The Nuremberg trials: international law in the making

The Nuremberg trials: international law in the making

In October 1945, as he awaited trial as a major war

criminal, Robert Ley wrote a long and cogent repudia-

tion of the right of the recently victorious Allies to try

German leaders for war crimes. The Indictment served

on Ley, and others, on 19 October 1945 claimed that

‘[a]ll the defendants … formulated and executed a

common plan or conspiracy to commit Crimes against

Humanity as defined’. Ley continued: ‘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.’1 A few days later, Ley commit-

ted suicide in his cell rather than face the shame of a

public trial.

The unease about the legal basis of the trial was not

confined to those who were to stand before it. Legal

1 National Archives II, College Park, Maryland, Jackson main files, RG 238, Box 3, letter from Robert Ley to Dr Pflücker, 24 October 1945, p. 9.

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opinion in Britain and the United States was divided on

the right of the victors to bring German leaders before a

court for war crimes. The Nuremberg Military Tribunal

was, as Ley realised, an experiment, almost an improvi-

sation. For the first time the leaders of a major state

were to be arraigned by the international community

for conspiring to perpetrate, or causing to be perpe-

trated, a whole series of crimes against peace and

against humanity. For all its evident drawbacks, the trial

proved to be the foundation of what has now become a

permanent feature of modern international justice.

The idea of an international tribunal to try enemy

leaders for war crimes arrived very late on the scene.

During the war, the Allied powers expected to prosecute

conventional war crimes, from the machine-gunning of

the survivors of sunken ships to the torture of prison-

ers-of-war. For this there already existed legal provision

and agreed conventions. Yet these did not cover the

prosecution of military and civilian leaders for causing

war and encouraging atrocity in the first place. Axis

elites came to be regarded by the Allies as the chief

culprits, men, in Churchill’s words, ‘whose notorious

offences have no special geographical location’.2 The

2  

2 Public Record Office (=PRO), Kew, London, PREM 4/100/10, note by the Prime Minister, 1 November 1943, p. 2.

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greatest difficulty arose over the issue of the treatment

of civilians. Enemy generals and admirals might be

prosecuted as simple war criminals if the case could be

proved that they ordered crimes to be committed. But

civilian leaders were different. There was no precedent

for judicial proceedings against them (the campaign to

‘hang the Kaiser’ in 1919 came to naught, and was in

any event directed at the supreme military commander,

not a civilian head of state).

When the British government began to think about

the issue in 1942, the only realistic solution seemed to be

to avoid a trial altogether and to subject enemy leaders to

a quick despatch before a firing-squad.‘The guilt of such

individuals’,wrote the Foreign Secretary,Anthony Eden,

in 1942, ‘is so black that they fall outside and go beyond

the scope of any judicial process.’3 It was Winston

Churchill,Britain’s wartime prime minister,who arrived

at a solution. He revived the old-fashioned idea of the

‘outlaw’,and proposed that enemy leaders should simply

be executed when they were caught. The idea of

summary execution (at six hours’notice, following iden-

tification of the prisoner by a senior military officer)

became the policy of the British government from 1943

The Nuremberg trials: international law in the making 3

3 PRO, PREM 4/100/10, minute by the Foreign Secretary, ‘Treatment of War Criminals’, 22 June 1942, pp. 2–3.

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until the very end of the war.4 Five years before, in 1938,

outlawry had finally been abolished as a concept in

English law by the Administration of Justice Act.

British preference for summary execution was based

partly on the genuine, but almost certainly mistaken,

belief that public opinion would expect nothing less,and

partly on the fear that a Hitler trial would give the dicta-

tor the opportunity to use the court case as a rallying

point for German nationalism. American lawyers

rehearsed a possible Hitler trial, and found to their

discomfiture that he would have endless opportunity for

making legal mischief,and,at worst,might argue himself

out of a conviction.This would make the trial a mockery,

and earn the incredulous hostility of public opinion.5 In

America, Churchill won the support of the President,

Franklin Roosevelt, and his hardline Treasury Secretary,

Henry Morgenthau. But opinion in Washington was

divided. The veteran Secretary of War, Henry Stimson,

was opposed to summary justice. He favoured a tribunal

that reflected Western notions of justice: ‘notification to

the accused of the charge, the right to be heard, and to

4  

4 PRO, PREM 4/100/10, note by the Prime Minister, 1 November 1943, pp. 1–4.

5 NA II, RG 107, McCloy papers, Box 1, Chanler memorandum, ‘Can Hitler and the Nazi Leadership be Punished for Their Acts of Lawless Aggression?’, n.d. (but November 1944).

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call witnesses in his defence.’6 The War Department

believed that it was important for the Allied war effort to

demonstrate that democratic notions of justice would be

dispensed even for men like Hitler.

The tide was turned from an unusual quarter. In the

Soviet Union, jurists insisted that the full penalty could

only be imposed on German leaders after there had been

a trial. Their experience of the show trials of the 1930s

persuaded them that justice had to be popular, visible

justice. Soviet spokesmen universally expected German

war criminals to be found guilty and executed, as they

had expected purge victims to confess their guilt and be

shot in the Great Terror. American officials who were

keen to avoid the Churchill line latched on to Soviet

insistence on the need for a trial, and an unlikely alliance

of Communist lawyers and American liberals was

mobilised to protest summary justice and to insist on a

judicial tribunal.The argument was clinched only by the

death of Roosevelt. His successor, Harry Truman, a

former small-town judge, was adamant that a trial was

both necessary and feasible.When the major powers met

in San Francisco in May 1945 to set up the United

Nations, the issue was an urgent agenda item.The British

The Nuremberg trials: international law in the making 5

6 NA II, RG 107, Stimson papers, Box 15, Stimson to the President, 9 September 1944, p. 2.

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were outmanoeuvred by the American–Soviet alliance

and agreement was reached that Axis leaders should be

tried by a military tribunal for crimes as yet unspecified.

The idea that the trial should be conducted before a mili-

tary court reflected the prevailing convention that war

crimes were a military affair, but in practice the larger

part of the subsequent trial was organised and prose-

cuted by civilian lawyers and judges.

Truman proceeded at once to appoint an American

prosecution team under the leadership of the New Deal

lawyer Robert H. Jackson, who had cut his teeth on

fighting America’s powerful industrial corporations in

the 1930s under Roosevelt’s antitrust legislation.7

Jackson was the principal architect of the trial and the

decisive figure in holding together an unhappy alliance

of Soviet, British and French jurists, who represented

the only other United Nations states to be allowed to

participate in the tribunal. The Soviet prosecution team

favoured a trial but treated the proceedings as if the

outcome were a foregone conclusion, a show-trial.

French lawyers were unhappy with a tribunal whose

main basis was to be Anglo-Saxon common law instead

of Roman law, and whose procedures were foreign to

French legal practice. Above all, the British accepted the

6  

7 NA II, RG 107, McCloy papers, President Truman, Executive Order 9547, 2 May 1945.

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idea of a trial with great reluctance. They remained

sceptical that a proper legal foundation could be found

in existing international law, and doubted the capacity

of the Allied prosecution teams to provide solid forensic

evidence that Axis leaders had indeed committed iden-

tifiable war crimes. British leaders were much more

squeamish than the Americans about sitting side-by-

side with representatives of a Soviet Union whose own

responsibility for aggression and human rights viola-

tions was popular knowledge. The driving force behind

the tribunal was the American prosecution team under

Jackson. Without them, an international war crimes

tribunal might never have been assembled.

The preparation of the tribunal exposed the extent to

which the trial was in effect a ‘political act’rather than an

exercise in law. When the American prosecution team

was appointed in May 1945, there was no clear idea

about who the principal war criminals would be, nor a

precise idea of what charges they might face. A list of

defendants and a list of indictable charges emerged only

after months of argument, and in violation of the tradi-

tions of justice in all the major Allied powers. The choice

of defendants was the product of a great many different

strands of political argument, and was not, as had been

expected, self-evident.Some of those eventually charged

at Nuremberg, like Hitler’s former Economics Minister,

The Nuremberg trials: international law in the making 7

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Hjalmar Schacht, were given no indication for six

months that they might find themselves in the dock.

Schacht himself had been taken into Allied custody

straight from a Nazi concentration camp.8

Quite how arbitrary the choice eventually was can be

demonstrated by a remark made by Britain’s attorney-

general at a meeting in June 1945 to draw up yet

another list of defendants: ‘The test should be: Do we

want the man for making a success of our trial? If yes,

we must have him.’9 The task of assigning responsibility

was made more difficult by the death or suicide of the

key figures. Hitler killed himself on 30 April 1945;

Heinrich Himmler, head of the SS and the managing-

director of genocide, killed himself in British custody in

May; Joseph Goebbels died with Hitler in the bunker;

Benito Mussolini was executed by partisans shortly

before the end of the war. This last death accelerated the

decision to abandon altogether the idea of putting Axis

leaders in the dock. Italian names had been included on

the early lists of defendants, but by June they had been

removed. Italian war criminals were turned over to the

Italian government for trial. Italy was now a potential

8  

8 Imperial War Museum, London, FO 645 Box 154, Foreign Office Research Department, Schacht personality file; PRO, WO 208/3155, Schacht personality file.

9 PRO, LCO 2/2980, minutes of second meeting of British War Crimes Executive, 21 June 1945, p. 2.

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ally of the West. Other Axis allies, like Admiral Horthy

of Hungary, were also quietly dropped from the list. By

mid-summer all the prosecuting powers had come to

accept that they would try only a selection of German

political and military leaders.

This decision still begged many questions. In 1945,

the international community faced for the very first

time the issue of bringing to trial the government of one

of its renegade members. In theory the entire govern-

mental and military apparatus could be arraigned: if

some were guilty, then, as Robert Ley complained in his

tirade against the legal basis of the trial, all were guilty.

The early American lists did include a hundred names

or more. The British prosecution team, under Sir David

Maxwell Fyfe, favoured a smaller and more manageable

group, and for much of the summer expected to try

only half-a-dozen principal Nazis, including Hermann

Göring, the self-styled ‘second man in the Reich’. At one

point, the British team argued for a single, quick trial

using the portly Göring as symbol for the dictator-

ship.10 The chief difficulty in drawing up an agreed list

of defendants derived from different interpretations of

the power-structure of the Third Reich. In 1945, the

view was widely held that Hitlerism had been a malign

The Nuremberg trials: international law in the making 9

10 PRO, LCO 2/2980, minutes of third meeting of British War Crimes Executive, 25 June 1945, pp. 1–4.

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extension of the old Prussia of militarism and

economic power. The real villains, on this account, were

to be found among the Junker aristocracy and the

industrial bosses, who were Nazism’s alleged paymas-

ters. Clement Attlee, Churchill’s deputy prime minister,

and then premier himself following Labour’s election

victory in July 1945, argued forcefully that generals and

business leaders should be dragged into the net.

‘Officers who behave like gangsters’, wrote an uncharac-

teristically intemperate Attlee, ‘should be shot.’ He

called for a cull of German businessmen ‘as an example

to the others’.11

These views did not go uncontested. The indictment

of large numbers of senior officers was regarded as a

dangerous precedent, which might allow even the

defeated enemy the opportunity to argue that Allied

military leaders were just as culpable. The decision to

include German bombing as part of the indictment was

quietly dropped for just such reasons. The issue of

economic criminals was equally tendentious. While

Soviet lawyers, British socialists and Jackson’s team of

New Dealer lawyers saw nothing unjust about including

industrial magnates at Nuremberg, they were opposed

by those who saw business activity as independent of

10  

11 PRO, PREM 4/100/10, Deputy Prime Minister, ‘Treatment of Major Enemy War Criminals’, 26 June 1944.

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politics and war-making. Even Albert Speer, Hitler’s

armaments minister and overlord of the war economy,

was argued about. He was, one British official suggested,

‘essentially an administrator’, not a war criminal.12 This

tendency to see economic leaders as functionaries

rather than perpetrators probably saved Speer from

hanging when the trial ended in 1946.

The many arguments over whom to indict betrayed a

great deal of ignorance and confusion on the Allied side

about the nature of the system they were to put on trial.

Only gradually over the summer, and thanks to a wealth

of intelligence gathering and interrogation, did a clearer

picture emerge. But there still remained significant

gaps. Knowledge of the extent and character of the

Holocaust was limited to information supplied by

Jewish organisations. The chief managers of genocide,

the Gestapo chief, Heinrich Müller, and his deputy,

Adolf Eichmann, were missing from most lists of

potential defendants. Because he made more noise than

the other party fanatics, the prosecution chose Julius

Streicher, editor of the scurrilous anti-semitic journal

Der Stürmer, as the representative of Nazi racism. Yet

Streicher had held no office in the SS racist apparatus,

knew nothing of the details of the Holocaust, and had

The Nuremberg trials: international law in the making 11

12 PRO, LCO 2/2980, British War Crimes Executive meeting, 15 June 1945, p. 2.

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lived in disgrace since 1940 after Hitler had sacked him

as Gauleiter of Franconia on corruption charges. Full

interrogation testimony on the Holocaust and its

perpetrators was received only days before the start of

the trial in November 1945, when it at last became clear

that the men the Allies should have been hunting were

still at large.

The final agreed list of twenty-two defendants repre-

sented a series of compromises. The original six British

names were never in question: Göring, the foreign

minister Joachim von Ribbentrop, interior minister

Wilhelm Frick, labour front leader Robert Ley, Ernst

Kaltenbrunner, head of the security apparatus, and the

party’s chief ideologue, Alfred Rosenberg. Other names

were added as representative of important aspects of

the dictatorship. The idea of representation was with-

out question legally dubious, but it resolved many of

the disputes between the Allies over how large the even-

tual trial should be. Streicher stood for anti-semitism;

Hitler’s military chef de cabinet, Wilhelm Keitel, and his

deputy for operations, Alfred Jodl, stood for German

militarism; the unfortunate Schacht and his successor

as economics minister, Walther Funk, were made to

represent German capitalism. Jackson insisted that

Gustav Krupp, the one industrial name well-known

everywhere outside Germany, should also be included,

12  

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despite his age and his debilitated condition. But he was

too ill to attend, and Jackson’s efforts to extend the prin-

ciple of representation by simply requiring Krupp’s son,

Alfried, to attend in his place was too much for the

other prosecution teams, and the trial went ahead with

no Prussian ‘iron baron’ in the courtroom.13

Others were included for a variety of reasons. Karl

Dönitz, head of the German navy and Hitler’s brief

successor as chancellor, had his name added at the

Potsdam conference, when it was brought up by the

Soviet Foreign Minister. Only days before, the British

prosecution had warned that the Dönitz case was so

weak that he would probably be acquitted, an outcome

regarded candidly as ‘disastrous to the whole purpose of

the trial’.14 The Soviet Union did not want to be alone in

presenting none of its Nazi prisoners at Nuremberg, and

in August insisted that Admiral Erich Raeder and an offi-

cial of Goebbels’ propaganda ministry, Hans Fritsche,

should also be included. The remaining group of Nazi

ministers and officials were deemed to have done

The Nuremberg trials: international law in the making 13

13 On Krupp, see Imperial War Museum, FO 645, Box 152, minutes of meeting of chief prosecutors, 12 November 1945, p. 1. Jackson’s views on Krupp are in NA II, RG 238, Box 26, draft of press release.

14 PRO, WO 311/576, British War Crimes Executive to War Office, 20 June 1945; War Office to Supreme Headquarters, Allied Expeditionary Force (Paris), 27 June 1945.

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enough to merit their inclusion, but the final list left out

men like Otto Thierack, the SS minister of the interior

and former head of the Nazi People’s Court, and the SS

general, Kurt Daluege, head of the Order Police and an

important figure in the apparatus of repression and

genocide. Both were in Allied captivity. To ensure that

even these men would eventually stand trial in a series of

subsequent tribunals, the Allied prosecutors,at Jackson’s

prompting, agreed to arraign a number of organisation

as well as individuals. It was hoped that, by declaring the

organisations criminal, further trials of individuals now

classified as prima facie criminals could be speeded up.

This was a device of doubtful legality, since it placed

much of the basis of war crimes trials on retrospective

justice,but nonetheless alongside the twenty-two defen-

dants at Nuremberg stood metaphorically the SS, the SA,

the Gestapo and the rest of the German cabinet and mili-

tary high command.15

The framing of the charges was a little less arbitrary.

Here there was no precedent at all. The war crimes

defined at the end of the First World War and subject to

common agreement included crimes that had evidently

been perpetrated by the Nazi system: ‘systematic terror-

ism’, ‘torture of civilians’, ‘usurpation of sovereignty’

14  

15 NA II, RG 238, Box 34, Indictment first draft, p. 1.

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and so on.16 The difficulty in this case was to define

crimes in terms that could be applied to the men in the

dock, few of whom could be shown beyond any reason-

able doubt to have directly ordered or perpetrated

particular crimes, even if they served a criminal regime.

The main charge was deemed to be the waging of

aggressive war as such, but this had never been defined

as a crime in international law, even if its prosecution

might give rise to specific criminal acts. War was

regarded as legally neutral, in which both sides enjoyed

the same rights, even in cases of naked aggression. To

define the war-making acts of the Nazi government as

crimes required international law to be written back-

wards. Even more problematic was the hope that the

crimes perpetrated against the German people by the

dictatorship, and the persecution and extermination of

peoples on grounds of race, could also be included in

any final indictment. This violated the principle in

international law that the internal affairs of a sovereign

state were its own business, however unjustly they

might be conducted. Here, too, legal innovation was a

pre-condition for trial.

The radical solution proposed by Jackson and the

American prosecution team was to include all the

The Nuremberg trials: international law in the making 15

16 NA II, RG 107, McCloy papers, Box 1, United Nations War Crimes Commission memorandum, 6 October 1944, Annex A.

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actions deemed to be criminal under the single heading

of a conspiracy to wage aggressive and criminal war.

This tautological device was first thought up in

November 1944 by an American military lawyer,

Murray Bernays. It had obvious merits beyond that of

simplicity. Bernays concluded that a conspiracy to wage

aggressive war could rightfully include everything the

regime had done since coming to power on 30 January

1933. It could include the deliberate repression of the

German people, the plans for rearmament, the persecu-

tion of religious and racial minorities, as well as the

numerous crimes committed as a consequence of the

launching of aggressive war in 1939. Moreover, conspir-

acy removed the central legal problem that defendants

could claim obedience to higher orders in their defence,

or that Hitler (who at that point was still alive, and

expected to be the chief defendant) could claim immu-

nity as sovereign head of state. Conspiracy caught

everyone in the net, regardless of their actual responsi-

bility for specific acts.17

The idea of conspiracy remained the essence of the

American prosecution case right through to the trial

16  

17 NA II, RG 107, Stimson papers, memorandum on war crimes, 9 October 1944; letter from Stimson to Stettinius (Secretary of State), 27 October 1944, enclosing ‘Trial of European War Criminals: The General Problem’, pp. 1–5.

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la w.

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itself. In May 1945, the American War Department drew

up a memorandum for Jackson setting out the case that

the major war criminals collectively ‘entered into a

common plan or enterprise aimed at the establishment

of complete domination of Europe and eventually

the world’.18 In June, Jackson reported to President

Truman his belief that the German leadership had

indeed operated with a ‘master plan’, in which everything

from the indoctrination of German youth to the

muzzling of the trade unions had served the central

grotesque ambition to wage criminal war on the world.19

The conspiracy charge neatly removed the need to define

new categories of crime for the other policies pursued by

the regime, since they could, Jackson believed, all be

subsumed under the heading of the master plan.

The conspiracy thesis provoked both scepticism and

unease among the other prosecution teams. The first

problem was simply one of evidence. The central docu-

ment in the American case was Hitler’s Mein Kampf,

which was naively considered to be an outline of the

future foreign policy of Hitler’s Germany. A British

Foreign Office analysis of the content of the book, writ-

The Nuremberg trials: international law in the making 17

18 NA II, RG 107, McCloy papers, Box 3, draft Planning Memorandum, 13 May 1945, p. 2.

19 NA II, RG 107, Stimson papers, Box 5, Bernays to Stimson, report to the President, 7 June 1945.

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ten in June 1945, was forced to conclude that the book

‘does not reveal the Nazi aims of conquest and domina-

tion fully and explicitly’.20 The British argued that the

Nazis were‘supreme opportunists’, and thought it highly

unlikely that the prosecution could make a conspiracy

theory work,not only in law,but in terms of the available

evidence. The second problem was the absence of any

legal foundation for the charge of conspiring to wage

aggressive war. Jackson insisted that such a foundation

existed in the Kellogg–Briand Pact signed in Paris in

1928 by sixty-five signatory powers.The Pact was a state-

ment of intent rather than a binding international

convention,but the intent was clear enough: to renounce

war as a means of settling disputes, except in the case of

self-defence. It was signed by Germany, Japan, Italy and

the Soviet Union,all of whom undertook wars of aggres-

sion at some point in the decade that followed. Its

American sponsors declared that signature of the Pact

heralded ‘the outlawry of war’; this interpretation

sustained Jackson’s later argument that, under its terms,

‘aggressive war-making is illegal and criminal’.21

18  

20 PRO, LCO 2/2900, Foreign Office memorandum, ‘Nazism as a Conspiracy for the Domination of Europe’, 22 June 1945, pp. 1–2.

21 NA II, RG 107, report to the President, 7 June 1945, pp. 6–7. See also J. P. Kenny, Moral Aspects of Nuremberg (Washington DC, 1949), p. 6.

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There were problems too with the French and Soviet

approach to the trials. In neither state did the legal

tradition support the idea of conspiracy. Whereas in

Anglo-Saxon law it was possible to declare all those

complicit with a conspiracy as equally responsible in

law, in French and Soviet (and German) law the

defendant had to be charged with a specific crime in

which he had directly participated. The French

preferred a trial based on particular atrocities and acts

of terrorism, but this would have prevented the

prosecution of most of those who ended up in the dock

at Nuremberg. The Soviet legal experts, who had first

invented the term ‘crimes against peace’, used later in

the Indictment, were very concerned that ‘conspiracy to

wage aggressive war’ should be confined only to the Axis

states, and only to specific instances of violation:

Poland in 1939, the Soviet Union in 1941, and so on.

This anxiety masked more than legal niceties. If Jackson

succeeded in making the waging of aggressive war into a

substantive crime in international law, then the Soviet

Union was equally guilty in its attacks on Poland in

September 1939 and on Finland three months later.

Jackson knew this. In his personal file on ‘Aggression’

were the terms of the German–Soviet agreement of

1939, dividing Poland. It was kept in the file and never

presented at Nuremberg. The Soviet authorities

The Nuremberg trials: international law in the making 19

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ordered any discussion of aggression against Poland

removed from the opening address of the Soviet

prosecutor, and the Soviet courtroom team was under

specific instructions to shout down any attempt by the

defendants to raise awkward issues of Soviet–German

collaboration.22

The result of these many objections was a compro-

mise. Jackson agreed that the charge of conspiracy

should only apply to specific acts of Axis aggression,

and that other charges should be brought separately,

not simply placed under the umbrella of a general

conspiracy. But this still left the difficulty of how to

include the terror and racism of the regime in any

indictment. None of the prosecution teams wanted to

focus only on the waging of war, and the crimes that

resulted directly from it. In particular, the American

and British prosecutors wanted to include Nazi anti-

semitism as an indictable offence. The difficulty in

doing so was highlighted when an academic judgment

was sought on how to define Nazi racial and national

persecution in law. Rafael Lemkin coined a new term

‘genocide’ to describe the intention to ‘cripple in their

20  

22 NA II, RG 238, Box 32, aggression file. See also S. Mironenko,‘La collection des documents sur le procès de Nuremberg dans les archives d’état de la fédération russe’, in A. Wiewiorka (ed.), Les procès de Nuremberg et de Tokyo (Paris, 1996), pp. 65–6.

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development, or destroy completely, entire nations’, but

he concluded that this could not apply to the Jews, who

were not a nation, and he omitted anti-semitism in his

suggested list of cases in which ‘genocide’ had

occurred.23 Since both the French and Soviet prosecu-

tors were anxious to include the persecution of their

populations in the trial proceedings, a new category of

offence, ‘crimes against humanity’, was agreed. Under

the terms of these crimes could be included the deliber-

ate persecution and murder of Jews, gypsies and Poles.

The most powerful legal objection was never prop-

erly confronted. The crimes of which the defendants

stood accused were not regarded as crimes when they

were committed, with the exception of war crimes as

defined under international agreement. Robert Ley

began his rejection of the legal basis of the tribunal by

pointing out that the declaration establishing the

Tribunal, issued on 8 August 1945, created laws ‘after all

the crimes mentioned in the indictment, which they

wish to judge, had been committed’.24 The idea of retro-

spective justice was foreign to most legal traditions. The

idea that the Tribunal would be both legislator and

judge, creating crimes in order to punish them, was

The Nuremberg trials: international law in the making 21

23 NA II, RG 238, Judge Advocate’s papers, memorandum for General John Weir from Rafael Lemkin, 14 July 1945, pp. 3–14.

24 NA II, RG 238, Jackson main files, Box 3, Ley to Pflücker, p. 1.

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something that Western legal opinion also found diffi-

cult to accept. When the Acting Dean of the Harvard

Law School was asked for an opinion on the conspiracy

charge, he argued that retrospective justice was alien to

the spirit of ‘Anglo-American legal thought’, and urged

its rejection as ‘unwise and unjustifiable’.25 The

Professor of International Law at London University, H.

A. Smith, writing in December 1945, argued that the

Tribunal was to be treated as a ‘special case’, which self-

consciously departed from the principle ‘that a man

must not be punished for an act which did not consti-

tute a crime at the time when it was committed’. Only

time would show whether this ‘very serious’ decision

was ‘right or wrong’.26

Jackson was quite aware of these objections. When he

prepared his first report on the plans for a trial for

Truman in June 1945, he argued that, even if they were

not designated crimes, the acts committed by the Axis

enemy ‘have been regarded as criminal since the time of

Cain’.27 The argument in favour of retrospective justice

rested on the idea that many of the acts covered by the

22  

25 NA II, RG 107, McCloy papers, Box 3, ‘Morgan’s Opinion on Conspiracy Theory’, 12 January 1945, pp. 2–4.

26 H. A. Smith,‘The Great Experiment at Nuremberg’, The Listener, vol. 34, 13 December 1945, p. 694.

27 NA II, RG 107, Stimson papers, Box 5, Bernays to Stimson, 7 June 1945, pp. 4–5.

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Indictment were in fact known to be criminal at the

time they were committed, and would have been

subject to criminal proceedings had the law not been

perverted by dictatorship. These were flimsy argu-

ments, but the central purpose of the Tribunal was not

to conform to existing principles in international law

but to establish new rules of international conduct and

agreed boundaries in the violation of human rights.

The Indictment formally issued on 19 October 1945

consisted of four charges: a common conspiracy to

wage aggressive war; crimes against peace; war crimes;

and crimes against humanity. At least one of the four

prosecuting states, the Soviet Union, was guilty on three

of the four counts for acts it had wilfully committed on

its own behalf during the previous decade.

The conduct of the trial betrayed the improvised and

ambiguous character of its origin. There were practical

issues that had not been anticipated. The time taken to

translate documents in evidence and other trial ma-

terial into French and Russian meant that the prosecu-

tion teams often lacked the papers they needed, or

received them at the last moment. Defence lawyers had

particular difficulty in obtaining access to material

necessary for the presentation of their defence. All the

prosecution teams were short of skilled translators and

interpreters, which compounded the problem. The

The Nuremberg trials: international law in the making 23

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sheer volume of accumulated evidence made it certain

that the trial would take considerably longer than had at

first been intended. In the summer of 1945, it was

hoped that a trial could be started in September and

might be over by Christmas. A speedy trial was felt to be

desirable to satisfy Allied public opinion that justice was

being done as swiftly as judicial process would allow.28

In reality, the trial lasted for almost a year, and it proved

difficult to sustain popular interest in its outcome.

It was also difficult to mask the extent to which the trial

was governed by political as much as by legal considera-

tions. The Soviet authorities made no pretence that they

considered all the defendants guilty a priori.The trial was

regarded as a show-trial, in which Nazi leaders would be

exposed to public disapproval before execution. Stalin

established a government commission ‘on the direction

of the Nuremberg trial’, which oversaw efforts to ensure

that nothing hostile to Soviet interests would be exposed

by the court. In November 1945, the NKVD sent Colonel

Likhachev to Nuremberg to win the support of the other

three prosecution teams in avoiding awkward questions

about Soviet foreign policy.29 The other powers tolerated

24  

28 PRO, FO 1019/82, Maxwell Fyfe to Jackson, 21 September 1945, p. 2.

29 A. Vaksberg, The Prosecutor and the Prey: Vyshinsky and the 1930s Moscow Show Trials (London, 1990), pp. 258–9.

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the pressure, though in the notorious case of the Katyn

massacre of Polish soldiers the British authorities were,

rightly, convinced that this had been a Soviet, not a Nazi

atrocity. At one point during the trial, the Soviet

Procurator-General,Andrei Vyshinsky,guest-of-honour

at a dinner for the Tribunal judges, compelled his

companions to raise their glasses in a macabre toast to the

defendants:‘May their paths lead straight from the court-

house to the grave!’30 This was a difficult position for

American and British judges,who could scarcely endorse

the imminent execution of men they were supposed to be

treating with judicial impartiality.

Nonetheless, the three Western powers all came to

accept the Soviet position that Allied actions which

might now be regarded as crimes as a result of the new

categories defined by the Tribunal should be excluded

from review. Throughout the trial there was only one

brief mention of the Soviet–Finnish war, and this was

shouted down. Bombing was not included as a war

crime, despite the fact that large numbers of innocent

civilians were killed on both sides. Even while the

horrors of the Nazi camp system were being revealed in

court, the Soviet authorities were setting up concentra-

tion camps in the Soviet zone of occupation, like the

The Nuremberg trials: international law in the making 25

30 T. Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (London, 1993), p. 211.

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isolation camp at Mühlberg on the Elbe, where, out of

122,000 prisoners who were sent without trial to the

camp, over 43,000 were killed or died.31

This collaboration was sustained in the face of the

emerging Cold War for several reasons. It was impor-

tant for the Western states that the trial did not break

down into inter-Allied bickering, and that the Soviet

Union was not exposed as an international criminal.

The hypocrisy was sustained on grounds of Realpolitik.

The whole purpose of the trial, as a statement about

international morality and human rights, would have

been destroyed, and Nazi crimes viewed with an

unwanted moral relativism, if the situation had been

otherwise. The political purpose of the trials was also

evident in the efforts to use them as part of a more

general programme of re-education in Germany, and,

by implication, in the rest of Europe. In one of the pre-

trial interrogations, the American interrogator, Howard

Brundage, explained to his interviewee, the diplomat

Fritz Wiedemann, what he believed the trials repre-

sented:

We are trying to get up a record here for the benefit of the children of Germany, so that, when another time comes and a gang like this gets control of the

26  

31 A. Kilian, Einzuweisen zur völligen Isolierung. NKWD- Speziallager Mühlberg/Elbe 1945–1948 (Leipzig, 1993), p. 7.

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government, they will have something to look back on and be warned in advance … [T]he United States doesn’t expect anything out of this, and we are anxious to make a record here that will be a lesson to the German people.32

The assumption of Western moral superiority

implicit in the liberal values expressed in the

Indictment was accepted as a necessary underpinning

for the construction of a new moral and political order.

There were also legal problems raised by the trial. The

provision of evidence was far from ideal. Vital material

on the genocide of the Jews only emerged with the

capture of the commandant of Auschwitz, Rudolf Höss,

in March 1946, and his testimony arrived too late to be

included fully in the trial proceedings. The Soviet

Union provided unsworn written depositions about

German atrocities in the east, but refused to allow

Soviet citizens to be called as witnesses at Nuremberg.

In the early summer of 1945, Jackson’s team circulated a

secret memorandum making it clear that it was inexpe-

dient to wait until all the material for trial had been

gathered together, and that the case should rest on ‘the

best evidence readily available’.33 The whole idea of

The Nuremberg trials: international law in the making 27

32 Imperial War Museum, FO 645, Box 162, interrogation of Fritz Wiedemann, taken at Nuremberg, 9 October 1945, pp. 22–3.

33 NA II, RG 107, McCloy papers, Box 3, draft Planning Memorandum, 13 May 1945, pp. 3–5.

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conspiracy did prove difficult to demonstrate, and in

the end three of the defendants, von Papen, Schacht and

Fritzsche, were found not-guilty on all four counts.

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 offi-

cials, 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 trials were an experiment. There was

a clear international consensus among the victor powers

that the perpetrators of aggression should this time be

treated differently by the international community. To

be able to conduct such an experiment it was necessary

to have an agreed set of rules of conduct in international

affairs and on fundamental issues of human rights. The

precise nature of the crimes associated with the war had

to be defined and given clear legal status.What is striking

about the summer of 1945 is not that the trials were in

some sense arbitrary and in defiance of legal convention,

but that so much was achieved in the chaos of post-war

Europe in building the foundation for contemporary

international law on war crimes, and contemporary

conventions on human rights. The International

28  

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Criminal Court established in 2002 is a direct descen-

dant of the Nuremberg Military Tribunal, as were the

European Convention on Human Rights signed in 1950

and the genocide convention two years earlier. The trials

were without question a political act, agreed at the level

of diplomacy, and motivated by political interests. The

choice of defendants and the definition of the charges

were arbitrary in the extreme, and rested on endless

wrangles between the prosecution teams and govern-

ments of the four Allied states.Yet the final outcome was

less prejudiced and more self-evidently just than these

objections might imply. The trial did not fabricate the

reality of the Third Reich and the death of as many as

seven million men, women and children murdered or

allowed to die by the apparatus of state repression,or the

deaths of many millions more, Germans among them,

from the waging of continental war. After this grotesque

historical experience, few could doubt, either then or

now, that the international community required new

legal instruments to cope with its possible recurrence.

The fact that in many cases since 1945 it has proved

impossible to prevent or anticipate further violations is

not a consequence of the failure of the Nuremberg

experiment,nor of the legal apparatus that it spawned. It

is a consequence of a persistent reality in which power

will always tend to triumph over justice.

The Nuremberg trials: international law in the making 29

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la w.

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