The Case Against the Nazi War Criminals

"Jackson is a fascinating guy. He’s a Supreme Court Justice who is on loan firstly to run the negotiations to set up the Nuremberg trials and then to be the chief prosecutor of the trials themselves. And it scandalizes his Chief Justice, who is horrified that Jackson is going off and doing this, what he views as a high grade lynching party. But Jackson, who was a former attorney general and quite close to FDR, goes off nonetheless to do this great big job. He delivers a totally magnificent opening statement, which is full of wonderfully quotable, ringing, Shakespearean phrases and sentences. Right at the beginning, he says: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.” It’s just great stuff. And it’s also quite forward looking, looking to the place Nuremberg will take in history. He says, “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.” Isn’t that great? The “poisoned chalice” reference is from Macbeth . That’s what’s so impressive about him. He was going against the grain in a couple of ways. First is that this wasn’t originally what the US government wanted to do with the senior Nazi leadership. The original policy was actually summary executions. There’s a huge fight within the Roosevelt administration about what they’re going to do with the Nazi war criminals, once they’re actually defeated. American public opinion was incredibly vindictive. There are Gallup polls showing that only between 1% and 10% of Americans — depending on how the question is worded — are in favor of war crimes trials. A vastly bigger percentage are in favor of summary execution. You get lots of Americans calling for torture, you get people calling for extermination of all the Japanese. You have this incredibly vindictive war-time public opinion. Yes. According to a Gallup poll in 1944, when they were asked what should be done to punish the Japanese, 13% of Americans said kill all Japanese. Yes, war-time public opinion is not pretty. Jackson is standing up to that. At one point he even says “I don’t give a damn what the Gallup poll says.” So at that moment he’s maybe not a very good democrat, but he’s a very good human rights advocate. Also, unlike FDR, he doesn’t blame the entire German people, he doesn’t want to turn it into a kind of blanket denunciation of all the Germans. He wants to single out individual responsibility within the leadership. Also, he remembered that there were attempts at war crimes trials after World War I , which were disasters. Today it’s easy to think of Nuremberg as over-determined — that, of course the victorious Western democracies were going to put the Nazi war criminals on trial. But in fact it was a much more hard fought, bureaucratic fight, especially within the US government, to actually get there. And then, once you get to Nuremberg you have to manage the problems of making an international tribunal fair, to make it actually work. That’s one of the most impressive things about Nuremberg — there were actually acquittals, there’s real legal process. And you have to remember that you also have the Soviet Union there, with their own judge and their own prosecutors. At first Stalin just wanted to have summary executions on a massive scale, and Stalin says this to Roosevelt and Churchill. In 1943, at the Tehran Conference, Stalin proposes shooting at least 50,000 Germans, and FDR makes this incredibly painful joke where he says that 49,000 ought to be enough. Churchill , who understands that Stalin is not kidding, explodes at Stalin, and then storms out. But once you get to Nuremberg, you have the Soviets there with this really totalitarian view of what political trials are supposed to be. So that’s what Jackson has to fight against too. Every day in Nuremberg he has the Soviets pushing him to try to turn it into something like the Moscow trials, the show trials Stalin used to purge his opponents in the 1930’s. Jackson really has to struggle to make it a real, genuinely liberal trial."