'The Nuremberg Military Tribunals and the Origins of International Criminal Law'

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THE NUREMBERG MILITARY TRIBUNALS AND THE ORIGINS OF INTERNATIONAL CRIMINAL LAW BY KEVIN JON HEELER (OXFORD, UK: OXFORD UNIVERSITY PRESS, 2011) 509 PAGES. PRICE US$135.00 (HARDBACK) ISBN 9780199554317.

BEYOND VICTOR'S JUSTICE? THE TOKYO WAR CRIMES TRIAL REVISITED EDITED BY YUKI TANAKA, TIM MCCORMACK AND GERRY SIMPSON (LEIDEN, NETHERLANDS: MARTINUS NIJHOFF, 2011) 402 PAGES. PRICE US$192.00 (HARDBACK) ISBN 9789004203037.

'We want historians to confirm our belief that the present rests upon profound intentions and immutable necessities. But the true historical sense confirms our existence among countless lost events, without a landmark or a point of reference.'

--Michel Foucault, 'Nietzsche, Genealogy, History' (1)

At a time when the field of international criminal law is moving beyond its adolescence into a greater sense of existential comfort, focusing on closure mechanisms for the ad hoc tribunals and on the 10 year anniversary of the International Criminal Court, two recent publications revisit what they take to be neglected institutional sites at the origins of the field. Kevin Jon Heller's The Nuremberg Military Tribunals and the Origins of International Criminal Law makes this bold claim within his title: a claim that anchors the text as a kind of origin narrative rather than merely a descriptive history of this corner of what might be called 'tribunal studies'. Yuki Tanaka, Tim McCormack and Gerry Simpson's edited volume entitled Beyond Victor's Justice? The Tokyo War Crimes Trial Revisited is more restrained, 'revisiting' the International Military Tribunal for the Far East ('Tokyo Trial') to consider alternatives to the familiar victor's justice critique without assigning the tribunal such constitutive power over the field. Taken together, these books attempt to re-inscribe neglected institutional pasts into the present of international criminal law, offering alternate lineages and ways of understanding the field's development and animating moments.

Before considering the contributions of these two books in more detail, it is worth pausing to note different historiographical approaches in international criminal law scholarship. How is the history of this field written? The more or less standard textbook account tends to offer a progress narrative that began with the post-World War II tribunals at Nuremberg and Tokyo, was interrupted for several decades by the Cold War, resumed during the 1990s with the ad hoc tribunals for Rwanda and the former Yugoslavia, adapted with the rise of 'hybrid' and 'internationalised' tribunals, and which culminated with the establishment of the permanent International Criminal Court. Social theorist Michel Foucault would have taken issue with such a telling by reminding us of the nonlinear, non-teleological movement of history, with its dynamic of fits and starts, accidents and contingencies. (2) The tendency to construct the past from the standpoint of the present, reading a kind of inevitability into contingent events and institutions, seems to mark much scholarly writing on the rise of international criminal law in the last two decades.

Within the past 10 years (and guided implicitly or explicitly by Foucault and post-structuralist thinking), international law scholars have begun to call into question the teleological progress narratives that the field tells. (3) This review essay suggests that both of these books harbour a tension: they are somewhere between the progress narrative and its unsettling. On the one hand, these two volumes trouble the monopoly which the Allied International Military Tribunal at Nuremberg ('IMT') has held on origin stories within the field: rather than having one originary moment such as the Charter of the International Military Tribunal ('London Charter'), (4) the international criminal legal order emerged from a plurality of sites. On the other hand, rather than pushing farther to contest the notions of origin, they both try to bring the tribunals they describe into a more central place within the progress narrative. …