I need to comment once more on “The Anatomy of the Nuremberg Trials,” by Telford Taylor (distinguished lawyer, participant, and eventual Chief Counsel at Nuremberg). Taylor’s memoir begins with an examination of the history of the Nuremberg ideas, and a very detailed analysis of how the Court was developed. He probes the character of each delegation (French, Russian, British, and the US), and brings to life its leading personalities. Taylor provides a fascinating history of how the concept of Aggressive War developed into a core feature of International Law, and he documents the divisions and eventual unification of the Allied Powers, under a single judicial umbrella, to try high officials of the Nazi Party for Criminal Conspiracy, War Crimes, and Crimes against Humanity.
To analyze the rise and fall of the Nazi party through the lens of a judicial proceeding is to witness the most profound and courageous exercise of justice and restraint that could be possibly imagined following crimes of such impossibly bestial proportions. Yet this is precisely the legacy of Nuremberg; the trial confronted crimes like aggression, occupation, persecution, deportation, liquidation, annihilation, and genocide through a dispassionate application of the law, and a solemn commitment to the evidentiary procedures necessary to determine and assign guilt. We can hardly imagine applying the same principles to terrorists we regularly detain and torture at Guantanamo; but for high officials of the Nazi Party, the Allied Powers made every effort to provide “defendants every possibility for a just defense.”
Taylor’s memoirs provide countless fascinating glimmers into the Nuremberg trials. Everything from the allocation of responsibilities among the Allied prosecution teams, to the reactions of individual defendants as they heard testimony implicating them in wholesale murder, makes for fascinating and totally engrossing reading. Taylor wonders, for example, whether the criticisms of the American prosecutorial team (following Justice Jackson’s absolutely mesmerizing opening statement) derives from the challenge of proving criminal intent and criminal conspiracy, as opposed to chronicling war crimes and violations of charters and treaties–the English, French, and Russian task. Fascinating questions emerge as to whether Nazi officials should be used as witnesses for the prosecution, and Taylor documents subsequent internal tensions within the American Prosecution team as to the propriety of socializing with Defense Council, and Nazi officials, at the prestigious Grand Hotel in Nuremberg. There is the alleged amnesia of Rudloph Hess, and his mental fitness to stand trial despite his bizarre behavior, which included reading pocket novels throughout the proceedings. The suspicions that Hess exaggerated his memory loss to protect himself from prosecution is borne out by a fascinating anecdote, whereby Taylor notices Hess coming to attention, and subsequently “bursting into laughter,” when Albrech (an American lawyer) mistakenly calls Hess, instead of Goering, Hitler’s “successor designate.” When Hess finally testified, he admits to feigning amnesia all along, and suffering only from minor lapses in concentration. During Hess’ testimony, Taylor describes the indignant reactions of Goering of Ribbentrop to their former comrade, who fled clandestinely to England to England in 1942.
There are also many instances of moral ambiguity, such as when the Russian Prosecution team interrogated Goering for the aggressive invasion of Poland in 1938, despite that fact that Russia participated in the invasion and subsequent occupation of Poland. Or, the English prosecution team getting into knots for accusing Germany of invading Norway aggressively, even though evidence suggested that England was planning the same thing, thereby allowing Defense council to claim that occupation of Norway was a defensive and preemptive response to planned English aggression. Or the clumsiness of accusing the Luftwaffe of committing warm crimes from the air, on the heels of US bombing of Dresden, Tokyo, Nagasaki, and Hiroshima.
The Allied Powers all deserve credit for agreeing (after much debate) to uphold standards of fairness and judicial procedure by not trying the industrialist Alfred Krupp (on the charge of conspiracy) as a substitute for his mentally incapacitated father, Gustav Krupp, who bankrolled German rearmament and served as the “industrial lynchpin for Hitler’s rise to power.” This decision was made because Alfred became owner of the Krupp properties in 1943; long after Hitler had planned, initiated, and executed plans for aggressive war. Thus the tribunal made sure that the sins of the father we not visited on the son, at least in this trial.
Perhaps the most fascinating judicial quandary is the difficulty of proving organizational conspiracy. In other words, is participation in a criminal organization like the SS, or the Gestapo, enough to warrant punishment based on membership alone, even if the membership is voluntary? Can the prosecution team punish thousands of Nazi officials based on membership alone, and might any principle approving “guilt by association” lead to large scales round ups of undesirables–something the Russians were most capable of doing in the future? Here Taylor admits the American case was quite weak, and liable to undermine the moral foundations of the International Military Tribunal. An organization may be considered criminal, but this does not preclude the individual rights of defendants to prove their innocence in the face of an organization’s dastardly and diabolical schemes.
There are many moments in Taylor’s memoirs where the term “democracy” reclaims its original meaning and import as a guiding standard for civilization, rather than an empty euphemism tossed around to justify Western intervention. The Nuremberg trials took place in the context of the Occupying Powers implementing a policy of denazification and democratization within a country that still retained active (though marginalized) support for Nazis. The American General in Nuremberg helped accomplish denazification and democratization by granting Germans authority for running government councils and enforcing the law through tribunals, thereby “clothing the Germans with increased government responsibility.” This is “democracy by doing,” as Taylor observes, and a far cry from our tortured efforts to simulate democracy following our aggressive war in Iraq
Taylor also mentions the efforts to bring ordinary Germans to the Palace of Justice to watch the proceedings (instead of high rankings civilian and military personnel from the Occupying Powers), a strategy designed to combat the likely possibility that many Germans would perceive Nuremberg as another example of Western Propaganda. Only by listening to courtroom evidence documenting Nazi crimes, could German citizens truly confront the true nature of the Nazi Party.
To analyze the history, rise, and fall of the Nazi Party through the prism of a trial, is to understand that assigning guilt, and determining intent, is a complicated and ambiguous procedure. Viewed from on high, everything about Nazism and WWII falls into easy moral categories. Examined more closely, and with a focus on individual behavior, easy moral questions give rise to more complicated issues that a judicial proceeding cannot afford to ignore. None of these issues would be confronted had the US acceded to Churchill’s original demand to sidestep Nuremberg for summary executions. Yet in prioritizing justice over vengeance, Nuremberg became–and remains–a benchmark in the development of International Law.