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The Nuremberg Judgment Revisited: The Bernays Postulate
Published online by Cambridge University Press: 21 May 2009
Extract
Recent research papers, by an eminent historian, on America's “road to Nuremberg” may be taken as a starting-point for a renewed analysis of this jurisprudential – and political – experience. The red thread to be followed is Colonel Bernays' postulate on the prosecution of war criminals – shorthanded as “conspiracy/criminal organization” – already in an advanced stage of elaboration before the three deaths in March 1945 which changed the whole pattern of summing up the politics of the war and its lessons, for both victors and vanquished. The first to die that month, on the 12th, was Roosevelt. On the 28th Mussolini was murdered, and Hitler committed suicide on the 30th.
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References
1. The reference is to three books Professor Smith, Bradley F. published between 1977 and 1982, quoted as follows: “BS. I” The Road to Nuremberg (New York 1981)Google Scholar; ‘BS. II” The American Road to Nuremberg, the Documentary Record, 1944–45; (1982) and “BS. HI” Reaching Judgment at Nuremberg (New York 1977)Google Scholar. Thus, BS. I is the historical narration, BS. II the documentary file going with it, and BS. III the narration of how the postulates had worked out; most of the documents in BS. II are otherwise inaccessible. In BS. III, p. 27, the claim is made, astonishing when first read, that a Memorandum, of 15 September 1944 (text in BS. II p. 33 et seq.), submitted by Colonel Murray C. Bernays “is the most important single source for the ideas that shaped the subsequent prosecutions at Nuremberg”, nay, that it may be one of the most significant documents in modern international law.
2. The latter provision would have held good also for Mussolini who was soon, heading a “Social Republic” in northern Italy, to rejoin the operations of his retreating German ally, and was marked, had he lived until then, to join the German “major war criminals”.
3. Nevertheless, certain US documents, produced roughly within one year after April 1945 still provide for the arraignment of “Axis Power war criminals”. Nothing having been done for a materialization thereof, all efforts were concentrated on Germany, and the clause “other Axis Powers” appears as a reservation of rights, rather than as a reality. The Peace Treaties of Paris, 1947, put an end even to that.
4. BS. I p. 25. The document itself is not available here. But BS. II p. 29, reproduces Roosevelt's memo to the Secretary of War, of 26 August 1944, beginning with: “this so-called ‘Handbook’ is pretty bad…”
5. BS. I p. 20 and 266/12.
6. The full titles are Handbook of Military Government for Germany and Interim Directive on Occupation Procedures (which later evolved into Order No. 1067 by the Joint Chiefs of Staff); excerpts are reprinted as dos. 2 and 3 of BS. II. In those days they had not yet been approved by Stimson and McCloy on behalf of the War Department. Table D to the Handbook (doc. 3) sets out which “categories of Nazi officers will be arrested and detained upon entry into Germany of the Allied Occupation Forces”: five categories, with some sub-groups, with a total estimated at over 220,000, roughly half to be expected in the “Eastern Zone”.
7. BS. II doc. 29, p. 92: Foreign Relations of the US: Conferences at Malta and Yalta, 1945, p. 401.
8. BS. II doc. 16, pp. 33–37.
8a. BS. III p. 26: “…like many people in Washington, Bernays had trouble keeping his eye on wartime atrocities… [However, the fact] that Bernays, like most of his colleagues, had a limited view of German atrocities, fitted him perfectly for the task at hand … As late as 1949, when the panorama of the wartime holocaust was visible to all, Bernays, whose father was Jewish, made the incredible assertion that most of the anti-Jewish atrocities had been committed ‘before the war'.”
9. There is no sign of any awareness that this policy should also have provided a response to a series of protestations by the Governments-in-Exile (in London) of countries occupied by German forces, reiteratedly submitted since January 1942.
10. The Soviets had adopted quite a different line: by the end of 1943, trials were held in re-occupied Kharkov – and well-publicised they were – of German war criminals and their collaborators. (This experience predetermined the Soviet attitude towards the Third Geneva Convention, 1949). One has also to take into account that the Soviet Government was aware that its soldiers captured by the Germans enjoy no protection, not even through the Red Cross, on the grounds that the Soviet Union had not adhered to the 1929 Convention on the Protection of PoWs.
11. BS. III pp. 21–2, reports that, acting on such apprehensions, both the British and the US Governments had ordered a discontinuation of war crimes trials as initiated in Sicily, 1943. Nor had German war criminals in PoW camps been segregated since 1944: Order by Eisenhower, 1 January 1944.
12. BS. I p. 116, ensues with the criticism (p. 117) that “the important consideration here is that the highest leaders of the American Government immediately jumped to the conclusion that the Malmedy killings were not an isolated atrocity but were part of a definite plan”. (Indeed, at the same time reports had come in that this Rundstedt army had arranged for certain units to use US uniforms in their forays). The point to be stressed is that reports on the same practice of immediate killing of prisoners on other fronts had made no impression on Washington.
13. BS. II pp. 53–4 and doc. 31, p. 98 et seq.
14. Truman, , Memoirs, I, pp. 109–10, 282Google Scholar. On 2 May Truman announced the appointment of Associated Justice Robert H. Jackson of the US Supreme Court as US Representative and Chief Counsel for the prosecution of charges “against the European Axis war criminals”. Truman was apparently still unaware of the effect the deaths of Mussolini and Hitler would have. But even at Potsdam, Attlee suggested Hitler as one of the three main criminals – and Stalin “had no objection to naming him”: ibid. p. 408.
15. As late as 6 April, Lord Chancellor Simon (a Viscount since 1940, earlier known as Sir John Allsebrook Simon) presented Judge Rosenman with a lengthy memorandum setting out the British arraingment procedure: BS. II doc. 45, p. 148 et seq.
16. Appraised of the British views (supra), the American team produced within five days, from 28 April to 2 May, no less than five memoranda and drafts (BS. II docs. 50–54), in all 21 printed pages: ibid pp. 162–193. The Allies were given Colonel Cutter's redraft, dated 28 April (doc. 51, seven printed pages – a text criticised by Jackson, doc. 52, and revised not less than four times by Jackson, Bernays, Wechsler, Cutter and Rosenman; ibid. p. 140). Doc. 54 of 2 May was the final text submitted.
17. Another point, later decided against the US position, related to Nazi pre-war persecutions. A connected problem was that of international criminality of a sovereign power's killings of its “own” nationals. (As late as 6 April 1945, Lord Simon inferred (doc. 45) that most of the Jewish victims were German nationals). On this matter the following is said in the judgment in the “Justice case” (Case No. 3): “…it can no longer be said that violations of the laws and customs of war are the only offenses recognized by common international law …. resulted in international recognition that certain crimes against humanity committed by Nazi authority against German nationals constituted violations not alone of statute but also of common international law”. (Quoted in Taylor, 's Final Report, p. 109)Google Scholar.
18. The first document in the present folder is a note which Lord Halifax, as Ambassador to the US, despatched on 19 August 1944. There, in the main, two suggestions were made, one to ask the UNWCC to present suggestions as to the manner of bringing war criminals to justice, and that international action should be restricted to war crimes in a limited, traditional sense. (This attitude was taken, as explicitly stated, in order to exclude the genocide of Jews from the trial, the ostensible argument being that the question was about a sovereign State's treatment of its “own” nationals). In a later note, of 30 October, the British rejected the idea of a “treaty court”; they favoured a military court; BS. I p. 66. This objection was later dropped, considering that only anchoring in an international treaty could provide the “lex” element (nuttum crimen sine lege) which would provide the solid anchoring of the trials.
19. BS. III p. 29.
20. Letter to Rosenman, 30 April; Truman, , Memoirs, I, pp. 109–10Google Scholar. Ibid p. 282, on the appointment of Jackson.
21. The Conference minutes are published in the Dept. of State publication No. 3080.
22. Ugalovnaya Otvetstvenost Gitlerovtsev. None less than Vishinsky, prepared the English translation, Hitlerite Responsibility under Criminal Law (London 1945)Google Scholar. Sir William Jowitt also accommodated his delegation's exposé, August 1945, to Soviet phraseology.
23. G. A. Finch and Quincy Wright in 41 AJIL (1947) – two papers casting doubt on the propriety of IMT jurisdictional assignments. Their views are in part echoed by Eugene Davidson, The Trials of the Germans (New York 1966) p. 13.Google Scholar
24. The reference is to that double manoeuvre of pre-emption – first on the part of the Occupation Powers, when adopting Control Council Law No. 10 at a time when the IMT was seized of the problem and had shown some uneasiness as to the question (without, however, deciding on it), and second, on the part of the IMT, when inserting in the Judgment stringent limitations for the implementation of that Law, without having had much formal competence to do so (distinct, of course, from a moral consideration regarding possible misuse).
25. This relates to the group of political-military cases, rather than to the economic ones – not because of an absence of political interlocking, but mainly because of an inadequate preparation of these cases. (See, for a succinst critique of one of most important cases: Borkin, J., The Crime and Punishment of I. G. Farben, 1978)Google Scholar. In the Krupp case, however, which was better prepared, the argument was declared invalid by judges who applied criteria of “good business practices” in preference to the political implications – as argued.
26. Lador-Lederer, , “‘Victims’ Law”: Ius Cogens and Natural Law,” 8 Israel Yearbook on Human Rights (1978) p. 267, at p. 288 et seq.Google Scholar
27. Session of 2 July, loc. cit. in n. 21, supra p. 129. In this sense, the second sentence of Charter Art. 10 provided that after a positive “declaration” by the IMT “in any such case the criminal nature of the group or organization is considered proved and shall not be questioned” (in any subsequent trial, as made possible by virtue of Art. 5). In other words, the only purpose of a declaration was to establish a presumption, irrefutable in its generalities, though possibly refutable in its individual application.
28. Justice Jackson believed “the language which expressed this [concept] not to have conveyed to the minds of the Judges the intention clearly expressed …[While] the legal concept of conspiracy was accepted by the Tribunal, it was given very limited construction in the Judgment”: Preface, vii, to Publication 3080. The Prefaceis dated 29 December 1947, i.e., more than one year after the Judgment was handed down. The main cause of confusion appears to have been the dichotomy into two distinct counts of indictment: conspiracy (Count 1) and Crimes against Peace (Count 2). As a result, out of the 12 defendants found guilty on Count 2, three – Frick, Seyss-Inquart and Doenitz – were found not guilty on Count 1, but only Hess (guilty) and Doenitz escaped the gallows. Nobody found guilty on Count 1 was found not guilty on Count 2.
29. In a curious contrast to the facts ascertained – and to the doctrinal side of the phenomenon (as elaborated but three years earlier in the US by James Burnham, in The Managerial Revolution) – very little was made of it when examining the responsibilities of those Wirtschaftsführer who had been arraigned: Speer, Schacht, the Krupp managers, the I. G. Farben managers. Speer wrote a particularly enlightening (and caustic) analysis of the SS-Wirtschaftsstaat in Der Sklavenstaat (Stuttgart 1981) (translated as Infiltration (New York 1981).Google ScholarPubMed
30. Cmd 6964, p. 67. See also B. III, pp. 128, 163 et seq. While we agree with Smith that “Parker's proposal offered the Tribunal an opportunity to stand up for legal and human principles”, we do not agree with the ensuing “and yet quietly bury the whole system of criminal organization prosecution”: p. 164.
31. Lador-Lederer, , “International Penal Sanctions for Violations of Human Rights,” in 4 Israel Yearbook on Human Rights (1974) p. 88 et seqGoogle Scholar.
32. (A) Case No. 9, US v. Bieberstein et al.– (B) The Eichmann Judgments, in 36 International Law Reports (1968).
33. This obviously is not the end of the matter, considering that the operation of criminal organizations (particularly in the shape of terrorist activist groups) have a longer life than Nazism. In this context, the Nuremberg Judgment retains its full authority. The “conspiracy/criminal organizations” charge, jurisprudentially confirmed as it is, is important far beyond the conspectus of these trials; it is regrettable that the ILC did not introduce it into its formulation of Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950, II. Yearbook of the ILC).
34. UNWCC, in XV Law Reports of Trials of War Criminals (London, 1949) p. 151Google Scholar, with reference to ibid. vol. XIII pp. 51–2, 58–60, 62, and vol. X p. 59.
35. BS. I p. 249. – In general, the innuendo of this reproach is that punishment is being imposed on obviously innocent people only because they are of the same ethnic stock (which is not a voluntary link) with some offenders (Sippenhaftung) – a foundation of the (coeval) practice of the taking of hostages, (Sevenaer, van Nispen tot, La prise d'ótages (The Hague 1949).Google Scholar
36. By virtue of Art. 8 of the London Charter involvement of that nature–i. e., “[ing] pursuant to order” (of the Government or “of a superior“, in one of the non-governmental establishments “shall not free him from [penal] responsibility, but may be considered in mitigation of punishment if the Tribunal determinates that justice so requires”. This, indeed, became the guiding rationale of the “denazification” procedure, practically in all four occupation zones.
37. Woetzel, R. K., The Nuremberg Trials in International Law, (London 1960) p. 211Google Scholar. This led to Principle II of the ILC reformulation (supra n. 33).
38. Ferencz, B. B., Less than Slaves, Jewish Forced Labor and the Quest for Compensation (Harvard Univ. Press 1979).Google Scholar
39. Münz, M., Die Verantwortlichkeit für die Judenverfolgungen im Ausland Dissertation, Frankfurt 1958).Google Scholar
40. Cf., Borkin, supra n. 25, also Martin, J. S., All Honorable Men, 1950Google Scholar, Toulmin, H.A., International Contracts and the Anti-Trust Laws (Cincinnati 1947)Google Scholar; Lador-Lederer, , Capitalismo mondiale e cartetti tedeschi tra le due guerre (Torino 1959).Google Scholar
41. Not a few wartime publications had taken up a theme previously abundantly analysed by Congressional Commissions of Inquiry and judicial testing: the role German Konzerns had played within “restrictive business arrangements”, intended to delay the development of war-important technology in the US; see, inter alia, books (all pre-IMT) by J. Borkin (with C. A. Welsh), G. E. Folk, W. Haynes, W. B. Ziff.
42. Manchester, W., The Arms of Krupp (1968)Google Scholar.
43. Report to the President, 7 October 1946, in Dept. of State Publication No. 3080, p. 436.
44. The British and French each had some candidates, so that a tentative list included two IG Farben managers (Schmitz and Schnitzler), Kurt von Schroeder, a banker from Cologne, and two steelmasters. Alfried Krupp and Hermann Roechling. Rather curiously, the name of Schroeder does not reappear (cf., Martin, Davidson, index). In general, the Prosecution was wary of investigating bankers (J. Abs), and one only, Rasche, came to face his judges. This is in contrast with practices of “aryanization” and other procedures of spoliation.
45. Taylor, , Final Report p. 269Google Scholar. There, mention is made of an advice by Secretary of War, Patterson, of 24 April, “stating on behalf of the State and War Departments that a second IMT trial would be ‘highly undesirable’”. Justice Jackson, reporting to the President on 13 May, was even more explicit.
46. Ibid., Jackson quoted: “If the Tribunal held that there was no case against Schacht he did not see how they could hope to make a case against any industrialists”, p. 270. It was a prophetic statement: the findings on Schacht, and partly even on Speer, were amplified in the trials of Flick, Krupp, and the IG Farben. And so also in the attempts, described by Ferencz (supra, n. 38), to obtain compensation for the surviving slave labour.
47. That this number was unreasonably low is proved by the fact that in the subsequent trials the number of defendants was 6 for Flick, 24 for IG Farben, 12 for Krupp – for just three Konzems!
48. Jones, Elwyn, “Nuremberg in Retrospect” in The Changing International Community, ed., Boasson, Ch. (The Hague 1973) p. 181, at p. 186Google Scholar.
49. In connection with the thrust of this paper, the point can be made that most of these trials confirm the original Bernays formula. Over sixty defendants – about one third of the total – were fulltime SS officers; a number of them held high SS rank, though professionally operating from outside the SS organigram. Of the 74 defendants convicted on the membership charge, ten were convicted on that charge alone.