Thanksgiving at Nuremberg




For the Jackson List:
















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And thank you for your interest and friendship.





12 responses

  1. And, for you, more days. As for the War Crimes Trials, wish I knew more about Nuremberg and the ones in Japan, which I have always thought less than fair. Just for yuks, did the defense have any discovery or time to examine it? Was there a defense?

  2. duckshots,

    On the Net, I took a quick look regarding your questions regarding discovery and time to prepare. I could not find anything definitive and most of what I found that looked promising was behind the Hein pay wall. Sorry.

    If I get a chance during the next few days, I will run a Westlaw search in the law review database. If I find something, I will report back.

    All the best.


  3. They were a little light on due process.

    The defendants weren’t even allowed to present tu quoque evidence, such as the Allies’ bombing of Dresden (which had no strategic significance and as such, could be classified as a war crime), which is highly relevant to the question of whether a mode of warfare is justified by military necessity. Jackson admitted this to Truman, but that didn’t stop him from prosecuting the Germans for some of the very things the Allies had done (e.g., the annexation of part of Poland by the Soviet Union). For that reason, while it wasn’t a paradigmatic Russian show trial, it had a taint of victors’ justice. But it was fair enough to serve its purpose:

    [A]s the months passed [the defendants] became flattered by the fairness (at least, fairishness) of the procedures and rose to the bait of making their excuses for posterity. So they played the justice game — none more effectively than Goering himself. His defence (that the resurgence of Germany after the failures of both democracy and communism was only achievable by total support of Nazi ideology) drove Jackson, his American cross-examiner, into a petulant rage. At this level, Goering was able to rebut the absurd conspiracy charge, which sought to try Germany alone for its pre-war political manoeuverings. To his French accuser, who unemotionally put the case for his involvement in crimes against humanity, he had no answer.

    Geoffrey Robertson, QC, Crimes Against Humanity at 216.

    It seems that the only practical rule in war is that there are no rules. But for the commission of crimes against humanity, there is and can be no defense.

    Judge Wallach reminds us that we made waterboarding a war crime. But when our people do it, it suddenly isn’t? And we made “aggressive war” a war crime (throughout our history, it was standard operating procedure), except when we invade a sovereign country on the flimsiest of pretenses. Medical experiments on human beings without their consent also became a war crime in the Doctors’ Trials, except when we do it to our own soldiers (United States v. Stanley, 483 U.S. 669 (1987)).

    I fear that we haven’t learned enough from Nuremberg.

  4. Judge:
    Professor Barrett outdoes himself with each new e-mail about Mr. Justice Robert Jackson. The Justice’s words at Nuremberg ring down through the ages such that all of us who are part of this great profession are challenged anew to do justice to the very best of our abilities.
    Happy Thanksgiving to you and yours.

  5. For a highly critical look at the Nuremberg trials from a contemporary author, I’d recommended reading ‘Advance to Barbarism’ by F.J.P. Veale. The video excerpts provided in the youtube link above point to some of his criticisms of the trials. For instance, the defendants appear in civilian clothing as the Allies ‘demobilized’ them at the end of the war, stripping them of most of the commonly recognized protections as Prisoners of War.

    In the Pacific trials, the trial of General Tomoyuki Yamashita was pursued to the U.S. Supreme court, where it was argued on January 7th and 8th 1946 and decided February 4th, 1946. Sorry, I’m not a lawyer I don’t know how to provide you a better citation.

    I also find this documentary about Justice Radhabinod Pal, one of the dissenting judges in the Pacific War crimes trials fascinating.

  6. Thank you Neil. The clip was fascinating.

    I add only one caution, and not directed at your comment, but more generally directed. There are still individuals and organizations devoted to publishing and promoting books and essays that deny established facts concerning the Nazi genocide of Jews. See for example the Institute for Historical Review. We should all be cautious about relying upon such sources.

    All the best.


  7. “No bill of attainder or ex post facto Law shall be passed.”

    The one thing you learn when studying history is that it is never pretty. That we got to the right answer in Nuremberg (that there is now a “law of war”) cannot reasonably be disputed, but how we got there left a lot to be desired.

    Imagine a judge, insisting on due process! Objecting to enforcement of ex post facto laws! I’m shocked, I say! Shocked!!! It is as if the Judge read Section 9 of Article I of our Constitution, and took it seriously. And his learned colleagues (including Justice Jackson) actively conspired to keep this fatal procedural flaw from public view.

    A conclave of judges, conspiring to summarily deprive a defendant of his rights? In America, we call it “the United States Court of Appeals.”

    In Offutt v. U.S., Justice Frankfurter counseled that “justice must satisfy the appearance of justice.” By this standard, to call the Tribunals a “triumph of the rule of law” is to defile the term, as it was nothing of the sort. Whereas a compelling argument could and ought to be made for crimes against humanity violating jus cogens law, sovereign nations had been invading their neighbors for fun and profit for millenia. As Pal correctly observed, virtually all of Western colonialism would qualify as a war crime under the Charter, the Australian genocide against the Tasmanian aborigine was legally indistinguishable from the Holocaust, and the dropping of the A-bomb was a per se crime against humanity.

    Somehow, there is a certain karmic justice in the fact that that kangaroo court was presided over by an Australian. Judge Pal deserves our high praise for displaying an uncommon commitment to justice.

    Thank you for that, Neil. A brilliant documentary. Well worth any spare time you might have.

  8. Curmudgeon, Senator Taft opposed the war crimes trial along the same line of thought. Much of the law of war predated Nuremberg and there a
    had been some trials after WW I, but the major offenses were new.
    Yamashita’s case from the Pacific involved a new doctrine of command responsibility applied to a general who was not in Manila and troops not under his command.

  9. On Pacific Trials there is a fairly recent book Yamashita’s Ghost by Allan A Ryan published by U of Kan press’ It came out in paper last month, one of a number of studies on war crimes and other aspects of law of war from that source. Ryan is a former DOJ lawyer both in SG’s office and special projects which deals with Nazis among us.

  10. The Allies invented new war crimes after the fact, charged Axis leaders with them, and denied them their most effective defense.

    This was a triumph of the rule of law?

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