On the 20th of November 2020, a ceremonial event was held in Nuremberg, Germany during which the Nuremberg Trials were praised for laying the foundation of international criminal law and for putting the importance of human rights and a rules-based world order above national interest. What were these Nuremberg Trials? How did they change our general understanding of international law? And what importance do they play today?
The Nuremberg Court
To understand these questions, we need to go back 76 years, to the 20th of November 1945, where Justice Robert H. Jackson, the United States’ Chief prosecutor, opened the Nuremberg Trials with the following words:
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. 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.
In other words, the Allies (USA, Great Britain, France, and the Soviet Union) decided to put Germany’s major war criminals on trial inside the Palace of Justice in Nuremberg, a building carrying high symbolic meaning since the Race Laws were formerly declared there in 1935. The aim was (1) to subject these war criminals to a fair judgment, (2) document the atrocities which were committed by the Nazis during WWII and (3) educate the German population about the committed crimes. This was a part of the US’ Re-education policy and a larger plan with the goal to reintegrate Germany back into Europe.
Being the first international trial in history, the International Military Tribunal (IMT) was confronted with a lot of challenges, the biggest one being establishing legitimacy. In the conventional understanding of criminal law, individuals break the law of their respective country and face punishment according to the criminal code. In this case however, the state itself became an instrument of perpetration, and individuals needed to be held accountable for crimes they committed in the name of a state – a so called “Verbrecherstaat” (criminal state). While criminal law used to be an internal matter of sovereign states, the IMT had to convince the German population and the world that there are moral values deserving more protection than holding onto the idea of absolute sovereignty, and that hiding behind an anonymous bureaucracy cannot be used as an excuse for committing crimes of any kind. The IMT was also accused of executing so called “victor’s justice” (as opposed to “real” justice) as it only had jurisdiction over individuals from European Axis countries (Germany and Italy) who committed crimes against peace, war crimes and/or crimes against humanity.
How are the Nuremberg Trials assessed today given these difficulties?
Today, there is a broad consensus concerning how to evaluate the IMT. A small group of revisionists still deploy the term “victor’s justice” to delegitimize the trials and portray them as an instrument of arbitrary use of power by the Allies. Retroactive enactment of law and the fact that both USA and Soviet Union were not held accountable for their respective war crimes is further used as evidence to “prove” that the legal context was only used as a pretext for seeking revenge. Reminiscent of Göering’s verdict during the trial (“The winner is always going to be the judge and the loser always the accused”), revisionists claim that a certain set of values was imposed on the German society which was beneficial to the Allies and unfair towards the Germans.
In general, the trials are praised for revolutionizing our understanding of international criminal law and for laying the foundation for the International Criminal Court (ICC) which later played a crucial role in sentencing perpetrators in former Yugoslavia and Rwanda. However, that doesn’t mean that the academic community shies away from finding a critical assessment.
While they admit that the court was not objective in the sense that the winners of WWII judged over the losers, and that war crimes committed by the Allied powers (such as the Katyn massacre or the bombing of Hiroshima and Nagasaki) were not prosecuted, they stress that this is not an argument against the legitimacy of the Nuremberg court. As Hannah Arendt once put it, it does not diminish the guilt of a person when they point their finger at another individual who committed a similar crime but is not held accountable.
The lead British prosecutor Sir Hartley Shawcross further stated in an interview:
“You must first ask what the principles are, not who laid them down, and then decide whether these principles are right or wrong. If the principles are right, it doesn’t matter who laid them down.”
Finally, the most important argument in favour of the retroactive enactment of law: If people cannot be held accountable for inciting war and committing genocide, it is the law that is flawed, not the prosecution. Understanding the Nuremberg Trials as being an arbitrary imposition of morals in favour of the Allies must therefore be rejected.
In conclusion, they admit the political nature of the trials allows for criticism but insist that the USA and Soviet Union agreeing to not prosecuting each other was a necessary compromise which had to be made to establish the IMT, and that this decision does not diminish the validity of the court’s decisions.
What stays – the Legacy of the International Military Tribunal
Were the Nuremberg Trials a success? Considering the wave of amnesties that soon followed with the start of the Cold War, they did not live up to their promise of executing justice and making crimes against peace and crimes against humanity impossible to ever happen again. Nonetheless, they demonstrated the dire need for universal international law being able to prosecute human rights violations, no matter the political obstacles.