The Nuremberg Trials: Victors' Justice or a Categorical Imperative?
Professor Anthony Nicholls
The Nuremberg trials have not had a very good press. The are often depicted as a form of victors' justice in which people were tried for crimes which did not exist in law when they committed them, such as conspiring to start a war. There was also the tu quoque argument; in 1977 for example, the legal historian Professor Bradley Smith: claimed that the Katyn massacres, Dresden and Hiroshima had undermined the Allies right to try others for war crimes. One of our own distinguished former colleagues, Paul Kennedy, reviewing Bradley Smith's book, commented that `any future governments who think of taking action against the `war criminals' of a defeated enemy state could do well to read this book. Having done so, it is unlikely they would repeat the experience of the Allies.' And only last month, Ian Kershaw, reviewing an edition of interrogation reports of the accused at Nuremberg, concluded with a reference to the contemporary trials of Milosevic and Co., describing them as `another attempt to show the determination to rid the European continent of government-sponsored gross inhumanity. Like the earlier attempt, it is unlikely to succeed.'
I don't share these gloomy, and I often think rather patronising, views of the Nuremberg Trials, and I will give my reasons in a few minutes. But first I should just run over something of the background to the trials themselves.
Nuremberg was not the first attempt to bring German leaders to book for starting a World War and conducting it in what was perceived to have been an atrocious fashion. In 1918 and 19 Lloyd George and Clemenceau both wanted to bring the Kaiser, the Crown Prince and others to justice. In the revisionist intellectual atmosphere which came to prevail between the wars this policy was dismissed as a mixture of French chauvinism and British electoral demagogy. But in fact Lloyd George at least believed very strongly that the Kaiser should be made to answer for his actions. Under Article 227 of the Versailles Treaty the Kaiser was to be brought before an international tribunal of 5 judges -one from each of the following states: France, UK, USA, Italy and Japan, and under articles 228 and 229 the Germans undertook to surrender to the Allies `persons accused of having committed acts in violation of the laws of war'.
There I think we should note the two categories of war crime perceived by the victors - the deliberate unleashing of an aggressive war on the one hand and the perpetration of atrocities on the other. As it happened of course, these articles of the Treaty remained a dead letter; the Germans claimed they were unable to hand over any of those named by the Allies, and when twelve rather obscure men were brought before the German supreme court in Leipzig charged with war crimes, 6 were given derisory sentences, 6 were acquitted and all became national heroes.
Nevertheless, these issues were still on the agenda. The question of defining aggression exercised the League of Nations in the discussion over the Geneva Protocol in the 1920s, and in 1929 the Geneva Convention, which set out stricter rules for the treatment of prisoners of war was accepted by most developed countries with the exception of the Soviet Union. Furthermore most European powers accepted the 1928 Kellogg-Briand Pact outlawing war as a means of policy. In this respect the international community was taking further the issues raised at the Hague Conferences before the first World War.
In the 1940's, as it became clear that the regime of the Nazis throughout their empire was being marked by systematic exterminations and other atrocities , it was evident that the anti-Axis allies needed to decide how to deal with the nazi leaders at the end of the war. The British Prime Minister and Foreign Office favoured a method similar to the old fashioned Act of Attainder: - a list of war criminals would be drawn up - the figure seems to have varied between 50 and 150 and those named would be summarily executed when they were captured. This procedure was acceptable neither to the Cabinet nor to Britain's Allies. The cabinet wanted a list of named outlaws to be produced who would be kept in some sort of durance vile for the rest of their lives - what one might call the St. Helena solution. Stalin favoured show trials of the kind he specialized in, but the Americans insisted on proper trails with carefully collected evidence, independent judges and the right of the accused to have defence lawyers.
On 8 August 1945 a treaty was signed in London between the Allied powers establishing the Charter of the International Military Tribunal. Article 6 of this Charter defined three categories of war crime : Firstly Crimes against Peace, which meant the planning of a war in violation of international treaties or of conspiring to do so; Secondly violations of the laws or customs of war and Thirdly Crimes against Humanity, and category which included acts of murder or ill-treatment against civilian populations or persecution on political social or religious grounds.
There followed a whole raft of trials of those accused at different levels of nazi atrocities - including industrialists, doctors and concentration camp personnel. But the trail which aroused the most controversy, was that of twenty two so-called major war criminals - the most prominent leaders in Allied captivity. They included party bosses like Göring and Hess, Generals like Keitel and Jodl and even a banker, Hjalmar Schacht. Of the twenty-two defendants, 11 were sentenced to death, three were acquitted and the rest received lengthy jail sentences.
There were four main judges, each appointed by one of the Four occupying powers. Sir Geoffrey Lawrence, from the British court of appeal, became the president of the Court. For the trials of both individuals and organisations months were spent collecting documentary evidence submissions and submissions from witnesses. The trial itself did not begin until 20 November 1945 and lasted nearly a year. Witnesses could be cross-examined by defence counsel as well as the prosecution and during the course of the trial an immense amount of information about the workings of the Third Reich was made public in the courtroom.
As I indicated at the start of this talk, the whole proceedings were attacked, particularly in Germany and the United States, as incompatible with legal process because the defendants could not expect a fair trial from the victors. It was claimed that in their own conduct of the war the Allies had been none too squeamish so who were they to judge the Germans? One argument which became particularly fashionable as the Cold War developed from 1947 onwards was that no judicial proceedings could be valid when one of the judges was from the Soviet Union, a country not noted for its commitment to the rule of law. Then there was the problem about the indictments. How could states be tried for making war on other states? How could crimes against humanity be punished when, at the time they were committed, the state authorities recognized no such crime?
Some critics went further and claimed that the evidence put before the Tribunal must be tainted because it was part of the Allied prosecution case. Another line of attack was that, by trying the nazis, the Allies had aroused sympathy for them among the Germans who might otherwise have wanted to deal with the matter themselves.
I do not find any of these arguments very convincing. To take the last first: the Germans could not have been left to deal with the nazis because for four years after the war there was no German government. The German public was numbed by the war and although there were certainly many social democrats and communists who wanted the nazis to be punished, public opinion polls showed that there was plenty of residual support for the nazis in the population. The length of time which it took for the nazi past to be thoroughly investigated in West Germany suggests that without the Allied determination to punish the nazi leaders, nothing much would have happened to them. More important is the fact that, in so far as actions against the nazis were discredited it was not the Nuremberg Trial which created hostility towards the occupiers, but the wide-ranging denazification procedures instituted by the Americans from the autumn of 1945.
On the value of IMT documentation, I have never come across any proof that the IMT prosecution documents were falsified or forged. When younger German historians started to investigate the Third Reich in the 1950s and 60's, the IMT documentation proved a valuable basis upon which to build.
On the general criticism of victors' justice I think we have to ask the question, what was the alternative? Were the Allies really going to do nothing to make anybody pay for a war which had been deliberately started and conducted with such vicious atrocities? If they were going to do something what should it be? As I mentioned Churchill, Lord Simon and Eden at the Foreign office were wedded in 1944 to the notion of a list of nazi leaders who should simply be rounded up and shot. Airey Neave, who was the British legal officer chosen to present the defendants with their indictment at Nuremberg rightly regarded this option as `preposterous'. If Goering, Keitel and Co. had been shot as soon as possible after capture, their only offence would have been to be on a list drawn up by the British Foreign Office. The places where they had been shot would have become nazi shrines. Furthermore, the lists drawn up by in London might well have been unjust and inappropriate, apparently being based on Nazi handbooks. At one stage for example the Reich women's leader, Gertrud Scholtz-Klink, was booked for the firing squad, although in the Third Reich she had virtually no influence over policy-making. On the other hand, it would have been equally preposterous to suppose that the British and the Americans, let alone the Soviet Union, would have handed the trials over to a neutral state. Public opinion in the belligerent countries and the victim countries, would have been outraged if the nazis and the other German leaders had got away Scot free.
As it was, the Nuremberg proceedings were conducted with more fairness and legal scruple than any of the defendants expected, or indeed had a right to expect, given their own conduct towards captured enemies. When the three acquittals were announced, the defendants concerned had to be kept in their cells for fear they might be lynched by mobs outside. Fritzsche, Goebbels's deputy as nazi propaganda chief, could hardly believe his luck when he realised that he was not going to get off.
As for the argument that the trials were invalid because there was a Soviet judge on the panel and Stalin's crimes were just as great as those of Hitler, this seems a very muddled kind of approach, which would argue that unless the political leaders of every state were spotless, nobody could be brought to justice for crimes until those leaders had been overthrown. Only if it could be shown that the Soviet judge distorted the proceedings of the court in a material way could such a criticism be sustained. General Nikitchenko, who was the Soviet judge, was certainly in an awkward position, because he was answerable to Stalin for the outcome of the trial. But his colleagues on the judicial panel thought highly of him and none of the verdicts depended on his vote.
On the question of the validity of international law, the British and Americans argued with what I consider to be some force that that between the wars the Germans had accepted agreements such as the Covenant of the League of Nations and the Kellogg-Briand Pact, which by implication made aggressive war illegal. Indeed the argument was that the Nuremberg trials did not create new international law; they did however, for the first time enable it to be implemented.
It is I believe, a tribute to the example set by the Nuremberg Trials, and that means in realty to the far-sightedness of the American administration during the war, that the agreement of 8 August 1945 established a basic charter for the international law of the future. Three weeks after the Nuremberg judgments, on 24 October 1946, Trygvie Lee, the Secretary-General of the United Nations proposed that the Nuremberg definitions of war crimes and criminal international behaviour should be made a permanent part of international law. This was incorporated in a UN resolution passed on 11 December 1946. There followed the UN Charter on Human Rights and the revised Geneva Convention in 1949, which extended protection to civilians as well as prisoners of war. Finally we should note that in response to the atrocities in the Balkans we now have a court in the Hague which is specifically focussed on crimes of very similar kind to those under investigation at Nuremberg.
To end I should just like to quote a passage from Airey Neave's account of his time at Nuremberg: One evening he was faced by a Major General in the British army who said; `Thank God we won the war Neave. Seems a shame to try men like Keitel and Jodl, both Generals, for losing it.' To the general's displeasure Neave replied crisply, `We're not trying them for losing it. We're trying them for mass murder, Sir' .
This does seem to me to be something like progress.