Academic journal article Albany Law Review

Keynote Address

Academic journal article Albany Law Review

Keynote Address

Article excerpt

I am pleased and honored to give the keynote address for this important conference. I am particularly pleased to associate myself with the Robert H. Jackson Program in International and Comparative Law. (1) Robert H. Jackson, as most of you know, was an Albany Law School alumnus and the Chief Prosecutor for the United States at the Nuremberg War Crimes Trials that followed World War II. (2) He played a very important part in giving the Nuremberg Trials the positive meaning they have. The Trials could have been mere revenge or "victor's justice"--as some people expected them to be at the time and as the Tokyo trials of the Japanese Generals tended to be. (3) But instead, the Nuremberg Trials established the Nuremberg Principles and set the groundwork for future international accountability for war crimes and for other gross violations of human decency. The Nuremberg Trials were intended to--and did--set a precedent. They were not like the Supreme Court case of Bush v. Gore (4)---as one majority opinion explained--a decision just for this occasion, unlikely to be repeated, and not expected to set a precedent the court would feel obligated to follow in the future

Justice Robert Jackson helped to define the meaning of the Nuremberg Trials and to wrest a good precedent from the evils of the Nazi era. The principles established at Nuremberg have been applied in the past and will again be applied in the future. (5)

Was Germany under Hitler unique, or might a similar situation arise again? Hitler, not elected chancellor, came to power legally through appointment. (6) In fact the Nazi party had lost some of its appeal to voters and did worse in the last election than it had done in the prior election. Hitler's appointment was a somewhat controversial decision, but many people thought it did not matter much because his opponents did not seem to be much better candidates than he was. Since he had such a slim margin of support in the legislature, people felt that Hitler could not do anything too radical and would not stay in office very long.

Then there was the Reichstag fire. (7) Today the burning of the Reichstag may not seem like such a big disaster, but it was as shocking to Germans then as the events of September llth were to Americans in 2001. The Germans were so shaken that they allowed their legislators to pass Hitler's Enabling Act, which provided the legal basis for Hitler to seize more power, undermine civil liberties and embark on wars to create what he called a New World Order. (8) At the time it was passed, the Enabling Act might have seemed no more radical than the U.S. Patriot Act and the Anti-Iraq Resolution recently enacted by the U.S. Congress seem today. (9) Hitler's war plan was to hit the enemy with overwhelming superior military force and to defeat the opponent in a very short time by using the most modern weapons of the day. He could not afford many German casualties, but he felt confident of the success of his blitzkrieg policy.

In fact, Hitler made a very elaborate effort to explain the necessity of a German attack on Poland. He argued that Poland posed an unacceptable threat to Germany's national security, he offered significant "proof" of Polish incursions over the German border, and asked rhetorically how many times Germany must turn the other cheek. Finally, when everything else failed--according to Hitler--he said that he could delay no longer and that he had no choice but to take Poland.

As long as they seemed to be winning, suffered few German casualties, and benefited from slave labor and raw materials, the German people were quite satisfied with the war.

This background is relevant to this conference and important for at least two reasons. First, the themes we are dealing with involve issues that are susceptible to a variety of different social meanings. Just as the Nuremberg Trials could have turned out to be better or worse in the end--depending on the social meaning established for them--so too the World Bank's engagement in social issues and CEDAW's (10) impact on Muslim societies can be beneficial or detrimental depending on the social meaning established for their engagement and impact. …

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