(From the archives) Originally posted on February 7, 2011 by markdowe

HISTORY: NUREMBERG WAR TRIALS

Intro:-

THE ACTIONS carried out by the Nazis in the Second World War led the Allied powers as early as 1943 to promise to bring war criminals to justice. These trials were held in Nuremberg between November 1945 and August 1946. The Allies set up an international Military Tribunal to judge the accused, the bench comprising four judges, with a deputy for each in case of illness, representing the four main Allied powers: Britain, France, the USA and the USSR. Some 199 were accused at Nuremberg, but thousands of others were tried elsewhere: in Allied military courts, by their own countrymen after the Allied withdrawal, and in former occupied countries. Important questions about the legality of the trials were raised even at the time, and continue to be asked by those who think they were inspired more by vengeance than by justice.

AT NUREMBERG, the prisoners were tried on four counts: crimes against peace – preparing and carrying out acts of aggression; war crimes – the ill-treatment of prisoners of war and civilian populations; extremes of brutality against individuals or groups; and conspiracy – participation in plans to commit the other three offences. A number of the accused, including Hitler, Goebbels and Himmler, were already dead. Another, Robert Ley, former Head of the Nazi Labour front, hanged himself before the trial started; another, Hermann Goering, swallowed cyanide when it was over in order to avoid the gallows. Another Gustav Krupp, was senile and did not understand the charges; his son Alfred was later tried and sentenced in his place. Of the twenty-four who were brought to trial, three were acquitted. Three, including Hitler’s deputy, Rudolf Hess, received life imprisonment. Two got twenty years, one fifteen and Doenitz, who had made the final surrender to the Allies, got ten years’ imprisonment. A number of the accused, including Adolf Eichmann (responsible for administering the ‘Final Solution’ for the Jews) and Franz Stangl (the former Commandant of the camps at Treblinka and Sobibor), were later found abroad, brought to trial and convicted. Twelve were hanged on 16 October 1946.

Week after week, the evidence had mounted up during the trial, evidence at the same time chilling and overwhelming. One of the accused, Hess, gave every sign of mental derangement; only Goering maintained his quick-witted awareness to the end. The others were broken men. One, Hans Frank, whose thirty-eight volume diary gave irrefutable evidence of his involvement in murder, starvation and extermination, despaired completely and summed up what many of them felt when he said: ‘A thousand years will pass, and this guilt of Germany will not pass away!’

How justified was this trial and its outcome? Few disputed the moral justification for it. The crimes involved were so dreadful and so overwhelming that no one imagined there was no redress; everyone supposed that the legal basis for the trial lay in The Hague and Geneva Conventions. The general reaction, therefore, was to welcome the trial as going some way towards atoning for unprecedented atrocities.

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YET THERE REMAIN disturbing features. How could aggression be illegal if there was no legislative agreement under which it could be punished? It was highly unusual for any state or individual ruler to be punished for breaking a treaty, though a number of such trials have been held since Nuremberg. To spare the Soviet Union’s embarrassment, for the USSR had also been guilty of exactly the same offences against Poland and Finland, the charge was confined to aggression by the Axis powers alone. Thus the offence seemed to be specially designed to fit the crime and was applied only selectively. No Italians were ever charged. Italy had changed sides, and to indict an ally would have opened the door to a similar indictment against the USSR.

The accused were also condemned for crimes that were not crimes in international law at the time they were committed. If extreme crimes against humanity, or conspiracy to commit such crimes, were now offences against international law, the same charges could have been brought against Churchill for his complicity in the bombing of Dresden, if the Germans had been victorious instead of defeated.

Furthermore, the accused were not allowed to say: ‘But I was only obeying my orders.’ To expect an individual subordinate to be able to distinguish between a legal order and a criminal one was quite unrealistic. The Allies themselves, throughout the war, considered men bounded by superior orders, and not legally liable for them. But now the Allies were saying that obedience to orders was not a defence, but only a mitigation. This would have certainly been bad news to the bombardier aboard Enola Gay who was ordered to drop the first atom bomb on Hiroshima.

But the most fundamental criticism was the simplest. For punishment to have at least the appearance of justice, the prosecutor must not also be the judge. The judges at Nuremberg represented the nations that were parties to the action, and therefore could not be said to be impartial. It would have been better that the judges should have been empanelled from among neutral nations such as Sweden or Switzerland, for this would have given a greater impression of impartiality. The partiality of the bench gave ammunition to those who maintained that the trials were merely acts of vengeance carried out by the victor against the vanquished. As Goering himself shrewdly observed at the trial: ‘The victors will always be the judge, the vanquished the accused.’ Such a criticism will always weaken the moral justification of the Nuremberg Tribunal, though it will not lessen the frightfulness of the crimes that brought the trials about.