Judgment at Nuremberg - Case Study Example

Judgment at Nuremberg The Nuremberg trials are precedential in so many ways. As proceedings, they are the first in history to be adjudicated by an international body specifically convened for them. International law doctrines which previously were primarily applied only to states were made to apply to individuals, something never before done except in the crime of piracy, shifting from the national to the international and from the state to the individual.1 The Allies, composed of the United States, Russia, France and Great Britain had to meet on August 8, 1945 in London to set up the mechanism that would enable the trial against the German Nazis. A charter was thus crafted that detailed the creation of the International Military Tribunal and the procedure to be followed during the trials. 2 Finally, the trials and the subsequent judgment handed down at the trials for such novel crimes as ‘crimes against humanity,’ ‘crimes against peace,’ (jus ad bellum) and ‘war crimes’ (jus in bello) committed during a state of war 3has established a precedent that became the models in recent cases like Rwanda and Yugoslavia. These judgments assailed, inter alia, on the grounds that they were based on a crime that was in the nature of ex-post facto law, were nevertheless just and fair considering the grievous crimes that were committed. The indictment of about 24 major defendants specified three kinds of crimes: crimes against peace, which included crimes of waging aggressive war, as opposed to self-defence, against other countries; war crimes, or crimes which violated the conduct of war in accordance with Article 46 of the Geneva Convention like “murder, ill-treatment, and deportation of populations in the conquered territories, the killing of hostages and prisoners of war, the seizing of private property, and the wanton destruction of villages, towns and cities,” and; crimes against humanity, or crimes committed before and during war like “murder, extermination, enslavement, deportation and other inhumane acts committed against civilian population.” Another crime, that of conspiracy, - the planned commission of the crimes by two or more persons - connected some of the crimes. After eight months of preparation, considered short for a major trial, the trial began on November 20, 1945. 4 To serve as evidence for the prosecution, the indictments came supported by testimonies, photographs and films – with the last two primarily coming from the Germans who obviously documented every atrocious deed they made with pride. The confiscated German documents numbered more than 100,000, all carefully kept records of written testimonies of the atrocities committed by the Nazis most in graphics details. Robert Jackson, the chief prosecutor for the United States, commented that out of the aforesaid pile, specific documents unequivocally supported the guilt of the accused: the consolidation of absolute power by Hitler and the active participation of Goering in abetting it; the use of the Reichstag fire to kill the Weimar Constitution, the constitution of the interim German Republic established after the end of the First World War; the creation of concentration camps; the orchestrated move to gradually strip the Jews of all freedom under the Weimar Republic.5 The account of the deliberate destruction of the Warsaw ghetto, all detailed in writing in a leather bound book, was also referred to. It recounted the resistance of the Jews and how some people threw themselves out of burning windows and were shot brutally. There were also accounts of how Soviet prisoners freeze and starved to death. The most gruesome account however was the description of the medical experiments carried on by Nazi physicians on the Jews. Skin of dead Jews were flayed off from their bodies, treated chemically and then made to dry under the heat of the sun. The skins were then made into saddles, riding breeches, house slippers and ladies’ bags. In the event of shortage, the doctor in charge of the experiments would grab a living prisoner by the buttocks or thighs to inspect if the skin was good for the flaying and if pronounced good enough, that person would be delivered to the laboratories. This was an account confirmed by a Czech doctor who was imprisoned at the Dachau concentration camp.6 At the start of the hearing, the defense panel challenged the legal basis of the trial on two counts: first, no international treaty has sanctioned or established the criminality of an unjust war, and; second, all judges came from the victorious Allies.7 The defence took advantage of the fact that the Tribunal allowed and entertained a discussion on the legality of the charge of crimes against peace. The defense pointed to and characterized the crime as ex post-facto or a law that was legislated after the crime has been committed and applied retroactively to the case of the accused. In essence, the defence stated in a ‘Motion Adopted by All Counsels’ that the fact that world opinion has presently made a distinction between just and unjust wars and decided to punish not only the country waging such war but the individuals responsible for making the unjust war come to reality was the only basis of Nuremberg trails, a development which was reprehensible because no international treaty can be invoked to justify it. The defense said: The present Trial can, therefore, as far as crimes against Peace shall be avenged, not invoke existing international law; it is rather a pro- ceeding pursuant to a new penal law...enacted only after a crime. This is repugnant to the principle of jurisprudence sacred to the civilized world, the partial violation of which by Hitler’s Germany has been vehemently countenanced outside and inside the Reich. This principle is to the effect that only he can be punished who offended against a law in existence at the time of the commission of the act imposing a penalty. This maxim is one of the great fundamental principles of the political systems of the Signatories of the Charter for this Tribunal themselves, to wit, of England since the Middle Ages, of the United States since their creation, of France since its great revolution, and The Soviet Union. 8 In responding to the charge, the IMT first referred by implication that any discussion of the issue by it was an obiter dictum- a mere opinion - as there was no necessity on its part to rationalize it because it was created by a charter in turn created by the victorious parties in the war to which Germany unconditionally surrendered. The Tribunal was therefore bound by the provisions of the charter but it nevertheless proceeded to give its opinion on the matter. The maxim nullum crimen sine lege which means to the effect that there is no crime without a prior law making an act criminal is, according to the Tribunal, a mere general principle of justice and is not a restriction on sovereignty. In addition, those who commit such acts and are punished for them know anyway that they committed a wrong and therefore there is no injustice in their punishment. On the other hand, it is a clear case of injustice when such persons are allowed to go scot-free despite the grievous wrongs they have committed. The wrongfulness of such acts as aggressive wars can be implied from international treaties like the Kellogg-Briand Pact which renounced war as an instrument of national policy and signed by sixty-three states including Germany. The implication of such a pact is that an aggressive war is wrong and therefore violates international law, and its perpetrators bound to be punished.9 During the trials, as they were not allowed to the defense of ‘higher order,’ all the defendants could do was to refute the allegations which proved difficult considering the fact their signatures on pertinent documents already incriminated them. In the case of Herman Goering, who presented his defence in twelve days, he admitted that he created the concentration camps but only to house the prisoners. He also admitted that he was responsible for the imposition of heavy taxes against the Jews. He likewise justified the invasion and seizure of Germany of territories that were lost to it in accordance with the Treaty of Versailles as vital to the progress of Germany and declared that the limitation set by the Hague and Geneva Conventions on the invading power to seize properties and displace workers have no justification.10 In the end, the IMT handed their judgment on October 1, 1946, almost a year after the trial started. Twelve of the accused were sentenced to death: Herman Goering; Joachim von Ribbentrop; Wilhelm Keitel; Ernst Kaltenbrunner; Alfred Rosenberg; Hans Frank; Wilhelm Frick; Julius Streicher; Fritz Sauckel; Alfred Jodl; Arthur Seyss-Inquart; and Martin Bormann (who was tried in absentia). One of the accused committed suicide before the trial, three were sentenced to life imprisonment, two for 20 years, one for 15 years, and another one accused sentenced for ten years. Three of the accused were acquitted whilst declaring the Nazi leadership and the SS to be criminal organizations, and acquitted the SA, the Reich Cabinet, the High Command and the General Staff of the Army. 11 The acquittals, especially those of the High Command and General Staff – which were made on the ground that crimes can only be committed by individuals and not by institutions – were vehemently objected by the Soviets. This development – the differing perspective on Germany’s liability and the dissent of the Soviet judge on the Nuremberg acquittals - was thought to be one of the factors which contributed to the Cold War. The Soviet dissent which was officially lodged cited the ‘organic interrelationship’ between the party and the Nazi Armed Forces and how the latter served a pivotal role in the realization of Hitler’s plan of aggression and the commission of crimes against humanity. It also cited the decrees, characterized as the most brutal of all, issued by the Nazi Army against the unarmed population and POWs. 12 Conclusion As to the question whether the Nuremberg Judgment was fair - from the substantive point of view it was fair but from the procedural perspective, there is doubt as to whether it was totally fair. However, it is obvious that justice, to a certain extent, was at last served by the Nuremberg Trials and judgment. In ordinary court trials, one of the standard requirements of procedural fairness is that the judge hearing the case should be clothed with cold impartiality and neutrality. In the Nuremberg Trials, the accused were tried by judges who represented and came from each of the four Allies – the US, Great Britain, France and Russia – countries which had an ax to grind against Germany. Worse, it was the very same countries which drew up the charter which not only created the Tribunal which tried the case, laid down the procedure for the trial but also determined the very acts punishable at the trial. In addition, the charge of ex post facto law against one of the crimes had a ring of truth to it, no matter that the Tribunal justified it as an implication of several treaties particularly the Kellogg-Briand Pact. A criminal charge should not be made to rely on mere implications especially to a remote law because crimes, by the very nature of the penalties they impose, have stringent requirements than other kinds of actions. This is not to say however, that the Nuremberg Trial was completely farcical and unjust. It was an open trial, and the public and the press were admitted to the hearings and the voluminous evidence, both testimonial and documentary, against the accused was simply overwhelming. The standard adversarial system, where the accused were given the opportunity to confront the witnesses against them and refute their testimonies, was followed. The accused were represented by able counsels and most of all were given the opportunity to defend themselves. What would have constituted the ultimate unfairness and injustice is if the crimes committed by the Nazis against the millions of Jews that they in effect annihilated from the face of the earth would go unpunished. The evidence against the Nazis even came from their own shelves and bookracks. This is not to mention the inhuman manner by which these people were treated like they were some kind of subhuman species – their skin flayed off and manufactured into ladies bags. More than the legal consideration, there is the moral. The proceedings may not have met all the strictest legal requirements that are usually required in criminal trials but the facts of the cases and the evidence at hand, have met all the requirements for a moral trial. References: Murphy, John F. ‘Crimes Against Peace at the Nuremberg Trial’ 1990, The Nuremberg Trial and International Law by Ginsburgs, George & Kudriavtsev, V.N., Martinus Nijhoff Publishers, pp 142-143 Soumerai, Eve Nussbaum & Schulz, Carol D. 1998, Daily Life During the Holocaust Greenwood Publishing Group. Stackelberg Roderick & Winkle, Sally A. 2002, ‘Judgment at Nuremberg,’ The Nazi Germany Sourcebook: An Anthology of Texts, Routledge, 2002 Steiner, Henry J. & Alston, Philip & Goodman, Ryan 2008, ‘Judgment at Nuremberg Trials,’ International Human Rights in Context: Law, Politics, Morals: Text and Materials, Oxford University Press US. Teitel, Ruti G. 2002, ‘Criminal Justice,’ Transitional Justice, Oxford University Press US. Read More