On February 22, 1993, the United Nations Security Council voted unanimously to establish an “International Tribunal to Prosecute Persons Responsible for Humanitarian Law Violations in Former Yugoslavia.”1 Based on the Nuremberg model, the tribunal was the first such body to be created since the end of World War II. Its ostensible purpose was to consider all war crimes committed in former Yugoslavia, but no one doubted that the Council members were mainly reacting to Serbian atrocities in Bosnia.

While discussing the resolution, several speakers made it clear that, in accordance with the principles laid down at Nuremberg, defendants would not be able to avoid responsibility by arguing that they were “simply following orders.” Other speakers, such as the Spanish delegate, pointed out that establishing the tribunal was only a short-term ad hoc measure: a longer-term solution would be to create a permanent international criminal court with universal jurisdiction that could prosecute all grave breaches of international law.

On May 25, voting unanimously, the Security Council officially created the tribunal. According to the UN announcement, its headquarters will be in The Hague, but it is likely to set up courts in countries much closer to the former Yugoslavia. They will be able to impose prison terms but not to sentence anyone to death. The secretary-general of the UN has urged that those found guilty serve their sentences outside the former Yugoslavia and he has asked other countries to accept such prisoners.2

The new tribunal bears some resemblance to the original War Crimes Tribunal, which sat at Nuremberg in 1945 and 1946. But the Nuremberg court was created after the enemy had been defeated in a total war lasting almost six years. This court is being set up without the slightest intention of defeating and apprehending the criminals. Instead, UN officials in Belgrade continue to enjoy the hospitality of President Slobodan Milošević, a primary candidate for indictment in the proposed war crimes trial. What is more, the Serbian regime has, at least formally, become an ally of the United Nations in its attempt to persuade that other group of criminals, the Bosnian Serb leadership, to sign a peace agreement.

1.

Telford Taylor reached the height of his career in a more resolute and less cynical world. One of the last surviving participants of the Nuremberg trials, he has had a distinguished career as a lawyer and as a leading member of the American prosecution at the first Nuremberg trial. Promoted to brigadier general, he subsequently served as chief prosecutor for the twelve other Nuremberg trials.3 During the last forty-odd years, he has been practicing and teaching law in New York City.

The Anatomy of the Nuremberg Trials describes both Taylor’s stay at Nuremberg and the activities of the judges, prosecutors, lawyers, interpreters, stenographers, researchers, reporters, secretaries, and hangers-on who made up the Allied contingent there. In occupied and devastated Germany they created for themselves, Taylor writes, a pleasant, “semi-colonial life-style,” on which he looks back with some nostalgia.

Taylor’s memoirs place almost equal emphasis on the problems faced by the prosecution and the crimes and characteristics of the defendants. He gives vivid character sketches of Justices Robert H. Jackson and Francis Biddle, who were respectively chief US prosecutor and chief US judge; of the respected British Lord Justice Geoffrey Lawrence, who acted as president of the court; and of the Soviet delegates, who spoke in Stalinist clichés and felt extremely uneasy in the company of Westerners.

One of the best sections of Taylor’s book is his description of the preparation for the trial. The few British and the many American lawyers who worked out its procedures were generally talented, and they shared a genuine desire to be fair to the defendants while laying the foundations of a new world to be governed by international law and justice. But these jurists were also often amazingly uninformed about the Nazis. Telford Taylor, who must have been one of the most intelligent among them, admits to having been unaware of the Holocaust until exposed to the facts at the trial.

Unlike some expert commentators on the Nuremberg tribunal, Taylor does not consider the war crimes trial to have been a waste, or a moral and political failure.4 Rather, he believes that

as a moral and legal statement, clothed with judicial precedent and United Nations recognition, the Nuremberg principles are an international legal force to be reckoned with.

But he does not have an easy task defending a procedure that had many shortcomings. Consider the city of Nuremberg itself, whose historic center was left in ruins by a half-hour air attack on January 7, 1945, which killed a large number of civilians. During the trials, the enormous Allied tribunal staff occupied all the decent accommodations in and around the city, while most of the Germans huddled in unheated and partly destroyed houses. In fact, the defendants lived more comfortably than many a free German witness against them.

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Precedents existed for trials of individuals for crimes committed against foreign nationals in war, but these precedents were hardly satisfactory. For centuries, as Taylor writes, attempts had been made to codify the laws of war. The Geneva and Hague conventions that were agreed on during the late nineteenth and early twentieth centuries categorically prohibited, among other things, the killing of surrendering soldiers and ruled that prisoners of war should receive the medical care, pay, and food normally given to one’s own troops. Captured officers were to enjoy the privileges and even some of the liberties owed their exalted caste.

Some of these agreements were violated in World War I. The German shelling of Louvain cathedral was a clear violation of the 1907 Hague Convention, which had been signed by forty nations, but the same agreement did not prohibit the taking and even killing of hostages. Nor was the sinking of the American passenger ship Lusitania in 1915 by a German submarine illegal under international law, for only hospital ships were protected. Even the Zeppelin attacks on London were strictly speaking not illegal, writes Taylor, because London was not an undefended city. Finally, the Hague Convention could not be applied to the World War I Turkish massacre of the Armenians, Taylor explains, because the Turks and Armenians were not officially at war.

Notwithstanding such legal loopholes, Western public opinion after World War I wanted to see the German leaders punished for their alleged crimes. Article 227 of the Versailles Treaty stipulated that five judges from the US, Britain, France, Italy, and Japan were to try the Kaiser for “a supreme offence against international morality and the sanctity of treaties.” Articles 228 and 229 required that the German government deliver up its own citizens for trial on war crimes charges by tribunals set up by the victorious armies. No part of the Versailles Treaty aroused more anger in Germany than the articles on war crimes, Taylor writes, not even the famous Article 231 on Germany’s war guilt.

Little came of these early attempts to punish German war crimes. The Kaiser had fled to the Netherlands at the end of the war, and to everybody’s relief, the Dutch refused to surrender him to the victorious powers. Similarly, the idea of an international court of justice for German war criminals was soon abandoned; instead, a list of 854 people was presented to the new German republic to be tried.5 Again, there was great indignation in Germany but the supreme court in Leipzig finally sentenced thirteen German soldiers and sailors to relatively short prison terms. The accused were found guilty of such crimes as beating British prisoners of war, shooting wounded French soldiers, and, in the case of two U-boat officers, sinking a hospital ship as well as deliberately destroying two of the hospital ship’s three lifeboats. The third lifeboat escaped in the dark and later reported the incident.6 In the absence of the U-boat commander, the Leipzig court tried two of his underlings, and in its verdict rejected their excuse that they had only been obeying orders.

Needless to say, a number of British and French soldiers and sailors could have been accused of exactly the same crimes. Still, these trials, especially that of the U-boat officers, created a precedent which would have allowed the Allies, had they cared to do so, to demand again in 1945 that the Germans prosecute their own criminals.

Trials in Turkey following World War I showed the German supreme court was not alone in arguing that obeying orders could not excuse vile crimes. As a defeated power, Turkey also had the equivalent of Articles 228 and 229 incorporated in the Treaty of Sèvres, but even before that treaty was signed in 1920, the Turkish military courts tried and punished their war leaders for the massacre of the Armenians. No doubt the presence of Allied occupation forces, and especially of British pressure, had an influence on the Turkish government, but the Turkish public also demanded that the guilty leaders be tried. As the retired US diplomat Edward Alexander explains in A Crime of Vengeance: An Armenian Struggle for Justice, sixtythree high-ranking officials appeared before a military tribunal in Constantinople in February 1919. All had belonged to the wartime Young Turk regime. The court was assisted by civil judges, among whom were a Greek and two Armenians.

The first session of the tribunal, Alexander writes, “produced an ominous phrase that would echo through the halls of another tribunal a quarter of a century later in Nuremberg.” On trial was Kemal Bey, a former provincial governor, whose lawyer argued that the killings, deportations, and robberies organized by the defendant in a district under his authority deserved to be pardoned because his client had only carried out orders. The chief prosecutor of the military tribunal rejected this argument: “It is true that everyone is obligated to carry out orders from the highest offices, but he must judge and weigh in balance whether the issued order does not violate justice and the law, and whether one must obey it or not.” Kemal Bey was publicly hanged on Bayazid Square in Constantinople on April 12, 1919.

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The Turkish military tribunal sent scores of other former high officials to jail, and in July of the same year it found four of the wartime leaders including Mehmed Talaat Pasha—a former grand vizier and minister of the interior—guilty of the massacre of the Armenians and of other abominable crimes. All four were condemned to death on the basis of Sections 45 and 55 of the Turkish criminal code. They could be sentenced only in absentia because they had fled the country a few months earlier to join the Bolsheviks in Russia or to settle in Germany. But the Turkish trials showed that it was not impossible to expect the courts of a defeated country to avenge atrocities committed by their wartime leaders against other nationals.7

New treaties and conventions to mitigate the cruelty of warfare, particularly for civilians and military prisoners, and even to outlaw war were signed in the interwar years. The agreement most often invoked later at Nuremberg was the Kellogg-Briand Pact, signed in Paris on August 27, 1928. Within one year, forty-four nations, including Germany but not Soviet Russia, solemnly declared they accepted the treaty’s provisions renouncing war as an instrument of national policy. Rather than outlawing all wars, however, the Pact said wars of self-defense were legitimate; nor did it make waging aggressive wars a criminal matter or contain any suggestion that individuals be punished for breach of peace. All this had to wait for the Nuremberg tribunal.

2

Well before the end of the war, the Allies began to discuss what to do with the Nazis. There was no shortage of drastic proposals, such as Stalin’s half-serious recommendation that 50,000 German general staff officers (there never had been that many) be shot after summary trials, or Churchill’s insistence on the summary executions of major Nazi war criminals.8 Cool heads prevailed, however, with the Americans in particular demanding an international tribunal that would punish individuals as well as indict the criminal organizations they had headed. Most important, the Americans wanted the tribunal to outlaw aggression and to promise that leaders who planned and carried out aggression would be punished. After World War I the British had demanded that an international court be set up while the US had opposed the idea; this time it was the Americans who dragged a reluctant Britain along. Nor were the Soviets or the French very enthusiastic about setting up the court. But the Americans’ prestige and power were so strong at the time that their views prevailed.

The London Agreement of August 8, 1945, established the tribunal and outlined its jurisdiction. It also drew up the famous four counts of crimes for which a select number of German leaders would be tried:

  1. Planning, preparing, initiating, or waging wars of aggression;
  2. Participating in a common plan to accomplish any of the foregoing (the first two categories were referred to as “crimes against peace”);
  3. War crimes, a broad category including murder, ill treatment, and deportation of civilians in occupied territory to slave labor in Germany; crimes against prisoners of war; killing of hostages; the plunder or wanton destruction of cities, towns, and villages, and devastation not justified by military necessity; and
  4. Crimes against humanity, a new idea, applying to inhuman acts committed against civilians before or during the war on political, racial, and religious grounds.

These crimes were to fall within the jurisdiction of the tribunal, “whether or not in violation of the domestic law of the country where perpetrated.” Clearly, the third count was meant to deal with crimes committed by the Nazis in occupied territory or against the slave laborers they imported from Eastern Europe. The fourth count concerned crimes committed in Germany as well as racial, religious, and other persecution in general.

The person most responsible for formulating these categories was the American Supreme Court Justice Robert H. Jackson, who acted as chief US prosecutor at the trial. Jackson placed the greatest emphasis on the second count, the crime of conspiracy to commit aggression. The British prosecution went along with that notion, but the French felt that punishing people for aggression amounted to “ex post facto legislation”: they would have preferred to try the Germans solely for war crimes—the third count—and crimes against humanity.

Finally, Taylor explains, the Soviets argued that since the conference at Yalta in February 1945 had already established the guilt of the Nazis, the tribunal’s only task was to establish the degree of guilt of each person and to hand down the proper punishment. The Soviets were opposed to condemning unprovoked aggression, for they were very much in favor of wars of liberation. According to the legal expert Judith N. Shklar, Jackson meant by “aggressive war” a resort to violence aimed at altering the international status quo for any reason whatever. This concept was wholly unacceptable to the officials of the USSR, a state with a revolutionary mission. Still, they went along with the plan.9

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p class=”initial”>With the hindsight of nearly five decades, it is difficult to understand how so many flaws and contradictions could have been built into the indictment, and even more, into the procedure of the Nuremberg trial. Critics such as Eugene Davidson condemn the inclusion of crimes common to both sides, particularly the crime of “aggression.” For example, the indictment charged the Germans with aggression against Poland in September 1939, but it failed to mention that the attack could not have taken place without the preceding Nazi-Soviet Non-Aggression Pact and its secret clause regarding the partition of Poland. The Nazi-Soviet Pact was, however, cited confidently in indicting the Germans for their unprovoked attack on the Soviet Union in June 1941. Furthermore, the indictment ignored the unprovoked Soviet attacks on Poland and Finland in 1939, Bulgaria in 1944, and Japan in 1945. This last attack began on August 8, when the Japanese government was begging the Soviets to arrange an end to the war with the United States.10

The German generals and admirals at the trial were charged with having carried out aggression against neutral Norway in April 1940, yet the court would not allow the defense to prove that the British had already begun mining Norwegian harbors by that time; that in February the British had attacked a German prison ship, the Altmark, in a Norwegian harbor; that the Allies had killed fleeing German sailors on Norwegian territory; or that the German invasion came at a time when British and French troops had already embarked on transports to occupy Narvik and other points in Norway.11

Both the Americans and Soviets argued that, next to Nazism and Prussian militarism, the chief culprit was German economic imperialism. As a symbolic representative of this evil force, the prosecution wanted to single out an industrialist from the Krupp family of arms manufacturers whom it wished to prosecute for conspiracy to initiate aggressive war or war crimes. But, Taylor explains, the British and the American prosecutors were not thinking of the same person. Many of them didn’t realize that there were two important Krupps, Gustav the father, and Alfried the son. After this had been cleared up and Gustav officially indicted, it turned out that he was senile and could not be produced in court. Justice Jackson thereupon proposed that Alfried serve as a substitute defendant. This was finally rejected, and thus no Krupp or any other German industrial magnate appeared as a defendant at the main trial.

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p class=”initial”>The defense was gravely handicapped throughout the trial. All the defense lawyers were Germans, including many former Nazi Party members. Though fed and housed better than the rest of the population, they were nonetheless treated during the trial as if they were plainly inferior to the prosecutors. In any case, not only were there only as many German lawyers as there were defendants, but they also had to do practically without secretaries and researchers. Against them, the British team had some 170 persons, and the American ten times as many. The German lawyers were given only very limited access to trial materials and no access at all to Allied archives that the lawyers and researchers of the prosecution were free to use to their advantage. In particular, the German lawyers were never shown the secret British documents on the invasion of Norway, even though the sentences of Admirals Doenitz and Raeder for committing aggression depended on these documents.12

The monstrous Nazi mistreatment of Soviet POWs figured heavily in the indictment, but the defense was forbidden to discuss the Soviet mistreatment of German POWs. Yet millions had died in both Soviet and German prison camps, and cannibalism had been widespread in both. The bombing that largely destroyed Dresden and Hamburg could not be mentioned, while the bombing of Warsaw, Rotterdam, and Belgrade was; and the bombing of Rotterdam actually figured in the indictment, although only in connection with a land attack.

The Germans were initially indicted for the massacre of 925 Polish officers in the Katyn forest, even though the Western prosecutors were fairly certain by that time that the massacre had been the work of the Soviet political police. Later, at the insistence of the Chief Soviet Prosecutor, Roman A. Rudenko, the number of Polish victims at Katyn was increased from 925 to 11,000. Nonetheless, as Taylor explains, because the Soviets did not produce a shred of evidence against the defendants in the matter of Katyn, and because some American officials at home angrily protested against such a parody of justice, Katyn was quietly dropped from the charges. It was not mentioned in the final verdict. Some forty-five years after Nuremberg, one of the last gestures of the collapsing Soviet system was to admit that the Katyn massacre had been ordered in 1940 by Stalin. (It is estimated that some 15,000 Polish officers were killed by the Soviets at Katyn and elsewhere.)

Taking and killing hostages figured prominently among the crimes imputed to the Germans, yet as Taylor points out, this had not been outlawed before Nuremberg and was later to be declared legal in 1948 at another Nuremberg trial, on the grounds that hostage-taking at least limited the number of potential civilian victims in case of guerrilla attacks on occupation forces. Without hostages, the military’s thirst for revenge might threaten the entire population. 13 Taylor reproaches the Germans, not for having taken hostages where there was intense guerrilla activity, but for “the magnitude and manner of the German Army’s hostage-killings.” The Germans certainly executed many hostages, sometimes hundreds or even a thousand (as in Serbia) in revenge for the killing of a single German officer. But what does it mean to say “too many” hostages, or “too many” executions?

Article Four of the Hague Convention in 1907 included guerrillas, militia, and volunteer troops in the category of legitimate belligerents but only if they were properly commanded, wore a fixed emblem recognizable at a distance, carried arms openly, and conducted their operations in accordance with the laws and customs of war.14 During World War II, neither side respected the Hague Convention regarding guerrillas. Resistance fighters regularly operated in disguise and killed their German captives; the German military tortured and executed captured partisans even if they had been “recognizable at a distance.” The Allies made extensive use of resistance fighters during World War II, and at Nuremberg as well as elsewhere they condemned the Germans for repressive measures taken against partisans and their suspected helpers.

In view of the uniquely brutal nature of the Nazi system, it is hard to see how irregular warfare could have been avoided. Moreover, the Yugoslav, Russian, Polish, Greek, Italian, and French partisan forces did in varying degrees tie down German troops, thereby hastening the end of the war. But guerrilla activity brings untold sufferings to the local population, not only because of the exasperation and hence growing ferocity of the occupation forces but also because the fight against the occupiers is almost inevitably accompanied by civil war. Anti-Nazi partisans in World War II fought an evil regime, but many of them also robbed and terrorized the rural population and killed partisans belonging to other groups as well as real and suspected collaborators. All these issues the Nuremberg tribunal failed to address, leaving it to future generations to face a forever growing and increasingly intractable moral and political problem.

One of the principles laid down by the court was that neither prosecution nor defense could challenge the legality of the proceedings; therefore it did no good for the Germans to insist that the tribunal had no basis in international law, or that people should not be tried for crimes which the law did not regard as such when the acts were committed, or that the Allies were often guilty of the same crimes as the Germans. Yet the court, which normally rejected the tu quoque (you, too) argument as inapplicable, permitted it at least once, in the case of Admiral Doenitz, the wartime commander of the U-boats, whose lawyer argued that all-out submarine warfare had been forced on the Germans, and that the Allies, too, had practiced the same kind of submarine warfare.

Doenitz was indicted for atrocities against British and other commandos, and for sinking passenger and merchant ships without warning. Yet the defense proved, as far as it was permitted to do so, that Hitler’s Commando Order of October 18, 1942, ordering the execution of captured British and Canadian commandos, was in response to captured British documents instructing Allied sabotage parties to behave like “potential gangsters,” and to use torture to extract information from their captives.

As for submarine warfare, the defense effectively demonstrated that, during the first year of the war, German submarine commanders abided strictly by international regulations, allowing the crews of merchant ships to get into lifeboats before sinking their ship. Only after it had become clear that British merchant ships were under orders from the first day of the war to report all sightings of German submarines to the naval command by radio, and that many merchant ships were armed and often fired on the U-boats or tried to ram them, did Hitler order that British merchant ships be sunk without warning. The reason for Hitler’s initial refusal was his hope for a separate peace with Great Britain, and the reason for British aggressiveness was the determination of Churchill, as First Sea Lord of the Admiralty and later as Prime Minister, not to lose the war.

Doenitz would certainly have received more than the ten years he finally did if Allied naval officers had not intervened and, in particular, had Admiral Nimitz, wartime commander of the US Pacific Fleet, not answered a questionnaire prepared by Doenitz’s lawyer. Nimitz stated that, from the very first day of the Pacific conflict, US submarines had sunk Japanese ships without warning. Nor did US submarines rescue enemy survivors, Nimitz declared, if “undue additional hazard to the submarine resulted or the submarine would thereby be prevented from accomplishing its further mission.”

In a fascinating passage, Taylor explains how Doenitz’s skilled lawyer, Otto Kranzbühler, countered the prosecution’s argument that even if the Americans were guilty of sinking Japanese merchant ships without warning, this did not mean that the Germans could not be tried for the same crime. After all, the Germans were on trial at Nuremberg, not the Americans. The British prosecutor David Maxwell-Fyfe argued that if a defendant has committed a particular crime, the fact that others have also done so, even if the others are the accusers, is no defense. Kranzbühler replied that, on the contrary, neither the Americans nor the Germans were guilty, for both had acted strictly in accordance with international law.

Among his many titles and functions, Hermann Göring was the head of the Luftwaffe, the German air arm. It would have been logical for the Nuremberg court to charge him with the terror bombing of Warsaw, Rotterdam, Belgrade, and cities in Britain. Yet no charge of unlawful aerial bombardment figured in the indictment against either him or the other defendants. According to Taylor, “If Goering’s role in the Third Reich had been restricted to his command of the Luftwaffe, he would have had much less to fear at Nuremberg.” The reason for this was that the German air attacks on Britain and other targets “paled by comparison,” in Taylor’s words, to the Allied attacks on Germany and Japan by “area bombing”—i.e., bombing not of specific military targets but of entire areas in which civilians lived.

The same comparison is taken up rather energetically by Stephen A. Garrett, professor of International Policy Studies at the Monterey Institute of International Studies, in his powerful book Ethics and Airpower in World War II: The British Bombing of German Cities. Although his judgments are carefully worded, his book is a bitter indictment of the Allied terror bombing of Germany in World War II, and of British bombing in particular.

The statistics are indeed appalling. About half a million Germans, most of them civilians, died in the Allied bombing offensive; in addition, perhaps one million people were seriously wounded, and three million homes were destroyed. Since the Americans concentrated on the daytime bombing of mostly industrial and military targets, while the specialty of the British was the nighttime carpet bombing of German cities, most civilian casualties were undoubtedly inflicted by the British.

On the evening of July 27, 1943, for instance, a heavy British bombing attack caused four square miles of central Hamburg to be consumed by a firestorm whose hurricane-force winds sucked in trees and entire buildings. In two hours, some 40,000 people perished. Most controversial of all was the attack on Dresden on the night of February 13, 1945, by two waves of British Lancaster bombers, followed the next two days by American air strikes. The number of dead at Dresden has been estimated variously at between 35,000 and 200,000. The magnificent baroque city had neither strategic nor tactical importance at this late stage in the war; the dead were mainly refugees from the East who had crowded the open spaces in the center of the town. In contrast to the half a million German victims of the Allied attacks, the German Blitz killed no more than about 40,000 British civilians between the autumn of 1940 and the spring of 1941. (Add to this, however, the 32,000 British civilians killed or wounded by V-1 flying bombs and V-2 rockets during the last year of the war.)

Garrett discusses the well-known facts that German armaments production increased from year to year despite the bombing attacks, and that German morale did not collapse. But neither Garrett nor anyone else can state unequivocally how much more German production would have increased in the same period had there been no area bombing attacks. Also, no one can count the millions of productive hours lost because of such activities as the clearing of streets, the digging into ruins, and the flight and gradual return of hundreds of thousands of people at the time of heavy air attacks. Finally, it is impossible to quantify the political and psychological effect area bombing had on Germany’s enemies; captive peoples in particular were sustained by the thought of the Germans receiving their just deserts.

3.

A total of twenty-two Germans were indicated at the first Nuremberg trial, although because of the absence of Martin Bormann, only twenty-one actually were in court. The guilt of such Nazis as Hermann Göring, SS Security Chief Ernst Kaltenbrunner, Foreign Minister Joachim von Ribbentrop, and Hans Frank, who presided over occupied Poland, was clear. They had ordered or at least helped to carry out the massacre of Jews and others, although even in their cases the prosecution insisted on their conviction more for crimes against peace than for crimes against humanity.

Much less simple was the case of Rudolf Hess, Hitler’s confidant and deputy for all Party affairs, who had flown to England in May 1941 saying he wanted to make peace. The British immediately put him in jail, and the Nazi press alternately called Hess a madman and a traitor. Hess could not be accused of either war crimes or crimes against humanity, and his responsibility for the war was at least doubtful. Still, because the Soviets suspected him of collusion with the British and insisted on his execution, Hess was given a life sentence. Taylor strongly doubts Hess’s guilt and questions whether he was mentally competent to stand trial. Nevertheless, Hess was to stay in Berlin-Spandau prison, again at Soviet insistence, until he allegedly hanged himself in his cell, in 1987, when he was ninety-three.

No less difficult was the case of Julius Streicher, a pornographer, lecher, demagogue, and anti-Semitic propagandist. Streicher made a lifetime career of inciting the German people against the Jews, and in 1935 he had significant influence on the text of the anti-Semitic Nuremberg laws. All this endeared him to Hitler, but because Streicher was also vain, corrupt, an intriguer (mostly against Göring), and much too vulgar for some more refined Nazi tastes, he was deprived, in 1940, of his only official position, that of Gauleiter, or party leader, of Franconia. Thereafter, he lived under virtual house arrest. Apparently, Hitler did not send Streicher to prison only because he had been one of the Fuhrer’s old comrades-in-arms. Even after 1940 Streicher was allowed to publish, edit, and partly write his obscene, anti-Semitic paper, Der Stürmer, but he had no power to make political, economic, or military decisions. He was not even a government official. He did not kill anyone; nor was he in a position to order any killings, although he spewed hatred and incited people to annihilate the Jews.

At his trial, Streicher attempted to defend himself by claiming that he was a Zionist (i.e., like Eichmann, he favored the emigration, until 1941, of Jews to Palestine), and by showing that Martin Luther had been no less an anti-Semite than he was. Streicher said,

Anti-Semitic publications have existed in Germany for centuries. A book I had, written by Dr. Martin Luther, was, for instance, confiscated. Dr. Martin Luther would very probably sit in the defendants’ dock today, if this book had been taken into consideration by the Prosecution. In the book The Jews and Their Lies, Dr. Martin Luther writes that the Jews are a serpent’s brood and one should burn down their synagogues and destroy them.15

Streicher was the sole defendant to be convicted on one count only: crimes against humanity. “Was the publication of a German newspaper in Germany, no matter how scurrilous, an international crime?” Taylor asks rather rhetorically, for today he is convinced that Streicher should not have been executed, and that he was hanged only for what he had written and said.

Taylor gives a most interesting account of how the verdicts were arrived at. Certainly, the judges had many problems. Were they to call the German occupation of Austria in 1938 an act of aggression, when it occurred without bloodshed and when the mass of Austrians welcomed the aggressors with flowers? Could they condemn the partition of Czechoslovakia in 1938, when Britain and France had awarded the Sudetenland to Hitler? What about the occupation of Norway, discussed above, or the German invasion, in the spring of 1941, of Greece, where British warships and troops were stationed before the Germans arrived? Could they condemn the German declaration of war on the United States when neutral America had been for all practical purposes a co-belligerent of Great Britain for some time before? Was it proper to condemn the German generals for not having disobeyed the Führer’s orders, that is, for not having taken a political decision, when the tribunal reproached the same generals for having disobeyed the democratic Weimar republic, that is, for having taken a political decision to oppose a government they disapproved of? Or as Telford Taylor described the dilemma of the generals and their judges in one of his earlier books:

Did they [the generals] not likewise owe full obedience to Adolf Hitler, who had been appointed Chancellor by Hindenburg, confirmed in office by popular election, and acclaimed in Hindenburg’s political testament? Is it the duty of generals to obey to the letter the orders of a democratic government, but to confound, undermine and destroy an authoritarian regime?

Yet also:

Are they [the generals] mere janitors of the military machine, with no responsibility for the use to which it is put? Are they, in short, political eunuchs, deprived of the capacity of moral judgment on their own behalf?16

To which one might answer that, for example, when the German officers tried to kill Hitler in 1944, the very survival of the German people was at stake, and that in such extreme emergencies it was the duty of officers to become “political.”

In preparing their verdicts the judges made important concessions to each other’s views. Only the Soviets insisted that every single defendant be hanged. At the end, the judges condemned twelve of the defendants to death, seven to prison, and acquitted three.17 In view of the enormity of Nazi crimes, such sentences do not sound unfair; it is another question whether the charges had been properly formulated and whether all those sentenced were truly guilty. Taylor writes that Streicher and General Jodl should not have been executed, and that Hess as well as Admiral Doenitz should have been acquitted. He admits that grave mistakes were made, among them reliance on the excessively vague charges of conspiracy to commit aggression. Still, he calls the trial both necessary and a success because it was better than any other proposed solution, because it adopted some important legal principles, particularly the concept of crimes against humanity, and because a smattering of small trials would have carried no weight. Moreover, whereas it had been a mistake to make the charge of aggression ex post facto, “there would be nothing unlawful about creating such a principle for the future.”

4.

The Nuremberg tribunal, with its grave decorum, was undoubtedly preferable to some of the drastic alternatives suggested at the time. It would have been unworthy of the Allies to shoot the Nazis out of hand, or to string them up by their feet as the Italian partisans had done to Mussolini and Clara Petacci, his unfortunate mistress. Nuremberg was a political trial, but one at which the abominable crimes of most of the defendants were amply documented, and at which the vilest of them had his say. All but a few of the judges were open to persuasion, and they carefully distinguished between greater and lesser crimes. By comparison to most other political trials in our century, Nuremberg was a model political trial.

But was there no better way to deal with the Nazi leaders than this semijustice? Would it not have been possible to avoid the execution of those who should not have been executed? One of the gravest moral and legal defects at Nuremberg was the tribunal’s insistence on judging the defendants on the basis of ex-post facto laws. The Declaration of Human Rights adopted by the General Assembly of the United Nations on December 10, 1948, showed the illegality of it all. It stated that “no one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed.” As early as 1946 the Protestant theologian Reinhold Niebuhr argued that since no law or court existed to try the Nazis for aggression they should be punished only for “crimes against commonly accepted standards of humanity.18

It should have been possible to judge the Germans on the basis of existing German laws. True, such a course would have required abandoning the vague notion of aggression and therefore the two counts of “crimes against peace.” It might also have required the tribunal to give less emphasis to the concept of war crimes, because international conventions about such crimes were often very vague, and because the Allies, especially the Soviets, were often as guilty in this respect as the Germans.

Yet no German law, not even the worst Nazi law, made legitimate the killing of innocents. Paragraph 211 of the revised German penal code, as published in a handbook in October 1943, defined murder without any qualification about the victim’s race, religion, or nationality, and it threatened the murderer with capital punishment. Other paragraphs of the code called for the severe punishment of those who incited to murder or assisted in any way in the commission of such a crime. Moreover, a special appendix to the handbook reproduced the October 8, 1939, Führer decree (Erlass) and a number of subsequent edicts (Verordnungen) regarding the extension of German law to such regions of Eastern Europe that had been incorporated in the Reich. One of the incorporated regions listed in the decree and the edicts was the Kattowitz (in Polish, Katowice) district in Silesia, which included Auschwitz.

And even though the edicts singled out the Polish and Jewish inhabitants of the annexed region for draconic punishment if they were to endanger the security of the Reich or the welfare of its citizens, there was nothing in those edicts about the Germans’ right to kill those in the annexed regions who had committed no illegal acts. In other words, the Nazi law code did not authorize the murder of Jews just for being Jews or the execution of Polish intellectuals simply because they happened to be Polish priests, professors, journalists, and lawyers.19 Rather than obeying the law of their country as they claimed later, the Army High Command, the SS, and the German government were defying it when they issued orders for the massacre of innocents.

Remarkably, the 1943 German military regulations went so far as to threaten with punishment the soldier who carried out orders of his superiors that were in violation of the law. “The subordinate…is punishable as a participant:…when he knows that the superior’s order would have the aim of leading to a military or other crime or violation.”20

If the Nuremberg tribunal had concentrated on the crime of ordering and executing the murder of innocent civilians, it would have been less ambitious conceptually, yet it also could have tried and convicted many more Nazi criminals. Moreover, such a seemingly modest course would have forced the tribunal to pay much more attention to the unique viciousness of the Holocaust than it actually did. It would have obliged the prosecutors and judges to distinguish between executing resistance fighters and attempting to annihilate an entire race of people. The unfortunate influence of Nuremberg in this regard was recently made clear at Lyons when the court judging Klaus Barbie was unable and unwilling, for reasons of national pride, to distinguish morally and legally between Barbie’s killing of French resistance fighters and his murder of Jewish orphans, a shortcoming that the defense exploited to the hilt.21

Taylor states that the presence of the Soviet judges was the biggest “political wart” encountered at Nuremberg and the International Military Tribunal. The Soviets had attacked Poland, Finland, and Bulgaria. They had been the allies of Hitler for two crucial years, had committed the Katyn massacre, and had deported seven Soviet nationalities from their homelands during the war; their troops had raped and murdered thousands upon thousands of East European and German civilians on their way to Berlin. They had denied any responsibility for all such acts and were an acute embarrassment at the court. Indeed, the Soviet presence still casts a dark shadow on the memory of Nuremberg.

But if the Soviets were not morally qualified to sit in judgment, then how about the collaborationist French? What right did France have to administer justice when Vichy had been for all practical purposes an ally of Nazi Germany, and when even in liberated France only a few Frenchmen volunteered for the war against Hitler? As for the United States, it is worth recalling that its declaration of neutrality in September 1939 violated the Kellogg-Briand Pact.22 By proclaiming its neutrality the United States refused to distinguish between Germany the aggressor and Poland the victim. Strictly speaking only Great Britain and Poland were fully entitled to judge the Nazis, because the British and the Poles alone fought against Hitler from the beginning to the end.

In her book on the Eichmann affair, Hannah Arendt suggests that a court made up of neutrals would have been more appropriate for both Nuremberg and the trial in Jerusalem.23 But there were no true neutrals during World War II, for the same non-belligerents who sympathized with the Third Reich so long as it appeared victorious moved over to the Allied side once it became clear that Hitler was losing the war. Why then were the Germans not entrusted with conducting their own trials? Taylor dismisses the notion by saying that no one wished to see this happen at the time. But the German example of the post–World War I years and that of the Turkish military courts have shown that such an outcome was not impossible. Nor should one forget the trials of collaborators held in all the formerly German-occupied European countries. The French, Belgians, Dutch, Norwegians, Danes, Poles, Soviets, Czechoslovaks, Yugoslavs, and Greeks dealt with their own traitors. On the whole they punished them more harshly than the Allies did the war criminals in Germany, although in France a number of high police officials responsible for deporting Jews lied about their activities and got away with it.

Even the former allies of Germany—Italy, Finland, Romania, Bulgaria, and Hungary—were allowed to conduct their own war crimes trials, and, more often than not, they conducted them fairly and efficiently. In Hungary, for instance, the so-called people’s courts were held during the first two years after World War II under the supervision of a multiparty parliament, and their methods and judgments were generally fair. These courts sentenced 476 defendants to death for treason and participation in the Holocaust. Of these, 189 defendants were executed, including four who had been prime ministers. With some Allied prodding, the Germans, too, could have carried out equally effective trials. A tribunal presided over by, for example, Kondrad Adenauer, a lawyer by profession who was twice imprisoned by the Nazis, would have had as much moral authority as the one at Nuremberg, if not more. The German courts, moreover, were soon allowed to try and to judge a great many major German criminals who had run death camps in Poland and whose victims had been mainly non-German citizens.

It is wrong to think that all Germans were rooting for the Nuremberg defendants, or that there was no public revulsion against the Nazi regime in ruined Germany. The three Nuremberg defendants acquitted by the tribunal were arrested by the German police soon after they left the courthouse. Subsequently, German courts sentenced Fritzsche to nine years at hard labor, Schacht to eight years, and von Papen to ten years in a labor camp. None of them served his entire sentence but the Allies released other Nazis within a few years, despite their sentences to death or to life in prison. These measures were taken in response to the cold war and the sudden discovery by both Western powers and Soviets that the Germans were not entirely bad people after all. As a result, thousands of SS and other Nazi mass murderers have lived out their days comfortably in West Germany as functionaries, businessmen, or honorably retired “police generals.” Surely, if they had been in charge of trying all the Nazi criminals, the German courts could not have done much worse than that.

Today’s talk about setting up a second international tribunal to judge war criminals in former Yugoslavia can lead nowhere, for the determination is lacking to defeat the armies of the culprits. In fact, the entire affair of a tribunal smacks of cynicism and hypocrisy. The leader of the Bosnian Serbs, Radovan Karadzić, himself a likely defendant in a war crimes trial, declared that such a tribunal would “completely destroy the UN’s credibility.”24 Suppose however that the situation changed, that the aggressors were to be defeated and their leaders captured. In that case we can hope that the United Nations will prevent the charge of victor’s justice and, rather than set up its own court, will encourage the newly constituted authorities in the defeated country to deal with their own war criminals. This way we can avoid the sorry spectacle of a country or countries equally guilty of war crimes sitting in judgment over the defeated country, or the hopeless wrangle over who had committed aggression. Moreoever, such a policy would represent a step toward restoring the legitimacy of the defeated nation. The lesson of the Nuremberg trials is that there should be no other trials following the model of the Nuremberg trials.

This Issue

October 7, 1993