The Nuremberg Military Tribunals and the Origins of International Criminal Law (review)

Jurists, legal scholars, and historians appear unified in viewing the trial of the major Nazi war criminals before the International Military Tribunal (IMT) in Nuremberg as the single most important event in the development of international criminal law. Conferences staged several years ago to coincide with the sixtieth anniversary of the trial often had a celebratory, even hagiographic quality. Law students around the globe now dutifully study the so-called "Nuremberg Principles," which insist, among other things, that "acts of state" and "superior orders" supply no defense against the charge of perpetrating international crimes.

By contrast, the twelve so-called "subsequent proceedings" undertaken by American jurists before the Nuremberg Military Tribunal (NMT) have long been considered nothing more than footnotes to the IMT—and unhappy ones at that. The trials often warrant no more than brief mention in textbooks on international criminal law and are seen to have delivered little in terms of precedent. Now, however, scholars have begun the important task of re-assessing the NMT program and rescuing it from its decades of comparative neglect. These include useful treatments of individual trials, such as Valerie Hébert's study of the High Command case, Hitler's Generals on Trial (2010), and Hilary Earl's The Nuremberg SS-Einsatzgruppen Trial, 1945-1958 (2009). What was missing in the scholarly literature, however, was an assessment of the trial program as a whole, a gap that has now been admirably filled by Kevin Jon Heller's The Nuremberg Military Tribunals and the Origins of International Criminal Law. Well-written, vigorously researched, and impressively ambitious in its scope, Heller's book makes an important case for a proposition that I take to be correct: in important respects the NMT program, more than the IMT, anticipated, if not paved the way to, more recent developments in international criminal law. Though following directly on the heels of the IMT, the NMT proceedings soon began re-orienting and transforming the jurisprudential paradigm that guided the trial of the major war criminals, delivering in its place a template for the future development of international criminal law.

This shift can be seen most clearly in the NMT's treatment of crimes against peace, the gravamen of the prosecution's case before the IMT and the offense that the Tribunal understood as the principal international crime. At first blush, the NMT appeared to enlarge the ambit of the charge. As Heller notes, the NMT condemned the Anschluss of Austria and the seizure of the Sudetenland as criminal acts, and in so doing expanded the category of crimes against peace to include both aggressive war and invasion. But despite expanding crimes against peace to include invasion, the NMT did less to build on the IMT's aggressive war paradigm and more to jettison it, shifting its prosecutorial emphases toward crimes of atrocity: extermination, genocide, systematic murder of civilian populations, and other crimes against humanity. Again, this is not to say that the IMT aggressive war paradigm vanished entirely from the subsequent proceedings. As Heller points out, in the IG-Farben Trial (no. 6), the Krupp Trial (no. 10), the Ministries Trial (a.k.a. the Wilhelmstraße Trial, no.11) and the High Command Trial (no. 12), crimes against peace remained the organizational focal point of the proceedings. Still, the shift toward focusing on crimes of atrocity can be seen clearly when one looks at the program in its entirety. Of the twelve NMT trials, crimes against peace appear as formal charges in only the four cases just listed. By contrast, crimes against humanity appear as charges in all twelve. In the IMT proceeding, crimes against humanity were treated as interstitial offenses, covering a relatively narrow range of crimes that technically could not be enfolded within the bounds of war crimes. In the proceedings before the NMT, by contrast, crimes against humanity emerge as the principal crime in the Doctors' Trial (no. 1), the Race and...