Nuremberg

The most important political trial of our century was the Nuremberg trial. It raised the same questions other trials of regimes do: Was the Nazi regime legitimate? Was the International Military Tribunal legitimate? Except for Article 3 of the tribunal’s Constitution, which disallowed any challenges to the tribunal’s authority, the Nazi leaders might have taken the position Charles I took.

The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.⁵⁷

Jackson went on to acknowledge that the trial was unprecedented and that, unfortunately, the nature of the crimes was such that “both prosecution and judgment must be by victor nations over vanquished foes.” The accused were given a fair opportunity to defend themselves and, despite a public opinion which condemned their acts, a presumption of innocence.⁵⁸

Was the Nuremberg trial within the rule of law? From a position of positivist jurisprudence it decidedly was not within the rule of law. No international code outlawed “crimes against humanity” and, therefore, the indictment was new law and the trial ex post facto. Likewise, the Nazi leaders were charged with conspiracy, an Anglo-American legal concept unknown in either Europe or international law. Two other charges, on the other hand, could be understood as defined by the Hague and Geneva Conventions (war crimes, “violations of the laws or customs of war”) and the Kellogg-Briand Pact (crimes against peace, “planning, preparation, initiation, or waging of aggression”).

There were other serious flaws in the Nuremberg trial. Francis Biddle, the senior American tribunal member, sat as judge, although he had helped plan the trial. The Soviets blamed the Nazis for the Katyn massacre of Polish officers; the massacre was a Soviet act. As prosecutor, Jackson asserted that the same law would be applied to all, but the tribunal did not allow the defendants to cite Allied misdeeds, which were considerable. The London Charter of June 1945 resembled a bill of attainder singling out individuals for prosecution. Finally, planning for the trial was rushed, creating several blunders: the elderly Gustav Krupp, who was not competent to stand trial, was indicted instead of his son, Alfred. Julius Stricher was hanged, but Rudolf Hoess, the commandant of Auschwitz, was used as a prosecution witness. Otto Dietrich, second to Goebbels in the propaganda hierarchy, was not prosecuted, while Hans Fritzsche, a mere radio announcer, was prosecuted.⁵⁹

Nevertheless, while admitting how deeply flawed the Nuremberg trial was, compelling reasons can lead us to say that, on balance, it was within the rule of law. First, the tribunal possessed judicial independence. Both the British and the American judges insisted on this principle, and the French judges exhibited their independence from the French government. Only the presence of the Soviet members, taking a hard line, serves to raise questions about the degree of their independence from Stalin’s policy. As Bradley Smith shows, evidence indicates that, given the interaction among the judges especially during deliberations, “all in all, it is reasonable to conclude that, although there were different degrees of independence granted to the Tribunal members, and although the individual judges made different use of their prerogatives, the defendants faced a court surprisingly free from outside control.”⁶⁰

Another important consideration in assessing the Nuremberg trial is to assess the main alternative.

Finally, the Nuremberg trial strengthened the rule of law at the international level by enforcing what has come to be known as the Nuremberg Principle: “Individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorizing action moves outside its competence under international law.”⁶³