NUREMBERG

 

The Nuremberg Trial was an experiment, almost an improvisation. For the first time the leaders of a major state were tried by the international community for conspiring –or causing- to perpetrate a whole series of crimes against humanity.

This trial was the foundation of modern international justice.

The idea of an international tribunal to try enemy leaders for war crime came very late on the scene. The allies expected to prosecute conventional war crimes, machine gunning of survivors of a sunken ship or torturers of prisoners. There were legal provisions for this but these did not cover the prosecution of military and civilian leaders for causing war and encouraging atrocity.

The greatest difficult arose over the issue of the treatment of civilians leaders. There was no precedent for judicial proceedings against them. Churchill proposed the idea of summary executions, i.e., to execute leaders when they were caught.

Except for Roosevelt, the US preferred a tribunal that reflected the Western notions of justice: notification to the accused of the charge, the right to be heard, and to call witnesses in defense.

The Soviet Union insisted that full penalty could also be imposed on German leaders after a trial.

With the death of Roosevelt, Harry Truman –a former small town judge- pressed for a trial.

In May 1945 the issue was an urgent agenda item.

The idea that the trial should be conducted before a military court reflected the prevailing convention that war crimes were a military affair, but in practice the larger part of the trial was organized and conducted by civilian lawyers and judges.

Robert H. Jackson was the prosecutor.

Soviets wanted the trial but treated it as if the outcome was already know, i.e., a show trial. French lawyers were unhappy with a tribunal whose main basis was to be common law. And the British accepted the idea of a trial with great reluctance. They remained skeptical that a proper legal foundation could be found in international law. The driving force behind the tribunal was the American prosecution team under Jackson.

The preparation of the tribunal showed that the trial was a political act rather than an exercise in law.

The choice of defendants was the product of political argument. The arbitrary test was: Do we want the man for making a success of our trial? If yes, we must have him.

They tried only a selection of German political and military leaders. There was disagreement in the interpretations of the power structure of the Third Reich. The final agreed list of 22 defendants represented a series of compromises. The idea of representation was legally dubious but it resolved many disputes about how large the eventual trial should be.

The prosecutors also arraigned a number of organizations with the hope that by declaring them criminal, further trials of individuals could be speeded up. Again, not quite legal. So, along with the 22 defendants, at Nuremberg stood metaphorically the SS, the SA, the Gestapo and the rest of the military high command and German Cabinet.

The main charge was conspiracy to wage  aggressive war, but this had never been defined as a crime in international law. War was regarded as legally neutral. Conspiracy was thought to catch everyone in the net, regardless of their actual responsibility for specific acts. The conspiracy was a common plan aimed at the establishment of complete domination of Europe and eventually the world.

This provoked an evidence problem. The US said the plan was Mein Kampf. Also, neither in France nor in the Soviet Union conspiracy was illegal, where each defendant had to be charged with a specific, identifiable crime in which defendant participated.

Terror and racism of the regime was outside the charge. So, a new category of crimes was agreed: crimes against humanity, which included the deliberate persecution and murder of Jews, Gypsies and Poles. But again, illegal. These crimes were not regarded as such under international law when committed. Actually, they had been considered internal affairs of the state and outside of the scope of international law.

This was retrospective justice, which was foreign to most legal traditions.

But the central purpose of the Tribunal was not to conform to existing principles of international law but to establish new rules of international conduct and agreed boundaries in the violation of human rights.

Four charges: (i) a common conspiracy to wage aggressive war, (ii) crimes against peace, (iii) war crimes, and (iv) crimes against humanity.

The trial last almost a year and it didn’t sustain popular interest. It was governed by political rather than by legal considerations. It was a show trial were Nazi leaders were exposed to public disapproval before execution.

There were legal problems raised by the trial. The provision of evidence was far from ideal. The conspiracy proved difficult to demonstrate.

The Nuremberg Trials were an experiment. There was clear international consensus among the victor powers that the perpetrators of aggression should be treated differently by the international community.

The choice of defendants and the definition of the charges were arbitrary in the extreme and political acts.

The international community needed new legal instruments to cope with these atrocities.

Before Nuremberg, war crime trials had been held at the national level under military law. The notion of individuals having concrete duties under international law –as opposed to national law- was a creation of Nuremberg.

The Tokyo trial in 1946 dealt with essentially similar crimes but it did not deal with issues of criminal organizations or with the question of the Japanese industrialists.