military responsibility



When the curtain falls on the theater, those responsible for the human massacres will have to descend from the stage and, soon, will be presented to give an account of their horrendous performance, of their responsibilities for genocide.

The iconic trial for war crimes and the practice of genocide reached its apex in Nuremberg in the Palace of Justice building, which had also been hit by Allied bombing, but which, even so, had better conditions, as well as the city, than Berlin, which was favored by the Soviet Chief Prosecutor, Iona T. Nikitchenko. Nuremberg had been the notable space for mass gatherings and congresses (1933-1938) of the National Socialist Party using the Reichsparteitagsgelände, the area for mass parades designed by the architect of the Third Reich, Albert Speer. Despite this historical character, Nikitchenko remained reticent and preferred Berlin, which was abandoned as an object of consideration for the trial, and later also München, also rejected due to its ruinous state and lack of conditions for the development of the works of the trial.

Immediately after the cessation of bellicose hostilities in the Second World War (SGGM), the allies considered that it was the right time to settle accounts with the perpetrators of the very serious war crimes hitherto unknown by humanity in their entirety. Initially, two positions were faced among the allies, that of imposing a political process with immediate execution of the National Socialist high commands and the second that pointed to the carrying out of a judicial process under the aegis of the common legal concepts of Western legislation that, therefore, would have to be shared with the Soviets. The idea of ​​avoiding summary executions so popular with the British and Soviets without due legal process and thus constituting a court won, which was that of Harry S. Truman (1884-1945), former judge and then President of the Republic – who had replaced the late Roosevelt (1882-1945) –, who through the Executive Order on 02.05.1945 formally appointed Robert Jackson to perform the duties of Chief Prosecutor at the Nuremberg Tribunal.

The course of the trial allowed the prosecution to gradually present the real dimension of the tragedy, despite the fact that news of extermination already circulated during the war, but which would gain public knowledge from the first moments of the trial with the transmission of the crude bestialities practiced in the concentration camps. The defendants were men who, in a very short space of weeks, if not days, moved from the Olympus of power and luxury to the spartan conditions of prisons controlled by the allies who supplied them with the proper minimum food and hygiene conditions and clothing. It was a transition from total power to submission under conditions that they had not offered to the thousands of bodies they had taken as captives.

When the cannons ceased, access to reason became imperative. Determining the responsibilities of the senior leaders of the National Socialist regime, military and high political positions in carrying out extermination practices during the SGGM is a topic whose interest does not end at that historical moment, but requires continuous analysis. It is imperative to continually return to its consideration, remembering and proposing renewed analyzes from the perspective of changing historical circumstances, in order to present potential new perpetrators with the conditions to discourage similar practices of contempt for human life, find personalities with tendencies to carry them out, presenting them with the united force and recognition of dishonor as an alternative that the civilized world will impose, as was the case in Nuremberg of Nazi hierarchs such as Hermann Göring (1893-1946), Karl Dönitz (1891-1980), Wilhelm Keitel (1882-1946 ), Alfred Jodl (1890-1946), Hans Fritzsche (1900-1953), Ernst Kaltenbrunner (1903-1945) and Alfred Rosenberg (1893-1945) who, considered as individuals, were nothing but representatives of unprecedented tragedy (see SMITH, 1979, p. 68). It was men of this type, and not the State, who should be in the dock, since, as Jackson understood, only those, and not an abstract entity, can answer for their actions. That was the first moment in history when men who had abused power had to answer for their actions in a court specially created with the competence to evaluate and respond for their conduct in war (cf. HARRIS, 1999, p. 496).

The effort to collaborate in understanding how deep human misery can be is briefly developed in this article. Restricted in space and purposes, the analysis will be centered on the theoretical references of law and its connection with public international law on the object proposed here in clear terms in the title, and will use the arguments of the prosecution as a direct source and guiding axis of the analysis. performed by US Attorney Robert Jackson at the Nuremberg Trials. The reason for this cut is the objective delimitation of the vast problem that should be faced and judged when, as in that case, accusations of genocide are at stake. Jackson clearly offered the foundations of the accusation against the defendants considered war criminals as well as for practices that would soon be presented in their most sordid details in the course of the process through the presented evidence.

Nuremberg was the scene of a historic judgment anchored in a special court. In the absence of natural jurisdiction, the winners constituted a special forum to judge conducts practiced by the losers during the SGGM, which were already classified as criminal. In the absence of an international court and of precedents for the legal framework of the conducts that were intended to sanction, however, as Jackson underlined, the activities of the Court were solidly anchored and were not the product of abstractions, nor was it there to claim some version of legal legalism (cf. OWEN, 2007, p. 47). Rigorously, all the facts that led to the constitution of the court would remain proven even by the use of documents, images and films made by the characters who had committed the facts, just as the justice of the winners did not prevent the acquittal of some of the defendants.

The interpretation of events was improved when information about the recent facts of the war emerged. This became clear during the first days of the judgment, when the accumulation of images, documents and interviews that had been held back until then were published in the daily newspapers. It was a historical duty imposed by the allies for the Court to fulfill the role of a historical lock to prevent future occurrences of similar disastrous facts. To that end, Jackson suggested treatment to be given to the Nazis, by then common and current men, disconnected from the chains of power and command, whose heavy background did not make them worthy of manifestation of “tenderness”, as it would represent nothing less than the recognition of “[…] victory and the referendum of the evils that are attached to their names”. (apud OWEN, 2007, p. 47).

Jackson recognized the weight of those days and the historic role of those on whom responsibility for the trial rested and, thus, how indispensable it would be for his generation to stop the impetus to conceal the widespread war crimes. For Jackson, it was necessary to recognize and adapt to the practice of the Court that “Civilization cannot afford the luxury of dealing with social forces that will regain strength if we deal ambiguously or laxly with the men in whom these forces now precariously survive.” (apud OWEN, 2007, p. 47-48). It was imperative to deal appropriately and mercilessly with the transgressive forces of all civilizational references, under penalty of profound future political repercussions. One of the objects of the judgment, the General Staff and the High Commands of the German Armed Forces, at the end of the SGGM were considered in its composition by group of “people [than] It was a vegüenza for the military profession and they mocked the owed obedience. They constituted a ruthless military caste and were guilty of crimes that should be brought to trial one by one”. (OWEN, 2007, p. 395).

Jackson was clear that the challenge of his generation of jurists was to impose itself on the marginality of mass leaders capable of capturing all State structures and seducing masses to crush a large number of individuals. Facing the historical challenge meant avoiding laxity, a task that was accompanied by the difficulty imposed by the legal-institutional problem in the face of the absence of positive law and constituted court with defined internal rules. The Nuremberg Court began to act under the root of the common law of nations grounded in categories of moral order shared with basic notions inherent to human civilization and public international law then consolidated (see HARRIS, 1999, p. 496).

Jackson's initial court appearance took place on 21.11.1945/1985/157 expressing awareness of both his historic role, the Court and as a US appointed representative. It was not just a question of trying horrendous war crimes, but of outlining possible political horizons. This perspective pointed to the need for the trial to run according to the strict limits of legality, legitimized in the eyes of the world public opinion that would be attentive, but committed to exemplary punishment of the atrocities committed, of which, incidentally, Jackson himself initially said he had not given full credit the real dimension of barbarism (cf. TUSA;TUSA, XNUMX, p. XNUMX). The judgment of the unprecedented practices of death on an industrial scale put into perspective the duty of the allies to carry out exemplary judgment. Allies were to show commitment to the terms of civilizational triumph against genocide committed under uniquely barbaric conditions against defenseless human beings for motives whose vileness was unparalleled in history.

This scenario imposed on the Court judicial treatment of a difficult special matter, but guiding actions to avoid the mere revenge on the part of the victors while firm to sanction conducts calling attention to the point of preventing barbarism, and the perpetrators, from finding ways to fall into oblivion. The judgment of those accused represented the inaugural historical form of the parameter according to which men would be judged who, by chance, someday would consider the hypothesis of kidnapping State structures to impose barbarism as a political ruler and instrument of total domination to provoke massive death.

Jackson's initial accusatory allegation opened by unveiling the range of conducts and also exposed the limits of punitive claims. Jackson presented as a backdrop the calculated actions of the defendants, the fact that they had been designed so perversely that they had profound repercussions not only in that historical period on a world scale, but also that their direct and devastating implications would also affect the future of civilization. Jackson argued that it was imperative in those days to prosecute those men who had organized and perpetrated serious crimes to prevent the wheel of history from turning and registering the repetition of horror (cf. OWEN, 2007, p. 46). Those individuals had been in those days and, today, their reborn spirits, radical enemies of the democratic State of law, willing and fully available to mobilize their wildest instincts and thus impose themselves within legal limits, revoking any moral constraints (cf. TUSA;TUSA, 1985, p. 155).

German barbarism could not have occurred without the absolute capture and compression of the structures of the German State in order, at the same time, to carry out the task of total submission of the people. This process of domination was made possible through the practice of State terrorism under the routinization of the extermination of dissidents. This project was accompanied by the imposition of cruelty under royal planning (cf. OWEN, 2007, p. 51.) according to the parameters of National Socialist law, whose axis and mainstay was summarized in the will of the Leader (cf. HARRIS, 1999, p. xxxi). His assistants were the leaders of the extermination and, in the absence of the Leader, were alone in the Nuremberg dock, described by Jackson as inciters, planners and executors, without whom, he admitted, the architecture of evil would be impossible, and “[…] world would not have been so long scourged with the violence and lawlessness and wracked with the agonies and convulsions of this terrible war'. They were not alone in guilt, Jackson said. Nor would they be alone in punishment […]”. (TUSA;TUSA, 1985, p. 155).

One of the legal weaknesses was the insufficiency of legal theory for that massive model of homicides, as the crime of genocide was initially conceived by the Jewish academic Rafael Lemkin (1900-1959), something that public international law was also unaware of. The theoretical construction of the legal type of the crime of genocide started from the conception situated in the sphere of geopolitics, international relations and that a broad conspiracy had been organized to cripple the development of entire nations or destroy them completely (cf. OVERY, 2003, p. . 71). Defining the root of the crime of genocide was important to encompass the scope of the crime against a mass of individuals numbering several million, but such a definition posed a problem in the order of legal theory with an important practical impact.

The lack of legal theory and prior legal architecture regarding the crime of genocide imposed restrictions on the Court, which was in a position to elaborate a legal construction to apply it ex post facto. Brought to the debate the Harvard scholar Edmund E. Morgan, from the Faculty of Law, denied reception to the fulcrum of the accusation carried out in Nuremberg precisely due to the creation of a legal type ex post facto (cf. OVERY, 2003, p. 72), something that, he alleged, was contradictory with the fundamental principle of Anglo-Saxon law and also with modern criminal law anchored in the principle of legality and the precedence of criminal law foreseen by Feuerbach, summarized in the maximum Nullum crimen, nulla poena sine lege. According to the maxim remaining the legitimacy of the imposition of the penalty was connected to the prediction of conduct as a transgressor of the law and, therefore, punishable, from where, in the absence of a legal type and legal asset to protect, therefore, there would be no possible injury to an asset that does not classify as such. Resorting to the general principles of law, the guiding principles of the rights of civilized peoples typical of public international law and the foundation of morality that the law was covered with, as was clear for the philosophical conception nourished by Jackson, would be instruments to overcome the difficulty imposed by the Feuerbachian theory.

Having defined the crime of genocide, the accusers and judges would have to face the problem of evidence, in the first case to build the case and, in the second, to evaluate it (cf. OVERY, 2003, p. 75), while the defense had scarce technical-scientific and economic resources to produce its own, outlining a scenario that even remotely would qualify as a parity of arms. It was a court constituted by the victors to judge the vanquished, and within the historical conditions Goering's criticism that a “[…] foreign country does not have the right to sue the government of a sovereign state”. (apud GOLDENSOHN, 2005, p. 174).

The full evidence of the crimes committed reinforced the Jacksonian thesis of the moral content that permeates the law. With regard to the subject, it is important to highlight that there is a sense of justice among ordinary men about the need to impose punishment on common crimes, even those that have less offensive potential, and Jackson draws attention to this by pointing to the need to punish serious physical and mental offenses. moralities imposed on vast human collectives by men who wield broad powers and volunteers oriented to the achievement of evil on a large scale (cf. OWEN, 2007, p. 47). Jackson highlighted that the real reason for taking the group of men who organized and perpetrated unprecedented crimes to the dock was not simple "normal human weaknesses”, if not something else, and very intense, namely, his “abnormal and inhumane conduct”. (apud OWEN, 2007, p. 50).

What is the anchor to request the conviction of the accused sitting in the dock of the Nuremberg Tribunal? Without aligning here the details of the formal conception, Jackson pointed to the conjunction of moral and legal offenses practiced by the accused, pointing out that their conduct had been carried out in a premeditated manner (cf. OWEN, 2007, p. 50), under strict planning and, at the moment, whenever necessary, but performing any type of improvisation under the influence of compatible practical necessity to achieve previously outlined results. An example of this was the creation of gas chambers, which were developed and sophisticated until they gained scale and were built in concentration camps, overcoming the death of dozens of people in vans to reach the homes of several hundred of them simultaneously. This step was reached by chance discovery of the application of the gas Ziklon B (patent of the powerful IG Farben), pesticide based on hydrocyanic acid, chlorine and nitrogen, whose initial application in the concentration camps was to disinfect lice and prevent the proliferation of typhus, whose casual observation of its fatal effects by a camp official of Auschwitz was taken to the director of the camp, Heinrich Himmler (1900-1945), who ordered its use to massively impose death in the Nazi gas chambers, as it was powerful enough to impose it between 20m. and 30m., replacing the much slower previous process.

The importance of imposing punishment on personalities who inflict evil on a large scale, eventually implementing it according to lines of force previously unimaginable by the legislator, call for punishment in the face of designing the future, the guarantee that supposedly innovative political options to transgress the limits of humanity cannot be wielded as an instrument to serve as a pretext for the imposition of pain, suffering and death on any scale, much less in a comprehensive and industrial way of entire human collectives. In this regard, Prosecutor Jackson correctly pointed out that “What is significant about this lawsuit is that these defendants are the embodiment of sinister influences that will survive in the world long after their bodies have turned to dust.”, and also in this aspect it revealed the correct apprehension of the nature of evil in humanity, that is to say, the ideologies, whatever their signs, from the most auspicious utopias to the most nefarious and lethal versions that awaken evil in its raw version that inhabits humanity. human nature, in no case can they be treated as if they were buried once and for all, because ideologies do not perish, they only hibernate. Jackson assumed the collective task for that historic moment of the courts, that is to say, that “We will demonstrate that they are symbols that embody racial hatred, terrorism, violence, arrogance and cruelty of power.”. (apud OWEN, 2007, p. 47.).

But if Jackson and the other allied prosecutors fulfilled the imperative task imposed by that historical moment on the Court, it is indisputable that later generations failed to carry out their indispensable task of maintaining the work in each generation and the continuous reorganization and reception of that anti-fascist culture. This work of carrying out justice and containing the evolution of fascism calls for successive activity to anchor the political system in acceptable civilizing standards, recognizing the value of the human, whose disconnection implies a break with the best tenor of the Nuremberg legacy. The solidity of this articulation paves the way to prevent risks and aggressions to civilization, essential to face the typology of the crimes of the defendants in Nuremberg, whose practices transcended the limits of the bodies of their victims and surpassed the frontiers of their time. As Jackson highlighted at Nuremberg, these were acts that affected all of humanity, and thus, axiological neutrality was no longer a valid option (cf. OWEN, 2007, p. 49.).

In the activity of the Nuremberg Tribunal, it is possible to observe the reference to a common moral floor that could be classified as an expectation of consecration of a common civilizational stage for humanity. This common civilizational level needs to be analyzed in the light of social, cultural and religious differences, in parallel with the absolutely identical basic needs that the biological condition imposes on human beings. The effective response to these minimum demands includes aspects such as providing daily calories and minimal care that were absolutely neglected by the National Socialist regime and, especially, in its organization of the concentration camps, a passage that makes it observable that the organization for death can occur both through positive action (directly withdrawing life) and through omissive action (organizing the occurrence of death due to the absence of basic conditions for life), structures conceived under direct articulation with the economic macrostructure, which takes advantage of it on a global systemic scale. The confrontation of this escalation of evil in unprecedented dimensions finds a legal approach in Jackson pointing to the fundamentals of the moral order of law, especially denoting the sore point of that judgment which was the individual moral responsibility (cf. TUSA; TUSA, 1985, p. 155) for the commission of death in industrial grandeur.

Regarding the procedures and internal rules of operation of the Nuremberg Tribunal, the winners finally reached the consensus of avoiding summary judgment desired by some allies. Chief Prosecutor Jackson legitimized the activities of the Court by recalling that at Nuremberg the defendants were guaranteed all the favors available to the law, which, it is imperative to point out, had been granted to very few of its multitudinous number of victims, even if he had position and power to do so (cf. OWEN, 2007, p. 50). The National Socialist order was essentially the opposite and marked a break with the typical guarantees of law built on the foundations of enlightened political culture, disconnected from its developments in modern German political and legal philosophy.

Modern societies permeated by real democratic pretensions must necessarily be guided by the mediation of conflicts through judicial instances and the due submission to the precepts of calibrating the guilt of each of the actors involved in the acts whose delinquent nature is under analysis, subsequent imposition of the due fixation individual sanctions (cf. HARRIS, 1999, p. 491). The individuation of the sentences was carried out in Nuremberg, reaching a few absolution, others, high sentences of decades of imprisonment, while the not inconsiderable group the seriousness of their crimes was evaluated compatible with the application of the death penalty, and the hanging it was not only reserved for military personnel, but also for civilians who worked in the highest ministerial posts of the Third Reich under the direct command of Hitler, but also for nefarious characters such as Julius Streicher (1885-1945).

Streicher served the regime's purposes immensely by poisoning the German population with his anti-Semitism for more than two decades through his media outlet, the The Stürmer, but also perverse anti-Semitic children's books like Der Giftpilz (the poisonous mushroom). Once National Socialism reached power, Streicher began to encourage the murder of Jews, and was finally condemned to death in the face of his widespread rhetoric, the mere incitement to extermination being the constitutive element of the crime against humanity that sustained his the death penalty was applied (cf. OWEN, 2007, p. 383). Along with them, two representatives of German capitalism were included in the list of defendants who articulated the economic dimension that made the totalitarian regime possible, namely, the banker Hjalmar Schacht (1877-1970) and Walther Funk (1890-1960), in addition to Gustav Krupp (1870-1950), representing the face of German heavy industry that had vastly used slave labor, exhausting it completely and thus inducing the circumstances that provoked death.

It is important to re-read the terms of the Nuremberg Judgment, as the analysis that conduct considered serious and punishable in times of war, such as killing or letting die (due to starvation, thirst or lack of medical assistance) will always be at stake. will be even more serious when they occur in a similar way in times of undeclared war, since we propose that actions of this type designate war more clearly than the formal declaration or the sound of cannons, replaced by the cold and deaf lethality of codes, togas politicized and armed support. In these terms, when we are faced with genocide, we are dealing, both in the first case of declared war and also in this second case, that in this case the gravity is even greater in the face of the non-declaration of war and, therefore, the suppression of any means efficient warning system to allow victims to be defended.

After the SGGM, the Nazi hierarchs sought to hide, fleeing by all possible routes, some leading to different geographical areas such as Latin America, while others opted for suicide (such as Hitler and Goebbels), in order to evade their responsibilities to their people and the world, although much of it ended up in the hands of the Allies, like Himmler, who committed suicide at the first chance while in British possession with a cyanide capsule that he was carrying hidden. Cowardice was the note of those men who practiced unheard of evil on an industrial scale when, finally, responsibility knocked at the door. The allies' intention was to impose exemplary penalties on those men who had committed acts of unheard of savagery, as this would be the only condition for the restoration of the democratic State of law, at the same time that it would serve to fulfill the character of discouraging the future commission of crimes , a basic function of which the penalty is endowed in the scope of criminal law.

The era that begins will allow the realization of judgments that will have as their object crimes that are similar to those that were the object of the Nuremberg Court in terms of cruelty. Although there is so far no willingness on the part of global power to impose death on an industrial scale in restricted territorial spaces such as the concentration camps, much broader territorial spaces are beginning to be designed, of entire countries, in which active organization takes place. for death (directly taking away life through the indiscriminate action of extermination forces disguised as internal security) or through omissive action (organizing the occurrence of death due to the absence of basic conditions for life), therefore, identical crimes masked by the application of different means, but which will certainly not dispense with biological resources.

The executioners of extermination carry in their core a spirit identical to that historically incarnated by Hitler, who, when faced with imminent defeat to the sound of Russian cannons in the streets of Berlin, did not hesitate to attribute the blame to the German people themselves, alleging their weakness and insufficient strength to to impose itself on the enemies in the course of that bloody war. The defeated would then deserve the worst version of the worst defeats, the total massacre, as a way to purify the people through radical suffering and could be reborn with intense strength from the survivors, it is deduced, that no matter how strong, they could take Germany to fulfill its historic destiny of greatness.

From this perspective of the world, Hitler's sick genocidal mind ordered the destruction of all means of production and resources still remaining in already devastated Germany, such were the losses imposed by the severe bombings that affected important cities such as Dresden, Berlin, Stuttgart, München, etc. To tarnish the victory and the economic benefit of the allies, Hitler ordered the destruction of bridges, industries and plants, absolutely everything, something that was not obeyed by his most direct commanders, such as Albert Speer. This exemplifies the degree of corrosiveness and destruction that National Socialism carried within itself and that potentially its historical versions can blindly apply against any living being. This is the kind of density of evil with which the Nuremberg Trials had to face, and whose condemnation it bequeathed to history, a humanity whose successive generations, however, often find ways to rid themselves of the best inheritances they receive.

When top military officials are arrested and their horrendous crimes are exposed to the general public in all their true dimensions, then the curtains rise. When the baton of command is removed from these military commanders, it becomes visible that the uniform full of insignia only presents false honors that hide real stains of innocent human blood and, then, the time has come to carry out the judgment of barbarism allied to cowardice that the holders of power and weapons impose on unarmed people. The moment the function is finally completed, humanity can face its executioners, and all of them must be brought out into the open and exposed for their crimes and responsibilities.

When the curtain falls on the theater, those responsible for the human massacres will have to descend from the stage and, soon, be presented to account for their horrendous performance, for their responsibilities for genocide, which during the execution process is successively denied. When undisguised, they admit punctual activities of extermination of individuals, seeking the most diverse justifications, mobilizing passions, but always with their low economic interests to mobilize them, like the most vile thieves associated in a gang to steal from their people, presenting supposed superior purposes. In that specific historical period, when everything was finally over, there remained, as it were, nothing more than the dust of the military and other people responsible for barbarism. Alive or dead, these characters were (and will be) reduced to dust, voluptuously submerging the military institution that shelters them without reaction in deep and historic opprobrium.

*Roberto Bueno, university professor, holds a PhD in Philosophy of Law from UFPR.


GOLDENSOHN, Leon. The Nuremberg interviews: Conversations of a Psychiatrist with Defendants and Witnesses. São Paulo: Companhia das Letras, 2005.

HARRIS, Whitney R. Tyranny on Trial. Dallas: Southern Methodist University Press, 1999.

OVERY, Richard. interrogations. El Tercer Reich en el banquillo. Barcelona: Tusquets, 2003.

OWEN, James. Nuremberg. The greatest judgment of history. Barcelona: Criticism, 2007.

SMITH, Bradley F. The Nuremberg Tribunal. Rio de Janeiro: F. Alves, 1979.

TUSA, Ann Tusa; TUSA, John. The Nuremberg Trial of Major German War Criminal. New York: McGraw-Hill Book Company, 1985.

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