Law and War: An American Story

Law and War: An American Story
By Peter Maguire.
New York: Columbia University Press, 2000. xiv, 446 pp

review from the kournal of american history:
The volumes under review evaluate postwar responses of North American belligerents to the problem of Nazi perpetrators. Peter Maguire seeks to dispel two myths about the Nuremberg trials: the U.S. myth of German redemption and the German myth of harsh victor's justice. U.S. "lawyer-statesmen" from Elihu Root to Henry Stimson had pursued a policy that Maguire defines as "strategic legalism": the "use of laws or legal arguments to further larger policy objectives, irrespective of facts or laws." U.S. statesmen always demanded strict standards for the conduct of warfare and for the prosecution of offenders while pursuing prosaic foreign policy goals. The U.S.-Dakota trials of the Santee-Sioux leaders in Minnesota in the 1860s were an example of "traditional . . . punitive political settlements," legitimizing failure to pay for land taken from the Santee. At the turn of the century in Geneva and the Hague, U.S. "lawyer-statesmen" advocated international legal codes, while U.S. soldiers traded atrocities with Filipino rebels. Though one general was indicted, he was not charged with murder, and his conviction brought as punishment dismissal from the service. Yet the proceedings served to justify a "civilizing" mission in the Philippines. Citing U.S. efforts during the 1920s to outlaw war altogether, Maguire states that 1944–1945 was the "best opportunity" for the "lawyer-statesmen" "to translate their ideas into practice." 1
Maguire's discomfort in reaching the conclusion that the Allies punished the guilty at the Nuremberg trials and provided a documentary record of the Nazi regime sometimes puzzles. He is outraged that Soviet judges could sit on the International Military Tribunal (IMT) bench and dwells on the killing of concentration camp guards by U.S. soldiers. He finds the IMT acquittals to be a big "surprise" but occasionally provides surprises for the reader when he cites David Irving for Hermann Göring's pre-suicide bravado. Nevertheless, the "doctor's trial" provided a set of standards for medical research involving human subjects, and the Einsatzgruppen trial showcased an "irrefutable record of Nazi atrocities." While Nuremberg proceedings against corporate executives demonstrated judicial willingness to accept the duress defense and the Hostage Case failed to protect suspected partisans under the laws of war, Maguire is satisfied that, in the Ministries case (Weizsäcker et al.), the "CEOs of the Third Reich" were convicted and sentenced both for crimes of war and the crime of waging war. 2
Maguire's uneasiness reflects his conviction that the Nuremberg trials left a "complex and mostly sensible set of . . . standards that were not upheld in the postwar era." Cold War realities brought the United States back to defending the legal and moral validity of the convictions while reducing sentences in order to lure West Germany into NATO (North Atlantic Treaty Organization). U.S. support for Pol Pot in 1979 was the nadir of "strategic legalism." Maguire perceptively understands that U.S. unwillingness to accept jurisdiction for its own transgressions undermines the legitimacy of any international court and rightly laments that human rights "only become considerations for U.S. foreign policy when they correspond with larger policy objectives, or . . . turn into public relations problems." But this is why Nuremberg is so important: international laws make it likely that future wrongdoing will create serious public relations problems for states.

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