Nuremberg, a beacon of justice? Just don’t mention the flaws . . .

By James Owen, the author of ‘Nuremberg: Evil on Trail’ (THE TIMES, 30/09/06):

SIXTY YEARS AGO today the defendants in what remains the greatest trial in history began to learn their fate. More than half of those 21 men in the dock at Nuremberg would hear themselves sentenced to death, verdicts that resonate even now. As the world waits on Saddam Hussein’s destiny, the judgments against the leading Nazis are still hailed as the benchmark in international justice, a model of fairness in which those who had visited misery on millions were brought to account for their crimes, above all the Holocaust.

The truth is that the Nuremberg trial was more deeply flawed than we care to remember. In hindsight, it is clear that it was mounted with astonishing haste, barely six months after the end of the war and when comparatively little was known about the inner workings of Hitler’s regime. Now, the Nazis are part of our cultural matrix; then, information about their aims and actions was limited and derived mainly from self-interested sources such as prospective defendants.

The outcome was a trial, largely driven by the Americans, that while satisfying an understandable thirst for retribution frequently outstripped the bounds of justice. The principal reason for this was the Americans’ desire — with one eye on Soviet ambitions — to use the proceedings to display their democratic values against those of a totalitarian dictatorship.

These lofty hopes led them to cast the net very wide in search of defendants. Many of the key figures were dead — Hitler, Himmler, Goebbels — but while survivors such as Goering and Hess were obvious candidates for indictment, the US insistence on putting the entire Nazi system on trial led to unhappy compromises. Someone was needed to stand for propaganda, and in the absence of Goebbels the only prisoner who fitted the bill was Hans Fritzsche, a John Humphrys of German radio, who was almost no one’s idea of a leading war criminal. Yet he now found himself fighting for his life. Someone, too, was needed to stand for anti-Semitism, so Julius Streicher, who had railed against the Jews in the Thirties but had taken no part in the war itself, was selected.

More dubious still was the decision to proceed against seven other defendants whose presence on the indictment is often forgotten. These were key organisations of the Nazi state such as the SS, but also the entire German High Command and the Leadership Corps, the party’s rank-and-file administrators. Were these corporate entities to be convicted, thousands of Germans would be found guilty of war crimes, regardless of their individual involvement in them or otherwise. In another sign of haste, among the organisations accused of plotting war was the important-sounding Reich Cabinet. In fact, Hitler never consulted it, and it last met months before the invasion of Poland. So sweeping were these mass charges that ultimately the judges limited or ignored them.

If the choice of defendants was far from ideal, so were the rules governing the proceedings. It never became a show trial, but smacked more than a little of victors’ justice. Aside from the two Soviet delegates, who made no secret of the guilty verdicts that Moscow had preordained, the other six judges did act with great impartiality.

Yet, to the defendants’ dismay, the rules did not allow reference to be made to alleged Allied war crimes or aggression as mitigating German actions. The morality of bombing Dresden is eternally debatable, but not that of the Soviet seizure of territory in Poland and Finland, nor, perhaps, of the uninvited occupation of Persia and Iceland by Britain in 1941.

Another persistent misconception is that the indictment gave particular prominence to the Holocaust. The truth is that though it was the first time the word was used publicly, the genocide charge referred widely to victims of the Nazis, and that by the start of the trial the nature of the Final Solution had still largely eluded the prosecution, even if the camps themselves had been discovered.

The central role of Adolf Eichmann, and the figure of six million dead, thus only emerged fully in testimony at Nuremberg, while Rudolf Hoess, the commandant of Auschwitz, whose evidence was to have a considerable impact, was called not by the prosecution but by chance as a defence witness. Allied lawyers were certainly overworked, but also frequently inept.

Then there are the verdicts. That some defendants were acquitted is always trumpeted as a sign of the judges’ even-handedness, but judgments on others remain disquieting: Streicher, who was hanged, appears to have been guilty not of specific crimes but of having a vile character; Admiral Dönitz, Hitler’s successor, was acquitted of the only substantial charge against him, yet received ten years’ imprisonment; and it is impossible to know why Albert Speer was spared execution while Fritz Sauckel, who merely fulfilled Speer’s demands for forced labour for the munitions factories, was not.

Many might say that these are negligible quibbles when set against what the trial achieved, most notably establishing that one’s duty to the law is higher than that of obeying orders, and that a country’s leaders can be prosecuted for what had been seen as acts of the state itself.

Yet what Nuremberg should teach us is that a civilisation that overlooks the troubling little details of the truth is one that had lost its capacity to distinguish right from wrong. And it is at that moment, too, that it forfeits the privilege of judging others.