The Nuremberg Trials, which I’ve begun to research in order to better understand our history, stands as a historical milestone. As I understand it, the Trials were the product of much political and legal wrangling, the clash of different objectives as well as the merging of Anglo-American and Continental legal systems. Unsurprisingly, the novelty of the International Military Tribunal remains controversial. But the motivation underlying the Tribunal, the push for justice by a singular force that came to permeate the whole of the trial, remains an inspiration.
Part of the challenge was that “the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.” Yet, despite this, there was the noble conviction that “We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity's aspirations to do justice. Here was the notion that “here [the defendants] must be given a presumption of innocence and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.”
And who pushed for justice instead of vengeance? Who put forth the notion that we must deal with evil using our own values of justice, not the means and methods of those we oppose? It was the United States, of course. And the quotes above come from Mr. Justice Jackson’s astonishing opening statement before the International Military Tribunal.
Then and Now
Compare this to the Bush Administration policies on Guantanamo, for example – a policy that is ongoing despite President Obama’s push to close the infamous prison. A recent headline at Democracy Now!:
“Defense Secretary Robert Gates has indicated up to 100 foreign prisoners could end up jailed without trial in the US once the Guantanamo Bay prison is closed. Testifying before the Senate Appropriations Committee, Gates said, ‘What do we do with the fifty to 100—probably in that ballpark—who we cannot release and cannot try?’”
It seems to me that Justice Jackson would have been horrified by the notion of individuals who “we cannot release and cannot try,” and rightly so. The pursuit of justice is, fundamentally, the pursuit of truth. And such a pursuit cannot depend on mere intuition, or wishful thinking, or emotional outrage; it must be the result of reasoned inquiry. A useful analogy comes by way of science as it applies to our daily lives. We are confronted by a barrage of truth claims, many that directly impact the quality of our lives such as miraculous weight-loss pills and healing medical treatments. Many believers in these treatments bristle at the skeptics who doubt these claims, yet miss the point. The question, as with any truth claim, is how do we know if this pill leads to weight loss? How do we know if a given medical treatment genuinely helps us instead of hurting us? This is what the scientific method is for; to provide a framework by which claims can be tested. Hypotheses must be coherent and falsifiable (if you can’t conceive as something being proved false, it makes no sense to assign the status of “truth”), experiments must be repeatable, results must be integrated into the wider body of scientific knowledge, etc.
Similarly, the judicial process is aimed at the question of determining whether an individual is guilty of a crime or not. It rests on the accumulation of facts from documents, physical evidence, and eye-witness testimony. It begins with the presumption of innocence in part because guilt is what we’re trying to establish and assuming the very thing that we’re trying to prove is bad epistemology, but also because that is fundamental to the concept of justice and fairness. So just as we shouldn’t reasonably go on believing in facts about the natural world without them first passing through the scientific method, we should not be prepared to accept the guilt of criminals without the benefit of a judicial inquiry. This is what Jackson was getting at, despite the fact the British, French, and Russians were of the opinion that the guilt is so obvious we should just skip ahead to the executions. As a result of the trials, we gained more complete understanding of Nazi atrocities than we would have otherwise. In other words, we expanded our knowledge and understood the truth better.
With the continued support of torture and indefinite detentions, the spirit of Nuremberg weakens and the legacy of trials remains compromised. In a sense, it isn’t surprising given the Bush Administration’s deceptive, corporatist rationale for waging war in Iraq – where are the WMDs again? Where is Osama Bin Laden? But for all that I sympathize with Obama getting flak from all directions – Republican saboteurs, wishy-washy Democrats, and ideologues of every stripe – it’s disappointing that fundamental notions of justice are still being ignored. If the US, France, Russia, and Great Britain could work through enormous differences to create the framework of the International Military Tribunal in 1945, we should be able to figure out what to do with Guantanamo detainees.
Frédérik invites you to discuss this article and more at his blog, www.inkandashes.net.