Amanda Alexander writes in this 2022 book:
Lenin at Nuremberg: Anti-Imperialism and the Juridification of Crimes against Humanity
The Nuremberg trials stand as a pivotal moment in any history of international law, international humanitarian law, international criminal law and international human rights.1 As Teitel writes, ‘the trials at Nuremberg represented a unique historical crossroads for the three legal orders that form the humanity law framework’.2 By introducing crimes
against humanity into international law, the trials are said to have contributed to the creation of a new normative order, aimed at protecting vulnerable humanity.3 For prosecuting individuals for these and other war crimes, they are presented as an example of the rationality and calm procedure of international law overcoming violence, power and the baser instincts of revenge.These accounts of international criminal or international humanitarian law relate what could be described as a liberal or Enlightenment narrative of international law. International law, in these narratives, embodies the enlightened values of rationality, legality and humanity – and the Nuremberg trials represent an important moment in the (slow) movement towards the advancement and realisation of these values….
This approach to the Nuremberg trials not only places the International Military Tribunal (IMT) in an Enlightenment narrative about international law, it also looks to the trials to tell this narrative. The pedagogical role of the Nuremberg trials, and other war crimes trials, has been noted by a number of observers.6 Such trials are expected to relate an accurate, impartial history while demonstrating enlightened values through the ‘civilised institutional drama of a trial at law’.7 Mark Osiel termed such trials ‘liberal show trials’.8
…The Nuremberg trials therefore have an important place in any account of the advancement of humanitarian, liberal values in international law. Yet, when held up against these expectations, the Nuremberg trials often seem to fall short – both as a legal institution and as an historical account. The Nuremberg trials bear the stain of victors’ justice and they stir doubts about retrospective law.9 The trials were uninspiring;10 they relied too much on documentary evidence and listened too little to the voices of victims.11 Most importantly, crimes against humanity, observers note, were oddly limited.12 Under the Charter, they had to be linked to crimes against peace or war crimes.13 As a result, the IMT told a distorted history.14
In this chapter, I suggest that the IMT falls short when assessed according to these measures because it did not just tell the expected Enlightenment narrative and it did not intend to prosecute crimes against humanity in the way we understand them now. Rather, I will argue that the way the crimes were codified and then described at the
trials shows that another narrative was also at work. This was an antiimperial narrative that drew on Marxist theory and was given a practical impetus by the Bolshevik Revolution. It spread, in a diluted form, to ‘advanced opinion’ throughout the West.15 The Marxist approach described war, even European wars, as the result and expression of
imperialism. Imperialism was an economic institution, and its depredations were depicted primarily in economic terms. Aggressive, imperialist war was, in this narrative, the worst crime – the crime that led to all the other horrors of war. An international legal regime that condoned imperialist war was, therefore, so ethically misguided that it should be changed.…There are lingering doubts about the legality of the new crimes that the IMT introduced – crimes against peace and crimes against humanity.25 Both lacked a clear pedigree in
international law……The exclusion of Allied crimes meant a partial historical account.31 The ‘peculiarity’32 of the decision to link crimes against humanity to crimes against peace, and the odd focus on aggressive war,33 meant that the prosecution had to distort the history of the persecution of the German Jews before the war, making it appear as part of the preparations for aggressive war.34 Indeed, as scholars have pointed out, the IMT did not relate the history of crimes that we now associate with the Second World War.35 It was not, in the main, a history of the Jewish Holocaust nor a record of the victims of the war. Victims’ voices were seldom heard in a trial that prioritised the probative value of
documentary evidence.36 These choices undermined the ability of the IMT to write a history that emphasised the value of humanity. They also made for a ‘boring’ trial37 that failed to produce the ‘compelling’ liberal narrative that Osiel expects war crimes trials to strive for.…”crimes against humanity, has, from the very beginning, caught the imagination of international lawyers as laying down, prima facie, a set of novel principles of law. The
provisions relating to crimes against humanity have been acclaimed as ‘a revolution in international criminal law’. Others have described it as an innovation inconsistent with international law…”…Crimes against peace were equally problematic. The UK90 and French91 delegations at the London Conference stated clearly that they did not consider aggression or crimes against peace to be part of international law.
…the initiation of a war was not deemed an international crime at the time…
…Sir David Maxwell Fyfe: “I have been approached by various Jewish organizations and should like to satisfy them if possible. I have in mind only such general treatment of the Jews as showed itself as a part of the general plan of aggression…”
…Robert Jackson: “The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities.”
…that aggressive war was criminal, that there could be unjust, unlawful wars, did entail a significant change to international law. It was, however, a justified change; it meant leaving behind an imperial era where colonisation was acceptable and acknowledging the injustice of colonial wars. This would change the international order from an unethical order to a better one. The similarity of these sentiments in US thought and Soviet literature shows that the idea of a crime against peace was not just a bizarre obsession urged by Robert Jackson. Rather it was a widespread sensibility, found in Marxist and Western anti-imperial literature, that informed the way war could be described, understood and condemned.
…This was the story, the story of aggressive, imperialist war, that was presented at the Nuremberg trials. Once the trial began, the Soviet, English and US prosecution stifled any of their doubts about crimes against peace. Together, they agreed on the legal provenance of aggression.
…Aggressive war was, the Soviets, British and Americans insisted, the central and principal crime from which the other crimes stemmed.
…it was unwavering in its efforts to fit the events of the Nazi period into an overarching story of aggressive war. Nor was this just any aggressive war that the court described – it was an aggressive colonial war, and the crimes it produced were shown to be the consequences of imperialism…
