WarSclerotic

The Mixed Legacy of Nuremberg, Front Page Magazine, Alan M. Dershowitz, May 4, 2016

This year commemorates the 80^th anniversary of the notorious Nuremberg Laws, the Nazi racist enactments that formed the legal basis for the Holocaust. Ironically, it also marks the 70^thanniversary of the Nuremberg Trials, which provided the legal basis for prosecuting the Nazi war criminals who murdered millions of Jews and others following the enactment of the Nuremberg Laws.

There is little dispute about the evil of the Nuremberg Laws. As Justice Robert H. Jackson, who was America’s chief prosecutor at the Nuremberg Trials, put it: “The most odious of all oppressions are those which mask as justice.”

There is some dispute, however, about the Nuremberg trials themselves. Did they represent objective justice or, as Hermann Göring characterized it, merely “victor’s justice?” Were the rules under which the Nazi leaders were tried and convicted ex post facto laws, enacted after the crimes were committed in an effort to secure legal justice for the most immoral of crimes? Did the prosecution and conviction of a relatively small number of Nazi leaders exculpate too many hands-on perpetrators? Do the principles that emerged from the Nuremberg Trials have continued relevance in today’s world?

Following the Holocaust, the world took a collective oath encapsulated in the powerful phrase “never again”, but following the Nuremberg Trials, mass murders, war crimes and even genocides have been permitted to occur again and again and again and again. Cambodia, Rwanda, Darfur, the former Yugoslavia and now Syria. Why has the promise of “never again” been so frequently been broken? Why have the Nuremberg principles not been effectively applied to prevent and punish these unspeakable crimes? Will the International Criminal Court, established in 2002, be capable of enforcing the Nuremberg principles and deterring future genocides by punishing past ones?

Whether the captured Nazi leaders — those who did not commit suicide or escape — should have been placed on trial, rather than summarily shot, was the subject of much controversy. Even before the end of the war, Secretary of the Treasury Henry Morgenthau had proposed that a list of major war criminals be drawn up, and as soon as they were captured and identified, they would be shot. President Roosevelt was initially sympathetic to such rough justice, but eventually both he and President Truman were persuaded by Secretary of War Henry Stimson that summary execution was inconsistent with the American commitment to due process and the rule of law.

It was decided, therefore, to convene an international tribunal to sit in judgment over the Nazi leaders. But this proposal was not without considerable difficulties. Justice must be seen to be done, but it must also be done in reality. A show trial, with predictable verdicts and sentences, would be little better than no trial at all. Indeed, Justice Jackson went so far as to suggest, early on, that it would be preferable to shoot Nazi criminals out of hand than to discredit our judicial process by conducting farcical trials.

The challenge of the Nuremberg tribunal, therefore, was to do real justice in the context of a trial by the victors against the vanquished — and specifically those leaders of the vanquished who had been instrumental in the most barbaric genocide and mass slaughter of civilians in history. Moreover, the blood of Hitler’s millions of victims was still fresh at the time of the trials. Indeed, the magnitude of Nazi crimes was being learned by many for the first time during the trial itself. Was a fair trial possible against this emotional backdrop?

Even putting aside the formidable jurisprudential hurdles — the retroactive nature of the newly announced laws and the jurisdictional problems posed by a multinational court — there was a fundamental question of justice posed. Contemporary commentators wondered whether judges appointed by the victorious governments — and politically accountable to those governments — could be expected to listen with an open mind to the prosecution evidence offered by the Allies and to the defense claims submitted on behalf of erstwhile enemies.

A review of the trial nearly 70 years after the fact leads to the conclusion that the judges did a commendable job of trying to be fair. They did, after all, acquit three of the twenty-two defendants, and they sentenced another seven to prison terms rather than hanging. But results, of course, are not the only or even the best criteria for evaluating the fairness of a trial. Furthermore, it is impossible to determine with hindsight whether the core leaders, such as Göring, von Ribbentrop and Rosenberg, ever had a chance, or whether the acquittals and lesser sentences for some of the others was a ploy to make it appear that proportional justice was being done.

In the end, it was the documentary evidence — the Germans’ own detailed record of their aggression and genocide — that provided the smoking guns. Document after document proved beyond any doubt that the Nazis had conducted two wars: One was their aggressive war against Europe (and eventually America) for military, political, geographic, and economic domination. The other was their genocidal war to destroy “inferior” races, primarily the Jews and Gypsies. Its war aim was eventually crushed by the combined might of the Americans and the Russians. Their genocidal aims came very close to succeeding. Nearly the entire Jewish and Gypsy populations within the control of the Third Reich were systematically murdered while the rest of the world — including those nations sitting in judgment — turned a blind eye.

The Nuremberg tribunal and those that followed it administered justice to a tiny fraction of those guilty of the worst barbarism ever inflicted on humankind. The vast majority of German killers were eventually “denazified” and allowed to live normal and often productive lives.

It is necessary to ask whether, on balance, the Nuremberg Trials did more good than harm. By convicting and executing a tiny number of the most flagrant criminals, the Nuremberg tribunal permitted the world to get on with business as usual. The German economy was quickly rebuilt, unification between East and West Germany became a reality, and anti-Semitism is once again rife through Europe.

Perhaps Henry Morgenthau was asking for too much when he demanded that Germany’s industry and military capacity be destroyed “forever,” and that Germany must be “reduced to a nation of farmers.” But perhaps the Nuremberg tribunal asked too little when it implicitly expiated those guilty of thousands of hands-on murders by focusing culpability on a small number of leaders who could never have carried out their wholesale slaughter without the enthusiastic assistance of an army — both military and civilian — of wholesale butchers.

The Nuremberg trial was an example of both “victor’s justice” and of the possible beginning of a “new legal order” of accountability. Trying the culprits was plainly preferable to simply killing them. But trying so few of them sent out a powerful message that the “new legal order” would be lenient with those who were “just following orders.”

The reality that, following Nuremberg, the world was to experience genocide again and again demonstrated that trials alone cannot put an end to human barbarity. But the fact that tribunals were established to judge at least some of these crimes against humanity also demonstrates a willingness to at least attempt to prevent and punish evil using the rule of law.

These and other issues have challenged and continue to challenge thinking. That is why a major conference of judges, academics, prosecutors, victims and government officials is convening today, May 4, 2016, at the Jagiellonian University in Krakow, Poland to consider the duel legacies of the Nuremberg Laws and the Nuremberg Trials. We plan to explore all sides of these enduring issues in a series of talks, panels and visual presentations. The goal of the conference is symbolized by Santayana’s famous dictum: “Those who fail to learn from history are doomed to repeat it.” The world cannot afford to repeat the tragedies of the Holocaust and so we must learn from the duel legacies of Nuremberg.

One of the most important lessons of history is that for genocide and other mass killings to be carried out requires the active participation of numerous individuals, from those who do the actual killing to those who incite, organize and provide the means. The Holocaust itself required hundreds of thousands of active co-conspirators and millions more of morally complicit people who remained silent while it was being carried out around them. Not only were most of these guilty participants immunized from prosecution, but many were rewarded with good jobs and other economic benefits. It should come as no surprise, therefore, that the Nuremberg trials did not effectively deter subsequent mass killings. Indeed, the use of civilians as weapons of war — victims of genocide, mass rapes and human shields — has continued, with only a few handfuls of leaders and perpetrators prosecuted and punished. The challenge of Nuremberg is to construct an effective, ongoing, legal regime that punishes not just the leaders, but each and every guilty participant in the most egregious of war crimes.