The Nuremberg Paradox
Selective Justice and the Crisis of International Law
Introduction: The Architecture of Impunity
The Nuremberg Trials (1945-1946) stand as civilization’s most ambitious attempt to subject statecraft to law. Yet beneath the grandeur of “crimes against humanity” and “war crimes” lurked a foundational hypocrisy: the prosecutors themselves were never subject to the laws they enforced. This essay examines how the Nuremberg precedent—touted as the dawn of universal justice—was weaponized as an instrument of victor’s morality, creating a dualist legal regime where power determines jurisdiction and historical memory becomes a function of geopolitical privilege.
The Nuremberg Framework: Law as Power’s Instrument
The Jurisprudential Innovation and Its Fatal Flaw
Nuremberg’s enduring legacy rests on three pillars: individual criminal responsibility for state acts, rejection of superior orders as absolute defense, and criminalization of aggressive war. Yet these principles were erected on sand. As legal scholar Hersch Lauterpacht noted, the trials applied ex post facto law—”crimes against peace” had no prior statutory definition. The defense of “tu quoque” (you also) was summarily rejected, but its moral force remains: the Soviet Union, whose invasions of Poland and Finland were naked aggression, sat in judgment. The British, whose colonial record included systematic atrocities, pronounced on genocide.
The tribunal’s architecture institutionalized this asymmetry. Article 6 of the Nuremberg Charter limited jurisdiction to Axis war crimes, explicitly immunizing Allied conduct. This wasn’t law; it was legalized vengeance. Justice Robert Jackson candidly admitted: “We must not permit it to be complicated by the Germans charging that we have done the same thing.” The principle was clear: justice would be applied selectively, its universality contingent on victory.
Post-War Colonial Atrocities: The Silence of Law
British Colonial Violence: The Forgotten Malaya
While Hermann Göring faced the gallows for crimes against humanity, Britain waged the “Malayan Emergency” (1948-1960), a counterinsurgency that witnessed mass internment, collective punishment, and the Batang Kali massacre (1948) where 24 unarmed villagers were executed. The legal double standard was stark: when Nazis executed civilians in reprisal, it was a war crime; when Britain did so under the “Briggs Plan,” it was colonial policy. No British official faced Nuremberg-style prosecution. The 1971 Ballymurphy massacre in Northern Ireland and systematic torture during the Troubles demonstrated this impunity persisted within the UK itself.
French Atrocities in Algeria: Nuremberg Principles Abandoned
France’s prosecution of Nazi collaborators contrasted grotesquely with its conduct in Algeria (1954-1962). The Battle of Algiers featured systematic torture, summary executions, and the Charonne Metro massacre (1961) where French police murdered up to 200 Algerian protesters. General Jacques Massu’s paratroopers applied methods indistinguishable from Gestapo techniques—waterboarding, electric shocks, “disappearances.” Yet when Algerians petitioned the UN under the Genocide Convention, France invoked sovereign immunity. The same state that championed crimes contre l’humanité at Nuremberg now practiced them, arguing its mission civilisatrice justified any means.
Cold War Realpolitik: Justice as Geopolitical Luxury
United States: From Nuremberg Prosecutor to Vietnam War Criminal
The US, Nuremberg’s chief architect, soon became its principle violator. The Vietnam War (1955-1975) featured:
My Lai Massacre (1968): US soldiers murdered 500+ civilians; only Lieutenant Calley faced token punishment, later commuted.
Agent Orange: Chemical warfare causing 400,000 deaths and 500,000 birth defects—clearly violating the 1925 Geneva Protocol, yet no prosecutions.
Phoenix Program: CIA-led assassination of 20,000+ suspected Viet Cong, employing torture and extrajudicial killings.
As Noam Chomsky observed, had the Nuremberg principles been applied reciprocally, every US president from Truman to Nixon would have hung. The 1973 War Powers Act’s toothlessness and Ford’s pardon of Nixon demonstrated that accountability ended where American power began.
Soviet Union: Afghanistan as Imperial Aggression
The USSR, Nuremberg’s co-prosecutor, invaded Afghanistan (1979-1989) with the same criminality it condemned at Nuremberg. The invasion violated the UN Charter’s Article 2(4) against aggressive war—precisely the charge against Nazi leaders. Soviet forces employed scorched earth tactics, “migratory genocide” against civilians, and indiscriminate bombing comparable to Luftwaffe practices. The international response? Resolutions, not tribunals. Power, not principle, dictated outcome.
Indonesia and Latin America: Washington’s “Jakarta Method”
In 1965-66, the US backed Suharto’s massacre of 500,000-1,000,000 Indonesian communists. US officials supplied kill lists; Ambassador Marshall Green cabled Washington that “the cleanup of PKI [communists]” was proceeding. This was genocide under the UN Convention, yet it served US “national interest.” Similarly, Operation Condor (1970s-80s) saw US intelligence coordinate dictatorships’ torture and disappearance of 60,000+ leftists. When Chile’s Pinochet was finally arrested in London (1998), the US pressured for his release, rejecting universal jurisdiction it once championed.
Contemporary Nuremberg Violations: The War on Terror
Extrajudicial Killing and Algorithmic Death
The post-9/11 era has institutionalized Nuremberg violations as policy:
Drone Warfare: The US has conducted 14,000+ drone strikes in Afghanistan, Pakistan, and Yemen, killing 4,000-6,000, including 300-900 civilians. No judicial process, no warning, no accountability. John Yoo’s “Torture Memos” and the “Disposition Matrix” (a kill list algorithm) replicate Nazi “Führerprinzip”—executive will as law. Former UN Special Rapporteur Philip Alston concluded these constitute “war crimes” under Nuremberg precedents.
Torture as Policy: Abu Ghraib, Guantánamo Bay’s “enhanced interrogation,” and CIA black sites employed torture methods the US had prosecuted as war crimes at Nuremberg. The 2014 Senate Intelligence Committee Report proved systematic torture; no senior official faced prosecution. Instead, the Trump administration pardoned war criminals, signaling impunity at the highest level.
Mass Surveillance: The NSA’s global warrantless surveillance violates the Nuremberg principle that executive acts require legal authorization. As Justice Jackson warned in Youngstown Sheet & Tube Co. v. Sawyer, presidential power is at its “lowest ebb” when acting without congressional approval. Yet surveillance continues under the same “state necessity” arguments the Nuremberg tribunal rejected.
Gaza: The Algorithmic Occupation
Israel’s conduct in Gaza, enabled by US support, exemplifies Nuremberg’s collapse. The Israeli military’s “Lavender” AI system identifies bombing targets, producing automated kill lists with 10-20% civilian casualty acceptance rates—industrialized slaughter echoing Nazi bureaucratic murder. Collective punishment, destruction of civilian infrastructure, and blockade-induced starvation mirror crimes prosecuted at Nuremberg. Yet the US vetoes UN investigations, while NATO members supply weapons. International Criminal Court arrest warrants are dismissed as “antisemitic.” Here, Nuremberg’s promise dies: law becomes a weapon against the weak, a shield for the powerful.
Theoretical Analysis: Justice in a Realist World
Legal Positivism vs. Natural Law
Nuremberg’s architects claimed natural law foundations—certain acts are inherently criminal. But its application reveals crude positivism: law is what powerful states enforce. The “Responsibility to Protect” (R2P) doctrine demonstrates this: invoked to justify NATO’s Libya intervention (2011) but ignored for Gaza, Yemen, or Myanmar. Selectivity proves the principle is not universal but geopolitical.
The Function of International Law
Martti Koskenniemi argues international law serves not justice but “ apology for power”—providing moral vocabulary to legitimize state interests. The Nuremberg precedent functions as “lawfare”: law as a strategic weapon. When US officials call for Putin’s prosecution for Ukraine while dismissing scrutiny of Gaza, they don’t seek justice but leverage.
The Problem of Universal Jurisdiction
Belgium’s 1993 universal jurisdiction law allowed prosecution of foreign war criminals. When attempted against US officials for Iraq War crimes, Washington threatened to move NATO headquarters; Belgium repealed the law. This reveals the core truth: universal jurisdiction applies only to defeated states or geopolitical weaklings. For great powers, sovereignty remains absolute.
Conclusion: The Nuremberg Mirage
The Nuremberg Trials were not the birth of universal justice but its stillbirth. They established a jurisprudential Potemkin village—impressive facades masking a machinery of impunity. The victorious nations demonstrated that international law is a prudential calculation, not a moral absolute: powerful states enforce it against enemies, ignore it for themselves.
This is not to equate all state violence with Nazi crimes—the Holocaust’s industrialized genocide remains singular in its systematic evil. But Nuremberg’s claim was universal, not comparative. It promised that all aggressive war, all crimes against humanity, would face judgment. Instead, it created a tiered system: law for the defeated, impunity for the victors; tribunals for Africans, vetoes for Americans.
The paradox is that Nuremberg’s principles remain morally sound, but their application requires a power they undermine. Genuine universal jurisdiction would demand dismantling the UN Security Council veto, creating an independent international prosecutor, and ending sovereign immunity—all politically impossible. Thus, Nuremberg’s true legacy is not justice but cynicism: teaching that law is power’s servant, that atrocity is criminal only in defeat, and that “never again” means “never again for us, but always for them.”
Until powerful nations consent to be bound by the laws they impose—until a US president or British prime minister can credibly face ICC indictment—Nuremberg remains what Show Trials scholar Judith Shklar called “legalism” covering political vengeance. The trials were a necessary response to unprecedented evil, but they were also a lie: the lie that law can transcend power without confronting it. Justice requires either equality before law or admission that none exists. The Nuremberg contradiction persists because the international system chooses neither, clinging to moral rhetoric while practicing geopolitical brutality. The result is not the rule of law, but its perversion: justice as a weapon of the powerful, injustice as the destiny of the weak.