Lessons from the Nuremberg trials
By David Pannick, QC
It is 60 years since the Allies tried the Nazis for their war crimes. How has international law benefited?
SIXTY years ago this week, on September 30, 1946, the War Crimes Tribunal at Nuremberg gave judgment on 22 Nazi war criminals after a trial lasting ten months. The tribunal’s achievements in providing a fair trial in the most difficult circumstances retain a strong contemporary relevance when politicians are tempted (sometimes understandably) to abandon the rule of law under the pressure of the terrible crimes committed by those who wish to destroy a free society.
As the Allies began to triumph at the end of the Second World War, attention turned to the problem of how to deal with the leaders of Nazi Germany. Stalin did not think this was a difficult issue. At the Tehran Conference at the end of 1943, he proposed a toast: “I drink to the justice of the firing squad.”
By the time of the Yalta Conference in 1944, Stalin’s position had changed, to some degree: he now insisted that “the grand criminals should be tried before being shot”. When the British Cabinet considered the problem, the Lord Chancellor, Lord Simon, could not see the point of a trial to establish the obvious guilt of Nazi leaders. “Fancy ‘trying’ Hitler,” he joked. But President Harry S. Truman was keen that justice be done, and be seen to be done. British reservation, and Russian emotions, were overcome.
The primary achievement of the Nuremberg Tribunal was to apply the rule of law in the most extreme circumstances. However appalling the crimes of the defendants, however great the temptation to seek vengeance for the wrongs they had done, the Nuremberg Tribunal manifested the fundamental principle of a civilised society that the accused were entitled to a fair trial in which they had the opportunity to answer the charges and in which judges would convict and sentence them to punishment only if satisfied on the evidence that they were guilty.
One of the defendants, Hermann Goering, who had run the Gestapo, complained: “The victors are the judges . . . I know what’s in store for me.” In truth, what was in store was a fair trial on the charges of waging aggressive war, war crimes and crimes against humanity. Sadly, the English Bar Council did not appear to understand these principles. After one of the defendants sought to instruct Sir Andrew Clark, KC, a leading Chancery barrister, the Bar Council issued a statement in October 1945 that “it is undesirable that a member of the English Bar should appear for the defence”.
The trial was fair in practice, as well as in theory. Of the 22 individual defendants, 3 were acquitted and another 7 were spared execution, and sentenced to terms of imprisonment. In his diaries, the author and diplomat Harold Nicholson records that during the trial, a film was shown of a Nazi court in which the judge screamed abuse at an unfortunate defendant. The film ended, the lights went up, and “the gentle voice” of the presiding judge, Sir Geoffrey Lawrence, addressed Dr Dix, an eminent Berlin lawyer representing one of the defendants, “Please continue your examination” of the witness. As Nicholson noted, “the contrast between violence and calm was such that even the defendants moved uneasily”.
The second great achievement of Nuremberg was to conduct so momentous a trial so efficiently. And to do so in a country devastated by six years of war. Now that terrorism prosecutions in this country regularly take 18 months or more to come to trial, we should recall that the Nuremberg Tribunal gave judgment just a year and a month after the end of the war.
The efficiency was even more extraordinary given the historical and geographical scope of the evidence, translation of all documents and oral evidence, the need to accommodate the principles of the German legal system from which counsel representing the accused derived their experience, and the difficulties in securing cooperation between British, American, Russian and French judges (two from each country) and prosecutors.
Of course, there were elements of incompetence, as in every trial. An American prosecutor, Captain Sam Harris, unwisely began his submissions on one topic with the words, “My knees haven’t knocked so much since I asked my wonderful little wife to marry me”. One of the American judges, Francis Biddle, wrote himself a short note on the incident: “Jesus.” The junior British judge, Sir Norman Birkett, found unbearable the “toneless” advocacy of one of the French prosecutors. The Russian prosecutors were unbearably slow in presenting the evidence of German barbarity in Eastern Europe. But as Ann Tusa and John Tusa explain in their excellent study of the trial, the Russians then showed a film of women being driven to mass graves and shot, with the guards smiling for the cameras. The court remembered why it was there, and the need for all the evidence, however detailed, to be presented.
The charter that established the Nuremberg Tribunal and the Judgment of the Tribunal established three important principles of international law. First, that international law prohibits planning and waging aggressive war, war crimes and crimes against humanity. Secondly, international law does not just impose duties on states. Individuals who carry out wrongful acts are also responsible in international law. Thirdly, it is no defence that a defendant was obeying the orders of a superior (though this may be a mitigating factor in sentencing).
The Nuremberg principles have led to two main developments in international law. First, there has been a recognition that an individual state has the right to try an individual present in its jurisdiction in its criminal courts for acts that breach fundamental norms of international law, wherever those crimes have been committed. The second development is the creation of an international court to try such cases. That took more than 50 years. The International Criminal Court was created in 1998 and began its work in The Hague in 2002. Truth and reconciliation commissions no doubt have their place. But sometimes, as Nuremberg demonstrates, there is no substitute for a trial and then punishment of the guilty.
Next month the Iraqi High Tribunal will give judgment in the trial of Saddam Hussein and his top aides for their alleged role in the killing of 148 Shia villagers from Dujail, north of Baghdad, in 1982 after a failed assassination attempt against the Iraqi President. The ten-month trial was disrupted by the murder of three defence lawyers, the departure of two chief judges, boycotts by the defence team and a shouting match between Saddam and the judges.
The achievements of the Nuremberg Tribunal in fairly and efficiently dispensing justice to those who least deserved it, and in developing international law, become more impressive with each passing year.
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