Can We Right the Wrongs of the Main Nuremberg Trial?

Of course, we can. To right there is wrongs (and thus to ensure that the genuine justice is done), it is necessary to first acknowledge the cold hard legal truth – that the main Nuremberg Trial violated the most basic principles of criminal justice and thus was legally invalid (null and void).

To do that, the United Nations must establish a one-time Special Appeals Tribunal specifically for the purpose of righting the wrongs (the miscarriages of justice) committed by the main Nuremberg Trial. Which will overturn all verdicts of the Nuremberg Trial and declare all defendants not guilty de-jure.

However, because of the gravity of crimes committed, the Tribunal will explicitly rule that the double jeopardy principle does not apply to defendants. In other words, effectively declare a mistrial.

Which means that the defendants must be retried (obviously, in absentia). Consequently, the Tribunal will set a date for a new (and a very public) trial, which will be conducted according to the highest legal standards (i.e. the way it should have happened in 1945).

However, unlike in 1945, this Tribunal will investigate all war crimes and crimes against humanity committed by all belligerent nations and thus will investigate, persecute, indict and try both German and Allied war criminals.

To ensure the maximum possible impartiality of the trial, it will be held not in Nuremberg (obviously), but in the only appropriate major city – Stockholm. And thus will be known as the Stockholm Trial.

The Tribunal will set up Office of Investigations and Office of the Prosecution – staffed, obviously, with fair and impartial investigators and prosecutors from nations that were neutral during World War II – Spain, Portugal, Ireland, Sweden and Switzerland.

Given the fact, that Germans have been subjected to an omnipresent anti-Nazi propaganda, the defense team will also be selected from the neutral nations. For the maximum impartiality, the presiding judge will be selected (with the approval of both prosecution and the defense) from a list of prominent and impartial Swedish criminal judges.

Given the fact that the gravity of crimes committed warranted capital punishment, the defendants will be tried by the jury – twelve jurors from the neutral countries. Selected by both prosecution and defense.

This time, there will be only one official language of the court – English. Given the fact that most relevant documents will be originally in German, all investigators, prosecutors, defense counsels, judge and jury must be fluent in German and English.

As all defendants will be tried in absentia, no plea bargain on behalf of the defendants will be allowed. However, the prosecution will be allowed to drop the charges against the defendants by making an official statement to the court in which it will explain why there is no evidence that would support the indictment of the defendant in question. Which will drastically reduce the number of defendants in court.

Because defendants will be tried in absentia, the list of defendants will include Adolf Hitler and other leaders of the Third Reich who were not tried at all or were tried in absentia – Martin Bormann, Heinrich Himmler, Joseph Goebbels, Reinhard Heydrich and Robert Ley.

It will also include leaders and officials of Allied nations (the Soviet Union, Great Britain, the USA, etc.) charged with war crimes and crimes against humanity.

Prosecution and defense will be given considerable time – a year – to prepare their cases, after which the trial will begin. And, given the fact that the gravity of the crime warrants capital punishment, the Tribunal will establish the Appeals Board to which guilty verdicts (and death sentences) can be appealed. This Board will pronounce the final verdicts – whatever they happen to be.



Nuremberg Trial: No Deterrent

One of the noble objectives of the main Nuremberg Trial was to serve as a powerful deterrent (actually, this is one of the objectives of any criminal trial). In other words, to make sure that war crimes and crimes against humanity (genocide, democide, other mass murder, etc.) never happen again.

Unfortunately, with the message sent by the trial, it is no surprise that it was no deterrent. In fact, 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). For a very simple reason – these crimes were committed by the victors.

However, it was not the only genocide/democide committed after the World War II. There were at least four other:

  1. Democide in Communist North Korea (1948 – 1987). Death toll: over 1.6 million. Other estimates run as high as 3.5 million. Persecutions and murder of ‘enemies of the people’ continue to this day.
  2. ‘Cultural Revolution’ in China (1966 – 1976). Death toll – 3 million (more than perished in Operation Reinhard). 36 million more were persecuted (beaten, imprisoned, sent to forced labor camps, exiled to rural areas, etc.). Large-scale human rights abuses are still a part of a supposedly modern China.
  3. Khmer Rouge democide in Cambodia (1975 – 1979). Death toll – 2 million (about 25% of the total population). Pol Pot and his cronies would have killed a lot more, but, fortunately, the Vietnamese invaded Cambodia in 1979 and quickly put an end to the Khmer Rouge bloody dictatorship and its crimes.
  4. Tutsi genocide in Rwanda (1994). In just three months (April – July) about 1 million Tutsis (the same number of Jews have been killed in Auschwitz in three years) have been killed in unspeakably brutal ways. This massacre could have easily been prevented but neither the UN, nor any major power (Britain, France, the USA, etc.) cared a damn. It seems that nothing has changed in half a century.



Nuremberg Trial: The Wrong Message

Someone once said: “The Nuremberg Trial was a noble idea corrupted by politics”. There were, indeed, very noble ideas behind the Nuremberg Trial (however, there were also ideas that were not noble at all).

One of the noble ideas was to send a loud and clear message to leaders and statesmen of all nations:

Do not commit war crimes or crimes against humanity. If you do commit these crimes, you will be arrested, prosecuted, indicted, charged, tried, convicted and executed”.

Unfortunately, this noble idea got so corrupted by politics (actually, by ignoble ideas) that the Nuremberg Trial delivered a radically different message. In many ways, exactly the opposite message:

Do not lose the war. If you lose the war, you will be arrested, prosecuted, indicted, charged, tried, convicted and executed – even for the crimes that you did not commit. Even for your actions that at that time were not considered a crime at all.

Win the war. Because if you win the war, you will get away with any war crime or crime against humanity you have committed – no matter how horrible. Moreover, if you win the war, you can arrest, prosecute, indict, try, convict and execute your defeated enemies – whether they committed any crimes or not. Even more than that – you can commit the same crimes they are being tried for right during that very trial with complete impunity

Now that’s corruption par excellence. No wonder a prominent America judge (actually, a Superior Court judge) openly called the main Nuremberg Trial a fraud. Which in many ways it was.


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.