The Meaning of the Nuremberg Trials

By Stephen F. Rohde
     
In 1944, when he was 17, Lou Dunst and his family were taken by the Nazis from their home in Czechoslovakia, first to Auschwitz and then to a concentration camp in Austria. Over the next year, he lost his mother and father and was subjected to unspeakable horrors, such as watching starving inmates devour the livers of dead prisoners.
      Then, on May 6, 1945, while lying on top of a heap of the dead, bereft of all hope, Dunst heard his brother shouting, "The Americans are here! The Americans are here! We're being liberated!"
      Dunst is now in his eighties, and still travels the country telling his story to audiences that often have a difficult time believing what he says. Where is the proof? To a large extent, the proof exists only because of the Nuremburg war crimes trials.
      As a cub reporter for Stars & Stripes, the U.S. military newspaper, Norbert Ehrenfreund heard lots of stories like this. Now, more than 60 years later, he has written an important and timely book. In The Nuremberg Legacy: How the Nazi War Crimes Trials Changed the Course of History, Ehrenfreund offers a short but absorbing account of the trials, an incisive appraisal of their legacy, and-perhaps most important-he explains how, in its war on terror, the Bush administration threatens to undermine so many of the precedents that Nuremburg established.
      Robert H. Jackson took a leave of absence as an associate justice of the U.S. Supreme Court to serve as the chief prosecutor at the first Nuremberg trial. Overcoming objections from Winston Churchill and many within the Roosevelt administration who argued that the Nazi leaders should be summarily executed, Jackson insisted that even those accused of war crimes were entitled to a fair trial. "You must put no man on trial under forms of a judicial proceeding if you are not willing to see him freed if not proven guilty," Jackson said, adding that "the world yields no respect to courts that are organized merely to convict."
      Jackson would put his mark on every aspect of the Nuremberg trials, from fashioning the indictments and attracting an international panel of judges, to marshaling voluminous evidence and securing competent defense counsel, to presenting a powerful case at trial and in the court of public opinion. Jackson understood, as he put it in his memorable opening statement, that "[w]e must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow." Then he made a plea that Ehrenfreund, himself a retired judge, urges be "engraved in the minds of prosecutors and judges everywhere": "To pass these defendants a poisoned chalice is to put it to our own lips as well."
      The trials lasted from November 1945 to September 30, 1946, when 18 of 21 defendants were found guilty. Notably, Hermann Goering was convicted of all four counts and sentenced to death by hanging, and Rudolf Hess was convicted of two counts and sentenced to life in prison.
      Jackson had not asked for the death penalty for any of the Nazi criminals. "A completely civilized society," Jackson later told his biographer, "would never impose the death penalty. ... So long as we give the example of deliberately taking life legally as penalty for crime, we keep alive the spirit that violence is all right."
      Still, as Ehrenfreund observes, Nuremburg promoted human rights by developing the concept of "crimes against humanity," which many consider Nuremburg's "greatest achievement." On December 14, 1946, the United Nations General Assembly endorsed the Nuremberg principles. In 1948, the American Declaration of the Rights and Duties of Man was adopted, and six months later the U.N. adopted the Universal Declaration of Human Rights.
      Ehrenfreund explores how the Nuremberg trials advanced the fight against racial prejudice; created a vast historical record to refute any later denial of the Holocaust; inspired the development of ten principles on the medical ethics of human experimentation; and reinforced the idea that private corporations and their executives may be held liable for aiding and abetting war crimes. The trials also paved the way for the establishment in 1998 of the International Criminal Court (ICC), the world's first independent permanent court set up to try people primarily for crimes against humanity.
      Regrettably, the United States actively tried to nip that idea in the bud, and although President Clinton signed the ICC's charter, in 2002 President Bush "withdrew" Clinton's signature. Ehrenfreund calls all this "a definite threat to the Nuremberg legacy," but points out that although the United States has not ratified the ICC, if an American citizen commits a crime against humanity in any country that has ratified the court, that American would be subject to prosecution.
      A significant portion of The Nuremberg Legacy is devoted to the more recent war crimes trials in Yugoslavia, Rwanda, and Sierra Leone, as well as the efforts to mount similar trials in East Timor, Cambodia, Congo, and Dafur-all of which were inspired by the original prosecution of the Nazis at Nuremberg. Ehrenfreund sees these trials as evidence that Nuremberg introduced "the highest standards of law and due process-innocent until proven guilty, an attorney for every criminal defendant, a fair trial no matter how grave the charge."
      Consequently, it is with obvious disappointment that the author devotes his concluding chapters to what he calls the "threats to the legacy." Ehrenfreund points out that for more than half a century, "from the last Nuremberg trial in 1949 to the 9/11 attacks of 2001, the United States continued to develop a legal system that was admired throughout the world. But after 9/11," he continues, "that reputation began to suffer. America's image as a defender of international law and human rights went into decline. Critics complained that the Bush administration's concerns for national security were going too far, eroding the nation's moral authority, denying the very freedoms that the war on terror was supposed to protect and thereby threatening the Nuremberg legacy, especially the legacy of fair trial."
      Since 9/11, many books and volumes of commentary have criticized the Bush administration's record on civil liberties at home and human rights abroad. What Ehrenfreund has done-and done well-is judge those abuses against the principles established during one of the most shining moments in American law. Nuremberg "inspired the law that made torture an international crime," he writes, giving rise to the U.N.'s 1948 Universal Declaration of Human Rights, which expressly declared that no one, without exception, shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment. But all of that was swept aside when Bush's Justice Department issued its infamous "torture memo," claiming that the president could supersede laws prohibiting torture under the convenient doctrine of "necessity."
      Ehrenfreund describes how Albert J. Mora, general counsel of the U.S. Navy, pleaded with his superiors to stop the torture and abuse of detainees and warned that the new legal theories being used to justify such conduct were dangerous and illegal. Referring to the administration's lawyers and their efforts to avoid the Geneva Conventions, Mora wondered "if they were even familiar with the Nuremberg trials."
      Ehrenfreund has made a genuine contribution to understanding the meaning and enduring importance of the trials. By weaving a personal memoir with an illuminating legal analysis, he has given readers an opportunity to recall an important chapter in American and world history, and from that vantage point to judge how far we have strayed.
      "I remember feeling proud of my country for insisting that the great trial would be run on the principle that no one is above the law," he concludes. Yet today, from its "sabotage" of the ICC to its use of torture and its abuse of human rights, "the Bush administration sends a message that insults the Nuremberg legacy-a message that says the rule of law is only for other people."
     
      Stephen F. Rohde is a constitutional lawyer with the firm of Rohde & Victoroff in Los Angeles and is the author of American Words of Freedom (Webster's New World, 2001) and Freedom of Assembly (Facts on File, 2005).
     
     

---