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Logo of Phnom Penh Post newspaper Phnom Penh Post - Law and War: A century of hypocrisy and ambivalence

Law and War: A century of hypocrisy and ambivalence


Deja vu - Some Nazi war criminals were released early.


s the long-delayed Khmer Rouge tribunal process staggers into motion again, American

historian Peter Maguire has pro-duced "Law and War", an analysis of American

attempts to apply rule of law to the barbarity of modern warfare, particularly during

the Nuremberg trials.

In an interview with Phelim Kyne, Maguire outlines the ambivalent lessons of Nur-emberg and

their legacy for contemporary attempts to find justice for genocide victims.

Post: Nuremberg is popularly perceived as the noble epitome of the international

community's efforts to punish the perpetrators of genocide to ensure that "never

again" would such evil be repeated. Is that perception justified?

PM: There is a great deal of confusion surrounding the Nuremberg trials. While

Nuremberg's International trial is well known (1945-1946), there were also 12 American

Nuremberg trials that followed it (1947-1949), not to mention the Dachau trials,

the Yamashita case, and the Tokyo trials. If "Nuremberg" provides the legal

and symbolic framework for war crimes trials today its "lessons" remain

unclear. In part, this is because what that name represents is really a series of

contradictory trials with no single lesson to be learned.

Post: While the US has in some instances - particularly in Cambodia - been

at the forefront of pressing for the prosecution of those suspected of crimes against

humanity, your book reveals the irony that America was codifying the laws of war

at a time when the nation was involved in brutal Indian and colonial wars.

PM: It was much more than ironic. US political ideology posed unique problems

for American foreign policy. It grew increasingly difficult to justify an expansive,

essentially imperialistic foreign policy, within the framework of an egalitarian

political ideology.

As America grew into a regional, and later, a global power, this simple hypocrisy

evolved into a more profound duality. More than the obvious gap between words and

deeds, from the beginning, there was a tension between America's much vaunted ethical

and legal principles and the practical policy interests of an emerging world power.

The simultaneous rise of personal liberty and slavery on the North American continent

was the great paradox of the first two centuries of American history. However, from

the point of view of early American leaders, these dualities were neither problematic,

nor paradoxical until well into the 20th Century. So what emerges quite naturally,

even organically, are two sets of rules for war. When US soldiers faced British and

other European armies, they fought according to the customary European rules of war

with few exceptions.

However, when American settlers and soldiers squared off against foes they deemed

"savage" or "barbarian", they often fought with the same lack

of restraint as their adversaries. What also became clear, long before the United

States even gained independence, was that the "others", in this case the

slave population and North America's native inhabitants, would pay the greatest price

for American freedom. Whether it was the Algonquin in Massachusetts, the Pequot in

Connecticut, the Sioux in the Dakotas, or the Chumash in California, US expansion

cost American Indians their civilization.

Initially colonial leaders deemed both slaves and Indians, "barbarians"

and "savages" and refused to grant them natural rights. They would however,

grant them credit and as much as the West was won with blood and iron, it was also

won with whiskey, dependence, and debt.

Post: What common myths about Nuremberg does your book effectively debunk?

PM: There are two Nuremberg myths I hope to dispel: The American myth of the redemptive

trial and the German myth of the harsh victor's justice. Today, many point to the

Allied war crimes trials, especially Nuremberg's International Military Tribunal

(IMT) , as the centerpiece of a successful German re-education effort.

The abrupt and often contradictory shifts in American foreign policy reopened

the question of Nuremberg's legitimacy in West Germany. The American flight from

the radical and punitive policies of the occupation period coincided with the release

and social reinstitution of prominent war criminals like Alfried Krupp and Ernst

von Weizsaecker. This sent a powerful message to the West German body politic. The

question was further confused when President Eisenhower asked West Germany to rearm

under the EDC Treaty in the early 1950s.

There was a clash between the geo-political need for "reconciliation" with

new and important allies and the traditional US commitment to principles of law and

universal human rights. Many West Germans, their leaders included, found the Nuremberg

manner of punishment and parole confusing, unprecedented, and ultimately illegitimate.

In the end, the U.S. and the Federal Republic found a face-saving way of resolving

the war crimes question to West Germany's advantage. American leaders caved in to

official West German pressure on the war criminals and as a result, cast a shadow

of doubt over the legal legitimacy of those trials in Germany. Many argue that however

misguided the war crimes clemencies were, they did not detract from "the lessons

of Nuremberg".

I reject this view. In 1958, a parole board composed of Germans and Americans released

the final four Allied war criminals Three of the four men had been Einsatzkommandos,

leaders of the worst execution squads in the Third Reich, sentenced to death by an

American tribunal at Nuremberg in 1948. Because the question of war crimes clemency

was usually linked to German rearmament, it created the impression that the United

States was trading war criminals for German rearmament.

Post:The legal travails of former Chilean dictator Augusto Pinochet and the recent

extradition of Slobodan Milosevic to the Hague has prompted much hopeful speculation

that the world is at the dawning of a new era in international law. Are you as optimistic?

PM : I am glad to see war criminals punished, but I am unconvinced that sovereignty

is on the way out. During the 1990s, the United Nations and world leaders proved

unwilling to stop crimes against humanity and genocide in civil wars throughout the

globe. The UN's responses ranged from weak-willed and ineffectual in Cambodia and

former Yugoslavia; to absolutely shameful - Rwanda, East Timor, and Sierra Leone.

Rather than face the fact that the Nuremberg "Never Again" promise had

been broken, the UN and many human rights advocates shifted their efforts from war

crimes prevention to war crimes punishment, or post-tragedy justice. But what are

the limits of post-tragedy justice and therapeutic legalism like truth commissions?

Can trials make up for disgraceful inaction?

Post: Cambodia now appears ready to put the architects of the Cambodian genocide

on trial, with or without the assistance of the UN. Do you think justice can truly

be done for the 1.7 million victims of the Khmer Rouge?

PM: It is a day late and hopefully not a dollar short. The time to try these guys

was 1980, or more realistically 1991, but the UN and West were not interested. I

remember being harshly dressed down by a UN official in 1994 for asking about war

crimes accountability under the Paris Treaty. I was told smugly and dismissively

that "we already handled that".

Sadly, Cambodia serves as a useful paradigm for the relationship between powerless

nations and international law during the 20th Century. After the Vietnamese toppled

the Khmer Rouge, did the UN or the US support efforts to try Khmer Rouge leaders?

No, quite the opposite: in 1979, the Carter Administration voted for the genocidal

regime to retain Cambodia's seat in the United Nation's General Assembly.

Although the United Nations sent more than 20,000 troops and 5,000 civilian advisors

to Cambodia [during Untac], there was no mention of war crimes in the 1991 Paris

Treaty. I think that American diplomats like Ambassador Wiedemann and politicians

like John Kerry have played a key role in the discussions between Cambodia and the

UN over war crimes trials. Given the UN's legacy in Cambodia, they assumed a very

sanctimonious position from the beginning. Remember that Hun Sen had pressed the

West and UN in 1991 for Khmer Rouge war crimes accountability at Pattaya but got

no support.

Whatever your opinion of Hun Sen, one must concede that he is holding all the cards

and he's proven that at the UN's expense. He has sacrificed very little in the pre-trial

maneuvering. However the time is coming for Hun Sen to play those cards, and that

will not prove as simple. Trials are trials and inherent in them is an element of

risk. As Otto Kirchheimer pointed out, in political justice the line between blasphemy

and promise is a fine one.

Post: What's the future of international war crimes tribunals?

PM: The UN has spent close to a billion dollars to try a few dozen men in Tanzania

and the Hague. While close to 100,000 remain in prison in Rwanda, their punishment

has not resurrected the 800,000 hacked to death in 1994, or ended civil wars that

continue to rage in the Congo and flare in the Balkans.

During the 1990s, war crimes, human rights, and post-tragedy justice became industries,

complete with self-appointed stars, power brokers, and patrons. Most aggressively

advanced the idea that a Nuremberg-derived system of international criminal law will

soon take root. However, by the end of the bloodiest century in human history, the

so-called "international community" has grown increasingly indifferent

to and accepting of the horrors suffered by its most powerless and politically insignificant

members. East Timor and Sierra Leone were promised trials that have yet to begin.

Chechnya and Tibet? No accountability there.



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