History Extra Podcast
Episode: “You can’t kill and maim with impunity”: the powerful legacy of Nuremberg
Date: December 7, 2025
Host: Dave Musgrove
Guest: Philippe Sands, international law expert and author

Overview

This episode concludes a four-part series exploring the Nuremberg war trials of 1945–46 and their lasting legacy. Host Dave Musgrove is joined by Philippe Sands, professor of law and acclaimed author, to discuss how Nuremberg laid the legal and moral groundwork for modern international justice systems, unpacking the evolution of tribunals, the complexities and shortcomings of international law, and the enduring relevance of Nuremberg’s core principles in today’s world.

Key Discussion Points & Insights

1. Nuremberg's Global Context and Parallel Trials

[03:14–05:53]

• Philippe Sands outlines that after Nuremberg, the Tokyo International Military Tribunal was established to prosecute Japanese war crimes, setting a "parallel process" that mirrored Nuremberg in structure but, like Nuremberg, was "lopsided and victor's justice."
  • Quote [03:47] — Philippe Sands: "It was essentially a parallel process... it was lopsided and victor's justice in the same way as Nuremberg."
• Notably, Emperor Hirohito was not prosecuted—a "political decision to allow Japan to recover."
• National-level prosecutions followed, numbering "hundreds, thousands," across Europe, still occurring on a diminishing basis as surviving accused individuals age.

2. From Postwar Justice to the 1990s Tribunals

[05:53–10:34]

• After the 1940s, there was "a lot of discussion and rather less action" on international law and efforts to establish permanent courts stalled, especially amidst Cold War politics.
  • Quote [06:26] — Philippe Sands: "There are negotiations... to negotiate the creation of a permanent international court... But... nothing happens. There are no developments."
• The atrocities in Rwanda and the former Yugoslavia changed the landscape in the 1990s:
  • The UN Security Council established ad hoc tribunals for both, departing from "victor's justice" and focusing on war crimes, crimes against humanity, and genocide as defined at Nuremberg.
  • These tribunals "catalyzed" renewed efforts, ultimately leading to the International Criminal Court (ICC).

3. The Birth of the International Criminal Court (ICC)

[10:34–15:52]

• In 1998, the Rome Statute established the ICC.
  • Sands recalls drafting part of the preamble for small Pacific states, unexpectedly including a robust duty for states to "investigate or prosecute any person alleged to have committed an international crime"—a clause that survived into the final text.
    • Quote [11:52] — Philippe Sands: "One of the lines that we included in the preamble... was the duty of every state to investigate or prosecute any person alleged to have committed an international crime... We expected that line to be cut out, but it wasn't."
  • The ICC covers four crimes: war crimes, crimes against humanity, genocide, and the crime of aggression.
  • The court's jurisdiction covers nationals or crimes on parties’ territories, with a "principle of complementarity"—national justice comes first, ICC intervention is a last resort.
  • As of the recording, around 125 states are parties, but significant absentees include the US, China, Russia, and Israel.

4. Defining Genocide and the Evolution of Legal Thresholds

[17:32–19:39]

• The concept of genocide, created by Raphael Lemkin, originally had a low bar. Legal interpretations since the 1948 Genocide Convention have raised the threshold, making proof of "intent to destroy" essential, complicating prosecution.
  • Quote [17:53] — Philippe Sands: "What’s happened since Rwanda and Yugoslavia... is that the bar has got even higher. As states, I think, worry that if the bar is too low, they may be caught by the tag of genocide."

5. The Legacy of Defenses: Knowledge, Orders, and Command Responsibility

[19:39–21:16]

• "Obeying orders" is not a defense for international crimes, as established at Nuremberg and reaffirmed in international law now.
  • Quote [20:00] — Philippe Sands: "Following orders is never going to be a defence if it's an international crime."
• Superior responsibility exists as well; superiors may be liable for subordinates' actions if they should have known and did not act.

6. Has International Justice Changed the Conduct of War?

[21:16–25:41]

• Sands expresses pessimism about state compliance, with current conflicts (Ukraine, Gaza) illustrating disregard for laws of war by major powers.
• The ICC’s indictments of President Putin and Prime Minister Netanyahu test the system’s reach and the tension between legal ideals and political realities, especially regarding head of state immunity.
  • The court's perceived "lopsided justice"—initial ICC indictments disproportionately focused on Africans—remains problematic.
    • Quote [25:41] — Philippe Sands (on legacy): "One of the legacies of Nuremberg is to allow it to be easier to have a playing field which is not level… The law is like a spider's web in which the smaller flies get caught, but the larger flies are able to get through."

7. Unresolved Legal Complexities and Sovereignty

[26:37–27:40]

• The arrest and transfer of figures like Putin to the ICC remain legally murky, especially regarding conflicting principles of head-of-state immunity and treaty obligations.

8. The Future: Ecocide as the Next Frontier

[27:40–31:14]

• The Nuremberg system and subsequent tribunals have focused on "anthropocentric" crimes.
• The emerging concept of "ecocide" aims to prioritize environmental harm as a fifth international crime; significant youth interest signals potential future inclusion.
  • Quote [27:51] — Philippe Sands: "The notion that harm to the environment can cross a line into criminality is reflected in this new concept of ecocide… I’ve got no doubt that in due course the crime of ecocide will become part of the international legal order."

9. Why Nuremberg Still Matters

[31:14–36:06]

• Nuremberg was "a revolutionary moment" limiting state sovereignty and enshrining accountability through international law.
  • Quote [31:33] — Philippe Sands: "Nuremberg was a revolutionary moment. It was the first time in human history that countries came together and said, the power of the state, the sovereign, the king, president, prime minister, is not absolute... you can't kill and disappear individuals, you can't kill and disappear groups."
• These principles underpin not just international tribunals, but also national prosecution of international crimes (Pinochet case).
• Sands emphasizes that the evolution of international law is a "long game" requiring generational patience.
  • Quote [34:52] — Philippe Sands: "...we stick to the right principles, which are the power of the sovereign is not absolute. You can't kill and maim and disappear with impunity. That's the message I want to leave people with."

10. Lawyers and Moral Responsibility

[35:12–36:06]

• On the ethics of legal defense, Sands affirms, "everyone is entitled to have their lawyer," even those accused of heinous crimes, although he expresses difficulty about defending notorious figures.

Notable Quotes & Memorable Moments

• On the unevenness of justice [25:41]:
  • "The law is like a spider's web in which the smaller flies get caught, but the larger flies are able to get through." — Philippe Sands
• On the core Nuremberg principle [31:33]:
  • "You can’t kill and maim with impunity."
• On international law’s slow progress [34:48]:
  • "International law is a long game… We don’t give up on it tomorrow because it hasn’t immediately produced all the things that we want."
• On the next steps for international justice [27:51]:
  • "The notion that harm to the environment can cross a line into criminality is reflected in this new concept of ecocide."

Recommended Timestamps

• Parallel justice in Tokyo: [03:14–04:21]
• National postwar prosecutions: [04:21–05:53]
• UN tribunals for Yugoslavia and Rwanda: [06:32–10:34]
• ICC negotiations and preamble anecdote: [11:52–15:52]
• Defining modern genocide: [17:32–19:39]
• Orders vs. responsibility: [19:39–21:16]
• ICC and current conflicts (Ukraine, Gaza): [21:16–25:33]
• On ecocide’s future: [27:51–31:14]
• Ultimate legacy (Pinochet, universal jurisdiction, patience): [31:14–34:59]
• Lawyers' duty to defend: [35:12–36:06]

Concluding Thoughts

This conversation underscores Nuremberg's pivotal transformation of state power and criminal accountability. Despite persistent state resistance, abuse, and political bias within international criminal law, the trials' principles endure and extend their reach bit by bit, with new challenges—like environmental destruction—on the horizon. The "Nuremberg moment" is ongoing: a slow, often fraught but vital movement toward justice, demanding vigilance and determination from every generation.

Guest's relevant books:

• East West Street
• The Rat Line
• 38 Laundry Street

[End of Content Summary]