Seventy years ag o, on Nov. 20, 1945, only six and a half months after the end of the war in Europe, the Allied victors formally convened the International Military Tribunal in Nuremberg, Germany. The goal was to prosecute leading Nazis for war crimes and crimes against humanity, the latter defined by the court as “murder, extermination, enslavement, deportation, or persecutions on political, racial, or religious grounds.” It was, as Lawrence Douglas, one of the world’s foremost experts on Nuremberg and war crimes, puts it, “the law’s first great effort to submit mass atrocity to principled judgment.”
The lessons of Nuremberg had profound ripple effects in how the world confronts the savagery of both war and genocide. The major perpetrators of the Holocaust— including Hermann Goering, Hans Frank, Albert Speer, and Julius Streicher — were held accountable, but the ramifications of Nuremberg on geopolitical affairs stretched much farther. As leaders like Syria's Bashar Assad, Zimbabwe's Robert Mugabe, and North Korea's Kim Jong-Un face calls to be tried before bodies like the International Criminal Court, justice in post-war Europe is as relevant as ever.
Douglas, a professor of law, jurisprudence, and social thought at Amherst College, examined five key Nazi trials in his book "The Memory of Judgment: Making the Law and History in the Trials of the Holocaust," including Nuremberg, the Israeli trials of Adolf Eichmann and John Demjanjuk, and French prosecution of Klaus Barbie. His latest book, "The Right Wrong Man: John Demjanjuk and the Last Great Nazi War Crimes Trial," comes out in January.
Ideas spoke with Douglas by telephone. Below is an edited excerpt.
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IDEAS: Robert Kempner, a German-born, junior US prosecutor at Nuremberg, called the trials "the greatest history seminar ever held in the history of the world." Why do you think he said that?
DOUGLAS: The Nuremberg trials clearly sought to teach history — to very different audiences. The Allies, in particular the Americans, wanted domestic audiences to fully appreciate why the war effort had been necessary. At the same time, Allied prosecutors wanted the German public to learn of the horrors perpetrated by their government. Many Germans remained faithful to Hitler even after Germany's collapse. Nuremberg prosecutors hoped that teaching Germans about the crimes of the regime would serve to discredit Hitler and so serve the interests of a transition to democracy.
IDEAS: The opening address by Robert H. Jackson, chief counsel for the American prosecution team, is considered one of the great courtroom orations of the 20th century.
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DOUGLAS: Jackson realized that Nuremberg was more than just a trial of the 21 major Nazi war criminals in the dock. He understood that law itself was on trial. Remember, Nuremberg was the first truly international criminal trial in human history. Jackson knew that the trial had to justify itself as an exercise in impartial justice. In his opening speech, Jackson did a brilliant job of both describing the crimes perpetrated by the defendants and the solemn task facing the tribunal — to conduct the trial in a manner that showed the world that such crimes could be fairly and adequately judged in a court of law.
People often think of the law as a rigid and inflexible set of rules and practices. These trials underscored the creativity of jurists, who worked imaginatively and diligently to enlarge law's scope to accommodate the most horrific crimes.
IDEAS: What were the goals of Nuremberg?
DOUGLAS: First were its legal goals. It sought to hold leaders of a state criminally liable for international crimes. This itself was radical. States had been sanctioned for illegal acts, but no international court had ever judged leaders of a sovereign state. It also sought, as I've mentioned, to teach history to an international audience.
IDEAS: And its drawbacks and failures?
DOUGLAS: The biggest failure was the prosecution's decision to focus on the Nazis' "crimes of aggression." Today we think of Nuremberg as a trial about Nazi atrocities, but the Holocaust was not the trial's main focus. The indictment focused on the Nazis' "crimes against the peace" — their launching an aggressive war in violation of international law. This was a misdirection of resources, and "crimes against peace" haven't played much of a role in international prosecutions since Nuremberg.
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IDEAS: You've always stressed the didactic nature of the Holocaust trials.
DOUGLAS: In researching the Nuremberg and later trials involving the Holocaust, I was struck by the fact that many prosecutors defended the proceedings as didactic or pedagogic exercises. Prosecutors sensed that trials involving mass atrocities create a disturbing disconnect between crime and punishment. While it's critical to try the perpetrators, no punishment seems adequate. Thus these prosecutors all reached a similar conclusion — atrocity trials are not just about proving guilt and punishing; they also aim to teach history and history lessons.
IDEAS: What is the significance of the introduction during the proceedings of the terms "crimes against humanity" and "genocide"?
DOUGLAS: Nuremberg was the first trial to charge people with "crimes against humanity''— crimes like extermination and systemic attacks on civilian populations. For technical reasons, Nuremberg treated crimes against humanity restrictively — the tribunal only had jurisdiction over these crimes if they were clearly connected to the Nazis' wars of aggression. As I've said, Nuremberg was not in the first instance a Holocaust trial. Still, Nuremberg prosecutors did a pretty impressive job of documenting the extermination of Europe's Jews. And Nuremberg was the first trial to use the term "genocide," which had only been coined by Raphael Lemkin, a Polish-Jewish adviser to the US War Department, a year earlier.
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IDEAS: How did the trial of Adolf Eichmann, a key SS official in the implementation of the Holocaust, in Israel in 1961 differ from Nuremberg?
DOUGLAS: The Nazis' crimes against the Jews were not Nuremberg's main focus. Jewish survivors were largely excluded from the witness stand. The Eichmann trial was designed to place the crimes of the Holocaust solidly at the core of a trial that would galvanize international attention. The prosecution called numerous survivors to the stand, and their testimony concerning all aspects of Nazi genocide riveted attention throughout Israel, Europe, and America.
IDEAS: Why did Nuremberg, as chief Eichmann prosecutor Gideon Hausner noted, fail "to reach the hearts of men?"
DOUGLAS: Oddly enough, Nuremberg was in crucial respects a dull trial thanks largely to the prosecution's strategy. Allied prosecutors believed that Nazi atrocities had to be proved with the strongest possible evidence — otherwise, people would say that it was all rumor and exaggeration. Very few survivors of atrocity were asked to testify, as it was feared their testimony would be seen as unreliable. Instead, prosecutors read aloud captured Nazi documents — proof that came straight from the perpetrators. Not surprisingly, Rebecca West memorably called Nuremberg a "citadel of boredom."
IDEAS: What is the legacy of Nuremberg for an era marked by international crimes in Bosnia, Kosovo, and Rwanda; and most recently in the Syrian civil war?
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DOUGLAS: Without Nuremberg, there would have been no international tribunals on the former Yugoslavia and Rwanda. Likewise, no permanent International Criminal Court. That said, international criminal law remains very much a work in progress. The ICC has been criticized as a court that only targets crimes in Africa. Under President George W. Bush, the United States, the prime mover of Nuremberg and the Yugoslavian tribunal, actively worked to undermine the ICC; gladly those days are past. Yet while President Obama has worked cooperatively with the ICC, I look forward to the day when the United States joins the court and once again takes its place as the leading promoter of international law.
IDEAS: In your forthcoming book, you analyze the second trial of the "notorious" concentration camp guard John Demjanjuk in Munich following the overturning of his conviction in an Israeli court. Can you explain its significance?
DOUGLAS: Demjanjuk's trial — he was convicted in 2011 and died a year later — represents a fascinating bookend to Nuremberg. In contrast to the major Nazis tried at Nuremberg, Demjanjuk was a peon, a minor collaborator in the Nazi genocidal hierarchy. Some may find it disappointing that the era of Nazi trials essentially ended with a lowly figure like Demjanjuk. But I argue that it's fitting. Demjanjuk's conviction reminds us that atrocities like the Holocaust are not simply the crimes of leaders; they are also the work of lowly foot soldiers of genocide.
Jack Curtis is a writer and editor living in Brookline.