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Nuremberg Trials

Nuremberg Trials

The Nuremberg Trials were a series of trials most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany after its defeat in World War II. The trials were held in the city of Nuremberg, Germany, from 1945 to 1949, at the Palace of Justice. The first and best known of these trials was the Trial of the Major War Criminals before the International Military Tribunal (IMT), which tried 24 of the most important captured leaders of Nazi Germany. It was held from 14 November, 1945, to 1 October, 1946. The second set of trials of lesser war criminals was conducted under Control Council Law No. 10 at the U.S. Nuremberg Military Tribunals (NMT); among them included the Doctors' Trial and the Judges' Trial. This article primarily deals with the IMT; see the separate article on the NMT for details on those trials.

Origin

The press releases on 2 January 2006, from the British War Cabinet in London have shown that as early as December 1944, the Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution in some circumstances with the use of an Act of Attainder to circumvent legal obstacles, and was only dissuaded from this by talks with U.S. leaders later in the war. In late 1943, during the Tripartite Dinner Meeting at the Tehran Conference, the Soviet leader, Joseph Stalin, proposed executing 50,000–100,000 German staff officers. U.S. President Franklin D. Roosevelt joked that perhaps 49,000 would do. Churchill denounced the idea of "the cold blooded execution of soldiers who fought for their country." However, he also stated that war criminals must pay for their crimes and that in accordance with the Moscow Document which he himself had written, they should be tried at the places where the crimes were committed. Churchill was vigorously opposed to executions "for political purposes.

U.S. Treasury Secretary, Henry Morgenthau, Jr., suggested a plan for the total denazification of Germany; this was known as the Morgenthau Plan. The plan advocated the forced de-industrialization of Germany, along with forced labour and other draconian measures similar to those that the Nazis themselves had planned for Eastern Europe. Roosevelt initially supported this plan, and managed to convince Churchill to support it in a less drastic form. Later, details were leaked to the public, generating widespread protest. Roosevelt, seeing strong public disapproval, abandoned the plan, but did not proceed to adopt support for another position on the matter. The demise of the Morgenthau Plan created the need for an alternative method of dealing with the Nazi leadership. The plan for the "Trial of European War Criminals" was drafted by Secretary of War Henry L. Stimson and the War Department. Roosevelt died in April 1945. The new president, Harry S. Truman, gave strong approval for a judicial process.

After a series of negotiations between the U.S., Britain, the Soviet Union, and France, details of the trial were worked out. The trials were set to commence on 20 November 1945, in the city of Nuremberg.

Creation of the courts

On January 12, 1942, representatives from the nine occupied countries met in London to draft the Inter-Allied Resolution on German War Crimes. At the meetings in Tehran (1943), Yalta (1945) and Potsdam (1945), the three major wartime powers, the United States, Soviet Union and the United Kingdom, agreed on the format of punishment for those responsible for war-crimes during World War II. France was also awarded a place on the tribunal.

The legal basis for the trial was established by the London Charter, issued on 8 August 1945, which restricted the trial to "punishment of the major war criminals of the European Axis countries". Some 200 German war crimes defendants were tried at Nuremberg, and 1,600 others were tried under the traditional channels of military justice. The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied Control Council, which having sovereign power over Germany could choose to punish violations of international law and the laws of war. Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on 3 September 1939.

The war crimes tribunal tried and punished personnel only from Axis countries. Accusations arose claiming victor's justice, since Allied war crimes could not be tried. It is, however, usual that the armed forces of a civilised country issue their forces with detailed guidance on what is and is not permitted under their military code. These are drafted to include any international treaty obligations and the customary laws of war. For example, at the trial of Otto Skorzeny, his defence was in part based on the Field Manual published by the War Department of the United States Army, on 1 October 1940, and the American Soldiers' Handbook. If a member of the armed forces breaks their own military code then they can expect to face a court martial. When members of the Allied armed forces broke their military codes, they could be and were tried, as, for example, at the Biscari Massacre trials. The unconditional surrender of the Axis powers was unusual and led directly to the formation of the international tribunals. Usually, international wars end conditionally and the treatment of suspected war criminals makes up part of the peace treaty. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes – as happened to some Finns at the end of the concurrent Finnish-Soviet Continuation War. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.

Location

The Soviet Union had wanted the trials to take place in Berlin, but Nuremberg was chosen as the site for the trials for specific reasons:

  • The Palace of Justice was spacious and largely undamaged (one of the few that had remained largely intact through extensive Allied bombing of Germany). A large prison was also part of the complex.
  • Nuremberg was considered the ceremonial birthplace of the Nazi Party, and hosted annual propaganda rallies. It was thus a fitting place to mark the party's symbolic demise.

It was also agreed that France would become the permanent seat of the IMT and that the first trial (several were planned) would take place in Nuremberg.

Participants

Each of the four countries provided one judge and an alternate, as well as the prosecutors. The judges were:

The chief prosecutors were Robert H. Jackson for the United States, Sir Hartley Shawcross for the UK, Lieutenant-General R. A. Rudenko for the Soviet Union, and François de Menthon and Auguste Champetier de Ribes for France. Assisting Jackson was the lawyer Telford Taylor and a young US Army translator named Richard Sonnenfeldt. Assisting Shawcross were Major Sir David Maxwell-Fyfe and Sir John Wheeler-Bennett. Mervyn Griffith-Jones, later to become famous as the chief prosecutor in the Lady Chatterley's Lover obscenity trial, was also on the Shawcross's team. Shawcross also recruited a young barrister, Anthony Marreco, who was the son of a friend of his, to help the British team with the heavy workload. Robert Falco was an experienced judge who had tried many in court in France.

The main trial

The International Military Tribunal was opened on 18 October 1945, in the Supreme Court Building in Berlin. The first session was presided over by the Soviet judge, Nikitchenko. The prosecution entered indictments against 24 major war criminals and six criminal organizations - the leadership of the Nazi party, the Schutzstaffel (SS) and Sicherheitsdienst (SD), the Gestapo, the Sturmabteilung (SA) and the High Command of the German armed forces (OKW).

The indictments were for:

  1. Participation in a common plan or conspiracy for the accomplishment of crime against peace
  2. Planning, initiating and waging wars of aggression and other crimes against peace
  3. War crimes
  4. Crimes against humanity

The 24 accused were:

"I" indicted      "G" indicted and found guilty      "O" Not Charged

Name   Count Sentence     Notes
  1     2     3     4        

I O G G Death Successor to Hess as Nazi Party Secretary. Sentenced to death in absentia, remains found in 1972.

I G G O 10 years Leader of the Kriegsmarine from 1943, succeeded Raeder. Initiator of the U-boat campaign. Became President of Germany following Hitler's death. In evidence presented at the trial of Karl Dönitz on his orders to the U-boat fleet to breach the London Rules, Admiral Chester Nimitz stated that unrestricted submarine warfare was carried on in the Pacific Ocean by the United States from the first day that nation entered the war. Dönitz was found guilty of breaching the 1936 Second London Naval Treaty, but his sentence was not assessed on the ground of his breaches of the international law of submarine warfare.

I O G G Death Reich Law Leader 1933-1945 and Governor-General of the General Government in occupied Poland 1939-1945. Expressed repentance.

I G G G Death Hitler's Minister of the Interior 1933-1943 and Reich Protector of Bohemia-Moravia 1943-1945. Authored the Nuremberg Race Laws.

I I I O Acquitted Popular radio commentator, and head of the news division of the Nazi Propaganda Ministry. Tried in place of Joseph Goebbels.

I G G G Life Imprisonment Hitler's Minister of Economics. Succeeded Schacht as head of the Reichsbank. Released due to ill health on 16 May 1957.

G G G G Death Reichsmarschall, Commander of the Luftwaffe 1935-1945, Chief of the 4-Year Plan 1936-1945, and several departments of the SS. Committed suicide the night before his execution.
G G I I Life Imprisonment Hitler's deputy, flew to Scotland in 1941 in attempt to broker peace with Great Britain. After trial, committed to Spandau Prison; died in 1987.

G G G G Death Wehrmacht Generaloberst, Keitel's subordinate and Chief of the O.K.W.'s Operations Division 1938-1945. Subsequently exonerated by German court in 1953, though the exoneration was later overturned, largely as a result of pressure by American officials.

I O G G Death Highest surviving SS-leader. Chief of RSHA 1943-45, the central Nazi intelligence organ. Also commanded many of the Einsatzgruppen and several concentration camps.

G G G G Death Head of Oberkommando der Wehrmacht (OKW) 1938-1945.
I I I
Major Nazi industrialist. C.E.O of Krupp A.G 1912-45. Medically unfit for trial. The prosecutors attempted to substitute his son Alfried (who ran Krupp for his father during most of the war) in the indictment, but the judges rejected this as being too close to trial. Alfried was tried in a separate Nuremberg trial for his use of slave labor, thus escaping the worst notoriety and possibly death.

I I I I
Head of DAF, The German Labour Front. Suicide on 25 October 1945, before the trial began

G G G G 15 years Minister of Foreign Affairs 1932-1938, succeeded by Ribbentrop. Later, Protector of Bohemia and Moravia 1939-43. Resigned in 1943 due to dispute with Hitler. Released (ill health) 6 November 1954.

I I O O Acquitted Chancellor of Germany in 1932 and Vice-Chancellor under Hitler in 1933-1934. Ambassador to Austria 1934-38 and ambassador to Turkey 1939-1944. Although acquitted at Nuremberg, von Papen was reclassified as a war criminal in 1947 by a German de-Nazification court, and sentenced to eight years' hard labour. He was acquitted following appeal after serving two years.

G G G O Life Imprisonment Commander In Chief of the Kriegsmarine from 1928 until his retirement in 1943, succeeded by Dönitz. Released (ill health) 26 September 1955.

G G G G Death Ambassador-Plenipotentiary 1935-1936. Ambassador to the United Kingdom 1936-1938. Nazi Minister of Foreign Affairs 1938-1945,


G G G G Death Racial theory ideologist. Later, Minister of the Eastern Occupied Territories 1941-1945.

I I G G Death Gauleiter of Thuringia 1927-1945. Plenipotentiary of the Nazi slave labor program 1942-1945.

I I O O Acquitted Prominent banker and economist. Pre-war president of the Reichsbank 1923-1930 & 1933-1938 and Economics Minister 1934-1937. Admitted to violating the Treaty of Versailles.

I O O G 20 years Head of the Hitlerjugend from 1933 to 1940, Gauleiter of Vienna 1940-1943. Expressed repentance.

I G G G Death Instrumental in the Anschluss and briefly Austrian Chancellor 1938. Deputy to Frank in Poland 1939-1940. Later, Reich Commissioner of the occupied Netherlands 1940-1945. Expressed repentance.

I I G G 20 Years Hitler's favorite architect and close friend, and Minister of Armaments from 1942. In this capacity, he was ultimately responsible for the use of slave labourers from the occupied territories in armaments production. Expressed repentance.

I O O G Death Gauleiter of Franconia 1922-1945. Publisher of the weekly newspaper, Der Stürmer.

"I" indicted      "G" indicted and found guilty      "O" Not Charged

Throughout the trials, specifically between January and July 1946, the defendants and a number of witnesses were interviewed by American psychiatrist Leon Goldensohn. His notes detailing the demeanour and personality of the defendants survive.

The death sentences were carried out 16 October 1946 by hanging using the standard drop method instead of long drop. The executioner was John C. Woods. The French judges suggested the use of a firing squad for the military condemned, as is standard for military courts-martial, but this was opposed by Biddle and the Soviet judges. These argued that the military officers had violated their military ethos and were not worthy of the firing squad, which was considered to be more dignified. The prisoners sentenced to incarceration were transferred to Spandau Prison in 1947.

Of the twelve defendants sentenced to death by hanging, two were not hanged: Hermann Göring committed suicide the night before the execution and Martin Bormann was not present when convicted. The remaining ten defendants sentenced to death were hanged.

The definition of what constitutes a war crime is described by the Nuremberg Principles, a document which was created as a result of the trial. The medical experiments conducted by German doctors and prosecuted in the so-called Doctors' Trial led to the creation of the Nuremberg Code to control future trials involving human subjects.

Of the organizations the following were found not to be criminal:

Subsidiary and related trials

Influence on the development of international criminal law

The Nuremberg trials had a great influence on the development of international criminal law. The International Law Commission, acting on the request of the United Nations General Assembly, produced in 1950 the report Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgement of the Tribunal (Yearbook of the International Law Commission, 1950, vol. II). See Nuremberg Principles. The influence of the tribunal can also be seen in the proposals for a permanent international criminal court, and the drafting of international criminal codes, later prepared by the International Law Commission.

Part of the defence was that some treaties were not binding on the Axis powers because they were not signatories. This was addressed in the judgment relating to war crimes and crimes against humanity contains an expansion of customary law "the Convention Hague 1907 expressly stated that it was an attempt 'to revise the general laws and customs of war,' which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the [London] Charter." The implication under international law is that if enough countries have signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be interpreted as binding on all nations not just those who signed the original treaty. This is a highly controversial aspect of international law, one that is still actively debated in international legal journals.

But the customary law of war exists, and has existed, since time immemorial; the use of treaty to codify what is allowed and what is prohibited is merely its modern expression; just as the common law in the English-speaking nations has forbidden murder, under pain of death, since its inception, without a word on the statute-books proscribing murder in many of the common law countries up to the present day. The idea that there are certain expectations of those practicing the profession of arms among the civilized nations has been ingrained in many cultures--including those of Europe, East Asia (c.f. bushido, the warrior code of Japan), the Middle East (c.f. Saladin, the Arabian/Islamic exemplar of knightly virtue, respected and honored across the battle-lines by the Crusaders), and other civilizations. In particular, the culture of Europe gave rise to the concept of chivalry, the code of honor regulating the conduct of knights, men-at-arms, and in later days, in more modern forms, soldiers. Traditionally, in Europe and elsewhere, the obligation of the warrior is to levy war upon all those who bear arms against him, his brothers-in-arms, his commander, and his nation, using whatever means at his disposal are necessary and honorable for the task, and not using those which are dishonorable or perfidious, but in so doing, to save and to defend the innocent, the weak, and the helpless; to bring succor to the wounded, comfort to the dying; to spare from the rigors of war those who do not present a threat, not bearing arms against him; to give quarter, and to treat with humanity and military dignity the enemy soldier who has yielded, or is incapacitated; and, above all, to protect women and children from the sword.

The idea that a warrior owes a duty not just to his nation, or his army, but also to his common humanity is a concept as old as civilization itself is. Over the millennia, civilization has remembered with respect those warriors who were courageous in battle and merciful to those they defeated, regardless of whose banner under which they fought, while history regards with infamy those warriors, regardless of their military success, who willingly discarded the very honor and respect that they may have earned in battle through their atrocities committed upon civilians or cruelties visited upon vanquished foes. No warrior has been regarded as a man of courage for slaughtering of the weak or innocent, for his pillages or sacks, or for brutalities and barbarities he visited upon his foes; therein lies no honor or glory, only senseless cruelty. This indicates that just as the law against murder in the common-law nations is established not by statute, but by history, custom, the human condition, and by being immanent in Nature, so too is the law of war, and so too has it always been, whether its violation is explicitly prohibited by treaty or not.

The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court.

Validity of the court

US Supreme Court Chief Justice Harlan Fiske Stone called the Nuremberg trials a fraud. "Chief US prosecutor Jackson is away conducting his high-grade lynching party in Nuremberg," he wrote. "I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.

Associate Supreme Court Justice William O. Douglas charged that the Allies were guilty of "substituting power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were unprincipled," he wrote. "Law was created ex post facto to suit the passion and clamor of the time.

The validity of the court has been questioned for a variety of reasons:

  • The defendants were not allowed to appeal or affect the selection of judges. A. L. Goodhart, Professor at Oxford, opposed the view that, because the judges were appointed by the victors, the Tribunal was not impartial and could not be regarded as a court in the true sense. He wrote:

"Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of honest citizens.'"

  • The main Soviet judge, Nikitchenko, had taken part in Stalin's show trials of 1936-1938,.
  • One of the charges, brought against Keitel, Jodl, and Ribbentrop included conspiracy to commit aggression against Poland in 1939. The Secret Protocols of the German-Soviet Non-Aggression Pact of 23 August 1939, proposed the partition of Poland between the Germans and the Soviets (which was subsequently executed in September 1939); however, Soviet leaders were not tried for being part of the same conspiracy.. Instead, the Tribunal falsely proclaimed the Secret Protocols of the Non-Aggression Pact to be a forgery. Moreover, Allied Powers Britain and Soviet Union were not tried for preparing and conducting the Anglo-Soviet invasion of Iran and the Winter War, respectively.
  • In 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging, for the first time, another government (the Sublime Porte) of committing "a crime against humanity". However it was not until the phrase was further developed in the London Charter that it had a specific meaning. As the London Charter definition of what constituted a crime against humanity was unknown when many of the crimes were committed, it could be argued to be a retrospective law, in violation of the principles of prohibition of ex post facto laws and the general principle of penal law nullum crimen, nulla poena sine praevia lege poenali.
  • The court agreed to relieve the Soviet leadership from attending these trials as war criminals in order to hide their crimes against war civilians, crimes that were committed by their army that included "carving up Poland in 1939 and attacking Finland three months later." This "exclusion request" was initiated by the Russians and subsequently approved by the court's administration.
  • The trials were conducted under their own rules of evidence; the indictments were created ex post facto and were not based on any nation's law; the tu quoque defense was removed; and some claim the entire spirit of the assembly was "victor's justice". The Charter of the International Military Tribunal permitted the use of normally inadmissible "evidence." Article 19 specified that "The Tribunal shall not be bound by technical rules of evidence... and shall admit any evidence which it deems to have probative value". Article 21 of the Nuremberg International Military Tribunal (IMT) Charter stipulated:

"The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United [Allied] Nations, including acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military and other Tribunals of any of the United [Allied] Nations"

  • The chief Soviet prosecutor submitted false documentation in an attempt to indict defendants for the murder of thousands of Polish officers in the Katyn forest near Smolensk. However, the other Allied prosecutors refused to support the indictment and German lawyers promised to mount an embarrassing defense. No one was charged nor found guilty at Nuremberg for the Katyn Forrest massacre. In 1990, the Soviet government acknowledged that the Katyn massacre was carried out, not by the Germans, but by the Soviet secret police.

However, as described above, the unconditional surrender of the Axis powers was unusual and led directly to the formation of the international tribunals. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes; in restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.

Moreover, the Tribunal itself strongly disputed that the London Charter was ex post facto law, pointing to existing international agreements signed by Germany that made aggressive war and certain wartime actions unlawful, such as the Kellogg-Briand Pact, the Covenant of the League of Nations, and the Hague Conventions.

Additionally, many commentators felt the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punishment could ensue; including some of the defendants and their legal team:

Perhaps the most telling responses to the critics of Jackson and Nuremberg were those of the defendants at trial. Hans Frank, the defendant who had served as the Nazi Governor General of occupied Poland, stated, “I regard this trial as a God-willed court to examine and put an end to the terrible era of suffering under Adolf Hitler.” With the same theme, but a different emphasis, defendant Albert Speer, Hitler’s war production minister, said, “This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.” Dr. Theodore Klefish, a member of the German defense team, wrote: "It is obvious that the trial and judgment of such proceedings require of the tribunal the utmost impartiality, loyalty and sense of justice. The Nuremberg tribunal has met all these requirements with consideration and dignity. Nobody dares to doubt that it was guided by the search for truth and justice from the first to the last day of this tremendous trial.

Condemnation of the Nuremberg Trials

U.S. Senator Robert Taft condemned the postwar Nuremberg Trials as victor's justice in which the people who won the war were the prosecutors, the judges and the alleged victims, all at the same time. Taft condemned the trials as a violation of the most basic principles of American justice and internationally accepted standards of justice. Although his opposition to the trials was strongly condemned by many, other observers, such as Senator John F. Kennedy in his bestselling Profiles in Courage, applauded Taft's principled stand even in the face of great criticism.

Notes

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