A historic milestone – The Nuremberg Trial 1945–1946

Robert H. Jackson, US Chief Prosecutor
in his opening statement in
Nuremberg on 21 November 1945:
“…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.”

 

The Road to the Nuremberg Trial

Early in 1942, nine governments-in-exile of states occupied by Nazi Germany’s armies were the first on the international stage to call for judicial proceedings against those responsible for the war. The St. James Declaration was signed by Czechoslovakia, Poland, Norway, the Benelux states, France, Yugoslavia and Greece. The United Nations War Crimes Commission was established at the end of 1942. It was charged with collecting evidence of war crimes committed by Germany, Italy and Japan. In November 1943, the principal Allied powers – the USA, the Soviet Union and Great Britain – signed the Moscow Declaration concerning German atrocities in occupied Europe, which contained two pledges: war criminals would be brought to trial in the countries in which they perpetrated their crimes, and that the major war criminals whose offences have “no particular geographical localization” would be punished by “joint decision of the governments of the Allies”.

The planning to establish an appropriate “International Military Tribunal” (IMT) was undertaken by the US war ministry, although neither the judges, prosecutors nor the defendants were to be drawn solely from the military sphere. The driving organizational force behind was former US Attorney General and Supreme Court judge, Robert Jackson, who would also be the Chief US Prosecutor at the trial. The Tribunal’s legal foundations were enshrined in the London Agreement of 1945, signed by the USA, the Soviet Union, Great Britain and France. Nuremberg was chosen as the venue for the trial because it had a largely undamaged courthouse with an adjoining prison and was situated in the American zone of occupation.

The defendants

The defendants were to be top functionaries from the various branches of the Nazi regime. To be brought before the Tribunal they had to be alive, and were preferably already in custody. Their selection was thus pragmatic and arbitrary; it cannot be claimed that all important Nazi perpetrators and members of the leadership were indicted. Of the 24 defendants only 21 actually appeared before the court. One was unfit to stand trial, one was only mistakenly believed to be alive, and a third committed suicide shortly before the trial commenced. The Nuremberg defendants were drawn from the major branches of the Nazi regime: government ministers and senior army and navy officers; important businessmen, above all those responsible for the armaments industry and the use of forced labourers; the top Nazi leadership from some of the occupied countries, as well as propagandists and other high-ranking party officials.

The charges

The offences were formulated as three counts: “crimes against peace”, “war crimes” and “crimes against humanity”. Participation in a “common plan or conspiracy” to commit any of the offences falling under these three counts was likewise criminalized. This was designed to put Nazi policies as a whole in the dock as having been planned with criminal intent from the very start – from Hitler’s ideology in “Mein Kampf”, to the party’s seizure of power and subsequent exercise of total control over Germany, right up to the planning and execution of the war.

“Crimes against peace” centred on the conduct of wars of aggression in violation of international treaties to which Germany was a party. Examples of “war crimes” given in the Tribunal’s Charter included violations of the Hague and Geneva Conventions, such as the murder of civilians in occupied territories, the deportation of citizens of defeated states for slave labour, the ill-treatment and murder of prisoners of war and the killing of hostages.

The genocide of the European Jews was central to the count of “crimes against humanity”. This charge was new under international law, just as the nature and magnitude of the perpetrated crime was unique in history. Murder is, of course, a criminal offence in all countries around the world. In all civilized nations, the systematic murder of defenceless victims is considered a crime.

The novel aspect under international law was that charges were brought against six organizations, three of which were held to be criminal: the Secret State Police (Gestapo), the leadership of the Nazi party, the SS (Schutzstaffel) and its subordinate agency, the SD (Sicherheitsdienst). The Government and the Wehrmacht were not considered to be criminal organizations. However, no defendant was convicted solely on the basis of membership of a criminal organization; individual criminal actions were also required for a conviction. The Nazis’ own administrative documents formed the bulk of the evidence used at the trial. This evidence was supplemented by the testimony of a number of witnesses, most of whom were accomplices rather than victims. The prosecutors also presented film material of the liberation of the concentration camps as evidence. The defendants were free to choose their own defence counsel. They were represented at the trial by 27 German lawyers, with some success.

The judgments

22 judgments were handed down: twelve death sentences, seven prison sentences and three acquittals. In addition the main institutions of the Nazi regime were declared to be criminal organizations.

The aftermath

Nazi war criminals and concentration camp staff were also charged and convicted by other states. A further 12 trials with 177 defendants took place in Nuremberg between 1946 and 1949 under the authority of US Military Tribunals.

The Tokyo Tribunal 1946–1948

(International Military Tribunal for the Far East, IMTFE) In 1946, 28 major war criminals from Japan’s military and political leadership were charged in Tokyo with mostly the same range of offences prosecuted in Nuremberg. Seven were sentenced to death. The court was organized by the US with the participation of its allies in the war against Japan. The Tokyo trial was the basis for various subsequent trials for Japanese war crimes conducted by among others Australia, China, France, The Netherlands, The Philippines, The United Kingdom and United States.

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