Tuesday, June 22, 2010

The Nuremberg Precedent (II)

I was wrong in a previous post. The Nazi organizations were indicted at Nuremberg. However, it was not possible to convict the subordinates under this indictment and the principal actors (Goering, etc.) were all tried as individuals.

The Indictment of Nazi Organizations
The indictment of Nazi organizations was designed to deal with the problem of what to do about the hundreds of thousands of people who had been members of organizations such as the SS and the Gestapo. The idea was to find them to have been criminal organizations, then hold hearings to determine the extent to which a member was guilty.

At the conclusion of the trial against the 21 individuals, the International Military Tribunal spent a month hearing testimony about the organizations.

The indictment of the organizations, however, raised a fundamental legal question: the legitimacy of creating a system of guilt by association. Although members of the criminal organizations were later tried by German denazification courts set up by the U.S. occupation government, no one was ever punished solely on the basis of the tribunal convictions.
Three of the six indicted organizations were found guilty. They were: the SS, the Gestapo and the Corps of the Political Leaders of the Nazi Party.

Three of the organizations were not convicted. They were: the SA (Hitler's street thugs, known as brownshirts, whose power had dwindled in the 1930s); the Reichsregierung (Reich Cabinet) and General Staff and High Command of the German Armed Forces. The latter two organizations were determined to cover relatively few members so that it was deemed better to deal with them as individuals.

In spite of this, it raises serious questions about what we, as citzens of a democracy and thus responsible for our leaders, may be held accountable for vis a vis the War in Iraq. It is no secret that the German people, to this day, are held to blame for Hitler and his terrorism.

Through the years Germany has been desperate in its desire to be forgiven. To some extent it has a point. No nation has undergone greater self-examination about its direct role and complicity in mass murder than Germany has. There have been endless acknowledgments and meaningful gestures of restitution. Germany has been in an arrested state of moral inquiry, continually examining its character, seeking some clarity about the madness it once mindlessly saluted.

Given their good faith, the Germans are understandably left wondering: Is forgiveness ever forthcoming, or is our guilt eternal?

What we in America have done is to abandon this sense of responsibility that pervaded the world after the horror of WWII.

There was much discussion of the War in Iraq as a "just" war. This has a long history in the Catholic Church and is discussed here. It is my firm belief and that of many others that, at this time, there can be no justification for the War in Iraq under the Just War rubric.

If the War in Iraq is not "justified", then it is a war of aggression. Nuremberg addressed this next:

Count Two: Waging Aggressive War, or "Crimes Against Peace"
This evidence was presented by the British prosecutors and was defined in the indictment as "the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances."

This charge created problems for the prosecutors. Although Hitler had clearly waged an aggressive war, beginning with the invasion of Poland in 1939, Count Two was based on allegations that the Germans had violated international agreements such as the Kellogg-Briand Pact of 1928. Signatories to that agreement had renounced war as an instrument of national policy (as opposed, say, to defensive war), but the pact did not define "aggressive war" and did not spell out the penalties for its violation.

(The Anschluss and the invasion of Czechoslovakia were not held to be aggressive wars because Hitler had manipulated the political situation in each nation in order to avoid an invasion.)

The Soviet Union also had broken the Kellogg-Briand Pact by invading Finland, Poland and the Baltics, and had schemed with Hitler to sign the Nazi-Soviet Non-Aggression Pact in 1939 (which secretly divided Poland).

Robert Jackson, the chief U.S. prosecutor, wanted the International Military Tribunal to create new international law that would outlaw aggressive war. Clearly, the premise that it is possible to outlaw war is a questionable one

This is potent stuff. The United States was the founding member of the United Nations. The United Nations did not vote to approve the War in Iraq and, in addition to the aforementioned Kellog-Briand pact, it seems to me that we have violated the spirit if not the letter of international law.

The question comes down to "what did George W. Bush know and when did he know it." For months after the invasion, the administration continued to spout the contention that weapons of mass destruction existed. If they now say, as Condelezza Rice did at her confirmation hearings, that they really didn't feel that, one simply has to go to this link at the White House web page to see how disrespectful of the truth that is (link courtesy of loyopp).

What I am trying to do here, and it is an impossible task, is to remove myself from history and look on the current situation as if it had happened 50 years ago and the Bush Administration had been hauled before an International Court for the crime of an aggressive war. And I had been implicated because I was an American Citizen and sat by and did nothing.


Felix said...

Deeply though provoking series, DrC, for which thank you.

On the continuing guild issue ... I would say that the guilt of a nation or other social group is perennially shirked by the only generation which should shoulder it: that which was alive and decision making at the time of the act. On the other hand, it is perennially foisted onto innocent successor generations by outsiders who are eager to distract from their own manifold sins.

I am not implicated in the (many) sins of the British Empire, despite the many who would make me so; but I am implicated in the foreign policy crimes of present day Britain unless I explicitly oppose them. So it is for Germany (which now tends, internationally, to behave somewhat better than most other liberal democracies which continue to blame it). And so it is for the US, also.

Felix said...

OH dear ... I meant, of course, "On the guilt issue, not "guild"...

Ray Girvan said...

It's thought-provoking, but I don't think the Nuremberg Trials represent any kind of useful legal precedent for how to handle this kind of issue; without the least sympathy for the accused, I find it hard to view them as anything but trial-format ritual with a foregone conclusion. It would be better to look for precedent in cases where there was genuine doubt about guilt, and "not guilty -free to go" a real option.

As to the origin of the discussion: cultures, unless there's overt revolution, seem very poor at holding their own 'top management' to account - America especially, and paradoxically, so. It's unusual in being a country with explicit constitutional provision for overthrowing a government by force, yet one highly unlikely ever to do so because of its exaggerated reverence - via thorough indoctrination at school age - for its own political hierarchy and posts of high office. I think that's why "Our Senate did not adequately confront either Condelezza Rice or Alberto Gonzales".

Personally, I think it's one of our depressing manifestations of "chimpiness"; we have a strange aversion to, even collectively, confronting and removing 'alpha' leaders, and no-one thanks those who do.

Dr. C said...

Thanks to both Felix and Ray. It is perhaps true that Nuremberg did not set a true legal precedent, since the Court itself was extraordinary. Even after all these years we still have trouble with a true "World" court. Diamond (in "Guns, germs, and steel") would say that while we have left the tribal phase (except, I would observe, cases like Afghanistan and perhaps even Israel), and have moved on to the nation state phase, we have really not a lot further.

Felix said...

"Chimpiness" is a good word. There's a lot of it about; at the moment, there's a lot of it about the FIFA world cup...

As another thought about the longevity of blame ... I still occasionally hear people (and not Germans) blaming living Jews for the crucifixion of Jesus Christ, which is less than encouraging. The same people, strangely, defend Isra'eli policies in the Palestinian territories.

Ray Girvan said...

Felix: "Chimpiness" is a good word

I might expound on this some time. I'm sure I'm not the first to postulate it. It's all about human characteristics that we share with our close relatives: for example, I think so much of human history is explained about our collective inability to break away from the feeling that we have to be led by an alpha male. We try republics, collectives, whatever ... they repeatedly fall apart in favour of setups headed by a big man-chimp. At some level we grasp the problem and have revolutions or whatever, but rapidly end up with the same system. As I said, I find it horribly depressing that we as a species don't 'get' that we're doing it.

Felix said...

Ray: When I said "chimpiness" was a good word, I meant it literally -- a good word for a real phenomenon -- and for the reasons you suggest. It seems to me to go further, too, applicable to many of our characteristics.

Montag said...

The complicity of the American Public in its willful and "active" ignorance in the causes and justifications for the War in Iraq was the first step into the awful "banality" of evil; i.e., making evil part of our daily routine.

Let the War be continued, let fanciful nightmare of isolation "in a sea of Islamo-fascism" be repeated and re-enforced, let the repression of Muslims in the population be increased... and you would have a perfect simulacrum of Naziism.
Let sanity prevail again, and you would have your second Nurnberg.

Hannah Arendt was taken to task for saying the evil was banal. She should have said it was easy.

Dr. C said...

Thanks Montag. It sure does send a chill up your spine sometimes when you I see what "they" are doing in my name. Others would say "we."