Nuremberg - Creating a Court

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.

The indictment accused these twenty-three men of having committed some or all of the four crimes that it enumerated. The first count indicted all of them for the crime of participating in a common plan or conspiracy. The second indicted sixteen of them for having committed crimes against peace. The third accused eighteen of them of having committed war crimes, and the fourth pointed at eighteen of them again, this time for committing crimes against humanity. The SS, SD, Gestapo, the SA, and the general staff and High Command of the German Armed Forces were also put on trial as criminal organizations.

The ability of those working at the London Conference to rapidly craft an effective compromise should not be underestimated. Just war theorist Michael Walzer writes, "the Nuremberg prosecutors had no legal precedents to rely upon, and were confronted by a crime so monumental that the idea of anything approaching justice done must have seemed a mockery." Nevertheless, in the span of two months, judges and prosecutors working within four different legal systems were able not only to blend those systems together not only to create new laws but to create a new court altogether. When Robert Jackson spoke of his time in London, he wryly observed that he had:

"worked out a plan for preparation, briefing, and trial of the cases; allocated the work among the several agencies; instructed those engaged in collecting or processing evidence, visited the European Theater to expedite examination of captured documents, and the interrogation of witnesses and prisoners; coordinated our preparation of the main case with preparation by Judge Advocates of many cases not included in my responsibilities, and arranged cooperation and mutual assistance with the United Nations War Crimes Commission and with Counsel appointed to represent the United Kingdom in the joint prosecution."

Jackson was only one of many people involved with the London Conference. The drive and commitment of all of them made a significant difference in the trial's timeliness and smooth functioning, to say the least.

Upon the insistence of Robert Jackson, the Allies decided to hold the tribunal in Germany. To the dismay of the Soviets, the only undamaged facilities in Germany extensive enough to accommodate a trial were located in the American zone in the city of Nuremberg. Although Nuremberg had suffered from some of the heaviest bombings, and although three quarters of it was in ruins, the Palace of Justice - a complex that spread over several acres - had hardly been touched by the war. Furthermore, "hardly a man would have argued that there was a more appropriate place to try the German leadership for the destruction, waste, cruelty, and suffering of the war." Nuremberg was a pre-war cultural site, home to the first pocket watch and first clarinet and birthplace of Albrecht Durer. During the war, it had been the spiritual home of the Nazis and the site of several rallies, and it was also the place where the infamous Nuremberg Laws - which deprived German Jews of rights, property, and eventually their status as human beings - had been proclaimed. After the war, as in most German cities, tens of thousands of dead entombed beneath the rubble served a symbolic reminder of the consequences of violence, and the less than half of the population that remained was living in dugouts and cellars.

Because of that symbolically important damage, Nuremberg was not a wholly ideal site. The Palace of Justice, though relatively intact, had still suffered some damage and had to go extensive renovations before it was ready for the tribunal. The city lacked electricity, public water, public transportation, telephone or telegraph service, and even government, and when the occupation authorities arrived it was run by "looters, thieves, and rapists." Postwar tension remained, and as the Allies began arriving into town, they had to attach special devices to the fronts of their cars in order to avoid decapitation by wires that resentful Germans strung across the roads at night. However, as Jackson insisted, the place to drive home German criminality was Germany, and this was the best site Germany had to offer.

The day to day affairs involving defendants and tribunal staff were carefully regulated by a well delineated and - especially given its initially patchwork nature - efficiently functioning bureaucracy (its efficiency was likely compounded by the fact that most at Nuremberg wanted to be there and felt that they had a personal stake and/or responsibility in its successful functioning). Readily available American and Allied servicemen served the tribunal's security needs (prison guards, courtroom bailiffs, witness protection, etc.), while military officers and civilians administered the needs for translation and of the public and the press. IBM had developed a simultaneous translation system for which they hired and maintained a staff. They also undertook a system of press notification that alerted journalists to important events by a series of buzzing sounds. Other small details perhaps also made a difference at the trial - the posting of the day's events on a bulletin board outside, for example, might have made a difference to some Nurembergers (on the outside chance that they even wanted to; but Germans were unfortunately not permitted to come into the building because of security concerns).

The main trial of the International Military Tribunal at Nuremberg took place over the course of two hundred and sixteen working days, between November 14, 1945 and August 31, 1946. It began operation six months after the war's end, and had concluded within sixteen months of VE Day. It drew upon the resources of two thousand staff members, more than a hundred prosecutors, and an army of a million soldiers to provide the necessary support and security. Twenty-two German officials were tried, nineteen found guilty, and twelve were sentenced to death by hanging. Seven were sent to prison, and three men were acquitted. In addition, three organizations were found to be criminal.

Much of the world had a stake in the proceedings at Nuremberg, and dozens of journalists descended upon the city when the trial began. The German newspapers, which at the time were short of newsprint and tended to be not much longer than six pages, generally devoted at least a page to the proceedings. Although the international public's initial interest in the trial waned as the dull, evidence-based proceedings dragged on, a media infrastructure had been put into place in embattled Germany and became entrenched as the months rolled onward, for although the means of transporting the papers had been destroyed, the Allies expended considerable effort to publicize the proceedings. Toward its end, interest again picked up, and stories about it appeared in places like The New Yorker, Life magazine, and CBS news.

Nine days before their executions (the date of which was kept secret), the American War Department sent military government officials in the American zone a series of guidelines to be used in explaining to the German people what the verdict meant, stressing that the trial was legal and that it had not been an ex post facto proceeding, that more trials would follow, and that the evidence the trials had produced was a record of the Nazi regime. At the executions, only a few journalists were invited to witness them. The small number stemmed from security concerns, and that there were any journalists at all stemmed from a need to produce independent witnesses who could verify that the defendants were actually dead. Afterward, officials took great pains to ensure that the remains were cremated and disposed of secretly, out of a concern for avoiding cult material.

The German response to the trial was mixed. In the first two years after the war, life in Germany was tenuous at best, and millions faced imminent starvation. Ten million returning servicemen sought to return home to places that had been largely reduced to rubble during the bombing. There was no fuel, little housing, and almost no food, and mass transportation and industry were in ruins. Three million servicemen had been killed, one million prisoners had been taken in the Soviet Union, and half a million civilians left dead by the bombing. Many in Germany had more pressing concerns than the trial, and although some felt it was worthwhile, many among those were merely embarrassed by their leaders' role in the German defeat. Others ignored it or persisted in glorifying the Third Reich.

Despite the threat of starvation and the struggle involved in putting a broken nation and broken lives back together, and despite the mixed opinions on it, most Germans were aware that Nuremberg was taking place. Furthermore, although many disagreed with the trial's very existence, most of them felt that it was being conducted fairly (the defense attorneys involved with the cases, even though most had strong pro-Nazi tendencies, agreed). Yet these high levels of awareness and feelings that the trial was being conducted fairly did not necessarily translate to high levels of approval, for although the Germans bitterly held their leaders accountable after the war, some of them held them accountable not for the war crimes they had committed but simply for the crime of losing. The page that the newspapers gave daily to Nuremberg was the "one page many Germans cut up for toilet paper before reading," Alfons Heck explains.

Nevertheless, not all Germans resisted the information that the trial revealed. At its conclusion, many (84%) indicated that they had learned something new about wartime Germany. 64% percent of those specified that they had learned about concentration camps, twenty-three percent about the extermination of the Jews and other groups, and seven percent of the character of Nazi leaders. 13% insisted they had known nothing about the evils of National Socialism prior to the trial. In addition, the trial left a lasting mark on German perceptions of what a safer future required. 30% spoke of the dangers of dictatorship and one-sided politics and of the need for caution in the election of future statesmen, 25% referred to the lesson of the need for maintaining peace, and only 6% of Germans responded that there was no justice and that their human rights had been violated. Jeffrey Herf observes, "the message of the Nuremberg trials was that human beings and their political decisions had made Auschwitz possible - not being, fate, destiny, instrumental reason, the Enlightenment, modernity, or the West."

It became much more difficult, especially after the evidentiary record had been established, to question the guilt of those who had stood in the dock. Although most defendants at Nuremberg insisted upon their innocence and or the wrongness of their punishments until the end, Albert Speer - Hitler's architect and Reich minister for armaments and war production from 1942 to 1945 - declared in a 1977 letter to the South African Board of Jewish Deputies,

"I still recognize today that the grounds on which I was convicted by the International Military Tribunal were correct. More than this: I still consider it today essential to take upon myself the responsibility and thus the blame in general, for all crimes which were committed after I became part of the Hitler government on 7 February 1942 ... My main guilt, however, I still see today in my tacit acceptance of the persecution and the murder of millions of Jews."

U.C. Berkeley War Crimes Studies Center
http://socrates.berkeley.edu/~warcrime/Germany/German_Nuremburg.htm