Was Nuremberg a Kangaroo Court?

ormeau 1

The History Channel done a series on each of the defendants at the Nuremburg Trials. They mentioned that the Soviet Union of all nations were involved in administering justice here and Herman Goering joked about their involvement openly at the trial.

I think Goering had a valid point considering that the USSR were allied with the Germans at the beginning of the war and were involved in the invasion of Poland and the Katyn massacre of all things.

Does the Soviets Unions involvement in the trials take away a degree of the trial's legitimacy? I think the Soviet Union could of easily rivaled the German's reputation for crimes against humanity.

Your thoughts?

jonniebgood1

ormeau 1 wrote: »

Does the Soviets Unions involvement in the trials take away a degree of the trial's legitimacy? I think the Soviet Union could of easily rivaled the German's reputation for crimes against humanity.

Your thoughts?

Morally - Maybe this argument could be made.
In reality, No.

As victors, and as arguably the nation who suffered most in WWII the trials would not have had legitimacy if the Soviet Union were not involved.

Peregrinus

The involvement of the Soviet Union didn't do much to raise the quality of justice administered, especially when it came to sentencing, but I don't think you could say that it reduced it to kangaroo court level. There were, after all, a number of acquittals at Nuremburg; you don't expect acquittals in a kangaroo court.

Nor, to be honest, would it have been in the interests of the Soviet Union to run a kangaroo process. A trial which respected basic standards of justice and process was going to result in convictions of the major players. Executing them without such a trial would acheive less than having the trial.

Uriel.

It depends as to what viewpoint you take I guess.

I would think on moral terms that the trials could be justified taking the narrow view of the "crimes" committed.

The difficulty is however, legally speaking it is arguable as to what extent the crimes, were actually crimes.

Hitler under the Enabling Act effectively legally (in theory at least) gained the power needed to carry out his policies.

From a legal point of view, Nuremberg was very much a rekindling of the Natural Law prospective. To a large degree the Allies made it up as they went along (victor's justice) but they applied legal reasoning to the trials that suggested a higher moral approach, drenched in natural law theory.

This in some ways is fine, but one would wonder as to who granted the Allies the moral superiority. Certainly, historically, they weren't on any greater a moral ground than the Nazis.

For example, Hitler's sterilization laws and policies were seemingly based on USA law in some of its states in the same era:

HITLER: it is possible to a large extent to prevent unhealthy and severely handicapped beings from coming into the world. I have studied with interest the laws of several American states concerning prevention of reproduction by people whose progeny would, in all probability, be of no value or be injurious to the racial stock

Also seen in the USA Supreme Court when such approaches were justified by Justice Holmes in Buck v Bell, 1926. Other countries had similar laws.

You'd have to wonder then, if Hitler based these particular laws on existing systems, developed by some of the Nazi's prosecutors, how Nuremberg could be legally justified.

How about Roosevelt's endorsement of genocide, just 7 years before becoming the 26th President of the US:

The most ultimately righteous of all wars is a war with savages, though it is apt to be also the most terrible and inhuman. The rude, fierce settler who drives the savage from the land lays all civilized mankind under a debt to him. American and Indian, Boer and Zulu, Cossack and Tartar, New Zealander and Maori,—in each case the victor, horrible though many of his deeds are, has laid deep the foundations for the future greatness of a mighty people.

The consequences of struggles for territory between civilized nations seem small by comparison. Looked at from the standpoint of the ages, it is of little moment whether Lorraine is part of Germany or of France, whether the northern Adriatic cities pay homage to Austrian Kaiser or Italian King; but it is of incalculable importance that America, Australia, and Siberia should pass out of the hands of their red, black, and yellow aboriginal owners, and become the heritage of the dominant world races

There are of course, lots of other examples, but the bottom line is, is that it would seem that what the Nazi's did was not something out of left field, unheard of etc. but appeared to be a continuation of policies that were adopted in years gone by, by the very people prosecuting the Nazis.

For those reasons, one could certainly find sympathy with the view that Nuremberg was a kangaroo court. Legally, i'd tend to agree.

But nonetheless, I am also of the view that something had to be done, that the behavior of the Nazis had to be punished, that someone had to be held accountable for the severe "crimes against humanity". However, the natural law approach doesn't sit well with me. Equally, the self righteous approach of the Allies is also sickening to a point. But I guess that is the spoils of victory.

jonniebgood1

There is an excellent analysis in the linked document here : http://faculty.maxwell.syr.edu/hpschmitz/PSC354/PSC354Readings/TomuschatLegacyNuremberg.pdf

Manach

Nuremberg is still debated within legal theory. On one hand, the use of Natural law ideas to hold the Nazi's answerable to higher laws that bind all human kind have laid the foundation for much of the current Human rights law. On the other, there is the argument that the defendants did not break any law that they were bound to obey (State law) - and that to convict them properly then the successor authority should have brought in retrospective laws to allow them to be tried.

geeky

I always thought that Nuremburg was justifiable from a moral point of view but, legally, a nonsense, for reasons that have been outlined above.

That's even before we look at the strange standards in sentencing (Speer escaping the death sentence handed out to his underling, the clearly mentally ill Rudolph Hess being treated as though he were sane) and the fact that no allies answered for the slaughter that they inflicted. If I recall correctly, they made an effort to get the death sentence for Donitz because German ships didn't rescue sailors from vessels that they sank, until his lawyer proved that America operated the same policy of leaving them to fend for themselves - that says a lot.

Interestingly, Churchill was in favour of summary executions for the leading Nazis. In my view, it would be just as morally defensible - and less hypocritical - as the tribunal.

GaelMise

Peregrinus wrote: »

The involvement of the Soviet Union didn't do much to raise the quality of justice administered, especially when it came to sentencing, but I don't think you could say that it reduced it to kangaroo court level. There were, after all, a number of acquittals at Nuremburg; you don't expect acquittals in a kangaroo court.

I believe more than a few of these aquitals were because the defendants were able to prove that allied forces had carried out the same crimes during the course of the war that they were accused of, which was a valid defence.

The biggest problem of all with the Nuremberg trials is that the legal precident they laied down have not been followed up on. Many of the war crimes the Germans were convicted of have been repeated without consequence again and again since.

Manach

GaelMise wrote: »

. Many of the war crimes the Germans were convicted of have been repeated without consequence again and again since.

To be fair, the International Criminal Court has been established and from people I've spoken to has had an effect in chilling the ardour of militarists who would be tempted to believe that War crimes prosecutors will not find them.

GaelMise

Manach wrote: »

To be fair, the International Criminal Court has been established and from people I've spoken to has had an effect in chilling the ardour of militarists who would be tempted to believe that War crimes prosecutors will not find them.

Unfortunatly the little tin pot militatists are not the problem, its the big offenders like the US who have constantly repeated and encouraged the repetation of many of the crimes for which Nazis hung.

Peregrinus

GaelMise wrote: »

I believe more than a few of these aquitals were because the defendants were able to prove that allied forces had carried out the same crimes during the course of the war that they were accused of, which was a valid defence.

In some cases. But, if Nuremburg really were a kangaroo court, that wouldn't have bothered them. They'd just have trumped up some unrelated charge that they themselves were not guility of and used that as a basis for convicting and executing the defendants.

Besides, there were other acquittals not based on such grounds and that, too, is inconsistent with the notion of Nuremburg as a kangaroo court.

GaelMise wrote: »

The biggest problem of all with the Nuremberg trials is that the legal precident they laied down have not been followed up on. Many of the war crimes the Germans were convicted of have been repeated without consequence again and again since.

They haven't been consistently followed up on, but it's not true to say that they haven;t been followed up on at all. We've had the Jugoslavia Tribunal and the Rwanda Tribunal and now the International Criminal Court, and we've also got a wealth of national legislation in various countries asserting jurisdiction over such crimes. And even in countries which manage to avoid most of this, they can't completely ignore it. Everyone who is complicit in such things knows there is at least a risk of having to answer for them. There are prominent figures from the Bush junta, for instance, who either never leave the US or will go only to or through selected countries for fear of arrest.

Baby steps, admittedly. But in the absence of a global legislature and a global police force, that's how international law develops.

GaelMise

Peregrinus wrote: »

They haven't been consistently followed up on, but it's not true to say that they haven;t been followed up on at all. We've had the Jugoslavia Tribunal and the Rwanda Tribunal and now the International Criminal Court, and we've also got a wealth of national legislation in various countries asserting jurisdiction over such crimes. And even in countries which manage to avoid most of this, they can't completely ignore it. Everyone who is complicit in such things knows there is at least a risk of having to answer for them. There are prominent figures from the Bush junta, for instance, who either never leave the US or will go only to or through selected countries for fear of arrest.

Baby steps, admittedly. But in the absence of a global legislature and a global police force, that's how international law develops.

Ok, perhaps it would be better to say that they have been very very selectivly followed up on, ie quite often in the case of Americas enemies, but never ever in the case of America herself or her allies.

geeky

Because the discussion has strayed into the impact of Nuremburg and war crimes prosecutions in the modern day, this video from Geoffrey Nice QC (prosecutor in the Milosevic case) is good youtube brain food!

https://www.youtube.com/watch?v=Cqy4YwJ-YcY

One of several fascinating lectures he gave to Gresham College.

donaghs

ormeau 1 wrote: »

The History Channel done a series on each of the defendants at the Nuremburg Trials. They mentioned that the Soviet Union of all nations were involved in administering justice here and Herman Goering joked about their involvement openly at the trial.

I think Goering had a valid point considering that the USSR were allied with the Germans at the beginning of the war and were involved in the invasion of Poland and the Katyn massacre of all things.

Does the Soviets Unions involvement in the trials take away a degree of the trial's legitimacy? I think the Soviet Union could of easily rivaled the German's reputation for crimes against humanity.

Your thoughts?

Sure, there was hypocrisy there. But the Nazi's probably would never have stood trial, without the Soviet Union doing all the heavy-lifting in defeating them. Like many things in life, compromises were reached.

What would you propose?
Don't put senior Nazi's on trial, and let them go due "whataboutery" reasoning?
Try and persuade Stalin to let a trial take place without " tainted" Soviet involvement? (not going to happen)
Attack the Soviet Union (prolonging the global suffering and misery of years of war) in an attempt to put their suspected war criminals on trial?

GaelMise

donaghs wrote: »

Sure, there was hypocrisy there. But the Nazi's probably would never have stood trial, without the Soviet Union doing all the heavy-lifting in defeating them. Like many things in life, compromises were reached.

What would you propose?
Don't put senior Nazi's on trial, and let them go due "whataboutery" reasoning?
Try and persuade Stalin to let a trial take place without " tainted" Soviet involvement? (not going to happen)
Attack the Soviet Union (prolonging the global suffering and misery of years of war) in an attempt to put their suspected war criminals on trial?

I would propose that if they wanted a serious war crimes tribunal, they should have set one up, held themselves to the same standard and set out the laws that would be in force on everyone in that sphere from then on.
If not, be honest about it, set up a drum head court marshal, shoot them and be done.

Peregrinus

GaelMise wrote: »

I would propose that if they wanted a serious war crimes tribunal, they should have set one up, held themselves to the same standard and set out the laws that would be in force on everyone in that sphere from then on.

In fairness, they did a great deal of that, and planned more. They die set up a serious war crimes tribunal - whatever else you can say about Nuremburg, it was at least that - they established the UN, they adopted the Universal Charter of Human Rights and a slew of other international agreements. And they planned for the UN to have more teeth than it in fact has; the UN was to have its own general staff, and access to the troops of member states, but this never came to pass because of (later) dissension between the major powers.

Nuremburg accomplished a huge amount in terms of carrying forward both the development and enforcement of international humanitarian law, and laid the foundation for still more in that area which has happened since. Yes, it's not yet enforce internationally in the way that domestic criminal law is enforced domestically, but that doesn't mean that nothing has been achieved. A great deal has been achieved, and more will be achieved.

Snickers Man

Uriel. wrote: »

historically, they weren't on any greater a moral ground than the Nazis.

For example, Hitler's sterilization laws and policies were seemingly based on USA law in some of its states in the same era:


Also seen in the USA Supreme Court when such approaches were justified by Justice Holmes in Buck v Bell, 1926. Other countries had similar laws.

America, or at least several American states STILL had laws virtually identical to the Nuremberg Laws, albeit directed at a different target, until the 1960s.

As has been pointed out on these pages ad nauseum, Barak Obama's birth in 1961 would have been evidence of a crime had it occurred in any one of 24, count 'em: 24, states of the union at that time. Had be been born during the war, it would have been a crime in the majority of US states.

Black men, such as his dad, were prohibited by law from marrying or having sexual relations with white women, such as his mother.

Just think what anti miscegenation laws actually mean: they say that a racially identifiable section of the population as determined by a state bureaucracy is unfit to bear or sire children with the rest of the population.

And these stayed in place until 1967 in some areas.

Popescu

The crimes with which the Germans were accused by the victors in their International Military Tribunal (IMT):
1. Participation in a common plan or conspiracy for the accomplishment of a crime against peace
2. Planning, initiating and waging wars of aggression and other crimes against peace
3. War crimes
4. Crimes against humanity
did not exist on the statute books. In this sense it was a show trial dressed-up in legal jargon to justify vengeance.

Furthermore, as the original post implied, it was barefaced hypocrisy, given the Russian invasion of the Baltic states and Poland as well as the treatment of prisoners of war and the massacre at Katyn. Add to this the deliberate targeting of civilians in the Anglo-American incendiary bombing of Hamburg and Dresden and the dropping of two atom bombs on Hiroshima and Nagasaki and the summary murders of SS prisoners. The perpetrators of these acts got off scot-free.

Stovepipe

With regard to justice, many Nazis, with blood on their hands, got away with light sentences and were treated sympathetically by German courts and were assisted with pensions and rehabilitation grants and so on, a luxury not enjoyed by their victims......@popescu, I suggest you study Guernica as a deliberate, systematic targeting of an undefended town with no military significance. It was laid waste with incendiaries and mixed sizes of high explosive bombs and the German aircraft made several strafing passes, targeting fleeing civilians.The town had but two machine-guns to defend itself with and they were effectively useless, it also had no military production of any kind. Wolfram von richtofen planned it and admitted as much. See also the German hit-and-run nuisance raids on British coastal towns, where civilians were deliberately targeted by German fighter pilots, by their own admission on the Trent Park recordings.....the SS were no slouches when it came to the summary execution of PoWs. I refer you to their killing of the British PoWs at Le Paradis in France. Leni Reifenstahl, a favourite of Hitler, saw and filmed SS and Wehrmacht killing Polish civilians on day 1 of WW 2. See also the vast killings of Polish citizens by the SS in Warsaw. They even filmed it themselves......you clearly do not understand the meaning of show trial as the defendants at Nuremburg had legal counsel, access to documents, access to translators and so on. You should have a look at the later Einsatzgruppen trials, which went on into the 50s. If Nuremburg was a show trial, why did the Allies keep going that long? If you want to see an actual show trial, look up the Russian show trials of the 30s. The defendants were judged guilty before the trial started and were shot within minutes of being "found" guilty.

regards
Stovepipe

Popescu

Stovepipe wrote: »

...@popescu, I suggest you study Guernica ...

I know about Guernica but this is changing the subject.

Stovepipe wrote: »

See also the German hit-and-run nuisance raids on British coastal towns ...the SS were no slouches when it came to the summary execution of PoWs. ...

None of these examples is related to the topic of this thread which is the Nürnberg Trials.

Stovepipe wrote: »

...you clearly do not understand the meaning of show trial as the defendants at Nuremburg had legal counsel, access to documents, access to translators and so on.

Having counsel, access to documents, and translation, only made it more of a show trial because it had the appearance of a legitimate court.

Stovepipe wrote: »

If Nuremburg was a show trial, why did the Allies keep going that long? The defendants were judged guilty before the trial started and were shot within minutes of being "found" guilty.

Everyone knew a bunch of Nazi leaders would be strung-up after the masquerade and later trials were very lenient by comparison.

Stovepipe

@popescu, I refer you to your own post; YOU brought up the subject of Allied area bombing and the summary killing of SS men. I showed you examples of such acts perpetrated by the Germans, especially non-SS, even before WW 2 began and you say that I am changing the subject ?! If you want to see a genuine kangaroo court in action, I suggest you refer to the trials conducted by the Nazi judge, Roland Friesler. Very few people evaded his brand of justice.

regards
Stovepipe

Popescu

Stovepipe wrote: »

@popescu, I refer you to your own post; YOU brought up the subject of Allied area bombing and the summary killing of SS men. I showed you examples of such acts perpetrated by the Germans, especially non-SS, even before WW 2 began and you say that I am changing the subject ?! If you want to see a genuine kangaroo court in action, I suggest you refer to the trials conducted by the Nazi judge, Roland Friesler. Very few people evaded his brand of justice.

I mentioned the "war crimes" of the Allies and how these were never prosecuted as an example of the hypocrisy underpinning the whole charade. Roland Friesler's Peoples Court was just the same although there were acquittals and reduced sentences handed down.

jonniebgood1

Popescu wrote: »

I mentioned the "war crimes" of the Allies and how these were never prosecuted as an example of the hypocrisy underpinning the whole charade. Roland Friesler's Peoples Court was just the same although there were acquittals and reduced sentences handed down.

Are you arguing that the Nazi leadership should not have been held to account? If so explain why not.
If I have picked you up wrong explain what you think should have happened.

Popescu

jonniebgood1 wrote: »

Are you arguing that the Nazi leadership should not have been held to account? If so explain why not.
If I have picked you up wrong explain what you think should have happened.

You ask a pertinent question and one that is not easy to answer. I do believe the four charges were bogus in that they were never considered crimes previously and also because they were actions perpetrated by the Allies both in WWII and before. I am of the opinion that the four charges, namely: 1) Planning for war, 2) Starting a war, 3) War crimes, and 4) Crimes against humanity, could have been handled militarily, i.e. beat them on the battlefield and ensure that reparations are paid and it cannot happen so easily again. There would not have been a WWII had the victors of WWI prevented Germany from rearming, a condition of the Versailles Treaty. Now, bear in mind, once you pretend that these are crimes capable of being prosecuted in a court of law, then such laws should have been enshrined in International Law which they are now but were not back then. I believe the Geneva Convention could have been invoked and those responsible for the maltreatment of prisoners and civilians could have been prosecuted. As non-signatories of the Geneva Convention, the Soviet Union could not have been part of the court. Furthermore, those responsible for breaching the Geneva Convention on the Allies side should have been also prosecuted.

jonniebgood1

Popescu wrote: »

You ask a pertinent question and one that is not easy to answer. I do believe the four charges were bogus in that they were never considered crimes previously and also because they were actions perpetrated by the Allies both in WWII and before. I am of the opinion that the four charges, namely: 1) Planning for war, 2) Starting a war, 3) War crimes, and 4) Crimes against humanity, could have been handled militarily, i.e. beat them on the battlefield and ensure that reparations are paid and it cannot happen so easily again. There would not have been a WWII had the victors of WWI prevented Germany from rearming, a condition of the Versailles Treaty. Now, bear in mind, once you pretend that these are crimes capable of being prosecuted in a court of law, then such laws should have been enshrined in International Law which they are now but were not back then. I believe the Geneva Convention could have been invoked and those responsible for the maltreatment of prisoners and civilians could have been prosecuted. As non-signatories of the Geneva Convention, the Soviet Union could not have been part of the court. Furthermore, those responsible for breaching the Geneva Convention on the Allies side should have been also prosecuted.

Due to their losses and sacrifices and ultimately their role in the outcome of WWII the USSR could not be excluded from the final reckoning. To even suggest this, is not dealing with the reality of the situation in 1945 where the citizens of the victors would have demanded some form of retribution against Germany.

A further question might be how did this type of reaction to a war resonate in the following years. This is particularly compared to the years following WWI when items such as the reparations you refer to here were applied with disastrous results. Given that major European wars of comparable scale have been largely avoided since 1945 it seems difficult to argue that the events immediately after WWII were misguided. Nuremburg could be called a show trial quite fairly IMO but not a 'kangaroo court' as per thread title.

Popescu

jonniebgood1 wrote: »

Due to their losses and sacrifices and ultimately their role in the outcome of WWII the USSR could not be excluded from the final reckoning. To even suggest this, is not dealing with the reality of the situation in 1945 where the citizens of the victors would have demanded some form of retribution against Germany.

The Soviets got their pound of flesh by occupying East Germany, allowing their troops to rape and murder German civilians, killing 90% of German prisoners of war, and transporting industrial hardware back to Russia. The Soviet Union was not a signatory of the Geneva Convention. You are confusing retribution with vengeance.

jonniebgood1 wrote: »

A further question might be how did this type of reaction to a war resonate in the following years.

The Nürnberg Trials had no effect on subsequent developments which was dominated by a concern about the occupation of half of Europe by the Russians.

jonniebgood1 wrote: »

... Given that major European wars of comparable scale have been largely avoided since 1945 it seems difficult to argue that the events immediately after WWII were misguided.

Put that down to the showdown between NATO and the Soviet Union and the mutually assured atomic destruction, not the Nürnberg Trials.

jonniebgood1 wrote: »

Nuremburg could be called a show trial quite fairly IMO but not a 'kangaroo court' as per thread title.

It was an ad hoc Military Tribunal with no foundation in German or International Law and therefore a kangaroo court.

benway

Adam Curtis did an excellent (imho) documentary a few years back around Nuremberg and the framing of the "the grand public memory of the second world war".

The transcript shows that Robert Jackson was acutely aware of this purpose:

MR. JUSTICE JACKSON: If the Tribunal please, the last question which I asked last night referring to mobilization preparations in the Rhineland, as shown in the official transcript, was this: "But of a character which had to be kept entirely secret from foreign powers?" The answer was: "I do not believe I can recall the publication of the preparations of the United States for mobilization."....

THE PRESIDENT: I quite agree with you that any reference to by the United States' secrecy with reference to mobilization is entirely irrelevant and that the answer ought not to have been made, but the only rule which the Tribunal can lay down as a general rule is the rule-already laid down-that the witness must answer if possible "yes" or "no," and that he may make such explanations as may be necessary after answering questions directly in that way and that such explanations must be brief and not be speeches. As far as this particular answer goes, I think it is entirely irrelevant.

MR. JUSTICE JACKSON: Well, no; in a Trial of this kind, where propaganda is one of the purposes of the defendant, striking out does no good after the answer is made, and Goering knows that as well as I. The charge has been made against the United States and it is in the record. I am now moving that this witness be instructed that he must answer my questions "yes" or "no" if they permit an answer, and that the explanation be brought out by his counsel in a fashion that will permit us to make objections, if they are irrelevant, and to obtain rulings of the Tribunal, so that the Tribunal can discharge its functions of ruling out irrelevant issues and statements of any kind whatsoever. We must not let the Trial degenerate into a bickering contest between counsel and the witness. That is not what the United States would expect me to participate in. I respectfully suggest that if he can draw any kind of challenge . . .

THE PRESIDENT: Are you submitting to the Tribunal that the witness has to answer every question "yes" or "no" and wait until he is re-examined for the purpose of making any explanations at all?

MR. JUSTICE JACKSON: I think that is the rule of cross examination under ordinary circumstances. The witness, if the question permits it, must answer, and if there are relevant explanations they should be reserved until later.

Now let me come back to the specific problem I have right here this morning. Here is an answer given which the Tribunal now rules is irrelevant- But we have no opportunity to object to it. The Tribunal had no opportunity to rule upon it. The witness asks, "Did you ever hear of the United States publishing its plan of mobilization?" Of course, we would have objected. The difficulty is that the Tribunal loses control of these proceedings if the defendant, in a case of this kind where we all know propaganda is one of the purposes of the defendant, is permitted to put his propaganda in, and then we have to meet it afterwards. I really feel that the United States is deprived of the opportunity of the technique of cross-examination if this is the procedure.

THE PRESIDENT: Surely it is making too much of a sentence the witness has said, whether the United States makes its orders for mobilization public or not. Surely that is not a matter of very great importance. Every country keeps certain things secret. Certainly it would be much wiser to ignore a statement of that sort. But as to the general rule, the Tribunal will now consider the matter. I have already laid down what I believe to be the rule, and ,; I think with the assent of the Tribunal, but I will ascertain...

MR.JUSTICE JACKSON: Let me say that I agree with Your Honor that as far as the United States is concerned we are not worried by anything the witness can say about it-and we expected plenty. The point is, do we answer these things or leave them, apart from the control of the Trial? And it does seem to me that this is the beginning of this Trial's getting out of hand, if I may say so, if we do not have control of this situation. I trust the Tribunal will pardon my earnestness in presenting this. I think it is a very vital thing.

THE PRESIDENT: I have never heard it suggested that the Counsel for the Prosecution have to answer every irrelevant observation made in cross-examination.

MR. JUSTICE JACKSON: That would be true in a private litigation, but I trust the Court is not unaware that outside of this courtroom is a great social question of the revival of Nazism and that one of the purposes of the Defendant Goering-I think he would be the first to admit-is to revive and perpetuate it by propaganda from this Trial now in process.

Of course, while propaganda was clearly Göring's primary focus, controlling the narrative was clearly to the fore among Jackson's. The >transcripts< of the various cross-examinations make for fascinating, chilling reading.

Not that any of this takes away from the Nazis crimes - openly and almost proudly admitted in the course of the trial - or the desirability of impartial tribunals adjudicating on war crimes and matters of international law. The question is when and how to build an impartial and credible tribunal capable of dealing with crimes of this nature.

Popescu

benway wrote: »

... The question is when and how to build an impartial and credible tribunal capable of dealing with crimes of this nature.

You begin with the written law and a properly constituted court to administer it.

benway

Popescu wrote: »

You begin with the written law and a properly constituted court to administer it.

More fundamentally, for any court to be workable it needs the power to enforce its judgments. Who's going to provide that? And where such power is available, for the court to be credible, the great powers behind the court must open themselves and their allies to similar scrutiny to that imposed - often with ample justification - upon "weaker" nations, usually in the third world.

The absolute mess around the trials at the ICC of the President of Kenya, Uhuru Kenyatta, and other players from the Kenyan political scene for their roles in the post-election violence in 2007 provides a salutory lesson. Indictments were hanging over Kenyatta and his deputy William Ruto before the presidential election, which was neatly spun into a narrative of unjustified neocolonial interference, pointing to the hypocrisy of Bush and Blair walking free, while they were indicted. And they won, although I might add that the ICC issue was only a small part of the story.

Manach

My understanding of the role of the ICC, taken in conversation with of an African law student, that in subsequent Kenyean polls it acted as a deterrent to dampen the violence and was in part responsible for the comparative quiet polling.

benway

African or Kenyan?

It's an extremely complicated story - the shifting tribal alliances with Ruto as kingmaker was key, the violence in 2007 was largely between (former president Kibaki and Uhuru's) Kikuyu and the alliance of Luo (Raila Odinga) and particularly Ruto's Kallenjin community. The worst flashpoints were in the Rift Valley, at the "intersection" between Kikuyu and Kalenjin strongholds. It's also fairly clear (at least to me) that Kibaki stole the 2007 election, but that's another question entirely.

Last year, Kalenjin and Kikuyu were aligned behind Uhuru and Ruto, which ameliorated the potential for violence, as there's much less "bumping" between Luos in Western Kenya and the other two tribes, notwithstanding fairly large "emigrant" Luo populations in Nairobi and on the coast. A gross simplification on my part, of course, there's also the question of China's involvement in the whole thing, the rise and rise of the urban middle classes, and the potential dividend to tribal leaders across the board through the introduction of majimbo-lite in the 2010 constitution. Would tend to agree with the thrust of >this analysis<, also a simplification, but less egregious than mine.

It's still a fair point, I don't think there was any harm in the threat of indictment hanging over the leadership on all sides, but I personally don't think that was a prime determining factor in the election season thankfully passing off relatively peacefully.

Getting back some way towards the topic, my fear is that outcomes like these are going to leave the ICC looking increasingly partisan, impotent and irrelevant.

Stovepipe

@popescu, you said that the Allies should have used German law as a basis on which to try the Nuremberg defendants??!! Why on earth would they do that, when they'd spent billions of dollars, expended many thousands of lives and so on, to defeat the people who used such laws to justify their actions in the first place?.German law couldn't be relied upon as it had been mutilated By Hitler in the first place...I recall reading how German soldiers shot completely blameless Polish citizens in the first hours of the invasion of Poland, using German laws that those citizens couldn't possibly have known about. The soldiers moulded law to suit their ends.......as for Russian participation in Nuremberg, of course they had to be there. They were the victims of Germany's deliberate, criminal, aggressive invasion of their country and had 20 million dead citizens to show for it. As for your condemnation of Russia's stripping of German material assets, well, I suggest you research the legalised looting of all the countries occupied by the Germans, particularly such things as the appropriation of crops, foodstocks, industrial assets such as factories being forcibly sequestered into Nazi ownership, the appropriation of entire transport networks such as rail systems, vehicle production, canals, shipyards, merchant fleets, fishing fleets, electrical and electronic production, oil production and a million other things and the most odious of all, the forced labour of hundreds of thousands of people and the murder of those who had the misfortune to have the wrong religion. Everything that happened to the Germans after the war came as a direct consequence of their own actions and compared to the misery they inflicted on utter innocents, they got off lightly, in many cases.

regards
Stovepipe

Popescu

Stovepipe wrote: »

@popescu, you said that the Allies should have used German law as a basis on which to try the Nuremberg defendants??!!

Yes, some written law had to be used. As it was, the Allied Tribunal was making up laws and applying them ex post facto. This violated the concept of fair jurisprudence.

Stovepipe wrote: »

...as for Russian participation in Nuremberg, of course they had to be there. They were the victims of Germany's deliberate, criminal, aggressive invasion of their country and had 20 million dead citizens to show for it.

They were also violators of the very crimes they were accusing the Germans of committing. Also, the Soviet Union was not a signatory of the Geneva Convention.

Stovepipe wrote: »

As for your condemnation of Russia's stripping of German material assets, well, I suggest you research the legalised looting of all the countries occupied by the Germans ...

Two wrongs don't make a right.

jonniebgood1

Popescu wrote: »

They were also violators of the very crimes they were accusing the Germans of committing. Also, the Soviet Union was not a signatory of the Geneva Convention.

Your own answer is applied to the above point.

Popescu wrote: »

Two wrongs don't make a right.

That they were not Geneva signatories is also irrelevant. Germany were and it was they who were on trial in reality.

Your repeated stating that USSR should not have been administrating justice after losing so many millions of its people in WWII is simply absurd. I see no proper argument for this. That they fought fire with fire is not reason to exclude them, particularly when they were the main component of the victory of the Allies.

Popescu

jonniebgood1 wrote: »

Your own answer is applied to the above point.

I don't follow you.

jonniebgood1 wrote: »

That they were not Geneva signatories is also irrelevant. Germany were and it was they who were on trial in reality.

The Germans were not tried for violating the Geneva Convention. New laws were made-up on the spot.

jonniebgood1 wrote: »

Your repeated stating that USSR should not have been administrating justice after losing so many millions of its people in WWII is simply absurd.

Losing great numbers does not qualify a ruthless autocracy to judge others.

jonniebgood1 wrote: »

I see no proper argument for this. That they fought fire with fire is not reason to exclude them, particularly when they were the main component of the victory of the Allies.

Being a victor does not qualify a country to meet-out vengeance in the guise of justice.

Zebra3

jonniebgood1 wrote: »

Your own answer is applied to the above point.



That they were not Geneva signatories is also irrelevant. Germany were and it was they who were on trial in reality.

Your repeated stating that USSR should not have been administrating justice after losing so many millions of its people in WWII is simply absurd. I see no proper argument for this. That they fought fire with fire is not reason to exclude them, particularly when they were the main component of the victory of the Allies.

Why is it absurd? They helped start WWII by agreeing with Germany to invade and partition Poland.

jonniebgood1

Zebra3 wrote: »

Why is it absurd? They helped start WWII by agreeing with Germany to invade and partition Poland.

The Nazi-Soviet non aggression pact was not a joint agreement to co-ordinate invasion. That seems to be what you are suggesting.

If you look in more detail at the run up to this period you will understand why the pact came into existence. Both sides had differing reasons.

Popescu

jonniebgood1 wrote: »

The Nazi-Soviet non aggression pact was not a joint agreement to co-ordinate invasion. That seems to be what you are suggesting.

If you look in more detail at the run up to this period you will understand why the pact came into existence. Both sides had differing reasons.

The Russians invaded Poland just as they have no invaded their former Ukrainian colony.

Reekwind

Popescu wrote: »

New laws were made-up on the spot

Out of curiosity, where do you think laws come from?

The reality is that the Allies faced an unprecedented (that is, without legal precedent) scenario in which Nazi aggression had consumed a continent and millions of lives. The old way of doing things would have been to ignore individual Nazis and limit any consequences to the realm of diplomatic treaty. When viewed from the smoking ruins of the concentration camps that would have been quite obviously absolutely unacceptable, from both a political and moral viewpoint.

The post-war order, or administering of justice, was hardly perfect but it was unquestionably the best option. The others being to let Nazis walk free on the weakness/absence of relevant pre-war legislation or put them all up against a wall and be done with it. Both would have made a mockery of the millions who had died.

Hence the commitment to put in place a new international framework in which those responsible for genocide and other mass atrocities could be brought to justice. Novel situations require novel laws and bodies. To fault this for simply being new is unwarranted.

Manach

The actual laws might have been new, but from my reading of a Jurisprudence text, the underlying theories behind them stretched back to Roman times and so had an excellent pedigree especially in light of the relationship with Continental Civil law.

Popescu

Reekwind wrote: »

Out of curiosity, where do you think laws come from?

Laws are passed by legislatures.

Reekwind wrote: »

The reality is that the Allies faced an unprecedented (that is, without legal precedent) scenario in which Nazi aggression had consumed a continent and millions of lives.

There was nothing unprecedented about Germany invading its neighbors.

Reekwind wrote: »

The old way of doing things would have been to ignore individual Nazis and limit any consequences to the realm of diplomatic treaty. When viewed from the smoking ruins of the concentration camps that would have been quite obviously absolutely unacceptable, from both a political and moral viewpoint.

I proposed a different remedy.

Reekwind wrote: »

The post-war order, or administering of justice, was hardly perfect but it was unquestionably the best option.

The Nürnberg Military Tribunal was victors' justice masquerading as a proper court.

Reekwind wrote: »

The others being to let Nazis walk free on the weakness/absence of relevant pre-war legislation or put them all up against a wall and be done with it. Both would have made a mockery of the millions who had died.

I proposed different remedy.

Reekwind wrote: »

Hence the commitment to put in place a new international framework in which those responsible for genocide and other mass atrocities could be brought to justice. Novel situations require novel laws and bodies. To fault this for simply being new is unwarranted.

Ex post facto and, therefore, inherently unjust.

Manach wrote: »

The actual laws might have been new, but from my reading of a Jurisprudence text, the underlying theories behind them stretched back to Roman times and so had an excellent pedigree especially in light of the relationship with Continental Civil law.

The Romans outlawed invading other lands, the slaughter of civilians, slavery??? LOL

Jawgap

Popescu wrote: »

Laws are passed by legislatures.


........

Not according to St. Thomas Aquinas......

Some law are made by legislatures, some by judges, some arise through custom and some are considered 'natural'......

jonniebgood1

Popescu wrote: »

The Russians invaded Poland just as they have no invaded their former Ukrainian colony.

Yes of course. Don't worry though- Good old uncle Sam will rescue us all from the evil mean Ivan's.

History is not as simple as you are trying to let on.

jonniebgood1

Popescu wrote: »

There was nothing unprecedented about Germany invading its neighbors.

There was nothing unprecedented about a victor getting to chose how the defeated country was punished.

Reekwind

Popescu wrote: »

There was nothing unprecedented about Germany invading its neighbors.

Oh, I see how this is going to go. This is unlikely to be productive. But hey, let it never be said that I'm not a trier.

The point was not that Germany had invaded its neighbours (that at least was depressingly common behaviour) but that in the process it had shattered itself, absolutely devastated vast swathes of Europe, caused the deaths of tens of millions and instituted a system of industrialised genocide. That amounts to an unprecedented scenario.

If the Nazis sparked an innovation in international law then it was because the crimes of the Nazis were vast enough in scope to necessitate it.

I proposed a different remedy.

Not really. The Geneva Convention wasn't used because it had been rendered woefully out of date by the war (hence the 1949 update). Under this it would have been impossible to charge anyone with, oh I don't know, the Holocaust or other crimes against civilian populations. That is, tens of millions of deaths would have gone unanswered. And because the Soviets weren't a party to the Convention then there could be no case for the millions of Soviet POWs that died in captivity.

(And I do find it strange that you're more insistent on seeing 'justice' for Western or Soviet crimes then the mass slaughter and genocidal campaigns of the Nazis. But I digress slightly.)

Even then, the Conventions were never designed to be part of an international system of sentencing, being treaties between states. How they could have been applied to individuals is open to question. Particularly when one of the key principles established by Nuremberg (again, a new precedent) was that soldiers could be held responsible for crimes committed while carrying out superior orders.

That was the whole point of Nuremberg: moving past indictments against states and actually holding individuals to account for their actions. That's been one of the cornerstones of international law since.

Your "remedy" would be nothing more than a return to the settlement of the Great War: a peace between states but no real effort to prosecute those individuals responsible for war crimes.

Ex post facto and, therefore, inherently unjust.

Yeah, bollox. The Nazis knew that what they were doing was fundamentally criminal and morally unjustifiable. Hence the efforts to keep the Holocaust a secret and Hitler's refusal to refer to it without euphemisms. Ditto with their other war crimes; even in Russia, for all the talk of an anti-Bolshevik crusade, the scale of the slaughter and genocide was carefully shielded from the German population at home. It was known that these were crimes against humanity, against civilisation. That the legal formulation followed after the fact doesn't allow anyone to claim ignorance of the illegality of their actions.

And it's absolutely ripe to complain that this is "unjust" when your own solution would leave genocidal murderers walk free unpunished... until they ever massacred anyone again :rolleyes:

Popescu

Jawgap wrote: »

Not according to St. Thomas Aquinas......

Argumentum ad veracundiam.

Jawgap wrote: »

Some law are made by legislatures, some by judges, some arise through custom and some are considered 'natural'......

In democracies, only legislatures can make laws.

jonniebgood1 wrote: »

... History is not as simple as you are trying to let on.

There is nothing complicated about what the Allied Countries did in their Military Tribunal.

jonniebgood1 wrote: »

There was nothing unprecedented about a victor getting to chose how the defeated country was punished.

But pretending that persons broke laws which were not even written at the time is quite rare and unconstitutional in any democracy.

Reekwind wrote: »

... The point was not that Germany had invaded its neighbours (that at least was depressingly common behaviour) but that in the process it had shattered itself, absolutely devastated vast swathes of Europe, caused the deaths of tens of millions and instituted a system of industrialised genocide. That amounts to an unprecedented scenario.

There is nothing unusual about total war.

Reekwind wrote: »

If the Nazis sparked an innovation in international law then it was because the crimes of the Nazis were vast enough in scope to necessitate it.

It was Communist Russia as well as the Americans, French, and English who made the innovation of allowing ex post facto laws appear respectable.

Reekwind wrote: »

... The Geneva Convention wasn't used because it had been rendered woefully out of date by the war (hence the 1949 update). Under this it would have been impossible to charge anyone with, oh I don't know, the Holocaust or other crimes against civilian populations.

That the Geneva Conventions were updated in 1949 is proof that protection for civilians was not part of international law and should not have had any part of a legitimate court proceeding. Civilians were brutally treated through the ages during wars and twentieth century excesses should not have been a necessary prerequisite for international law to get up to speed.

Reekwind wrote: »

That is, tens of millions of deaths would have gone unanswered. And because the Soviets weren't a party to the Convention then there could be no case for the millions of Soviet POWs that died in captivity.

It is estimated that 804,000 German civilians were killed by the Allies in WWII and only 1 in 10 German POWs who surrendered to the Russians survived. Conveniently, no Russian was charged with the murder of the Poles at Katyn and Winston Churchill and Harry Truman got away with the civilian deaths in the firebombing of Hamburg and Dresden as well as the summary murders of SS POWs. No consistency, only hypocrisy or a double standard.

Reekwind wrote: »

Even then, the Conventions were never designed to be part of an international system of sentencing, being treaties between states.

Treaties are international law.

Reekwind wrote: »

How they could have been applied to individuals is open to question. Particularly when one of the key principles established by Nuremberg (again, a new precedent) was that soldiers could be held responsible for crimes committed while carrying out superior orders.

Those in authority who take it upon themselves to break international law or order others to do so can be prosecuted. Those who follow orders of superiors cannot be held culpable because of the command responsibility. You are incorrect to claim that refusal to excuse the accused who were ordered to perform actions was a precedent at Nürnberg. Victors have been doing this since the fifteenth century and since Nürnberg there is inconsistency in the application of this principle.

Reekwind wrote: »

That was the whole point of Nuremberg: moving past indictments against states and actually holding individuals to account for their actions. That's been one of the cornerstones of international law since.

This is neither a cornerstone of international law nor the whole point of the Nürnberg Military Tribunal. The cornerstone of international law are treaties and resolutions signed and passed by states. The whole point of the Nürnberg trials was to make vengeance appear legal and respectable.

Reekwind wrote: »

Your "remedy" would be nothing more than a return to the settlement of the Great War: a peace between states but no real effort to prosecute those individuals responsible for war crimes.

It is foolish for the winners to blame all wrongdoing on the vanquished. Presenting a better example, educating people to be aware of human rights, enshrining protections for minorities, and shining the moral light of day would have achieved more that a handful of hangings.

Jawgap

Popescu wrote: »

Argumentum ad veracundiam.


In democracies, only legislatures can make laws.


......

Sorry, but you're wrong. For a start you have judge made law (including decisions made in equity). In fact, many statutes (which legislatures do enact) are often codifications of judicial decisions or precedent (which are both forms of law).

You also have administrative or tribunal law - the decisions of quasi-judicial bodies.

Then there are regulations, often simply signed off by ministers.

Most of our law in Ireland derives now from Europe, a lot of which originates with the European Commission.

And all this is allowed for under the most important law of all, the Constitution of Ireland. It may be written by someone else, but it's the people who voted it into existence and only the people can change it.

As for Nuremberg, it was as someone described it - 'victor's justice' - but administratively and procedurally it was not a kangaroo court. Kangaroo courts are generally defined as courts that lack procedures or principles.

Popescu

Jawgap wrote: »

Sorry, but you're wrong. For a start you have judge made law (including decisions made in equity). In fact, many statutes (which legislatures do enact) are often codifications of judicial decisions or precedent (which are both forms of law).

Judges appointed by victors in war have no moral nor legal right to make-up new laws as they please in order to hang leaders of the vanquished enemy.

Jawgap wrote: »

You also have administrative or tribunal law - the decisions of quasi-judicial bodies.

Military tribunals cannot make brand new laws.

Jawgap wrote: »

Then there are regulations, often simply signed off by ministers.

Those prosecuted at the Nürnberg were not charged with failing to uphold military regulations.

Jawgap wrote: »

Most of our law in Ireland derives now from Europe, a lot of which originates with the European Commission.

These regulations are underpinned by international treaties.

Jawgap wrote: »

As for Nuremberg, it was as someone described it - 'victor's justice' - but administratively and procedurally it was not a kangaroo court. Kangaroo courts are generally defined as courts that lack procedures or principles.

The Nürnberg Military Tribunal was indeed a kangaroo court insofar as it was an ad hoc "court" made up of the victors for the purpose of administering laws which did not exist on any statute book.

Jawgap

Popescu wrote: »

Judges appointed by victors in war have no moral nor legal right to make-up new laws as they please in order to hang leaders of the vanquished enemy.


Military tribunals cannot make brand new laws.


Those prosecuted at the Nürnberg were not charged with failing to uphold military regulations.


These regulations are underpinned by international treaties.


The Nürnberg Military Tribunal was indeed a kangaroo court insofar as it was an ad hoc "court" made up of the victors for the purpose of administering laws which did not exist on any statute book.

Well, now your changing your tune.

Your original assertions that

In democracies, only legislatures can make laws.

and

Laws are passed by legislatures.

....have been disproven and so you move on.

But, you overlook one extremely important fact - Germany did not agree an armistice - it unconditionally surrendered. Given your earlier latin quote, you'll no doubt be familiar with the concept of Debellatio - and the discussion on how it applied to Germany (no functioning government at the time of surrender) and didn't apply to Japan (functioning government at the time of surrender).

Because debellatio applied to Germany, the Law of Occupation as defined in the Hague Regulations were not considered to apply, and the victorious powers were entitled to assume sovereignty over the territory -which they did, although they were careful to make it clear there would be no annexation.

Having signed the instrument of surrender, and with the Allies assuming sovereignty - a more wide ranging agreement - the Berlin Declaration - otherwise known as the "Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic" was published in June 1945.

The German signatories to the instrument of surrender agreed with such a declaration being made when they signed the Instrument of Surrender, Art 5 of which states....

This instrument of surrender is independent of, without prejudice to, and will be superseded by any general instrument of surrender imposed by or on behalf of the Allied Powers and applicable to Germany and the German armed forces as a whole.

The Berlin Declaration, the imposition of which let's not forget the Germans agreed to, includes the following in the preamble

The Governments of the United Kingdom, the United States of America and the Union of Soviet Socialist Republics, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority

....and Article 11...

The principal Nazi leaders as specified by the Allied Representatives, and all persons from time to time named or designated by rank, office or employment by the Allied Representatives as being suspected of having committed, ordered or abetted war crimes or analogous offences, will be apprehended and surrendered to the Allied Representatives.

(b) The same will apply in the case of any national or any of the United Nations who is alleged to have committed an offense against his national law, and who may at any time be named or designated by rank, office or employment by the Allied Representatives

The procedures, principles etc for the Nuremberg Trials were set out in various charters, agreements and rules of procedure. Also, scanning the legal journals for the period there are any amount of articles, letters etc discussing how matters should proceed, the basis of authority, procedures and any amount of things that apply to the administration of the yet-to-be-established court.

Which would suggest you are wrong in your assertion that

The Nürnberg Military Tribunal was indeed a kangaroo court insofar as it was an ad hoc "court" made up of the victors for the purpose of administering laws which did not exist on any statute book.

Popescu

Jawgap wrote: »

Well, now your changing your tune.

No, I stand by my original statement that only legislatures can make laws in democracies. Your subsequent implication that Germany, having been forced to sign an unconditional surrender to avoid further killing and rape by Russian troops, somehow allowed the occupying countries to prosecute whomever they liked on trumped-up ex post facto laws is groundless.

Reekwind

Popescu wrote: »

There is nothing unusual about total war.

Fair enough. So perhaps you can name the previous occasion in modern European history in which tens of millions of civilians were slaughtered in a campaign of genocide, many in concentration camps?

That the Geneva Conventions were updated in 1949 is proof that protection for civilians was not part of international law and should not have had any part of a legitimate court proceeding. Civilians were brutally treated through the ages during wars and twentieth century excesses should not have been a necessary prerequisite for international law to get up to speed.

What? I'm tempted to let this lie here just to let it sink in. Really, what jumps out is that:

1) You accept that pre-war law did not suffice to judge the Nazis on. By your legalistic (to the point of apologistic) logic, no one should have been persecuted for the mass murder of civilians in WWII. Eichmann and co should have been allowed to retire in peace, with no ramifications for their role in genocide.

2) As if that wasn't abhorrent enough, you seem to be proposing some sort of return to a state of nature: civilians have always been ill-treated in war, this is the natural state of affairs, ergo there is no need for a law to prevent people being ill-treated in war. I wonder if you're also up in arms over the updating of laws on theft to account for credit card theft/scams :rolleyes:

Oddly enough, both the above strains stand in sharp contrast to each other. Funny that. Is your objection to a system of international courts itself or the application of this to Nazi Germany?

It is estimated that 804,000 German civilians were killed by the Allies in WWII and only 1 in 10 German POWs who surrendered to the Russians survived. Conveniently, no Russian was charged with the murder of the Poles at Katyn and Winston Churchill and Harry Truman got away with the civilian deaths in the firebombing of Hamburg and Dresden as well as the summary murders of SS POWs. No consistency, only hypocrisy or a double standard.

Well, duh. I'm not sure what else needs to be said here. No one has argued that the post-war system was perfect or that the application of justice was universal. So I'm not really sure what you get by restating it...

...aside from a more insidious purpose. The idea that the Allies, for all their crimes, were morally as bankrupt as the Germans (and thus in no position to judge) is nonsense. It was not the Allies that launched a global war of aggression (unless you're also questioning Nazi 'war guilt') and it was not the Allies that murdered tens of millions in a campaign of genocide. No one believes that the Allies had entirely clean hands but only a fool would suggest that theirs' was on a scale quantifiably or qualitatively worse than those of the Nazis.

(As an aside, it is entirely false to assert that 90% of German POWs in Soviet captivity died. The actual figures, while hardly pretty, veer between 10-33%)

Treaties are international law.

So what's the sentence for, say, a warship bombarding a hospital (in contravention of the Second Geneva Convention)? Who is the judge in this case? To which court does it go to for arbitration? How can you try individuals for the failings of institutions? (And doesn't law only come from legislatures?)

None of those questions were answered prior to WWII because the international instruments of justice didn't exist. It is only with the creation of the post-war courts that it has become possible to try individuals for breaches of international law. Which is not a surprise: the Conventions were understandings between state parties and never intended as a comprehensive system of international law.

In the pre-UN world, to enforce a breach of the Geneva Conventions would have required using military to force the offender to submit to a judgement. That is, it was the very absence of international courts that made a victors' peace inevitable.

It is foolish for the winners to blame all wrongdoing on the vanquished. Presenting a better example, educating people to be aware of human rights, enshrining protections for minorities, and shining the moral light of day would have achieved more that a handful of hangings.

Right. So the Allies should have ignored all the millions who died (because of the inadequacies of existing law) while preaching that no one should do bad things again. All while much of the continent was little more than a smoking ruin.

Or, or, the Allies could try those most responsible for the deaths of millions, put in place a system on international courts designed to deter such activity in the future and "educate people to be aware of human rights, etc, etc". The latter doesn't preclude taking meaningful action to deliver justice.