The Nuremberg Trials: The History and Legacy of the Nazi War Crimes Trials After World War II

By Charles River Editors

The Nuremberg courthouse where the trials were held

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Introduction

Defendants in the dock during the trials

The Nuremberg Trials

“There were, I suppose, three possible courses: to let the atrocities which had been committed go unpunished; to put the perpetrators to death or punish them by executive action; or to try them. Which was it to be? Was it possible to let such atrocities go unpunished? Could France, could Russia, could Holland, Belgium, Norway, Czechoslovakia, Poland or Yugoslavia be expected to consent to such a course? ... It will be remembered that after the first world war alleged criminals were handed over to be tried by Germany, and what a farce that was! The majority got off and such sentences as were inflicted were derisory and were soon remitted.” – Baron Geoffrey Lawrence, December 1946

At the end of World War II, the world was faced with some sobering statistics. With over 50,000,000 deaths when both military and civilian losses had been accounted for, the death toll was devastating, and for many of those who lived in countries that had been ravaged by war, hunger and financial strain had become parts of daily life. Furthermore, beyond the physical damage was the growing knowledge of the atrocities that had been committed both before and during the war. In fact, the Allies were discussing how to dole out justice for Axis war crimes as early as 1943, and once the war was over, it was time for the nations to turn their attention on the judgment of the German leadership and its role in the death, destruction, and demoralization they had brought to the world. This judgment took place at the most famous trials of the 20th century: the Nuremberg Trials.

The Nuremberg Trials were a series of 13 proceedings held under the authority of the International Military Tribunal between November 1945 and June 1948, but the trial most associated with Nuremberg is the first trial, in which eight judges appointed by Britain, the United States, the Soviet Union, and France deliberated over the guilt or innocence of 22 men identified as significant leaders of the Nazi cause. This trial took place between November 20, 1945 and August 31, 1946. Later trials included other Germans who held what were considered to be position of power- doctors, businessman, or lower-level functionaries whose positions of influence gave them, in the eyes of the Allies, increased responsibility for their actions. Though almost every person convicted in the 13 Nuremberg Trials was male, there was also a female physician convicted at the doctors’ trial.

In all, the Nuremberg trials numbered 489 separate hearings, and despite taking place nearly 70 years ago, the impact of the trials can still be felt today. As Harold Marcuse, author and associate professor of history at the University of California, notes, the trials were held for “the most heinous perpetrators of the most despicable crimes, as evidenced by the high proportion of guilty verdicts and the severity of the sentences….a total [over all 13 trials] of 1,672 people were tried and 1,416 found guilty as charged.” While some were tried in absentia and never brought to justice, the Nuremberg trials were largely viewed as bringing a sense of closure to the war, and they have been dramatized in numerous movies and documentaries ever since.

The Nuremberg Trials: The History and Legacy of World War II’s Famous War Crimes Trials chronicles the history of the trials from their conception to their completion. Along with pictures of important people, places, and events, you will learn about the Nuremberg trials like never before, in no time at all.

The Nuremberg Trials: The History and Legacy of the Nazi War Crimes Trials After World War II

About Charles River Editors

Introduction

Chapter 1: Before Nuremberg

Chapter 2: The City of Nuremberg

Chapter 3: Debate Over the Trials

Chapter 4: The Major Players at Nuremberg

Chapter 5: Notorious Nazis Not Tried at Nuremberg

Chapter 6: The Accused at Nuremberg

Chapter 7: In the Courtroom

Chapter 8: Punishments

Chapter 9: Subsequent Trials

Chapter 10: The Legacy of the Trials

Bibliography

Chapter 1: Before Nuremberg

“The above declaration is without prejudice to the case of the major war criminals whose offences have no particular geographical location and who will be punished by a joint decision of the Government of the Allies." - "Declaration on German Atrocities in Occupied Europe", 1943

Before the Nuremberg trials had even been formally conceived, the leaders of the Allies knew they would need to make a unified public declaration concerning the evidence of Nazi atrocities that emerged during the liberation of land once under their control. In October 1943, during a conference in Moscow, Stalin, Churchill, and Roosevelt signed a statement concerning atrocities and the allied intention of prosecuting the perpetrators.  The statement particularly singled out “German officers, men, and members of the Nazi party who [had] been responsible for or have taken a consenting part in the above atrocities, massacres and executions”.[1]  The declaration also stated that offenders known to have committed crimes specifically within a geographic area would be brought back to that country to be tried under its laws and by its people.   If, however, the offenses were determined to have taken place in “no particular geographical localization,”[2] the Allies would decide and carry out the punishments. The Moscow declaration also issued a stern warning to those who had not “hitherto…imbrued their hands with innocent blood” that the guilty would be pursued and prosecuted “to the ends of the earth.”[3]

Stalin, Roosevelt, and Churchill in Tehran during the war

At this point in the fighting, sentiment in England was mostly against a trial–type prosecution of Nazi leaders, especially since English leaders believed that a judicial proceeding was inappropriate. The offenses, which were deemed political rather than civil, would take far too long and had the potential to give Hitler and others a platform on which to mount a defense which could prove embarrassing to the Allies.[4]  Some felt that the trials would actually only allow the Nazis to “further their demented ideas and create a rebirth of their movement.”[5]  Instead, Churchill believed that a quick dispatch of justice was preferable. 

In the U.S., there were two competing ideas concerning the punishment of these war criminals. The first, advocated by Henry Morgenthau (then Secretary of the Treasury), was based on the belief that the punishment of Germany following World War I had been too light and too poorly enforced, resulting in their ability to regroup and cause a second world war.  For Morgenthau, the most effective means of dealing with the Germans now would be a complete destruction of their economy and way of life.  A list of war criminals should be developed, and upon their capture, they should be summarily shot. When he explained these proposals to Churchill in a wartime meeting, both Churchill and Roosevelt seemed to be an agreement, but his proposals were bitterly opposed by Secretary of War Henry Stimson. Stimson wanted the punishment of war criminals in Germany to move forward, but he believed that Germany should be restored if possible and that the only international cooperation could produce a trial that would produce verdicts on the Nazi leadership that would be respected by the world.  Indeed, when Morgenthau’s plans were leaked to the press, Americans recoiled at the thought of executions without a trial, and the Germans were invigorated in the fight to the last stand, since, they claimed, they would be treated with no mercy. Having become a public relations disaster for an already ailing Roosevelt, Morgenthau’s plans were now discarded and the plans for an international trial begun.[6]

Portrait of Morgenthau

Stimson

Stalin, eager for retribution, had already begun to construct a list of those Germans who must die to right the wrongs done to his country. In fact, Stalin would ultimately support the immediate execution of between 50,000 and 100,000 Germans, but for now, he toasted his allies at the 1943 Tehran Conference with the words “I drink to the justice of the firing squad.”[7] It is said that at the very moment the words escaped Stalin’s lips, Churchill immediately protested Stalin’s words as "wholly contrary to our British sense of justice!” Churchill responded, “I take this opportunity to say that I feel most strongly that no one, Nazi or no, shall be summarily dealt with, before a firing squad, without proper legal trial, no matter what the known facts and proven evidence against him.”[8]  Though Roosevelt believed that Churchill had overreacted to what he called Stalin’s “humor”, tension with the Soviets and the other Allies would remain a constant throughout the trials and into deliberation.

Eventually, an agreement was reached by the Soviet Union, U.S., France, and Britain to design a system of trials, and 19 other countries would join the agreement later.[9] The London Agreement and Charter, signed August 8, 1945 just as the war against Japan was on the verge of ending, spelled out the composition of the bench as well as the procedure that would be followed at Nuremberg in seven articles.  Each of the countries would send a single judge and a deputy to create a “four-power International Military Tribunal”.[10]

The indictment of war criminals fell into 4 categories:

1.  A common plan or conspiracy to commit crimes against peace

2.  Planning or carrying out wars of aggression

3.  War crimes

4.  Crimes against humanity

Some of these charges were to become the biggest controversies of the trial, and they would bring about legal discussion for years to come regarding ethics, justice, and the nature of international law.

Chapter 2: The City of Nuremberg

"It was the virtue of the Nuremberg trial that it was conceived in hatred of war, and nurtured by those strived of peace. Of course, the trial was botched and imperfect...it had to deal with new crimes for which there was no provision in national law or international law." - Rebecca West

The location of the Nuremberg trials was significant, because the city was of consequence in the Nazi legacy for several reasons: Home to one of the most capable Nazi leaders, Julius Streicher, it was the site for Nazi party rallies held between 1933 and 1938. These rallies were used to encourage and showcase the growth of the party and featured Hitler speeches, regular reviews of Nazi forces on the various parade grounds of the city, and Nazi décor welcoming the Fuhrer to the place he once called the “most German of German cities.” Eventually, Hitler would direct his architect (and eventual Nuremberg defendant) Albert Speer to design several landmarks in the city, including a huge stadium that was intended to seat over 400,000 people. 

A 1940 picture of Speer (left) with Hitler and artist Arno Breker in Paris

Julius Streicher

Nuremberg was also the location for a special session of the Reichstag during which the so-called Nuremberg Laws were passed. The two major Nuremberg laws of 1935 immediately revoked citizenship status from all Jews (who were defined as having 3 or 4 Jewish grandparents) within the Reich and forbid Jews from marrying Germans.[11] These laws eventually served as the foundation for the persecution of the Jews, and they would be expanded and amended to include groups such as the Roma and forbid more and more forms of contact between the Jewish people and the rest of the country.

The decision to actually hold the trials in Nuremberg was not without controversy. While the British favored Bavaria because of its connection with the origins of the Nazi movement, the Soviets wanted the trials to be held in Berlin.  After the former was decided to be in too poor of a condition to hold trial and the latter was rejected by the remainder of the Allies as being too far into German territory (and too close to the Soviets), Robert Jackson’s visit to Nuremberg and subsequent press for the practicality and symbolism of the city made the decision.

Jackson

Despite the historical significance of the city, most historians agree that ultimately the city was chosen in the end for its intact courthouse, not solely for its symbolic nature. However, William Bosch, author of Judgment on Nuremberg, argues that the choice of Nuremberg was far more symbolic than practical: “During former September days and nights Nuremberg was the Bavarian city that had witnessed the spectacle of the Nazi party rallies. Its streets and walls had echoed with four hundred thousand strident voices of Hitler's triumphant legions shouting ‘Sieg Heil!’; its stone stadium had reverberated with the drums and bugles heralding a New Order which was to last a thousand years. Moreover, the infamous decrees which deprived German-Jews of their legal rights and left them defenseless against the atrocities to come were entitled the Nuremberg laws.”[12]

Chapter 3: Debate Over the Trials

"A victor's justice." – Hermann Goering’s reference to the Nuremberg trials

The Nuremberg Trials were held in order to bring about justice for the victims of Nazi war crimes and expose to the world the real nature of German atrocities carried out both before and during the war.  Jewish victims of the Holocaust, estimated by the Allies to number around 6 million, were represented in part by Jacob Robinson, a lawyer who had regular contact with the American prosecutor at Nuremberg, Robert Jackson. Robinson, a representative of the Institute for Jewish Affairs, a New York City lobby, wanted to impress on Jackson his point that “The Jewish people is the greatest sufferer of this war, if not in absolute number of its casualties . . . [then] certainly in relative numbers (the ratio of surviving Jews in Europe to their pre-war total in the same areas). It therefore has a case of its own against the master Nazi criminals and their accomplices.”[13] Robinson requested either a separate indictment specifically on crimes committed against the Jews (rather than the more vague crimes against humanity) or the ability to file an amicus curiae brief on behalf of the Institute.

Though Jackson agreed, he felt that either suggestion would cause problems that might detract from the trial.  In the end, the most important thing to emerge from the relationship between the two was “the degree to which [Jackson] and Robinson agreed on the essentials and were set to cooperate. Robinson understood the importance of fitting the Jewish case within the wider American project for Nuremberg. And Jackson, for his part, knew he needed help, and that Robinson and his team were well placed to provide it.”[14]

The style of the prosecution’s case at Nuremberg was heavily based on documentary evidence and specific data in the form of notebooks, records, and official correspondence of the Nazi government. Very few Jewish survivors were permitted to give verbal testimony during the proceedings, since the evidence (largely gathered by the Soviet Union) was documentary. Some historians and political observers have criticized this in retrospect, believing that a more personalized and firsthand accounting during the trial would have had a greater emotional effect upon its hearers.[15]  Regardless, in the course of exposing the individual German leaders for their actions, it was important for the prosecution to make clear that a defendant’s claim that he was merely “following orders” would in no way stand as a viable defense. In describing the purposes of the International Military Tribunal, the charter stated that “leaders, organizers, instigators, and accomplices conspiring to commit such offenses shall be mutually responsible for the actions perpetrated in the execution of their common plan; that official position be neither an excuse nor a mitigation; and that superior orders may be a mitigation if justice requires, but not a defense.”[16]

One of the key issues debated during the trial was whether or not the German officials could be convicted of a crime for breaking a law which did not exist in their country at the time of their actions. In opposition to this concept was the longstanding judicial principle, recognized by all the countries involved, of nulla poena sine lege, which can be translated as saying “there can be no penalty without a law”.  If this was the case, it would make the proceedings against the charged “ex post facto - a practice abhorrent to all Western legal traditions”[17]. However, the conclusion of the prosecuting nations, as well as many modern legal analysts, was that this judicial principle concerns “law” as it represents the larger concept of justice, not in the “law of the time.”[18] 

That said, some did not agree with the consensus. In the April 1946 issue of The Atlantic, Charles Wyzanski’s article, “Nuremberg: A Fair Trial? A Dangerous Precedent?”, raised several questions about the legitimacy of the trial.  Though he found some of the charges legitimate, Wyzanski cited the dangers of convicting any person on the basis of ex post facto law, against which there were “deeply rooted” feelings throughout Western tradition: “Demosthenes and Cicero knew the evil of retroactive laws: philosophers as diverse as Hobbes and Locke declared their hostility to it; and virtually every constitutional government has some prohibition of ex post facto legislation, often in the very words of the Magna Carta, or Article I of the United States Constitution, or Article 8 of the French Declaration of Rights.”[19]

Wyzanski argued directly that if the convictions at Nuremberg were based upon laws without clear existence, it would bring the Allies to the levels of the Nazis, who had similarly passed a 1935 law based on a political whim: “Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished.”[20]

Similar criticisms were voiced by Quincy Wright, an American political scientist, who wrote, “The assumptions underlying the Charter of the United Nations, the Statute of the International Court of Justice, and the Charter of the Nuremberg Tribunal are far removed from the positivistic assumptions which greatly influenced the thought of international jurists in the nineteenth century. Consequently, the activities of those institutions have frequently been vigorously criticized by positivistic jurists ... [who] have asked: How can principles enunciated by the Nuremberg Tribunal, to take it as an example, be of legal value until most of the states have agreed to a tribunal with jurisdiction to enforce those principles? How could the Nuremberg Tribunal have obtained jurisdiction to find Germany guilty of aggression, when Germany had not consented to the Tribunal? How could the law, first explicitly accepted in the Nuremberg Charter of 1945, have bound the defendants in the trial when they committed the acts for which they were indicted years earlier?“

Although Wyzanski generally concluded that the counts of War Crimes had been properly charged without an ex post facto charge, he stated specific concerns with the charges of crimes against peace, for which he found little ground to defend against the charge of retroactivity, the appearance of bias in the lack of neutrals chosen as justices, especially the charge that all acts of aggression were war crimes, which he felt would condemn the Allies if honestly applied.[21] Ultimately, Wyzanski later wrote a follow-up to his article in which he retracted the majority of his earlier concerns, stated that the world should be “profoundly grateful” to Jackson for his work at the trials, and recognized that though the ad hoc nature of the proceeding had involved some irregularities, the irregularities came about because the trials were establishing important international law precedents.[22]

Chapter 4: The Major Players at Nuremberg

Nuremberg judges Alexander Volchkov (left), Iona Nikitchenko (center) and Norman Birkett (right)

American soldiers stand guard over the defendants at Nuremberg

The four major Allies - England, the United States, France, and the Soviet Union – brought the charges against Nazis tried at Nuremberg, and they were eventually joined by 19 other allied nations. Of the four allies, Britain was most reluctant to hold international trials.  Britain’s reasons for hesitation were several: they feared for the safety of British prisoners of war still in the hands of the enemy; they feared the precedent that could cause criticism of their own conduct in their parts of the world; and they objected to the idea that the Soviets, their uncomfortable ally, would stand in a place of judgment concerning war crimes.  Though the British eventually conceded to the trials in the face of public calls for justice and retribution, they “tried to keep the proceedings to a minimum regarding the number of defendants as well as the scope of the evidence”.[23] Christopher Dodd, whose book relied on evidence gathered firsthand by his father, a key player on the American legal team at Nuremberg, states that Britain’s opposition to the trials ended after the suicides of Goebbels and Hitler, as well as Mussolini’s execution.[24] Of course, by the time the trials actually began taking place in November 1945, Hitler and several other architects of the Holocaust atrocities were dead.

The French were far more interested in being involved in Nuremberg because it would give them an opportunity to reinforce the political idea that they were one of the Allies and deserving of deference. Of course, they intended to ensure the trials would serve as justice for the many French victims of German actions during the war.

The Soviets’ stance on the trials was that the German officials should already be viewed as guilty, and that the purpose of the trials should be only to determine sentencing.  Stalin was accustomed to show-trials in which the accused was already determined as guilty and the purpose of the trial was simply to produce evidence and mete out punishment. While that certainly offended Western sensibilities, he thought that Nuremberg should be no different. 

The conflicts present amongst the Allies, as well as the toll that had been taken on the French, British, and the Soviets during many years of war, meant that the U.S., under the leadership of lead prosecutor Robert Jackson, would take a primary role and be the major underwriter of the trials. Robert Jackson was an attorney with a good reputation, and an incredibly large task before him.  He once remarked, “This is the first case I have ever tried when I had first to persuade others that a court should be established, help negotiate its establishment, and when that was done, not only prepare my case but find myself a courtroom in which to try it”.  Tasked with bringing together the sometimes difficult and very war-worn Britain, France, and the Soviet Union, Jackson shaped much of the case against the defendants. Some of the charges in the London Agreement came under much criticism, specifically crimes against peace, but Jackson believed that by prosecuting this charge, he was laying the groundwork for future international precedent.  He also hoped that by making a moral declaration to the world, the Allies could help to avoid the need for such trials in the future.

Though that vision was not realized, Jackson is largely judged by history to have been a competent and skilled negotiator.  Bernard Meltzer, for the Albany Law Review, mentions the craftsmanship of Jackson’s closing statements at Nuremberg: “It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this trial as bloodstained Gloucester stood by the body of his slain King. He begged of the widow, as they beg of you: 'Say I slew them not.' And the Queen replied, 'Then say they were not slain. But dead they are ... If you were to say of these men that they are not guilty, it would be as true to say there has been no war, there are no slain, there has been no crime.’”[25]

As the lead assistant to Robert Jackson, Tom Dodd was integral to the prosecution’s case and to its organization of the evidence against the defendants. Dodd recorded the history of the trials in correspondence with his wife, and his letters home provided his personal recollection of the proceedings over an almost two year period.

Dodd

Chapter 5: Notorious Nazis Not Tried at Nuremberg

"The whole conspiracy idea is cockeyed.  We had orders to obey the head of state.  We weren't a band of criminals meeting in the woods in the dead of night to plan mass murders...The four real conspirators are missing: The Fuhrer, Himmler, Bormann, and Goebbels." – Hermann Goering 

One of the major complaints made by German defendants at trial was that they were following orders and/or being held responsible for actions taken by leaders who were not being tried themselves. It was true that several notorious German leaders were not prosecuted at Nuremberg, but that’s because they couldn’t be tried. Hitler, of course, had committed suicide along with his mistress (and very recent bride), Eva Braun, in his bunker as the Soviets closed in on Berlin at the end of April 1945. When looking at the testimony of the defendants, it’s clear that while a few remained loyal to the end, many of them chose to lay the blame, orders, and even knowledge about the Holocaust completely on Hitler, hoping to escape with lighter sentences or not guilty verdicts by convincing the judges of their ignorance.

Another Nazi who was not tried was Joseph Goebbels, Hitler’s minister of Propaganda. Goebbels had been ordered by Hitler to leave Berlin in order to form a new government, but he refused to do so and instead summoned his wife and children to Berlin as the war was coming to an end. He declared in a coda to Hitler’s last will and testament that “for the first time in my life, I must categorically refuse to obey an order of the Fuhrer.” Instead, he decided to end not just his life but the lives of his immediate family members.

Goebbels

Heinrich Himmler, the notorious head of the SS, committed suicide after his capture by the British at the end of May, while Martin Bormann, Hitler’s personal secretary, was tried in absentia for his crimes.  For many years, the whereabouts of Bormann were a mystery.  He and one of Hitler’s physicians had escaped from Hitler’s bunker as the Russians were closing in, and their bodies were never found, or at least not identified.  Many theories arose concerning Bormann’s whereabouts, with claims that he was living in the Soviet Union, South America, or other parts of the world. His body was finally found in Berlin in 1972, where it is believed he died soon after his escape attempt.

Himmler

Bormann

Chapter 6: The Accused at Nuremberg

A picture of defendants listening to translations on headphones during the trials

"The indictment knocked me on the head.  First of all, I had no idea at all about 90 percent of the accusations in it.  The crimes are horrible beyond belief, if they are true.  Secondly, I don't see how they can fail to recognize a soldier's obligation to obey orders.  That's the code I've lived by all my life." – Alfred Jodl

In addition to the individuals on trial, six German organizations also stood trial at Nuremberg. The legal strategy behind trying not only individuals for criminal acts but also organizations was so that during the trials of lesser-known defendants, once an organization had been declared a criminal one, evidence of belonging to that criminal organization could be a key piece of evidence in getting a conviction.  This would also allow prosecutors to include charges of conspiracy to specifically link the leaders and organizers of Nazi policy with the actual events taking place in camps and occupied nations.  Of the six organizations brought to trial, four were declared criminal organizations, and thus being a member of one of them was considered to be committing a crime simply by virtue of membership.  The organizations deemed criminal by the Nuremberg Court were the Leadership Corps of the Party, the Gestapo, the SD, and the SS.  

After the committee’s original indictment of 24 defendants, one committed suicide and one was declared mentally incompetent to stand trial, so 22 men who were considered to be ringleaders of or representatives of the organizations that perpetrated Nazi war crimes were prosecuted at Nuremberg. Some were chosen because of their obvious notoriety, others were seen as secondary to men who had taken their own lives and could not be tried, and still others were tried because they held key positions in groups that were seen as vital to the Nazi cause.  A list of their names and positions follows:

            Hermann Goering - eventually Hitler’s second in command and head of the German Luftwaffe

            Martin Bormann - head of the Party Chancellery and tried in absentia

            Karl Doenitz - grand admiral and supreme commander of the German navy

            Hans Frank - governor-general of Poland and known as the “Butcher of Krakow”

            Wilhelm Frick - minister of the interior

            Hans Fritzsche - head of the Home Press division in the Propaganda Ministry

            Walter Funk - Reichminister of economics and later President of the Reichsbank

            Rudolf Hess - one-time Council for Reich Defense and second in line behind Goering as a successor to Hitler, he had inexplicably flown a plane over Great Britain and bailed out there in 1941, where he had been held as a prisoner until the trial

            Adolf Jodl - chief of Wehrmacht operations and the man who signed the unconditional surrender

            Ernst Kaltenbrunner - head of the Reich Main Security Office who administered the concentration camp system and activities

            Wilhelm Keitel - top military commander of the Third Reich

            Constantin Freiherr von Neurath - president of the Secret Cabinet council and member of the Council for Reich Defense

            Franz von Papen - onetime vice-chancellor, he served as a Reich representative in both Austria and Turkey

            Erich Raeder - commander of the German navy for one year, ordered the killing of POWs

            Joachim von Ribbentrop - served as Hitler’s advisor on foreign affairs and replaced Von Neurath as foreign minister

            Alfred Rosenberg - minister for occupied territories and head of a task force to remove valuable art from occupied countries

            Fritz Sauckel - Reich director of Labor, oversaw the movement of five million occupied countries’ workers to Germany

            Hjalmar Schacht - one time President of the Reichsbank, minister of economics, and plenipotentiary general for the war economy

            Baldur von Schirach - leader of Hitler Youth and later governor of Vienna

            Arthur Seyss-Inquart - Reich Commissioner of the Netherlands

            Albert Speer - Hitler’s architect, minister of armaments, and head of a slave labor program

            Julius Streicher - Director of the Central Committee for the Defense against Jewish Atrocity and Boycott Propaganda[26]

These men, called “degenerates in the dock” by American newsman Walter Cronkite[27], faced daily trial dressed in their suits or German military uniforms, which they exchanged for the prisoner’s dress they wore in the off-trial hours in the jail adjoining the Nuremberg Palace.[28] Goering especially was known for his fastidious dress in court and had to have alterations to his uniform after dramatic weight loss from an improved diet and recovery from pill addiction.

Goering during cross-examination

The Allies hoped that allowing the accused to make statements in their defense in the face of extremely damning evidence would accomplish two goals. First, they hoped that it would allow the world, including the German people, to understand the atrocities that had been committed and reveal the evil nature behind Nazi philosophy. Furthermore, by providing a fair trial, the Allies sought to avoid accusations of unfairness in the convictions and punishment to follow.

Nevertheless, some Germans were outraged by the very idea that the International Military Tribunal had the authority to charge and try German citizens.  They argued that the judges at the trial were selected specifically by the four main victorious Allies, and they pointed out that no neutral countries were asked to select a judge. There were also no Germans chosen to hear the evidence against their fellow citizens. To this charge, Robert Jackson responded that because of the heavy involvement of so many countries, there was no one left to choose: “Either the victors must judge the vanquished, or we must leave the defeated to judge themselves.”[29] Furthermore, as Oxford professor A. L. Goodhart pointed out, “Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because 'a burglar cannot complain that he is being tried by a jury of honest citizens.”

Christian Tomuschat, a professor of International Law in Berlin, has also pointed out that while many Germans agreed with and even “welcomed” the trials in bringing justice and the beginning of peace and stability back to Germany, they were uncomfortable with some of the rules governing the trial.  One of the key elements that disturbed Germans was the fact that the trials were exclusively set up to bring justice for German war crimes, and not for any crimes that may have been committed by the Allies in the prosecution of the war. [30] 

The Germans played close attention to the first weeks of the Nuremberg trials, and though there was some concern among the Allies that the testimony and the trials themselves might reinvigorate Nazi support or sympathy, this never occurred. In fact, most Germans had such pressing daily concerns that they not only felt no sympathy for the Nazis on trial but also blamed them for their dismal circumstances. This sentiment was captured by one statement: “We are simply too hungry to worry much about legal niceties, and as for the men in the dock, even a death sentence is too lenient.” In 1945, a survey was conducted of American soldiers who by then were occupying much of Germany and having regular contact with the German people. Most historians agree that upon entering Germany, American forces took a very dim view of the German citizenry, believing them to be heavily ideological and loyal to Hitler’s regime.  However, when asked their opinions of the Germans after only a few months of occupation and daily contact with the German people, nearly 80% of servicemen had a favorable view of the people, and only 43% of those surveyed blamed them for the war.  Less than 25% of those interviewed considered the German people responsible for what happened in concentration camps.

Since the war crimes trials did not start until November 1945, well after the war’s end in Europe, the Allies’ “commitment not only to root out Nazism and militarism, but to deal with crimes committed by their defeated enemy”[31] had not yet begun in force. This did not mean, however, that no trials were held before Nuremberg. The Americans and British had begun the work of holding trials while the war was still on, and a restored German court system was in place by the fall of 1945.  These courts dealt with both military crimes; for example, in one American court, death sentences were issued for German civilians who had killed an American serviceman by beating him to death, as well as imprisonment of a German police officer who had been an idle witness to the crime. Others were punished for crimes committed by concentration camp workers after General Dwight D. Eisenhower, whose famed tours of the concentration camps had convinced him of the need for swift justice for the perpetrators, requested that previous restrictions be lifted.

Before the trials were held, the American team conducted a preliminary interrogation of the accused.  The British team declined to participate for strategic reasons, while the French and Russian teams lacked the staff to do so. The final indictments, which were edited and reissued in Nuremberg one month before the start of the trials, were based on the following charges:

1.  Formation of a common plan or conspiracy to commit Crimes Against Peace.

2.  Namely, planning, preparation, initiating, or waging a war of aggression, or a war in violation of international treaties;

3.  War Crimes: Namely violation of the law of customs of war [including] murder, ill treatment, deportation, the forced labor of civilian populations, the murder and maltreatment of prisoners of war or hostages, the plunder of private or public property, and the wanton destruction of towns or villages;

4. Crimes against Humanity: Namely, 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…whether or not in violation of the domestic law of the country perpetrated.

Though many embraced the indictments as a worthy attempt to catalogue Nazi evils, Elie Weisel, a noted Holocaust survivor and author, later expressed his “shock” at the omission of specific crimes against the Jews in the wording of the indictment. 

Chapter 7: In the Courtroom

A picture of defendants listening to translations with headphones

Robert Jackson addressing the court on November 20, 1945

The Nuremberg Trials, though criticized by some, were seen as a chance to bring Germany’s actions to the world’s attention and to bring their war crimes to light with the four major world powers of the time working in cooperation.  Robert Jackson, lead prosecutor for the United States, opened his arguments in court making this clear: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”[32]

Not only would the trials showcase the cruelties of the Nazi regime, many of the Allies believed that by allowing the German leadership to provide a defense of their action, they would pre-empt future accusations that the men had been unfairly or harshly treated, or that the judgments were unfair. So confident was American prosecutor Robert Jackson in anticipation of what was about to be revealed to the world by the Germans who would stand trial at Nuremberg that he asserted, “The future will never have to ask with misgiving what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. …The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation."[33]

While Jackson was confident, the fact that the trials were conducted by attorneys and presided over by judges from four different nations meant that various legal traditions and practices were sometimes in conflict. As such, actual trial procedures became a blend of these traditions and practices.  For example, the accused would be allowed to hear the charges against them in their native language, to retain legal counsel, to testify (as well as endure cross-examination), and to make an unchallenged concluding statement.[34] However, these matters were not to be taken for granted. Soviet Judge Nikitchenko, who would later preside over thousands of Stalinist show trials, let it be known that he believed the role of the judges was to simply pronounce sentencing.  In Nikitchenko's line of thought, the guilt of the defendants had already been established in Moscow.  Jackson immediately protested this idea, demanding that the trial be actual and legitimate, and that the judges were only, after a preponderance of evidence and arguments, to make a determination of guilt or innocence. This included the right for the defendants to be represented by counsel.

As for defense counsel, the majority were German lawyers who were called into service by the International Military Tribunal. Though a few were happy to represent their clients, others were horrified by the prospect. In their book on the trials, Ana and John Tusa point to one overriding reason for German lawyers accepting the role as defense counsel: their desire for food. With Nuremberg citizens receiving rations of only about 1350 calories a day, many lawyers saw a chance to provide both food and other items they would be supplied with by the Tribunal to their families.[35]

Thus, in the main courtroom at the Palace of Nuremberg, the stage was set for one of history’s most gripping dramas.  The prosecutors’ table seated the legal teams from right to left: the International Military Tribunals secretariat, the British team, and the American, Soviet, and French teams.  To the right of this table sat the 8 judges (two from each of the four prosecuting nations).  The judges from the U.S., Britain, and France wore black robes, in the belief that it was important to set a tone of neutral justice, but the Soviet judges insisted on donning their military-style uniforms each day.  One judge served as the main judge from each country, with the other as the alternate. The list of the judges follows:

            Major General Iona Nikitchenko (Soviet)

            Soviet Union Lieutenant Colonel Alexander Volchkov (Soviet alternate)

            United Kingdom Colonel Sir Geoffrey Lawrence (British), also served as the  President of the Tribunal

            United Kingdom Sir Norman Birkett (British alternate)

            United States Francis Biddle (American)

            United States John J. Parker (American alternate)

            France Professor Henri Donnedieu de Vabres (French)

            France Robert Falco (French alternate)

To the left, the 21 men on trial sat in the places assigned to them, while Bormann was tried in absentia. Special equipment allowed all of the players to hear the proceedings in their native languages, which was accomplished through the use of headsets through which the translation came.  This type of translation was a new one, developed specifically for the trials by IBM and French-born Colonel Leon Dostert, who had moved to America, became an American citizen, and joined the army. To meet the goals of the trial, to be both “fair” and “expeditious”, it was necessary for the translation of questions, answers, and evidence to be rapid and very accurate.  The new technology, known as extempore simultaneous interpretation, allowed for people to both speak and be heard at the same time and involved a very high number of native language speakers. On each desk, a dial would allow the translation to be heard in any of the four languages being spoken in the courtroom: English, French, Russian, and German.  The translation system, despite occasional trouble with the numerous cables required to connect translators, lawyers, judges, and defendants all over the courtroom, was judged to be a success and is still the basis for the system used in the United Nations and other international organizations today.[36]

Robert Jackson commented on his desperation for a fair and efficient method of translation as he faced the difficulties of preparing for the trial.[37]  The efforts of the U.S. and Britain at the trials (which by this point had already started) were falling short in terms of interpretation, and Jackson understood how vitally important proper interpretation and translation would be: “I think that there is no problem that has given me as much trouble and as much discouragement as this problem of trying to conduct a trial in four languages. I think it has the greatest danger from the point of view of the impression this trial will make on the public. Unless the problem is solved, the trial will be such a confusion of tongues that it will be ridiculous, and I fear ridicule much more than hate.”[38]

Recordings of the trials that lasted for over one and a half years filled 22 volumes, and though the trials did not command a major following after initial interest wore off and people were anxious to attend to their personal lives and return to normality, the record of the testimony allows students of history insight into the motives and thoughts of the men who once believed they would bring Germany to its greatest heights. It also allows students of international law a complete trial transcript to be debated, studied, and evaluated. While the testimony in general is often described as dry and monotonous, the trial had many moments of pathos as well. After all, the men on trial, whatever their claims, had held some of the most key positions in the Nazi government and German war machine, and they were being questioned by their sworn enemies after a stinging defeat.  Their leader was dead, and their country was in ruins. 

One of the most interesting defendants was Albert Speer, a relatively young man who was an artist and architect in Hitler’s Germany.  In his testimony before the court, he was asked about the nature of the forced labor which he, as head of the program, demanded increases in throughout the war.   After describing his ongoing conflict with Sauckel, the Reich director of Labor, over the speed and conditions in the importation of slave labor, Speer was asked whether or not it was true that he knew of the nature and treatment of the program that supplied Germany’s war machine with laborers.  He testified, “I had no influence on the method by which workers were recruited. If the workers were being brought to Germany against their will that means, as I see it, that they were obliged by law to work for Germany. Whether such laws were justified or not, that was a matter I did not check at the time. Besides, this was no concern of mine. On the other hand, by application of force and terror I understand police measures, such as raids and arrests, and so on. I did not approve of these violent measures.”[39] 

When asked to state his reason for opposition to the violence, Speer stated his concern was that in the long run, violence could cause an uprising and further resistance through sabotage, which would result in decreased production. He expressed no concern for the 5 million people whose lives were uprooted.

As it turned out, Speer would be one of the few men who outlived their prison sentences after being released from prison in October of 1966. During the trial, Speer had claimed a lack of personal knowledge about the atrocities against the Jews, and he was considered one of the more “straightforward” witnesses, in part because he was willing to openly criticize Hitler and admit to some personal wrongdoing. He had also provided the Americans with much information about Germany in the closing weeks of the war after Hitler’s death. As he later asserted, “I would like to sit down and write one final blast about the whole damn Nazi mess and mention names and details and let the German people see once and for all what rotten corruption, hypocrisy, and madness the whole system was based on!-I would spare no one, including myself." Speer would do so by writing a couple of books before his death in 1981.

The most famous moments of the trial came during the cross-examination of Hermann Goering, the famous leader of the Luftwaffe and the last commander of a World War I fighter unit immortalized by that war’s most famous ace, the Red Baron.  This was also considered to be Robert Jackson’s weakest point of the trial. Though generally admired for the leading role he took at the trials, his critics believed he had a generalized weakness as a cross-examiner, and Walter Cronkite, who was present at the trial, later had this to say about Jackson’s interaction with Goering: “Although Jackson’s table was piled high with documents that conclusively established Goering’s guilt, the defendant had only his astounding memory and a few notes in the lavender notebook his jailers had provided…Thus armed, Goering parried many of Jackson’s thrusts, frequently correcting dates and figures that Jackson misquoted from the documents in front of him.  Jackson was totally unnerved by Goering’s almost jovial impudence.  To Goering’s insouciance he could respond only with bluster and a posture reminiscent of the country lawyer he once had been.” 

Jackson seemed overwhelmed by Goering’s responses and memory.  When asking Goering about the Leadership Principle, which Jackson pointed out as anti-democratic, Goering replied, “I consider the Leadership Principle necessary because the system which previously existed, and which we called parliamentary or democratic, had brought Germany to the verge of ruin. I might perhaps in this connection remind you that your own President Roosevelt, as far as I can recall — I do not want to quote it word for word — declared, ‘Certain peoples in Europe have forsaken democracy, not because they did not wish for democracy as such, but because democracy had brought forth men who were too weak to give their people work and bread, and to satisfy them. For this reason the peoples have abandoned this system and the men belonging to it.’ There is much truth in that statement. This system had brought ruin by mismanagement and according to my own opinion; only an organization made up of a strong, clearly defined leadership hierarchy could restore order again. But, let it be understood, not against the will of the people, having in the course of time, and by means of a series of elections, grown stronger and stronger, had expressed their wish to entrust their destiny to the National Socialist Leadership.”[40]

Regarding the evidence presented at Nuremberg, critics complained not about the lack of evidence but about the choices made by the prosecution on how it should be presented. As lead prosecutor for the American team, Robert Jackson’s views on how to present the case were very influential. Jackson believed, rightly, that the evidence needed to convict the men on trial had been provided by them.  He stated that “the Teutonic passion for making every last detail a matter of record provides us with our greatest trial weapon. From their own written orders, directives, diaries, journals, memoranda, and correspondence, the overwhelming proof of the Nazi defendants was made crystal clear.”[41]

In the opinion of many who attended the trial, the presentation of the evidence was so dry and robotic that it failed to convince the world that watched of the atrocities of German actions, not because of a lack of data but due to a lack of human testimony and human emotion. There were, however, exceptions to the regular style of presentation of evidence.  Tom Dodd, who was normally charged with reading hours of documentary evidence, provided two memorable moments during the trial.  First was the presentation of film footage obtained by the liberators of starving Auschwitz survivors surrounded by bodies of their fellow prisoners. There was also footage of executions of Eastern European prisoners, as well as still photographs of torture and inhumane camp conditions.  Then, on December 13, 1945, Dodd brought into the courtroom an object covered with a white sheet.  As he proceeded to explain the evidence in Document EC-68, exhibit USA-205, a document giving instructions for the treatment of Polish farm workers, he revealed that Poles whose bodies bore tattoos were separated from the rest of the victims of the mass execution and killed with lethal injections so that their skin could be removed and fashioned into commemorative items, specifically lampshades, for German leadership. At this point, Dodd gave instructions for the object under the white sheet to be revealed: a shrunken and preserved human head which had been used by a German officer as a paperweight.  This day of the trial proved to be a turning point, as photographers and reporters shocked the world with an aspect of human devastation that had previously been overshadowed by numbers and detail.  Dodd preempted his actions by stating that the two exhibits were shown “to this tribunal only because they illustrate the depths to which the administration of these camps had sunk.”[42]

Eventually, Dodd would take over much of the day-to-day presenting of evidence, and he was assigned to cross-examine both Alfred Rosenberg and Walter Funk.  During Dodd’s cross-examinations of these men, he was able to force Rosenberg to admit his knowledge and support of the plan for a mass extermination of the Jews from Europe.  Though he attempted to deny that the words used in records of his conversations with Hitler truly meant extermination, he was forced to admit not only his knowledge of the plan but the role his subordinates played in carrying it out. Rosenberg also admitted to initialing key documents ordering the killings, but he continued to take exception to the insinuation that he was trying to commit genocide: “"We let 50,000 Jewish intellectuals get across the border.  Just as I wanted Lebensraum for Germany, I thought Jews should have a Lebensraum for themselves outside of Germany." 

Walter Funk, as head of the Reichsbank, was forced to at least partially admit his knowledge of Nazi atrocities under cross-examination by Dodd. Concerning SS deposits of eyeglasses, jewelry, and gold stolen from Jews, including gold fillings in the Reichsbank’s vaults, Funk asked, “How could I even imagine that the SS had obtained these valuable by desecrating corpses?”[43] To his role in naming the first night of aggressive action against German Jewry, the notorious Kristallnacht, he responded only that that it was so named (by him) because “much had been shattered”.[44] He eventually conceded, "I signed the laws for the aryanization of Jewish property.  Whether that makes me legally guilty or not, is another matter. But it makes me morally guilty, there is no doubt about that.  I should have listened to my wife at the end.  She said we'd be better off dropping the whole minister business and moving into a three-bedroom flat."

The conclusion of the trials saw the time for closing statements from each of the defendants, and the vast majority of defendants claimed a complete lack of knowledge about the concentration camps and other atrocities carried out before and during the war.  These men blamed Hitler and his “small circle of henchmen” for the things that happened, admitting only to their undying love and loyalty to Germany and her people.  They tended to claim that their service was purely that of loyal members of the military taking up their country’s defense, and many also stated that they were ready to meet God with their personal consciences clear. 

That said, a few closing statements were exceptions to the rule. First, Rudolf Hess’ closing was interrupted by the court after almost 20 minutes of speech.  Hess’ closing statement began with a rambling story about the glassy and cruel eyes that he said characterized the eyes of many of those, from several countries, who had been accused of atrocities.  He hinted at some type of conspiracy, but most believed his mental state was beyond repair at his point.  Upon direction to conclude his statement, he ended by saying, “I do not defend myself against accusers to whom I deny the right to bring charges against me and my fellow-countrymen. I will not discuss accusations which concern things which are purely German matters and therefore of no concern to foreigners. I raise no protest against statements which are aimed at attacking my honor, the honor of the German people. I consider such slanderous attacks by the enemy as a proof of honor. I was permitted to work for many years of my life under the greatest son whom my people have brought forth in its thousand year history. Even if I could, I would not want to erase this period of time from my existence. I am happy to know that I have done my duty, to my people, my duty as a German, as a National Socialist, as a loyal follower of my Fuehrer. I do not regret anything.”[45]

Hess

Hans Frank, known as the Butcher of Krakow for his atrocities against the people of Poland, also made a different type of closing statement. During the trial, he denied any personal knowledge of the plans to exterminate the Jews and claimed that he had actually fought against violence, but he was confronted with a passage from one of his own order which demanded that his inferiors “rid [themselves] of all feelings of pity. We must annihilate the Jews wherever we find them and whenever it is possible." To this, he answered that prosecutors had “to take the diary as a whole,” and he claimed that though the words were terrible and shocking even to him, “It was a wild and stormy period filled with terrible passions, and when a whole country is on fire and a life and death struggle is going on, such words may easily be used.”

Frank

During his imprisonment and trial, Frank claimed to have regained his faith through a series of religious experiences. Now, in his last public moments, Frank claimed that he had already admitted guilt to his crimes, and that by handing over his diary to those who arrested him, he had attempted to come clean to the public.  He condemned the Germans, including himself, for turning away from God, and hoped that Germany would return to faith in order to restore herself. He admitted in November 1945, “Don't let anybody tell you that they had no idea.  Everybody sensed there was something horribly wrong with the system."

His mea culpa was not without some equivocation, however, because he also used the closing statement to condemn the actions of the Soviet Union against Germans at the end of the war and after it, and he demanded to know who would hold the Russians accountable for their war crimes. He said, “Thus, by turning away from God, we were overthrown and had to perish. It was not because of technical deficiencies and unfortunate circumstances alone that we lost the war, nor was it misfortune and treason. Before all, God pronounced and executed judgment on Hitler and the system which we served with minds far from God…If Adolf Hitler personally has laid that dreadful responsibility on his people, then it is mine too, for we have fought against Jewry for years; and we have indulged in the most horrible utterances.”

The verdicts were read publicly on September 30, 1946. Though originally set for the 23rd of September; deliberations amongst the four nations took longer than expected.  Security and secrecy around the deliberations were taken very seriously, with all communications lines cut to the deliberating rooms and all outgoing communications scanned for any material that might reveal a verdict to the world before the day had come.  The verdicts were not decided unanimously, and there was especially disagreement between the Russian judges and the rest of the Allies, but eventually, verdicts were arrived at and delivered to be read.[46]

On the morning of September 30th, all 21 men were summoned to the court room and both the indictments and the verdicts were read aloud.  At this point, the men knew only which counts they were guilty of and which counts they were found not guilty. As each defendant was named and the verdict read, they could surmise what their punishment might be. Goering heard that he had been convicted on all four counts.  Hess also heard the verdict, but seemed unaffected and preoccupied with note-taking[47], even when Goering whispered in his ear to explain he had been found guilty. Of the 22 men on trial, three were acquitted on the basis of lack of evidence: Fritzsche, Schacht, and von Papen.

The men condemned to die faced the reading of their sentences without much emotion, but a prison psychologist, who preserved the reaction of the men back in their cell rooms, revealed that several of the men were surprised by the severity of the verdicts and were even more emotional regarding the method of execution: death by hanging.  Several of them considered it the most underserved humiliation they could have imagined, especially those who were in the military and were accustomed to firing squads. Wilhelm Frick, minister of the interior, commented, "Hanging. I didn't expect anything different...Well, I hope they get it over with fast." On the other hand, Goering, the leader of the Luftwaffe, wrote that he “would have no objection to getting shot,” and Erich Raeder, who served in the navy, said, “I have no illusion about this trial.  Naturally, I will be hanged or shot.  I flatter myself to think that I will be shot; at least I will request it.  I have no desire to serve a prison sentence at my age." 

The verdicts (including the counts on which they were found guilty), the corresponding sentencing, and the punishment of each of the defendants went as follows:

            Hermann Goering - guilty on all four counts; sentenced to death by hanging, but committed suicide just before the sentence was carried out on October 14, 1946

            Martin Bormann – found guilty in absentia

            Karl Doenitz-, guilty of wars of aggression and war crimes; sentenced to and served ten years in prison

            Hans Frank- guilty of war crimes and crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946

            Wilhelm Frick- guilty of wars of aggression, war crimes and crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946

            Hans Fritzsche- Not guilty

            Walter Funk- guilty of wars of aggression, war crimes and crimes against humanity; sentenced to life in prison. Was released from prison in 1957 and died in 1959.

            Rudolf Hess- guilty of crimes against peace and wars of aggression; sentenced to life in prison

            Alfred Jodl- guilty on all four counts, sentenced to death by hanging, Hanged October 15, 1946.

            Ernst Kaltenbrunner- guilty of war crimes and crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946

            Wilhelm Keitel- guilty on all four counts, sentenced to death by hanging. Hanged October 15, 1946

            Constantin Freiherr von Neurath- guilty on all four counts, sentenced to 15 years in prison. Was released in 1954 and died in 1956.

            Franz von Papen- Not guilty

            Erich Raeder- guilty of crimes against peace, wars of aggression, and war crimes; sentenced to life in prison, release in 1955 and died in 1960.

            Joachim von Ribbentrop- guilty on all four counts, sentenced to death by hanging. Hanged October 15, 1946

            Alfred Rosenberg- guilty on all four counts, sentenced to death by hanging. Hanged October 15, 1946.

            Fritz Sauckel- guilty of war crimes and crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946.

            Hjalmar Schacht- Not guilty

            Baldur von Schirach- guilty of crimes against humanity; sentenced to and served twenty years in prison.

            Arthur Seyss-Inquart- guilty of wars of aggression, war crimes, and crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946

            Albert Speer- guilty of war crimes and crimes against humanity; sentenced to and served twenty years imprisonment.

            Julius Streicher- guilty of crimes against humanity; sentenced to death by hanging. Hanged October 15, 1946

Chapter 8: Punishments

On October 15th, the day the prisoners were sentenced to hang, history records that the convicts, minus Rosenberg, requested Bibles in their cell rooms. Three men who were practicing Catholics made confession and received communion, and all wrote or received letters and read to pass the time.

Goering suspected that the day was at hand by noting increased activity.  Though he was under almost constant watch, on the night of October 15, 1946, the night before his execution, he managed to poison himself by swallowing a cyanide pill. As guards and a prison doctor tried to revive him, he “he turned blue as though from the light of an ultraviolet lamp” and died. In his suicide note, Goring claimed that he had hidden the cyanide in his cell and on his person throughout the whole time he was in custody, but this is not widely believed. 

Though it remains a mystery how Goering was able to obtain and/or conceal the poison capsule that he would use to take his own life, a further examination of what was thought to be contraband-free prison cells revealed that the prisoners had a myriad of items that could be used to take their own lives, including sharpened steel, broken-off utensils, tied together shoelaces or cord, and other items which the prison guards and warden had believed were impossible for the prisoners to have concealed. Some theorized that someone had smuggled the poison pill to Goering during the trial, and two men even claimed to have done so. U.S. Army Lieutenant Jack G. Wheelis is often cited as the individual who gave Goering the poison; some believe that Goring managed to befriend Wheelis and used his charisma to charm Wheelis, eventually persuading him to slip him the poison. In 2005, U.S. Army Private Herbert Lee Stivers claimed that he unwittingly provided Goring cyanide at the behest of his German girlfriend, who asked him to give Goring a pen with hidden “medicine.”  However, Stivers’ claim has been treated skeptically by historians. 

While Goering escaped the hangman, the others sentenced to die did not. Thus, at 1:00 a.m. on October 16, 1946, the hangings took place with witnesses present, including a Bavarian premier brought in to be a German witness to the executions. Each of the men was offered a last word, as well as spiritual guidance, if they desired.  While most of the men faced their deaths with little outward emotion, Julius Streicher had to be dragged to the gallows, screaming and repeating “Heil Hitler” over and over again.

When all executions were complete, the bodies were transported to a secret location (later known to be a cemetery in Munich), where their bodies were burned and ashes scattered in a nearby river of which the location was also kept a secret.  In this way, it was hoped to prevent a shrine being made to the departed Nazi leadership.

Chapter 9: Subsequent Trials

The onset of Cold War tensions meant strained relations between the Allies in the wake of World War II, and the departure of Winston Churchill as Britain’s prime minister, the actions of and growing revelations about Josef Stalin, and the lack of funds from other nations meant that the United States would carry out the next 12 Nuremberg Trials independently.  These trials put various offenders on the stand, including the Doctors Trial (in which those who carried out medical experiments or operations that caused harm to Jewish patients were indicted),  a Judges Trial (which prosecuted judges and attorneys who implemented racial purity laws), and other trials that included officers who carried out murder and abuse in concentration camps. Other trials prosecuted high-ranking army officers and industrialists whose capital was used to fund the Nazi war machine.  The subsequent Nuremberg Trials tried 185 people and ended with 97 convictions, including 12 death sentences.[48]

At later Nuremberg trials, as in the trials held in Dachau and Belsen concentration camps, some Nazi defendants brought up their actions to preserve life as protestations of innocence. They argued that they had removed names of mentally incapacitated Jews from death lists, or that they had improved living conditions and treatment of prisoners in the camps.  In those cases, the Allies rejected the defendants’ arguments that the preservation of some lives while allowing, authorizing, or ordering many others to go to their deaths could not serve as proof of innocence.  Though it was allowed that these acts might contribute to a lesser sentence, the Nuremberg justices stated, “[W]e reject the opinion that someone might go unpunished for committing grace crimes because he hoped thereby to prevent worse crimes from being committed. Or that general positive behavior towards individual persons can excuse or justify crimes committed against anonymous masses.”[49] Jackson believed that the German defendants’ arguments of acts of mercy actually worked against them.  In having the power to rescue a person from confinement or death, they had admitted to having the power of condemnation as well.[50]

Chapter 10: The Legacy of the Trials

Dr. Donald Bloxham of the University of Edinburgh argues that in the rush to normalize after World War II, many nations were more concerned about their own problems and thus had little interest in the trials.[51]  Some historians have blamed this lack of interest on both the length of the trials and the lack of firsthand evidence provided by perpetrators. Winston Churchill himself came to believe in the wisdom of the Nuremberg proceedings only after the trials had concluded, saying to one of the British judges, “Rosenman, do you remember our talk at Chequers when I argued so strenuously against trying those Nazi war criminals? Now that the trials are all over, I think the President was right and I was wrong."[52]

President Truman said of the outcomes that "an undisputed gain coming out of Nürnberg is the formal recognition that there are crimes against humanity. . . . I am satisfied that the defendants received a fair trial. I hope we have established for all time the proposition that aggressive war is criminal and will be so treated."[53]

Given the passage of time, the Nuremberg Trials have been called a “milestone on the development of national Law,”[54] primarily because of the second article in the indictments, charging the accused with “crimes against peace”. The Germans objected to this charge as illegitimate, and they argued that no war leader had been previously tried for starting a war.  The defenders of the process claimed the authority came from the Kellogg-Briand Pact of the 1920s, an “international kiss of peace” that had outlawed war as a way of settling differences.  The pact was based on the idea that since war is carried out by individuals, individuals can be held responsible for their actions, at least the “individuals responsible for preparing war and making the relevant determinations on launching it.”[55] The outcomes of the trial established this as viable, seeking to set an International legal precedent.

While some scholars have argued that the precedent for trying leaders for war crimes was established earlier with charges against Kaiser Wilhelm II after World War I, others dismiss this notion and view the charges against the Kaiser as primarily political in nature, seeking not so much to actually bring about justice on behalf of the victims on World War I but to ensure that the blame clause that was part of the Versailles Treaty would be seen as legitimate.  In fact, the Dutch refused to extradite the Kaiser for trial, and the charges were not pursued.[56] Later, the Dutch refusal became one of the key reasons for the British reluctance to agree to an International tribunal. 

The Trials at Nuremberg established three groundbreaking precedents.  First, it called national aggression a “crime against peace”. As Bosch points out, “before the Tribunal's verdicts international law considered all wars ethically neutral and politically justifiable if a state deemed such belligerent action essential to its national interests”.[57] Secondly, it established the principle of personal responsibility. Since up to this point, “being a head of state created immunity from criminal liability… [and] decisions of political authorities were considered referable to an abstract entity which was independent, sovereign, and supreme in its own affairs,”[58] the idea that one could not hide behind “orders” but was responsible to some higher moral authority than the state was new to international jurisprudence.. Lastly, not just the top decision makers but persons whose action enable aggressive war to take place could be convicted by law.[59]

As a result, the Nuremberg Trials set an important legal precedent in striking down national sovereignty as the ultimate standard of conduct.  By bringing the leaders of an enemy nation to trial, without any members of that nation sitting in judgment, the Nuremberg Trials declared for the first time that an international expectation of morality trumped national sovereignty, and that claims of loyalty to one’s country could not be used to justify the behavior of individuals. Tomuschat drives this point home: “All of a sudden…it appeared that there was a common moral ground acknowledged by all states that demanded respect and could eventually be enforced through common institutions.”  Thus, the concept that an individual is responsible for his own actions and cannot claim that he or she was only acting in obedience to his nation is now “the unchallenged cornerstone of the entire edifice of integration criminal law”.

Many have looked to Nuremberg to help establish the patterns and procedures for International Law courts today. Of course, the Nuremberg Trials did not end genocide or racial hatred as many of the people involved with the trial had hoped, but Nuremberg is still considered by some to have accomplished great things for both the post-war world and modern society. As Douglas Cassell put it, “Nuremberg hauled humanity part way out of the muck, and reminded us of the need to strive for the divine if we are not to sink back in. The Nuremberg trial gave, and gives, hope. It set a new standard for the embrace of international law and morality…After Nuremberg, our struggle for civilization takes place on a higher plateau.”[60]

Still, the Nuremberg Trials, despite being seen by most as having brought about some justice for the millions killed during the Holocaust and the war, have been criticized by some.  Christian Tomuschat argues, “Nuremberg is not a tale of lorry and shining justice; historic occurrences are never free from at least some objectionable aspects”.[61] Some historical writers and political scientists criticize the nature and proceedings of the Nuremberg Trials, believing that a lack of legitimacy to the trial proceedings opens the convictions of the war criminals to question, or that it may even cause some to rise to the defense of the Nazis with sympathy.  Historian Michael Biddis, for example, believes that since Hitler and other key party leaders were dead by the time the trials began, this allowed many of the men on trial to seek to shift blame to those not present.[62] 

Some observers of International Law criticize the actions taken by the Allies as enforcing a double standard.  Specifically, Tomuschat has argued that the removal of ethnic Germans from their homes throughout Eastern Europe after the war constituted ethnic cleansing and were precisely the same crimes that the leaders of Germany were charged with at trial. In the same vein, the lack of “moral standing” of Stalinist Russia is also a criticism that some have leveled at the Nuremberg proceedings.  Though Russia had lost many men and suffered much in the war, they were hardly guiltless of many of the charges they leveled at German officials, including mass killing, bringing harm to their own people, and ethnic cleansing.[63] Christopher Dodd writes that his father, the right hand man to Robert Jackson, considered the participation of the Soviets the Achilles heel of the trial because “Nuremberg was intended to punish inhumane behavior, and the Soviets had committed dreadful deeds on an enormous scale.”[64]

One of the biggest points of criticism of the Nuremberg Trials was the new charge that came with the indictments prepared by the International Military Tribunal: crimes against peace.  Many felt that there was no legal basis for the charge, and others note that “soldiers had never before been prosecuted for the mere act of participating in a war, aggressive or otherwise. They could legitimately claim to be surprised to learn that they could be prosecuted for doing so.”[65] Since an aggressive act of war could now be said to be a crime against humanity, critics demanded to know where such acts were defined.  While defenders pointed to the ideas of war’s unacceptability in treaties and declarations, they could not show specific precedent for the charge. One of the prosecutors even admitted in closing arguments that German officials may have had no way of knowing that they could be held personally responsible for such crimes against peace, but, as the prosecutor stated, the extremity of the evil carried out by the defendants would bring about cries for justice and subsequent punishment so convincingly and so popularly among the 23 nations that came together in the London agreement that it would not matter.

One of the most outspoken critics of the Nuremberg Trials was a sitting U.S. Supreme Court Justice. Justice Harlan Fisk Stone, who would soon be named Chief Justice of the Supreme Court, sharply criticized Robert Jackson, who had also served as an associate justice. Stone said, “Jackson is away, conducting his high-grade lynching party in Nuremberg.  I don’t mind what he does to the Nazi’s, but I hate to see the pretense that he is running a court and proceeding according to common law.  That is a little too sanctimonious a fraud to meet my old-fashioned ideas.”[66] When he was asked as sitting Chief justice to perform the swearing-in for the members of the Americans who would sit on the International Military Tribunal, he pointedly refused: “I do not wish to appear, even in that remote way to give my blessing or that of the court on the proposed Nuremberg Trials”.[67]

In sum, the Nuremberg Trials, created to serve a need, and with a vision to provide both deterrence and precedents for generations to come, helped to bring closure to a war that had seen some of the worst atrocities on record. In allowing the defendants to take the stand in their own defense, they brought attention to both the terrible war crimes record of the Nazis, as well as the democratic sense of justice amongst the Allies. Just as in anything viewed in retrospect, errors were made, but the trials made history as well.

Bibliography

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Bessel, Richard. Germany 1945: From War to Peace. Harper Perennial, New  York: 2009.

Biddis, Michael. "Victor's Justice: The Nuremberg Trials." History Today 45, no. 5 (1995).

Bosch, William. Judgment on Nuremberg: American Attitudes toward the Major German War-Crime Trials.

Cassel Jr., Douglas W. “Judgment of Nuremberg: A Half-Century Appraisal”, The Christian Century. December 6, 1995.

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Lock, Tobias and Riem, Julia. “Judging Nuremberg: The Laws, the Rallies, the Trials”. German Law Journal Vol. 06 No. 12 (2005),

Marcuse, Harold. Legacies of Dachau: The Uses and Abuses of a Concentration Camp, 1933-2001. Cambridge: Cambridge University Press, 2001.

Marrus, Michael R. A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs 1945-1946. Cardozo Law Review: Volume 27: 4 (March 27-29, 2005).

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Nuremberg Trial Proceedings. Volume 22 Avalon Project, August 31, 1946

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Turley, Mark. From Nuremberg to Nineveh, 2008.

Tusa, Ann and John. The Nuremberg Trial, Chapter 4. Skyhorse Publishing, New York: 2010.

United States Holocaust Memorial Museum. “The Nuremberg Race Laws.” Holocaust Encyclopedia. http://www.ushmm.org/. Accessed on November 7, 2014].

Wechsler, Herbert. “The Issues of the Nuremberg Trials.” Political Science Quarterly, Vol. 62, No. 1 (March 1947).

Wyzanski, Charles. ‘Nuremberg: A Fair Trial? A Dangerous Precedent? The Atlantic Magazine, April 1, 1946.

Wyzanski, Charles. “Nuremberg in Retrospect”. The Atlantic Magazine. December 1, 1946.

[1] Avalon Project at Yale Law School, "The Moscow Conference; October 1943” Lillian Goldman Law Library.  http://avalon.law.yale.edu/wwii/moscow.asp

[2] Ibid.

[3] Ibid.

[4] Biddis, Michael. "Victor's Justice: The Nuremberg Trials." History Today 45, no. 5 (1995).

[5] Dodd, Christopher J., and Larry Bloom. Letters from Nuremberg: My Father's Narrative of a Quest for Justice. New York: Three Rivers Press, 2008. 33. 

[6] Tusa, Ann, and John Tusa. The Nuremberg Trial. Chapter 4. New York: Skyhorse Pub., 2010.

[7] Dodd,  32.

[8] Bosch, William. Judgment on Nuremberg: American Attitudes toward the Major German War-Crime Trials .23.

[9]Wechsler, Herbert. “The Issues of the Nuremberg Trials.” Political Science Quarterly, Vol. 62, No. 1 (March 1947). p. 11

[10] Ibid.

[11] United States Holocaust Memorial Museum. “The Nuremberg Race Laws.” Holocaust Encyclopedia. http://www.ushmm.org/. Accessed on November 7, 2014].

[12] Bosch, William. Judgment on Nuremberg: American Attitudes toward the Major German War-Crime Trials

[13] Qtd. in Marrus, Michael R. A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs 1945-1946. Carozo Law Review: Volume 27: 4 (March 27-29, 2005).

[14] Ibid. p. 1656.

[15] Lock, Tobias and Riem, Julia. “Judging Nuremberg: The Laws, the Rallies, the Trials”. German Law Journal Vol. 06 No. 12 (2005), p.  1822.

[16] Wechsler, p. 13.

[17] Dodd, p. 31.

[18]   Lock, Tobias and Riem, Julia. pp. 1821.

[19] Wyzanski, Charles. ‘Nuremberg: A Fair Trial? A Dangerous Precedent? The Atlantic Magazine, April 1, 1946.

[20] Ibid.

[21] Ibid.

[22] Wyzanski, Charles. “Nuremberg in Retrospect”. The Atlantic Magazine. December 1, 1946.

[23] Lock, Tobias and Riem, Julia. “Judging Nuremberg: The Laws, the Rallies, the Trials”. German Law Journal Vol. 06 No. 12 (2005), pp. 1819-1832.

[24] Dodd, p. 34.

[25] Qtd. in Meltzer, Bernard. “Robert H. Jackson: Nuremberg’s Architect and Advocate”, Albany Law Review, January 2005.

[26] Dodd, 38-42.

[27] Dodd, 42.

[28] Dodd, 38.

[29] Qtd. in Tusa, Ana and Tusa John.

[30] Tomuschat, Christian. “The Legacy of Nurmeberg”. Journal of International Criminal Justice 4, (2006). P. 833

[31] Bessel, Richard. Germany 1945: From War to Peace. Harper Perennial, New  York: 2009.

[32] Jackson, Robert, qtd. in Dodd, Christopher. Letters from Nuremberg: My father’s Narrative of a Quest for Justice. Crown Publishing, New York: 2007.

[33] Qtd. in Joe J. Heydecker and Johannes Leeb, The Nuremberg Trial: A History of Nazi Germany as Revealed through the Testimony at Nuremberg, trans. R. A. Downie, ed. R. A. Downie (Cleveland, OH: World Publishing, 1962), 361.

[34] Dodd, 34-5.

[35] Tusa, Chapter 7.

[36] Gaiba, Francesca. The Origins of Simultaneous Interpretation: The Nuremberg Trial. University of Ottawa Press, Ottawa, 1998. P. 32-35

[37] Ibid.

[38] Qtd. in Gaiba, Francesca. The Origins of Simultaneous Interpretation: The Nuremberg Trial. University of Ottawa Press, Ottawa, 1998. P. 34.

[39]

[40] Johnson, Scott and Hinderaker, John. “Guidelines for Cross-Examination: Lessons from the Cross-Examination of Hermann Goering” Bench and Bar of Minnesota. Vol. 59 No 9 (October 2002).

[41] Dodd, 43.

[42] Ibid., 46-50.

[43] Marcuse, p.104

[44] Dodd, 52-59.

[45] Nuremberg Trial Proceedings Volume 22 Avalon Project, August 31, 1946

[46] Joe J. Heydecker and Johannes Leeb, The Nuremberg Trial: A History of Nazi Germany as Revealed through the Testimony at Nuremberg, trans. R. A. Downie, ed. R. A. Downie (Cleveland, OH: World Publishing, 1962), 372-373.

[47] Ibid., 374.

[48] The History Channel, The Nuremberg Trials

[49] Marcuse, Harold. Legacies of Dachau: The Uses and Abuses of a Concentration Camp, 1933-2001.Cambridge University Press, New  York: 2001. P. 105

[50] Ibid.

[51] Lock and Riem, p. 1822.

[52] Bosch, 27.

[53] Ibid.

[54] Tomuschat, Christian. “The Legacy of Nurmeberg”. Journal of International Criminal Justice 4, (2006). P. 830.

[55] Ibid., 833.   

[56] Ibid., 831.

[57] Bosch, 14.

[58] Ibid.

[59] Ibid. , 15.

[60] Cassell, Douglas.

[61] Ibid., 837.

[62] Ibid.

[63] Ibid., 834

[64] Dodd, p.8.

[65] Cassel Jr., Douglas W. “Judgment of Nuremberg: A Half-Century Appraisal” The Christian Century December 6, 1995.

[66] Qtd.in Turley, Mark. From Nuremberg to Nineveh, 2008.

[67] Qtd, in Mason, Thomas Alpheus. Harland Fisk Stone: Pillar of the Law Archon Books, 1968.