Nuremberg Trials, Subsequent
Nuremberg Trials, Subsequent
On November 1, 1943, as the tides of World War II began to turn, leaders of the United Kingdom, the United States, and the Soviet Union convened in Moscow. Germany had been put on notice in 1941 and 1942 that perpetrators of war crimes would be held to personal account "through the channel of organized justice." The earlier warnings were renewed as President Franklin D. Roosevelt, Prime Minister Winston Churchill, and Soviet Marshal Joseph Stalin issued a solemn Declaration on German Atrocities. On behalf of thirty-two Allied powers, they proclaimed that Germans responsible for war crimes committed in territories overrun by Hitler's forces would be sent back to be judged by the people they had outraged. Major criminals, whose offenses had no particular geographic location, would be punished by joint decision of the Allies.
U.S. Army War Crimes Trials at Dachau
The war ended with Germany's unconditional surrender in May 1945. Captured German records disclosed that millions of Germans had been avid supporters of the Nazi Party and policies. Allied trials for such large numbers were logistically and politically impossible. They could be dealt with later in German "denazification" procedures. The U.S. Army lost no time in bringing to justice suspected war criminals who were already in custody. U.S. military commissions were convened to try Germans accused of murdering downed flyers or prisoners of war as well as perpetrators or accomplices responsible for atrocities committed in concentration camps freed by U.S. forces. Ironically, these little-known U.S. Army trials were held in the liberated camp at Dachau, near Munich.
The prosecutors, defense counsel, and judges were all U.S. army officers. Defendants were grouped according to the camps where they were captured. The summary proceedings generally followed rules for court martials. Between June 1944 and July 1948, when the trials unceremoniously ended, over 1,600 defendants had been tried. Almost all were convicted and over 400 were sentenced to death. After military reviews, fewer than 300 of the death sentences were confirmed. The guilty were confined in War Crimes Prison No. 1, formerly renowned as the Bavarian jail at Landsberg, where Adolf Hitler, after his failed coup in 1923, had written Mein Kampf.
The First International Military Trial at Nuremberg
The trials in Dachau were overshadowed when the spotlight shifted to a new International Military Tribunal (IMT) established in Nuremberg, where Hitler's deputy, Hermann Göring and other prominent Nazi accomplices held center stage. The four victorious powers—the United States, the Soviet Union, the United Kingdom, and France—in their capacity as the sole acting government of Germany, signed an agreement in London on August 8, 1945, that provided for the establishment of an International Military Tribunal "for the just and prompt trial and punishment of the major war criminals of the European Axis."
The IMT Charter, which was annexed to the London Agreement, became the foundation stone for the IMT trial and for twelve lesser-known Nuremberg trials that soon followed.
The IMT prosecution began on November 30, 1945. After a trial that was generally considered to be eminently fair, the judgment against the twenty-four defendants was handed down on October 1, 1946. The Presiding Judge, Lord Geoffrey Lawrence of Great Britain, read the sentences. Three of the defendants were acquitted. Twelve others were sentenced to death for having planned and participated in aggressive war, which the tribunal condemned as "the supreme international crime," as well as for crimes against humanity and violations of the laws of war. After the Allied Control Council confirmed their sentences, those condemned to die were hanged. Göring committed suicide and Martin Bormann, Hitler's deputy, who was tried in absentia, was never found. Those sentenced to imprisonment were confined in Spandau Prison in Berlin, where they remained under strict quadripartite supervision until their sentences were fully served.
Trials under Allied Control Council Law
Defeated Germany was divided into four zones. Each zone was occupied and administered by one of the four victorious powers. Berlin was occupied jointly. The governing body was the quadripartite Control Council. Because the London Charter anticipated the possibility of more than one trial, the Control Council enacted Law 10, on December 20, 1945, to provide a uniform legal basis for any subsequent trials and to add some needed clarifications. The most important change was to make clear that crimes against humanity could be punishable even if committed in peacetime against one's own nationals. Invasions as well as wars were specifically made punishable, and rape was added as a specific example of a crime against humanity. These articulations would play an important role in the evolution of international criminal and humanitarian law.
The single trial by the IMT against two dozen culprits could not adequately portray the full extent of Nazi criminality. The Allies all agreed that additional speedy trials would be desirable to hold accountable those mid-level policy makers and accomplices without whose assistance Hitler's overwhelming reign of terror would not have been possible. Where and how such trials would be held posed a problem. The leading architect of the Nuremberg trial, Justice Robert M. Jackson, on temporary leave from the U.S. Supreme Court to serve as Chief Prosecutor for the United States, noted that quadripartite trials in four languages were both costly and time-consuming. With the Allies failing to reach an accord on another international trial, it was finally decided that each of the occupying powers could handle future war crimes prosecutions in its own zones of occupation as each might see fit.
In time the French conducted a few trials in their zone and the British did the same under rules prescribed by traditional royal warrants for military procedures. What the Soviets did in areas they occupied remains obscure, but millions of German prisoners of war were kept in Soviet custody for many years. The United States decided that justice would best be served by additional trials against a wide array of high-level Germans suspected of being the powers behind the Nazi hierarchy of crime. United States Zone Ordinance No. 7, adopted on October 18, 1946 (amended by Ordinance 11 on February 17, 1947), laid down rules for implementing Control Council Law No. 10 to guarantee a fair and speedy trial for all accused. Although the later proceedings were conducted in the name of the United States and the prosecutors and judges were U.S. citizens, the trials, based on the London Charter, had characteristics of international law rather than national law. The courts were created and the trials conducted pursuant to the quadripartite Control Council decrees and ordinances. They were bound to respect the legal findings of the IMT.
Nuremberg, ravaged by war, was in the U.S. zone. The old German courthouse had been refurbished for the IMT and would be available as soon as the international trial was completed. Telford Taylor, a Harvard law graduate who had served on the staff of Justice Jackson, was charged with responsibility for organizing and directing any subsequent proceedings. Taylor, promoted to Brigadier General, was designated Jackson's deputy and named Chief of Counsel for further trials. Nazi leaders who were not tried by the IMT as well as their principal agents and accessories, and members of Nazi groups found by the IMT to be criminal organizations, were potential targets for the new war crimes courts.
The evidence before the IMT had only outlined the broad sweep of Nazi criminality. Crimes of such magnitude could not have been committed without help from many sectors. German doctors, for example, had performed brutal medical experiments on victims considered racially undesirable or subhuman. German judges and lawyers had used the law as a tool for persecuting presumed enemies. High-ranking military officers directed or assisted massive war crimes in violation of the laws of war. The Nazi Party had been financed by banks and industrialists who were fully aware of Hitler's plans and programs. German companies had seized foreign assets and helped build concentration camps where helpless inmates were worked to death. German diplomats and ministers had planned and aided Hitler's repeated aggressions. To follow up on the IMT, a sample of such wrongdoers would be called to account for their actions in courts of law set up in Nuremberg by the United States.
The challenge was daunting. Evidence had to be assembled quickly to prove beyond reasonable doubt that the suspects knowingly committed crimes within the jurisdiction of the court. The alleged perpetrators would have to be in custody and in mental and physical condition to stand trial. New staff had to be recruited and trained; bilingual researchers, investigators, and translators had to be hired. Qualified and available judges had to be recruited in the United States. Witnesses had to be located, housed, and safeguarded. Budgets were limited. Most important of all, it was imperative that any subsequent trial(s), be absolutely fair in fulfilling humanity's aspirations to do justice.
The Twelve Subsequent Trials at Nuremberg
Doctors and Lawyers on Trial
The lead defendant in Case No. 1, the so-called Medical Case, was Karl Brandt. Like many other Nazi leaders, he was given high rank in the SS (Security Services) and reported directly to Hitler. Dr. Brandt, together with twenty-two others, was indicted on December 9, 1946, for experiments on helpless concentration camp inmates and prisoners of war. The unwilling "guinea pigs" were deliberately infected with diseases and subjected to wounds designed to test the limits of human endurance. Euthanasia and sterilization programs had been organized against the aged, incurably ill, and others characterized as "useless eaters." The defendants all denied personal culpability, arguing that they were acting under "superior orders" and that such experiments were carried on legally elsewhere.
The U.S. judges, who came from superior courts in Oklahoma, Florida, and Washington, found there was unquestionable proof that war crimes and crimes against humanity had been committed. Individual responsibility had to be established beyond a reasonable doubt. Seven defendants were acquitted. The others were convicted on July 19, 1947, and sentenced to long prison terms. Five were condemned to hang and in due course were executed in Landsberg Prison. The tribunal laid down ten basic principles that had to be observed to satisfy ethical and legal standards for medical experiments. These guidelines became important signposts for the medical profession throughout the world.
Nazi lawyers and judges did not escape scrutiny. In the "Justice Case" that opened on January 4, 1947, fourteen leading officials of the judicial system of the Third Reich were accused of crimes against humanity by distorting the legal process to justify and support Hitler's programs of persecution and extermination. The trial judges came from benches in Ohio, Oregon, and Texas. They found that the dagger of the assassin was concealed beneath the robe of the jurist. The proceedings, which lasted less than a year, reinforced principles established by the IMT and became the subject of a popular Hollywood film, Judgment at Nuremberg.
The American judges denied that they were imposing ex post facto or retroactive law. International law, in contrast to national law, was described as an evolving process that relies on broad principles of justice and fair play, which underlie all civilized concepts of law and procedure. No one was convicted without proof that he knew or should have known that in matters of international concern he was guilty of participating in a nationally organized system of injustice and persecution shocking to the moral sense of mankind. The fairness of the trial was evidenced by the fact that four of the accused were acquitted. The six remaining were sentenced to life imprisonment or lesser terms.
Nazi Administrators and Executioners
Three subsequent trials were directed against leaders of different Nazi offices. The Pohl Case indicted Oswald Pohl, Chief of the Economic and Administrative Departments, and seventeen of his highest-ranking associates. They were accused of kidnapping and enslavement of millions of civilians, and the construction and administration of concentration camps, where forced laborers toiled under conditions that made work and death almost synonymous. Defendants argued that during the war food was scarce for everyone and hard work was mandatory, not unlawful. The judgment in November 1947 held that there is no such thing as benevolent slavery; compulsory, uncompensated labor under the most inhumane conditions was a crime. The trial lasted approximately six months and resulted in death sentences for Pohl and three of his cohorts. Three others were acquitted, while the rest received prison terms.
The second case against Nazi officials indicted fourteen leaders of the Main Race and Resettlement Office (RuSHA) whose assignment was to safeguard the purity of German blood by eliminating ethnic "inferiors," such as Jews, Romani (Gypsies), and Poles. Other non-Aryans were to be resettled or "Germanized." The trial lasted about four months and ended on March 10, 1948. The lead defendant, Ulrich Greifelt, was sentenced to life imprisonment. The one female defendant in all of the Nuremberg trials was acquitted. Others received prison sentences and those convicted only of membership in criminal organizations were allowed to go free for time already served.
Of special interest was the case against the special extermination squads known as SS Einsatzgruppen. Twenty-four high-ranking officers, including six generals, were accused of slaughtering more than a million Jews, Romani, and other men, women, and children as part of the Nazi Final Solution to eradicate perceived opposition to Hitler's Reich. The defendants were commanders of units, totaling about three thousand men, who followed behind the German advance into Poland and the Soviet Union, where they rounded up helpless civilian victims for execution in ditches or gas vans. Their daily reports to higher headquarters and ministries tabulated the number of victims "eliminated," and the location and identity of the units and commanders in charge. Unfortunately for them, these official records, from about June 1941 to mid-1942, fell into the hands of U.S. war crimes investigators.
Relying on the defendant's own reports, the prosecution rested its case two days after delivering its opening statement on September 29, 1947. The defense took 136 trial days. They challenged the authenticity of the documents, and offered alibis, denials, excuses, and purported justifications, including the standard plea of superior orders. Presiding Judge Michael Musmanno, of Pennsylvania, allowed the defendants the opportunity to introduce any evidence they felt might save them. But they could not escape the damaging impact of the overwhelming proof against them. The judgment was comprehensive and devastating. On April 10, 1948, all defendants were convicted and fourteen sentenced to death. Executions were stayed pending appeals. The trial was widely publicized as "the biggest murder trial in history."
The defendants were well-educated men. Eight of them were lawyers and most others had advanced degrees. The lead defendant and an intellectual, SS General Otto Ohlendorf freely admitted that his unit had killed about ninety thousand Jews. He testified that he would do it again to answer his country's call. Even after Ohlendorf was sentenced to death, he showed not the slightest remorse. The trial offered new insights into the mentality of fanatics who are so convinced of the righteousness of their cause that they remain willing to kill or be killed for their own ideals.
The victims were killed because they did not share the race, religion, or creed of their executioners. The prosecution emphasized that no penalty could balance the enormity of the genocidal crime. The goal of the trial was not vengeance or merely justified retribution. It was a plea of humanity to law—that all people should have a legal right to live in peace and dignity regardless of their race or creed. The Opinion of the three U.S. judges confirmed that genocide and crimes against humanity were crimes that could never be tolerated. The trial and judgment set significant landmarks to advance the evolution of international criminal and humanitarian law.
Industrialists Called to Account
Three more trials focused on industrial leaders and financiers who backed the Hitler regime. The Farben, Krupp, and Flick cases also reflected the mentality of persons who aided and abetted the Nazi reign of terror without any regret or subsequent remorse. They were accused of profiteering from the slave labor programs of the Third Reich and from confiscation of properties plundered in occupied countries. Many of the defendants argued that loyalty to the regime made it necessary to go along with the Nazi government.
In the trial against Friedrich Flick and five of his associates, the defendants were charged with seizing properties as well as exploiting camp inmates under the most atrocious conditions. It was shown that Flick took the initiative for economic plunder and was a big contributor to Nazi entities. German defense lawyers argued that their clients had done no more than others would have done in defense of home and country. The arguments of economic and military necessity persuaded the American judges to acquit three of the accused. On December 22, 1947, Flick was sentenced to five years imprisonment and the two remaining defendants received lesser terms. With time off for good behavior, they would all soon be released.
Alfried Krupp was the sole owner and director of Hitler's major arms producer. (His father Gustav had been dropped as a defendant in the IMT trial when it was found that he was senile.) Alfried and eleven other key members of the company were indicted on a variety of charges. The court acquitted all of having been accessories to crimes against peace. The judges were not convinced that the defendants had sufficient knowledge of Hitler's aggressive intentions to be found guilty. Judge Hu C Anderson, from Tennessee, believed that liability for planning aggressive war should be limited to the leaders who did the planning and not include civilians who were not policy makers.
On other counts of the indictment the defendants did not fare as well. The judgment covered 122 printed pages. Eleven of the accused were found guilty beyond a reasonable doubt of plunder and violating laws of war by mistreatment of prisoners and camp inmates who slaved in their plants. The arguments that they acted under superior orders and feared they might otherwise be penalized were rejected. It was shown that the industrialists shared the goals of the Nazi regime and were in no way coerced. Any disadvantage that might have befallen them was trivial when compared to the suffering of the inmates they abused. Krupp was sentenced to twelve years in prison plus forfeiture of all his property. His colleagues received lesser sentences. In the spring of 1949 they were transported to War Crimes Prison No. 1, where they began plans to obtain their release. It would not be long in coming.
The most difficult and complicated industrial trial was against the directors of the IG Farben chemical cartel. The "Farben Case" indicted twenty defendants, including Farben's Chairman of the Board, Hermann Schmitz. The charges were essentially the same as those leveled against Krupp. Farben had assisted Hitler in attaining power. Farben directors had worked closely with the military in restoring German might. Farben had financed the building of the concentration camp at Auschwitz. Farben was one of the heaviest users of slave labor in the camps. Farben had planned the unlawful acquisition of foreign companies to strengthen Germany's potential to wage war.
The tribunal's judgment in July 1948 acquitted all defendants of conspiracy and the crime of aggression. Two of the three judges were not persuaded that the accused were aware of Hitler's plans to start an aggressive war. Judge Paul Hebert, Dean of the Louisiana Law School, was not convinced that justice had been served. He dissented on some of the acquittals. Of the twentythree defendants, ten were acquitted of all charges. Thirteen were found guilty of plunder or slave labor abuses. Those convicted received light sentences, of eight years or less—much to the disappointment of the young U.S. prosecutors.
Generals Face the Court
German field marshals and generals were among the high-ranking military leaders called to account in the Hostages Case for the murder of prisoners of war and civilian hostages in occupied territories. The trial lasted about six months and ended in February 1948. The judgment, led by Charles Wennerstrum of Iowa, helped to clarify the law regarding the status and rights of partisans and other belligerents as well as the limits of "command responsibility" and "military necessity." Superior orders were considered in mitigation. No death sentences were imposed and some generals were acquitted. Fourteen of the convicted men were sentenced to prison terms.
The second military trial had only one defendant. In the Milch case, Field Marshal Erhard Milch, deputy to Göring, was sentenced to life imprisonment in April 1947 for his deep involvement in slave labor programs. In another such trial in the summer of 1948, all fourteen defendants in the "High Command" case were acquitted of planning or waging aggressive war since they were not found to be the policy makers. Most of the thirteen other defendants were sentenced to prison terms for abuse of forced laborers and other war crimes.
Ministers and Diplomats on Trial
The last and longest of the subsequent Nuremberg trials was the "Ministries" case that began in January 1948 with twenty-one defendants and spanned some fifteen months. High officials of Germany's Foreign Office and other government ministries were charged with responsibility for crimes against peace, crimes against humanity, and a large variety of war crimes and atrocities. Five defendants, including Ernst von Weizsaecker, a career diplomat who was State Secretary in the Foreign Office, were convicted of "crimes against peace." Following IMT reasoning, the court held that those leaders clearly responsible for initiating or cooperating in waging unlawful war, knowing that it was aggression, must be held accountable. They noted particularly that the principles laid down in the judgment were not binding merely on Germans but were applicable to all nations. Those found guilty were sentenced to prison terms ranging from four to fifteen years.
Clemency for War Criminals
The twelve Nuremberg trials had indicted 185 persons and convicted 142. The convicts joined more than a thousand prisoners sentenced by the Dachau military commissions to confinement in War Crimes Prison No. 1. Life in the Landsberg jail was relatively comfortable, but the prisoners lost no time in trying to win their freedom.
As the passions of war cooled and the political climate in Germany changed, the attitude toward the convicts in Landsberg also changed. The Soviet Union, which had been a wartime partner, soon came to be regarded as an enemy by the United States. West Germany, a wartime enemy, was seen as a potential ally in opposing communist expansion. German veteran's organizations, Nazi sympathizers, influential friends of the prisoners, as well as church and humanitarian groups, joined respected German politicians who beseeched the Americans to release the prisoners in Landsberg. They were not without friends in the U.S. Congress, where senator Joseph McCarthy and others argued that the real enemy was not Germany but the communists. German militarists made plain that they could not be expected to join Allied forces as long as their revered wartime commanders were imprisoned as criminals.
General Lucius Clay, as U.S. Military Governor, had personally reviewed both the Dachau and subsequent Nuremberg trials in 1948. He had affirmed practically all the verdicts, including hundreds of death sentences. As part of the movement away from military occupation, he was replaced in 1949 by a civilian high commissioner, John J. McCloy, a prominent New York lawyer who had served as Assistant Secretary of War. McCloy was left with the unenviable task of signing death warrants that would trigger the hanging of fifteen prisoners who had been convicted at Nuremberg but whose execution had been postponed pending appeals.
In July 1950 McCloy appointed an Advisory Board for Clemency for War Criminals to advise him. The board was instructed not to challenge any of the findings of law or fact reached by Nuremberg judges. Its sole purpose was to consider discrepancies in sentences for the same offense as well as personal hardships of health or family. It was not an appellate review and no Nuremberg prosecutors were consulted. On January 31, 1951, after all legal appeals had been exhausted, including petitions to the U.S. Supreme Court, which refused to accept jurisdiction, McCloy announced his final decisions. Thirty-one of the Nuremberg defendants, including the nine industrialists who had been sentenced to prison in the Krupp case, all had their terms reduced to "time served." On February 5, 1951, Krupp walked out of prison a free and happy man. High Commissioner McCloy ordered the return of the enormous Krupp fortune to him.
Taking account of every consideration in favor of the prisoners, McCloy commuted ten of the fifteen death sentences to life imprisonment. He could find no grounds for clemency for four Einsatzgruppen commanders (Paul Blobel, Werner Braune, Erich Naumann, and Ohlendorf) or for Pohl, who had been responsible for mass murders in concentration camps. Aware that Germany had abolished the death penalty, McCloy nevertheless confirmed that those five genocidal killers should be executed.
At the same time the commander of the U.S. Army in Europe, General Thomas Handy, who was responsible for the prisoners convicted in the army trials at Dachau, reduced sentences for about four hundred of those under his charge who were still detained in the war crimes prison. He commuted eleven death sentences that remained pending, but directed that two others face the gallows. The five Nuremberg defendants on death row plus the two convicted at Dachau were hanged in Landsberg Prison on June 7, 1951.
In December 1951 many of the war criminals convicted at Dachau or Nuremberg were granted their freedom as a "Christmas amnesty." Attempts to secure the release of the remaining Landsberg prisoners were unrelenting. The sympathetic U.S. authorities were increasingly creative in quietly finding ways to reduce sentences or grant paroles to remaining prisoners. Similarly, the British, eager to have German forces join in the defense of Europe, found reasons to release Hitler's leading commanders, Field Marshals Albert Kesselring and Fritz Erich Von Manstein, in 1952 and 1953. By the end of 1958 all war criminals convicted at any of the twelve subsequent trials at Nuremberg were free.
Significance of the Nuremberg Trials
The thirteen judicial proceedings at Nuremberg were designed to protect the fundamental rights of all human beings to live in peace and dignity regardless of their race or creed. In careful and well-reasoned judgments, the law was clarified and affirmed. Bringing at least a handful of Nazi leaders before the bar of justice helped to diminish some of the anger and pain of survivors of persecution and encouraged hope for a more humane world in which perpetrators of such crimes would never be immune from punishment. The number of convictions was not as important as the confirmation of the principles emerging to guide future international behavior of nations and individuals.
The details presented in open court at Nuremberg made plain how an entire nation could be led astray by a ruthless tyrant. Revulsion against the horrors encouraged acceptance of the Charter of the United Nations (UN) and the slow awakening of the human conscience. The Convention on the Prevention and Punishment of the Crime of Genocide, adopted on December 9, 1948; the Universal Declaration of Human Rights, adopted on December 10, 1948; and a growing host of other international agreements gave birth to new disciplines focused on humanitarian law and the protection of human rights everywhere.
The impulse of Nuremberg spread internationally. Trials of Japanese war criminals were based on the IMT Charter. Countries that had been occupied by Nazi Germany also held war crimes trials following similar principles. German courts conducted postwar trials against concentration camp personnel. A central office in Germany directed investigations of war criminals throughout the land. Suspected war criminals who fled abroad were seized and called to account for their prior actions. An ad hoc tribunal was set up by the United Nations Security Council in 1993 to deal with crimes against humanity and war crimes committed in Yugoslavia. A similar tribunal was created in 1994 to cope with genocide in Rwanda. Their decisions built upon the law laid down at Nuremberg. Several new national or international criminal courts are being planned to cope with terrorism and other atrocities in other parts of the world. They all bear the mark of Nuremberg. After many years of difficult negotiation, a permanent international criminal court, widely recognized as "the missing link in the world's legal order," was sworn into office in the Hague on March 11, 2003.
The many legal fruits that have grown from the seeds planted at Nuremberg reflect the enduring hopes of humankind. But, as seen from the clemency shown to criminals convicted at Nuremberg, the progress of the law does not proceed upward in a straight line or in a political vacuum. The creation of new judicial institutions with universally binding authority on matters of vital concern to many nations is not something that can be achieved quickly or easily.
There have always been those who oppose enforceable international rules as an infringement on national sovereignty. They prefer to rely on their own economic or military might rather than trust any untried new legal tribunals. Without looking for solutions, they point to shortcomings, even though some problems must be expected in every new institution. Opposition to the new international criminal court is, in effect, a repudiation of the principles and goals enunciated at Nuremberg. The historical record shows, however, that despite hesitation and vacillation, the Nuremberg principles live on. A peaceful and humane world requires an improved and enforceable rule of law that applies equally to everyone. The universal acceptance of that principle will be the enduring legacy of the Nuremberg trials.
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Benjamin B. Ferencz