Nuremberg Trial

On May 7, 1945, at Reims, Nazi Germany surrendered. Germany as a

sovereign state ceased to exist and the Allies occupied its former
territory.

By spring 1945, President Harry S. Truman, then two weeks in office,

decided to deliver on the Roosevelt commitment, made with Churchill
and Stalin, to hold the leading Nazi perpetrators legally accountable.
President Truman recruited Justice Jackson to head the American
process of delivering on the Allied commitment. Truman, by picking
Jackson, hoped to, and in the end he did, influence the British, Soviets,
and French to implement and staff this commitment comparably.
In late April 1945, Jackson was led to believe that this assignment
would be something of a turnkey endeavor-that the evidence was
assembled, that the international trial plan was in place, that trials were
ready to go, and that this would be the trial of Adolf Hitler and the core
of his inner circle. Ofcourse none of that materialized.
What was required first, and what occurred during summer 1945 in
London, was difficult multinational negotiation. It occurred in Church
House at Westminster Abbey.
The four national delegation leaders met in conference, working to
harmonize their disparate legal systems and their very different views of
what it meant to be committed to trying their principal Nazi prisoners as
war criminals.
In this time period, there was no longer a sovereign Germany. It had
surrendered unconditionally to the Allied nations, which jointly oversaw
military occupation zones controlled by each of the four powers.
The American zone, formerly southeastern Germany, included the city
of Nürnberg. It had been bombed heavily by British and Americans
forces during the war. But outside Nuremberg’s old city, on the
Fürtherstraße (i.e., toward the neighboring city, Fürth), was a largely
intact courthouse, the Palace of Justice, connected to a large prison. At
U.S. Army urging, Justice Jackson plus his British and French
counterparts agreed that it should be the trial site.
The U.S.S.R. was the final nation to join the Allied trial plan. At the July
1945 “Big Three” conference in Potsdam, the leaders—now Stalin,
Truman, and newly-elected U.K. Prime Minister Clement Attlee—again
considered war criminals among many other topics.
The leaders agreed that “war criminals and those who have participated
in planning or carrying out Nazi enterprises involving or resulting in
atrocities or war crimes shall be arrested and brought to judgment.”
On August 8, 1945, Jackson and his Allied counterparts signed the
London Agreement and Charter. The Agreement created the world’s first
international criminal court, the International Military Tribunal. The
IMT had jurisdiction over four crimes: (1) conspiracy, common plan,
and agreement; (2) the waging of aggression war, or breach of the
peace; (3) war crimes, and (4) crimes against humanity. The London
Agreement defined a system of due process.
The defendants would receive written charges, defense counsel of
choice, time to prepare for trial, discovery of prosecution evidence, and
compulsory process to assemble defense witnesses. The IMT, an
independent judiciary, would conduct a public trial. It would admit
relevant evidence, broadly construed. It would hold the prosecutors to a
burden of proof beyond a reasonable doubt.
The London Agreement also defined limits on the trial and on
defendants’ rights. Defense arguments of tu quoque—“you too”; no
clean hands—were ruled out of bounds. Head of state immunity, a
historical prerogative, was declared null and void.
Following the London Conference, prosecutors drafted a comprehensive
indictment. On October 18, 1945, the IMT convened in Berlin to receive
it. The Indictment charged twenty-four individuals and six Nazi
organizations with various crimes.
The Indictment contained the word “genocide,” coined by Polish lawyer
Raphael Lemkin, a consultant and advisor to the Jackson staff, who
fought hard for his word to be used. In one particular, the Indictment
charged that Nazis in September 1941 had killed “11,000 Polish officers
who were prisoners of war . . . in the Katyn Forest near Smolensk.”
The international trial opened on November 20, 1945. The international
Nuremberg trial proceeded over the course of the next year with each
nation presenting part of the case, then with defense cases, and then
with cases against and defending the Nazi organizations. It was largely a
documentary trial, including film evidence of concentration camps as
they were liberated and film evidence of the Nazis in power. The trial
also included powerful testimony from victims. Each defendant had a
full chance to defend himself.
At the end of September 1946, the Nuremberg tribunal delivered its
judgments. As to legality, international law prescribed the conduct
charged—these were crimes against the international order.
As to individuals, nineteen were convicted and three were acquitted.
Twelve of the guilty were sentenced to death and seven were sentenced
to terms of years. Three organizations were convicted and three were
found to be noncriminal. The Katyn Forest particular was not
mentioned—it formed no part of the Nuremberg judgment.
The Nuremberg trials, especially the international trial, were war trials.
The principal crime that was prosecuted at Nuremberg was waging
aggressive war. The other substantive crimes, both war crimes and
crimes against humanity, occurred, especially as the IMT adjudicated
them, in the context of that war framework, and in the time period of
Germany’s military aggression (1939 and forward). The Nuremberg
trials also were, however, educational enterprises. During these
proceedings, the trials created global public knowledge of enormous
human rights crimes. The trials produced a vast documentary record that
showed—proved—the enormity of the Holocaust.
The trials obtained testimony from Holocaust victims, witnesses, and
perpetrators. Rudolf Hoess, for example, was an IMT trial witness. He
had been the commandant of Auschwitz. He was called to testify for
defendant Ernst Kaltenbrunner, to testify that he (Hoess) had never seen
Kaltenbrunner at Auschwitz. On cross-examination, Hoess testified—
with, sickly, what history now knows to be exaggeration—that he as
Auschwitz commandant supervised the extermination of more than a
million people, mostly Jews.
THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL
The Charter of the International Military Tribunal, commonly known as the
Nuremberg Charter, which was annexed to and formed an integral part of
the London Agreement, provided that the Tribunal shall consist of four
members, each with an alternate, one member and one alternate to be
appointed by each of the signatories (Article 2).
Neither the Tribunal, its members, nor their alternates can be challenged by
the prosecution, or by the defendants or their counsel (Article 3).
The Tribunal shall take decisions by a majority vote and in case the votes are
evenly divided, the vote of the President shall be decisive. Convictions and
sentences shall, however, only be imposed by affirmative votes of at least
three members of the Tribunal (Article 4).
The jurisdiction of the Tribunal was defined in Article 6 of the Charter.
This article provided that the Tribunal shall have the power to try and
punish persons who, acting in the interests of the European Axis
countries, whether as individuals or as members of organizations,
committed any of the following crimes:
(a) Crimes against peace: Namely, 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 the foregoing;
(b) War crimes: Namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment,
or deportation to slave labour 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;
(c) Crimes against humanity: Namely, murder, extermination,
enslavement, deportation, and other inhumane acts committed against
any civilian population, before or during the war, or persecution 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.
The same article further provided:
“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:”
The Charter also provided that the official position of defendants,
whether as heads of State or responsible officials in government
departments, shall not be considered as freeing them from responsibility
or mitigating punishment (Article 7).
Furthermore, the fact that the defendant 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.
Article 9 stipulated that the Tribunal may declare that a group or
organization was a criminal organization. In case a defendant could not
be found, the Tribunal was empowered to take proceedings against him
in his absence (Article 12).
Investigation and prosecution were entrusted to a committee of chief
prosecutors, each signatory to appoint one chief prosecutor, who, by a
majority vote were to settle the final designation of major war criminals
to be tried by the Tribunal and to lodge the indictment with the Tribunal
(Article 14).
The Tribunal was empowered to impose upon a defendant, on
conviction, death or such other punishment as shall be determined by it
to be just (Article 27), and, in case of guilt, sentences shall be carried
out in accordance with the orders of the Control Council for Germany,
which may reduce or otherwise alter the sentence, but may not increase
the severity thereof (Article 29).

On 18 October 1945, in accordance with article 14 of the Charter, an

indictment 4 was lodged with the Tribunal against the following 24
defendants:
Herman Goering; Rudolf Hess; Joachim von Ribbentrop; Wil. helm Keitel; Ernst
Kaltenbrunner; Alfred Rosenberg; Hans Frank; Wilhelm Frick; Julius Streicher;
WaIter Funk; Hjalmar Schacht; Karl Doenitz; Erich Raeder; Baldur von
Schirach; Fritz Sauckel; Alfred Jodl; Martin .Bormann; Frantz von Papen; Arthur
Seyss-Inquart; Albert Speer; Constantin von Neurath; Hans Fritzsche; Robert
Ley; and Gustav Krupp von Bohlen und Halbach.
In addition, the following were named as groups or organizations (since
dissolved), which should be declared criminal:
The Reich Cabinet; the Leadership Corps of the Nazi Party; the Schutzstal Jeln,
known as the SS; the Sicherheitsdienst, known as the SD; the Geheime
Staatspoliz Ci, known as the Gestapo; the Sturm. Abteil ungen, known as the SA;
the General Staff and High Command of the German Armed Forces.
The indictment consisted of the following four counts:

Count one. The common plan or conspiracy;

Count two. Crimes against peace;
Count three. War crimes;
Count four. Crimes against humanity.
The tria1 5 which took place at Niirnberg began on 20 November 1945
and ended on 31 August 1946, during which time the Tribunal held 403
open sessions, heard 33 witnesses for the prosecution against the
individual defendants, and 61 witnesses, in addition to 19 of the
defendants, gave evidence for the defense. One hundred and forty-three
witnesses gave evidence for the defense by means of written answers to
interrogatories.
As regards the accused organizations, the Tribunal appointed
commissioners to hear evidence and 101 witnesses were heard for the
defence before these commissioners, while 1,809 affidavits from other
witnesses were submitted Six reports were also submitted, summarizing
the contents of a great number of further affidavits.
One of the defendants, Robert Ley, committed suicide on 25 October
1945. Gustav Krupp von Bohlen und Halbach could not be tried because
of his physical and mental condition, and the charges against him were
retained for trial thereafter.
On 17 November 1945 the Tribunal decided to try the defendant
Bormann in his absence under the provisions of Article 12 of the
Charter.
All of the defendants pleaded not guilty. They were represented by
counsel, in some cases appointed by the Tribunal at the request of the
defendants, but in most cases chosen by the defendants themselves.
On 30 September and 1 October 1946 the International Military
Tribunal rendered judgment. Groups within the following four
organizations were declared criminal in character, viz., the Leadership
Corps of the Nazi Party, the SS, the SD and the Gestapo. The Tribunal
declined to make that finding with regard to the SA, the Reich Cabinet
and the General Staff and High Command.