Lady Justice statue in law office. Figurine with blindfold, balance and sword is personification of moral force in judicial system and it's origin is Lustitia, goddess of Justice in Roman mythology

Nuremberg, Eichmann, and Extra-Judicial Murder

Nazi Germany – the totalitarian rule of Adolf Hitler and the Nazi Party from 1933-1945 – is infamously remembered for two things: World War II and the Holocaust.

After pulling out of the League of Nations, rearming, annexing Austria, remilitarizing the Rhineland, allying with Mussolini’s fascist Italy, stripping German Jews of their civil rights, occupying the Sudetenland, signing a non-aggression pact with the Soviet Union, and turning into a fascist dictatorship, Germany invaded Poland on September 1, 1939, and then conquered much of Europe.

The Holocaust that occurred during World War II is universally recognized as the greatest example of systematic, state-sponsored murder. The Nazis killed millions of Jews in their quest to rid Europe of them. Millions of Poles, Gypsies, Serbs, Slovenes, Ukrainians, Belarusians, and other “non-Aryans” were also killed, as well as Germans that were disabled, institutionalized, homosexual, communist, or opponents of the Nazi regime. The horrors of concentration camps like Auschwitz, Treblinka, and Buchenwald are well known, as are the Nazi doctor medical experiments on children, the slave labor, the death marches, the gas chambers, and the mass graves.

The Nazi’s are universally reviled and, rightly or wrongly, are the first choice of comparison when a modern oppressive regime needs to be made into an evil bogeyman.

After Germany was finally vanquished by the Allies in May of 1945, twenty-four Nazis were put on trial in Nuremberg, Germany, from November 20, 1945, to October 1, 1946, for war crimes and crimes against humanity. The Soviet Union, France, Great Britain, and the United States supplied judges and prosecutors. The U.S. prosecutor was Supreme Court Justice Robert Jackson. The defendants had German attorneys.

Twelve defendants were sentenced to death by hanging: Martin Bormann, Hans Frank, Wilhelm Frick, Hermann Göring, Alfred Jodl, Ernst Kaltenbrunner, Wilhelm Keitel, Joachim von Ribbentrop, Alfred Rosenberg, Fritz Sauckel, Arthur Seyss-Inquart, and Julis Streicher. The hangings were all carried on October 16, 1946. Bormann was not hung because he was tried in absentia. Göring committed suicide the night before his scheduled execution, Seven defendants were sentenced to prison terms; three were acquitted; one committed suicide before the trial began; one was declared medically unfit for trial.

This does not mean that the Nuremberg Tribunal was ideal or the only option. The judges came only from the accusing nations and also acted as the jury. And of course, the Soviet Union was itself guilty of gross crimes against humanity. And then there is the matter of the United States dropping atomic bombs on Japanese civilians. On World War II in general, see my “Rethinking the Good War.”

Three of the most notable Nazis committed suicide as the war was coming to an end: Adolf Hitler, Heinrich Himmler, and Joseph Goebbels. One, however, escaped, but was found later in South America, Adolf Eichmann.

Eichmann joined the SS in 1932 in Austria. After a series of promotions, he became a 1st Lieutenant and, through the Central Office for Jewish Emigration which he had formed, began to forcibly expel Jews from Austria. After the beginning of World War II, Eichmann became an SS captain, major, and then lieutenant colonel. In 1944, he went to German-occupied Hungary and oversaw the deporting of Hungarian Jews to death camps.

Eichmann fled Hungary after the Soviets invaded in 1945. After being captured by the U.S. Army at the end of the war, Eichmann escaped, hid out in Germany, went to Italy, and finally settled in Argentina.

Eichmann was discovered by Israeli intelligence in 1959. After a period of extensive surveillance to confirm his identify, Eichmann was captured on May 11, 1960, by team of Mossad (Israel’s official intelligence agency) and Shin Bet (the Israeli security agency) agents and taken to Israel.

Eichmann was charged with fifteen counts, including war crimes and crimes against humanity. His trial began on April 11, 1961. Three judges presided over the trial. The chief prosecutor was the Israeli Attorney General. Eichmann had two defense attorneys. Ninety Holocaust survivors were called as witnesses for the prosecution. Dozens of former high-ranking Nazis sent the court depositions as witnesses for the defense. The trial lasted for fourteen weeks. Eichmann was convicted on all counts on December 11. He was sentenced to death on December 15. After an appeal by Eichmann, Israel’s Supreme Court upheld his conviction on May 29, 1962. Requests for clemency were received by the court. The Israeli prime minister reject an Eichmann appeal for mercy.

Eichmann was hung on May 31, 1962, and then cremated.

On May 2, 2011, Osama bin Laden was killed by U.S. Navy Seals in his home in Pakistan on the order of President Barack Obama. He had been on the FBI’s “Ten Most Wanted List” for the bombings of U.S. embassies in Tanzania and Kenya, but not for the 9/11 terrorists attacks to which he was allegedly connected.

On September 30, 2011, Anwar al-Awlaki was killed by a U.S. Predator drone strike in Yemen on the order of President Barack Obama after being put on a secret government hit list. He allegedly inspired and incited others to commit acts of terrorism against the United States.

Whether bin Laden or Awlaki ever killed anyone or actually committed a crime will never be known since the president and his agents served as prosecutor, judge, jury, and executioner.

As a candidate for president, Obama claimed that he didn’t even believe the president had the right to arrest and hold a U.S. citizen without charges. When asked in a Boston Globe interview if the Constitution permitted the president to detain U.S. citizens without charges as unlawful enemy combatants, Obama replied: “No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.” Obama’s campaign literature makes it clear that as president he would “restore habeas corpus so that those who pose a danger are swiftly tried and brought to justice and those who do not have sufficient due process to ensure that we are not wrongfully denying them their liberty.”

My point is simply this: If the leaders of one of the most evil, despicable, and murderous regimes in history were entitled to their day in court before their execution, then certainly thugs like bin Laden and Awlaki were.

In a memorandum to President Roosevelt dated January 22, 1945, by Secretary of War Henry Stimson, Secretary of State Edward Stettinius, and Attorney General Francis Biddle, U.S. policy toward the “Trial and Punishment of Nazi War Criminals” was laid out:

After Germany’s unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantages of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn these criminals into martyrs, and, in any event, only a few individuals could be reached in this way.

We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, Would command maximum public support in our own times and receive the respect of history. The use of the judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.

The German leaders and the organizations employed by them, such as those referred to above (SA, SS, Gestapo), should be charged both with the commission of their atrocious crimes, and also with joint participation in a broad criminal enterprise which included and intended these crimes, or was reasonably calculated to bring them about. The allegation of the criminal enterprise would be so couched as to permit full proof of the entire Nazi plan from its inception and the means used in its furtherance and execution, including the prewar atrocities and those committed against their own nationals, neutrals, and stateless persons, as well as the waging of an illegal war of aggression with ruthless disregard for international law and the rules of war. Such a charge would be firmly founded upon the rule of liability, common to all penal systems and included in the general doctrines of the laws of war, that those who participate in the formulation and execution of a criminal plan involving multiple crimes are jointly liable for each of the offenses committed and jointly responsible for the acts of each other. Under such a charge there are admissible in evidence the acts of any of the conspirators done in furtherance of the conspiracy, whether or not these acts were in themselves criminal and subject to separate prosecution as such.

Saddam Hussein was captured by U.S. troops, turned over to Iraqis, tried, sentenced to death, and hung. Yes, perhaps it was a kangaroo trial with a pre-ordained verdict, but my point in bring him up is simply that even though many people in the United States and its government accused Hussein of committing unspeakable crimes against the Iraqi people, compared him to Hitler, and thought he was responsible for 9/11, he was still not summarily executed by U.S. troops.

Awlaki should likewise have been captured and brought to justice for his alleged crimes, for as congressman and presidential candidate Ron Paul has explained:

Awlaki was a U.S. citizen. Under our Constitution, American citizens, even those living abroad, must be charged with a crime before being sentenced. As President, I would have arrested Awlaki, brought him to the U.S., tried him and pushed for the stiffest punishment allowed by law. Treason has historically been judged to be the worst of crimes, deserving of the harshest sentencing. But what I would not do as President is what Obama has done and continues to do in spectacular fashion: circumvent the rule of law.

One of the prosecutors at Nuremberg who is sill living, Benjamin Ferencz, wrote a letter to the New York Times just after the killing of bin Laden:

Your superb report “Behind the Hunt for Bin Laden” leaves key questions unanswered. Jubilation over the death of the most hunted mass murderer is understandable, but was it really justifiable self-defense, or was it premeditated illegal assassination?

The Nuremberg trials earned worldwide respect by giving Hitler’s worst henchmen a fair trial so that truth would be revealed and justice under law would prevail. Secret nonjudicial decisions based on political or military considerations undermine democracy. The public is entitled to know the complete truth.

Ferencz also told London’s Guardian newspaper:

The picture I get is that a bunch of highly trained, heavily armed soldiers find an old guy in pyjamas and shoot him in the chest and head, and that borders, without access to more facts, on murder. Even Göring had a right to trial.

And, as evil as they may have been, so did bin Laden and Awlaki.

Originally posted on on October 20, 2011.