Nuremberg Trials: The Last Tragedy of the Holocaust

By Ellis Washington, Esq.

In the Nuremberg Trials (1945-1947), Nazi high officials, officers, and industrialists were tried by an International Military Tribunal for war crimes and other atrocities committed during World War II that violated the accepted laws of war. The charges brought against the Nazi defendants accused them of originating, plotting, and waging aggressive war, using slave labor, looting occupied countries, and abusing, torturing, and murdering civilians, prisoners of war, and so-called "undesirables". The people who suffered the most from Hitler's singular genocide against humanity were of course the Jews who suffered 6 million deaths-over half of all European Jewry at that time!

As early as October 1943, the Allied powers had decided to try major Nazi officials for war crimes at the conclusion of the war when the American, British and Soviet foreign ministers met in Moscow. Planning for the trials began soon after V-J Day (September 2, 1945), and the Tribunal opened in Nuremberg, Germany on November 20, 1945, before a board of distinguished judges representing each of the Allied countries. Three of the highest Nazi officers, Adolph Hitler, Heinrich Himmler, and Josef Goebbels, had committed suicide by the time the Nuremberg Trials were convened, however, Hermann Goering, Joachim Ribbentrop, Wilhelm Keitel, Alfred Jodl, Ernst Kaltenbrunner, Julius Streicher, Hjalmar Schacht, Martin Bormann (in absentia), Karl Doenitz, Hans Frank, Wilhelm Frick, Hans Fritzsche, Walther Funk, Rudolf Hess, Erich Raeder, Alfred Rosenberg, Fritz Sauckel, Arthur Seyss-Inquart, Albert Speer, Konstantin von Neurath, Franz von Papen, and Baldur von Schirach, were tried one by one for individually specified crimes.

James Popple, in his work, The Right to Protection from Retroactive Criminal Law, noted that a total of 177 Germans and Austrians were indicted. [1] Of the twenty-four Nazi defendants, twenty-one were convicted; of these, nine were sentenced to prison terms (most were freed within seven years) and the remaining twelve were sentenced to hang. Popple further states: "Thirteen separate trials of war criminals were held in Nuremberg between 1945 and 1947. These trials were presided over by judges from all four major victorious allied powers: America, Britain, France and the Soviet Union. A total of 177 Germans and Austrians were indicted. All but 35 were found guilty: 25 were executed, 20 were sentenced to life imprisonment and 97 were sentenced to shorter prison terms. [2]

Goering and Bormann both escaped hanging; the former by suicide and the latter by remaining at large. Robert Ley hanged himself in his cell, Gustav Krupp was too ill to stand trial, and due to a mix-up with another defendant Krupp's empire was left intact. Three were acquitted: banker Schacht, Fritzsche (substitute for boss Goebbels), and Franz von Papen (the "Silver Fox"). The rest were hanged on October 16, 1946. Also, other lower level officials were tried, including officers and guards from the Dachau prison camp and civilians who had murdered American aviators. The Tokyo Trials (1946-1948) yielded sixteen imprisonments and seven Japanese leaders were hanged.

The paradox of the Nuremberg Trials is this-for the millions who died at the hands of the Nazis, why were only 177 people judged by the Nuremberg Trials? Regarding Japanese aggression leading to the death of tens of thousands of Americans at Pearl Harbor and in other battles with Japan, why were only twenty-three Japanese leaders tried? Why were no Italian leaders charged? Italy, led by Mussolini, was Germany's most ardent ally during the war. Perhaps Mussolini being hanged by the mob was considered adequate punishment, or maybe it's the fact that after the war Italy was a very important anti-communist ally. Why was no mention made in the Nuremberg Trials of the 1939 Nazi-Soviet Pact? The seminal question to any logical, objective observer of the Nuremberg Trials is this: Were the Nuremberg Trials and Tokyo Trials resplendent examples of justice and the rule of law over notoriously wicked men, or were the Nuremberg and Tokyo Trials a colossal sham and a cover up of historical proportions representing the denigration of the rule of law? In this article, I hold that in large part the Nuremberg Trials were indeed a monumental sham, an insult to the millions of Jews who perished in Hitler's ghastly ovens, and truly the last tragedy of the Holocaust.

Critics of the Nuremberg Trials contend that the trials retroactively criminalized actions that under German law had been legal, and the disobedience of such was punishable by death. Vengeance rather than impartial justice was also a familiar refrain as the critics of the Nuremberg Trials claimed that the Tribunal had no recognized legal foundation to try the Nazi defendants. The most noted critic holding this view was judge Charles Wyzanski, Jr., a noted jurist from Massachusetts. Wyzanski wrote a series of articles outlining his views on the Nuremberg Trials that were published in the popular magazine, Atlantic Monthly. [3]

Supporting the legal philosophy used to judge the Nazi defendants in the Nuremberg trials was Supreme Court Justice, Robert Jackson, whom President Harry Truman personally chose to be the chief prosecutor of the United States at the Nuremberg Trials. Jackson argued that such ubiquitous international treaties as the Kellogg-Briand Pact of 1928, which was called a Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928 was signed by sixty-two nations, as well as several other international treaties, renounced war as a solution for international disputes, making aggressive warfare a capital offense.[4] These treaties were ratified by all of the member state nations presumably to deter war atrocities identical to the diabolical kinds of acts for which the Nazi defendants were being tried. [5]
The conclusion of World War II in April of 1945 witnessed the Allied powers of the United States, Britain, the Soviet Union, and France summarily defeat the Axis powers of Hitler's Germany, Hirohito's Japan and Mussolini's Italy. While the end of World War II signaled the end of the largest and deadliest World War in the history of mankind, it ushered in the beginning of another paradox regarding questions of morality and legality. The problem arose among the Allies about how to punish the senior Nazi officials and other high ranking officers of the Nazi military who were now under international jurisdiction. How could these men be judged for their heinous crimes under international law? How could justice and the rule of law be effectively applied to Nazi war criminals?

The United Nations, Positive Law & the Nazi Leaders at Nuremberg

The concept of a United Nations was both revolutionary and unique in international law for two reasons: (1) The size and scope of both the number of member nations and its ultimate objectives of a singular world nation with its own World Court, The International Court of Justice is the judicial arm of the United Nations and regularly reports to the General Assembly. [6] World Bank, World Currency, and World Military, dwarfed all previous attempts to form a "one world government"; (2) the League of Nations (which later became the United Nations) was purposely formed under several diabolical philosophies, namely humanism (man is the center of all things), secularism (there is no God but man and the state), radical liberalism (freedom without morality or conscience), positive law and legal positivism (separation of legality and morality), relativism (moral equivalence of all things, or the idea that no person, place, or thing is superior to another), egalitarianism (the equality of results rather than opportunities), and individualism (the severe reduction of restraints to pleasure). Prior to positive law, natural law was the controlling philosophy of international law. Natural law was the originating philosophy of all of American law and its founding documents-the Declaration of Independence, the Constitution, and the Bill of Rights. [7]

In America and Europe, positive law and legal positivism had been growing steadily, concurrent with the advent of the modern Industrial Age of the mid-nineteenth century. Consequently, a hundred years later when the Charter and Tribunal, which were drafted, its framers naturally chose legal philosophy that separated legality from morality based solely on legal positivism. In contemporary jurisprudence, Hart, citing John Gray's work regarding legal positivism, divided it into five categories:

(1) the contention that laws are commands of human beings,
(2) the contention that there is no necessary connection between law and morals or law as it is and ought to be,
(3) the contention that the analysis (or study of the meaning) of legal concepts is (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, "functions," or otherwise,
(4) the contention that a legal system is a "closed logical system" in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies, moral standards, and
(5) the contention that moral judgments cannot be established or defended, as statements of facts can, by rational argument, evidence, or proof ("noncognitivism" in ethics). [9]

On the other hand, natural law, which presumes an integration of legality and morality, nothwithstanding, even from a positive law viewpoint, these excerpts of past international treaties ratified by dozens of nations prior to World War II, should have put Germany, the German people and the world on notice regarding the illegality of waging an "aggressive war" against another nation, yet Germany and the Axis powers waged a genocidal war against the world twice in the twentieth century.

Similarities between previous international treaties cited above and the legal philosophy of positive law utilized as defenses in the Nuremberg Trials are startling. First of all, it was the Nuremberg Trials that six decades ago legitimized on an international stage and televised to the world the now popular Austinian legal philosophy of the separation of legality from morality. This is a classical tenet of positive law. Furthermore, the then newly discovered separability thesis was a revolutionary invention in the fields of legal philosophy and constitutional law and later jurisprudence and judicial decision making. Secondly, it was this sophistic legal defense that the Nazi defense attorneys relied on most heavily; achieving much success. Surprisingly, out of the twenty-four major Nazi leaders and 153 lesser Nazi leaders tried at the Nuremberg Trials, almost thirty percent of all Nazi defendants were acquitted, and only eighteen percent received the death penalty. The overwhelming majority of the Nazi defendants received only token prison sentences. On this point, historian Paul Johnson writes: "[T]he ardour to punish lasted longer but was eventually damped by the march of history. By the time the I.G. Farben executives were sentenced at Nuremberg (29 July 1948), the Berlin blockade had started . . . Karl Krauch, the man who Nazified the firm and personally selected Auschwitz for the Buna plant, got only six years. Eleven other executives got prison terms from eight years to eighteen months - 'light enough to please a chicken-thief,' as the prosecutor Josiah DuBois, angrily put it." [10]

That this was not done during the Nuremberg Trial tribunals is truly beyond the pale, an affront to all Jewish people who have contributed so much to humanity, as well as an affront to all logic, reason, justice, and truth-even until this day.

SOURCES


1. James Popple, The Right to Protection from Retroactive Criminal Law, 13 CRIM. L. J. 251, 251-62 (1989) (noting that a total of 177 Germans and Austrians were indicted).

2. The Judgment at Nuremberg, 6 F.R.D. 69, 1947 Extra LEXIS 1, *432-34. See also Indictment, 1 I.M.T. 27-92 (providing information regarding the twenty-four Nazi leaders who were charged on two or more of the four counts which were under the U.N. Charter and within the jurisdiction of the U.N. Tribunal).

3. Charles Wyzanski, Jr. Nuremberg: A Fair Trial?, THE ATLANTIC MONTHLY, 66-70 (April 1946), reprinted in ADAMS, supra note 2, at 14.

4. Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, T.S. No. 796, 94 L.N.T.S. 57 [The Kellogg-Briand Pact].

5. Robert H. Jackson, Opening Address for the United States, Nuremberg Trials, in David M. Adams, PHILOSOPHICAL PROBLEMS IN THE LAW, 10-11 (1992).

6. See generally http://www.ICJ-CIJ.org (discussing among other things, the role of the court in the United Nations) (last visited Oct. 19, 2003).

7. The World Bank is the financial arm of the United Nations with profiles that cover the 208 countries (184 World Bank members and twenty-four other economies with populations of more than 30,000) and eighteen country groups reported on in the World Development Indicators book. See generally http://www.worldbank.org (providing information on the World Bank)

8. Regarding the foundational position natural law played as the controlling philosophy of American Constitutional law as well as all of its law related institutions from the rulings of local magistrates to the leading opinion handed down by the United States Supreme Court, Professor Burnham wrote: "The scholars have traced the ideas of the [Founding] Fathers back not only to Locke, Montesquieu, but Aristotle and Cicero and Plutarch, Hobbes, Burlamaqui, Milton, Hooker, Bolingbroke, Blackstone, Burke, Shaftesbury and a score of collateral branches." JAMES BURNHAM, CONGRESS AND THE AMERICAN TRADITION 24 (1965). "The Fathers were the masters, not the victims, of these inherited ideas, and sometimes it is the rhetoric more than the ideas that is taken over."

9. H. L. A. HART, CONCEPT OF LAW, 601, n.25 (1960), (citations omitted) (citing JOHN C. GRAY, THE NATURE AND SOURCES OF THE LAW, 594-626 (1909)).

10. PAUL JOHNSON, MODERN TIMES: THE WORLD FROM THE TWENTIES TO THE EIGHTIES 422 (1983). See also 6 F.R.D. 69, 1947 Extra LEXIS 1, *191-246

Ellis Washington is a former editor at the University of Michigan Law Review and law clerk for the Rutherford Institute. He received his J.D. from John Marshall Law School. He is a freelance writer and lecturer at Michigan-area schools, universities and law schools. He has written several books and law review articles including: Beyond the Veil: Essays in the Dialectical Style of Socrates (Hamilton Books, 2004); The Inseparability of Law and Morality: The Constitution, Natural Law and the Rule of Law (University Press of America, 2002). Currently Mr. Washington is working on a book about the dubious philosophical presumptions relied on in the Nuremberg Trials to be published in 2005.