Following World War II, the Allies, including the United States, dedicated their efforts to trying Nazis for the atrocities committed. I was reminded of this when St. John’s lawprof John Q. Barrett sent out his latest Jackson List email*.
On August 8, 1945, Justice Robert H. Jackson and his Allied Nation counterparts signed the historic London Agreement. It created the International Military Tribunal and, in a Charter annexed to the Agreement, prescribed the IMT’s constitution, jurisdiction and functions.
The London Agreement fulfilled and advanced Allied leaders’ declarations during World War II that the major German Nazi leaders were international law violators, that their offenses transcended particular locations and affected more than particular victims, and that these criminals thus should be, after their military defeat and captures, punished by an Allied international process.
To call the Nazis, and the atrocities they committed, criminals is an understatement beyond any other. It’s hard, if not impossible, to find human beings who engaged in worse crimes against humanity. Certainly, if there were any people unworthy of being treated fairly, or being given the opportunity to defend themselves, it was the Nazis. And yet:
The Charter also defined “fair trial” procedures, including defendants’ rights to particularized indictments, to testify, to have the assistance of counsel, to present evidence, and to cross-examine prosecution witnesses.
In order to ensure fair trial for the Defendants, the following procedure shall be followed:
(a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial.
(b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him.
(c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands.
(d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel.
(e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.
That’s right. Even Nazi war criminals were given all the requisite elements of due process. The worst of the worst, and yet we gave them fairness. Not because they necessarily deserved it, but because we were better than they were. We honored our own ideals, as much as we despised theirs.
Indeed, it wasn’t that there was universal agreement that the Nazis deserved due process. The British preferred to just hang them rather than hold the Nuremberg tribunals, but the United States’ belief in due process prevailed. They were tried with the panoply of due process rights, even though they murdered at will. That’s what distinguished us from them.
Juxtapose this with the way in which male students are treated in American colleges, where the issue of how much due process should exist is contrasted with the express need to protect female students from the trauma of being subjected to the rigors of due process.
In two recent decisions, one involving UC San Diego and the other at Washington & Lee University, judges held the procedures employed to fall far below anything remotely resembling fundamental fairness for the accused. That there is a debate over what constitutes basic procedural and substantive fairness would border on the absurd, but for the excuses proffered in support of denying due process.
First, it would re-traumatize “survivors” of sexual assault to subject them to scrutiny and cross-examination. Put aside that it presumes accusers to be victims in advance of proof, as there is a strong political wind based on the mythology of a sexual assault epidemic that the need to make it safe for accusers to accuse trumps any need for rigor, whether in the definition of what constitutes a rape or sexual assault, or in the evidence to move beyond the bald accusation to acting upon it.
At Nuremberg, survivors of Nazi death camps, who watched their family, their parents, spouses and children, were murdered, were required to tell their stories, to be subject to cross-examination, to be held to their account. These were survivors, as they faced death and lived to tell about it. And they did.
You want trauma? They suffered trauma. Yet, they did not complain. They did not demand to be hidden behind a screen so their delicate eyes wouldn’t have to behold the person they were accusing. They were not shielded from questions by a college administrator specially trained in sensitivity to the needs of women who couldn’t, shouldn’t, be expected to give a credible account, because women suffer such terrible trauma undergoing sex that was consensual until a rape advocate explained to them why it wasn’t.
And second, if we afford due process to male college students, someone might not be convicted. That too would re-traumatize the survivors, who are entitled to be believed at all costs. And let’s not go near the other due process rights, the right to counsel, to remain silent, to be informed of the accusations against you. You know, the rights we gave to Nazi war criminals.
That the United States of America was firm enough in its belief in due process to afford it to Nazi war criminals is a proud moment at a time when we had horrible disgraces as well. Yet, we argue and deny these basic requirements of fairness to our own children today.
Are they less worthy of fundamental fairness than Nazi war criminals? Or are the victims of sexual assault on campus more worthy of our concern for their trauma than holocaust survivors? Or is this yet another disgraceful moment in our history, to be ashamed of in the future when we realize how we’ve subverted our values.
* If you’re not on the Jackson List, you are not allowed to read any further because you fail to demonstrate the level of intellectual curiosity and strength to be worthy of SJ. You can sign up for the Jackson List by sending a “subscribe” note to [email protected].