Did trying the Nazis help world peace?

By Frank Stephenson

“We must never forget that the record on which we judge these defendants today 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.” — Robert H. Jackson, Oct. 18, 1945, Palace of Justice, Nuremberg

With these words, 60 years ago this October Jackson, on leave from the U.S. Supreme Court, set the tone for the mission and aspirations of the most famous criminal trial in history.

After Japan’s unconditional surrender to Allied forces on Sept. 2, 1945, it took only six weeks of negotiating among U.S., British and Russian officials to lay the groundwork for the world’s first International Military Tribunal (IMT). Jackson would soon be named by President Harry Truman to serve as chief prosecutor for the United States.

Well before Germany’s surrender in May, the Allies had been debating what to do about Nazi war criminals once the war was over. By June, sitting in holding cells around Germany were people accused of committing the most barbaric acts of murder and brutality in recorded history. Jackson fired off a report to Truman that summarized the Allies’ only options: They could either let the Nazis go, summarily execute them, or charge them with crimes and put them on trial.

Unlike his predecessor, Truman leaned toward the last option—a formal trial before a world court. Roosevelt, who had died in April, had been persuaded that summary execution by the military was the way to go. A year before, he and Churchill had issued a joint statement saying that any sort of judicial process for “arch-criminals such as Hitler, Himmler, Goering and Goebbels” was, in effect, medicine that didn’t fit the disease.

In his appeal to Truman, Jackson warned that “undiscriminating executions or punishments without definite findings of guilt, fairly arrived at, would violate pledges repeatedly given, and would not set easily on the American conscience or be remembered by our children with pride.”

To the astonishment of Churchill and other Allied leaders, Stalin had maintained all along that a formal trial was the best plan. It was only later that the U.S. and British officials fully understood what Stalin had in mind—a kangaroo court. In his bloody purges of his military in the 1930s, Stalin had become a master at orchestrating highly publicized “show trials,” where the accused were tortured into making confessions, hauled before open courts to publicly state their guilt, and then summarily shot or hanged.

Unfortunately, the shadow of Stalin’s show trials showed up early in the IMT’s development following Japan’s defeat. Stalin’s choice for a judge to represent the Soviet Union on the tribunal’s bench was Iona Nikitchenko, who had “presided” over some of Stalin’s most notorious show trials. During procedural discussions leading up to the trial’s debut in November 1945, Nikitchenko inadvertently tipped his legal hand by asking his fellow jurists “What is meant in the English by ‘cross-examine’?”

To this day, the Nuremberg trials (there were 12 subsequent trials held after the “big Nazi trial” ended in October 1946, along with a version in Tokyo for Japanese war criminals) have been unable to shake the “show trial” stigma. Published debate and scholarly opinions over the trials’ fairness and legality literally fills volumes of legal journals and countless pages of books and magazines.

What’s not open to debate, of course, is what’s happened since these revolutionary war crimes trials were held. Since 1950, brutal regimes in such far-flung places as Cambodia, Sri Lanka, Indonesia, the Middle East, Nicaragua, Afghanistan, Iran, Baghdad, the Balkans, and Africa have killed more than 100 million people—by the most reliable estimates—and with impunity. For all the lofty ambitions of those who championed the trials as the gateway to a new era where aggressive war and the massacre of millions would be curbed by international law, the effort has proved demonstrably futile.

Still, the legacy of the IMT lives on, perhaps the ultimate proof being the establishment in 1999 of the International Criminal Court (ICC) in The Hague, Netherlands. Long the dream of jurists and government leaders particularly in Europe and the U.S., the ICC is now fully operational with authority vested in a treaty signed by over 140 nations (the U.S. conspicuously not yet among these because of objections raised by the Bush Administration). The body is the first permanent court ever created to mete out justice in cases of genocide and other crimes against humanity.

To many leading jurists—notably Benjamin Ferencz, who, as a 27-year-old U.S. prosecutor tried his first case at Nuremberg—the ICC represents the best, and possibly last, hope for putting a stop to murderous regimes getting off scot-free when they abuse and butcher innocent people. Ferencz, now 85, has written that without the “precedent and promise” of the IMT, founding the ICC could never have been possible.

Historian Robert Gellately has heard all the debate on the IMT’s legacy and the arguments for and against its legal validity. Over the years, he’s grown increasingly convinced of the trial’s importance in the continuing struggle for world peace.

First of all, clearly the IMT was no “show trial” as millions who shuddered under Stalin’s reign of terror knew the term, Gellately argues. Of the 21 original defendants at Nuremberg, three were acquitted and seven others got off with prison terms (only three being life sentences). Ten were hanged. Immediate death by firing squad or a rope was the predetermined fate for all of the accused in Stalin’s courts before, during and even after the war, he said.

“Yes, there was a political dimension to this trial, perhaps more than most, and it was imperfect justice. But in the end, this was a noble attempt to set a new standard, to hold people responsible for what they did.

“We were inventing the wheel here. What do you do when you find a case that is beyond anything you have on the books? We know (what the Nazis did) was so grossly wrong that it should have been on the books.”

Thanks to the wisdom and patience of Western jurists and politicians at Nuremberg, for six decades now it has been.—F.S.