Cracking the vault open once again
Note: Ok, so it’s time for another one of my trips back into the JLo vault, this time revisiting and updating a short paper I wrote over a decade ago during my short-lived tenure in the Masters of Liberal Studies program at Rollins while I was working there. Let me just say at the outset that I LOVED this program of study, which was based “on the premise that studying the great ideas of Western civilization increases intellectual awareness and self-fulfillment.” I will be the first to admit, however, that I don’t have the first clue what the practical value of such a degree would be, but then again practical value is overrated. When we moved away from Orlando the first time many years ago, I had to abandon the program, and it is still something that I regret. Hopefully one of these days I’ll get to go back and try again. Anyway, with that as background, I present to you a paper that I wrote back in 1997 that I recently discovered while going through a box of papers the other day, entitled “The Nuremberg Trails and the Concept of Justice,” with some minor revision and reworking.
This type of long form piece is definitely outside the usual scope of this space, so don’t expect any top ten lists, heavy doses of sarcasm or lengthy parenthetical diatribes. Also, keep in mind I’m not a lawyer or a proper historian, just a guy with a history degree and a hefty World War II background who likes to pretend to be a profound thinker on occasion. I share this with you for two reasons: 1). I think there are some lasting lessons to be learned from the conduct of the trials 2.) It’s my space, I liked the paper a lot and I wanted to publish it. So there. Feel free to enjoy and argue with my conclusions if you want or skip it completely as you see fit.
On November 20, 1945, the victorious Allied Powers convened the International War Crimes Tribunal in Nuremberg, Germany for the purpose of prosecuting those responsible for atrocities committed during the Second World War. The proceedings, which lasted 187 days, resulted in the convictions of 19 of Nazi Germany’s most notorious war criminals, including Hermann Goring, Joachim Von Ribbentrop, and Alfred Rosenberg. The Allies had promised virtually from the outset of the conflict to prosecute those responsible for war crimes and atrocities committed during the war, and, with the London Agreement of August 8, 1945, established the tribunal that would try the defendants.
So began what was at that time a singular event in world history. Allied soldiers and authorities conducted extensive manhunts for those responsible for the horrendous crimes committed during the war, and though many notable Nazis, including Martin Bormann, Adolf Eichman, and Adolf Hitler himself, either evaded capture or took their own life rather than face Allied courts, most of what Winston Churchill often referred to as the “primary criminals” were brought into custody. Many, including a majority of the defendants at Nuremberg, questioned the legality of such an unprecedented trial, claiming that it was merely a persecution of the vanquished by the victors, and that it would be impossible for there to be a “fair” trial on the model of the Western system of justice. Thousands of Germans had walked into the American and British lines to surrender, knowing that certain death or immediate imprisonment awaited them at the hands of the advancing Russians from the east. Now they were being subjected to what they thought amounted to a “show trial.” After all, Allied representatives, including the Soviets, would act as judge, juror, and prosecutor in every case, and for a country now intimately familiar with the arbitrary “justice” of the Nazi regime, it seemed impossible that there could be a sober, rational weighing of the facts by the tribunal. These men, who claimed that they were merely following the laws of their country and the orders of their superiors, as any patriotic citizen would do, were now being held individually accountable by the world for their actions.
After reading the individual counts of the indictment, the defendants would have some cause to claim that they were being persecuted, at least in part, for purely political reasons. While counts 3 and 4 of the indictment, the War Crimes and Crimes Against Humanity charges, stand on their own in the light of the massive documentary evidence left behind by the ever-efficient Nazis, counts 1 and 2 could certainly be held up to scrutiny. These provisions of the indictment alleged that the Nazis planned an aggressive war in violation of international treaties and that there was a general “conspiracy” in the country to prepare for the war, including the rise to power of Adolf Hitler, which had been achieved by constitutional, if heavy-handed, means. It is here that the Allies were walking on the shakiest of grounds.
The charge of planning an aggressive war could have easily been turned on the Allies since they too had taken aggressive actions in the name of their strategic or national interest. The Russians had attacked Finland in 1939 to better secure the approaches to Leningrad (St. Petersburg) and the heroic defense of their country by the paltry 200,000 man Finnish army against the overwhelming might of the Soviet Red Army aroused the conscience of the democratic world, especially in the U.S., and nearly lead to Allied intervention on behalf of the Finns. Several months later in the war, British forces had been deployed to occupy neutral Norway in order to cut off supplies of iron ore coming to Germany from Sweden, only to be beaten to the punch by a Nazi invading force. The democratic United Kingdom was, nevertheless, more than willing to resort to many of the same tactics as the Nazis they were now putting on trial. Churchill, then First Lord of the Admiralty, had been the driving force behind the Norwegian expedition, and though he recognized the moral and legal issues involved in the invasion, was unapologetic when advocating the mission to his cabinet colleagues, stating, “the final tribunal is our own conscience…Humanity, rather than legality, must be our guide” (Churchill, p. 492).
Churchill’s view are particularly salient here (Note: Well, his views are particularly salient here because I already knew a lot about them, and as they say, write what you know. Anyway, the point still stands. Also, I lied about there not being any long parenthetical digressions.) because he was one of the earliest international opponents of Hitler, and realized that the democratic world’s situation was desperate enough that it must be willing to bend and in some cases disregard the major principles of western ideals in order to defend them. There is no doubt, therefore, why Churchill was initially hesitant to support the war crimes trials. If the situation had been reversed and the Germans had prevailed in the conflict, Churchill would have undoubtedly been facing an entirely different brand of justice at the hands of the Nazis. After the war, he remarked to General Lord Ismay, head of the British Army during the war, that “it shows that if you get into a war, it is supremely important to win it. You and I would have been in a pretty pickle if we had lost” (Gilbert, Churchill: A Life, p.285).
Beyond these immediate practical, personal concerns, it was simply against Churchill’s nature to seek vengeance against a defeated enemy. Throughout his political career, ranging from the time of the Boer War up to the fighting in Vietnam, Churchill always preached unwavering resolution and defiance in the face of an enemy, but once beaten he immediately sought reconciliation with his former foe. He had roundly criticized the harshness of the Versailles treaty, and had sought ways to appease German sensitivities without giving up the dominant Allied position. In fact, he gave his war memoirs a theme which perfect summed up this philosophy: “In War: Resolution; In Defeat: Defiance; In Victory: Magnanimity; In Peace: Goodwill.” Even this moral principle, however, had practical applications. Churchill was keenly aware of the growing Soviet aspirations in Eastern Europe, and knew a revitalized Germany was of paramount importance as a bulwark against Soviet expansion.
Perhaps the most difficult legal denunciation against the trial to rebuke was the claim that it was ex post facto prosecution and that the mere inclusion of the Soviet Union in the tribunal itself was an affront to justice. United States Senator Robert Taft, son of the ex-President and Supreme Court Justice, voiced both these concerns in a speech before Congress before the trials. Taft worried that the democratic nations were perverting the judicial process by using it as a foreign policy tool to advance a political agenda, much as the Soviets would. Regardless of the righteousness of the Allied position, the concept of equal justice before the law was far too sacred to violate for any political purpose (Safire, p.601). Soviet inclusion in the tribunal was especially hard to justify, since every one of the specific charges of the indictment could have been brought against Stalin and the Soviet government. The non-aggression pact negotiated with Hitler, which included the secret partition of Poland, was the springboard Hitler needed to go to was since it assured him against fighting a war on two fronts until the time of his choosing (the conspiracy). The Soviet Union willfully sent troops to claim the spoils of Poland, and denounced a very specific non-aggression treaty with Finland moments before Soviet troops attacked the Mannerheim Line (aggressive war). In regards to war crimes and crimes against humanity, Stalin had the same disregard of human life as Hitler, and certainly did not take a back seat to his Nazi counterpart, as his Blood Purges of the 1930’s and the massacre of Polish officers at Katyn clearly showed.
Despite these objections, the Nuremberg Trials were a remarkably just proceeding, and set up a credible precedent for any future international trials. The fairness of the trials can mostly be credited to the efforts of the Anglo-American side to ensure the ideals they championed in their own legal systems became the benchmarks for international law. The most troubling legal question, that this was unjust ex post facto prosecution and that these defendants were being tried for no specific crimes, was addressed by the charter which established the court and by the Allied insistence upon the “unconditional surrender” of the Axis powers. By surrendering unconditionally, the Germans agreed to abide by any terms imposed upon them by the Allies. Implied in this surrender was the acceptance of the repeated specific warnings made to the Germans, most notably the London Agreement, well before the end of the hostilities that any German war criminals were subject to trial for their actions. For the German to come back after the fact and claim ex post facto prosecution, though perhaps technically correct, flew in the face of common sense and natural law.
The war crimes charter also made specific reference to the defenses most likely to be presented by the Nazis, that they 1). were merely following orders and 2). that they were being tried as individuals for breaking laws designated against countries. Article 8 of the charter states that the “fact that the defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment” (Int. Military Tribunal, p.12). Here the tribunal was acting in accordance with generally accepted convention throughout the world. Few if any domestic courts would accept such a plea, because the precedent would leave the world at the verge of anarchy and at the mercy of manipulative killers (Wyzanski, p.67). Additionally, the Allies specified that the conditions of treaties seemingly aimed at countries applied to individuals, and the Germans in fact accepted such a premise by accepting unconditional surrender.
The charter is also very specific in regards to the protection of legal rights of the accused. Although it would be impossible to remove all notion of prejudicial testimony and publicity from the trial due to the enormity of the crimes committed and the war time conditions in which they occurred, nearly every other basic right of defendants in an American courtroom was preserved. The accused were guaranteed counsel if the desired, could call and cross examine witnesses, were presented with specific charges in writing (in their own language as well), and were allowed to testify themselves and take as long as they wished to present their defense. Goring, in fact, was on the witness stand continually for nine days (Heydecker, p.97). One doubts whether he would have been afforded such an opportunity even by the most lenient American trial judges. Additionally, the defendants were able to petition the court to evaluate their mental and physical condition for trial, as did defendants Hess and Krupp, and the court even determined that Krupp was indeed unable to participate in his own defense and therefore should not be tried.
Another important move by the tribunal was its seeming differentiation between political and criminal activity. Helping Hitler and the Nazis come to power by mainly constitutional means, however distasteful and undesirable, was not a crime and was not treated as such by the tribunal. Individuals such as Hjalmar Schacht and Franz Von Papen, who were charged exclusively under counts one and two, the political charges, were acquitted by the tribunal. In fact, only one defendant, Hess, was convicted solely of the political charges, and all who received a sentence of death were convicted of the specific charge of crimes against humanity. Additionally, the court did not hold those “legitimate” political entities, the Reich Cabinet and the German High Command, to be criminal groups. Even though members of the groups may have committed crimes, the institutions themselves were still blameless, much like our own American experience with Watergate and the office of the Presidency. It is important to note, however, the dissenting opinion of the Soviet Justice (the inclusion of which is another mark for a just trial) in regards to the decisions of these individuals and groups found not guilty; it gives insight into the kind of treatment these defendants would have received had they been left to the Soviets (or their own regime for that matter.)
Perhaps the most important justification for the trial, at least in Western eyes, was the very severity and brutality of the crimes alleged. Rather than justification for the kind of revenge that Stalin prescribed (shoot 50,000 Germans on sight), it was important to bring these men to trial to show the Germans and the world the vast differences between the Allied powers and the previous regime. Stalin’s remark at Yalta quoted above so offended Churchill that he stormed out of the room in protest, furious at the suggestion of punishment with verification of guilt (Gilbert, Churchill: A Life, p.821). Summary executions may have been the calling cards of totalitarian governments, but the Western powers emphasized the concepts of justice and the rule of law.
Despite the enormous task of sorting through the testimony of hundreds of witnesses, thousands of documents, and grisly detail of German war crimes and atrocities, the International War Tribunal conducted a remarkably fair and just trial. Each country involved sent some its most distinguished legal authorities to the proceedings, ensuring that the defendants were afforded every opportunity to defend themselves vigorously and with the advice of counsel in the face of the heinous charges, something their own government would not have even afforded them. In doing so, the court provided a lasting tribute to the the Western ideals of justice and equal treatment under the law, and established a model precedent for international law and a mechanism of punishment for those whose actions severally offended the sensitivities of the international community of nation in times of war.
Churchill, Winston S. The Second World War, 6 vols. Houghton Mifflin: Boston, 1948.
Gilbert, Martin. Churchill: A Life. Henry Holt and Co.: New York, 1991.
Gilbert, Martin. Winston S. Churchill: Road to Victory. (special edition) Easton Press: Norwalk, Connecticut, 1994.
Gilbert, Martin. Winston S. Churchill: Never Despair. (special edition) Easton Press: Norwalk, Connecticut, 1994.
Heydecker, Joe and Leeb, Johnathon. The Nuremberg Trial: A History of Nazi Germany as Revealed Through the Testimony at Nuremberg. Greenwood Press: Westport, Connecticut, 1975.
International Military Tribunal. Trial of the Major War Criminals (Official Text). Published at Nuremberg, Germany, 1947.
Ryder, A. J. Twentieth Century Germany: From Bismark to Brandt. Columbia University Press: New York, 1973.
Safire, William (ed.) Lend Me Your Ears: Great Speeches in History. W.W. Norton and Co., 1992.
Wyzanski, Judge Charles E. Atlantic Monthly. “Nuremberg – A Fair Trial?” Vol. 177, No. 4 (p.66-70) April, 1946.