Justice and Judgement after the Holocaust (UK)

What kind of justice is possible after mass murder on a scale never seen before? Legal scholar Martha Minow writes that seeking justice for war and mass atrocities like the Holocaust requires balance between two opposite responses: vengeance and forgiveness. Vengeance, in response to war and genocide, means revenge or retaliation against those who instigated the war and committed atrocities; it is usually carried out by the victims themselves, and it can perpetuate a cycle of violence. Forgiveness has the power to break the cycle of violence, but it often leaves the perpetrators unpunished and it may often be too much to ask of the victims of heinous crimes. ¹

A spectrum of justice lies between the two poles of vengeance and forgiveness. Trials, like those held by the Allies in Nuremberg after the war, occupy one place on that spectrum. At a trial, a court with established rules and procedures is given the responsibility of responding to a crime, rather than the victims themselves. Evidence is presented to prove or disprove that defendants committed the crimes of which they are accused, and they have an opportunity to defend themselves. Perpetrators are punished, but only after their guilt has been proven. Minow writes, ‘Resisting revenge and the continuation of war, the [Nuremberg] tribunal turned to principle, fact-finding, and public debate.’ ²

Long before the war was over, the Allied powers began to discuss how to hold Germany accountable for its wartime actions. They agreed that Germany had violated several internationally accepted rules of war. Germany’s war crimes included its aggressive invasion of other countries, its violation of international treaties, and its inhumane treatment of prisoners of war, hostages, and civilians. Soviet Premier Joseph Stalin suggested executing as many as 50,000 members of the German army. British Prime Minister Winston Churchill was in favour of executing high-ranking Nazi officials without a trial. At the Yalta Conference in February 1945, US President Franklin D. Roosevelt proposed holding international trials for German leaders. Stalin, seeing the propaganda value that public trials would provide, enthusiastically supported the plan. The British, though worried that such trials would simply be seen as ‘victor’s justice’, eventually agreed.

Yet the Allies’ decision to hold trials led to additional dilemmas: who, exactly, should be brought to trial? What crimes, specifically, should the defendants be charged with? Can defendants be held responsible for breaking international laws that did not yet exist when they broke them? After a war, can the victorious nations be trusted to conduct fair trials of the leaders of the nations they fought against and defeated?

In June 1945, after Germany’s surrender, the Allied powers wrote a charter answering many of these questions and establishing an international tribunal, or court, to conduct trials of Germany’s leaders. The charter articulated the crimes for which individuals and corporations could be charged, which included crimes against peace, war crimes, and crimes against humanity. Furthermore, individuals brought to trial could not use the plea that they were following orders as their defence. Most individuals who had participated in the war and mass killings would never be brought to trial. Instead of trying to prosecute everyone who played a part, the tribunal decided to focus on the most prominent Nazi leaders.

In November 1945, the first trial began in Nuremberg. Of the twenty-two men tried, five were military leaders and the rest were prominent German government or Nazi Party officials. The Nuremberg trials addressed all German crimes associated with the Second World War together, not the Holocaust in particular (at that time, the concept of the Holocaust as we know it did not exist). On 1 October 1946, after months of testimony, examination and cross-examination of the defendants, and deliberation by the judges from the four Allied powers who presided over the trials, the verdicts were announced. Twelve defendants received a death sentence, three were sentenced to life in prison, four received prison terms ranging from ten to twenty years, and three of the defendants were acquitted.

After the first trial ended in October 1946, the United States held twelve other trials at Nuremberg under the authority of the International Military Tribunal. Among those brought to trial were top military leaders, high-ranking SS and other police officers, leaders of the mobile killing units (the Einsatzgruppen), doctors who participated in the Nazi medical killing programme, and officials of other Nazi organisations that engaged in racial persecution.

The Nuremberg trials were not without controversy. Some people argued that it was unfair to indict Nazi leaders for violating laws that had not yet existed at the time they committed the acts of which they were accused. This is called ex post facto (‘after the fact’) justice, and it is specifically forbidden by the laws of many nations. Others worried that the trials would result in a ‘victor’s justice’ in which the Allied powers would impose their own laws to indict those individuals charged with crimes. Today, the Nuremberg trials are viewed largely as an effort by the Allies to, in the words of American Nuremberg prosecutor Robert Jackson, ‘stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of law’. ³

The trials and the judgments that were reached after the war in courtrooms in Nuremberg gave life to long-standing international laws and inspired new ones over time. Each of the trials was intended to give expression to the horror of the crimes and the pain of the victims. The trial proceedings were made public so that people could not only learn but also judge for themselves what had happened and whether justice was done. The evidence was recorded, and every judgment included the reasoning it was based on, so that the truth could be established and tested and retested over time.

US Supreme Court Justice Stephen Breyer has observed that when we learn about the Holocaust, ‘We think: There are no words. There is no compensating deed. There can be no vengeance. Nor is any happy ending possible.’ But Nuremberg ‘reminds us of those human aspirations that remain a cause for optimism. It reminds us that after the barbarism came a call for reasoned justice.’ ⁴

Studying this call and evaluating its successes and its difficulties allows us to reflect more deeply on the complexity of human behaviour, the possibility of judging today the choices made by people in past generations, and the existence of universal standards of right and wrong.

• 1 M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston, MA: Beacon Press, 1998), 10–21.
• 2 Ibid., 29.
• 3R. H. Jackson, ‘Opening Statement before the International Military Tribunal’, The Robert H. Jackson Center, accessed 7 June 2016.
• 4S. Breyer, ‘Crimes Against Humanity: Nuremberg, 1946’, New York University Law Review 71:5 (November 1996): 1164.

You may need additional background information to answer questions that come up in class about the Nuremberg trials. To support your own background knowledge before teaching this lesson, consider reading Establishing the Nuremberg Tribunal and The First Trial at Nuremberg from Holocaust and Human Behaviour.

If you have not already introduced the term genocide to your students, it would be helpful to provide them with the definition, coined in 1944 by lawyer Raphael Lemkin: ‘the destruction of a nation or an ethnic group’. The United Nations Genocide Convention defines genocide in significantly more detail. The reading Raphael Lemkin and the Genocide Convention includes the more detailed United Nations definition, as well as information and links to additional resources about Lemkin’s development of the term and his campaign to establish genocide as an international crime.

In addition to genocide, the following are key vocabulary terms used in this lesson:

1. Justice
2. Responsibility
3. International community
4. Tribunal
5. Trial
6. Legacy
7. Conspiracy

Add these words to your Word Wall, if you are using one for this unit, and provide the necessary support to help students learn these words as you teach the lesson.

Invite students to write an extended response to the question ‘Were the Nuremberg war crimes trials effective at achieving justice for the crimes of the Second World War and the Holocaust?’

Ask them to refer to what they learnt in this lesson and what they have learnt in previous lessons about Nazi Germany and the Holocaust, clearly explaining why they think what they do.

Consider the broader goal of seeking justice, and the specific role a trial plays: its purpose, its advantages, and its limitations using the Fishbowl strategy. To prepare for a Fishbowl discussion, ask students to respond to the following questions in their journals: 

• What conflicts and challenges might remain, after the violence has ended, in a society that has experienced war and the mass murder of civilians?
• How might a trial address some of those challenges? In what ways might a trial be insufficient to bring about healing and justice?
• What else might be needed for a society to be repaired after war and a crime as severe as genocide?

After students have had some time to reflect on the questions, ask six to ten students to form a circle in the centre of the room while the rest of the class gathers around the outside of the circle to listen to the conversation. You might ask the first group to address the first question in their discussion and then have the students switch places so that a new group can discuss the last two questions.

The Second World War and the Holocaust left a variety of crucial institutional legacies that are still highly relevant in the world today. These legacies include:

• The United Nations
• The Universal Declaration of Human Rights
• The Convention on the Prevention and Punishment of the Crime of Genocide
• The International Criminal Court

Each of these topics deserves its own lesson and unit to help provide students with a deeper understanding of twentieth- and twenty-first-century history. To incorporate these topics into your class, begin with readings in Chapter 11: Legacy and Memory of Holocaust and Human Behaviour. The readings include links and recommendations for videos and other Facing History resources about these topics.

While this lesson focuses on the strengths and limitations of trials in delivering justice, other models exist through which societies can respond to traumatic conflict and attempt to repair themselves. A discussion of the concept of transitional justice can help students better understand such questions as:

• Can a nation as a whole be held responsible for crimes?
• Is it possible to make amends for genocide and crimes against humanity? What is owed to the victims?
• Is it possible to restore peace between different groups and to repair society?

These questions are the focus of transitional justice, the term scholars use to describe the variety of actions a society can take as it emerges from a period of war, injustice, and mass violence and tries to move towards a better future. The readings Transitional Justice in Germany and Transitional Justice in South Africa can help you broaden your students’ ideas about justice and the possibility of healing after war and genocide.