WomenNuremberg

Coomee Rustom Strooker-Dantra, 1937 (credit)

I’m very pleased to have posted a draft of my most recent paper, Glimpses of Women at the Tokyo Tribunal, online. The work arises out of my ongoing scholarly research into the roles that women and others played in the post-World War II international criminal trials. (prior posts) This research focuses primarily on trials at Nuremberg rather than at Tokyo; however, as this essay indicates, the issues and even the personnel in the two forums overlapped considerably.

Many women are brought to the fore in Glimpses; for example: 5 American lawyers, Virginia Bowman, Lucille Brunner, Eleanor Jackson, Helen Grigware Lambert, Grace Kanode Llewellyn, and Bettie Renner; 1 Dutch lawyer, Coomee Rustom Strooker-Dantra, who had been born in what is now Myanmar; and 1 American, memoir-writer Elaine B. Fischel, who assisted defense counsel but did not herself  become a lawyer until after her Tokyo service.

From left, Eleanor Jackson, Virginia Bowman, Grace Kanode Llewellyn, Bettie Renner, and Lucille Brunner, in Los Angeles Times, 15 April 1946 (credit)

Other women also figure – including some who have been introduced into the Tokyo narrative through a documentary, a feature film, and a miniseries, each analyzed in the essay.

Intended as a chapter in a forthcoming essay collection marking the 70th anniversary of the Tokyo Trial judgment, this draft manuscript forms part of the Dean Rusk International Law Center Research Paper Series at SSRN. It may be found in numerous SSRN sites, including the International, Transnational and Comparative Criminal Law eJournal, of which I am the Editor-in-Chief. I was honored to have presented it during last November’s American Society of International Law Midyear Meeting Research Forum at UCLA Law.

Here’s the abstract:

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

The full manuscript may be downloaded here.

Elaine B. Fischel with Tokyo defense counsel, 12 September 1946 (credit)

OXFORD – A capstone of my Hilary-Trinity Term visit here took place yesterday, when I presented “A New History of the Nuremberg Trials: Figuring Women and Others into the Narrative” to law students and faculty who gathered at the Bonavero Institute of Human Rights, located at Oxford University’s Mansfield College. The Oxford Transitional Justice Research network cosponsored.

Professor Kate O’Regan, director of the institute and a former judge on the Constitutional Court of South Africa, opened my Research Visitor Seminar. Then came my  presentation of my research on the roles women played at Nuremberg – not only the Trial of the Major War Criminals before the International Military Tribunal, but also the 12 subsequent American trials before what are known as the Nuremberg Military Tribunals. Next, Dapo Akande, Professor of Public International Law at Oxford’s Blavatnik School of Government, offered discussant’s remarks before opening the floor for a stimulating round of Q&A.

I’m grateful to all at the Institute for this event and the hospitality I’ve enjoyed during my stay at a Bonavero Research Visitor and Mansfield College Visiting Fellow. Grateful, too, for the opportunities I’ve had to present this work elsewhere in Europe, at the Irish Centre for Human Rights at the National University of Ireland Galway, University of Stockholm, University of Göttingen, and Max Planck Institute Luxembourg.


LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities (image credit); to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

  • honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
  • rejected “any denial of the Holocaust as an historical event”;
  • envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
  • denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
  • encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen  Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30, video available here (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from  the Nuremberg-era tribunals through to today’s International Criminal Court.

This weekend marks the 70th anniversary of the Judgment of the International Military Tribunal at Nuremberg, a moment recorded in this New York Times front page:

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The judgment established that humans, and not only states, may be held responsible for violations of international law – a principle that the General Assembly endorsed in 1950. Recognition that individual acts mattered in the international law soon opened the way for recognition that acts committed against individuals also mattered. The Nuremberg Judgment thus stands as a foundational moment in the international human rights movement, as was recognized inter alia in a 1982 article by Georgia Law Professor Louis B. Sohn, when he was Emily & Ernest Woodruff Chair in International Law, a position I am now honored to hold.

Another Georgia Law professor who’s written about Nuremberg is my colleague Harlan Grant Cohen; these works include: ‘Undead’ Wartime Cases: Stare Decisis and the Lessons of History (2010); Historical American Perspectives on International Law (2009); The American Challenge to International Law: A Tentative Framework for Debate (2003).

My own writings, available here, include studies of the meaning of genocide and essays on women who worked as prosecutors, defense lawyers, and staff (no judges) at postwar trials in Nuremberg and Tokyo. “Women at Nuremberg” is a subject that many IntLawGrrls have addressed, not to mention many more posts on all aspects of international criminal law and international human rights law.

(Cross-posted from Exchange of Notes blog)

lacksThe Nuremberg Code made them do it. Or not do it, to be precise.

“They” were “three young Jewish doctors” who refused a superior’s instructions that, in the name of medical research, they should inject unknowing patients with cancer cells. As stated in The Immortal Life of Henrietta Lacks, the 2010 bestseller by Rebecca Skloot:

‘All three knew about the research Nazis had done on Jewish prisoners. They also knew about the famous Nuremberg Trials.’

Skloot proceeds with a brief account of one of the 12 Nuremberg Military Tribunal trials that followed the Trial of the Major War Criminals. In the Doctors Trial,  23 physicians – among them 1 woman – were prosecuted for conducting medical experiments on camp inmates without their consent. The tribunal’s judgment set forth a list of 10 principles that became known as the Nuremberg Code. First and foremost:

‘1. The voluntary consent of the human subject is absolutely essential.’

Although it appeared in a judgment in 1947, issued by a panel of American judges sitting in Nuremberg, as late as 1951, that injunction had not penetrated the medical establishment Stateside. That is the year that physicians in Baltimore took cells from Lacks, a 31-year-old woman who soon would die from cervical cancer. Those tissues, and others taken in the course of her autopsy, gave birth to a cell line that lives to this day – cells numbering in the billions, used for decades, worldwide, to aid research on a host of diseases and genetic disorders. Lacks’ contribution to science is inestimable. But as Skloot relates in her book, which I’ve just finished reading, it took place without full and informed consent of Lacks or her family.

Indeed, it appears the informed consent norm articulated at Nuremberg was not firm even as late as 1963. That’s when those 3 doctors mentioned at top wouldn’t go forward with the ordered injections. Their refusal began a painful but necessary process of informing the family, by then impoverished in both material and emotional sense of the word. It is heartening to learn that the work of international criminal lawyers gave rise to a norm that led to this revelation of the truth – and, one hopes, to more patient-respectful procedures in our own time.

camingOne of the last surviving Americans who prosecuted Nazi-era war criminals passed away a week ago today at his home in Summit, New Jersey. His name was H.W. William Caming. He went by “Bill.” But he was already well into his 80s when I first met him, and so to me the soft-spoken gentleman was always “Mr. Caming.”

We met at the International Humanitarian Law Dialogs in Chautauqua, New York, cosponsored by the Robert H. Jackson Center (which sent news of his passing). Caming attended that annual gathering of international prosecutors most years, always dapper in suit and tie – even when age had confined him to a wheelchair. (credit for 2011 photo at bottom of Caming, left, with fellow Nuremberg prosecutor Ben Ferencz)

He spoke with great pride of his work at Nuremberg, where he served on the prosecution team for 3 years. Top Prosecutor Telford Taylor hired Caming – who’d spent World War II trying cases with the Air Force Judge Advocate General corps in China, Burma, and India – in 1946. When I interviewed him at Chautauqua in 2010, he remembered:

‘I had just come home from China after 27 months away. I was home in Florida, on 30 days’ R&R. I received a call from General Taylor.  He was at the Pentagon.  I went down.  We had an interview.  The rest is history.’

Caming indeed made history, as a lead prosecutor in the Ministries Case, the trial of nearly a dozen men who’d served in the Foreign Office and other government departments. (credit for photo at top of Caming in trial) His was the only one of the 11 cases that followed the Trial of the Major War Criminals in which prosecutors secured convictions for crimes against peace, known today as the crime of aggression. (The case was also notable as the only one in which a woman served as lead attorney – Dr. Elisabeth Gombel, who secured a favorable plea bargain for the client who chose her, Ernst Bohle.)

Although a few of the Ministries defendants were sentenced to upwards of 20 years in prison, some sentences were much lower, and all defendants were released by 1958, on orders of the U.S. High Commissioner. As he had in “Bringing War Criminals to Justice at Nuremberg,” an essay he published in the Dialogs Proceedings, in his interview with me Caming attributed this turn of events to Cold War politics:

‘There was a changed political climate and the Cold War had erupted. There was a constant pressure to end the case just as quickly as possible. They wanted to use Germany as a bulwark against Communism sweeping over Europe.’

In this view, which some dispute, Caming echoed a book he recommended to me, Peter Maguire’s Law and War (2010).

caming_ferenczNot every day at Nuremberg was difficult, however. Among those who visited the trials was Rebecca West, the Briton who’d written a “quite good” account of the Balkans, Black Lamb and Grey Falcon (1941). “I more or less was her tour guide, mainly through the intricacies of the trials,” but also to a castle that had not been destroyed in Allied bombing and thus served as one of the area’s very few “tourist attractions.” I will remember Mr. Caming’s evident pleasure in recalling that visit, his gentle manner in talking with me, and his unfailing support for international criminal justice.

At IntLawGrrls and elsewhere, colleagues and I have, in recent years, told the stories of  Women at Nuremberg. A 2011 article of mine profiled Cecelia Goetz, who, after becoming the 1st woman to give an opening statement at an international criminal trial, went on to become the United States’ 1st federal bankruptcy judge. American University’s Shana Tabak has published a 2-part series on Grace Kanode, who, in July 1946 in Tokyo, became the 1st woman to appear bdolefore an international criminal tribunal. (See here and here.) And Katherine B. Fite, the U.S. State Department lawyer who helped draft the Nuremberg Charter, is not only the subject of 2 publications (a 2010 article by St. John’s Law Professor John Q. Barrett and a 2012 article by me), but also the namesake of an annual lecture given at the International Humanitarian Law Dialogs.

Not all the postwar pioneers have yet been named, however, and so we have Baltimore attorney Marlene Trestman to thank for bringing another to the fore. She is Bessie Margolin (right). Born in 1909, Margolin’s mother died when she was 4, so that she and her sibling grew up as “half-orphans” in the New Orleans Jewish Orphans’ Home. Her 1930 graduation from Tulane Law School led to research and, in 1933, a doctorate from Yale Law. Soon Margolin found herself the 1st woman lawyer at the federal government’s newly created Tennessee Valley Authority. By 1939 she’d moved to the Wage and Hour Division of the Department of Labor, the beginning of a three-decades career that included argument of 28 Supreme Court cases, plaudits from top-ranking judges, and a slew of awards.  (credit for circa-1950s Department of Labor photo, courtesy of Marlene Trestman) Margolin died in 1996 without ever securing the federal judgeship for which she’d campaigned.

A sliver of that career included the months in 1946 and 1947 that she spent at Nuremberg, Germany. Even as the International Military Tribunal Trial of the Major Nazi War Criminals unfolded at the Palace of Justice, Margolin did the important work of devising the plan for the subsequent trials before the U.S. entity now known as the Nuremberg Military Tribunals. The article’s depiction of Margolin’s dual status, as a serious lawyer and as an oft-invited guest at parties, mirrors stories of Fite and others.

Author Trestman, who lived years later at the same New Orleans orphanage, published a brief account of Margolin’s life last year, in a Journal of Supreme Court History article entitled “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin.” She’s now at work on a book-length treatment, one that will enrich understanding of the contribution that Margolin and other women lawyers of the last half-century made, both away at Nuremberg and here at home.