Nuremberg War Trial: A Critical Examination

The Nuremberg War Trial: A Critical Examination by Charles E. Wyzanski, Jr. (1946)

I. Introduction and Author's Stance

  • Significance of the Trial: The Nuremberg War Trial is presented as the most significant and debatable event since the end of hostilities.

    • Supporters' View: It represents the first effective recognition of world law to punish those who start wars or conduct them inhumanely.

    • Adverse Critics' View: It appears as a negation of fundamental principles of justice under law.

  • Lack of Public Debate: The division of opinion has not been fully aired due to foreign policy implications, fear of impairing national prestige, and the obvious deservingness of punishment for the defendants.

  • Judge Wyzanski's Introduction: Charles E. Wyzanski, Jr., a Judge of the United States District Court for Massachusetts, clarifies that his critique of the trial's legal foundations should not be construed as a call for the defendants' release.

    • He believes thousands of Germans, including many Nuremberg defendants, deserve permanent removal from society (through death or imprisonment) for grievous wrongs.

    • Justifications for Punishment: Prevention, deterrence, retribution, and even vengeance are deemed adequate motives.

    • Central Question: The debate revolves around the theory upon which such punitive action may properly be taken.

II. Examination of the Indictment Counts

  • The indictment of October 18, 1945, charges approximately 2020 individuals and various organizations across four counts:

    1. Conspiracy

    2. Crimes Against Peace

    3. War Crimes

    4. Crimes Against Humanity

A. Count 3: War Crimes (Strict Sense)

  • Existence of International Law: Most jurists agree there is an abbreviated list of war crimes universally accepted.

    • Hague Convention of 1907 (Articles 46 & 47): The United States and other nations accepted rules for occupied territory, including:

      • Respect for family honor and rights, lives of persons, private property, religious conviction and practice.

      • Prohibition of confiscation of private property.

      • Formal prohibition of pillage.

    • US Law: The Supreme Court has recognized these rules as part of US law.

  • Legal Standing for Punishment: There is no doubt of the legal right of nations (prior to a peace treaty) to use a military tribunal to try and punish Germans for acts like murdering Polish civilians, torturing Czechs, raping Frenchwomen, or robbing Belgians in occupied territory, or for murdering, torturing, or maltreating prisoners of war.

  • Defense of Superior Orders: This is the only question of law relating to war crimes worth discussing.

    • Legal Status: It is an open question, not fully recognized as a complete defense in German, Russian, or French law, nor by civilian courts in the US or British Commonwealth.

    • Ambiguity: It tends to be accepted as a complete excuse by Anglo-American military manuals.

    • Nuremberg Tribunal's Action: If the International Military Tribunal (IMT) refuses this defense, it is not making a retroactive or ex post facto determination, but merely settling an open question of law, as courts frequently do.

    • Consonance with Justice: Refusing this defense is consistent with our ideas of justice because:

      • Military efficiency is not the paramount consideration.

      • Individual self-preservation is not the highest value.

      • Analogy: Just as killing Z (a companion on a raft) to save X and Y from starvation is murder, a German soldier is guilty of murder if he shoots a Catholic priest to avoid being shot for disobedience himself or his wife being tortured. This is a