Discussing Heller’s The Nuremberg Military Tribunals and the Origins of the International Criminal Law

Alexa Stiller is a Lecturer in the Department of History, University of Bern, Switzerland; e-mail: alexa.stiller [at] hist.unibe.ch

Kevin Heller has written a very important book that provides the first comprehensive legal analysis of the Nuremberg Military Tribunals (NMTs). His main argument is that the twelve trials are of paramount historical importance, not only because they created a huge amount of documentary evidence of the crimes of the Third Reich but first and foremost because the tribunals played an important role in the development of international criminal law (and to make this clear from the outset, I absolutely agree with his assumption).

Heller’s book is divided in five sections, each consisting of three chapters. Sections one and five, the origins of the NMT trials and the aftermath as well as their legacy, are the historical parts of the book, the middle sections are dedicated to a legal discussion of the Tribunals, the law and procedure, the jurisprudence, and the modes of participation and defenses that the Tribunals approved. Although Heller has written an essentially juristic book, he has no blinders on concerning historical methods. He tries to connect both disciplines and I highly appreciate the effort. In this comment I would like to show two aspects – strictly from the viewpoint of a historian – where his analysis does not make full use of the potential for differentiation. First, in examining the people who played an active role in the trials; secondly, in analyzing the interpretations and narratives in the courtroom. (This and the following reflections are presented in more detail in my co-edited volume Unearthing the Subsequent Nuremberg Trials. Transitional Justice, Trial Narratives, and Historiography. Oxford/New York: Berghahn 2012 (forthcoming)).

Heller succeeds in taking the NMTs out of the shadow of the IMT by showing that the judgments of the NMT trials were much more sophisticated than their predecessor, e.g. in terms of the interpretation of crimes of humanity or concerning the different ways of participation in crimes. He is also able to close some factual gaps on the subsequent Nuremberg trials, namely, the origins of Control Council Law No. 10 (CCL 10), the evolution of Telford Taylor’s Office, Chief of Counsel of War Crimes (OCC), the planning of the trial program, and its dynamics from 1946 to 1949. Furthermore, Heller discusses progressive as well as conservative interpretations of the international law by the tribunals in their judgments. He argues convincingly that the judgments of the tribunals were highly progressive in many fields.

However, as he also shows, especially the Hostages tribunal adapted a very conservative reading of the Hague Conventions regarding the treatment of partisans and the taking of hostages. Basically, it said that the shootings of partisans as well as the execution of hostages by the Wehrmacht in Yugoslavia and Greece had been congruent with the law. But CCL 10, the law of the NMTs, would have enabled a different take on contemporary martial law and therefore a different outcome in respect of the sentences, the impact, and the legacy of the Hostages case, as Heller rightly mentions. He concludes that the Geneva Conventions of 1949 amended one of these misinterpretations, and banned hostage takings and shootings as a deterrent or reprisal. However, the recognition of partisans as combatants and Prisoners of War was much more difficult to implement in international law. Interestingly and maybe as a result of his rather strict legal approach, Heller finds no connection between the very conservative interpretation of the law and the judges’ standpoints. Although he is well aware of the open clash between Judge Wennerstrum, the presiding judge in case 7, and Taylor, and its impact on German and American criticism of the U.S. war crimes trials program in general, Heller does not question the situatedness of Wennerstrum’s standpoint and does not connect this to the conservative judgment.

Also, Heller does not discuss the specific interests and political motives of key players of the NMTs, but focuses on their respective functions in the structure of a lawsuit. This, inevitably, leads to a certain historical decontextualization in his analysis of the trials’ outcomes. Thus, for example, German lawyers appear in their courtroom role as defense counsel but remain nameless, possibly because they seem to be of lesser interest as individuals for strictly legal research questions. One wonders, though, whether the reading of the trials’ transcripts might not have revealed more insights into the courtroom dynamics and the exchange of defense and prosecution arguments if the analysis had gone beyond the published materials in the TWC volumes. But reading all transcripts is beyond the strength of one person and Heller has already used a bulk of material.

Heller also seems to be less interested in the intellectual background of the trials. In fact, a whole epistemic community made out of experts from various academic disciplines and fields of expertise contributed to the conception of the NMT trials. The OCC did not plan/compose the trials and chose defendants by simply lumping together members of the same occupations, but devised them according to their institutional affiliation. Taylor’s so-called “institutional approach” escapes Heller’s attention. But this approach became the backbone and organizing principle of OCC’s trial program, and it owed a lot to Franz L. Neumann’s early analysis of the structures of the Third Reich. Neumann’s central assumption in his famous study, Behemoth, was that the Nazi Regime relied on four societal pillars for its power: the military, the state bureaucracy, the Nazi party (including the SS), and big business. OCC’s investigations, trial programs, and inner-office organization manifestly followed Neumann’s classification.

Furthermore, Heller’s analysis would have gained if he had considered that trials like the Nuremberg proceedings are per se –as Otto Kirchheimer put it – “political trials”, not in a derogatory sense but in appreciation of their legitimizing function in times of political transition. Accordingly, the term “transitional justice” does not appear once in the book. But this is what the NMT trials were first and foremost: the judicial and didactic means of a process of Vergangenheitsbewältigung (coming to terms with past). The twelve trials were stages on which several conflicting stories were presented and negotiated, with an eye to both individual cases and the history of the Third Reich in principle. Prosecutors on the one hand, and thr defendants together with their lawyers on the other, presented sharply contrasting narratives, and frequently judges constructed a third set, amalgamating the arguments of the antagonists and adding their own perceptions and interpretations.

Lest there be any doubt, Heller is well aware that the historical context is crucial for the analysis of the NMT trials. He just does not apply it consistently  – in particular when discussing court decisions. For instance, he objects to the familiar argument  that the sentences of the twelve trials became more lenient over the years. However, his own point meant to falsify this thesis does not really carry. Heller states that the sentences regarding criminal membership did not significantly change over the time from 1946 to 1949. But if he had looked at the atrocity cases, he would have come to a different conclusion. There was a certain dynamic within the twelve trials regarding the jurisdiction in cases concerning mass violence. The sentences did indeed change but on the basis of several factors: The sentences handed down at the end of the trial series were most severe, if, firstly, the defendant had directly participated in atrocities (perpetrators of violence vs. Schreibtischtäter), and secondly, if the defendant had been a member of the SS (a prominent example is SS-Obergruppenführer Gottlob Berger in the Ministries case). The explanation for this is that a specific narrative emerged during the trials, namely, that the SS had carried more responsibility for mass violence against civilians than the Wehrmacht or the state bureaucracy. In this context, Heller’s analysis also overlooks the context of the early Cold War, which led to a focus on mass violence against people in the “West,” which included all European Jews while ignoring alleged communists in the “East” – partisans in Yugoslavia and Greece, as well as Soviet POWs and the Soviet civilian population generally.

A stronger emphasis firstly on the personal interests of the key players and secondly on courtroom narratives, and thus a critical approach to the problems which derive from the construction of history while applying international law, would have made what is a compelling book even stronger. Despite the criticism above – and it is always easy to ask for more – Heller has given us an excellent, long overdue book on the NMTs, and I hope it will find many appreciative readers, especially among the protagonists of today’s international tribunals.