“Nuremberg is a case in point. Ultimately, it seems to me, there comes a time when we have to distance ourselves from the events of the past in an effort to understand. With Nuremberg, as with other events of the Second World War, one would think it is high time to take up some frequently advanced challenges to Norman Birkett’s view – challenges, that were advanced during the course of the trial itself in 1945-46 and have been ever since.” (Ferencz, Benjamin, pg 26)
How did the Nuremberg Trial come about? From the Anglo-American standpoint, Nuremberg arose from a circumstance that revisionist historians have actively addressed over the past twenty years or more – the failure of Western governments to respond in any significant way to the insistent pleas of the victims of Nazi atrocities in occupied Europe. Since the beginning of the war, and particularly from mid-1942, appeals rained down on Western capitals from governments in exile, Jewish representatives, and humanitarian organizations to do something about Nazi atrocities – to retaliate, mount rescue operations, welcome refugees, or whatever else was possible. Little or nothing was done. Reluctant to disturb war making priorities, London and Washington contented themselves with issuing statements. These statements, however, pointed unambiguously to post-war retribution. “The American people not only sympathize with all victims of Nazi crimes,” (Heydecker, Joe J. pg 4) President Franklin Roosevelt wrote to Rabbi Stephen Wise, president of the American Jewish Congress in July 1942, “but will hold the perpetrators of these crimes to strict accountability in a day of reckoning which will surely come.” (Heydecker, Joe J. pg 5)
Fearing that they would trigger German retaliation by punishing war criminals before hostilities ended, the Western Allies refused to define their intentions more precisely. The Soviets, already bearing the most ferocious Nazi atrocities, were less reluctant, and indeed moved on their own to try some German criminals in the latter part of the war. In the autumn of 1943, however, all three Allied leaders were ready to take another step on war crimes. In November the Big Three declared that those responsible for Nazi atrocities “will be sent back to the countries in which their abominable deeds were done, in order that they may be judged and punished according to the laws of these liberated countries and of the free Governments which will be created therein.” Further: “Major criminals whose offenses have no particular geographic localization” were to be “punished by the joint declaration of the Governments of the Allies.” (Heydecker, Joe J. pg 8)
As the war drew to a close, the British and the Americans debated how to achieve these ends. London seemed reluctant to punish major Nazi war criminals through judicial proceedings. Uneasy about how a trial of the highest ranking Nazis would unfold (until the spring of 1945 it was expected that Goebbels, Himmler, and Hitler himself might well be in the dock), and uncertain about legal questions, the British favored executive action – proceeding summarily to identify high-ranking Nazi criminals, after which they would be shot. On the American side, the question of what to do with the Nazi leaders was caught up in the wider dispute over how to deal with the defeated Axis countries, a debate crystallized by the issuing of a very harsh plan for a vanquished Germany by the American Secretary of the Treasury, Henry Morgenthau, Jr. Convinced that the Morgenthau Plan would be a disaster for the peace, prosperity, and stability of Europe, Henry L. Stimson, the more urbane Secretary of War, urged a radically different policy, seeking to promote economic recovery and development by utilizing German industrial capacity. Part of his response to Morgenthau involved a proposal for a trial before an international tribunal rather than summary proceedings and swift execution. Punishment of the Nazi leaders, Stimson told FDR in September 1944, should be “in a dignified manner consistent with the advance of civilization.” (Brown, Pete. Pg 259) This would be “the most effective way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate this system and prevent its recurrence.” (Brown, Pete. Pg 259)
As he often did on issues of high sensitivity, Roosevelt hesitated to commit himself. Consequently, the Allies failed to clarify their intentions at the Yalta Conference in early 1945. Then, on April 12, Roosevelt died. His successor, Harry Truman, promptly accepted the wisdom of a trial, based on a model proposed by the War Department, and he convinced the British, the Russians, and the French, who were brought into the discussions. Following agreement in principle at the United Nations founding conference in San Francisco, experts from the four occupying powers met in London in June to work out the details. On August 8, 1945, the representatives reached agreement on a charter establishing an International Military Tribunal (IMT) “for the just and prompt trial and punishment of the major war criminals of the European Axis.” Article 6 of the charter declared that the following were “crimes coming within the jurisdiction of the Tribunal”: “Crimes against Peace,” “War Crimes,” and “Crimes against Humanity.” The course was set for the Nuremberg Trial. (Brown, Pete. Pg 260)
Once again, there is no indication that this notion was ever countenanced at the time. Feeling in every Allied country ran strongly against the defeated Germans, and public opinion would have likely revolted against the idea of German participation – even that of anti-Nazi judges, assuming that these could have been found. Very much on the minds of Western representatives was their experience following the First World War when, at the insistence of vulnerable German politicians in the fledgling Weimar Republic, the adjudication of war criminals was assigned to the German supreme court, sitting in Leipzig. The Leipzig trials produced the most meager results imaginable: of nine hundred suspected criminals on the original Allied list, only twelve were eventually tried; of that number six were convicted and sentenced to terms of imprisonment ranging from four years to a mere two months. The fiercely vindictive reaction of anti-Nazi Germans to the acquittal of Hans Fritzsche, Franz von Papen, and Hjalmar Schacht, insisting that they face trial once again, is a case in point.
None of these alternatives, one must repeat, even occurred to Allied decision makers at the time. In Washington, London, Paris, and Moscow, the trial of German war criminals was understood as part of the wider and more difficult problem of how to deal with the defeated Nazi state. Germany’s unconditional surrender, it was understood, entitled the four victorious Allies to act as “supreme authority with respect to Germany” – with rights to legislate, adjudicate, and administer. The responsibility was theirs, and having been persuaded, with some difficulty, that summary execution was not a desirable solution; the way was cleared for the Nuremberg Trial. (Meltzer Bernard D. 563-564)
Perhaps more important, few contemporary observers considered that, as a result of ex post facto accusations, the Nuremberg Trials had been rendered unfair. This charge, after all, rested on the idea that the accused, when they committed what were later called crimes, had no idea that they were acting illegally. So heinous were the deeds that they were alleged to have done, and so solemn were the warnings issued during the war against those who committed these acts, that, in general terms at least, this criticism seemed widely to have been without merit.
This is not to say that the charges against the accused were equally grounded in custom, precedent, and legal enactment. Nor is it the case that the accused were equally guilty, as charged. After a year of courtroom sessions the judgment of the IMT made important distinctions, failed to accept some of the prosecutors’ contentions while accepting others and passed judgment variously on the accused. While twelve of those indicted were sentenced to death, three were acquitted. Some sense of the complications and shortcomings of the charges may be seen by looking at each of the counts with which defendants were charged.
The most conventional of these, Count Three, was War Crimes, based largely on The Hague and Geneva Conventions. About the legality of these charges, which applied to atrocities committed against both military personnel and civilians, there was little dispute.
Count Four, Crimes against Humanity, was a novel charge, later seen by some to be the major innovation of Nuremberg and a significant advance in the codification of international law.
Much weaker, from a legal point of view, was Count Two of the indictment, Crimes against Peace, in which defendants were charged with participation in the planning, preparation, initiation, and waging of specific wars in violations of international treaties.
In both law and evidence, the weakest count against the accused was the first, that which charged defendants with conspiring to commit the other crimes. Even more than Crimes against the Peace, this charge was an American product from first to last, having emerged from planners in the United States War Department with a view to addressing some of the problems facing the Americans with subsequent trials of Nazi criminals. The idea was that the accused Nazi leaders would stand in the dock in their own right but also in some sense as “representatives” of the major Reich organizations from which they came. Evidence used against those indicted would establish that these were criminal organizations, agents of a criminal conspiracy. And once this had been established, so the plan went, it would be easy, in subsequent trials, to declare others who had been part of those organizations similarly guilty – vastly facilitating adjudication and punishment.
In practice, Count One unnecessarily complicated the trial and failed to serve the purpose for which it was intended. While familiar to American and British lawyers, the concept of conspiracy was not understood in Continental legal practice. Not only did the German defense lawyers protest against the whole idea, the French and Russians also seemed to have trouble with the concept. Inevitably, evidence presented on Count One spilled across the rest of the prosecution’s case – particularly Count Two, Crimes against Peace. The emphasis on conspiracy badly distorted the historical interpretation of Nazism presented to the IMT, putting undue emphasis on the coherence and foresight associated with Nazi criminality. The conspiracy charge, by general consensus, did not serve the cause of history well. On the other hand, Count One does not seem to have told heavily against the defense. The indictment charged all the defendants with this offense; in the end the Tribunal convicted only eight and acquitted twelve. (Glueck, Sheldonm, pg 65-79)
Then, as now, there were two implied alternatives: either the Germans ought not to have been indicted for these crimes, or Allied leaders ought also to have been brought to justice. Viewed historically, however, these criticisms seem utterly unreal. The Allied course was set in the direction of a trial at the end of the war. Given the depth of feeling on the subject of Axis war crimes in the broadest sense, there was simply no prospect, in 1945, that the authorities concerned would have accepted these alternatives. No responsible authority proposed that Nuremberg be constituted as a general inquiry into the conduct of the Second World War. Any such suggestion would have been considered outlandish at the time, and would not have secured the participation of any of the four victorious powers. That is why the IMT was established, in the words of the Nuremberg Charter, “for the just and prompt trial and punishment of the major war criminals of the European Axis.” (Ferencz, Benjamin, pg 28)
In legal terms, there were undoubted flaws – pointed out at the time and subsequently. German critics of Nuremberg complained of the severe imbalance between the prosecution and the defense and challenged court procedures as well as the wider conception of the trial. At Nuremberg, they claimed, probably with some justice, the defense was at a significant disadvantage. More generally, Nuremberg was not everyone’s sense of justice well administered. Those on the bench, the historian Bradley Smith observes, “Were not jurists of long experience or towering stature.” It may be right, as Norman Birkett noted during the proceedings, that “the standard of the court does not compare favorably with the highest Courts in England.” (Tusa, Ann, pg 64) The obvious response was that English courts worked with procedure honed by centuries of practice; at Nuremberg, everything was improvised.
A more serious question is what affects these and other flaws had upon the outcome of the trial. So far as the law is concerned, learned disputation was part of the trial itself, flourished in its wake, and is likely to continue indefinitely on the most fundamental questions. Examined historically, however, much of this debate may seem beside the point. For example, given the circumstances of 1945-46, it is highly implausible that any court judging high-ranking Nazis would have allowed a searching exploration of the injustices of the Treaty of Versailles in 1919 – to take what was the demand most insistently pressed upon the IMT by defense lawyers. Defense attorneys repeatedly asked to present evidence on this great evil that they contended was at the root of Nazism; they should not have been surprised that they were forbidden to make this case. (Brown, Pete. Pg 257)
Examining Nuremberg historically – considering the influence upon the proceedings of circumstances and opinions peculiar to the time – may help us understand the verdicts rendered by the court. It seems certain, for example, that Albert Speer’s energetic anticommunism and polished efforts to curry favor with the West told in his favor in the end – he received a sentence of twenty years, despite his having been deeply implicated in the use of slave labor and responsible for the death of hundreds of thousands. The contrast of Speer’s fate with that of the rough-hewn Minister of Labor Fritz Sauckel, who was sentenced to hang, struck many at the time as anomalous. Concerns to punish “German militarism,” seemingly embodied in Wehrmacht chiefs Wilhelm Keitel and Alfred Jodl may well have moved the judges to sentence both of them to death – a decision that rankled, one should add, with many allied soldiers at the time. Foulmouthed and loathsome as he was, the anti-Semitic Jew-baiter Julius Streicher, in the views of many, ought not to have been sentenced to hang. The judges came hastily to their decision about him, and it seems likely that they did so at least as much out of revulsion against his personality and the wartime crimes against the Jews (in which he played no active part) as out of reaction to his own wrongdoing. In these examples, as in others that various critics raise, an understanding of Nuremberg can only gain from a balanced historical perspective. (Tusa, Ann, 76-85)
Nuremberg should be understood within the framework of Allied worries about the continuing threat of Nazism to Germany and to Europe – a threat embodied in the courtroom by the swaggering, sometimes brilliant presence of the former Reichsmarschall Hermann Goring, for many the leading personality of the Nuremberg Trial. Hundreds of thousands of Nazi-sympathizing officers, judges, police, bureaucrats, and industrialists remained part of the German scene in 1945, and in the West, at least, it was assumed that they were an inescapable part of the future Germany. Nuremberg prosecutors and judges were highly conscious of their responsibilities for the future of Germany and Europe to pronounce a stern verdict against Nazism.
Finally, Nuremberg may be seen in what one would call a cultural context – a landmark, as Sir Norman Birkett contended in his evaluation. No doubt, the trial of the major war criminals has entered into our culture, and this too prompts some historical reflection. Inevitably, with the passage of time, our views of Nazism, the Holocaust, and the Second World War are becoming more historical – freed progressively from the grip of partisanship, from a perspective overwhelmed by grief or anger. Not only inevitable, one believes, this process is worth supporting in itself. Coming to terms with these great scars in our century is one of the significant challenges of our time, and if we really believe we are capable of preventing such catastrophes in the future, we had better ensure that we have as objective an evaluation as possible of what went so wrong in the past.
In considering the most highly charged of historical events, Nuremberg at its best moments set an example for a kind of international judgment – impartial, but not necessarily dispassionate; fair-minded, but not without moral compass; searching in its quest for truth, while recognizing the formal limitations that attend to the endeavor in an adversary proceeding. Nuremberg was not perfect, by any means, and it is possible to believe that its warts and blemishes – or even its structural faults – may be the most important aspects of it worthy of discussion today. But most would agree that there are other dimensions, too, and that some of these speak to timeless concerns that justice and fairness prevail. One thinks, for example, of IMT’s president Sir Geoffrey Lawrence’s calm insistence on fair play, at heated moments in the trial; of the efforts, practically for the first time outside Jewish circles, to grasp the enormity of the murder of European Jews; of the painful recognition, when hearing the case of Admiral Karl Donitz, that Allied methods of submarine warfare had to be considered along with those of the Reich; of the underscoring, with careful legal language in the judgment of the court, of the responsibility of individuals who are issued illegal orders; and of the sincere appeals, from many quarters, including the defense, to establish some rule of law in a dangerous world of nation-states. (Biddiss, Michael, page 42).
Heydecker, Joe J. Book Title: The Nuremberg Trial: A History of Nazi Germany as Revealed through the Testimony at Nuremberg. Publisher: World Publishing. Place of Publication: Cleveland, OH. Publication Year: 1992.
Meltzer Bernard D. The Nuremberg Trial: a prosecutor’s perspective Journal of Genocide Research (2002), 561–568
Ferencz, Benjamin, the Holocaust and the Nuremberg Trails, UN Chronicle Volume: 42. Issue: 4. (2005) 26-30
Tusa, Ann, The Nuremberg Trial Publisher: Mcgraw-Hill (September 1985)
Brown, Pete. Nuremberg Remembered. Contemporary Review. Volume: 267. Issue: 1558. November 1995. Page Number: 257+.
Biddiss, Michael, Victors’ Justice: The Nuremberg Tribunal. Magazine Title: History Today. Volume: 45. Issue: 5. May 1995. Page number 40+
Glueck, Sheldon, the Nuremberg Trial and Aggressive War. Publisher: Alfred A. Knopf. New York. 1996.