How to Indict Perpetrators – Nuremberg’s History Lessons

The Nuremberg indictments show that a history of hate speech and disenfranchisement preceded the violence against Jews in Nazi Germany. They offer us a way of thinking through the consequences of hate speech for our time.

That the Nuremberg speeches, notably by Robert Jackson and Hartley Shawcross, made much of the ‘iconophilia’ built up around Adolf Hitler is now a truism. Jackson, as is well known, even implied that the culture of Nazi Germany and its political manoeuvres are object lessons for human civilisation.

But beyond this ‘iconophilia’, the actual Nuremberg indictments offer us such lessons. Although Hannah Arendt and others have already examined the nature and style of totalitarianism, several features of the indictments should arrest us not only for their analysis of Nazi Germany but for their implicit prognosis for humanity and the future.

The indictments of the war criminals are important documents for the history they trace: a genealogy of hate, the transformation of politics into demagoguery, the mutation of state machinery and processes into an apparatus of witch-hunting and murder, and the toxification of culture, speech and mindsets through propaganda and cultural nationalism.

The indictments appear in the form of four ‘counts’, as the trial documents term it. Count one is “the common plan or conspiracy”, count two is “crimes against peace”, count three is devoted to “war crimes” and count four deals with “crimes against humanity”. While each of these are important, two stand out: the first and the fourth.

The conspiracy of the state

Under count one (conspiracy), the prosecutors noted that the Nazi ‘conspirators’, as Goering, Speer and the defendants being tried are called throughout proceedings, reduced the Reichstag (the parliament) to “a body of their own nominees”. But this was not enough, for they sought nothing less than total control of the German life and mind.

Under count one, the indictment read: “to instil fear in the hearts of the German people”, the [Nazi] conspirators “established and extended a system of terror against opponents and supposed or suspected opponents of the regime”. They did so by imprisoning all suspect people and “subjected them to persecution, degradation, despoilment, enslavement, torture and murder”.

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As the indictments record it: the conspirators went after the trade unions, the priestly and monastic orders and pacifist groups – in short, any civil society organisation or group that even remotely resembled opposition, ideological, intellectual or political.

But instilling fear, the prosecutors noted, was not possible through reprisals alone: it requires the identification of an internal enemy. To this end, says the indictment, the state encouraged hate speech targeting the so-called enemy.

Nuremberg’s prosecutors placed considerable importance on the rhetoric of hate, the enunciations of anti-Semitism, on the actual speeches calling for war against the Jews. They treated Nazi speech acts as preliminaries to extermination-acts. A language of genocide was beginning to appear by the early 1930s, the prosecutors noted, citing examples from Rosenberg, Ley, Goering, Ley and Streicher who “openly avowed their purpose”:

Anti-Semitism is the unifying element of the reconstruction of Germany … Germany will regard the Jewish question as solved only after the very last Jew has left the greater German living space … Europe will have its Jewish question solved only after the very last Jew has left the Continent. 

We swear we are not going to abandon the struggle until the last Jew in Europe has been exterminated and is actually dead. It is not enough to isolate the Jewish enemy of mankind – the Jew has got to be exterminated. 

The second German secret weapon is anti-Semitism, because if it is consistently pursued by Germany, it will become a universal problem which all nations will be forced to consider. 

The sun will not shine on the nations of the earth until the last Jew is dead.

By citing actual recorded quotes from speeches and rallies, the prosecutors were placing words with the power to injure and actions designed to injure in a linear sequence.

Nazi campaigns in the 1930s, noted the Nuremberg prosecutors, were infused with an ideology of the ‘master race’, and this ideology “reshaped the educational system and particularly the education and training of the German youth”.

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In addition, they “placed a considerable number of their dominated organisations on a progressively militarised footing”, indicating organisations like Hitler Youth but also noting the militarism that slowly crept into Nazi vigilantism – based on the idea that the Germans must arm themselves against the usurping Jews – through the 1930s.

The Nazi state was gearing up to the climax of 1939-1945: extermination. What count one of the indictments did was to show how the Nazis did so by systematically altering the state’s role, by creating and reinforcing its cultural and other apparatuses to control opposition, spread hatred and disenfranchise communities.

The state methodically prepared for war and ensured that the civil society lived in terror by employing networks of terror. And of course, it instituted racism – expanded to mean, simply, discrimination against a particular community – as a state policy.

Inhuman crimes, by humans

The prosecutors, under count four of the indictment, delineated the ‘crimes against humanity’ which had been earlier defined by Article 6 of the Nuremberg Charter.

Count four was organised around two principles: (a) “murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war”, and (b) “the persecution on political, racial and religious grounds in execution of and in connection with the common plan mentioned in count one”.

Nazi Germany’s air force commander Herman Goering being tried for war crimes at Nuremberg. Photo: Wikimedia Commons/Raymond D’Addario. Public domain.

Under (a), the prosecutors described how “the defendants adopted a policy of persecution, repression and extermination of all civilians in Germany who were, or who were believed to be, or who were believed likely to become, hostile to the Nazi Government”. The judicial process was ignored and people were incarcerated, “subjected to persecution, degradation, despoilment, enslavement, torture and murder”, says the indictment.

For this purpose, the “agencies of the state and Party were permitted to operate outside the range even of Nazified law and to crush all tendencies and elements which were considered “undesirable””.

The employment of state offices, bodies and agencies to demoralise and destroy any real or potential enemies became policy. The prosecutors noted the state’s transformation of its various agencies into tools of terror, employed to silence opposition and muzzle resistant voices.

That these voices were from within the country meant that the Nazi state turned against segments of its own population, and did not need to project a foreign enemy to ramp up its militarisation or terror tactics.

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Under (b), the prosecutors noted how persecutions against the Jews were “also directed against persons whose political belief or spiritual aspirations were deemed to be in conflict with the aims of the Nazis”. The extermination followed, the prosecutors note, the systematic disenfranchisement and terrorising of Jewish citizenry.

This mode of preparing the indictment brief is important because Nuremberg’s prosecutors outline a stage-by-stage account of persecution that culminates in the camps. It is the run-up that is crucial, for it shows how, over the years, the Nazis had set about harassing, persecuting and disenfranchising Jews, resistant groups and those who didn’t toe the official (Party) line.

‘Planning’ the conspiracy against the Jews/humanity over more than a decade is central to the indictments, the prosecutors demonstrate. In the appendix to the indictments, the prosecutors listed against each of the 21 accused Nazis, their role in putting into operation the ‘planning’ described in counts one to six.

For higher officers like Goering and Ribbentrop, the prosecutors record how they “promoted the accession to power of the Nazi conspirators”, “participated in the planning and preparation of the Nazi conspirators for wars of aggression” and participated in the crimes against humanity.

Thus, the prosecutors made sure history recognises not the ones who pulled triggers to kill the Jews, but those like Karl Doenitz, Herman Goering, Albert Speer and others who plotted, planned and policed the policies that caused the lower-level Nazi functionaries to pull the triggers.

In other words, the responsibility of office was implicitly invoked to measure the intensity of their crimes: the higher the office they occupied, the greater their responsibility in the persecution of their citizens and culpability in crimes against peace and humanity.

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Nuremberg brings indictments against those in power, the brains behind the operations, who were able to enunciate hatred in public forums in their speeches and diktats, because they had first planned and put in place the machinery where hate speech and vituperative dialogue targeting segments of the population were not only excused but even welcomed.

The term ‘conspirator’ is accurate, as Nuremberg showed, because persecution is not an instinctive or unthought-out action: it is plotted and planned to the last detail, well in advance.

Nuremberg as a prehistory of the future

Nearly 75 years later, the UN would acknowledge the linear sequence (hate speech à extermination) first documented at Nuremberg in its 2019 ‘Strategy and Plan of Action on Hate Speech’ launched by the Director General with the words, “over the past 75 years, the world has seen hate speech as a precursor to atrocity crimes”. The UN mentions the Holocaust as a clear example of media manipulation of hate:

The media campaigns contributed significantly to normalising atrocity crimes. This facilitated the Holocaust, the planned and systematic persecution and annihilation of some 6 million Jewish children, women and men …

Nuremberg offers us a way of thinking through the consequences of hate speech for our time.

Nuremberg prosecutor Telford Taylor at one of the trials. Photo: Wikimedia Commons/OMGUS Military Tribunal. Public domain.

Telford Taylor, lead counsel for the prosecution, writes in his account of Nuremberg, Anatomy of the Nuremberg Trials: A Personal Memoir that the Versailles Treaty and the subsequent trials of Germans portrayed as war criminals after World War I were dangerous moves by the British and Americans:

The Allies presented to the Germans a list of 854 individuals, including many famous military and political figures, for turnover … There was an immediate explosion of indignation and defiance in Germany, but within two weeks the immediate crisis was resolved.

Taylor implicitly acknowledges the consequences of these post-World War I moves.

Robert Jackson, counsel for the USA at Nuremberg, mentions Versailles twice in his opening remarks and states that Germany under Hitler ‘violated’ the Treaty, but does not see a cause-effect link between the Treaty, the humiliation and the resultant Nazi movement.

That the Versailles Treaty and the aftermath produced Adolf Hitler is stated baldly by Franz Von Papen in his Memoirs. Papen, who was one of those who manipulated Hitler to power in 1933, and who was let off at Nuremberg, writes:

Hitler was a corollary of the punitive clauses of the Treaty of Versailles … Hitler and his movement were in essence a reaction against hopelessness, and for that sense of hopelessness the victorious powers must bear their full share of responsibility.

Thus, the future of Nazi Germany, 1939-45, and of the millions who perished under it, was written into the events around World War I, the humiliations meted out and the hate that lay smouldering under the German soil.

If Nazi Germany emerged from a particular past, Nuremberg, Taylor suggests, can be a template for the future. He writes:

“Nuremberg” – a name which conjures up the moral and legal issues raised by applying judicial methods and decisions to challenged wartime acts.

He elaborates this claim through the answers to “three major questions: How necessary was it?” “How well was it done?” “How successful was it?”. To the first question, he answers “absolutely”. To the second he answers with considerable detail about the process, the defence’s claims and counterclaims.

To the third, Taylor offers a more complicated answer. Speaking of the Tribunal’s creation of the ‘crimes against peace’ as a doctrine, he admits that “the use of that principle to punish individuals for actions committed several years before the principle was first applied” is a problem. But he also states:

[Surely] there would be nothing unlawful about creating such a principle for the future … to establish a precedent for punishing crimes against peace in the future …

Taylor, who later fought McCarthyism and opposed the Vietnam War – perhaps born out of his engagement with the Nazis at Nuremberg – concludes with a major point:

The laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunising victorious nations from scrutiny. The laws of war are not a one-way street.

In other words, Taylor sees Nuremberg as giving us legal, moral and ethical principles to fault and indict not just Nazi war criminals but any nation for ‘crimes against peace’ and ‘crimes against humanity’ in the future. Nuremberg is future-directed, and offers the world a set of codes by which the state, its machinery, its propagandists and apologists, and its ‘enforcers’ may be measured.

The Nuremberg Principles, accepted by the UN in 1950, two years after the Universal Declaration of Human Rights and the trials themselves, tell us that watching the state, especially those in power who innocuously at first and then more openly set about planning persecution in times of peace so that they can go to war, is crucial.

A Nazi-era poster describing the “Nuremberg Laws”. It includes lists of “allowed” and “forbidden” marriages based on ideas of racial purity. Photo: Wikimedia Commons. Public domain.

Nuremberg’s focus on the powers that planned for decades what could be done to the Jews and prepared for it, calls for attention to official machinery and everyday hate, the brazen political and the subtle quotidian when these are all focused on repression and disenfranchisement.

The indictments of Nuremberg refuse to see the camps and the exterminations as just war-work. There is, the indictments show, a history to the violence: a history of hate speech, disenfranchisement and disempowerment. By tracing these plans and plots, the Nuremberg indictments are object lessons as to where a state, bent on genocide, is headed.

Nuremberg shapes the way we approach war crimes but also genocide, hate speech and systemic disenfranchisement. Nuremberg is a history lesson for our collective future.

The choice of Nuremberg itself for Nazi war trials was not accidental, but had its roots in history. Nuremberg was the capital of annual Nazi rallies, and the location from where the anti-Semitic ‘Nuremberg Laws’ originated. Goering, Speer, Ribbentrop and others were tried and convicted at the very place where they had once flexed their muscles. History would not, they discovered in 1945, treat them kindly although they had planned and called for the ‘Thousand Year Reich’.

It is poetry that teaches us a moral lesson about history. From W.H. Auden:

I and the public know
What all schoolchildren learn,
Those to whom evil is done
Do evil in return.

Pramod K. Nayar teaches at the University of Hyderabad.