Deja vu - Some Nazi war criminals were released early.
A
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.
