I stood recently in the Nuremberg Palace of Justice. In the law, there is perhaps nowhere more intriguing. Though many considered the murder trial of Orenthal Simpson to be the "trial of the century" (Every Hill Films, 2014), it was not even close. In the middle of the twentieth century, far more important trials occurred in Nuremberg.
There is a historical museum with pictures and explanations. They are frustratingly presented only in German, which I speak haltingly. The Germans did not conduct these trials. They occurred here at the insistence of the three victorious allied powers. That the plaques included no English, Russian, or even French translations was surprising.
The language barrier was mitigated with hand-held listening devices, but reading and re-reading would be more comfortable. The museum and courtroom are in a building that remains in active use in the twenty-first century, despite being built over a hundred years ago. Visitors are warned by apologetic signs that when the courtroom is in use, access will be limited to viewing through small windows.
The displays explain the challenge of this post-war trial process, and the perspectives of those involved. The museum concludes that "the trials had an enormous influence on the development of international criminal law right up to the present." The idea of "war crimes" was new in that era. There was a lack of clear precedent regarding the how, when, and where of such trials. There was a three-power (U.S., Britain, USSR), four-victor (add France) alliance involved, but that was a tenuous alliance that too soon (1947) evolved into a cold war.
According to History.com, there were "a series of 13 trials carried out in Nuremberg, Germany, between 1945 and 1949." There is no volume provided by that authority. However, according to the National World War II Museum, "24 of the most important military and political leaders of the Third Reich" were tried between "November 20, 1945 to October 1, 1946." On October 1, 1946, 19 were convicted, and 12 sentenced to death. Those were hanged in a courthouse gymnasium 15 days later. There was no right to appeal.
That was the famous trial. But, as history marched forward, "in all, 199 defendants were tried, 161 were convicted, and 37 were sentenced to death," again according to the WWII Museum. There was far more to the Nuremburg trials than is covered in American high school history. In fact, short of an elective course in International Law, it is unlikely most lawyers understand or appreciate the significance of Nuremberg.
Nuremberg was a first for bringing the rule of law to war. There were some prosecutions for mass murder, accompanied with some defenses that accused the victor nations of similar atrocities (USSR). There were an estimated 75 million killed in WWII, and "in all, 199 defendants were tried" at Nuremberg. Though this was a huge undertaking, unprecedented, and innovative, it addressed a very small volume of German officials. It purported only to address crimes committed on an international scale, leaving those isolated to Germany to that nation's courts and processes.
In 2021, a German court is planning to try a 100-year-old man in October on "3,518 counts of accessory to murder on allegations he served as a Nazi SS guard at a concentration camp." This is a man that has lived over 75 years since the war ended. How many of those engaged in the Nazi machine similarly escaped prosecution over the last decades? Is there truth to the maxim that "justice delayed is justice denied?" How that delay may influence claims will be the subject of another post soon.
I stood in the wake of history in that Nuremburg courtroom. The trial process was unprecedented. But additionally, innovative efforts were made for public comprehension. Lights were installed to facilitate filming of the proceedings, such that some participants were said to wear sunglasses in the courtroom. Compromises were struck regarding process and procedure. An Anglo-American trial style was adopted, including cross-examination. That was a process alien to German law, unfamiliar territory for defense counsel and defendants.
Despite that, some cross-examination was seen as less than effective. Lead prosecutor Robert Jackson, a former United States Attorney General and sitting U.S. Supreme Court Justice cross-examined Hermann Goering for more than two days. It has been criticized and critiqued. Some question if it was "the worst cross-examination in history." That is very harsh, and in fairness, I have personally seen far worse. Perhaps it is so harshly critiqued because of the public focus and publicity it received? Perhaps it was the prominence of the examiner?
There were defenses raised regarding responsibility. Many of the defendants explained that they merely followed orders. They asserted that only Adolph Hitler could be guilty because he gave the orders. Defendants were nonetheless made to answer for atrocities, policies, and even genocide. Having walked the grounds of Dachau and Buchenwald, I remain astounded at the 199 defendant total above. In the end, there were many convictions among the prosecutions. But millions of people were systemically imprisoned, dehumanized, enslaved, and exterminated. Millions of people were killed, and 199 were tried at Nuremburg.
The National World War II Museum does an admirable job of summarizing the legacy of the Nuremburg trials. It acknowledges "mixed success." It notes the challenges of a country evolving into two: the Federal Republic of Germany (West Germany) and the German Democratic Republic (East Germany). It notes the end of allied occupation in the west within a decade, and included the release of many (3,300) incarcerated National Socialist Worker Party members, Nazis, in the process.
The two Germanies were very different. One in the east, behind the "Iron Curtain," and part of the Soviet-controlled territory ceded in the post-war reorganization of Europe. One in the west, recovering on its own path and striving for a democratic existence. Each Germany was scarred by two world wars, fascism, socialism, extremism, and more. Despite their history, the Germans were divided into geographic sectors by the victors, and subjected to supervision and control. Just over 16 years after Victory in Europe day, the East German government threw up a barrier overnight to preclude its citizens from fleeing to the west. That quickly evolved from barbed wire and barricades into a concrete Berlin Wall. Perhaps that wall marks the only time in human history that a nation built a wall not to repel invaders but to mass-incarcerate its own?
The world, it seems, moved on from Nuremburg. The trial of the century was transcribed for posterity. It was printed in various languages. At the insistence of the four victors, copies were made available in many German libraries as the country(ies) rebuilt. There were policies established, and thus precedent. Upon the Nuremburg foundation, the International Criminal Tribunal for Yugoslavia was created in 1994, with a similar "ad hoc" tribunal regarding Rwanda soon thereafter. Despite its significance, its "trial of the century" label would later be hijacked by the media to describe a more mundane murder prosecution of a prominent ex-football player.
Before Nuremburg, there had been international efforts as regards courts and disputes. Today, the International Court of Justice sits in The Hague, an "organ of the United Nations." Though that tribunal has a significant history dating to the League of Nations, it was the four victors that prosecuted the defendants in Nuremburg. It was the structure and process they built that establish the precedent of responsibility under international law. In Nuremburg, history was made through innovation and perseverance.
And, history is forgotten. I found myself at both Nuremburg and the Berlin Wall recently. Memories are recorded and documented of those who died in each. I visited the Allied Museum in Berlin. I walked the Buchenwald death camp. I visited the famous site of the Nuremburg trials. I walked both sections of that infamous wall and various markers that memorialize its scars.
I was not alone, but there were no crowds. In fact, the crowds at various historical sites were as disappointing as I found in Hamm, Luxembourg at the American Cemetery, discussed in Remembrance (September 2021). That war ended 76 years ago, the wall was erected 60 years ago and fell almost 32 years ago. The National Socialist Workers Party ceased to exist. The fallen, the tried, the convicted, the process, and the complexity fade from memory.
I ponder whether anyone will visit these historic sites fifty years from now. As the atrocities of history fade into our past, will they be completely forgotten? Will we retain appreciation for the institutions and processes that the tribulations led to? The true constant in our world may be the law, process, and precedent. In the International Court there is perhaps that promise. In more recent times, we have perhaps witnessed a positive evolution in the adoption of due process and the solving of disputes according to a rule of law. There is, therefore, perhaps hope illustrated in our evolution.
This blog is about workers' compensation, and the relevance of the foregoing may be lost on some readers, in that context. But, the resolution of disputes, great and small, is dependent upon due process. It is a matter of the utmost importance that adjudicators remain independent and impartial. It is as important that their decisions are consistent, and articulate reasoning as well as conclusion. It is critical that a right of appeal persists, for the sake of the parties and the workers' compensation community overall.
Beyond due process, it is worthy to consider that history is important. There is attribution struggle regarding the phrase "you must learn from the mistakes of others, you will never live long enough to make them all yourself." Regardless of who first articulated this truth, it conveys much. Has the world learned from the lessons of the past? Seventy-five years on without another "world" war perhaps suggests yes. But, the plethora of smaller conflicts in that time perhaps suggests the lesson was less than absolute.
Similarly, have the workers' compensation systems learned from mistakes in their pasts? Is the history of this conglomeration of state systems studied, understood, and considered as innovation is proposed? Is there enough interest in considering the statutory vacillations within a jurisdiction as legislative reform is considered? Is there interest in learning from the challenges faced by other jurisdictions, their solutions, compromises, successes, and failures?
Some have seen these systems as critically important, see Singletary v. Mangham Construction, 418 So.2d 1138 (Fla. 1st DCA, 1982). These systems literally impact the entirety of employment relationships in the United States. Their effects are direct on the employers and employees required to participate, indirect on those who are not so required. But their impact is real. And one hundred years on, there are many lessons in the establishment, evolution, and reform of these laws. Will we find them worthy of study, or will their history similarly fall into disregard?
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