Judge Advocates and German Attorneys in Nuremberg
By Lieutenant Colonel Ryan Kerwin and Ms. Mechthild C. Benkert
On the night of 19 October 2019, a standing-room-only crowd watched as members of the Office of the Staff Judge Advocate (OSJA), 7th Army Training Command (7ATC), and Trial Defense Services (TDS), entered the famed Courtroom 600 in Nuremberg’s Palace of Justice and began trying a court-martial. They were part of a city-wide, biennial exhibition called “The Long Night of Science” that officials in Nuremberg, Germany, billed as one of the most prestigious educational events in the region.1 Members of the 7ATC OSJA—headquartered in Grafenwoehr, Germany, and stationed throughout Bavaria alongside their TDS counterparts—participated in back-to-back mock trials, juxtaposed beside German attorneys and judges trying the same case. The courtroom, which was the setting of the historic Nuremberg International Military Tribunal held immediately following World War II, was filled beyond capacity with a crowd of mostly local German civilians; they watched the proceedings intently. The event was designed to showcase the similarities of, and noticeable differences between, the American military and German justice systems. It also further solidified the strong bond between the 7ATC OSJA and the Bavarian legal community.
When you enter Courtroom 600, there is a feeling of eerie familiarity. For judge advocates and any practitioner of national security or international law, this courtroom is instantly recognizable and akin to hallowed ground. The Nuremberg trials—particularly the tribunal held immediately following World War II from November 1945 until October 1946—would prove to be one of the most critical events in modern legal history.2 Due to the Nuremberg trials’ key place in the study of international law, Courtroom 600’s appearance evokes an immediate sense of recognition. The dark, carved wood, and the massive, ornate marble sculptures above the doorways still appear just as they did during the successful tribunals that prosecuted notorious Nazis—such as Hermann Göring and Rudolf Hess—among many others.3 The fact that the trials were also the subject of the classic film Judgment at Nuremberg ensures that even non-practitioners view the courtroom with a sense of immediate acknowledgement and reverence.
The legal and historical legacy of the Nuremburg trials cannot be overstated. “For the first time in history, states ruled by entirely different forms of government and constitutional systems joined forces to prosecute a defeated enemy in court.”4 In what could be considered a culmination of thousands of years and attempts to perfect the application of justice at the conclusion of an armed conflict, the allies “sought to conduct a judicial proceeding in accordance with the rule of law,” rather than “arbitrarily exacting revenge.”5 As lead prosecutor Justice Robert H. Jackson eloquently remarked in his opening statement:
That four great nations (Great Britain, France, the United States, and the former Soviet Union), flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.6
Critically, these trials also introduced a series of revolutionary legal concepts that continue to have significant influence on international law. These included the idea of personal accountability for crimes committed as a result of an order from a government or a superior.7 The defense of “I was just following orders” would forever be viewed as unsatisfactory and linked to the Nuremberg trials.8 Additionally, the concept of “crimes against humanity” as an enumerated criminal charge appeared for the first time.9 These, and other legal developments in the Nuremberg trials, would go on to influence a variety of the most significant documents in international law that were enacted for the remainder of the 20th Century.10 Former Nuremberg prosecutor Henry T. King, Jr. later remarked: “Nuremberg was the foundation stone of a better world for all of mankind. It endeavored to replace law of force with the force of law.”11
Since the conclusion of subsequent tribunals in 1949, the courtroom has continued to be used in a variety of ways. Beginning in 1961, the city of Nuremberg used the courtroom for criminal trials and daily hearings.12 In addition, on the night of 19 October 2019, it also played host to one of the most unique events in the region.
Every other year, the city of Nuremberg hosts an event called “The Long Night of Science.” In essence, it is an open-house-style educational experience designed to expose residents and visitors to a variety of intellectual endeavors. Universities, museums, scientific labs, and a number of cultural institutions across Nuremberg open their doors to the public for one Saturday evening, attracting an estimated 30,000 people to a wide variety of exhibits and presentations throughout the city.13 With the encouragement and planning of the German judiciary and 7ATC OSJA Host-Nation German attorneys, the 2017 program included a mock court-martial conducted by United States (U.S.) Army judge advocates and paralegals and a mock trial conducted by German civilian attorneys and judges. In a nod to the long-standing role that the U.S. military, including judge advocates, have played in Nuremberg, the trial was held in historic Courtroom 600. Advertised as a side-by-side comparison of the German civilian and U.S. military justice systems, the mock trials relied on an identical fact-pattern; but, very different avenues in which justice is adjudicated. This event was an immediate success.14 As a result, on 19 October 2019, members of the 7ATC OSJA, TDS, and their German legal co-participants continued this newly established tradition by reprising their roles in “The Long Night of Science” mock trial.
The 2019 event was planned and coordinated by 7ATC OSJA Host Nation attorney (and co-author of this article) Mechthild “Meggy” Benkert (Senior Civilian Attorney & Chief of Client Services), Lieutanant Colonel (LTC) (Ret.) Bradley Huestis, Captain (CPT) James Walston, and German Judge Waltraut Bayerlein (the Vice President of the Higher Regional Court in Nuremberg). Filling the role of trial judge for the court-martial was LTC John J. Merriam, 7ATC Staff Judge Advocate. Operating from an identical fact-pattern concerning an alleged aggravated assault with a knife, German attorneys first presented a mock trial in accordance with their own justice system. In order to show both similarities and differences, the German trial was immediately followed by Judge Advocate General’s (JAG) Corps members presenting their respective cases. Each trial included periodic stoppages for narration by members of the German judiciary, as well as Mr. Huestis, in order to teach the public about each system. Both trials concluded with questions from the predominantly civilian German audience. Each trial—German and American—was performed twice to two new audiences. The demand to attend each proceeding was so significant that the line to enter the Palace of Justice extended far beyond the entrance and into the street.
The differences in both procedure and tone of the trials were immediately apparent. The German legal system is inquisitorial, based on civil law, and therefore driven by the judges’ roles as lead investigators. While the German trial was presented in typical subdued fashion, the military court-martial began with the dramatic flair associated with impassioned opening statements so often seen in American courts. The German trial consisted of a series of judge-led questions aimed at fact-finding and executed in workman-like fashion. Conversely, the questioning during the court-martial, particularly during cross examination, offered the audience a taste of our adversarial system. Interestingly, the German court found the defendant guilty on all charges in both trials. On the other hand, the U.S. Army panel gave a mixed verdict: a finding of guilt on one specification and not guilty on two others.
In addition to the “The Long Night of Science,” the 7ATC OSJA is engaged in a number of collaborative training events held throughout the year between the OSJA and members of the German legal community. This continued relationship is consistent with an overall focus on interoperability within 7ATC and U.S. Army Europe writ-large. “Interoperability greatly enhances multinational operations through the ability to operate in the execution of assigned tasks.”15 While this is particularly true in military justice, German justice requires regular coordination and cooperation between members of the JAG Corps and the German Bar. It also impacts every core competency of the 7ATC OSJA.
The 7ATC OSJA’s initiatives also include a training program, designed to expose the U.S. military justice system to new German attorneys, as well as periodic engagements with senior German district attorneys to continue dialogue and mutual understanding. In November 2019, fifteen 7ATC judge advocates and paralegals accompanied Ms. Benkert to teach new German prosecutors in five cities throughout Bavaria about the U.S. military justice system. Now, in its twenty-ninth year, this teaching program facilitates understanding and coordination between German prosecutors and the OSJA. This has proven to be critical in the event that Soldiers are charged with crimes off-post. Similarly, in early 2020, the 7ATC OSJA will welcome senior German district attorneys from across Bavaria for additional training and dialogue.
As “The Long Night of Science” drew to a close in Courtroom 600, it was clear that the program had made a significant impression on both participants and onlookers alike. Questions and comments, particularly from the German crowd, focused on some of the obvious differences in each trial. Judge Bayerlein expressed that the event “offers an excellent forum to bring the justice system and the principle of the rule of law closer to the general public,” adding that it “illustrate[d] the differences between the German and U.S. legal system.” Judge Bayerlein also pointed out that “justice can indeed be achieved in very different ways.”16 However, the consistent theme of the evening was that, despite the numerous differences, the goals of each system, ultimately, were completely consistent with each other. While the German and U.S. trials “seem so different from each other . . . the purpose of both is the same: to find the truth.”17 TAL
LTC Kerwin is currently assigned as the Deputy Staff Judge Advocate, 7th Army Training Command, Grafenwoehr, Germany.
Ms. Benkert is the Chief, Host Nation Law, 7th Army Training Command, Grafenwoehr, Germany.
Notes
1. See, e.g., Die Lange Nacht der Wissenschaften, https://www.nacht-der-wissenschaften.de/ (last visited Jan. 20, 2020). This website is the original German homepage of “The Long Night of Science.”
2. See, e.g., Nuremberg Trials Memorium and Museum, https://museums.nuernberg.de/memorium-nuremberg-trials/ (last visited Jan. 20, 2020). This website is available in English translation.
3. Id.
4. Birth of International Criminal Law, The Nuremberg Memorium and Museum, https://museums.nuernberg.de/memorium-nuremberg-trials/the-legacy-of-nuremberg/birth-of-international-criminal-law/ (last visited Jan. 20, 2020).
5. Id.
6. T. Marion Beckerink, Justice Jackson Delivers Opening Statement at Nuremberg, November 21, 1945, Robert H. Jackson Center (Jan. 8, 2016), https://www.roberthjackson.org/article/justice-jackson-delivers-opening-statement-at-nuremberg-november-21-1945/.
7. See Birth of International Criminal Law, supra note 4.
8. Id.
9. Id.
10. See generally, Henry T. King, Jr., The Legacy of Nuremberg, 34 Case W. Res J. Int’l L. 335 (2002) https://scholarlycommons.law.case.edu/jil/vol34/iss3/4.
11. Id. at 353.
12. See Birth of International Criminal Law, supra note 4.
13. See Die Lange Nacht der Wissenschaften, supra note 1.
14. Staff Sergeant Kathleen V. Polanco, 7ATC Legal, German Lawyers, Partners for Justice, U.S. Dep’t of the Army (24 Oct. 2017), https://www.army.mil/article/195787/7atc_legal_german_lawyers_partners_for_justice.
15. Joint Chiefs of Staff, Joint Pub. 3-16, Multinational Operations, I-10 (1 Mar. 2019).
16. Email from Judge Waltraut Bayerlein to Mechthild C. Benkert (Dec. 12, 2019, 10:31) (on file with author).
17. Martin Egnash, Soldiers Take Part in Judicial Exhibit in Nuremberg Court, Stars and Stripes (Oct. 20, 2019), https://www.stripes.com/soldiers-take-part-in-judicial-exhibit-in-nuremberg-court-1.603851.