Friday, March 6, 2015

Drumbl: Stepping Beyond Nuremberg's Halo: The Legacy of the Supreme National Tribunal of Poland

Mark A. Drumbl (Washington and Lee Univ. - Law) has posted Stepping Beyond Nuremberg's Halo: The Legacy of the Supreme National Tribunal of Poland. Here's the abstract:

The Supreme National Tribunal of Poland (Najwyższy Trybunał Narodowy (Tribunal)) operated from 1946 to 1948. The Tribunal implemented the 1943 Moscow Declaration. This instrument provided for the repatriation of suspected Nazi war criminals. Defendants were to be sent to the countries where they had allegedly committed atrocities to stand trial and, if convicted, to face sentences – all based on applicable national laws. The Tribunal presided over seven high-profile cases. These proceedings implicated a total of forty-nine individual defendants. This paper unpacks two of the Tribunal’s trials: that of Rudolph Höss (Kommandant of Auschwitz (Oświęcim), described as the site of the largest mass murder in history) and that of Amon Göth (commander of the Kraków-Płaszów labor camp).

The Tribunal pursued punitive as well as didactic goals in conducting its trials. On this latter note, the Tribunal aspired to educate the world about Poland’s suffering during the Nazi occupation. Notwithstanding these expressive ambitions, strikingly little has been written about the Tribunal outside Poland. While more robust, discussion within Poland has nonetheless failed to catalyze a broader transnational conversation. The neglect of the Tribunal’s work disappoints in light of the distinctive quality of its jurisprudence, its salience to Poland, and its myriad doctrinal contributions. This paper seeks to recover the Tribunal’s place within the imagined spaces of international criminal accountability. Relatedly, this paper also excavates the Tribunal’s doctrinal innovations and frustrations, in particular regarding how it understood genocide, organizational liability, membership in criminal organizations, medical war crimes, and sexual torture.

Inadvertently, perhaps, the Tribunal also warns of the shadow-side of international criminalization. It does so notwithstanding (or, even, because of) the distinguished nature of its work. The Tribunal’s foundational legal decrees – deployed to assert jurisdiction over Nazis in the name of human rights – also inflated the punitive reach of Polish Communist authorities against other domestic ‘traitors’ seen as inimical to the state and, thereby, channeled the violation of human rights in the post-war period.

This paper proceeds in four parts. Part I sets out the Tribunal’s provenance and background, while also offering a flavor of the politics and pressures that contoured (and co-opted) its activities. Parts II and III respectively examine the Göth and Höss cases. These parts set out the two defendants and their crimes, while also raising doctrinal quandaries and contributions. Throughout, references are made to other cases pursued by the Tribunal. Part IV concludes. It does so by returning to several of the elements discussed in part I and by gesturing toward a broader set of epistemological, motivational, and penological questions central to the operation of transitional justice.