EXCLUSIVE - The Jericho Report
The Nuremberg Trials Part 1
Implications for the Bush Administration

"Men who take up arms against one another in public war
do not cease on this account to be moral beings,
responsible to one another and to God."
Francis Lieber - The Lieber Code of 1863
Instructions for the Government of Armies of the United States in the Field

"In such a case, doesn't a man of true character find himself
in a hopeless conflict between knowledge and decency,
or rather honest conviction?
Where is the dividing line between his duty toward the general public
and his duty toward his personal honor?
Mustn't every true leader refuse to be this degraded
to the level of a political gangster?"
Adolf Hitler

The Nuremberg Trials of 1946, following the defeat of Germany, was not a matter of the military rebelling against the national leader, but according to world opinion, it should have been. Time after time, the Nazi troops and leaders rose to their feet to exclaim, "But I was only following orders."

The trials underscored the right - no, the duty - of military leaders and even the common soldiers to disobey unlawful orders. "Just following orders" was no longer an excuse for atrocity and genocide. In theory, these trials changed the course of warfare - but in practice, it was business as usual, based on the philosophy of "might makes right."

Before war trials can be held, generally the accused nation must be defeated in war and its accused rounded up and placed on trial.

Even though Russia sat on the jury, it, too, was guilty of war crimes - but Russia was not the loser in World War II. The trials were very controversial and even two U.S. Supreme Court chief justices - one present and the other future - Harlan Fiske Stone and William O. Douglas, called the trials "a fraud."

In trying to suppress the Yugoslavian resistance, Nazi Gen. Keitel, supreme commander of the armed forces, issued this order in Sept. 1941:

"In order to nip disorders in the bud the sternest measures must be applied at the first sign of insurrection. It should also be taken into consideration that in the countries in question a human life is often valueless. In a reprisal for the life of a German soldier, the general rule should be capital punishment for 50-100 Communists. The manner of execution must have a frightening effect."

Perhaps the American generals, the neo-cons, and the new world order planners who direct them are copying the Nazi playbook. More likely, though, they are progressing along parallel lines because they've committed the same egregious war crimes; they can only compound their crimes until they "kill everybody" who resists them. The Yugoslavian partisans fighting German fascism were called "communists." Today, U.S. fascism calls that same resistance in Iraq and Afghanistan "terrorist." Gen. Keitel was hanged for this and other war crimes by the Nuremberg Tribunal on October 16, 1946. http://www.historylearningsite.co.uk/...

Göring and Hess during trials

The International Military Tribunal was opened on October 18, 1945, in the Supreme Court Building in Berlin. The first session was presided over by the Soviet judge, Nikitchenko. The prosecution entered indictments against 24 major war criminals and six criminal organizations - the leadership of the Nazi party, the Schutzstaffel (SS) and Sicherheitsdienst (SD), the Gestapo, the Sturmabteilung (SA) and the High Command of the German armed forces (OKW).

The indictments were for:

1. Participation in a common plan or conspiracy for the accomplishment of crime against peace

2. Planning, initiating and waging wars of aggression and other crimes against peace

3. War crimes

4. Crimes against humanity

Part of the defense was that some treaties were not binding on the Axis powers because they were not signatories. This was addressed in the judgment relating to war crimes and crimes against humanity^[31] contains an expansion of customary law "the Convention Hague 1907 expressly stated that it was an attempt 'to revise the general laws and customs of war,' which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the [London] Charter."

The implication under international law is that if enough countries have signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be interpreted as binding on all nations not just those who signed the original treaty. This is a highly controversial aspect of international law, one that is still actively debated in international legal journals.

The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court.

• The Conclusions of the Nuremberg trials served to help draft:

  • The Genocide Convention, 1948.

  • The Universal Declaration of Human Rights, 1948.

  • The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity, 1968.

  • The Geneva Convention on the Laws and Customs of War, 1949; its supplementary protocols, 1977.

US Supreme Court Chief Justice Harlan Fiske Stone called the Nuremberg trials a fraud. "[Chief US prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg," he wrote. "I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas."^[32]

Associate Supreme Court Justice William O. Douglas charged that the Allies were guilty of "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled," he wrote. "Law was created ex post facto to suit the passion and clamor of the time."^[33]

The validity of the court has been questioned for a variety of reasons:

• The defendants were not allowed to appeal or affect the selection of judges. A. L. Goodhart, Professor at Oxford, opposed the view that, because the judges were appointed by the victors, the Tribunal was not impartial and could not be regarded as a court in the true sense. He wrote:

"Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of honest citizens.'" ("The Legality of the Nuremberg Trials", Juridical Review, April, 1946.)

• The main Soviet judge, Nikitchenko, had taken part in Stalin's show trials of 1936-1938,^[34].

• Haj Mohammad Amin al-Husayni, the Grand Mufti of Jerusalem, one of the most important collaborators with the Nazis, who, according to Adolf Eichmann, was a staunch supporter of the Nazi’s death camps,^[35] was exempted from these trials.

• One of the charges, brought against Keitel, Jodl, and Ribbentrop included conspiracy to commit aggression against Poland in 1939. The Secret Protocols of the German-Soviet Non-Aggression Pact of August 23, 1939, proposed the partition of Poland between the Germans and the Soviets (which was subsequently executed in September 1939); however, Soviet leaders were not tried for being part of the same conspiracy.^[36]. Instead, the Tribunal falsely proclaimed the Secret Protocols of the Non-Aggression Pact to be a forgery.

• In 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging, for the first time, another government (the Sublime Porte) of committing "a crime against humanity." However it was not until the phrase was further developed in the London Charter that it had a specific meaning. As the London Charter definition of what constituted a crime against humanity was unknown when many of the crimes were committed, it could be argued to be a retrospective law, in violation of the principles of prohibition of ex post facto laws and the general principle of penal law nullum crimen, nulla poena sine praevia lege poenali.^[37]

• The court agreed to relieve the Soviet leadership from attending these trials as war criminals in order to hide their crimes against war civilians, crimes that were committed by their army that included "carving up Poland in 1939 and attacking Finland three months later." This "exclusion request" was initiated by the Russians and subsequently approved by the court's administration.^[38]

• The trials were conducted under their own rules of evidence; the indictments were created ex post facto and were not based on any nation's law; the tu quoque defense was removed; and some claim the entire spirit of the assembly was "victor's justice". The Charter of the International Military Tribunal permitted the use of normally inadmissible "evidence." Article 19 specified that "The Tribunal shall not be bound by technical rules of evidence... and shall admit any evidence which it deems to have probative value." Article 21 of the Nuremberg International Military Tribunal (IMT) Charter stipulated:

"The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United [Allied] Nations, including acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military and other Tribunals of any of the United [Allied] Nations"

• The chief Soviet prosecutor submitted false documentation in an attempt to indict defendants for the murder of thousands of Polish officers in the Katyn forest near Smolensk. However, the other Allied prosecutors refused to support the indictment and German lawyers promised to mount an embarrassing defense. No one was charged nor found guilty at Nuremberg for the Katyn Forrest massacre. ^[39] In 1990, the Soviet government acknowledged that the Katyn massacre was carried out, not by the Germans, but by the Soviet secret police.^[40]

Many commentators, however, felt the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punishment could ensue; including some of the defendants and their legal team:

Perhaps the most telling responses to the critics of Jackson and Nuremberg were those of the defendants at trial. Hans Frank, the defendant who had served as the Nazi Governor General of occupied Poland, stated, “I regard this trial as a God-willed court to examine and put an end to the terrible era of suffering under Adolf Hitler.” With the same theme, but a different emphasis, defendant Albert Speer, Hitler’s war production minister, said, “This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.” Dr. Theodore Klefish, a member of the German defense team, wrote: "It is obvious that the trial and judgment of such proceedings require of the tribunal the utmost impartiality, loyalty and sense of justice. The Nuremberg tribunal has met all these requirements with consideration and dignity. Nobody dares to doubt that it was guided by the search for truth and justice from the first to the last day of this tremendous trial."^[41]

Nuremberg Trials - Wikipedia

There were many subsequent Nuremberg trials of lower-ranked officers and troops, both in Germany and Italy, in which the defense was offered that "I was just following orders." Ironically, German law itself clearly established that soldiers should not follow illegal orders:

"Without an unquestioning attitude towards obeying orders, the successful conduct of military operations, the success of a military campaign, and even the survival of a nation would be seriously threatened. Yet, the soldier, and especially the officer, also has a legal obligation to disobey orders that violate the constitution or the law, and has a moral and ethical obligation to disobey orders that are contrary to societal norms. Thus, the soldier's requirement to obey orders is not open-ended, and the oath of loyalty is not an excuse for blind patriotism or blind obedience to orders, the infamous "I was following orders" defense. Even within the German Military tradition, such a defense is not legally permissible, despite its use by the defendants at the Nuremberg war crimes trials (as well as at other war crimes trials). Article 47 of the 1872 German Military Penal Code, still legally in force, if not unenforced, down to 1945, stated:

If execution of an order given in line of duty violates a statute of the penal code, the superior giving the order is alone responsible. However, the subordinate, obeying the order is liable to punishment as an accomplice if ... he knew that the order involved an act the commission of which constituted a civil or military crime or offense.

Ironically, even Goebbels, the Nazi Minister of Propaganda, reiterated the essence of Article 47 and refuted the "I was only following orders" defense in a May 28, 1944 article in the German newspaper Deutsche Allgemeine. As we shall see later, there is precedence within the Prusso-German military tradition for disobedience to orders. The oath is not an excuse which the soldier can use to justify immoral acts after the fact, as we saw it used by numerous former German military officers during the various war crime trials that followed World War II or by the defendants in the My Lai massacre trial in 1971." Note: emphasized text is from the original. Source: Robert B. Kane, Disobedience and Conspiracy in the German Army, 1918-1945, McFarland, 2001, ISBN 0-7864-1104-X, p. 15.

German military forces were not only sown by oath to protect German law, but were later pressured to take a personal oath to serve Adolf Hitler ... and it was this oath that created the contradiction and conflict of interest. Kane, in the appendix of the book above (page 228), reproduces four separate personal oaths to Hitler himself - the Hitler Oath of August 2, 1934, the SS Oath, the HJ Oath and the SA Oath. The first reads:

"I swear by God this sacred oath that I shall render unconditional obedience to Adolf Hitler, the Fuhrer of the German Reich, supreme commander of the armed forces, and that I shall at all times be prepared as a brave soldier, to give my life for this oath."

Two quotations highlight the contradiction - and the first one comes from Hitler himself (both are found on page 224 of the above-referenced book). In contemplating the problems of parliamentary government, Hitler said:

"In such a case, doesn't a man of true character find himself in a hopeless conflict between knowledge and  decency, or rather honest conviction?

"Where is the dividing line between his duty toward the general public and his duty toward his personal honor?

"Mustn't every true leader refuse to be this degraded to the level of a political gangster?"

The second quote comes from General Douglas MacArthur in his Korean war conflict with President Truman, when MacArthur said:

" ... I find in existence a new and heretofore unknown and dangerous concept that the members of our armed forces owe primary allegiance and loyalty to those who temporarily exercise the authority of the executive branch of government, rather than to the country and its Constitution which they are sworn to defend. No proposition could be more dangerous."

As late as 1944, the "true believers" in Hitler were still a minority, though growing as the size of the military increased. Most of the "opposition" were the staff officers at the OKH and OKW. The senior field commanders, those in a position to protect the attempted coup against Hitler in 1944 from an SS counter-coup, were the "fence staddlers" afraid to rock the boat because of the personal risk and the risk to their positions and income.

While some had flirted with the coup conspiracy, most took a "wait and see" attitude. If the assassination of Hitler succeeded, all and well and they would be glad to see him go. But if it failed (as it did), then they wouldn't be caught up in the dragnet afterwards.

Schlabrendorff "saw in the non-Nazis among the generals the greatest obstacle to action [and he complained] 'their lack of backbone caused us more trouble than the wanton brutality of the Nazis'," Kane wrote.

Why could the generals not see what was happening around them? Why did such heavyweights as Kluge, Rommel and Halder not act when they had the chance? Did they not recognize their obligations under German law? Did they fail to see that they had an ethical duty far beyond a personal loyalty to the Fuhrer? Did they not recognize their obligation to still remain moral and ethical men?

Long before the Geneva Conventions governing the "rules of war" there was the Lieber Code of 1863, written by Francis Lieber on instructions for the Secretary of War. It served as the official U.S. Code of War and served as the foundation for the later Geneva Convention, which President Bush has now disavowed. It contains (in #15) a very profound statement:

"Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God."

As ancient as this conflict may seem to most of us in the 21st Century, those events, those circumstances of war and conflicting loyalty hang like a heavy dark shadow over all that is happening around us today. The "higher obligation" was established well over a century ago, and has been reaffirmed and strengthened many times since. Those who fail to see it, or see it and fail to follow it, still face criminal prosecution for war crimes even now, be they the Commander in Chief, Vice President, Secretary of the Defense or Private First Class.

The collapse of the "following orders" defense has serious implications for U.S. troops and politicians. As stated above, the "following orders defense" was also rejected in the My Lai massacre trial of 1971.

A growing number of U.S. Iraq veterans, such as Darrell Anderson (video above) are joining a movement called "The GI Resistance," but as this report will show, that "Resistance" goes much farther up the ladder of the military hierarchy - to generals and admirals.

While presidential candidate Barack Obama has said one of the first things he'll do if elected will be to have his new Attorney General investigate possible crimes by the Bush administration, the Democrats as a whole want to tread lightly. They have backed away from any impeachment action, fearing it would look "too political."

Overseas there have been efforts to have Bush officials indicted before an international war crimes tribunal ... but so long as the U.S. remains the world's most powerful military force that will be unlikely to ever happen - unless the U.S. military is pushed to the point of open rebellion or perhaps a coup in which Bush is overthrown and handed to a war tribunal by U.S. officials.