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Nuremberg prosecutor recalls when U.S. led the way
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By: MARILYN H. KARFELD Senior Staff Reporter
"Civilization itself" was the complainant at the bar at The International Military Tribunal at Nuremberg in 1945-46.
So said Henry T. King, a U.S. prosecutor at Nuremberg and currently a Case Western Reserve University law professor.
He was paraphrasing the late U.S. Supreme Court Justice Robert H. Jackson, who served as the U.S. chief prosecutor at the Nuremberg trials. King spoke about his Nuremberg experiences earlier this month at a program sponsored by the Beachwood branch of the Cuyahoga County Public Library to commemorate the 60th anniversary of the famous international war crimes tribunal.
In his opening statement, Jackson said that the "real complaining party at your bar is civilization; to pass these defendants a poison chalice is to put it to our lips as well."
By this, Jackson meant that the principles of international justice developed at Nuremberg were universal and applied to all countries, regardless of their national law, said King, 85, who teaches international arbitration.
Jackson was the reason Nuremberg happened at all, the Case professor maintained. Both Winston Churchill, the British prime minister, and Joseph Stalin, the Soviet Union leader, wanted summary executions of the German defendants. Cordell Hull, the U.S. secretary of state, wanted courts-martial. U.S. President Franklin D. Roosevelt was leaning toward a trial, King said, but he died in April 1945.
Jackson ultimately prevailed, as did his conception of the trial, King said. There would be no national sovereign immunity, which meant German defendants could not be exonerated, because they followed domestic law as opposed to international law.
In addition, "I was only following orders" would not be a defense. Even when the head of state gives the orders, the individual must be held accountable for what he had done, King said.
Charges at Nuremberg included crimes against peace, such as using war as an instrument of national policy to invade innocent countries. The second count involved crimes against the laws of war, such as the taking of hostages and reprisals.
For the victims of the Holocaust, the most important charges were crimes against humanity, King said. These included atrocities committed for reasons of race, religion and national origin.
Negotiations over these three counts were stormy, King recalled. The Soviets wanted crimes against peace to apply only to what the Nazis had done. They also wanted a presumption of guilt, not a presumption of innocence.
"Jackson thought a presumption of innocence would give the trial meaning," said King.
The U.S. chief prosecutor also wanted to hold the trial in Nuremberg, not Berlin, the site the Soviets favored, King said. Nuremberg was the spiritual home of the Nazis, where huge Nazi Party rallies took place in the 1930s. The city also had a courthouse undamaged by Allied bombs.
Prosecutors from the four Allied powers n the U.S., Britain, Soviet Union and France n also differed over whom to call as witnesses. Some advocated calling a large number of witnesses so that their testimony would bring a lot of news coverage.
But Jackson, mindful of the meticulous records the Nazis kept, "thought the trial should be primarily documentary, so the Germans would convict themselves," King said.
The Case law professor helped prepare the cases against three of Hitler's associates, including Erhard Milch, who was tried for using Hungarian Jews for slave labor. Milch arranged to deport the Jews to work in the German aircraft program. He was convicted and sentenced to life in prison, although the governor general of Germany eventually released him.
While prosecuting Milch, King interviewed Herman Goering and Albert Speer. The idea was to get Milch's compatriots to speak against him. Goering crossed out everything of substance in the affidavit King asked him to sign. Speer kept insisting that he was responsible for the slave labor crimes; Milch was not.
"I was crestfallen," said King.
Eventually, he got to know Hitler's architect quite well and wrote a book about him, The Two Worlds of Albert Speer.
At Nuremberg, 11 defendants were convicted and sentenced to death by hanging, three were acquitted, and seven were sentenced to jail terms. The UN endorsed the Nuremberg principles of individual accountability and international human rights, later adopting human rights conventions against torture and genocide.
Nuremberg also provided "the first autopsy" of a modern dictatorship, King said. Hitler destroyed the guardians of democracy n the judicial system and a free press.
But the establishment of international criminal tribunals, such as those for Yugoslavia and Rwanda, are Nuremberg's most important legacy, the Case professor said.
The International Criminal Court (ICC), which the U.S. has refused to join (a fact King lamented), "attempts to institutionalize what we did 60 years ago at Nuremberg." Ninety-seven nations belong to the ICC, including all of Western Europe and virtually all U.S. allies.
In 2002, the Bush Administration "unsigned" the treaty establishing the permanent war crimes tribunal because it feared U.S. soldiers or diplomats could be tried in politically motivated cases.
"The U.S., which led the way at Nuremberg," King said, now "is the tail of the dog."
History shows that Nuremberg marked the start of the international human rights movement. "It didn't matter what laws were in place in various nations," King said. "A higher law applied."
So said Henry T. King, a U.S. prosecutor at Nuremberg and currently a Case Western Reserve University law professor.
He was paraphrasing the late U.S. Supreme Court Justice Robert H. Jackson, who served as the U.S. chief prosecutor at the Nuremberg trials. King spoke about his Nuremberg experiences earlier this month at a program sponsored by the Beachwood branch of the Cuyahoga County Public Library to commemorate the 60th anniversary of the famous international war crimes tribunal.
In his opening statement, Jackson said that the "real complaining party at your bar is civilization; to pass these defendants a poison chalice is to put it to our lips as well."
By this, Jackson meant that the principles of international justice developed at Nuremberg were universal and applied to all countries, regardless of their national law, said King, 85, who teaches international arbitration.
Jackson was the reason Nuremberg happened at all, the Case professor maintained. Both Winston Churchill, the British prime minister, and Joseph Stalin, the Soviet Union leader, wanted summary executions of the German defendants. Cordell Hull, the U.S. secretary of state, wanted courts-martial. U.S. President Franklin D. Roosevelt was leaning toward a trial, King said, but he died in April 1945.
Jackson ultimately prevailed, as did his conception of the trial, King said. There would be no national sovereign immunity, which meant German defendants could not be exonerated, because they followed domestic law as opposed to international law.
In addition, "I was only following orders" would not be a defense. Even when the head of state gives the orders, the individual must be held accountable for what he had done, King said.
Charges at Nuremberg included crimes against peace, such as using war as an instrument of national policy to invade innocent countries. The second count involved crimes against the laws of war, such as the taking of hostages and reprisals.
For the victims of the Holocaust, the most important charges were crimes against humanity, King said. These included atrocities committed for reasons of race, religion and national origin.
Negotiations over these three counts were stormy, King recalled. The Soviets wanted crimes against peace to apply only to what the Nazis had done. They also wanted a presumption of guilt, not a presumption of innocence.
"Jackson thought a presumption of innocence would give the trial meaning," said King.
The U.S. chief prosecutor also wanted to hold the trial in Nuremberg, not Berlin, the site the Soviets favored, King said. Nuremberg was the spiritual home of the Nazis, where huge Nazi Party rallies took place in the 1930s. The city also had a courthouse undamaged by Allied bombs.
Prosecutors from the four Allied powers n the U.S., Britain, Soviet Union and France n also differed over whom to call as witnesses. Some advocated calling a large number of witnesses so that their testimony would bring a lot of news coverage.
But Jackson, mindful of the meticulous records the Nazis kept, "thought the trial should be primarily documentary, so the Germans would convict themselves," King said.
The Case law professor helped prepare the cases against three of Hitler's associates, including Erhard Milch, who was tried for using Hungarian Jews for slave labor. Milch arranged to deport the Jews to work in the German aircraft program. He was convicted and sentenced to life in prison, although the governor general of Germany eventually released him.
While prosecuting Milch, King interviewed Herman Goering and Albert Speer. The idea was to get Milch's compatriots to speak against him. Goering crossed out everything of substance in the affidavit King asked him to sign. Speer kept insisting that he was responsible for the slave labor crimes; Milch was not.
"I was crestfallen," said King.
Eventually, he got to know Hitler's architect quite well and wrote a book about him, The Two Worlds of Albert Speer.
At Nuremberg, 11 defendants were convicted and sentenced to death by hanging, three were acquitted, and seven were sentenced to jail terms. The UN endorsed the Nuremberg principles of individual accountability and international human rights, later adopting human rights conventions against torture and genocide.
Nuremberg also provided "the first autopsy" of a modern dictatorship, King said. Hitler destroyed the guardians of democracy n the judicial system and a free press.
But the establishment of international criminal tribunals, such as those for Yugoslavia and Rwanda, are Nuremberg's most important legacy, the Case professor said.
The International Criminal Court (ICC), which the U.S. has refused to join (a fact King lamented), "attempts to institutionalize what we did 60 years ago at Nuremberg." Ninety-seven nations belong to the ICC, including all of Western Europe and virtually all U.S. allies.
In 2002, the Bush Administration "unsigned" the treaty establishing the permanent war crimes tribunal because it feared U.S. soldiers or diplomats could be tried in politically motivated cases.
"The U.S., which led the way at Nuremberg," King said, now "is the tail of the dog."
History shows that Nuremberg marked the start of the international human rights movement. "It didn't matter what laws were in place in various nations," King said. "A higher law applied."
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