Great article by John Wear here:How The Nuremberg Show Trials Perverted Justice & Then American Law Schools: A Case Study Of The Southern Methodist University’s Nuremberg Attorneyshttps://archive.is/RMfDU
or https://wearswar.wordpress.com/2018/10/ ... attorneys/
The following quotes are from:
Doenitz at Nuremberg: A Re-Appraisal edited by H. K. Thompson, Jr. and Henry Strutz, 2nd edition, Torrance, CA: Institute for Historical Review, 1993.
Hon. Koka Subba Rao, LL.D., Chief Justice of the Supreme Court of India:
My brief comments on the subject relate to two aspects:
(1) Whether the convictions of the accused by the International Tribunal at Nuremberg were supported by international law;
(2) Whether the conviction of the Grand Admiral Karl Doenitz of the German Navy was valid.
Article 6 of the Charter establishing the international military tribunal for the trial of the war criminals authorized the tribunal to try three categories of crimes, namely:
(1) Crimes against peace;
(2) War crimes (crimes against the rules and customs of war) and
(3) Crimes against humanity.
The charges against the accused before the said tribunal were that they in pursuance of their common plan conspired and waged wars of aggression in violation of international treaties, agreements or assurances. The objects of the conspiracy were (1) to abrogate and overthrow the treaty of Versailles and its restrictions on military re-armaments; (2) to acquire territories lost by Germany in the First World War; and (3) to acquire still further territories in continental Europe at the expense of neighboring and other countries. The defendants raised the following points in their defense: (1) There could be no punishment for a crime without a pre-existing law, nullum crimen sine lege, nulla poena sine lege; (2) ex post facto punishment is opposed by the law of all civilized nations; (3) no sovereign power had made aggressive wars a crime at the time of the commission of the alleged criminal acts; (4) aggressive war had not been defined by any law, nor any penalty prescribed, nor any court created for the trial and punishment of offenders accused of such crimes; (5) they were only acting under the orders of Hitler and they were bound to carry out such orders.
The Tribunal rejected the said pleas. It held that the first maxim was only a principle of justice and was not a limitation of sovereignty, that the defendants knew the treaties signed by Germany outlawing recourse to war, particularly that embodied in the pact of Paris, that as Germany in resorting to war broke the said pact, and that as the said pact was legal in international law, those who were parties to the plan to wage the said war had committed an international crime.
In my view the judgement is assailable. It was mainly based on the pact of Paris. But a close scrutiny of that pact discloses that it was merely a record of a common understanding between the signatories and that it did not constitute the declaration of war as an international crime so as to make each individual participant in the war liable for an international crime. Indeed the pact was not acted upon in the context of war waged between some of the signatories and therefore remained a dead letter. If that pact had not the force of international law, as I show it had not, the whole conviction based upon the breach of that law was bad.
The aforesaid two fundamental principles of criminal jurisprudence that there can be no punishment of a crime without a pre-existing law and that ex post facto punishment was opposed to the law of all civilized nations are as much the integral parts of international law as they are of national law. As there was no law at the time the alleged acts were committed declaring the waging of war or a conspiracy to wage a war as war crimes, the said principles of justice would preclude the Tribunal from relying upon the charter for convicting the defendants for war crimes.
That apart, it is not possible to hold definitely who was the aggressor in the conflict between the two groups of countries. In the context of a war the concept of aggressor may only mean the leader of a losing party. If the Allies lost the war, Germany could have with equal plausibility named the Allies as aggressors. In the olden days the conqueror slaughtered the leaders of a defeated country and pillaged and plundered the properties of the people of the said country. The Nuremberg trial is only an institutionalization of the said act of vindictive retaliation. The aggressors destroyed the defeated leaders through the legal process of a Tribunal in disregard of all principles of natural justice. The Judges were nominated by the victorious countries. The defeated leaders were convicted for offences that were not in existence at the time they waged the war. The whole trial was one sided and contrary to principles of natural justice.
Be that as it may, I am of the view that Grand Admiral Karl Doenitz of the German Navy was illegally convicted of the offences. He was a subordinate officer and was acting under the orders of Hitler. If he did not act he would have been court martialed. By no stretch of imagination could it be said that he was a member of the conspiracy to wage the aggressive war against the Allies, nor was there any clear evidence to hold that he acted viciously on his own contrary to the orders issued to him.
At the same time it is necessary to have a judicial tribunal to decide the war crimes on the basis of clear and precise concepts of international law. The United Nations shall bring about an international treaty clearly defining the incidents of a war crime and the judicial procedure for enforcing the said law. It shall constitute an international Tribunal comprised of Judges from all the neutral states so that both the victor as well as the vanquished can be tried by the said Tribunal for the breach of the international law of war crimes. While I therefore agree that the Nuremberg trial did not comply with the requirements of law, I am strongly of the view that it is necessary to have an independent international Tribunal, which could objectively go into the war crimes irrespective of the fact they were committed by the vanquished or the victorious on the basis of a clear and precise international law of war crimes.
Lieutenant General Andrew Davis Bruce, LL.D, third president of the University of Houston:
History repeated itself after the Second World War. In fact, the demand for revenge was far greater, due to the even greater scale of the war in part, but due more to the politically revolutionary character which the struggle took in many areas. There was undeniably a breakdown in the observance of traditional rules of warfare, particularly with regard to civilian populations. It was thought immediately after the end of hostilities that the measures complained of had been largely resorted to by the Axis powers, but subsequent information indicates that certain of our principal allies were guilty of equal or worse excesses. Also, it is doubtless true that new weapons and tactics made observance of the traditional rules difficult, especially where air or submarine warfare was involved.
The circumstances that had prevented proceedings against individual soldiers and statesmen of the defeated countries were absent at the conclusion of the Second World War. The major Allied powers yielded to the pressure of certain of their citizens and instituted a program of proceedings after criminal trials. In order to justify such proceedings, they evolved many new theories of ‘law.’ The soundness of such theories from the technical viewpoint of the lawyer was doubtful, and the wisdom of the program from the standpoint of the statesman appeared even more doubtful. Considerable criticism from responsible opinion was heard at the time, and the events of subsequent years have tended to confirm this criticism.
The Nuremberg trials, which were the best known and may be taken as typical, grouped the alleged crimes of the defendants into four categories: (a) Waging aggressive war, (b) Conspiracy to wage aggressive war, (c) Crimes against humanity, and (d) Violations of the laws of war. The first two are closely related, differing as to technicalities of proof. They both assume that there is such a thing as ‘aggressive’ war which can be legally distinguished from other kinds of war. Of the four categories, only the last had any substance under international law as it had generally been understood prior to the time of the trials.
Prosecutions for violations of the laws of war represented the major exception to the principle that an individual would not be held legally responsible for consequences of military operations in which he was engaged. Such prosecutions can be justified for the reason that all major powers had accepted in principle the existence of such rules, and most had subscribed to multilateral treaties such as the Geneva Convention setting them out in detail. The rules, could as a result, be regarded as a portion of the domestic law of the countries concerned. An officer or soldier violating them, or ordering his subordinates to violate them, could thus be considered to have violated the laws of his own country.
The prosecutions were carried out, and various persons were condemned to death or imprisonment. They have duly suffered the infliction of the penalties adjudged. Emotions have somewhat cooled on the issue in the intervening period. It remains to consider whether the precedent is a sound and desirable one. It is the viewpoint of the writer that the answer should be ‘no’. The grounds for this view are numerous.
First, the precedent cannot do other than gravely handicap the process of ending any war and the restoration of international peace and friendship. Formerly, a government engaged in a losing war had every motive to make peace on terms at the earliest possible moment. Under the new rules, however, the strongest possible motive exists for continuing the war to the bitter end. Substantial numbers of the population may find themselves subject to trial and branded as criminals by the occupying forces. (Entire organizations, it should be remembered, were condemned at Nuremberg). The officers of government who must actually make the decisions, being the likeliest candidates for the noose, are those with the strongest reasons for continuing the struggle.
Secondly, it is impossible as a practical matter to secure an impartial tribunal. Nationals of the victorious powers cannot and will not do other than reflect the positions of their governments as to the true versions of facts and as to the proper law. It is also impossible to avoid the effect of ex post facto law. Since the proceedings can be depended on to lack these basic elements of any civilized system of criminal law, it is unlikely that the vanquished nations or even fair-minded elements of the victor nations will come to accept them as representing justice.
Thirdly, it places an impossible burden of the government and on the higher military officers of a warring state. It is their duty to do all in their power to win. It is also their duty to obey their lawful superiors. They are rightly subject to punishment in this respect. To impose on them liability for carrying out an order which an enemy tribunal may later adjudge unlawful is to punish them for doing what may and probably will appear at the time to be the duty they have sworn to do.
Finally, to engage in measures which, however cloaked in legality, are in fact no more than vengeance and reprisal is to promote the breakdown of the rules which have in recent centuries governed the conduct of warfare among civilized states, and to reinstate the law of the jungle. As a practical matter, the late war crimes trials will be taken by those involved in warfare as establishing only the principle that many of those on the losing side will suffer death or imprisonment. That leads to the thought that one had better not lose, which in turn leads to the conclusion that any method of warfare is justifiable if it brings victory. One must dissent from the view that this is progress.
The conclusion drawn is, therefore, that the result of the program for the trial of ‘war criminals’ was not to advance the cause of civilization or the elimination of warfare among nations, but instead to increase the probability of unlimited warfare and to raise problems of a sort not yet fully apparent.
Roger Peyrefitte, French author of more than 22 books:
There are no war crimes. The crime is the war! This was already obvious after World War I when the Netherlands, where the former Kaiser Wilhelm II had taken refuge, refused to surrender him to the Allies. During this war, while the Allies were contending that they were defending civilization, Lloyd-George had proclaimed that the Kaiser would be shown through the United Kingdom in an iron cage! Later, the Supreme Court of Leipzig acquitted the German chiefs who had been singled out as war criminals. The only evident crimes during a war are those committed against civilians…
The fundamental aim of the Soviets, at the end of the last war [World War II], was to single out war criminals. They knew they were deepening the cleavage between the Occidental powers that the war had separated. This led to the Nuremberg trials…there were no war criminals among the mass of German generals and admirals. They were responsible only for having lost the war. Vae Victis. The only real justification of a war is to be the winner! If the Japanese had won the war, under the same principle they would have attempted to hang those in America who were responsible for the atomic bombing of Hiroshima.
The exaggerations of the Nuremberg Tribunal were proved by the prosecution of Gustav Krupp, whose sole responsibility was to have manufactured war weapons. How can one justify today the life imprisonment of Rudolf Hess, who sought to put an end to the war? And the execution of Field Marshal Keitel, who signed the Armistice of May 1945? The ten-year imprisonment of Grand Admiral Doenitz was a flagrant injustice. And the present effort of Keith Thompson and many other fair Americans to get the historical record straight in the troubled world of today, compels my personal esteem and admiration. I think this feeling should be shared by all those who still believe in ‘historic’ justice.
Hon. Lydio Machado Bandeira de Mello, Dr. Juris. Brazilian educator, jurist and author of more than 40 works on law and philosophy:
I disapprove of everything which was done in that counterfeit court in which the victorious side in the war arrogated to itself the roles of accusing party, indicting part, and judge against individuals pre-selected from the losing side of the war. No trial ought to be held contrary to the fundamental norms of procedural penal law dictated and established by the consensus of men of good will.
There is a basic rule for a fair and valid judgment, based on human rights, namely: Nobody may be judged by a court interested in the condemnation of the accused. Therefore, no court set up by the victors of a war has sufficient moral capacity for judging persons pre-selected as scapegoats among the losers of the war. The victor has hatred towards the defeated who were provoked to fight him, and usually he committed the same crimes as his adversary. If the victor would hang his own war criminals, together with those of the defeated nations, then one could speak of justice. However, even so, it would be usurping the role that should fall to a super-national or world state. Without the existence of a world state, of a world penal code, of a world code of penal procedure, of a super-national judiciary power, and of an army capable of imposing discipline and obedience to the Law on recalcitrant nations, the term ‘war crime’ has no legal meaning. Acts of law are acts of defiance of the law, of disobedience to reason, and today a warring people kills multitudes of civilians (in the majority, women and children) and destroys irreplaceable property acquired by generation after generation. And today’s weapons are so atrocious, so ingeniously invented to destroy and to burn, that Dante would regard the verses of his Inferno as inadequate to express the indescribable torments that such weapons bring about.
A nation that spreads over another a sheet of inevitably deadly gasses or eradicates entire cities from the earth by the explosion of atomic bombs, does not have the right to judge anyone for war crimes; it has already committed the greatest atrocity, equal to no other atrocity; it has killed—amidst unspeakable torments—hundreds of thousands of innocent people.
Let us consider the existence of a world state and a world penal code, and then the designation ‘War Crime’ takes on legal meaning: a ‘War Crime’ would be any act of major atrocity, of unnecessary cruelty, of patent inhumanity, prohibited by the world penal code. And such offense may have been committed both by officials or soldiers of a victorious side and by officials or soldiers of a defeated side. However, even so, defendants would have the right to justify their acts before a world court which would judge them impartially, invoking, in their favor, the same causes impeditive of condemnation that a criminally indicted citizen can invoke in his own national courts. He would have the right: (a) to deny the allegations; (b) to contest or invalidate the evidence brought against him; (c) to allege and prove the bias of the judge; (d) to prove that he acted in lawful defense of his country (or of his troops) with the requisites of lawful defense which the world penal code would establish; (e) to prove that he acted in a state of necessity, i.e. that he practiced a considerably lesser evil in order to avoid a considerably greater evil; (f) to prove that he acted in compliance with an order from higher authority to which he could not refuse obedience, because it was invested with the requisites established by law.
When a group of victorious nations seizes and condemns for war crimes individuals pre-selected among the leaders and mentors of the defeated nations, this is not a judgment—it is a reprisal.
American attorney Warren Magee, who served as defense counsel in the Ministries Trial:
“An eye for an eye and a tooth for a tooth” is the driving force behind the prosecutions at Nuremberg. While it grieves me to say this, the prosecution staff, its lawyers, research analysts, interpreters, clerks, etc. is largely Jewish. Many are Germans who fled their country and only recently took out American citizenship. Jewish influence was even apparent at the first trial, labeled the IMT. Atrocities against Jews are always stressed above all else…
With persecuted Jews in the background directing the proceedings, the trials cannot be maintained in an objectivity aloof from vindictiveness, personal grievances, and racial desires for revenge…
Basic principles have been disregarded by “new” Americans, many of whom have embedded in their very beings European racial hatreds and prejudices.
Remy, Steven P., The Malmedy Massacre: The War Crimes Trial Controversy, Cambridge, MA: Harvard University Press, 2017, p. 134.
Book by Jewish-American psychologist Gustave Gilbert, who observed and spoke with NSDAP leaders during the trial. It is biased, but in many instances shows how confused the Germans were about these charges. The Nuremberg Diary
PDF: http://web.archive.org/web/201909150141 ... -diary.pdf
TXT: http://web.archive.org/web/201909150148 ... g/k67BC9cN
Example, Robert Ley: "How can I prepare a defense? Am I supposed to defend myself against all these crimes which I knew nothing about?
If after all the bloodshed of this war some more s-sacrifices are needed to satisfy the v-vengeance of the victors, all well and good... stand us against a wall and shoot us!—All well and good—you are the victors. But why should I be brought before a Tribunal like a ... criminal?"