It happened today - November 20, 2015

On November 20 1945 the Nuremberg Trials began. I still think it was a mistake.

Not, of course, from any sympathy with the defendants. Rather, I’m with Churchill that the Nazi leaders should have been shot on sight. Their “crimes” were not crimes in the normal legal sense. They were enormously depraved acts on a vast scale. They were acts of war, not just against the Allies, or Jews, but against all mankind. And calling them “war crimes,” even when motivated by well-meaning righteous indignation, is a confusion of categories.

The problem is not primarily that there was no formal law that really applied. It is true that under the actual laws of Nazi Germany, and certainly given its governing philosophy, the acts of its leaders were “legal.” It is true that the court was convened on an ad hoc basis to try the defendants under rules that were not agreed on at the time. And it is true that these limitations are connected with the main problem. But the main problem is cosmic in scale.

The reason trying the Nazis did not make sense is that no act of human judgement could possibly assign a suitably severe punishment and nothing the defendants could say could possibly excuse their actions or reduce their responsibility. They broke the law written on the human heart; they defiled the image of God in whose image men are made; they denied the very existence of right and wrong. It’s not the sort of thing where you issue a ticket, weigh mitigating factors and mete out a carefully reasoned sentence. It’s the sort of thing you crush under foot.

I am not insensible to the need for formal proceedings for a number of the defendants. There is a question how far down the Nazi party or German governmental, hierarchy the shoot-on-sight order should have applied. And clearly in marginal cases people should be given a chance to defend themselves, to plead compulsion, necessity, ignorance or some other sort of mitigating circumstances including mistaken identity.

One of the defendants given a measured, rational sentence (15 years) was the Foreign Minister from 1932 to 1938 and “Protector of Bohemia and Moravia” from 1939-43 Konstantin von Neurath, who was on leave after 1941 and quit in 1943. Arguably he was caught up in something he did not really understand, direct or sympathize with, only seeing the truth too late. Banker Hjalmar Schacht was acquitted outright; part of the economic administration until the late 1930s, he was in a concentration camp by 1944. So was Hans Fritzsche, head of the news division of the Nazi Propaganda Ministry, whose voice resembled that of Goebbels. And though I think he ought to have been imprisoned for abetting the horror he’s not on my shoot-on-sight list.

I understand the need to try this sort of person fairly on the basic charge “Were you an enthusiastic Nazi or a German patriot dragged into a nightmare?” But Hermann Goering? Martin Bormann? I would say you must be joking except it is not a fit subject for a jest.

The only suitable way to carry out trials of this sort is to target secondary figures to see how secondary they were. Those at the top deserve a bullet in the head as soon as they are positively identified, a point underlined in my mind by the fact that after the Israelis tracked down, captured and tried Adolf Eichmann, they executed him even though Israel did not and does not have capital punishment. These are cases where the law is insufficient.

Applying it anyway is a mistake and sets a pernicious precedent. Indeed, one bad result of the Nuremberg proceedings is the way they reinforced the mistaken impression that there was such a thing as “international law” that could and should be trusted to bring order to the world. It is not so in practice, and many horrible tyrants are never punished because there is no international police force.

The ad hoc nature of such tribunals also illustrates their arbitrary and sometimes even unjust nature. Indeed, the Nuremberg proceedings involved Stalinist judges and prosecutors some of whom ought themselves to have been shot, especially Roman Rudenko, who after the trial presided over a former Nazi concentration camp run by the NKVD in which over 10,000 inmates died from deliberate mistreatment. But the problem runs even deeper.

Treating the mass evil of Stalinism, Nazism or today the deeds of ISIL as ordinary crimes downplays the depth of disagreements between political philosophies that makes the world so chaotic and dangerous, a troubling form of intellectual disarmament. When someone is tried for murder, it happens within a framework in which everyone including the accused agrees that murder is wrong. The Nazis didn’t think mass murder was wrong. Their “crime” was being Nazis and acting on it, and it was a metaphysical rather than legal transgression.

In denying that leading Nazis should have been tried I am not diminishing their evil. I am emphasizing it. A higher judge can weigh their guilt and punish them properly. We can only send them to that tribunal as swiftly as possible.