Nuremberg Revisited

In a couple of days, January 29, 1945, it will be the anniversary of the liberation of Auschwitz Concentration Camp. It reminded me of an article written in 2000 by Professor Phillip Hammond, D. Mckenzie Brown Professor in the Religious Studies Department of  University of California at Santa Barbara. I will give a short exposition of what the Trials were about, intersperse some history and quote some from the Professor.

There had been a recent four hour dramatized series on the Nuremberg Trials, the first international military tribunal trial in history.  The horrors perpetrated on the Jews and millions of others, as well, needed to be dealt with and those responsible punished.  The prosecutors were from four countries, the United States, Great Britain, France and the former Soviet Union. Each had its own judge and prosecutorial team.

There were four counts to be addressed.  The U.S. presented Count 1, Conspiracy to Wage Aggressive War. The British presented Count 2, Crimes Against Peace, and the French and Soviets together presented Counts 3 and 4, War Crimes and Crimes Against Humanity respectively.  Each defendant chose a lawyer to represent him . The Chief Justice of the U.S. Supreme Court at the time, Robert Jackson, was the head prosecutor for the United States.

The prosecution used the Nazis' own records to present in evidence. Few Holocaust survivors were asked to testify. The prosecution focused on the words of the defendants themselves - how and why they acted as they did, and how they persuaded others. The documents showed conspiracy and crimes of aggression.

Probably because these things were easier to prove than war crimes or crimes against humanity, the television drama concentrated on Counts 1 and 2 mainly.  Professor Hammond made note of that fact and went on to explain the importance of Counts 3 and, particularly, 4.

The defense of Counts 1 and 2 was easily destroyed by factual events and documentations. The defense that people were just following orders was questioned because of the nature of the orders. Were they moral? 

The argument of the prosecutors was new to this type of trial.  It involved using a  Natural Law argument.
This became a point of controversy. Could all regimes be judged on the idea that their dictates might be  immoral?

Professor Hammond cited our own founders. The signers of the Declaration of Independence wrote about "the laws of nature and of nature's God."  Even though the German Parliament had upheld the immoral, thus illegitimate, laws, the guilty verdict condemned crimes against peace and against humanity. However, in the television production, the why  of the decision was only explained as being against International Law.

Germany, Italy and Japan had signed the Pact of Paris in 1928, renouncing wars of aggression. It is important to realize that International Law has been based on Natural Law. Through reason, Natural Law we can know our dutiees toward God, our neighbor, nature and ourselves. What was not made clear in the drama is that the prosecution used the Natural Law argument against war crimes. The laws that the Germans followed were immoral and illegal.

George Will wrote a column about tinkering with our Bill of Rights. The first ten amendments are based on  natural rights. They are to protect the "people" from an overreaching government. As Professor Hammond explained it, "...the rights to life and liberty...or the rights of religious free exercise and speech are in the Contitution because they are morally sound and therefore legal; they are not morally sound and therefore legal because they are in the Constitution."

Our treasured rights are being attacked, not only by international lawyers (read U.N.) seeking to make our Constitution subservient to a global law, (which could be based on other countries' concepts that rights are entitlements given us by government), but an in-your-face attack by our own federal government.

What was particularly disturbing was that then Chief Justice Rehnquist said that constitutions do not have any ground in any idea of natural justice. If our own Supreme Court Chief Justice, and who knows who else on the Supreme Court at this moment, believes that, would he (they) have accepted the Natural Law argument at Nuremberg? Would they accept it now?