The Logic of Nuremberg

Mahmood Mamdani

In March, General Bosco Ntaganda, the ‘Terminator’, former chief of military operations for the Union of Congolese Patriots (UPC), wanted for war crimes and crimes against humanity, voluntarily surrendered himself at the US embassy in Kigali and was flown to the headquarters of the International Criminal Court at The Hague. The chargesheet included accusations of murder, rape, sexual slavery, persecution and pillage, offences documented in detail by Human Rights Watch over the last ten years. Ntaganda’s trial, scheduled for next year, will follow that of Thomas Lubanga, the UPC’s president, who was convicted in 2012. There seems to be no question about the justice of the proceedings. At the same time, however, the UN Security Council has been pursuing a strategy of armed intervention in eastern Congo, using troops from South Africa and Tanzania, against the rebel groups Ntaganda and others commanded. Both initiatives – the prosecution of rebel leaders for war crimes and military operations against their personnel – are taking place when peace talks between government and rebels are well underway. This, then, is a co-ordinated military and judicial solution for what is also, and fundamentally, a political problem. Inevitably with such solutions, the winners take all.

Where mass violence is involved, there is always a choice between the judicial approach, enforced by the victors or by external powers, which tends to exclude the losing parties from any political settlement, and negotiation, which necessarily involves all parties in discussions about the future, whatever the crimes they have committed. After the Cold War, our response to mass violence has largely been determined by the model of Nuremberg: in Rwanda or Sierra Leone, Congo or Sudan, international criminal trials are the preferred response. The problem here is that mass violence isn’t just a criminal matter, since the criminal acts it involves have political repercussions.

This is not to say that no one should be held responsible for violence, merely that it is sometimes preferable to suspend the question of criminal responsibility until the political problem that frames it has been addressed. The clearest alternative to the Nuremberg model that has emerged since the trials concluded in 1949 is the complex set of negotiations known as the Convention for a Democratic South Africa (Codesa), which brought an end to apartheid in the 1990s. (It’s worth bearing in mind that D.F. Malan’s National Party embarked on its 45-year racialist experiment in South Africa while the Nuremberg courts were still in session.)

Contemporary discourse on human rights is silent about the end of apartheid. The tendency is to reduce this remarkable development to the single, exceptional personality of Nelson Mandela. The Truth and Reconciliation Commission is lionised but Codesa is largely forgotten, and Africa’s abiding problem – violent civil war – is said to require a different solution: the atrocities committed are so extreme, the argument goes, that punishment must come before political reform. Nuremberg-style criminal justice is the only permissible approach. But there are lessons to be learned from Codesa, and its language of compromise and pragmatism, for present-day conflicts in Africa.

Nuremberg was the result of a debate among the victorious powers on how to deal with the vanquished. Churchill argued that the Nazis had forfeited any right to due process and should be summarily shot. Henry Morgenthau, the US Treasury secretary and a close friend of Roosevelt, agreed; he went further and said that Germany’s industries should be dismantled so that it would never rise again as a world power. Henry Stimson, Roosevelt’s war secretary, took a different view. So did Robert Jackson, a Supreme Court justice, though Jackson was clear that ‘you must put no man on trial under forms of a judicial proceeding if you are not willing to see him freed if not proven guilty … the world yields no respect for courts that are organised merely to convict.’ Truman was impressed by Jackson’s speech and three weeks later appointed him as Nuremberg’s chief prosecutor.

The credibility of Nuremberg was based on its claim to due process. For their part, the accused preferred to be tried by the US than by anyone else. They expected softer treatment from Americans partly because the Americans had for the most part enjoyed a grandstand view of the war, and partly because they were likely to be allies of Germany in the coming Cold War. The trials also need to be understood as a symbolic and performative spectacle. For Washington, Nuremberg was an opportunity to inaugurate the new world order by showcasing the way a civilised liberal state conducts its affairs. With the air full of cries for revenge, Jackson told his audience at Church House in London: ‘A fair trial for every defendant. A competent attorney for every defendant.’

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