The Nuremberg trial of major war criminals began sixty years ago yesterday, and so quotations of Robert Jackson’s famous opening statement are obligatory.
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.
It must be remembered that the tribunal was charged with enforcing the London Charter, which had been created by the victors fifteen months earlier. The victors had had to decide what to do about Germany. One seriously considered proposal was to convert it to an agrarian republic. Another possibility was to disarm it, demand reparations, and otherwise let it go about its business. Or one could choose any point in between. The eventual decision, embodied partly in the London Charter, represented a midpoint. One could not shoot or starve everyone in Germany; that would just create a never-ending administrative hassle for the rest of the world, a Sudan or Afghanistan in the heart of Europe. Nor could one let Germany go about its business, though that was the usual postwar practice during the preceding century. Germany remained too dangerous and vast populations cried for vengeance. The midpoint solution avoided two dangers – the danger of a united, powerful, and resentful Germany (as existed after World War I) and the danger of anarchy that would spill across borders.
The four great nations presented a sensible, politically expedient decision as a moral judgment, as all nations, great and little, always do. The captive enemies were not submitted to the judgment of the law, but to the judgment of the London Charter – that is, a policy paper. It was novel and interesting to have lawyers and judges enforce this policy rather than leaving enforcement to military or civilian administrators, and this no doubt reduced error (at the price of creating cumbersome procedures that were eventually circumvented). But the reduction of error advanced the administrative goals of the great nations as well as the hopes of defendants, for it ensured that the policy judgment reflected in the London Charter would be implemented accurately rather than poorly.
The idea that enforcing the London Charter has anything to do with law is a puzzling one. If George Bush and Dick Cheney ordered American soldiers to summarily execute their Democratic opponents, we would certainly call that lawless. If, instead, they first signed a document they called the Washington Charter which directed the criminal justice system to convict and execute anyone who was a member of the Democratic party after a fair hearing ensured that defendants were really Democrats and not mistakenly detained Republicans or independents, that would be no less lawless. Involvement of lawyers and judges does not convert an administrative procedure into a legal procedure, much less convert a political act into a tribute to Reason, at least not in any morally important sense.
Previous wars going back a century had ended with, at worst, punitive reparations and loss of some territory, but usually in a political settlement. With this as the baseline, the Germans might have been forgiven for wondering just how the hand of vengeance had been stayed. Even before the war ended, the Soviets had massacred thousands of German POWs, and the western allies had killed hundreds of thousands of civilians by carpet bombing cities with incendiary explosives. For the British, this was in part an act of revenge for the German bombing of British cities. After the war ended, Russian troops raped two million German women, removed the industrial plant of East Germany to the Soviet Union, and put more than three million German POWs to work in the Soviet gulag, where more than one million died. Some were not released until the mid 1950s. German civilians starved and died of disease for quite a while after the end of the war, and millions of ethnic Germans were expelled from foreign territories with the acquiescence of the allied nations (what today we would call “ethnic cleansing”). The country was eventually divided into two pieces, one of which was placed under a dictatorship that would be the puppet of the Soviet Union for decades. All of this was going on, or was foreseeable, while the Nuremberg trial ground on, and the contrast between the high-toned rhetoric at the trial and the actual facts could not have been lost on the Germans. True, the victors had it in their power to kill all the Germans as the Germans had tried to kill all the Jews, and refrained from taking advantage of this opportunity. But if this a tribute to Reason, it is a very miserly one.
Jackson was too intellectually honest to be a master propagandist, and in one striking passage he lifted the curtain:
What makes this inquest significant is that these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.
It’s as though we said to ordinary criminals, “we’re not prosecuting you because you committed a crime, we’re prosecuting you because you ‘represent criminality.’” We don’t say this because, resource constraints aside, we are committed to punishing people who commit crimes, and so don’t content ourselves with selecting representative criminals for prosecution. (Otherwise, we don’t call it crime.) But for the reasons given earlier, this was not an option in postwar Germany. To punish everyone who was culpable would have been impracticable; to punish only those who were most culpable would have been impossible. So a few of the culpable were singled out for trial and execution, in the quite utopian hope that this would discourage the forces of militarism and nationalism of which these defendants were “symbols.” Germany had to survive as a nation state, at some point on its own, and this could happen only if thousands of culpable nationalists and militarists were permitted to resume ordinary life.
Jackson did the best he could with the materials at hand, and one can hardly fault him if his words are most appealing to those who remember his speech but forget the war that produced it or the events that followed it. There is little evidence that Nuremberg had any desirable effect beyond its immediate but generally discounted function of eliminating a small number of potential troublemakers (a function discounted by Jackson himself, who said a few lines earlier that “their personal capacity for evil is forever past”). It did not teach the Germans the error of their ways (that had already occurred to them when their cities were demolished), it did not improve the morale of the allies who were plunging into the cold war, and, most important, it did not establish an effective international rule of law that would constrain states over the next half century. It did create unrealistic expectations about the possibility of international justice that continually fail to be realized and yet somehow persist. The Nuremberg trial might have been sensible from an administrative perspective or from a public relations perspective. It might have been politically shrewd under difficult circumstances. But it was not a great moral victory, much less a vindication of the rule of law.