Nuremberg trials revisited

From The Law Explored: the Nuremberg trials :

Before these trials it was possible to bring legal proceedings against military people for conventional war crimes (such as torturing prisoners of war) but what had not been done was arraigning the leaders of a nation for crimes against peace and humanity. Four crimes were alleged: conspiracy to wage aggressive war, crimes against peace, war crimes and crimes against humanity. The justification for these newly framed crimes was based on reasoning like that of Robert H. Jackson, the American prosecutor, that they have been "regarded as criminal since the time of Cain".

The term genocide was coined by Dr Rafael Lemkin, the Jewish-Polish lawyer, in 1943. It means the deliberate attempt to destroy a national, ethnic, racial or religious group. His efforts to have it recognised as a crime were successful as it is now against international law and national law such as that of the UK's Genocide Act 1969. It was not, though, one of the charges levelled against the defendants at Nuremberg because those prosecutions were aimed at crimes against humanity at large.

As is vividly recounted by Professor Richard Overy (in a paper in From Nuremberg to The Hague), the British Government was originally against the idea of trying the Nazis for crimes. Churchill wanted enemy leaders shot after the war and Anthony Eden,the Foreign Secretary, said that the Nazis were so evil "they fall outside and go beyond the scope of any judicial process". But the Americans and Russians both pressed for a legal "due process" set of trials, and that approach prevailed. The victors would be as bad as the defeated Nazis if they simply relied on a "might is right" principle and shot the losers. It was therefore necessary to have the defendants given the full details of the charges against them and the right to be represented. The trial had to be conducted according to set procedures and for charges to be backed with evidence.

You can fault the trial in many ways. The defendants were being tried for charges that while they were chillingly savage, were not crimes in international law at the time they were committed. The trouble with saying something is a crime after the event is that, in Richard Overy's great phrase, this "required international law to be written backwards". Certain crimes, such as bombing civilians, did not make it on to the final charge sheet because the Allies were just as guilty. And while the Soviet judge was sitting in trial at Nuremberg and hearing about the German concentration camps, the Soviet authorities were establishing concentration camps such as the one at Mühlberg to which 122,000 were sent without trial and more than 43,000 were killed or died.