A New Deal for the Nuremberg Trial? Discussing the History of Crimes Against Humanity with Elizabeth Borgwardt

More and more social science research suggests that polities recovering from eras of mass atrocity do best with strategies that are both forward-looking and backward-looking. Forward-looking initiatives may include constitutional revisions, support for non-governmental organizations, and amnesties; backward-looking devices may include summary executions, war crimes trials, or truth commissions. While few would argue that we are in the twilight of impunity, scholars who study the generation and diffusion of norms look to recent settlements in Argentina and Columbia that stress increased accountability for past atrocities. The conviction of former Chadian dictator Hissène Habré by a Senegelese court for crimes against humanity and war crimes in early 2016 might be a harbinger of future, more regionally-grounded processes of international justice. Even more recently, the conviction of an ISIS militant for the destruction of ancient documents and religious sites in Mali has suggested an expansion zone for war crimes that would take in cultural destruction.

Critics of liberal internationalism, by contrast, are heralding the death of the human rights idea in light of the recent U.S. presidential election, Brexit, and the resurgence of ethnic nationalism in the West and elsewhere. Atrocity crimes seem to be a growth industry and botched humanitarian interventions are also doing a brisk business. These critics also ask how institutions such as the ICC and the UN tribunals for the Former Yugoslavia and Rwanda could have any legitimacy at all, as they are dominated by Western elites, with judges who are vetted and qualified to preside only after receiving indoctrination at Western law schools, while defendants are inevitably drawn from smaller, weaker countries, some of which are now turning their backs on international institutions in general and the ICC in particular. Law, skeptics say, has been unmasked as really “just politics;” that is, only capable of generating scenarios where illegitimate power expresses itself by means of adulterated law.

Convincing one side or the other of the moral legitimacy of today’s international tribunals may indeed be a rather fruitless exercise. In the meantime, however, it may be helpful to ask a more historically-informed set of questions, such as how some of the foundational ideas in international justice from the 19^th century and before came to be institutionalized in the 20^th century, or how the very format of trials came to be added to the spectrum of responses to various kinds of atrocities against civilians, or indeed how the idea of what might count as a “crime” in international law came to be debated and refined.

These are the questions at the heart of the research agenda of Elizabeth Borgwardt, an associate professor of history and law at Washington University in St. Louis, and a permanent faculty associate of the Center for American Studies at the Ruprecht-Karls-Universität Heidelberg. Borgwardt also recently served as the Richard and Ann Pozen Visiting Chair in Human Rights at the University of Chicago. Readers will probably best know Borgwardt as the author of the 2005 monograph A New Deal for the World: America’s Vision for Human Rights, published with the Belknap Press of Harvard University Press and co-winner of the Merle Curti award for best book in Intellectual History and of the Stuart Bernath Book award for best first book in U.S. foreign relations.

Now considered to be field-defining research in the then-novel specialization of human rights history, Borgwardt examined how the 1941 Roosevelt-Churchill Atlantic charter served as a kind of ideological blueprint for many of the young lawyers negotiating the draft charters of various wartime international institutions, notably the 1944 Bretton Woods agreements, the 1945 United Nations charter, and the 1945 Nuremberg charter. She explored how these new institutions were meant to generate a world order that would somehow “advance” human rights and, for the US officials involved, one which would entrench and extend U.S. influence. A major theme of New Deal for the World was also the role of unintended consequences, in that a variety of constituencies seized upon the vague and inspirational rhetoric in the Atlantic Charter and sought to use it for their own ends.

Now, however, Borgwardt is interested in a different set of questions related to human rights politics and ideas: how did “human rights” become a concept that even the most heinous regimes feel that they need to buy into, if only to pay it lip service? Why did ideas about sovereignty and individual accountability articulated in a courtroom in provincial Germany go on to affect larger systems of international justice? The answer to these questions — grounded, in Borgwardt’s case, in her background as both a lawyer and a historian — cannot but interest us in a world that continues to be scarred by human rights violations, both domestic and international.

The Toynbee Prize Foundation’s Executive Director, Timothy Nunan, recently had the opportunity to sit down with Professor Borgwardt during a visit to Harvard University to present an excerpt from her new manuscript, with the working title of The Nuremberg Idea: “Thinking Humanity” in History, Law & Politics, under contract with Alfred A. Knopf. We have reproduced below an edited transcript of that conversation.

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