This is the 60th anniversary of the Nuremberg Trials.
At the time, critics said that it wasn't justice, it was the victor's revenge. The chief prosecutor, U.S. Associate Supreme Court Justice Robert Jackson replied:
"Certain acts in violations of treaties are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
If that is true, then the Nuremberg Trials are the moral high point of modern history.
The ideas and ideals expressed there – and acted on, they hung some of the defendants – were quite radical at the time. Some of them remain so.
In America, History becomes Ancient History very quickly. The details of the tribunal in Germany have faded from our popular consciousness, replaced by the OJ Simpson trial, the travails of Donald Trump and the various incarnations of Madonna. Yet those days are worth revisiting.
The principles evoked there have become international law. They are the rules under which a country can go to war, how it must conduct itself in a war, what it is responsible for, how it must treat the enemy and how it must treat civilians. Virtually every country in the world has agreed to those rules, in writing.
War crimes fall into three categories.
The most familiar, then and now, are those things that are crimes at any time: murder, ill-treatment (torture, starvation, rape), wanton destruction, plundering public or private property, slave labor, and deportation.
Except, of course, as justified by military necessity. If, in the course of taking a city, there is destruction and the killing of women and children, even on a massive scale, those are not crimes. If those same actions are taken after the city is secured, then they are crimes.
In some countries blasphemy is a right. In others, it can receive the death penalty. In many countries polygamy is legal. In others, even bigamy is a crime. Normally, each country makes its own laws and that's what applies, whomever you are and wherever you come from.
In Nazi Germany the extermination of the Jews and the Gypsies was a matter of public policy. They were so proud of it that they established a Museum of Extinct Races in anticipation of what they were going to achieve. Slave labor was national policy. So were plundering and looting and performing medical experiments on human subjects.
These acts were not committed by rioting mobs. Laws and regulations were passed. Judges enforced them. President Hitler – he held that title along with chancellor - his cabinet ministers and generals, gave orders. Records were kept. These horrors were the law of the land.
How then, could they be crimes?
The prosecution at Nuremberg argued that there are crimes against humanity. Even if a given state makes it legal to kill someone because of their race, their group, their religion, their politics, even if they make it mandatory to kill them for those reasons, it's still a crime.
It was new, it was radical, the idea that there was some secular law, some secular morality, that was above the laws of individual states.
That created a new question. Even though they were crimes, how could someone be held liable for committing them?
That required another new idea. Something at least as radical: every individual was responsible.
The essence of every military system, in particular, is obedience. Blind, unthinking obedience. Especially to the order to kill. That's what all that drilling and team building, the boot camp and the harassment, is for. To make following orders automatic and instinctual. It is backed up by a military justice system that includes the death penalty for the failure to obey orders.
Yet, "I was only following orders," was not even to be permitted as a defense at Nuremberg.
But now, after they've taken the town and Lieutenant Callous says to the troops, "Waste them, waste them all," the individual private is supposed to turn and say, "Pardon me, sir, but that's an illegal order and probably a war crime and I don't want to do it."
The men who ran these tribunals had just been witness to a war in which an estimated 62 million people were killed. They were realists. So they wrote the rule this way: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." If Lieutenant Callous then says to PFC Obstreperous, "do it or I execute you on the spot," the enlisted man no longer has, realistically speaking, a possible choice.
I point this out because, as we shall see, these seemingly idealistic, radical, apparently unobtainable standards, are in practice, far more grounded, sensible and useful than they might seem.
The rules of responsibility went up the ranks as well as down. They also said that: "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law."
This is also, as we shall see, worth noting.
Certain people regard the very notion of a "war crime" as a self contradictory statement, an unfunny oxymoron.
Michael Smerconish is one such. He's a radio talk show host, a Bush appointee to an obscure post, and a Factor substitute when O'Reilly is away. He recently placed an article on the Huffingtonpost called "In Support of Torture." In it he quotes a WWII vet as saying, "Well if you're fighting a war, what the hell have civil rights got to do with it? You are fighting a war, period. End of conversation."
It's a good question, but it's not the "end of conversation." Indeed it is the beginning of the conversation. It is clear that in war many terrible things are done. In war, justice often disappears. The innocent suffer more often than the guilty. Does that make it all OK, does that offer automatic absolution? Here is their answer:
War is essentially an evil thing ... To initiate a war of aggression, therefore .... is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
The Nuremberg Judgment
War is evil. Yet self-defense, at least, is a necessity. Therefore, the person who "starts it," who initiates a war of aggression, becomes the guilty party. They must bear the responsibility for all the death and pain and tragedy, for the families left homeless, the children killed, burned and crippled, the cities laid waste, the chaos, the murder, the fires and explosions, all of it.
TO BE CONTINUED
This piece is far too long for a web based attention span. Therefore I am breaking it up and will post it over the course of several days. Among the subjects that will be covered are: wars that are permitted; preemptive war – in theory and reality; preventive war; the film – Judgment at Nuremberg; and finally, what's really important – what does it all mean now?