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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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There has been much discussion of whether the US should have captured Osama Bin Laden alive and put him on trial, as per the Nuremberg precedent set in the apprehension and subsequent judicial sentencing of Nazi World War II war criminals. I felt it was worth making a slightly more critical evaluation than some of those views already put out there about this.

Defendants at the Nuremberg Trials
The Nuremberg defendants. Front row, from left to right: Hermann Göring (death; suicide before sentence), Rudolf Heß (life imprisonment), Joachim von Ribbentrop (death), Wilhelm Keitel (death). Second row, from left to right: Karl Dönitz (10 years), Erich Raeder (life; later released), Baldur von Schirach (20 years), Fritz Sauckel (death).

The Nuremberg Trials: All That is Solid Melts Into Air
The first thing that must be noted about the Nuremberg trials, as did Judge Charles E. Wyzanski, Jr., is that while I am here going to be extremely critical of the Nuremberg trials, and also of Osama Bin Laden, that does not mean that I think nothing should be done against those who commit genocide, crimes against humanity or other acts that fall so far outside the realm of humanity as to forfeit that very title. These critiques are put forward, instead, to disturb the notion that a trial would have been any different to the decision the US eventually took. These critiques are meant to enlighten those who believe that there is such a notion as a universal system of human rights, or international law, that would make such a trial possible. As Wyzanski puts it:

Before I come to the discussion of the legal and political questions involved, let me make it clear that nothing I may say about the Nuremberg trial should be construed as a suggestion that the individual Nuremberg defendants or others who have done grievous wrongs should be set at liberty. In my opinion there are valid reasons why several thousand Germans, including many defendants at Nuremberg, should either by death or by imprisonment be permanently removed from civilized society. If prevention, deterrence, retribution, nay even vengeance, are ever adequate motives for punitive action, then punitive action is justified against a substantial number of Germans. But the question is: Upon what theory may that action properly be taken? (Wyzanski)

With this out the way, what is the basis of the (now well known) critique of the Nuremberg trials? These hinge, twofold, on ex post facto violation of nullum crimen sine lege and victor's justice (Siegerjustiz). These need to be considered in turn.

Ex post facto/nullum crimen sine lege
The phrase "nullum crimen sine lege" means that it is impossible for their to be a crime, without a law at the time of the "offense". A judgement that goes against this principle is called "ex post facto", or after the event. This principle is, in the majority of cases, sound. It is not fair to judge someone for a crime that was retroactively made criminal. If I try and convict you for the crime of buying milk, criminalised today, on the basis of the milk you bought yesterday, this is hardly sound legal logic.

But we are not talking about buying milk. We are talking about the mass murder of millions and waging of aggressive war. It was argued, by the Nuremberg judges, that in the absence of an international authority that could have written such a criminal statute, an ex post facto ruling was acceptable because it violated the universally regarded norms of any civilized world. This was most clearly expressed in the Justices trial:

The defendants claim protection under the principle nullum crimen sine lege, though they withheld from others the benefit of that rule during the Hitler regime. Obviously the principle in question constitutes no limitation upon the power or right of the Tribunal to punish acts which can properly be held to have been violations of international law when committed. By way of illustration, we observe that C.C. Law 10, Article II, 1 (b), “War Crimes”, has by reference incorporated the rules by which war crimes are to be identified. In all such cases it remains only for the Tribunal, after the manner of the common law, to determine the content of those rules under the impact of changing conditions.

Whatever view may be held as to the nature and source of our authority under C.C. Law 10 and under common international law, the ex post facto rule, properly understood, constitutes no legal nor moral barrier to prosecution in this case.

Under written constitutions the ex post facto rule condemns statutes which define as criminal, acts committed before the law was passed, but the ex post facto rule cannot apply in the international field as it does under constitutional mandate in the domestic field. Even in the domestic field the prohibition of the rule does not apply to the decisions of common law courts, though the question at issue be novel. International law is not the product of statute for the simple reason that there is as yet no world authority empowered to enact statutes of universal application. International law is the product of multipartite treaties, conventions, judicial decisions and customs which have received international acceptance or acquiescence. It would be sheer absurdity to suggest that the ex post facto rule, as known to constitutional states, could be applied to a treaty, a custom, or a common law decision of an international tribunal, or to the international acquiescence which follows the event. To have attempted to apply the ex post facto principle to judicial decisions of common international law would have been to strangle that law at birth . . . .

As a principle of justice and fair play, the rule in question will be given full effect. As applied in the field of international law that principle requires proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught. Whether it be considered codification or substantive legislation, no person who knowingly committed the acts made punishable by C.C. Law 10 can assert that he did not know that he would be brought to account for his acts. Notice of intent to punish was repeatedly given by the only means available in international affairs, namely, the solemn warning of the governments of the States at war with Germany. (U.S.A. v. ALSTOETTER ET AL)

The question that one accustomed to relativistic thinking immediately asks, however, is: whose norms? Clearly, the "norm" that emerged to enforce this justice was not actually as big a majority as we would like to think. World War II was not an outright thrashing of one small upstart nation by the mass forces of outrage. It was, rather, a near miss for a fork in humanity's history that would have plunged ethics worldwide into a crisis of genocide and racial extermination. This near miss, therefore, is better attributed to victor's justice, rather than a transcendental disgust at the policy's of the Nazis.

Siegerjustiz
The victor's justice of the Nuremberg trials, wherein one set of rules was applied to the losers and another to the victors, is best put by Marianna Torgovnick:

The first and major Nuremberg trial, the International Military Tribunal (IMT), carefully constructed charges against the defendants to avoid the possibility that using atomic bombs against civilians could be construed as war crimes. (Torgovnick, 6)

Another example, probably made more forcefully in the fiction of Kurt Vonnegut's Slaughterhouse-Five, is the fire-bombing of Dresden. Arguments have been made that these events, which undoubtedly indiscriminately targeted civilians and should, therefore, be regarded as war crimes (despite the odious far-right's appropriation of this reasoning, it remains valid), shortened the war and prevented loss of life. But whose loss of life? Loss of Allied life. Again, the Allies did not start World War II. Neither, however, did the thousands upon thousands of civilians killed in these events. Regardless of what one wishes to believe regarding these events, the Axis powers were prosecuted, convicted and sentenced -- in many cases, to death -- for waging total war. The Allies who committed the same acts of total war were commended for preventing loss of life.

In retrospect, I believe that if these acts would have prevented the Holocaust, they could have been justified for that reason. It should probably be remembered, however, that the Allies were not fighting to stop the Holocaust. They were fighting for their freedom. The Holocaust was played down at the time and it was only afterwards the horrors of Auschwitz as the metonym for the Shoah entered the public consciousness. If you think that the atomic bombings and Dresden fire-bombings were conducted to save the victims of the extermination camps, you are sadly mistaken (particularly as the atomic bombings occurred after the surrender of Germany!)

So what am I saying?
What I'm trying to say is that the Nuremberg trials, with their logic of ex post facto judgements, is a relativistic phenomenon that relied upon justice of the victors. I cannot say that I do not think it was the right thing to do. The Nazi war crimes were the most severe of any atrocities ever committed by humankind. There is no question that they must have been held to account for their crimes and my unerring belief that the death penalty should never be used is tested to the utmost when these actions are considered. However, those who believe that the Nuremberg trials were a rock-solid pillar, a precedent, that can be hauled out and applied to anybody who commits atrocities are wrong. Nuremberg, even if it came to a just conclusion, did not achieve it by just means.

The situation with Osama Bin Laden is, therefore, different.

Firstly, if you want to use the Nuremberg precedent, which part of Nuremberg are you referring to? If it's a specific charge, which is it? Crimes against humanity? Check the definition given by the Rome Statue of the International Criminal Court:

These crimes are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings; they are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. (RSICC/C, Vol. 1, 360)

Osama Bin Laden may have wanted to be a government, or de facto authority, but was he? The wording here relates to a world pre-decentralized terrorist entities. It is formulated for a world of States, where only territorial actors can count. Demonstrating that Bin Laden was a de factor authority would be crucial in bringing a charge to light of crimes against humanity as it currently stands.

Indeed, all of the current precedents set by Nuremberg are defined in relation to States and their political leaders. This does not seem appropriate to Bin Laden.

No, instead, it seems, what people actually want when they say that Bin Laden should have been tried, as per Nuremberg, is the ability to retrospectively invent laws, based on a notion of universal human values, and to impose the death penalty. This means that, at the end of the day, the outcome is no different to an assassination.

So what do I think should have been done instead?
I believe that, fundamentally, a lot of Western values are, in principle, extremely good. I do not believe that murdering civilians is an appropriate tactic to achieve your point of view. I believe that Bin Laden should be morally damned for the campaign he fought, the slaughter of thousands of people who did not deserve what they got.

I do not believe the death penalty to be a valid punishment in any circumstance, however. Life imprisonment would have sufficed, which means that I do not believe the United States should have killed Bin Laden in their raid.

I believe that redefined notions of crimes against humanity, that can be applied to individuals, should be established as an international criminal statute. These should be put into place and used in further cases of international atrocities. I am sure this is being thought of by more knowledgeable minds of jurisprudence than my own. Bin Laden, should, therefore have been brought to trial, with similar ex post facto conditions as at Nuremberg, in consultation with the international community; possibly at The Hague. Without the international consensus, it would purely have been a desire for victor's justice, with retrospective laws.

Finally, I believe that there is some, vague semblance of truth that rests on our complicity in creating the world that created Bin Laden. In the Hegelian ethics that pervades this thinking (can we do any good, or merely avoid doing bad?), none of us is truly innocent. Every action I take in my life for my own benefit is probably to the detriment of someone else. If you want to make the Nuremberg analogy, consider the statements made by Philip Potter in the light of the Barbie trial:

In reality, Barbie and his like are the products of your [French] history. Hitler, Barbie, Eichmann, and company represent the end of the Aufklärung (century of Enlightenment) which produced four things: the Industrial Revolution, which subordinated man to the machine; the founding of the United States on a declaration of independence where liberty and equality were applied to all men -- except for blacks and Indians; the French Revolution of 1789 where liberty, brotherhood, and equality were indeed claimed by the bourgeoisie; and imperialism based on racism (Woodrow).

Consider that Bin Laden and his ilk could well have been the product of a similar culture of worldwide inequality. Does this excuse murder? No, nothing does. Understanding this, though, may help us to come to terms with the logic of terrorism for, as Gus Martin puts it:

This presumption suggests that terrorism is a priori […] irrational behaviour and that only deranged individuals […] would select terrorist violence as a strategy. Most experts agree that this blanket presumption is incorrect […] their behaviour is neither insane nor necessarily irrational (Martin, 48).

In this consideration of how economic injustice contributes towards a worldwide climate in which terrorism is fostered and thrives, we find a true parallel with Nuremberg; we are offered an opportunity for reflection. Furthermore, there is another, final parallel. In the reflection that is Guantanamo Bay, we see a direct manifestation of a justice system that presumes guilt and introduces ex post facto laws. The only difference is, this time there cannot even be a show trial.

References

  • RSICC/C, Vol. 1, cited by Guy Horton, Dying Alive - A Legal Assessment of Human Rights Violations in Burma April 2005, co-Funded by The Netherlands Ministry for Development Co-Operation. Section "12.52 Crimes against humanity", p. 201.
  • Gus Martin, Essentials of Terrorism: Concepts and Controversies (Los Angeles: Sage, 2008).
  • Marianna Torgovnick, The War Complex: World War II in Our Time (Chicago: University of Chicago Press, 2005).
  • Excerpt from U.S.A. v. ALSTOETTER ET AL. http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/alstoetter.htm [accessed 2011-05-15]
  • Alain Woodrow, "Le Pasteur Potter: 'Il sommeille en chacun de nous,' " Le Monde 11 February, 1983, cited at http://www.jewishvirtuallibrary.org/jsource/Holocaust/barbietrial.html#5 [accessed 2011-05-18].
  • Judge Charles E. Wyzanski, Jr., The Atlantic Monthly, April, 1946; "Nuremberg--A Fair Trial? Dangerous Precedent," Volume 177, No. 4 (p.66-70). http://www.mtholyoke.edu/acad/intrel/nuremb.htm [accessed 2011-05-15].