The Nuremberg Trials
The Nuremberg Trials were held from Nov. 20, 1945 to Oct. 1, 1946 for the purpose of trying Nazi party leaders and high ranking military officers for war crimes and crimes against humanity and peace. The agreement for these trials was forged on Aug. 8, 1945 between the United States, Great Britain, the Provisional Government of the French Republic, and the Union of Soviet Socialist Republics. This agreement called for the formation of an International Military Tribunal which would conduct the "...just and prompt trial and punishment of the major war criminals of the European Axis" (1).
Though historians from the time of Thucydides have tried to deduce the root causes of war, this was the first time in history that an international legal effort had been made to determine if a civilized nation had indeed invested a concerted, calculated effort to not only wage a war of conquest, but to literally plan for the enslavement and genocide of entire groups of people based solely on ethnicity or religious conviction. The testimonies of military and political leaders, as well as hundreds of official documents, were used during the proceedings. All propaganda and preconceived notions had to be pushed aside. The statement by Dr. Hans Ehard, Minister-President of Bavaria, that "...this task must, if it to have permanent value, be performed without any preconceived ideas, in the spirit of law and of justice, which cannot be the task of a single people or of individual power groups, but must be the concern of the whole human race" (2) is as true as any statement that was made at the trial.
There are many questions connected with the legality of the trial. I will examine three of these questions. First, whether the trial was a legal one which worked within the existing framework of international law and custom. This addresses issues such as branding aggressive war as a crime, as well as the problem of "ex post facto." Secondly, the question of liability of individuals under international law, which brings forth what are known as the problem of superior command and the doctrine of absolute liability. Thirdly, a question which is of extreme importance today: the modern problem of war, international crime, and state sovereignty.
Is Aggressive War A Crime?
Article 6, part (a) of the Charter for the "Constitution of the International Military Tribunal" (henceforth called the IMT) puts within its jurisdiction "Crimes against peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing" (3). Part (b) stated "War Crimes: Namely, violations of the laws or customs of war" (4). The phrase "...customs of war" shows that as an act of the victors, the United Nations had the authority to adapt such a charter. The will of the victor has been a time honored tradition in warfare between nations (5).
It became clear that the prosecution was going to use custom to serve as precedent. What was the source of these customs? First, the Hague Conventions of 1899 and 1907 which attempted to limit or ban aerial bombardment, submarines laying mines, poison gas, and guaranteed the rights of neutral shipping. Secondly, the draft of a treaty of mutual assistance put forth by the League of Nations in 1923 stated "that aggressive war is an international crime...that no party will undertake that no one of them will be guilty of its commission" (6). The Geneva Protocol of 1924 stated that "recognizing the solidarity of the members of the interna- tional community...a war of aggression constitutes a violation of this solidarity and an international crime" (7). An interesting point is made in defense of this Protocol by Sheldon Glueck, Professor of Criminal Law at Harvard University. He noted that "...although the Protocol was not ratified, this fact does not destroy the validity of the argument...the signature of the Protocol by the leading statesmen of the world...is in itself evidence of a strongly entrenched custom to regard aggressive war as an international crime" (8). The resolution of the twenty-one American Republics at the Sixth Pan-American Conference held in Havana stated that "...war of aggression constitutes an international crime against the human species" (9). And perhaps the most important treaty was the Pact of Paris (Briand-Kellogg) of 1928 which declared an end to war as an instrument of national policy.
Thus, there was a history of treaties which could back up the argument for custom to serve as precedent. However, there was a fatal flaw in all of these treaties: the fact that there was no means of enforcement. Also, there were provisions which allowed defense wars and military actions to aid allies. What was a defensive war? For an example, was the 1967 Arab-Israeli War a defensive war based on a pre-emptive strike at Arab territories holding hostile armies which were ready to attack Israel? And how could a leader such as (a) Hitler, who repudiated the national foreign policy commitments of the government and nation he now held sway, be induced to conform to world opinion?
The conspiracy doctrine was also a central element to all aspects of the Trials. The burden of proving a conspiracy was mainly the work of the United States. Justice and U.S. Prosecutor Robert H. Jackson said that "the corruption of pre-Nazi Germany, the murder of 4,500,000 Jews [sic], the successive invasions, the plunder of Europe and the enslavement of Europeans-all were held to be international crimes because all were part of the...plan of aggressive war. Upon that contention, the prosecution's case stood or fell." (10). The Tribunal read out the history of Nazi aggression from the seizure of Austria and Czechoslovakia to the attacks on Poland and the Soviet Union, as well as the extensive pre-war planning behind those acts (11). Also referred to was the effort, begun in 1921, to escape the terms of the Treaty of Versailles. The designing and building of weapons of war, as well as the training of military personnel, were often done clandestinely in foreign countries (12). It was not lost on a few participants that the countries who assisted Germany during their period of rearming were not called to task for doing so, though in effect they were probably guilty in both a 'de jure' and 'de facto' sense as well, to some degree.
But other jurists who looked back at the trials from a legal perspective have seen the trial procedures as a violation of the laws that they were sworn to uphold. Edward F. Carter, Associate Justice, Supreme Court of Nebraska, noted "...one of the major criticisms of the trials, the claim that they are 'ex post facto' and retroactive in nature"(13). The defense counsel expressed this by using the Latin terms 'nullum crimen sine lege,' meaning no crime without law, and 'nullo Poena sine lege,' meaning no punishment without law (14). This referred to the fact that there was no prescribed penalty for the crimes with which they were charged, which brings into question the existence of the crimes themselves. Nathan April, wrote an article in 1946 which questioned the warrant by which the IMT sat (15). He stated "We know that no Act of Congress created the Court; we have heard of no Act of Parliament which did so..." (16). He recognized the London "Agreement" of Aug. 8, 1945, but then asserts "But aside from this, our own Constitution recognizes legislative force in International agreements or conventions, only when they constitute 'Treaties' duly confirmed by the Senate. The Agreement was an Executive affair; it was never ratified by the Senate; and neither by the Constitution nor by any statute enacted thereunder [sic] is the Executive empowered to create either national or extra-national courts" (17). An interesting point to be made is that even among those who decried the methods or legality of the IMT, there was little or no doubt that waging a war of aggression as Germany had done was a crime morally if not legally. They also realized that what had happened under Nazi Germany was perhaps the most terrifying and extraordinary event in the history of the world. Although Carter didn't approve of the method, he stated that "...the foundation of international law rests on the common consent of the enlightened nations of the world...we dare not wait until the holocaust of some future Hitler is hurled among the people before we pray for world sanctions...Many people would then believe...that war supersedes all law, ethics, and honor and that only the fear of reprisal shall in any way deter the savagery and brutality of the madmen of the future" (18). For both the present and future, a framework and precedent had been set at Nuremberg. Aggressive war and the conspiracy to commit such is now a crime; whether this judgment will be enforced in the future remains to be seen. For those who may have doubts about the judgment, remember that every recognition of custom as evidence must have a beginning some time. At Nuremberg it was shown that the common consent of civilized nations as express in treaties and agreements proclaimed the waging of aggressive war as an international crime. It was the perfect time.
Absolute Liability and the Problem of Superior Command
Soldiers and statesmen in time of war have often had to walk the fine line separating moral responsibility and military orders. This often brings up the question of whether international law can be applied to individuals. It has been said that such law cannot be applied to individuals. This is true, it has been argued, because "...international law is a body of norms applicable only to the actions of sovereign States and...it provides no sanctions of a nature applicable to individuals..." (19). Also, the argument says that it is an "...orthodox principle that individuals are not subjects of the law of nations..." and that there are no "...war crimes chargeable either to the collectivity of persons forming a nation or to its members individually..." (20). But this traditional view has been open to question for some time. An example of this is actually in the archives of German law. During World War I, a German U-boat torpedoed a hospital ship. The U-boat surfaced and machine-gunned those who made it into lifeboats. The German court said "...the firing on the boats was an offense against the law of nations...any violation of the law of nations is...a punishable offense so far as in general a penalty is attached to the deed...the rule of international law, which is here involved is simple and is universally known...the court must in this instance affirm Patzig's guilt of killing contrary to international law" (21). It is clear that the Hague Conventions were invoked in this decision.
Most treatises on international law fail to give a definition of the concept of war crimes (22). Murder, rape, arson, abduction, and larceny are examples of crimes that when committed during wartime have an additional element attached to them. This element is "...attack upon the enemy as such--violation of the enemy's human or family, public or private, rights. Ordinary rape, for instance, is an attack upon individual freedom of sex; rape as a war crime carries with it the conscious humiliation of the individual enemy as such and the destruction of the enemy's family rights" (23). Perhaps the best example of this concept was the forced relocation of millions into concentration camps. From the prisoner's abduction to their eventual death practically every heinous crime imaginable was committed in these camps. These crimes would be prosecuted under normal peacetime law; does war release one from legal and moral obligations? Does the uniform protect its wearer from the consequences of any act committed by him under an order from a superior?
The answer is a resounding no, for the laws of war recognize no such immunity. The prosecution for the IMT was able to put forth as evidence this amazing quote from a article written by the Nazi Minister of Propaganda, Dr. Joseph Goebbels: "No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defense that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well-established usage of warfare" (24). One wonders what Goebbles' defense would have been to this statement if he had been on trial. April wrote "An officer or enlisted man who commits a breach of the laws of war in obedience to the command of his superior incurs liability of punishment therefor, if he ever becomes the prisoner of the offended belligerent" (25). This thesis, stated strongly thoughout the trials, is now know as the doctrine of absolute liability. Simply, it means that "the fact of obedience to orders does not create a defense-....nor can it be taken onto account within the compass of any other defense."(K)
The opposite of the absolute liability doctrine is called "respondeat superior" which, according to Black's Law Dictionary, is the Latin term meaning "let the master answer," and is analogous to the older doctrine of superior command, its more common title. This doctrine was heavily attacked during the procedings. Indeed, if a court were to allow superior command as a defense without eliminating criminal responsibility for the crime, then all it does is shift the focus of that crime upward. Theoretically, the blame could be shifted all the way to the supreme commander or head of state. This is not desirable. But for all of us who have served in the military, we know too well the potential punishment which is waiting for those who refuse to carry out orders during war.
But every officer knows that each is responsible for the conduct of the troops under his (or her) command. The greater the emphasis on the theory that the duty of a soldier is to give unquestioning obedience, then the greater the responsibility of the officer to make certain that those under his command act in a civilized manner. Thus, it was shown at Nuremberg that individuals are liable under international law and that crimes that would normally be considered criminal during peacetime were also criminal during war. Also, the defense of a soldier through the superior command doctrine was dealt a severe blow at the trials.
War Crimes, International Law, and State Sovereignty
It should surprise no one that the events which led to the Nuremberg Trials have made a lasting impression on the individuals who are engaged in the practice of international law and diplomacy. This is evident in the 1973 publication of the report on the first and second international criminal law conferences, convened at the Rockerfeller Foundation Conference Center in Bellagio, Italy, and at Wingspraed, the conference center of the Johnson Foundation in Racine, Wisconsin, in 1971and 1972. The report, also known as the Bellagio-Wingspread draft, was an attempt to build a framework of statutes for an international criminal court. The reasons for the draft are clearly stated by former member of Parliament A. N. R. Robinson, who noted that "today in international law a number of conventions and treaties have been ratified, outlawing certain acts and providing penalties to be enforced by signatory nations." He then continued "but in the current progression of international crimes its limitations outweigh its advantages. Where once a statute was an intellectual project for international criminal lawyers, it has now become a serious issue for Governments." (A) Robinson and others involved in the conferences believed that the impact of such crimes as acts of inhumanity, war crimes, the protection of civil liberties and what he termed "modern crimes" such as "hijacking and illicit drug dealing" affect the world "and the conduct of international relations."(B)
Many earlier judgments and treaties were used as guidelines for the conferences, the most notable being the Charter and Judgment of the International Military Tribunal at Nuremberg, 1945-46.(C) The issue of war crimes was so pervasive that the convention declared that each party ratifying the drafts should agree to complete acceptance of "crimes against peace...war crimes as defined in the International Military Tribunal for the Trial of the Major War Criminals of 1945."(D) It also declared that its members should accede to "the fact that an individual charged with an international crime under this Convention acted in his official capacity shall not relieve him of responsibility, irrespective of rank or status" (E) and that "obedience to national law or superior orders does not constitute a defense under this Convention, but shall be considered in mitigation of punishment in conjunction with other relevant facts including the reasonableness of the accused's belief that the action was lawful." (F)
What becomes evident is that nations in the world community were being asked to surrender a small part of their sovereignty for the greater good of international relations and moral principle. Such judgments by world bodies have been said to be incompatible with the principle of sovereignty. However, this view is slowly beginning to change. Politically speaking, sovereignty can be defined by two principles. The first is the principle of nonintervention, which allows a state to regulate conduct inside its borders without outside interference. The second is known as prior consent, which allows a state to confer jurisdiction over its actions. (G) However, some jurists believe "the concept of sovereignty has, however, undergone dramatic changes as of late, particularly with the recognition of individuals as proper subjects of international law and the wider acceptance of the common interest of the world community to take priority over the actions of a state." (H) Does this mean that people are rethinking the idea of the absolutist state?
Surprisingly, the answer is yes. Even more surprisingly, some of these opinions are spoken by members of the United Nations, a body whose very foundation rests upon the sovereignty of nations. P. J. Kooijmans, Dutch minister of foreign affairs, in a September, 1993 speech to the United Nations, said "Sovereignty is certainly an important principle of international law...but the principle was never intended to shield dictators who massacre their own people from the outside world. Nor can it be intended to allow the perpetuation of large-scale suffering and death in a state...at times, there can be indeed be a moral duty for the international community to intervene." (I) In another speech, Secretary-General Boutros Boutros Ghali stated "the time of absolute and exclusive sovereignty...has passed; its theory was never matched by reality." (J)
In Conclusion-The Verdict of Time
Carter, in his article in the Nebraska Law Review, called the Nuremberg Trials "...a turning point in the enforcement of international law..." (26). Col. Telford Taylor, onetime assistant to Jackson and later chief U.S. counsel for the 12 later trials, recalled Jackson's words "...if it [IMT] is to serve any useful purpose it must condemn aggression by any other nations, including those who sit here now in judgment" (27). Was Nuremberg a turning point in international law? Was the framework that was now in place able to deal with later acts of aggression? The answer is no on both counts. The "turning point" was in many ways a disgrace to the American commitment to fair and equal justice. Francis Biddle, American member to the IMT wrote in his article to American Heritage that "...the U.S. judges knowingly permitted the Soviet prosecutor to admit false evidence against the defendants" (28). There were no writs of "habeas corpus." Bohuslav Kucera, Chairman of the Czechoslovak Socialist Party in 1980, wrote in his article to the World Marxist Review that "We must note that capitalist powers who signed the charter...have not been abiding by the adopted norms of international law." He continued "On the very next day after [the signing of the charter in London]...a U.S. aircraft dropped an atomic bomb on Nagasaki, killing thousands of civilians" (29). The Soviet [Russian] government did not, until October of 1992, give an official apology for the Katyn massacre, an act which was certainly as heinous as Lidice or any other mass murder which took place outside of the concentration camps, nor did it apologize to Poland (for 1939) or Finland (for 1940).
Wars of aggression and aggressive acts have taken place since Nuremberg. Korea, the Middle East, the Near East, Vietnam, Kampuchea, Hungary, Czechoslovakia, parts of Africa, and presently parts of the old Yugoslav republic has seen or are now experiencing the same issues which were on the docket at Nuremberg. The problem of superior command had a dramatic return with the My Lai tragedy as well as reports of Russian [Soviet] misconduct in Afghanistan. Reports of mass genocide and "ethnic cleansing" are a reality in Bosnia. Former U.S. Attorney General Ramsey Clark called the bombing of civilian areas of Iraq a war crime. Others have called for the arrest of Saddam Hussein for war crime and human rights abuses (30).
However, as long as war remains a political weapon of sovereign nations there is little hope that any lessons will be learned from Nuremberg. I am reminded of a most famous Latin quote 'Quis custodiet ipsos custodes?' Who shall guard the guards? Apply this idea to the conduct of the four major powers who sat in judgment at Nuremberg. Who shall judge the judges? After all, jurists the world over know that judges do not sit in judgment on themselves. It would be a tragedy if this were to be the only truth to emerge from Nuremberg.
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