Joseph Persico,
Nuremberg: Infamy on Trial
(New York: Penguin Books, 1994), 520 pages.

book essay by Sofia Menchaca
March 7, 2006

for Prof. Marcuse's lecture course
Germany since 1945
UC Santa Barbara, Winter 2006

About Sofia Menchaca (back to top)

I am a senior majoring in International Relations at UCSB. After graduation, I plan on attending law school and studying International Business Law. I chose this book because I had previously studied the trial of Adolph Eichmann, the architect behind the Holocaust, and wanted to learn more about the war crimes trial process and how Nuremberg’s legacy will affect and influence contemporary trials, such as that of Saddam Hussein.

Abstract

Joseph Persico’s historical narrative is a detailed account of the Nuremberg trials, providing an in-depth examination of the Nazi defendants and shedding light on the deeper, more subtle simultaneous conflicts that underlie and intensify the legal battle. He addresses the three main criticisms of the trial: its basis in ex post facto law, its lack of jurisdiction, and victor vengeance. Persico also places the unfolding events within the context of increasing East/West tensions and the coming Cold War, as well as illuminating the personal and professional struggles of those involved. His main intent is to demonstrate that despite their inevitable shortcomings, the trials were not an abysmal failure. Their mere occurrence is in itself significant and worthwhile. He stresses the importance of the "why" factor, and how understanding the motives and reactions of the defendants helps us to understand the thoughts and behaviors of the German public at large. The Nuremberg trials, though perhaps legally flawed, nonetheless delivered satisfactory justice. The proceedings were far better than either simply shooting the top leaders, as some, including Churchill, advocated, or letting the crimes go unpublicized and unpunished. The trials have helped to preserve an important, though painful and shameful, aspect of history for generations that have no personal knowledge of World War II. The trials were the first of their kind; hence their intrinsic historical importance.

Essay (back to top)

Introduction

In Joseph Persico’s historical narrative, Nuremberg: Infamy on Trial, the significance of the events of 1945-1946 is reevaluated using first-hand accounts and interviews from people who had never before talked about Nuremberg. What lessons were learned or lost after the trial of the Nazi leadership? Was it a victor’s vengeance or an authentic attempt to pursue justice? Had not war crimes been committed on all sides? Why were only those on the losing side tried? With these historic trials, the age-old distinction between law and justice resurfaced (Persico xi), leading to debates and criticisms questioning the International Military Tribunal’s legitimacy on purely legal grounds and leaving a mixed legacy. If the law at Nuremberg was flawed, does it follow that the justice meted out was flawed as well? In addition to the legal battle, several other conflicts bubbled below the surface, not the least of which were the increasing tensions between the Western capitalist democracies and Soviet authoritarian socialist states; a microcosm of the coming Cold War played out in the Nuremburg courthouse. Persico uses the participants’ own writings, letters, and transcribed histories, along with archival documents, contemporary press accounts, and the trial transcript itself to emphasize that although many denunciations haunt the tribunal and its proceedings, the Nuremberg example is more than a "beautiful idea murdered by a gang of ugly facts" (Persico 443). A legal precedent was established, making the theoretical notion of supranational justice more realistic and increasing the prospects for effective war-crimes trials, and has ensured that the atrocities committed are documented and preserved as historic fact.

Legal Foundations

The idea of branding Nazi atrocities as war crimes had arisen even before the United States entered World War II (Persico 16). The idea of prosecution through an international tribunal, however, posed significant problems from the outset. There were no precedents, no existing body of law, not even a court (Persico 11). Supreme Court Associate Justice Robert Jackson was appointed by President Truman on May 2, 1945 (Persico 12) as U.S. representative and chief counsel for the prosecution. He had to separate the racial aspects of the trial to prevent it from being judged as simply an exercise in vengeance; these Nazis were persecuted not because they had killed Jews but because they had killed people (Persico 27). Jackson had to devise an approach that encompassed both the individuals with blood directly on their hands and the top leaders who issued, signed, and enforced the orders. Building upon a brief top secret document, the "Trial of European War Criminals", created by Colonel Murray Bernays of the War Department in September 1944, two concepts were formed as the basis of the legal machinery. First, the Nazi regime was a criminal conspiracy: a deliberate, concerted effort to wage war and exploit and exterminate entire populations. If the whole Nazi movement was a criminal plot, then those who created it were, ipso facto, criminals. This would enable authorities to prosecute the Nazi elites (Persico 17). To catch the lower-level war criminals, the organizations that had made up the Nazi apparatus, such as the party, the SS, and the Gestapo, were declared criminal as well. Second, the act of waging an aggressive war was itself declared a crime. In 1928, Germany had signed the Kellogg-Briand Pact for the "Renunciation of War as an Instrument of National Policy". By breaking this treaty, Germany was not waging a legitimate war when it invaded her neighbors but was instead committing murder, assault, and destroying property (Persico 18).

The Allies wanted a triumph of superior morality. The trials could be the greatest accomplishment in the history of civilization, where aggressive warfare would be an unacceptable crime and future aggressors would be deterred by the Nazi example. The war-ravaged cities of Europe, reduced to piles of rubble, and the millions of innocent casualties furthered this sense of mission. For the world at large, no criminal statutes existed. A court had to be invented and given authority and procedures had to be agreed on. A statute describing the defendants’ crimes and penalties for conviction had to be written. However, Anglo-Saxon law recognized criminal conspiracy but the concept did not exist in Continental courts, complicating the four-power international court. Secondly, defining acts as criminal after they had been committed was ex post facto law, or bastard law. Moreover, declaring whole organizations, some with millions of members, as criminal left great potential for injustices (Persico 18). Of the three obstacles, the greatest obstacle was overcoming the criticism that they were creating ex post facto law. Obviously the Nazis had committed naked aggression and unprecedented atrocities, but what laws had they technically broken (Persico 33)? The rationale was crafted that by creating a court and defining procedures and punishment, they were merely adding the missing element of enforcement to the early 20^th century treaties. If no punishment followed violation, what was the point of all the world capitals signing them (Persico 33)? One U.S. prosecutor mused, "I suppose the first person ever charged with murder might well have said ‘See here, you can’t do that. Murder hasn’t been made a crime yet.’" (Persico 138).

To ensure the prosecution’s case would not collapse at trial, the two most obvious defense claims were declared inadmissible in the statute. The Germans under Hitler operated under the concept that the Fuhrer had absolute authority and his orders were implemented down the pyramid of power. The argument that the accused was simply carrying out superior orders could not be permitted. If it was allowed, then they would only be able to convict Hitler, and he was dead (Persico 35). The second unacceptable defense claim was tu quoque, or the "so-did-you" defense. Atrocities had been committed on all sides, but this defense implied that because some murderers went free, then all murderers must go free, and no justice would be rendered. Complicating matters was the fact that Russians would be sitting in judgment. They were planning to prosecute aggression as a war crime, yet Russia invaded Finland in 1940 and seized Polish territory through their 1939 Non-Aggression Pact with the Nazis (Persico 36). It would be hypocritical to deny that there was no element of vengeance in a war-crimes trial. Germans were being prosecuted because they had lost the war; aggression was defined by the victor.

The Trial

Nuremberg was the city where the Nuremberg laws had been proclaimed, statutes that deprived German Jews of their rights, their property, and eventually their status as human beings (Persico 38). The place to drive home German criminality was Germany, though Persico mentions repeatedly that the majority of the population was more concerned with daily existence and largely ignored what they viewed as propaganda. Twenty-three major war criminals were charged on October 19, 1945, including Hermann Goering, Admiral Donitz, General Jodl, Hans Frank, Wilhelm Frick, Hans Fritzsche, Field Marshall Keitel, Albert Speer, Fritz Saukel, Baldur von Schirach, and Ernst Kaltenbrunner. All pled not guilty. Though the validity of the purist legal foundation of the indictments is still debated today, the London Charter attempted to ensure fairness on behalf of the defendants. They were allowed counsel of their own choice, paid for by the Allies, even permitting former Nazis as defense lawyers (Persico 94). The tribunal even allowed lengthy explanations and diatribes by the defendants, especially Goering, much to the dismay of Allied prosecutors. Defense lawyers had equal access to the Allied evidence and unlimited time with their clients, translation services and legal support teams (Persico 438). The point was to prevent the defendants from later claiming they had been denied the right to a fair trial. Nuremburg could not be allowed to become a legal Versailles, planting seeds of resentment in the German populace (Persico 94). Jackson purposely stated in his opening statement that "though the law is first applied against German aggressors", to serve a useful purpose it must also condemn "aggression by any other nation, including those which sit here now in judgment" (Persico 137). His opening statement illustrates that the Allied powers, and Jackson in particular, were looking to the future as they designed the legal machinery behind the indictments. It was their personal mission to ensure that these trials would serve as a historical example and set the bar for rendering international justice. The defendants at Nuremberg were granted more privileges and concessions than ordinary criminals, another testament to the efforts put forth to dispel cries of victors’ vengeance and hypocrisy.

Conclusion

The trial in the final analysis raises the distinction between law and justice. All the men who went to prison or were executed were willing, knowing, and committed accomplices in a vast and malignant enterprise. They were all there for valid moral, if not technically perfect legal reasons; but then, the murderer who gets off on a technicality has experienced law but not justice (Persico 440). It can be argued that evil unpunished deprives us of a sense of moral symmetry in life, and that to punish evil has a healthy cathartic effect, confirming our belief in the ultimate triumph of good over evil. Nuremberg may have been flawed law, but it was satisfying justice (Persico 440). The one indisputable good of the trials is the permanent record of Nazi Germany’s heinous crimes for the generations that grow up without personal knowledge of World War II. Polls have shown that up to twenty-two percent of all Americans doubt the Holocaust as historic fact (Persico 441). The Third Reich was a foul creation and the revelations exposed at Nuremberg made that fact palpable and destroyed the possibility of Nazi martyrdom. Not a single defendant at Nuremberg ever denied that the mass exterminations occurred; only that he had lacked personal knowledge and responsibility. Despite the criticisms of an ex post facto proceeding that lacked legitimacy and amounted to victor’s vengeance, its very occurrence has set a historic example and established the framework for persecution of contemporary war crimes, such as in Yugoslavia and Iraq. The negative aspects of the trial are outweighed by the positives results, including documentation, precedent, and catharsis, lending a sense of moral symmetry in life and confirming our belief in the ultimate triumph of good over evil.

Bibliography and Links (back to top)

Reviews of Persico’s Book:

• By D.E. Showalter, U.S. Air Force Academy, in Library Journal 1994 (at amazon.com)
• In Kirkus Reviews, Kirkus Associates 1994

Related Books:

• Alexander, Charles W., and Anne Keeshan. Justice at Nuremberg: A Pictorial Record of the Trial of Nazi War Criminals by the International Military Tribunal at Nuremberg, Germany, 1945-1946. (Marvel Press, 1946).
• Conot, Robert E. Justice at Nuremberg. (New York: Harper and Row, 1983), 593 pages. Conot reconstructs in a single, absorbing narrative not only the events as Nuremberg but the offenses with which the accused were charged. He characterizes each of the defendants, vividly presenting each case and inspecting carefully the process of indictment, prosecution, defense and sentencing.
• Davidson, Eugene. An Account of the Twenty-two Defendants before the International Military Tribunal at Nuremberg. (Columbia: Macmillan, 1966), 637 pages. Davidson was an observer of the Nuremberg trials and by profiling each defendant, concluded that they can be defended as a political event if not as a court. The trial succeeded in doing what judicial proceedings are supposed to do; it convinced even the guilty that the verdict against them was just. Faulty from a legal point of view, it nonetheless was a cathartic event for millions of people and preserved history for the generations to come.
• Ratner, Steven R. and Jason S. Abrams. Accountability for Human Rights Atrocities in International Law : Beyond the Nuremberg Legacy. (New York: Oxford University Press, 2001), 488 pages. This book was the winner for the Certificate of Merit for Best Academic Book by the American Society of International Law. It is a comprehensive study of the promises and limitations of individual accountability as a means of enforcing international human rights and humanitarian law.

Websites:

• The Avalon Project: The International Military Tribunal for Germany is a searchable database containing many original documents regarding the Nuremberg War Crimes Trials. (www.yale.edu/lawweb/avalon/imt/imt.htm)
• Court TV, "A Look Back at Nuremberg," offers an index and description of the major participants. (www.courttv.com/casefiles/nuremberg)
• Nuremberg Trials Project – Introduction. Access to digitized photographs, court proceedings, and search engine of analyzed documents in Harvard Law School Library. (www.nuremberg.law.harvard.edu)