Article 68 Judgment at Nuremberg Fifty years ago the trial of Nazi war criminals ended: the world had witnessed the rule of law invoked to punish unspeakable atrocities Robert Shnayerson In the war-shattered city of Nurem- Supreme Court to prosecute this case, filled six freight cars. Nearly all were berg, 51 years ago, an eloquent Ameri- quickly addressed in his opening state- ready to acknowledge the horrific facts can prosecutor named Robert H. Jackson ment. while cravenly assigning blame to oth- opened what he called “the first trial in With the kind of moral clarity that ers. (Göring, who died unrepentant, was history for crimes against the peace of marked American idealism at the time, the exception.) When it was all over in the world.” The setting was the once Jackson declared, “That four great na- October 1946, and ten defendants had lovely Bavarian city’s hastily refur- tions, flushed with victory and stung with been hanged messily in the Palace of Jus- bished Palace of Justice, an SS prison injury stay the hand of vengeance and vol- tice’s gymnasium, this first Nuremberg only eight months before. In the dock untarily submit their captive enemies to trial stood as the judicial Everest of those were 21 captured Nazi leaders, notably the judgment of the law is one of the most who hoped, as Jackson did, that the rule the fat, cunning drug addict Hermann significant tributes that Power ever has of law could punish, if not prevent, the Göring. paid to Reason.… The real complaining atrocities of war. Their alleged crimes, the ultimate in party at your bar is Civilization.… [It] The exercise of justice at Nuremberg 20th-century depravity, included the asks whether law is so laggard as to be ut- reverberates across this century. And mass murders of some six million Jews terly helpless to deal with crimes of this next month, on November 13 and 14, and millions of other human beings magnitude.” scholars will ponder the lessons of his- deemed “undesirable” by Adolf Hitler. So began, in November 1945, the tory at an international conference on the “The wrongs which we seek to condemn century’s most heroic attempt to achieve trials, sponsored by the Library of Con- and punish,” said Robert Jackson, “have justice without vengeance—heroic be- gress and the U.S. Holocaust Memorial been so calculated, so malignant and so cause the victors of World War II had ev- Museum. devastating, that civilization cannot tol- ery reason to destroy the vanquished How this trial, and the 12 that fol- erate their being ignored because it can- without pity. Heroic because they ulti- lowed, came to be held is a story in itself. not survive their being repeated.” mately resisted the temptation to impose In April 1944, two Jews who escaped the Here were satanic men like Ernst on the Germans what the Nazis had im- Auschwitz death camp described its hor- Kaltenbrunner, the scar-faced function- posed on their victims—collective guilt. rors to the world. They detailed Ger- ary second only to Heinrich Himmler in Instead, they granted their captives a pre- many’s technology of genocide, such as overseeing the death camps and the Nazi sumption of innocence and conducted a the camp’s four new gas-and-burn ma- police apparatus; Alfred Rosenberg, co- ten-month trial to determine their per- chines, each designed to kill 2,000 pris- founder of the Nazi Party and chief theo- sonal responsibility. oners at a time. They pinpointed a huge rist of anti-Semitism; and Hans Frank, Locked up in solitary cells each night, slave-labor operation at nearby Birk- the vicious and venal Nazi proconsul in constantly guarded by American M.P.’s enau, run by Germany’s fine old indus- Poland. At the time, many asked why mindful of recent suicides among high- trial names (I. G. Farben and Siemens such messengers of evil were to be al- ranking Nazis, the defendants spent their among others), where Allied prisoners lowed even one day in court, much less days in a giant courtroom built for 400 and kidnapped foreign laborers were fed the 403 sessions they were about to un- spectators, listening to evidence drawn so little and worked so hard that as many dergo. It was a question that Jackson, on from 300,000 affidavits and meticulous as one-third died every week. Their testi- leave from his job as a Justice of the U.S. German documents so voluminous they mony paved the way to Nuremberg. 1 ANNUAL EDITIONS UPI/Bettmann Archives Death camp images, such as this one from Buchenwald, helped convict Ernst Kaltenbrunner, Himmler’s deputy. Elie Wiesel, future chronicler of the Holocaust, is indicated by the arrow. The Allied leaders had little trouble find it was Murray Bernays, a 51-year- Before Nuremberg, jurisdiction over agreeing that German war crimes must old lawyer turned wartime Army colonel war crimes was limited to each country’s be punished. But punished how? Trea- in the Pentagon. military courts. After World War I, when sury Secretary Henry Morgenthau Jr. Immediately, a basic but legally com- the victors accused 896 Germans of seri- urged that all captured Nazi leaders be plex question rose to the fore—what is a ous war crimes, demanding their surren- shot immediately, without trial, and that war crime, anyway? At the end of the der to Allied military courts, the Germany be reduced to the status of an 19th century, the increased killing power Germans insisted on trying them and ac- agricultural backwater. Secretary of War of modern weapons led to the various cepted a mere 12 cases. Three defendants Henry Stimson thought dooming all Ger- Hague and Geneva conventions, binding never showed up; charges against three mans to a kind of national execution most great powers to treat civilians hu- others were dropped; the remaining six would not do. It violated the Allied (if manely, shun the killing of unarmed pris- got trivial sentences. not Soviet) belief in the rule of law. It oners and avoid ultimate weapons, such Bernays envisioned a different sce- would deny postwar Germany a working as germ warfare, “calculated to cause un- nario: an international court that held in- economy and perhaps, ultimately, breed necessary suffering.” Such “laws of war” dividuals liable for crimes the world another war. are quite frequently applied. They have deemed crimes, even if their nation had Roosevelt, who wanted to bring saved thousands of lives. In combat the approved or required those actions. The G.I.’s (and their votes) home promptly, basic distinction between legitimate war- accused could not plead obedience to su- sought a compromise between Mor- fare and atrocities occurs when acts of periors. They would be held personally genthau and Stimson. The man asked to violence exceed “military necessity.” responsible. 2 Article 68. Judgment at Nuremberg Other big questions remained. One was 5 feet 6 inches tall). His entourage ting in the dock guarded by young Amer- was how an international court trying included a nurse, four aides, two chauf- ican soldiers. Göring had shed 60 pounds war crimes could legally deal with feurs and five cooks. His fingernails and during his six months of confinement, crimes committed by the Nazis before toenails were painted bright red. His 16 acquiring what novelist John Dos Pas- the war. Another involved the sheer vol- monogrammed suitcases contained rare sos, reporting for Life, called “that ume of guilt. The dreaded Schutzstaffel, jewels, a red hatbox, frilly nightclothes wizened look of a leaky balloon of a fat or SS (in charge of intelligence, security and 20,000 paracodeine pills, a pain- man who has lost a great deal of weight.” and the extermination of undesirables), killer he had taken at the rate of about 40 Next to him in the front row were the and other large Nazi organizations in- pills a day. He managed to charm some ghostly Rudolf Hess, feigning amnesia; cluded hundreds of thousands of alleged of his captors to the point of almost for- Joachim von Ribbentrop, Hitler’s for- war criminals. How could they possibly getting his diabolism. eign minister; and Field Marshal Wil- be tried individually? Bernays suggested On August 8, 1945, the Charter of the helm Keitel, the Führer’s Wehrmacht putting Nazism and the entire Hitler era International Military Tribunal (IMT, chief. Next in order of indictment came on trial as a giant criminal conspiracy. In unveiled by the victorious Allies in Lon- Ernst Kaltenbrunner (ill and absent for a single stroke, this would create a kind don, declared aggressive war and inter- the first three weeks), Alfred Rosenberg of unified field theory of Nazi depravity, national crime. The IMT charter was and Hans Frank, who somehow thought eliminating time constraints, allowing grounded in the idea that Nazism was a his captors would spare his life when he prosecution of war crimes and prewar 26-year-long criminal conspiracy. Its handed over one of the trial’s most damn- crimes as well. He also suggested pick- aim: to build a war machine, satisfy Hit- ing documents—his 38-volume journal. ing a handful of top Nazi defendants as ler’s psychopathic hatred of Jews and (He would be sentenced to hang.) representatives of key Nazi organiza- turn Europe into a German empire. Throughout that first day, as black- tions like the SS. If the leaders were con- Judges representing the four powers (the robed American, British and French victed, members of their organizations United States, Great Britain, France and judges and their two uniformed Soviet would automatically be deemed guilty.