Jonathan Bush and Eugene Kontorovich
Subject: Convicting Ex-Nazis: The 80th Anniversary of the Nuremberg Trials
Transcript:
Larry Bernstein:
Welcome to What Happens Next. My name is Larry Bernstein. What Happens Next is a podcast which covers economics, politics, and history.
Today’s topic is Convicting Ex-Nazis: the 80th anniversary of the Nuremberg Trials.
We have two speakers Jonathan Bush who is a Law Professor at Columbia and a former US Prosecutor who pursued war criminals, and Eugene Kontorovich who is a Law Professor at George Mason.
There were several objectives of the Nuremberg Trials such as educating the German public of the Nazis heinous crimes and punishing the perpetrators. I want to find out if the trials were successful at achieving these objectives as well as their historical importance and their precedent for the laws of war in international courts.
Jonathan, can you please begin with six minutes of opening remarks.
Jonathan Bush:
I’m Jonathan Bush. I write and do research about the law of war. I have taught this since 1983 at five different law schools and before that I was a prosecutor with the U.S. Justice Department in the office that tries to deport Nazi war criminals who are here.
Let me start with some opening remarks.
…[t]he term “Nuremberg trials” should not be taken as limited to the precise rulings of the Nuremberg courts, but in its broadest sense, as standing for all the war crimes trials that followed in the wake of the Second World War, and the ideas they have generated. Today, “Nuremberg” is both what actually happened there, and what people think happened, and the second is more important than the first. To set the record straight is, no doubt, a useful historical exercise, but sea change is itself a reality, but it is not the bare record but the ethos of Nuremberg with which we must reckon today.
These words were written by Telford Taylor, America’s leading expert on the law of war, and the second of the two U.S. Chief Nuremberg prosecutors in his 1970 book, Nuremberg and Vietnam. This month marks the 80th anniversary of the start of the first Nuremberg trial, which opened in November, 1945.
Today Nuremberg has gained new significance for its influence on military culture and on international law and international courts. Let’s review what actually happened in 1945. The four major allies, US, UK, USSR, and France indicted 24 Nazis and 6 Nazi organizations for war crimes, crimes of aggression, crimes against humanity, and conspiracy. Several of the most important Nazi leaders were dead, including Hitler, Goebbels and Himmler, but the allies located many others including Chief Herman Goring, Field Marshal Keitel, industrial planner Albert Speer, a banker and economic minister Hjalmar Schacht, and the poisonous antisemitic journalist and party leader Julius Streicher. The trial closed in August, 1946 with judgment of 19 defendants, Sentencing 12 to death, 3 to life, and 4 to terms of imprisonment.
Goring committed suicide hours before his hanging. Of the seven, in prison three were released early and four served their full terms with the last Rudolph Hess dying in prison in 1987.
What were the legal bases? The law of war is old. For centuries, commanders have tried, captured enemy civilians and even soldiers from their own ranks for murder, theft, rape, espionage, and so on. After the Civil War, the U.S. even convicted a Confederate deputy commander of Andersonville camp for systematic brutality toward Union POWs, but there was no precedent for war crimes, trials of heads of state, military commanders, or leaders of political and industrial institutions.
In planning the Versailles Treaty ending World War I, the U.S. opposed trials for military and political leaders. This time was different. By 1943, the major allies that accepted the notion of war crimes trials. U.S. civilian lawyers in the Pentagon took the lead in framing new legal theories of aggression and organizational guilt to encompass the enormity of Nazi criminality. With FDR’s backing, American diplomats suppressed its reluctant allies to join in an international trial that would use these new theories.
President Truman selected the sitting U.S. Supreme Court Associate Justice Robert Jackson to be chief US prosecutor and his energy in the summertime conference in London led to allied agreement on key matters like the crimes to be charged and the four-way organization of the court.
The Nuremberg trial lasted 10.5 months making it the longest criminal trial in U.S. or UK legal history. At first it was front page news but much of the public soon lost interest. Some trial moments were iconic, however, such as the eloquent opening statements by U.S. and UK chief prosecutors, Jackson and Hartley Shawcross, Jackson’s botched cross-examination of Goring, the screening of concentration camp footage, testimony by Auschwitz Commandant Rudolf Hoss, and Albert Speers seeming contrition on the witness stand that probably convinced judges to spare his life.
Nobody imagined that one trial could address the full Nazi leadership, and there were soon other trials using similar international law. Starting with a trial of Nazi medical professionals who led programs of euthanasia and forced human experimentation. These 12 Nuremberg trials from 1946 to 49 charged major industrialists, military and SS commanders, government ministers, financial, legal, and party figures, and diplomats.
By the end, 177 were tried and 142 convicted with 24 sentenced to death. But almost as soon as the trials ended, the new U.S. High Commissioner for Germany, John McCloy approved accelerated releases for the convicted Nazis. Nuremberg was a success but quietly undermined by clemencies.
The Tokyo Trial was a forgotten failure, but both Germany and Japan saw the emergence of durable democratic government. Today, Nuremberg trials are widely praised for initiating the idea of international criminal liability, applying crimes against humanity and its sister crime genocide, insisting on fairness, and rejecting defenses such as state immunity and following orders.
Germans and others attacked them for applying ex post facto criminal law and including the Soviets. More recently, critics have said that the trials marginalized the Holocaust. Legal insiders add that while the trials were important because they happened, they also featured narrow determinations of aggressive war and pre-war crimes against humanity and an overly generous understanding of reasonable doubt leading to acquittals of numerous guilty men in the 1950s.
The legacy of Nuremberg was the rehabilitation of Germany and Japan. Nuremberg is principally understood as educating the world about the horrors of Nazism and as an example of fair punishment for its perpetrators, but it is also invoked powerfully as the key precedent for the post 1993 International Criminal Courts in the Hague and elsewhere, whether that an analogy is apt and the International Criminal Court can match the achievements and legacies of its Nuremberg predecessor may be hanging in the balance.
Larry Bernstein:
Nuremberg was front page news for a while and then it dropped off until the judgment. With a 10.5 month trial it’s going to lose its audience. If one of the key objectives to educate the public to the crimes of the Nazis, was this the appropriate way to do so?
Jonathan Bush:
Germany was pummeled and impoverished. Nobody needed an education. The difference is that Germans had heard for 13 years that the allies, the Jews, and the Bolsheviks were the problem and they looked out their window and saw that Allied bombers. The principal education was educating the Germans that it was not the allies’ fault, even though the allies had released the bombs. It was the regime that had started World War and waged it. Americans and Brits did not need education about the evils of Nazism.
Larry Bernstein:
When the evidence was presented of the crimes of the Nazi regime, many people refused to believe that this was possible.
Jonathan Bush:
It was not just the trial. Many German memoirs talk about the whole town being herded into a movie theater to watch news reels. When our censorship eased after a year or two and we encouraged German correspondents to come to the later Nuremberg trials. We urged them to publish what they heard in the courtroom about the defendants. It was the same as inviting men around the camps to come and look. In some cases, we made them help with digging graves and moving thousands of bodies. That of course only reaches a small audience.
Larry Bernstein :
No, I think the word of mouth can be quite powerful there.
In your opening remarks, you mentioned the US Civil War as an example. When the Civil War ended General Grant told Lee that he would allow the officers to take their horses and guns back to their homes and that it is over as long as they swore allegiance to the United States. Jefferson Davis, the leader of the Confederacy was arrested, and I did a podcast on the fact that there was never a trial because they weren’t sure what crimes exactly they would indict him. And the fear that they may lose because if they tried him in Richmond, it may be problematic.
Where they did have a war crime, it was as you mentioned at Andersonville Prison where the commander of that camp had allowed the abuse of Union prisoners of war. And so, it showed in the Civil War, this very narrow idea of war crimes, that it was the abuse of prisoners was the crime, not the political leadership, not publishing a newspaper that was pro-confederacy or anti-black. How do you think about the change in the American character of using the law against the losers distinguishing the Civil War with World War 2?
Jonathan Bush:
The problem has always been with militaries. How seriously did they take the need to try their own people for the abuses? We had these trials in the Philippine war, and we tried some Americans who committed murders.
There is a famous case that got rediscovered around 2004 because it was the trial of an American for ordering waterboarding. But the question is how seriously do you take it when the shoe is on the other foot, when it’s time to try your own people? And no military has a particularly good record of it. But the two biggest issues are when do you charge your own people, not just the other side? And when do you charge higher ups, not just trigger pullers?
Larry Bernstein:
My grandparents, when they left Europe, ended up moving to Skokie, Illinois, and that village had a substantial Jewish population. When I was a kid, the American Nazis marched in Skokie. There was an injunction and the courts decided after the ACLU represented the American Nazis and they were able to march, and the community was furious. One of the things that the ACLU argued is that people who we don’t agree with and even if their ideas became widespread would be dangerous that people have a right to say views that we may find despicable.
One of the defendants at Nuremberg was Streicher who ran a rabid anti-Semitic newspaper. He never himself engaged in any war crime. He published gross anti-Semitic works to 15,000 readers during the war, but was charged with disseminating hate, and he was convicted. And how should we think about our values as it relates to calling war crimes on those individuals who spew hate?
Jonathan Bush:
Let me answer it in two ways. One relating to Jackson and one relating to Streicher. Part of this goes back to viewing it in hindsight. There is a Supreme Court case also in Illinois from the late 1940s in which a Nazi sympathizer was arrested for starting a riot for publicly spouting antisemitic hate. The question came to the Supreme Court of free speech versus local public order. The Supreme Court said, this is covered by free speech. Jackson wrote a long opinion and said, no, you must punish this person. I’ve been to Nuremberg, I’ve been to Germany, You could see the civil liberties wing of the Supreme Court of Justices Black and Douglas rolling their eyes at each other just saying, “oh, come on, not Nuremberg again, we’re a sturdy, robust country.”
We did not ban Father Coughlin, Huey Long or any of the other hate mongers Klansmen who gave public speeches. And that was always been the American way. But it is not the case that Jackson was wrong. Don’t you wish you could have nipped it in the bud? Streicher was not entirely the prosecution going too far and punishing a mere speaker. He had also been the party leader, the governor of Nuremberg in the thirties.
William Shirer reports on the radio and saying, I cannot believe what I am seeing here. The governor is whipping an elderly Jewish man and making him scrub the street with a toothbrush and is kicking him. And so, America had seen the brutality in real-time of Streicher guilty of crimes against humanity if they covered acts committed in the thirties. But they didn’t. The court made this pickle for itself saying pre-war crimes against humanity, unless they are related to the wartime crimes are not within our jurisdiction, we find Streicher guilty. Nevertheless, that’s the circle that can’t be squared. And some of the best observers like Taylor writing about Nuremberg said under the law as the judges construed it, Streicher should have been let go.
Larry Bernstein:
One alternative was in lieu of Nuremberg, you could have military tribunals like the union had military tribunals in the Civil War. These trials were quick probably a couple of days, not 10.5 months. There is a scene in the Nuremberg movie where Eisenhower makes a statement, I think it is great that you guys go ahead, but make sure everyone’s convicted.
That is a farce at some level and undermines the benefits of the law to be truth seeking and to follow the law wherever it leads. But we are not willing to follow all the evidence where it leads if it means that the bad guys are set free. We want Streicher dead and damn the law. And we did it.
That goes back to the heart of your original quote from Taylor, which is here is what happened, which is we want Nuremberg to be a force for good, but the reality on the ground is it is mixed. We didn’t allow the Germans to invoke the planned invasion by England of Norway because it would have undermined the British. Another example was Ribbentrop’s defense, he said, this was a Nazi-Soviet treaty to split Poland. And the Russians who were engaged in both the prosecution and judges said, do not allow that as a part of evidence. It is embarrassing to us and does not serve our purposes.
Would we have been better served with military tribunals and killing off the bad guys versus engaging in so-called justice where we undermine some of the very tenants of fair play?
Jonathan Bush:
Jackson, to his credit, was the principal voice for saying, if we are going to have trials at all, they must be fair. And there is a famous quote he gave, we don’t want to make the Germans sip from a poison chalice that we will be afraid to sip from ourselves. If you are going to do it through the forms of law, you should take law seriously.
Larry Bernstein:
It comes down to retributive justice. Sometimes we got it, sometimes we did not. I had Serge and Beatte Klarsfeld at my book club, and Beatte decided that she would go out and kidnap former Nazis. She failed to kidnap them, but then went on local news and said that she had attempted a kidnapping of a Nazi living in the open at a local bar and chased him down the street.
The Germans expelled her from Germany but did not pursue her for attempted kidnapping. And she was yelling from France that it was outrageous that Nazis would be living in the open and the German government not dealing with these criminals.
Israel kidnapped and tried Eichmann. We have this desire as a society for justice.
Jonathan Bush:
To have shame, you must have an audience that is willing to view the person who has been identified as shameful. And for that you usually need a regime that’s fallen or that’s in disgrace. So to make the obvious analogies that the Soviet Union didn’t fall after World War II and lasted a long time, and people who we would view as major architects of major atrocities, people who did the Ukraine mass famine, people who did mass torture and execution for Stalin in the thirties, people who oversaw the most brutal of battlefield behavior during World War II, of course they weren’t tried. Stalin was still in charge, and they were not shamed. They fell out of power if Stalin chose that. But the regime outlived their shame.
The East had it easy in the post-war years because they could point to West Germany and say, this is a country of fascists, denying everything, and every one of them is guilty. In fact, there were many people who were guilty.
A German who had committed atrocity in Poland did not want to stay. They all fled with the end of the war back to Germany where they could melt happily in with the others, except for those who made it to South America most stayed in Germany.
The question of retribution and shame is a West German question because that’s where they were. West Germany for a combination of motives, some of them legitimate legalistic motives and some shameful political motives, said the most important thing is we must not have trials using this new crime against humanity. We need to use traditional German law uncorrupted by politics. The 1871 criminal code that punished trigger pullers not high-level planners. And so, no camp commanders, no industrialists, none of these people are charged. And that changes after the Eichmann trial where they are embarrassed that Israel can have a trial of a high-level Nazi, and we cannot. And they have a trial of Auschwitz leaders, not the commandants, the Poles had already executed them, but they had this trial and they do try higher ups, but still not too many.
They moved on to trying high-level camp personnel, many of whom were dead by the late 1960s and 1970s. Germany did have a sense of shame, even though there was this deep current of denial all through the 1940s and 1950s.
German burghers going to their Greek vacations in their Mercedes, having people throw tomatoes at their cars as they went by. Germany came to realize how hated they were. How can we lead the EU if they all think we are a bunch of Nazis? Germany the second and third generation realized, we are despised. We must look at ourselves. And they did. Shame and deterrence that you pointed to are critical factors, but they did not come from trials.
Larry Bernstein:
How do you feel about our desire for retribution and not private or personal retribution? Specifically, Goring’s decision to commit suicide with a cyanide tablet. We want Goring dead. And Goring does not like the fact that the judges have determined to kill him by hanging. But he demands and requests that he be shot, which is the German appropriate way to kill a military officer. And so, he takes his own life. The prison warden says that we were robbed justice. We were robbed of the ability to fulfill our desire for retribution to kill him in the way that the judges have ruled. Why is that legitimate?
Jonathan Bush:
Who was cheated? Not the victims, they didn’t need Nuremberg to validate that. But the law has this funny logic to it that once we have started, we’re doing it the right way. And the right way includes the judge’s punishment. And you are cheating that.
Larry Bernstein:
I end each episode on a note of optimism. We have the 80th anniversary of Nuremberg trial this year.
Jonathan Bush:
The major success of Nuremberg viewed now are new trials and court systems, and the thing that we all take for granted is that Germany, Japan, Italy, the major axis, powers have never done it again.
They are model actors on the world stage. That’s NATO, that is the EU, and in some small way that’s also Nuremberg and Tokyo.
Larry Bernstein:
Thanks to Jonathan, I would now like to turn to our second speaker Eugene Kontorovich who is a law professor at Antonin Scalia Law School at George Mason University.
Eugene Kontorovich:
The importance of the Nuremberg Trials was to establish international criminal law and international institutions in enforcing a global order. The allies felt they needed legitimacy for Allied war crimes trials to showcase the Nazi atrocities, and in the longer term to inspire international criminal tribunals after the Cold War. You had Nuremberg and then nothing like it for another 45 years.
Larry Bernstein:
How do you feel about the use of a trial to educate?
Eugene Kontorovich:
I don’t think it’s necessarily the best educational tool. But the problem of trials is that they are not designed to educate the public. They’re designed to make determinations about individual guilt or innocence. And they have rules of admissibility of evidence, which are not the rules used by historians.
Another way of educating the public is by movies. Nuremberg is seen as a success of this public education model because these trials educated the German public.
Polls immediately after the Nuremberg trials show mixed results. A lot of people were still in denial. It is very hard to disaggregate the effects of the Nuremberg trials and procedures from the partition of Germany, the massive bombing of Germany, and total catastrophic defeat.
Larry Bernstein:
Having the Russians involved proved deeply problematic. One of the indictments was aggressive war, but the Russians refused to allow information related to the Nazi/Soviet Pact to split Poland. And there was also an unwillingness to discuss the murder of the Polish officers in
Eugene Kontorovich:
the Katyn Forest
Larry Bernstein:
and that was not included. It was the defendant’s goal not to seek truth, but to prevent their guilt and ultimate hanging. So, neither side was interested in the truth. How should we think about alternative approaches to educate the public?
Eugene Kontorovich:
The allies were interested in the truth. They were constrained to only seek the partial truth, which was different from historical inquiry. The truth until it concerns the Soviets, with Nazi Germany signed the Molotov Pact, were then proceeding to try their co-conspirator in this aggression.
Subsequently, international courts since then - the Yugoslav Tribunal, Rwanda Tribunal, and there has been academic work on whether the narrative presented there to reeducate the people whose leaders are being tried, is it a way of showing the Hutus that they were participants in genocide? Does it convince Serbs that their leaders participated in a genocide during the civil war? And the answer is overwhelmingly no.
The public in these countries accept verdicts against the other side as establishing historical truth and dismisses verdicts against their own leaders and sees them as based on falsehood and international conspiracy. They have not had this public educative role.
Another agenda that lawyers in the U.S. and the UK were concerned about being accused of victors justice because they thought it would de-legitimize them. What we see in retrospect is there’s no such thing as loser’s justice because the losers don’t get to have trials.
What they wanted to show that they were charging them not just because they were their enemies, but because they violated international law. And the legally tricky issue is the Germans would say what we did was legal in Germany at the time based on our laws. You could say, well, it was not legal in Poland.
Law at the time would come short for crimes against the Jews in Germany because it was legal in Germany. And international law at the time did not address a country’s obligation to its citizens.
Larry Bernstein:
One of the interesting aspects of the International Criminal Court is that it is a court of last resort that it first gives the local government the ability to try the individual. And if they are incapable of doing so, then only then, it would go to an international court. What I thought was interesting was that several of the defendants in the Nuremberg trials were found innocent, and then immediately afterwards they were arrested by the new German government and tried and convicted. What they didn’t do was allow the Germans to first indict and convict prior to the Nuremberg trials. How do you feel about that inclusion in the ICC rules and its lack of application in those cases?
Eugene Kontorovich:
The ICC has a principle known as complementarity, which says that it will only prosecute if a member state or a state where crimes within its jurisdiction occurred is unable or unwilling to prosecute.
Now, in the case of the charges against Israel, it’s true Israel’s unwilling to prosecute in a sense, but for two fundamental reasons. One is it does not recognize the jurisdiction of the ICC because it’s not a member and Palestine is not a state. What happens in a case where the domestic authorities truly do not believe a crime occurred legitimately and in good faith. So, the Israeli legal authorities, which supervised much of the war are deeply convinced, and I think correctly, that there was no crime against humanity of starving the Palestinian people. And in fact, that there was not starvation of the Palestinian people, let alone illegal starvation. But properly understood if there is a well-functioning legal system, rule of law as there is in Israel, authorities who are willing to prosecute government officials as there clearly are in Israel, where the Attorney General who’s in charge of the legal system is prosecuting Prime Minister Netanyahu and all of his aides constantly and on multiple charges, so there’s no untouchability about him, makes a determination that the crime didn’t occur. There’s nothing further to investigate.
The ICC may be forcing countries to investigate crimes that did not occur to avoid ICC jurisdiction, which is entirely inappropriate. And the irony that the notion of these international crimes ultimately is being used to deter the Jewish state from defending itself from crimes that were first conceived of as a retroactive response to crimes against the Jews, shows that the legalization of these things is not a road to justice.
As to Nuremberg, they acquitted 20% of the defendants. The ICC has a final conviction rate of like under 50% to give you a contrast of how they work, which is quite low and makes you question their initial prosecution and indictment decisions.
Larry Bernstein:
What were the Nuremberg trial objectives, and did it fulfill those objectives?
Eugene Kontorovich:
It’s hard to judge. There did become a significant awareness both in Germany and outside of the crimes committed by Nazi Germany and an acceptance by the German people that these crimes happened and were done in their name. It’s very hard to link that causally to the Nurenberg trials, as opposed to the entire reorientation of the German education system under Allied control. You see different German attitudes towards the Holocaust in the 1960s rather than the 1950s when there was still a lot of denial about it.
If the agenda was to set a precedent that we are now having these international tribunals, it seems to have been a failure because for 45 years, there was nothing like it because of Soviet opposition to it, because of the Cold War where anything is going to have either a pro-American or pro-Soviet valence.
There were some brief enthusiasm regarding prosecutions in Yugoslavia and Rwanda. I don’t think they’ve had a definitive role in bringing peace to those areas rather than military successes of one side or another are what have done that. And they are only possible in the wake of a side achieving military success. It was the NATO air campaign against Serbian forces that ended the Bosnian war.
The ICC sees itself as the inheritor of Nuremberg. It has an abysmal record. It’s only convicted six or seven people of mass atrocities. There has been massive selectivity and weird bias of charges. It seems unnecessary because typically the perpetrators of great atrocities, they are not worried about being put on an international trial. When Hitler embarked upon his course of action, I think he had it clearly in mind that he was going to commit suicide rather than be captured. In other words, the people who engage in these actions are typically willing to risk a high likelihood of death in the case they lose.
Nuremberg was able to try the Germans because the Germans had been defeated. The ICC can barely try anyone because they are only coming in for the ex-post justice. Rather than providing the sweat equity, so to speak, of ending a war. The allies had legitimacy in that they were not unconnected to this war.
It was not international bureaucrats who had parachuted in because they liked to conduct what is now called transitional justice. They had fought Nazi Germany for five years when you have the ICC is not going to fight anybody for five minutes.
One part of the Nuremberg Trials was having a legal basis for executing Nazi officials. The Soviets didn’t care. The Soviets were ready to execute people on mass. Churchill was sympathetic to that idea also, but the Americans wanted everything to be lawyered up. So, to the extent they wanted that, that’s what they got.
Larry Bernstein:
Churchill famously said, let’s not have a trial. Let’s just shoot them. Would that have been a better result?
Eugene Kontorovich:
Stalin famously responded, let’s start with 20,000. And when Churchill understood that from the Soviet perspective, that wouldn’t be limited to let’s say 10 or 20 top leaders, but they’d go down to German captains or majors, he blanched and backed off.
That’s the problem, if you were going to start shooting, the Soviets were going to go big. In the end, the Soviets did kill untold numbers of German prisoners of war. The Soviets had a million German prisoners of war in their hands, if not more. At the end of World War II, a very small percentage of those came back. But that’s not part of the story we tell of international justice.
From a practical perspective, things seem to have worked out. Germany was rehabilitated. The Nazis were defeated. Whether there are people who escaped punishment for crimes that they should have been held to account for is a separate moral question.
Larry Bernstein:
There were war crimes committed by the allies. Russian soldiers raped over a million German women. There were insufficient actions by the senior Russian leadership to prevent such behavior.
Bomber Harris, who led the UK’s Air Force bombings of German cities said that there is no question in his mind that if the war had been lost, that he would have been tried on war crimes. Another example, Curtis LeMay firebombed Tokyo. Not only was he not judged harshly for this behavior, but he was promoted to head of SAC command and later ran as a vice presidential candidate with George Wallace. How should we think about when the victors engage in war crimes?
Eugene Kontorovich:
The rape of women in Germany by the Russians was a direct attack aimed solely at civilians, which is a classic war crime. It was on a scale that it was obviously known to all levels of command because it wasn’t just like some incident. It was a massive phenomenon. By the way, the Americans knew about it also. But what were they going to do start World War III?
Larry Bernstein:
There was a reason why the German civilians ran towards the Americans and away from the Soviets.
Eugene Kontorovich:
Not to mention the Katyn Forest massacre. Strategic bombing did also focus on infrastructure. This was a time when factories were inside cities. Knowing there would be an enormous civilian cost, which they did not particularly try to mitigate, but it’s not clear that before the Geneva Conventions, international law would’ve required that. Winston Churchill and FDR would’ve been hung had they fallen into German hands. That’s not suggesting that they did something illegal.
Larry Bernstein:
The famous World War II criminal trial not at Nuremberg was in Jerusalem. Eichmann had been kidnapped in Argentina by the Israeli Mossad and taken without the permission of the Argentine government to Israel.
He was given representation and then convicted and is the only person who was given the death penalty in the history of Israel. I think the objectives were similar. They wanted to educate the Israeli public and the world as to the crimes that Eichmann had committed and prove his guilt beyond a reasonable doubt, and then kill him with the hope that it would discourage other anti-Semites to kill Jews with the knowledge that the Israelis would hunt them down, violate international convention by kidnapping or killing them offshore. How should we think about Israel’s decision to violate international norms in bringing this trial?
Eugene Kontorovich:
There was backlash when Israel kidnapped Eichmann. The UN condemned it. It is far from clear that it was a violation of international law. It seems reasonable to be able to pursue people like this wherever they’re found. Maybe the violation of international law was on the part of Argentina for giving him safe harbor.
Israel had a different agenda. The public record was part of it, but it wanted to show that Israel now stands as the protector of the Jewish people. There was no Israel when these crimes were committed, but Israel will now punish crimes against the Jewish people. We don’t need the allies. We don’t need anything international. So this could have easily been done by assassination, which is a thing that Mossad does against contemporary enemies, but that would not have had the advantage saying that Israel is now the avenger of the Jewish people.
Larry Bernstein:
Scholars view the benefit of the Nuremberg Trials is the creation of the International Criminal Court.
Eugene Kontorovich:
The International Criminal Court has not been a success by absolutely any metric. They have convicted literally a handful of people of atrocity crimes. They have made massive unforced errors and had a high overturning rate within their own courts. They have engaged in massively politicized actions of which the indictments of Israeli leaders for fighting Hamas. They have not been selecting for greatest atrocity, but rather things they were interested in politically and have had essentially zero impact on the commission of atrocities.
Larry Bernstein:
I end on a note of optimism. What about the Nuremberg trial was a force for good?
Eugene Kontorovich:
Very hard to say. This was part of a broad package of actions aimed with the future of West Germany and our relations with the Soviet Union. I think if it hadn’t happened, we’d be living in exactly the same world.
Larry Bernstein:
Thanks to Eugene and Jonathan for speaking on the podcast. If you missed the last podcast, the topic was The Government Housing Failure.
Our speaker was Howard Husock who is a Senior Fellow in Domestic Policy Studies at the American Enterprise Institute and the author of a new book entitled The Projects: A New History of Public Housing.
You can find our previous episodes and transcripts on our website
whathappensnextin6minutes.com. Please follow us on Apple Podcasts or Spotify. Thank you for joining us today, goodbye.
Check out our previous episode, The Government Housing Failure, here.
