Reading List: December 2021
International Law in Bandung and Nuremberg
Bandung Revisited: The Legacy of the 1955 Asian-African Conference for International Order (Amitav Acharya and See Seng Tan, 2008)
When I’ve been participating in / researching / studying international law and global health, I’ve been interested in organizations’ origins. It was never automatic that the ICC would be in the Netherlands, that colonial powers would get veto powers on the Security Council, that AI gets its strongest regulation from the EU, or that global health would form out of the Rockefeller Foundation’s anti-yellow fever and anti-malarial programs. Each year makes it more painfully obvious that basing almost all ‘international’ institutions in the US and Europe limits their credibility and flexibility.
I started wondering, can the global order of international law and diplomacy, post-WW2, be seen as shortsighted as restrictions on Germany after WW1? I didn’t want to run through this thought unprepared, so I Googled and ended up finding a landmark post-WW2/post-colonial conference: Bandung 1955.
Professors Acharya and Tan marked the 50th anniversary by collecting nine essays about this conference in newly-independent Indonesia. Some key points from multiple essays:
- Maoist China, not yet in the UN, connected with neighbors for the first time. PM Zhou Enlai made a positive impression on princes from Thailand and Cambodia, who would secretively open diplomatic relations.
- Adopted many of the same principles as the UN, but generally downplayed regional military compacts and the US’s attempt to create a ‘SEATO’.
- The US and UK (then governing Malaysia, Singapore, and Brunei) feared that the consensus would be sweepingly pro-Communist, and that the conference would become an annual rallying point, but it was relatively mild and not reconvened for years.
- There’s frustration around Bandung being ‘mythologized’ when it built on previous meetings (depending on the source, post-colonial / diaspora meetings in India, the Pan-African Congress, the Congress of Oppressed Nationalities, or more socialist gatherings)
- On later and more direct reforms to the international system:
Separate movements seeking restitution for colonization were pursued heavily in writing the NIEO.
The 2005 Ezulwini Consensus proposed two permanent, veto-power members on the UN Security Council, to be picked by the African Union.
Some thoughts which I have after reading:
This is an international law textbook. There were chapters on the responses and institutional memory / historiography of Bandung in the US, China, India, and Indonesia, which were less interesting and skimmable for me.
Bandung and the spinoff Non-Aligned Movement have a puzzling role through and after the Cold War, providing a ‘neutral’ platform at times for Tito’s Yugoslavia, PRC China, Cuba, North Korea, and Iran. This prevents the group from having a strong neutral or progressive image for US leftists today, compared to (for example) pro-Palestinian views which you regularly see at protests and rallies.
In addition to politics, one writer (Prof. Helen Nesadurai) summarized the economic program of the conference and pointed out the lack of representation of post-colonial countries in the WTO and IMF as a similar neocolonial injustice. I ought to include in my post-WW2 fallout readings.
Bandung “prioritized consensus”. This means that divisive issues, particularly issues of the Cold War, were intentionally not debated at the conference, tabled until a consensus could be formed. In international law this is known as “the ASEAN way” (after the modern Association of Southeast Asian Nations), but it has a long cultural history in Malay and Javan culture.
There’s an admirable quality to consensus, but it is frustrating. The recent AI Manyfesto says, “We do not seek consensus: we value human difference. We reject the idea that any one framework could rule globally.”
Consensus has failed during discussions on AI at the Convention on Certain Conventional Weapons, and human rights abuses (Myanmar’s participation in ASEAN is closely watched and protested).
Robert H. Jackson: Country Lawyer, Supreme Court Justice, America’s Advocate (Eugene Gerhart, 1958, 2003 edition)
When I read the biography of Justice William Douglas in September, there were mentions of fellow FDR appointee Robert H. Jackson taking leave from the Supreme Court to be the lead prosecutor at Nuremberg.
Gerhart started the book in 1947 and recorded interviews with Jackson up to his death in 1954. This gives the book expert detail and a nostalgic look at his career, though Gerhart promises to keep a balance of positive and negative.
Jackson made his name as a lawyer in upstate New York. The author adds his own reflection on changes in the legal field, where it was once possible for Jackson to rise up from a middle-class rural family to a ‘country lawyer’ with a diverse portfolio of cases. Jackson was part of the last generation to learn law with an apprenticeship process rather than a law degree or a strict specialization. He became famous locally for his first cases defending unions and protecting a local utility from the Bell monopoly.
Then-Governor Roosevelt heard about Jackson through the utilities board and professional clubs like the NY Bar. Two years into his presidency, FDR would bring Jackson to DC to represent the IRS and advise Congress on tax loopholes used by the rich.
Jackson moved up into the Solicitor General role, where he was a great match, preferring argument to the administration and publicity of AG.
Justice Frankfurter is quoted saying Jackson “should be Solicitor General for life.” Two pain points were FDR’s court-packing plan (where Jackson was caught off-guard, and forced to defend it to Congress), and clashing with an AG (Frank Murphy) on decisions to prosecute, publicity, and other issues. When Murphy moved on to the Supreme Court, he tried to claim time to finish up cases heading the Justice Department. Jackson appealed to FDR to intervene, but also offered to stand down if his repositioning on controversial cases would be too embarrassing (Murphy had pursued antitrust cases against unions, and sedition charges).
As Europe started World War II, Jackson’s role as Solicitor General and Attorney General included negotiation and trading to support the UK without bringing America into the conflict. After the first world war, international treaty had banned war of aggression; Congress also had passed laws to maintain neutrality and prevent trading away military equipment. In his 1940 campaign, FDR pledged to keep America out of the war. Foreshadowing Nuremberg, Jackson made the case that Hitler’s war was different — it was illegal under international law, so America could choose sides while maintaining ‘nonbelligerency’.
Similar to William Douglas, Jackson was an FDR favorite and frequently named as a candidate for positions long before getting them (Attorney General and Supreme Court) or not (Chief Justice, NY Governor, or VP). It does seem like Jackson waited in the Justice Department until the Chief Justice position opened, or that he had a deal that he would move from Associate to Chief Justice. Unfortunately, the next opening coincided with his commitment in Nuremberg and a public clash in the press after Justice Hugo Black did not recuse himself on a case.
Despite many appointments over FDR’s terms, the Supreme Court had divided into factions. Truman believed that promoting Jackson or Black to Chief Justice would lead the other to resign, so he chose a newcomer. Strangely the divided court extended to justices making comments critical of Nuremberg, raising fears that jurisdiction might be disputed in the US court system. Justice Douglas later wrote:
[Jackson] was gone a whole year, and in his absence we sat as an eight-man Court. I thought at the time he accepted the job that it was a gross violation of separation of powers to put a Justice in charge of an executive function… Moreover, some of us — particularly Stone, Black, Murphy and I — thought that the Nuremberg Trials were unconstitutional by American standards.
[note: take care whose websites you land on while researching historical criticism of the trials!!! yikes]
The Nuremberg trials took up one year of Jackson’s career, but serve a lasting role in international law and establishing leaders’ accountability. The possibility of a trial or executions had been discussed in the last year of the war. Truman had seen Jackson’s role as Solicitor General and proponent of trials, and called him to be America’s prosecutor. This meant abruptly taking leave from the Supreme Court. At one point Jackson considered taking time on a return trip for Court business, but Chief Justice Stone urged him to return when the trials were finished.
In July-August 1945, as France put Pétain on trial and the first atomic bomb dropped on Japan, Jackson and his team helped draft the Charter of the International Military Tribunal in London. The American and British justice systems are similar, but Russia’s representatives wanted to show evidence in the ‘indictment’ events, and both France and Russia wanted the judges to question the defendants (typical in continental Europe). Some American representatives wanted more witness testimony and less documentary evidence. Jackson proposed a conspiracy charge which would allow them to base individual trials on membership in a conspiracy group, but this strategy was unknown in Europe. Ultimately the Americans would pursue conspiracy (Charge 1) and give other charges prosecuted by the other countries.
The Americans made an office in Paris and began scouting locations for the trial. This was challenging as the war had just ended, Germany was heavily damaged and straining to quarter soldiers in Berlin, and the West was wary of Russian-occupied territory. Jackson’s team chose Nuremberg’s Palace of Justice because it could easily be repaired for the trial and observers, it was connected to a jail, and the city had been known for massive Nazi rallies.
Over the course of several trials, the Allies proved their case and produced mountains of documents and materials which would shape post-war Germany’s understanding of the regime. Jackson would be credited with “one of the greatest opening statements ever delivered before any court”.
Legacy
It’s surprising to think how relatively unknown Jackson is, considering his role in FDR’s Supreme Court and Nuremberg. It was difficult to find a biography. Future Chief Justice Rehnquist was once a clerk for Jackson, and wrote a foreword for this reprint.
Maybe this is due to the year of publication (1958), but Jackson’s feud with Black has since been forgotten, and a case taught in every US history class (the Korematsu Japanese-America detention, where Jackson wrote a dissent) was not mentioned in the book at all.
In 2000, a TV miniseries dramatized Jackson’s experience at Nuremberg, with Alec Baldwin starring. A subplot depicts an affair with his secretary, who the New Yorker agrees “had been… many believed, his mistress.” We never hear about Jackson’s home life in this biography, except for when his son would attend an event or become part of the Nuremberg team.
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Also, some positive Hoover content:
