Assigning Guilt and Dispersing Blame: Conspiracy Discourse and the Limits of Law in the Nuremberg Trials

Abstract:This essay investigates how Allied postwar planners sought to overcome a set of legal, political, and pragmatic problems in the punishment of Nazi perpetrators by turning to conspiracy law. In doing so, they sought to glean the rhetorical benefits of conspiracy discourse and argument but were largely thwarted due to the specialized burdens of proof required by law. Here, I suggest that while everyday uses of conspiracy discourse can overcome the problem of assigning individual guilt in the midst of dispersed and collective criminality due to its low burdens of proof, the heart of the Western legal tradition—the fault principle—stymies the effectiveness of conspiracy law as a charge. Despite its relative inefficacy, conspiracy law has had a significant legacy in shaping postwar understandings of World War II and in providing a precedent to hold perpetrators accountable in recent postconflict trials. The continued usage of conspiracy law, despite its shortcomings, points to the limits of legal solutions in the wake of mass atrocities and the need for creative mechanisms for dealing with perceptions of individual and collective guilt.