The NMT Trial Program and The Emergence of a Jurisprudence of Atrocity
[Note from ed.: This is the final commentary on Kevin Heller's book,The Nuremberg Military Tribunals and the Origins of International Criminal Law. Earlier commentaries can be found under the "related posts" link below and at the companion discussion of the book at EJIL: Talk!]
Jurists, legal scholars and historians – groups that often find much to disagree about – appear unified in viewing the trial of the major Nazi war criminals before the International Military Tribunal (IMT) in Nuremberg as by far the single most important event in the development of international criminal law. Conferences staged several years ago to coincide with the sixtieth anniversary of the trial often had a celebratory, even hagiographic quality. Law students around the globe now dutifully study the so-called “Nuremberg Principles,” the norms of international law, which insist, among other things, that “acts of state” and “superior orders” supply no defense against the charge of perpetrating international crimes.
By contrast, the twelve so-called “subsequent proceedings” staged by American jurists before the Nuremberg Military Tribunal (NMT) have been long considered nothing more as footnotes to the IMT – and unhappy ones at that. No conferences were staged to consider, much less to celebrate, the anniversary of the NMT trial program. The trials often warrant no more than brief mention in textbooks on international criminal law and are seen to have delivered little by way of precedent. Admittedly the Justice case recently experienced a vogue of attention in the United States, particularly among lawyers looking for possible precedents for bringing charges against the authors of the “torture memos” in Bush’s Justice Department. But even this brief renaissance of interest quickly waned as the precedential relevance of the Justice appeared smaller than hoped.
The fact that the NMT program has long been treated as nothing more than a footnote to the IMT does, of course, have its logic. Telford Taylor, the chief NMT prosecutor, came to think of the trial program as a failure. In his insightful, though hardly definitive memoir cum history, Anatomy of the Nuremberg Trials, Taylor barely mentions the trials that he oversaw, this despite the insertion of the plural term in his book’s title. Some of the problems had to do with the “talent gap” that plagued the NMT. The decision of Fred Vinson, Chief Justice of the US Supreme Court, to bar Federal Judges from serving as NMT judges – a decision largely motivated by a desire to avoid the kind of backlog of cases caused by Justice Jackson’s tenure at the IMT – meant that NMT cases were presided over by state court judges, jurists lacking the prestige and often the competence of their federal court counterparts. Congress’s dreadfully short-sighted decision to slash the budget of the NMT while the program was in mid-course made it difficult if not impossible for the trial program to “get its message out.” As a result of these cuts, the judgment in the High Command case, an impressive document that lay bare the complicity of the Wehrmacht in crimes of genocidal sweep and which anticipated the “revelations” of Wehrmacht criminality that gripped Germany in the mid-1990s, could not be translated into German, a failure that Taylor lamented. Most fatally tarnishing the reputation of the NMT program was the commutation of sentences of those convicted.
As has been amply documented, war criminals and perpetrators of atrocity found their sentences reduced and commuted in an American effort to secure Germany as a reliable ally in the escalating Cold War. To Taylor’s great and understandable frustration, by 1958 the last of the NMT convicts found themselves free men. The premature release of Nazi criminals contributed not only to Taylor’s despair, but also to a larger perception that the trial program had been a waste of time and money. That the commutation policy was the consequence of political calculations completely beyond the purview and control of the hundreds of jurists involved in the trial program seems largely to have been lost on those observers who saw the post hoc release of the Nazis as an indictment of trials themselves.
These shortcomings have, then, led jurists and historians to overlook the accomplishments of the NMT. Now, however, scholars have begun the important task of re-assessing the NMT program, and in so doing, of rescuing it from its decades of comparative neglect. These include useful treatments of individual trials, such as Valerie Hebert’s study of the High Command case, Hitler’s Generals on Trial, and Hilary Earl’s The Nuremberg SS-Einsatzgruppen Trial, 1945-1958. What was missing in the scholarly literature, however, was an assessment of the trial program as a whole, a gap that has now been admirably filled by Kevin Jon Heller’s The Nuremberg Military Tribunals and the Origins of International Criminal Law. Well-written, vigorously researched, and impressively ambitious in its scope, Heller’s book makes an important case for a proposition that I take to be correct: namely, that in important respects the NMT program, more than the IMT, anticipated, if not paved the way to, more recent developments in international criminal law. Put somewhat differently, I would argue that our contemporary paradigm of international criminal law – what I call a “jurisprudence of atrocity” – bears more similarities to the jurisprudential profile of the NMT than the IMT. Though following directly on the heels of the IMT, the NMT proceedings already began re-orienting and transforming the jurisprudential paradigm that guided the trial of the major war criminals, delivering in its place a template for the future development of international criminal law.
This shift can be seen most clearly in the NMT’s treatment of crimes against the peace, the gravamen of the prosecution’s case before the IMT and the offense that the Tribunal understood as the principal international crime. The history of how this came to be is vexed, and we need not review the involved story of the roles variously played by Professor Glueck, Colonel Chanler, Colonel Bernays, President Roosevelt, Secretary Stimson, Justice Jackson, and Baron Shawcross that led to framing the trial around the crime of aggressive war. As Jonathan Bush has demonstrated, the decision made for sharp disagreements not only among the Allied powers – the French in particular never accepted this stratagem – but also between members of the American team, which pioneered the idea. Allied jurists notably failed to frame an adequate definition of crimes against peace – the description of “aggressive war” in Article 6(a) of the IMT charter is startlingly imprecise, a fact made all the more glaring in light of the relatively well-framed definitions of war crimes 6(b) and crimes against humanity 6(c). These imprecisions, coupled with the crime’s uncertain status in customary and conventional international law, explain why it vehemently invited charges of “victors’ justice.” Yet these shortcomings notwithstanding, the IMT was first and foremost a trial about the meaning and scope of crimes against peace.
Not so the NMT trials. At first blush, the NMT appeared to enlarge the ambit of the crime against peace. As Heller notes, the NMT condemned the Anschluss of Austria and the seizure of the Sudentenland as criminal acts, and in so doing, expanded the category of crime against peace to include both aggressive war and invasion. Heller treats this expansion as an advance and improvement—a conclusion that makes sense if one approves of the IMT’s original effort to juridify violations of peace, an effort that I find deeply problematic. But more generally, I would argue that despite expanding crimes against peace to include invasion, the NMT trials represented less a building on the IMT aggressive war paradigm and more a shifting of emphases toward the “atrocity paradigm.” By this I mean the NMT trials focused far more explicitly than the IMT on crimes of atrocity: extermination, genocide, systematic murder of civilian populations and other crimes against humanity. Again, this is not to say that the IMT aggressive war paradigm entirely vanished from the subsequent proceedings. As Heller rightly points out, in the IG-Farben trial (No. 6), the Krupp trial (Case 10), the Ministries trial (aka the Wilhelmstraße trial, Case11) and High Command trial (Case 12) crimes against peace remained the organizational focal point of the proceedings. Still, the shift toward the atrocity paradigm can be clearly seen when one looks at the program in its entirety. Of the twelve NMT trials, crimes against peace appear as a formal charge in only the four cases just listed. By contrast, crimes against humanity appear as a charge in all twelve. In the IMT proceeding, crimes against humanity were treated as interstitial offenses, covering a relatively narrow range of crimes that technically could not be enfolded within the ambit of war crimes. Before the NMT, by contrast, crimes against humanity emerge as the principal crime in the Medical trial (No. 1), the RuSHA case (No. 8) and the Einsatzgruppen case (No. 9). Even in those trials nominally organized around the IMT paradigm of aggressive war, such as the High Command case (No. 12), crimes against humanity and acts of atrocity came to dominate the prosecutors’ case.
This is not suggest that Heller overlooks the NMT’s contributions to the atrocity paradigm. To the contrary, he does an excellent job of showing the dramatic changes that the NMT made to the IMT’s rather blinkered understanding of crimes against humanity. These changes included, but were hardly limited to, the severing of the IMT’s nexus requirement, which made crimes against humanity justiciable only if connected with the crime of waging a war of aggression. Control Council Law no. 10 (CCL 10), signed on December 20, 1945, less than five months after the promulgation of the IMT charter and while the trial of the major war criminal was only entering its third month, already supplied a definition of crimes against humanity that differed from the definition framed by the IMT in two notable respects. First, CCL 10 expanded the range of crimes against humanity to include “atrocities and offenses” such as “imprisonment,” “torture,” and “rape,” acts not mentioned in 6(c) of the IMT charter. Second, and perhaps more significantly, CCL 10 severed the nexus requirement that conditioned the justiciability of crimes against humanity to their link to crimes against peace. The practical significance of the severance of the nexus requirement should not be overstated. It appears that many of the NMT judges failed to appreciate the significance of this change and continued to hew narrowly to the IMT precedent of insisting on a nexus.
On the other hand, the change wasn’t entirely lost on the subsequent tribunals, as the judgments in both the Justice and the Einsatzgruppen cases specifically discuss the shift. Of course, even here the practical consequences of the tribunals’ pronouncements shouldn’t be exaggerated, as both cases ultimately dealt with crimes against humanity committed during and not before the war. Still, their dicta reflect an important conceptual appreciation of the rapidly changing contours of the meaning and application of crimes against humanity.
As Heller rightly notes, a further sign of the ascendency of the atrocity paradigm was the greater reliance that NMT jurists placed on the concept of genocide. In his judgment in the Einsatzgruppen case, Judge Michael Musmanno, spoke sardonically of the “development of the fine art of genocide.” And Benjamin Ferencz, in his opening statement for the prosecution, described the “crime of genocide” – though the term as had yet to gain independent legal status.
Heller ably demonstrates not only that the NMT made important contributions to the atrocity paradigm as later adumbrated in the coursework of the ICTY and the ICTR; he also convincingly argues that the NMT was in certain respects more progressive than these latter day courts. In particular, he makes a good case that aspects of the ICTY’s jurisprudence of joint criminal enterprise represents a retrogression from the NMT’s more nuanced—and arguably fairer—approach to enterprise liability. The book is not without its minor missteps, however. Roland Freisler, the notorious President of the Volksgericht (The People’s Court), is referred to as “Frieser.” And Heller curiously, at least to my mind, sides with those who treat the bar against retroactivity as a principle of sovereignty, when a powerful case can be made—as it was in the judgment of the Justice case—for treating it as a principle of justice. But these are minor quibbles. I should also note that Heller’s book will soon have company. Kim Priemel, a historian at Humboldt University in Berlin, and Alexa Stiller, a historian at the University of Bern, have edited a multi-volume work that offers studies of each trial and which represents a collaboration among scholars in Switzerland, Germany, France, the United States, Israel, and Canada. (I should add that I’m a contributor to this project). The Priemel and Stiller project, however, focuses less on the legal legacy of the trials and more on their contribution to historical understandings of the Nazi state. In this way, the Priemel and Stiller volumes promise not to supplant Heller’s work but to complement and support its critical project of rescuing the NMT from its decades of scholarly neglect.
 See, for example, the papers collected in Herbert R. Regenbogin and Christoph Safferling, eds., Die Nürnberger Prozesse: Völkerstrafrecht seit 1945 / The Nuremberg Trials: International Criminal Law Since 1945: Internationale Konferenz zum 60. Jahrestag /60th Anniversary International Conference (München, 2006).
 See “Report of the International Law Commission covering its Second Session, 5 June-29 July 1950, Document A/1316,” reprinted in Yearbook of the International Law Commission II (1950): 374-378.
 In his widely used textbook on international criminal law, former ICTY president Antonio Cassese fails to mention the NMT cases; Antonio Cassese, International Criminal Law (2nd Edition Oxford, 2008).
 See, for example, the “Grievance Project”: http://grievanceproject.wordpress.com/2008/05/07/professor-john-yoo-and-the-justice-case/ [accessed 8/5/2010].
 The Justice case never reached the question of the liability of legal officials in international law for legal advice. See the discussion by Heller in, “John Yoo and the Justice Case,” http://balkin.blogspot.com/2008/05/john-yoo-and-justice-case.html [accessed 8/5/2010]. As Heller makes clear in his book, it was arguably the Farben case that provided a better precedent for this argument.
 See, Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, (London, 1993). Admittedly Taylor had planned to write separately about the NMT trials, though died before the completion of the manuscript that he was preparing with Jonathan Bush.
 See James E. St. Clair and Linda C. Gugin, Chief Justice Fred M. Vinson of Kentucky: A Political Biography (Lexington, 2002).
 Annette Weinke, Die Nürnberger Prozesse (München, 2006), 63.
 See, Valerie Hebert, Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (Lawrence, 2010), 178-181.
 See Peter Reichel, Vergangenheitsbewältigung in Deutschland: Die Auseinandersetzung mith der NS-Dikatur in Politik und Justiz (München, 2007), Norbert Frei, Adenauer’s Germany and the Nazi Past. (New York, 2002), Jörg Friedrich, Die Kalte Amnestie: NS-Täter in der Bundesrepublik (Berlin, 1994), and Ulrich Brochhagen, Nach Nürnberg: Vergangenheitsbewältigung und Westintegration in der Ära Adenauer (Berlin, 1999).
 See generally Bradley F. Smith, The Road to Nuremberg (New York, 1981). Also Telford Taylor, The Nuremberg War Crimes Trials: War Crimes and International Law. (New York, 1949) and Robert Jackson, “The Significance of the Nuremberg Trials to the Armed Forces: Previously Unpublished Personal Observations by the Chief Counsel for the United States,” Military Affairs 10, no. 4 (1946): 2-15.
 Jonathan A. Bush “ ‘The Supreme…Crime’ and Its Origins: The Lost Legislslative History of the Crime of Aggressive War” Columbia Law Review 102 (2002): 2324-2424.
 The use of forced labor, a crime against humanity, also played a key role in the three industrialists trials; experiments and slave labor also stood at the heart of the Milch case.
 For a full text of CCL 10. See Taylor, Final Report, Appendix D.
 Case 9,Opinion and Judgement, TWC, IV, 450.
 Case 9, Opening Statement for the Prosecution, TWC, IV, 32.