Kevin Jon Heller and the Historical Legacy of the U.S. Nuremberg Military Tribunals (NMT)

by David Glazier

Although the twelve U.S. Nuremberg trials judged seven times as many defendants as the International Military Tribunal (IMT) and addressed a broader spectrum of international criminal law issues, including the first genocide prosecutions and the establishment of important principles of medical ethics, they have wallowed in comparative historical obscurity. The absence of meaningful coverage is ironic given, as Kevin notes in his important new book, that chief prosecutor Telford Taylor predicted that many volumes would be written on them and that the government deliberately employed experienced civilian judges, rather than military officers, to ensure they would produce substantive written judgments. But until now, lawyers and scholars interested in these trials had very limited options. One could attempt to wade through the fifteen volume, 15,000+ page, “Green Series” providing “the official abridged records” of the trials. One could consult the summary reports of nine of the twelve trials available in the United Nations War Crime Commissions’ fifteen volume series “Law Reports of Trials of War Criminals” (which omit the Medical, Pohl, and Einsatzgruppen cases from formal coverage). Or one could refer to one of a very small number of books dealing wholly or in part with several individual trials as well as Telford Taylor’s parochial memoirs.

The major achievement of Kevin’s book is to provide what none of the other sources can — an overall discussion and scholarly analysis of the entire NMT process in a single reasonably well indexed volume. Among the book’s many valuable contributions are:

(1) Identifying the unique legal standing of the NMT, which were neither truly international courts, like the IMT, nor national tribunals. Instead, Kevin concludes, these were “inter-allied special tribunals” relying on the Allied Control Council’s sovereign legislative authority in the wake of the disintegration of the central German government, based on the concept of debellatio.

(2) Providing a concise history of the NMT process, including the development and evolution of the overall World War II war crimes trial program from the initial Allied decisions to conduct trials to the IMT and subsequent devolution of authority to national tribunals. Although I had a general familiarity with this subject, I still found much to be learned from this history, including particularly details about how both deliberate policy decisions and practical realities determined which cases and defendants were actually tried before these tribunals. Kevin provides useful details about the overall organization of the prosecution and tribunals, staffing, and budget issues.

(3) Describing the factual background of each case, including who the defendants and judges were, what offenses were charged, and the outcome including a helpful appendix identifying the charges and verdict/sentence for each individual accused.

(4) Critically assessing theNMT’s jurisprudence through close analysis of the written opinions produced in each of the cases. It is in this area that Kevin undoubtedly makes his greatest contribution. While some parts of the book could have been written by a competent historian, the sophisticated legal analysis constituting the heart of the book could only have been produced by a real expert on international criminal law.

(5) Documenting how the evolving geopolitical realities of the emerging Cold War resulted in both scaling down the overall scope of the trials and ultimately, to the early release of most defendants sentenced to long terms of imprisonment. Anyone who has seen the classic motion picture, Judgement at Nuremberg, a fictionalized account based loosely on the “Justice Trial,” is aware that these pressures existed, but Kevin documents exactly how they came to bear both directly and indirectly, including through the personal prejudices and fears of several individual judges rather than just via “outside” interventions as portrayed in the film.

(6) Assessing the overall legacy of the NMT, including specifically the influence that the judgments have had on modern international criminal law through critical analysis of citations to these trials by contemporary courts, including a specific (and highly critical) focus on the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY).

Aside from the final chapter on “Legacy,” it is clearly (and quite reasonably) beyond the scope of the book to attempt to identify most of the possible relevance of the NMT’s jurisprudence to current events. But lest anyone conclude that this book’s primary value is as a work of history (although it would be worth reading from that perspective alone), I was struck by a number of applications in areas of my own work. The Justice Trial’s consideration of historical examples of military interventions into foreign countries on “humanitarian” grounds, for example, is directly relevant to current legal discussions of this same subject. While little known examples such as the 1840 U.S. intervention in Turkey are helpful to modern advocates of this practice, the reminder that Hitler sought to justify his invasion of Czechoslovakia on such grounds cautions about the risks of advocating law that can become a dual-edged sword. But it is with respect to its relevance for the current Guantánamo military commission process that I expect to see the most significant impact of this work.

For starters, unlike the Guantánamo tribunals, whose primary purpose seems to be to obtain convictions that might be questionable in civilian courts while protecting the CIA’s harsh interrogation practices (likely constituting actual torture in many cases) from public disclosure, the NMTs as revealed through Kevin’s work seemed seriously committed to doing justice. Some examples:

(1) The NMT placed substantial importance on the defendants’ ability to mount a meaningful defense. They funded civilian counsel of the defendant’s choice (even allowing lawyers with known Nazi affiliation to be chosen in the interest of facilitating trusted representation), ensured timely defense access to documentary evidence, and although their notional rules permitted comparatively free admission of hearsay, they routinely required production of living prosecution witnesses for live cross-examination and “refused to convict solely on the basis of hearsay.”

(2) Although a long-standing criticism of the overall post-WWII war crimes process is that it constituted “victor’s justice” featuring the application of law defined ex-post facto, Kevin shows that the NMTs took the principle of “non-retroactivity” much more seriously than previous accounts suggest. This is a real issue with respect to Guantánamo charges, particularly “conspiracy” and “providing material support to terrorism” which most law of war scholars agree do not constitute recognized war crimes. Generally the NMT seemed to take the rule of lenity quite seriously as well, generally giving the defendants the benefit of doubt about the law, contrary, perhaps, to the “victim centered” approaches of the ICTY and Guantánamo tribunals which arguably are stretching law in favor of convictions.

(3) Treating conspiracy to commit war crimes as an independent law of war offense was something specifically addressed by the NMTs; indeed this was the one legal issue the presiding judges of the separate panels considered important enough to meet in a joint session to hear arguments on, and it resulted in the dismissal of all such charges. The common understanding is that this outcome was just based on a literal reading of the trials’ governing authority, Allied Control Council Law No. 10, which did not include conspiracy as an offense except with respect to the commission of crimes against peace. Kevin takes us deeper, however, highlighting Taylor’s argument that the NMT was free to go beyond the facial text of Law No. 10 where it did not reach the limits of customary international law, and that they could thus punish conspiracy if it was part of CIL of the day. Although I don’t think the book proves this point, it can be argued that the dismissal of the conspiracy charges reflects the judges’ implicit rejection of the idea that conspiracy was supported by CIL and not just that it was omitted from Law No. 10.

(4) A thorough discussion of the NMT’s treatment of modes of participation and liability for criminal conduct through aiding and abetting and criminal enterprises. Fast and loose citation to historical practices provide much of the basis for the Court of Military Commission Review (CMCR) upholding Guantánamo conspiracy and providing material support to terrorism charges. Kevin’s detailed analysis thus provides a useful basis for more careful consideration of these issues.

The book is not light reading. As befitting a serious scholar of international criminal law, Kevin examines complex issues such as the precise nature of enterprise liability in significant detail. Adding further complexity, the NMT consisted of independent panels of judges hearing twelve separate cases with no appellate body available to resolve “circuit splits,” so in many areas the decisions are inconsistent from trial to trial. And in some cases they may simply have gotten the law wrong, such as the holding in the “Hostages Case” that CIL did not clearly bar the killing of hostages at the time of WWII, a holding in direct contrast with those of other allied war crimes trials in the Pacific. (My personal view is that this particular holding may have been more an example of the court giving the defendants the benefit of any possible doubt rather than an outright error of law). Kevin deals with these issues quite comprehensively, describing in detail the individual variances and potential legal errors, but the consequence is that many readers (particularly this one) may be challenged to keep straight which panel was deciding what when wrestling with these sections. In any event, these jurisprudential disparities ultimately make a strong argument that substantive appellate review is a necessary element of a credible judicial process, which is just another of the book’s many contributions.

Addressing an important gap in the international criminal law literature, this is a book which definitely belongs on the bookshelf of any serious student or scholar of this subject. It is a work which is likely to be routinely consulted as a reference rather than just read once and set aside.

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