Nuremberg trials

Nuremberg trials. The post-war legal proceedings at Nuremberg are best viewed as falling into two closely related categories. The first covers hearings conducted there between November 1945 and October 1946 before an International Military Tribunal (IMT) jointly established by the USA, the USSR, the UK, and France. This action against 22 major German war criminals was complemented by an eleven-power prosecution and judgement of Japanese leaders at the broadly comparable Far East war crimes trials. The second category embraces a series of ‘Subsequent Proceedings’, also held at Nuremberg and lasting until the spring of 1949. In them nearly 200 other prominent Nazis were tried before US Military Tribunals which operated within the American zone of occupation (see Allied Control Commissions) under the terms of Control Council Law Number Ten.

The Nuremberg IMT

In the Moscow Declaration, issued after the Moscow conference in October 1943, Roosevelt, Stalin, and Churchill made clear their determination to punish the principal Nazis, but left entirely vague all questions of procedure. As the war moved towards its close, the desirability of mounting full-scale legal proceedings remained in dispute. Though controversy occurred even in Washington, it was the US government which emerged as the strongest supporter of a comprehensive trial. The British cabinet, on the other hand, tended to oppose this option. It heeded the view of Lord Simon (1873–1954), the Lord Chancellor, that the fate of the German leadership cadre was essentially ‘a political, not a judicial, question’, and that summary process would provide a simpler (and potentially less embarrassing) solution. Not until May 1945 did the view of the Americans (supported eventually on this issue by the USSR) decisively prevail and the four-power London Agreement, signed on 8 August, two days after the dropping of an atomic bomb on Hiroshima, settled the ground rules for a major trial. These were embodied in a charter, which included provision for the establishment of a special tribunal comprising one judge, and one alternate, from each of the signatory states. The members then chose the senior British representative, Lord Justice Lawrence, to preside over what his colleague Norman Birkett called ‘the greatest trial in history’.

On 6 October 1945 the prosecutors appointed by the four powers published their joint statement of indictment. With Hitler, Himmler, and Goebbels all dead, that document listed 24 others as defendants. However, by the time that the proceedings actually began in November, Robert Ley had committed suicide and the industrialist Gustav Krupp had been deemed unfit to plead. All the remaining accused (see Table) reached the dock, except for Bormann who could not be found either alive or dead and was tried in absentia. The prisoners had been selected largely to represent the major administrative groupings within the Third Reich. This approach reflected the original American plan to put heavy stress on the need for obtaining declaratory judgements of criminality against certain indicted Nazi organizations. But, once the trial was under way, this theme became subordinated to more directly human issues, concerning especially the degree of responsibility attaching to each of the individual prisoners.

Those in the dock were, in personality and demeanour, a motley crew. Göring, weaned from drugs and in better mental and physical condition than for some years past, almost revelled in his position of primacy over the others. Certainly he surprised observers by the scope of the shrewdness and intelligence which he brought to bear on his self-justifications, which formed (as the writer Janet Flanner reported) ‘the complicated narrative of a brain without a conscience’. As for the leading representatives of the army and navy— Keitel, Jodl, Raeder, and Dönitz—these were consistent in expressing a defiant pain at having their obedience to military duty interpreted as cause for criminal prosecution. The old conservatives Neurath and Papen, together with the banker Schacht, manifested similar haughty indignation at finding themselves bracketed with a bully like Frick or a vulgar mediocrity like Sauckel. The cold brutality of Kaltenbrunner, leading survivor from the SS, was starkly evident; so too was that of Hans Frank, the broken ‘butcher of Poland’. The impression made by Speer on the courtroom was more subtle and confusing, as he sought to project himself as a decent man misled—through the irresistible spell of the Führer, the promptings of youthful ambitions, and the moral tunnel-vision that so readily afflicts the technocrat. There were other defendants such as Ribbentrop, Funk, and Rosenberg who seemed notable principally for their spinelessness; and, as for Streicher and Hess, even their sanity stood in question.

Each of the accused was tried under at least two of the four broad headings devised for the indictment. Count One covered the formulation or execution of ‘a common plan or conspiracy’; Two, ‘crimes against peace’; Three, ‘war crimes’; and Four, ‘crimes against humanity’. The American prosecuting team concentrated on the first category, and the British on the second; the Soviet and French representatives assumed principal responsibility for establishing guilt under both the remaining headings, dividing their task with reference to offences in eastern and western Europe respectively. Among these counts, the third had the firmest base in precedent. It built upon the efforts of the Hague and Geneva Conventions to deal with violations of the laws or customs of war. These were defined under the Nuremberg charter especially in terms of ‘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’.

The Nuremberg IMT: Defendants, charges, verdicts, and sentences

This listing of defendants follows the order of the indictment. G = Guilty; NG = Not Guilty.
Defendant	Count 1	Count 2	Count 3	Count 4	Sentence
Source: Contributor.
Hermann Göring	G	G	G	G	Hanging
Rudolf Hess	G	G	NG	NG	Life
Joachim von Ribbentrop	G	G	G	G	Hanging
Wilhelm Keitel	G	G	G	G	Hanging
Ernst Kaltenbrunner	NG	—	G	G	Hanging
Alfred Rosenberg	G	G	G	G	Hanging
Hans Frank	NG	—	G	G	Hanging
Wilhelm Frick	NG	G	G	G	Hanging
Julius Streicher	NG	—	—	G	Hanging
Walther Funk	NG	G	G	G	Life
Hjalmar Schacht	NG	NG	—	—	Acquitted
Karl Dönitz	NG	G	G	—	10 Years
Erich Raeder	G	G	G	—	Life
Baldur von Schirach	NG	—	—	G	20 Years
Fritz Sauckel	NG	NG	G	G	Hanging
Alfred Jodl	G	G	G	G	Hanging
Martin Bormann	NG	—	G	G	Hanging
Franz von Papen	NG	NG	—	—	Acquitted
Artur Seyss-Inquart	NG	G	G	G	Hanging
Albert Speer	NG	NG	G	G	20 Years
Konstantin von Neurath	G	G	G	G	15 Years
Hans Fritzsche	NG	—	NG	NG	Acquitted
total guilty	8	12	16	16
total not guilty	14	4	2	2

Count Four constituted a more innovatory extension of Count Three, adapting it to circumstances of total conflict hardly envisaged when the law on ‘war crimes’ was first evolved. By referring to ‘crimes against humanity’, the prosecutors intended to convey that the Nazis had descended to quite unprecedented levels of systematized barbarity. As defined by the charter, this offence encompassed ‘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 domestic law of the country where perpetrated’. Taken together, Counts Three and Four spanned the area where the Nuremberg prosecution was most successful in obtaining verdicts of guilt from the IMT. Here the quantity and scope of the incriminating material, including photographic as well as documentary evidence concerning the extermination camp system (see OPERATION REINHARD), was such as to provide the main basis for the twelve death sentences eventually decreed by the judges.

Critics of Nuremberg have often argued, with good cause, that the trial would probably have been tidier and more effective had it concentrated simply on these third and fourth categories of indictment. Counts One and Two certainly proved more awkward for the prosecutors and judges alike to handle. The offence of ‘conspiracy’—covering not just the substantive crime but also its preparation, as virtually a separate and additional matter—was based on a concept familiar only to the American and British lawyers involved. The stress placed on it by the trial planners from the USA in particular was such as to encourage at Nuremberg a constant, complex, and fascinating distortion of evidence from both sides. It gave the prosecutors extra motive for exaggerating the overall coherence of Nazi policy-making, while conversely supplying the defendants with added reason to seize every opportunity of overstating the confused nature of their responsibilities and, above all, the scale of their ignorance about what had been happening under the Reich. Viewed thus, the courtroom transcripts often look like the first rough sketch for much later debates between the ‘intentionalist’ and the ‘structuralist’ interpreters of such topics as the evolution of Nazi foreign policy or the path towards the Final Solution. The judges themselves swiftly sensed the difficulties raised by the conspiracy accusation. They eventually ruled that it would be pursued only in respect to the period starting from Hitler's ‘Hossbach’ meeting of November 1937, at which he reiterated to a group of his followers his intention of nursing a policy of aggressive expansion (see Lebensraum), and only in association with the offences alleged under Count Two.

That area of accusation became the most problematic of all. The indictment defined it as embracing ‘the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances’. It listed these wars as the ones launched by Germany against Poland, the UK, and France in 1939; against Denmark, Norway, Belgium, the Netherlands, and Luxemburg in 1940; and against Yugoslavia, Greece, the USSR, and the USA in 1941. But the reference to violations of international law during the preparatory planning of these aggressions meant that Count Two, in close association with the conspiracy charge under Count One, drew the court into tangled issues of historical as well as legal judgement concerning the origins of the Second World War. The prosecutors felt obliged to contend that various compacts from the inter-war period had indisputably evolved into a legal consensus about crimes against peace, which should now for the first time be enforced through penal sanctions. There was little difficulty in proving Hitler to have been by far the most aggressive actor on the European diplomatic scene during the 1930s. But the formal criminality of his pre-war foreign policies was much more disputable, as Simon (fearful of counter-charges about ex post facto legislation) had made amply plain to the British cabinet in April 1945. Pivotal to Count Two was the Kellogg–Briand Pact for the renunciation of war, signed in 1928 and subsequently ratified by all major and most minor states. This made no reference to penalties, and provided no clear definition of ‘aggressive war’. All the same, at Nuremberg the pact was accorded seminal importance. Was it however, as one of the defence lawyers argued, a significance belied by the attitudes and practices of all the main powers as these actually developed through the 1930s?

The record of that decade was indeed littered with complications for the IMT. Prosecutors piously invoked the aims of the League of Nations, a body to which the USA had never belonged and from which the USSR was eventually expelled. As for the British and French governments, certain aspects of their reaction to Mussolini's Abyssinian invasion suggested some condoning of aggression. While the defendants were repeatedly castigated for not seeing where Mein Kampf pointed, the bearing of this criticism upon Allied policy-makers was neglected. As Schacht later wrote in his memoirs, ‘How were the German people supposed to realize that they were living under a criminal government when foreign countries treated this same government with such marked respect?’ In 1938 Anglo-French protests against the German annexation of Austria had been remarkably tame, and the participation of Chamberlain and Daladier in the Munich agreement left these figures open to the charge of having been accessories (however reluctant) to criminal action. As E. L. Woodward, historical adviser to the foreign office, was still warning the trial planners in August 1945: ‘Up to September 1, 1939, His Majesty's government were prepared to condone everything Germany had done to secure her position in Europe.’ Even deeper embarrassment was caused by the Nazi–Soviet Pact on 23 August 1939, and above all by its cynical ‘secret protocol’ which gave the USSR a free hand to launch its own aggression against eastern Poland, the Baltic States, and Finland. Moreover, once the Nuremberg indictment had included the German attack on Norway (see Norwegian campaign), Whitehall was keen to prevent the defence from probing too deeply into discussions of 1939–40 concerning the case for a pre-emptive British landing, if necessary even against Norwegian resistance.

At these points, and at others concerned with the subsequent conduct of the war, the prisoners predictably did whatever they could to discredit the Nuremberg proceedings as mere ‘victors' justice’. After the Allies' own strategic air offensives, the prosecutors found it increasingly awkward to press home charges involving ‘wanton destruction of cities’; and, as the judges of the IMT explicitly conceded, the trial soon revealed that Germany's policy of unrestricted submarine warfare had been broadly matched by Anglo-American practices (see Laconia). Still wider problems stemmed from the Soviet presence in the courtroom, which meant that one nakedly totalitarian regime—with its own Stalinist record of mass murders and deportations, and of rigged trials (seeMoscow trials, for example)—was passing judgement on another. In eastern Europe the war had clearly been waged with utter callousness, from both sides. Supremely indicative of this was the Katyń Forest massacre. Though the USSR insisted on including this slaughter of Poles in the indictment, by the close of the trial it was more than ever evident that the atrocity had been committed not in 1941, as alleged, but in 1940 when the Smolensk region was still under Soviet rather than Nazi control. The tribunal itself made no concluding reference to the matter—a silence which was, in its own way, thunderously loud.

Historians now know, especially from the papers of the principal American judge, Francis Biddle (1886–1968), a good deal about the secret processes by which the fate of the defendants was eventually determined. There was a certain measure of haggling and horse-trading (most notably, to avoid Biddle making public his view that Dönitz should be acquitted on the charges as formulated), but the main impression is one of great care and general fairness within the sometimes compromising framework imposed by the charter. Throughout the trial the judges, guided by Lord Justice Lawrence's robust good sense, had bothered less with flights of jurisprudential theory than with the requirements of practical wisdom. They announced their verdicts and sentences in the courtroom on 1 October 1946. Two weeks later—with Bormann still missing and with Göring's suicide cheating the hangman by a few hours—ten defendants went to the gallows. On last-minute instructions from Moscow the main Soviet judge, General I. Nikitchenko, dissented publicly from the failure to add Hess to that number, and from the three acquittals. He also expressed the view of the USSR that the Reich cabinet, together with the General Staff and High Command, should have been retained on the list of organizations that were finally deemed criminal which included the SS and the ‘Leadership Corps of the Nazi Party’.

Those who mounted the Nuremberg trial accepted that much of its success would have to be gauged by the impetus which, in the longer term, it might give to the development of a proper system of international criminal law—one which would enable the world community to take effective judicial action against those who waged aggressive war or pursued genocidal policies. On that topic, much has been spoken since 1945 and very little actually achieved. The biggest difficulty remains the fact that proceedings of the Nuremberg type are attractive to governments only when the identity of victors and vanquished is conveniently settled in advance. In its more immediate aims, however, the IMT registered a firmer achievement. The trial's imperfections undoubtedly weakened its beneficial impact upon the German public, and gave comfort to those ardent to purvey neo-fascist myths. But far fewer fantasies developed than after 1918, and far fewer than would have been the case had the advocates of summary execution won the day in 1945. On balance, the IMT played a positive role in detailing the horrors of Nazism both before and during the Second World War, and thus in creating better prospects for democratic stability within the emerging Federal Republic. Finally, it needs to be emphasized that the Nuremberg trial, however flawed, gave those who stood in its dock an infinitely better hearing than anyone ever received before a Nazi court, or indeed amidst the infernal conditions of Auschwitz or Treblinka where even the pretence of legal forms was so murderously abandoned.

Subsequent proceedings at Nuremberg

The principles and procedures evolved for the main legal action at Nuremberg were also applied, in broadly similar terms, to other war crimes trials conducted by various Allied powers operating on a more individual basis. Most particularly, Control Council Law Number Ten of December 1945 entitled any of the four forces that were actually occupying post-war Germany to arrange its own zonal prosecutions. Although the Soviet authorities made no use of this specific provision, it did supply the basis upon which, for example, British Military Courts operated at Hamburg, Wuppertal, and elsewhere with regard to defendants such as General von Manstein. That same inter-Allied agreement also empowered the Americans, as occupiers of Germany's south-eastern zone, to launch a second phase of proceedings at Nuremberg.

There, between November 1946 and April 1949, US Military Tribunals settled the fate of a further 185 defendants. Though the responsibility for prosecution and judgement now rested with a single power, the variety and scale of the offences alleged were sufficient to lead international lawyers to regard these proceedings as the most significant supplement to the work of the earlier Nuremberg court and to that of the Tokyo IMT (see Far East war crimes trials). The Americans organized the new set of hearings into twelve different trials, whose titles are usually cited in the following shorthand form:1. The Medical Case, charging senior Nazi doctors with having conducted experiments upon the inmates of concentration camps;2. The Milch Case, involving forced labour and medical experimentation at Dachau;3. The Justice Case, concerning abuses of legal process within the Third Reich;4. The Pohl Case, directed against SS officers involved in the administration of concentration camps and of slave labour-programmes;5. The Flick Case, involving industrialists' complicity in the confiscation of Jewish property and in the use of forced labour;6. The I. G. Farben Case, probing similar offences by officials of the leading chemicals manufacturer;7. The Hostages Case, bearing upon ill-treatment of civilians in south-eastern Europe;8. The RuSHA Case, mounted against officials of the SS Race and Settlement Office implicated in the policies of genocide;9. TheEinsatzgruppen Case, concerning SS units responsible for mass murder;10. The Krupp Case, again focusing on the industrial exploitation of slave labour and confiscated property;11. The Ministries Case, directed against officials from the foreign office and other departments who had been engaged in laying the diplomatic, economic, and other foundations for Hitler's ‘New Order’ (see Germany, 4);12. The High Command Case, charging senior military figures with offences against prisoners-of-war, and against civilians in occupied areas.Overall, the dozen trials conducted by US military tribunals at Nuremberg resulted in the acquittal of 35 defendants (though some of those later faced German denazification courts) and the release of a further 19 on various other grounds. Death sentences were implemented against 24 of those charged, while 20 were condemned to gaol for life and 87 to shorter terms of imprisonment.

Michael Biddiss

Bibliography

Gilbert, G. M. , Nuremberg Diary (London, 1948).
Smith, B. F. , Reaching Judgment at Nuremberg (London, 1977).
Tusa, A. and and J. , The Nuremberg Trial (London, 1983).
Tutorow, N. (ed.), War Crimes, War Criminals, and War Crimes Trials: An Annotated Bibliography and Source Book (New York, 1986).