Nuremberg Trials (Chronology of European History)
Article abstract: The Nuremberg Trials establish an international tribunal for the punishment of defeated German military commanders and civilian representatives as war criminals.
Summary of Event
As early as 1942, the Allies in the war against Nazi Germany had learned from various sources that the Germans in occupied territories were committing countless atrocities against Jews, prisoners of war, and the civilian population. The Germans after World War I never carried out the provision in the Versailles Treaty (articles 227-230) which required them to bring war criminals to trial. The atrocities reported during World War II seemed to be of an even greater magnitude, and the Allies determined early in the war that German war criminals had to be brought to justice. On October 7, 1942, the United States and Great Britain took the lead in establishing the War Crimes Commission, which started to collect evidence and drew up a list of German war criminals. During the Moscow Conference of Foreign Ministers on November 1, 1943, the Soviet Union joined the Western Allies in a declaration on war crimes, promulgated over the names of Churchill, Roosevelt, and Stalin.
Following the defeat of Nazi Germany in May of 1945, the United States, Soviet Union, Britain, and France made more detailed plans at the London Conference of Foreign Ministers. This conference provided for the two legal instruments under which these...
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Nazi War Criminals Are Tried at Nuremberg (Great Events from History II: Human Rights Series)
Article abstract: The Nuremberg Trials of twenty-two Germans accused of war crimes resulted in the conviction of nineteen of the defendants and provided thorough documentation of Nazi crimes against humanity.
Summary of Event
The war that Adolf Hitler launched in 1939 was not simply another military conflict involving territorial and economic disputes growing out of traditional international conflicts. Rather, it was an attempt by the Nazi leadership to exploit or exterminate a large number of religious and ethnic groups in Europe classified as “racially inferior.” By 1942, the Allied leaders had decided that Nazi crimes demanded retribution. The next year, the Allies formed a United Nations war crimes commission to collect evidence of the activities of war criminals. After reconquering Kharkov in 1943, the Soviet army tried and executed several German officers for committing war crimes against the Soviet population. The Moscow Declaration of 1943 stated that after the conflict, Germans accused of war crimes would be returned to the countries in which their crimes had been committed and that major Nazi war criminals would be placed before an international tribunal.
Much of the responsibility for designing the mechanism and procedure that would eventually result in the Nuremberg tribunal rested on American shoulders. The U.S. secretaries of war and state initiated plans for a trial. They faced the...
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Nuremberg Trials (Magill’s Guide to Military History)
A series of trials held in Nuremberg, Germany, in 1945-1946, in which Nazi leaders were tried for crimes against humanity and for committing aggression, a new concept in international law. Despite suggestions from Winston Churchill, Franklin Roosevelt, and others that leading German war criminals be punished without trial, arguments for due process prevailed; an international tribunal composed of French, American, Soviet, and British judges convened in Nuremberg in the fall of 1945. Of twenty-one original defendants, eleven were condemned to hang, seven received lighter sentences and three were acquitted. The most notorious of those sentenced to death, Reichsmarschall Hermann Göring, committed suicide by ingesting cyanide a little over an hour before his appointment with the hangman.
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Nuremberg Trials (West's Encyclopedia of American Law)
The Nuremberg trials were a series of trials held between 1945 and 1949 in which the Allies prosecuted German military leaders, political officials, industrialists, and financiers for crimes they had committed during WORLD WAR II.
The first trial took place in Nuremberg, Germany, and involved twenty-four top-ranking survivors of the National Socialist German Workers' Party (Nazi Party). The subsequent trials were held throughout Germany and involved approximately two hundred additional defendants, including Nazi physicians who performed vile experiments on human subjects, concentration camp commandants who ordered the extermination of their prisoners, and judges who upheld Nazi practices.
World War II began in 1939 when Germany invaded Poland. Over the next few years, the European Axis powers (Germany, Italy, Albania, Bulgaria, Hungary, and Romania) successfully invaded and occupied France, Belgium, Luxembourg, Denmark, Norway, Greece, Yugoslavia, Czechoslovakia, Finland, and the Netherlands. But when ADOLF HITLER's troops invaded the Soviet Union, the Nazi war machine stalled. By the end of the war, the Axis powers were battered and beleaguered, and in 1945 they unconditionally surrendered to the United States, the Soviet Union, Great Britain, and France (the four Allied powers).
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Nuremberg Trials (Genocide and Crimes Against Humanity)
On November 20, 1945, six months after the surrender of Nazi Germany to allied forces, twenty-one military, political, media, and business leaders of the Third Reich filed into the dock of the Palace of Justice in the devastated and occupied German city of Nuremberg. There they stood trial for the most heinous crimes known to humankind, which were committed during World War II. Over the course of the next eleven months, unprecedented trials that profoundly influenced the development of international law and how governments must treat civilian populations unfolded. There were moments of lofty rhetoric and high drama, but often there was also the tedium that has characterized most criminal trials throughout history.
The four major victorious allied powers in the European theater of World War IIhe United States, the United Kingdom, France, and the Soviet Unionet in London during the summer of 1945. On August 8 these nations entered into an international agreement, known as the London Charter, that created a special court called the International Military Tribunal (IMT). The IMT consisted of an organizing charter and constitution "for the just and prompt trial and punishment of the major war criminals of the European Axis." The aggressive military assaults of the German army, the criminal Nazi occupation policies in numerous conquered lands, and the Nazi-inspired extermination of millions of Jews and other victims seemed at the time to provide ample justification for establishing the IMT.
During the height of armed combat, on November 1, 1943, the Foreign Ministers of the United States, United Kingdom, and the Soviet Union declared in Moscow that their war efforts would not prejudice "the case of the major criminals whose offenses would have no particular location and who will be punished by a joint decision of the Governments of the Allies." They thus established a distinction between major war criminals in leadership positions and the many thousands who committed crimes in the field. This differentiation set the stage for the Nuremberg trials of prominent leaders in 1945 and 1946, followed by thousands of trials of war criminals of lesser stature in the courts of the four occupying powers of Germany.
Alternatives to Nuremberg
During World War II, there were many competing ideas about how best to deal with the war criminals of the Third Reich, and the IMT's creation was by no means a certainty until the very end of the war. There always was an expectation that soldiers charged with conventional war crimes would be prosecuted. However, enemy leaders responsible for the atrocities of the Third Reich might have faced an entirely different fate, consistent with the Moscow Declaration. For instance, British officials, aware of a vengeful British public, advocated summary execution of the fifty to one hundred top Nazi leaders. British Prime Minister Winston Churchill wrote to Soviet leader Josef Stalin in September 1944, arguing that such leaders should be executed as "outlaws" within six hours of capture, and that "the question of their fate is a political and not a judicial one." Such plans were kept secret, however, so as to avoid German reprisals against British prisoners of war. In late 1943, Stalin recommended to Churchill and President Franklin D. Roosevelt that 50,000 to 100,000 of the German Commanding Staff "must be physically liquidated."
Within the U.S. government, there were strong advocates for summary execution. Treasury Secretary Hans Morgenthau, who had distinguished himself early in the war as a fierce opponent of the Nazis' anti-Jewish atrocities, was opposed to war crimes trials. In November 1944 he submitted a summary execution plan that initially targeted five million Nazi Party members but settled on 2,500 members. Roosevelt was prepared to adopt Morgenthau's plan, but Secretary of War Henry Stimson argued vigorously for war crimes trials with basic rights of due process drawn from the U.S. Bill of Rights. He believed that such trials would establish individual responsibility for the crimes of the Nazi leadership and uphold democratic notions of justice. Stimson warned, "Remember this punishment is for the purpose of prevention and not for vengeance." The tide turned in Stimson's favor with Roosevelt's endorsement of war crimes trials on January 3, 1945. This was followed by the strong backing of Roosevelt's successor, President Harry Truman. The Soviet Union based its own belated support on their own experience with show trials in the 1930s, believing that war-crimes trial verdicts would result in the public (and popular) execution of the German war criminals.
The IMT can be viewed as symbolic of "victor's justice" and its associated charge of hypocrisy, meaning that the victors in World War II judged the vanquished. The inference of such a view is that the trials might be tainted by the lack of investigation and prosecution of any war crimes that the allied powers might have committed during the global conflict. It was no accident that aerial bombing was excluded as a war crime in the London Charter for the IMT. Including it would make prosecution of German aerial bombings (e.g., of London) appear as victor's vengeance, unless parallel investigations of American and British bombings of German cities (including the fire-bombings of Hamburg and Dresden) were also undertaken.
The German people accepted the reality of reprisals, but they deeply resented the failure at Nuremberg to hold accountable those who inflicted so much horror upon them. German historian and journalist Jorg Friedrich has noted that 700,000 German soldiers and civilians lost their lives in the last three months of the war. During one June 1943 British bombing raid of Hamburg, 43,000 residents died, 8,000 of them young children. Of the aftermath of Allied bombing missions, Friedrich has written:
Nearly all large and medium-sized German cities lay in ruins, charred and exploded into rubble by aerial warfare. In February 1945, in the Baltic port of Swinemunde, a hospital city, more than 20,000 sick, exhausted refugees from eastern Pomerania had been killed in bombings. German settlements in and beyond the eastern and southeastern borders had been purged, in the course of which 1.5 million people perished. In Yugoslavia, 98,000 ethnic Germans were killed or starved to death, one in five members of the population. Two million women were raped by the invading [Soviet] Red Army.
The Soviet government had no interest in being judged for its conduct during the war, including the Soviet Army's role in massacring the Polish officer corps (in the Belorussian forests of Katyn and elsewhere). It also wished to avoid being held responsible for the Nazi-Soviet Pact of 1939 carving up Poland, the Soviet attack on Finland in 1940, and the concentration camps in Soviet-occupied regions during the war. In those camps, Soviets inflicted extreme mistreatment on civilian and military detainees, often in cooperation with German SS and Gestapo officials, and caused the deaths of tens of thousands of German prisoners of war.
During his trial, defendant Admiral Karl Doenitz (Supreme Commander of the German navy) effectively used in his defense an interrogatory from Admiral Chester W. Nimitz, the Commander in Chief of the American Naval Forces in the Pacific Ocean during the war. His lawyer used Admiral Nimitz's testimony to confirm that it was American policy to interpret the London Submarine Agreement of 1936 "in exactly the same way as the German Admiralty," supporting his claim "that the German sea war was perfectly legal." German submarine surprise attacks against British and other merchant ships, which doomed to the ocean's depths the lives of passengers and crew, mirrored what the U.S. Navy had done to sink Japanese merchant ships. Doenitz escaped conviction on the charge of having breached the international law of submarine warfare, although he was convicted on other charges.
The Nuremberg trials would not have taken place if there had been a requirement for reciprocal justice, because the allied powers could not have agreed to the intensive self-examination that such a criminal investigation would demand. However deep this apparent flaw in the process was at the time, there remains great value in what was accomplished to establish individual criminal responsibility for the atrocity crimes of senior Nazi leaders. Summary executions were avoided and crimes of great magnitude and horrific character were publicly identified with their perpetrators, who were brought to justice relatively speedily. The manner in which the Nuremberg trials were conducted achieved a lasting credibility for its attention to due process rights. Further, the lessons of Nuremberg and the justice rendered there upon German leaders probably had a positive influence on later generations of Germans, who have been less affected by what their ancestors endured during World War II than they otherwise might have been. Probably as a result of the Nuremberg legacy, Germany has become a strong supporters of human rights, the non-use of force, international justice, and the work of the permanent International Criminal Court.
Composition of the Tribunal
The composition of the IMT reflected the multinational character of the victorious Allied powers. The United States, United Kingdom, France, and the Soviet Union were represented by four sitting judges and four alternate judges, one from each allied nation. All but the Soviet judge and alternate were drawn from non-military legal professions at the time of the trials. The prosecution counsel numbered fifty-two lawyers, again drawn from each of the four allied powers. The U.S. prosecution team was led by Justice Robert H. Jackson, on leave from the U.S. Supreme Court. Two of his American military prosecutors, Lieutenant Commander Whitney Harris and Brigadier General Telford Taylor, later wrote highly acclaimed, comprehensive histories of the Nuremberg trials. Twenty-eight German lawyers served as counsel for the individual defendants, and eleven German lawyers defended the six organizations that were charged with criminal conduct.
The London Charter required a fair trial for all of the defendants, and set forth fundamental rules for that purpose. These rules included the right to counsel and the right to cross-examine any witness. As the trials got underway, however, defense lawyers often found it difficult to obtain documents sought for the defense of their clients, and delays in the translation of key documents created difficulties for both the prosecution and defense.
Selection of Defendants
The selection of whom to indict and prosecute at Nuremberg bedeviled the four allied powers during the summer of 1945. For practical reasons, the total number of individuals who could stand trial before the IMT had to be extremely limited. Non-German Axis leaders were soon removed from the working list of targets for prosecution. Key Nazi leaders like Adolf Hitler, Joseph Goebbels, and Heinrich Himmler were already dead. The allies had to understand how power was exercised in Nazi Germany, and had to discover who wielded the most authority, and thus responsibility, for perpetrating the crimes described in the London Charter. Since first-hand information and actionable evidence about the crimes of the Holocaust had only begun to emerge, some of the obvious candidates for prosecution for the extermination of the Jews and others were not pursued. Among these were Gestapo chief Heinrich Muller and his deputy, Adolf Eichmann. In the end, notable and some far less notorious figures were selected.
The final list of twenty-four German defendants arose from political compromises and the intent of the allied powers to arrange the defendant pool to indict several branches of the Nazi leadership: military, political, propaganda, finance, and forced labor. The military defendants were Admiral Doenitz, Hermann Goering (Chief of the Air Force), Alfred Jodl (Chief of Army Operations), Wilhelm Keitel (Chief of Staff of the High Command of the Armed Forces), and Erich Raeder (Grand Admiral of the Navy). The political defendants were Hans Frank (Minister of Interior and Governor-General of occupied Poland), Wilhelm Frick (Minister of Interior), Rudolf Hess (Deputy to Hitler), Ernst Kaltenbrunner (Chief of the Reich's Main Security Office. under which the Gestapo and SS operated), Alfred Rosenberg (Minister of the Occupied Eastern Territories), Arthur Seyss-Inquart (Commissar of the Netherlands), Albert Speer (Minister of Armaments and War Production), Constantin von Neurath (Minister of Foreign Affairs and Protector of Bohemia and Moravia), Franz von Papen (former Chancellor of Germany), Joachim von Ribbentrop (Minister of Foreign Affairs), Baldur von Schirach (Reich youth leader), and Martin Bormann (Chief of the Nazi Party Chancery). Bormann was tried and convicted in absentia, meaning he was never located for arrest and thus did not physically appear for trial. The finance defendants were Walter Funk (President of the Reichsbank), Hjalmar Schacht (Minister of Economics prior to the war and President of the Reichsbank), and the industrialist Gustav Krupp von Bohlen und Halbach (the aging former president of the German munitions company, Friedrich Krupp A.G.). Gustav Krupp's prosecution was postponed indefinitely due to his poor health. He died in 1950, having never stood trial. The forced-labor defendants were Fritz Sauckel (Plenipotentiary General for the Utilization of Labor) and Robert Ley (former leader of the German Labor Front). Ley, however, committed suicide upon being indicted and thus never stood trial. The propaganda defendants were Hans Fritzsche (Ministerial Director and head of the radio division in the Propaganda Ministry) and Julius Streicher (editor of the newspaper Der Stürmer and Director of the Central Committee for the Defense against Jewish Atrocity and Boycott Propaganda).
In addition to these individual defendants, the Allied prosecutors, strongly encouraged by Jackson, were determined to prosecute certain organizations in Nazi Germany, alleging that they were illegal criminal enterprises. The prosecutors believed that individual defendants could be prosecuted and convicted by virtue of their membership in such organizations. Such a finding also would make it much easier to prosecute thousands of other defendants in subsequent trials simply by identifying an individual as a member of any such criminal organization. "Guilt by association" thus became the guiding principle of the prosecution strategy for these later trials. The London Charter empowered the IMT to define as criminal any group or organization to which any defendant appearing before the IMT belonged. Once such a finding was reached, the national, military, and occupation courts of the Charter signatories could bring individual members of those organizations to trial for years thereafter, with the criminal nature of such groups or organizations already considered proven. Such defendants would be permitted only limited defense arguments, for example that they joined the organization in question under duress. This represented the first of several legal innovations in the Nuremberg trials. Never before had national organizations been prosecuted, particularly by an international tribunal, for criminal conduct. Their alleged criminal character was determined by the IMT only after the war, thus raising concerns about retroactive justice.
Nevertheless, the IMT declared three of six organizations named in the indictment as criminal in character. The Gestapo, paired with the SD (Sicherbeitsdienst), was declared criminal for its role in "the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and murder of prisoners of war." The Leadership Corps of the [Nazi] Party, which included Hitler, his top staff officers, and an estimated 600,000 members, was declared criminal for "the Germanization of incorporated territory, the persecution of the Jews, the administration of the slave labor program, and mistreatment of prisoners of war." The IMT declared the SS (Schutzstaffeln), which ran the concentration camps and cleared Jews and others out of the ghettos, criminal for conducting the same activities as the Gestapo.
The indictment, issued on October 19, 1945, included four charges drawn from the London Charter: a common conspiracy to wage aggressive war, crimes against peace, war crimes, and crimes against humanity. The second category, crimes against peace, had no preexisting definition in international law. It was defined in the London Charter as the "planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of [war crimes or crimes against humanity]."
The third category, war crimes, was a well-established concept in international law. It was defined in the London Charter as follows:
violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.
The fourth category, crimes against humanity, had at best a very problematic foundation in international law. Such crimes were defined as follows:
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
War of Aggression
Despite the apparent injustice of the aggressive assaults by the German Army in World War II, there was no codified or even customary rule of international law in 1945 that explicitly outlawed a war of aggression. Yet Justice Jackson was determined to make "aggression" or "crimes against peace" the dominant allegation of the Nuremberg trials, and the American prosecution team assumed full responsibility for prosecuting the crime. In the aftermath of World War I, there had been a number of initiatives to outlaw wars of aggression, giving Jackson something to work with in legislating a new legal principle in the London Charter. Article 227 of the Versailles Treaty (1919), attempted to establish individual criminal responsibility for Germany's aggression in World War I by requiring the prosecution of the German Kaiser for "a supreme offense against international morality and the sanctity of treaties." The viability of this provision, however, was never put to the test, for the Kaiser enjoyed sanctuary from prosecution in The Netherlands, which refused to surrender him for trial.
The Kellogg-Briand Pact of 1928 was sponsored by the United States as manifesting "the outlawry of war" and signed by sixty-five nations, including such World War II aggressor nations as Germany, Italy, and Japan. This agreement expressed the intent to renounce war as a means of settling disputes. Various other pronouncements prior to World War II declared aggression to be an international crime, but no law had yet been written that prohibited a war of aggression. Justice Jackson faced opposition from legal scholars and other allied prosecutors, who challenged his effort to establish a new crime of aggression.
Justice Jackson prevailed with a bold strategic move. He argued that there had been a conspiracy to wage an aggressive war that swept within its reach war crimes and crimes against humanity (the two other major categories of crimes). He went on to assert that the entire indictment of the Nuremberg defendants would be premised on the allegation of this "master plan" that had been implemented through a conspiracy stretching back to 1933, when the Nazi Party came to power in Germany. He noted that war crimes had a relatively solid basis in existing international conventions that already required a connection with warfare. Therefore, he argued, doubts about the legality of any particular charge of aggression or crime against humanity (along with many other kinds of criminal conduct) should be overcome by implicating such crimes within the overall conspiracy to wage aggressive war. The conspiracy theory, in which all participants can be held equally responsible for criminal conduct, was established in Article 6 of the London Charter and underpinned the first count in the Nuremberg indictment:
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
Conspiracy charges were a based on a legal concept that was peculiarly rooted in common law as understood in Britain and the United States. The French, Soviet, and German legal systems had no legal tradition for framing conspiracy charges. They preferred charging defendants for direct participation in specific crimes. The Soviets were extremely worried that Jackson's formula could be used to implicate them for their own suspicious conduct during the war and embarrass them as essentially unindicted co-conspirators in many of the crimes.
Wartime Crimes against Humanity
The operational compromise that emerged in the course of the trials meant that the IMT judges would entertain the charge of conspiracy only for acts of aggression by the Axis powers, and not for the commission of war crimes or crimes against humanity. The crime of conspiracy was further limited to actions closely related to the commencement of armed conflict and to those leaders who met together to plan specific acts of aggression. However, the nexus-to-war that originally drove Justice Jackson's conspiracy theory remained as a key practical requirement for the prosecution of crimes against humanity, primarily because these were crimes that had not been previously codified in international law and remained highly contentious as an example of retroactive justice by the IMT. By limiting the charges to crimes against humanity committed during wartime, the IMT could amplify the illegality of the acts within the context of the overall aggressive war. This would serve to blunt at least some of the arguments that defense counsel could raise about the legality of the charges, particularly those pertaining to the period from 1933 to 1939, even though the London Charter permitted investigation of all but one type (persecutions) of pre-war crimes against humanity.
The perspective of American prosecutor Whitney Harris reflects the general view that guided the IMT's approach at the time. He wrote:
[The limitation to wartime crimes against humanity] was a proper one in view of the status of the Tribunal as an international military body, charged with determining responsibility for war and crimes related thereto. If the Tribunal had assumed jurisdiction to try persons under international law for crimes committed by them which were not related to war it would have wholly disregarded the concept of sovereignty and subjected to criminal prosecution under international law individuals whose conduct was lawful under controlling municipal law in times of peace. Such jurisdiction should never be assumed by an ad hoc military tribunal established to adjudicate crimes of war.
The requisite nexus-to-war required by the IMT created a precedent for examining crimes against humanity that influenced, and arguably retarded, the development of the law for decades thereafter, until it was definitively broken in the 1990s in the Statute of the International Criminal Tribunal for Rwanda.
The conspiracy theory, particularly as it applied to crimes against humanity, had its doubters. Shortly before he committed suicide, Nuremberg defendant Robert Ley wrote: "Where is this plan? Show it to me. Where is the protocol or the fact that only those here accused met and said a single word about what the indictment refers to so monstrously? Not a thing of it is true." Ley's charges have received support from more recent scholarship on the subject. In 2003, historian Richard Overy of King's College, London, wrote:
Subsequent historical research has confirmed that no such thing as a concerted conspiracy existed, though a mass of additional evidence on the atrocities of the regime and the widespread complicity of many officials, judges, and soldiers in these crimes has confirmed that, despite all the drawbacks of the trial and of its legal foundation, the conviction that this was a criminal system was in no sense misplaced.
The Nuremberg prosecutors nonetheless presented much evidence to support the conspiracy theory during the trials. The fact that three defendants were acquitted on all four counts, including the conspiracy charge, does not diminish the fact that some defendants were found to be participants in a conspiracy to wage a war of aggression.
There is a general principle of law which states that individuals must not be held criminally responsible for conduct that was not illegal at the time it occurred (nullum crimen sine lege, also called the retroactivity rule). This principle was a very powerful presence at Nuremberg. Concerns about the credibility of the IMT arose with respect to defendants' arguments that they were only complying with German national law in the performance of their duties. Although German law under the Nazi regime became a vehicle of extreme discrimination and persecution of the Jews and other minorities, the invocation of national law as a defense, particularly regarding crimes against humanity, proved almost entirely unpersuasive to the IMT judges, who had a mandate to apply international law to the proceedings. The drafters of the London Charter struggled with these defenses; and defense counsel frequently offered them as mitigation for their clients' wartime actions.
Prosecutors and judges at the IMT found the legal basis for crimes relating to aggression and for crimes against humanity in the deep well of human experience and morality. For instance, Lieutenant Commander Harris drew upon how international law had over time criminalized acts of piracy on the high seas. He wrote:
the Nuremberg judges declared against aggressive war and related acts which they considered to have been morally condemned by the majority of nations. In the Tribunal's view these acts, like piracy, could no longer be tolerated in a civilized world, and the Tribunal concluded that the responsible individuals could be punished for their actions, just as earlier courts had resolved upon the punishment of men for acts of piracy.
The IMT took a judicial leap by assuming that international law had been fairly rapidly evolving toward the view that aggression and crimes against humanity should be outlawed, and that individual criminal responsibility for such crimes had become legally enforceable. In a very real sense, the IMT took the initiative to declare and act upon what it regarded as international law at a momentous period in world history, when clarity of interpretation and action was being sought. The extreme violence of World War II elicited such an exercise of discovery. Justice Jackson wrote to President Truman in June 1945 with disarming understatement:
Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a new and strengthened International Law.
The retroactivity rule challenged the IMT's jurisdiction over the crimes against humanity set forth in the London Charter. The overlap of many of these crimes with established war crimes presented little problem to the prosecutors. However, international legal principles of sovereignty and of non-interference in the internal affairs of other nations meant that the German assaults on their own civilian population, particularly the Jewish population, and the persecution inflicted on so many civilians might have been shielded from international criminal prosecution. To forestall this possibility, the IMT determined that its own selfmade authority required freshly conceived jurisdiction over such "internal" crimes. Again, the IMT found strength of reason in the requirement that such crimes be committed in connection with an on-going war and another crime "within the jurisdiction of the Tribunal." In other words, the context of aggressive war and/or a war crime was required to trigger individual criminal responsibility under international law. Having taken this leap of logic, the IMT prosecutors and judges acted prudentially in the trials to enforce a newly defined law on crimes against humanity.
Defense of Superior Orders
The London Charter addressed one of the most common defenses for defendants who claimed they were only acting, and had to act, pursuant to orders from superior officers and officials: "The fact that the Defendants acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." The Nuremberg defendants' high rank and their direct role in formulating the policies of the Third Reich (including for some of them the plotting of a war of aggression) left them with little opportunity to credibly claim that they were acting on the orders of superiors. They usually were the superiors who drafted many of the orders; they often played a political role in decision-making; and the orders they responded to came from leaders, such as Hitler, who issued commands of obvious criminal character, particularly to men of the stature in the Nazi regime as those in the dock at Nuremberg. Their individual accountability could not be extinguished by claiming obligation to follow a superior's orders. If the orders of superiors were unchallengeable when weighed against the crimes they sought to unleash, then the entire foundation for the Nuremberg trials, the laws and customs of war, and the legal principles that defined crimes against peace and crimes against humanity would crumble. The IMT pronounced that, "[t]he true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible."
Defendant Wilhelm Keitel sought to explain to the IMT how the traditional training and concept of duty of the German officers "taught unquestioned obedience to superiors who bore responsibility" and "caused them to shrink from rebelling against these orders and these methods even when they recognized their illegality and inwardly refuted them." Keitel also testified that the decision to wage a war of aggression is solely political, and that the military soldier must obey orders relating to it. The IMT rejected the credibility of these arguments for an officer of Keitel's exceptionally high rank senior officer who knew what was at stake, played a role in the decision-making, and yet remained indifferent to the legal issues. American prosecutor Telford Taylor wrote of Keitel, "His attitude was not far from that of Goering, who was not moved by 'considerations of international law.'" Although Keitel may have criticized some of the orders he received, he enforced them.
During the Nuremberg trials, ninety percent of the prosecution's evidence consisted of the Third Reich's own governmental files, which had been seized by Allied forces. Prosecutors had access to 100,000 German documents, millions of feet of video film, and 25,000 still photographs, including some taken by Hitler's personal photographer. Court stenographers prepared 17,000 transcript pages recording the testimony and proceedings of the trials. Active and often lengthy defenses were raised, frustrating the prosecution but also strengthening the fairness of the trials. It took twentyeight sessions to hear the defenses of just the first four accused. Defense counsel took sixteen days to make their closing arguments.
The IMT judges delivered their opinions regarding the twenty-two individual defendants and six organizations on September 30 and October 1, 1946. They did not convict all defendants on all counts of the indictment for which they had been charged. Instead, the judges found that the evidence fell short of the requirement that guilt be proven "beyond a reasonable doubt" with respect to some of the charges against the defendants.
The IMT fully acquitted three defendants of all charges: Schacht, Papen, and Fritzsche. Of the remaining nineteen defendants, all but two of them were convicted on multiple charges, and six were convicted on all four counts of the indictment. Eight defendants were convicted on the first count, charging conspiracy to wage aggressive war. Twelve defendants were convicted on the second count, crimes against peace. Sixteen defendants were convicted on the third count, war crimes. Sixteen defendants also were convicted on the fourth count, crimes against humanity. The IMT sentenced twelve defendants (including the absent Bormann) to die by hanging, and sentenced the remaining seven defendants to prison terms ranging from ten years to life. Goering committed suicide before he could be hanged. The Soviet judge dissented on each of the acquittals and on the life imprisonment (rather than hanging) sentence for Hess.
Witnesses at the Nuremberg trials confirmed the Nazi regime's own death count of the Jewish population and others in the extermination (also known as concentration) camps and during killing operations in the field. One witness, an SS reporter who knew Adolf Eichmann, confirmed that in mid-1944 Eichmann reported to Himmler that the latter's orders for extermination of the European Jewry were being implemented. (Although he remained at-large and unindicted at Nuremberg, Eichmann was later found in Argentina, abducted, and brought to trial in Israel. He was convicted in 1961 and sentenced to death.) The witness testified that Eichmann wrote, "Approximately four million Jews had been killed in the various extermination camps while an additional two million met death in other ways, the major part of which were shot by operational squads of the Security Police during the campaign against Russia." Although the prosecution had initiated the Nuremberg trials with a strong focus on charging the defendants with conspiracy to wage a war of aggression and with violations of "crimes against peace," in the end the trials also established the horrific truth of the Holocaust, namely the genocide against the Jewish population of Europe. It is that truth and the criminality arising from the charges of Nazi crimes against humanity that became the most prominent legacies of justice at Nuremberg.
Influence of Nuremberg Trials
The Nuremberg trials of 1945 and 1946 influenced later developments of international law and the courts that enforce it. It underpinned the work of the Tokyo War Crimes Trials (1946948) and subsequent trials under Control Council Law No. 10 in occupied Germany. They also firmly established the basis for attributing individual criminal responsibility for atrocity crimes such as genocide, serious war crimes, and crimes against humanity that would constitute the core jurisdiction of international criminal tribunals at the end of the twentieth century and beyond. The trials accelerated the further development of the principles of international criminal law and international humanitarian law, as reflected in the Genocide Convention of 1948, the Geneva Conventions of 1949, the Geneva Protocols of 1977, the Statutes of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, and the 1998 Rome Statute of the International Criminal Court.
The UN General Assembly affirmed in Resolution 95(I) of December 11, 1946, the "Principles of International Law Recognized by the Charter of the Nuremberg Tribunal." The illegality of aggression was further elaborated in a 1974 UN General Assembly resolution defining aggression with regard to state responsibility, and in the Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the International Law Commission. Deeply influenced by the record of the Nuremberg trials, the states that are party to the Rome Statute of the International Criminal Court continue to negotiate how to activate the crime of aggression which, for purposes of individual criminal responsibility, is included in the new court's jurisdiction. In Justice Jackson's opening statement at the Nuremberg trials, he summed up what they were all about:
The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.
SEE ALSO Göring, Hermann; Jackson, Robert; London Charter; Morgenthau, Henry; Nuremberg Trials, Subsequent; Tokyo Trial; War Crimes
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