JURIST Guest Columnist and former Nuremberg war crimes prosecutor Henry King, Jr., now at Case Western Law School, and JURIST Contributing Editor David Crane, former Chief Prosecutor of the Special Court for Sierra Leone now at Syracuse University College of Law, says that the passage of the Military Commissions Act has ironically obscured the landmark 60th anniversary of the Nuremberg war crimes judgments, where the United States took the lead in championing the international rule of law, instead of undermining it…

As the moral gloom of the world overpowers all systematic gaiety,
even so was their home of wild mirth made desolate amid the sad forest. [1]

A milestone passed quietly by on Sunday, October 1, 2006 – the 60th anniversary of the judgments rendered by the International Military Tribunal at Nuremberg against the key Nazi figures that led the world into the chaos of World War II. There was little fanfare publicly, yet it was an important milestone nonetheless. Much of the importance of that event centers on the American Chief Prosecutor, Justice Robert H. Jackson, and the legacy he left mankind – the lesson that the rule of law is more powerful than the rule of the gun.

It is right and proper that we reflect on this seminal event in legal history, an event that became the cornerstone to modern day international criminal jurisprudence. Without the international criminal trial of the key Nazi leaders then, much that has been done to date would not have been contemplated today.

With the beast of impunity ravenously nibbling around the periphery of civilization, the steel core of humanity to face down this beast was forged at Nuremberg, largely through the efforts of Justice Jackson and the many brave men and women who encountered numerous hardships and challenges to investigate, indict and try those men who turned the entire world upside down. Then, as now, the world was reeling with the horror of atrocity. Stung by horrific events, the world faced the beast and impunity and took it down in 1945-1946. The rule of law closed the book on World War II, and the United States led most of the way.

Today, the world is essentially again at war. Civilians are the target of choice for those who would do violence to advance their cause or intimidate their opposition. The United States is once again in the lead. However, the Military Commissions Act of 2006, passed by the US Congress just one day short of the 60th anniversary of the judgments delivered in Nuremberg, and signed into law by President Bush on October 17, shows us that the United States has chosen a different path from the one it took after World War II. Then it was the high road of moral leadership, now it is the low road heading towards the dismal swamp of the loss of moral authority internationally. The United States has become what it had fought so hard against in World War II: an outlaw or, as one international politician stated recently, “the world’s thug”, abandoning long cherished values for the sake of expediency. Whether that is true or not does not matter, the fact that it resonated somewhat is indeed troublesome.

The Military Commissions Act itself contains questionable provisions that violate our constitutional arrangements of separation of powers and, arguably, violations of the laws and customs of armed conflict. The stepping away of these legal principles and the loss of our moral high ground is the ultimate challenge to the legacy of Nuremberg so carefully laid down by the principled leadership of Justice Jackson.

With this loss of moral leadership the hard work of a decade of modern international jurisprudence is threatened by politics and a questionable unilateral withdrawal of the world’s only superpower from the norms of international law. With the echo of “the rules have changed” ringing in our ears, America enters the 21st Century under a dark and ominous cloud. The law has been twisted to ensure a type of amnesty for past war crimes and crimes against humanity committed by Americans in the “war on terror”, as well as ones that might be committed in the future. Additionally, the role of our courts, a co-equal branch of government, has been carved out of most of the process. Regardless of its constitutionality, the appearance of unfairness is there for the whole world to see.

It would sadden Justice Jackson, and others who were at Nuremberg, to see their government pressing so hard for torture, loss of habeas corpus relief, secret and long term unaccounted for detention, and no judicial involvement in a very questionable legal process. Their hard earned legacy was to try those who committed such acts above.

The rules have not changed. Leadership and action under the shield and banner of the law is our ultimate weapon, one which has helped us defeat tyranny for a century. The dark and thunderous storm of the passage and entry into law of the Military Commissions Act of 2006 will drown out the clear and resonant voice of the legacy of Nuremberg. It is a tree that has fallen in the woods, its 60th anniversary unheard and unmentioned by an administration lost in a dismal swamp of questionable moral principles. General of the Army George C. Marshall said about warfare: "It is not enough to fight. It is the spirit which we bring to the fight that decides the issue. It is the morale that wins the victory." [2]

Notes

1. Nathaniel Hawthorne, The Maypole of Merrymount, 1836

2. George C. Marshall, Military Review, Oct. 1948

Henry T. King, Jr. is a former prosecutor at the Nuremberg Trials, 1945-46, and U.S. Director of the Canada-U.S. Law Institute and Professor of Law at Case Western Reserve University School of Law.

David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone, 2002-2005. He is a former paratrooper and judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years.
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