Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips?

Scott Horton

For the last twenty years, it’s been common practice among law professors to view modern human rights law, and in a sense the entire international law system, as something that started with the gavel that convened the first of the Nuremberg criminal tribunals. That gavel fell sixty years ago today. These tribunals gave force to the concept that international law was not just about relations between nations. International law also created obligations for individuals, who could be subject to trial and severe sanction. America was the most aggressive proponent of this course, and the American prosecutor, Justice Robert Jackson, was extremely conscious of what this meant for his country. “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”

Today it seems that Jackson’s poisoned chalice truly is pressed to the lips of the United States, or more particularly, those of George W. Bush. The Bush Administration has retreated from the country’s traditional embrace of international law, and continues to view even its most basic commitments – such as the Geneva Conventions – with contempt. While John McCain has mustered a vote of 90 – 9 in the US Senate in support of a return to the traditional view, Bush remains defiant and threatens a veto. Why the adamant opposition?

Can it be that the Nuremberg legacy provides the answer? If any single consideration stands in the way of the Administration’s embrace of the McCain Amendment, it might well be what Andrew Sullivan calls “concern for immunity from prosecution for past actions and decisions.” Nuremberg set some clear principles, and many of them had to do with the mistreatment of those held in prisons in wartime. A concept of ministerial liability for pervasive abuse was established, and this was based on notions of command responsibility. Another case established that those who write legal memoranda which counsel government officials and the military to ignore the Geneva and Hague Conventions can be prosecuted and imprisoned – as in fact a number of German Justice Ministry officials were in the case of United States v. Altstoetter.

Many in the Bush Administration seem to have a very curious understanding of Nuremberg. Rather than leading a new movement to overturn the international legal system that started at Nuremberg, a number of key Bush officials are more likely to be the Pinochets of the next generation – blocked from international travel and forever fending off extradition warrants and prosecutor’s questions. Notwithstanding a sovereigntist assault, sixty years later the principles of Nuremberg seem as robust as ever – and likely to create lasting troubles for those who would deny them.
Posted 6:56 PM by Scott Horton [link]