Interview Transcript: Professor Lawrence Douglas
Recording Begins
Nicole: Uh, so, can I just start asking questions?
Douglas: Absolutely.
Nicole: Perfect, I just wanted to start off asking what kind of work you’ve done with the Nuremberg Trials, and what kind of background knowledge you have about them?
Douglas: Well, my main field of scholarly work is on international war crimes trials. And Nuremberg is probably the most important example of an international war crimes trial. And I’ve written a great deal about Nuremberg, starting with this book I wrote, called “The Memory of Judgement,” which was a study of several important war crimes trials beginning with big Nuremberg.
Nicole: Alright, well, that’s fascinating. I guess, I have a lot of different questions. To start off with legacy, because I know you’ve researched a lot of these international war crimes trials, how very important was Nuremberg in setting a precedent for the rest of these trials? Like, how has Nuremberg carried into all of the other trials?
Douglas: Well I think that you can safely say that Nuremberg is the single most important precedent in the development of international criminal law. I mean, it was the first time in human history that an international tribunal adjudicated international crime. So in that regard, it’s hard to imagine kind of a more important precedent. A couple of other things that Nuremberg established that’s very very important is established the proposition that individuals can be held accountable for violations of international law up until that time the idea was that if there was a violation of international law that is would be a state that would be held responsible, then you could have something like, you know, we’re familiar with the idea of economic sanctions, that kind of thing, but Nuremberg came up with the at the time radical proposition that individuals could be now held criminally responsible for the state’s violations of international law. And that is a tremendously important precedent.
Nicole: Right, I know that a lot of people have said that Nuremberg, well, critics of the trials have said that it wasn’t necessarily a “fair” trial because of things like not allowing defense of superior order, ex post facto, tu quoque. Do you think that’s a valid stance?
Douglas: Not entirely. I mean, there are some charges about Nuremberg being 3:03 an example of victor’s justice. I’m not really all that persuaded by those arguments. You know, certainly there were problems with the trials, but things like superior order, like their refusal to permit the defense of superior orders, in my mind, was tremendous achievement of the part of the trials. Because if you permit the defense of superior orders, then suddenly you create a situation in which virtually everybody below the head of state is going to be able to evade responsibility by saying, “I was just following the orders of some superior.” Now, Nuremberg did acknowledge that superior orders could be used in mitigation of punishment but it was something that could not be used for the purposes of evading responsibility, and that’s something that strikes me as a very important innovation. The other two things that you mentioned, the business about ex post facto, that I also find, the biggest problem with ex post facto is the first charge of “waging aggressive war,” or “crimes against peace.” That, I take seriously that that had ex post facto problems. But people have also tried to use that argument to attack the third charge of “crimes against humanity,” and that I find not convincing at all. The fact that you didn’t have a, 4:45 let’s say, an international convention that recognized that “crimes against humanity” pre-existed in international law, as one person has commented, it should not have taken as a surprise to the defendants that mass murder was a crime. And then the third one you mentioned, the tu quoque, that is actually something where, they were receptive to tu quoque defense in a certain regard. I mean, if you look at for example the Admiral Doenitz’s defense, they accepted tu quoque there, so they weren’t, and you have to be careful about what you mean by tu quoque, because there are two different kinds of ways in which you can use it. One way you can say it is like, “Yes, we did do criminal things, but you did
Recording Cuts Out
Recording Resumes
Nicole: ...idealized, you know, looked at in a positive way? Or is…
Douglas: I think Nuremberg definitely has a better reputation today than it had a few decades ago. I think during the Cold War, the feeling was 5:58 that, “Well, there was this kind of effort to have this international trial, to really go anywhere, we haven’t really seen any further development in international criminal law.” I think there were more criticisms also about it. As an example, victor’s justice in particular was in Germany, the whole Nuremberg program was vehemently rejected when you go into the 1950s and 60s and 70s. And it has encountered dramatic enhancing of its reputation over the last number of years. Even in Germany now it enjoys quite a high reputation.
Nicole: Do you think… What have we learned from Nuremberg? What successes and failures, specifically, has it given us to reflect on?
Douglas: Well, you know one thing I do think that it made clear that you need some kind of a [pellet? 7:03] mechanism in place. You can’t just have the trial court as being both the court of first impression and also kind of being the final deliberator. So I think we have kind of learned from that. One of the other things that I think is important that these courts need to learn is that it’s important for courts to make visible what they’ve accomplished. The courts actually have to take kind of an aggressive role in getting their message out of what they’ve achieved. Particularly, as I’ve mentioned, these courts often function, these trials often function in ways of establishing an historical reckoning. They think they need to make that reckoning widely available. And some of the other achievements, I mean, if you look at the Yugoslavia Tribunal, the trial of Slobodan Milošević, unfortunately ended with his death before the tribunal could reach a conclusion, but this is really the first time in history in which a head of state was being tried, actively tried, for these crimes of atrocity. And if you look at the Rwanda tribunal, well there you have, it wasn’t trial, but there you have a, you know, former head of state pleading guilty to genocide. Again, you do find these kind of remarkable achievements.
Nicole: Well I think I’ve actually asked all of my specific questions. I guess I would just finish off asking if there’s anything you’d like to add?
Douglas: No, it’s, I think I’ve said already that this is, everyone has to kind of think about these international courts and particularly the International Criminal Court, the permanent institution, as a work in progress. Obviously the United States has had a, in the past an antagonistic relationship with the ICC (International Criminal Court), and one can only hope that that relationship improves over the years. It certainly has improved with the Obama administration. And you know, that we just need to bear in mind that these are works in progress.
End Recording
Nicole: Uh, so, can I just start asking questions?
Douglas: Absolutely.
Nicole: Perfect, I just wanted to start off asking what kind of work you’ve done with the Nuremberg Trials, and what kind of background knowledge you have about them?
Douglas: Well, my main field of scholarly work is on international war crimes trials. And Nuremberg is probably the most important example of an international war crimes trial. And I’ve written a great deal about Nuremberg, starting with this book I wrote, called “The Memory of Judgement,” which was a study of several important war crimes trials beginning with big Nuremberg.
Nicole: Alright, well, that’s fascinating. I guess, I have a lot of different questions. To start off with legacy, because I know you’ve researched a lot of these international war crimes trials, how very important was Nuremberg in setting a precedent for the rest of these trials? Like, how has Nuremberg carried into all of the other trials?
Douglas: Well I think that you can safely say that Nuremberg is the single most important precedent in the development of international criminal law. I mean, it was the first time in human history that an international tribunal adjudicated international crime. So in that regard, it’s hard to imagine kind of a more important precedent. A couple of other things that Nuremberg established that’s very very important is established the proposition that individuals can be held accountable for violations of international law up until that time the idea was that if there was a violation of international law that is would be a state that would be held responsible, then you could have something like, you know, we’re familiar with the idea of economic sanctions, that kind of thing, but Nuremberg came up with the at the time radical proposition that individuals could be now held criminally responsible for the state’s violations of international law. And that is a tremendously important precedent.
Nicole: Right, I know that a lot of people have said that Nuremberg, well, critics of the trials have said that it wasn’t necessarily a “fair” trial because of things like not allowing defense of superior order, ex post facto, tu quoque. Do you think that’s a valid stance?
Douglas: Not entirely. I mean, there are some charges about Nuremberg being 3:03 an example of victor’s justice. I’m not really all that persuaded by those arguments. You know, certainly there were problems with the trials, but things like superior order, like their refusal to permit the defense of superior orders, in my mind, was tremendous achievement of the part of the trials. Because if you permit the defense of superior orders, then suddenly you create a situation in which virtually everybody below the head of state is going to be able to evade responsibility by saying, “I was just following the orders of some superior.” Now, Nuremberg did acknowledge that superior orders could be used in mitigation of punishment but it was something that could not be used for the purposes of evading responsibility, and that’s something that strikes me as a very important innovation. The other two things that you mentioned, the business about ex post facto, that I also find, the biggest problem with ex post facto is the first charge of “waging aggressive war,” or “crimes against peace.” That, I take seriously that that had ex post facto problems. But people have also tried to use that argument to attack the third charge of “crimes against humanity,” and that I find not convincing at all. The fact that you didn’t have a, 4:45 let’s say, an international convention that recognized that “crimes against humanity” pre-existed in international law, as one person has commented, it should not have taken as a surprise to the defendants that mass murder was a crime. And then the third one you mentioned, the tu quoque, that is actually something where, they were receptive to tu quoque defense in a certain regard. I mean, if you look at for example the Admiral Doenitz’s defense, they accepted tu quoque there, so they weren’t, and you have to be careful about what you mean by tu quoque, because there are two different kinds of ways in which you can use it. One way you can say it is like, “Yes, we did do criminal things, but you did
Recording Cuts Out
Recording Resumes
Nicole: ...idealized, you know, looked at in a positive way? Or is…
Douglas: I think Nuremberg definitely has a better reputation today than it had a few decades ago. I think during the Cold War, the feeling was 5:58 that, “Well, there was this kind of effort to have this international trial, to really go anywhere, we haven’t really seen any further development in international criminal law.” I think there were more criticisms also about it. As an example, victor’s justice in particular was in Germany, the whole Nuremberg program was vehemently rejected when you go into the 1950s and 60s and 70s. And it has encountered dramatic enhancing of its reputation over the last number of years. Even in Germany now it enjoys quite a high reputation.
Nicole: Do you think… What have we learned from Nuremberg? What successes and failures, specifically, has it given us to reflect on?
Douglas: Well, you know one thing I do think that it made clear that you need some kind of a [pellet? 7:03] mechanism in place. You can’t just have the trial court as being both the court of first impression and also kind of being the final deliberator. So I think we have kind of learned from that. One of the other things that I think is important that these courts need to learn is that it’s important for courts to make visible what they’ve accomplished. The courts actually have to take kind of an aggressive role in getting their message out of what they’ve achieved. Particularly, as I’ve mentioned, these courts often function, these trials often function in ways of establishing an historical reckoning. They think they need to make that reckoning widely available. And some of the other achievements, I mean, if you look at the Yugoslavia Tribunal, the trial of Slobodan Milošević, unfortunately ended with his death before the tribunal could reach a conclusion, but this is really the first time in history in which a head of state was being tried, actively tried, for these crimes of atrocity. And if you look at the Rwanda tribunal, well there you have, it wasn’t trial, but there you have a, you know, former head of state pleading guilty to genocide. Again, you do find these kind of remarkable achievements.
Nicole: Well I think I’ve actually asked all of my specific questions. I guess I would just finish off asking if there’s anything you’d like to add?
Douglas: No, it’s, I think I’ve said already that this is, everyone has to kind of think about these international courts and particularly the International Criminal Court, the permanent institution, as a work in progress. Obviously the United States has had a, in the past an antagonistic relationship with the ICC (International Criminal Court), and one can only hope that that relationship improves over the years. It certainly has improved with the Obama administration. And you know, that we just need to bear in mind that these are works in progress.
End Recording