Interview Transcript: Associate Professor Sindee Kerker
Start Recording
Nicole: So I just want to start off asking how much work you’ve done with the Nuremberg Trials, and how much you’ve studied and researched them? 0:49
Kerker: Well I teach a class at my University in Boca Raton, Florida, about the Nuremberg Trials. The reason why I started teaching this class was, my background is that I’m a prosecutor for the (...) Los Angeles county, and I teach criminal justice, and what happened was we discovered we had some of the original documents in our library. Basically, it’s from the first trial, the original trial, there are 42 bound-set (volumes?) called the Blue Series that we didn’t even realize that we had, which actually belonged to Justice Jackson. And so, when we discovered the valuable information that we had, I decided to teach a class around it. So that’s kind of how I got involved with it. I also do community lectures about the Nuremberg Trials as well, and, you know, students are very excited about the Nuremberg Trials. But I wanted to ask you, actually, if 1:49 you understood that it’s more than one trial? That it’s actually 13 trials altogether, are you familiar with that?
Nicole: Yes, we are.
Kerker: Okay, because my college students aren’t always familiar with that. And really, I wasn’t sure if you were interested in the first trial, or the subsequent trials, or just the whole concept of, you know, what the trials mean.
Nicole: I think we’re definitely interested in the legacy that the trials have left, but most of our research has focused on the first trial.
Kerker: Okay, good. Because what I tell my students is it really was a series of 13 trials from 1945 to 1949, after WWII, and that they actually prosecuted the high-ranking Nazis. And the subsequent trials were all for the doctors, the bankers, the judges and the industrialists. And the most serious trial, as you’ve probably discovered, is the major war criminals trial 2:46 and the Blue Series comes from that trial. And it’s interesting in the way the trial was formed, the fact that it was a tribunal of the court of justice consisting of four judges, consisting of the different Allied countries, that it took so long to actually get the trials, but eventually it did.
Nicole: You know, it’s interesting, I actually have a question, I know you were talking about how the first trial was major figureheads of the Nazi regime. I know that we’ve discovered in our research that one of the things the IMT did was basically say, “There is no defense of superior order. You are guilty of the crimes you committed.”
Kerker: Correct.
Nicole: Do you think it’s kind of hypocritical, or not hypocritical, but contradictory that, do you think the selectivity of the defendants prosecuted maybe undermined the quote unquote fairness of the trials?
Kerker: Okay, well, you (...3:56) because the biggest criticism was of the whole concept of ex post facto. And the whole idea was how could they be prosecuted for something that wasn’t technically a crime when they committed it? Because technically on the books, there’s no such thing as ‘war crimes’ or ‘crimes against humanity.’ And so we actually decided that was a crime, even though technically it wasn’t a crime at the time. But that’s really the controversy you’re talking about, is how can we talk about the rule of law, when it wasn’t a crime at the time? And I think the way they’d get around with that is that, because the types of crimes that were committed were so reprehensible, and so unimaginable, that it’s all so understood you don’t do those kinds of things. Like, it goes back to the bible, that you don’t just kill. You’re not that cruel and inhumane to the point that you’ve got concentration camps, and the point that you’re starving people. And I think that’s kind of how they got around it. But I think probably the significance of the whole Nuremberg Trial, the whole point that made it stand out 5:03 was that we didn’t just execute them right away. And, you know, some of the other Allied countries wanted to do that. But we really stood for our principles of justice that even in the most extreme circumstances and no matter (...) the defendants were, and no matter how the temptation may be to seek vengeance, that the Nuremberg Trials really manifested the principles of what a civilized society is all about. And that is the accused is (...) to certain due process rights, including the right to have to confront one’s accusers, and to question (...) I mean, no matter how evil their crimes were, no matter how unthinkable they were, the idea is that we were going to actually put them on trial for the world to see. 5:48
Nicole: Right. I know we’ve seen a lot of documents talking about the controversy over the ex post facto law use, and I know that one of the main counter-arguments is, like you said, of course when you have concentration camps and you’re committing such heinous, obviously crimes against humanity not even in legal terms but in a sense of humanity, it’s obviously wrong. They should know not to be doing that, so whether or not it’s established in law, these aren’t things they should be doing. Why do you think that people still take issue with that today? Why critics of the trials still make arguments against ex post facto use?
Jen: Because ex post facto, though it might have been a guiding legal principle, it wasn’t set in stone in an international legal context, either? 6:50
Kerker: So, I mean, just so you understand ex post facto, it’d be like if we decided today whatever, let’s say, what did you eat for lunch today? What’d you guys eat for lunch today?
Jen: A sandwich.
Kerker: What kind of sandwich?
Jen: It was a turkey sandwich.
Kerker: Okay, so if we made a law that said eating turkey is against the law, and we put that into effect tomorrow, right? You ate the turkey sandwich today, so when you ate the turkey sandwich, it was not against the law. But now, we just decided that noone can eat turkey sandwiches, so you really shouldn’t be punished for a crime that wasn’t a crime when you did it. Technically, the indictments they came up with, ‘war crimes’ and ‘crimes against humanity,’ ‘crimes against peace,’ those weren’t crimes at the time. (...) It wasn’t a crime, and so therefore 7:48 I mean, that’s the biggest criticism of the trial, is that you could actually be prosecuted for something that wasn’t a crime at the time. And (I told you?...) it kind of goes back to the Bible, (...) I mean there are some things that you just don’t do in any civilized (...) I mean, the idea of wiping out an entire population, of ethnic cleansing, the idea of starving people to the point where they’re skeletons, you know, most of them were dying. The type of thing where in any civilization, it should be given that you don’t treat your people that way, and I think that’s how they got around it. Because those actions were so (...) that they decided they were just, you know, unheard of, and understood that you did not do that.
Nicole: Certainly, and I mean, I think that while it’s clear for us to look at it today and say, “Yes it was ex post facto, but their crimes were so heinous and so obvious,” that 9:13 that becomes a higher and more valid argument than ex post facto. In a very clinical and legal aspect, do you think that some of the counts or the trial itself could be termed as ‘unfair?’
Kerker: Well, I think, I would say no. Because all the defendants were given the opportunity to attack the evidence that was against them. They all had council working for them, they all had an opportunity to present a defense, and in that sense it wasn’t “like these are the cases against you, you have no say in this.” So I think they were given the opportunity to examine the evidence, criticize the evidence, to attack (...) attorney, that that’s what made it fair.
Nicole: Right. Do you think the Allies did a good job of establishing, as best they could, a certain degree of legitimacy to the Trials? You know, a sense of, “we have the right to do this,” and to make it as little like ‘victor’s justice’ as they could?
Kerker: Ask me the question again. Did the Allies do a good job doing what?
Nicole: Did the Allies-- I know they were kind of reforming the previous method of just using ‘victor’s justice’ and summary execution, doing whatever was easiest for the winners.
Kerker: Right, well, fortunately they didn’t do that. They got together and they actually created, you know, they actually got together and created a whole rule for the trials. Because they had to agree on a lot. They agreed it was going to be a jury trial, it was going to be a military tribunal, they agreed that there was going to be a judge for each of the countries, the United States, Britain, the Soviet Union, and France. There were four judges. There were four alternated, too, just in case something (...) in the end they didn’t need the four alternates. But in case of illness or incapacity. They established all the rules and the procedures 11:27 they came up with the four indictments, or the four charges, ‘conspiracy,’ ‘crimes against peace,’ ‘war crimes’ and ‘crimes against humanity.’ One of the things they made sure was that there wasn’t a defense for the crime, you couldn’t say you were following orders. They also put together the idea that, the concept of conspiracy, because they had to prove that over and over again. You know, if they could just prove that it was (...) criminalization (...) if you’re part of one (...) it didn’t have to be proven in subsequent trials. They also, the whole concept of what I said before of having a fair trial. That the indictments were specific, what they were being charged with. They had the right to (...) They had the right to have the indictments translated into their own languages. They had the right to (...) to have the assistance of counsel, they had the right to present evidence at trial, and the witnesses. The trial was also done, even though it took eleven months to do, as quickly and efficiently as possible. They tried not to have too much delay, to resolve whatever legal issues happened in the courtroom. 12:58 They had the right to an appeal, and they carried out the sentences pretty much right away, instead of having it lingering. I think that was important, too, that justice, there was appeals, and if there was a sentence it was carried out pretty much right away, including the death sentences.
Jen: How did the prosecution exactly combat the defense against superior orders argument presented by the defendants? Did they ban it alright together because they did with the tu quoque legal principle?
Kerker: Well, actually, it was the charter. It was there when they got together they basically put together all the rules and procedures for the trial, that was one of their rules, so, it was technically the rule that they weren’t allowed to (...) it wasn’t going to be about 14:00 (...) So they didn’t have to prove it or disprove it, it was one of the rules. So then they (?) it ahead of time. I know that you’re saying it was kind of hypocritical that they could do that, but, they did. They were able to do that as part of their charter, the tribunal, that was one of the rules.
Nicole: And I know, in a way, what we’ve kind of discovered through our research is that by being a little hypocritical and possible not having a huge base of legitimacy, that created a more fair legal system.
Kerker: Correct.
Nicole: Moving into a little of the legacy side of things, I know that a lot of critics have said that these international laws created don’t actually deter violence. Would you say that that’s true?
Kerker: Well, I mean, I’ll try to answer that. We still have violence in the world, so obviously that’s true. But I mean, it sort of depends on, a law is only as good as it is, whether it’s being enforced or not. If the flaw in the international community is that they’re not really enforcing it. And not really going after people. And sometimes they are but it’s a very, uh, it’s not like in our country you know where you have the laws and the system and everything like that, it’s more complicated when you have a nation that (...) it’s not really set up the way it was designed to (...) in the international community, the cooperation of all the different countries, and there are a lot of politics involved as you can imagine.
Nicole: Do you think we still see the effects of Nuremberg today? Was it a truly monumental set of trials?
Kerker: Well, it was definitely monumental. We obviously still have problems today with things going on in other countries, you know, Rwanda, Darfur, Guantanamo Bay, even. I mean, you can see things going on even today, but what the Nuremberg Trials did was it actually created a record, so that nobody could deny that the Holocaust ever happened. And that, a lot of the evidence that was used in the trial, evidence that the Nazis had actually kept very detailed records, and actually seeing when the people were liberated from the concentration camps, and seeing the condition that they were in, the soldiers were shocked at what they saw. So it definitely created a record of what actually happened, and it actually showed 17:12 that we actually were more civilized, that we actually weren’t just going to execute people, just because we had vengeance. So it showed that we had records, that we were going to follow the rule of law, and that we would give people a trial even though people maybe felt that they didn’t deserve a trial, we were going to show that we were civilized, (...) and that we were going to make sure that they had a fair trial instead of just shooting first.
End Recording
Nicole: So I just want to start off asking how much work you’ve done with the Nuremberg Trials, and how much you’ve studied and researched them? 0:49
Kerker: Well I teach a class at my University in Boca Raton, Florida, about the Nuremberg Trials. The reason why I started teaching this class was, my background is that I’m a prosecutor for the (...) Los Angeles county, and I teach criminal justice, and what happened was we discovered we had some of the original documents in our library. Basically, it’s from the first trial, the original trial, there are 42 bound-set (volumes?) called the Blue Series that we didn’t even realize that we had, which actually belonged to Justice Jackson. And so, when we discovered the valuable information that we had, I decided to teach a class around it. So that’s kind of how I got involved with it. I also do community lectures about the Nuremberg Trials as well, and, you know, students are very excited about the Nuremberg Trials. But I wanted to ask you, actually, if 1:49 you understood that it’s more than one trial? That it’s actually 13 trials altogether, are you familiar with that?
Nicole: Yes, we are.
Kerker: Okay, because my college students aren’t always familiar with that. And really, I wasn’t sure if you were interested in the first trial, or the subsequent trials, or just the whole concept of, you know, what the trials mean.
Nicole: I think we’re definitely interested in the legacy that the trials have left, but most of our research has focused on the first trial.
Kerker: Okay, good. Because what I tell my students is it really was a series of 13 trials from 1945 to 1949, after WWII, and that they actually prosecuted the high-ranking Nazis. And the subsequent trials were all for the doctors, the bankers, the judges and the industrialists. And the most serious trial, as you’ve probably discovered, is the major war criminals trial 2:46 and the Blue Series comes from that trial. And it’s interesting in the way the trial was formed, the fact that it was a tribunal of the court of justice consisting of four judges, consisting of the different Allied countries, that it took so long to actually get the trials, but eventually it did.
Nicole: You know, it’s interesting, I actually have a question, I know you were talking about how the first trial was major figureheads of the Nazi regime. I know that we’ve discovered in our research that one of the things the IMT did was basically say, “There is no defense of superior order. You are guilty of the crimes you committed.”
Kerker: Correct.
Nicole: Do you think it’s kind of hypocritical, or not hypocritical, but contradictory that, do you think the selectivity of the defendants prosecuted maybe undermined the quote unquote fairness of the trials?
Kerker: Okay, well, you (...3:56) because the biggest criticism was of the whole concept of ex post facto. And the whole idea was how could they be prosecuted for something that wasn’t technically a crime when they committed it? Because technically on the books, there’s no such thing as ‘war crimes’ or ‘crimes against humanity.’ And so we actually decided that was a crime, even though technically it wasn’t a crime at the time. But that’s really the controversy you’re talking about, is how can we talk about the rule of law, when it wasn’t a crime at the time? And I think the way they’d get around with that is that, because the types of crimes that were committed were so reprehensible, and so unimaginable, that it’s all so understood you don’t do those kinds of things. Like, it goes back to the bible, that you don’t just kill. You’re not that cruel and inhumane to the point that you’ve got concentration camps, and the point that you’re starving people. And I think that’s kind of how they got around it. But I think probably the significance of the whole Nuremberg Trial, the whole point that made it stand out 5:03 was that we didn’t just execute them right away. And, you know, some of the other Allied countries wanted to do that. But we really stood for our principles of justice that even in the most extreme circumstances and no matter (...) the defendants were, and no matter how the temptation may be to seek vengeance, that the Nuremberg Trials really manifested the principles of what a civilized society is all about. And that is the accused is (...) to certain due process rights, including the right to have to confront one’s accusers, and to question (...) I mean, no matter how evil their crimes were, no matter how unthinkable they were, the idea is that we were going to actually put them on trial for the world to see. 5:48
Nicole: Right. I know we’ve seen a lot of documents talking about the controversy over the ex post facto law use, and I know that one of the main counter-arguments is, like you said, of course when you have concentration camps and you’re committing such heinous, obviously crimes against humanity not even in legal terms but in a sense of humanity, it’s obviously wrong. They should know not to be doing that, so whether or not it’s established in law, these aren’t things they should be doing. Why do you think that people still take issue with that today? Why critics of the trials still make arguments against ex post facto use?
Jen: Because ex post facto, though it might have been a guiding legal principle, it wasn’t set in stone in an international legal context, either? 6:50
Kerker: So, I mean, just so you understand ex post facto, it’d be like if we decided today whatever, let’s say, what did you eat for lunch today? What’d you guys eat for lunch today?
Jen: A sandwich.
Kerker: What kind of sandwich?
Jen: It was a turkey sandwich.
Kerker: Okay, so if we made a law that said eating turkey is against the law, and we put that into effect tomorrow, right? You ate the turkey sandwich today, so when you ate the turkey sandwich, it was not against the law. But now, we just decided that noone can eat turkey sandwiches, so you really shouldn’t be punished for a crime that wasn’t a crime when you did it. Technically, the indictments they came up with, ‘war crimes’ and ‘crimes against humanity,’ ‘crimes against peace,’ those weren’t crimes at the time. (...) It wasn’t a crime, and so therefore 7:48 I mean, that’s the biggest criticism of the trial, is that you could actually be prosecuted for something that wasn’t a crime at the time. And (I told you?...) it kind of goes back to the Bible, (...) I mean there are some things that you just don’t do in any civilized (...) I mean, the idea of wiping out an entire population, of ethnic cleansing, the idea of starving people to the point where they’re skeletons, you know, most of them were dying. The type of thing where in any civilization, it should be given that you don’t treat your people that way, and I think that’s how they got around it. Because those actions were so (...) that they decided they were just, you know, unheard of, and understood that you did not do that.
Nicole: Certainly, and I mean, I think that while it’s clear for us to look at it today and say, “Yes it was ex post facto, but their crimes were so heinous and so obvious,” that 9:13 that becomes a higher and more valid argument than ex post facto. In a very clinical and legal aspect, do you think that some of the counts or the trial itself could be termed as ‘unfair?’
Kerker: Well, I think, I would say no. Because all the defendants were given the opportunity to attack the evidence that was against them. They all had council working for them, they all had an opportunity to present a defense, and in that sense it wasn’t “like these are the cases against you, you have no say in this.” So I think they were given the opportunity to examine the evidence, criticize the evidence, to attack (...) attorney, that that’s what made it fair.
Nicole: Right. Do you think the Allies did a good job of establishing, as best they could, a certain degree of legitimacy to the Trials? You know, a sense of, “we have the right to do this,” and to make it as little like ‘victor’s justice’ as they could?
Kerker: Ask me the question again. Did the Allies do a good job doing what?
Nicole: Did the Allies-- I know they were kind of reforming the previous method of just using ‘victor’s justice’ and summary execution, doing whatever was easiest for the winners.
Kerker: Right, well, fortunately they didn’t do that. They got together and they actually created, you know, they actually got together and created a whole rule for the trials. Because they had to agree on a lot. They agreed it was going to be a jury trial, it was going to be a military tribunal, they agreed that there was going to be a judge for each of the countries, the United States, Britain, the Soviet Union, and France. There were four judges. There were four alternated, too, just in case something (...) in the end they didn’t need the four alternates. But in case of illness or incapacity. They established all the rules and the procedures 11:27 they came up with the four indictments, or the four charges, ‘conspiracy,’ ‘crimes against peace,’ ‘war crimes’ and ‘crimes against humanity.’ One of the things they made sure was that there wasn’t a defense for the crime, you couldn’t say you were following orders. They also put together the idea that, the concept of conspiracy, because they had to prove that over and over again. You know, if they could just prove that it was (...) criminalization (...) if you’re part of one (...) it didn’t have to be proven in subsequent trials. They also, the whole concept of what I said before of having a fair trial. That the indictments were specific, what they were being charged with. They had the right to (...) They had the right to have the indictments translated into their own languages. They had the right to (...) to have the assistance of counsel, they had the right to present evidence at trial, and the witnesses. The trial was also done, even though it took eleven months to do, as quickly and efficiently as possible. They tried not to have too much delay, to resolve whatever legal issues happened in the courtroom. 12:58 They had the right to an appeal, and they carried out the sentences pretty much right away, instead of having it lingering. I think that was important, too, that justice, there was appeals, and if there was a sentence it was carried out pretty much right away, including the death sentences.
Jen: How did the prosecution exactly combat the defense against superior orders argument presented by the defendants? Did they ban it alright together because they did with the tu quoque legal principle?
Kerker: Well, actually, it was the charter. It was there when they got together they basically put together all the rules and procedures for the trial, that was one of their rules, so, it was technically the rule that they weren’t allowed to (...) it wasn’t going to be about 14:00 (...) So they didn’t have to prove it or disprove it, it was one of the rules. So then they (?) it ahead of time. I know that you’re saying it was kind of hypocritical that they could do that, but, they did. They were able to do that as part of their charter, the tribunal, that was one of the rules.
Nicole: And I know, in a way, what we’ve kind of discovered through our research is that by being a little hypocritical and possible not having a huge base of legitimacy, that created a more fair legal system.
Kerker: Correct.
Nicole: Moving into a little of the legacy side of things, I know that a lot of critics have said that these international laws created don’t actually deter violence. Would you say that that’s true?
Kerker: Well, I mean, I’ll try to answer that. We still have violence in the world, so obviously that’s true. But I mean, it sort of depends on, a law is only as good as it is, whether it’s being enforced or not. If the flaw in the international community is that they’re not really enforcing it. And not really going after people. And sometimes they are but it’s a very, uh, it’s not like in our country you know where you have the laws and the system and everything like that, it’s more complicated when you have a nation that (...) it’s not really set up the way it was designed to (...) in the international community, the cooperation of all the different countries, and there are a lot of politics involved as you can imagine.
Nicole: Do you think we still see the effects of Nuremberg today? Was it a truly monumental set of trials?
Kerker: Well, it was definitely monumental. We obviously still have problems today with things going on in other countries, you know, Rwanda, Darfur, Guantanamo Bay, even. I mean, you can see things going on even today, but what the Nuremberg Trials did was it actually created a record, so that nobody could deny that the Holocaust ever happened. And that, a lot of the evidence that was used in the trial, evidence that the Nazis had actually kept very detailed records, and actually seeing when the people were liberated from the concentration camps, and seeing the condition that they were in, the soldiers were shocked at what they saw. So it definitely created a record of what actually happened, and it actually showed 17:12 that we actually were more civilized, that we actually weren’t just going to execute people, just because we had vengeance. So it showed that we had records, that we were going to follow the rule of law, and that we would give people a trial even though people maybe felt that they didn’t deserve a trial, we were going to show that we were civilized, (...) and that we were going to make sure that they had a fair trial instead of just shooting first.
End Recording