From Nuremberg to Baghdad: how the principles of Nuremberg, created by the United States, have been turned on their creator.

• Published date: 22 December 2010
• Author: Hopkins, Erin
• Date: 22 December 2010

I. INTRODUCTION

It was Christmas Eve and a young, twenty-six-year-old "cowboy" (1) was returning home from a party. The cowboy was very drunk and not without his trusty pistol. As he stumbled along, attempting to find his way home, he was stopped by the local police and asked to hand over his pistol. Instead of handing over the gun, he turned it on the officer and began to fire wildly. Three bullets hit their mark and ended the officer's life. The cowboy ran off into the night in an attempt to escape. He went to lay low with some friends who ferried him across the border to escape the consequences of his actions.

This sounds like the beginning of an old Western movie straight out of Hollywood. Unfortunately, this happened in modern day Iraq. (2) The young cowboy was a member of the highly paid private military firm, Blackwater USA. (3) The police officer was an Iraqi guard who stopped the drunken Blackwater employee from entering the Iraqi Prime Minister's compound. (4) The friends who helped the young cowboy escape were his Blackwater superiors who spirited him across the border into Jordan. (5) The Blackwater officials, with the help of the U.S. State Department, finally brought him home to the United States. (6)

If this had been a movie, the locals would have rounded up a posse to ride off in hot pursuit of the "cowboy" and ensure that at least some form of justice was done. However, no posse was formed because the young contractor fell under the blanket immunity provided to military contractors operating in Iraq at the time. (7) The only consequence the contractor faced was the termination of his contract. (8) The reason for termination: possessing a firearm while intoxicated. (9) Within two months he was hired by another private contractor and working in Kuwait. (10)

The blanket immunity offered to the contractors was a major sticking point in the negotiations between the United States and the new Iraqi government as they attempted to establish a status of forces agreement ("SOFA"). (11) This agreement would effectively end the United States' involvement in the day-to-day operations of Iraq and establish the parameters under which U.S.-led forces are punished for their crimes. (12) The standard SOFA in similar circumstances would hold U.S. servicemen and -women accountable to the U.S. Military Code of Justice for any crimes they may commit. (13) However, private contractors, such as Blackwater employees, are not viewed as servicemen and -women, and thus, this type of SOFA would not apply to them. (14) The Iraqi government has expressed a strong intent to prosecute these contractors under Iraqi law. (15) The American government has struggled to provide a valid reason for the immunity and its attempts to extend it. (16) The actions of these contractors in Iraq have led to considerable erosion of America's political and moral credibility in the international realm. (17)

Ironically, America's actions at the end of World War II laid the groundwork for the Iraqi government's insistence to hold the contractors individually liable for crimes committed in a war zone. At the end of World War II, the American government took a leadership role in the Nuremberg trials that prosecuted individual Germans for the crimes they committed while in the midst of war. (18) The ghost of Nuremberg has come back to haunt the American international negotiators who are now being held accountable to a standard their predecessors helped to thrust upon the international community over half a century ago. (19) While the actions of the Blackwater contractors pale in comparison to the atrocities committed by the Nazi party in World War II, the international attitude currently standing in opposition to American negotiators in Iraq was founded on the principles established by the Nuremberg tribunal. America took a public stance in favor of these principles--which included individual liability for crimes committed in a war zone (20)--and it is upon these principles that Iraq is now demanding liability for contractors' actions.

Many question whether the United States is qualified to be a member of the international culture of human rights that it has created. The current difficulties facing America will only grow in future years unless the United States can live up to its own standards. However, in order to determine whether America can live up to this cultural expectation, certain concepts must be understood. First, what exactly is the legacy of the Nuremberg tribunal and its principles? Second, how have these principles manifested themselves in the years after the Nuremberg Trials, specifically in the Iraq war and occupation? Third, how do the new breed of private contractors and their ambiguous status in international law fit into the previous groundwork laid down over the years since the Trials? Finally, how has the immunity provided to private contractors impacted attempts at liberation? All of these issues are multifaceted and complex. While there is voluminous literature on these topics individually, (21) this Note seeks to synthesize these notions into a cohesive whole that can shed light on the struggles in Iraq and help to pave the way for further dialogue on how best to move forward into the future.

II. THE PRINCIPLES AND LEGACY OF THE NUREMBERG TRIBUNAL

The end of World War II brought a sense of accomplishment to the free world. The oppression of Nazi Germany and its allies was at an end and the greatest threat the world had ever known was no more. (22) However, the aftermath of the war brought the international community face-to-face with the atrocities committed by Hitler and his regime. (23) The international community answered these atrocities with the Nuremberg Trials. (24) The main trial was held from November of 1945 until the end of August of 1946. (25) At this trial, there were 403 open sessions with thirty-three witnesses for the prosecution and sixty-one witnesses for the defense--and this was only for the individually named defendants. (26) The trial was a monumental undertaking that continues to influence the way the international community functions. (27)

The seeds of the trial were planted in October of 1943 with the Moscow Declaration. (28) This brief declaration served as a warning to the Germans committing atrocities that they would be "brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged." (29) This language is indicative of the Allies' mentality at that point in the war. They initially wanted to round up the leaders of the Nazi party and have them shot without any trial. (30) However, calmer heads prevailed, and in 1945, the London Agreement was promulgated, containing the means of establishing an international tribunal for "the trial of war criminals ... whether they be accused individually or in their capacity as members of organizations or groups or in both capacities." (31) The tribunal was formed, the defendants were named, and the trial was held.

The trial marked the first time that individuals were held accountable on an international level for their actions in war. (32) In all, twelve people were sentenced to death by hanging, three received life sentences in prison, four received lesser sentences, and three were acquitted. (33) However, the legacy of Nuremberg goes beyond the verdicts it rendered against those twenty-two people.

The international community had witnessed horrendous acts of atrocities and the wholesale slaughter of millions of innocent people. Although the initial response was to seek swift retribution by having the Holocaust leaders summarily executed, down this road lay the chance of making martyrs out of monsters and sowing the seeds of resentment in a conquered people. (34) Instead, the United States raised the notion of having a trial to render justice instead of mere vengeance. (35) It is this decision to institute justice that is the legacy and true impact of Nuremberg. (36)

The impact of this radical decision was felt almost immediately. On October 23, 1946, President Harry S. Truman delivered a speech to the General Assembly of the United Nations. (37) President Truman extolled the benefits of having established a new precedent that based international actions "upon principles of law and justice." (38) He further stated that crimes against humanity should be punished through an invocation of international justice. (39) Within days, President Truman received a report by Francis Biddle, (40) saying that the principles of the Nuremberg Charter should be codified into international law by the United Nations. (41) The President agreed, (42) and on November 15, 1946, the United States delegation introduced a proposal asking that the codification of the Nuremberg principles be given "primary importance." (43)

The proposal to codify the principles of the Nuremberg charter into international law was taken up by the Sub-Committee in charge of the codification of international law on December 3, 1946. (44) The Sub-Committee wrestled with the task. At first blush, the notion appeared simple. First, identify the principles of the Nuremberg Charter; this was not difficult, as the Charter conveniently lists them. (45) Next, codify them into international law. (46) However, this did not occur. Instead, the United States delegate who had initiated the proceedings changed the course of the proceedings by altering the words of its initial proposal. (47) Where previously the proposal called for the codification of the principles into international law, they now called for the Sub-Committee to merely make "plans for" how the codification might take place in the future. (48) The result was that the Sub-Committee called for the formation of a new committee to take up the task. (49)

The new committee was formed the following year and did not fare much better. (50) The French delegation to the...