Were The Nuremberg Tribunals Only Victors’ Justice?

Above photo: Nuremberg trials from RiaNovosti

On the surface, The Nuremberg Tribunals were a court assembled by the victors which prosecuted the losers.  It is also true Axis war criminals were tried though Allied war criminals were not. But there was a greater concern at the time about stopping wars of aggression than prosecuting individual war criminals, since no one thought the world could survive one more world war.  The intent was not retribution but to find a new way forward.  The Tribunal in its Judgment said “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

Nuremberg was starkly different from the typical case of victor’s justice of the time. With Nuremberg the victors turned away from the accepted vindictive punishment of the vanquished. The motivation to punish those who started a war which killed seventy two million, including sixty one million on the victor’s side, was immense.  Justice Robert Jackson, US Supreme Court Justice and the main architect of the Nuremberg Tribunals,  said in the opening statement of the Tribunals “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.” Stalin proposed a suitable deterrent would be executing the top 50,000 living German leaders.  Given the wanton killing on the Eastern Front experienced by the Russians, it is easy to understand how he considered this to be appropriate.  Churchill countered that executing the top 5,000 would be enough blood to assure it would not happen again.

The victorious powers instead set a new path, one of criminal trials, the Nuremberg and Tokyo Tribunals. Justice Jackson declared “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

Acknowledged as imperfect, Nuremberg was an effort to establish the rule of law to deal with  sociopathic and despotic leaders and their followers who would start wars of aggression. “This Tribunal, while it is novel and experimental, represents the practical effort of four of the most mighty of nations, with the support of seventeen more, to utilize international law to meet the greatest menace of our times – aggressive war.” said Jackson. The experiment provided that each defendant be indicted, have the right to a defense before a court, similar to a civilian court. And there seems to have been some level of justice since some were found completely innocent, some were only found guilty of some charges and most were not executed. Whether this was just a victor’s court dressed up in fancy trappings of justice or the first faulting steps of a new way forward would depend on what happened in the years after, even what happens now. Some of what is accepted as normal today comes to us from Nuremberg like the terms war crimes, crimes against humanity

Jackson said “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” They knew they were only writing the first part of the story of Nuremberg and that others would write the ending. We can answer this question about victor’s justice by looking just at 1946. Or we can take a broader perspective and answer it in terms of today and of the future, in terms of the long term results from Nuremberg.

Whether it was justice only for the benefit of the victors is our challenge.  Will we let international law be a tool only for the powerful? Or will we use Nuremberg as a tool for “Reason over Power”? If we let the Nuremberg Principles be used only against the enemies of the powerful it will have been victor’s justice and we will be “putting the poisoned chalice to our own lips.”  If instead we, we the people, work, demand and, succeed in holding our own high criminals and government up to these same laws it will not have been a victor’s court.  Justice Jackson’s words are an important guide today, “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils.”

Going back to the original question – Were the Nuremberg Tribunals only victor’s justice? – that depends on us – that depends on you. Will we prosecute our own high war criminals?  Will we respect and use the obligations of Nuremberg to oppose our government’s crimes against humanity and crimes against peace?

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Elliott Adams was a solider, a politician, a businessman; now he works for peace.  His interest in international law grew out of his experience in war, in places of conflict like Gaza, and being on trial for peace activism.

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Here is a response by veteran, author and peace activist S. Brian Willson

As much as I have talked about and utilized “Nuremberg” in my political education, I really believe that Nuremberg legitimized a future of barbarism. The evidence reveals that the brutality, inhumanity, and illegality during World War II was about equally distributed between the Nazis/Axis powers and the Allied Powers. And it tends to be true in most wars. Albert Camus wrote that the victory of WWII was one of unrestrained violence, no matter who “won”. Yet, Nuremberg condemned but one side, while granting immunity to the Allied powers and their bombings, including Atomic bombings. Some have called this a de facto advance to barbarism.

The seven Nuremberg Principles are set forth in the London Agreement and Charter, an Executive Agreement signed on August 8, 1945 by the four major victorious allies in World War II – the U.S., U.S.S.R., United Kingdom, and France. The Agreement and Charter provided that the major war criminals whose offenses had no particular geographical location would be tried by an International Military Tribunal (IMT) at Nuremberg, Germany, for three major crimes — those against Peace, against Humanity, and against the Laws of War. Note that the date, August 8, 1945, was only two days after the US A-bombed Hiroshima, and one day prior to the US A-bombing Nagasaki.  These crimes were shockingly ignored by the Tribunal. The Charter authorized prosecution of the major war criminals – of but one side only – the Nazis/Axis. It exempted ALL bombing, even as the indiscriminate bombings had begun as early as May 1940 when the British initiated bombing of persons and property. The pointless mass Allied bombing of Dresden in February 1945 took place after the war had ceased to be a military operation. The fire bombings of Japan that lasted over 7 months, destroying virtually all of Japan’s cities even before the A bombings.

So, I have come to the conclusion that vertical power which has dominated human societies for at least 6,000 years with a few indigenous exceptions, is an inherently destructive and pathological concept. The “law” becomes inevitably an instrument to assure maintenance of that power, and the bigness of such vertical power becomes quickly unaccountable no matter efforts to restrain it. This has been true since the emergence of law during Hammuarabi’s (1728-1676 BC) reign when Babylon evolved into the Mesopotamia empire. Thus, human cultures have experienced about 3,500 years of rule by “law”.

Thus, our epistemological and evolutionary challenge as humans is to become bioregional decentralists building local communities outside of the prevailing power paradigm, and creatively ignoring that power so as not to continue to legitimize it. Rediscovering human autonomy in smaller horizontal groupings living in visceral, not virtual, relationship to nature is what history reveals as the sustainable social model.  Naomi Klein’s latest book, “This Changes Everything: Capitalism Versus the Climate”, is a wonderful read for getting us to directly address the inherently destructive system of capitalism, but I think she really misses the essence of an alternative path, another way entirely.

Dr. Pangloss, on the left, with his young and naïve student Candide. That smile never left Pangloss' face, no matter how terrible the tragedies he witnessed or experienced. From www.learner.org

Dr. Pangloss, on the left, with his young and naïve student Candide. That smile never left Pangloss’ face, no matter how terrible the tragedies he witnessed or experienced. From www.learner.org

See my short essay, “The Failure of Peace Treaties“, which critiques the continued reliance on the “law” to bail us out of our “lawlessness.” The historical effort to establish written treaties to restrain vertical power generally coincides with the emergence of the rule by written law, and becomes what some call “Panglossian pacts” (explained in my essay).