Myth: Nuremberg Trial Met the Necessary Legal Standards

Unfortunately (actually, very unfortunately, it did not). The main Nuremberg trial was a highly controversial event (to put it mildly). Mostly political event that had much less to do with justice than it should have had.

No one in his or her right mind would dispute the need for such a trial, given the enormity of war crimes committed in Europe during World War II. There was no doubt, either, that Nazi Germany committed the most heinous of these crimes and was responsible for the largest death toll (by far).

However, it did not mean that other belligerent nations did not commit war crimes and crimes against humanity (they did). Or that the trial should ignore the most basic and universally recognized principles of justice and due process (unfortunately, it did).

To ensure that the justice is done (with no miscarriages of the latter), victorious Allies should have done what was done half a century later – after the bloody civil war in (now former) Yugoslavia. Establish the International Criminal Tribunal (ICT) under the auspices of the United Nations that has been just established.

This Tribunal (actually, its investigative office) should have conducted a thorough investigation of all reports of war crimes and crimes against humanity committed during World War II.

Information about all crimes committed during the war and about the perpetrators of these crimes (from both Axis and Allied nations) was to be handed to the prosecution for preparation of proper indictments for the criminal trial.

To adhere to the most fundamental principle of fairness and impartiality, all investigators and prosecutors (as well as judges, of course), should have been recruited from the neutral nations – Spain, Portugal, Ireland, Sweden and Switzerland.

Given the fact that the gravity of crimes committed warranted capital punishment, the defendants should have been tried by the jury – twelve jurors from the neutral countries. Obviously, the defense should have been allowed to participate in jury selection.

To establish the proper legacy, the trial should have been conducted according to the highest standards of justice – defendant is presumed innocent until proven guilty beyond the reasonable doubt; ruthless cross-examination of witnesses by both prosecution and defense; and the highest possible legal requirements for the admission of evidence.

Unfortunately, nothing of that happened. There was no impartial investigation; it was explicitly forbidden even to mention the possibility of crimes committed by the Allies; both the prosecution and the judges were recruited from the victorious Allies – adversaries of Nazis during the war (impartiality tossed out of the window); defense was not allowed to cross-examine witnesses; evidence was accepted without any evaluation as to admissability; defendants were not allowed to appeal or affect the selection of judges; there was no jury…

German defendants were indicted and prosecuted for the very same things the Allies have been doing themselves. For example, German defendants were indicted for conspiracy to commit aggression against Poland in 1939, while no one from the Soviet Union was charged for being part of the same conspiracy (Molotov-Ribbentrop pact of August 1939).

The court agreed to relieve the Soviet leadership from attending these trials as war criminals in order to hide their own crimes that included carving up Poland in 1939 and attacking Finland three months later. This “exclusion request” was initiated by the Soviets and subsequently approved by the court’s administration.

No wonder prominent Western jurists were highly critical of the Nuremberg trial. For example, Chief Justice of the United States Supreme Court Harlan Fiske Stone openly called the Nuremberg trials a fraud.

The Economist, a British weekly newspaper, criticized the hypocrisy of both Britain and France for supporting the expulsion of the Soviet Union from the League of Nations over its unprovoked attack against Finland in 1939 and for six years later cooperating with the USSR as a respected equal at Nuremberg.

And – what was hypocrisy par excellence – right during the Nuremberg trial the Soviet Union and its East European puppets were committing a monstrous crime against humanity, deporting millions of Germans (who were guilty only of being German) from Eastern Europe.

Twelve million were deported and over two million murdered. It was genocide plain and simple, but no one was ever charged with this crime (let alone convicted).

To put it bluntly, in Nuremberg the infamous “victors’ justice” was unilaterally imposed on defendants by highly prejudiced judges and prosecutors.

Which means that had there been a legitimate appeals court that followed the universally accepted principles of criminal justice and of due process, all guilty verdicts would have undoubtedly been overturned and all defendants would have walked free. And never tried again for these crimes (due to the double jeopardy principle).

It also means that, although some (but not all) of the defendants were guilty de-facto, de-jure they all of them are not guilty. Not innocent, just not guilty. This is a cold hard legal fact.



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