A Tribute Paid to Reason

At the Dachau concentration camp, Ferencz helped an American military tribunal deliver rough justice to lowand mid-level German officers. “Those trials lasted a couple of minutes,” he says. “People were lined up, thirty or forty in a room. They were called upon to admit or deny being accomplices to mass murder and other war crimes. They invariably said they were innocent or acting under orders or some alibi, but they were usually all convicted. Many were executed.”

These Dachau trials were what one might expect of victors’ justice. Many of the defendants had been captured in the concentration camps—with their complicity so obvious, the American authorities reasoned that there was no need for a difficult, time-consuming trial. “I didn’t think much of the Dachau trials,” says Ferencz. “I didn’t think much of the army and I didn’t think much of my officers, either.” He left Germany, and the Armed Services, with no plans to return. But the United States’ commitment to principled legalism drew Ferencz back, and he became one of a team of American prosecutors determined to prove that senior Nazis were not just defeated opponents and evil men, but also criminals under international law.

On November 21, 1945, Robert Jackson stepped to the lectern in Courtroom 600 to deliver his opening address. To Jackson’s right were eight judges—two from each Allied country—sitting in front of their respective national flags. But it was the prisoners’ dock on Jackson’s left that held the audience’s attention. These twenty-one politicians, state officials, and military commanders—along with Adolf Hitler, Joseph Goebbels, and Heinrich Himmler, who had all committed suicide—were the upper echelon of a nation that had laid waste to Europe. (Martin Bormann, Hitler’s private secretary and the head of the Nazi party chancellery, was tried and sentenced in absentia.)

The most notorious of the defendants was Hermann Göring, the World War I flying ace who had been Hitler’s strongman in the Nazi Party, and had gone on to become the German Reichsmarschall. Göring had turned into a bloated painkiller addict by the dying days of the war, but in prison he shed his excess weight and drug-induced fuzziness and became the defendants’ unofficial leader.

For Jackson, the most important charge against Göring and other Nazi leaders was that they had planned and waged an illegal war. Before he became chief prosecutor, Jackson had represented the United States in the Allied negotiations over the creation of the International Military Tribunal at Nuremberg. Jackson believed that the trials should be more than just a tool to punish Nazi leaders—they should help create an international legal framework to tame war itself. To achieve this goal, he wanted to try the Germans on a charge that had never before been laid: the crime of aggression. “War had been criticized and abhorred, but as to defining the waging of aggressive war as a crime, that was unprecedented,” says Whitney Harris, a square-jawed, ninety-three- year-old Midwesterner who, as a part of Jackson’s team, had been given the task of prosecuting crimes related to the Holocaust.

In Jackson’s view, the German decision to launch an illegal war was the supreme crime, explains Harris. The other crimes the Nazi leaders were charged with—war crimes against soldiers and “crimes against humanity”—could never have happened had an illegal war not begun in the first place.

The trial lasted eleven gruelling months. On October 1, 1946, the German leaders appeared one by one in Courtroom 600 to receive their verdicts. Of the twenty-two defendants, three were acquitted of all charges, seven were given prison terms of various lengths, and twelve (including Bormann) were sentenced to hang.

The executions were carried out on October 16. Just hours before he was to be hanged, Göring was found dead on his cot. Somehow, despite spending eleven months under twenty-four hour surveillance, he had smuggled a cyanide capsule into his cell. The ten other men were hanged in a gymnasium attached to the Palace of Justice. Each was cut down afterward and photographed with the thirteen-coiled noose still hung around his neck. To prevent future commemoration, the bodies were cremated and the ashes scattered in secret. “In the evening the eleven urns containing the ashes were taken away to be emptied into the river Isar,” Harris wrote in Tyranny on Trial. “The dust of the dead was carried along in currents of the stream to the Danube—and thence, to the sea.”

Both Harris and Ferencz believe that the criminalization of aggressive war was the most important development at Nuremberg. “Torture, rape, and every other crime will always occur in wartime, no matter what rules you lay down or what punishment you inflict on a handful of criminals,” says Ferencz, who has written a two-volume book on the crime of aggression. “The only answer is to prevent war-making itself.”

In 1998, Harris and Ferencz participated in the deliberations that led to the Rome Statute, the treaty that would establish the International Criminal Court. The crime of aggression was one of the most contentious issues. There was little doubt that the icc would have jurisdiction over war crimes, crimes against humanity, and genocide. But the crime of aggression was trickier: what looks like a humanitarian intervention to one nation might look like an aggressive war to another. (Or, to take a more recent example, one man’s war of pre-emptive self-defence is another man’s military adventure to secure oil supplies.)