The University of Chicago Magazine February 1996
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The crimes of silence

As Bernard Meltzer sees it, the evil that he helped expose at Nuremberg 50 years ago is far from behind us.

As Meltzer watched the Nazi defendants on trial, he could "scarcely believe that these men had dominated much of the world and terrified most of it.

By Catherine Behan

A large manila folder, yellowing and rough around the edges, pokes out of a box filled with books and papers. Stamped "International Military Tribunal" in bold letters, the otherwise ordinary file is one of the few clues in Bernard Meltzer's office to his role in one of history's most extraordinary judicial events.

Meltzer--the Edward H. Levi distinguished service professor emeritus in the Law School--was one of 23 Americans on an international team presenting evidence against nearly two dozen Nazi leaders at the Palace of Justice in Nuremberg, Germany. He recalled the trial, and its legal ramifications, in a speech, "Remembering Nuremberg," delivered at the Law School November 21--exactly 50 years to the day after the trial's opening statement was presented by the chief U.S. prosecutor, Robert Jackson.

One of the most remarkable aspects of the trial was that it happened at all. "For a time, the U.S. and the U.S.S.R. had flirted with the idea of executive punishment," Meltzer says. "The British, who had urged that procedure, proposed that the Allies identify, let us say, 25 or 50 leading Germans whose offenses had been serious and obvious and shoot them, out of hand.

"This procedure--so like the arbitrary executions by Hitler and Stalin--was wisely abandoned in favor of the trial and the hearing ultimately granted to the defendants."

In the end, the major Allies established the London Charter, setting forth the law that was to govern the trial. Although individuals had previously been tried for "war crimes," the charter set a precedent by imposing individual punishment on major architects of, and participants in, war crimes that were carefully defined--including "crimes against peace," i.e., preparing, launching, or conspiring to launch aggressive wars; and "crimes against humanity": the extermination, enslavement, or other inhumane treatment of any any civilian population either before or during the war.

Meltzer, AB'35, JD'37, was only 31 years old when he was asked to join Jackson's team. Jackson, on leave from the U.S. Supreme Court, was former attorney general under F.D.R. One of his assistant attorney generals, Frank Shea, was also an acquaintance of Meltzer's, and recommended him for the U.S. team.

In Nuremberg, Meltzer explains with lawyerly precision, "I was assigned to the `economic case,' for which Shea had initially been responsible--Shea, incidentally, left the prosecution's staff long before the trial began. The economic case included, first, crimes against peace by defendants who had financed the building of--or who had built--the German war machine, with knowledge of Germany's aggressive purposes. The case also encompassed war crimes and crimes against humanity resulting from the systematic plundering and pillaging of occupied territories, and the deportation and exploitation of millions of slave laborers."

For his part, Meltzer "coordinated and reviewed the work of a group of lawyers, who assembled the evidence and prepared trial briefs on the various aspects of the economics case." He was also involved in the pretrial interrogations of several German leaders, including Hermann Göring.

"Of the defendants I met face to face, I found Göring the most interesting and the most diabolical," Meltzer says. "Intellectually quick, verbally nimble, and always wily. He often sensed the ultimate purpose of a question as soon as it was put." Göring was also "completely unrepentant and gloried in his role as second to Hitler and the first of the named defendants. He assumed responsibility for defending the Nazi regime, and he attacked the laws of war as obsolete."

In trial, Meltzer presented the case against Walther Funk, who had served the Nazi regime as economics minister under Göring, and as president of the Reichsbank. "Funk had headed the bank when it became a storehouse of the gold fillings, jewelry, eyeglass frames, and other valuables stripped from the corpses of concentration-camp victims."

Funk "wept when confronted with this evidence pre-trial," Meltzer recalls, "but claimed that he knew nothing about that ghoulish traffic." The tribunal, however, concluded that "he had known or had not wanted to know."

On October 1, 1946, verdicts on Funk and the other 21 remaining defendants (one had committed suicide in prison) were handed down. Three were acquitted; 12 were sentenced to death by hanging, including Göring, who took poison the night his execution was ordered; and 7, including Funk, were given prison sentences ranging from 10-20 years to life.

"One had a sense that this was part of the grand closure of the war," says Meltzer. The tribunal had another valuable role, he believes, because it provided history with a complete and irrefutable record of Nazi war crimes.

"The evidence of the Holocaust was so strong that I doubt that in 1945 anyone foresaw the so-called `Auschwitz lie'--the recent denials that the Holocaust happened," Meltzer observes. "But the trial record has surely served as a corrective to such fantastic revisionism."

At the trial's conclusion, Meltzer returned to the University to teach, becoming an expert on labor law and settling comfortably into academic life--preferring, he says, mostly to leave his experiences at Nuremberg behind him. "I don't like to give the same speech all the time," he says, "so I didn't become a `Nuremberger' in that sense.

"Nonetheless, there are reasons, in addition to this 50th anniversary," to take a look back at Nuremberg, he says. The trial "is made relevant--alas, too relevant--because of the atrocities, the grim clichs of our own time, such as the so-called ethnic cleansing in the former Yugoslavia and Rwanda and mass rape as an instrument of terror and territorial expansion.

"The memory of Nuremberg is also evoked by the rise of neo-Nazism in Germany and the United States, as well as by preachers of bigotry and separatism everywhere."

Although the trial helped promote the development of what is now called humanitarian law, embodied in such instruments as the Genocide Convention, "enforcement is, of course, a different matter," Meltzer says. The justice obtained in the war-crimes trials in the former Yugoslavia, for example, will probably look very different from the justice handed down at Nuremberg.

"Unlike the situation in Nuremberg," Meltzer explains, "key defendants and suspects are not in custody but in power.... Furthermore, even though the Bosnian Serbs seem to have been the worst offenders, none of the parties or forces involved appears to have clean hands."

Finally, says Meltzer, "under all the circumstances, vigorous prosecution may be seen as an obstacle to peace rather than as part of a process leading to a durable peace."

Whatever the ultimate outcome of the Balkan indictments, Meltzer says, the attorneys handling that prosecution have "earned our gratitude for their skill, energy, and tenacity. For they and their supporters have shown their awareness of a charge not made at Nuremberg, but resonating from it--the charge of the crime of silence and indifference. In remembering Nuremberg, it is right that we remember that charge--perhaps above all others."

Catherine Behan covers the Law School and the School of Social Service Administration for the University's News Office.

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