The Nuremberg Trials Revisited

"At his best, man is the noblest of all animals; separated from law and justice he is the worst." -Aristotle

After recently releasing my 7 part mini-series on the Nuremberg Trials, I found myself pondering the topics I had presented on the podcast:

• Were the trials conducted justly?

• Can the sentences be understood as fair?

• Did the Allies embrace a “Victor’s Justice”?

• And what actually occurred surrounding some of the more notable events (i.e. Goering’s last-minute suicide, Hess’ possible insanity, and Speer’s closing remarks)

Allow me to explain myself more clearly while we dig beneath the historical account of the most significant trial in human history, and get to the conceptual roots of its intent, conduct, and result.

NOTE: This is not an attempt to invalidate the Trials themselves for the sake of some ulterior motive. Rather my purpose is to understand its shortcomings, conduct, nuances, and events so as to better appreciate it in totality. I welcome all refutations of the ideas presented.

Justice Served?

The alleged ideal of the Nuremberg proceedings was to serve justice to the Nazis for the death, destruction and chaos they had inflicted upon the near entirety of Europe. As is commonly accepted, around 60 million casualties were suffered from World War II and it remains the deadliest conflict in world history.

The Allies wanted someone to be held accountable for the wartime chaos while, simultaneously, they could delegitimize the ideologies that created the destructive leviathan of the National Socialist State.

But was the trial justly conducted?

Firstly, the trial was based on American and British legal courtroom proceedings. This was much different from the German legal tradition prior to Nazi Germany where there were not the same procedures in regards to cross-examination. So the dozens of German lawyers who were representing the Nazi defendants were not proficient in the style of proceedings they would be governed by. This was an obstacle they frequently stumbled over and, in retrospect, may have cost their clients their lives.

Next was the fact that the Allies picked the judges for the International Military Tribunal (IMT) themselves. Though they likely picked as impartially as they could (given the circumstances of having endured a deadly and costly war for 6 years), they automatically had the upper hand because no German judges were appointed (and this was despite Germany being the host country). I suppose they couldn’t find any impartial judges, or they were worried it would end up like the lacklustre Leipzig Trials of 1920?

Regardless, the even more damning aspect of the Trial is that a Soviet judge, Iona Nikitchenko, was appointed. This was a man whose resume included presiding over Stalin’s brutal show trials and thus had thousands of deaths staining his robes. I suppose the Allies felt obligated to appoint Soviet judges because they did help cripple Nazism in Eastern Europe and paid the butcher's bill for the majority of deaths. But does this damn the trials a major asterisk regarding totalitarian influence?

The Nuremberg Charter itself (the document governing the proceedings) could be critiqued for the elements it incorporated. Namely that a “Superior Orders” doctrine was inadmissible, that “Tu Quoque” defences would be forbidden, and that references to the Treaty of Versailles were not to be included in defence cases. This neutered the German defence lawyers and almost forced their hands into either creating elaborate lies like Goering, or outright admitting their guilt like Jodl. As a thought experiment, consider the Covid Pandemic and how many people were just following orders with masks, lockdowns, vaccines, social distancing, and vaccines. How many would’ve actually followed health orders if there wasn’t top-down coercion? Thus shouldn’t a “following orders” defence have been permissible on a case by case basis?

Another point is that the Allied prosecution seemed to hold an overwhelming majority of the evidence. A fact they toyed with by admitting pieces that helped their case while ignoring, and possibly suppressing, those that hurt it. Even further still on this front, the Soviet delegation admitted evidence that was completely fictitious and only served to blame the Nazis for the results of Stalinist purges. Again we return to the idea that the Soviet regime also committed mass atrocities during the war, but happened to be on the winning side of the ledger (after their initial Molotov-Ribbentrop pact to divide and conquer Poland collapsed).

We then arrive at the concept of “ex-post-facto law”. Which leads us to one of the great conundrums of the trial itself: That though the guilt of the sentenced parties is generally considered beyond doubt, were their actions illegal when they committed the offences?

As a German jurist insisted in the 1960’s book “The Frankfurt Auschwitz Trial”:

“That the defendants at Nuremberg were held responsible, condemned and punished, will seem to most of us initially as a kind of historical justice. However, no one who takes the question of guilt seriously will be content with this sensibility. Justice is not served when the guilty parties are punished in any old way, even if this seems appropriate concerning their measure of guilt. Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge”

The British delegation argued that they had signed the Kellogg-Briand Pact and were a subject of the Geneva Convention Protocols of1925, but if they disregarded them as a matter of national determination, however evil it may have been, was it technically illegal? Was the USA ignoring the UN Security council and aggressing warfare against Iraq, on false pretenses, a similar act? Should President Bush and his cabinet be brought before an IMT? As Noam Chomsky has famously stated, “If the Nuremberg laws were applied, then every post-war American president would have been hanged. By violation of the Nuremberg Laws, I mean the same kind of crimes for which people were hanged in Nuremberg.”

Crime & Punishment

More questions I would rhetorically pose revolve around the sentences…were they issued fairly among the defendants?

In this vein, I would wonder aloud whether the military men, not the SS men, should have been issued death penalties for their crimes. They would be uniquely dedicated to their statist ideology and put their entire self-worth/identity into being an obedient and efficient agent of the military hierarchy. They predicated their existence upon unwavering loyalty to the flag regardless of what leader is in place. And if they still did deserve to die (for their involvement in extra-militaristic pursuits) should they have been granted a firing squad execution as many openly wanted? Again the trend seems to favour a purely retributive form of justice as opposed to a restorative variety.

On a different moral question, we have Julius Streicher. A vile and smut peddling propagandist for sure, but one who, as far as I can reckon, had no documented incidents of violent acts towards others. His words may have inspired hateful and murderous events (perhaps, but did they incite or instill hate? Or merely create a baseline grievance), but he didn’t participate and had no hand in planning the wars across Europe.

This issue really boils down to the morality of free speech and its abuses. It would seem that if you advocate for “Hate Speech Laws” then you are in the same ballpark as the Nazis themselves who silenced Jewish speech they felt was hateful towards Germans. The Americans had the First Amendment as their guiding ideal, and the British of the time almost as much so, but could it have been a purely Soviet insistence? They were the only faction that didn’t allow free speech in their country. Did they expect that had they allowed Streicher to live, he would become a dangerous voice from within prison walls? One who could undermine the Allies and their Marshall plan?

If this was the case then why did Hans Fritzsche get acquitted? He was also a media man who worked in the Propaganda Ministry and was with Hitler in the bunker until the final days.

To the Victor the Spoils

Another lingering question for Nuremberg is that of imposing a victor’s justice.

As Chief Justice of the United States Supreme Court at the time, Harlan Fiske Stone, called the Nuremberg trials a "fraud". He went on to explain that:

"[Chief U.S. prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg[.] I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas”.

In this vein, one recalls the prohibition on Tu Quoque defences, but could still create a list of Allied crimes and problematic realities that undermine the ideal they were allegedly trying to uphold with the Trials.

There was the British bombing of a defenceless Dresden, the Soviet mass executions of German soldiers, and the incineration of a quarter-million people by US nuclear weapons are the heaviest hitters. This is not to mention the Soviet gulags that jailed around 1.6 million “prisoners”, the US internment camps for 120,000 Japanese Americans and the racially segregated armies units they put forth, and the rejection of Jewish refugees from Europe throughout the war.

Now one could argue that potential Allied war crimes were mitigated by their relative scale compared to the Nazis. This would be true for the US and Britain most certainly, but it does not account for the Russian brutality. Yet despite their deplorable actions throughout the war, they were still able to hold sway over the Nuremberg proceedings. Which begs the question of whether bowing to their insistences left a black mark on the Trial itself?

Grab Bag Questions

Furthermore, there are just a few items I’m not as clear about that I’d otherwise like to be.

The first is Albert Speer’s closing remarks and whether he was laying out his guttural convictions as a born-again humanist, or was this pure opportunism when he saw an opening for some judicial pity?

His remarks actually preceded, and somewhat prophesied, the Eisenhower farewell speech on the “Military Industrial Complex”. So he was intelligent enough to grasp where the world was heading so does this also mean he was clever enough to just enough of the right things, and appeal to Western culture, to save his neck from the noose?

Then there is the question of Rudolf Hess’ sanity throughout the trial. Was he really as unbalanced as he seemed or simply an eccentric and animated individual? He did present some strange theories in his final statement to the judges wherein he seemed to be insinuating that his fellow prisoners and captors had either been drugged or hypnotized and he was the only one privy to this fact.

Another mystery I’m not entirely certain about is the death of Herman Goering just hours before his hanging execution was set to take place. Did he have it with him hidden in his cell the entire time or did a guard slip it to him out of some strange friendship in the final days? Any insights into what happened with this event would be greatly appreciated.

Similarly, I will be seeking out Nuremberg experts in the attempt to record a follow-up podcast where I can pose these questions and have them explained by an expert.

I will keep everyone posted as to how this goes.

Thanks for your time and feel free to reach out if you can offer any information or introduce me to someone who can fill in my knowledge gaps.