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Was The Nurenburg Trial Just Victors Justice?


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#1 Murph

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Posted 04 January 2019 - 1649 PM

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?


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#2 lastdingo

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Posted 04 January 2019 - 1705 PM

They sentenced on some not pre-existing laws, which was unnecessary, for the people convicted could have been sentenced to life in prison using pre-existing law (plain murder charges, for example).

Yet they meant to make a point against wars of aggression. Sadly, the Soviets were never really on board for real with this and the Americans gave up on rule-based order with the Bay of Pigs invasion at the latest.

Many generals among the 'victorious' allies could have been sentenced on the standards applied to the nazis, particularly for the intentional bombing of cities' living quarters.

 

I suppose these things are widely known and as much consensus as anything could be.


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#3 glappkaeft

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Posted 04 January 2019 - 1732 PM

Many generals among the 'victorious' allies could have been sentenced on the standards applied to the nazis, particularly for the intentional bombing of cities' living quarters.

I think you have that pretty much the wrong way around, some of the Nuremberg Military Tribunals have been criticized for being to soft, especially in areas we now think are questionable like strategic bombing of "civilian" targets, unrestricted submarine warfare, etc

Some of the NMTs have been criticised for their conclusion that "moral bombing" of civilians, including its [/size][/font]nuclear variety, was legal, and for their judgement that, in certain situations, executing civilians in reprisal was permissible.[/size]


Edited by glappkaeft, 04 January 2019 - 1734 PM.

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#4 Adam_S

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Posted 04 January 2019 - 2016 PM

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?

 

I'm not sure if that would have been a good idea, given the near total absence of the rule of law in Germany for 20 years or so.


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#5 Murph

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Posted 04 January 2019 - 2105 PM

 

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?

 

I'm not sure if that would have been a good idea, given the near total absence of the rule of law in Germany for 20 years or so.

 

Point well taken.


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#6 bojan

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Posted 04 January 2019 - 2150 PM

 

.. executing civilians in reprisal was permissible.[/size]

 

That actually was, but strictly on 1 for 1 basis, and no women and children. Which was not how it was done by Germans anyway.


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#7 Adam_S

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Posted 04 January 2019 - 2350 PM

 

 

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?

 

I'm not sure if that would have been a good idea, given the near total absence of the rule of law in Germany for 20 years or so.

 

Point well taken.

 

 

 

This is a favorite rant of mine actually. It's taken literally hundreds of years and a fair bit of struggle to build the Western style of democratic government and the rule of law and we'd be extremely foolish to take this lightly. This applies both domestically but also in relation to foreign conquests too (I'm looking at you, Middle East). Modern Germany is the liberal, democratic society it is because we utterly crushed them in WW2 and literally rebuilt their society for them from the ground up.

 

Also, what's wrong with a bit of victors' justice anyway? We'd just fought the most vicious war in the whole of human history to rid the world of one of the most vile, murderous regimes the world had ever seen. What's the problem with hanging some of the bastards that helped start it?


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#8 NickM

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Posted 04 January 2019 - 2355 PM

"Also, what's wrong with a bit of victors' justice anyway? We'd just fought the most vicious war in the whole of human history to rid the world of one of the most vile, murderous regimes the world had ever seen. What's the problem with hanging some of the bastards that helped start it?"

 

 

I am SO stealing that!


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#9 DougRichards

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Posted 05 January 2019 - 0100 AM

On the other side of the world, but still pertinent:

 

https://www.abc.net....-war-2/10487132

 

"Accused Hideki Tojo, on the counts of the indictment of which you have been convicted, the International Military Tribunal for the Far East sentences you to death by hanging."

With those words on November 12, 1948, a judge of the High Court of Australia unwillingly passed a death sentence on the wartime leader of one of the major Axis powers.

As president of the International Military Tribunal for the Far East, Sir William Webb presided over one of the two multinational tribunals established to prosecute the Axis crimes of World War II (the other being the International Military Tribunal at Nuremberg).

No Australian jurist before or since has ever held such responsibility, yet his part and Australia's key role in the prosecution of hundreds of accused Japanese war criminals throughout the Asia-Pacific are little remembered today.

Seventy years on, it's worth returning to the controversies surrounding the program of trials to see if there's anything we can learn.

 

Immunity for the emperor

Webb's scruples about the death sentence did not come from sympathy for Tojo or the other six defendants also sentenced to hang.

Rather, it was the joint decision of the Allied Governments to grant Emperor Hirohito immunity in exchange for his cooperation.

"It would be a travesty of justice, seriously reflecting on the United Nations, to hang or shoot the common Japanese soldier or Korean guard while granting immunity to his sovereign perhaps even more guilty than he," Webb had written in September 1945.

Having spent three years investigating war crimes in the Pacific, he was convinced that responsibility for Japanese atrocities needed to be pursued all the way to the very top.

The Australian Government came around to his view, but its British and American Allies did not. The Emperor was left in power, used as a buffer to soften Japan's rough and rapid transition to democracy. As a consolation prize, perhaps, General Douglas Macarthur appointed Webb as president of the tribunal.

 

Webb out of his depth

Webb was a diligent and effective investigator, but he was out of his depth in Tokyo. Balancing the competing legal and political objectives of the cosmopolitan court would have required a subtle and confident judge, extremely knowledgeable in international law and able to deal effectively with the international bench and the Japanese defendants.

Webb was not such a man. New Zealand judge Erima Harvey Northcroft described him as "brusque to the point of rudeness. He does not control the court with dignity, he is pre-emptory and ungracious in his treatment of counsel and witnesses, and instead of giving shortly the legal justification which in most cases exists for his decisions, he leaves everyone in the court with the impression his rulings are dictated by petulance or impatience and an impression, which may easily develop in the future, of prejudice."

Nuremberg was wrapped up and the death sentences carried out by the end of October 1946. Tokyo, afflicted with administrative troubles, translation difficulties, and the incompetent management of the prosecution case by lead prosecutor Joseph Keenan, limped on into late 1948.

 

Carrying on without the president

Webb's authority with the court, already weak, suffered a fatal blow in early 1947 when the Australian Government, in a breathtakingly parochial decision, summoned him to home to sit on the High Court for the bank nationalisation case.

By the time he returned to Tokyo in December, he was president of the court in name only.

Three judges — Northcroft, Lord Patrick of the United Kingdom, and Edward Stuart McDougall of Canada — had decided to take matters into their own hands.

All three men had served in one world war, seen a second, and had become determined that there should not be a third.

They agreed they could best achieve this goal by ensuring that Japan's wartime leaders were convicted.

 

They knew that the prosecution's case was struggling, particularly following Tojo able handling of Keenan's botched cross-examination. And they also knew that two of the other judges, Bert Roling of the Netherlands and Henri Barnard of France, had serious reservations about convicting men under laws which they believed the court was making up as it went along.

Northcroft, Patrick and McDougall succeeded in pulling together a solid but not overwhelming majority of seven judges out of 11.

As president, it still fell to Webb to read the majority judgement, even though he played no role in writing it.

Reading the judgement and the sentences took him eight days; the sentences were read on November 12.

Tojo accepted his fate with characteristic stoicism. Taking off the headphones through which he had heard a translator announce Webb's sentence in Japanese, he stood up, smiled at Webb, nodded, and bowed very deeply.
Turning sharply, he walked out of the courtroom.

 

'He has lost his belief in war'

Five of the judges wrote partial or full dissents of their own, although these were not read to the court and were only published later.

Most controversially, openly pro-Axis judge Radhabinod Pal of India wrote a massive and inflammatory dissent where he suggested that Japan had fought a justified war against Western imperialism, implied that evidence of Japanese war crimes against Asian civilians had been exaggerated for propaganda purposes, compared the atomic bombings of Hiroshima and Nagasaki to the Holocaust, and argued that all of the defendants should have been acquitted of all of the charges.

In a short partial dissent, Webb agreed with the majority on their interpretation of the law but expressed reservations about the sentencing: "I do not suggest the Emperor should have been prosecuted. That is beyond my province. His immunity was, no doubt, decided upon in the best interests of all the Allied Powers. Justice requires me to take into consideration the Emperor's immunity when determining the punishment of the accused found guilty: that is all."

This mild statement still inflamed Macarthur, who believed Webb was cynically exploiting anti-Hirohito feeling to boost his popularity in Australia, and compelled the prosecution to issue a statement affirming that there had been no grounds to prosecute the Emperor.

In his final public statements before his execution on December 23, 1948, Tojo repeated his satisfaction that the Emperor had escaped prosecution, confirmed his faith in the people of Japan, and called for world peace.

He was now under the guidance of a Buddhist priest, Dr Hanayama, who was pleased with the progress his pupil was making.

"Since he embraced the Buddhist faith six months ago, he has lost his belief in war," Dr Hanayama told the media in a press conference in early December.

"A devout belief in Buddhism, together with the knowledge of the suffering the war has caused the world's peoples, has convinced him that there are other, better means of solving world's problems."

 

That, at least, is a good lesson.

Adam Wakeling is the author of The Last Fifty Miles: Australia and the End of the Great War and Stern Justice: Australia in the Pacific War Crimes Trials.


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#10 Stuart Galbraith

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Posted 05 January 2019 - 0300 AM

 

 

 

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?

 

I'm not sure if that would have been a good idea, given the near total absence of the rule of law in Germany for 20 years or so.

 

Point well taken.

 

 

 

This is a favorite rant of mine actually. It's taken literally hundreds of years and a fair bit of struggle to build the Western style of democratic government and the rule of law and we'd be extremely foolish to take this lightly. This applies both domestically but also in relation to foreign conquests too (I'm looking at you, Middle East). Modern Germany is the liberal, democratic society it is because we utterly crushed them in WW2 and literally rebuilt their society for them from the ground up.

 

Also, what's wrong with a bit of victors' justice anyway? We'd just fought the most vicious war in the whole of human history to rid the world of one of the most vile, murderous regimes the world had ever seen. What's the problem with hanging some of the bastards that helped start it?

 

 

Pretty much my stance on it. They locked my Grandfather up for 5 years, at that point i think they all had it coming. :D

 

They had to demonstrate to West Germany (East Germany too) that there was such a thing as law and order and morality. We seemingly deprecate these things now, but it was nothing to what the Nazi's did to them. They had to be shown how civilized nations behaved (as between the wars they were) to put them back on the straight and narrow. And if that sounds patronizing, you have to remember the perspective of Britain and the USSR before the trials, that for what they did they didnt deserve a trial and should be hanged without one, as they did their victims. The Americans saw the inherent value of doing otherwise.

 

 

I think we did it right, though it didnt stop the process having politics thrust upon it. The Soviets tried to indict a German for the Katyn forest massacre (which fooled nobody), and we all let Albert Speer off with a prison sentence when he probably didnt deserve it. And it didnt help anybody the most senior man on charge escaped the hangman entirely with a suicide pill. It was an imperfect process, but certainly cathartic I would think.


Edited by Stuart Galbraith, 05 January 2019 - 0301 AM.

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#11 Leo Niehorster

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Posted 05 January 2019 - 0409 AM

 

They had to demonstrate to West Germany (East Germany too) that there was such a thing as law and order and morality.

<Mr. Picky>

  The trails were over by September 1946.

  Both the DDR and GDR * was founded in 1949.

</Mr. Picky>

 

* :P


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#12 Stuart Galbraith

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Posted 05 January 2019 - 0413 AM

You are right of course.

 

There was obviously at some point going to be a future German state envisaged. I strongly suspect at that point they thought it would be neutral, such as engineered latterly with Austria. There was even an attempt by Churchill to push a German that was deindustrialized.

 

But I hold out my hand, feel free to smack it with a ruler.. :D


Edited by Stuart Galbraith, 05 January 2019 - 0417 AM.

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#13 Ken Estes

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Posted 05 January 2019 - 0457 AM

Hirohito's status was agreed to by the US during the negotiations leading to the Japanese unconditional surrender. Without it, they would likely not have surrendered on 15 August, and the bloodbath would have continued, making Okinawa and Iwo casualties seem minor.

 

Germany had a constitutional monarchy as of 1850 and was a democratic republic as of 1919, effectively ended by the Nazis in 1934. Thus, they had no democracy learning curve to contend with and anyway were under military government 1945ff.

 

Speer's position as an armaments minister made him culpable for slave labor charges; he could not have evaded prison.

 

Austria attempted to claim itself to the Allies in 1945 as a victim of Nazi oppression and thus evade occupation and penalties. Not so fast!


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#14 BansheeOne

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Posted 05 January 2019 - 0507 AM

I think the fact that Dönitz was cleared on the charges relating to unrestricted submarine warfare after the court heard Nimitz' testimony that the US Navy had done pretty much the same speaks against victors' justice to some degree. Of course the prosecution could afford this since he was hung on other charges anyway.

 

I don't think it could have been left to German jurisprudence. Prior to 1949, the Allies were in charge of occupied Germany anyway, and the same accusation would like have been made. Afterwards, the West German government rapidly released all those sentenced to prison (with quiet Western allied consent, it has to be said) to remove the exact cloud of victors' justice in the popular mood, and to use their expertise for the economic and military buildup against the East everybody wanted. Rudolf Hess was the sole exception, remaining beyond reach in the Spandau prison jointly run by all four original powers. No major West German Nazi trials occurred before the Auschwitz trials in Frankfurt from 1963.

 

In East Germany, overall results would probably have been much the same. Which is to say the Soviets hung whom they hung, a new government of exiled communists was parachuted in from Moscow (such as had survived Stalin's purges), and they declared victory over fascism, no further measures or atonement needed.


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#15 Ken Estes

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Posted 05 January 2019 - 0524 AM

Context and discussion:

 

END OF EUROPEAN AGE: 6 yrs of conflict, highest destr population: (USSR 16-20M+/ 10%, POL 15%, YUGO 20%) Jewish pop 9.2->3.8, 1M left w of USSR. Pop upheaval as refugee, Ger flee Rus, expelled fr POL, CZECH. End DrangNachOsten.

 

Soviet Union   23,954,000

China   15,000,000

Germany   7,728,000

Poland   5,720,000

Japan   2,700,000

India   2,087,000

Yugoslavia   1,027,000

Rumania   833,000

Hungary   580,000

France   567,600

Greece   560,000

Italy   456,000    

Great Britain   449,800

United States   418,500

Czechoslovakia   345,000

Netherlands   301,000

Austria   123,700

Finland   97,000

Belgium   86,100

Canada   45,300

Australia   40,500

Bulgaria   25,000

New Zealand   11,900

South Africa   11,900

Norway    9,500

Spain    4,500

Denmark    3,200

 

            Phys prop destr: USSR-1700 cities/towns 70K villages, 70%ind, 60%trans of invasion areas. GER housing short, cities rubble; FR&LOW Br&RR cut, canals, harbors. Ind Agri down less 50%, trade disrpt; SWED,SWISS oases.

            Finance: BR dubious distinction of largest debtor. EUR tech’y liable/L-lease $30B (BR13.5,USSR9B). GER prostrate after 10x public debt s/1939, 7x infl/curr. CONTRAST with US: only 300K dead, +2x production as GNP $91-166B. Merch ships 1939 less than 1/3 Eur, now exceeds.

THREAT OF ANTICOLONIALISM, further cost to retain Empires. USSR in E Eur. DESPITE V-E JUBILATION, EUR SOMBER, GLOOMY. EMIGRATION, SUPRANATIONAL IDEAL (BENELUX).

 

PURGE OF COLLABORATORS- DeNaz’n of GER: but 8M party mbrs incl most high civil serv, business, intell. Re-edu with occ army? No, occy as defeated pwr, non-fratern. Slow methodical invest in W. zones Russ try major war criminals, use&superv rest who can obey orders.

Italy, few trials, dismissals, most lesser fasc readjust, reaccepted.

Collaboration trials varied greatly; often used to elim pers/polit opponent, settle scores. FR condemns Vichy govt, many others worked with Nazis. Off’y 170,000 cases, 120K sent’d, 5000 exec’d, but misld since ex-officio 5K+ exec by resist etc., 44-45. Sources sugg inflated figures. BE, NE detain 600K, 200K but few maj trial, exec. Austr 9K cases, 35 exec. USSR POWs to Gulag, purge Ger-occ’d terr.

 

            Nurnberg trials of 24 major war criminals, many minor, corporations (e.g. IG Farben,Krupp) WIDESPREAD CRITICISM, 1st  Fr&Ger, later intl. Is intl law applicable to individual [e.g. waging aggressive war as personal offense]? Rules of evidence, witnesses, arbitrary accusation, publicity, etc. But what were the alternatives? Unprecedented, unthinkable crimes: somebody had to answer. Ultimately Ger local machinery most thorough, persistent as Ger nation grew to face past: 1963 Auschw trial, 1965 indef extension of charges…CONTRAST w/Japan, alleging war was forced on them!!


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#16 Stuart Galbraith

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Posted 05 January 2019 - 0525 AM

Hirohito's status was agreed to by the US during the negotiations leading to the Japanese unconditional surrender. Without it, they would likely not have surrendered on 15 August, and the bloodbath would have continued, making Okinawa and Iwo casualties seem minor.

 

Germany had a constitutional monarchy as of 1850 and was a democratic republic as of 1919, effectively ended by the Nazis in 1934. Thus, they had no democracy learning curve to contend with and anyway were under military government 1945ff.

 

Speer's position as an armaments minister made him culpable for slave labor charges; he could not have evaded prison.

 

Austria attempted to claim itself to the Allies in 1945 as a victim of Nazi oppression and thus evade occupation and penalties. Not so fast!

 

Sorry, I perhaps was not making myself clear. I dont think he should have avoided a sentence, im suggesting he probably deserved death, as at least one of his deputies got for following his orders. As Gitta Sereny pointed out, he was the Nazi that said 'sorry', and the judges decided to reward him for it. Which is admirable, but probably not so admirable he should have avoided a date with the hangman.

 

Im glad he didnt, because he performed a useful service to history. But that's not the same as saying he got what he deserved.

 

Austria pretty much got away with any of the blame of WW2. That it was able to negotiate the withdrawal of the allied powers and become neutral was largely down to that  I feel. Their victimhood status has never really stood up, but it was politically useful for both sides to accept it. Germany was the real prize.

 

Banshee, Donitz as you know wasnt hung, he got 20 years IIRC. He regarded that as purely for being Nazi Germany's last leader.

 

(edit, Ken is right. I could have swore it was 20. I must have been thinking of Speer)


Edited by Stuart Galbraith, 05 January 2019 - 0530 AM.

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#17 Ken Estes

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Posted 05 January 2019 - 0527 AM

Banshee, you're speaking metaphorically? Doenitz served ten years.


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#18 JasonJ

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Posted 05 January 2019 - 0534 AM

Context and discussion:

...

 

CONTRAST w/Japan, alleging war was forced on them!!

 

Some arguments made from the Japan side is too one sided with the "war was put onto Japan" argument. But some points from that argument do stand. Cause of the war between the US and Japan goes three ways as far as I can tell, a Japan cause, a US cause, and a general geopolitical international situation cause. The Tokyo Tribunal result is a mix of fair hangings and victors' glory. Since the victor's glory had/has rein supreme the "war was put onto Japan" is like a knee jerk reaction.


Edited by JasonJ, 05 January 2019 - 0534 AM.

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#19 Markus Becker

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Posted 05 January 2019 - 0546 AM

The Nurenburg trial was it just victors justice? Would it have been better to have let the German people try the criminals for what they did, and each country have their own courts render justice to the criminals?  Was it even a legal court?


After WW1 German courts were supposed to do just that and guess how that turned out.

The convictions for war crimes and crimes against humanity were 100% justified and would have probably been possible applying German law. Sentencing Dönitz and Reader for USW was IMO pure BS considering the USN did exactly the same and unlike the KM did it right away. I put indictments for crimes against peace in the same category. Sovereign nations were free to wage war as they saw fit at the time.
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#20 BansheeOne

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Posted 05 January 2019 - 0548 AM

Banshee, Donitz as you know wasnt hung, he got 20 years IIRC. He regarded that as purely for being Nazi Germany's last leader.

 

(edit, Ken is right. I could have swore it was 20. I must have been thinking of Speer)

 

 

Banshee, you're speaking metaphorically? Doenitz served ten years.

 

Damn, you guys are right - I misremembered from recently looking up the Laconia Incident and somehow thought I read he was hung. Which surprised myself, but who am I to argue with the internet? :D

 

Of course this actually reinforces the argument against victors' justice.


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