Nazi Nuremberg Trials Still Resonate in Conflict Law 70 Years Later

From the dock at the Nuremberg trials, which began 70 years ago in November, the Nazi elite offered the standard excuse of the mass murderer.

They were following orders. They were dutiful and obedient servants to the will of Adolf Hitler. They were mere "fonctionnaires," as the French put it, or bureaucrats of killing.

The results of their obedience were world war, Holocaust and indiscriminate death at an industrial pace, said Supreme Court Justice Robert H. Jackson, who served as chief prosecutor at the International Military Tribunal convened by the allies.

The defendants could not escape complicity in the conspiracy against peace that was the Third Reich, Jackson said at the lectern in Courtroom 600 of the Palace of Justice in the Bavarian town of Nuremberg.

In his closing argument, Jackson said, "These men destroyed free government in Germany and now plead to be excused from responsibility because they became slaves" to Hitler's will.

"They are in the position of the fictional boy who murdered his father and mother and then pleaded for leniency because he was an orphan," he said. "What these men have overlooked is that Adolf Hitler's acts are their acts."

On Nov. 20, the date when the so-called Trial of The Century began in 1945, a simple commemoration ceremony was held in the Palace of Justice, which is still used as a courtroom for murder cases.

One of those reportedly attending was Niklas Frank, son of Hitler's lawyer Hans Frank. The elder Frank, one of the proponents of Jewish extermination, was among the Nuremberg defendants who were hanged after the trial.

In 1987, Niklas Frank wrote a book, "The Father: A Settling of Accounts," which was controversial in Germany. In the book, Frank called his father a "slime-hole of a Hitler fanatic."

Russian Foreign Minister Sergei Lavrov also took note of the start date of the Nuremberg trials in remarks to the Russian news agency Tass in which he warned of the current threat from Nazi sympathizers and apologists in the West.

"Of particular concern is the weakening of immunity to the Nazism virus in some countries developed at the Nuremberg trials," Lavrov said.

At the Robert H. Jackson Center in the central New York town of Jamestown, a series of teacher workshops and symposiums on Nuremberg began leading up to a Dec. 22 TV special "Liberty Under the Law: The Robert H. Jackson Story" on WNED-TV Buffalo.

The trial was unprecedented. Never before had the minions of a state been held accountable for waging "aggressive war." Never before had defendants been tried for such offenses as "crimes against peace" and "crimes against humanity."

The proceeding was a "watershed moment in international justice," according to the U.S. Holocaust Memorial Museum.

Nuremberg, the ceremonial birthplace of the Nazi party, was the catalyst and model for a range of reforms and new initiatives in international law -- the Genocide convention of 1948, the Universal Declaration of Human Rights in 1948, the Geneva Convention of the Laws and Customs of War in 1949.

The principle of adherence to international law led to the present-day courts at The Hague for trying crimes committed during the Balkan wars of the early 1990s, and for the genocide in Rwanda.

The influence of Nuremberg can also be seen in the U.S. Uniform Code of Military Justice (UCMJ) and the Law of Armed Conflict (LOAC) subscribed to by the U.S. and outlined in the Defense Department's "Law Of War Manual" relating to the conduct of hostilities and the protection of war victims.

The U.S. is currently at odds with Doctors Without Borders (Medicins Sans Frontieres, or MSF) on whether international or U.S. law should take precedence in the aftermath of the U.S. airstrike on the MSF hospital in Kunduz, Afghanistan, last month that killed 30.

Last week, Army Gen. John Campbell, the U.S. and NATO commander in Afghanistan, gave a preliminary report on an Article 15-6 investigation under the UCMJ into the incident that Campbell attributed a series of tragic "mistakes" by Special Operations air and ground units.

When asked if the airstrike was justified under international law and the U.S. rules of engagement, Army Brig. Gen. Wilson Shoffner, Campbell's spokesman, would only say that the actions of the U.S. troops were "not appropriate" to the threat they faced.

MSF has charged that war crimes may have been committed and demanded an independent investigation by an international body.

In a statement, Christopher Stokes, the MSF general director, said that "MSF re-iterates its call for an independent and impartial investigation into the attack on our hospital in Kunduz. Investigations of this incident cannot be left solely to parties to the conflict in Afghanistan."

As prosecutor at Nuremberg, Jackson faced the problem of essentially inventing the international law for proceeding against crimes of state. Even his colleagues on the Supreme Court thought he was on a fool's errand.

Soviet leader Josef Stalin and British Prime Minister Winston Churchill thought Nuremberg was a waste of time and money.

Stalin wanted 50,000, perhaps 100,000, German staff officers to be lined up and shot. Churchill was for summary executions, but was talked out of it by the Americans.

Chief Justice Harlan Fiske Stone mocked Jackson. He was "away conducting his high-grade lynching party in Nuremberg," Stone wrote. "I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas."

Associate Supreme Court Justice William O. Douglas charged that the allies and Jackson were "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled," he wrote. "Law was created ex post facto (after the fact) to suit the passion and clamor of the time."

Responding to the criticism, Jackson wrote to President Harry S. Truman that the Nuremberg trials were vital to establishing beyond doubt what the Nazis had done, or their crimes and the Holocaust would be lost to future generations.

To set that record before the judges -- one each from the U.S., Britain, France and the Soviet Union -- Jackson relied not on the testimony of witnesses but on the vast trove of documents, photographs and films the allies had captured from the Nazis. In all, 3,000 tons of documents came before the court in the trial that lasted from November 1945 to October 1946.

The presentation of the record became tedious. In the 10th month of the trial, Dame Rebecca West, the British author and journalist, wrote in the New Yorker magazine, "The courtroom is a citadel of boredom."

However, in her lead paragraphs at the start of the trial, The New York Times reporter Kathleen McLaughlin caught what Jackson was getting at.

"Four of the world's great powers sit in judgment today on twenty top Germans whom the democratic nations charge with major responsibility for plunging the world into World War II.

"The twenty-first defendant, tacitly although not specifically named in the indictment, is the German nation that raised them to power and gloried in their might," McLaughlin wrote.

Actually, there were originally 23 defendants. Defendant Martin Bormann was tried in absentia and defendant Robert Ley committed suicide a week into the trial.

In his riveting and magisterial opening statement, Jackson made the case that power must be made to yield to law and reason.

"May it please Your Honors: The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility.

"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," he said.

"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," he said.

In his closing argument, Jackson argued against mercy and dwelled on how the Nazis even turned language into a weapon in their drive for conquest.

The defendants "all speak with a Nazi doubletalk with which to deceive the unwary," Jackson said. "In the Nazi dictionary of sardonic euphemisms ‘Final solution' of the Jewish problem was a phrase which meant extermination; ‘Special treatment' of prisoners of war meant killing.

"'Protective custody' meant concentration camp; ‘Duty labor' meant slave labor; and an order to ‘take a firm attitude' or ‘take positive measures' meant to act with unrestrained savagery," Jackson said.

In the end, the International Military Tribunal found all but three of the defendants guilty. Twelve were sentenced to death and the rest were given prison sentences ranging from 10 years to life behind bars.

Chancellor Hermann Göring, Hitler's designated successor, was among those sentenced to be hanged but he committed suicide the night before the execution by swallowing a cyanide capsule he had hidden in a jar of skin medication.

There were 12 subsequent trials, all conducted in the Palace of Justice. However, the allies had fallen apart on procedures and the following trials were all conducted as U.S. military tribunals.

Of the 185 people indicted in the subsequent Nuremberg trials, 12 defendants received death sentences, eight others were given life in prison and an additional 77 people received prison terms of varying lengths, according to the U.S. Holocaust Memorial Museum.

--Richard Sisk can be reached at Richard.Sisk@military.com.