The World On Trial

Welcome to Desk Notes. Longtime readers might recognize these words from long ago, although the topic this week remains fresh—and that will, unfortunately, always be true.

Berlin 2017

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Rebecca West, writing from the gallery at the 1946 Nuremberg Tribunals, noted how the rules inside the Palace of Justice managed to combine both the peculiar and the absurd.

In the midst of this muddle certain precautionary measures were taken which were at once not strict enough and too strict and quite ineffectual.

To cross your legs in the gallery is forbidden; to carry a briefcase or purse or jacket is forbidden; to look toward the ceiling and ponder the madness of humanity is also forbidden. The courtroom is hot and stuffy and there’s a young and spirited military policeman ready to enforce these rules of etiquette, though his nightstick appears unready to differentiate the visiting judges from the press, nor does he even succeed in preventing one reporter from accidentally bringing a revolver into the gallery.

So there’s a farcical element to these slapdash, clumsy rules, all of them invented on a whim during the trial, and you begin to sense that this is an environment where the authorities are grasping for control. A larger than normal amount of people don’t know what they’re doing, so they’re making it up as they go along—and this comes right after a bout of worldwide madness.

The context of a hollowed and shellshocked Europe can’t be overlooked, as the long days in the Palace of Justice teeter forward, in confusion, in contradiction, with a mix of outrage and apathy.

It might seem that this is only to say that at Nuremberg people were bored. But this was boredom on a huge historic scale. A machine was running down, a great machine, the greatest machine that has ever been created: the war machine, by which mankind, in spite of its infirmity of purpose and its frequent desire for death, has defended its life.

If talking about Hitler is the endpoint and forfeit of all political arguments, then references to Nuremberg are the downfall of all legal arguments. Yet West has left us a curious and useful document: a literary record of the atmosphere and tone and sensibility of this time. Most people do have a rough understanding of the eventual verdicts at Nuremberg; few, however, know about the context in which the court determined those verdicts. Almost nobody outside of the legal or history profession has studied the trials, but there’s much to learn in West’s descriptions of how the strange, conflicting tradeoffs present in all courtrooms made every day in Nuremberg feel both necessary and futile.

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One of her curious observations comes in the final days of the trial—which wasn’t as conclusive, nor as inevitable, as most people assume—when the court ruled that photographs weren’t permitted while the judges read the verdicts. Most of the press grumbled, found the rule nonsensical, though West spotted a justification.

But it could not be right to photograph them when they were being told that they were going to be hanged. For when society has to hurt a man it must hurt him as little as possible and must preserve what it can of his pride, lest there should spread in that society those feelings which make men do the things for which they get hanged.

In the extremes of Nuremberg a much broader and more timeless question appears: what do we do with those we loathe? Implicit in nearly every political or judicial cause is the belief that our opponents, after our victory, will suffer more than mere defeat—they will disappear, be excluded, or purged from society. At the completion of the tribunal, this thinking goes, the rot will have been cut.

This is the unmentioned and unacknowledged assumption of nearly all political movements, even though the truth is much messier and much more difficult. How much easier it would be to wake up after victory and find your opponent and their supporters not simply as losers but also isolated and resigned. The truth, of course, is that your opponents aren’t going anywhere, no matter how distasteful you find them. And even if you do somehow vanquish the leaders, what about their supporters? For the judges who considered the reverberations of their decisions at Nuremberg, how is an uncomfortably large portion of Europe going to react? Because a good portion of society will—after any of your victories—still consider you the loathsome opponent.

And here is where West begins to touch a question that’s always present, yet never solved, in every movement toward justice: What does the punishment do to the punisher? It’s not an incidental question or a mere afterthought—in the most extreme cases, it’s probably the most important consideration.

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We might remember that a useful distinction exists between the words abuse and brutalize, though it’s one that has, tellingly, become rather slippery. To abuse implies that you are, among your many hobbies, active in mistreating someone, in whatever form you might find most pragmatic. The literature teacher abused the students by forcing them to read boring novels. To brutalize, however, is how you, as the abuser, are affected by all that abuse you dispense. An abusive prison guard is brutalized by inflicting that abuse; a warden who permits abuse to continue is brutalized by that apathy; a society that permits abuse in prisons is brutalized.

So how do you avoid desensitizing or coarsening or habituating the sentencer? At the culmination of the Nuremberg Tribunals, West considers the particulars of hanging, and of the brutality required, even when it’s never been more justified.

There was never a lawful occasion which smelled so strongly of the unlawful.

Immediately following the moment of execution, immediately following the moment when a physician confirms the sentence, only those who delivered the verdict are left. And that’s true of any moment of finality—no matter how trivial or incidental to any great cause of justice. All that’s left are the irritable and bored reporters, or the judges doing their best to grasp for some sense of control. The moment of victory is also the moment when the objective vanishes. So what comes next?

A sentence—whether one of retribution, vengeance, penance—is probably best seen as highlighting the desires of those who make up the courtroom. And there’s never a sentence that separates what’s done from how it’s done—the means, you might say, very quickly become the ends. With a guilty verdict the judges at Nuremberg had only two options: either the defendants were evil, or they were grossly misinformed. But what ends up mattering, regardless of the option selected, is how the judges act. Nuremberg, in its end, tells us more about the judges and prosecutors and the press and fidgety guards in the gallery and the convulsions of an entire civilization than it says anything at all about the defendants.