- Laws, even in the best regimes, are always defective in some respects.
- No law conforms to perfect justice.
- “Procedural” elements too will always be a matter of controversy.
Ben Ferencz, the last living American prosecutor at the Nuremberg trials, died in early April 2023, at the age of 103. His war crimes case bore the humdrum designation of “Nuremberg Trial, Caase No. 9,” belying its harrowing subject matter. This concerned the activities of the so-called Einsatzgruppen, the special mobile death squads the Nazis had arranged to accompany their troops during Operation Barbarossa, the invasion of the Soviet Union, in June 1941. The sole mission of these designated units was to round up for execution all Jews and others targeted by the Nazis for extermination, including Romani and Slavs, whom they murdered in vast numbers with ruthless efficiency.
The case number assigned to the trial of the Einsatzgruppen came from the list of 12 sub-trials at Nuremberg that followed the famous original trial of Nazi leaders during 1945 and 1946, under the auspices of the International Military Tribunal (IMT). That first proceeding was brought and adjudicated by representatives of all four Western allies under the so-called Nuremberg Charter, which set out and defined the various crimes under international law the Germans were charged with committing during the Nazi regime and the war. The later sub-trials focused on the crimes of individual elements of German society and were all conducted under the same charter, but with American prosecutors and judges exclusively.
Ferencz’s Nuremberg Trial No. 9 shared with the IMT a common theme of prosecution of acts so horrible against defenseless populations that it is easy to see them, now as then, as justified—indeed just—in general terms. But the exact legal grounds for the indictments and the legitimacy of the Nuremberg courts posed a far greater challenge at the time. Today, thanks partly to the pattern set in Nuremberg, there are treaties in place, agreed to by countries worldwide or adopted in resolutions of the United Nations, that have defined and detailed under international law what is impermissible conduct by a country’s leaders and principal actors during wartime or as part of their domestic rule. Likewise, under the same auspices, international tribunals in The Hague and elsewhere have been impaneled to prosecute and punish those who act in a manner contrary to those adopted norms.
Not so in those earlier days, when what is commonplace today was relatively unknown. There was no accepted definition of a war crime or other “crimes against humanity,” and there were no treaties adopting any. And courts charged with considering violations and applying punishments were simply nonexistent. Developing the legal grounds for prosecuting the Nazi leadership, as well as the procedures of the IMT, therefore became the special burden of Justice Robert Jackson, the chief American prosecutor, who labored for months over what exactly was the basis on which these people were being prosecuted at all and how it should be done. The Nuremberg Charter, far from perfect, embodied his conclusions.
Many of the Allies found the concepts in the charter challenging, to say the least. For common-law countries, which conformed their legal concepts to the thinking of liberal democratic theorists like Hobbes and Locke, the entire concept of “international law” was an oxymoron. Law is what individual countries adopted for themselves. For civil-law jurists, international standards of conduct made more sense. But Jackson’s reliance on common-law concepts like conspiracy, not then as fully developed even in American law as it is today and unknown in Europe, was problematic, if not downright counterintuitive. And the ex post facto character of the charter worried everyone. Still, Jackson’s approach seemed preferable to doing nothing at all or, at the other extreme, adopting the rough and impatient preferences of Stalin, who joked (!) that the best thing to do to bring closure to World War II was to just round up 50,000 of Nazi Germany’s top leaders and execute them.
Despite these fraught beginnings, the Nuremberg trials have rightly been termed a success. They proved a model of decorum and fairness, even if many in Germany and other Axis countries (there were similar though less well-known and differently constituted proceedings in Asia) still viewed them to be of doubtful legitimacy. At a minimum, they laid out the record of the crimes of the Nazi leadership for all to see. And they set a pattern and a standard for later treaties and courts to weigh challenges to activities that might be deemed outside the standards of permissible wartime and domestic conduct. In the case of Nuremberg Trial No. 9, the sense of what the trials were all about and the just character of the prosecutions were certainly easy to grasp. As Ferencz himself noted in his opening, many of the Einsatzgruppen defendants were actual killers, as opposed to mere planners or people who worked within the bureaucratic ranks of the Nazi system. Under sound principles of justice, everywhere and always, if not quite the law itself, they seemed guilty of a crime.
Guilt might seem one step further removed where those planners or mere participants were concerned. Was some law or universal principle being applied by the charter, or was it, as many of the defendants claimed, merely victors’ justice, without a shred of principle to support it? In the case of the IMT, however, like the Einsatzgruppen trial, the matter involved people who had planned, led, and championed mass murder on a scale once regarded as unthinkable. Surely, this was a basis for punishment.
But conceptually far more difficult was Nuremberg Trial No. 3. This was the trial that concerned those who served as judges under the Nazi regime. And here the basis for prosecution, trial, and punishment was more difficult to discern.
As later dramatized in a Hollywood movie, Judgment at Nuremberg, these judges had, among other things, heard cases against Jews, homosexuals, communists, and others for violations of Nazi law. They did so just as they had overseen trials of and rendered judgments for defendants charged with violating Weimar’s laws in earlier decades. In many such cases, though hardly all, the same regular procedures were followed. And the law as adopted was applied—just in this case, Nazi-inspired law. The problem lay not in the judges having acted outside the law; to the contrary, they had enforced the law as it lay on the books. The problem was in the laws themselves. As argued by Maximilian Schell, in his Oscar-winning performance as the defense counsel of the judges, the indictment was not really of the judges but of German society, which had tolerated or even cheered Hitler’s Nuremberg laws and other such legislation.
Were the judges themselves doing evil? They were not killers themselves. They were not planners either. They were doing their jobs. If they could be described as “only following orders,” those “orders” were what had been adopted as law by German society. What should these judges have done instead? The answer is fiendishly difficult to find. Many were serious, studious men who had immersed themselves in the statute books and jurisprudence generally and sought to uphold the highest standards of judging that they knew of. They were doing what they’d always done, to fairly adjudicate whether persons brought before them had broken the law. To say it again, the problem was not with them but with the laws they were called upon to enforce. The laws had all the trappings of having been lawfully adopted, given how the Nazis had seized the reins of government and controlled the legislative process. But their consequence, and even more their intent, was to cause grievous harm, to put it mildly, to entire classes of citizens in extreme ways.
As the movie grimly details, communists were ordered sterilized for supposed mental illness, Jewish men were sent to concentration camps for mere generous behavior toward Aryan women, and homosexuals were convicted of deviant conduct and severely persecuted. There were times when, as the Nazis expected them to, the judges convicted those charged before any evidence was heard. In this respect might be justified the final scene in the movie, when one of the judges who admitted his wrongdoing in certain particular instances professed innocence of the greater horrors of the Final Solution. Spencer Tracy, in an unforgettable response, retorts that the first time the judge had convicted someone not guilty, he joined in responsibility for all the horror that followed. But many did not convict and punish except as ordinary procedure and the laws provided. Were they wrong to have done so? What to make of the difference between laws as enacted and the contrary principles of justice?
That difference always exists, to a greater or lesser extent. Laws, even in the best regimes, are always defective in some respects. No law conforms to perfect justice. Any law is an attempt, always incomplete, to find general principles of truth and justice applicable to all cases and controversies, which can never quite live up to its intentions given the variegated circumstances of actual life. It is, moreover, created in a political context, where the larger, governing principles may or may not themselves conform to justice. And may sometimes radically depart from it. Think of the lawfully enacted statutes in America that supported the institution of slavery. In the hands of the Nazis, those governing principles were fundamentally unjustifiable and unjust. The regime itself was evil in its intentions, at least insofar as its intended victims were concerned.
How should a judge deal with such circumstances? What if the judge concludes the law has gone from the merely imperfect to the radically unjust? One obvious answer, which the movie again provides some brief for, is that the judge should resign rather than uphold laws deemed evil. Rather than enforce unjust laws, the Nazi judges could have just refused to participate at all. However personally satisfying this might have been, assuming one escaped the retribution of the Nazi state, it seems too flimsy an answer generally. Unless done en masse, it was not something that would have stemmed the tide of prosecutions, convictions, and punishments. Was there nothing the judges, those designated to uphold justice as well as law, could have done?
How about refusing to convict? Or, better still, using their august power as judges to hold that the laws were wrong? Or even just rendering a result contrary to what the law provided but more consistent with justice? Sounds appealing. But then, whose view of justice should prevail, the judge’s own moral code or that adopted by the governing regime? More generally, do we want judges to follow only their own beliefs rather than what the lawful majority or the ruling party decided instead? Aren’t judges at least in some sense supposed to subordinate their own personal judgments to the strictures of the law?
Before you fall back on the notion that Nazi evil brooks no contrary view, consider whether the matter is always so clear. It may seem wrong to say that the judges should just blithely go on enforcing the law regardless what changes had been effected in the law itself. On the other hand, do we really want to encourage judges, whenever their personal scruples are offended, to refuse to enforce the law or to substitute their own principles for what the law provides?
Consider in this context the now-famous ruling in Amarillo, Texas, by Judge Matthew Kacsmaryk, striking down the approval by the Food and Drug Administration (FDA) of mifepristone, the so-called abortion pill. This seems to have been sharp, result-oriented judging, driven by a personal moral code against much established law. It appears that from Judge Kacsmaryk’s point of view, the FDA’s approval of mifepristone was ethically wrong, as well as procedurally deficient. In fact, the opinion, though hardly unique in this characteristic, reads like a brief for the overruling of the FDA decision on such a moral basis, rather than an evenhanded consideration of the circumstances. Seemingly acting on his personal ethics, Judge Kacsmaryk was determined to find the FDA ruling wrong, and did so.
This seems improper, to say the least. But isn’t this the very recourse suggested for resistance by German judges to Nazi law? Why would it have been acceptable for the Nazi judges to have substituted moral principle for law but not for Judge Kacsmaryk to do so? It is no answer to this question to say that the Nazi regime was murderously evil and American law not so. According to Judge Kacsmaryk’s personal ethics, abortion is murder too.
The point is that in ordinary circumstances, the morality or justice of the law should not be the province of the judges. Their job is to enforce the law. Imagine the chaos if a “mere” personal objection to the ethics of the law, to the law’s justice, is allowed to be the determining factor in decision-making. But the matter is fraught still. If it is wrong for Judge Kacsmaryk to have held as he did, in what sense were the Nazi judges, on principle, entitled to strike down or not enforce what they found morally objectionable? And if they should be allowed to step outside customary procedure and the law as enacted, why not Judge Kacsmaryk too?
No complete answer to the question is available to us. Some recourse, however, might be found in the elements of procedure, small and large. Has the regime’s tilt toward injustice in its lawmaking resulted in an erosion of fundamental procedural protections? And, at a higher level, have the political procedures that are part of the democratic process been respected? Has the regime changed so fundamentally that it no longer can be said to be democratic at all?
By these standards, a decision by Judge Kacsmaryk to substitute his personal moral views for established law would not measure up in any way. It may be contested whether the FDA properly followed its own procedures, but the procedures themselves have not been essentially corrupted. And the processes of our democratic society, however weakened, have not been fundamentally upset. We still have a sound, working democracy. Under these circumstances, there would seem to be no scope for judicial moral subjectivity of such a radical kind. But keep in mind that these “procedural” elements too will always be a matter of controversy—and a continuing challenge to any judge seeking to judge fairly and do justice in controversial times.