“Victors’ Justice”; But Was It?

Today we celebrate – yes, “celebrate” is preciselythe word I want – the hanging of ten as wicked men as humanity has cast up on the shore in the past several hundred years.

They’d been riding high, these lawyers, engineers, architects, doctors of philosophy, journalists, when they had the lives of millions in their filthy hands. They’d erected elaborate administrative structures where memoranda silently wafted through the chancelleries, drifted across desks, being initialed, stamped, counter-signed, and on and on, before a background of towers of smoke belching from the ovens, day in and day out. And through it all the relentless clanking of cattle wagons coupling in the switching yard, the rhythmic beat of steel wheels over rails of even length, each clack! bearing the human cargo within that many meters closer to a yard where those marked for immediate death were sent to one side – the vast majority of them – and those to be preserved for a lingering, gnawing, terrified, starving, vermin-infested, beaten-bloody deathly labor were sent to the other.

These men and their underlings occupied blocks on hell’s own organizational chart, blocks labeled things like “Referat VIIa – Ausland” and similarly bland titles. What they did was set out to slaughter an entire people, to enslave an entire ethnic group, to purge by starvation vast territories that they might be settled by Volksgenossen – racial comrades. 

We caught them, we and our allies did. The big fish, the guys who did shit like decree that a conference would be held at some forgettable suburb called Wannsee to discuss the Endlösung der Judenfrage in Europa, the final solution to the Jewish question in Europe, we carted them to a place called Nuremberg, convened a body called the International Military Tribunal (to all the hyperventilators about Guantanamo Bay and the trials there: yes, Nuremberg was not a civilian tribunal). And we made them answer for what they’d done. At least we made some of them answer, to some extent; some got off with a fraction of what they’d deserved. Some of the most culpable got in effect a walk. The Allies’ objectives were three-fold: (i) to punish behavior which few outside the Soviet Union even understood that humans could be capable of (the Soviets understood it all too well, on which more later); (ii) to document for the world that all this really had happened; and (iii) to establish a principle that such behavior was once and forever more beyond that which civilized humanity was willing to tolerate. All of that was to be accomplished within a framework of law. 

Pretty high-falutin’ stuff, when you think about it. 

I want to poke a couple of holes in what happened at Nuremberg. Not in respect of the bastards we hanged; we should have hanged more of them. In fact, my standard response to the hand-wringers who moan that the death penalty is “inherently” cruel and unusual is to ask them if they are prepared to stand atop their dunghill and crow that the Nuremberg defendants ought to have lived. Ummmmm . . . silence. So shut up, please. Where I beg leave to depart from history, and from the tenets of what I do for a living, is in the effort to characterize what happened at Nuremberg as “justice” in any legal sense, and how mistaken it was to call it “law.” 

Allow me also to make absolutely clear up front that I draw a clear distinction between “justice” and “what happens in a court room.” Sometimes the latter results in the former, but generally not. It’s why I do not refer to “the justice system,” but rather to “the legal system.” It’s why I want to throw up in my mouth when I hear the Learned Colleagues or our judiciary bloviating about “administering justice.” Bullshit, with all due respect. Your task, if you’d bother reading the constitutional documents which create you, is to determine cases and controversies according to law. You can leave justice to those cosmic wheels which were grinding slowly before your grandfather’s grandfather was a gleam in his daddy’s eye. 

It was the IMT’s tragic flaw that it conflated “justice” with “law.” The main trial defendants were charged with four counts, for each of which the penalty of death was sought: 

(i) engaging in a common plan or conspiracy to commit a crime against peace; 

(ii) planning, initiating, and waging wars of aggression and other crimes against peace; 

(iii) war crimes; and, 

(iv) crimes against humanity. 

We had in the dock everyone from the guy who ran the Reichsbank until he was fired well before war ever broke out (Hjalmar Horace Greeley Schacht; he ended the war in a concentration camp himself) to the guy whose voice sounded sufficiently like Joseph Goebbels’s that he was used as a radio stand-in (Hans Fritzsche) to the guy who ran the Hitlerjugend (Baldur von Schirach). We had Fritz Sauckel, who was the Germans’ chief slave-catcher, and Albert Speer, who allocated the slaves so caught among the manpower-starved war industries, and Robert Ley, who was in actual charge of employing the slaves allocated. We had Joachim von Ribbentrop, the foreign minister who flew to Moscow on a warm summer evening in August, 1939 and with his Soviet counterpart Molotov carved up Poland and consigned Latvia, Estonia, and Lithuania to decades of Soviet depredation and slaughter. We had Wilhelm Keitel, the “nodding donkey” as he was known around the Führer’s headquarters, who had signed the Kommissarbefehl, under which party commissars attached to every Red Army unit were to be summarily shot upon capture – and were; we had Alfred Jodl, under whose command that order was implemented. We also had men of almost truly psychotic sadism, such as Julius Streicher, who stalked his bailiwick literally carrying a riding whip in his hand, and Ernst Kaltenbrunner, who ran the Gestapo and the Sicherheitsdienst (SD) of the SS, to the lunatic fringe element like Alfred Rosenberg, the national socialist chief ideologue, to the actually driveling lunatic, like Rudolf Heß, once the Number 2 man in the party, but who’d been pretty much emasculated as a power player well before fighting broke out. We had Admiral Erich Raeder, commanding admiral of the bastard step-sister of the German military, and his immediate subordinate, Karl Dönitz, who came within an ace of starving a country into submission, then got fleeted up to command the navy and eventually, in the mad-hatter days of May, 1945 succeeded his dead-and-burned Führer.

 The problem, from a purely legalistic stand-point, is that what these men were accused of doing had never been defined as a crime. Now, from the Soviet stand-point that was no hindrance at all. If they thought you needed to be shot, why, they’d just march you down to the execution cellar (or out to a trench in the woods, as they did with 14,000-odd Polish officers, during that period when they were the Nazis’ allies). But the Americans and British had this curious tradition that without a pre-defined crime there could be no criminal offense. 

When had there ever been a “crime against humanity?” When had there ever been something like the Holocaust? Oh, well, other than the Holodomor, which netted seven million Ukrainians in less than two years, versus six million Jews in twelve; and other than the Red Terror, when anyone with more than two shoelaces was likely to be denounced to a Chekist troika, hauled in by sundown and dead with a bullet hole in the base of the skull by morning; and other than the “liquidation of the kulaks as a class,” during which hundreds of thousands of “special exiles” were given as little as ten minutes to be gone from their villages with what they could carry in their hands, and then dumped out without any tools, seeds, or shelter north of the Arctic circle. 

“War crimes” was a concept at least not completely foreign to the people in that courtroom. Of course, if by “war crime” you mean the wholesale shooting of prisoners . . . well, you’ve still got that Soviet problem. If you mean the wanton destruction of cities, with no effort even mildly to target genuinely “military” objectives within them, then the fly in your particular ointment is Air Marshall Sir Arthur “Bomber” Harris, who set out to “de-house” the German civilian population. If you mean systematically starving entire peoples, as was done on the Eastern front, well, you’ve got several hundred thousand emaciated corpses from 1914-18 in Germany, victims of a highly successful blockade the principal intent and effect of which was to starve Germany into defeat. Furthermore, the slaughter of civilians in consequence of direct military action was accepted practice as late as the Duke of Wellington’s Peninsular War. 

“Conspiring to wage aggressive war”? Huh? Since when was war something that a nation just sort of ambled into, without any planning or coordination among the various officials within its government? Well into the 1930s the United States maintained plans or at least the outlines of plans to invade pretty much every single possible country we might get to, including Britain and western Europe. Were we “conspiring to wage aggressive war?” France in 1914 went to war with Germany because of her treaty obligations with Russia. Germany went to war with Russia because of her treaty obligations with Austria-Hungary. Britain went to war in 1914 because of an 75-odd year-old treaty about Belgium, one of the signatories to which was Prussia. In 1939 Britain and France went to war with Germany by reason of unilateral guaranty given to Poland by those countries, which Poland had not asked for. Was that a “conspiracy” to wage “aggressive war”? In any of the foregoing I am not arguing the morality or immorality of what the belligerents did. What I am doing is pointing out how empty of meaning “conspiring to wage aggressive war” is as a specifically legal concept. For that matter, how do you define “aggressive” war? If the answer is that the “people who started the war” are necessarily the “aggressors,” do try to recall that from August, 1914 to this date historians still argue over “who started the war,” or whose “fault” was it that Europe exploded. I’m going to suggest that, again, as a legal concept, something that open to good-faith disagreement cannot form the basis for the definition of a crime, at least not consistently with any Anglo-American legal tradition.

A “crime against peace”? When the hell exactly did “peace” become something injurable by an individual’s action? A crime against peace must necessarily occur during peace, for during war there is no peace which may be disturbed. How do you know when a particular act of state crosses the line from recourse to violence, which so far as I’m aware no sovereign state has ever abjured in any enforceable sense, to a “crime against peace”? Either a sovereign reserves to itself every mechanism of compulsion on which it can lay hands, or it does not. War is of course the ultimate mechanism of compulsion. The United States had recourse to it in 1846 to enforce a somewhat dubious claim, inherited from Texas, to a boundary located on the Rio Grande. Britain had recourse to it in the 1820s when it desired that Turkey should no longer rule Greece. Prussia had recourse to it in 1866 when it desired to exclude Austria-Hungary from further involvement in northern European German politics. Russia had recourse when the Ottomans were alleged to have misbehaved themselves in Jerusalem, a place which then lay within their domains. Were all these “crimes against peace”? The situations from which they grew sure as billy-o had no implications for the several nations’ national security or other vital interests. 

All of which is to illustrate a principle that is fairly well-established in Anglo-American law, viz. unless you can plainly point to a specific behavior and say up front whether that is or is not within the scope of a criminal proscription, then you cannot, consistently with due process of law, make a crime of that behavior. Every person is entitled to know whether his conduct in any particular respect does or does not constitute a crime; ergo, the constitutional bar on ex post facto criminal laws. 

With all possible condemnation of the depravity of what the Nuremberg defendants (and millions more like them, every one of whom likewise deserved to hang) did, the charges of the IMT were brazenly ex post facto. And hopelessly vague. And let’s not forget that little matter of hypocrisy. The elephant in the room in that respect was of course the Soviet Union, which had waged absolutely unprovoked, undeniably aggressive wars of conquest against Latvia, Lithuania, Estonia, and Finland. In the former Baltic republics they immediately upon winning them embarked on their trademark bloodshed, in exactly the same fashion as Stalin had attempted to decapitate Polish society from September, 1939 through June, 1941. But it gets better. We charged Karl Dönitz with war crimes for waging unrestricted submarine warfare. Which he had. But then he offered the affidavit of Fleet Admiral Nimitz, who informed the IMT that the U.S. submarine fleet had operated under orders substantially identical to those of the U-boats. Oh. We convicted him anyway. 

I must say that I’m certainly not the first person to notice the above “discrepancies,” as Twain would call them. No less a personage than the then chief justice of the United States, Harlan Fiske Stone, termed the IMT proceedings a “high-grade lynching party.” “I don’t mind what he [chief U.S. prosecutor Robert Jackson, a colleague on the Supreme Court] does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.”  Jackson himself observed to Truman in 1945 that the Allies “have done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war that our command is taking back prisoners sent to them. We are prosecuting plunder and our Allies are practicing it. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic States based on no title except conquest.” 

But here’s where things really went off the rails with the whole concept of legalistic punishment for what Nazi Germany did, and why I say it was above all a mistake to call it “law”: We stopped. Way too soon. Every hack of a district attorney general knows that you either enforce a law whenever someone breaks it, or that law in fact does not exist, and everyone knows it. There were trials after the major war criminals’ trial. There were trials of the concentration camp doctors and commandants. There were trials of military commanders. There was a mish-mash of a trial starring Ernst von Weiszäcker and a couple of others from the Foreign Office, and a gaggle of other functionaries. The later trials were catch-as-catch-can affairs in large measure because the prosecution by that time was pretty much starved for staff and resources. They even had trouble rustling up enough judges to hear the later cases. 

The inevitable result was that in the western zones at least, trials subsequent to the main IMT trial became farcical in their outcomes. Just for example, we tried the commanders of the Einsatzgruppen and their immediate subordinates, the commanders of the Einsatzkommandos. There were four Gruppen, lettered A through D. Each Gruppe had several Kommandos beneath it. They were roving death squads. They were what the Germans did before they hit on the notion of the gas chambers. They killed retail, by gunfire, which means that a specific person had to point a tangible object – a muzzle – at each individual, and squeeze the trigger. Thousands upon thousands of times. At Babi Yar outside Kiev, from September 29-30, 1941, they shot not quite 34,000 Jews in this fashion. Other Aktionen were smaller, but likewise just as individualized. 

The Soviets, bless their blood-thirsty little hearts, shot everyone they could find who had anything to do with the Einsatzgruppen. The western Allies had a separate trial; no defendant was more junior than commander of an Einsatzkommando. Apparently all those guns went off at the command of some officer but without other human intervention. There were fourteen death sentences handed down (not even every defendant got one). Only four actually danced at the rope’s end. The others all had their sentences commuted in 1951 to terms of varying lengths. By 1958 all had been released. Let’s be absolutely clear about this: This were the bastards who actually gave orders to aim and shoot at mothers holding their infant children, cooing to them so their last moments on earth would not be fearful, to see one last time their baby’s smile just before the machine guns barked. And by 13 years after the war they were all free. All. 

The Foreign Office was hip-deep in the Final Solution. Its emissaries, ambassadors, and bureaucrats knew what was going on, volunteered to assist the SS, the SD, and the military authorities, and enthusiastically pitched in when it came to compiling the lists of places from which deportations were to be made and the people to be deported. They hectored, cajoled, and threatened nominal allies, nominal neutrals, and of course the authorities of whatever stripe existed in occupied lands. In Das Amt und die Vergangenheit: Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik, a book written and published in 2010 pursuant to a 2004 mandate from the German government, the history of the ideological penetration of the Amt before the war and its seamier activities during the war are spelled out in painstaking detail. But most of the book deals with the largely successful whitewashing operation of the post-war period. Numerous – I mean numerous – men with blood up to their shoulders retired, with full pensions, honors, and dignities. Oh sure, there were certain places where certain officials could not be posted, but that was a comparatively small inconvenience. 

Which is to say that for the most part, the bastards got away with it. Alfried Krupp von Bohlen und Halbach, better known just as Alfried Krupp, so abused his slave laborers in Essen that even the SS complained about it. William Manchester’s damning book, The Arms of Krupp, contain descriptions of Krupp’s activities during the war that are beyond sickening. We attempted to try his father, Gustav, at the main IMT trial, but by that time daddy was too gibbering even by comparison with Heß. The only problem is that as of 1943 little Alfried was the legal owner of the whole cheese and been in actual command of running it for some time before then. He was the one who ought to have stood in the dock with Fritz Sauckel, Robert Ley, and Albert Speer. Oh, we tried him, eventually, and even nominally took all his property away. That lasted until the mid-1950s, by which time we needed him and his cannons again, and so by 1957 Alfried Krupp von Bohlen und Halbach was once again free as the wind and the wealthiest private person in Europe. 

By trying to shoe-horn “justice” into “law,” all we did was make a mockery of both. We hadn’t the time, the people, the money, or the psychic energy left to dispense justice to all who needed it through the mechanism of legalistic procedures. So we laid down and let them get away with it. Churchill had wanted simply to shoot them as and when found. That would have been more honest, and less morally ambiguous. Certainly, we could have and ought to have put them in a setting in which we could spread before the world the documentary, film, and living evidence of their actions. And then taken them out and hanged them, not bothering to characterize what they did as a “crime” against anything. We would have saved ourselves having to go through the repeated theatrics of the subsequent trials. Tie the prisoner to actions x, y, and z, and if the supervising officer finds it has been done, stretch that boy’s neck a few inches for him. 

In the end we come back to the point that if you march a column of defenseless people, including literally babies in arms, to the edge of a trench in the forest, and give or follow the order to fire, you deserve to die of a broken neck occasioned by your plummeting from a scaffold with a rope knotted about it. Basta! 

Nuremberg’s unfortunate precedent endures to this day, with International Courts for this-that-and-the-other dotting the landscape, none of them capable of dealing with a monster. Will anyone dance on a rope for what happened in the Balkans in the 1990s? For all those mass graves, which they’re still digging up from time to time? Nope. How about the Iraqis who worked for Saddam? They’re still alive, most of them. For the men who organized the genocide in Rwanda in 1994? Don’t count on it. For the Khmer Rouge? Not a chance; Pol Pot himself died peacefully in bed, decades after he killed almost 25% of the population of his country. An impartial observer is entitled to ask exactly what the hell good is law if it cannot mete out any sort of “punishment” other that confinement in pleasant conditions, with “three hots and a cot,” and that only after decades of grinding procedure? If law is not feared, it is not worthy of respect. If it is unworthy of respect, it is not respected, in small things as well as large. We did the law no favor at all when we so over-tasked it at Nuremberg in 1946.

And this is where I depart from the tenets of my occupation: There are potentialities for wickedness, for depravity, for barbarity, within the human heart and mind and which are simply beyond the law’s ability to define them, to address them, to bound them with comprehensible intellectual frameworks, and to achieve justice commensurate with their nature. Those actions – so monstrous that their only claim to human status is that humans commit them – are in every meaningful sense outside the law. Those who actualize those potentialities place themselves beyond the law’s protection. They make themselves enemies of the human race, as pirates were once recognized to be, and liable to public justice upon sight. So ought the Allies have proceeded after the war. It would have entailed many thousands of executions, but in the end justice might have been done, and the commanding officers of the Einsatzkommandos would not have died free men.


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