Judgment on Nuremberg

American Attitudes toward the Major German War-Crime Trials

William J. Bosch

• Publisher: The University of North Carolina Press
• Year: 2018
• Print ISBN: 9780807896242, 9780807811399
• eBook ISBN: 9781469650111
• Topic: History
• Subtopic: German History
• Index: History

In this prodigiously researched study, the author concentrates on the reaction to the trials by various segments of the American public largely in terms of the legality of the tribunal, the composition of the court, the justice of the verdicts, and the implications for the future.

Originally published 1970.

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1

The Road to Nuremberg

Bold headlines August 9, 1945 announced: “Soviet Declares War on Japan; Attacks Manchuria, Tokyo Says: Atom Bomb Loosed on Nagasaki.” At the bottom of this first page was the headline: “4 Powers Call Aggression Crime In Accord Covering War Trials.”¹

Ironically, man’s vast potential for destruction overshadowed the efforts which he was making at that moment to bridle the evils of aggression. The Allied nations’ signing of the London Charter, which provided the law and procedures for the Nuremberg war-crime trials, hardly competed with the news of weapons that would be able to destroy the human race.

Although the search for safeguards for the rights of men and nations began centuries ago, never before has success in this seeking been so imperative. Modern communications and transportation have brought men closer in their destinies. Apart from the potency of new weapons, this closeness would be less disturbing if the future were not so imperiled by the emergence of modern totalitarianism with its tendency to violate the rights of its citizens and of neighboring states.

Opponents of totalitarianism have tried desperately to devise defenses against aggression and atrocities. Leaders have sought safeguards in several ways: politically, through collective security; militarily, through intimidating destructive might; and economically, through sanctions or elimination of frustrating poverty.

Another major effort to stop unjust wars and violations of human rights has been the development of an international legal code. Many hope that as individual states have curbed internal unrest and made men secure in their rights to life, liberty, and property, so the law of the nations might check international outlawry.² “Peace through law” has been a vision which has especially captivated America. Proud of the freedom and security provided by its legal tradition, the United States frequently has attempted through law to solve the nation’s and the world’s problems.

Perhaps the most striking illustration of this policy was the International Military Tribunal which tried Nazi Germany’s leaders after the Second World War. The court which judged Hitler’s warlords was significant not only because of the defendants’ rank and the depravity and magnitude of their crimes, but also because the Allies sought to create a new international law through the Tribunal’s decisions. Aggressive war was declared the “supreme crime”; national leaders who plotted unjust belligerency were held personally accountable; pleas of “head of state” and “order of superior” no longer bestowed legal immunity; and those who abetted aggressive war by their diplomatic, financial or industrial support were liable for the injustices perpetrated by their nation. In addition, an indictment for crimes against humanity was formulated.

The Nuremberg trials were not an impulsive decision by the Allied governments. They were the culmination of twenty-five years of legal development and psychological preparation. Twentieth-century men started on the road to Nuremberg immediately after World War I.

“Hang the Kaiser!”—a cry created out of wartime passion and the desire to mobilize national morale—expressed the Allies’ determination to indict enemy leaders for war crimes at the end of World War I. Implementation of this policy began November 28, 1918 when the British Imperial War Cabinet decided to punish German leaders by legal tribunals rather than by executive action.

When the triumphant Allied and Associated powers assembled in the Hall of Mirrors at Versailles to plan Europe’s future, they assumed the former German government would be discredited by the trial of the kaiser. Mr. Robert Lansing, American secretary of state and president of the Committee on Breaches of Laws of War, informed them, however, that the committee had neither drawn up a list of criminals nor prepared for trials. The reason for the committee’s inaction was that their judicial experts had decided “that the accused could not be brought before any legal tribunal, since they were only guilty of a moral responsibility.”³

Because of this conclusion only the kaiser was indicted for starting the war. All other German leaders were charged with violations of the traditional rules and customs of war. These decisions were embodied in articles 227, 228, and 229 of the final draft of the Versailles treaty.

The first of these articles declared the victors’ intention to bring the former German emperor to trial “for a supreme offence against international morality and the sanctity of treaties.” A special tribunal was to be created, and the United States, Great Britain, France, Italy, and Japan would each supply one judge for the court.

Article 228 demanded German recognition of the victor’s right to bring before its military tribunals enemy nationals accused of violations of the laws of war. Article 229 specified that the alleged criminal would be handed over to the aggrieved nation’s military courts or, if he was charged with crimes by a number of nations, he would be brought before a military court composed of judges from the accusing nations.⁴

Article 227 had certain features which would reappear in the post-World War II Nuremberg trials: the indictment of government leaders, selection of the court’s judges exclusively from the victorious powers; and high priority upon the demands of morality in international relations.

This last point, however, is also a source of fundamental difference between the plan proposed in Article 227 and the Nuremberg trials. The Versailles court was to try the kaiser exclusively on political and moral charges. At Nuremberg the indictment maintained that, over and above any ethical considerations, the acts committed by the Nazi chieftains were criminal in the strict judicial sense; that is, they were actions which broke the law and were punishable.⁵

In Article 229 the distinction between perpetrators of localized crime and those whose violations covered a large geographical area vaguely anticipated the twofold policy adopted at the Moscow Conference. Nazis who had committed atrocities within their territorial jurisdiction were turned over to the liberated countries by this World War II declaration. Major culprits, those whose crimes transcended the boundaries of any single nation, however, were to be punished by joint decision of the Allied powers.⁶

The well-laid plans of Articles 227, 228, and 229 of the Versailles treaty came to nought. On November 19, 1918 the kaiser fled to Holland, and when the victors requested his extradition the Netherlands refused to comply with what it considered a violation of neutrality.

With the major symbol of German war guilt beyond reach, Allied interest in postwar punishment slackened. On the other hand, incensed by the harsh treaty, Germany was eager to obtain jurisdiction over its own nationals.

Allied apathy and German zeal resulted in the Leipzig trials of 1920. All agree that these judicial proceedings were farcical. The Allies listed two thousand alleged war criminals and to German authorities they submitted as test cases the names of forty-five of the most notorious criminals. Twelve of the forty-five were brought to trial; six were acquitted, and the other six were given sentences averaging a few months.⁷ Since time spent awaiting trial was deducted from penalties, one defendant was found guilty and immediately released. All convicted submarine commanders “escaped” from prison.⁸ Thus ended the first modern attempt at postwar legal punishment of war criminals.

In the years between the two World Wars, statesmen made little effort to create an international criminal law, but they did strive to control aggression in other ways. The major advance on the road to Nuremberg in the interwar years was the 1928 Paris Peace Pact. This treaty was the statesmen’s political answer to aggression just as Nuremberg would be the legal response to unjust war.

The Kellogg-Briand Pact of 1928 stated that “the High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relation with one another.”⁹ This agreement was signed and adhered to by sixty-three nations including Germany.¹⁰

Two arguments were later urged against claims that the peace pact was a clear, binding law for Nuremberg’s punishment of aggressors. First, the pact provided no penalty of any sort for violations. Second, the pact in no way assigned personal liability for any national leader who contravened the treaty.¹¹

The argument frequently made in reply to these objections was that the pact represented a common international law which emerged between the World Wars. Analogous to common law development in Anglo-Saxon legal tradition, Nuremberg proponents urged that totality of government statements, legal writings, official resolutions, and pacts create an accepted international legal code which recognized aggression as the supreme crime and leaders of an unjust war as being personally accountable.¹²

Besides being witness to common law evolution, the Kellogg-Briand Pact was also significant because the United States was principle author of this treaty. Indeed this pact is often considered a classical expression of basic American attitudes in international affairs.¹³ The Kellogg-Briand Pact, its critics asserted, reflected a national mentality determined on perpetuating the established world order so eminently favorable for the United States. America was a “have” nation, content with the status quo; it nursed no grudges from past defeats, was not avid for territorial acquisitions, and was not strangled by any vital shortages in economic resources. The treaty, moreover, was the American way in foreign affairs. It was that mixture of moralism and legalism which seeks to solve mankind’s problems by statement of ethical principles and the creation of laws. The practical significance of the treaty, therefore, was not its half-hearted observance but the steadily increasing power of the moralisticlegalistic state whose fundamental attitudes it expressed. This nation would reach world military, industrial, and economic dominance in the period during the Nuremberg years immediately after the Second World War. What America wanted, America would get.

Similar was the importance of the Stimson Doctrine of 1932. This document announced that the United States would not recognize the results of aggression and that invasions were not ethically neutral acts but morally wrong ones. The doctrine illustrated America’s determination to counter unjust war with legal means, even if its sword was the fragile blade of a legal fiction.¹⁴

In the 1930’s and 1940’s aggression and atrocities marked the second great attempt of twentieth-century European states to settle conflicting national aspirations. During the war, Allied leaders articulated the view that it was no longer tolerable for national leaders to treat their citizens’ lives and fortunes as expendable pawns in an international chess game. Repeatedly President Franklin Roosevelt, Prime Minister Winston Churchill, and Marshal Joseph Stalin threatened Nazis with the dire fate awaiting perpetrators of atrocities. Their intent to punish was formally proclaimed in the November 1, 1943 protocol of the Moscow Conference.¹⁵

The threatened sanctions could fall upon Nazi leaders in a variety of ways. There existed such alternatives as drumhead court-martial, summary execution by executive decree, and trial by enemy national courts, by neutral tribunals, or by an international criminal court.¹⁶

American leaders considered harsh military judgment or executive executions as probably unjust and revolting to the American conscience.¹⁷ Among these leaders were Henry L. Stimson, secretary of war and Robert H. Jackson, an associate justice of the Supreme Court. Such violent solutions, while satisfying a desire for venegeance, would not reassert the rule of law in a world brutalized by the Third Reich’s debasing legal order. Nor would such actions preserve the record of Nazi aggression and atrocities. Moreover, trial proponents argued, summary execution would create Nazi martyrs and an opportunity for revisionists and isolationists to claim once more that charges against the German enemy were fabrications.

The alternative of using German courts had little support. Men remembered Leipzig and wished no recurrence of the legal scandal perpetrated there.

The employment of neutral courts was exceedingly attractive and seemed to be a just and equitable method of punishment. Those urging international tribunals, however, held that this appeal was deceptive. They contended that after World War II no true neutral nation existed, for no state had refrained from hostilities because it was uninterested or impartial toward the outcome. Indeed a nation’s desire for neutrality frequently had little relation to its actual status. Moreover, in states termed neutral the legal and political leaders had in fact chosen sides, or at least their self-interest was connected with one or the other of the belligerents.¹⁸ Finally, it would be hard to find a man who was neutral to Dachau and Buchenwald, and, if such a man were found, would one wish him to sit in judgment?

By January of 1945 the United States government decided to conduct international trials. The three other major Allied powers accepted the American program at the San Francisco United Nations Conference.¹⁹

Meetings in London during the summer of 1945, attended by representatives of the United States, Great Britain, the Soviet Union, and the provisional government of France, marked the inception of the Allies’ postwar punishment program. Associate Justice Robert Jac...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Acknowledgments
• Contents
• 1 The Road to Nuremberg
• 2 American Policy Makers and the War-Crime Trials
• 3 Positivism, Pragmatism, Natural Law, and Nuremberg: The Judgment of International Lawyers
• 4 Congress Gives Its Judgment
• 5 The Views of the American Public
• 6 Men of God Judge the Justice of Men
• 7 American Lawyers Judge Nuremberg
• 8 Realism or Idealism? Historians and Foreign Affairs Writers Evaluate Nuremberg
• 9 “Theirs Not to Reason Why, Theirs but to Do . . .”: Nuremberg and the Military
• 10 Behavioral Scientists View the Major War-Crime Trials
• 11 In Its End Is Its Beginning
• Bibliography
• Index