A Necessary Piece of Judicial Theatre? Challenges Facing the Architects of the Nuremberg Trials in Creating a Cohesive Ideal of Justice
| Author | Isabella Elliot |
| Position | BA (Hons) History and Politics & MSc Public Administration at the University of Southampton |
| Pages | 180-208 |
(2022) Vol. 12
A Necessary Piece of Judicial Theatre? Challenges Facing the Architects of
the Nuremberg Trials in Creating a Cohesive Ideal of Justice
Isabella Elliott*
Abstract
In October of 1945, the chief prosecutors of the International Military Tribunal in Nuremberg indicted 24 leading
Nazi officials with three crimes as defined in the Nuremberg Charter: Crimes against peac e, war crimes, and
crimes against humanity. This paper explores the legality and moral legitimacy of the trials at the International
Military Tribunal, in conjunction with the insurmountable challenges faced by the Allied powers, such as reliance
upon ex post facto law and the lack of previous juridical context. C reating a cohesive ideal of justice was almost
impossible as global authority was rendered moot in the face of state sovereignty. The trials, however, engendered
a legal and political compromise and were a pragmatic attempt to consign the atrocities to history and did wield
aspects of utility.
Introduction
he legality and moral legitimacy of the Nuremberg Trials presented numerous
challenges for the Allied Powers, not least because no outcome could ever adequately
redress the atrocities committed by the Third Reich. This dissertation will primarily
focus on the International Military Tribunal (IMT) (1945-1946) rather than the subsequent
Nuremberg Proceedings (1946-1949). For the purpose of this paper, a cohesive ideal of justice
can be defined as a conception of moral and legal justice that is enshrined in international law
and accepted by all parties. The victorious Allies failed to establish this cohesive ideal of justice
and, in the words of British historian Geoffrey Best, ‘state sovereignty and regional alliances
reasserted themselves where collective responsibility and global authority had been intended
to take over.’1 The International Military Tribunal presented a pragmatic way for the victorious
Allies to consign the atrocities committed under the Third Reich to history, as well as providing
an opportunity to portray themselves as judicial entities above scrutiny and partisan national
interests. With this in mind, the trials were successful as a piece of judicial theatre because they
demonstrated a stark contrast between the criminality of the defeated regime and the apparent
moral and ethical virtue of the victors.2
From the beginning, architects of the trials were presented with a multitude of legal issues and
moral contradictions. Each chapter focuses on a different and interlinking challenge. Chapter
One explores the lacunae in the corpus of international law before 1945 through an empirical
* BA (Hons) History and Politics & MSc Public Administration at the University of Southampton.
1Geoffrey Best, The Stenton Lecture: Nuremberg and After the Contenting History of War Crimes and Cr imes
Against Humanity (University of Reading 1984) 5.
2Guénaël Mettraux, Pers pectives on the Nuremberg Trial (1st edn, Oxford University Press 2008) 601.
T
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lens. In the words of Telford Taylor, despite all the flaws in the proceedings, they were
instrumental in ‘the establishment of world order under the rule of law.’3 Chapter Two
highlights that, in the absence of political will, national interests took precedence over the
administration of justice, something which was already on unsteady ground due to the different
British, American and Soviet justice systems. Although Chapter One focuses particularly on
war crimes and crimes against humanity, Chapter Three analyses the practical complications
of the legal mechanics presented in all aspects of the indictments and the ultimate necessity of
a compromise.
According to German historian Kim Priemel, ‘a lawyer’s legal history and historians’ legal
history coexist peacefully, but in a state of mutual ignorance.’4 As international law is based
on precedent and not statute, this dissertation seeks to look at the legal history insofar as
international law is concerned. Synthesising both approaches will produce an interdisciplinary
response which in turn will provide a more cogent examination of the topic. The idea that the
exercise of justice is performative is not commonly explored - especially on an international
scale. Thus, it is valuable to examine the concept of the trials at the IMT as theatre with a
performative element that was designed in part to address disparate concerns of the Allies.
Various methodologies can be used when approaching historical sources such as linguistic
analysis and comparative studies. This paper primarily analyses the legal underpinning of the
prosecution’s argument on all four counts using qualitative analysis to form a judgement on
the challenges and validity of the process of the IMT and its wider implications. The fact of the
verdicts remains intact and is not of specific importance here; what is of interest are the
challenges and processes of the trials themselves whilst addressing the outcome that the
prosecuting nations hoped to achieve. Yale Law School’s Avalon Project digitally archived all
the relevant conventions and legal proceedings. This was particularly helpful for the first and
last chapters as the prosecution’s argument could be examined through the counts presented in
the indictments and it was easily accessible as the proceedings and conference minutes were
primarily in English. However, due to the sheer volume of legal documentation on this subject,
assessing for relevance was key and it was not possible to examine every individual proceeding
in equal depth. As well as the works written by contemporary lawyers, prosecutors and
psychologists at Nuremberg, the Manchester Guardian and the Economist, although influenced
by national interests, provided useful insights into orthodox public opinion on the trials.
Hansard was also invaluable in conveying British political perspectives through the debates in
the Allied Court and House of Commons.
As to be expected, historical and legal interest in the Nuremberg Trials has fluctuated as a result
of national perspective and global politics. The same can be said for the corpus and
3Michael Marrus in Alexa Stiller and Kim Priemel, Reassessing the Nuremberg Military Tribuna ls (1st edn,
Berghahn Books 2014) xii.
4Kim Priemel, The Betra yal: The Nuremberg Tria ls and German Divergence (1st edn, Oxford University Press
2016) 11.
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