ELI5: Were the Nazis given fair trials?

by _Boba_Fett

I feel like, due to the negative opinion of them both then and now, their trials may not have been exactly fair. It seems like the "Guilty" verdict was in place before the trials even began.

This question applies to trials immediately after Nazi Germany's loss in WWII (Nuremberg, for example) and modern-day Nazi trials.

ForExes

While you're waiting for other answers, you might be interested in /u/kieslowskifan's comment in this thread:

Was the Nuremburg trials a kangaroo court?

neoLibertine

The truth is that many Nazis were simply forgotten about.

The party hierarchy and more prominent war criminals were tried at Nuremberg or later captured but rank and file (i.e SS, SD and Gestapto) members were 'de-Nazified'. This was a process in which individuals went before a board and stated how they were not really Nazis and even produced evidence in the form of statements from a member of the public in which a good deed not in keeping with Nazi stereotype was recounted.

There are a number of reasons behind this but the three main ones were that firstly there needed to be a definitive end to the Nazism, where the British and American administrations could begin to work with the democratic Germany. Secondly, whilst the German administration wanted to be seen to be ridding the country of Nazism, it also wanted the process to be clear and swift. Thirdly and perhaps most significantly, all public workers had links to the Nazi party in some shape or form, from being enthusiastic Nazis pre 1933, 'March Violets' who joined soon after the Nazi party came to power, or simply by association. To remove these people from society would have catastrophic affects on the rebuilding of Germany. Britain and America wanted at some level a strong post-war Germany prior to the end of hostilities. By 1947 such feeling was much stronger. A strong, prosperous Germany would not only reduce the likelihood of another Hitler rising from the ashes of the war but it would also reduce the reconstruction aid needed and provide a strong ally in any future war with the USSR.

Destroying the civil service, judiciary and police force may have been an effective way of de-nazification but it would result in losing the best and brightest minds at a time when they needed them the most.

spankingasupermodel

Hi Historians. Related to this question, did any of the judges or other lawyers involved in the trials write any books later about the trials? I saw one listed in the other thread that's linked but I was wondering if anyone else wrote something. I read a book years ago by someone involved but he wasn't legally trained, and as a lawyer I felt he misunderstood the legal issues.

Also are any of the written judgements from Nuremberg readily available online?

CptBuck

As a related question, I seem to recall anecdotes about the Russian judges not really caring about due process as understood by the Anglophone judges and just wanting to declare (virtually) everyone guilty. Is that perception generally correct?

[deleted]

It depends on what you mean by "fair." Fair can mean either procedural fairness or substantive fairness. The procedures of the Nuremberg Trials basically accorded with procedural due process. There are several things we would consider to be necessary, at a minimum, for procedural due process:

  1. right to counsel
  2. right to examine the evidence against you and to submit your own evidence (i.e., no secret evidence)
  3. right to answer the charges brought against you in open court (i.e., no secret proceedings in which you cannot participate)

By and large, the defendants at Nuremberg had these rights. There are some questions as to the extent they had the right to see all the evidence against them before the trials. It is also true that hearsay was admissible, but lots of countries' judicial systems allow for hearsay to be admitted or, like the common law, have a prohibition that is a Swiss cheese of exceptions. So the admissibility of hearsay probably doesn't make the trials "unfair" in and of itself.

The more interesting question is substantive fairness. There must be a law that is "fair." Typically, we consider several things necessary, at a minimum, for this:

  1. the law must be public (i.e., no secret laws)
  2. the law must be pre-existing (i.e., no ex post facto application of a law or other form of retroactive illegality)
  3. the law must apply equally (i.e., there must be a rational reason to treat different classes of people differently before the law)

This all raised a bunch of fascinating questions that the Nuremberg tribunals wrestled with, and their answers changed the development of international law going foreward. For example, what law could you accuse the Nuremberg defendants of violating? The Charter had three classes of crimes, but what do they mean? Are we to apply German law, and if so in what contexts? What is German law anyway, is it German law before the Nazi regime took over or after? What these defendants did was probably allowed by the laws of the Nazi regime, but the laws of the Nazi regime themselves violated what we would consider to be fair laws. Is there "law" that exists outside of the State, or is the "law" merely the rules that the State puts in place? Perhaps the Nazi violation of the Weimer Constitution meant that after the point of that violation the laws of the Nazi regime ceased to be legitimate laws of Germany. But what does that say about routine matters, or is it just that the laws specifically relating to certain subjects were illegitimate? Maybe the Nuremberg defendants violated international law, but what does that mean? International law is usually restricted to States, so is it the State that is guilty or the perpetrators acting on behalf of the State? Did they violate the customary laws of war? What about their acts not on the battlefield? Sending your own citizens to death camps far from the front doesn't seem to fit with our traditional conception of "war" or a situation where the laws of war apply. Is there a broader conception of what "war" means? What does the phrase in the Charter "crimes against humanity" mean? It seems to be a new category of crime in the international order, but does this mean it is an ex post facto application? Does the Charter simply embody the existing international law, or is it somehow creating new international law? Is the whole thing an ex post facto application then? If it merely embodies existing law, what is that existing law?

The Nuremberg Tribunal ultimately decided that they were to apply international law as embodied by the Charter, that there was long-standing precedent of tribunals trying individuals for crimes conducted during a war, and that an individual could be tried for such a violation of international law even where the laws or direct orders of the State mandated a violation.

Sources: The best is probably United States of America, French Republic, United Kingdom of Great Britain and Northern Ireland, and Union of Soviet Socialist Republics v. Herman Wilhelm Goering, Rudolf Hess, Joachim von Ribbentrop et al., 6. F.R.D. 69 (1946). The tribunal walks through all the issues in the judgement.

I also pulled out my old law school case book called International Relations, 5th Edition, by Janis and Noyes.

As a side note, there's also a famous essay written in 1949 called The Case of the Speluncean Explorers that deals with a lot of these issues in a metaphorical way. (http://www.nullapoena.de/stud/explorers.html)