should admit that I’m fortunate enough to consider Professor Cryer a good friend – and that he was an invaluable resource and sounding-board during the researching and writing of the book.  I’m delighted, and relieved, that he likes it.

Now to Professor Cryer’s response.  His first comment is that the NMTs were “brief, to say the least, on the sources of international law.  There often is no real discussion of custom and the like to determine the position in international law.”  I couldn’t agree more – and I hope I did not imply otherwise.  A number of things, however, can be said in defense of the tribunals.  First, some of the judges used the sources of international law quite well.  The Hostage tribunal, for example, discussed the formation of customary international law in great detail when determining the scope of the defense of superior orders (pp. 299-300).  Similarly, in the Ministries case, Judge Powers quite rightly took the majority to task for holding that invasions were criminal under customary international law, pointing out that the Kellogg-Briand Pact, on which the majority relied, was not only silent concerning criminalization, but did not even mention invasions (p. 128).  More generally, the tribunals deserve praise for their consistent insistence that customary international law took precedence over the literal text of Law No. 10.  That is why the Hostage tribunal refused to hold that killing hostages was per se criminal, even though Article II(1)(b) specifically deemed the “killing of hostages” a war crime (p. 216), and that is why the Milch and Farben tribunals were willing to criminalize enslavement as a war crime, even though Article II(1)(b) criminalized  only “deportation to slave labor” (pp. 220-21).

Professor Cryer also questions my assertion that modern domestic courts and international tribunals have vested the NMTs judgments with significant precedential authority.  In his view, given the many instances in which the judgments have been misinterpreted and/or misused, it is perhaps more accurate to say that courts and tribunals have normally relied on the judgments for strategic purposes – to provide rhetorical cover for contentious legal conclusions.  I don’t disagree.  My basic thesis in Chapter 16 was that the NMT judgments have had a significant impact on the development of ICL.  I intended that claim to be solely descriptive; I wanted to highlight the fact that – rightly or wrongly, progressively or conservatively – the judgments have provided the fodder for numerous decisions by modern domestic courts and international tribunals.  As Professor Cryer notes, I am deeply critical of how the ICTY and U.S. courts (in particular) have misused the NMT judgments.  But that that does not mean the judgments have not been influential; it simply means that modern courts and tribunals have failed to grapple with them in any kind of methodologically-coherent way.  So I suspect that there is actually not much daylight between Professor Cryer and I in terms of how we view the judgments’ influence.

Professor Cryer’s final criticism is also well taken: namely, that the book perhaps overstates the case for the influence of the judgments on specific post-war developments in ICL.  He mentions two examples in particular: Article 4(2) of the Third Geneva Convention’s recognition of partisans as lawful combatants even after an invasion had ripened into occupation, which I trace to the Hostage case; and the Rome Statute’s refusal to categorically prohibit defendants from arguing duress as a defense to murder, which I connect to Einsatzgruppen.  I tried to be as conservative as possible regarding claims of causation throughout Chapter 16; indeed, I dropped some of my initial claims for influence during the editing process, because I concluded that there was simply not enough evidence to support them.  Perhaps I should have dropped the partisans claim as well, instead of hedging my bets by claiming that the Hostage case “likely influenced” the drafting of Article 4(2).  As for the duress claim, though, I think I’m on somewhat firmer ground – from my research into the history of Article 31 of the Rome Statute, it seems clear that the drafters specifically rejected the majority opinion in Erdemovic in favor of the late Professor Cassese’s impassioned dissent.  Professor Cassese’s dissent relied heavily on Einsatzgruppen for the idea that duress could be a defense to any crime, including murder, so I do not think it was inappropriate to argue in the book that “the Einsatzgruppen approach to duress has had a considerable influence on the ICC” – if only by the transitive property…