This year commemorates the 80th anniversary of the notorious Nuremberg Laws, the Nazi racist enactments that formed the legal basis for the Holocaust. Ironically, it also marks the 70th anniversary 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.