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John BarrettBy BERNIE BELLAN
When Professor John Barrett began to deliver his lecture on the results of the famed Nuremberg trials of Nazi war criminals, which began in 1945 and concluded in 1949, it wasn’t readily apparent whether the audience gathered at this year’s Kanee lecture, held in the Shaarey Zedek Synagogue on Monday, May 16, was going to be given a complex dissertation that might be more in line with what one might hear at a lawyers’ convention… or something else.


It turned out that it was something else indeed – a fascinating mix of history, politics, and jurisprudence, laced with anecdotes about some of the key figures in World War II, and told in an energetic and expressive manner. I had interviewed Prof. Barrett a couple of weeks ago and found him to be a most engaging individual but, at the same time, I was somewhat concerned that the subject of his lecture might be more complex than what the typical layperson not well schooled in the history of human rights law might be able to digest.
Instead, as it turned out, Barrett was quite mindful of the audience to which he was speaking. As he traced the groundwork for what became perhaps the most famous series of trials in history, Barrett was able to explain the pivotal role that the man who has become the subject of a biography which he is currently engaged in writing – Justice Robert H. Jackson, played in shaping so much of what is now the foundation, not only for the rules governing the conduct of war in itself, also for the entire body of human rights law.
Barrett’s lecture was titled: “Seventy Years Since Nuremberg: Proof of Nazi Crimes, The Birth of Modern Human Rights Law”. A Professor of Law at St. John’s University in New York City, Barrett is a graduate of Georgetown University and Harvard Law School.
He began his lecture by explaining that the concept of “war crimes trials” did not begin following World War II and the Nuremberg trials. Prior to World War I, he noted, “there were thousands of war crimes trials. Generally they focused on crimes that occurred in specific locations.” Further, they were never trials of the most senior commanders or rulers of a particular state; rather, they were of lower-level officers.
The Nuremberg trials, however, were of a different category altogether. “There were 13 trials,” Barrett noted. “The defendants in these cases were arch criminals that transcended specific locations.” Only one of the Nuremberg trials was actually an international trial – the very first one, presided over by representatives of the four major allied powers: the U.S., Britain, France, and the Soviet Union. While the trial itself was held within the American sector of post-World War II occupied Germany, Nuremberg was chosen as the location for two reasons: It had a suitable court building that could house a trial of this size, and it had a nearby prison where the accused could be housed prior to and during the trial. The other 12 trials, also held in Nuremberg between 1946-49, were entirely American affairs, Barrett explained.

The first Nuremberg trial - of the highest ranking Nazi officials
The very first trial, which began in November 1945, was momentous for a number of reasons. Not only did it see some of the key figures of the Nazi regime brought to trial, it marked the only time in history that the U.S. and the Soviet Union were able to agree on the rules governing the conduct of a war crimes trial. “Following that year the alliance fractured” and the  Cold War between the U.S. and the U.S.S.R. began.
Barrett explained that, prior to Nuremberg, the rules of war, “from time immemorial,” were essentially “a matter of sovereign prerogative – with limits”. The view that war was “positive and legal”, which had been the view prior to World War I, was succeeded by the “legalistic” view that war was “proscribed and illegal”.
“The Nuremberg trials were a legal project that responded to the concept” that war is illegal. The process by which this concept was arrived at, however, was “a slow, episodic” one, he said.
The first initiatives to codify the rules of war began in the late 19th century, Barrett explained, with the Hague Convention of 1899, when rules on such things as the treatment of prisoners were agreed to by the signatories. Following World War I, the first attempts to prosecute military leaders – in this case, German military leaders, occurred; however, those efforts proved to be total failures for, as Barrett noted, it was left to the Germans themselves to prosecute their own leaders and, as one might have expected, that went nowhere.
In 1928, various countries, including the U.S., France, and most notably, Germany, signed the Briand-Kellogg Pact, which ostensibly called for states to renounce the use of war as a means of settling international disputes. Unfortunately, as Barrett noted, “all the pronouncements” ensuing from that pact “had no legal infrastructure to back them up…They were big and new ideas, but they were just promises in the air”.
As we know by now, that short-lived period of optimism was followed by “humanity slipping backwards”, as Barrett said, ultimately culminating in the rise of Nazism and similar movements in other countries.
 
The Nazi Nuremberg laws of 1935
Barrett noted the significance that Nuremberg played in the codifying of the Nazi laws that became the basis for the persecution of various minority groups, most notably the Jews. Tracing the Nazi rise to power, he described Nazism as first, “a domestic seizure of power”, which was followed subsequently by “enormous human rights violations in the guise of the exercise of law”, as codified in the 1935 “Nuremberg laws”.
Those laws “defined the enemies of the state”, including “the Nazi definition of who is a Jew…From that flow a series of legal consequences and a tightening of the vice on the enemies” of the Reich – “principally the Jews.”
“At the same time” there was “the development of concentration camps” and the Nazi leadership was broadening the prohibiting and criminalizing “of interactions between the citizens of the Reich and its enemies”.
With the launch of a full-scale war by Germany when it invaded Poland in 1939, it was at the Nuremberg trials and the unearthing of documented evidence of the Nazi plans for war that “we are discovering a systematic plan that is also illegal”, Barrett said – “a concept developed by Robert Jackson.”

robert jacksonRobert Jackson’s central role
Who was Robert Jackson? He was a self-taught individual of enormous brilliance who became a lawyer and eventually a close friend and confidante of Franklin Roosevelt. One of the architects of the New Deal, Jackson was tagged by FDR to become Attorney General in 1940. That choice proved to be momentous, as Jackson proved to be capable of providing a legal pretext for America’s providing enormously important military aid, not only to Great Britain, but later to the U.S.S.R. as well.
Barrett explained that, due to America’s strongly isolationist tilt following World War I, it was extremely difficult for Roosevelt to find a political justification for breaking with America’s stance of maintaining total neutrality at the outset of World War II. Jackson, however, provided a legal justification for America’s offering aid to one side involved in the war, when he came up with the finding that offering aid was “not taking sides – it was helping the victim of an illegal act.” Eventually, that legal finding became the basis of the all-important Lend-Lease Act, which led to America’s providing crucial armaments to Great Britain.
In 1942-43 Jackson also played a pivotal role in developing the notion of “apprehending and holding responsible the arch criminals” who “had designed and carried out Germany’s war plans. Jackson and others of like mind were determined “to use the law and hold accountable the perpetrators.”
By 1945 Jackson was a key member of the U.S. Supreme Court. According to Barrett, in 1945 then-President Harry Truman “reached out to the Supreme Court to find the best lawyer in the country” to represent America at the coming war trials of top Nazi leaders, and Jackson was his choice.
The problems confronting Jackson in attempting to define how the war trials should be conducted were many. Truman asked Jackson to go over to Europe to assess how the trials should be conducted.
Jackson reported back that there were two alternatives: The first was to declare that “war is a matter of prerogatives; we can just kill them or punish them without a hearing”.
The other alternative was, as Barrett paraphrased Jackson saying: “I’m a lawyer. We should have a trial that will leave a reason for our actions.”
It was at this point that the willingness of the Soviet Union to acquiesce to American notions of jurisprudence played a crucial role in what was to follow. In Barrett’s colourful description of the Russian attitude to the idea of putting Nazi war criminals on trial, “the Russian perspective was ‘We have agreed they are criminals. Sure, we can have a show trial – then a firing squad.’ ”
It was at the Potsdam Conference (held in a suburb of Berlin) in the summer of 1945, that was “Stalin’s great moment,” according to Barrett when, in agreeing to hold war crimes trials under rules of law, Stalin, in effect said, “We will do it your way.”
Subsequently, charges against 35 key members of the Reich were laid. Of the individuals charged, only Herman Goering, commander of the Luftwaffe, could be said to have been one of the very top leaders of the Nazi regime.herman goering

Defendants charged with “genocide” in first series of trials
In preparing the indictments, Barrett noted, a Jewish lawyer – and Holocaust survivor, by the name of Raphael Lemkin, persuaded Jackson to incorporate an entirely new term that would describe the enormity of the Nazi crimes: “genocide”. (According to Barrett, the British representatives on the tribunal opposed the introduction of a word that wasn’t in the Oxford English dictionary.)
The first Nuremberg trials convened in November 1945. By then Jackson had met with leading members of the American Jewish community. He had asked them how many Jews had actually perished during the war. The answer, he was told, was that using available information, the figure was six million. (During the course of the trials, actual Nazi documentation proved invaluable in substantiating that figure.)
raphael lemkinThus, in his opening statement to the tribunal, Jackson began his remarks by saying “We will prove there was a plan to exterminate six million Jews.” The trials were precedent setting on so many counts, not least of which were the introduction of film evidence and the testimony of victim witnesses.
By the end of the first trial of 35 Nazis in the summer of 1946, of those charged, 29 were convicted, 11 were sentenced to death, three were acquitted, and three had charges dropped for various reasons.
Subsequently, Jackson returned to his position on the U.S. Supreme Court. In the 12 later trials that followed, Telford Taylor took his role as chief U.S. prosecutor. The other trials were grouped by category. For instance, there was a trial of doctors, of judges (which became the basis for the movie “Judgment at Nuremberg”), of officials from Krupp, and so on.
There were 185 defendants in those 12 trials. Of those defendants, 142 were convicted (of whom 13 were executed), and 35 were acquitted outright. Ironically, by 1951, all the Nazi war criminals who had been convicted in those 12 trials and sentenced to prison had been released, as the political determination to make West Germany the key bulwark against Soviet aggression led to American policy makers wanting to win over German support.
Barrett described the “legacy perspectives” of the Nuremberg trials this way: “A set of principles that war is a crime”; and the acceptance of the principles of “international law” that eventually led to the establishment of international tribunals for the perpetrators of war crimes in the former Yugoslavia and later, Rwanda.
“Another legacy,” he said, was the “public didactic perspective – that educated on an evidentiary basis what the Nazis had done.” Barrett noted that, if the Allies had followed Jackson’s other option, instead of holding fair trials – to “line them up and shoot them”, “we wouldn’t have had that evidentiary record”, which led to an “international consciousness,” which led “to the creation of the State of Israel”, also “the Eichmann trial”, finally to “a series of legal commitments and conventions.”
Ultimately, according to Barrett, the greatest lesson of the Nuremberg trials is that “four allied powers subjected the defeated to the rule of law.”
In the words of Robert Jackson, that is the greatest proof of “power being deferred to reason. The best of our law is about subordinating the best of our power to the best of our reason.”