“He was the leading war aggressor, both as political and as military leader; he was the director of the slave labour programme and the creator of the oppressive programme against the Jews and other races, at home and abroad. […] His guilt is unique in its enormity. The record discloses no excuses for this man.” This was the judgement passed against Nazi war criminal Hermann Göring, a man that had served as Hitler’s effective deputy almost right until the end. Found guilty of the 4 charges he was indicted with, the enduring face of what remained of the Nazi regime was sentenced to death.
Göring’s trial was part of the trial of the major war criminals at the Nuremberg Trials. A series of tribunals held between 1945 and 1946, in the aftermath of the Second World War, they remain significant today for their establishment of the idea of international justice and for their effective prosecution of a regime that had plunged the world into chaos. The steady retreat Germany was forced into by 1943 had posed the main Allied forces of Great Britain, the United States and the Soviet Union with a decisive question. How do you deal with the individuals behind the most destructive war the world has ever seen?
Winston Churchill, Prime Minister of Great Britain at the time, initially proposed the execution of Nazi leaders without trial, believing any court proceedings would likely be a ‘farce’. However, U.S Secretary of War Henry Stimson proposed a different solution - a plan for a major trial of war criminals. In an essay penned after the trials, Stimson acknowledged the temptation to execute the Nazi leaders, taking the chance to satisfy the emotions and administer the ‘roughhewn’ justice that the Nazis themselves had done so often before and during the war. A trial, however, represented a chance to fight evil with a degree of morality. The question of what form a trial should take pestered the Allies. A plan to have the trial run by countries that remained neutral in the war was rejected - neutrality during the war was often complex, and many of those ‘neutral’ countries, such as Spain, often heavily favoured one side or the other. The trial should be seen as part of the larger issue the Allies faced in 1945 - of how to deal with Germany after World War 2.
How do you prosecute the Nazi regime?
The decision to proceed with a trial, brought other issues. What legal system and laws could possibly bring these crimes to justice? Should the Nazi war criminals be tried under national law or a larger international system? The legal basis was established in the ‘London Charter’ in August 1945 by an Allied commission, designating three main crimes which those involved with the Nazi regime could be charged with. These crimes, ‘war crimes’, ‘crimes against humanity’ and ‘crimes against peace’ (which was split into conspiracy and the actual planning or waging in the indictments) were to be prosecuted and judged respectively by an individual from each of the main three Allied powers and France.
War Crimes had the greatest historical basis at the time of the Nuremberg Trials, with principles set out by the Hague Conventions of 1899 and 1907. These referred to a variety of individual crimes, such as the killing of prisoners of war or civilians and the destruction of civilian property. Crimes against humanity and crimes against peace were prosecuted for the first time during the Nuremberg trials, and as such came under greater scrutiny from both commentators and members of the defence. Crimes against humanity referred to the greater state-driven process behind crimes of war against civilians, created with the attempted Nazi destruction of the Jewish population in Europe in mind. There was little modern legal precedent to deal with such a purposely destructive act, particularly with such overriding evidence that it had been dictated from the top of the Nazi government. Crimes against peace represented the planning, preparation and action of aggressive acts in breach of international treaties. Here, however, more issues arose for the prosecution.
Prosecution Issues
The original Soviet decision to ally with Germany in 1939, at the start of the war, signalled by the signature of the Nazi-Soviet Pact in the August of the year, meant a tricky position for the Soviets by 1946, leading to some of the accusations of ‘victor’s justice’ that the trials were labelled with. Essentially, the secret supplementary protocol of the Nazi-Soviet Pact had allowed Germany and the Soviet Union to divide Poland between them for their respective ‘spheres of influence’. The secret protocol was not submitted into evidence at the trial, but the court was nevertheless aware of it and it was quoted by the defence. Why then, some commentators have asked, were the Soviets not charged for their own crimes against peace? The apparent issues of Soviet involvement in the trial does not end there. The Katyn Massacre, an execution of some 22,000 Polish officers and professionals in 1940, was enthusiastically brought forward by the Soviet prosecutor Rudenko as damning evidence of German war criminality. The issue, however, was that this was a crime carried out instead by the Soviet state, something that the rest of the Allies knew. Another criticism of the trials involved the accusations that the Nazi leaders were being tried by ‘ex-facto justice’. Some of the crimes they were being accused of had not existed until the London Charter - how was it fair that they could be sentenced to death on these grounds?
24 of the most senior Nazi figures were put on trial at Nuremberg, with only 3 being completely acquitted of their charges. Significant figures such as Adolf Hitler himself, leader of the SS Heinrich Himmler and Minister of Propaganda Joseph Goebbels all escaped justice, committing suicide as Berlin fell around them. Göring, Reichsmarshall of Germany, was one of 12 sentenced to death, yet escaped the hangman’s noose, dying the night before his execution after being slipped a cyanide pill by a guard. Göring had argued to be executed by firing squad, claiming his military status should save him from the fate of a common criminal, only to be denied his wish.
The legacy of the Nuremberg trials cannot be overlooked, both for its international legal precedent and for the landmark trial of those accused of crimes in war. The charges of crimes against humanity and crimes against peace have become the global norm in dealing with the actions of murderous regimes worldwide, as a method of applying legal justice to some of the most evil crimes imaginable.
Law vs Morality
The Nuremberg Trials involved some of the most famous individuals of the Nazi party but ordinary citizens were also put on trial following the fall of the Nazi regime. And it was these trials which were used to debate a fundamental issue across all legal systems – the extent to which law and morality are connected.
Those of you that have studied law at A-level and university may be familiar with a famous legal theory debate between Lon Fuller and Herbert Hart in the 1957 Harvard Law Review. Hart’s essay was written first, with Fuller responding to the arguments. Essentially, the debate was about whether law and morality are connected and dependent on each other.
A bulk of the discussion is about post war trials in Germany relating to the actions of ordinary individuals during the Nazi regime. The arguments made by the defendants were that at the time of their actions they were following the law, albeit Nazi law…
In Germany in 1944, a woman denounced her husband for making remarks about Adolf Hitler. Whilst she had no legal duty to report him, what he had said was illegal under Statutes that criminalised those who made statements ‘detrimental to the Third Reich’. The husband was sentenced to an almost-certain death by being sent to the Eastern Front of fighting. In 1949, the wife was prosecuted for depriving her husband of his liberty. Her argument, that she was acting in line with the law, was rejected because the court claimed that the Statute was “contrary to the sound conscience and sense of justice of all decent human beings”.
Hart is a legal positivist and views law as not needing to be a full reflection of morality. He does not believe a law stops being a law if it attracts moral criticism. Fuller is a naturalist and believes that to be valid, law must possess necessary features including moral content.
In relation to the case above, Hart believed that the courts had two options: either free the woman as she was following the law at the time or insert a retrospective law which repeals the law and makes those who followed it subject to criminal offences. Retrospective laws and decisions are not readily embarked upon in legal systems other than in exceptional cases such as R v R [1991] UKHL 12 and the prohibition of marital rape.
Fuller, alternatively, took the view that the German court was correct in their decision as the Nazi Statute lacked the necessary features he claims is required for law to be valid.
What do you think?
Is it fair that the woman was prosecuted for following her legal duty?
Or if a law is so lacking in morality should we just not accept it?
For this article I worked with my friend and University of Leeds International History and Politics student Will Chandler. Will is a third year student and is currently researching The Third Reich. In the article Will researched and wrote about the Nuremberg Trials and legal issues stemming from the trials.
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