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2011 Days of Remembrance Browse

Remarks by Tom A. Bernstein


As the procession of the liberating division flags begins, we think about the extraordinary sacrifice of our soldiers who defeated Nazism. It is worth recalling that even while they were embroiled in combat – well before the magnitude of the extermination of the Jews was fully revealed – discussions began among the Allies about post-war justice. With foresight and temperance, the victorious powers resisted vengeance in favor of the law. A new legal precedent, they hoped, would extinguish the possibility of the world ever facing these crimes again.

The International Military Tribunal at Nuremberg codified a new law to protect civilians – crimes against humanity. And it prosecuted Nazi war criminals for atrocities they committed not only against their own citizens, but those of other nations. It rejected the long-standing doctrine of sovereign immunity, which exempted heads of state from prosecution. And it rejected the doctrine which protected subordinates from being prosecuted for crimes they committed under orders.

Among the men working with the prosecution team to prepare for the Nuremberg trials was Raphael Lemkin, a Polish Jewish lawyer who had fled to the United States. Lemkin had dedicated his life to creating legal protections for ethnic, national, and religious groups, and in 1941 he had introduced the word “genocide” to give name to the systematic murder of targeted groups. Lemkin managed to get the word “genocide” included in the indictment against Nazi leadership, but the trial at Nuremberg failed to define it as a specific crime in international law.

After the war, Lemkin learned that 49 members of his family, including his parents, had been killed in the Holocaust. Horrified and driven, he worked tirelessly to have the newly-formed United Nations adopt the Convention on the Prevention and Punishment of the Crime of Genocide.

Relying on the standard set by Nuremberg, the Convention created a framework in which nations could hold one another responsible for crimes against civilian groups. But the decades that followed were marked by tragic disregard for mass atrocities. It was not until the 1990s that, having failed to stop devastating violence in the former Yugoslavia and Rwanda, the international community held the first international tribunals since Nuremberg.

Later, the International Criminal Court was established as the first permanent judicial body to try individuals for the crime of genocide. And in 2005, the UN adopted the doctrine of “Responsibility to Protect” which affirmed the fundamental idea of Nuremberg.

Guided by Nuremberg, our efforts to prosecute perpetrators of these enormous crimes have certainly progressed. But the most meaningful legacy of Nuremberg will come when our actions today invalidate the need for trials tomorrow, and our ability to prevent genocide becomes real. So as the U.S. Army flags enter the Rotunda, we recall not only our brave soldiers and their legacy of freedom, but also the 462 post World War II American military trials and their legacy of justice – a legacy we need to fully honor.