The late Telford Taylor made a lasting contribution to the security and legal rights of people across the world. In 1962, Taylor began a professorship at Columbia Law School, where he was named the Nash Professor of Law in 1974. In 1976, he joined the faculty of the Yeshiva University Cardozo School of Law.
During his lengthy legal career, Taylor worked for Judge Augustus Hand of New York’s Second Circuit Court of Appeals, the Department of Interior, the Agricultural Adjustment Administration, the Senate Interstate Commerce Committee, and the Department of Justice. In 1940, he became general counsel for the Federal Communications Commission. Two years later, during World War II, he served in Europe as a U.S. Army intelligence officer, and was awarded the Distinguished Service Medal. After the war, Taylor was a principal prosecutor of high Nazi officials and leading German industrialists during the Nuremberg war crimes trial. He went on to become chief prosecutor of the trials and an authority on the laws of war.
After the Nuremberg trials, Taylor lectured and wrote about the moral conduct of the United States. He was an early opponent of Senator Joseph R. McCarthy, who led what have come to be known as anti-Communist ”witch hunts” during the 1950s, and Taylor frequently defended Communists, accused perjurers, and others who were under political attack. In 1955, Taylor’s Grand Inquest: The Story of Congressional Investigation was published. It traced the impropriety of congressional investigations since 1791 that had been used to protect the country from communism. During the Vietnam War, Taylor urged President Richard M. Nixon and Congress to appoint a national commission to investigate the origins and conduct of the conflict. In 1970, he published Nuremberg and Vietnam: An American Tragedy, an exploration of the development of the laws of war and their moral implications.
Taylor also authored The Anatomy of the Nuremberg Trials: A Personal Memoir (1992), The Breaking Wave: The Second World War in the Summer of 1940 (1967), and The March of Conquest: The German Victories in Western Europe, 1940 (1958) among others. His Munich: The Price of Peace, The Definitive Account of the Fateful Conference of 1938 won the 1979 National Book Critics Circle Award for best work of general nonfiction.
The Anatomy of the Nuremberg Trials: A Personal Memoir by Telford Taylor (New York: Alfred A. Knopf, Inc., 1992).
In this excerpt, Telford Taylor describes the impact the Nuremberg trials have had on the evolution of the international laws of war.
I have titled my book The Anatomy of the Nuremberg Trials because it will embrace much more than the events which took place in open court. This was a complex trial which sought to break new legal ground on major issues of international law.
To be sure, at the time of the trials the defendants were the main focus of public attention, and the press was full of commentary on their personalities, their comparative degrees of guilt, and the fairness of the tribunals’ judgments. But the defendants and their fates were not the reason why Nuremberg has remained a bench mark in international law and the lodestar of thought and debate on the great moral and legal questions of war and peace.
Some twenty-five years ago, widespread controversy arose over the meaning of Nuremberg vis-à-vis the Vietnam War. Secretary of State Dean Rusk invoked Nuremberg to justify American military intervention, but thousands of young men contended, to the contrary, that under the Nuremberg principles they were legally bound not to participate in what they regarded as the United States’ aggressive war.
The Nuremberg which is remembered and invoked today is Nuremberg as a source and test of the international law of war. While there are many who deny Nuremberg’s validity as a source, they are far outweighed by the nations, international institutions, and people who have accepted Nuremberg’s validity or at least look to if for precedent and guidance. There are no permanently established means of enforcing the Nuremberg principles, and they are often flouted, but as a moral and legal statement, clothed with judicial precedent and United Nations recognition, the Nuremberg principles are an international legal force to be reckoned with.
The ideas which led to the expanded principles of the Nuremberg trials were largely developed by a group of New York lawyers during the autumn and winter of 1944-45, most notably by Henry L. Stimson, John J. McCloy, Murray Burnays, William C. Chanler, Samuel Rosenman, Robert H. Jackson, and . . . President Franklin Delano Roosevelt.
Initially and, in my view most important, was the decision of Stimson, then Secretary of War, to pass over the military courts-martial generally used for the trial of military crimes and establish an international court. On September 9, 1944, he wrote to the President: ”I am disposed to believe that at least as to the chief Nazi officials, we should participate in an international tribunal constituted to try them.” The result was the unprecedented creation of the International Military Tribunal, the most important and, I believe, successful new entity in the enforcement of the laws of war.
The trial, and the judgment of the Tribunal, were of course the public capstone of the Nuremberg enterprise. The subject matter, the notoriety of the defendants, and the caliber of some of the witnesses brought about many sensational and shocking revelations . . . But what law was the International Military Tribunal [IMT] enforcing? Ordinary courts and trials are based on the statutes of sovereign nations. However, the IMT was no ordinary court. It was established by the United States and three major European nations, and the laws by which the IMT was bound were not the laws of any of those or of any other nation. For its rules on crime the IMT looked primarily to the international ”laws of war,” violations of which are called ”war crimes.”
Ask the passerby what the words ”war crimes” bring to mind, and the chances are that the reply will be ”Nuremberg.” This may be a deserved acknowledgment of the seat of the most famous war crime trials, but it also fosters the wholly mistaken notion that the Nuremberg trials were the original source of the ”laws of war.” And in order to understand the anatomy of the Nuremberg trials, it is necessary, first, to know something of the nature and scope of the laws of war before and during World War II and, second, to see what additions to the already existing laws of war those who were building the IMT sought to make.
The root circumstances which gave rise to the laws of war as we know them today are part of the great waves of change that swept Western civilization in the eighteenth and nineteenth centuries, including the decline of the Church and the Holy Roman Empire and the rise of nation-states as the main repositories of temporal power, the Industrial Revolution, and the Age of Enlightenment. Humanitarianism played a part in the development of these laws, but the prime motivations were commercial and military. They were, in fact, very largely the product of what Dwight Eisenhower, when retiring from the presidency, called the ”military-industrial complex.”
Changes in the ”art” of war were the most immediate cause for the customs and practices, limiting the means and manners of warfare, which later turned into rules and then laws. From feudal times until well into the seventeenth century, ”armies” were composed largely of mercenaries, whose pay was intermittent and who, for lack of a regular supply service, had to ”live off the country.” This was devastating both to the effectiveness of the armies and to the economy of nearby farms and towns. Soldiers were brutalized and undisciplined. The Thirty Years War (1618-1648) left much of Europe a shambles; it is estimated that over half the German-speaking population was wiped out, and famine and pestilence were widespread.
From these disastrous years, military lessons were learned. Soldiers who were regularly fed and paid, and who did not have to forage for food and shelter, could be disciplined and trained to a pitch of efficiency that greatly raised the tactical level of operations. Troops were organized under a regular chain of command, in battalions, regiments, and other standard units. Administrative staffs handled supplies, pay, and other logistical necessities. Military police helped enforce discipline, and procedures something like courts-martial were established to punish offenders.
Thus soldiering became a profession, and the distinction between soldier and civilian was stabilized. And so were born the customs and rules governing the conduct of occupying troops, requiring respect for the lives and livelihoods of the civilian inhabitants, as long as they remained noncombatants.
These rules form a major segment of the laws of war today, but of course at the time of their origin they were not thought of as ”international law,” but merely as sensible military regulations. Their consequences in practical application were humane and fitted well with the libertarian and humanitarian ideas of the philosophers and publicists of the eighteenth-century Enlightenment . . . [The] distinction between soldier and civilian, together with the soldier’s obligation to respect the rights of noncombatant civilians of enemy countries, remains to this day, despite Hamburg, Dresden, Hiroshima, Tokyo, and Nagasaki, a vital part of the structure and content of the laws of war.