From Nuremberg to the Gulf

The time was 2.30 p.m. on Friday 22 March, the place the top floor of the Washington Hotel, Washington DC. Lined up on the platform in the glare of the television lights were nine elderly men, all into their seventies or beyond. Their names were Walter Brudno, Smith Brookhart, Nick Doman, Benjamin Ferencz, Whitney Harris, Charles Horsky, Henry King, Daniel Margolies and Walter Rockler, and they had all been prosecuting lawyers at the Nuremberg Trial and Subsequent Proceedings in 1945-9. Their audience was just as extraordinary: over a hundred men and women who had been lawyers, interpreters, translators, research analysts, secretaries, journalists and photographers at those trials, and who had come from all over the world to attend the 45th anniversary reunion of the International Military Tribunal. A gathering like this was never going to occur again, and the younger generation present trod softly in the presence of people who had cross-examined the men who for our century have been the definitive ‘war criminals’.

The lawyers were to address the reunion on the subject of ‘Nuremberg, the Gulf War and International Law’ – the reason for the intense media coverage. Time had not dealt equally kindly with all of them when it came to putting their thoughts into words, but several spoke with undiminished fluency. As the afternoon unfolded, what was most striking was the strength of the consensus that Saddam Hussein should be put on trial for war crimes, either in person, if he could be caught, or in absentia.

There is a precedent for the latter procedure, since Martin Bormann, head of the Nazi Party Chancellery, was tried in absentia at Nuremberg and sentenced to death. (He is thought to have died, possibly by his own hand, during the last days of the Reich, although, as with several other Nazi figures, alternative legends abound: I once spoke to a former military policewoman who worked at an Allied prison camp in the immediate aftermath of the war, and who recalled that one night there was a break-out and she overheard people saying: ‘We’ve lost Bormann.’) However, Charles Horsky thought that it would probably be diplomatically, politically and legally impossible to try a head of state in absentia, not least because he would still have control of the documentary evidence, and a case based on prima facie evidence would be inadvisable. An unsympathetic replacement government, on the other hand, might make him available to a tribunal, or if he were to seek asylum in another country he could be either tried in absentia or extradited to face trial.

What would Saddam be charged with? He and members of his Revolutionary Command Council could, in the opinion of the Nuremberg prosecutors, be charged with crimes against peace, war crimes and crimes against humanity. The first of these categories would be represented by Iraq’s invasion and annexation of Kuwait, in violation of a 1963 treaty in which it recognised Kuwait’s sovereignty. The second category, war crimes, would include the mistreatment of prisoners of war and civilians: in the case of the former, humiliation by television and also possibly torture (though the tabloids’ screaming headline, ‘The Bastard’s Torturing Our Boys,’ has now been discredited), and, in the case of the latter, deportation. There are Geneva Conventions against these, and also against pillage and plunder and the mistreatment of the wounded and the sick, but as Walter Rockler observed, ‘we must recognise that some of these rules are minor benevolences in the totally unlimited savagery that is war’ – in other words, it is not always realistic to expect them to be observed. He nevertheless felt that violation of them should be actionable.

Crimes against humanity, under the Nuremberg precedent, are associated with a war: that is, they must be taken in conjunction with other crimes within the jurisdiction of a tribunal – they cannot stand on their own. They overlap to a certain extent with war crimes, and can apply to foreign as well as domestic nationals. Thus the Nazis could be charged with the persecution not only of their own Jews but also of Jews in the countries they invaded and occupied. And Henry King believes it can be shown that torture and murder were carried out in Kuwait on political grounds, which in the context of a blatant war of aggression would make them actionable.

The nine Nuremberg prosecutors were agreed that the best way to try Saddam and his associates would be under the auspices of the United Nations, in a court created by a resolution of the Security Council. A court set up by the Gulf States would, leave out the Western powers entirely, which they saw as a disadvantage. Feasibility is not of course the same as advisability, but on this matter the prosecutors were, again, unanimous: it should be done, and done quickly. Benjamin Ferencz spoke for them all when he stated: ‘To do nothing is a slap in the face to Nuremberg, and to all who are working for an advance in international law.’

There was very little on what one might term the debit side of the ledger. At one point Daniel Margolies rose to tackle the unpopular task of determining whether anything the Coalition forces had done during the Gulf War could be classified as a war crime. He pointed out that retreating Iraqi forces were for the most part leaving with their weapons, and it was thus legitimate to consider that they still constituted a threat to Coalition forces; for all its horror, Mutla Ridge was not a war crime. In answer to possible accusations about unlimited bombing, Margolies observed that, first, it is not a war crime, and secondly, that the military perhaps did themselves a bad turn by placing such emphasis in their PR on ‘smart missiles’ – this could lead to the assumption that if the Coalition forces hit something other than a military target, it had been done deliberately. In fact, only something like 7 per cent of the tonnage dropped on Iraq and Kuwait was ‘smart’; the rest was unguided, and targets were missed 70 per cent of the time. With 80,000 tons dropped, civilian casualties were therefore not surprising. Touching on another potentially delicate area, Walter Rockier remarked: ‘The case of Israel and the West Bank is of no relevance in this context, since that aggression happened as the result of a war.’ Nobody took him up on this contentious statement.

The main Nuremberg trial of the major Nazi war criminals, which took place over 1945-6, was the one which attracted most attention from the world’s media, largely on account of its 22 defendants, who included Goering, Hess, Frank and Speer. The 12 later trials (sometimes known as Subsequent Proceedings) began once the main trial was over and went on until early in 1949; among them were the medical trial (Nazi doctors charged with concentration camp experiments), the justice trial (people who held top legal posts under the Nazi regime) and the Farben trial (officials of the chemical manufacturer Farben-industrie AG – some of its former slave labourers are currently trying to claim compensation). Once the excitement of the main trial had run its course, there was a feeling in many quarters that the time had come to start rebuilding nations, and in the climate of shifting international attitudes that marked the approach of the Cold War, public opinion, especially in America, grew increasingly restive over the question of continuing to put on trial people who could be potentially valuable allies in the struggle against the Soviet Union. Several US Senators had things to say about the racial origins of some of the moving spirits behind the trials. The lawyers, researchers and interpreters who stayed on after the main trial to participate in the subsequent ones (or in some cases joined the proceedings at this point) had to carry out their work in this deteriorating atmosphere, so it is not surprising that an extremely high level of commitment was widespread: the main Nuremberg trial, that great event, was a slightly different thing and in a sense everybody wanted to be part of it, but it is perhaps among those involved with the subsequent trials that one will find the people who felt most passionately of all about trying Nazis – and in most cases that passion has not diminished over the years.

Taken all in all, Nuremberg was an experience of rare intensity, with all sorts of ingredients that go very deep: the feeling of being part of a great endeavour, a passionate moral and ideological commitment, personal journeys, some profoundly painful memories. And for the people who shared this experience it is a binding force. On the second day of the reunion, the former courtroom photographer Ray D’Addario showed some old newsreel footage, which was silent, of the trials in progress, and all over the darkened room you could hear a low chorus of murmurs and whispers as people identified themselves and their friends while the camera slowly panned over the courtroom. At the banquet which ended the reunion the speaker, Drexel Sprecher, honoured various different categories of Nuremberg personnel by inviting them to stand and be applauded. First were all the married couples who met in Nuremberg – a forest of people stood up. Next came the interpreters, the translators, the research analysts, the interrogators, the press, the workers on all the cases in the subsequent trials, the court reporters, the typists, the archivists; then anyone who was a refugee, and anyone who was a concentration camp survivor. In the end, everybody was on their feet.

The lasting personal impact of Nuremberg was apparent in every statement and every conversation in the room. Henry Cumoletti, an ancient-looking New Yorker, trembled as he said: ‘I’ve been waiting forty-five years to tell people about that experience, and the friendships I formed with people who were there – I treasure it all. We may never see each other again; too many of the people who were there are gone. We live in dangerous times, and I’m concerned about the future. The Holocaust could happen again – I see the seeds of it.’ Ted Ferstermacher, a prosecutor, told me: ‘Nuremberg is like a club. There was something magical about it. It changed my whole philosophy, my view of power, what I did as a lawyer – everything.’ And Al Steer, an interpreter, added: ‘We took part in a climactic event, and we took a step forward. Et quorum pars minima fui. We should be proud.’

There seemed to be no critical voices. But then Paul Weinberger, a lawyer who had raised objections to a trial of Saddam, came up to me and said: ‘These people are captives of their history.’ And someone else remarked: ‘These are people who have continued to live Nuremberg, in many ways, but there are others who, although it made a strong impact on them, went on to do other things and to look ahead. I’m one of those. When it comes up it comes up, but otherwise we don’t think about it.’ But what the majority was saying, in different ways, was that there was no sense in having had those trials then unless we have one now.

In some ways, there are strange echoes of 1945 in 1991. In the Soviet Union’s recent unexpected abdication of its role as a world power there are echoes of its enfeeblement in 1945, after it had lost 20 million soldiers and civilians, In parts of Eastern Europe now there are echoes of the kind of reconstruction that was starting up then in Germany. And now, as then, America seems to be the dominant power in the world, and some of its citizens are standing up and saying big things about morality and about the responsibility of a superpower to right wrongs and teach lessons. But at least in 1945 everyone could see that victory on the Eastern Front had been every bit as important as victory on the Western Front, and when the trials were set up there was an attempt to weight, the representation of the four victorious powers equally and fairly; if it was victors’ justice, there were four different kinds of victor. In the current situation, with coalition forces made up of so many nations with varying degrees of participation in the Gulf War, it would be much more difficult to prevent a trial from looking like an American show. Charles Horsky acknowledged something of this hegemony, from another angle perhaps, when he observed that if the United States doesn’t participate in a tribunal there probably won’t be one.

The problem is that it is tempting, especially to those who have such a strong professional, ideological and emotional investment in the trials of the Forties, to try to make another Nuremberg out of something which is inherently very different. There was no mention by anyone at the reunion of the fact that whereas even the Nazi incarnation of Germany had a system of law that was broadly related to those of the countries which were trying it, attempting to impose Western-designed international law on a predominantly Islamic region would be a different matter altogether. Even at Nuremberg the differences between the Allies’ judicial systems, such as they were, caused problems: one Nuremberg lawyer gave it as his view that, due to misunderstandings about procedure, the accused didn’t get as good a defence as they should have done. Soviet interpretation of the nature and purpose of a trial caused serious difficulties at Nuremberg. Could the West work in tandem with Kuwait? America is likely to be the most powerful presence in any ‘Gulf tribunal’, but the voices emanating from its Administration are European, Jewish, Wasp, not Arab. Are these legal and cultural differences and their potentially disastrous results being taken into account?

Nuremberg people who have spoken to me about the rightness of the Nuremberg trials and the benefits of holding such trials now would probably answer by saying that if one looked at the whole of the Nuremberg picture, including the years before it as well as the details of the trials themselves, one could probably find parallels for all the problems, the hypocrisies, the awkward and unsavoury aspects, that trouble people about a Gulf tribunal today – the atrocities and breaches of treaties that nobody did anything about, the invasions that were ignored, the juggling with the law, the undermining objections – and yet those trials had enormous symbolic significance, were a form of lightning-conductor for the anger, grief and vengefulness that abounded in Europe, were a means of liberating many Germans from the burden of guilt by association, and were a kind of closure after which everyone could start again. I don’t have any countering argument for that: it might just be that forty years after a Gulf tribunal good things would remain and bad things would have faded from memory. But it does little to diminish my awareness of the dangers in the present situation. In the meantime the young man sitting next to me at the prosecutors’ debate is working with the Kuwaiti Government to establish whether evidence can be collected for the prosecution case for a war crimes trial.