The Nuremburg Precedence Essay, Research Paper

The Nuremburg Precedence

History will judge these trials wholly by whether the victors themselves adhere to the standards and the law they impose on the vanquished. In judging the vanquished, the victors also judge themselves. (New York Times editorial, May 14, 1946, quoted in Piccigallo, 1979, p. 18).

Although they were not without precedent, the Allied trials of war criminals at Nuremberg and elsewhere represented new legal principles and extensions of existing legal principles in an attempt to create new, higher standards of behavior in future conflicts. Even though aggressive wars and atrocities still occur, the principles of Nuremberg may be seen to be taking root in the modern world, to the extent that there is now an expectation that investigation and trial of atrocities and war crimes should take place, even if the application of these principles is still relatively inconsistent.

Demands for the punishment of the military and political leaders of Germany and Japan, as well as for soldiers who committed specific war crimes, had been building throughout the war. While the concept of trying soldiers for specific war crimes had been established in international law and especially by the Hague Rules of Land Warfare Treaty of 1907, there was much uncertainty in legal circles about trying enemy leaders for atrocities against their own populations, such as Germany s slaughter of the Jews. There was also doubt about many other legal points such as applying international law to individuals, or trying enemy leaders for aggression. In particular, the precedence set following World War I was not encouraging nor. An attempt to try Kaiser Wilhelm of Germany had failed when the Dutch government refused to turn him over to the allies, on the grounds that he was being charged with political crimes which were not in Dutch law (Woetzel, 1962, pp. 22-31; Taylor, 1971, pp. 21-24, 66-7; Piccigallo, 1979, pp. 3-4). Perhaps more damaging was the failure of the British to try a handful of Turks believed guilty of the massacre of nearly one million Armenians in 1915. Although there effort extended into 1921, they ultimately turned the 36 accused Turks over to Kemal Ataturk s nationalist government in exchange for a few hostage British soldiers. (The Economist, July 19th, 1997, pp.45)

In 1943, a United Nations War Crimes Commission had been established, which recommended that the enemy leaders be dealt with by a court to be established by a new treaty. But this was rejected by the British, and the real debate over what to do with the Axis leaders only began in the second half of 1944 (Smith, 1982, pp. 6-12). While some argued for the alternative of executing the Nazi leaders at the front shortly after capture, and others worried about violating the technicalities of international law, the policy that emerged from lively debates among the top British and American leadership was for a wide-ranging tribunal to aggressively prosecute the Axis leaders on a variety of charges, including the waging of an aggressive war, conspiracy, and crimes against humanity, even if these had not previously been well-established in international law (Smith, 1982, pp. 10-12. 49-56, 135-42). As American legal assistant Telford Taylor put it, The thing we want to accomplish is not a legal thing but a political thing (Taylor, 1945, quoted in Smith, 1982, p. 210). He went on,

this is a political decision to declare and apply a principle of international law Only the most incorrigible legalists can pretend to be shocked by the conclusion that the perpetrator of an aggressive war acts at peril of being punished even if no tribunal has ever previously decided that perpetration of aggressive war is a crime (Taylor, 1945, quoted in Smith, 1982, p. 211).

The trial that would become known as the Nuremberg Trial was formally known as the International Military Tribunal (IMT) and was established by the London Agreement signed August 8, 1945, by the governments of the US, Britain, France and the USSR. This established a Tribunal of four judges and four alternatives, defined the crimes of waging aggressive war and crimes against humanity, provided that the Tribunal could accept any evidence without being bound by the evidence rules of national courts, gave the defendants the right to counsel and to present their own evidence, and allowed no appeal from the judgments of the Tribunal (London Agreement, 1945, quoted in Smith, 1982, pp. 212-20).

The Nuremberg trial of 22 top German leaders which formally opened on November 20, 1945, was not a model of efficiency. Backroom squabbling about procedures continued after the start of the trial; contrary to the expectations of the Americans, the Tribunal justices organized themselves independently of the prosecution and asserted their independence by ruling against the prosecution on procedural points. While the 21 defendants present (Martin Bormann was tried in absentia) represented the top remaining Nazis, several were noticeably lower in rank than the others; a 23rd defendant, the head of the Krupp steel and weapons company, had become senile, and an attempt by the prosecution to substitute his son for trial was rejected by the Tribunal. The prosecution made a decision to charge a number of Nazi and army organizations, such as the SS and the General Staff, as criminal organizations, which added to the burdens of both themselves and the defense (Smith, 1977, pp. 74-99).

The prosecution was hampered by a lack of coordination between four national teams handling different aspects of the case, and public interest quickly waned as the prosecutors focused on dry documents in trying to establish that Germany waged an aggressive war, at a time when public opinion in Europe was clamoring for justice after years of Nazi oppression an atrocities, whose full scale was only then coming to light. The prosecution was also hampered by its ignorance of the German language and German history; the defense lawyers were unfamiliar with the Anglo-American adversary system of justice, and the defendants often slept through the sessions. The chief American prosecutor was criticized for many aspects of his handling of the trial, and Goering in particular was able to confuse the prosecutors with his replies to their questions. The most serious charge against the conduct of the trial was that the prosecution maneuvered to hide embarrassing Allied documents, such as evidence that the British were planning troop landings in Norway at the same time as the Germans, who were being tried for invading Norway as an act of aggressive war (Smith, 1977, pp. 101-13). Overall, however, the Nuremberg Trial was a tremendous undertaking, holding 403 daily sessions and hearing 217 witnesses besides the defendants; the attempt to prosecute Nazi organizations such as the SS as criminal organizations generated hundreds of thousands of documents, and the final record of the trial filled 44 volumes (Woetzel, 1962, pp. 2-3).

Information from the diaries of American Tribunal judge Francis Biddle, summarized by Bradley Smith, shows that there were large amounts of political considerations in the judges deliberations, and a certain amount of horse-trading among the judges: for example in sentencing Albert Speer (Hitler s personal architect and eventual head of the German armaments industry), the twenty year sentence was a compromise between two judges who initially wished the death penalty and two judges who proposed a fifteen year sentence (Smith, 1977, pp. 218-23, also pp. 145-265 throughout). The final result of the Tribunal was that the Nazi organizations SS, SD, the Gestapo and the Leadership Corps of the Nazi Party were found to be criminal organizations, but this was limited to certain dates and excluded certain classes of members; this was considered important in providing for the automatic conviction of individual Germans who belonged to these organizations in lesser courts. Other groups, however, were acquitted of the charge of being criminal organizations. For the individuals, seven were convicted on all the charges against them; twelve were acquitted of some charges but nevertheless sentenced; seven of them to death, for convictions on other charges. Three, who were generally agreed to be the furthest removed from the centers of Nazi power among the defendants, were acquitted on all counts. In all, twelve death sentences were given, and three were sentenced to life imprisonment (but only ten death sentences were executed as Bormann was tried in absentia and Goering committed suicide in prison). In one of the most contentious issues, Admiral Doenitz was convicted in part for waging unrestricted submarine warfare, but was specifically not sentenced for this on the grounds that other nations (such as Britain and America) had done the same (Smith, 1977, pp. 174-296; Woetzel, 1962, pp. 7-15).

While this trial was the most dramatic and most historical of the Nuremberg Trials, it was not the only trial at Nuremberg, and it was far from being the only Allied effort to bring Axis war criminals to justice. A separate International Military Tribunal of the Far East (IMTFE) was established by eleven Allied nations in Tokyo in January 1946 along principles similar to the IMT in Germany, but with some important differences in detail. To begin, it was more clearly an American-led organization, with the initial proclamation being made by American General MacArthur in his capacity as Supreme Commander for the Allied Powers and following a directive of the American Joint Chiefs of Staff, with the Allies only participating afterwards in producing an amended Charter three months later. As at Nuremberg, the Charter defined crimes of aggressive war that would be prosecuted, and established the Tribunal s structure. Eleven nations provided one judge each, decisions including guilt or innocence would be by majority vote, broad rules of evidence were set out, and the Supreme Commander was to review the sentences (Piccigallo, 1979, pp. 9-13).

In the actual conduct of the trial, all eleven nations participated in the decisions of the prosecution, which again provided some inefficiencies and inconsistencies. 28 defendants were assembled, who had all, with two exceptions, occupied the highest government and military posts between 1928 and 1945, including four former Prime Ministers, and most memorably the wartime Prime Minister Hidoki Tojo (Piccigallo, 1979, p. 14). The trial lasted from May 1946 until April 1948, and the deliberations of the Tribunal lasted another seven months; two defendants died during the trial and another was ruled mentally unfit. American and Japanese defense lawyers made vigorous presentations, raising all the disputed points of international law, making the case that Japan s behavior was not especially different than that of the Allied nations, and, led by Tojo who accepted full responsibility for this actions, argued that Japan had acted in self-defense against American economic blockade and unreasonable demands. Nevertheless, in a judgment over 1,000 pages long, the Tribunal found itself competent to try crimes including aggressive warfare, found that Japan had violated treaties and international law by waging such war, and found all 25 remaining defendants guilty on one or more charges (though many were acquitted of specific charges). Tojo, another former Prime Minister and five generals were sentenced to death. One judge, however, withheld his vote on the grounds that the trial procedures were flawed, while the judge appointed by India essentially sided with the defense in voting to acquit all counts, on the grounds that international law had not been established, that the court was acting ex post facto and that the trials represented victors justice. The US Supreme Court heard on appeal from two defendants who argued the Tribunal was essentially an American court, but this was denied and the sentences were carried out at the end of 1948 (Piccigallo, 1979, pp. 21-33).

In addition to these two major trials of class A war criminals, thousands of former Axis soldiers and government officials were tried in a wide variety of courts in Allied nations. Among the most important cases were the twelve Nuremberg trials that took place between 1946 and 1949, and the trial of General Yamashita in the Philippines in 1945. The Yamashita trial was conducted entirely by the American military, and rested on the contention that he failed to maintain proper discipline of troops under his command as innumerable atrocities were committed in the Philippines in the final phases of the war. Being the very first trial conducted after the end of the war, the cultural climate in America and elsewhere was strongly in favor of the guilty verdict and death sentence that was handed down. An appeal was made to the United States Supreme Court in this case also, which found that the military authorities, and no civilian courts, were the only proper venue for this war crimes trial (Piccigallo, 1979, pp. 49-62).

The twelve minor Nuremberg trials were conducted under regulations proclaimed by the four-nation Allied Control Council which governed Germany after the war, and generally followed the principles of the IMT in providing for individual prosecution of aggressive warfare, crimes against humanity, and other war crimes; membership in an organization found criminal by the IMT was also specifically named as an offense. Some critics found these trials to be less international in character than the major trials, however, as they were run by American personnel including American military judges. These cases brought together groups of defendants in similar situations, such as those accused of killing civilian hostages. The major points of international law developed at Nuremberg, such as individual responsibility for international law, and rejection of superior orders or the contention that Allied nations had performed similar acts as defenses, were further elaborated in these trials. However, not all two million Germans who had participated in the illegal organizations were prosecuted, and the judges ruled that individuals had to have personal knowledge of criminal acts to be convicted as members of criminal organizations (Woetzel, 1962, pp. 219-26).

In addition, military and civilian tribunals to try war criminals under national auspices were established in many Allied countries, by America throughout the Pacific theater and Japan, by Britain in various Asian colonies, and by such nations as Poland, Holland, Norway, China and Australia. Many thousands of persons were convicted in these cases, though generally no new legal issues were raised beyond the issues raised by the Nuremberg and Tokyo trials (Woetzel, 1962, pp. 218-9, 229-32).

As the decades passed, individual cases of World War II war crimes continued to come to the attention of national courts, such as the Eichmann case in Israel, the trial of Klaus Barbie in France, and the one of Feodor Fedorenko in the United States. The case of Fedorenko was decided by the United States Supreme Court on the narrow grounds that Fedorenko s failure to disclose his service as a prison camp guard on his immigration application made it legal for the United States to deport him as an undesirable alien (some three decades after he arrived); however, the case was considered to provide some interesting points of interpretation, since the American law that banned immigration by persons who assisted in war crimes was interpreted by at least one Supreme Court justice to include nearly all the victims of the camp who did not rebel at the cost of their lives (Greenhouse, 1981, pp. A1, A25; Gerson, 1981, pp. 62-6).

The Nuremberg and other Allied war trials are considered extremely important in establishing higher and broader standards of conduct, for both individuals and nations, that can be enforced in international law against a wide variety of crimes against humanity that may occur at any time or place. For example, Telford Taylor, who participated in the American team at Nuremberg later argued that based on the Yamashita precedent, American military commanders in Vietnam should have been prosecuted for planning and waging a war that primarily struck at civilians, and for failing to maintain discipline in their troops (Taylor, 1971, pp. 123-182). While the Internationl War Crimes Tribunal established to try war criminals in the Yugoslav civil wars and the Tribunal in Arusha for the Rwandan Massacres are the only modern examples to follow the Nuremberg precedent, the fact they and others elsewhere exist or will be formed, show that the Nuremberg precedents are indeed taking root in international law. While there are many interesting points of international law that remain in contention, the Allied war crimes trials contributed substantially toward the absolute necessity of establishing an international order aimed at deterring war (Piccigallo, 1979, p. 211).