Judgment at Nuremberg: An Exchange

To the Editors:

István Deák’s suggestion [NYR, October 7, 1993] that justice at Nuremberg might better have been served by allowing the Germans themselves to run the trials overlooks two central Allied doctrines that shaped postwar policy toward the defeated Nazi state. First was the doctrine of “unconditional surrender,” which ruled out negotiations with, or even encouragement of, any anti-Hitler opposition within Germany while the war was still being fought. This meant that, after the war, we did not have a cadre of “good Germans” in place who could have assumed this kind of higher moral authority and passed judgment over their discredited Nazi countrymen.

On top of this was the somewhat more dubious doctrine of “collective guilt,” designed to ensure that the great mass of the German people did not evade accountability for the war (and its crimes) by contending it was all the fault of their leaders. Once this policy had been promulgated it would have been logically and morally contradictory to declare some Germans capable of trying others for atrocities committed, allegedly, in the name of the German people. This is not to say that Prof. Deák’s idea is, in principle, a bad one, only that it simply could not have been realized in light of official Allied attitudes at that time.

John V.H. Dippel
Piermont, New York

To the Editors:

István Deák’s review of Telford Taylor’s recent memoir of the Nuremberg tribunal presents substantial moral and legal arguments against the legitimacy of the postbellum Nazi trials, and thus against the validity of Nuremberg as legal precedent for contemporary war crimes trials, for example in the former Yugoslavia. Incidentally, Deák might have made similar arguments about the Tokyo tribunal which, like Nuremberg, was a consequence of “unconditional surrender.” Ultimately, however, Deák fails to convince.

Deák’s moral argument, informed by often overlooked historical facts, boils down to “dirty hands.” Indeed, the moral credentials of the powers sitting in judgment of the vanquished Nazis at Nuremberg were not untarnished.

First, the presence of Soviet judges undermined the two indictment counts of “crimes against peace” and conspiracy to commit such, because the USSR waged an aggressive campaign against Finland (the Winter War of 1939–1940) and because it participated in the conspiracy to divide Poland. But Deák overstates this counterindictment by adverting to the Soviet declarations of war with Bulgaria and Japan. The state of war with Bulgaria lasted a single day (September 5, 1944), until Sofia officially turned against the Axis. The Soviet invasion of Manchuko, Korea, and other Japanese possessions took place months after Moscow abrogated its non-aggression treaty with Japan in May 1945, citing Japanese belligerent interference with shipping and air traffic, among other things. By August 8, relations between Moscow and Tokyo were hardly “very correct.” Moreover, as Deák concedes, the second front against Japan was part of the Allied plan agreed to at Yalta. It is unfair to fault the Soviets for opening a front against a common enemy of the Allies.

To clarify a minor geographical point, Rudolf Hess flew not to England, but to Scotland, over which he parachuted to see the Duke of Hamilton on May 10, 1941.

Second, as Deák argues, the Allies also had “dirty hands” with respect to the third count of the Nuremberg indictment, war crimes proper, namely “violations of the laws or customs of war.” The terror bombings of civilian targets such as Hamburg, Dresden, Tokyo, and Hiroshima arguably all constituted “devastation not justified by military necessity.” Not only did they violate the customary maxim against targeting noncombatants, these bombings also failed to achieve their advertised utilitarian objectives—German morale did not crumble immediately after Hamburg and the Japanese did not surrender on account of Hiroshima. The devastation was indeed violative of ius in bello, that is, the principles of just combat.

Despite his persuasiveness on “dirty hands,” Deák does not espouse the dark principle that war knows no laws (inter arma silent leges). Nor does he argue, following the late A.J.P. Taylor, that the Germans were somehow compelled into aggression and therefore exculpable for the war and its conduct. To do so would fail the stomach test: Allied shortcomings notwithstanding, we can be morally certain that the Nazis (and the Japanese militarists) were the “bad guys.”

The gravamen of Deák’s legal argument is that there is no ex post facto criminal liability (nullum crimen sine lege, nulla poena sine lege). Here Deák seriously underestimates the basis of the Nuremberg process in international law. What is more, “dirty hands” have never been considered a valid defense against criminal liability.

Deák appears to assume that the sources of international law are limited to international treaties; hence, he focuses on the Geneva and Hague conventions and the Kellogg-Briand Treaty. However, rules of international law may also be derived from customary law and generally recognized principles, such as the law of nations (ius gentium) and the laws of just warfare (ius ad bellum and ius in bello), which include rules of proportionality (of force) and discrimination (of noncombatants). Thus, for example, war crimes proper, the third count at Nuremberg, are of medieval provenance and were well established by the time of the League of Nations. The relevant conventions and treaties neither preempted nor diminished the basic rules of war, according to which Nazi culpability could be judged. The fourth count, “crimes against humanity,” was the only substantive legal innovation of Nuremberg.

Moreover, Deák omits mentioning that the leaders of Nazi Germany were on specific notice by the 1941 Atlantic Charter and the 1943 Moscow Declaration that the Allies intended to hold them accountable for their bellicose misdeeds. It is a peculiarity of international law that jurisdiction is obtained either by consent or by the Hobbesian-Leninist rule of “who gets whom.” In this case, notwithstanding their “dirty hands,” the Allies won the right to try the German (and Japanese) war criminals.

As to present-day war criminals in Bosnia, two points should be made. First, Nuremberg is indeed an available legal precedent for war crimes prosecution and for individual liability. Second, the new UN Tribunal is basically immune from the charges that one side is simply criminalizing its enemies and meting out “victors” justice.” Contrary to Deák’s claim, this is a legal and just occasion to punish the dirty hands all around the Bosnian quagmire.

Mark C. Medish
Covington & Burling
Washington, DC

To the Editors:

In his review of Telford Taylor’s memoirs István Deák suggests that the Germans might have been entrusted with trying their own war criminals after World War II. Implicit in this suggestion is the mistaken assumption that the courts after WWII in Germany experienced a “zero hour” in any way comparable to the revolutions which brought about Hungarian People’s Courts after WWII or the Turkish tribunals after WWI. As Ingo Müller’s book, Hitler’s Justice: The Courts of the Third Reich, over-whelmingly documents, the vast majority of Nazi judges, from the infamous “hanging judges” to those who had supported the euthanasia program and those who convicted “wrong doers” of “racial treason” (Rassenschande), remained on the bench.

In suggesting that German law could have been used to bring these criminals to justice, Deák argues that “no German law, not even the worst Nazi law, made legitimate the killing of innocents.” However, obedience to the Führer was above the law. Nazi “ethics” and values encouraged the mass murder of millions of “inferiors,” and German law was elastic even with regard to its “Aryan” citizens. Müller cites many cases, such as that of the Supreme Court in 1934, which declared a fatal stabbing by an SA man “lawful,” because the accused was “not only authorized…but indeed entitled and obliged to defend the prestige and the interests of the power of command embodied by and vested in him.” If this was the judges’ interpretation of Nazi law, what kind of judgments should we have expected from these same judges in the post-war period regarding the people they had previously exonerated?

By 1950, the Federal Republic of Germany (consisting of the former US, British, and French zones of occupation) had punished about 6,500 Nazis, while the much smaller German Democratic Republic (consisting of the Soviet zone) had punished about twice as many. The fact that one fourth of former Germany (the GDR) accounted for two thirds of the Nazis prosecuted is both impressive, when one considers that the per capita concentration of Nazis in the West was much higher since they had fled from the Soviet advance and occupation, as well as indicative of what the West Germans would have done without Allied prodding.

Deák suggests that “a tribunal presided over by, for example, Konrad Adenauer…would have had as much moral authority as the one at Nuremberg, if not more.” In fact, as Chancellor, Adenauer used his “moral authority” to integrate former Nazis into the political structures of the Federal Republic. Some of the leading politicians in government and in the office of the Chancellor were former Nazis. For example, Hans Globke, Adenauer’s chief aide, had been author of the official commentary on the Nuremberg Race Laws of 1935. Also, it was Adenauer who declared in September 1951 that “the German people, in its overwhelming majority, abhorred the crimes perpetrated against the Jews and did not participate in these crimes.” [emphasis ours]

In general, it would be fair to conclude that the Federal Republic, as exemplified by the Bundestag after 1949, showed a tendency toward restoration rather than a critical coming to terms with its Nazi past. In fact, the Reinstatement Act of 1 April 1951 restored the pension rights and employment of civil servants and professional soldiers who had been caught by Allied de-Nazification policies (except for Gestapo members declared criminal at the Nuremberg trials). By the early 1950s, over half of all government officials were former NSDAP members. “Creative” interpretation of laws under the West German government allowed such miscarriages of justice as the recognition of concentration camp guard duty as war service.

As Henry Friedlander pointed out in one of his many studies of the postwar German judiciary: “In the world of legal positivism of the civil law, final responsibility does not rest with the judiciary (as it does in the United States), but with the legislature. Only the legislature can correct errors of judicial interpretation by clarifying the meaning of the law.”^* In the case of the Bundestag, that resulted, for example, in a “First Law on Ending the Occupation” (1956) which did away with all Allied laws that, in their turn, had removed Nazi laws and had also punished crimes against humanity.

In conclusion, although we share István Deák’s dismay that, in response to the Cold War, the Western Allies were lenient in judging and remiss in punishing Nazi criminals, we strongly disagree that “if they had been in charge of trying all the Nazi criminals, the German courts could not have done much worse than that.” Indeed, German justice continues to hold trace of its unsavory past, letting neo-Nazi skin-head murderers off lightly [The New York Times, November 7, 1993].

Renate Bridenthal
Marion Kaplan
Professors of History
The City University of New York
New York City

István Deák replies:

The letters printed here are only a small sample of the responses to my review of Telford Taylor’s book. Some made factual corrections, pointing out, for example, that in 1941, Rudolf Hess parachuted into Scotland and not into England, and that the British have a first Sea Lord and a First Lord of the Admiralty but not a First Sea Lord of the Admiralty. I am grateful to their authors.

Nothing in my original article led to more determined protest than the suggestion that the Nazi leaders should have been tried by their own people and not by an international tribunal. Moreover, many people objected to my argument that the sentencing should have been based on existing German laws and not on rather nebulous international laws, some of which had been created for the occasion. Murder, after all, was murder, I wrote, deserving capital punishment even in National Socialist law, and the German soldier’s right and duty to disobey criminal orders was clearly spelled out in wartime military codes. In fact, this principle was so consistently put into practice in wartime Germany that no SS or Wehrmacht soldier was ever punished by his superiors for refusing to participate in the massacre of innocents. Heinrich Himmler himself repeatedly reminded his SS underlings that their killing orgies set them above the law. This made them, although unappreciated, heroes of a great cause.

Against all this, many readers pointed to the dismal record of the Western German courts in trying and sentencing Nazi criminals. The judges and the juries, themselves often former National Socialist Party members, conspired silently to acquit a maximum number of criminals. Many of the latter have become successful businessmen or respected professors, medical doctors, judges, and civil servants. In their letter, Professors Renate Bridenthal and Marion Kaplan state that applying the laws of the Third Reich against the former Nazis would have made no sense because in Nazi Germany the Führer’s will was understood to be above the law. By violating the laws of their own state, the German judges only obeyed the wishes of Hitler. Bridenthal and Kaplan also draw our attention to the German historian Ingo Müller’s book Hitler’s Justice: the Courts of the Third Reich,¹ which shows, among other things, that even the Nazi judges who sent Jews to the gallows for having had an affair with a German woman, and the judges who caused military deserters to be shot several days after Germany’s surrender on May 8, 1945, were acquitted in West Germany. Many of the Nazi hanging judges remained on the bench and were honored by West German society and government.

In his book, Telford Taylor himself dismisses the notion of Germans sitting in judgment over their own leaders by stating, correctly of course, that no one wished to see it happen at that time. Moreover, as John V.H. Dippel writes in his letter, the Allies were committed to doctrines of unconditional surrender and collective guilt which made it impossible for them to entrust the Germans with the task. But this was precisely my point in arguing that far too many things went wrong at Nuremberg and after, and that the Allies could have acted otherwise.

It all began with the doctrine of unconditional surrender, which was decided at the Casablanca Conference in January 1943. Its purpose was to prevent a repetition of the disastrous period following World War I when a humiliated but potentially powerful Germany was able to prepare for revanche. Although the fact was not disclosed at the time of the Casablanca conference, the doctrine of unconditional surrender later became official Allied policy. Similarly, the doctrine of collective guilt, although never officially promulgated, was made clear to all through the Allied policy of carpet bombing German cities and the murderous behavior of the advancing Red Army toward German civilians. Ultimately about two million German civilians were killed and twelve million were expelled from East Central Europe as well as from what used to be Germany east of the Oder-Neisse line.

The doctrines of unconditional surrender and collective responsibility obviously failed to prevent the reemergence of a powerful Germany. In fact, both the Soviet Union and the West abandoned these doctrines during the cold war. But between 1943 and 1945 these doctrines made it exceedingly difficult for the German opposition to act against Hitler. Few dissidents were willing to assume blame for surrendering Germany to its enemies without a guarantee that its inhabitants would at least survive. Propaganda Minister Joseph Goebbels announced triumphantly that the enemy would give no quarter, and that the very existence of the German people was at stake in the struggle.

It testifies to the courage and determination of the German resisters that they risked the charge of total betrayal by attempting to assassinate Hitler and to overthrow the National Socialist regime on July 20, 1944. These army officers, diplomats, aristocrats, intellectuals, priests, ministers, and socialist politicians were a small minority among the Germans; but they had many sympathizers and were potentially formidable, as is shown by the thousands of high ranking officers and officials whom the Nazis tried and executed after the coup failed. If it were not for the dark shadow of unconditional surrender and collective guilt, many more influential Germans would undoubtedly have joined the resistance movement. After all, even the commanding generals who had refused to join the conspiracy against Hitler refrained from denouncing to the Gestapo the main plotters, including Field Marshal Witzleben, General Beck, and Colonel Stauffenberg. The decision of those who were unwilling to participate in the conspiracy not to inform on its organizers was a unique historical event, which would have been inconceivable in any other army. The behavior of the German generals who would not give away the plotters must be explained by the desperate situation in 1944, the caste solidarity of German officers, and the widespread support in elite circles for the overthrow of the Nazi regime.

It is not fanciful daydreaming, therefore, to suggest that a carefully stated Allied plan for the surrender and the military occupation of Germany, with a guarantee of the physical survival of the Germans and the future reconstruction of the country, would have encouraged a large number of influential Germans to rally behind the flag of the resistance. The overthrow of the Nazi regime could have succeeded, thereby saving the lives of millions of Jews, Russians, Germans, and others who perished in the last ten months of the war. A non-Nazi German government, recognized by the Allies and composed of the enemies of Hitler, might well have become more progressive and more democratic than the two governments created by the Soviets and the Western Allies. No matter how divided among themselves (for their views ranged from conservative nationalism to communism) the resisters all hated Hitler, and they might have been quite ready to deal severely with Hitler’s followers. In any case, it would have been difficult for them to be more lenient than either the Western Allies, following their initial enthusiasm for punishing the Nazis, or the West German courts, once they had been entrusted by the occupiers with responsibility for prosecution. Finally, even though Bridenthal and Kaplan are right in saying that Hitler’s will overruled the law of the state in Nazi Germany, this does not mean that postwar German courts should not have been able to invoke the laws of the Third Reich against Nazi criminals.

A Germany created not by the Soviets and the Western Allies but by the resistance movement may well have been a very different Germany. It might even have remained undivided. Instead, in West Germany it became a sort of patriotic duty to coddle the Nazi defendants, for it meant defying the Americans. When the cold war began, this coddling met with the approval of the Western Allies. Even Konrad Adenauer, whom several readers reproached me for having mentioned as a potential judge in postwar Germany, might have become a very different person had he come to power as a former member of the anti-Hitler movement and not as the choice of the Americans, and had his main task been to create a new Germany and not to prepare the country for the anti-Communist crusade.

Of course, retribution was more severe in the Soviet Zone. But there the former Nazis in jail and in reactivated Nazi concentration camps, such as the one at Buchenwald, were soon joined by democrats, socialists, and even Communists; and therefore in the Soviet Zone, too, war criminals came to be generally regarded as victims. The fact is that although total military defeat created a Stunde Null, or zero hour, in Germany, the opportunities this presented were not fully exploited. The Western Allies either suspected or ignored the surviving resisters and the Soviets only favored the Communists and the fellow travelers.

I disagree with Mark C. Medish when he says that the Soviet attacks on Bulgaria and Japan were entirely justified. Bulgaria surrendered to its enemies, the Western Allies, a few days before the Soviet declaration of war on September 5, 1944, and the purpose of the Soviet attack was simply to allow the Communists to take power, which they did within four days after the unopposed Soviet occupation of the country. The Soviet attack on Japan was a more complicated matter for, in that case, Stalin acted at the request of the Western Allies. Yet even this did not necessarily make the Soviet attack morally justified. The Soviets cited Japanese interference with Soviet shipping and air traffic but this was a flimsy excuse for attacking Japan. The Soviet invasion of Manchuria and north Korea hardly seemed justified as necessary to the defeat of Japan, which was on the verge of surrender.

Mr. Medish, a lawyer, is certainly correct in saying that the accusation of “dirty hands” is not a valid defense against criminal liability: a society where theft is often tolerated, and where the judges themselves are often thieves, still has the right to send a thief to jail—provided that there is a law against theft. Mr. Medish also says that the Allies won the military right to try the German and Japanese leaders by having warned their enemies far in advance of what was coming to them and by their having utterly defeated Germany and Japan. But the Nuremberg Tribunal sat in the name of higher ideals than that of vae victis. As I wrote, the Allies had the right to devastate and to occupy Germany and Japan as well as to arrest their leaders; I wonder, however, whether it would not have been wiser to have prodded the Germans and the Japanese to send their own war criminals to the gallows.²