The Legacy of Nuremberg

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Digested First Pages:

Introduction by Richard Farson

It is my pleasure to introduce my old friend, and the leader of this conference, Norbert Ehrenfreund. I have known Norb for many years while he was serving as a Superior Court judge here in San Diego. He also was a busy participant in community theatre--a wonderful actor. But there is a side to him that antedated all that. He served in Europe in WWII, and then returned as a journalist to cover the famed Nuremberg trials of the Nazi leaders. Now he is completing a book about that first effort, considered by many to be the most important achievement in international justice. With the trial of Saddam coming up, we couldn't have a more timely subject. So, welcome, Norb.

Norbert Ehrenfreund

Almost sixty years have passed since the Nuremberg trial of the major Nazi war criminals but that event, despite many criticisms, still stands as a beacon of justice for all generations to follow. Nuremberg not only ignited a revolution in international law but it affected domestic law as well with its simple but profound principle that every individual accused of crime is entitled to a full and fair hearing.

I have been a criminal court judge for almost thirty years and often when I take the bench I know that somehow they are still there, the ghosts of Nuremberg, watching, monitoring, making sure the spirit of Nuremberg still lives.

Today we may well ask what is Nuremberg's impact on modern war crimes trials, on Saddam Hussein's forthcoming trial, for one. Sometime in 2005, or perhaps later, Saddam Hussein will go on trial before the Iraq Special Tribunal in Baghdad. At the outset he can thank Nuremberg for the chance to defend himself in a court of law, for the chance to have a trial at all. But for Nuremberg and its precedent of fair trial for ruthless dictators charged with war crimes, Hussein might very well have been beheaded or tortured by his enemies without trial, similar to the fate suffered by Mussolini whose corpse was hung upside down in a public square by his enemies in Italy.

Hussein has been promised justice and already has twenty lawyers to represent him before an all-Iraqi tribunal.

Questions remain:

--Rather than an all-Iraqi tribunal, should he be tried before an international tribunal similar to Nuremberg?

--Will it be a fair trial or will it be a judicial lynching?

One thing is certain. That Iraq intends to give him a trial at all is by itself a triumph for human rights.mbolism of the Trials: Iraq and Nuremberg

Participant
It's a bit scary to think of how much in the future hangs on the trial of Hussein in an Iraqi court. At either extreme, all by itself, that event could come close to justifying our invasion or serve as proof positive of its futility.

Participant
Norb, was Nuremberg the very first effort to try war criminals in an international court? How did they cope with the criticism that it was the victors trying the vanquished?

Participant
Reading an article in this morning's LA Times about how the 100 Orders that Bremer shifted to the prime minister in Iraq effectively keep all the control in US hands, I wonder just how hands-off we can be in the trial of Saddam. I have a hard time believing that we would accept an acquittal. And if that is not a possibility, is it a court of justice?

Participant
Ray, your thought about outcome of the Saddam trial supplying conclusive evidence of the wisdom or folly of our invasion is interesting, but unfortunately we won't know that outcome for years, will we? How long have we been preparing and trying Milosivic? Four years so far? Norb, any estimate of when the Saddam trial will actually begin and how long it will last?

Norbert Ehrenfreund
I agree that much in the future hangs on the trial of Hussein in an all-Iraqi court. That is why I believe it is a mistake not to have his trial along Nuremberg international lines. Favoring an international court is the fact that other countries have also suffered war crimes and crimes against humanity at the hands of the former Iraq dictator. There was Kuwait that Hussein had invaded and ravaged; Iran whose soldiers had been gassed at Hussein's orders in the Iraq-Iran war; and Israel that had suffered from strikes by Hussein's Scuds in the Persian Gulf War. The best estimate of when the Saddam trial will begin is sometime in 2005. But who knows when the parties will be ready? And who knows if the Iraqi security will be able to keep Saddam and the judges alive for that long? As to how long the trial will last, that depends on how many witnesses the court will allow Saddam's attorneys to call to the witness stand. It could take years also. Nuremberg was the first effort to try war criminals in an international court. After World War I there was much talk of such a trial but it came to nothing. When victory came by way of the Armistice in 1918, many voices were raised insisting on a trial and punishment, especially of Kaiser Wilhelm. But along with the Armistice the Kaiser fled to Holland which had a reputation for giving haven to political refugees. The Dutch never gave him up and he lived the rest of his life safe from prosecution. In 1919 delegates of the three major powers met at Versailles for the Paris Peace Conference. The British prime minister, Lloyd George, pushed for an international war crimes trial. The British were angry about the U-Boat and zeppelin operations. The French were mad too and many were calling for a war crimes trial because of the Germans' scorched earth policy in their final retreat through northern France. But the French leader, Georges Clemenceau, was more interested in reparations; Woodrow Wilson was more interested in the League of Nations and his opposition put any idea of an international trial to rest. Finally the Allies turned the prosecution of German war criminals over to the new German government and it came to practically nothing. Dick, you also asked about the criticism of victors’ justice at Nuremberg. Yes, it was victors' justice in that every judge came from a victorious Allied power. No German judge sat on the bench nor was such an arrangement ever considered. The critics have been harsh on that score but was there any reasonable alternative? Should the Allies have turned the trial over to the Germans and let them take care of their own criminals? That idea turned out to be a farce after World War I. Besides, there was no German government to turn to in 1945. Germany no longer existed as a nation. Should they have put Nazi judges on the bench? Or should we have sought out non-Nazi judges who had fled persecution from the Nazis and were now living in America or elsewhere? Would they have been more impartial? A few critics have suggested that a neutral court could have been formed from Swiss, Swedish, Portuguese, Spanish or Argentine jurists of good standing. But the scale of World War II was so vast there were hardly any real neutrals in the world. The world was crying for action. Millions of Hitler's victims wanted vindication. Get on with the trial. The only other alternative was to shoot the Nazi leaders and not bother with a trial. However unfortunate it may have been, there was no reasonable alternative but to let the victors judge the vanquished in the fairest possible way.Trial

Participant
Interesting. WWI and WWII trials of the German war-makers went in opposite directions--have I got this right?

WWI was trial by the loser war-maker nation of its prior war-making leaders; WWII was trial by the winner war-victim nations of their prior enemy leaders.

Now Iraq-War-2 trials are being conducted by the loser war-victim nation of their victimized leader, who was deposed by a war-maker that is not standing trial.

Of course I must have this wrong--the trial of Saddam Hussein is NOT a trial connected with Iraq-War-2. It is a belated trial connected with Iraq-War-1 and other Iraq-attacks on neighbors and inside their own borders. I think.

Setting aside US interests in having the trial of Saddam vindicate our pre-emptive war-making, it seems to me that, using US judicial standards, the man should be tried by an unbiased jury of his peers. I should think that would be a precedent we Americans would like to set, especially if we foresee our own war-making leaders being on trial internationally in the future.

On the other hand, who are Saddam's peers?

These are the confused ideas of one who does not know much about international law--so I beg for help from our esteemed conference leader. What can we learn from Nuremberg that applies here?

Norbert Ehrenfreund
Anthony: Thank you for your comments. You impress me with your insight. Although you modestly claim you do not know much about international law, your analysis of the various war crimes trials is quite accurate.

As to your suggestion of a jury trial of Saddam's peers, none of the previous war crimes trials have ever applied U.S. legal standards. Iraq's justice system follows the European tradition from which it is derived, and does not have jury trials. The Iraqi people, like most Europeans, do not trust juries and think us rather strange for having them. They want trained educated judges deciding their cases, not untrained folk.

You ask what we can learn from Nuremberg that applies to the trial of Saddam Hussein. We can learn a great deal. In fact the Nuremberg precedent has changed the face of both international and domestic law. What follows is a short list of how Nuremberg already has, or will, impact the trial in Baghdad:

1. Nuremberg established the precedent of fair trial. Every person accused of a crime, no matter how heinous the charge, no matter how high or low the person's status, must have a fair hearing. A fair trial means the presumption of innocence, the right to counsel, the right to be confronted by opposing witnesses, the right to be heard and to present evidence on one's own behalf. This concept may seem obvious to us now but it was not so obvious in 1945.

2. Nuremberg established the principle of accountability. Leaders of nations, as individuals, will be held accountable for their war crimes. There is no immunity for a head of state.

3. Nuremberg established that genocide and other crimes against humanity and launching wars of aggression are now crimes that can be punished in a court of law. Such crimes can be charged against Saddam because Nuremberg declared them illegal under international law.

4. Nuremberg established the importance of making a trial record that will show to the world the nature of Saddam's evil. The voluminous documentation of the Holocaust ultimately played a major role in Germany's long period of peace and democracy since the trial. Because of the record and the information there contained, the young people of Germany are determined that it must not happen again.

Following Saddam's trial, the record will show to the Iraqi people and to all the world how low a civilized nation can sink if the people allow a barbaric leader to take over.

5. Nuremberg established the importance of a public trial rather than a secret one which would only breed mistrust.

6. Nuremberg showed that a reasonably fair trial will prevent Saddam and his henchmen from becoming martyrs, which would have happened if the Iraqis had executed Saddam upon capture as so many wanted to do.

7. With regard to Saddam's underlings who will also go on trial, Nuremberg established the precedent that the defense of obedience to superior orders will not be allowed on the issue of guilt.

8. Nuremberg had the effect of expanding the human rights movement to an international level. It sent a message to all victims of a barbaric leader that they are entitled to protection by other nations; that a nation's sovereignty does not grant impunity to its leaders for inhumane treatment of persons within its borders.

We also learned from Nuremberg's mistakes:

1. If at all possible it would be better to have Iraqi participation in the trial. This will lend legitimacy and credibility to the tribunal.

2. The tribunal should also be concerned with victims' rights including allowing victims of Saddam's cruelty to be heard at sentencing, and recommending a fund for suffering victims.

3. The tribunal must avoid applying laws that did not exist at the time Saddam's acts were committed, i.e., there should be no application of ex post facto law.

Thank you for your challenging inquiry.

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