International history and the rule of law

Posted by Helen Tuesday, October 17, 2006

Time to look at some other countries, says Tory Historian, guided as ever by recent reading. The historian in question is the late great Professor Leonard Schapiro, whose analysis of Russia and the Soviet Union have been equalled by few.

Professor Schapiro’s oft reiterated argument was that free, just and democratic societies could exist only if there was a full understanding and acceptance of the rule of law within them. In particular, he was an admirer of the English common law, that had spread across the Anglospheric countries of the world (though, to be fair, he did not use that expression) and of the adversarial form of political and legal institutions in this country.

Born in pre-revolutionary Russia, Schapiro trained as a lawyer in England, served in Intelligence during the Second World War, later teaching government and politics at the London School of Economics, specializing often in Russian and Soviet history, politics and literature. He also translated Turgenev’s “Spring Torrents” and published a highly regarded biography of that writer. (Actually, now that I think of it, the man’s career is rather depressing for the rest of us who could not possibly keep up with that.)

Anyway, back to that reading matter. I have been reading and, in some cases, re-reading, Schapiro’s essays on various subjects and was greatly struck by his comments on the Nuremberg Trial in the first of those: “My Fifty Years of Social Science” first published in 1980.

In so far as there is any kind of an idea of what that nebulous term, international law, means, (apart from the obvious matters of various agreements on behaviour at sea, in the air etc etc), it has grown out of that first international trial for crimes against humanity and the creation of the United Nations within a couple of years of it. Professor Schapiro was an opponent of both initiatives:

So far as I was concerned the most powerful single factor that rid me of any illusion that the Soviet Union might have changed after the war was the Nuremberg trial, and the way in which it entered into the fabric of international relations. Nuremberg was both an appalling travesty of international law, a craven acquiescence in and tacit acceptance by the Western powers of the principle that the grim record of the Soviet Union in its treatment of its population was beyond criticism.

International law was traduced by the introduction of the new principle of law which certainly did not exist at the time the acts were committed that waging an aggressive war is an international crime. As regards the violation of human rights, the Western allies acquiesced in a Soviet demand for an amendment to the agreement setting up the Tribunal. This consisted in the removal of a comma, and this had the result of placing it beyond doubt that the violation of human rights was only an international crime when it was committed in furtherance of acts of aggression but not otherwise – thus precluding even the possibility that Stalin’s atrocities might one day be condemned by the international community.
Opponents of the Tribunal and the Trial have also pointed out that the leading Soviet judge was Major-General Nikitchenko who had been a judge at some of the show trials of the thirties and the main Soviet prosecutor was General Rudenko, an active participant in the Katyn massacre of Polish officers, one of the charges he tried to indict Germany for at Nuremberg. (The main prosecutor at the Soviet show trials, whose hysterical outbursts defined that whole ghastly episode in Soviet history, was Andrei Vyshinsky, who later became the Soviet representative at the United Nations.)

In many ways the Nuremberg Trial seemed to be the solution to a practical problem: what was to be done with people like Göring or Hess? How to deal with their colleagues and the lesser fry who had run those terrible camps and had initiated the destruction of much of Europe? Churchill’s solution was to shoot them summarily but this was opposed by the Americans and the Soviets for, one may add, different reasons. As Schapiro points out, a number of eminent British lawyers supported the idea of the Nuremberg Tribunal, perhaps, not thinking about the consequences.

The consequences are with us in the shape of the completely useless international tribunals, the whole problem of what is a crime against humanity, the constant attempts made by transnational organizations to overcome decisions reached by duly elected democratic governments. There can be no world-wide democracy because it is impossible to create a world-wide rule of law.

3 comments

  1. Jonathan Says:
  2. Much is lost in life by ignoring the implications of the fine print, in this case the legal and political implications of the western powers' overlooking of Soviet crimes. OTOH we have had sixty years to focus our thoughts.

    And besides the legal, political and historical questions I have a moral one. Does recognition of "crimes against humanity" diminish consideration for crimes against individuals? I think that it may. There is also, it seems to me, a sense in which the crimes-against-humanity concept cheats persecuted groups of recognition -- e.g., the Jews were persecuted as Jews but became members of "humanity" only when it was time to punish their persecutors.

     
  3. Interestingly enough, from the late forties on in the USSR you were not allowed to specify that most of the civilians killed by the Nazis on Soviet territory were Jews. In a way, Stalin and his successors were also Holocaust deniers.

    And, of course, it is only now that some work is done on documenting other victims of the Holocaust, like the Roma. All of which, I think, supports your final point.

     
  4. Nice article! i totally agree with your point that world wide democracy is impossible.

     
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