The novelties of the contemporary international order require a rethinking of the normative foundations of criminal justice. Although one can understand the relevance of basic principles such as the rule of law and, in particular, the value of a fair trial in the domestic context, when one looks at criminal courts operating beyond the bounds of the traditional nation-state specifically to the courts founded in the wake of the International Military Tribunal at Nuremberg--the justification for recourse to these principles is far more elusive. In this paper I will argue that several traditional arguments for basic normative principles of criminal justice, in particular the right to a fair trial, are problematic in the international context and thus these principles require a different sort of justification than one would find domestically.
The Nuremberg Legacy
There is no doubt that, with the benefit of over six decades of hindsight, we can say that the International Military Tribunal at Nuremberg (IMT) was an event of world-historical importance. It was the first successful international criminal court, and has since played a pivotal role in the development of international criminal law and international institutions. In many ways, therefore, it represents a paradigm shift in international law. It had a seminal influence on the two ensuing ad hoc international tribunals (for the former Yugoslavia and Rwanda), the various "mixed tribunals" (for Sierra Leone, East Timor, and Cambodia), as well as the new International Criminal Court (ICC). No scholars of international criminal law could claim serious understanding of their disciplines if they did not study the IMT seriously and in depth. Over the last six decades, the word "Nuremberg" has become synonymous with humankind's highest ideals and aspirations--a measuring stick against which all subsequent humanitarian ventures have been measured.
The IMT has held such influence and garnered such praise for a number of reasons. The arguments presented before the court by Hartley Shawcross and Justice Robert Jackson and others possess a gravity that denotes their genuine historical import and the final opinions of the court show a thoughtfulness that is surprising given the strong public sentiments and political pressures that were brought to bear on the tribunal. Passions were put aside during the proceedings and for the most part reason was allowed to prevail. Nonetheless, despite the numerous significant features of the IMT, the vast majority of scholars of international criminal justice point to one feature of the IMT as essential to its enduring influence: the IMT is deservedly famous because it was, for all intents and purposes, a fair trial. (1)
In fact, the influence of this aspect of the IMT in international criminal justice has been so pervasive that the contemporary conception of international trials has become synonymous with the idea of a fair trial. It is assumed that any other sort of criminal tribunal, such as a "show trial," is, by that fact alone, an illegitimate enterprise. An unfair international trial, one that does not give defendants the vast majority of rights that they would be afforded in a domestic court in a country such as the U.S. is, ipso facto, not a real trial. Virtually all recountings of the Nuremberg tribunal take great pains to point out that the trial was fair and present this as prima facie evidence that the trial was a good thing and a valuable contribution to human civilization. This concern for the fairness of international courts as the central condition of legitimacy is the most significant influence of the Nuremberg Tribunal, even if this point is largely taken for granted by many scholars of international criminal justice. (2)
However, in this paper I want to take a somewhat skeptical approach to evaluating the idea of a fair international criminal trial. My concern is not primarily with what rules would constitute a fair trial in the international context (although this, too, is a problematic issue), but rather with a concern that is somewhat deeper. …