A veteran judge of the Moscow Show-Trials played an important role in determining procedure for the International Military Tribunal at Nuremberg.
The Law of Nikitchenko
From Freispruch für Deutschland by Heinrich Haertle
Translated by Hadding Scott, 2015
Jackson's staunchest ally, both now in the preparation and later in the conduct of the trial, is Comrade Nikitchenko, vice-president of the Supreme Court of the Soviet Union, now Stalin's representative in the negotiations at London, major-general of the Red Army, soon to be Soviet judge in Nuremberg. Nikitchenko sweeps away Sir David's concerns about Norway with the pronouncement from the table that such a question would not even be allowed to be raised before the tribunal. The tribunal would simply deem it as “given” that the Germans wanted to attack Norway. Nikitchenko's recommendations become law. Anti-Bolshevik and Bolshevik agree on a procedure whereby only such deeds as could be blamed on the conquered would be allowed to be discussed.
International Law, to which alone whoever claims the judgeship may appeal, must be accordingly stretched for the purpose, to be able to reach the goal of retribution. Sir David goes so far – and Nikitchenko hears this with amusement – that he dares to demand:
What we want to abolish at the trial is a discussion about whether the acts are violations of International Law or not. We declare what the International Law is so that there won't be any discussion on whether it is International Law or not.[DoS publ. 3080, p.99]
Now all legal impediments seem to be eliminated. Only in one central question does considerable doubt occur to the French expert on International Law, Dr. André [Gros]. He opines that it would be morally and politically desirable to make the defeated statesmen and generals responsible for the war, “but that it is not International Law.” (DoS publ. 3080, p. 297)
But for Jackson this is not a problem. He bends International Law as needed and dares to require something that in itself would certainly have sufficed to expose his trial as a mockery of all principles of justice. Jackson responds that Professor André's criticisms seem to leave the tribunal in such a position that it could be justly affirmed that there is no personal responsibility.
We must declare that they are answerable personally, and I am frank to say that International Law is indefinite and weak in our support on that.... [DoS publ. 3080, p. 331]
Now one understands why the Allies waited until four years after their Nuremberg Tribunal to publish the transcript of the preparatory negotiations about the principles of the charter; only in 1949 was it allowed to appear. On pages 104-106 of The Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London 1945, published by the U.S. Department of State, is reported a demand by Nikitchenko that can only be designated as the juristic counterpart to Stalin's Katyn-method. With unprecedented impudence Jackson's colleague admits the fundamental law of Soviet class-struggle justice. Bolshevik partinost, partisanism, is set without any reservation as the legal foundation for the international court:
[GENERAL NIKITCHENKO.] ... [W]ith regard to the position of the judge -- the Soviet delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case. The declaration of the Crimea Conference is quite clear that the objective is to bring these criminals to a just and speedy trial. Therefore, the judge, before he takes his seat, already knows what has been quoted in the press of all countries, and it is well known about the criminal as accused and the general outline of the case against him. The case for the prosecution is undoubtedly known to the judge before the trial starts and there is, therefore, no necessity to create a sort of fiction that the judge is a disinterested person who has no legal knowledge of what has happened before. If such procedure is adopted that the judge is supposed to be impartial, it would only lead to unnecessary delays....
... [I]t has been decided that they shall go through a process of trial, but the object of that trial is, of course, the punishment of the criminals, and therefore the role of the prosecutor should be merely a role of assisting the court in the actual cases. [...] [T]he prosecution would assist the judge, and there would be no question that the judge has the character of an impartial person.
That is the classic method of the Bolshevik show-trials. The only totally new thing in it is the fact that legal representatives of cultured European nations themselves in their quest for vengeance lower themselves to the point of applying this anti-justice to a cultured nation. The delegates of English, French, and American justice have never proclaimed it so brutally. But then they accused, judged, and sentenced according to that Stalinist principle that Nikitchenko was permitted to demand from them in all openness:
GENERAL NIKITCHENKO. [...] We are dealing here with the chief war-criminals, who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea declarations by the heads of the governments, and those declarations both declare to carry out immediately just punishment for the offenses which have been committed. [DoS publ. 3080, pp.104-105]
That was on 20 June 1945. One month later, on 19 July 1945, Nikitchenko can again summarize his ideas about an international court in two sentences:
GENERAL NIKITCHENKO.The fact that the Nazi leaders are criminals has already been established. The task of the tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment -- the sentences. [DoS publ. 3080, p. 303]
That is Bolshevik legal philosophy from GenrikhYagoda to Hilda Benjamin. The only new part, we must repeat, is that proletarian class-justice is now adopted by the jurists of the Western democracies. No less a figure than the supreme representative of the English legal system, Lord Justice Geoffrey Lawrence, just four years later on 14 May 1949 praised the “competence and impartiality” of the juristic functionaries of Soviet partinost.
“One hand washes the other.” That is also a Russian saying. In exchange for the adoption of Russian trial-methods by the West, the East is ready to suppress a problem that is dangerous for the American and English justice-fanatics: the Anglo-American air-terror.
The silence about this was so complete that the debates about this conundrum are even prevented from being recorded in the transcript of the London negotiations. Only years later did Chief Justice Jackson admit that this question was discussed, and that it was agreed not to charge the Germans with the air-attacks upon civilian populations of which they were supposedly guilty. Otherwise, it would inevitably have been revealed in Nuremberg that the main guilt for terror-bombing, for the most brutal barbarity of the 20th century, belongs to those powers that play the accusers before the International Military Tribunal. With unsurpassable brazenness Jackson admitted:
“This subject would have immediately given rise to a demand for making counter-accusations, which would not have been useful in the trial.”
After they have indefatigably made their conception prevail, the Soviets savor the mockery of justice. Since 1943 they have already liquidated hundreds of thousands of German “Nazis and militarists”; now they begin the complementary “juristic” persecution and plan no less than 200,000 such “trials.”