Social and Political Efficacy in the Post War World
The man responsible for beginning the most devastating war the world ever saw committed suicide with a single gunshot wound to the head. Rather than face the justice he knew was coming at the end of the war, he chose to end his life in an impregnable underground bunker with his new wife, Eva Braun. Adolf Hitler denied the world justice, as did many in his inner circle. Josef Goebbels, the Nazi propaganda chief, committed suicide as did his wife after murdering their children. Heinrich Himmler, the architect of the mass exterminations that took place under Nazi rule also committed suicide shortly after his capture, as did many other high ranking members of the Nazi government. The motivation for their suicide ranged from fear of reprisal to a fear of living in a post Nazi world. No matter the reason, those who committed suicide left behind a trail of blood, broken lives, atrocities beyond mention, and a world that would never be the same. The wounds caused by Nazi Germany reverberated throughout the world long after its defeat, and, it is argued, still reverberate today. In Germany, it is illegal to be a member of a neo-Nazi party despite the nation’s democratic principles. Germans are hypersensitive to the pain that Nazi Germany caused, and continue to take measures to ensure that nothing that resembles the scourge of Nazism will rise again in that nation. Nazi war criminals are continually hunted down and brought to justice decades after they assumed they escaped to freedom, or thought that the world forgot their actions through the passage of time. The processes of finding them wherever they may be is ongoing and will continue until they are all caught, or perish through old age. Eventually, justice will be served.
The question for the victorious Allies in 1945 was what to do with the leading Nazis who did survive and were captured? Should they be treated as common criminals, tried by a court and sentenced, or was this simply a case of a lost war with no repercussions for those who lost it? The answer was that the leading members of the Nazi party were put on trial, publicly, to answer for their crimes. The tribunal would also afford the defendants the opportunity to present their “side of the story” in order to prove that they were not guilty of the charges leveled against them. The trial was conducted publicly to demonstrate to the world, as well as the German people, that it would not be a show trial. Of paramount importance was the fact that the defendants were not found summarily guilty, but rather their guilt or innocence was proven openly by a fair system of justice. Anything less would tarnish the attempt to foster trust in the democratic principles the tribunal espoused. The tribunal was the first of its kind, and set out to prove once and for all that the actions of the Nazi regime would never be tolerated in the modern world, that their actions were beyond acceptable norms, and that those remaining leaders had to pay a price for their actions if they were found guilty.
The most significant issues that surrounded the Nuremberg tribunal were legitimacy and legality. For those who executed the trial, those concerns were vitally important. As there was no precedent for the tribunal itself, questions of its place in history, its effect on future wars, as well as public perception weighed heavily on those who prosecuted the trial. Questions of a proper defense were also brought up as many felt it impossible for the defendants to receive adequate representation. Who would consider defending the very people who perpetrated the most destructive war in history? The purpose here is to define to parameters of the Nuremberg Tribunal, discuss the legality of the tribunal itself, and attempt to assess historically whether or not the tribunal served the purpose for which it was created, namely, bringing a just end to those who executed the most destructive war in the history of Europe and the world.
There were twenty-two defendants on trial, with Martin Bormann being tried in absentia. Of the defendants who were present, the highest ranking were Hermann Göering (Reichsmarshall and Luftwaffe chief), Karl Döenitz (chosen by Hitler to succeed him as Führer), Alfred Jödl (Chief of Operations for the German High Command), and William Keitel (Chief of the German High Command). These men were the most visible and quite possibly the most well-known of those who were left of the Nazi hierarchy. They were seen as part of the structure that not only instigated the war, but committed the horrific atrocities that were discovered near the war’s end. They were the ones that would bear the brunt of the tribunal, and it was for precisely that reason that the trial had to be conducted with scrupulous fairness. The charges leveled against these four along with the eighteen other defendants were “the formulation of ‘a common plan or conspiracy’; the second, ‘crimes against peace’; the third, ‘war crimes’; and the fourth, ‘crimes against humanity’.For the prosecution, the most pressing issue was that the crimes that the defendants had to answer for were quite vague. Certainly, a war is “against peace” so how does one charge a defendant with a crime against peace without appearing as though the charges were simply drawn out of thin air in order to summarily find the defendant guilty? Further, it was necessary to define what crimes against humanity consisted of as that could be construed as a trumped up set of charges in order to allow the judges an opportunity to render a verdict of guilty. There was also one more consideration which weighed heavily on the prosecution, and that was the burden of proving that democratic principles were superior to the programmed, ordered society which was soundly defeated at the cost of millions of lives. This was also a trial of ideological superiority with democracy being the victor, and as such, it had to prove that its benevolence, fairness, and system of justice was without question superior to that which lived in Germany and continued to thrive in Soviet Russia. In essence, it was legitimacy of government versus one that through defeat was considered illegitimate. Michael Bidess points out that Hjalmar Schacht, one of the other defendants later acquitted of the previously mentioned charges stated in his memoirs “How were the German people supposed to realize that they were living under a criminal government when foreign countries treated this same government with such marked respect?”The tribunal gave them that answer with the rendering of the verdict in 1945.
Charles Wyzanski succinctly pointed out one of the most pressing issues that confronted the prosecution at the Nuremberg Tribunal. He stated that “It does not seem to me that an examination of the pre-war treaties, conference proposals, diplomatic correspondence, and juristic writings shows that there was a specific international covenant that individuals who waged an aggressive war were criminals in the same sense that there was a specific international covenant that individuals who killed captured civilians were criminals.”This suggests that not only was there no historical precedent for the tribunal, but that there was no existing legal basis for the trial to proceed. An example to consider is that of Napoleon Bonaparte. He was exiled to Elba and upon his subsequent return to France and ultimate defeat at Waterloo, was exiled permanently to St. Helena. There was no trial that accused him of atrocities, of crimes against humanity, or crimes against peace, all of which were charges against the defendants at Nuremberg. Further, Bonaparte was never put on trial at all as he was simply deposited on St. Helena at the whim of the British government. While there, he did enjoy a certain freedom of movement, a home, guests and loyalists who chose to remain with him as well as a sum of money from the British government that administered his imprisonment. Even after the First World War, there were no trials like the Nuremberg tribunal, making Nuremberg all the more suspect in the eyes of many. What made this tribunal different was that it was about to challenge previously held doctrines concerning the rights of sovereign nations to carry out a war of aggression. In addition, the atrocities against civilian populations, both Jewish and otherwise, were so heinous that the victorious Allies had no choice but to arrest and try the surviving hierarchy of the Nazi party that willingly allowed those atrocities to occur. One look at the death camps was enough to convince the Allies that those responsible had to be punished, but punished under legal means.
Justice Robert H. Jackson, the chief prosecutor for the United States, outlined the considerations of the tribunal and what they were to address when he wrote a lengthy piece in the American Bar Association Journal in 1949. In that article, Justice Jackson spoke of the rights of sovereign nations to wage war at any time, that courts had to acknowledge this sovereign right, that leaders of nations had the right to plan their war as part of the performance of their duty, and that if orders were given by a superior individual, the person following the orders had no personal liability.This last item is precisely what those at Nuremberg sought to make illegal in their judgment, for if there was to be no penalty for those who perpetrated the most destructive war the world had ever seen, it was conceivable that in the future, even greater wars would be conducted without fear of any legal reprisal. In the words of Justice Jackson, the “machinery to make new international law is so inadequate, inertia is so great, conflict and suspicion are today so paralyzing, that we can foresee no time when aggressive wars will be outlawed or their perpetrators legally punishable if the Nuremberg basis for doing so was not valid.”Jackson’s words are but an echo of those that were inscribed on the St. James Declaration of 1941. That document stated in section 3 that “the only true basis of enduring peace is the willing co-operation of free peoples in a world in which, relieved of the menace of aggression, all may enjoy economic and social security; and that it is their intention to work together, and with other free peoples, both in war and peace to this end.” The Nuremberg tribunal attempted to re-write the ancient and accepted rules of sovereign nations to engage in war, and ultimately hold those accountable should any war devolve into the horrors that were found in the Second World War. Finally, the Allied Control Council Law #10 gave the Allies the power to control Germany until the post war period. This gave the Allies a framework by which to try the defendants and outlined specific offenses so that the tribunal itself had a framework from which to proceed. In addition, it also provided the essential legal basis for the trial lest it be seen as a perfunctory event. Dr. August von Knieriem, one of the defendants on trial who was subsequently acquitted, did not agree with this approach. Dr. von Knieriem felt that national law should supersede international law and he held the opinion that the defendants should be tried by German courts rather than an international tribunal. He also felt that “the judgments of the Nuremberg tribunals tend to create conflicts between international law and national law at the expense of the individual.” This was one of the central arguments of the tribunal itself, but one that was drowned out by the rising chorus of those that wanted retribution on the accused Nazis who committed the crimes of which they were accused. As has already been shown, the prosecution was quite sensitive with regard to protecting the individual rights of the defendants; however, it was the expressed purpose of the tribunal to create international law where none existed, and to establish parameters by which those that instigated an aggressive war could be tried by the international community. The hope was that by creating that precedent, overly aggressive war would be avoided in the future as fear of prosecution for war crimes would act as a deterrent. The Allies were unsure if the defendants would get the trial that they deserved if they left that process in the hands of the reconstituted German government, and that method would undermine the attempt to create international law where none existed prior to the tribunal. There was not even the assurance that Germany would remain as it was since 1871 when it first became a truly sovereign nation. What the Allies did know was that they possessed those they thought were responsible for the war and they were going to put them on trial as publicly and as fairly as possible under the circumstances given them.
The most pressing hurdle that the prosecution faced was the perception of fairness. In fact, President Roosevelt, before the war was decided, approved of an international tribunal to try the German leadership for “participation in a broad, criminal enterprise” He did not specify how that tribunal should be conducted, but he did approve of one. There was even talk of execution without trial of at least six of the leading figures of the Nazi government. This was a landmine that the Allies knew had to be avoided, and even Justice Jackson pointed this out when he stated “Farcical trials conducted by us will destroy confidence in the judicial process as quickly as those conducted by any other people.” To avoid this, the prosecution addressed the question of ex post facto application of law. The defendants argued that the creation of international law through the Nuremberg Tribunal amounted to application of law in order to find guilty after the fact, and that was illegal, at least according to democratic principles. Further, the defense argued that the Charter that created the Nuremberg tribunal was invalid “if it were construed in a way to transgress the fundamental principles of justice and argued that to apply ex post facto laws in a criminal trial and to judge one’s own case would transgress such principles.” The defense went on to argue that sovereign states cannot be subjected to the laws, customs, and judgments of foreign states as that is a violation of international custom and existing international law. This, the tribunal insisted, was not applicable as the trial was conducted against individuals rather than an entire nation. The tribunal ruled that fact rendered the defense argument on that point invalid. The question that remained was still one of ex post facto application of the judgment of the tribunal, and it was one that had repercussions far beyond the proceedings at Nuremberg.
The argument that the defendants were subjected to ex post facto application of law was addressed through the application of common law[i] and its development through time. In order to be clear, it is important to note that a court does not create law but rather decides whether or not said law exists. Law is an extension of common law; accepted or rejected practices through time. A court will then decide whether such practices violated the accepted custom of the given nation, region or collective. George Finch states that the charter that created the military tribunal at Nuremberg “specifies that the International Military Tribunal shall have jurisdiction of crimes against humanity committed before or during the war and whether or not such crimes were in violation of the domestic law of the country were perpetrated”. There can be no doubt that the practices which the Nazis engaged in were rejected by the common law of Europe during the time period of the Second World War. As International Law is progressive in nature, meaning that it changes and adapts over the course of time, the experience of Europe from the First World War and the subsequent Treaty of Versailles through the Second World War would suggest that International Law rejected the practices of the Nazi regime. Indeed, it could be argued that going back to the expulsion of Napoleon to the island of St. Helena constituted the first “shot across the bow” against forced subjugation of nations, but as previously stated, he faced no formal trial, and therefore no precedent was set.
The problem was that the practices in question were never expressly put on trial and decided upon in open court. The Nuremberg tribunal would afford the world an opportunity to test such practices and show that the world had indeed decided that what the Nazis engaged in was not only against the accepted practices of Europe, but also the accepted practices of the world. The Nuremberg tribunal would create precedent where none existed prior to its convening in order to force the world to see that what the Nazi leaders engaged in was far beyond the accepted norms of the century now unfolding. This is explained quite clearly by Quincy Wright when he states that “there can be little doubt that international law had designated as crimes the acts so specified in the Charter long before the acts against the defendants were committed”. This means that the very idea of ex post facto considerations becomes invalid and not an acceptable defense for those on trial. While no adjudicated precedent was present, the standard of common law was indeed present, rendering the defense of ex post facto null and void. There is one final consideration with regard to ex post facto application and that comes from Robert Conot’s book Justice at Nuremberg. His book is a detailed account of the proceedings. What is striking is that the book gives credence to the ex post facto argument, but also provides numerous examples of the Nazis themselves failing to give those rights to those that they captured. One is given to wonder whether or not “turnabout is fair play” was at work during the proceedings of Nuremberg. Again, Justice Jackson addressed that idea when he stated that “If the members of these organizations were to be tried, their guilt could not be taken for granted before the trial began.” That perception was a chink in the armor of Nuremberg, but not one large enough to call the entire tribunal into question.
There were two more areas in which the defense of those in trial would rest. The first issue is that of respondeat superior which, simply stated, means that the defendants argued that they were “simply following orders”. This argument was found to be irrelevant as George Finch pointed out that those on trial were the ones actually giving the orders. This was quite easily proven as the plethora of documents obtained simply overwhelmed that particular defense. This was also used as reduction ad absurem as the defense tried to simply to shift focus away from the crimes committed and obstruct the trial itself in order to create a false sense of doubt among those sitting in judgment. The attempt was to “frustrate the application of the law” in favor of the defendants. Tactics such as those were not going to be successful against the team that was assembled to adjudicate the proceedings. There was too much experience, too many legal experts from various nations for that particular defense to be effective.
The second item was what we will call complicity of administration. The defense argued that the trial could not possibly be considered fair because some of those that were sitting in judgment of the defendants were themselves guilty of committing acts of atrocity as well. This would seem to point directly at all of those that made up the judicial panel of the tribunal, but specifically the Soviet representative on the court. There is no question that the Soviet Union acted in union with the Nazi government at the outset of the war. The invasion and subsequent dismembering of Poland was a simple, historical fact. Michael Bidess points out that “Most embarrassing of all for the prosecution was the Molotov-Ribbentrop Pact of August, 1939”. The argument was also made that the United States was also quite guilty of the same atrocities with the bombing of Hiroshima and Nagasaki, and the Allies as a whole with the bombing of Dresden and Nuremberg as proof. How could it be possible for a fair trial to be conducted against the Nuremberg defendants when the Allies themselves may be guilty of the very same acts? Arguments such as those are not arguments based on legal grounds, but based on moral, psychological and sociological grounds and therefore should be considered outside the scope of the tribunal. Finally, it should be noted that the British government was an early advocate of summary execution of the defendants in order to avoid the tu quque arguments of “you too”. Again, Bidess provides the most cogent analysis when he states that in simple terms, the Allies were free to create the parameters they needed in order to make sure that the trial went forward according to the Allies political needs. He further goes on to suggest that there was no way to avoid “currents of prejudice and policy” as events moved forward.
When the trial concluded in October of 1946, those that were on trial at Nuremberg were found guilty of the charges brought against them, but their sentences were different according to their perceived involvement in the conduct of the Nazi regime. For twelve of the defendants, execution awaited them. Three of the defendants were sentenced to life in prison, four were given sentences ranging from ten years to twenty years, and three were acquitted. Two escaped sentencing as Robert Ley committed suicide before the trial began and Gustav Krupp was deemed unfit to stand trial due to failing health. There was an attempt to try his son who ran the family business during most of the war, but the tribunal ruled that he did not have to stand trial for his actions. Hermann Göering escaped his sentence as he committed suicide prior to his sentence being carried out. The basis the tribunal used for either execution or a prison term was based on “a direct responsibility for large scale homicide, enslavement or deportation of innocent civilians.” This leads us to the question of destruction or consequences for engaging in warlike activities. Certainly, aggressive wars tend to lead to destruction, but the key to note here is the barbaric treatment of civilians during the period of war. Aggressive war in itself has been part of the fabric of human experience since the first human beings took clubs to each other to settle a dispute. History is littered with the carcasses of people and civilizations that engaged in aggressive war. The difference in the Second World War for the tribunal was the wonton acts of violence, persecution and execution of innocent people, for no other reason than they existed against the will of the Nazi regime. The tribunal acknowledged that war existed and that even aggressive war existed. What they refused to acknowledge, and what the defendants were on trial for, was the murdering of subjugated peoples at the whim of the regime simply because they existed. Those defendants that were deemed directly involved in the killing of innocent people with added brutality were the ones that ultimately were sentenced to death and executed.
Legally, the Nuremberg tribunal broke new ground. The trial attempted to create International Law where only vagaries and the ideal of common law existed before in a clear attempt to ensure that nothing approaching what the Nazi regime perpetrated would ever come to pass again. One can also see the Nuremberg tribunal as an attempt to provide for the future a warning, that brutality on the scale perpetrated by the Nazi regime would not be tolerated by a civilized people. This does not mean to imply that prior to the Nuremberg tribunal that nations were not civilized, but there were no “official” penalties for atrocities committed in accordance with international law. One such instance was the Armenian genocide shortly after the start of the First World War. While those responsible were eventually held on Malta, they were returned sometime later without being held accountable for their crimes. The rub was whether international law or national law should take precedence as well as whether vital interests of the larger, more powerful nations were at stake. This would not be the case after Second World War as the Nuremberg tribunal put a precedent in place that gave future generations an opportunity to hold warring nations accountable for their actions of atrocity during a period of war. The Herero uprising in Namibia, West Africa is another such outrage prior to the Second World War that went unpunished. Thousands of native Herero people were murdered by their German occupiers in 1904 when their water supply was poisoned in retribution for the Herero rebelling against German rule during the European colonial period in Africa. General Lothar von Trotha was never charged with a crime, and the Germans simply vacated the devastated nation following their loss during World War One. With the judgment of Nuremberg, the vague guidelines of the past regarding the conduct of war were now given structure and weight. This was made quite plain when in 1947 the United Nations adopted unanimously “the Nuremberg principles to be used by its International Law Commission as the basis for formulating the new codes of International Law.”
To attempt to analyze the public perception of the Nuremberg tribunal, it is important to look at the historical developments in Germany after the trial, as well as the effect of the decisions on Europe and the world as a whole. There is not enough time or space here to delve into a true analysis, but certain items can be deduced. First, the psychological effect that the trials had on Germany was both immediate and profound. For many Germans, the thrust was to find those responsible for the war itself. The crime of planning and engaging in an aggressive war was the paramount concern. Wyzanski makes a point of mentioning the Germans’ distaste for the planners of the war, and even goes so far as to say that punishment of those responsible was the overriding concern to the German people. Guilt for what occurred was the order of the day for the average German, most especially when the details of the camps were made public. There was and still is much debate as to what the ordinary German knew with regard to the existence of the concentration camps, but the fact remains that once exposed to the world, their existence became an open sore to the German people and it has not healed. The tribunal at Nuremberg provided at least some closure in that those who were directly responsible were punished via international law. There is also the issue of intellectual “ferment” in that the decision at Nuremberg has spawned many articles, discussions, public speeches and educational as well as legal documentation that studied the verdict and placed it in its historical context. The decision has given rise to much discussion and debate, further strengthening the decisions made at Nuremberg and providing a platform for those who would interpret international law in an attempt to stem actions world-wide such as those that occurred in Germany during the war. The intellectual analysis has strengthened the moral fiber of the world community against such actions as were taken during the war, and has served to provide the framework for further laws against such actions as the Nazi regime engaged in. Again, Wyzanski states that the judgment at Nuremberg “has crystallized the concept that there already is inherent in the international community a machinery both for the expression of international criminal law and for its enforcement”
Those who perpetrated some of the most heinous crimes against humanity are gone. Their legacy of brutality and death in the name of a pure race was both denounced and repudiated by the events of the Nuremberg tribunal. Analysis of the tribunal’s proceedings shows that while not perfect, it was certainly fair and it has been shown that great pains were taken by those who conducted the trial to make sure of that fact. In the post war world there have been instances of genocide and mass killings. One simply has to see the examples of the Kosovo War and the events in Rwanda to understand that extermination of people still exists. The Nuremberg trials did not wipe out these horrific happenings, but it did provide the basis by which those who would perpetrate such crimes could be held accountable for their actions. No longer would the “fog of war” be an excuse for committing acts that fell into the realm of the unbelievable. No longer would the world sit and watch innocent people murdered and their murderers try and escape using the excuse that “it was war”. There was now a way to hold accountable those who would seek to engage in such acts, and while the interpretation of Nuremberg is ongoing, there can be no doubt that the lessons learned through the trial at Nuremberg continue to resonate today.
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Hjalmer Schact as quoted in Bidess, Two Exercises in Judgement, 27.
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M. Cherif Bassiouni, Richard A. Falk, and Yasuaki Onuma, “Nuremberg: Forty Years After,” American Society of International Law 80 (April 9-12, 1986): 60, accessed August 4, 2011, http://www.jstor.org/stable/25658296.