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Pat MurphyMy late father disapproved of the Nuremberg Trials. It wasn’t that he had any sympathy for the Nazis assembled for judgment. Nor did he have any principled objection to the capital punishment that was meted out.

But he did believe that the Nuremberg process was flawed in both conception and execution. He believed that the Nuremberg Trials, which started 70 years ago, on Nov. 20, 1945, were a classic case of victor’s justice masquerading as a modern judicial proceeding.

To begin with, there was the matter of retroactive criminalization.

However heinous the Nazi actions were, they didn’t violate previously defined international law. In effect, the victorious Allies created a new body of jurisprudence during the summer of 1945, and then applied it to events that had happened earlier. To my father, this wasn’t how the law should function.

Then there was the issue of Soviet participation in the process.

For instance, one of the charges referred to the waging of aggressive war, but the Soviets – as Germany’s ally in 1939-41 – had joined in the carve-up of Poland and subsequently invaded Finland. So, by rights, Josef Stalin and his comrades should have been in the dock alongside the likes of Hermann Goering and Joachim von Ribbentrop. Instead, the Soviets acted as judges rather than defendants.

The 1940 Katyn Forest massacre, which the Soviets initially wanted to include in the indictment, was another example of tainted proceedings.

The massacre, involving the murder of thousands of Polish prisoners, was an atrocity by any definition. But the Germans didn’t do it. As Mikhail Gorbachev acknowledged decades later, the killings were entirely a Soviet enterprise. Whatever qualities Stalin may have lacked, chutzpah wasn’t one of them.

Careful issue selectivity also came into play, a prime example being the failure to address area bombing.

While the German air assault on places like London, Rotterdam and Warsaw could easily have been included in the charges, it wasn’t. You don’t have to be a cynic to think that the desire to avoid questions about the parallel devastation that Allied bombers wreaked on German cities had something to do with the decision to exclude the bombings from proceedings.

None of this is meant to suggest any form of moral equivalence, or that the Nazis hanged at Nuremberg were victims in any way. Nor does it lend credence to the gingerly emerging narrative of Germany as a Second World War victim. And it certainly doesn’t mean that the egregiously guilty should have walked free.

There were, however, other ways of handling the situation. Indeed, Winston Churchill had a preferred alternative.

As far back as 1942, the British had drawn up a list of those deemed to be war criminals “so black” as to fall outside any judicial process. Essentially, they were to be considered outlaws who merited nothing more than summary justice. Accordingly, senior officers in the field would be authorized to shoot them by firing squad within six hours of their being apprehended and identified.

Whether Churchill’s approach would have been preferable remains a matter of debate. English historian Richard Overy thinks not, even if, as he frankly acknowledges, the Nuremberg process was legally flawed.

For Overy, and many like him, Nuremberg’s saving grace was that the rules manufactured for the trials formed the basis for subsequent international law designed to make the world a better place.

Still, looking at how the world has actually evolved since then, the ambiguity of it all is what strikes me most.

With so many senior Nazis on hand, the Nuremberg Trials provided a golden opportunity for American psychologists and psychiatrists to closely study the perpetrators of evil. Were they fundamentally different from other men? Or were they just normal people put in extraordinary circumstances?

Rudolf Hoss, the notorious commandant of Auschwitz, was one such subject.

Asked how it was possible to kill so many people, Hoss was matter of fact in his answer: “Technically, that wasn’t so hard – it would not have been hard to exterminate even greater numbers.” As for being held responsible, “it didn’t occur” to him. He was, he said, only following orders.

Maybe Churchill really did have the right idea.

Pat Murphy casts a history buff’s eye at the goings-on in our world. Never cynical – well perhaps a little bit.

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Nuremberg Trials

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