It’s been almost 70 years since the end of World War II and I have to tell you, aspects of it still bother me.  No, not just the atrocities and unnecessary deaths, but the aftermath, the adjudication by the victors.  We have discussed it before – win the war and you control how history is written. 

Which makes the subject of my latest scholarly exploration so troubling.  When WWII ended, the Allies felt it was imperative that the leaders of the German government be subjected to legal process to determine whether they should be punished for their “crimes.”  What was borne of that need was the Nuremberg War Crimes trial. 

Now, here is where I struggled.  The warring factions of my person, me as a Jew versus me as an attorney, were tested.  Because Rob the Jew, needing revenge, found the trial to be too good for the German high commanders.  They certainly did not allow the six million Jews that they eradicated defend themselves in a trial or argue for their lives.  So why should such civil liberties be granted to these monsters.  But Rob the Attorney…?  Well, there is a different perception altogether.  Looking back on it almost 70 years later, Rob the Attorney is having a difficult time viewing the trial as anything other than a farce.

First, as always, I offer a caveat.  I am no expert on the trial, its derivations, or its after-effects.  It can be argued that the trial, though imperfect, served as a necessary precedence for later war crimes trials, whether for crimes during the Vietnam War or those in the former Yugoslavia.  But the trial itself, viewed from the standpoint of legal scholarship, very easily could be perceived as preposterous.

As a result of the need to create a forum for the prosecution of the German leaders, the U.S. basically created a judicial system from scratch.  They wrote the rules, they created the procedure, and they hired the judges.  One might argue, even, that they stacked the deck against the potential defendants.  Yet, through the process of creating this judicial system, they had to find ways around fundamental tenets of moral law. 

First was the issue of the retroactive ratification of the laws on which the defendants were tried.  Article 1, Section 9 of the United States Constitution prohibits the passage of any ex post facto law.  Do you remember from 12th Grade Government class what that means?  It basically prohibits the law of retroactivity.  The government cannot criminalize an action that was legal when the action was committed. 

No matter which way you cut it, the Nuremberg trial was one of retroactivity and the justices at the trial struggled with this and scholars continue to struggle today.  At the time the Nazis rose to power and began their charge for world domination, there were no laws prohibiting these aggressive acts.  There was no “world constitution” or over-arching body that governed all countries.  But the justices had to find a way to characterize the actions of the Nazis as crimes.  So they created charges that were, minimally, related to violations of previously executed treaties or agreements between nations.  Then they created a subset of laws that dealt specifically with the atrocities themselves, the crimes against humanity.

Point one.  When you win the war, you can create the laws.

The second issue with which the justices had to wrestle was what the adjudicators called “tu quoque.”  In its simplest terms, it’s the “I know you are but what am I” defense.  Regardless of the testimony and evidence, the defendants were proscribed from asserting as a defense that whatever the Nazis’ actions, the Allies were no better.  If the accusation was that the SS murdered millions of women and children, they could not argue in defense that the United States killed thousands of women and children by dropping the atomic bombs on Hiroshima and Nagasaki and that the Americans were no better than the Germans.

Point two.  If you won the war, then the methods you employed to prevail were appropriate.

The two legal conundrums that faced the creators of the tribunal were addressed in the only sensible manner; they were basically ignored.  It was believed that there was a yearning for judgment to be passed on the progenitors of this terrible war and so the “legal” barriers were effectively swept under the rug.

As an attorney, this bothers me.

I will make one admission.  I believe that the trial itself was prosecuted with the most upstanding of intentions.  I don’t see the trial as a public lynching with predetermined verdicts.  In fact, quite a few acquittals were handed out.  But seriously, how would it have looked to the rest of the world if no convictions were handed down?  Every aspect of the trial, from the laws to the procedures to the judges themselves, was handpicked and choreographed.  It could not fail.  The defendants did not stand a chance.  Sure they deserved every punishment they received, but the method of examination of the crimes was flawed. 

Did they do the best they could?  Well, in that respect I am not so sure.  I think that some part of me feels that the greatest legal minds of that age failed while another part of me wonders what could have been done differently.  Not that I have any better suggestions, but the United States had never been in this position before.

I tried to think of another situation in which the U.S. was faced with a similar quandary.  I found only one (although I am sure there are others).  In 1865, after the Civil War had ended the U.S. attempted to address the actions of Jefferson Davis and the government of the Confederate States of America.  Jefferson Davis was a war criminal after all, wasn’t he?  He instituted a war of aggression and was indicted for the crime of treason.  So what happened?  Nothing.  He was imprisoned for two years while awaiting trial, was released on bail, and the charges were dropped in 1869.  So the U.S. track record wasn’t so great.

The passage of time, though, has done nothing to assist the perception of the Nuremberg trial.  As more is learned about the Nazi party, its rise and its cruelty, it creates the perception that the Nuremberg trial was nothing short of anti-climactic.  Our education of the Nazis and WWII has focused on the names of Adolf Hitler, Adolf Eichman, Heinrich Himmler, Joseph Goebbels, Leni Reifenstahl, and Reinhard Heydrich.  Can you guess how many of those people were tried and sentenced at the Nuremberg trial?  The answer is zero.

Instead, the trial focused on, amongst others, these names:  Sauckel, Seyss-Inquart, Rosenberg, Keitel, Donitz and Frick.  Any of those names ring a bell?

No, of course not.  And why?  Because our study of this era in history has focused on the egotism and narcissism of Hitler and his close cadre of like-minded villains.  Looking back on it now, we know that the defendants in the Nuremberg trial, for the most part, were without options.  They couldn’t stand up to Hitler.  They couldn’t argue with him or challenge him.  Sure they agreed with him, but if Hitler had said that his mission in life was to paint all of Germany pink, they would have put on their painters’ hats and grabbed brushes.  We now know that if any of them had demurred, had resisted the directives to build concentration camps and execute Jews, they simply would have been killed themselves or reassigned and the next person in line given the order. 

But Hitler and Himmler and Goebbels and countless other cowards committed suicide, preventing the Jewish people and the Allied powers their pound of flesh for the millions of lives lost at the hands of these monsters.  Hitler and his cronies adopted a reign of terror that would place have placed even Robespierre himself in fear for his life and the world (it was perceived) needed an outlet to punish and the war crimes trial was concocted.

The more history that is unearthed about Hitler and his supremacy, the more trivial the actions of the defendants of the Nuremberg trial certainly seem.  They were sheep.  They were followers.  They were not original thinkers.  They were lackeys who were left holding the keys when Hitler and his closest confidantes took the cowardly way out.

And yet, at the end of the day, was justice served?  As an attorney, do I feel like the good guys won and the bad guys received their just desserts?  It is hard to say no; though it certainly makes you wonder if it was all just an act to show the world that something was being done to punish the aggressors.  Admittedly, the punishment that was meted out on Germany after World War I only served to give Hitler a basis for his rise to power.  Many believe that WWII would not have happened had the Treaty of Versailles and the German reparations not been so onerous and disastrous to the German economy.  So was this a worthy alternative?  Instead of simply punishing the nation, the world punished the individuals who promulgated the war and its atrocities.  I guess it makes sense.

But I can’t say that I, as an attorney, am entirely comfortable with it.


I know this was a bit long, but thanks for sticking with me.  I would be interested in your thoughts if you have any.  Feel free to post them on the website of email me back.  I certainly don’t have all of the answers…

Have a great week.