Nuremberg trials

• 1. Introduction

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  The Nuremberg trials opened on the 20th of November 1945 with a question that had never been seriously tested in law: could individual human beings be held criminally responsible for starting a war? Twenty-two of the most important surviving leaders of Nazi Germany sat in the dock at the Palace of Justice in Nuremberg, a city chosen partly because it had hosted Nazi rallies and partly because its courthouse was relatively intact despite bomb damage. France, the Soviet Union, the United Kingdom, and the United States had agreed to try them jointly. Outside that courtroom, many Germans were focused on finding food and shelter. Inside it, prosecutors were attempting something the world had never seen.

  What made the Nuremberg trials extraordinary was not just who was on trial, but what the prosecutors were trying to establish. They wanted to prove that planning and waging aggressive war was, in their own words, the supreme international crime. They wanted to assemble irrefutable evidence of Nazi crimes for history. They wanted to delegitimize the traditional German elite. And they wanted to hold individuals, not abstract states, accountable under international law. Whether any of that succeeded, and what the cost was, would be debated for decades. The man who drafted the verdict was British deputy judge Norman Birkett, working in seclusion after the court recessed on the 2nd of September 1946.

• 2. The Road to Nuremberg

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  Between 1939 and 1945, Nazi Germany invaded Poland, Denmark, Norway, the Netherlands, Belgium, Luxembourg, France, Yugoslavia, Greece, and the Soviet Union. War losses in the Soviet Union alone reached 27 million dead, mostly civilians, amounting to one seventh of that country's prewar population. The scale of destruction made some form of reckoning inevitable. What form it would take was far from clear.

  The Soviet Union wanted a show trial with a predetermined outcome, modeled on the Moscow trials of the 1930s, partly to build a case for war reparations. The United Kingdom preferred summary executions of Nazi leaders, citing the failure of war crimes prosecutions after the First World War. The United States insisted on a trial that would look legitimate to the world and demonstrate the superiority of the Western system. These incompatible positions were not resolved until mid-1945.

  Earlier calls for accountability had gone unheeded. In early 1942, representatives of nine governments-in-exile from German-occupied Europe issued a declaration demanding an international court to try German crimes. Both the United States and United Kingdom refused to endorse it. Soviet jurist Aron Trainin developed the concept of crimes against peace, the idea that waging aggressive war was itself a crime, and his writings were reprinted in the West and widely adopted. On the 1st of November 1943, the Moscow Declaration warned Nazi leadership that the Allies would pursue them, and that high-ranking Nazis who had committed crimes in multiple countries would be dealt with jointly. The form that retribution would actually take remained unresolved as late as the Yalta Conference in February 1945. On the 2nd of May at the San Francisco Conference, U.S. president Harry S. Truman announced the formation of an international military tribunal. Germany surrendered unconditionally six days later.

• 3. Building the Legal Framework

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  At the London Conference, held from the 26th of June to the 2nd of August 1945, the four Allied powers negotiated the Nuremberg Charter, the legal instrument that would govern the trial. Until the very end of the negotiations, it was not clear any trial would be held at all. American negotiator and Supreme Court justice Robert H. Jackson threatened to withdraw U.S. participation if the crime of aggression was not prosecuted, since aggression had been the justification for American entry into the war.

  The category of crimes against humanity required its own legal invention. War crimes already existed in international law, but they did not cover a government's treatment of its own citizens. A Soviet proposal for crimes against civilians was renamed crimes against humanity at Jackson's suggestion, drawing on earlier uses of the term after the First World War and in failed efforts to prosecute the perpetrators of the Armenian genocide. The final wording covered murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population. Both the United States and the Soviet Union, for different reasons, wanted to avoid giving an international court jurisdiction over a government's treatment of its own citizens; the final charter limited crimes against humanity to acts committed as part of a war of aggression.

  The conspiracy charge, a concept absent from the charter itself, became the glue holding the prosecution together. It was the brainchild of U.S. War Department lawyer Murray C. Bernays, possibly inspired by his earlier work prosecuting securities fraud. The charge allowed prosecutors to reach propagandists and industrialists who had never killed anyone. France was less enthusiastic about it than the other delegations. The tribunal's permanent seat was designated as Berlin, but the trial itself was held at the Palace of Justice in Nuremberg, located in the American occupation zone. The charter was signed in London on the 8th of August 1945.

• 4. The Defendants

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  Adolf Hitler, Heinrich Himmler, and Joseph Goebbels had each committed suicide and could not be tried. The 24 men who were indicted represented the political, military, and economic leadership of the Nazi state. Martin Bormann was tried in absentia because the Allies did not know he was dead. Robert Ley died by suicide before the trial began. Gustav Krupp of the Krupp AG conglomerate was too ill to stand trial.

  Hermann Göring, the most infamous surviving Nazi, was the main target of the proceedings. He took the opposite approach from most of his fellow defendants, expecting execution but hoping to be vindicated in the eyes of the German people. Other defendants included former foreign ministers Joachim von Ribbentrop and Konstantin von Neurath, interior minister Wilhelm Frick, and Franz von Papen, who had brought Hitler to power. The forced labor program was run by Fritz Sauckel; economic planners Albert Speer and Walther Funk also stood trial. Rudolf Hess, Hitler's deputy, had flown to Britain in 1941 and had been in British custody since.

  During the trial, Hitler was mentioned approximately 12,000 times, more than the top five defendants combined. Absent and dead figures including Himmler, Reinhard Heydrich, and Adolf Eichmann were also blamed by the defense. Observers found the defendants mediocre and contemptible. A telling measure of the defense strategy: most defendants argued their own insignificance within the Nazi system, and none tried to assert that the crimes had not occurred.

• 5. The Prosecution in the Courtroom

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  Jackson's opening speech on the 21st of November 1945 described the fact that the defeated Nazis received a trial at all as one of the most significant tributes that Power had ever paid to Reason. The speech was well received by the prosecution, the tribunal, the audience, historians, and even the defendants. The American case focused heavily on the conspiracy behind Nazi aggression before the war broke out.

  On the 29th of November, the American prosecution was unprepared to continue presenting on the invasion of Czechoslovakia and instead screened a film compiled from footage of the liberation of Nazi concentration camps. The film shocked both defendants and judges, who adjourned the trial. The Americans also summoned Einsatzgruppen commander Otto Ohlendorf, who testified about the murder of 80,000 people under his command, and SS general Erich von dem Bach-Zelewski, who admitted that German anti-partisan warfare was little more than a cover for the mass murder of Jews.

  The British opening speech on the 4th of December was largely written by Cambridge professor Hersch Lauterpacht. British prosecutor Hartley Shawcross traced the crime of aggression back through the conventions of Hague and Geneva, the League of Nations Covenant, the Locarno Treaty, and the Kellogg-Briand Pact, arguing that its prohibition was not new. France presented its case from the 17th of January to the 7th of February 1946, taking the perspective of the victims rather than relying primarily on German documents, and calling eleven witnesses including Auschwitz survivor Marie-Claude Vaillant-Couturier. The Soviet prosecution produced Friedrich Paulus, the German field marshal captured after the Battle of Stalingrad, who testified about preparations for the invasion of the Soviet Union and named Keitel, Jodl, and Göring as most responsible. The Soviet prosecution also attempted to attribute the Katyn massacre to Germany, when it had in fact been carried out by the NKVD; the judges rejected this charge in the verdict.

  Over the entire trial, the prosecution called 37 witnesses against the defense's 83, not counting 19 defendants who testified on their own behalf. Prosecutors examined 110,000 captured German documents and entered 4,600 into evidence, along with 30 kilometers of film and 25,000 photographs.

• 6. The Verdict and Sentences

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  The court recessed on the 2nd of September 1946 and the judges withdrew into seclusion. The judges agreed with the prosecution that aggressive war was the gravest charge, calling it the supreme international crime because it contains within itself the accumulated evil of the whole. Contrary to Jackson's argument that the conspiracy had begun with the founding of the Nazi Party in 1920, the verdict dated the planning of aggression to the 1937 Hossbach Memorandum.

  Of the 22 defendants tried, twelve were sentenced to death: Göring, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodl, Seyss-Inquart, and Bormann. On the 16th of October, ten were hanged; Göring had killed himself the day before. Seven defendants including Hess, Speer, and Dönitz were sent to Spandau Prison. All three acquittals, for Papen, Schacht, and Fritzsche, were based on a deadlock between the judges and surprised observers. Despite being accused of the same crimes, Sauckel was sentenced to death while Speer received a prison sentence because the judges believed he could reform.

  Four organizations were ruled criminal: the Leadership Corps of the Nazi Party, the SS, the Gestapo, and the SD. The SA, Reich Cabinet, and Wehrmacht high command were not. This last finding would later be distorted into the so-called Clean Wehrmacht myth, the false claim that the German military had been exonerated of systematic criminality. Soviet judge Nikitchenko released a dissent approved by Moscow that rejected all three acquittals, called for the death sentence for Hess, and convicted all the organizations.

• 7. Reception and Aftermath

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  In a 1946 poll, 78 percent of Germans assessed the Nuremberg trial as fair. Four years later that figure had fallen to 38 percent, with 30 percent considering it unfair. As the Cold War deepened, more Germans viewed the proceedings as victor's justice. The educational purpose of the trials was judged a failure, partly due to resistance in German society and partly because the United States Army refused to publish the trial record in German, fearing it would undermine the anti-communist effort.

  The American military began early releases of Nuremberg Military Tribunal convicts in 1949. In 1951, High Commissioner John J. McCloy overturned most of the sentences. The last three prisoners, all convicted at the Einsatzgruppen trial, were released in 1958. Rudolf Hess, however, remained in Spandau Prison until his death in 1987. By the late 1950s, the West German consensus for amnesty had begun to erode, driven by new revelations of Nazi crimes and the first trials of perpetrators in West German courts.

  The subsequent twelve Nuremberg Military Tribunals, run by the United States alone in the same courtroom, tried 177 defendants from an identified pool of 2,500 major war criminals. Of those 177, 142 were convicted and 25 sentenced to death. These trials heard 1,300 witnesses and entered more than 30,000 documents into evidence, generating 132,855 pages of transcripts. Legal historian Kevin Jon Heller argues their greatest achievement was their contribution to the form and substance of international criminal law, which the IMT had left underdeveloped. The Einsatzgruppen trial alone addressed the murder of more than one million people by the mobile killing squads behind the Eastern Front.

• 8. A New Legal Order

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  On the 11th of December 1946, the United Nations General Assembly unanimously passed a resolution affirming the principles of international law recognized by the Nuremberg Charter and the tribunal's judgment. In 1950, the International Law Commission drafted the Nuremberg principles to codify international criminal law, though the Cold War prevented their formal adoption until the 1990s. The 1948 Genocide Convention, informed by the work of Polish-Jewish jurist Raphael Lemkin, was more restricted than Lemkin's original concept.

  The trials were the first use of simultaneous interpretation, a technical innovation that had lasting effects on translation methods and international diplomacy. The International Military Tribunal for the Far East, the Tokyo Trial, borrowed all four charges from the IMT and was intended by the Truman administration to reinforce the IMT's legal standing.

  In the 1990s, the establishment of ad hoc international criminal tribunals for Yugoslavia and Rwanda was widely understood as part of the Nuremberg legacy. A permanent International Criminal Court, first proposed in 1953, was established in 2002. The Palace of Justice in Nuremberg became a museum; the courtroom where the 22 men faced judgment drew 13,138 visitors in 2005. Raphael Lemkin's word genocide, which prosecutors at Nuremberg used but which the final verdict did not adopt as a charge, became the foundation of the 1948 convention that bears his concept's name.