The lesson of judgment at Nuremberg

The trial was a watershed in advancing the principle of international accountability for crimes of aggression, war crimes and crimes against humanity.

By BRUCE J. EINHORN
September 26, 2015 20:51
4 minute read.
Nuremberg, Germany

Nuremberg, Germany, 1945. (photo credit: TEL AVIV MUSEUM OF ART)

This year marks the 70th anniversary of the commencement of the Trial of the Major War Criminals before the International Military Tribunal, which took place in Nuremberg, in American-occupied Germany, at the end of World War II.

That trial, whose defendants included the highest- ranking leaders of the Nazi state, such as Reichsmarshal Herman Goering, Deputy Fuehrer Rudolf Hess and General Alfred Jodl, was a watershed in advancing the principle of international accountability for crimes of aggression, war crimes and crimes against humanity.

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Sadly, today’s daily headlines contain these same terrible words, which is why LA Theatre Works selected Judgment at Nuremberg as its first play of the season to highlight the importance of the rule of law in society today.

Many people believe that the trial before the International Tribunal was the only proceeding brought against Nazi war criminals. In fact, from 1946 through 1948, a series of prosecutions and trials was held at Nuremberg under the auspices of the United States in which classes of Nazi state officials – including doctors who conducted grotesque, quasi-medical experiments on live concentration camp inmates, and participants in SS execution units that murdered tens of thousands of Jews, Roma and Sinti – were accused of various and significant war crimes and crimes against humanity.

Perhaps the most significant of these prosecutions was the “Justice Trial” in 1947, which involved members of the Nazi Ministry of Justice (an oxymoron if ever there was one) and judges of the Nazi People’s Courts who voluntarily and systematically applied the totalitarian edicts of the Third Reich to forcibly sterilize mentally disabled individuals, imprison and torture political dissidents, and send Jews and other so-called enemies of the Aryan race to be incarcerated in concentration and death camps for extermination.

Acting under the “Fuehrer Principle,” which preached absolute and unquestioning obedience to the person and policies of Adolf Hitler, these prosecutors and jurists jettisoned their independence in favor of a slavish devotion to Nazi racist and fascist ideology.

Among the most notorious of the defendants in the Justice Trial was Oswald Rothaug, a member of the National Socialist Jurists League and wartime public prosecutor of the People’s Court in Berlin. Rothaug’s activities as a Nazi official were explored through fictional characters in the brilliant and moving 1961 film Judgment at Nuremberg starring Spencer Tracy, written by Abby Mann and directed by Stanley Kramer, as well as in the play, also written by Mann, which opens this week at LA Theatre Works starring Harry Hamlin, Alan Mandell and James Morrison.



Rothaug’s most famous prosecution involved the Jewish defendant Lehman Israel Katzenberger, a merchant and head of the Jewish community in Nuremberg. The elderly Katzenberger was accused of the crime of “racial pollution” because of his alleged sexual intercourse with a younger, Aryan woman named Seiler. Both Katzenberger and the woman denied the charge, and the original police report indicated that there was no evidence of a sexual relationship. In response, Rothaug had Katzenberger’s case transferred from a more traditional criminal court to a special court established by the Nazi regime to try racial and political enemies of the state.

The Katzenberger proceeding was less a trial and more a political demonstration on behalf of Nazi ideology, with Rothaug delivering a long speech on the “Jewish question.”

Katzenberger and Seiler were greatly restricted in their testimony, and their conviction by the court was a foregone conclusion. Seiler was imprisoned and Katzenberger was executed.

Although the Katzenberger case was but one trial of one doomed Jew, it stood as a clear example of the rabid determination of the Third Reich to defame and destroy every Jew possible.

Another Justice Trial defendant was Franz Schlegelberger.

A judge under the Nazi regime, Schlegelberger had been placed in charge of the Reich Ministry of Justice. As a senior judicial officer, he knew of and acquiesced to the plans to “evacuate” Jews to their places of extermination.

He also helped draft and apply laws that allowed for the racial persecution and, ultimately, murder of Jews and Poles, and granted immunity for their killers.

During the latter years of World War II, Schlegelberger resigned his government posts, later claiming that the system of racially motivated murder of which he had been a part had become too much for him to bear.

In his defense at the Justice Trial, Schlegelberger argued that he had resisted some of the pressure placed on the judiciary by Hitler and SS Reichsfuehrer Heinrich Himmler, and that if he had not remained in public office for as long as he did, more evil individuals would have replaced him. Still, although Schlegelberger might have loathed the evil he did, he nonetheless did it and thus sold his intellect, reputation and soul to Hitler. And for what? His work for the Nazi regime was rewarded when Hitler gave him money to purchase a farm.

In a democracy, it is the business of the bar and bench to say no to the hijacking of the criminal justice system for political and racial purposes. In Nazi Germany, it was the business of lawyers and judges to aid and abet in such a hijacking. Every time a Rothaug or a Schlegelberger ordered or acquiesced in the mistreatment of a person he knew to be innocent, the road was further paved to persecution and the death of millions.

This is the lasting lesson of Nuremberg – that without equal protection and the due process of law, the value of every human life is reduced to zero on the way to the death of the world.

Bruce J. Einhorn is a retired federal judge and former chief of litigation at the unit of the US Justice Department responsible for the identification and prosecution of fugitive Nazi war criminals residing in the United States.


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