A New Deal for the Nuremberg Trial? Discussing the History of Crimes Against Humanity with Elizabeth Borgwardt
More and more social science research suggests that polities recovering from eras of mass atrocity do best with strategies that are both forward-looking and backward-looking. Forward-looking initiatives may include constitutional revisions, support for non-governmental organizations, and amnesties; backward-looking devices may include summary executions, war crimes trials, or truth commissions. While few would argue that we are in the twilight of impunity, scholars who study the generation and diffusion of norms look to recent settlements in Argentina and Columbia that stress increased accountability for past atrocities. The conviction of former Chadian dictator Hissène Habré by a Senegelese court for crimes against humanity and war crimes in early 2016 might be a harbinger of future, more regionally-grounded processes of international justice. Even more recently, the conviction of an ISIS militant for the destruction of ancient documents and religious sites in Mali has suggested an expansion zone for war crimes that would take in cultural destruction.
Critics of liberal internationalism, by contrast, are heralding the death of the human rights idea in light of the recent U.S. presidential election, Brexit, and the resurgence of ethnic nationalism in the West and elsewhere. Atrocity crimes seem to be a growth industry and botched humanitarian interventions are also doing a brisk business. These critics also ask how institutions such as the ICC and the UN tribunals for the Former Yugoslavia and Rwanda could have any legitimacy at all, as they are dominated by Western elites, with judges who are vetted and qualified to preside only after receiving indoctrination at Western law schools, while defendants are inevitably drawn from smaller, weaker countries, some of which are now turning their backs on international institutions in general and the ICC in particular. Law, skeptics say, has been unmasked as really "just politics;" that is, only capable of generating scenarios where illegitimate power expresses itself by means of adulterated law.
Convincing one side or the other of the moral legitimacy of today's international tribunals may indeed be a rather fruitless exercise. In the meantime, however, it may be helpful to ask a more historically-informed set of questions, such as how some of the foundational ideas in international justice from the 19th century and before came to be institutionalized in the 20th century, or how the very format of trials came to be added to the spectrum of responses to various kinds of atrocities against civilians, or indeed how the idea of what might count as a "crime" in international law came to be debated and refined.
These are the questions at the heart of the research agenda of Elizabeth Borgwardt, an associate professor of history and law at Washington University in St. Louis, and a permanent faculty associate of the Center for American Studies at the Ruprecht-Karls-Universität Heidelberg. Borgwardt also recently served as the Richard and Ann Pozen Visiting Chair in Human Rights at the University of Chicago. Readers will probably best know Borgwardt as the author of the 2005 monograph A New Deal for the World: America's Vision for Human Rights, published with the Belknap Press of Harvard University Press and co-winner of the Merle Curti award for best book in Intellectual History and of the Stuart Bernath Book award for best first book in U.S. foreign relations.
Now considered to be field-defining research in the then-novel specialization of human rights history, Borgwardt examined how the 1941 Roosevelt-Churchill Atlantic charter served as a kind of ideological blueprint for many of the young lawyers negotiating the draft charters of various wartime international institutions, notably the 1944 Bretton Woods agreements, the 1945 United Nations charter, and the 1945 Nuremberg charter. She explored how these new institutions were meant to generate a world order that would somehow "advance" human rights and, for the US officials involved, one which would entrench and extend U.S. influence. A major theme of New Deal for the World was also the role of unintended consequences, in that a variety of constituencies seized upon the vague and inspirational rhetoric in the Atlantic Charter and sought to use it for their own ends.
Now, however, Borgwardt is interested in a different set of questions related to human rights politics and ideas: how did "human rights" become a concept that even the most heinous regimes feel that they need to buy into, if only to pay it lip service? Why did ideas about sovereignty and individual accountability articulated in a courtroom in provincial Germany go on to affect larger systems of international justice? The answer to these questions — grounded, in Borgwardt's case, in her background as both a lawyer and a historian — cannot but interest us in a world that continues to be scarred by human rights violations, both domestic and international.
The Toynbee Prize Foundation's Executive Director, Timothy Nunan, recently had the opportunity to sit down with Professor Borgwardt during a visit to Harvard University to present an excerpt from her new manuscript, with the working title of The Nuremberg Idea: "Thinking Humanity" in History, Law & Politics, under contract with Alfred A. Knopf. We have reproduced below an edited transcript of that conversation.
Timothy Nunan (TN): Thank you for taking the time to sit down with us.
Elizabeth Borgwardt (EB): I was so thrilled to receive your invitation! I had just been reading your wonderful interview with Susan Pedersen, in preparation for reviewing her book on the League of Nations, and was already hoping that some day I'd have the opportunity to be speaking about my new manuscript.
TN: Perhaps we should start with your path to the profession of history. I know that you came to history after a career in law. If you could maybe talk a bit about your path to history. Did you have any initial inclination toward working as a professional historian?
EB: Well, I wasn't sure I'd be lucky enough to be a professional historian, but maybe as a lawyer or legal scholar with a deep interest in history. My interest in the Nuremberg trials dates back to when I was a law student here [at Harvard]. As a creature of habit, I would always sit in the same place to study. I preferred the more human-scale International Legal Studies library to what I saw as the overblown pretentiousness of the main law library, with its gilt engravings and huge portrait of a fierce-looking Oliver Wendell Holmes. My study spot happened to be opposite the forty-two volumes of the Nuremberg trial transcripts, so that became my procrastination project, just reading through all the volumes.
I also used to hang around in the upstairs stacks, and became obsessed with a typescript version of the dissent of the Indian Justice, Radhabinod Pal, at the 1946-48 Tokyo War Crimes trial; the sheets were just unbound pages in a folder. Hardly anyone had published anything about Pal's dissent at that time. I could see records of who had signed for it at Harvard, for instance, which was exactly nobody, with no publications specifically on the dissent the card catalogue.
Pal's contribution to the Tokyo trial was an impassioned diatribe that ran to over a thousand pages in manuscript. And so a study of Pal's dissent as a kind of early Third World critique of public international law as a hegemonic imperialist club became my third-year paper in law school, working with Detlev Vagts. Pal wrote about the use of atomic weapons was a crime against humanity, for example. I was so preoccupied with this text that my friends began to refer to my paper as "our pal Pal" because he had become part of their lives, too.
I published the paper on Rahadbinod Pal as a law review article during my judicial clerkship, which I served in San Francisco. Soon, though, the opportunity to think more broadly appeared. After I finished the clerkship, I unexpectedly had the opportunity to do some law teaching down the road at Stanford, because they needed someone to fill in as a temporary lecturer. I was hoping that in addition to teaching and practicing law, I would also be able to turn my long Tokyo trial article – "Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial" – into a book.
But the more I followed up on the issues and problems with the Tokyo War Crimes trial, the more I felt that all roads were leading back to Nuremberg. Almost everyone analyzing the Tokyo trial has highlighted how similar the Tokyo charter was to the earlier Nuremberg charter, for instance. So that became my jumping off point: Why did the Nuremberg charter look that way? Why did the trial's designers set it up that way, rather than some other way? What did they think they had learned from the failed experience of the war crimes trials in the wake of the First World War?
TN: So, as you were beginning this research process, what were your biggest misconceptions about Nuremberg? What are some common impressions that people have about Nuremberg that turned out not to be correct?
EB: Well, there are a number of mistakes people commonly make about the main 1945-46 Nuremberg trial, such as arguing that the term "genocide" was not used at all, or that there were no witnesses at the main Nuremberg trial, or that the term "crimes against humanity" was an innovation that was created for use at Nuremberg. These are simply factual errors that I still see everywhere.
Then there are what I might call mistakes of emphasis. The main one is portraying the designers and litigators of the main Nuremberg trial as much more farsighted than they actually were. In real time, the Allied prosecutors in particular thought they were running a trial about what they called crimes against peace, that is, waging aggressive war. They thought they were strengthening and extending the Kellogg-Briand Pact [the 1928 Pact of Paris] to definitively outlaw aggression. Crimes against humanity was to them little more than an afterthought. How crimes against humanity came to be the main show over the course of the postwar era is one of the fascinating stories in these archives.
I think it is also fairly common to elide or downplay the importance of the twelve so-called "subsequent" trials held in the same Nuremberg courtroom from 1946 to 1949. These were the later, thematically-organized trials convened by the United States such as the Doctors' Trial, about involuntary medical experiments, or the Industrialists' Trials, about the responsibility of corporate directors for human rights abuses such as the use of slave labor. The movie Judgment at Nuremberg was about one of these subsequent U.S. trials, the 1948 Judges' Trial, for example, not about the main, four-power tribunal. It was also, I believe, William Shatner's film debut.
TN: Sure. And although there has been a great deal written about Nuremberg, I was struck by your assertion that there are very few treatments of all thirteen trials.
For me what stands out is the chance to examine all thirteen trials as episodes in international intellectual history and how they worked together to reshape important, pre-existing legal concepts. And the role of the Doctor's Trial, the Industrialists' Trials, and the other thematic trials at Nuremberg are what makes this a "U.S. in the World" story, in that these later trials were designed and run by U.S. occupation forces, as was the contemporaneous Tokyo Trial. I now see how my analysis has benefitted from analyzing these 1945-49 trials as a group.
This framing reflects my own path to studying the trials. I have been working at the seams where history, law, and IR intersect since I was undergraduate. I earned an M.Phil. in International Relations at Cambridge, really as a fourth-year of undergraduate study. Coming out of law school, I had reverted to that lawyerly perception that it was more professional to find what lawyers would call bright line between "the politics" and "the law" of Nuremberg. I was going to find some definitive way of doing that, with politics meaning, basically, illegitimate approaches that should be discarded, and a realm of law, meaning whatever shards of the trials were legitimate and should be respected.
I cast this approach aside after reading Judith Shklar's brilliant book, Legalism, where she basically throws this false binary out the window. Her framing had so much intuitive traction for me, where she basically said, "what a stupid question as to whether these trials were "good law" or "just politics." Surely it's ALL politics!" She went on to argue that just because an international trial is a political act doesn't then mean that it's the same as a Soviet show trial, with Vyshinsky sitting there, but that these trials may be situated on a spectrum of responses to atrocities that could appropriately be more or less politically contested. We can then argue about the quality of the politics. The key question then became was it better to have conducted these trials than not to have conducted them, and how might we argue abut that, rather than was Nuremberg perfect or pure.
This was a much richer and more fruitful debate, to me, than just saying "everything to do with liberal internationalism is terrible," which was kind of where I was coming out of the Pal article. And on a more wide-ranging level, Shklar's scholarship showed me how legal history might be seen as a branch of intellectual history, as she had long argued.
TN: It sounds like the Indian dissent, if you like, gave you an externalist platform or language with which to think about this, while the Shklar was this internalist perspective from which to dwell on these issues of liberal internationalism from within that discourse.
EB: Yes, exactly; that's very incisive. Nuremberg's critics were vitriolic and legion, both then and now. And one of their most persistent framings tends to be that the trials were "tainted" by politics, and this would accordingly mean that the proceedings could not amount to "real" law. As noted, this was the perspective I once shared. But then I began wrestling with how to continue to critique the many shortcomings of these thirteen trials without dismissing the whole enterprise.
TN: Was this all going through your head as you were doing the PhD?
EB: Well, I was still practicing law at this point, but it was becoming clear that my dream of turning that Tokyo trial article into a book was not going anywhere. While I was still serving as a law lecturer, I made an appointment to speak with the chair of the History Department at Stanford, literally wandered over with my law review article in my hand to meet with David M. Kennedy. And I said, look, I have this dream of writing a book about World War II-era legal history – do you have any kinds of fellowships or visitorships that might help me do this? And when he finished laughing, he basically said, "You're coming from the Law School and asking me for money? Are you kidding?"
Fortunately for me, Kennedy then suggested that if I were really serious about writing a book, I should consider applying to do a doctorate in history, and Stanford might even be able to waive some of the coursework as I already had a subfield in legal history by virtue of my law degree. Initially, I thought, "Really? Another degree? No thanks!" But the longer I continued in practice, the better this idea seemed. Mostly I was just very lucky that at that time Kennedy was working on what became his Freedom From Fear on the 1930s and 1940s. I became one of the research assistants for that book, and I think perhaps because Kennedy viewed himself as having a World War I and Progressive-era specialization in U.S. history, he was happy to have some people around who were working on World War II.
TN: And I presume that your set of research interests, from working as a research assistant for Freedom From Fear, played into the making of A New Deal for the World?
EB: Well, the interests for me were pre-existing. But I definitely felt as if I had hit the jackpot in being able to work with Kennedy. The truth is, I always thought that Freedom From Fear would have been the best title for my book! And David Kennedy, in common with many of the best advisors, always encouraged me to write the dissertation as a book manuscript, devoid of both legal jargon and historiographical throat-clearing. He would say things like "you have to be able to tell your story without mentioning the name of Jurgen Habermas," which I always thought was kind of hilarious.
I found I enjoyed writing about documents and their construction. I loved the way the U.S. negotiators of the United Nations Charter, especially, would talk about how they were giving life to an earlier, more general statement of principles, the 1941 Atlantic Charter, negotiated by Roosevelt and Churchill and a handful of their senior staffs before the US had even entered the war. They talked about how the Atlantic Charter was like the American Declaration of Independence and how the UN Charter was more like the US Constitution. I think they really believed this; it was fascinating.
Using a particular document as a jumping-off point for a wider meditation on U.S. foreign policy was a venerable device, just as Felix Gilbert had done with Washington's Farewell Address, which was a book I was teaching with at the time.
So, at the dissertation stage, Nuremberg became a label for a package of issues, a kind of case study, as one of three charters of institutions that were set up during the war — first the Atlantic Charter, and then its three "progeny" charters in the realms of international political economy, security, and justice – i.e., the Bretton Woods Agreements, the UN Charter, and the Nuremberg Charter.
I thought I was writing a book about institutions. And the late, great Ken Cmiel took me aside at the Annual Meeting of the American Historical Association and asked, "do you realize that what you are really writing about is human rights"? In the early 2000s there were very few dissertations actually focusing on human rights, but Cmiel encouraged me to join him in developing this subfield.
By way of encouragement to others who may be reading this interview, I should say that I had a fair amount of pushback from publishers at first — my revised manuscript was over 1000 pages, and this in a world where academic publishers are skeptical about publishing dissertations that are 300 pages. They wanted something that was the moral equivalent of 220 typeset pages, and I would explain about the comparative approach, and that each of the three case studies needed room to breathe, room to develop, and eventually I convinced them.
TN: Could you talk a bit about the research process for New Deal for the World and some contrasts with your current project? Now you are including quite a lot of analysis about middle-tier actors, and the role of exile governments like the Poles in London. Looking back on the experience you had with New Deal for the World, what would be your advice for people writing dissertations in the U.S. in the World field?
EB: Well, I wouldn't recommend doing it the way I did it! That is, spending lots of time with archives and unpublished sources before you even know what you're doing. And even trying to write an initial draft with minimal secondary citations. Basically, I wrote my dissertation twice; once almost exclusively with archival sources and then again after I realized that many of my points had already been made in the secondary literature. As a graduate student, I didn't want to be seen to be overstepping in claiming originality. So if anything, I went overboard with the secondary literature. It was very time-consuming. One reviewer actually said "any time I was looking for a citation, it was there. Every single time." I think this may be too high a standard to be realistic this time around.
After saying that was a mistake, however, I've ended up doing almost the same thing with this project. If you're in a hurry, again, I think it would be a huge waste of time to adopt this approach. For this chapter [from Nuremberg Idea], I'm interested in how certain intuitions I had about the "crimes against humanity" label played out in the primary sources. Giving shape to these intuitions, however, just came from reading and reading and reading. I could feel a kind of gravitational pull from the sources: the more I read, the more I knew the material I was looking for would be out there based on what else I was reading. And yes, as with the New Deal book, the "middle tier" actors were key, as Paul Kennedy has argued in a military context.
TN: Perhaps a way to frame this in relation to your talk is, you're framing this around Herbert Claiborne Pell, whom I think is not there on the "Greatest Hits of American diplomacy" …?
EB: . . . And kind of a nut, right? I'm drawn to these individuals, in part to underline that intellectual history is also about people and their stories. There's a strange kind of hierarchy in our subfield where theory or quantitative analysis is meant to be persuasive, but deep archival work on particular episodes is somehow just sparkly anecdotes. It's puzzling to me, because these stories, when they are done well, have at least the potential to be suggestive or even emblematic in various kinds of provocative ways, and to supplement more theory-oriented approaches. And of course, one can tell stories with numbers or with theories, as well.
TN: When did Pell appear on your radar, then?
EB: Well, Pell's story is partly a kind of penance for having excluded him and his organization, the United Nations War Crimes Commission, from New Deal for The World. There, I didn't really talk about the War Crimes Commission at all; it just seemed to me that Gary Bass and other analysts looking at the early '40s were consistently saying, "Look, if few of the actors at Nuremberg or later are thinking in terms of the UNWCC, then why should we?" Subsequently, Dan Plesch published some fascinating work on the UNWCC. So I wondered: could they both be right? Could the UNWCC matter as intellectual history even if there wasn't a direct line?
TN: As a research strategy, you look at Plesch's book, and his work in making those files public, and it's 500,000 files of documentation. And you think, we live in a world in which if you want to write a book whose fulcrum will not be the UNWCC …
EB: Again, not terribly efficient, I know. I had actually read a great deal about the War Crimes Commission before their records were declassified, since they were available in the U.K. although not in the U.S. And this material also struck me as another way to make the case for the value of archival work, in that they do cast a very different light on some of these origin stories about how terms such as crimes against peace and crimes against humanity were used at Nuremberg.
TN: Well, to set this up more for people who will be reading this interview without having been at the seminar, one of the issues that you are engaging with here, and that Pell is engaging with, is this distinction between crimes against humaneness – "Menschlichkeit" – and the other as crimes against humankind –"Menschheit" – the one, a kind of chivalric notion, the other a more modern notion of humanity. Some people might say, "This seems like the reason I dropped out of German class," but for you it's emblematic.
EB: Haha! I don't think it has to be quite so esoteric. I'd say that the larger purpose is to fold in cultural politics with legal analysis, rather than to reify the term "crimes against humanity" and then ransack all of human history in order to find the same label in use at various moments in the past. There's a split between what we might more modernly call humanitarianism and human rights. And I wasn't persuaded by what I read in either the social science or the legal literature by how we analyze and historicize that split.
By the way, I don't think that any international lawyer today would necessarily look at it this way. But scholars in other fields are able to use a wider lens. For example, I recently an e-mail from John Ikenberry – actually, that was kind of a thrill – asking me whether I agreed that in the early 1940s this civilizational rhetoric around the outbreak of World War II was displaced by a new Four Freedoms rhetoric that focused more on developmentalism. Yes – exactly! Crimes against humanity had been "crimes against civilization," a much more 19th-century vision of civilization. The 1940s displacement was that such atrocity crimes became crimes against what we would now call human rights.
TN: Is that "the Nuremberg Idea," then?
EB: Yes, although interestingly, it didn't take place at the main Nuremberg trial. The designers of the first trial struggled with this approach, but they were so preoccupied with prosecuting aggression that crimes against human rights were never anything but a sideshow. Figuring out the place of atrocity crimes was much more a function of the so-called subsequent Nuremberg trials that I mentioned before, the twelve trials at Nuremberg from 1946-49. This is fascinating to me; that it's a Nuremberg idea, but a different Nuremberg than the one we normally think of.
TN: It's helpful. Also, it seems that maybe a decade letter, we have ideas of Judeo-Christianity, or the Judeo-Christian heritage as moves away from a kind of ideology of, let's call it Semitism, where Jews are seen as a distinct limb within the West, to something that's part of a greater, a greater Western whole.
EB: Sure, that kind of broader shift. There's this move toward pluralism as an affirmative Allied value, which Wendy Wall has analyzed so well in her Inventing the American Way. You think of something like the wartime buddy movie, where there's an Italian, an Irishman, and so on in the foxhole. And all of this is set up to counter this vision of the Third Reich, of ethnic homogeneity. But then you see some of our historical actors in say, the US Office of War Information, putting the brakes on when it comes to race, resulting in awkward teachable moments like the film "A Welcome to Britain," which basically suggests that white servicemen shelve their prejudices for the time being.
TN: This reminds me of a conversation I had with Adam Tooze for the Toynbee Prize Foundation last autumn. A point he really emphasizes in The Deluge is that Wilson was very nervous, at least in his telling, of bringing the US into the war, because of this sense that assimilating these Italians, these Irish, etc., was so urgent. And by the 1940s, now, in your telling, this assimilated Irishman can be presented as an achievement rather than a challenge. Does this embrace of American pluralism look different in the Tokyo Trials? Does this change, do you think, when they are judging non-Europeans?
EB: Well, there's an even bigger gap between what happens at the Tokyo Trial and US public interest in terms of attentiveness to that trial. I think there is a greater support among the US public, a la John Dower, in terms of wanting just to hang everyone. As draconian as that sounds, if you think of how little debate there was relatively recently about simply assassinating Osama bin Laden versus putting him on trial, it was closer to that kind of atmosphere. Now, obviously, bin Laden was part of an ongoing enterprise, as opposed to the end of World War II in Germany and Japan, where the war was definitively over. But there wasn't a great deal of scrutiny of the trial device in a Japanese context, more like a collective shrug around the idea that "if MacArthur thinks this will make Japan more governable, then, great."
TN: Could you talk about the current architecture of the Nuremberg book? Could you describe what the arc of this book will be for us?
EB: Well, as a consumer I was never able to find the one book I really wanted to read about Nuremberg, which would be a treatment about where some of these ideas and concepts came from, or at least different kinds of origin stories — not just Hersch Lauterpacht having Sunday lunch with Robert H. Jackson – and then would take these ideas through the postwar era to see how they would play out.
I had conducted enough research for my first project to see "crimes against humanity" as a late 19th century concept, that there was an important iteration and distillation in the late 19th century, just as Peter Holquist and others have been arguing. And Geoffrey Robinson will probably come and point to an instance in the 15th century, and how Louis XVI was tried for "the crime against humanity" which was tyranny, so I definitely get it that the locution was older.
It was interesting to me that our historical actors in the 1940s rely on the 1899 Hague Conventions as a direct precedent, but they don't discuss anything earlier, and they don't even discuss documents coming out of the Armenian Genocide that use the term crimes against humanity, even though some of these papers were British. These New Deal lawyers and others seem to think that they are massaging the Hague concepts from 1899 to help international law "make progress." It was only the more granular archival research from basically 1942-44 that enabled me to see a shift taking place beyond the legal plane.
TN: And it seems that for the purpose of this chapter, you are coming back to Shklar, in that you are not just the legal brain in the jar, judging about reality, but you're in this world of people with head colds and bronchitis in London, arguing, messily, about concepts.
EB: Yes, that's the chapter I'll be workshopping today. But then there's the question of how far to take it up chronologically in the book as a whole. Because today crimes against humanity features very prominently in the ICC's Rome Statute, and Saddam Hussein was tried for crimes against humanity, as was Radovan Karadic. For now it seems as if the UN promulgation of the "Responsibility to Protect" in 2004-5 seems like a reasonable place to stop. One book can't be about everything!
TN: Indeed, 1880s to 2004.
EB: Not exactly the longue duree, but still quite a big chunk of time, especially as compared to my first book, which focused on 1941 to 1946. Of course not every episode can be as detailed as it in this particular chapter. But there are certainly moments where I zero in. The Eichmann trial is one, for example, when Hannah Arendt argues that there is a mistaken focus on "crimes against the Jewish people" rather than crimes against humanity, and the controversy that flowed from her analysis. Where is the book that puts all thirteen Nuremberg trials together with Eichmann? A book that would cover the Nuremberg story, but take these nineteenth century events seriously, as well as analyzing the postwar unfolding. So I find myself writing the book I always wanted to read myself.
TN: Well, I guess to begin to bring this to a close, someone today might look at the ICC and say, "Why is it that the USA was so vociferous in creating a criminal court at Nuremberg, and today there's little interest in international criminal law." So, a very presentist question, but what do you think are the lessons that one can draw from this earlier moment of deep US investment in international criminal legal institutions, versus our present moment of disinvestment?
EB: Yes, at certain junctures we see the U.S. building and reinforcing institutions and norms, and then at other times flaunting them or undermining them. But to me it seems kind of unsurprising that superpowers would try to construe their self-interest in a self-interested way. What does seem surprising is that the U.S. did it at all, and that the gap between what was going on at Nuremberg and what people thought was important, namely the prosecution of aggression, and what was important later, turned out to be so wide. There was a huge gap between what contemporaries thought Nuremberg was about and what we think it's about now.
TN: As you have been writing this project, are there any inklings of what you would like to work on for future projects?
EB: Yes, definitely! Initially, some folks labeled my work "ambitious," usually as shorthand for "where does a graduate student get off thinking she can write about these big, sweeping topics?" Believe me, "ambitious" in that context was not a compliment. Now, I have young scholars come up to me who say, wow, it's so great that you work on these huge projects; it encouraged me to cast my net more widely. Look at these superstar scholars like Adam Tooze —how can you write a single book about World War I? It's clearly possible, and it's important, I think, especially post-tenure, to have a project with a big chronological and analytical sweep, and for me that's Nuremberg Idea.
For the next project, it will definitely be something more bounded, a short monograph about corporate responsibility for human rights abuses, with a focus on the 1980s, from which I've already started publishing articles. I have a number of projects underway post-Nuremberg Idea and they are all much more bounded! I have a co-edited volume on Grand Strategy, with Andrew Preston and Christopher Nichols, and an article on sovereignty which focuses on the Trust Territories of the Pacific Islands. Also a collection of human rights essays with Penn Press, because so many of them have been published in law reviews or edited volumes, and are somewhat difficult to find.
The corporate human rights abuse project is really exciting terrain for me – a number of the earliest arguments about group versus individual responsibility are being made at Nuremberg, actually, at the Nuremberg Industrialists' Trials. There's a great deal I could do with the industrialists' trials on their own, to say nothing of their postwar legacies, which in the U.S. case is the transformation of the Alien Tort Claims Act of 1789. The idea sometimes shocks people, where with Exxon in Indonesia, or Chevron in Nigeria, in certain circumstances you can have foreigners suing U.S. companies in federal court for human rights violations. This kind of transnational litigation has not yet been properly historicized. I think this is the case because historians think it will be too technical, and then lawyers don't care about analyzing it historically, so very few scholars look at the Alien Tort Claims Act outside of a given contemporary controversy.
TN: This reminds me of the work of Toynbee interviewee Daniel Immerwahr, who writes about these debates around the group, the corporation, if you like, as a scale of human sociability.
EB: I admire his work very much. I also like the work of [the Princeton philosopher] Philip Pettit, too, on how groups make decisions.
TN: What books have you been reading recently with an international or global bent that have really stuck with you?
EB: Well, certainly Susan Pedersen's book, which I reviewed for the Journal of American History. I am also a huge fan of Isabel Hull's work, particularly her most recent book, A Scrap of Paper, on World I era public international law. I love their richly archival treatment of legal issues and of the history of international relations. That's more of a niche area than you might think, at least outside of the U.K. You have figures like Isaiah Berlin in the British tradition, but today I don't think that even Berlin or Hannah Arendt could get a job in a U.S. political science department today. There are exceptions – Ira Katznelson, John Ikenberry, and Michael Barnett on humanitarianism. I am a huge fan of political scientists and legal scholars who use archives, as well as historians who cross over into political or legal theory.
This is an exciting moment where History Departments are explaining to the wider academy that Global History or International Intellectual History is actually something different than what used to be called "Area Studies." You have excellent books in this category that just don't get enough attention, such as Anne Kornhauser's Debating the American State, Benjamin Coates' Legalist Empire, and Stephen Porter's Benevolent Empire.
I'm also interested in work that is experimenting with other, less academic approaches, such as Philippe Sands' East-West Street, which combines biography and family memoir, and which I'm reviewing now for Boston Review. And I'm reading some classic works of Grand Strategy, to help conceptualize how that field might expand into areas such as international public health, women's roles in development, and human rights.
It should hardly surprise readers from the above that Borgwardt's visit later the same afternoon to the Harvard International and Global History Seminar, led by Professors Erez Manela and Toynbee Prize Foundation Trustee David Armitage, attracted a large and enthusiastic crowd. Like us, many of the attendees were interested to discuss with Borgwardt how she intends to reconcile the granular detail that her archival finds allow her to provide on figures like Herbert Pell and Adolph Berle with the broad chronological scope of her intellectual biography of "the Nuremberg Idea." Likewise, there remains open the question of how one can actually track the traffic in ideas between the European governments-in-exile in London and figures like Berle, Lauterpacht, and Robert Jackson.
Borgwardt noted that foreign language skills were helping her to better document the transnational intellectual history of "crimes against humanity," and that U.S. in the World as a subfield can only be strengthened by additional multilingual, multiarchival scholarship and transdisciplinary inquiry. She noted that there is exciting work in progress by Francine Hirsch about how the Soviets understood and contributed to public international law that will also shed a different light on the proceedings.
As Borgwardt's achievement in A New Deal for the World has shown, there are few scholars of international history better able to weave together meaty archival work and abstract legal theory and combine it with compelling analysis in an engaging narrative. We thank Professor Borgwardt for agreeing to be interviewed on her research agenda, and we know that we are not alone in following The Nuremberg Idea as it approaches print.