2. The Nuremberg and Tokyo Tribunals as a Volte-face

This is a translation of a lecture I gave at the Collège de France on 6 June 2019 as part of a series entitled The History and Future of International Criminal Justice. A video of the French-language original of this lecture is available online here.

A.         Overview

Members of the Collège de France, distinguished guests, ladies and gentlemen. Welcome to the second lecture on the history of international criminal law. 

Following on from our discussion last week about trials after the First World War, we will today discuss trials carried out after the Second World War.  In particular, I will focus on the Nuremberg trials using the themes I identified in the last lecture, notably, a narrative about the trials, the purposes of the processes, the political dimensions behind the trials, the alternatives to criminal prosecutions, the law and the consequences of these prosecutions.  

I have also researched and written about the Tokyo Tribunals. Because of limits of time, I will not address Tokyo here, but I am happy to answer questions about it at the end.  I hope you emerge with an understanding of, first, how the end of a major global war again produced a desire for international criminal law, second, how the forms of justice at Nuremberg were strong reactions against the failures we discussed last time, and third, how Nuremberg too embodies a major tension between morality and politics.

B.         Narrative Introduction to Trials Post WWI

I begin, then, with my first theme, which is a narrative overview of the Nuremberg Trials and their relationship with other criminal prosecutions after the Second World War. 

On 20 April 1942, representatives from the nine countries occupied by Germany met in London to draft the “Inter-Allied Resolution on German War Crimes”.  Over the following years, the major wartime powers agreed on the format of punishment for those responsible for war crimes during World War II.  

The legal basis for the trial was established by the London Charter, which was agreed upon by the four so-called Great Powers on 8 August 1945. The Nuremberg Tribunal was restricted to “punishment of the major war criminals of the European Axis countries”. 

The London Charter gave the Nuremberg Tribunal jurisdiction over, first, crimes against peace – the act of starting the war, second, war crimes – violations of the laws and customs of war while carrying out the war, and third, crimes against humanity – systematic violations of human rights including of their own nationals.  

Held between 20 November 1945 and 1 October 1946, the Tribunal accused 24 high-ranking Nazi party members, leading to twenty-one convictions and three acquittals. In retrospect, it is hard to fully understand how significant the trial was immediately after the war. The British Judge at Nuremberg called it “the greatest trial in history.”[1] Others described it as “the Ten Commandments, Magna Carta, and the Gettysburg Address all rolled into one.”[2] 

As part of this overview, I want to make three points.  

First, the trial of twenty four senior Nazi’s at Nuremberg was really the tip of a much larger iceberg. The four occupying powers staged a much larger number of trials for international crimes in courts established within the portions of Germany they occupied. The Allied Control Council issued its famous Control Council Law No. 10, creating a uniform legal basis for the prosecution of war criminals and other similar offenders in Germany by these different occupying forces.  

In their occupied zones, the Americans prosecuted slightly less than 2,000 Germans for international crimes; the French military tribunals convicted slightly more than this number. The British tried approximately 1,000 crimes; and the Russians organised a large number of prosecutions in Russian-occupied Germany that historians cannot quantify. 

Second, there were an enormous number of trials in national courts throughout Europe also. One of the leading historians of the Second World War, the Hungarian István Deák, reports “up to 2 to 3 percent of the population formerly under German occupation… was charged by national courts for collaboration with the enemy, treason, and war crimes”.[3] The use of the criminal law after the Second World War was clearly very extensive.  

With this very brief overview complete, I will move to the next of my themes.

C.         Purposes of Trials Post WWII

The second theme I use to frame this series of lectures is the purposes for these trials. As we saw with the Leipzig trials, the purposes announced for the trials at Nuremberg were numerous and the relationship between them was sometimes unclear. The Allies also issued warnings from London and Moscow about their intentions to prosecute international crimes, as a basis for deterring the perpetration of further crimes during the war.  I will not say more about deterrence here, because there are three purposes I would like to raise in greater detail. 

First, retribution based on moral outrage was again a primary motivation. As early as 1941, Churchill announced that retribution had become a core motivation for the war. He said “retribution for these crimes must henceforward take its place among the main purposes of the war.”[4] It was clear that moral outrage was the basis for this retributive spirit. In the Moscow Declaration of 1 November 1943, Churchill, Roosevelt and Stalin promised that those responsibility for atrocities would be brought to trial. Whereas high ranking Nazi’s would be tried in an international tribunal, they promised that others “will be brought back to the scene of their crimes and judged on the spot by the peoples whom they have outraged.”[5]  

As I argued in my previous lecture, many intuitively think of these motivations as base, but there are major philosophical defenses of retribution as a measured, proportionate response to moral outrage.  In addition, whatever one thinks about retribution as a basis for punishment, historically speaking, it has always been a one of the primary purposes for international trials.

The idea of moral absurdity was also employed after the Second War War. In the American Chief Prosecutor Robert Jackson’s opening statement at Nuremberg, he said: “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people.”  In other words, it would be morally absurd for only petty criminals to be punished by the criminal law if the very worst offending escaped justice.  

Citing morality again, Jackson’s opening speech argued that “the refuge of the defendants can be only their hope that international law will lag so far behind the moral sense of mankind that conduct which is crime in the moral sense must be regarded as innocent in law.”[6] As we saw at Leipzig, these moral absurdities are consistently used in attempts to advance the system of international criminal justice.

The last and new purpose I want to introduce here is regime change. It is important to note that the Nuremberg process was viewed as a key ingredient in de-nazifying Germany. There was a consensus that Germany needed to be reformed.  Robert Jackson believed that establishing a credible empirical record of Nazi atrocities would assist that process of De-nazification.  He and others also believed that by providing an example of a fair trial, Nuremberg could demonstrate the value of the rule of law. This was important because criminal justice had been such a major part of Nazi oppression. Jackson’s opening speech started with a famous expression of this idea. He said:

“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.”[7] 

Moreover, if Nuremberg could emphasize Rule of Law at a very high level, other laws could also be used to promote de-nazification.  As Maguire concludes “although the Nuremberg trials were the highest-profile legal proceedings, the vast majority of cases were tried by Allied denazification courts.”[8] 

One of the greatest purposes, however, was to avoid the terrible failure of trials after World War One.  As I mentioned during the last lecture, when the United Nations War Crimes Commission was established in 1943 to begin preparations for trials of Nazi’s, it’s Chairman announced that he was determined not to repeat “the fiasco of Leipzig.” As I will show momentarily, in many respects, Nuremberg would be the very opposite to Leipzig.

D.        Political Considerations

This brings us to my third theme, the political considerations with these trials. Here, we see the inverse of the failures of vanquished justice. Whatever good it did for the world, Nuremberg will forever remain known for the title Victor’s Justice.  In an abstract sense, this label just means that the victors used their power to impose criminal responsibility on their defeated enemy.  Morally and conceptually, this is objectionable because of the competing value of equality. As we will see in subsequent lectures, those pushing for accountability after Nuremberg would try to cure this one-sidedness. For now, I want to highlight three examples of what victor’s justice meant politically at the time. 

First, it is clear that the Allies were responsible for moral outrages too. Britain, for example, had carried out a sustained campaign of fire bombing of both Germany and Japan, killing hundreds of thousands of people.[9] They called this “morale bombing,” assuming that if you terrorized local populations, they would stop supporting the war. This assumption proved false. 

I will come back to Stalin’s responsibility for international crimes within Russia at the end of this lecture, but Russia’s responsibility for international crimes even arose within the Nuremberg Judgment. Russia had executed 11,000 Polish officers in the Katyn Forest.  Initially, this massacre was charged to Germans at Nuremberg, but the event did not feature in the judgement because it became evident that Russia and not Germany was responsible for the massacre.  Similarly, the historian Tony Judt reports that approximately 90,000 women sought medical assistance for rape in Berlin after Russian forces captured the city in 1945.[10] 

Uncomfortable parallels with colonialism also emerged throughout WWII trials. For instance, when Allied prosecutors quizzed Hermann Göring about lebensraum, the political concept that served as a pretext for Nazi expansionism, Göring remarked: “I fully understand that the four signatory powers [to the Charter] who call three quarters of the world their own explain the idea differently.”[11] Likewise, even Robert Jackson could not ignore the parallel between his cases against German industrialists for pillaging natural resources like coal, oil, and manganese from Occupied Europe and colonial practices. In a letter to President Truman written during the Nuremberg process, Jackson remarked cynically, “we are prosecuting pillage and our allies are practicing it.”[12]  

In other terms, Victor’s justice means that only part of the justice takes place, and that power decides which half.

E.         Alternatives to Prosecutions

This brings us to the fourth theme I hoped to discuss, that is alternatives to prosecution. At Nuremberg, the major alternative was summary executions. 

Apparently, during negotiations between Stalin, Churchill and Roosevelt at Yalta, Stalin suggested that the Allies should summarily execute 50,000 German officers.  Churchill had an associate named Lord Simon prepare a memorandum to this effect.  

On 15 September 1944, Churchill met with Roosevelt in Quebec where President Roosevelt approved a memorandum stating that “The President [of the United States] and Prime Minister [of Great Britain] have agreed to put to marshal Stalin Lord Simon’s proposal for dealing with the major war criminals.”[13]

In an example of the volte face, whereas Churchill was opposed to mass executions after the First World War, he actively endorsed them after the Second World War. 

On the same day as Churchill and Roosevelt agreed to the Simon Plan, the two leaders also approved another plan written by the American Secretary of the Treasury, Henry Morgenthau.  The Morgenthau plan proposed removing all industry from Germany, reducing Germany to an agrarian society.  The Morgenthau Plan also proposed the summary execution of “arc-criminals” in occupied Germany. 

In fact, according to Robert Jackson, individuals within the US government even suggested turning over as many as half a million young Germans to the Soviet Union for ‘labour reparations.”[14]  Interestingly, a version of the Morgenthau Plan was leaked to the press in the United States, and a mass public outcry there led to the abandonment of the plan.[15]  

In all likelihood, the fact that Germans heard of the plan played a major role in its abandonment too. The Nazi government used the Morgenthau Plan for propaganda in the final months of the war to convince Germans to continue fighting. Goebels published an article in a German paper entitled “Roosevelt and Churchill Agree to Jewish Murder Plan!”[16]  

Faced with indiscriminate killing, the Germans fought far more fiercely. Apparently, the idea of trials based on wartime responsibility allowed Germans who were against Hitler to support the Allies, but mass executions did not. Perhaps here, international criminal justice had a pacifying influence.

F.         The Law

We come to the fifth principal theme I use to explore these histories, the law.  

Here, we again see a major volte-face by the same personalities involved in discussions about international criminal justice after the First World War.  As an initial observation, Churchill was very reluctant about criminal prosecutions after the Second World War, preferring executions until the very last moment.  He preferred these executions even after Stalin and Roosevelt were against them. So while Churchill was a strong supporter of international criminal trials after the First World War, his opinion had changed quite drastically by the time the end of the Second World War was approaching. 

Another major change came in discussions about whether Nuremberg would involve retroactive law. Recall that after the First World War, it was the Americans and Dutch who were strongly opposed to creating an international criminal tribunal to try the Kaiser.[17]  Recall also that the fact that this tribunal would create retroactive law was a crucial reason why they adopted these positions.  I cited Woodrow Wilson and others, who were opposed to retroactive law as a matter of principal.  And yet, after Nuremberg, the roles are reversed and exactly the same legal principles are declared law by those who had opposed them earlier. 

This is surprising because almost nothing had happened in the inter-war years to change the legality of aggression, crimes against humanity and war crimes to justify this change of position.  

The Nuremberg court concluded that the prohibition on retroactive law is a principle of justice to be weighed against others. Most importantly, “it would be unjust if this wrong were allowed to go unpunished.”[18] This reasoning had very important consequences. 

First, the transformation of treaties between governments into criminal law codes was important and very controversial. Let me focus on the crime of aggression, which is also known as a crime against peace, since it is relevant to our later lectures. 

In 1928, sixty-three nations signed the so-called Kellogg-Briand Pact, which made going to war illegal. But the Pact said nothing about criminal responsibility for violating the pact, nor about making soldiers, politicians or businesspeople personally responsible for the violations.  Up until that time, all international law was focused on relationships between states, not the criminal responsibility of individuals. 

In an exceptionally bold move, the Nuremberg Tribunal swept this all away in a single sentence. The Tribunal famously stated “crimes against international law are committed by men, not abstract entities.”[19]  Aggression became an international crime, even though there was no precedent for this apart from discussions after the First World War.  As we will see, this legal creativity would have an enormous effect on the world for decades to come. 

Second, the law was applied to businesspeople also. Originally, there were plans to hold two Nuremberg trials. After the first Nuremberg trial, the Allies wanted to stage a second focusing on the industrialists who had assisted or instigated Nazi expansionism by providing weapons, financing war, or pillaging natural resources from occupied Europe.[20]  This second trial never took place, largely because the Allies came to see German businesses as an important friend in the Cold War.  

Nevertheless, the main Nuremberg trial found Walter Funk responsible for pillaging natural resources in his capacity as President of the Continental Oil Company.[21]  Similarly, military courts set up by both the United States, France and Russia in Occupied Germany tried a number of other businesspeople from companies like IG Farben, Flick, Krupp and the producers of the chemical Zyklon B. [22] These cases were significant for several reasons. As we will see in our next two lectures, subsequent international courts would not replicate cases against businesspeople afterwards.

G.        Consequences of Trials

Finally, we come to the sixth principal theme, the consequences of these trials. Again, I will attempt to be balanced, offering positive consequences as well as a more critical perspective.  

First, the Nuremberg trial is literally a monument. If you ever go to Nuremberg, I highly recommend that you go to the Nuremberg Colloseum, which was the Nazi party rally grounds.  In my view, seeing this colloseum alone is worth the trip.  I will not ruin the surprise for you by sharing why, except to say that the colloseum is preserved as a monument to shame. When I was there, I asked myself how many other countries have these.  The Nuremberg trials are also a monument to shame. They were a history lesson that really defined Germany and the world. 

Second, the Nuremberg trials had a major effect on morality. The Medical Case, for example, radically changed medical ethics. The medical case was one of the first trials brought by the United States within its occupied zone pursuant to Control Council Law No. 10.  The trial of twenty-three Nazi doctors took place in the same courtroom at Nuremberg.  The allegations involved twelve different sorts of medical experiments on individuals held in concentration camps. 

Reading through just the list of accusations is an extremely frightening experience. To do so produces feelings of moral shock and outrage that are such a key part of international criminal justice.  It is, quite literally, disgusting. In fact, many, I suspect, will read these allegations and argue that the defendants should be punished for moral reasons, regardless of the political considerations.  My main point with this illustration, however, is that the case led to major changes in the medical profession around the world, particularly the rise of informed consent as a basis for all medical procedures. 

Third, the Nuremberg trials affected our sense of responsibility. As the legal philosopher David Luban has argued, Nuremberg was a moral revolution.[23]  Luban points to a combination of several legal rules, including the idea of individual responsibility, the rule that superior offenses are no defense and the inability to cite national law to excuse oneself.  As Luban points out, this combination of rules set us all against our own superiors, societies and governments. It makes us answerable to our own consciences. It asks us to decide for ourselves, and demands far greater courage of us.  When the American Edward Snowden justified his disclosure of mass surveillance, he cited the Nuremberg trials.  

But what of the negative consequences? If the Nuremberg trials are a monument that ask us to remember, what do they ask us to forget?  Is it possible that the Nuremberg Trials are partly responsible for the denial we experience in our societies about Allied Atrocities during the Second World War?[24] How is it, for instance, that the deliberate campaign of firebombing both Germany and Japan, that killed hundreds of thousands of people, is reduced to a single incident in Dresden? Even the Dresden incident does not feature much in these discussions.  And what of Hiroshima, Nagasaki, and the ways our own societies were either complicit in or indifferent to the Holocaust. 

Perhaps Nuremberg helped us avoid that sense of responsibility, which underscores why it was Victor’s Justice.

H.        Conclusion

In conclusion, I hope you see how this history supports the theses I announced at the beginning of the first lecture.  I argued that the history of international criminal justice is often a reaction to the failures of a previous iteration of itself.  After the Second World War, we saw Churchill changing his mind completely about the benefits of trials as compared with executions.  After the First World War, he was for trials and against executions. Both changed. Likewise, the American and Dutch concerns about retroactive law, that prevented the trial of the Kaiser after the First World War were inversed after the Second. All of this is mere repetition. 

But I will finish with an illustration of another of my theses, the idea that international criminal justice is characterized by an inescapable tension between morality and politics.  In his famous book the Gulag Archepelago, the Russian author and dissident Aleksandr Solzhenitsyn writes the following: 

“we will not do any of the things they did! But for the sake of our country and our children we have the duty to seek them all out and bring them all to trial!”[25]  

Much later, he also wrote the following: 

“no sooner did the first war crimes trial take place – the Nazis at Nuremberg – then we saw, elevated high upon the judges’ bench, the unblemished administrators of a justice system that during those same years handed over to torture, execution and untimely death tens of millions of innocent lives in its own country.”[26] 

At first, one is tempted to conclude that Solzhenitsyn became disillusioned with international criminal justice just like Churchill.  Personally, I prefer to read him as capturing the essence of this field.  That essence is the ability to hold together the crucial moral importance of accountability with the obvious evidence of political inequality.   In our next lecture, we will explore modern attempts to address this tension after the Cold War.

[1] James Owen, Nuremberg: Evil on Trial 98 (2007).

[2] Michael Biddiss, The Nuremberg Trial: Two Exercises in Judgment, 16 J. Contemp. Hist. 597–615, 611 (1981).

[3] István Deák, Intorduction, in The Politics of Retribution in Europe: World War II and its Aftermath 3–14, 4 (István Deák, Jan Tomasz Gross, & Tony Judt eds., 2000).

[4] See Sheldon Glueck, The Nuernberg Trial and Aggressive War, in Perspectives on the Nuremberg Trial , 90 (Guénaël Mettraux ed., 2008).

[5] Declaration of German Atrocities, Nov. I, 1943, reprinted in 38 AJIL (Supp.) 3, 7-8 (1944). 

[6] Jackson Robert, Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, 1945 (1949), www.loc.gov/rr/frd/Military_Law/pdf/jackson-rpt-military-trials.pdf.

[7] Id.

[8] Peter Maguire, Law and War: International Law and American History 114 (revised edition edition ed. 2010).

[9] See, for example, Freeman J. Dyson, Weapons and hope (1984).

[10] Tony Judt, The Past is Another Country: Myth and Memory in Postwar Europe, in The Politics of Retribution in Europe: World War II and its Aftermath 293–324, 294 (István Deák, Jan Tomasz Gross, & Tony Judt eds., 2000).

[11] Gerry Simpson, Law, War and Crime : War Crimes Trials and the Reinvention of International Law 95 (2007).

[12] See David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics 29 (2014).

[13] See Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 31 (2013).

[14] Bradley F. Smith, The Road to Nuremberg 23 (1981).

[15] Taylor, supra note 13 at 34.

[16] Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World 256 (2017).

[17] William A. Schabas, The Trial of the Kaiser (2018).

[18] Judgment of October 1, 1946, International Military Tribunal Judgment and Sentence, 1 Trial Of Major War Criminals Before The International Military Tribunal (1947), at 219

[19] Id., at 223.

[20] See James G. Stewart, Corporate War Crimes: Prosecuting Pillage of Natural Resources (2010), http://ssrn.com/abstract=1875053.

[21] See Id.

[22] See Id.

[23] David Luban, The Legacies of Nuremberg, 54 Soc. Res. 779–829 (1987).

[24] See generally, Stanley Cohen, States of Denial: Knowing about Atrocities and Suffering (2013).

[25] Aleksandr I. Solzhenitsyn, The Gulag Archipelago, 1918-1956: Volume One 177 (1997).

[26] Aleksandr I. Solzhenitsyn, The March of the Hypocrites, The London Times, August 21, 1997.