A Comment on Kevin Heller’s Nuremberg Military Tribunals and the Origins of International Criminal Law

Michael R. Marrus is Chancellor Rose and Ray Wolfe Professor Emeritus of Holocaust Studies and Adjunct Professor of Law at the University of Toronto, and the author of The Nuremberg War Crimes Trial l945-46: A Documentary History (Bedford Books).  His most recent book is Some Measure of Justice: The Holocaust Era Restitution Campaign of the 1990s (Wisconsin).

Hats off to Kevin Jon Heller, not only for a splendid and comprehensively learned survey of these important trials, but also, and at long last, for putting the Nuremberg Subsequent Proceedings (as I still prefer to call them) properly on the legal and historical map.   As Heller acknowledges, the sad truth is that these twelve trials of 177 accused German war criminals – held under American auspices and in the American zone of occupation of Germany between 1946 and 1949 – have been relatively little studied; particularly when compared to the much more famous trial before the International Military Tribunal (IMT), familiarly known as the Nuremberg Trial.   Just a week ago I read an judicious book by a learned jurist who erroneously (as indeed with many of my students, not to mention distinguished historians, lawyers, judges, journalists and statesmen) referred to the Nuremberg Trials, in the plural, while intending to denote the proceedings before the IMT.  Egregiously, this error was once committed by none other than Brigadier General Telford Taylor himself, the man in charge of the Nuremberg Subsequent Proceedings, who entitled his book on the IMT The Anatomy of the Nuremberg Trials (sic), a work that has scarcely a word about the Nuremberg Military Trials.  Over and over again, colleagues will acknowledge, this mistake reappears – reminding us that the “Nuernberg Military Tribunals, Trials, War Criminals before the Nuremberg before the Nuremberg Military Tribunals under Control Council Law No. 10” (to cite the official reference to the so-called ‘Green Series,’ those trials’ proceedings, bound in green) or the “Subsequent Nuremberg Proceedings” or the “Nuremberg Subsequent Proceedings” have persistently failed to find a commensurate place in the scholarly discourse – or the discourse on justice-seeking following the end of the Second World War, or even, for that matter, the general discourse on international criminal law.  I cannot say that no one will commit this error after this important book appears; but Heller’s work will surely lend conspicuous authority to the requirement that the IMT be distinguished from the Nuremberg Trials!

I do have a quibble: following the practice of several historians, Heller uses the designation Nuremberg Military Tribunals (NMT) for the twelve trials.  He has good reason for this: after all, “Nuremberg Military Tribunals” was the term used by Telford Taylor himself, and this nomenclature has been taken up by several (of the rather few) authors who write about the subject.  However, the problem here is that these military tribunals are easily confused with other American postwar military tribunals.  I am referring to what are sometimes called the “Dachau Trials” – no fewer than 489 proceedings of U.S. Army courts (military commissions and special or general military courts), held in the liberated Dachau concentration camp, and which heard the cases of 1,672 individuals, mostly concentration camp personnel, and also others, mainly German military and civilians, accused of atrocities against American soldiers and airmen.   Confusingly, these are often designated – as they are in Heller’s book – as the Dachau Military Tribunals, or “military tribunals” in lower case.  Sometimes, unfortunately, one finds them in the literature in upper case, with “tribunal” in the singular or plural.   Meanwhile, the Subsequent Proceedings are sometimes also referred to as the “American Military Tribunals” or the “United States Military Tribunals.”    Confusion abounds: and so even with this fine book we are not quite out of the nomenclature woods yet!

Similarly on the matter of terminology, I must report the only time I winced in reading this 509 page volume.   I mention the matter because I fear the point may be misunderstood by those who mistakenly limit their reading to Heller’s very short introduction.  In it, the author has a few paragraphs on why the NMT trials are “particularly important.”  (I can see graduate students zeroing in on this passage – and if they so limit themselves, they will miss much too much.)   “The NMT trials are particularly important,” Heller contends, “because they foregrounded the Holocaust in a way that the IMT did not” (p. 4).

Well, yes and no.   It is true that the crimes against the Jews “played a largely ancillary role in the [Nuremberg] trial,” as Heller quotes Lawrence Douglas as saying (p. 4), but that role was not insignificant either. Considerable evidence on the persecution and genocide of the Jews was presented to the IMT, and I have argued elsewhere that historians have not always taken this fully into account.   Partly in response to well-informed Jewish lobbying of the American prosecution team, but also in response to elements of the Soviet, French and British prosecution cases, including riveting eyewitness testimony, important matters such as the number six million Jewish victims, the prewar persecution, the role of the Einsatzgruppen, ghettoization, the Warsaw Ghetto Uprising, the importance of Auschwitz, were all referenced at the first Nuremberg Trial, sometimes dramatically so, and often for the very first time.   As the proceedings progressed there were indications of increasing appreciation of the way in which this information defined a distinct genocidal catastrophe. But it took time for this notion to gel.  Taylor himself noted that he himself did not become aware of the Holocaust until he was exposed to the documents and witnesses at Nuremberg – and by this statement he may well have been referring to both the IMT and the NMT.

Reference to “the Holocaust” in this connection is hazardous not only because the term scarcely existed at the time, but because contemporaries were generally unused to distinguishing the massacre of European Jewry from other atrocities of the Hitlerian state.   Some did, but most did not.  Heller recounts a little-know incident in which Telford Taylor advised an associate that a trial dedicated entirely to what we call the Holocaust might not be a good idea because “most of the people who played an important role in ordering and planning the Jewish extermination probably committed many other crimes as well” (p. 81).  Heller finds Taylor’s thoughts on this matter “troubling,” and thinks that this reaction “trivialized the crimes committed against the Jews” (p.81).   I’m doubtful, certainly if the suggestion is that that was Taylor’s intention.   Given the information that Taylor had only recently, and perhaps partially digested, this may well have been a failure of the imagination, but given all that we know about him, I think the evidence for intentional trivialization is weak.

What Heller means to say about the broader issue – and on this I agree with him heartily – is not only that evidence about attacks on Jews in various contexts was frequently introduced and thus disseminated as a didactic element of the NMT proceedings, but that the jurisprudence associated with genocide and crimes against humanity, notably concerning the Jews, was importantly developed at these trials.  His book takes careful note of how this occurred.   Heller highlights the way in which “the modern conception of crimes against humanity owes an incalculable debt to the work of the NMTs” (p. 382).   Importantly, Control Council Law No. 10, which defined the parameters of the proceedings and defined the charges against the accused, eliminated the “nexus requirement” for crimes against humanity – setting aside the IMT’s required linkage of those crimes with war crimes or crimes against peace.   Quite unlike with the IMT, the judgments of the NMT were replete with judicial guidance on contextual elements, the substantive elements of the crimes, modes of participation, and defenses.   Thereby, the law on these matters was significantly developed – to a degree that went far beyond that of the IMT and which provides an indispensable basis for deciding modern-day cases.  Benefiting from being out of the spotlight of the IMT, and sheltered too from its powerful political currents and procedural challenges, the “NMT’s took the raw materials provided to them – the London Charter, the IMT judgment, Law No. 10 – and honed them into a coherent system of criminal law” (pp. 400-1).

Heller’s strongly positive assessment of the NMT, of course, is a lawyer’s and not a historian’s judgment: the real achievement of these trials, he argues, was in the long run.   In the immediate wake of the trials, they appeared merely to have scratched the surface of justice-making.   Taylor’s administration identified 2,500 suspected major war criminals, and the tribunals tried only seven percent of them.    So far as the didactic purpose of the trials was concerned, the German population, the intended students, turned strongly against the proceedings, and viewed them much less charitably than the already somewhat unpopular IMT.   Moreover, with a new cold war with the Soviets, and with mounting expense and bother for the trials’ administration, the American government lost interest in them, shifted priorities to German postwar recovery and brought the proceedings to a premature conclusion.   And then, in a sad aftermath of the teaching purpose, the convicted saw their sentences commuted or shortened, and major war criminals were progressively released from custody.  The last NMT prisoner left the Landsberg prison in 1958, and Heller is right to note that “the collapse of the U.S. government’s commitment to the NMT’s fatally undermined the didactic goal of these trials” (p. 400). But the story does not end there, and this is where Heller offers an important corrective to the historians’ view. For it turns out that the IMT’s had an illustrious afterlife. Here we are, more than half a century later, with a new book, making a convincing case for the trials’ “inestimable contribution to the form and substance of international criminal law” (p. 400).   And a careful scholar takes over 400 pages to summarize their very substantial contribution to international criminal law.   Not a bad outcome, I would think.