Soviet Judgment at Nuremberg
This truly groundbreaking book should be read by every lawyer with an interest, general or otherwise, in the law of armed conflict (LOAC) and the International Military Tribunal (IMT) in particular. Author Francine Hirsch, a history professor at the University of Wisconsin-Madison, deserves high praise as the first scholar to publish a comprehensive study of the role played by the Soviets in the prosecution of Nazi leaders at the IMT. Prior to the publication of Soviet Judgment at Nuremberg, the history of the IMT was viewed almost exclusively through Western eyes, with Brigadier General Telford Taylor’s personal memoir—Anatomy of the Nuremberg Trials—serving as the foundation for understanding the event.1 By looking at Soviet participation in the war crimes prosecution, Hirsch now gives a new and valuable perspective on what happened at Nuremberg in 1945 and 1946. Or, as she puts it, her book “presents a new history…by restoring a central and missing piece: the role of the Soviet Union.”2
The Soviets were “key actors” in the creation of the IMT and were the first among the Allies to envision a “special international tribunal” that would prosecute “the Hitlerites” (as Stalin referred to them) for war crimes. While Stalin and V. Molotov (his foreign minister) would have been happy to summarily hang or shoot the senior members of Hitler’s government, they envisioned an international trial as a “grand political spectacle whose outcome was certain”—like the Moscow Trials of 1936 to 1938.3 The National Socialists would be executed at the end of the legal proceedings but not before “the depths of Nazi depravity” were exposed for all to see. Also, an international tribunal would establish “a legal claim” for reparations, which Stalin and Molotov knew was required if Russia were to recover from the war that had killed millions and destroyed thousands of villages, cities, and industries.4
After the trials got underway in Nuremberg’s Palace of Justice on 20 November 1945, the Soviets quickly learned that the trial they thought they were getting was not what was going to happen. Stalin believed that the evidence of war crimes committed by the Germans was so overwhelming that the IMT would be open-and-shut. But Stalin did not understand that the British, French, and Americans would insist upon full and fair proceedings—including allowing a Nazi accused to testify on his own behalf, call defense witnesses, and challenge prosecutors and prosecution evidence. For example, he and the rest of the Soviet leadership did not understand that their hand-picked judge and chief prosecutor at the IMT, Iona Nikitchenko and Roman Rudenko, respectively, would not be able to prevent the German defendants from alleging that the 1940 massacre of more than 20,000 Poles at Katyn (which the U.S.S.R. foolishly tried to blame on the Germans at the IMT), made the Soviets just as guilty of war crimes.5 As Hirsch explains, the Russians thought that Nuremberg would be a story of Soviet victimhood and German treachery. They thought that the narrative would be Soviet heroism and German guilt. What they got instead was a forum where the Soviet Union was both isolated and censured for its wartime conduct.6
Soviet Judgment at Nuremberg is organized chronologically. It first examines the background of the IMT7 before looking at “The Prosecution’s Case”8 and “The Defense Case.”9 The book closes with a section titled “Last Words and Judgments,”10 in which Professor Hirsch provides some conclusions about the import of the Soviet Union’s participation at the IMT and the tribunal’s impact on the evolution of LOAC.
For those in the legal profession, probably the most interesting aspect of the book is the discussion about the origin of “waging aggressive war” and “crimes against peace” as offenses triable at the IMT. The idea for these war crimes did not originate with American, British, or French jurists. Rather, it was the Russian academic Aron Trainin who insisted that it was not sufficient to prosecute the Nazis for crimes committed during the conflict itself. On the contrary, the Nazis also must be tried for launching the war—committing “a crime against peace.”11
While the Allies had discussed the idea of labeling aggressive war as a punishable criminal act, it was Trainin who coined the term “crimes against peace” and argued that the crime encompassed acts of aggression, violation of peace treaties, and the like.12 Consequently, because the Soviet Union persuaded the Allies that Germany’s leaders must be prosecuted for crimes against peace, Article 6 of the Charter of the International Tribunal declared that it was a crime to (1) plan, prepare, initiate, or wage a war of aggression or a war in violation of international treaties, or (2) conspire to do so.13 While the offense has become “somewhat of a dead letter” today—because there have been no prosecutions of “crimes against peace” since Nuremberg—it remains an offense under international criminal law; and, the International Criminal Court in The Hague has jurisdiction over the offense of “aggression.”14
Army lawyers will be interested in Soviet Judgment at Nuremberg’s discussion of the defense of superior orders. Again, it was Aron Trainin who insisted that the defense must not be permitted. If it were, he argued, then the guilty would escape individual responsibility by claiming that their actions were committed under the orders or sanction of his government or commanders. As early as December 1943, the Soviets held a public war crimes trial at which three Gestapo officials and a Ukrainian collaborator were prosecuted for murdering some 14,000 civilians (most of whom were Jewish). When the accused raised the defense of superior orders, it was rejected by the tribunal as inadmissible.15
This is an important point, since the general rule at this time was that combatants could not be punished for offenses committed under the orders or sanction of their government or commanders. The United States, for example, did not remove superior orders as a complete defense until November 1944.16 Even then, the American view was that if the crime committed violated “the accepted laws and customs of war,” the defense of superior orders could be considered in determining culpability, either as a matter in defense or in mitigation in punishment.17
The Soviets, however, would have none of this “‘saving bunker’ for war criminals ‘during the stern hour of vengeance.’”18 Consequently, when promulgating the Charter for the IMT, it was the Soviet Union’s view—more than any other single factor—that resulted in the language of Article 8: “the fact that the defendant acted pursuant to [the] order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.”19 While the Allies ultimately agreed that the defense of superior orders, in and of itself, would be eliminated as a shield against individual criminal liability at the IMT, the Soviets deserve the credit for being the first to push this important change in LOAC.20
A final point about this outstanding book. Details about Soviet participation in the IMT were relatively unknown—if not forgotten—until Francine Hirsch began exploring this history. There are several reasons for this. First, the politics of the Cold War meant that the American, British, and French governments tried to downplay the Soviet role in the proceedings so that the Nuremberg trials were seen as a triumph of Western leadership and liberal democracy. Soviet participation was seen as “regrettable but unavoidable—a sort of Faustian bargain” that was required but certainly not desired.21 Second, the Soviet role at the IMT has been overlooked because the first books about the event were written by Western judges and prosecutors, like Telford Taylor. These Western writers also made clear in their books that the Soviet Union’s participation at the IMT was, in fact, a threat to the legacy of Nuremberg. After all, the Soviets had invaded Poland with their German ally in September 1939, and the Red Army had committed many war crimes in its conquest of Berlin in May 1945. Third, because the IMT did not unfold in the way Stalin and his colleagues expected—a scripted trial in which guilt was a foregone conclusion—there was little incentive for any Soviet scholar to trumpet the contributions made by Russians to the IMT. Finally, until the former Soviet archives were open to scholars like Professor Hirsch, there was a dearth of primary sources available upon which to construct a narrative about the Soviet Union’s role in the evolution of international law generally and the IMT in particular.
The IMT remains the “starting point” for discussions about “transitional justice, international law, genocide, and human rights.”22 Given its importance in legal history, Soviet Judgment at Nuremberg provides “a new way of understanding the origins and development of the post-war movement for human rights.”23 Professor Hirsch spent fifteen years researching and writing her fine book, which included examining thousands of documents from the former Soviet archives. Her superlative history of the Soviet Union’s role at the IMT deserves to reach the widest possible audience. TAL
1. Telford Taylor, The Anatomy of the Nuremberg Trials (1992). The Academy Award winning movie Judgment at Nuremberg (starring Spencer Tracy, Burt Lancaster, and Judy Garland) also played a role in shaping Western opinions about Nuremberg, but the 1961 film is not about the IMT but rather is a fictionalized version of a trial that took place after the initial Nuremberg proceedings. See Judgment at Nuremberg (Roxlom Films 1961).
2. Francine Hirsch, Soviet Judgment at Nuremberg 6 (2020).
3. Id. at 4.
5. Id. at 320-44. In regards to the murders of Poles at Katyn, the IMT was only able to consider German guilt for the killings, and not Soviet culpability, as only Germans were on trial at the IMT. In April 1990, on the 50th anniversary of the Katyn massacre, the Soviet Union officially admitted that NKVD (People’s Commissariat of Internal Affairs) troops had committed the war crime—under the direct orders of Stalin and the Politburo. Keith Sword, Katyn Massacre, in Oxford Companion to the Second World War 646 (I. C. B. Dear ed., 1995).
6. Hirsch, supra note 2, at 14.
7. Id. at 17-131.
8. Id. at 135-242.
9. Id. at 245-345.
10. Id. at 347-416.
11. Id. at 35.
12. Id. at 35, 62-63, 73.
13. Id. at 50-51.
14. Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 103-04 (2d ed. 2016).
15. Hirsch, supra note 2, at 31-32, 385-86.
16. War Dep’t, Field Manual 27-10, Rules of Land Warfare para. 345.1 (15 Nov. 1944).
18. Hirsch, supra note 2, at 33.
19. Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10, at 66-67 (1949).
20. Article 8 did not entirely eliminate the superior orders defense, in that defenses, such as acting under coercion or duress, were still relevant to guilt. Additionally, if a reasonable person would have had no reason to think that the order was illegal, then the superior orders defense would be applicable. Solis, supra note 14, at 388.
21. Hirsch, supra note 2, at 6.