IA Law Review: Legal Legacies (Nuremberg’s Legacies: A Consideration of Perspectives on the Extent of the Trials’ Significance)

By Vynateya Purimetla (’21)

The Nuremberg Trials were a series of contentious international tribunals seeking justice for Nazi war crimes and crimes against humanity during World War II. These trials undoubtedly influenced subsequent human rights law. However, there is still debate surrounding their influence on post-war global order which is why this investigation seeks to explore their specific ramifications by asking the guiding research question: 

“To what extent were the Nuremberg Trials of 1945-1946 significant in the development of the fourth Geneva Convention of 1949?”

The monograph “Germany, International Justice and the Twentieth Century” by Paul Betts is particularly significant in answering the research question because it loudly champions the orthodox view that the trials were directly significant in the development of all Geneva Conventions- especially the fourth. 

“Germany, International Justice and the Twentieth Century” History and Memory, vol. 17 nos. 1-2, pp. 45-86 by Paul Betts published in 2005.

Betts’ monograph is extremely valuable to the scope of this investigation primarily because of its content. Although Betts argues for the orthodox position, his monograph is unorthodox since it mentions the uncommon concept of symbolic legacy outweighing legal legacy which is a unique point. Furthermore, the source originates from Paul Betts, a professor of 20th Century German history at Oxford University, which gives relevance and credibility to the source due to his in-depth research revolving this investigation’s primary scope (“Professor Paul Betts”). Lastly, the source is valuable because of its purpose to convince readers of Betts’ overarching thesis that Nuremberg had a direct effect on Geneva which shows that prominent historians like Betts still believe the orthodox interpretation is strong even in 2005.

Nevertheless, the source still has some limitations primarily with its origin. Since Betts’ historical body of work mainly revolves around his orthodox Nuremberg perspective, an unbiased presentation of other perspectives will surprise his backers and even contradict his previous works- leading to a motive for bias to convince readers of his niche theses. Furthermore, Betts’ purpose is to convince readers of his orthodox stance, which leads to a further underrepresentation of contradictory evidence to further his agenda.

The most valuable source, though, is Viviane Dittrich’s excerpt “Legacies of the International Criminal Court under Construction” from journal Sicherheit Und Frieden which is relevant to the investigation because it most clearly summarizes the post-revisionist perspective that Nuremberg had a more nuanced and complicated significance on Geneva than previously thought- directly contradicting orthodox and revisionist perspectives.

“Legacies of the International Criminal Court under Construction” Sicherheit Und Frieden (S+F) / Security and Peace, vol. 31, no. 4, pp. 197-204 by Viviane Dittrich published in 2013.

Dittrich’s journal article has great value primarily in its content. Since Dittrich advocates the very rare post-revisionist perspective, her article refutes most orthodox and revisionist perspectives and provides examples that are unique in countering previous widely-held beliefs. The source is also valuable because it originates from Dittrich who is the Director of the International Nuremberg Principles Academy and has four peer-reviewed pieces on Nuremberg’s legacy which shows that even after considering many viewpoints in her career she staunchly believes in the merits of her post-revisionist take of a nuanced legacy (“Viviane Dittrich”). Lastly, the source is valuable as its purpose is to prove her post-revisionist stance, which shows the growing extent of the 2010’s movement and emphasizes the shifting role of time on historical schools of thought.

However, the source also has limitations in its bias. In content, for example, there is an underemphasis on orthodox and revisionist causes like symbolism and Tokyo in an effort to make an impactful post-revisionist stance for her backers. Also, the source originates from Sicherheit Und Frieden (S+F), a German journal whose purpose primarily focuses on peace, and is therefore reluctant to publish an article making any strong statements disavowing Nuremberg (making a revisionist argument) resulting in Dittrich’s lenient post-revisionist take.

There has been an ongoing historical debate in the post-war European history community regarding the extent of Nuremberg’s legacy. From this, a smaller discourse has emerged regarding the Nuremberg Trials’ effects on the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War. The three main stances are orthodox (claiming a direct causal effect), revisionist (claiming no clear connection or stressing the value of other causes), and post-revisionist (claiming a more nuanced connection). There are even areas of contention within each perspective that will be considered to reach the final thesis that the post-revisionist stance has more convincing points of merit. 

The orthdox view, oldest and most widely-accepted, believes that Nuremberg directly affected the adoption of the fourth Geneva Convention. The primary example is a direct legal connection between Nuremberg to Geneva. For example, conventional orthodoxists argue that the Allied victory “triggered” and “inspired” a “new chapter” in “international law” (Koh 2358)(Betts 69)(Mallard 679)(Meron 562). Bassiouni and Sadat go one step further by claiming Nuremberg not only inspired, but “directly” created Geneva because Geneva’s language was “built directly upon” principles stressed by lawyers during trial arguments (Bassiouni 60)(Sadat 175). Although this is true to an extent, this blanket attribution is dangerous as it is too general. However, other orthodox historians emphasize “moral-ethical considerations” as more influential than legal connections (Bassiouni 60). Bassiouni’s supported by historians who argue the trials “introduced novel concepts” of crimes against humanity and the ethical revulsion at these crimes “encouraged acceptance of the [UN] charter” (Betts 60)(Ferencz 777). Yet other orthodox historians emphasize that Nuremberg took on “heightened symbolic proportions” that outweighed even the previously discussed legal or moral legacy (Yingling 399). This symbolism, although important in setiment, can be dismissed because it is hard to literally attribute law to a figurative symbol. The last orthodox view emphasizes the “international precedent” Nuremberg set in erecting the “foundation” of a “new world order” (Forstchen 222)(Barak 298)(Betts 57). This point is true to an extent, but is weak as it fails to mention a direct connection to Geneva. In summary, the orthodox view that Nuremberg’s legal, moral, symbolic, and precedental legacy was so influential it directly resulted in the fourth Geneva Convention is strong in overall sentiment but lacked particular examples and connections.
The revisionist perspective, second-oldest and moderately accepted, states there are other more significant causes than Nuremberg and even argues there is no traceable link between the two at all. First, revisionists claim the Geneva Conventions had their “antecedents in General Orders No. 100″ and the Hague Conventions were primarily responsible (Baxter 61). Another historian argues that “the Conventions are basically outgrowths of earlier treaties” (Baxter 60). Both of these arguments are partially true but fail to consider that similar wordings were based on anything other than a direct precedental link.  Other revisionists argue the Conventions were actually caused by shifting “codifications of customary international law” that were unavoidable due to changing norms (Baxter 61). This view is most believable because it considers that similar wording is a result of overall changing times. The key alternative cause that most revisionist historians agree on, though, are the “monumental” Tokyo Trials that “galvanized international human rights”, and “set out to establish the rules of war” (Butany-Goyal 124)(Koh 2359)(Butany-Goyal 125). This argument is strong as the Tokyo Trials were definitely influential as they came seven months after Nuremberg. However, revisionists fail to directly contrast the two trials and prove why Tokyo was more significant than Nuremberg in the development of the fourth Geneva Convention. Some historians even go further than stating Nuremberg wasn’t most important by boldly claiming the trials were not even important at all. Such contentious revisionist historians like Ferencz and Hawkins claim “the creation of [universal] judicial institutions… is not something that can be achieved quickly or easily” and “although often cited as precedent for universal jurisdiction, the Nuremberg trials did not clearly establish” any resulting law (Ferencz 778)(Hawkins 359). This is the most feasible revisionist argument because it questions how three years was possibly not enough time between Nuremberg and Geneva for Nuremberg to take root as universal precedent. Furthermore, it also exposes the lack of a precedential legal ‘paper trail’ (intermediary legal developments between 1946 and 1949) connecting the two. From this, the no-connection revisionist wing is definitely more convincing than the other-causes wing. In summary, two primary fields emerged from the revisionist view, and although the no-connection wing was stronger, both were limited in their failure to consider nuance.

The post-revisionist stance, newest and smallest, argues all at once that perhaps Nuremberg had a sizable influence, other causes were significant as well, and it is hard to pinpoint a connection by synthesizing these three arguments into one of a more nuanced and complicated connection. Historian Dittrich summarizes this by stating that a “nuanced legacy lens enriches our understanding” of Nuremberg’s broader legacy (Dittrich 197). Although this view is modern, it is broadly appealing because it does not disavow any evidence but rather encompasses all previous arguments. Other pronounced historians like Ferencz and Bassiouni support this new argument by stating “the progress of the law is not in a straight line or political vacuum” and “we cannot infer easily” what Geneva’s provenance may be (Ferencnz 777)(Bassiouni 60). By claiming law isn’t easily traceable, the post-revisionists rebuke orthodox oversimplification of this complicated legacy. Instead, they rightly argue the impossibility of clearly connecting the two when there are countless different considerations. Although this stance is limited in its lack of a definite answer, this expansion of the scope most accurately accounts for all the other considerations during post-war Europe that could have influenced the development of Geneva. Furthermore, it solves the limitations of the orthodox and revisionist stances which naively attributed a few causes to an international code that likely had thousands of factors. For those reasons, this argument seems to be the most convincing as it considers orthodox and revisionist schools of thought and is encompassing all evidence, both supportive and contradictory.
In summary, the three main perspectives considered were the orthodox view that there is a direct connection (championed primarily by Betts) which was strong in its consideration of legal, moral, and precedental legacy but failed in its overt certainty even in the lack of an evidentiary trail. The revisionist view that other causes were more significant and the lack of a clear connection (furthered by Baxter and Butany-Goyal) was strong since it considered other causes like Tokyo, the Hague, and treaties but was weak in proving how any of these causes were more influential than Nuremberg. The orthodox perspective is stronger than the revisionist view, still, because it at least considers the presence of a connection- although incorrect about the overt extent. Finally, the post-revisionist stance furthered by Dittrich, although slightly limited in its lack of a clear answer, is most convincing because of its consolidation of all evidence. Furthermore, unlike the orthodox and revisionist angles, the post-revisionist view isn’t definite- which most mirrors the often-contradictory and nuanced evidence as well as the multitude of other factors during the post-war period. Although the Nuremberg Trials were more significant in the development of the fourth Geneva Convention than Hague, treaties, or Tokyo, its legal, moral, symbolic and precedental legacy is less absolute than conventional orthodox beliefs which is why a nuanced post-revisionist significance is most convincing in answering the research question.

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