Seventy years ago, on 30 September 1946, Lord Justice Lawrence, the presiding judge of the International Military Tribunal, began reading out the judgement in the trial of the so-called major German war criminals at Nuremberg.
For nearly a year the remnants of the Third Reich’s top brass, led by Hermann Goering, had stood trial for crimes against peace, crimes against humanity, war crimes, and a conspiracy to commit the aforesaid crimes. Against the backdrop of the sheer scope of Nazi criminality, it took two full days to summarize the findings of the four-power tribunal, constituted by the victorious Allies in summer 1945, before the sentences were finally handed down to Goering and his fellow defendants. Of the 24 men named in the indictment twelve were to be hanged, ten would serve long prison terms, some for life, and three were acquitted; one had been too ill to stand trial.
The panel of eight judges, four each from France, the Soviet Union, the UK, and the US, plus alternates, chose forceful, yet also sober words, signalling to the public in and outside the courtroom that their judgment resulted not from political determinations but from disinterested weighing of facts and literally judicial reasoning. For some members of the bench, though, the judgement was somewhat too sober, and the British alternate Norman Birkett bemoaned “the absence of the direct condemnation of the kind to be found in the pages of Gibbon.” Alas, the former star barrister and High Court judge in London noted, “there are but few Gibbons in this world, and they are not usually to be found among His Majesty’s Judges!”
Despite Birkett’s misgivings history – though not of Gibbon’s epic type – was very much present at Nuremberg. Both the International Military Tribunal and the Nuernberg Military Tribunals, the dozen war crimes trials held under American aegis from 1946 to 1949 in the same location as their famous predecessor, were underpinned by a strong historiographical current. This current condensed an understanding of German history which would come to be known as the Sonderweg theory, the idea that Germany had diverged from other European and North American societies and had embarked on a course of militarism and authoritarianism in politics, cartelization and state capitalism in economics, and various strands of Romanticism and Historicism in the humanities. Building on nineteenth-century works, and particularly on writings from World War I, a massive wave of ‘What is wrong with Germany’ publications had come out since the Nazi assumption of power in 1933 and kept flourishing well into the post-war years. Both of the pamphleteering and the academic kind, and available in various languages, these writings greatly influenced the Allied prosecutors at Nuremberg who were looking for a comprehensive narrative to glue together wide arrays of crimes, very different types of perpetrators, and various crime scenes.
Possibly even more important, the Nuremberg trials’ very ambition to “give meaning to the war” as one influential prosecutor put it, while at the same time reforming Germans, made the special path paradigm so compelling. By integrating the literally incredible Nazi crimes into a larger narrative of historical deviation from standards which were attributed to ‘Western’ and ‘Modern’ societies, the moral downfall of an apparently civilized people could be explained.
At the same time, Allied ethical superiority was to be reaffirmed at Nuremberg, fending off arguments from the German defendants and their counsel that the Allied conduct of a war which was widely perceived to be “total” had not been all that different from that of their German counterparts: had British and American generals and admirals not engaged in aerial bombardment and submarine warfare, not to speak of nuclear bombs, too? And had Allied industrialists not mobilized their resources for war just the same as their peers in the Third Reich? The response to such arguments, known to lawyers as tu quoque – literally, ‘you, too,’ the words allegedly uttered by the dying Caesar to his treacherous son Brutus – was to be found in history: similarities between Germany and the ‘Western’ nations were formal and superficial only whereas profound differences characterized the two sides in all sphere of society. However, showing where Germans had gone wrong in the past by implication also pointed to how they could be corrected and brought back into the fold in the future. In this respect, Nuremberg was a constructive, reformist effort.
Theories are brilliant, particularly in theory. In court, however, the practicalities of criminal trials, especially due process and fair trial requirements and the need to prove individual guilt rather than historical shortcomings, resulted in mixed results for the prosecutors. In a handful of proceedings the evidence at hand actually defied special path narratives because for all that the prosecutors knew the differences between Germany and their own countries had often not been particularly remarkable. In other cases the prosecution stuck to the argument but found the judges unconvinced that the German defendants – say industrialists or military officers – had been all that different from their international peers. Still in others, the tribunals simply didn’t care too much for history but insisted on straight criminal law proceedings. If these standards weren’t met, the accused were duly acquitted.
The Nuremberg trials therefore do not only serve as an example of how historical readings may inform lawyers’ interpretations of the actions and crimes, the agents and contexts at hand. They also highlight the risks of under-reflected usages of history in the courtroom and the need for lawyers and historians to cooperate. This is particularly pertinent to transitional trials, i.e. those proceedings which are held in times but also as instruments of regime change. In these, there is no escaping history. Yet historians should also beware of rebound effects and circularity: feeding interpretations into legal proceedings whose sources will later be employed for historical analysis bears resemblance to self-fulfilling prophecies (if in reverse) and risks creating logical fallacies. With an eye to the tribunals and courts established at Arusha, Freetown, The Hague, and elsewhere, such reflections appear more pressing than ever.
Source: OUP Blog
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