Legalism no fetter to atrocities


On this date in 1945, the Nuremberg Trials began. They were a series of 13 trials of accused World War II German war criminals held from 1945 to 1949 in Nuremberg, Germany. The first trial, known as the International Military Tribunal, was prosecuted by the four Allied powers against the top leadership of the Nazi regime in 1945-1946. Subsequent to this tribunal, 12 other trials were conducted from 1946 to 1949. In these cases the United States served as prosecutor against a variety of governmental, military, industrial, and professional leaders associated with the Third Reich.

Because the trials represented something of greater consequence than merely holding a few individuals accountable for terrible acts, special care was taken to preserve and document the trials. As the Harvard University Nuremberg Trials Project website recounts, “The American legal presence compiled a formal record of the trials consisting of captured German government records, evidentiary material, interrogations, correspondence, memoranda, briefs, and transcripts of the trials.”

The procedural and evidentiary standards developed in the Nuremberg trial continues to have an impact on how the world deals with those accused of great crimes against humanity. As the Harvard Project describes, “The post-World War II trials of German and Japanese war criminals were established to create a standard of conduct acceptable in time of war, to try cases of atrocities against humanity, and, most importantly, to document those atrocities so that a permanent historical record would be created.”

Professor Alex Alvarez of Northern Arizona University has recently argued that Nuremberg’s lasting procedural legacy has in some ways outlived its usefulness to address modern acts of genocide. Alvarez asserts that reliance on post-facto legal remedies does little to curb acts of genocide. As he stated during a research presentation at the recent American Society of Criminology annual meeting, “Through the creation of various laws, the establishment of courts, and the prosecution of perpetrators, the international community has sought to establish the primacy of legal strategies for preventing and prosecuting genocidal outbreaks. Increasingly, it seems, we rely on the law to combat this form of collective violence. But how effective in preventing genocide can legal strategies and approaches truly be? Can we realistically depend on the rule of law to act as a deterrent to those contemplating the extermination of a population or similar kinds of atrocities?”

Alvarez’s core point seems well-reasoned. A small snapshot of present day atrocities bears out Alvarez’s grim pronouncement. According to GenocideWatch.org, many nations are the current locus of terrible inhumanity. They report 250,000 persons dead in the Sudan, 3-5 million dead in the Democratic Republic of the Congo… similar acts in Ethiopia, Uganda, Syria, Chad, Uzbekistan, Nigeria, Burma as well as probable mass killings in several other nations.

All of this goes to a larger point about deterrence — whether we are attempting to deter the Joseph Konys and Idi Amins of the world or drug dealers and burglars around the corner — threats of strong punishment are no bar to sufficiently motivated individuals. Knowing that we cannot punish our way out of bad acts, we are left with a clear, but much more complicated mandate. This mandate requires that we change fundamental things about the world and our community that prohibit the rise of villains — that we are sufficiently introspective about our choices and policies that demons can find no purchase in the first place. After all, for a man bent on murder, the abstract threat of his own demise is seldom much fetter.