Nuremberg Trials - Criticism

Criticism

You'll see. A few years from now the lawyers of the world will condemn this trial. You can't have a trial without law.

“ ” —Joachim von Ribbentrop
20 November 1945

Critics of the Nuremberg trials argued that the charges against the defendants were only defined as "crimes" after they were committed and that therefore the trial was invalid as a form of "victors' justice". As Biddiss observed, "the Nuremberg Trial continues to haunt us. ... It is a question also of the weaknesses and strengths of the proceedings themselves. The undoubted flaws rightly continue to trouble the thoughtful."

Much of the criticism of the Nuremberg Trials stems from a school of legal thought called legal positivism. As Quincy Wright noted eighteen months after the conclusion of the IMT:

The assumptions underlying the Charter of the United Nations, the Statute of the International Court of Justice, and the Charter of the Nuremberg Tribunal are far removed from the positivistic assumptions which greatly influenced the thought of international jurists in the nineteenth century. Consequently, the activities of those institutions have frequently been vigorously criticized by positivistic jurists ... have asked: How can principles enunciated by the Nuremberg Tribunal, to take it as an example, be of legal value until most of the states have agreed to a tribunal with jurisdiction to enforce those principles? How could the Nuremberg Tribunal have obtained jurisdiction to find Germany guilty of aggression, when Germany had not consented to the Tribunal? How could the law, first explicitly accepted in the Nuremberg Charter of 1945, have bound the defendants in the trial when they committed the acts for which they were indicted years earlier?

Chief Justice of the United States Supreme Court Harlan Fiske Stone called the Nuremberg trials a fraud. "(Chief U.S. prosecutor) Jackson is away conducting his high-grade lynching party in Nuremberg," he 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."

Jackson, in a letter discussing the weaknesses of the trial, in October 1945 told U.S. President Harry S. Truman that the Allies themselves "have done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war that our command is taking back prisoners sent to them. We are prosecuting plunder and our Allies are practicing it. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic States based on no title except conquest."

Associate Supreme Court Justice William O. Douglas charged that the Allies were guilty of "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 to suit the passion and clamor of the time."

U.S. Deputy Chief Counsel Abraham Pomerantz resigned in protest at the low caliber of the judges assigned to try the industrial war criminals such as those at I.G. Farben.

Many Germans who agreed with the idea of punishment for war crimes, admitted trepidation concerning the trials. A contemporary German jurist said:

That the defendants at Nuremberg were held responsible, condemned and punished, will seem to most of us initially as a kind of historical justice. However, no one who takes the question of guilt seriously, above all no responsibly thoughtful jurist, will be content with this sensibility nor should they be allowed to be. Justice is not served when the guilty parties are punished in any old way, even if this seems appropriate with regard to their measure of guilt. Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge.

The validity of the court has been questioned for a variety of reasons:

• The defendants were not allowed to appeal or affect the selection of judges. A. L. Goodhart, Professor at Oxford, opposed the view that, because the judges were appointed by the victors, the Tribunal was not impartial and could not be regarded as a court in the true sense. He wrote:

Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of honest citizens.

• One of the charges, brought against Keitel, Jodl, and Ribbentrop included conspiracy to commit aggression against Poland in 1939. The Secret Protocols of the German-Soviet Non-Aggression Pact of 23 August 1939, proposed the partition of Poland between the Germans and the Soviets (which was subsequently executed in September 1939); however, Soviet leaders were not tried for being part of the same conspiracy. Instead, the Tribunal proclaimed the Secret Protocols of the Non-Aggression Pact to be a forgery. Moreover, Allied Powers Britain and Soviet Union were not tried for preparing and conducting the Anglo-Soviet invasion of Iran and the Winter War, respectively.
• In 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging, for the first time, another government (the Sublime Porte) of committing "a crime against humanity". However it was not until the phrase was further developed in the London Charter that it had a specific meaning. As the London Charter definition of what constituted a crime against humanity was unknown when many of the crimes were committed, it could be argued to be a retrospective law, in violation of the principles of prohibition of ex post facto laws and the general principle of penal law nullum crimen, nulla poena sine praevia lege poenali.
• The court agreed to relieve the Soviet leadership from attending these trials as war criminals in order to hide their crimes against war civilians, war crimes that were committed by their army that included "carving up Poland in 1939 and attacking Finland three months later." This "exclusion request" was initiated by the Soviets and subsequently approved by the court's administration.
• The trials were conducted under their own rules of evidence; the tu quoque defense was removed; and some claim the entire spirit of the assembly was "victor's justice". The Charter of the International Military Tribunal permitted the use of normally inadmissible "evidence". Article 19 specified that "The Tribunal shall not be bound by technical rules of evidence ... and shall admit any evidence which it deems to have probative value". Article 21 of the Nuremberg International Military Tribunal (IMT) Charter stipulated:

The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military and other Tribunals of any of the United Nations.

• The chief Soviet prosecutor submitted false documentation in an attempt to indict defendants for the murder of thousands of Polish officers in the Katyn forest near Smolensk. However, the other Allied prosecutors refused to support the indictment and German lawyers promised to mount an embarrassing defense. No one was charged or found guilty at Nuremberg for the Katyn Forest massacre. In 1990, the Soviet government acknowledged that the Katyn massacre was carried out, not by the Germans, but by the Soviet secret police.

• Freda Utley, in her 1949 book "The High Cost of Vengeance" charged the court with amongst other things double standards. She pointed to the Allied use of civilian forced labor, and deliberate starvation of civilians in the occupied territories. She also noted that General Rudenko, the chief Soviet prosecutor, after the trials became commandant of the Sachsenhausen concentration camp. (After the fall of East Germany the bodies of 12,500 Soviet era victims were uncovered at the camp, mainly "children, adolescents and elderly people.")

• Luise, the wife of Alfred Jodl, attached herself to her husband's defense team. Subsequently interviewed by Gitta Sereny, researching her biography of Albert Speer, Luise alleged that in many instances the Allied prosecution made charges against Jodl based on documents that they refused to share with the defense. Jodl nevertheless proved some of the charges made against him were untrue, such as the charge that he helped Hitler gain control of Germany in 1933. He was in one instance aided by a GI clerk who chose to give Luise a document showing that the execution of a group of British commandos in Norway had been legitimate. The GI warned Luise that if she didn't copy it immediately she would never see it again.

• The main Soviet judge, Iona Nikitchenko, presided over some of the most notorious of Joseph Stalin's show trials during the Great Purges of 1936 to 1938, where he among other things sentenced Kamenev and Zinoviev. According to the declassified Soviet archives, 681,692 people arrested for "counter-revolutionary and state crimes" were shot in 1937 and 1938 alone–an average of over 900 executions a day.

• The Tribunal itself strongly disputed that the London Charter was ex post facto law, pointing to existing international agreements signed by Germany that made aggressive war and certain wartime actions unlawful, such as the Kellogg-Briand Pact, the Covenant of the League of Nations, and the Hague Conventions.

In an editorial at the time 'The Economist' a British weekly newspaper, criticised the hypocrisy of both Britain and France for supporting the expulsion of the Soviet Union for its unprovoked attack against Finland from the League of Nations in 1939 and for six years later cooperating with the USSR as a respected equal at Nuremberg. It also criticised the allies for their own double-standard at the Nuremberg Trials: "nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies' own justice. ... Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the Americans who dropped the atom bomb and the British who destroyed the cities of western Germany plead 'not guilty' on this count? Crimes against humanity also include the mass expulsion of populations. Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold themselves completely innocent? ... The nations sitting in judgement have so clearly proclaimed themselves exempt from the law which they have administered."