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Legacies of the Nuremberg SS-Einsatzgruppen Trial After 70 Years Loyola of Los Angeles International and Comparative Law Review Volume 39 Number 1 Special Edition: The Nuremberg Laws Article 7 and the Nuremberg Trials Winter 2017 Legacies of the Nuremberg SS-Einsatzgruppen Trial After 70 Years Hilary C. Earl Nipissing University, [email protected] Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Recommended Citation Hilary C. Earl, Legacies of the Nuremberg SS-Einsatzgruppen Trial After 70 Years, 39 Loy. L.A. Int'l & Comp. L. Rev. 95 (2017). Available at: https://digitalcommons.lmu.edu/ilr/vol39/iss1/7 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. 07 EARL .DOCX (DO NOT DELETE) 1/16/17 4:45 PM Legacies of the Nuremberg SS- Einsatzgruppen Trial after 70 Years HILARY EARL* I. INTRODUCTION War crimes trials are almost commonplace today as the normal course of events that follow modern-day wars and atrocities. In the North Atlantic, we use the liberal legal tradition to redress the harm caused to civilians by the state and its agents during periods of State and inter-State conflict. The truth is, war crimes trials are a recent invention. There were so-called war crimes trials after World War I, but they were not prosecuted with any real conviction or political will. The Soviets prosecuted war criminals beginning in 1943, but many of these trials lacked the markers of western justice; the most important, of course, is the presumption of innocence. By this measure, Nuremberg was the first real (and successfully prosecuted) war crimes trial held in the North Atlantic. As with many things in history, the first is often the most important. Nuremberg prose- cuted representatives of the German State for crimes committed by the State, in what the Allies called “crimes against peace.” Simply put, Nu- remburg prosecuted high-ranking German officials for waging an ag- gressive and illegal war. It has been argued that for these reasons, Nu- * Hilary Earl is Associate Professor of European History at Nipissing University, North Bay, Ontario. She is also the Graduate Coordinator for the History Department. She was the co- academic chair for the 2016 Lessons and Legacies conference on the Holocaust at Claremont- McKenna College, and an editor for Genocide Studies and Prevention: An International Journal. Her research and teaching interests include comparative genocide, war crimes trials, perpetrator testimony, and the cultural impact of the Holocaust and genocide in the twenty-first century. She has published in a variety of journals and essay collections and is the author of The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History,published by Cambridge Uni- versity press, which won the 2010 Hans Rosenberg prize for best book in German history. She co-edited Lessons and Legacies XI: Expanding Perspectives on the Holocaust in a Changing World published with Northwestern University Press, 2014 and she is also co-editing the Wiley- Blackwell Handbook on the Holocaust expected release in 2018. Currently she is working on an examination of the reintegration of war criminals into German society and she is making a docu- mentary film on Nazi perpetrators. 95 07 EARL .DOCX (DO NOT DELETE) 1/16/17 4:45 PM 96 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 39:95 remberg stands out as significant. It set a legal precedent for all other trials that followed, including the twelve subsequent Nuremberg trials, or Nuremberg Military Tribunals (“NMT”), prosecuted between 1946 and 1949, the 1961 Israeli trial of Adolf Eichmann, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and Internation- al Criminal Tribunal for Rwanda (“ICTR”), and even the domestic tri- bunals in Guatemala and Germany, which prosecuted State agents as accessories to murder and other atrocities. All of these, some scholars argue, have their origins in the 1945 International Military Tribunal at Nuremberg (“IMT”). This essay discusses one of the IMT’s legal legacies: the Nurem- berg SS-Einsatzgruppen trial, the ninth of the twelve NMT prosecuted by the Americans at the Palace of Justice in Nuremberg between 1946 and 1949. The Einsatzgruppen were special paramilitary forces of the Schutzstaffel (“SS”) that worked alongside the German army to kill the racial enemies of the Reich. It is estimated they deliberately murdered between 1.1 and 1.5 million innocent Jewish men, women and children. The “Einsatzgruppen Reports,” discovered in 1946, contained damning evidence of criminal wrongdoing, and in the summer of 1947, Telford Taylor—the head of the American Office of Chief of Counsel of War Crimes (“OCCWC”)—indicted two dozen group leaders for crimes against humanity, war crimes and membership in organizations declared criminal by the IMT.1 These defendants were not tried for crimes against peace. In some ways, as Kim Priemel has noted, the Einsatzgruppen trial is not technically a “war crimes trial,” but rather an atrocity trial.2 Responsible for carrying out the Nazi policy for “extermination” in the east, many of these men were extremely well educated professionals who had come to the mobile killing units by way of the Security Service (“SD”) offices. None of the defendants were rank-and-file members of the Einsatzgruppen.3 Michael Musmanno, a judge in the Superior Court of Pennsylvania and a controversial figure at Nuremberg, presided over the court, which was in session for 138 days. Thousands of pieces of ev- idence were reviewed and every defendant testified about their behavior 1. See generally Amended Indictment, July 29, 1947, IV TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 13–22 (U.S. Gov’t Printing Office Oct. 1946–Apr. 1949). 2. Kim Christian Priemel, War Crimes Trials, the Holocaust and Historiography, 1944– 2014, in THE WILEY-BLACKWELL COMPANION TO THE HOLOCAUST (Simone Gigliotti & Hilary Earl eds., forthcoming 2017). 3. See MICHAEL WILDT, GENERATION DES UNBEDINGTEN. DAS FÜHRUNGSKORPS DES REICHSSICHERHEITSHAUPTAMTES (4th ed. 2003). 07 EARL .DOCX (DO NOT DELETE) 1/16/17 4:45 PM 2017] Legacies of Nuremberg SS-Einsatzgruppen after 70 Years 97 during the war.4 After much consideration of the evidence, the tribunal found all but one of the defendants guilty of crimes against humanity for their part in the murder of an estimated one million civilians.5 Four- teen defendants received the death penalty, seven received prison sen- tences, and one defendant was released with time served.6 With the ex- ception of an unusually large number of death sentences, on the face of it, this trial seems no different than any of the other Nuremberg trials— or was it? Here, I suggest that in the context of the postwar period, the Einsatzgruppen trial had a significant and lasting impact on our under- standing of the Holocaust, the European-wide murder of Jews. Unlike the IMT, the Einsatzgruppen trial more closely resembles modern day “perpetrator trials.” That is, trials designed to deal exclusively with in- dividuals whose criminal activity was their participation in atrocities committed against non-combatants or civilians. Whereas the IMT trial focused mainly on the charge of crimes against peace, the Einsatzgrup- pen trial focused on crimes against humanity, making it a template for later atrocity trials including those of major perpetrators such as: Adolf Eichmann (1961), Slobodan Milošević (2006) and Radovan Karadžić (2016). Lawrence Douglas has referred to this shift away from the crimes committed by a State against another State and crimes against peace, toward crimes committed against civilians as the “atrocity para- digm.” Today, the atrocity paradigm “dominates international criminal law.”7 Unlike the first Nuremberg trial or IMT which prosecuted former Nazis for crimes against peace, the Nuremberg SS-Einsatzgruppen trial, one of the twelve NMT, focused almost exclusively on the “Final Solu- tion to the Jewish Question” and the role of the defendants in their mur- der. From opening to closing statement, the Einsatzgruppen trial was devoted to constructing a narrative of Nazi genocide—defined by the prosecution as the deliberate and systematic targeting and murder of the 4. See HILARY EARL, THE NUREMBERG SS-EINSATZGRUPPEN TRIAL, 1945–1958: ATROCITY, LAW, AND HISTORY 217–52 (Cambridge Univ. Press 2009); see also Michael A. Musmanno, in THE PAPERS OF JUSTICE MICHAEL A. MUSMANNO (unpublished manuscript) (on file with Gumberg Library, Duquesne University, Pittsburgh, Pennsylvania) [hereinafter MMP]. 5. The prosecution used the reports of the Einsatzgruppen to estimate the number of civil- ians killed. This number is contested today. See Id. at 81–83. 6. Sentences, IV TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at 587–89 (U.S. Gov’t Printing Office Oct. 1946–Apr. 1949). 7. LAWRENCE DOUGLAS, From IMT to NMT: The Emergence of a Jurisprudence of Atrocity, in REASSESSING THE NUREMBERG MILITARY TRIBUNALS: TRANSITIONAL JUSTICE, TRIAL NARRATIVES, AND HISTORIOGRAPHY 288 (Kim Christian Priemel & Alexa Stiller eds., Berghahn 2012). 07 EARL .DOCX (DO NOT DELETE) 1/16/17 4:45 PM 98 Loy. L.A. Int’l & Comp. L. Rev. [Vol. 39:95 Jewish population in the occupied territories that culminated in their to- tal extermination—and the Einsatzgruppen’s role in it. It was a simple and powerful story in which Hitler’s hatred of the Jews as expressed in his own speeches, writings, and anti-Jewish policies, and his 1941 or- ders to the SS—the so-called Führerbefehl—led directly to the murder of European Jews.
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