[Prefatory Note: ‘Can ‘Victors’ Justice be Just?’ was the rhetorical question I asked myself as I first read the Nuremberg Judgment as a law student in the 1950s, and even more so as a young law teacher I stumbled across the later Tokyo Judgment a few years later, which contained the famous (in Japan) long dissent of the Indian judge, Radhabinod Pal. The back story intrigued me explaining why those who constructed the Japanese war crimes tribunal at least made the panel of judges appear less like a victors’ show trial than what took place in Germany, and yet outside of Japan evoked less interest because of Justice Pal’s heresy, fidelity to the integrity of the rule of law in the aftermath of a major war.]
At first glance, it may seem perverse to link Hiroshima and Nuremberg, not as flowing from opposite impulses dominant among the victors in World War II, but as emerging from the same amoral cast of political sensibility. Yet after the passage of 77 years, it seems more relevant to insist that dropping atomic bombs on cities filled with ordinary people coupled with the moral hubris involved in granting impunity to such acts on the very days that these weapons of indiscriminate mass destruction were exploded offers insight into the way in which the weaponry has been almost ‘normalized’ for the winners and a few others ever since.
Would we be prudently trembling now if in 1945 the winners had displayed at least moral sensitivity to the irony of prosecuting the losers on the very days during which the winners perpetrated the worst and most consequential international crime of the entire war?
“If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” so said Robert H. Jackson, Chief U.S. Prosecutor at Nuremberg. Such noble words have had no echo in the corridors of power, wearily recited for decades by those of us committed to the emergence of a world in which these weapons have been forever abolished. As it is, we have every reason to believe that those with the authority would repeat the double move of exempting themselves from accountability while self-righteously punishing those experiencing the unleashed fury of nuclearism. The marked differences between 1945 and 202? being the planetary magnitude of the harm done by the use of such weapons and the probable post-war inability to identify ‘a winner.’ The question left open is whether the losers in such a struggle would go on fighting to win the most pyric victory ever or might at last, even if too late, seek the survival of the human species treated as a collective unity. I describe below my own belated reckoning with this disturbing, unacknowledged linkage.
It was only recently that I realized that the 1945 signing of the London Agreement by the U.S., Soviet Union, France, and the UK arranging the establishment of a tribunal in Nuremberg charged with prosecuting major Nazi war criminals occurred on August 8, 1945, that is, wedged in between the days when the atomic bombs were dropped. A parallel tribunal in Tokyo was set up to try Japanese war crimes some months later. It has been often observed by independent commentators, especially in recent years, that these initiatives were so one-sided as to stretch the meaning of criminal law beyond recognition. The most telling sign of a legitimate legal process is the equal treatment of equals. Yet inequality pervaded the structure, procedures, and outcomes of these self-righteous tribunals, from the selection of the judges to impunity for those guilty of war crimes on the winning side. Despite such fundamental inequalities there are few who would doubt that the evidence presented at Nuremberg and Tokyo clearly documented despicable forms of criminality were carefully shown to be work of the indicted Germans and Japanese defendants. What became somewhat controversial about the trials at the time was the failure to inquire into the violations of international criminal law by the winning side, which is why these tribunals, however conscientious their work, have been derided over the years as glaring instances of ‘victors’ justice.’
My interest in the connections between Hiroshima and Nuremberg is somewhat different than mounting another critique. I find the insensitivity of such a high profile signing of this agreement on August 8th establishing the Nuremberg Tribunal is appalling. It occurred during the very days of the atomic bombings, arguably the worst crime of World War II at least on a par with the Holocaust. It is more than insensitivity, it is moral numbness of such depth as to prepare political actors, whether states, empire, leaders, or simply ‘realists’ to embrace past crimes and commit future crimes. It best explains such features of evolving world order as a geopolitical right of exception at the UN by way of the veto and impunity with respect to accountability procedures. In effect, the UN is designed quite literally to give assurances that the most dangerous states, as of 1945, are jurisprudentially protected forever from any adverse Security Council decision as to criminal acts, at least within the UN System.
What is this slightly disguised feature of legality and legitimacy conveying to a curious observer? That law and accountability are relevant for propaganda and punishment against Great Power adversaries, that the wrongs of victors in major wars are beyond scrutiny while the same level of wrongdoing by the losers will be punished harshly. In effect, the vanquished and weak are to be judged in what amounts to ‘show trials’ because of the core failure to treat equals equally, purging geopolitics from the annals of international criminal justice.
There is yet something else to reflect upon. If August 8th had been a different day of infamy because an English or American city had been targeted by a German atomic bomb and yet Germany still lost the war, the act and the weapon would have been criminalized at Nuremberg and by subsequent international actions. We might not be still living under the storm clouds cast by this weaponry if the perpetrators of those dreadful events of August 6th and 9th had been the losers in World War II, which makes the rightly celebrated defeat of fascism on balance a somewhat questionable long-term victory for humanity.
77 years later it seems worth pondering the costs of continuing to allow this long repressed relationship between Hiroshima and Nuremberg to color our understanding of good and evil in global settings. The recent irresponsible heightening of geopolitical tensions with Russia and China should alert us to the relevance of this still unacknowledged legacy of how the end of World War II was manipulated to assure that the most powerful states would go on preparing for ever more destructive wars
until the end of time, or more likely, the end of the human species.
Global Justice in the 21st Century 