Earlier this month, Geoffrey R. Stone, ’71, the Edward H. Levi Distinguished Service Professor of Law, delivered a speech at the Illinois Holocaust Museum about the work of the late Professor Bernard Meltzer, ’37, as a prosecutor in the Nuremberg Trials. The presentation was part of the museum’s Symposium on the 75th Anniversary of the Nuremberg Trials. The text of the speech is reprinted here.
I’m truly honored to have the opportunity this afternoon to speak about my former teacher, colleague and friend—Bernard Meltzer. At the outset, I have to admit that I’m not sure whether I should refer to him as Mr. Meltzer, Professor Meltzer, Meltzer, or Bernie—which is how I knew him for more than 40 years. In these circumstances, I think I’ll go mostly with Bernie—although that might seem a bit casual to viewers.
I first met Bernie—Professor Meltzer, as I then knew him— when I arrived at the University of Chicago Law School as a first-year student in September of 1968. Over the next three years I took several courses from Professor Meltzer, including Evidence and Labor Law. He was, I can attest, a truly demanding and inspiring teacher.
When I joined the faculty five years later, in 1973, as an assistant professor, one of the first courses I was assigned to teach was Evidence. In doing so, I relied heavily on my wonderful class notes from Professor Meltzer’s course. I should note that, coincidentally, I am teaching Evidence again this quarter—although this time on Zoom. As I use my notes in Evidence, which have been revised, edited, crossed-out, and made almost unreadable as I’ve amended them over the past half-century, I am still very much aware of how many of the stories I tell, the insights I offer, and the hypotheticals I use in class come directly from the course I took from Bernie all those many years ago. He is still there in my notes— and in my teaching—in spirit, in inspiration, and in his own words, which I happily continue to plagiarize half a century later. Frankly, I love it that Bernie is still there in class with me every day.
But enough about me. Let me now roll back the clock a bit and explain how the future Professor Meltzer wound up in Nuremberg. I should note that, in so doing, I will draw heavily on the work of John Barrett and on Bernie’s own writings and reminiscences over the years.
Bernie grew up in Philadelphia and then earned his B.A. in 1935 from the University of Chicago. Thereafter, he enrolled in the University of Chicago Law School, graduating first in his class in 1937. The next year he earned an advanced law degree from Harvard. He then spent two years at the Securities and Exchange Commission and, after a brief stint in private practice in Chicago, he returned to Washington, where he worked at the National Defense Commission and then at the State Department.
After Pearl Harbor, Bernie sought to enlist in the military, but he was rejected for bad eyesight. As he later told the story, the doctor who examined him said, “I’d like you to be a gunner, but in a Japanese gunboat.” Eventually, though, Bernie managed to join the Navy and he became an officer in the Office of Strategic Services. Several years later, in the spring of 1945, when Bernie was back with the State Department, he was recruited to join the effort to prosecute German war criminals. His talent obviously had not gone unnoticed.
That August, Bernie arrived in London as part of Justice Robert Jackson’s prosecution team. The next month, he was assigned to Nuremberg, where he worked on the draft indictment, on prisoner interrogation, and on gathering evidence. In particular, he led the effort to prepare the evidence concerning Nazi concentration camps.
When Bernie arrived in Nuremberg, he found chaos. The staff had little direction, and Bernie was given barely a week to organize the evidence about the camps. His own work dealt primarily with what was called “the economic case,” which included, first, crimes against peace by defendants who had financed the building of the German war machine with knowledge of Germany’s aggressive purposes; and second, war crimes and crimes against humanity resulting from the systematic plundering and pillaging of occupied territories and the deportation and exploitation of millions of slave laborers.
Bernie managed to organize the evidence efficiently within the limited time available, even discovering the Mauthausen concentration camp and secret documents listing hundreds of victims there, each of whom was fraudulently listed in the Nazi records as dying of heart disease.
Bernie was also responsible for preparing and presenting the evidence against Walter Funk, who had joined the Nazi Party in 1931 and soon became one of Hitler’s personal economic advisers. As a propagandist, Funk worked closely with Joseph Goebbels and had a central role in stimulating the persecution of Jews. As a result of Bernie’s work, Funk was convicted and sentenced to life imprisonment.
In connection with his focus on economic crimes, Bernie interrogated many other defendants, including Herman Goering, whom he found “the most interesting, and the most diabolical.” He was, Bernie said, “intellectually quick, verbally nimble, and always wily. Goering was completely unrepentant and gloried in his role as second only to Hitler and as the most important of the Nuremberg defendants.” In the end, Bernie noted, Goering managed “a small triumph. He cheated the hangman by swallowing cyanide.”
A quarter-century ago, on the fiftieth anniversary of the Nuremberg Trial, Bernie reflected on his experience at Nuremberg in a piece for The University of Chicago Law School titled “Remembering Nuremberg.” In that piece, Bernie observed that the Nuremburg trial, “because of the horrors it addressed, has been viewed as the greatest” trial in world history. In the courtroom were 21 defendants—the surviving leaders of the Nazi regime, including such figures as Goering, von Ribbentrop, and Hess. Seeing them in the dock, Bernie observed, “stripped of their medals and insignia of power, one could scarcely believe that these men had dominated much of the world and had terrified most of it.”
In describing the international indictment, Bernie explained that the “first count charged a conspiracy to commit crimes against peace as well as war crimes and crimes against humanity. The second count charged the actual commission of crimes against peace, namely, the preparation and waging of aggressive wars, which were also in violation of international treaties. The third count alleged certain specific war crimes. And the fourth count alleged crimes against humanity, namely, extermination, enslavement and other inhumane treatments of any civilian population either before or during the war or persecution on political, racial, or religious grounds.”
Bernie noted that the indictment “rejected certain defenses, such as acts of state and superior orders, which in combination might have immunized all the defendants.” He added that “the most criticized provisions of the Charter were those making aggressive war an international crime and providing for individual punishment of those guilty of that crime.
Critics maintained that such an approach was incompatible with the principle that punishment should not be imposed on the basis of standards that are only retroactively defined.” In other words, individuals should not be punished for doing something that was not clearly and expressly illegal at the time they did it. Indeed, taking this into account, Supreme Court Chief Justice Harlan Fiske Stone at the time privately labeled the trial as a "high class lynching party."
Addressing those concerns, Robert Jackson insisted that “the principles against retroactive punishment, properly understood, did not preclude punishment in the present circumstances.” This was so, he argued, because that principle did not apply to the Nazis, because that principle is designed to avoid punishing someone who, when he acted, had no reasonable warning that his conduct was culpable. That rule, Jackson reasoned, was “manifestly inapplicable to the Nazis.”
Bernie agreed with that conclusion. International law, he explained, “was at best a primitive system, lacking a legislative body, and, like the early common law, dependent on case-by-case development. The strict and automatic application of the principle against retroactivity in such a system, he wrote, would have created too large a gap between the law and the developing moral sense of the world community.” In the end, he explained, “the key argument is that the principle against retroactivity is a legitimate principle, but the reasons behind it were totally inapplicable to the Nazi leadership because of the unprecedented gravity of their actions.”
Writing in 1995, Bernie noted that he was still concerned about what was, for him, “the central difficulty of the trial.” That difficulty, he explained, was that “the governing law was not applied equally.” That is, “the standards of guilt were applied only to the losers.” For example, he noted, “the Soviets, who sat on the Tribunal in Nuremberg, were not forced to answer for Soviet aggression against Poland, the Baltic States, or Finland. Nor were the United Kingdom and the United States required to face the questions raised, for example, by the bombing of Dresden and Hiroshima.”
“To some, he added, “the unequal application of the law, compounded by the Soviet presence on the Tribunal, fatally compromised the morality of the trial.” But to others, Bernie noted, “the Nazis' monstrous barbarities and the fact that it was their aggression that precipitated the ensuing horrors warranted the apparently unequal application of the law.”
More broadly, though, Bernie pointed out that Nuremberg merely reflected a long-standing inequality. It was the product of an undeveloped and fragile system of international law. Long before Nuremberg, he noted, “the victor had applied an unequal standard in dealing with traditional war crimes. The victor has traditionally punished the misconduct of the enemy, while similar misconduct by his own forces has largely gone unpunished.”
As a practical matter, Bernie opined, “unless we had been prepared to comb our own ranks for violators of the rules of war, the logic of the inequality argument would have required us to give the Nazis complete immunity for all their crimes.” Such an approach was rightly rejected, he concluded, “because of what was the overwhelmingly greater depravity of the Nazis and because they had launched wars of aggression.”
Moreover, Bernie observed, the legal process employed at Nuremberg was a fair one. The defendants were afforded adequate opportunity to challenge and to meet the evidence offered against them and they could and, in most cases did, take the stand to testify in their own behalf. Indeed, in the end the Tribunal acquitted three of the defendants. Of the other nineteen, twelve were sentenced to death by hanging and the other seven were sentenced to prison terms ranging from ten years to life. The hope, he said, was that these punishments were both just and sufficiently severe to deter similar behavior in the future.
Writing in 1995, though, Bernie observed that this hope had not been fulfilled. In the years after Nuremberg, he noted, there were plenty of aggressive wars for which no international punishment was imposed. Indeed, he noted, “the incidence of aggression has been high enough to raise questions about Nuremberg’s deterrent effect.”
Moreover, he added, Nuremberg may even have had a perverse effect, because it is at least possible that “once an aggressive war breaks out the aggressors’ fear of punishment might encourage them to make a gambler’s throw and to prolong the war even when the probability of winning it is low.” Thus, he noted, the fear of international leaders of “vigorous prosecution for launching a war may ultimately be seen as an obstacle to peace rather than as part of a process leading to durable peace.” Although raising that question, Meltzer said he would leave its answer “to those more adept in speculating in futures” than he.
In the fall of 1946, Bernie was appointed to the faculty of the University of Chicago Law School. Over the next several decades, he became one of—if not the—leading labor law scholar in the nation. In 1971 he was appointed the James Parker Hall Professor of Law and in 1980 he was appointed the Edward H. Levi Distinguished Service Professor of Law—a title I am now honored to hold as his successor.
Bernie was a truly remarkable teacher, scholar, lawyer and person. He was beloved by his students, by his colleagues and by the members of his profession. He was tough-minded, open-minded and always challenging in his endless questions, whether in class, in workshops, over lunch, or at dinner.
When Bernie passed in early January of 2007, I wrote the following to his beloved and wonderful wife, Jean:
Bernie was my teacher, my mentor, my colleague, my father-confessor, my confidante, and my friend. For almost forty years, I looked to him for advice and guidance, and he always gave it wisely and graciously. His curiosity, intelligence, warmth, and humor left a lasting mark on the Law School and on generations of students. I will miss him more than I can say.
And I do to this day.