On November 20, 1945, six months after the surrender of Nazi Germany to allied forces, twenty-one military, political, media, and business leaders of the Third Reich filed into the dock of the Palace of Justice in the devastated and occupied German city of Nuremberg. There they stood trial for the most heinous crimes known to humankind, which were committed during World War II. Over the course of the next eleven months, unprecedented trials that profoundly influenced the development of international law and how governments must treat civilian populations unfolded. There were moments of lofty rhetoric and high drama, but often there was also the tedium that has characterized most criminal trials throughout history.
The four major victorious allied powers in the European theater of World War II—the United States, the United Kingdom, France, and the Soviet Union—met in London during the summer of 1945. On August 8 these nations entered into an international agreement, known as the London Charter, that created a special court called the International Military Tribunal (IMT). The IMT consisted of an organizing charter and constitution "for the just and prompt trial and punishment of the major war criminals of the European Axis." The aggressive military assaults of the German army, the criminal Nazi occupation policies in numerous conquered lands, and the Nazi-inspired extermination of millions of Jews and other victims seemed at the time to provide ample justification for establishing the IMT.
During the height of armed combat, on November 1, 1943, the Foreign Ministers of the United States, United Kingdom, and the Soviet Union declared in Moscow that their war efforts would not prejudice "the case of the major criminals whose offenses would have no particular location and who will be punished by a joint decision of the Governments of the Allies." They thus established a distinction between major war criminals in leadership positions and the many thousands who committed crimes in the field. This differentiation set the stage for the Nuremberg trials of prominent leaders in 1945 and 1946, followed by thousands of trials of war criminals of lesser stature in the courts of the four occupying powers of Germany.
Alternatives to Nuremberg
During World War II, there were many competing ideas about how best to deal with the war criminals of the Third Reich, and the IMT's creation was by no means a certainty until the very end of the war. There always was an expectation that soldiers charged with conventional war crimes would be prosecuted. However, enemy leaders responsible for the atrocities of the Third Reich might have faced an entirely different fate, consistent with the Moscow Declaration. For instance, British officials, aware of a vengeful British public, advocated summary execution of the fifty to one hundred top Nazi leaders. British Prime Minister Winston Churchill wrote to Soviet leader Josef Stalin in September 1944, arguing that such leaders should be executed as "outlaws" within six hours of capture, and that "the question of their fate is a political and not a judicial one." Such plans were kept secret, however, so as to avoid German reprisals against British prisoners of war. In late 1943, Stalin recommended to Churchill and President Franklin D. Roosevelt that 50,000 to 100,000 of the German Commanding Staff "must be physically liquidated."
Within the U.S. government, there were strong advocates for summary execution. Treasury Secretary Hans Morgenthau, who had distinguished himself early in the war as a fierce opponent of the Nazis' anti-Jewish atrocities, was opposed to war crimes trials. In November 1944 he submitted a summary execution plan that initially targeted five million Nazi Party members but settled on 2,500 members. Roosevelt was prepared to adopt Morgenthau's plan, but Secretary of War Henry Stimson argued vigorously for war crimes trials with basic rights of due process drawn from the U.S. Bill of Rights. He believed that such trials would establish individual responsibility for the crimes of the Nazi leadership and uphold democratic notions of justice. Stimson warned, "Remember this punishment is for the purpose of prevention and not for vengeance." The tide turned in Stimson's favor with Roosevelt's endorsement of war crimes trials on January 3, 1945. This was followed by the strong backing of Roosevelt's successor, President Harry Truman. The Soviet Union based its own belated support on their own experience with show trials in the 1930s, believing that war-crimes trial verdicts would result in the public (and popular) execution of the German war criminals.
The IMT can be viewed as symbolic of "victor's justice" and its associated charge of hypocrisy, meaning that the victors in World War II judged the vanquished. The inference of such a view is that the trials might be tainted by the lack of investigation and prosecution of any war crimes that the allied powers might have committed during the global conflict. It was no accident that aerial bombing was excluded as a war crime in the London Charter for the IMT. Including it would make prosecution of German aerial bombings (e.g., of London) appear as victor's vengeance, unless parallel investigations of American and British bombings of German cities (including the fire-bombings of Hamburg and Dresden) were also undertaken.
The German people accepted the reality of reprisals, but they deeply resented the failure at Nuremberg to hold accountable those who inflicted so much horror upon them. German historian and journalist Jorg Friedrich has noted that 700,000 German soldiers and civilians lost their lives in the last three months of the war. During one June 1943 British bombing raid of Hamburg, 43,000 residents died, 8,000 of them young children. Of the aftermath of Allied bombing missions, Friedrich has written:
Nearly all large and medium-sized German cities lay in ruins, charred and exploded into rubble by aerial warfare. In February 1945, in the Baltic port of Swinemunde, a hospital city, more than 20,000 sick, exhausted refugees from eastern Pomerania had been killed in bombings. German settlements in and beyond the eastern and southeastern borders had been purged, in the course of which 1.5 million people perished. In Yugoslavia, 98,000 ethnic Germans were killed or starved to death, one in five members of the population. Two million women were raped by the invading [Soviet] Red Army.
The Soviet government had no interest in being judged for its conduct during the war, including the Soviet Army's role in massacring the Polish officer corps (in the Belorussian forests of Katyn and elsewhere). It also wished to avoid being held responsible for the Nazi-Soviet Pact of 1939 carving up Poland, the Soviet attack on Finland in 1940, and the concentration camps in Soviet-occupied regions during the war. In those camps, Soviets inflicted extreme mistreatment on civilian and military detainees, often in cooperation with German SS and Gestapo officials, and caused the deaths of tens of thousands of German prisoners of war.
During his trial, defendant Admiral Karl Doenitz (Supreme Commander of the German navy) effectively used in his defense an interrogatory from Admiral Chester W. Nimitz, the Commander in Chief of the American Naval Forces in the Pacific Ocean during the war. His lawyer used Admiral Nimitz's testimony to confirm that it was American policy to interpret the London Submarine Agreement of 1936 "in exactly the same way as the German Admiralty," supporting his claim "that the German sea war was perfectly legal." German submarine surprise attacks against British and other merchant ships, which doomed to the ocean's depths the lives of passengers and crew, mirrored what the U.S. Navy had done to sink Japanese merchant ships. Doenitz escaped conviction on the charge of having breached the international law of submarine warfare, although he was convicted on other charges.
The Nuremberg trials would not have taken place if there had been a requirement for reciprocal justice, because the allied powers could not have agreed to the intensive self-examination that such a criminal investigation would demand. However deep this apparent flaw in the process was at the time, there remains great value in what was accomplished to establish individual criminal responsibility for the atrocity crimes of senior Nazi leaders. Summary executions were avoided and crimes of great magnitude and horrific character were publicly identified with their perpetrators, who were brought to justice relatively speedily. The manner in which the Nuremberg trials were conducted achieved a lasting credibility for its attention to due process rights. Further, the lessons of Nuremberg and the justice rendered there upon German leaders probably had a positive influence on later generations of Germans, who have been less affected by what their ancestors endured during World War II than they otherwise might have been. Probably as a result of the Nuremberg legacy, Germany has become a strong supporters of human rights, the non-use of force, international justice, and the work of the permanent International Criminal Court.
Composition of the Tribunal
The composition of the IMT reflected the multinational character of the victorious Allied powers. The United States, United Kingdom, France, and the Soviet Union were represented by four sitting judges and four alternate judges, one from each allied nation. All but the Soviet judge and alternate were drawn from non-military legal professions at the time of the trials. The prosecution counsel numbered fifty-two lawyers, again drawn from each of the four allied powers. The U.S. prosecution team was led by Justice Robert H. Jackson, on leave from the U.S. Supreme Court. Two of his American military prosecutors, Lieutenant Commander Whitney Harris and Brigadier General Telford Taylor, later wrote highly acclaimed, comprehensive histories of the Nuremberg trials. Twenty-eight German lawyers served as counsel for the individual defendants, and eleven German lawyers defended the six organizations that were charged with criminal conduct.
The London Charter required a fair trial for all of the defendants, and set forth fundamental rules for that purpose. These rules included the right to counsel and the right to cross-examine any witness. As the trials got underway, however, defense lawyers often found it difficult to obtain documents sought for the defense of their clients, and delays in the translation of key documents created difficulties for both the prosecution and defense.
Selection of Defendants
The selection of whom to indict and prosecute at Nuremberg bedeviled the four allied powers during the summer of 1945. For practical reasons, the total number of individuals who could stand trial before the IMT had to be extremely limited. Non-German Axis leaders were soon removed from the working list of targets for prosecution. Key Nazi leaders like Adolf Hitler, Joseph Goebbels, and Heinrich Himmler were already dead. The allies had to understand how power was exercised in Nazi Germany, and had to discover who wielded the most authority, and thus responsibility, for perpetrating the crimes described in the London Charter. Since first-hand information and actionable evidence about the crimes of the Holocaust had only begun to emerge, some of the obvious candidates for prosecution for the extermination of the Jews and others were not pursued. Among these were Gestapo chief Heinrich Muller and his deputy, Adolf Eichmann. In the end, notable and some far less notorious figures were selected.
The final list of twenty-four German defendants arose from political compromises and the intent of the allied powers to arrange the defendant pool to indict several branches of the Nazi leadership: military, political, propaganda, finance, and forced labor. The military defendants were Admiral Doenitz, Hermann Goering (Chief of the Air Force), Alfred Jodl (Chief of Army Operations), Wilhelm Keitel (Chief of Staff of the High Command of the Armed Forces), and Erich Raeder (Grand Admiral of the Navy). The political defendants were Hans Frank (Minister of Interior and Governor-General of occupied Poland), Wilhelm Frick (Minister of Interior), Rudolf Hess (Deputy to Hitler), Ernst Kaltenbrunner (Chief of the Reich's Main Security Office. under which the Gestapo and SS operated), Alfred Rosenberg (Minister of the Occupied Eastern Territories), Arthur Seyss-Inquart (Commissar of the Netherlands), Albert Speer (Minister of Armaments and War Production), Constantin von Neurath (Minister of Foreign Affairs and Protector of Bohemia and Moravia), Franz von Papen (former Chancellor of Germany), Joachim von Ribbentrop (Minister of Foreign Affairs), Baldur von Schirach (Reich youth leader), and Martin Bormann (Chief of the Nazi Party Chancery). Bormann was tried and convicted in absentia, meaning he was never located for arrest and thus did not physically appear for trial. The finance defendants were Walter Funk (President of the Reichsbank), Hjalmar Schacht (Minister of Economics prior to the war and President of the Reichsbank), and the industrialist Gustav Krupp von Bohlen und Halbach (the aging former president of the German munitions company, Friedrich Krupp A.G.). Gustav Krupp's prosecution was postponed indefinitely due to his poor health. He died in 1950, having never stood trial. The forced-labor defendants were Fritz Sauckel (Plenipotentiary General for the Utilization of Labor) and Robert Ley (former leader of the German Labor Front). Ley, however, committed suicide upon being indicted and thus never stood trial. The propaganda defendants were Hans Fritzsche (Ministerial Director and head of the radio division in the Propaganda Ministry) and Julius Streicher (editor of the newspaper Der Stürmer and Director of the Central Committee for the Defense against Jewish Atrocity and Boycott Propaganda).
In addition to these individual defendants, the Allied prosecutors, strongly encouraged by Jackson, were determined to prosecute certain organizations in Nazi Germany, alleging that they were illegal criminal enterprises. The prosecutors believed that individual defendants could be prosecuted and convicted by virtue of their membership in such organizations. Such a finding also would make it much easier to prosecute thousands of other defendants in subsequent trials simply by identifying an individual as a member of any such criminal organization. "Guilt by association" thus became the guiding principle of the prosecution strategy for these later trials. The London Charter empowered the IMT to define as criminal any group or organization to which any defendant appearing before the IMT belonged. Once such a finding was reached, the national, military, and occupation courts of the Charter signatories could bring individual members of those organizations to trial for years thereafter, with the criminal nature of such groups or organizations already considered proven. Such defendants would be permitted only limited defense arguments, for example that they joined the organization in question under duress. This represented the first of several legal innovations in the Nuremberg trials. Never before had national organizations been prosecuted, particularly by an international tribunal, for criminal conduct. Their alleged criminal character was determined by the IMT only after the war, thus raising concerns about retroactive justice.
Nevertheless, the IMT declared three of six organizations named in the indictment as criminal in character. The Gestapo, paired with the SD (Sicherbeitsdienst), was declared criminal for its role in "the persecution and extermination of the Jews, brutalities and killings in concentration camps, excesses in the administration of occupied territories, the administration of the slave labor program, and the mistreatment and murder of prisoners of war." The Leadership Corps of the [Nazi] Party, which included Hitler, his top staff officers, and an estimated 600,000 members, was declared criminal for "the Germanization of incorporated territory, the persecution of the Jews, the administration of the slave labor program, and mistreatment of prisoners of war." The IMT declared the SS (Schutzstaffeln), which ran the concentration camps and cleared Jews and others out of the ghettos, criminal for conducting the same activities as the Gestapo.
The indictment, issued on October 19, 1945, included four charges drawn from the London Charter: a common conspiracy to wage aggressive war, crimes against peace, war crimes, and crimes against humanity. The second category, crimes against peace, had no preexisting definition in international law. It was defined in the London Charter as the "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 [war crimes or crimes against humanity]."
The third category, war crimes, was a well-established concept in international law. It was defined in the London Charter as follows:
violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor 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 fourth category, crimes against humanity, had at best a very problematic foundation in international law. Such crimes were defined as follows:
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 the domestic law of the country where perpetrated.
War of Aggression
Despite the apparent injustice of the aggressive assaults by the German Army in World War II, there was no codified or even customary rule of international law in 1945 that explicitly outlawed a war of aggression. Yet Justice Jackson was determined to make "aggression" or "crimes against peace" the dominant allegation of the Nuremberg trials, and the American prosecution team assumed full responsibility for prosecuting the crime. In the aftermath of World War I, there had been a number of initiatives to outlaw wars of aggression, giving Jackson something to work with in legislating a new legal principle in the London Charter. Article 227 of the Versailles Treaty (1919), attempted to establish individual criminal responsibility for Germany's aggression in World War I by requiring the prosecution of the German Kaiser for "a supreme offense against international morality and the sanctity of treaties." The viability of this provision, however, was never put to the test, for the Kaiser enjoyed sanctuary from prosecution in The Netherlands, which refused to surrender him for trial.
The Kellogg-Briand Pact of 1928 was sponsored by the United States as manifesting "the outlawry of war" and signed by sixty-five nations, including such World War II aggressor nations as Germany, Italy, and Japan. This agreement expressed the intent to renounce war as a means of settling disputes. Various other pronouncements prior to World War II declared aggression to be an international crime, but no law had yet been written that prohibited a war of aggression. Justice Jackson faced opposition from legal scholars and other allied prosecutors, who challenged his effort to establish a new crime of aggression.
Justice Jackson prevailed with a bold strategic move. He argued that there had been a conspiracy to wage an aggressive war that swept within its reach war crimes and crimes against humanity (the two other major categories of crimes). He went on to assert that the entire indictment of the Nuremberg defendants would be premised on the allegation of this "master plan" that had been implemented through a conspiracy stretching back to 1933, when the Nazi Party came to power in Germany. He noted that war crimes had a relatively solid basis in existing international conventions that already required a connection with warfare. Therefore, he argued, doubts about the legality of any particular charge of aggression or crime against humanity (along with many other kinds of criminal conduct) should be overcome by implicating such crimes within the overall conspiracy to wage aggressive war. The conspiracy theory, in which all participants can be held equally responsible for criminal conduct, was established in Article 6 of the London Charter and underpinned the first count in the Nuremberg indictment:
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.
Conspiracy charges were a based on a legal concept that was peculiarly rooted in common law as understood in Britain and the United States. The French, Soviet, and German legal systems had no legal tradition for framing conspiracy charges. They preferred charging defendants for direct participation in specific crimes. The Soviets were extremely worried that Jackson's formula could be used to implicate them for their own suspicious conduct during the war and embarrass them as essentially unindicted co-conspirators in many of the crimes.
Wartime Crimes against Humanity
The operational compromise that emerged in the course of the trials meant that the IMT judges would entertain the charge of conspiracy only for acts of aggression by the Axis powers, and not for the commission of war crimes or crimes against humanity. The crime of conspiracy was further limited to actions closely related to the commencement of armed conflict and to those leaders who met together to plan specific acts of aggression. However, the nexus-to-war that originally drove Justice Jackson's conspiracy theory remained as a key practical requirement for the prosecution of crimes against humanity, primarily because these were crimes that had not been previously codified in international law and remained highly contentious as an example of retroactive justice by the IMT. By limiting the charges to crimes against humanity committed during wartime, the IMT could amplify the illegality of the acts within the context of the overall aggressive war. This would serve to blunt at least some of the arguments that defense counsel could raise about the legality of the charges, particularly those pertaining to the period from 1933 to 1939, even though the London Charter permitted investigation of all but one type (persecutions) of pre-war crimes against humanity.
The perspective of American prosecutor Whitney Harris reflects the general view that guided the IMT's approach at the time. He wrote:
[The limitation to wartime crimes against humanity] was a proper one in view of the status of the Tribunal as an international military body, charged with determining responsibility for war and crimes related thereto. If the Tribunal had assumed jurisdiction to try persons under international law for crimes committed by them which were not related to war it would have wholly disregarded the concept of sovereignty and subjected to criminal prosecution under international law individuals whose conduct was lawful under controlling municipal law in times of peace. Such jurisdiction should never be assumed by an ad hoc military tribunal established to adjudicate crimes of war.
The requisite nexus-to-war required by the IMT created a precedent for examining crimes against humanity that influenced, and arguably retarded, the development of the law for decades thereafter, until it was definitively broken in the 1990s in the Statute of the International Criminal Tribunal for Rwanda.
The conspiracy theory, particularly as it applied to crimes against humanity, had its doubters. Shortly before he committed suicide, Nuremberg defendant Robert Ley wrote: "Where is this plan? Show it to me. Where is the protocol or the fact that only those here accused met and said a single word about what the indictment refers to so monstrously? Not a thing of it is true." Ley's charges have received support from more recent scholarship on the subject. In 2003, historian Richard Overy of King's College, London, wrote:
Subsequent historical research has confirmed that no such thing as a concerted conspiracy existed, though a mass of additional evidence on the atrocities of the regime and the widespread complicity of many officials, judges, and soldiers in these crimes has confirmed that, despite all the drawbacks of the trial and of its legal foundation, the conviction that this was a criminal system was in no sense misplaced.
The Nuremberg prosecutors nonetheless presented much evidence to support the conspiracy theory during the trials. The fact that three defendants were acquitted on all four counts, including the conspiracy charge, does not diminish the fact that some defendants were found to be participants in a conspiracy to wage a war of aggression.
There is a general principle of law which states that individuals must not be held criminally responsible for conduct that was not illegal at the time it occurred (nullum crimen sine lege, also called the retroactivity rule). This principle was a very powerful presence at Nuremberg. Concerns about the credibility of the IMT arose with respect to defendants' arguments that they were only complying with German national law in the performance of their duties. Although German law under the Nazi regime became a vehicle of extreme discrimination and persecution of the Jews and other minorities, the invocation of national law as a defense, particularly regarding crimes against humanity, proved almost entirely unpersuasive to the IMT judges, who had a mandate to apply international law to the proceedings. The drafters of the London Charter struggled with these defenses; and defense counsel frequently offered them as mitigation for their clients' wartime actions.
Prosecutors and judges at the IMT found the legal basis for crimes relating to aggression and for crimes against humanity in the deep well of human experience and morality. For instance, Lieutenant Commander Harris drew upon how international law had over time criminalized acts of piracy on the high seas. He wrote:
the Nuremberg judges declared against aggressive war and related acts which they considered to have been morally condemned by the majority of nations. In the Tribunal's view these acts, like piracy, could no longer be tolerated in a civilized world, and the Tribunal concluded that the responsible individuals could be punished for their actions, just as earlier courts had resolved upon the punishment of men for acts of piracy.
The IMT took a judicial leap by assuming that international law had been fairly rapidly evolving toward the view that aggression and crimes against humanity should be outlawed, and that individual criminal responsibility for such crimes had become legally enforceable. In a very real sense, the IMT took the initiative to declare and act upon what it regarded as international law at a momentous period in world history, when clarity of interpretation and action was being sought. The extreme violence of World War II elicited such an exercise of discovery. Justice Jackson wrote to President Truman in June 1945 with disarming understatement:
Unless we are prepared to abandon every principle of growth for International Law, we cannot deny that our own day has its right to institute customs and to conclude agreements that will themselves become sources of a new and strengthened International Law.
The retroactivity rule challenged the IMT's jurisdiction over the crimes against humanity set forth in the London Charter. The overlap of many of these crimes with established war crimes presented little problem to the prosecutors. However, international legal principles of sovereignty and of non-interference in the internal affairs of other nations meant that the German assaults on their own civilian population, particularly the Jewish population, and the persecution inflicted on so many civilians might have been shielded from international criminal prosecution. To forestall this possibility, the IMT determined that its own selfmade authority required freshly conceived jurisdiction over such "internal" crimes. Again, the IMT found strength of reason in the requirement that such crimes be committed in connection with an on-going war and another crime "within the jurisdiction of the Tribunal." In other words, the context of aggressive war and/or a war crime was required to trigger individual criminal responsibility under international law. Having taken this leap of logic, the IMT prosecutors and judges acted prudentially in the trials to enforce a newly defined law on crimes against humanity.
Defense of Superior Orders
The London Charter addressed one of the most common defenses for defendants who claimed they were only acting, and had to act, pursuant to orders from superior officers and officials: "The fact that the Defendants 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." The Nuremberg defendants' high rank and their direct role in formulating the policies of the Third Reich (including for some of them the plotting of a war of aggression) left them with little opportunity to credibly claim that they were acting on the orders of superiors. They usually were the superiors who drafted many of the orders; they often played a political role in decision-making; and the orders they responded to came from leaders, such as Hitler, who issued commands of obvious criminal character, particularly to men of the stature in the Nazi regime as those in the dock at Nuremberg. Their individual accountability could not be extinguished by claiming obligation to follow a superior's orders. If the orders of superiors were unchallengeable when weighed against the crimes they sought to unleash, then the entire foundation for the Nuremberg trials, the laws and customs of war, and the legal principles that defined crimes against peace and crimes against humanity would crumble. The IMT pronounced that, "[t]he true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible."
Defendant Wilhelm Keitel sought to explain to the IMT how the traditional training and concept of duty of the German officers "taught unquestioned obedience to superiors who bore responsibility" and "caused them to shrink from rebelling against these orders and these methods even when they recognized their illegality and inwardly refuted them." Keitel also testified that the decision to wage a war of aggression is solely political, and that the military soldier must obey orders relating to it. The IMT rejected the credibility of these arguments for an officer of Keitel's exceptionally high rank—a senior officer who knew what was at stake, played a role in the decision-making, and yet remained indifferent to the legal issues. American prosecutor Telford Taylor wrote of Keitel, "His attitude was not far from that of Goering, who was not moved by 'considerations of international law.'" Although Keitel may have criticized some of the orders he received, he enforced them.
During the Nuremberg trials, ninety percent of the prosecution's evidence consisted of the Third Reich's own governmental files, which had been seized by Allied forces. Prosecutors had access to 100,000 German documents, millions of feet of video film, and 25,000 still photographs, including some taken by Hitler's personal photographer. Court stenographers prepared 17,000 transcript pages recording the testimony and proceedings of the trials. Active and often lengthy defenses were raised, frustrating the prosecution but also strengthening the fairness of the trials. It took twentyeight sessions to hear the defenses of just the first four accused. Defense counsel took sixteen days to make their closing arguments.
The IMT judges delivered their opinions regarding the twenty-two individual defendants and six organizations on September 30 and October 1, 1946. They did not convict all defendants on all counts of the indictment for which they had been charged. Instead, the judges found that the evidence fell short of the requirement that guilt be proven "beyond a reasonable doubt" with respect to some of the charges against the defendants.
The IMT fully acquitted three defendants of all charges: Schacht, Papen, and Fritzsche. Of the remaining nineteen defendants, all but two of them were convicted on multiple charges, and six were convicted on all four counts of the indictment. Eight defendants were convicted on the first count, charging conspiracy to wage aggressive war. Twelve defendants were convicted on the second count, crimes against peace. Sixteen defendants were convicted on the third count, war crimes. Sixteen defendants also were convicted on the fourth count, crimes against humanity. The IMT sentenced twelve defendants (including the absent Bormann) to die by hanging, and sentenced the remaining seven defendants to prison terms ranging from ten years to life. Goering committed suicide before he could be hanged. The Soviet judge dissented on each of the acquittals and on the life imprisonment (rather than hanging) sentence for Hess.
Witnesses at the Nuremberg trials confirmed the Nazi regime's own death count of the Jewish population and others in the extermination (also known as concentration) camps and during killing operations in the field. One witness, an SS reporter who knew Adolf Eichmann, confirmed that in mid-1944 Eichmann reported to Himmler that the latter's orders for extermination of the European Jewry were being implemented. (Although he remained at-large and unindicted at Nuremberg, Eichmann was later found in Argentina, abducted, and brought to trial in Israel. He was convicted in 1961 and sentenced to death.) The witness testified that Eichmann wrote, "Approximately four million Jews had been killed in the various extermination camps while an additional two million met death in other ways, the major part of which were shot by operational squads of the Security Police during the campaign against Russia." Although the prosecution had initiated the Nuremberg trials with a strong focus on charging the defendants with conspiracy to wage a war of aggression and with violations of "crimes against peace," in the end the trials also established the horrific truth of the Holocaust, namely the genocide against the Jewish population of Europe. It is that truth and the criminality arising from the charges of Nazi crimes against humanity that became the most prominent legacies of justice at Nuremberg.
Influence of Nuremberg Trials
The Nuremberg trials of 1945 and 1946 influenced later developments of international law and the courts that enforce it. It underpinned the work of the Tokyo War Crimes Trials (1946–1948) and subsequent trials under Control Council Law No. 10 in occupied Germany. They also firmly established the basis for attributing individual criminal responsibility for atrocity crimes such as genocide, serious war crimes, and crimes against humanity that would constitute the core jurisdiction of international criminal tribunals at the end of the twentieth century and beyond. The trials accelerated the further development of the principles of international criminal law and international humanitarian law, as reflected in the Genocide Convention of 1948, the Geneva Conventions of 1949, the Geneva Protocols of 1977, the Statutes of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, and the 1998 Rome Statute of the International Criminal Court.
The UN General Assembly affirmed in Resolution 95(I) of December 11, 1946, the "Principles of International Law Recognized by the Charter of the Nuremberg Tribunal." The illegality of aggression was further elaborated in a 1974 UN General Assembly resolution defining aggression with regard to state responsibility, and in the Draft Code of Crimes Against the Peace and Security of Mankind, which was adopted by the International Law Commission. Deeply influenced by the record of the Nuremberg trials, the states that are party to the Rome Statute of the International Criminal Court continue to negotiate how to activate the crime of aggression which, for purposes of individual criminal responsibility, is included in the new court's jurisdiction. In Justice Jackson's opening statement at the Nuremberg trials, he summed up what they were all about:
The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. 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.
SEE ALSO Göring, Hermann; Jackson, Robert; London Charter; Morgenthau, Henry; Nuremberg Trials, Subsequent; Tokyo Trial; War Crimes
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David J. Scheffer
The Nuremberg trials were a series of trials held between 1945 and 1949 in which the Allies prosecuted German military leaders, political officials, industrialists, and financiers for crimes they had committed during world war ii.
The first trial took place in Nuremberg, Germany, and involved twenty-four top-ranking survivors of the National Socialist German Workers' Party (Nazi Party). The subsequent trials were held throughout Germany and involved approximately two hundred additional defendants, including Nazi physicians who performed vile experiments on human subjects, concentration camp commandants who ordered the extermination of their prisoners, and judges who upheld Nazi practices.
World War II began in 1939 when Germany invaded Poland. Over the next few years, the European Axis powers (Germany, Italy, Albania, Bulgaria, Hungary, and Romania) successfully invaded and occupied France, Belgium, Luxembourg, Denmark, Norway, Greece, Yugoslavia, Czechoslovakia, Finland, and the Netherlands. But when adolf hitler's troops invaded the Soviet Union, the Nazi war machine stalled. By the end of the war, the Axis powers were battered and beleaguered, and in 1945 they unconditionally surrendered to the United States, the Soviet Union, Great Britain, and France (the four Allied powers).
Although the surrender of the Axis powers brought the war to its formal conclusion, the Third Reich had left an indelible imprint on the world. During Germany's attempted conquest and occupation of Europe and Asia, the Nazis slaughtered, tortured, starved, and tormented over six million Jews and countless others—including Catholics, prisoners of war, dissenters, intelligentsia, nobility, and other innocent civilians. As part of their systematic effort to extinguish persons they deemed subversive, dangerous, or impure, the Nazis constructed concentration camps around Europe where they murdered their victims in gas chambers and incinerated their bodies in crematories. Persons who escaped this fate were deported to Nazi labor camps where they were compelled upon threat of death to work for the Third Reich.
The Allies had been discussing the idea of punishing war criminals since 1943 when U.S. president franklin d. roosevelt, British prime minister Winston Churchill, and Soviet premier joseph stalin signed the Moscow Declaration promising to hold the Axis powers, particularly Germany, Italy, and Japan, responsible for any atrocities they committed during World War II. In 1944 Roosevelt and Churchill briefly entertained the idea of summarily executing the highest-ranking members of the Third Reich without a trial or legal proceeding of any kind.
However, by June of 1945, when delegations from the four Allied powers gathered in London at the International Conference of Military Trials, the U.S. representatives firmly believed that the Nazi leaders could not be executed without first being afforded the opportunity to defend themselves in a judicial proceeding. Principles of justice, fairness, and due process, delegates from the United States argued, required no less. U.S. leaders also feared that the Allies would be perceived as hypocritical for denying the vanquished powers the same basic legal rights that were denied to those persons summarily executed by Germany, Italy, and Japan during the war.
On August 8, 1945, the four Allied powers signed a convention called the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers, which set forth the parameters by which the accused would be tried. Under this convention, which is sometimes referred to as the London Agreement or Nuremberg Charter, the Allies would conduct the trials of leaders of the European Axis powers in Nuremberg, and would subsequently prosecute lower-ranking officials and less important figures in the four occupied zones of Germany. American military tribunals in the South Pacific, under the command of General Douglas MacArthur, tried accused Japanese war criminals.
The London Agreement also established the International Military Tribunal (IMT), which was a panel of eight judges, two named by each of the four Allied powers. One judge from each country actively presided at trial, and the other four sat on the panel as alternates. The four Allied powers also selected the prosecutors, who agreed to pursue a conviction against the defendants on behalf of the newly formed united nations.
Under the Nuremberg Charter, each defendant accused of a war crime was afforded the right to be represented by an attorney of his choice. The accused war criminals were presumed innocent by the tribunal and could not be convicted until their guilt was proven beyond a reasonable doubt. In addition, the defendants were guaranteed the right to challenge incriminating evidence, cross-examine adverse witnesses, and introduce exculpatory evidence of their own.
The court appointed interpreters to translate the proceedings into four languages: French, German, Russian, and English. Written evidence submitted by the prosecution was translated into the native language of each defendant. When considering the admissibility of particular documents or testimony, the IMT was not bound by technical rules of evidence common to Anglo-American systems of justice. The tribunal retained discretion to evaluate hearsay and other forms of evidence that are normally considered unreliable in the United States and Great Britain.
The IMT made all of its decisions by a majority vote of the four judges. On issues that divided the judges equally, the president of the court, Lord Justice Geoffrey Lawrence from Great Britain, was endowed with the deciding vote. In all other situations, a vote cast by Lawrence carried no greater weight than a vote cast by Soviet judge Ion Nikitchenko, French judge Henri Donnedieu de Vabres, American judge francis biddle, or any of the alternates. The IMT's decisions, including any rulings, judgments, or sentences, were final and could not be appealed.
Neither the defense nor the prosecution was permitted to challenge the legal, political, or military authority of the court. The IMT said that its jurisdiction stemmed from the London Agreement that was promulgated by the Allies pursuant to their inherent legislative powers over the conquered nations, which had unconditionally surrendered. According to the tribunal, each Ally possessed the unqualified right to legislate over the territory that it occupied. By establishing the IMT, the court said, the Allies "had done together what any one of them might have done singly."
The IMT was given authority to hear four counts of criminal complaints: conspiracy, crimes against peace, war crimes, and crimes against humanity. Count I encompassed conspiracies to commit crimes against peace, whereas count II covered persons who committed such crimes in their individual capacities. Crimes against peace included the planning, preparation, initiation, and waging of aggressive war in violation of international treaties, agreements, or assurances. Crimes against peace differed from other war crimes, the tribunal said, in that they represented the "accumulated evil" of the Axis powers.
Count III consisted of war crimes committed in violation of the laws and customs of war as accepted and practiced around the world. This count aimed to punish those individuals who were responsible for issuing or executing orders that resulted in the plundering of public and private property, the wanton destruction of European cities and villages, the murder of captured Allied soldiers, and the conscription of civilians in occupied territories for deportation to German labor camps.
Count IV consisted of crimes against humanity, including murder, extermination, enslavement, and other inhumane acts committed against civilian populations, as well as every form of political, racial, and religious persecution carried out in furtherance of a crime punishable by the IMT. This count aimed to punish the most notorious crimes committed by the Nazi regime, such as genocide and torture. Early in the trial, however, the IMT ruled that the court did not have authority to try the defendants for crimes they committed before 1939 when World War II began.
Many of the prospective Nazi defendants were dead or could not be found after the war. Adolf Hitler, the totalitarian dictator of Germany who was the emotional and intellectual catalyst behind most of the war crimes committed by the Nuremberg defendants, Heinrich Himmler, head of the SS (Schutzstaffel, or Black-shirts, the Nazi organization in charge of the concentration camps and the Gestapo, the German secret police), and Paul Joseph Goebbels, the Nazi minister of propaganda, had all killed themselves during the final days of the war. benito mussolini, totalitarian dictator of Italy, was shot and hung by his own people in Milan in April 1945. Other German officials such as Karl Adolf Eichmann, a lieutenant colonel in the SS who was the architect of Hitler's "final solution" to exterminate the Jewish population in Europe and Asia, and Dr. Josef Mengele, a physician who performed barbaric experiments on prisoners at the concentration camp in Auschwitz, Poland, eluded the Allies by fleeing Germany after the war.
Not all of the Nazi leadership was able to escape justice. Twenty-four Nazi officials were indicted under the Nuremberg Charter for war crimes. The tribunal convicted eighteen of the defendants and acquitted three defendants (Dr. Hjalmar H. G. Schacht, president of the German Central Bank, Hans Fritzsche, propaganda minister for German radio, and Franz von Papen, vice chancellor of Germany). One defendant (Dr. Robert Ley, leader of the Nazi Labor Front) committed suicide before the proceedings began; one defendant (Gustav Krupp von Bohlen und Halbach, a German military industrialist) was deemed mentally and physically incompetent to stand trial; and one defendant (Martin Bormann, Hitler's secretary and head of the Nazi Party Chancellery) was tried and convicted in absentia because his whereabouts were unknown.
The trial began on November 20, 1945, and concluded on October 1, 1946. Thirty-three witnesses testified for the prosecution. Eighty witnesses testified for the defense, including nineteen of the defendants. An additional 140 witnesses provided evidence for the defense through written interrogatories. The prosecution introduced written evidence of its own, including original military, diplomatic, and government files of the Nazi regime that fell into the hands of the Allies after the collapse of the Third Reich.
robert h. jackson, an associate justice of the U.S. Supreme Court, led the prosecution team. President harry s. truman had asked Jackson to assemble a staff of U.S. attorneys to investigate alleged war crimes and present evidence against the defendants. Jackson was joined on the prosecution team by Roman Rudenko, François de Menthon, and Sir Hartley Shawcross, the chief prosecutors for Russia, France, and Great Britain, respectively. Each of the four powers employed a number of assistant prosecutors as well.
Jackson commenced the trial with an opening statement that is considered one of the most eloquent in the annals of jurisprudence. "The wrongs which we seek to condemn and punish", Jackson said, "have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated…. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to judgment of the law is one of the most significant tributes that power has ever paid to reason."
Hermann Goering was the most powerful surviving member of the German government to be tried at Nuremberg. Goering had been elected president of the Reichstag (the German parliament) in 1932. After Hitler was named chancellor of Germany in 1933, Goering was appointed minister of interior for Prussia where he created the Gestapo and established the first concentration camps. In 1935 Goering became chief of the Luftwaffe (the German air force), and two years later he was made commissioner of the Four Year Plan, an economic program designed to make Germany self-sufficient in preparation for the ensuing Nazi blitzkrieg. After Germany's invasion of Finland in 1939, Goering was elevated to Reich marshall, the highest military rank in Germany, and designated as Hitler's successor in the event of Hitler's death.
The IMT convicted the Reich marshall on all four counts and sentenced him to death. The prosecution demonstrated that Goering had helped plan and direct the invasions of Poland and Austria. Other evidence indicated that Goering had ordered the Luftwaffe to destroy a business district in Rotterdam, Netherlands, even though the city had already surrendered. Goering was also implicated in the extermination of Polish intelligentsia, nobility, and clergy, the execution of British prisoners of war, the deportation of foreign laborers to Germany, the theft of art from French museums, and the suppression of domestic political opposition. Additionally, Goering admitted on cross-examination that he was responsible for promulgating laws that had facilitated the persecution of Jews throughout Europe.
Rudolph Hess was another influential Nazi official prosecuted at Nuremberg. Hess was a longtime friend of Hitler. In 1923 the two joined forces in an unsuccessful attempt to incite a Nazi revolution in a Munich tavern. Although Hitler was arrested and convicted of treason for his role in the so-called beer hall putsch, German interest in the Nazi movement grew after the publication of Mein Kampf, a manifesto Hitler dictated to Hess while serving his prison term. Mein Kampf planted the seeds of Aryan supremacy, German nationalism, anti-Semitism, and totalitarian government, seeds that Hess later cultivated in his capacity as deputy führer to the Third Reich.
During the Nuremberg trial, the prosecution offered evidence that Hess had signed orders authorizing the persecution of European Jews and the ransacking of churches. Documents signed by Hess and meetings he attended reflected his support for Hitler's plan to invade Czechoslovakia, Poland, France, Belgium, Luxembourg, and the Netherlands. Hess originally asserted a defense of amnesia to these charges, claiming that he had forgotten the entire period of his life in which he had acted as deputy führer. However, Hess withdrew this defense upon realizing that he would not stand trial with the other defendants if he were diagnosed as incompetent. Hess was convicted of counts I and II and sentenced to life imprisonment.
Joachim von Ribbentrop, Germany's foreign minister during World War II, was convicted on all four counts and sentenced to death. When he took the witness stand, the prosecution asked him if he considered Germany's invasions of Poland, Denmark, Norway, Greece, France, and the Soviet Union "acts of aggression." In each case Ribbentrop answered in the negative, arguing that such invasions were more properly described as acts of war. Confronted with evidence that he had urged the German regent of Hungary to exterminate the Jews in that country, Ribbentrop responded only by saying that he did not use those words exactly.
Dr. Ernst Kaltenbrunner was the head of the Reich Central Security Office, the Nazi organization in charge of the Gestapo and the SD (Sicherheitsdienst, Security Service, the German intelligence agency) and was second in command to Himmler at the SS. Kaltenbrunner faced a mountain of evidence demonstrating that he visited a number of concentration camps and had personally witnessed prisoners being gassed and incinerated. One letter signed by Kaltenbrunner authorized the execution of Allied prisoners of war, and another letter authorized the conscription and deportation of foreign laborers. Laborers who were too weak to contribute, Kaltenbrunner wrote, should be executed,
regardless of their age or gender. Kaltenbrunner received a death sentence after being convicted under counts III and IV.
Alfred Rosenberg was the Nazi minister for the occupied Eastern European territories. Rosenberg told Axis troops that the accepted rules of land warfare could be disregarded in areas under his control. He ordered the segregation of Jews into ghettos where his subordinates murdered them. His signature was found at the bottom of a directive approving the deportation of forty-five thousand youths to German labor camps. Cross-examined about his role in the unlawful confiscation of Jewish property, Rosenberg claimed that all such property was seized to protect it from Allied bombing raids. Rosenberg was found guilty on all four counts and sentenced to death by hanging.
Hans Frank, the governor-general of Poland during German occupation, was sentenced to hang after being convicted on counts III and IV. Frank described his administration's policy by stating that Poland was "treated like a colony" in which the Polish people became "the slaves of the Greater German World Empire." The tribunal found that this policy entailed the destruction of Poland as a national entity, the evisceration of all political opposition, and the ruthless exploitation of human resources to promote Hitler's reign of terror. While on the witness stand, Frank confessed to participating in the Nazis' systematic attempt to annihilate the Jewish race.
Wilhelm Frick, the German minister of interior, was found guilty on counts I, II, and III and sentenced to be hanged. Frick had signed decrees sanctioning the execution of Jews and other persons held in "protective custody" at the concentration camps and had given Himmler a blank check to take any "security measures" necessary to ensure the German foothold in the occupied territories. The tribunal also determined that Frick exercised supreme authority over Bohemia and Moravia and was responsible for implementing Hitler's policies of enslavement, deportation, torture, and extermination in these territories.
Wilhelm Keitel, field marshall for the High Command of the armed forces, was sentenced to die after being found guilty on every count. On direct examination Keitel admitted that there were "a large number of orders" bearing his signature that "contained deviations from existing international law." He also conceded that a number of atrocities had been committed under his command during Germany's invasion of the Soviet Union. As a defense to these charges, Keitel asserted that he had been following the orders of his superiors when committing these crimes. Yet some witnesses testifying on behalf of the defense tended to undermine this assertion.
Alfred Jodl, chief of the operations staff for the armed forces, also received the death sentence after being convicted on every count. During the early stages of World War II, Jodl had been asked to review an order drafted by Hitler authorizing German troops to execute all Soviet military commissars captured during the Nazi invasion of Russia. Aware that this order was a violation of the customs, practices, and laws governing the treatment of prisoners during times of war, Jodl made no attempt to dissuade Hitler from issuing it. Jodl was also found responsible for distributing an order that authorized the execution of Allied commandos caught by the Axis powers and for mobilizing the German army against its European foes.
Julius Streicher, an anti-Semitic propagandist, was found guilty of count IV and sentenced to death. Author, editor, and publisher of Der Stuermer, a privately owned Jew-baiting newspaper, Streicher held no meaningful government position with the Axis powers during World War II. Yet the tribunal determined that circulation of Streicher's racist newspaper had fueled the Nazis' maniacal hatred of Jews and fomented an atmosphere in which genocide was acceptable and desirable. The prosecution introduced an article Streicher had published during 1942 in which he described Jewish procreation as a curse of God that could only be lifted through a process of political and ethnic emasculation.
Albert Speer, Nazi minister of armaments, received a prison term of twenty years after being convicted on counts III and IV. Speer had fascinated Hitler long before the war with his architectural prowess, designing buildings that were both immense and imposing. After the war began, however, Speer's primary obligation was to supply the German armed forces with military supplies, equipment, and weapons. Thus, Speer became a lynchpin in the Nazi military empire. In an effort to maintain this empire, the prosecution demonstrated, Speer had repeatedly cajoled Hitler to procure foreign labor to work in his weapons factories.
Dr. Arthur Seyss-Inquart, an Austrian who was appointed by Hitler to govern Austria and the Netherlands during German occupation, was found guilty on counts II, III, and IV and sentenced to death for his confessed mistreatment of racial minorities in those territories, including the deportation of more than 250,000 Jews to Germany. Seyss-Inquart also assisted Hitler's takeover of Austria, Poland, and Czechoslovakia.
Baron Konstantin von Neurath, Reich protector of Czechoslovakia, was convicted on all four counts and sentenced to fifteen years in prison for participating in the Nazi militarization campaign. Hoping to immunize the Nazi regime from its obligations under international law, Neurath had advocated Germany's withdrawal from the league of nations and denounced the Versailles Treaty that had formally concluded world war i. Neurath was also implicated in various brutalities committed against the Czechoslovakian civilian population.
Baldur von Schirach, governor of occupied Vienna and leader of the Hitler Youth, was convicted on count IV and sentenced to a twenty-year prison term. The IMT determined that Schirach had provided the visceral foundations for the militarization of Germany's youngest Nazis through psychological and educational indoctrination and had conspired with Hitler to deport Viennese Jews to Poland where most of them met their death. Fritz Sauckel, the plenipotentiary general for the allocation of labor, was convicted on counts III and IV and sentenced to death for his central role in the Nazi forced labor program that enslaved more than eleven million Europeans.
Erich Raeder served as Germany's naval commander and chief until 1943 when he resigned due to a disagreement with Hitler, and he was succeeded by Karl Doenitz. Both Raeder and Doenitz were indicted under counts I, II, and III for war crimes committed on the high seas, and both were convicted based in part on evidence that they had authorized German submarines to fire on Allied commercial ships without warning in contravention of international law. Doenitz was sentenced to a ten-year prison term, and Raeder received a life sentence. Walther Funk, Nazi minister of economics, also received a life sentence for financing Germany's aggressive warfare and for exploiting foreign laborers in German industry.
The IMT declared four Nazi organizations to be criminal: the SS, the SD, the Gestapo, and the Nazi Party. A team of Allied attorneys, including American Telford Taylor, subsequently prosecuted individual members of these organizations. Three Nazi organizations were acquitted: the SA (Sturmabteilung, the paramilitary organization also known as the Brownshirts or Stormtroopers), and the general staff and High Command of the German armed forces.
The Nuremberg trials made three important contributions to international law. First, they established a precedent that all persons, regardless of their station or occupation in life, can be held individually accountable for their behavior during times of war. Defendants cannot insulate themselves from personal responsibility by blaming the country, government, or military branch for which they committed the particular war crime.
Second, the Nuremberg trials established that individuals cannot shield themselves from liability for war crimes by asserting that they were simply following orders issued by a superior in the chain of command. Subordinates in the military or government are now bound by their obligations under international law, obligations that transcend their duty to obey an order issued by a superior. Orders to initiate aggressive (as opposed to defensive) warfare, to violate recognized rules and customs of warfare, or to persecute civilians and prisoners are considered illegal under the Nuremberg principles.
Third, the Nuremberg trials clearly established three discrete substantive war crimes that are punishable under international law: crimes against peace, crimes against humanity, and crimes in violation of transnational obligations embodied in treaties and other agreements. Before the Nuremberg trials, these crimes were not well defined, and persons who committed such crimes had never been punished by a multinational tribunal. For these reasons the Nuremberg convictions have sometimes been criticized as ex post facto justice.
The Nuremberg trials have also been criticized as "victor's justice." Historians have observed that the Allied nations that tried and convicted the leading Nazis at Nuremberg did not come to the table with clean hands. The Soviet Union had participated in Germany's invasion and occupation of Poland and had been implicated in the massacre of more than a thousand Poles in the Katyn forest. Bombing raids conducted by the United States and Great Britain during World War II left thousands of civilians dead in cities like Dresden, Germany, and Nagasaki and Hiroshima, Japan. President Roosevelt had implemented a relocation program for more than 100,000 Americans of Japanese descent that confined them to concentration camps around the United States.
The Nuremberg trials were not typical partisan trials, though. The defendants were afforded the right to counsel, plus a full panoply of evidentiary and procedural protections. The Nuremberg verdicts demonstrate that these protections were taken seriously by the tribunal. The IMT completely exonerated three defendants of war crimes and acquitted most of the remaining defendants of at least some charges. Thus, the Nuremberg trials, while not perfect, changed the face of international law, both procedurally and substantively.
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