Introduction to German Trials
Emily Harpster, Senior Researcher
"In untroubled times, progress toward an effective rule of law in the international community is slow indeed ... Now we stand at one of those rare moments when the thought and institutions and habits of the world have been shaken by the impact of world war on the lives of countless millions. Such occasions rarely come and quickly pass. We are put under a heavy responsibility to see that our behavior during this unsettled period will direct the world's thought toward a firmer enforcement of the laws of international conduct, so as to make war less attractive to those who have governments and the destinies of peoples in their power."
-Future American Chief Prosecutor Robert Jackson in June 1945
Creating a Court
The road to the Nuremberg trials was long, twisting, and uncertain. That there would be some sort of "justice" after the war was assured, but highly complex and controversial political, legal, and military considerations drove the content of that justice from one end of the spectrum to the other. Some suggested that only the most punitive of measures could bring true justice, including summary executions, severe punishments for lesser Nazis, the return of Germany to a more agrarian state, and - among the diehards in the punitive camp - in subjecting the Nazis to the same conditions to which they had subjected the Jews. Others suggested that the disaster after World War I should serve as a lesson to the victors, and that more restorative measures would be a more pragmatic and less costly response. In the end, the restorative measures took precedence. Even once a trial had been decided upon, however, the road was far from clear, and the actions of individual actors greatly influenced the course of things. As historian Bradley Smith observes, "the Allies stumbled and compromised their way into the business of a major trial of war criminals."
In the United States, as in both the Soviet Union and Britain, the initial desire was for Nazi blood. Nazi atrocities prompted a visceral reaction, and many felt that executions were not only a fair response to what the Allies had suffered but also a necessary lesson for the incurably aggressive Germans, who had gotten off "too easy" after World War I. Early on, Roosevelt himself signed onto Treasury Secretary Morgenthau's plan for "pasturalization", which called for the execution of thousands of Germans, the creation of labor battalions, the subjection of the German people as a whole to the same conditions under which they had put the Jews, and the systematic dismantlement of their industrial capabilities. Any German on a list of war criminals - a list that Morgenthau envisioned as containing tens of thousands of names - "shall be put to death forthwith by firing squads made up of soldiers of the United Nations," he suggested in a memo to President Roosevelt. Churchill concurred, writing to British Foreign Secretary Anthony Eden, "it is quite clear that all concerned who may fall into our hands, including the people who only obeyed orders by carrying out the butcheries, should be put to death after their association with the murders has been proved."
At the other end of the spectrum, Secretary of War Henry Stimson wanted to take a more reconstructive approach in order to prevent Germans from claiming, "as they have been claiming with regard to the Versailles Treaty, that an admission of war guilt was extracted from them under duress." Those who agreed with him called for the prosecution of Nazi leaders and their organizations, an undertaking that they felt would individualize an otherwise general sense of guilt and hence potential for future resentment. In a response to Morgenthau's plan, Stimson wrote to President Roosevelt that pasturalization was short-sighted and hasty, and that "the very punishment of these men in a dignified manner consistent with the advance of civilization will have all the greater effect upon posterity." "The difference," he wrote, "is not whether we should be soft or tough on the German people, but rather whether the course proposed will in fact best attain our agreed objective, continued peace." Furthermore, a trial would establish an evidential record of the Nazi system of terror and of the efforts of the Allies to destroy it.
Although the Morgenthau camp had won the first round, the battle swung decisively in Stimson's favor in September 1944. The New York Sunday papers leaked out rumors of Cabinet splits and produced a public outcry over what was perceived as the overly punitive Morgenthau plan. In Germany, Goebbels screamed the revelations of the American press to the German people, and after the disastrous reversal for the Allies at Arnhem - which was undoubtedly partly attributable to a renewed sense of German resolve and resistance - plans for holding a trial began to be concretized. Roosevelt distanced himself from his earlier view, writing, "no one wants to make Germany a wholly agricultural nation again."
After Roosevelt died in April 1945, Truman promptly decided to follow the recommendations of Stimson and his allies in the War Department, and this effectively set the American course. He asked Supreme Court Justice Robert J. Jackson to serve as "Chief of Counsel for the Prosecution of Axis Criminality", a position which Jackson accepted. Jackson then reviewed a brief trial plan that had been prepared by the War Department and began to muster legal resources and personnel to his side. When the San Francisco conference (which founded the United Nations) convened at the end of the month, the Americans had shifted their task from the international examination and discussion of options to persuading their Allies that criminal prosecution was the best course. In the words of Lieutenant Colonel Murray Bernays, who had been responsible for the initial trial plan, opinion had landed on the side of those who believed that "not to try these beasts would be to miss the educational and therapeutic opportunity of our generation."
Legal Invention and Compromise
Once Truman had decided to move forward with plans for the trial, getting the four victorious powers to agree to it - and then to a structural and procedural framework for it - was nothing short of astonishing . Political stances varied widely, both as a result of wartime experience and domestic political battles, and paradoxically only Stalin had given notice of his desire to hold "fair" trials prior to San Francisco. Furthermore - and resolution of this problem would eventually be one of the crowning achievements of Nuremberg - Continental and Anglo-American systems of law were not only very different, but they also had little precedent with regard to the situation confronting the Allies. One observer has pointed out that "the legal instruments for prosecuting a drunk driver in any county in America were better than those for prosecuting the murderers of millions during a war."
The four Allies convened at the London Conference in June 1945 for the purpose of hammering out a concrete trial plan, settling their juridical differences, and addressing concerns that they all shared. These differences included a division over the concept of "conspiracy", which the Americans introduced and which had no precedent in French or Soviet law; the more confrontational approach of the Anglo-American system of justice, which stood in sharp contrast to the judge-centered, jury-less approach of the Continental and Soviet system; and a focus on defendants' rights, which the Continental and Soviet system did not share with the Anglo-American one and which amazed them. Concerns that plagued all included a worry over ex post facto law, or crimes defined only retrospectively, and accusations of victors' justice, including the accusation that the Allies had committed many of the same "crimes" that the Germans had.
By August, the Allies had sketched out common ground and defenses enough to draw up a "charter" (a word carefully chosen, rather than law, statute, or code, all of which had an unpleasantly juridical slant). The Charter wrapped many of the ideas and controversies of the past months into legally coherent language, and it set forth a structural and procedural plan for the court as well as definitions of the crimes that it defined as falling within its jurisdiction. It was a revolutionary document, and many of its carefully constructed criminal definitions would make their way three years later into the Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights. In demonstrating the feasibility of international criminal jurisdiction, it also paved the way for efforts to establish an International Criminal Court.
Article six of the charter enumerated first "crimes against peace", or the planning, preparation, initiation or waging of a war of aggression - which was, with an eye toward avoiding accusations of ex post facto action, defined carefully as a war in violation of international treaties, agreements, or assurances, or a common plan or conspiracy for the accomplishment of aggressive war. Secondly, the murder and/or ill-treatment of prisoners of war, persons on the seas, and civilians, civilian deportation to slave labor, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military were all called "war crimes". Again with an eye toward the issue of ex post facto, such crimes were explicitly described as violations of "the laws and customs and war". Thirdly, "crimes against humanity" - what some suggest is the most significant crime, since it contained the Holocaust within it - were enumerated as the 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. Crimes against humanity were, the Charter stated, crimes whether or not they were in violation of the domestic law of the country where they were perpetrated; furthermore, the official positions of defendants could not free them from responsibility - even if they were heads of state. Those who insisted that they were only following orders would not be freed from responsibility, either, although this fact "may be considered in mitigation of punishment if the Tribunal determines that justice so requires." Lastly, article six declared that "conspiracy" to commit any of the crimes it named could also be persecuted.
As for the structure of the tribunal, article two of the Charter gave each of the Allied governments (France, Britain, the United States, and the Soviet Union) the power to appoint one member and one alternate to serve as judges, who were to select from among themselves a president. The existence of multiple judges was a nod to the Continental style of law, which had been blended with the more adversarial Anglo-Saxon law to produce a critical and revolutionary hybrid. The traditions of opposing attorneys, direct examination, and cross-examination from the Anglo-Saxon system were kept. The verdict, however, was left in the hands of the judges rather than a jury. An affirmative vote from three out of the four judges was necessary to convict, with all other questions being decided by a majority vote with the President acting as tiebreaker. Alternates were permitted to vote only during so-called "test votes."
Powers given to the court were similar to those of many other courts at the time, especially in the Continental system. It was given the power to require the presence and testimony of witnesses, to interrogate defendants, to compel production of documents and other evidence, to administer oaths, and to appoint officers to take evidence on commission. In marked contrast to many modern courts (and especially international ones like the ICTR), it was also given the power to impose the death penalty if it deemed such punishment just. Though it ultimately relied more on evidence than on testimony, nearly a million soldiers occupying Germany were available to assist the court in finding and delivering witnesses.
Those engaged in drawing up the Charter found accusations that they had committed war crimes just like those of the Nazis and that they were merely engaging in victor's justice hard to deal with, and many of the defendants in the dock eventually emphasized this as one of the chief reasons they found their court's judgments illegitimate (they pointed to instances such as the firebombing of Dresden to prove their point). Critics of the trial pointed, for example, to article sixteen, which stipulated that a team of the prosecutors appointed by each state was to determine not only the rules of procedure but the final designation of the war criminals to be tried and the preparation of the indictment. No matter the exigencies of the situation or the necessary approval of the tribunal's judges, Germans and many in the legal field resented the fact that those seeking to prove the defendants' criminality dictated the rules of the game. Some pointed out that the Nazis had imposed twenty-six thousand death sentences on those who had run afoul of the Nazi legal system during the war years , and Jackson suggested in his opening speech that Germans had distinguished themselves from Americans by creating a common plan - in Bernays' terms, a "conspiracy" - to subjugate members of a different "race", but these attempts to justify the trial made little dent in the faith of those who believed the trial unjust.
Mindful of their opponents' accusations and their own inability to sufficiently refute them, the Allies made significant efforts to craft a fair legal trial and system. The defendants had the right to give any explanation relevant to the charges and to have the assistance of counsel, the right to present evidence and to cross-examine any witnesses called by the prosecution, and the right to be furnished with an indictment in a language they understood. They also had the right to the translation of the proceedings if necessary (fortunately, IBM had developed a simultaneous translation machine by the time of the proceedings which sped things up considerably). They were provided with any German lawyer they wanted, defense attorneys were paid, granted special privileges by the court, and provided with all that they needed (including virtually unlimited time with their clients and office space) at no cost, and had access to all the documents in the hands of the prosecution.
Unfortunately, the defendants still operated at a distinct disadvantage in many respects. The adversarial nature of the tribunal that the Allies designed was completely foreign to them, for the Continental style of law did not involve extensive examination and cross examination by lawyers. They had no opportunity to prepare themselves beforehand, and had little clue how to navigate within the alien legal system once it had commenced. Though they had lawyers of their choosing, and though those lawyers had access to many resources, they still did not operate on the level of privilege, access, and power that the prosecution did. In fact, confusion reigned regarding the roles of and relationship between the bench and the prosecution, which had participated extensively in the court's formation (American chief prosecutor Robert Jackson, for example, had pushed for the location of the tribunal in Nuremberg in the first place, and had his hands in virtually everything important immediately surrounding it). Lastly, once the system had delivered its verdicts, the defendants had no meaningful right of appeal.
Swiftly on the heels of the Charter came the indictment, which was handed down against twenty-three defendants on October 6, 1945. The decision to indict only twenty-three men, rather than thousands whom many felt were equally deserving, stemmed from concerns both practical and symbolic. The Allies wanted to put the "big fish" of the Holocaust in the dock at the same time because they were men without whom (in theory, at least) the Nazi atrocities could not have taken place and from whom maximum symbolic impact could be exacted. Furthermore, it was simply not possible to try the majority of the German population, and the further down the chain of command, the fuzzier responsibility got. Those deserving a trial would eventually get their due; the first International Military Tribunal, however, was reserved for those who deserved it most and whose prosecution was deemed most pressing. However, in part because men like Hitler and Goebbels were dead, no consensus existed as to who should be indicted, and only after the Allies "had horse-traded, compromised, placated national pride and pet hates" did the men named in the indictment end up on trial.
Their numbers ranged from men like Hermann Goering, second only to Hitler early in the war and one of the only defendants whose prosecution the Allies agreed was necessary from the beginning, to men like Hjalmar Schacht, who had accepted deposits of stolen gold teeth as head of the Reichsbank, to Julius Streicher, who had founded and edited an anti-semitic newspaper. Karl Donitz, the grand admiral of the German navy, was included, as well as his military comrades Alfred Jodl (chief of the operations staff of the Armed Forces High Command), Wilhelm Keitel (general field marshal and chief of staff of the Armed Forces High Command), and Erich Raeder (Donitz's predecessor). Bureaucrats Hans Frank (civil administrator over German-occupied Poland), Wilhelm Frick (minister of the interior), Walther Funk (minister of economics), and Rudolf Hess (Deputy Leader of the Nazi party and second only to Goering) were well represented. They were joined by Constantin von Neurath (foreign minister and "Reich protector" of Bohemia and Moravia), Joachim von Ribbentrop (foreign minister), Alfred Rosenberg (wartime minister for occupied eastern territories), and Fritz Sauckel ("mobilized" labor). Baldur von Schirach (Hitler Youth leader), Arthur Seyss-Inquart (Reich commissioner in occupied Netherlands), Franz von Papen (German minister in Vienna), and Albert Speer (minister for armaments and war production) rounded out this part of the dock. Hans Fritzsche, a Nazi propagandist, might be classified with Streicher, and political leader Robert Ley (German Labor Front leader) stood alone. Martin Bormann, Hitler's secretary and the head of the Party chancellery, was tried in absentia.