Irish Examiner view: The rule of law remains paramount

The shadow of Nuremberg and the modern legal processes it established  continues to serve us well

Chief US prosecutor Robert Jackson addresses the bench at the Nuremberg War Crimes Trials in Germany in this Nov. 21, 1945 file picture. Prisoners are on left. It introduced the concept that no one could escape the consequence of their actions. AP Photo/Pool

Just over 75 years ago, an event concluded in Germany which has reverberated through, and influenced, the primacy of international law to this day.

Those people who can remember it are likely to be in their late 80s and 90s, or among the 400 to 500 people who are aged 100 or above in the Republic of Ireland. All of these people are national treasures whom we should speak to as frequently as possible because they maintain the importance of the oral tradition in the collective consciousness.

Many things were remarkable about the Nuremberg trials of Nazi war criminals, not least the speed at which they were implemented and brought to a conclusion — a rate of progress that seems wholly counter to modern experience, where the wheels of justice can grind ever slower.

Also remarkable was the fact that establishing a global jurisprudence that would bring retribution against aggressors and a measure of public justice for millions of victims was formulated in 1942 when the Allies — the US, the Soviet Union, Britain, and France — were at the lowest ebb in their military fortunes in the conflict.

Originally the British did not want a judicial hearing, favouring instead a drumhead court-martial under a senior army officer, followed by summary executions. The Russians wanted a show trial followed by the same fatal consequences for the guilty.

They also suggested sending 50,000 German officers directly to the firing squad. “Surely 49,000 would do just as well?” US president Franklin Delano Roosevelt mordantly joked.

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The Americans won the day, something for which they should always be honoured, by establishing military tribunals where evidence was presented before eight judges and for which the accused had a right to legal representation to answer the charges placed by prosecuting attorneys.

In the end, Nuremberg consisted of 13 trials with more than 100 defendants. The most famous was the first, which determined the guilt or innocence of 24 of the major Nazi civil and military leaders as war criminals. It concluded 75 years ago last month after opening in November 1945 and reaching its conclusions within 11 months. Its verdicts were followed by a series of executions.

This 1946 photo shows Margarete Himmler, centre, wife of the German SS Chief who committed suicide, as she reads over some papers at Nuremberg with her daughter Gudrun, right, watched by Louise Cuyon-Witzschel, who was secretary at the SS headquarters in Italy, They were waiting to testify in the trial of Major Nazi War Criminals. AP Photo,File

Other hearings included the ‘Justice Trial’ (judges and Reich Ministry officials); the ‘Doctors’ Trial’ and the ‘Einsatzgruppen Trial’ (SS and death squads.) Nuremberg marked a change in the application of justice that would be followed by the UN, the establishment of the International Criminal Court, and, following it, the European Court of Justice. Many of its tenets are encapsulated in the Universal Declaration of Human Rights.

It introduced the concept that no one could escape the consequence of their actions.

“All who shared in the guilt shall share in the punishment” proclaimed FDR, who died before the trials opened but whose successor, Harry S Truman, vigorously pursued the notion that “only obeying orders” was not a permissible defence.

Four legal precedents were established which redound into 2021 and the years ahead. They cover conspiracy to wage
aggressive war; waging aggressive war and crimes against peace; war crimes that cover the killing and mistreatment of prisoners of war, slave labour, and the bombing of civilian populations. And then there is the subject of crimes against humanity which was originally created to address justice for Jews, ethnic minorities, the physically and mentally handicapped, and civilians in occupied countries.

“What we propose is to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilised code,” said the chief US prosecutor, Robert H Jackson.

Nuremberg has become one of the foundation stones of modern international law, with its remit influencing the hearings into the Rwandan Hutu/Tutsi genocide, the massacre at Srebrenica in Bosnia, and the policies of Slobodan Milosevic while he was in charge of Serbia and Yugoslavia.

This history is important now because all the signs are that turmoil is increasing in Eastern Europe and a dangerous situation is emerging on the borders of Poland and Belarus, where illegal migrants from the Middle East are being encouraged to push their way into the EU. How that will be stopped is not yet clear.

In the US, the congressional contempt case against former Trump aide and ally Steve Bannon, for what is being presented as a coup against democracy last January, will rely heavily on the release of documentation from his records and from the previous incumbent of the Oval Office.

Understanding precedent and the rule of law is something that will continue to bear upon all our lives. In the short years ahead, the adherence to legal human rights will be something that we all come to rely upon increasingly. It would be as well to understand the antecedents. The shadow of Nuremberg and the modern legal processes it established may continue to serve us well.