Hey, While We're At It, Justice for Nuremberg Zwei und Zwanzig!

First, as mentioned in the preceeding article, above, there was the absence of any legal precedent for trials of this kind. Nations have waged war throughout human history and,presumably, war-time atrocities are the rule rather than the exception. The defendants in the Nuremberg trials felt, and perhaps with some historical justification, that they were being singled out in the annals of military history for very different treatment. The counsel for the defense was certainly aware of this and made it one of their major arguments. Even the prosecution seemed uncomfortable with the issue. At least they felt it incumbent upon them to provide extensive rationalization for the trials and to make certain their proceedings were tied to the principle of international law.

Second, the problem of holding individuals responsible for the crimes of a government. The Hague Convention clearly holds signatory powers responsible for adherence to the provisions of the charter but nowhere are individuals said to be culpable. The prosecution avoided this issue by arguing that the "crimes against humanity" were carried out in a centrally controlled manner and that those accused were an essential link between the orders and their ultimate realization. Essentially, the charge was "conspiracy" and the accused were significant parties to that conspiracy.

Third, there was the overwhelming difficulty of obtaining documentary evidence. In the first place, Hitler's style of administration was to let it be known what his wishes and intentions were and allow his subordinates, who undoubtedly feared the consequences of disappointing the Fuehrer, create a plan of implementation.

In the meeting of the German Defense Council help on May 5, 1933, Wilhelm Keitel, Hitler's Military Chief of Staff, presiding, the members were instructed that:

    "No document must be lost since otherwise the enemy propaganda would make use of it. Matters communicated orally cannot be proven; they can be denied by us in Geneva"

However, the Germans were not as thorough at destroying incriminating evidence as they were at other tasks. By the time the researchers were finished, thirteen large volumes of documentary evidence had been gathered.

A fourth issue, the "higher command" issue, proved to be a very difficult one. In almost every case, the defendants who appeared before the International Military Tribunal could rightly claim that they were following orders from superiors -- often directly from Hitler himself. Likewise, they could legitimately argue that orders they gave to those under their command were issued in obedience to Hitler of one of his top officers. Hitler was, after all, the dictator of Germany politically and Supreme Commander of the Armed Forces. However, the Tribunal's Charter, Article 8, is very clear with regard to the Tribunal's position on this argument:

    "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that Justice so requires." in Telford Taylor, The Anatomy of the Nuremberg Trials, New York: Alfred Knopf, 1992: Appendix A, p.648.

Finally, the defendants could rightfully claim, and Goering did so frequently, that the Allied forces committed some of the same atrocities for which they were being charged. Allied bombing of non-military and unprotected German cities (and Japanese cities) brought untold injury and death to civilian populations. But, it was not the Allied officers who were under indictment for war crimes and another person's, or nation's, guilt does not decrease or diminish the guilt of another person or nation.