Sovereignty in the Nuremberg Charter

       

            For the past few weeks of study, we have learned about the most famous genocide in history, its precedent, logistics, testimonies, legacies and aftermath (just one of the many events a modern curriculum might cover). Our understanding of the Holocaust is one with the perspective of nearly 70 years and over 300 wars since the Nuremberg Trials concluded in 1946. The framers of Nuremberg, with social conviction and no precedent, considered the trials to be the reinstatement of world order after the criminalization of aggressive war. To me and my peers, Nuremberg’s hallmark achievement is the definition and accusation of crimes against humanity, a crime impervious to the claim of sovereignty. I, a member of the modern audience, am most impressed by the Nuremberg prosecutors’ dismissal of genocide as a militaristic tactic. However, France, Britain, America, and the Soviet Union, all still recovering from the devastation of World War II, wanted peace and rehabilitation for Europe. The expectation that Nuremberg might put an end to warfare led the framers to prioritize the criminalization of aggressive war or Crimes Against Peace – “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing” – in their Nuremberg Charter. In criminalizing aggression, the charter buttressed state sovereignty as a loophole for individual actors. Whereas later articles of the charter (7 & 8) call for personal accountability regarding the ordering and carrying out of the functions of genocide, article 6.a harbors individuals as pawns of a sovereign government, above the laws because it is the law. Article 6.c recognizes that domestic populations are most often victim to its own government’s crimes against humanity and criminalizes these national affairs, thereby poking at state sovereignty. Contradiction between articles 6.c, 7, and 8 and article 6.a undermines the ability of either position to establish a legacy of either intervention and prosecution or noninterference following the Nuremberg Trials and its subsequent charter.
          As nation-states were first drawn out in Europe, in close quarters and still infantile, sovereignty guaranteed statehood to the same degree as a neighbor. Within a nation’s borders, there was one ultimate law of the land, that of the ruler. The act of state, which quickly followed, then exempted any sovereign actor from prosecution on the grounds of crime against another state. International law said that individuals, as an extension of their government, could not be tried for a crime by another state as such procedure amounts to the charging of one sovereign by another. When first conceived, sovereignty was also meant to establish the jurisdiction of state law over natural, moral law - though, put more transparently, the doctrine of sovereignty secured government dominance over the influence of the church. Thus nothing, not even religious or rational values, eclipsed the word of the government. If the sovereign is the one true framer of law, he is also the most untouchable. The only requisite of domestic law is that it is according to the sovereign’s wishes. In this early nation-state, a lawmaker is not constrained by any rule but the one he assigns to himself. These findings, working parallel to the act of state, mean the sovereign is held neither to his own nor to international law, under the guise of statehood.
           This extension of sovereignty to individuals is exactly what the tribunal proudly denied in its prosecution of Nazi Heads of State, military leaders, and health officials from government organizations without considering the excuse of the chain of command. Article 7 of the Nuremberg Charter – “The official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment” – opposes sovereignty as untouchable and introduces an even higher form of law. And again in Article 8 – “The fact that the defendant acted pursuant to an order of his Government or of a superior shall not free him from responsibility…” – the charter criminalizes acts ordered by one’s government, a sort of domestic law themselves, thereby challenging sovereign rule as the foremost code. Article 6.c, which outlaws crimes against a population by its own government “whether or not in violation of the domestic law of the country where perpetrated,” is the third and final example of the Nuremberg Charter’s rejection of sovereignty in an age of moral and political obligation to humanity. Such a clause poses a clear threat to sovereignty as it criminalizes the very code of a nation-state. This is perhaps the boldest and most controversial liberty of the prosecutors at Nuremberg. But the Holocaust introduced to the world horrors so unbelievable, it became the responsibility of the tribunal to set a precedent of its own – an acute sentencing for those responsible for genocide – before the unimaginable became progressive or tactical. The observance of the doctrine of the act-of-state, together with the chain-of-command argument, would mean no one could be held responsible for the atrocities of the Holocaust. The act-of-state would protect those sovereign lawmakers, the superiors, and those arguing they were simply following superior orders, the subjects, would too be exempt. This was not the time to hold on to traditional definitions of sovereignty or of government.
           Though the tribunal and its charter approached a comprehensive and critical response to the bureaucratic, state-sanctioned crime, justice at Nuremberg would’ve required a critique of nation-states that the Western world could not accept. This hesitation is actualized in Article 6.a which criminalizes waging aggressive war, whose definition includes the violation of sovereignty. As the Holocaust expanded international law to acknowledge the criminal state, which is still sovereign so long as it does not wage war with another nation, the Nuremberg Charter becomes contradictory to itself. The tribunal acknowledges the sovereignty of a corrupt, illegal, degenerate government within its own borders but will try that same state devastating war, which the prosecutors acknowledge is a crime whose victims and perpetrators share a nationality.
           This contradiction, as with any contradiction, muddles the forcefulness of the British, American, French and Soviet blasting of Hitler’s Administration and renders the charter itself mistaken, not the best circumstances for a legacy. It’s difficult to figure why the Holocaust became a model for modern genocide rather than the anomoly of warfare, but I imagine it has something to do with the tribunal’s unwillingness to critique what philosophies, on both sides of the battle, protect the world’s foremost military and political powers.