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VINE VOICEon 2 July 2013
Telford Taylor was a Harvard trained lawyer who was chosen to serve with Robert H Jackson, the Chief Prosecutor at the International Military Tribunal (IMT), at the Nuremberg trials of the leading Nazi war criminals. He was not motivated by expertise in international law, the laws of war or anti-German feelings but by the attraction of the undertaking itself. In due course he was appointed Chief Council for War Crimes of which a dozen, presided over by American judges applying international laws of war, were held between 1946 and 1949. Taylor makes the point that the IMT was no ordinary court and the Nuremberg principles which were adopted internationally were not the original source of the 'laws of war'. Until Jeremy Bentham invented the phrase 'international law', the accepted expression had been the 'law of nations'. In practice they were the customs and rules governing the conduct of soldiers which required respect for non-combatants in conquered countries. The phrase, which is still applied today, is that war is by a state against a state, not a state against the peoples of other countries.

Humanitarian concerns led to the development of principles such as the humane care of prisoners of war. Earlier concepts of fighting to the death or slaughtering those who had refused to surrender once defeated were disparaged. Hence when the promise to the Mameluke garrison at Jaffa that surrendering to Napoleon would spare their lives was broken France was roundly condemned by her European rivals. During the nineteenth century Francis Leiber wrote a code of ethics covering war while in 1864, following the Crimean War, a dozen European nations signed a 'Convention For the Amelioration of the Condition of the Wounded in Armies in the Field'. In 1899 a 'Convention with Respect to the Laws and Customs of War on Land' specifically banned the use of dum-dum bullets and prohibited declarations of 'no quarter'.

The Hague Conventions (1899 and 1907) had not made provision for states or individuals to be held liable to criminal charges for declaring and engaging in war. German military conduct in the First World War changed public opinion to the extent that there were demands the Kaiser be tried for German 'war crimes'. Provisions were made in the Treaty of Versailles to bring the Kaiser before an international tribunal but the Dutch authorities refused to hand him over. Another provision of the Treaty was that the German government should hand over its own citizens for trials on war crimes charges before tribunals established by the victorious powers. This smacked of victors' justice and it was decided to try the men before the German Supreme Court in Leipzig where prosecutions were few and often unsuccessful. There was much stronger condemnation of 'crimes against humanity and civilisation' by Turks against Armenians in 1915.

Nuremberg was a political trial using legal proceedings. Taylor describes the extensive discussions that took place before agreement could be reached on what the charges were and against whom they should be laid. Under pressure from the Americans suggestions of summary execution of the Nazi leadership were dismissed. Jackson's refusal to agree to the mass transportation of people to Russia provoked undeserved allegations of being 'soft on Germany'. Taylor faced similar accusations when he opposed the idea, prominent amongst libertarian New Dealers, that all members of the SS should be put to death. Taylor's opinion was based on his experience when billeted in Corsica where the Corsicans he spoke to all stated the SS had behaved very correctly. Ultimately, the trial was dominated by the United States whose lawyer-politicians, Jackson and Biddle, neither trusted the Russians nor were willing to concede anything to Soviet legal ideas. Jackson wrote, 'I think we must utilize Committee 4 as the basis for keeping control of the bulk of the case in American hands'. As Taylor wrote, 'For "Committee 4" read "Jackson".

Jackson has often been portrayed as the heroic prosecutor but his cross-examination of Goering was a disaster. He had assumed Goering would deny the Nazi regime's criminal intent whereas he admitted and tried to justify it. Jackson regarded Goering as a common criminal whereas Goering regarded himself as a leader of a legitimate regime. By contrast Maxwell-Fyfe tore holes in Goering's testimony, demonstrating he had been lying on oath, forcing him into pleading an absence of knowledge and a failure to remember dates and names. The trial lasted for a year and was described by Rebecca West as 'boredom on a huge historic scale'. Politics played its part with the French and Soviet judges assuming the British and Americans would have the main share in producing the Tribunal's decisions, although everything was subject to discussion.

Eleven defendants were sentenced to death, seven to various terms of imprisonment and three acquitted. Taylor admits the Soviet Union had to be involved in the trials although the Moscow trials had undermined confidence in Soviet justice which was reinforced by Soviet attempts to include the Katyn massacre as a German war crime. Subsequent war crime trials, including those of Eichmann, Demjanuk, Barbie and those guilty of the My Lai massacre, have been based on national rather than international law. Criticism of Nuremberg as victors' justice remains and Taylor closes with the opinion that 'the laws of war do not apply only to suspected criminals of vanquished nations. There is no moral or legal basis for immunising victorious nations from scrutiny'.

Perhaps he is right but the fact is that in countries where the rule of law prevails there is a better chance of receiving justice than under totalitarian regimes. In addition, civilised countries appear motivated by punishment, redress and rehabilitation (however imperfectly applied) than by revenge. With the exception of Hess, who was kept in prison for political purposes at the behest of the Russians, those who were eventually released, especially Speer, were castigated by the liberal Left for their admissions of guilt. A must read book. Five stars.
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