Nuremberg Revisited

Nuremberg Revisited

"Nuremberg, Misremembered" by Jeremy Rabkin, in SAIS Review (Summer–Fall 1999), 1619 Massachusetts Ave., N.W., Washington, D.C. 20036.

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"Nuremberg, Misremembered" by Jeremy Rabkin, in SAIS Review (Summer–Fall 1999), 1619 Massachusetts Ave., N.W., Washington, D.C. 20036.

The 1945–46 Nuremberg trials of Nazi ponents of the recently created leaders are often invoked these days by pro-International Criminal Court or the European efforts to prosecute former Chilean dictator Augusto Pinochet. It was at Nuremberg, claimed journalist Tina Rosenberg, writing last January in the New York Times Magazine, that the principle "that how a nation treats its own citizens is everybody’s business... was established." But it wasn’t, argues Rabkin, a political scientist at Cornell University. The Nuremberg trials "were more flawed than we like to remember."

At the time, many Americans regarded the Nuremberg proceedings—which were conducted not by disinterested bystanders but by the victorious Big Four Allied Powers—as political "show trials." Supreme Court chief justice Harlan Fiske Stone, privately calling the trials "a highgrade lynching party," refused to take part in a swearing-in ceremony for the U.S.appointed judges. A few years later, Supreme Court justice William O. Douglas protested that the leading Nazis had been tried under "an ex post facto law," and said that "their guilt did not justify us in substituting power for principle."

What has since come to be called the Holocaust did not figure as prominently in the Nuremberg proceedings as it does in people’s minds today, Rabkin notes. Nearly all the Nazis on trial claimed to know nothing about the death camps, and with only a few exceptions, they had not been in situations that required them to know about them. American prosecutors were intent, not upon fixing responsibility for the mass murder of European Jews, but upon showing that the defendants had committed "crimes against peace" by conspiring to launch a war of aggression.

Though early trial planning resulted in the inclusion of a "crimes against humanity" category, such offenses were never clearly distinguished from other "war crimes." The Nazi regime’s prewar perse-cutions were not prosecuted. "American trial planners were well aware that international law, at that time, provided no basis for holding government officials personally liable for persecution of their own citizens," Rabkin says.

Nor was the Nuremberg tribunal authorized to look into war crimes generally, certainly not any that might have been committed by the Allies. For the most part, the German defendants were not even allowed to cite Allied practices similar to their own. "While the Germans were charged with initiating an aggressive war against Poland," Rabkin notes, "the Soviet Union had launched its own conquest of eastern Poland at the same time," then embarked on aggressive wars against Finland and the Baltic states. The crimes of communist dictator Joseph Stalin’s regime were politely overlooked, along with the earlier Soviet-Nazi collaboration.

In 1945, Rabkin writes, "American leaders were not prepared to make themselves—or anyone else—the guarantors of universal justice.... American forces certainly had not battled their way into Germany to stamp out murderous oppression wherever it might be found." More than a half-century later, however, "we see things differently—or pretend that we do," forgetting "that effective justice does rest on armed force" and that use of force is often very costly in lives and treasure.

 

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