Opinion: What happened to the legacy of Nuremberg and the liberal democratic values we fought the Second World War to protect?

Rosalie Silberman Abella is the Samuel and Judith Pisar Visiting Professor of Law at Harvard Law School. She served as a justice of the Supreme Court of Canada from 2004 until her mandatory retirement in 2021. The following piece was adapted from her keynote address to the American Society of International Law in Washington in April.

When I was younger, I believed in, and took for granted, the majestic world order we had created after the Second World War. I assumed that this world order would be protected by the international laws we had put in place, and that everyone else accepted international law’s transcendental importance in protecting a global human-rights consensus.

Then I grew up. Now I believe that international law is more important than ever, because the more the moral vision and consensus we codified and ratified after 1945 was eroded by expedience and exhaustion, the more it seemed to me we needed to recommit to the legal principles that animated a Copernican legal revolution in the aftermath of the Second World War.

More and more, I think justice, including international justice, is in crisis because more and more people have decided that, like the Red Queen in Alice in Wonderland, the law is what they say it is. There is seemingly no more consensus about what justice means, or what democracy means, or even what law is for.

We are in a moment. I think we have to acknowledge that this is not, by any stretch, the best of all possible worlds.

We’re at the edge of a future unlike any I’ve seen in my lifetime. The extremes have occupied the middle and the middle is polluted by bombastic and demagogic incivility from the extremes.

Everyone is talking and no one is listening except in their own ideological silos. It’s a moral quagmire, a moral free-for-all, and a moral vacuum.

How did we get here? The truth is, we let it happen by tolerating the intolerable for far too long, sacrificing principle for political pragmatism, substituting political accountability with moral lassitude, and replacing moral clarity with moral laissez-faire.

Ultimately, I think we just gave up. “Who are we to say democracy is better?” we asked. Who are we to impose human rights on those who eschew them? Who are we to insist on due process, an independent bench and bar; protection for women and minorities; a free press; freedom of expression and of religion?

We became persuaded that humility and respect for differences required us to accept the legitimacy of regimes that did not share our views about democracy, human rights and justice. We ignored the moral legacies of the Second World War.

We were wrong. We may have had the rule of law, but did we have the rule of justice? Laws and rules are important, but of what value are they if they drift or stagnate in a sea of non-compliance?

So let’s go back to the beginning, to the origin of the species we call Modern International Human Rights Law, not only to understand what we evolved from, but also to understand what we’ve evolved into.

Human rights in our lifetime cannot be understood without understanding their conceptual proximity to the Holocaust. The world was supposed to have learned three indelible lessons from the concentration camps of Europe:

1. Indifference is injustice’s incubator;
2. It’s not just what you stand for, it’s what you stand up for; and
3. We must never forget how the world looks to those who are vulnerable.

The Genocide Convention, and its spiritual sibling the Universal Declaration of Human Rights, whose 75th anniversaries we celebrated last year, were the wings of the phoenix that rose from the ashes of Auschwitz and roared its outrage. They were the powerful legal symbols of a world shamefully chastened.

And what lifted the phoenix and gave it the power to fly was the momentum it got in 1945 from the trials at Nuremberg, which started almost 80 years ago and bore witness to the Holocaust’s atrocities, the greatest injustice of the 20th century.

Elie Wiesel said: “Nuremberg is the story of those who did the killing … Nuremberg is also the story of those who did nothing.”

It is quite a story. A story about inhumanity, about immorality, about indifference. A story with many lessons to teach. But the past 80 years have shown how few of them the world has wanted to learn.

For me, those lessons are not just theory. Three of the survivors of the Holocaust were my parents and grandmother. My parents got married in Poland on Sept. 3, 1939. My mother’s family manufactured roofing materials, my father graduated with a master’s degree in law from the Jagiellonian University Law School in Krakow. He was scheduled to take his examination to qualify as a judge in Radom, Poland, in October, 1939. Instead, my parents spent almost four years in concentration camps. Their two-and-a-half-year-old son (my brother), my father’s parents and his three younger brothers were all killed at Treblinka.

After the war, my parents went to Germany where the Americans hired my father, who had taught himself English, to help set up the system of legal services for displaced persons in the Allied zone in southwest Germany. In an act that seems to me to be almost incomprehensible in its breathtaking optimism, my parents, and thousands of other survivors, transcended the inhumanity they had experienced and decided to have more children. I think it was a way to fix their hearts and prove to themselves – and the world – that their spirits were not broken.

My formative years were spent in the shadow of the Nuremberg trials. I was born in a displaced persons camp in Stuttgart, Germany, in July, 1946, the same month the prosecution summed up its case in the Trial of the Major War Criminals. I came to Canada in 1950 with my parents, younger sister and grandmother a few months after the trials ended. I was born at the beginning of Nuremberg, was surrounded by the survivors for whom it was created, was nurtured by parents who had somehow escaped the final Nazi verdict, and watched my father try to create a system of justice for people who didn’t know such a thing could exist in Germany for Jews. All before I was four years old.

I grew up with a passion for justice, but I have also, now that I am grown up, developed a sadness for what has become of it, despite Nuremberg. Lawyers like me, I think, have a tendency to take some comfort, properly so, in the possibility of subsequent judicial reckoning, such as that which occurred at Nuremberg. But is subsequent justice really an adequate substitute for justice?

I don’t for one moment want to suggest that the Nuremberg trials weren’t important. Of course they were. They were a crucial and heroic attempt to hold the unimaginably guilty to judicial account, and they showed the world the banality of evil and the evil of indifference.

But although Nuremberg represented a sincere commitment to justice, it was a commitment all too fleeting. Not for long did the prosecution of war crimes remain a magnetic national preoccupation for the Western Allies, who created it in the intimidating shadow of the Holocaust. By 1948, Britain issued a communiqué to the Commonwealth countries putting an end to the attempt to prosecute Nazi war crimes, as a response to recent tripartite talks about political developments in Germany. “We are convinced,” the British communiqué said, “that it is now necessary to dispose of the past.” The crisis in Berlin, as the West contended with Russia, thereby turned Germany from an enemy to be restrained into a prospective ally to be recruited.

By 1949 it was all over. No more Nuremberg trials, no more Nazi war crimes prosecutions anywhere in the Western world for two decades, and the early release of many convicted war criminals who had been sentenced at Nuremberg. The past was tucked away, and the moral comfort of the Nuremberg trials gave way to the amoral expedience of the Cold War.

Worse, as the passion for justice faded into the passion for reconstruction, the world once again lost its compass and yielded to the seductive temptations of intolerance. Even before the 1940s were over – the decade that had seen the Holocaust and the Nuremberg trials – Nazis were being welcomed in the West as immigrants, and helped design the military-industrial strategy against the new villain: communism. The Jewish victims of the old villain, fascism, on the other hand, were welcomed nowhere. In addition, Senator Joseph McCarthy revived the odour of antisemitism in the United States; in my own country, Canada, universities still had quotas on Jewish students; courts upheld restrictive covenants preventing Jews from buying property; there were signs posted in various public places saying “No Jews Wanted” or “Jews Keep Out”; and, as the powerful book None is Too Many searingly described, Canada closed its borders to Jewish refugees like me for years after the war. With stunning alacrity, the world abandoned what proved to be its momentary pursuit of tolerance at Nuremberg, and reconstituted itself within five years as if neither Nuremberg nor the Holocaust had ever happened. It was a collective form of repressed memory.

I never asked my parents if they took any comfort from the Nuremberg trials, which were going on for four of the five years we were in Germany until we got permission to come to a reluctant Canada. I have no idea if they got any consolation from the conviction of dozens of the worst offenders. But of this I’m sure – they would have preferred, by far, that the sense of outrage that inspired the Allies to establish the International Military Tribunal had been aroused many years earlier, before the events that led to the Nuremberg trials ever took place. They would have preferred, I’m sure, that the world’s reaction to Germany’s 1933 Reichstag Fire Decree which suspended whole portions of the Weimar Constitution; to the expulsion of Jewish lawyers and judges from their professions that same year; to the 1935 Nuremberg laws prohibiting social contact with Jews; or to the brutal rampage of Kristallnacht in 1938, would have been, at the very least, public censure. But there was no such world reaction. By the time the Second World War officially started, on the day my parents got married, it was too late.

For me, Nuremberg represents the failure of decent, well-meaning Western democratic nations to respond when they should have and could have to a virulent, horrifying strain of antisemitism in Germany in the 1930s. Millions of lives were lost because no one was sufficiently offended by the systematic destruction of every conceivable right for Jews.

And so, the vitriolic language and venal rights abuses, unrestrained by anyone’s conscience anywhere, in or out of Germany, turned into the ultimate rights abuse: genocide.

Some justice did, in fact, emerge in the aftermath of Nuremberg, and there are many connective dots of history leading to the present of which we can be proud. We have made remarkable progress and we are immeasurably ahead of where we were in many, many ways.

But we have still not learned the most important lesson of all – that we must try to prevent the abuses in the first place. We have not finished connecting history’s dots. Decades later, we still have not developed an international moral culture which will not tolerate intolerance. The gap between the values the international community articulates and the values it enforces is so wide, that almost any country that wants to can push its abuses through it. No national abuser seems to worry whether there will be a “Nuremberg” trial later, because usually there isn’t, and in any event, by the time there is, all the damage that was sought to be done, has been done.

We have to recognize that the human-rights abuses we’ve been tolerating in some parts of the world are putting the rest of us in danger because intolerance, the world’s fastest growth industry, seeks in its hegemonic solipsism to impose its intolerant truth on others. Yet over the years, we’ve been incredibly reluctant as a global community to hold the intolerant countries who abuse their citizens to account, and instead, seemed to go out of our way to justify their abuse with an exculpatory lexicon that included terms like cultural relationism, domestic sovereignty, root causes, or, the most recent one, settler colonialism. But in what universe can you ever justify rape, or torture, or hostage-taking?

To paraphrase Martin Luther King, the arc of the moral universe may be long, but it does not always bend towards justice. And that means that too many children will never get to grow up, period – let alone in a moral universe that bends toward justice and the just rule of law.

I used to see the arc of my own life bending assertively from Nuremberg to ever-widening spheres of justice, but in this unrelenting climate of hate, I feel the hopeful arc turning into a menacing circle.

We need to stop yelling at each other and start listening, so that we can reclaim ownership of the compassionate liberal democratic values we fought the Second World War to protect, and to put humanity back in charge by replacing global hate with global hope.

My life started in a country where there had been no democracy, no rights, no justice. It instilled a passionate belief in me that those of us lucky enough to be alive and free have a particular duty to our children to do everything possible to make the world safer for them than it was for their parents and grandparents, so that all children, regardless of race, religion or gender, can wear their identities with pride, in dignity, and in peace.