It was interesting to watch the characters figure out how to establish a legal basis to prosecute the Nazis. You quite literally saw the court being constructed from wartime reunions. I was particularly struck by a scene early on where someone asks what laws the Nazis broke in carrying out the Holocaust. There’s a pause, and someone remarks that crimes perpetuated during a war had never really been considered crimes. Eventually someone says that they broke the law when they invaded other countries. This being the primary basis for the prosecution was really fascinating. Obviously, you would want international law to prosecute war crimes regardless of whether they had been committed in the context of a “just” war. To my understanding, the Nuremberg prosecution also left open the question of what to do with crimes committed against one’s own citizens. Relatedly, I also don’t think the word “genocide” was ever used. The term was coined by Raphael Lemkin a few years prior but was clearly not yet in the zeitgeist. Nuremberg also predates the Genocide Convention, which has been used in more recent prosecution of war crimes and has filled some of the holes in the Nuremberg precedents.
I also think it’s interesting to think about the idea of legitimacy of an international prosecution in today’s legal context. The Nuremberg prosecutors were very, very careful to ensure that their case was perceived as legitimate. I see two ways they did this. First, they tried to adhere to existing legal standards in the well-respected traditions of the four countries. But second, and perhaps most importantly, they had Nazis in their custody and could do whatever they wanted with them (think of the scene where Alec Baldwin challenges the Soviets to host their own trial).
Today, we have international courts and juries that try to proceed thoughtfully and carefully in accordance with codified international law. But they’re not widely seen as legitimate. The U.S. has simply decided not to “opt in” to the International Criminal Court, which means decrees like the arrest warrant for Benjamin Netanyahu have no bearing. It’s hard to imagine what would even happen if one of the ICC signatories, like France or the UK, actually decided to carry out the warrant. Maybe Netanyahu would actually be tried and sentenced; probably, Israel and the United States would protest furiously and call it a sham trial and attempt to smear the ICC every which way. On one hand, this is exactly the kind of outcome Nuremberg sought to avoid. On the other, isn’t that just a consequence of carrying out the law? And what does that do to the historical memory of crimes against humanity?
