Law and War
by Peter Maguire
Columbia University Press

International law is in many respects an oxymoron. Modeled on the social contract, it presumes that countries, like people, will give up some of their rights (or sovereignty, in the case of nations) for the protection of the rest and the good of the community. But not all nations agree on the extent, value or even existence of an international community, and ultimately international law relies on the goodwill of large, powerful states, which usually nullify them when they outlive their usefulness. Thus economically powerful nations eagerly enter trade agreements but are less eager to join international courts.

The Bush administration has shown little restraint in derailing most of Clinton's efforts to place the United States within the international law community, and has campaigned vigorously against the international criminal court. Likewise for the ABM Treaty, the Kyoto Protocol and the germ-warfare control regime. At the same time, Bush has been quick to retort that he fully supports the international law canon, but not when it conflicts with American interests. That such a stance is a contradiction in terms seems not to have sunk in with the president.

Defenders of America's pick-and-choose attitude note that the United States was among the first to promote modern international justice before and after World War I, and that our country was the leader in the canon's codification at the post-World War II International Military Tribunal in Nuremberg. It was, after all, lawyers like Telford Taylor and Robert Jackson who dominated the proceedings, not only convicting Nazis like Hermann Goering and Albert Speer but in the process defining concepts like the "war crime" and the "just war."

In turn, Peter Maguire's "Law and War: An American Story" is a powerful rejoinder. Though the book focuses on the later portion of the trials, in which lesser Nazis and industrialists were tried exclusively by American lawyers and judges (as opposed to the IMT, which was American-led but internationally composed), Maguire goes back as far as the Indian Wars of the 1860s to support his thesis that the American support for international military law has never been about morality, but rather about constructing a moral front to support cold, calculating diplomacy. As a result, Maguire concludes, the Nuremberg trials were less the foundation of an international morality than a codification of a unprincipled, opportunistic approach to international law.

Maguire, a history professor at Columbia, begins with the United States' Janus-faced attitude toward military justice in the 1860s, when it developed strict codes of military morality in the Civil War but let its officers get away with crimes of near-genocidal proportions in battles with Native Americans, claiming that the later were "unethical" and undeserving of equal treatment. As the United States emerged as a world power at the turn of the century, such dualistic legalism allowed American lawyers to demand strict military treaties and codes of war from European powers while terorrizing civilians in its anti-guerrilla campaign in the Philippines.

The key, Maguire argues, was a positivist, legalistic approach to international and military ethics in which what was right was determined by the letter of the law. Thus, the letter of international law being open to modification and nullification by treaty, international ethics were ultimately a question of politics and power.

Maguire's beef with the Nuremberg proceedings, then, is quite straightforward: because many of the lawyers involved approached the trials as a useful tool in shaping an international climate advantageous to American interests, they were successful only as long as they undergirded American post-war foreign policy. By the early 1950s, though, with the Soviets fully entrenched in Eastern Europe, the United States couldn't afford to continue prosecuting the German political and economic leadership. The Germans had never accepted the validity of the Nuremberg trials as a new form of criminal justice, and with their renewed status as a bulwark against communism they pushed for an end to the trials, the commutation of death sentences and early parole. The United States quietly complied with their wishes, and by the late 1950s most of the Nuremberg prisoners had been released.

"Law and War" presents a powerful argument, and one that deeply indicts America's current holier-than-thou international attitude. But while Maguire's long-range analysis is original and thorough, he falters by stopping his discussion at 1960. Is it fair to say, as he implies, that all subsequent American forays into international law have been tainted by the Realpolitik of Nuremberg? Conversely, how does indicting Nuremberg explain something like the My Lai massacre?

Part of the problem with "Law and War" is less its deceptively narrow scope than its confusing structure. Maguire's thesis is straight forward, but the amount of material he needs to cover is immense, and at times he gets bogged down in the details. Rather than using specific moments in the trials to bolster his overall point, he spends too much time describing courtroom play-by-play. Claiming to turn the tables on one of America's sacred legal moments, Maguire doesn't have the latitude for a 30-page excursus on the trial of a group of second-rung Nazi officials.

It is unfortunate that "Law and War" is not more clear, because its message is both relevant to and critical of America's current stance vis-à-vis the international law community. The cornerstone critique of American international law policy has yet to be written; when it is, "Law and War" will be an important footnote, but little more.

— Clay Risen (clay@flakmag.com)