Peter Maguire.
Law and War: An American Story.
New York: Columbia University Press, 2000. xii + 290 pp. Notes,
bibliography, index. $30.00 (cloth), ISBN 0-231-12050-8 .
Reviewed by:
Jonathan Lurie , Rutgers University, Newark.
Published by:
H-Law
(July, 2001)
The Trials
of War
Law and War
is a fascinating, occasionally flawed and frustrating, but ultimately
successful work that is well worth reading. Moreover, as we await and
anticipate the impending war crimes trial of Slobodan Milosevic, Peter
Maguire's work is especially timely. Although much of the book focuses on
the Nuremberg trials, Maguire, who has taught on this subject at Columbia
University and Bard College and was historical advisor to the documentary
"Nuremberg: A Courtroom Drama," quite properly places this topic in a
broader context.
The resulting account of "law and war" focuses on four
preludes to Nuremberg: our Civil War; the virtual destruction, if not
elimination, of Native American society; the Philippine insurrection; and
World War I. Maguire contends, I believe correctly, that unless one
understands how American policy towards law and war was shaped and
reshaped by these four developments, it is impossible to grasp the
ultimate significance of the Nuremberg trials AND their implications
concerning future American policy, for better or for worse. Those who feel
confident about U.S. policy as we head into the latest round of
international war crimes trials, aptly described by Yale Law Professor
Ruth Wedgwood as "a growth industry," ought to read Maguire's book and
carefully ponder his conclusions.[1] Maguire argues that the lessons of
Nuremberg "remain unclear" in part because "what that name represents is
really a series of contradictory trials that lead to no single, simple
conclusion" (p. 5). They represent a telling example of "the storm where
war, law and politics swirl and oscillate in a constant state of flux." As
with much of our history, the Nuremberg Trials reflected a real "tension
between America's much-vaunted ethical and legal principles and its
practical policy interests" (pp. 5-6). Moreover, American history
demonstrates an inability and/or disinclination to make war with a common
set of expectations and procedures. Thus we fought the Civil War, the
Indian Wars, and the Philippine insurrection with very different tactics
and perceptions of our opponents. Denouncing some opponents as "savages"
or "barbarians," we made war according to different sets of rules,
depending on who our adversaries were. Treaties ending hostilities with
England were one thing, but solemn promises made to Indians were quite
another. Opponents in Cuba were not equated with Phillipino natives
clothing their insurrection in the rhetoric of a quest for independence.
In the early 20th century, even as the United States
repressed this "insurrection" with a brutality still noteworthy, it
strongly endorsed new codes for international law, as long as they did not
conflict with American interests. This duality was not unique to the
United States, but was reflected by European nations who fought wars
against one another with very different rules than those applied in their
colonial wars. The ability to justify such differences concealed in such
phrases as "manifest destiny," or the views associated with John Fiske,
Josiah Strong, or Alfred Thayer Mahan, resulted in a new tendency to use
law and war as a political tool "like any other." What could be justified
legally did not have to be justified morally (p. 53). In addition to this
duality, Maguire notes a third practice established well before World War
II, one he labels "strategic legalism." As applied to war crimes, the term
referred to "post trial, non judicial means to further reduce already
lenient sentences. In other words, once the public had been served its
'justice,' the sentences were quietly reduced behind the scenes" (p. 9).
Maguire links conduct based upon these three tendencies to
a number of Wall-Street-trained lawyers who held high diplomatic posts
between 1896 and 1953. Such names as Elihu Root, Robert Lansing, Henry
Stimson, John J. McCloy, and John Foster Dulles figure prominently in his
narrative. As Secretaries of State, Root and Lansing had experienced no
difficulty separating morality from policy. "Justice," claimed Lansing,
"is secondary. Might is primary" (p. 78). At the conclusion of what had
been, thus far, the bloodiest war in the 20th century, Lansing opposed a
harsh punitive policy towards Germany, on the grounds that it "might also
lead to a breakdown of authority that would hinder 'the resistance to
Bolshevism'" (p. 78). Moreover, even though the "Young Turks" virtually
exterminated more than a million Armenians, the United States had been
conspicuous by its absence from the joint British-French-Russian
denunciation of such atrocities. And whereas post-World War I diplomatic
efforts employed rhetoric that condemned recourse to war, and renounced it
as an instrument of national policy, the reality was totally different, as
citizens in Ethiopia, Manchuria, and Czechoslovakia could well verify.
Maguire shows how problematic the path towards the
Nuremberg trials was. It represented a trail riddled with inconsistencies.
A number of American soldiers who liberated the Nazi death camps committed
"war crimes," in that they permitted or assisted in the torture and
killing of a number of German workers or staff at the hands of
understandably vengeful inmates now liberated. They were not punished. The
Russian brutalities in Poland and Eastern Europe could not be a subject
for the international tribunal, even though there was no doubt concerning
the viciousness of Soviet conduct. Nor was the American fire bombing of
Tokyo, an incident that killed between 90,000 and 100,000 civilians, to be
questioned, even though General Curtis LeMay noted that "we scorched and
boiled and baked to death more people in Tokyo on the night of 9-10 March
than went up in vapor at Hiroshima and Nagasaki combined" (p. 102). Above
all, there remained the question of a victor's "justice" as opposed to a
winner's "vengeance." Which of these two alternatives best described
Nuremberg?
Justice Robert H. Jackson, on temporary leave from the U.S.
Supreme Court to serve as Chief Prosecutor for the first Nuremberg Trials,
stated that for the allies to "stay the hand of vengeance and voluntarily
submit their captive enemies to the judgement of law is one of the most
significant tributes that Power has ever paid to Reason" (p. 124). It
could also be considered, Jackson conceded, as victors dealing with the
vanquished. Almost half a century after Jackson spoke, a survivor of Nazi
horrors, New York Times editor Max Frankel, insisted that at
Nuremberg, "the winners were producing a false image of justice, a theatre
of the absurd...." Such proceedings were in fact "a retroactive
jurisprudence" that would surely be unconstitutional in an American
court.[2] Indeed, the German defendants were quick to point to Allied
conduct during the war that paralleled their own. Had Admiral Karl Doenitz,
for example, committed war crimes in ordering his submarines neither to
give advance warning of a ship's imminent destruction, nor rescue
survivors? Not according to American Admiral Chester Nimitz and the
British Admiralty. Both conceded that "they too had waged unrestricted
submarine warfare" (p. 124). Indeed it was difficult for the British to
condemn the validity of Doenitz's actions, as they had done exactly the
same thing. After sinking the famous German battleship
Bismarck
in 1941, the British ships deliberately left most of the
Bismarck's
crew to drown in the Atlantic.
Although Maguire does not discuss the point, perhaps it may
have been lingering doubts concerning the very legitimacy of their actions
that led the International Military Tribunal (IMT) to be what he describes
as "very conservative in applying the hotly debated conspiracy and
aggression charges" (p. 129). The judges did indeed sentence twelve
representatives of the Nazi leadership to death, but in terms of
reeducation, reform and overall social engineering--all goals of the IMT
architects--they were "less successful." Maguire notes the lingering
German emphasis on the legal flaws inherent in the IMT trials, rather than
on the need to reeducate an entire nation. He devotes considerable space
to a fascinating analysis of contemporary German reaction to them.
Although he does not explore this theme in any great detail, it would have
been interesting to compare Japanese reaction to their equivalent war
crimes trials with that of Germany. Maguire is far more critical of
General MacArthur's conduct of the Yamashita and Homma war crimes trials.
Maguire cites a number of differences between the German
and Japanese proceedings. In contrast to Nuremberg, MacArthur himself
selected the judges, none of whom was a lawyer. Moreover, the Japanese
tribunal was not bound by usual rules of evidence. Again, in marked
contrast to Nuremberg, two of the resulting death sentences were reviewed
by the United States Supreme Court. That the Court affirmed these verdicts
is not surprising. But, as Maguire points out, the vigorous dissents from
Justices Frank Murphy and Wiley B. Rutledge did "lasting damage to the
reputation of the Yamashita case." Ultimately, Maguire concludes, the IMT
at Nuremberg has received (as it deserved) much better treatment from
history than the MacArthur trials did. Those trials represented "a
throwback to traditional, punitive political justice" (p. 135). Although
its level of success can be debated, Maguire believes that undoubtedly the
IMT procedures and resulting decisions went beyond this.
The best part of Maguire's study is his persuasive
narrative of and explanation for the ultimate fate of the vast majority of
Nuremberg defendants--release from confinement and pardon. He shows how
American policy vacillated from the righteous rhetoric of Robert H.
Jackson to the ultimate embrace and rearming of West Germany, all because
of Cold War fears that dominated American foreign policy from 1948 to
1958. Indeed, he implies, little is left of the IMT war crimes Nuremberg
trials but nostalgia. By the late 1950s the Allies released their last
convicted war criminals. A High Commissioner to Germany such as John J.
McCloy--another Wall-Street-trained attorney in the tradition of Elihu
Root and Robert Lansing--well reflected the new Cold War mentality. In
1942, at the time of the disgraceful internment of Japanese Americans,
McCloy had dismissed the U.S. Constitution as "just a scrap of paper" (p.
224). He later recalled that "I never considered myself a politician, but
rather a lawyer, so the question I asked myself in the various jobs I had
was 'What should we do to solve the problem at hand'"? (pp. 380-381). If
the problem was how to rearm and realign West Germany with the United
States, the continued imprisonment of German war criminals had to cease.
And it did.
Maguire's analysis of the Nuremberg trials is marred by
some frustrating errors and omissions. He mentioned that on November 6,
1946, the IMT sentenced twelve convicted defendants to death, and further
states that (as Hitler, Himmler, and Goebbels had also done) Goering
cheated the hangman. Maguire than adds that on October 16, "the other ten
convicts" were hanged (p. 130). Nowhere does he explain that one of the
twelve, Martin Bormann, was tried in absentia. Bormann disappeared during
the final collapse of Nazi Germany and has not been located to this day.
Also, Maguire's treatment of "war crimes" during the Civil War would have
been strengthened by integrating Phillip Shaw Paludan's haunting and
disturbing book Victims: A True Story of the Civil War into his
analysis.[3.] Moreover, the book could use some judicious editing and
careful proof reading; e.g., "Thirty years War (1648-1648)" Finally, a
number of the book's extensive endnotes should have been integrated into
the text. Better yet, Columbia University Press should have placed the
footnotes on each page.
None of these criticisms seriously detracts from the goal
of Maguire's study: to explore and chronicle the vast gaps between the
rhetoric and reality of American policy vis-a-vis war crimes throughout
our history. This he has accomplished very well. Ultimately, he writes,
"the time has come to reconsider the legacy of the Nuremberg trials as
more of an anomaly than a paradigm" (p. 289). As we anticipate further war
crime trials, Maguire's words ring true with a disturbing resonance:
"Lurching from global crisis to global crisis, we live in an age when
strategic, much less moral, doctrines have been replaced by psychobabble,
public opinion polls, and that great arbiter of justice, CNN" (p. 289).
Given the accuracy of his point, one wonders how significant and lasting
future war crimes trials can be. Professor Jonathan Bush observes that,
with the end of the cold war in the early 1990s, "what was most troubling"
about the "international community" has been the fact that "it overvalued
what trials can do and completely missed the point of what Nuremberg did
and didn't do" (p. 289). Maguire's book is an effective antidote for this
condition.
Notes
[1]. Quoted in The New York Times, July 1, 2001, at
8.
[2]. The New York Times Magazine, May 7, 1995, at
48-49.
[3]. Phillip Shaw Paludan, Victims: A True Story of the
Civil War (Knoxville: University of Tennessee Press, 1981).
Library of Congress
Call Number: K5301 .M34 2000
Subjects:
* War crimes
* War (International law)
* Nuremberg War Crime Trials, Nuremberg, Germany, 1946-1949
* United States -- Foreign relations -- 20th century
Citation: Jonathan Lurie . "Review of Peter Maguire, Law
and War: An American Story," H-Law, H-Net Reviews, July, 2001. URL:
http://www.h-net.org/reviews/showrev.cgi?path=26823997212359.
“Law and War is a
fine work of history written with a quiet, illuminating passion…[I]t
should have its clearly intended effect of inducing among Americans a
measure of self-reflection about our commitment to the rule of law and the
triumph of common morality in international affairs.”
Tom Farer, review of
Law and War: An American Story, by Joseph M. Lynch, The American
Journal of International Law 96 (April 2002): 493-498.