Lessons from the Nuremberg trials

[Jim O]

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.

About the author The author is a practising barrister at Blackstone Chambers in Temple and a Fellow of All Souls College, Oxford. This is an edited version of a lecture last week at Nuremberg in History, organised by The Wiener Library, 5 Paper Buildings, and The Times

Source: A global view on world, UK and business news and comment from The Times and Sunday Times

[Helmut Von Moltke]

Nurnberg.. not very unbiased if it only puts the vanquished on trial. For example, the Soviet Union was in the juge's seat, judging others for crimes, the sorts that they themselves commit!

K

[Klaus]

You can't put a winner to trial. Strange but true.

[barrett.t]

You certainly know your stuff Jim. Even so the only charge that they were guilty of in my view was the crimes against humanity claim. The point has been made already that some Russians should have been in the dock with them. Although, how kind of the allies to let some off. I sometimes wonder though can anyone be truly objective?

[higge]

The point has been made already that some Russians should have been in the dock with them. Although, how kind of the allies to let some off. I sometimes wonder though can anyone be truly objective?

As they say, the one who losts, always follow the winners sword.
Sad but true.
I have my opinion. Uk and americans were too afraid for russians that they couldn't even imagine to charge them. Russians were too strong then and even now. Its all political always. right or wrong

[barrett.t]

In the film Patton I remember watching a scene where Patton supposedly wanted to go right onto Moscow and sometimes I think that he was right.

[joyarjun1]

Please answer these queries:

1. What about the UK and the USA engaging full steam in slave trade, notably from Africa?
2. The European settlers of America wiping out the indigenous population, the Red Indians?
3. The UN drew up the 'human rights' charter following WWII, when white Europeans were annihilated by whites, the Germans. The Germans under Hitler held Jews and Slavs as 'subhumans', bad enough. But did other Western nations behave any differently vis-a-vis the so called 'coloured' people (actually that word is a misnomer, the 'whites' are actually pink, so they are also coloured! White is the colour of a bloodless corpse!)?

Even today, racial discrimination runs, if not always overtly then covertly. If enslaving the Negroes and wiping out Red Indians were not acts against humanity, why should Hitler's more systematic schemes of the same be condemned alone? The Spaniards in S.America, the Brits, Yanks, Belgians, Dutch, and the Portuguese in Asia and Africa have a real beauty of a 'human rights' record.
The leaders of these countries should also have been hanged.
joyarjun1

[higge]

As they say, the one who losts, always follow the winners sword.

Thats how the show goes