Vol. 43-No. 3 ISSN 0892-1571 January/February 2017-Shevat/Adar 577^
THE MIXED LEGACY OF NUREMBERG
IN THIS ISSUE
tive nature of the newly announced
laws and the jurisdictional problems
posed by a multinational court j-
there was a fundamental question of
justice posed. Contemporary com¬
mentators wondered whether judges
appointed by the victorious govern¬
ments — and politically accountable
to those governments — could be
expected to listen
with an open mind to
the prosecution evi¬
dence offered by the
Allies and to the
defense claims sub¬
mitted on behalf of
erstwhile enemies.
A review of the trial
nearly 70 years after
the fact leads to the
conclusion that the
judges did a com¬
mendable job of try¬
ing to be fair. They
did, after all, acquit
three of the twenty-
two defendants, and
they sentenced
another seven to
prison terms rather
than hanging. But
results, of course,
are not the only or even the best crite¬
ria for evaluating the fairness of a
trial. Furthermore, it is impossible to
determine with hindsight whether the
core leaders, such as Goring, von
Ribbentrop and Rosenberg, ever had
a chance, or whether the acquittals
and lesser sentences for some of the
others were a ploy to make it appear
that proportional justice was being
done.
In the end, it was the documentary
evidence — the Germans’ own
detailed record of their aggression and
genocide — that provided the smoking
guns. Document after document
proved beyond any doubt that the
Nazis had conducted two wars: One
was their aggressive war against
Europe (and eventually America) for
military, political, geographic and eco¬
nomic domination. The other was their
genocidal war to destroy “inferior”
races, primarily the Jews and Gypsies.
Their war aim was eventually crushed
by the combined might of the
Americans and the Russians. Their
genocidal aims came very close to
(Continued on page 3)
She loved him, and he died in the Holocaust . 2
How my grandmother helped the “Japanese Schindler” save Jews . 3
Among the enemy: hiding in plain sight in Nazi Germany. . 4
Walking in the footsteps of the innocents of Babi Yar. . 5
Professional Development conference on Holocaust education . 6
ASYV Young Leadeship Associates Winter Gala . 8-9
Nazis’ descendants sing “Hatikva” to Holocaust survivors . 10
Even in the gas chambers, miracles can happen . 12
Did the Jew who “sparked” Kristallnacht survive the Holocaust? . 14
Holocaust survivors celebrate seven decades of marriage . 16
persuaded by Secretary of War Henry
Stimson that summary execution was
inconsistent with the American com¬
mitment to due process and the rule
of law.
It was decided, therefore, to con¬
vene an international tribunal to sit in
judgment over the Nazi leaders. But
this proposal was not without consid¬
erable difficulties. Justice must be
seen to be done, but it must also be
done in reality. A show trial, with pre¬
dictable verdicts and sentences,
would be little better than no trial at
all. Indeed, Justice Jackson went so
far as to suggest, early on, that it
would be preferable to shoot Nazi
criminals out of hand than to discredit
our judicial process by conducting far¬
cical trials.
The challenge of the Nuremberg tri¬
bunal, therefore, was to do real justice
in the context of a trial by the victors
against the vanquished — and specif¬
ically those leaders of the vanquished
who had been instrumental in the
most barbaric genocide and mass
slaughter of civilians in history.
Moreover, the blood of Hitler’s mil¬
lions of victims was still fresh at the
time of the trials. Indeed, the magni¬
tude of Nazi crimes was being
learned by many for the first time dur¬
ing the trial itself. Was a fair trial pos¬
sible against this emotional back¬
drop?
Even putting aside the formidable
jurisprudential hurdles — the retroac¬
BYALAN M. DERSHOWITZ
This year commemorates the
80th anniversary of the notori¬
ous Nuremberg Laws, the Nazi racist
enactments that formed the legal
basis for the Holocaust. Ironically, it
also marks the 70th anniversary of
the Nuremberg Trials, which provided
the legal basis for prosecuting the
Nazi war criminals who murdered mil¬
lions of Jews and others following the
enactment of the Nuremberg Laws.
There is little dispute about the evil
of the Nuremberg Laws. As Justice
Robert H. Jackson, who was
America’s chief prosecutor at the
Nuremberg Trials, put it: “The most
odious of all oppressions are those
which mask as justice.”
There is some dispute, however,
about the Nuremberg trials them¬
selves. Did they represent objective
justice or, as Hermann Goring charac¬
terized it, merely “victor’s justice”?
Were the rules under which the Nazi
leaders were tried and convicted ex
post facto laws, enacted after the
crimes were committed in an effort to
secure legal justice for the most
immoral of crimes? Did the prosecu¬
tion and conviction of a relatively
small number of Nazi leaders excul¬
pate too many hands-on perpetra¬
tors? Do the principles that emerged
from the Nuremberg Trials have con¬
tinued relevance in today’s world?
Following the Holocaust, the world
took a collective oath encapsulated in
the powerful phrase “never again,”
but following the Nuremberg Trials,
mass murders, war crimes and even
genocides have been permitted to
occur again and again and again and
again. Cambodia, Rwanda, Darfur,
the former Yugoslavia and now Syria.
Why has the promise of “never again”
so frequently been broken? Why have
the Nuremberg principles not been
effectively applied to prevent and
punish these unspeakable crimes?
Will the International Criminal Court,
established in 2002, be capable of
enforcing the Nuremberg principles
and deterring future genocides by
punishing past ones?
Whether the captured Nazi
leaders — those who did not
commit suicide or escape — should
have been placed on trial, rather than
summarily shot, was the subject of
much controversy. Even before the
end of the war, Secretary of the
Treasury Henry Morgenthau had pro¬
posed that a list of major war crimi¬
nals be drawn up, and as soon as
they were captured and identified,
they would be shot. President
Roosevelt was initially sympathetic to
such rough justice, but eventually
both he and President Truman were
