The recent trial and subsequent execution of Saddam Hussein has understandably brought up parallels with the Nuremberg Trials, conducted by the victorious Allies in postwar Germany. This event is thought to have created a useful precedent for trying those accused of “crimes against humanity.” The crimes for which defendants at Nuremberg were to be tried were framed by the Allies, including Stalin’s handpicked jurists, at a meeting in London in August 1945; the charges fell into four groups: “Crimes Against Peace,” “Conspiracy Against Peace,” “War Crimes,” and “Crimes Against Humanity.” Among the things about the trials that has troubled conscientious legal thinkers was the practice of ex-post facto justice: that is, they featured made-to-wear criminal offenses (to which death sentences could be attached) in order to humiliate and execute leaders on the defeated side. No one who challenged this precedent, as far as I know, felt anything but contempt for the Nazi murderers who were targeted. The question is whether the kind of court put in place in order to punish them satisfied the demands of real justice.
Equally troubling was the double standard that was at work in this questionable precedent. Already in the framing of the charges, care was taken not to call attention to what some of the Allies had themselves done that could be considered capital offenses. The Anglo-American firebombing of Central European cities, which had resulted in about three-quarters of a million deaths being inflicted on defenseless civilians toward the end of the war, and the Soviet participation in the invasion of Poland as Nazi allies in 1939, were only two illustrations of the need for evasion by the jurists who met in London. The attempt to tie the showcased crimes to “Hitlerism” avoided the need to deal with Allied misdeeds but still ignored the fact that the Soviets, who sat in judgment of the Germans, had contributed mightily to Nazi successes. Indeed they had conspicuously joined Hitler in conspiring against the peace of Europe. As late as the fall of France in June 1940, the French Communists had been under orders from the Comintern to undermine the French war efforts against Stalin’s Nazi ally.
One of the first American statesmen who openly criticized the postwar trials in Germany (which had a less-publicized counterpart in Tokyo for defeated Japanese leaders) was Robert Taft. In a controversial address given at Kenyon College in October 1946, Taft noted that the “Nuremberg Trials violate the fundamental principle of American law that a man cannot be tried under an ex post facto statute.” Furthermore, the proceedings that were going on showed “a spirit of vengeance.”
Although skewered at the time for his insufficient anti-fascism by among others his liberal Republican competitor for the presidential nomination Thomas E. Dewey, Taft received the plaudits of an important younger observer for his courageous stand. A section in John F. Kennedy’s Profiles in Courage, a bestseller that the Kennedy family assistant Ted Sorensen wrote for John, who was then planning a run for the presidency, is devoted to Taft’s principled opposition to the Nuremberg Trials. Note that Profiles, whose title and format are both lifted from the Exemplares Virtutis by the Roman historian Livy, was intended to enhance the prestige of a politician then featured as a liberal Democrat. The authoritative biography of Taft, by an identifiable liberal historian James T. Patterson, which was published in 1972, treats Taft’s remarks at Kenyon in a generally sympathetic manner. Nowhere does Patterson suggest that Taft raised questions about the trials for anything other than sound moral reasons.
Taft’s views seemed increasingly vindicated by the fifties, partly because of a change in the political winds. As anti-Communism temporarily took the place of the intelligentsia’s favorite cause, anti-fascism, the defects of the Nuremberg Trials became abundantly apparent. The reason concerned not only the inappropriateness of the Soviets acting as moralists in a kangaroo court, at a time when they were committing atrocities against their Eastern European captives. There was also the problem of inventing crimes to punish those whom the military victors had decided to kill. And once the bloom had gone from what those who prepared the proceedings at Nuremberg called “Soviet-American friendship,” the new international justice was there for all to see. Contrary to the customary distortion of our neo-Wilsonian zealots, Senator Taft did not call for simply releasing Nazi malefactors. He believed (properly in my opinion) that they could be tried in courts of law in countries, including Germany, where they had committed murder and mayhem. There was no justification for devising after-the-fact laws, administered by the winners, for this purpose. This view is also one that Churchill leaned toward after the war, when he commented that if his side had lost, then the Germans might have played the same game with them. The British war leader was not committing the sin of “relativism,” but simply noticing the grotesque proceedings of the postwar trials.
What Taft did not see, because of his place in time in October 1946, was the true extent of the miscarriage of justice that he lamented. As the Bavarian historian Caspar von Schrenck-Notzing documents in Charakterwäsche, a book recently republished in an expanded edition by Stocker Verlag (my German publisher), the trials only make sense in the context of an American effort to “reeducate” the Germans. The undertaking, which went on well into the 1950s, proceeded from the pro-Soviet Left, cronies of the Roosevelt administration, and favored business concerns trying to take advantage of the expropriation of “Nazi” property. Already at London, it was made clear that the trials would focus not on sifting through evidence but on publicizing the crimes of those who were to be punished. Those who received the most attention and stiffest sentences were usually political enemies, and not necessarily those who had committed the most heinous crimes against Jews and other civilians. Moreover, by treating membership in the Nazi party as evidence of conspiring against the peace or collaborating in crimes against humanity, the victors found a way of extending punishment to just about any German public figure they wanted to nail.
Schrenck-Notzing also documents other aspects of this judicial farce. Participants, like the original prosecutor Robert Jackson, had belonged to groups calling for a punitive peace against Germany; some of them were cheek-by-jowl with the rabid Teutonophobe Henry Morgenthau, and all of them believed that the Germans suffered from a mass psychosis that required generations of enforced reconditioning to be treated. Others who were allowed to “investigate” compromised German business interests, like the Farbenwerke, were actively working for American businessmen who were seeking to buy up expropriated German industries. If there were any conflicts to be found, it may have been between the pro-Soviets, who wished to dismantle German industry and give it to Stalin, and those who were pursuing business profits with the help of the occupation forces.
In my view, there is no way that even the American-engineered show trial that took place in Baghdad can equal the outrageousness of the Nuremberg Trials. It was a special moment in the smug, moralistic misrepresentation of international justice that shows the American character at its worst. It would be best to treat this precedent as a national embarrassment, one that my favorite Republican of all times bravely exposed.