Angry Planet - When War Became a Crime

Episode Date: August 12, 2022

To say there are widespread reports of abuses by Russian troops in Ukraine is to undersell it. There have been hundreds and hundreds of cases claiming rape, torture, and murder. Last week, a video of the torture and execution of a Ukrainian soldier at the hands of Russian soldiers shocked the world.We call these things war crimes and crimes against humanity. But that’s a relatively new concept. Today we’re going to talk about the Nuremberg Trials, which took some vague ideals and put them into practice.Joining us today to talk about the Nuremberg Trials is John Barrett. He’s a Professor of Law at St. John's University, a biographer of former U.S. Attorney General and Nuremberg chief prosecutor Robert H. Jackson.Angry Planet has a substack! Join the Information War to get weekly insights into our angry planet and hear more conversations about a world in conflict.https://angryplanet.substack.com/subscribeYou can listen to Angry Planet on iTunes, Stitcher, Google Play or follow our RSS directly. Our website is angryplanetpod.com. You can reach us on our Facebook page: https://www.facebook.com/angryplanetpodcast/; and on Twitter: @angryplanetpod.Support this show http://supporter.acast.com/warcollege. Hosted on Acast. See acast.com/privacy for more information.

Love this podcast. Support this show through the ACAST supporter feature. It's up to you how much you give, and there's no regular commitment. Just click the link in the show description to support now. People live in a world and their own making. Frankly, that seems to be the problem. Welcome to Angry Planet. Hello and welcome to Angry Planet. I'm Jason Fields. And I'm Matthew Galt. To say there are widespread reports of abuses by Russian troops in Ukraine is to undersell it. There have been hundreds and hundreds of cases claiming rape, torture, and murder. Last week, a video of the torture and execution of a Ukrainian soldier at the hands of Russian soldiers shocked the world. We call these things war crimes and crimes against humanity. but that's a relatively new concept.

Today, we're going to talk about the Nuremberg trials, which took some vague ideals and put them into practice. Joining us is John Barrett. He's professor of law at St. John's University, a biographer of U.S. Attorney General and Nuremberg, chief Robert H. Jackson, and an expert, all of this stuff. So, welcome to the show. Thank you so much. Glad to be here.

Start off with the absolute basics, which we often do. So what were the Nuremberg trials? Well, actually, a more basic point is where is Nuremberg. I have found in lecturing and writing about this. Nuremberg is a city in southeastern Germany. It's about 100 kilometers north of Munich. And it is a beautiful place and has always been a beautiful place. It's a castle city.

It was one of the historic summer castle homes of the Holy Roman Emperor. And so it had historical associations. It was something that the Nazis latched onto as a historic predicate, the First Reich, the Third Reich, the Holy Roman Emperor to the Nazi thousand-year Reich. And so the Nazis began to hold party rallies in Nuremberg every September, beginning in 1933 and continuing through 1938. And so Nuremberg had a spiritual home in association with Nazism. And then jumping to 1945, after the war ended with Germany's unconditional surrender, the Allies possessed the land. And the land was divided into sectors. And Nuremberg, Munich,

southeastern, what had been Nazi Germany, was now the U.S. sector of military occupation. And so the decision was to hold trials of the arch-criminals of Nazism in that sector. And they picked Nuremberg because it had a good facility, a courthouse with a prison attached. But it also had at a secondary level the historic associations of this had been the Nazi spiritual home. And now it's a place to hold the Nazis accountable. So that's where Nuremberg, what Nuremberg and a little bit of what the Nuremberg trials were. It's interesting because you call the Nazis who were tried criminals, but this was all about establishing what a criminal was in a war context, right? Yes. Yeah. The phrase criminal obviously works backward from the fact that they were held accountable, prosecuted, and convicted in Nuremberg.

But the legitimacy of calling someone a criminal, at least by our American, English due process standard. is that there was a pre-existing law that the person then violated. We don't make up the rules after the fact. You wore a blue shirt and tomorrow somebody decides that it's a crime to have worn a blue shirt. It's about notice. It's about a chance to conform your conduct to the law. No ex post facto criminal law is a fundamental principle of justice. A fundamental question about Nuremberg is, did the crimes exist?

Did the law exist before that? the Nazis engaged in the conduct. And I'm persuaded. The court was persuaded. The structure of the Nuremberg proceedings was built on the conviction that the rules pre-existed the Nazi conduct. The rules existed in moral systems. Things like murder and torture and rape and pillage and et cetera are deplored by every moral, religious, cultural system long predating 1933. Germany's own national law had prescriptions on all of this conduct. And at the level of sort of war waging, after World War I, a series of treaty commitments, including Germany, took countries out of the war business and said, we did this great war, we paid a horrible price. War will no longer be a legal

prerogative of nations. So all of that was in place as law. And when the Nazis break those laws, they are criminals. What is clearly new, what is post facto, is the creation of a prosecutorial and judicial system to hold them accountable. There had never been an international criminal court, which is what the first Nuremberg trial was. And there had never been applying army accountability processes, which is what the 12 subsequent Nuremberg trials were. So I draw that distinction between crimes predating the Nazis and accountability processes being created. after the fact. At the time, did any non-Germans push back on all of this? Was there anyone that was involved that thought, like, maybe we're overstepping here or creating an architecture

we shouldn't be creating? There were debates within the process of accountability, which is the four allied nations, the U.S., the U.K., the USSR, and France, as they are planning this, and negotiating how they will do this, how they will harmonize their legal systems, and really what the rules are that the Nazis can be held accountable for violating. And on the outside, there's plenty of commentary. This is a major international headline project, which is being debated. And particularly in the United States, but I think across the various nations, there was a lot of desire for swift vengeance and all this legalistic mumbo-jumbo seem to be slow and seem to be unsatisfying. And ironically, a way to get the vengeance out was to say it's illegitimate.

But of course, really what that's saying is just line them up and shoot them. And so to call Nuremberg illegal for being legalistic and deliberative and so forth is a little bit rich, I would say. That's the debate. And it was a very active debate in the 1945 and forward time period and continuing for a fair amount of time. I don't really think it's much. much of a debate today. I've got to follow up, Jason, if that's all right. Why do you think it was important? Because this was all the Nuremberg trials were also televised, which was also new, right?

Not televised. Televised. Okay, they were filmed, they were filmed. Some was filmed. Film was very expensive. And so selected portions were filmed. The Nuremberg trials, we should probably clarify, were 13 trials, beginning in 1945 and continuing through the spring of 1949.

The first trial, 1945-46, was the one and only international trial, the one and only four-nation trial. That's the trial in which Robert Jackson was away from the U.S. Supreme Court to be the U.S. chief prosecutor. After that first trial, really the Cold War fractured the alliance. And so staying together to do subsequent proceedings was something the U.S. and the U.K. declined to do. But Nuremberg being in the U.S. sector of occupation meant that subsequent trials in Nuremberg were American-only trials. And so the 12 additional trials are second-tier sector prosecutions of, again, arch-criminals who didn't commit their crime in any particular location. They were Nazi Germany. This was the legal system.

This was the industrialists. This was the command and murder teams of the Einstein group. And this was the doctors doing horrible medical experiments in concentration camp. So those were the sort of 13 trials. How was evidence collected and then how were the prosecutions actually carried out? Well, what kind of court rules? Right. Yeah.

So the evidence was collected by scrambling soldiers and intelligence operatives in the field. As the U.S. Army moved east and to some extent, as the Russia, Army moved west and they converged and defeated Germany. They are capturing people and interrogating them. They are capturing prospective defendants, arched criminals, and interrogating them. And they are capturing repositories of evidence, documents, film, recordings, and as fast as they can, scrambling to analyze this. The Office of Strategic Services, the U.S. intelligence arm in the field, is a predecessor to the Nuremberg prosecution team. So OSS evidence gets pulled it into what becomes the Nürmberg process. And they're analyzing what they've got and who it applies to. What they find out

is that they have really an enormous documentary treasure trope. And so they don't need to, this is Jackson's decision as the U.S. chief prosecutor. They don't need to cut deals with people to get mercy in exchange for their testimony and create a sort of swearing kind of. contest between this Nazi about how bad that Nazi was. They have documents. And so it's a document case. It does have a lot of witnesses too. It does have film evidence too. But the spine of the case is a document. So the documents are authentic and unimpeachable. And of course, for history, extremely important. They do this trial in the Palace of Justice in Nuremberg, according to procedures that they devised over the negotiations in the summer of 1945 that are largely a

American constitutional law due process standards. It's a public trial. The prosecution is not the boss of the judiciary. The defendants have the right to counsel. The defendants have the right to liberal discovery of documents and compulsory process to call in evidence. The prosecutors have to carry a burden of proof beyond a reasonable doubt. The judicial panel, which is comprised of four judges, one from each of the four nations, plus an alternate from each of the four nations, so really it functioned as a court of eight. It has to have three of four to convict. If you get two judges, it's an acquittal, and it's a public proceeding. It begins in November of 1945, the international trial, and continues through the summer of 1946, focused on 21 defendants,

plus there was a organizational conspiracy, part of the case, six Nazi organizations. organizations were also prosecuted in that case. It looked like a big American trial. It was just being conducted in four languages and conducted in a military occupation setting, which was filled with rubble because Nuremberg had been bombed nearly to Smithoreen's before the end of the war, but not the courthouse. Bust another myth for me since I thought it was televised, because as I'm ignorant. I'm ignorant. You're a member of the YouTube generation, and you've watched the documentaries, But if you really are auditing it, you've seen the snippets that we've all seen because that's the Army Signal Corps having filmed about 50 hours of a 10-month trial. And that's just because they didn't, I think, understand how important film would be for the future.

Film was new and as I said, film was expensive. They did audio record the whole thing. And although it took many decades, the audio recordings have emerged. and on a daily basis they transcribed the whole proceeding. And so daily copy of transcripts was provided to reporters, and that's how the world could follow. So that's the record. But you're not a victim of a myth. You've seen film, which is real film.

That's just not gavel to gavel the film. We've also, we also talked about the ways that this is different, was different from a traditional criminal trial. One of the things that I've always understood about this is that some of the defendants still did not really see themselves as, criminals and during their testimony, it was less about defending themselves than it was about explaining like national socialism and attempting to do apology for everything that they had done. Yeah, that's fair. I'm not sure how many criminals in a domestic court accept that they're criminals either. But these people, this is Hermann Guring, who was Hitler's number two. This is Rudolph Hess, who was for a time number three. This is Jochen von Riventrop, the foreign minister.

This is Julius Stryker, the propagandist and gaoliter Franconia for a time period. This is Hans Frank, who's the gaoliter of the general government in the occupation of Poland and East. They were senior officials in a government that waged and eventually lost a war. And many of them just said, hey, this is just Victor's justice. If the war had come out the other way, the defendants would be Eisenhower and Nimitz and Marshall and whatever. And that's a fair critique. I think the answer is, first, who else is there? In the aftermath of a World War, where in effect the world wins and the aggressors have been defeated. Of course, the victors are in a position to conduct the accountability process. There weren't a lot of like neutrals floating around. There

weren't Nazi Germans who had somehow survived and run a legal system and not been corrupted by Nazism. There was, you probably could have with more time and maybe more modern ways of finding people in communication, you could have probably found this Canadian judge and that Japanese judge and a guy in Switzerland and a woman in Australia. You could have put together something where you could have found Germans. It was the Allies who did this. Yes. It was an Allied trial of the Germans. The way to then evaluate it as Victor's Justice is, did they just line them up and shoot them? Was it a show trial? Was it a rigged proceeding? Or did they conduct in the sort of startup chaos of 1945, something that was basically fair? And it's all in public. It's all transcribed.

And so we can evaluate the record and see, this is a paraphrase of something Jackson said, the Allies gave the Nazis a fair chance to defend themselves, unlike the Nazis' treatment of anybody they ever dealt with. And some people were actually acquitted, right? Three of the 21 defendants in the big trial, the international trial, were acquitted. That means that at least two judges voted not guilty across the various counts. And there's a sort of historical record about each of the cases. One was Helmar shocked, the economic minister, and he was pretty essential to the

economic buildup of Nazi Germany and the violations of the demilitarization provisions of the Versailles Treaty and the sort of breakout of Nazi aggression by the end of the 1930s. But in the 1940s, during the war years, he has a falling out with Hitler. And literally at the end of the war, he is a prisoner in Dachau in the concentration camp. So for a defense attorney, that's a pretty good optical detail to work with. The Russians thought, of course, the capitalist got acquitted and the Russian judge dissents from the acquittal of Schacht. Robert Jackson was not particularly thrilled with the acquittal of shock. The second acquittal was Franz von Pappen, who had been a chancellor, was important to bring Hitler

to power, was a diplomat, was Nazi Germany's ambassador to Turkey. But he was an old man by 1945, 1946. And I think he got a little bit of geriatric sympathy, which really explains his acquittal, plus he was peripheral as the years went forward. And the third acquittal was a propagandist named Hans Fritja, who had only become a defendant in the first place because he'd been captured by the Russians, and they wanted one of their detainees to be in the dock. Most of the prisoners had been captured in the West. So the British, the French, the Americans were supplying most of the prisoners who became defendants. The Russians said, we have the arch-criminal Fritia. And the other nations basically said, remind us who Fritsch is? And he's a radio guy and a propagandist. He was

really a sort of weak stand-in for Joseph Goebbels, who was the grand propagandist at Hitler's right hand, but was dead in 1945. And Fritch is kind of a, I don't want to minimize his conduct. He's a bad guy. But he's a minor league ballplayer brought up to fill a roster hole in a weird way. I'm sorry, I'm a baseball fan. And the other defendants, they kind of look down the defendants box and we're the great Nazis. Who's this schmuck? They didn't use that. the word schmuck. I think by the end of the trial, everybody realized Fritzot doesn't belong here. So at the end of the trial, these three guys are acquitted. They literally turned to each other at the end of the verdict and bask, what do we do now? One of the massive military policemen,

what are we doing now? And the guy says, you're like, walk out to the door. You've been acquitted. Each was subsequently handled in a German denotification national process. And they did serve some additional time, but they were acquitted. And I think one proof of, the Nuremberg trials, the international trials fairness, although it stung in the moment for the prosecutors, was the acquittal of each of these people. It shows that it wasn't rigged. It shows that this wasn't a foreordained proceeding. And ironically, the acquittals, maybe even more than the convictions, speak well of the fairness of Nuremberg. Someday, Matthew, we got to do an episode on denotification. It's just such a weird concept. But especially,

right now. Yeah. That's true. By the way, it's an impossible concept because of the numbers. Really think of Nazi Germany as a pyramid. And of course, there's Hitler all by himself at the top of the pyramid. And the arch criminals who were talking about at Nuremberg, across the 13 trials, less than 300 people are a layer or two down. And then you get into thousands and tens of thousands and you get to 90 million German people, most of whom were in different ways enthusiastic. Citizens of the Reich and many of whom became party members and so forth. Notification can't, no process can deal with a massive number.

So this isn't that show. But denazification becomes a fairly quick administrative pass-through process for lots of people because how else can you process that number? I want to just talk briefly about the chief prosecutor. He's a unique figure, right? I'm a biographer, Robert Jackson, so I certainly think he's worth time and attention. And he is a unique figure. What can I tell you about him? What was his job before he became prosecutor? I'll compress this greatly, but he was a U.S. Supreme Court justice. He had been appointed to the court by Roosevelt in 1941. And so he was 53 years old. And he was really one of nine justices, but among the nine,

I think it's fair to say he was America's leading legal figure. He previously, and I'll just work backwards, had been Attorney General of the United States, and before that had been Solicitor General of the United States, and before that had been an assistant attorney general running two major divisions in the Department of Justice, and before that, at the beginning of the New Deal, had been a senior high-profile lawyer in the Treasury Department's Revenue Bureau, the Tax Bureau. So he's a meteor rising up through the New Deal. He's appointed by Roosevelt, confirmed by the Senate, to five different jobs. And if Roosevelt had lived, Roosevelt intended to make Jackson Chief Justice. But the path could have led in lots of different places. If Roosevelt had retired after two terms, as he considered doing, Robert Jackson was a very shortlist presidential prospect.

He's a farm boy from northwestern Pennsylvania and then grew up in southwestern New York State. Never went to a day of college, very self-made, very brilliant, very eloquent, a writer, a speaker, a lawyer. for 20 years and a Democrat in New York State, which is how he gets tied into Franklin Roosevelt. And in his government work really was the point lawyer for a series of really high profile, really high stakes assignments. He prosecutes civilly Andrew W. Mellon, who had been Treasury Secretary under Harding and Coolidge and Hoover, for tax evasion. It's America's case of the century in 1935. And Jackson basically wins a large financial judgment against Mellon. And although I'm sure there was no relationship, note the dripping sarcasm, Mr. Mellon's

spontaneous donation of his art collection to the U.S. and his construction of the National Gallery of Art. Beautiful building downtown Washington, which FDR always privately referred to as Bob Jackson's museum, because it was part of Andrew W. Mellon's debt to the country as a cheat. And then as the Supreme Court litigator, Jackson's part of winning the constitutionality of big parts of the new deal, the Social Security statute in 1937 and other major cases. As Attorney General, he's part of all the war preparatory work and aid to Great Britain. That's 1940 and 1941. And on the Supreme Court, in those first four years before Nuremberg, he's really independent, eloquent, powerful voice and writing some things that are landmarks to this day.

the flag salute case, West Virginia State Board of Education versus Barnett, about Jehovah's Witness, schoolchildren not being compelled to salute the American flag. A concurring opinion in Skinner versus Oklahoma, which is about bodily autonomy and reproduction. A concurring opinion in Edwards versus California, which is about interstate travel. Notice how both of those things are real front burner issues right now, bodily autonomy and interstate travel. Jackson dissents in Korematsu, the Japanese-American exclusion case, dissents against President Roosevelt, his great benefactor. And in the landscape of the U.S., if you need a top lawyer for a tough job, he's going to be a person you focus on.

Harry Truman inherits this job in April of 1945 and has to deliver on a big commitment that we and the other allies will militarily defeat and then together hold accountable, the arched criminals. And so Truman reaches the Supreme Court for the best lawyer the country has and says, will you do this job? And Jackson, it's April of 1945. He's pretty much done writing his opinions for the term. He's told it's pretty much a turnkey operation. We're about to capture Hitler.

He and his inner circle need to be prosecuted. You will represent the U.S. that will lead the British and the Russians and the French to appoint somebody comparably excellent. The evidence is all ready to go. You have a summer recess. You might be a little late getting back to the court in October of 1945, but pretty much it's a summer job. And Jackson says, for all the right reasons, patriotism, your country asks, et cetera, I'll do it. And then, of course, it all turns out to be smoke and false description of the project.

There is no Hitler and no gerbils and no Himmler and there's no assembled evidence and there's no worked out legal plan and there's no location. So a summer of diplomacy, working that all out, and then a whole year away from the Supreme Court, leaving it as a court of eight while he's prosecuting in Nuremberg is what Jackson does as the chief prosecutor. So who is Jackson now and are there going to, is there going to be a Jackson actually prosecuting Russians? Because that's what's happening now and it's on an enormous scale. Yeah. There are, I'm sure, around the world. and in the United States, plenty of Jackson's now. There's literally a Justice Jackson on the U.S. Supreme Court right now, Katanji Jackson.

She's not a litigator, prosecutor, and it's implausible that President Biden would ask a newly confirmed Supreme Court justice or any of the nine to do some extrajudicial tasks like this. But in our legal profession, there's talent of the highest order. And I'm sure that's true across the world. The real problem as you focus on Ukraine and Russians is the absence of power. in the first instance and then the absence of institutional ability to hold the arch criminals accountable. And that begins with Putin.

It might be Lavrov and others in his inner circle. At the top, Vladimir Putin is a sovereign head of state in power, in control of all the military and other supports that are part of his holding power in Russia. Nobody can put the handcuffs on it. So what 1945 had was a defeated rubble strewn there for the capture Nazi Germany. Today is totally different. So 1945 is just a weird alignment where all the power is in the accountability side and then they just have to decide how to use it. Today we don't really have any of that power.

Plus, the institutions that we do have are somewhat expert and relevant, but largely unable to address this directly. We have an international criminal court, which well over 100 states' parties belong to, but Russia is not one of them, nor is Ukraine, nor is the United States. So, you know, the ICC doesn't obviously have any jurisdiction to prosecute, plus its ability to prosecute the core crime aggression of February 24 invasion is not a developed part of its powers. So evidence gathering, situation investigative work, and affiliated NGOs can do. There are almost too many NGOs gathering evidence right now, but the ability to be the institution of accountability is not squarely in the ICC. An ad hoc process could be created, but that would be a

creation of the United Nations. And it would be either through the Security Council where Russia has a veto or it would be through a general assembly process, which has never happened, and would require some very complex diplomatic work. And in the end, that would still circle back to the first problem, which is it's an ongoing war and it's a head of state who's perpetrating the supreme crimes, the top crimes, and your ability to get to people below that, I think, proceeds through the top rather than in through the side. So I think the evidence is horrific. As you said at the top, There's, you know, new film and reporting every day. There's a story in The New Yorker this week by Masha Gessen about...

Yeah, I wrote it. Horrific. And it's possible that some Russian commander perpetrator could somehow be captured and then could be transported out of the war theater to some accountability theater process and some institution could have jurisdiction. But there are a lot of what-ifs and developments between now and that. I don't mean to be unduly pessimistic, but it feels like this war, which is a major horrific war, and all the crimes that emanate from war is part of this situation, is parallel to where the allies were in, let's say, summer of 41 or fall of 42 in the war, and frankly not on the brink of winning the war, and then being able to contemplate what to do with the perpetrators once they're defeated and captured. And of course, the last thing I'll add in is 1945 Nazi Germany did not have nuclear weapons

or did not have nuclear weapons on the perpetrator side. The U.S. had its, you know, Los Alamos project and the bombs we dropped on Japan. That was it. And that adds a huge new deterrent and horror to any calculation about how justice can come into this situation. Matthew, do you have anything else? No, I think that's the kind of dire note that we like to strike at the end of the show. Yeah, this is a, to cheer up the small children, right?

This is kind of what we do is we usually talk ourselves into depression by the end of an episode. You know, so let me try and double back on myself a little bit. I don't know exactly why you guys call this angry planet, but there's a lot here to be angry about in this show and on this planet. But I think there's always some basis to be optimistic and we can find some of that in history. And Nuremberg is an inconceivable. project and an inconceivable achievement until it's done, until they embark on it and then they thrash through the day-to-day chaos of getting to tomorrow and eventually push out these trials and hold these individuals accountable and build this historical record. In the summer of

41, as the Nazis are rolling towards Moscow, it's not clear who's going to win this war. And history turned out for the good, for the better. So I'm not a total pessimist. I do think there are lots of talented and good and principled people on the right side of these issues and working in these institutions. But these are long projects. Jackson had a line where he said the meaning of Nuremberg will become clear in the century run, which is a nice little antique phrase, the century run, meaning 100 years, meaning like after his lifetime, meaning in our lifetimes. We're now 80 years, give or take, past Nuremberg. So we're not even quite done with the century run and it's the sort of baton that got handed to us. It's a precedent that we have. It's a

responsibility that we have. And we push forward. John Barrett, thank you so much for joining us today. Thank you both very much. That's all for this week, Angry Planet listeners. As always, Angry Planet is me, Matthew Galt, Jason Fields, and Kevin O'Dell. It's credited by myself, Jason Fields. If you like us, you can subscribe at Angry PlanetPod.com or Angry Planet.com. Get bonus episodes of which we've just published one earlier this week. For $9 a month, you also get commercial-free versions of the mainline episodes. We will be back again next week

with more conversations about conflict on an Angry Planet. Stay safe. Until then.