The New York Review of Books

To the Editors:

István Deák’s suggestion [NYR, October 7, 1993] that justice at Nuremberg might better have been served by allowing the Germans themselves to run the trials overlooks two central Allied doctrines that shaped postwar policy toward the defeated Nazi state. First was the doctrine of “unconditional surrender,” which ruled out negotiations with, or even encouragement of, any anti-Hitler opposition within Germany while the war was still being fought. This meant that, after the war, we did not have a cadre of “good Germans” in place who could have assumed this kind of higher moral authority and passed judgment over their discredited Nazi countrymen.

On top of this was the somewhat more dubious doctrine of “collective guilt,” designed to ensure that the great mass of the German people did not evade accountability for the war (and its crimes) by contending it was all the fault of their leaders. Once this policy had been promulgated it would have been logically and morally contradictory to declare some Germans capable of trying others for atrocities committed, allegedly, in the name of the German people. This is not to say that Prof. Deák’s idea is, in principle, a bad one, only that it simply could not have been realized in light of official Allied attitudes at that time.

John V.H. Dippel

Piermont, New York

To the Editors:

István Deák’s review of Telford Taylor’s recent memoir of the Nuremberg tribunal presents substantial moral and legal arguments against the legitimacy of the postbellum Nazi trials, and thus against the validity of Nuremberg as legal precedent for contemporary war crimes trials, for example in the former Yugoslavia. Incidentally, Deák might have made similar arguments about the Tokyo tribunal which, like Nuremberg, was a consequence of “unconditional surrender.” Ultimately, however, Deák fails to convince.

Deák’s moral argument, informed by often overlooked historical facts, boils down to “dirty hands.” Indeed, the moral credentials of the powers sitting in judgment of the vanquished Nazis at Nuremberg were not untarnished.

First, the presence of Soviet judges undermined the two indictment counts of “crimes against peace” and conspiracy to commit such, because the USSR waged an aggressive campaign against Finland (the Winter War of 1939–1940) and because it participated in the conspiracy to divide Poland. But Deák overstates this counterindictment by adverting to the Soviet declarations of war with Bulgaria and Japan. The state of war with Bulgaria lasted a single day (September 5, 1944), until Sofia officially turned against the Axis. The Soviet invasion of Manchuko, Korea, and other Japanese possessions took place months after Moscow abrogated its non-aggression treaty with Japan in May 1945, citing Japanese belligerent interference with shipping and air traffic, among other things. By August 8, relations between Moscow and Tokyo were hardly “very correct.” Moreover, as Deák concedes, the second front against Japan was part of the Allied plan agreed to at Yalta. It is unfair to fault the Soviets for opening a front against a common enemy of the Allies.

To clarify a minor geographical point, Rudolf Hess flew not to England, but to Scotland, over which he parachuted to see the Duke of Hamilton on May 10, 1941.

Second, as Deák argues, the Allies also had “dirty hands” with respect to the third count of the Nuremberg indictment, war crimes proper, namely “violations of the laws or customs of war.” The terror bombings of civilian targets such as Hamburg, Dresden, Tokyo, and Hiroshima arguably all constituted “devastation not justified by military necessity.” Not only did they violate the customary maxim against targeting noncombatants, these bombings also failed to achieve their advertised utilitarian objectives—German morale did not crumble immediately after Hamburg and the Japanese did not surrender on account of Hiroshima. The devastation was indeed violative of ius in bello, that is, the principles of just combat.

Despite his persuasiveness on “dirty hands,” Deák does not espouse the dark principle that war knows no laws (inter arma silent leges). Nor does he argue, following the late A.J.P. Taylor, that the Germans were somehow compelled into aggression and therefore exculpable for the war and its conduct. To do so would fail the stomach test: Allied shortcomings notwithstanding, we can be morally certain that the Nazis (and the Japanese militarists) were the “bad guys.”

The gravamen of Deák’s legal argument is that there is no ex post facto criminal liability (nullum crimen sine lege, nulla poena sine lege). Here Deák seriously underestimates the basis of the Nuremberg process in international law. What is more, “dirty hands” have never been considered a valid defense against criminal liability.

Deák appears to assume that the sources of international law are limited to international treaties; hence, he focuses on the Geneva and Hague conventions and the Kellogg-Briand Treaty. However, rules of international law may also be derived from customary law and generally recognized principles, such as the law of nations (ius gentium) and the laws of just warfare (ius ad bellum and ius in bello), which include rules of proportionality (of force) and discrimination (of noncombatants). Thus, for example, war crimes proper, the third count at Nuremberg, are of medieval provenance and were well established by the time of the League of Nations. The relevant conventions and treaties neither preempted nor diminished the basic rules of war, according to which Nazi culpability could be judged. The fourth count, “crimes against humanity,” was the only substantive legal innovation of Nuremberg.

Moreover, Deák omits mentioning that the leaders of Nazi Germany were on specific notice by the 1941 Atlantic Charter and the 1943 Moscow Declaration that the Allies intended to hold them accountable for their bellicose misdeeds. It is a peculiarity of international law that jurisdiction is obtained either by consent or by the Hobbesian-Leninist rule of “who gets whom.” In this case, notwithstanding their “dirty hands,” the Allies won the right to try the German (and Japanese) war criminals.

As to present-day war criminals in Bosnia, two points should be made. First, Nuremberg is indeed an available legal precedent for war crimes prosecution and for individual liability. Second, the new UN Tribunal is basically immune from the charges that one side is simply criminalizing its enemies and meting out “victors” justice.” Contrary to Deák’s claim, this is a legal and just occasion to punish the dirty hands all around the Bosnian quagmire.

Mark C. Medish

Covington & Burling

Washington, DC

To the Editors:

In his review of Telford Taylor’s memoirs István Deák suggests that the Germans might have been entrusted with trying their own war criminals after World War II. Implicit in this suggestion is the mistaken assumption that the courts after WWII in Germany experienced a “zero hour” in any way comparable to the revolutions which brought about Hungarian People’s Courts after WWII or the Turkish tribunals after WWI. As Ingo Müller’s book, Hitler’s Justice: The Courts of the Third Reich, over-whelmingly documents, the vast majority of Nazi judges, from the infamous “hanging judges” to those who had supported the euthanasia program and those who convicted “wrong doers” of “racial treason” (Rassenschande), remained on the bench.

In suggesting that German law could have been used to bring these criminals to justice, Deák argues that “no German law, not even the worst Nazi law, made legitimate the killing of innocents.” However, obedience to the Führer was above the law. Nazi “ethics” and values encouraged the mass murder of millions of “inferiors,” and German law was elastic even with regard to its “Aryan” citizens. Müller cites many cases, such as that of the Supreme Court in 1934, which declared a fatal stabbing by an SA man “lawful,” because the accused was “not only authorized…but indeed entitled and obliged to defend the prestige and the interests of the power of command embodied by and vested in him.” If this was the judges’ interpretation of Nazi law, what kind of judgments should we have expected from these same judges in the post-war period regarding the people they had previously exonerated?

By 1950, the Federal Republic of Germany (consisting of the former US, British, and French zones of occupation) had punished about 6,500 Nazis, while the much smaller German Democratic Republic (consisting of the Soviet zone) had punished about twice as many. The fact that one fourth of former Germany (the GDR) accounted for two thirds of the Nazis prosecuted is both impressive, when one considers that the per capita concentration of Nazis in the West was much higher since they had fled from the Soviet advance and occupation, as well as indicative of what the West Germans would have done without Allied prodding.

Deák suggests that “a tribunal presided over by, for example, Konrad Adenauer…would have had as much moral authority as the one at Nuremberg, if not more.” In fact, as Chancellor, Adenauer used his “moral authority” to integrate former Nazis into the political structures of the Federal Republic. Some of the leading politicians in government and in the office of the Chancellor were former Nazis. For example, Hans Globke, Adenauer’s chief aide, had been author of the official commentary on the Nuremberg Race Laws of 1935. Also, it was Adenauer who declared in September 1951 that “the German people, in its overwhelming majority, abhorred the crimes perpetrated against the Jews and did not participate in these crimes.” [emphasis ours]

In general, it would be fair to conclude that the Federal Republic, as exemplified by the Bundestag after 1949, showed a tendency toward restoration rather than a critical coming to terms with its Nazi past. In fact, the Reinstatement Act of 1 April 1951 restored the pension rights and employment of civil servants and professional soldiers who had been caught by Allied de-Nazification policies (except for Gestapo members declared criminal at the Nuremberg trials). By the early 1950s, over half of all government officials were former NSDAP members. “Creative” interpretation of laws under the West German government allowed such miscarriages of justice as the recognition of concentration camp guard duty as war service.

As Henry Friedlander pointed out in one of his many studies of the postwar German judiciary: “In the world of legal positivism of the civil law, final responsibility does not rest with the judiciary (as it does in the United States), but with the legislature. Only the legislature can correct errors of judicial interpretation by clarifying the meaning of the law.”^* In the case of the Bundestag, that resulted, for example, in a “First Law on Ending the Occupation” (1956) which did away with all Allied laws that, in their turn, had removed Nazi laws and had also punished crimes against humanity.

In conclusion, although we share István Deák’s dismay that, in response to the Cold War, the Western Allies were lenient in judging and remiss in punishing Nazi criminals, we strongly disagree that “if they had been in charge of trying all the Nazi criminals, the German courts could not have done much worse than that.” Indeed, German justice continues to hold trace of its unsavory past, letting neo-Nazi skin-head murderers off lightly [The New York Times, November 7, 1993].