Authors: Ira Katznelson
Such bombing arguably violated prewar treaties and international ethical benchmarks, though the Allies would assert that it destroyed the war-making capacity of the enemy, saved the lives of soldiers, and shortened the duration and thus the destructiveness of the war. But this degree of inflicted desolation undermined the effort at Nuremberg to restore and reinforce international law and moral standards.
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The decision to create a means to punish Axis war crimes had been announced on October 30, 1943, at the conclusion of a twelve-day meeting in Moscow attended by Secretary of State Cordell Hull and Foreign Ministers Anthony Eden and Vyacheslav Molotov at a time when cooperation between the two democracies and the USSR was at a peak, and the Red Army was bearing the brunt of the war. The Moscow Declaration, signed by Roosevelt, Churchill, and Stalin, stipulated that hostilities would continue until the Axis powers surrendered unconditionally, and it announced the intention to create a new international organization to secure global security and keep the peace. The last section, a “Statement on Atrocities,” proved more germane to the events unfolding in Nuremberg in 1945. It declared:
Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied Powers will pursue them to the uttermost ends of earth and will deliver them to their accusers in order that justice may be done. The above declaration is without prejudice to the case of the major criminals, whose offenses have no particular geographical localization and who will be punished by the joint decision of the Government of the Allies.
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By mid-1945, as the concentration camps were being liberated and the civilized world began to confront the unimaginable horrors perpetuated by the Third Reich, the time had come. Yet a precise policy remained to be formulated. Since the Moscow Declaration, the three Allies had not discussed the question of war-crimes trials. On June 26, Robert Jackson of the United States, Robert Falco of liberated France, David Maxwell Fyfe of Great Britain, and Iola Nikitchenko of the Soviet Union opened six weeks of strenuous negotiation in London to determine the protocols that would govern future proceedings.
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One important determination concerned the scope and particularity of the charges against the Nazi defendants. The Soviets at first demanded that the crime of aggressive war be limited to actions by the European Axis powers, arguing against a general condemnation and urging that a war-crimes trial stick to “aggressions started by Nazis in this war.” The other delegations thought the Soviets either had their November 1939 invasion of Finland in mind or were trying to insulate themselves against condemnation for their own future activities by distinguishing justified “peoples wars” from unjustified imperialist ones. The resolution of this dispute split the difference. A general, abstract definition was adopted, but its application was limited to crimes “carried out by the European Axis.”
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Even more significant was the key decision, arduously achieved, to create an international court, rather than proceed either by convening military tribunals or having each country deal with crimes against its own citizens. Its procedures, the August 8 London Charter stipulated, would be directed by established liberal legal procedures, not by summary justice. Jackson summarized this achievement in his final report on the proceedings to President Truman, on October 7, 1946, noting how the London Charter had “devised a workable procedure for the trial of crimes which reconciled the basic conflicts in Anglo-American, French, and Soviet procedures. . . . The Charter set up a few simple rules which assured all the elements of a full and fair hearing, including counsel for the defense.”
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Situated in time between war and peace, the trial thus sought to reimpose legality, notwithstanding problems of post hoc justice by the victors, on what had been an especially barbaric war marked by unprecedented genocide, and a 3:1 ratio of civilian to military deaths. “The nature of these crimes,” Justice Jackson argued in his opening statement, “is such that both prosecution and judgment must be by victor nations over vanquished foes.” Especially in that light, he insisted, what was critical was that the proceedings not cross the line that divides “just and measured retribution” from “the unthinking cry for vengeance which arises from the anguish of war.”
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At stake was the character of post–Nazi Germany, and the creation of multilateral institutions that could articulate broadly liberal values and pragmatically shift probabilities toward peace and decent human values.
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The approach was one of “measured judicial retribution—not silent amnesty or indiscriminate vengeance.”
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As a negotiator in London, the rather stiff Nikitchenko, quite different from the genial, witty Robert Jackson, initially insisted on features of Soviet-style justice, recommending a quick determination of guilt followed by swift execution. “We are dealing here with the chief war criminals who have already been convicted and whose conviction has already been announced by both the Moscow and Crimea declarations by the heads of government,” he argued as the pretrial procedural negotiations were taking place. “The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment, the sentences.” He further cautioned that “if such procedures is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays.”
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During the trial, moreover, Nikitchenko was visibly uneasy when Göring argued, in mitigation, that the Führer principle was indeed practiced in the USSR. He might have been thinking of how the poet Osip Mandelstam, who had critiqued Stalin in earlier poetry, felt pressured during the period of the purge trials to compose an “Ode to Stalin” in late 1936 and early 1937, though this act would not prevent his exile to the northern Urals or his death in the Gulag.
Nikitchenko faced an almost Shakespearean dilemma in representing the USSR as a victor and moral nation, having to sweep aside its purges and terror, which had resulted in the death of millions. He often voted to refuse witnesses the defense wanted to hear, and opposed allowing the defendants the right to testify under oath when they sat in same witness box that had been used by prosecution witnesses, arguing there should be no equivalence between the prosecution and the defense.
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Perhaps reacting to the brevity of his own nation’s show trials, he complained that the Nuremberg trial was taking far too long. At its end, he argued that two of four votes should be sufficient to convict, objected to votes by the other judges that produced acquittals or sentences short of death, dismissed the discussion of the verdicts as “ridiculous trifles,” and insisted that hanging be the tribunal’s form of capital punishment. As deliberations proceeded, he urged his colleagues to remember that the tribunal was meant to be “practical, not a discussion club.”
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In London, however, Nikitchenko’s conception of due process did not prevail. Led by Justice Jackson, America’s negotiators successfully argued that the Moscow and Yalta summit declarations had not been convictions, but accusations. Their truth would be determined in court. The United States, Jackson insisted, would not agree to set up “a mere formal judicial body to ratify a political decision to convict,” and would resist “political executions.” He maintained that “if we are going to have a trial, then it must be an actual trial.”
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Later, in October, after initial resistance by Nikitchenko, the tribunal agreed to allow the defendants to have lawyers of their choice, even if they had been visible and active Nazis, and permit them free rein in mounting a defense.
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Judge Nikitchenko’s opening speech betrayed no disagreement. In harmony with Jackson’s views and the London Charter, he stressed the right to counsel, and he underscored the importance of the soon to be issued “Rules of Procedure,” which would govern how witnesses would be produced and which documents could be placed in the record. Using language that might have been written by the American Civil Liberties Union, he resolutely asserted that the tribunal would guarantee the defendants nothing less than an impartial trial, marked by evenhanded regulations and a thorough opportunity to present their defense.
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Nikitchenko previously had presided over many cases at the Military Collegium of the Supreme Court of the USSR. That panel was best known for superintending key trials during the high point of Stalinism’s search for internal enemies and conspiracies, a process the party boss of Moscow, Nikita Khrushchev, characterized in August 1937 as a particular form of courage: “Our hand must not tremble . . . we must march across the corpses of the enemy.”
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After the second show trial, in January 1937, Khrushchev addressed a demonstration of 200,000 in Red Square, supporting what its banners called “the People’s Verdict.” Insisting that “Stalin is hope . . . Stalin is our banner, Stalin is our will, Stalin is our victory,” he declared that those who had been convicted had “raised their hand against all the best that humanity has.”
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Apocalyptic language dominated the public sphere. Stalin’s speeches to the Central Committee Plenum, which met from the fall of 1936 to June 1937, were published under the chilling title
Measures to Liquidate the Trotskyists and Other Double-Dealers
.
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Between January 1935 and June 1941, when Germany, in violation of the Nazi-Soviet Non-Aggression Pact signed two years earlier, launched Operation Barbarossa, the regime initiated a period of purge and terror that combined public repression by tribunals with secret extralegal repression by political police. The era’s agonizingly protracted spasm of violence, directed both at elites and at the broader society, was controlled from the top. It was marked by a profound sense of insecurity about “spies and enemies,” a deep concern for conspiracy, a quest for uniform social solidarity, and by what the historian Stephen Kotkin has called a pseudo class war that identified four groups of targets—senior Party and military figures, Party and economic cadres, ordinary Russians, and targeted non-Russian groups—who were thought to be insufficiently stalwart and loyal.
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Neighbors and loved ones disappeared in the night. “Some returned, most did not,” noted Kotkin.
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In the volatile years of 1937 and 1938, some eight million Soviet citizens were arrested, and “the quota, authorized by Stalin, for ‘enemies of the people’ to be executed was set at 356,105, though the actual number who lost their lives was more than twice that.”
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With some 636,000 new prisoners in those two years alone, the Gulag was transformed “from indifferently managed prisons in which people died by accident, into genuinely deadly camps where prisoners were deliberately worked to death, or actually murdered, in far larger numbers than they had been in the past.”
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The Great Terror, preceding the creation of the Nazi abattoirs by several years, was marked by rituals that already had been refined. “One by one party members were called in front of an ad hoc commission formed by representatives of local party leaderships” in the iron and steel region of Magnitogorsk, a symbol of Soviet urbanism based on heavy industry, in 1933:
Approaching the front of the room, Communists placed their party cards on a red-draped table and, with portraits of the party’s leaders in the background, recited their political biographies and prepared to answer questions. . . . In the buildup to the purge, special receptacles had been installed inside all institutions for the collection of signed or more often anonymous testimony about the Communists in that organization. No party member could be certain of what the commission had managed to find out or might ask.
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A new wave of investigations, expulsions, and executions was inaugurated by the murder, perhaps on Stalin’s order, of Leningrad’s Communist Party leader, Sergei Kirov, outside his Smolny Institute office in December 1934. Kirov, in whose memory the Mariinsky Ballet was renamed, had administered the construction of the great showpiece of the First Five-Year Plan, the 141-mile-long Baltic White Sea Canal built by 100,000 Gulag convicts, 20,000 of whom died during the twenty months between 1931 and 1933.
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Stalin utilized the killing to open a drive to eradicate opposition, real and imagined, to purify the Communist Party, much as the Nazis sought to “purify” their own country, and as the occasion to promulgate the “Law of December 1,” with agreement by the Politburo, which sanctioned rapid trials without legal representation and authorized prompt executions.
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Lev Kamenev and Grigori Zinoviev, who had been members of Lenin’s original eight-member Politburo in 1917 and had ruled the Soviet Union in a triumvirate with Stalin when Lenin took ill in 1923, and who had lined up with Stalin against Trotsky at the pivotal Thirteenth Party Congress in May–June 1924, were put on trial. Convicted of “moral complicity” in the murder that had been carried out by Leonid Nikolayev (who, with thirteen others, was tried secretly and immediately shot), they were sentenced to prison terms of five and ten years, respectively.
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Soon they were retried by a military court, over which Nikitchenko presided, nine years before his appearance at Nuremberg. They were the star defendants, alongside fourteen other leading Communists, in one of the court’s most notable trials, conducted from August 19 to 24, 1936.
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Each faced accusations of counterrevolutionary conspiracy as members of “the Trotskyite-Zinovievite
bloc
. . . a group of unprincipled, political adventurers and assassins striving at only one thing, namely, to make their way to power even through terrorism.”
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The court case unfolded in the October Hall of Moscow’s Trade Union building, the pre-Revolutionary Noble’s Club, decorated with pale blue walls and white Corinthian columns and adorned with a stucco frieze of dancing girls. The indictment once again alleged participation in plots to assassinate Sergei Kirov, and to kill other leading Party figures, including Stalin. The audience consisted of some 30 foreign journalists and diplomats, and 150 junior members of the NKVD, the Soviet Secret police, who had been ordered to begin a disturbance should any of the accused depart from the agreed script of contrition. Relatives of the accused, even officials of the Central Committee, were not admitted.
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