Justice and Judgement after the Holocaust

How can learning about the choices people made during past episodes of injustice, mass violence, or genocide help guide our choices today?

• Who was responsible for the crimes committed during the Holocaust? Who should be held accountable, and how?
• What challenges did the Allies face once they agreed to bring the Nazi leaders to trial after World War II and the Holocaust? How did the Allied leaders and others involved in the trials respond to these challenges?

• Students will recognize some universal dilemmas of justice and judgment faced by societies in the aftermath of mass violence and genocide.
• Students will connect universal dilemmas of justice and judgment to the challenges that Allies faced when deciding how to hold Nazi Germany accountable for the crimes committed during World War II and the Holocaust.

This lesson is designed to fit into two 50-minute class periods and includes:

• 7 activities
• 5 teaching strategies
• 2 handouts , available in English and in Spanish
• 1 video, available in English and in Spanish Subtitles
• 1 assessment 
• 4 extensions

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 favor 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, as well.

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 defense. 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 22 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 World War II together, not the Holocaust in particular (at that time, the concept of the Holocaust as we know it did not exist). On October 1, 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 10 to 20 years, and three of the defendants were acquitted.

After the first trial ended in October 1946, the United States held 12 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, doctors who participated in the Nazi medical killing program, and officials of other Nazi organizations 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 US Constitution and the laws of many other 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. Yet 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 behavior, the possibility of judging today the choices made by people in past generations, and the existence of universal standards of right and wrong.

• 1Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), 10–21.
• 2 Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), 29.
• 3Robert H. Jackson, “Opening Statement before the International Military Tribunal,” The Robert H. Jackson Center, accessed June 7, 2016.
• 4Stephen Breyer, “Crimes Against Humanity: Nuremberg, 1946,” New York University Law Review 71, no. 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 Behavior.

The first activity in this lesson includes the Four Corners teaching strategy. We recommend that you set up the room for this activity before class begins. Create four signs that read “Strongly Agree,” “Agree,” “Disagree,” and “Strongly Disagree,” and hang them in different corners of the room.

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. This lesson’s first extension provides suggestions for teaching about Lemkin’s path to coining the term genocide and his lifetime devotion to establishing international law for its prevention.

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

• Justice
• Responsibility
• International community
• Tribunal
• Trial
• Legacy
• Conspiracy

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

If your students are writing the final essay assessment for this unit, after teaching this lesson, instruct your students to add evidence from the last three lessons to their evidence logs. For suggested activities and resources, see Adding to Evidence Logs, 4 of 4.

• Before examining the specific dilemmas of justice after the Holocaust, ask students to think about the meaning of justice in their own experiences by responding to the prompt below. Let students know that their responses will be kept private:
  Identify a time when someone wronged you or someone you care about. It might be a situation in which you or someone you love was treated unfairly, or it might be an accident that resulted in a loss or injury. After this event, what would have needed to happen for “justice to be served”?
• Then tell students that the question of what would need to happen for “justice to be served” had to be answered after the Holocaust and World War II. Tell students that even before the war ended, the Allied leaders (Roosevelt, Churchill, and Stalin) were discussing ways to hold Germany accountable for the war and the murder of millions of civilians. In those discussions, the Allies encountered a variety of dilemmas and disagreements about what justice might look like and how it might be achieved.
• Some of the dilemmas the Allies faced are probed on the handout Justice after the Holocaust Anticipation Guide. Distribute the handout and ask students to complete it on their own by circling their response to each statement (strongly agree, agree, disagree, strongly disagree) and explaining their thinking in the space provided.
• After students have completed the anticipation guide, use the Four Corners strategy to discuss their responses. Remember that students can change their positions in the room if they are persuaded by their classmates in the course of the discussion. To ensure that you hear everyone’s voice, try to create space for each student to share at least one idea with the class during the discussion.
• Finally, debrief the activity with the class by leading a whole-group discussion based on the following question:

What does this activity suggest about the challenges faced by the Allies in seeking justice after World War II and the Holocaust?

• Explain to students that they will now learn about the Nuremberg tribunal, an international court established by the United States, Britain, France, and the Soviet Union to put Nazi leaders on trial. The first trial in Nuremberg involved the prosecution of 22 Nazi Party officials, prominent members of the German government, and German military leaders.
• Students will watch the video Facing History Scholar Reflections: The Nuremberg Trials (04:27) for a brief overview of the trials. If you have time, show the video twice, sharing the questions below with students before they watch for the second time. Note that this video includes a few photographs depicting violence and mass murder.
• Help students recall key pieces of information from the video to record in their notes by leading a class discussion in which you draw from the following text-dependent questions:

  • Which four Allied countries made up the international tribunal?
  • What was the purpose of the Nuremberg trials?
  • What were four charges on which a Nazi leader could be indicted (charged with a serious crime)?
  • What was significant about the charge of “crimes against humanity”?
  • What was significant about the charge of “conspiracy”?
  • According to Bookbinder, what evidence suggests that the Nuremberg trials were fair?

To formatively assess each student’s understanding of the content covered in today’s lesson, ask them to respond to the following questions on an exit card:

• List three things that you learned about the Nuremberg trials and the challenges that the Allies faced when seeking justice after World War II and the Holocaust.
• Write one question that you have about a statement on the anticipation guide, a detail in the video, or something that was said during class discussion.

• Start the class by spending a few minutes reading comments from the exit tickets. To provide continuity with yesterday’s lesson, you might read a sampling of the things students wrote that they learned, hitting on a range of ideas. Then respond to a few of the students’ questions to help clear up any misunderstandings.
• Unless students have given you permission to use their names, we recommend that you keep them anonymous and address any significant individual misunderstandings one-on-one with students outside of class.

• Yesterday students grappled with some of the dilemmas that the Allied nations faced when deciding how to seek justice for the atrocities committed by Germany during World War II and the Holocaust. They also watched a video that provided an overview of the crimes for which defendants could be charged and the lasting effects of the trial on how justice has been sought after genocides in recent decades. Today students will read about what happened at the first Nuremberg trial and those that followed.
• Divide the class into groups of four or five students, and ask them to take out their anticipation guides from the previous class period. Pass out the handout An Overview of the Nuremberg Trials, and read the instructions aloud with the class. Complete the first statement on the handout as a whole group to make sure that students understand the instructions.
• As students are working, circulate around the room, encouraging them to refer to their anticipation guides and discuss each section together before writing their notes.
• After the groups have finished reading, have them complete the 3-2-1 activity included on the handout. Debrief these responses as a class, asking each group to share at least one thing they learned or one question they debated together.

• In these two lessons, students have learned about the dilemmas involved in seeking justice after World War II and the Holocaust and some key events from the Nuremberg trials. Now they will consider the broader goal of seeking justice, and the specific role a trial plays: its purpose, its advantages, and its limitations.
• 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 center 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.

• To finish this lesson, tell students that they will evaluate the following statement:
  The Nuremberg war crimes trials were effective at achieving justice for the crimes of World War II and the Holocaust.
• Instruct them to copy the statement at the top of a sheet of paper, or in their journals, and then draw a T-chart underneath it. The columns of the T-chart should be labeled “Agree” and “Disagree.”
• Ask students to work individually or in pairs to use the handouts as well as their notes from the video and discussions in this lesson to list facts, evidence, and ideas in each column of the T-chart. Which facts, evidence, and ideas might one use to justify their agreement with the statement? Which facts, evidence, and ideas might one use to justify disagreement?
• After completing the chart, students might use their work to decide which column offers the more convincing case. Time permitting, the class can debrief this activity in a discussion using the Barometer strategy.

• Evaluate the T-charts that students complete in the “Evaluate the Nuremberg Trials” activity that ends the lesson for evidence of students’ understanding of the issues of justice explored in this lesson. You might ask students to take the activity one step further and use the ideas and evidence from their T-charts to write a paragraph explaining their agreement or disagreement with the statement.
• Collect the Anticipation Guide and An Overview of the Nuremberg Trials handouts in order to gauge students’ understanding of and critical thinking about issues of justice and judgment.

Raphael Lemkin devoted much of his life to a single goal: making the world understand and recognize a crime so horrific that there was not even a word for it. By coining the word genocide and drafting the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, Lemkin took action to influence the way we are able to respond to acts of genocide. To help students draw connections between the Armenian Genocide, the Holocaust, and Lemkin’s work to translate his moral outrage into action, show the video Raphael Lemkin: An Introduction (12:24) and choose from the activities and discussion questions that follow. You can find additional lesson plans with readings, video clips, activities, and discussion questions in the three part mini-unit Totally Unofficial: Raphael Lemkin and the Genocide Convention.

World War II 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 from Chapter 11 of Holocaust and Human Behavior. Those 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 toward a better future. The readings Transitional Justice in Germany and Transitional Justice in South Africa can help you broaden your students’ understanding of justice and the possibility of healing after war and genocide.

Any exploration of justice and judgment in history can lead to a more philosophical question about how, in the present day, we can judge the choices people made in the past when different standards of behavior and morality may have existed. The reading Moral Luck and Dilemmas of Judgment might stimulate a rich and provocative discussion about both our ability to judge choices people made in the past and the ways in which people in the future might judge our choices today. Consider sharing the reading with students and using the connection questions that follow to begin a class discussion.