Mass Atrocity, Collective Memory, and the Law.

• Author: Bass, Gary Jonathan
• Position: 1999 Survey of Books Related to the Law

MASS ATROCITY, COLLECTIVE MEMORY, AND THE LAW. By Mark Osiel. New Brunswick, N.J.: Transaction. 1997. Pp. x, 317. $34.95.

I.

In April 1945, Sir John Simon, Britain's Lord Chancellor, drew up a memorandum that was the last gasp in the diplomatic struggle against Nuremberg. Under American pressure, and despite British objections, the Allies were poised to agree to put the Axis leadership on trial for war crimes. In the kind of magnificent understatement that the British government could sometimes inadvertently achieve, it was entitled "The Argument for Summary Process against Hitler & Co." The memorandum was a series of arguments to be used by the British delegation at the San Francisco conference in a last-ditch effort to win over the Americans and Soviets. Simon's case was simple: the Nazi leaders deserved to be punished, but trials were not the way to do that. Simon feared that a trial of the Nazi leadership would drag on, wear out public interest, unearth embarrassing facts, and allow the Nazis a final chance to make propaganda. The legal difficulties also seemed daunting. It would be nightmarish to merge the American, British, and Soviet legal traditions. Nor was it clear that aggression -- which was to be the main charge at Nuremberg and the focus of the American prosecution -- could be considered a war crime in any conventional sense. If the Nazi defense managed to score a few small victories, the trial might be denounced as "a farce." So Simon had a simpler solution: avoid the niceties of a trial and just shoot the Nazi leaders.(1)

These arguments were to be quashed. Led by Henry Stimson, Franklin Roosevelt's Secretary of War, the American government was determined to have sweeping trials for the Nazi war criminals. In the face of this, Britain decided not to push Simon's argument any further but to acquiesce with the wishes of its more powerful American ally with as much good grace as could be mustered.(2)

Whether one agrees with them -- and I don't -- Simon's arguments were not weak ones. But they are strange to hear nevertheless. Nuremberg is seen in retrospect as so unimpeachable, an act of such extraordinary restraint and justice, that it is disturbing to hear that it was fought with such pragmatic objections. When considering a war crimes tribunal for the former Yugoslavia and then another one for Rwanda, the United Nations did not air such debates. To the contrary, there is a kind of orthodoxy in human rights circles that regards it as almost self-evident that war crimes deserve war crimes trials. So many of the arguments against war crimes trials have been made in bad faith -- by apologists for Serb or Croat nationalists and Hutu genocidaires, who do not really question legalistic methods but the need for punishment itself -- that it is easy to forget that there are some reasonable arguments made in good faith against the trials.

At a minimum, this protribunal orthodoxy is a post-Nuremberg artifact. Many scholars and diplomats have questioned whether war crimes and mass atrocities can properly be reduced to legal questions. While the Nuremberg trials were in session, Hannah Arendt wrote to Karl Jaspers, a German intellectual:

Your definition of Nazi policy as a crime ("criminal guilt") strikes me as questionable. The Nazi crimes, it seems to me, explode the limits of the law; and that is precisely what constitutes their monstrousness. For these crimes, no punishment is severe enough. It may well be essential to hang Goring, but it is totally inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That is the reason why the Nazis in Nuremberg are so smug.(3) Other thinkers, less commendably, have been more worried about the purity of American law than about punishing foreign war criminals. During Nuremberg, at the Supreme Court itself, Chief Justice Harlan Fiske Stone was quietly indignant that Justice Robert Jackson was away serving as the American chief prosecutor at the Allied tribunal:

So far as the Nuremberg trial is an attempt to justify the application of the power of the victor to the vanquished because the vanquished made aggressive war ... I dislike extremely to see it dressed up with a false facade of legality. ... It would not disturb me greatly ... if that power were openly and frankly used to punish the German leaders for being a bad lot, but it disturbs me some to have it dressed up in the habiliments of the common law and the Constitutional safeguards to those charged with crime.... .... ... Jackson is away conducting his high-grade lynching party in Nuremberg.... I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.(4) And in his book Profiles in Courage, John F. Kennedy dedicated a rather unconvincing chapter to praising Senator Robert Taft for objecting to Nuremberg as a betrayal of American legal standards.(5)

There have also been more political objections. As World War I was drawing to an end, David Lloyd George, the British Prime Minister, tried to persuade the Imperial War Cabinet to approve war crimes trials for Kaiser Wilhelm II and other Germans. But Lloyd George found few takers at first. Jan Smuts, South Africa's Defense Minister, was not sure that Wilhelm II had committed any definite crime. W.M. Hughes, the Prime Minister of Australia, was emphatic that Wilhelm II could not be put on trial simply for starting the war. Austen Chamberlain did not want to make a martyr of Wilhelm II by singling him out for trial. Winston Churchill himself had, in 1915, been enthusiastic about punishing U-boat crews, but in 1918, as Minister of Munitions, worried:

It does seem to me that you might easily set out hopefully on the path of hanging the ex-Kaiser and have general public interest taken in it, but after a time you might find you were in a very great impasse, and the lawyers all over the world would begin to see that the indictment was not capable of being sustained.(6) It was not only the British who had reservations. Cordell Hull, Franklin Roosevelt's Secretary of State, and Henry Morgenthau Jr., Roosevelt's Secretary of the Treasury, both preferred summary execution to trials for Nazi war criminals. Henry Stimson, Roosevelt's Secretary of War, was the administration's foremost advocate both of war crimes trials and a generous settlement that would not humiliate Germany. This generosity was presumably easier for Stimson because he, and the War Department, had never been noticeably exercised about the extermination of the Jews. But more than any other member of Roosevelt's cabinet, Morgenthau tried to stop the Holocaust; and once the war was coming to a close, he was too angry to contemplate giving the Nazis the luxury of a trial.(7)

Morgenthau's rage was certainly immoderate, but it was in the same vet as Arendt's critique of Nuremberg. Morgenthau and his staff at one point in 1944 were considering as many as 2,500 such executions.(8) These plans for summary execution were enshrined in the Morgenthau Plan, a document calling for a tough peace that would pastoralize Germany lest it ever threaten Europe's peace again. At the Quebec Conference in 1944, Roosevelt and Churchill agreed to follow Morgenthau's lead. It was only after the Morgenthau Plan was leaked to the press that Roosevelt turned to Stimson's plans for war crimes trials. Morgenthau did not recant. He did not want the punishment of Nazis undercut by legal niceties. For Morgenthau, justice and law were not always the same thing. "I'm not a lawyer," Morgenthau said in June 1945, as the planning of Nuremberg dragged on. "Is there any reason they can't cut all of this monkey-business out and go right to the military tribunal?"(9)

In retrospect, it is clear that Morgenthau and Hull had got the wrong end of the argument. We are right to reserve our highest praise for the people who made Nuremberg the triumph it was, like Jackson and Telford Taylor.(10) But even the success of Nuremberg does not necessarily mean that trials will always work. The trials held after World War I, in...