It was surely a sign that the rule of law was finding its way into international relations when, after a world war of unmatched brutality during which new technologies of killing had claimed millions of lives, the victorious Allies decided to mount a public trial of Germany’s leaders. A special tribunal would weigh charges of “supreme offense against international morality and the sanctity of treaties” and then render its verdict. But Germany’s supreme leader had fled to the Netherlands and the Dutch refused to extradite him. The Allies, whose experiences of war and motives for holding a trial differed significantly, began to bicker among themselves and eventually lost interest. The tribunal never convened.
Thus ended World War I. Kaiser Wilhelm II lived out his days in exile on an estate near Utrecht, chopping down trees and hunting. Belated attempts by the French and the British to force Germany to prosecute suspected war criminals accomplished little beyond galvanizing outraged Germans to protest against victors’ justice. It was at one such rally in 1922 that Adolf Hitler and Hermann Goering first met. When the German army conquered the Netherlands in May 1940, Wilhelm sent Hitler a congratulatory telegram. He sent another one in June, after the Germans defeated France. To his sister, Princess Margaret, Wilhelm wrote later that year (in English):
The hand of God is creating a new World & working miracles…. We are becoming the USof Europe under German leadership…. The Jews [are] being thrust out of their nefarious positions in all countries, whom they have driven to hostility for centuries.
He died in June 1941 at the age of eighty-two, on the eve of Hitler’s ruinous invasion of the Soviet Union.1
After World War II the victorious powers—the United States, Great Britain, and the Soviet Union, along with France—were determined not to repeat this mistake. The International Military Tribunal (IMT) they established at Nuremberg in November 1945 was designed to reveal to the world, and not least to the Germans themselves, the full extent of Nazi crimes and to punish the individuals most responsible for them. Beyond that, the Nuremberg Trial would demonstrate that the forces of civilization could triumph over barbarism. “Four great nations, flushed with victory and stung with injury,” US Supreme Court Justice Robert H. Jackson, the lead American prosecutor at Nuremberg, said in his opening statement, had chosen to “stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law.” Impersonal, objective law would sublimate the desire for revenge, he contended, thereby enacting “one of the most significant tributes that Power has ever paid to Reason.”
A sense of historical reckoning pervaded the proceedings. Although Hitler, Joseph Goebbels, and Heinrich Himmler had escaped the judgment of the law by committing suicide, twenty-two other captured Nazi leaders were in the defendants’ dock at the Palace of Justice, one of the few buildings in Nuremberg to survive the war nearly unscathed. Among them were Goering, once Hitler’s closest confidant; Rudolf Hess, Hitler’s deputy; Joachim von Ribbentrop, minister of foreign affairs; Alfred Rosenberg, a leading Nazi ideologue and head of the Reich Ministry for the Occupied Eastern Territories; Julius Streicher, founder and publisher of the venomously anti-Semitic newspaper Der Stürmer; Franz von Papen, who had helped Hitler come to power in 1933 and subsequently served as his ambassador in Vienna and Ankara; Hans Frank, lawyer for the Nazi Party and later governor-general of the occupied Polish territories; Albert Speer, minister of armaments and war production; and Wilhelm Keitel, commander of the Wehrmacht. Hundreds of journalists and camera crews made it possible for a global audience to follow the daily drama of a trial that Sir Geoffrey Lawrence, the British judge who served as the tribunal’s president, declared “unique in the history of the jurisprudence of the world.”
The IMT was indeed a watershed in the development of international criminal law and the law of military occupation. In recent decades, “Nuremberg Principles” have provided the grounds for war crimes trials relating to atrocities in Rwanda, Sierra Leone, and the former Yugoslavia, as well as guidelines for the military occupation of Iraq by the United States and allied countries. By bringing concepts of “crimes against peace” (aka “aggressive war”), “crimes against humanity,” and “genocide” into global discourse, the IMT introduced new standards for holding individual leaders legally accountable for the conduct of their governments. During the cold war, its legacy became entwined with the liberal international order, alongside the Universal Declaration of Human Rights, the United Nations, the World Trade Organization, and the World Bank—in a word, with the Pax Americana that shaped the second half of the twentieth century.
The presence of Joseph Stalin’s Soviet Union on the Nuremberg prosecution team never fit well with this legacy and has been largely airbrushed out so as to preserve the halo that surrounds the IMT. From the outset, Jackson doubted the Soviets’ fitness to stand in judgment, given their collaboration with the Nazis prior to June 1941 as well as their own record of atrocities and military aggression. One of his assistants, Telford Taylor, considered the judges sent by Moscow “the biggest” of all the “political warts” of the trial; another, Thomas Dodd, regarded Soviets and Nazis as “the same breed of cat.”
As Francine Hirsch, a professor of history at the University of Wisconsin at Madison, notes in her splendid Soviet Judgment at Nuremberg, “The countries of the prosecution were not just facing off against the defendants in the Nuremberg courtroom—they were also competing against each other.” One country on this team of rivals came to be regarded by at least two of the others as a totalitarian dictatorship analogous to the Nazi state they had just collectively crushed. (The French were ambivalent on this point.) As regards Nuremberg’s legacy today, the problem is even deeper and more unsettling, for Hirsch’s chief discovery is that Stalin’s lawyers didn’t merely take part in the trial; in certain ways they were its architects.
In November 1943, during a postwar-planning summit in Tehran, Stalin proposed over dinner with Winston Churchill and Franklin Roosevelt that somewhere between 50,000 and 100,000 German military officers should be executed following Germany’s defeat. Stalin was known to have a sense of humor, but sometimes it was hard to tell when he was joking. In principle, but on a vastly reduced scale, Churchill agreed: he had no desire to repeat the post–World War I fiasco of attempting to mount a public trial of defeated war criminals and preferred simply to execute the Nazi political and military leadership and be done with it.
Stalin, however, wanted both a spectacular public trial and speedy executions. In addition to rendering justice for Nazi crimes, a trial promised to bolster Moscow’s new global standing. Publicizing the USSR’s unfathomable losses during the war—roughly 27 million dead, another 25 million left homeless, 30,000 factories destroyed—would help justify the huge reparations Stalin intended to exact from a defeated Germany. The United States, with 420,000 dead and virtually no damage to its infrastructure, wanted a trial too, but one that would highlight American leadership along with the restrained virtues of judicial impartiality, due process, and the rule of law.
As overseer of the Soviet effort Stalin chose Andrei Vyshinsky, the chief prosecutor at the Moscow show trials of the 1930s. Vyshinsky, one might say, was a man of convictions. He could be counted on to obtain guilty verdicts because he didn’t get bogged down in evidentiary or procedural issues, preferring instead to torture the accused and then hand them the script of their confession. His courtroom performances involved a good deal of shouting, using arguments such as these from the 1936 trial of Lev Kamenev, Grigory Zinoviev, and other “Left Deviationists”: “Shoot these rabid dogs! Death to this gang who hide their ferocious teeth, their eagle claws, from the people! Let’s push the bestial hatred they bear our leaders back down their own throats!”
It’s tempting to relegate Vyshinsky and other Bolsheviks to Rudyard Kipling’s “lesser breeds without the Law.” Anglo-American legal scholarship has tended to dismiss law in totalitarian states as little more than window dressing behind which operate the real—that is, informal and person-centered—mechanisms of power. Russians call this telefonyi zakon, law by telephone. Even the political theorist Judith Shklar, who controversially held that law, including the Nuremberg Trial, always serves political ends, considered it “insignificant” in totalitarian systems. “Law as a political instrument,” she argued in her book Legalism,
can play its most significant part in societies in which open group conflicts are accepted and which are sufficiently stable to be able to absorb and settle them in terms of rules. As an instrument of terror, of coercive persuasion,…it is all but useless.2
Law, however, along with the state, did not wither away under Bolshevik rule, contrary to Marx’s prediction. Instead, it was elaborated and deployed for overtly political purposes.
Like the other victorious powers, the USSR took for granted that the Nazi leadership was guilty. But guilty of what, exactly? What laws had they violated and under whose jurisdiction? The most obvious answers were to be found in the Geneva and Hague conventions regulating the conduct of war, including the treatment of civilians under military occupation and prisoners of war. But those regulations failed to encompass and could scarcely have anticipated the Nazis’ methodical savagery—what Hannah Arendt called their “radical evil.” The Geneva and Hague conventions, moreover, were limited to the conduct of armies formally at war; they did not apply to German policies prior to 1939 or to Nazi atrocities against German citizens, including German Jews.
Another potential legal platform for Nuremberg’s prosecutors was the Kellogg-Briand Pact, which “condemn[ed] recourse to war for the solution of international controversies, and renounce[d] it, as an instrument of national policy.” Solemnly signed in 1928 by all the countries that, barely a decade later, would take up arms in World War II, this much-ridiculed paean to pacifism did not see fit to criminalize warfare or provide an enforcement mechanism for its lofty principles.
If the Nuremberg Trial was “unique in the history of the jurisprudence of the world,” then from a jurisprudential point of view that posed a problem. Modern legal systems rely substantially on precedent for their legitimacy. Establishing precedent requires that past and current cases share a certain minimum of analogous and therefore non-unique characteristics. The principle nullum crimen sine lege (there is no crime without law), moreover, prohibits holding defendants accountable for acts that had not been designated in advance as crimes. Since no law can anticipate all the circumstances to which it might eventually apply, one of the central tasks of jurisprudence is to extrapolate legal precedent to novel circumstances in a manner that is nonarbitrary and open to scrutiny.
In theory, none of this should have mattered to the Soviet delegation in Nuremberg. Soviet jurisprudence allowed defendants to be convicted on the basis of laws enacted after the alleged crime. It did not recognize the principle of the presumption of innocence, instead placing the burden of proof on the defense rather than the prosecution. As elsewhere on the European continent, Soviet judges and prosecutors worked closely together in what is known as the inquisitorial system, leaving defense attorneys at a distinct disadvantage. Complaints about “victors’ justice” made no sense in the Soviet legal world, because by definition law and justice expressed the will of the ruling class—victors in the class struggle that characterized each historical epoch. Neither impartiality nor reasonable doubt was considered a judicial virtue.
Even as he presided over travesties such as the Moscow show trials, however, Vyshinsky sought to professionalize Stalin’s judiciary. This meant cultivating a cohort of trained jurists beholden to the Soviet state, to replace amateurs who carried out “revolutionary justice” based on working-class instinct.
One of those professionals was Aron Trainin, a prerevolutionary graduate of the law faculty at Moscow University who had also studied international criminal law in Berlin. By the mid-1930s the USSR found itself in the pincer of an anti-Communist alliance between Nazi Germany and Imperial Japan, its nemeses in Europe and Asia. Under this looming threat, Trainin published a series of pioneering works arguing that the concept of war crimes—crimes committed in the course of combat—should be extended to the launching of war itself. In contemporary international law, he noted, “unlawfully hunting rabbits is punished more severely than organizing the military destruction of people.” Building on the sentiments expressed in the Kellogg-Briand Pact, he proposed that aggressive war be made a punishable offense—called “crimes against peace”—subject to adjudication by an international criminal court.
Trainin also developed a theory of responsibility for aggressive war that drew heavily on the idea of criminal conspiracy. This approach would allow prosecutors to discount claims that defendants were merely following orders or were unaware of their commanders’ ultimate goals. In his book The Criminal Responsibility of the Hitlerites, published in Moscow in July 1944 (with an introduction by Vyshinsky) and in English, French, and American editions the following year, Trainin argued that even if members of an alleged conspiratorial group did not know one another, they could still be considered complicit in all the crimes committed by the group, thereby making it possible to indict many more than those in positions of supreme command. It was, he noted, a strategy successfully applied by Vyshinsky in the trials of Kamenev, Zinoviev, and other “deviationists.” What Trainin did not mention was that Vyshinsky had drawn numerous people with noncriminal relationships to the accused into the vortex of prosecution and punishment.
Hirsch methodically traces the itinerary of Trainin’s ideas from Moscow to the Allied legal strategy at Nuremberg. In October 1944, the Czechoslovak jurist Bohuslav Ečer brought them to the attention of the United Nations War Crimes Commission, of which he was a member; in January 1945 Murray Bernays and D.W. Brown, lawyers at the US War Department’s Special Projects Branch, sent a memorandum to Roosevelt on the criminality of the war in which he cited Trainin’s work at length. Crimes against peace thus joined war crimes and crimes against humanity as the central accusations against the twenty-two German defendants. The allegation of a criminal conspiracy, moreover, formed the linchpin of the entire indictment, beginning with the founding of the Nazi Party on February 24, 1920. (The judges subsequently adjusted the conspiracy’s start date to November 5, 1937, when Hitler’s plans to wage aggressive war had “been established beyond doubt.”)
Largely invisible during the trial, the Soviet pedigree vanished from Nuremberg’s afterlife as the IMT came to be construed as a triumph of Western and above all American justice. With good reason: Jackson and the Americans dominated the tribunal’s proceedings from start to finish. US troops had captured important archives of the Nazi government, including those of the Foreign Office, the military High Command, and the Reich Ministry for the Occupied Territories, all treasure troves of incriminating evidence. Because Nuremberg was located in the American zone of occupation, US military police also controlled access to the Palace of Justice and the adjoining prison where the defendants were kept. Most of the senior Nazi leadership had arranged to surrender to American forces—understandably, given what the Germans had done in the USSR—and Americans conducted most of the pretrial interrogations.
As early as 1943, well before any other country, Soviet military tribunals had begun convicting captured Wehrmacht and SS officers of war crimes, for which the sentence was invariably death by hanging. But while the Soviets were instrumental in securing an international trial of Nazi leaders and provided some of its central legal concepts, they were going to have to play by American rules.
In brisk and lucid prose, Soviet Judgment at Nuremberg recounts the extraordinary jockeying, collaboration, rivalry, and mistrust among the four prosecuting powers, from the trial’s opening in November 1945 to the final verdicts and sentencing ten months later. It is one of the few genuinely international studies of the trial, revealing new and occasionally unpredictable fault lines on the eve of the political realignments imposed by the cold war. Jackson’s misgivings vis-à-vis the Soviets, for example, were nearly matched by those he had vis-à-vis the French. Vichy France, after all, had collaborated with Hitler more intimately and for longer than the USSR, and even as the trial proceeded, Charles de Gaulle’s provisional government stood accused of violating the Geneva Convention in its treatment of German POWs. Equally galling, the French prosecution at Nuremberg frequently sided with the Soviets against the United States and Great Britain.
The peculiarities of Soviet jurisprudence were constantly on display. While the six Western judges donned black gowns and robes to convey a traditional sense of gravitas, their two Soviet colleagues dismissed such attire as “medieval” and insisted on wearing military uniforms. When Vyshinsky paid a visit shortly after the trial’s opening, Jackson hosted a dinner at which the guest of honor proposed a toast to the defendants, concluding, “May their paths lead straight from the courthouse to the grave!” Having “drained their glasses before the translation was finished…the American judges were appalled to hear that they had drunk to the deaths of the accused.” Vyshinsky, Hirsch notes, “visibly enjoyed the moment.”
Less enjoyable for the Soviets was learning that the accused Nazis could freely select their attorneys (nearly half were Nazis themselves) as well as their witnesses. Accustomed to defendants made pliant by intimidation or torture, Soviet prosecutors were unprepared for the plea of “not guilty” entered by all twenty-two accused. They were even less prepared when interviews with the defiant Goering, Keitel, Ribbentrop, Hess, and others appeared in the Western press.
This was no way to run a show trial. Or perhaps it was—if, as Shklar contended, what one wanted to showcase was judicial impartiality, adversarial fairness, and respect for liberal procedural norms.3 Soviet chief prosecutor Roman Rudenko struggled with cross-examinations of figures such as Goering and Ribbentrop, in part because he was stuck with a list of questions dictated by Moscow, hampering his ability to maneuver and adapt in real time. Again and again, Hirsch shows how Stalin’s hypercentralized power, spy-mania, and mass purges compromised the Soviet effort in Nuremberg. Few Soviet officials had had the opportunity to gain experience abroad. Nearly a third of the staff of the Ministry of Foreign Affairs had been executed in the 1930s. Merely studying a foreign language, especially German, could lead to charges of working for the enemy. Even as the IMT introduced the new practice of simultaneous interpretation, the USSR faced an acute shortage of translators—but not of secret informants busily reporting to Moscow on their fellow Soviet citizens in Nuremberg.4
Soviet problems went well beyond procedures and personnel. While Stalin was largely indifferent to two of the major objections to the trial—that it represented victors’ justice and that it relied on ex post facto law—he was acutely attentive to the third: that the victors themselves, and particularly the USSR, were also guilty of war crimes and therefore in no position to judge the Germans. In August 1939 Stalin and Hitler had signed a ten-year mutual nonaggression pact, including a secret protocol carving up most of Eastern Europe between them. Over the next two years, the Soviet Union invaded Poland, Finland, Latvia, Lithuania, Estonia, and Romania. Hundreds of thousands of citizens of those countries were deported to Siberia and other remote regions of the USSR. In 1940 Stalin ordered the secret execution of roughly 22,000 Polish army officers, teachers, doctors, lawyers, and writers in the forests of Katyn and other sites—an atrocity he subsequently insisted had been committed by the Wehrmacht.
To be sure, none of the victorious powers wished to have their behavior subject to international scrutiny. In their infamous 1938 Munich Agreement, the French and the British had given their blessing to Hitler’s plan to annex the Sudetenland region of Czechoslovakia—despite France’s military alliance with that country and Stalin’s offer to defend Czechoslovakia if the French and British would join the effort. During the war, British and American bombing raids on Dresden, Hamburg, and other German cities killed roughly 600,000 civilians, while the atomic bombs dropped on Hiroshima and Nagasaki took between 100,000 and 200,000 lives, not counting the delayed effects of radiation exposure.
The four chief prosecutors at Nuremberg, Hirsch writes, jointly agreed “to steer clear of topics that might be damaging” to any of the Allies. But there was nothing to stop the defendants from talking about them. Ribbentrop, after all, had helped write the 1939 nonaggression pact and knew more about its secret protocol than anyone in the courtroom. Such was the extreme secrecy of Stalin’s dictatorship that Rudenko was initially unaware of it, as well as of Soviet responsibility for the Katyn massacres. This presumably made it easier for him to insist with a straight face that the protocol did not exist and that the blood of Katyn was on German, not Soviet, hands—fabrications the Kremlin perpetuated until 1989.
In the decades since the punishments were handed down at Nuremberg—twelve death sentences, three acquittals, prison sentences ranging from ten years to life—evaluations of the trial have been mixed. Hirsch accentuates the positive, describing the IMT as having “opened up a wide-ranging conversation about how international law might be expanded to protect humankind from its worst impulses,” even as she confronts the “awkward truth” that “illiberal authoritarian states have at times positively shaped international law.” That awkward truth turns the problem of theodicy on its head: How do we respond to bad regimes doing good things? Other assessments, including in these pages, have been less kind.5 Jackson’s boss at the US Supreme Court, Chief Justice Harlan Stone, privately called the IMT a “high-grade lynching party” and a “sanctimonious fraud.” “I don’t mind what he does to the Nazis,” Stone wrote of Jackson, “but I hate to see the pretense that he is running a court and proceeding according to common law.”
One prominent defender of the Nuremberg Trial is Samantha Power, the forceful human rights advocate who served as Barack Obama’s ambassador to the United Nations and currently heads the United States Agency for International Development. By holding Germany’s leaders accountable for crimes committed against their own citizens and by rejecting the Nazi defendants’ claim that they were merely following Hitler’s orders, Power has argued, the IMT made a significant “inroad into state sovereignty” and “important dents in state armor.”6 This is true only in a limited sense, since by the time of the trial Germany had already surrendered unconditionally to the Allies and was no longer a sovereign state. Most of the cases that now come before the International Criminal Court in The Hague do not involve countries that have suffered military defeat. The typical and tougher challenge is how to confront human rights violations in a world of enduring national sovereignty.
Another defender of Nuremberg’s legacy, for very different reasons, is Russian president Vladimir Putin, whose older brother died during the German siege of Leningrad. No event since that historic trial has provided a more prominent stage for Moscow to show the world the staggering price the USSR paid in the course of defeating Nazi Germany. Because the Allies needed to cooperate in the courtroom just as they had on the battlefield, the narrative they fashioned at Nuremberg, with its exclusive focus on German crimes against peace and humanity, continues to fit well with the one promoted by the Kremlin.
When the European Parliament decided in 2019 to mark the eightieth anniversary of the German-Soviet nonaggression pact and the beginning of World War II, claiming that the former had “paved the way for the outbreak” of the latter, Putin responded with a blistering thirty-page rebuttal laying out the “real lessons” of the war. It was the “Munich Betrayal,” he argued, that had permitted Germany (along with Poland and Hungary) to annex Czech territories in the vain hope of appeasing Hitler and directing his attention eastward, “so that Germany and the Soviet Union would inevitably clash and bleed each other white.” In extraordinary and tendentious detail—well worth reading for anyone interested in how Russia’s political elite views the war from which the Soviet Union emerged as a superpower—Putin condemned the European Parliament for “challeng[ing] the conclusions of the Nuremberg Tribunal.”7
The two major Soviet contributions to the Nuremberg indictment, Trainin’s ideas of crimes against peace and criminal conspiracy, have been far less elaborated in international law than the categories of war crimes and crimes against humanity (including genocide). Still, a question hangs in the air at the end of Hirsch’s book: Was the USSR’s part in the Nuremberg Trial shaped by Marxism-Leninism’s contempt for judicial impartiality and legal precedent, or rather by the Soviet Union’s cataclysmic experience of the war, so different from that of the other Allied countries? It’s easier to stay the hand of vengeance—and to think that doing so is noble—when the enemy has killed one of every 320 citizens of your country (the United States) rather than one of every seven (the Soviet Union). Robert Jackson was no doubt seeking common ground when he described the prosecuting powers at Nuremberg as “four great nations stung by injury.” But as one of the Soviet writers covering the trial wrote in a letter home, “People stare wide-eyed when I tell them about Leningrad and Stalingrad…. On their faces and in their souls, there are almost no traces of Russia’s struggle.” Russians have a saying for this: Sytyi golodnogo ne razumeet—the well-fed do not understand the starving.
See William A. Schabas, The Trial of the Kaiser (Oxford University Press, 2018); reviewed in these pages by Isabel V. Hull, March 21, 2019. ↩
Judith N. Shklar, Legalism: Law, Morals, and Political Trials (1964; Harvard University Press, 1986), p. 144. ↩
For an elaboration of Shklar’s argument, see Mark Oriel, “In Defense of Liberal Show Trials—Nuremberg and Beyond,” in Perspectives on the Nuremberg Trial, edited by Guénaël Mettraux (Oxford University Press, 2008). ↩
See Francesca Gaiba, The Origins of Simultaneous Interpretation: The Nuremberg Trial (University of Ottawa Press, 1998). ↩
“A Problem from Hell”: America and the Age of Genocide (Basic Books, 2002), pp. 48–49. ↩
Vladimir Putin, “The Real Lessons of the 75th Anniversary of World War II,” The National Interest, June 18, 2020. ↩