Peter Dyer: Nuremberg and Iraq

Sixty-two years ago this month, four judges met to deliberate the fate of the first men ever tried for war crimes in an international court of law.

After Nazi Germany was defeated in 1945, the major victorious allies (the United States, the Soviet Union, Great Britain and France) convened a trial of 21 of the most prominent Nazi government, military and media figures in the Palace of Justice at Nuremberg, the spiritual home of Nazism.

Another German, Martin Bormann, was tried in absentia.

The Allies drew up a charter establishing an International Military Tribunal (IMT) as the legal basis for prosecution of these men for three distinct categories of crimes: crimes against peace, war crimes and crimes against humanity.

The defendants were also charged with “participating in the formulation or execution of a common plan or conspiracy” to commit these crimes.

The bench was made up of one judge from each of the four allied countries. The trial began on 20 November 1945. Nine months later, on 31 August 1946 the trial closed as the defendants made their final statements.

The judges announced their verdicts on 1 October. They found nineteen of the defendants guilty of one, some, or all of these crimes. Twelve, including Martin Bormann, were sentenced to death. One, Herman Goering, Germany’s number two Nazi, committed suicide before his scheduled execution.

Three were acquitted and seven received prison sentences. Ten were hung.

The 1946 trial was the first of a series of four Nuremberg trials which continued until April 1949.

While the Nuremberg trials are, these days, seldom invoked or discussed, they were and still are, in the words of Tribunal President Sir Geoffrey Lawrence, “unique in the history of the jurisprudence of the world”. Among the most groundbreaking aspects was the drive to formally criminalise the three categories of crimes, and to establish responsibility by individuals for these crimes. This was simply unprecedented.

The effort to try the Germans in an international forum was directed in large part by the United States. The chief U.S. prosecutor, U.S. Supreme Court Justice Robert Jackson, opened the prosecution.

Today, when the Nuremberg trials are remembered, they are remembered primarily for the prosecution and punishment of individuals for genocide. Equally important at the time though, especially in the first trial, was the focus on aggressive war.

Thus, the first sentence of Justice Jackson’s opening statement: “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility.”

Crimes against peace and the responsibility for them were defined in Article 6, the heart of the Charter of the IMT: “The tribunal…shall have the power to try and punish persons who…whether as individuals or as members of organisations, committed any of the following crimes…for which there shall be individual responsibility: (a) Crimes Against Peace, namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances…”

The desire was not only to punish individuals for crimes but to set an international moral and legal precedent for the future. Indeed, before the end of 1946, the United Nations General Assembly unanimously adopted Resolution 95 (1), affirming “the principles of International Law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal.”

Founded in the aftermath of World War II, the United Nations invoked in the first sentence of the preamble, the single most fundamental goal: “…to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…”

To this end the United Nations Charter explicitly forbids armed aggression and violations of the sovereignty of any state by any other state, except in immediate self defense (Article 2, Sec. 4 and Articles 39 and 51).

Invoking the precedent set by the United States and the Allies at Nuremberg, there can be no doubt that the U.S. led invasion of Iraq in 2003 was a war of aggression. There was no imminent threat to American security nor to the security of the world. The invasion violated the U.N. Charter as well as U.N. Security Council Resolution #1441.

As a war of aggression, the invasion falls into the Nuremberg category of Crimes Against Peace. As such, there is individual responsibility for this crime.

Thus, if Americans chose to be bound by the precedent which they helped set and for which they punished leaders of World War II Germany, they would arrest and prosecute those individuals responsible for the invasion of Iraq: George W. Bush, Dick Cheney, Donald Rumsfeld, Colin Powell, Condoleezza Rice and their enablers in government and in the media.

Those who justify the invasion of Iraq, invoking the U.S. self-declared mission to rid the world of evil, would do well to remember the words of Justice Jackson: “Our position is that whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling these grievances or for altering these conditions.”

And, for those who have difficulty visualising American leaders as defendants in a criminal trial, Justice Jackson’s words again: “(T)he ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn, aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind’s desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world’s peace and to commit aggression against the rights of their neighbours.”

Peter Dyer is a freelance journalist. He and his wife moved to New Zealand from the US in 2004. They are dual NZ/US citizens.

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