Nuremberg trials

Aron Trainin (center, with mustache) speaks at the London Conference

Aerial view of the Palace of Justice in 1945, with the prison attached behind it

Ruins of Nuremberg, c. 1945

At the London Conference, held from 26 June to 2 August 1945, representatives of France, the Soviet Union, the United Kingdom, and the United States negotiated the exact form that the trial would take. Until the end of the negotiations, it was not clear that any trial would be held at all, due to acrimonious disputes over fundamental matters; the American delegation threatened to walk out.[19]

The Nuremberg Charter upended the traditional view of international law by holding individuals, rather than states, responsible for breaches of international law.[20][21] The offenses that would be prosecuted were crimes against peace, crimes against humanity, and war crimes.[21] At the conference, it was debated whether wars of aggression were prohibited in existing international customary law; regardless, before the charter was adopted there was no law providing for criminal responsibility for aggression.[22][23] War crimes already existed in international law as criminal violations of the laws and customs of war.[24][25] Although a novel construct, "crimes against humanity" covered acts that were already prohibited by the laws of most countries.[26]

The final version of the charter only gave the court the ability to punish those crimes against humanity that had been committed "in connection with any crimes within the jurisdiction of the Tribunal".[27] The United States, in particular, wanted to avoid countenancing any rule that would give an international court jurisdiction over a government's treatment of its own citizens.[28] The charter limited the jurisdiction of the court to Germany's actions because the Allies did not want to answer to an international court for their own actions;[29] only Germans could be tried.[30] Article 7 prevented the defendants from claiming immunity for their actions under the act of state doctrine,[31] and the plea of acting under superior orders was left for the judges to decide.[32] The trial was held under modified common law.[33]

The negotiators decided that the tribunal's permanent seat would be in Berlin, while the trial would be held at the Palace of Justice in Nuremberg.[34][35] Located in the American occupation zone, Nuremberg was a symbolic location as the site of Nazi rallies. The Palace of Justice was relatively intact but needed to be renovated for the trial due to bomb damage; it had an attached prison where the defendants could be held.[36][35] On 8 August, the Nuremberg Charter was signed in London.[37] Nineteen states ratified the charter and were admitted as observers.[38]

In early 1946, there were a thousand employees from the four countries' delegations in Nuremberg, of which about two-thirds were from the United States.[39] Besides legal professionals, there were many social-science researchers, psychologists, translators and interpreters, and graphic designers, the latter to make the many charts used during the trial.[40] Each state appointed a prosecution team and two judges, one being an alternate.[41][42]

The United States' chief prosecutor was Supreme Court justice Robert H. Jackson.[43] The United States prosecution believed that Nazism was the product of a German deviation from Western history (the Sonderweg thesis) and sought to correct this deviation with a trial that would serve both retributive and educational purposes.[44] As the numerically strongest delegation, it would take on the bulk of the prosecutorial effort.[45] At Jackson's recommendation, the United States appointed judges Francis Biddle and John Parker.[46] The British chief prosecutor was Hartley Shawcross, assisted by David Maxwell Fyfe, who had been the attorney general in Churchill's government.[47] Although the chief British judge, Sir Geoffrey Lawrence (Lord Justice of Appeal), was the nominal president of the tribunal, in practice Biddle exercised more authority.[46]

The French prosecutor, François de Menthon, had just overseen trials of the leaders of Vichy France;[37] he resigned in January 1946 and was replaced by Auguste Champetier de Ribes.[48] The French judges were Henri Donnedieu de Vabres, a professor of criminal law, and alternate Robert Falco, who had represented France at the London Conference.[49][48] The French government tried to appoint staff who were not tainted by collaboration with the Vichy regime; some appointments were of those who had been in the French resistance.[50][51] Because the Soviet Union expected a show trial, its appointees were familiar with this form.[52] Initially, it was planned that Iona Nikitchenko, who had presided over the Moscow trials, would serve as the chief prosecutor; but he was appointed as a judge and replaced by Roman Rudenko, a show trial prosecutor[53] chosen for his skill as an orator.[54] The Soviet judges and prosecutors were not permitted to make any major decisions without consulting a commission in Moscow led by Soviet politician Andrei Vyshinsky; the resulting delays hampered the Soviet effort to set the agenda.[52][46] The Soviet personnel's lack of knowledge of English, lack of interpreters, and unfamiliarity with diplomacy and international institutions also limited their influence.[55]

Handing over the indictment to the tribunal, 18 October 1945

The work of drafting the indictment was divided up by the national delegations. The British worked on putting together the aggressive war charge; the French and Soviet delegations were assigned the task of covering crimes against humanity and war crimes committed on the Western Front and the Eastern Front, respectively. The United States delegation outlined the overall Nazi conspiracy and criminality of Nazi organizations.[56][57] After this division of formulating the charges, the British and American delegations decided to work jointly in drafting the charges of conspiracy to wage aggressive war. On 17 September, the various delegations met to discuss the indictment.[58]

The charge of conspiracy was spearheaded by the United States prosecution and was less popular with the other Allies.[59] The conspiracy charge was used to charge the top Nazi leaders, as well as bureaucrats who had never killed anyone or perhaps even directly ordered killing. It was also a way to indirectly charge crimes committed before the beginning of World War II, which the charter placed outside the court's jurisdiction.[60] Conspiracy charges were especially central to the cases against propagandists and industrialists; the former were charged with providing the ideological justification for war and other crimes, while the latter were accused of economic mobilization without which no war would have been possible.[61]

The problem of translating the indictment and evidence into the three official languages of the tribunal, as well as German, was severe due to the scale of the task and difficulty in recruiting interpreters, especially in the Soviet Union.[62] Vyshinsky demanded extensive corrections to the crimes-against-peace charges, especially regarding the role of the German–Soviet pact in starting World War II.[63] Jackson also rewrote the indictment with the intent of keeping the proceedings under American control by separating out an overall conspiracy charge from the other three charges.[64] The division of labor, and the haste with which the indictment was prepared, resulted in duplication, imprecise language, and lack of attribution of specific charges to individual defendants.[65]

The defendants in the dock

Some of the most prominent Nazis—Adolf Hitler, Heinrich Himmler, and Joseph Goebbels—had committed suicide and therefore could not be tried.[66][67] The prosecutors wanted to try representative leaders of German politics, economy, and military; and the Americans had a list of 70 names at the London Conference.[68] Most of the defendants had surrendered to the United States Army.[69][70]

The defendants, who were largely unrepentant,[71] included former cabinet ministers: Franz von Papen (who had brought Hitler to power); Joachim von Ribbentrop (foreign minister), Wilhelm Frick (interior minister), and Alfred Rosenberg, minister for the occupied eastern territories.[67] Also prosecuted were leaders of the German economy, such as Gustav Krupp (of the conglomerate Krupp AG), former Reichsbank president Hjalmar Schacht, and economic planners Albert Speer and Walther Funk, along with Speer's subordinate and head of the forced labor program, Fritz Sauckel.[72][73] The military leaders were Hermann Göring, Wilhelm Keitel, Alfred Jodl, Erich Raeder, and Karl Dönitz.[69] Also on trial were propagandists Julius Streicher and Hans Fritzsche; Rudolf Hess, Hitler's deputy who had flown to Britain in 1941; Hans Frank, governor-general of the General Governorate of Poland; Hitler Youth leader Baldur von Schirach; Arthur Seyss-Inquart, Reich Commissioner for the Netherlands; and Ernst Kaltenbrunner, the leader of Himmler's Reich Main Security Office.[74]

Although the list of defendants was finalized on 29 August,[75] as late as October, Jackson demanded changes and expansion of the defendants list, but this was rejected.[76] Of the 24 men indicted, Martin Bormann was tried in absentia, as the Allies were unaware of his death; Krupp was too ill to stand trial; and Robert Ley committed suicide.[77] Göring, the most famous surviving Nazi, headlined the trial.[67] Former Nazis were allowed to serve as counsel[45] and by mid-November all defendants had lawyers. The defendants' lawyers jointly appealed to the court, claiming it did not have jurisdiction against the accused; but this motion was rejected. The defense lawyers saw themselves as acting on behalf of their clients, but also the German nation;[78] they prioritized the Wehrmacht's reputation over the lives of the generals on trial.[79] Initially, the Americans had planned to try fourteen organizations and their leaders, but this was narrowed to six: the Reich Cabinet, the Leadership Corps of the Nazi Party, the Gestapo, the SA, the SS and the SD, and the General Staff and High Command of the Wehrmacht.[80][81] The aim was to have these organizations declared criminal, so that their members could be tried expeditiously for membership in a criminal organization.[81] Senior American officials believed that convicting organizations was a good way of showing that not just the top German leaders were responsible for crimes, without condemning the entire German people.[82]

United States Army clerks with evidence

Over the summer, all of the national delegations struggled to gather evidence for the upcoming trial. Institutional rivalries hampered the search.[83] The American and British prosecutors focused on documentary evidence and affidavits rather than testimony from survivors, as the latter was considered less reliable and less liable to accusations of bias, but at the expense of reducing public interest in the proceedings.[84][85] The American prosecution drew on reports of the Office of Strategic Services and information provided by the YIVO Institute for Jewish Research and the American Jewish Committee.[86] Overall, the prosecution called 37 witnesses compared to the defense's 83, not including 19 defendants who testified on their own behalf.[85] The prosecution examined 110,000 captured German documents[40] and entered 4,600 into evidence,[87] along with 30 kilometres (19 mi) of film and 25,000 photographs.[88]

The charter allowed the admissibility of any evidence deemed to have probative value, including depositions.[89] Because of the loose evidentiary rules, photographs, charts, maps, and films played an important role in making incredible crimes believable.[85] After the American prosecution flooded the trial with untranslated evidence, the judges insisted that all of the evidence be read into the record, which slowed the trial.[90][91] The bringing of conspiracy charges also slowed the trial, as the same evidence ended up being read out multiple times, when it was relevant to both substantive and conspiracy charges.[92]

On 21 November, Jackson gave the opening speech for the prosecution.[101] He described the fact that the defeated Nazis received a trial as "one of the most significant tributes that Power has ever paid to Reason".[102] Jackson's focus was on the aggressive war charge, which he described as the root of the crimes against humanity and of war crimes. He promoted an intentionalist view of the Nazi state and its overall conspiracy to commit all of the crimes mentioned in the indictment. The speech was favorably received by the prosecution, the tribunal, the audience, historians, and even the defendants.[103]

Much of the American case focused on the development of the Nazi conspiracy before the outbreak of war.[60] The American prosecution became derailed during attempts to provide evidence of the German annexation of Austria.[104] On 29 November, the prosecution was unprepared to continue presenting on the invasion of Czechoslovakia, and instead screened Nazi Concentration and Prison Camps. The film, compiled from footage of the liberation of Nazi concentration camps, shocked both the defendants and the judges, who adjourned the trial.[105] The American prosecutors were not any more effective when presenting documentary evidence on the conspiracy to commit crimes against humanity, and ended up reaching a "saturation point of horror" by their indiscriminate selection and disorganized presentation of evidence without tying it to specific defendants.[106][107] The Americans summoned Einsatzgruppen commander Otto Ohlendorf, who testified about the murder of 80,000 people by those under his command, and SS general Erich von dem Bach-Zelewski, who admitted that German anti-partisan warfare was little more than a cover for the mass murder of Jews.[108][109]

Evidence about Ernst Kaltenbrunner's crimes is presented, 2 January 1946

On 12 December, Shawcross gave the opening speech for the British.[110] Unlike Jackson, he attempted to minimize the novelty of the aggression charges.[111][112] The British case covered invasions, from that of Poland to that of the Soviet Union, which Shawcross covered in the second part of his speech;[113] these charges took three days to present, with Maxwell Fyfe detailing 15 treaties broken by Germany.[114]

In mid-December the Americans switched to presenting the case against the indicted organizations, while in January both the British and Americans presented evidence against individual defendants.[115]

From 17 January to 7 February 1946, France presented its charges and supporting evidence.[116] In contrast to the other prosecution teams, the French prosecution emphasized how Nazi ideology and pan-Germanism had led to the Nazis' crimes, and delved into the Sonderweg theory of Germany's development in the nineteenth century.[117] The French prosecutors, more than their British or American counterparts, emphasized the guilt of the German people;[118] they barely mentioned the charge of aggressive war and instead focused on forced labor, economic plunder, massacres, and Germanization.[119] Unlike the British and American prosecution strategy, which focused on using German documents to make their case, the French prosecutors took the perspective of the victims, submitting postwar police reports and calling eleven witnesses.[120] Ultimately, the French prosecution was unable to convince the court that Germanization was a crime against humanity, and incidents such as the German annexation of Alsace–Lorraine went unmentioned in the final verdict. The only part of the French charges that were accepted by the judges was the deportation of Jews from France and other parts of Western Europe.[121]

Roman Rudenko opens the Soviet case

On 8 February, the Soviet prosecution opened its case with a speech by Rudenko that covered all four prosecution charges, highlighting both aggressive war and the devastation of Eastern Europe[122] and listing many crimes committed by the German occupiers against the Soviet people.[123] The next week, the Soviet prosecution suddenly produced former field marshal Friedrich von Paulus, captured after the Battle of Stalingrad, as a witness and questioned him about the preparations for the invasion of the Soviet Union.[124] Paulus incriminated his former associates, pointing to Keitel, Jodl, and Göring as the defendants most responsible for the war.[125]

More so than other delegations, Soviet prosecutors showed the gruesome details of German mistreatment of prisoners of war and forced laborers, as well as the systematic murder of Jews in eastern Europe.[106] Although these aspects had already been covered by the American prosecution, Soviet prosecutors introduced new evidence from Extraordinary State Commission reports and interrogations of senior enemy officers.[126] Lev Smirnov presented evidence on the Lidice massacre in Czechoslovakia, adding that such destruction of villages had occurred throughout eastern Europe.[127] Evidence was presented on the murder of children, attempts to cover up atrocities,[128] systematic plunder of occupied territories, and confiscation or destruction of cultural heritage.[129] The Soviet prosecution also attempted to fabricate German responsibility for the Katyn massacre, which had in fact been committed by the Soviet Union. By early 1946, Western prosecutors were uneasy about the Katyn charge, although they never publicly rejected it for fear of casting the entire proceedings into question.[130] The defense presented evidence of Soviet responsibility,[131] and Katyn was not mentioned in the verdict.[132] The inclusion of Katyn in the charges undermined the credibility of Soviet evidence in general.[133]

External video
Atrocities Committed by the German Fascist Invaders in the USSR, 57 minutes; shown on 19 February 1946
Testimony of Abraham Sutzkever, 27 February 1946

Inspired by the films shown by the American prosecution, the Soviet Union commissioned three films for the trial: The German Fascist Destruction of the Cultural Treasures of the Peoples of the USSR, Atrocities Committed by the German Fascist Invaders in the USSR, and The German Fascist Destruction of Soviet Cities, using footage from Soviet filmmakers as well as shots from German newsreels.[134] The second film included footage of the liberation of Majdanek and the liberation of Auschwitz and was considered even more disturbing than the American concentration camp film.[135] The Soviet Union also called two Holocaust survivors as witnesses, Samuel Rajzman—a Treblinka survivor—and poet Abraham Sutzkever, who eloquently described the murder of tens of thousands of Jews from Vilna, although their testimony did not directly incriminate any of the defendants.[136][137] The Soviet prosecution case was generally well received and presented compelling evidence about the suffering of the Soviet people and the Soviet contribution to victory.[138]

Hermann Göring under cross-examination

A member of the Soviet delegation addresses the tribunal

From March to July 1946, the defense presented its counterarguments.[95] None of the defendants tried to assert that the Nazis' crimes had not occurred; instead, they attempted to divert blame from their own actions.[139] Some defendants denied their involvement in, or knowledge of, certain crimes,[140] even resorting to implausible lies.[141] The defendants tried to blame their crimes on Hitler, who was mentioned 1,200 times during the trial—more than the top five defendants combined. Other absent and dead men including Himmler, Reinhard Heydrich, Adolf Eichmann, and Bormann were also blamed.[142] In contrast, most defendants avoided incriminating each other.[143] Although a few defense lawyers inverted the arguments of the prosecution to assert that the Germans' authoritarian mindset and obedience to the state exonerated them from any personal guilt, most rejected such arguments.[144] Most defendants argued their own insignificance within the Nazi system, but Göring took the opposite approach, presenting himself as Hitler's loyalist and expecting that while he would be executed, the German people would eventually appreciate his loyalty.[145]

Despite the fact that the charter did not recognize a tu quoque defense, such arguments were repeatedly raised during the trial.[146] The Nuremberg Laws were compared to discriminatory laws in the United States.[146][147] Defense lawyer Alfred Seidl repeatedly tried to disclose the secret protocols of the German–Soviet pact.[146][148] Six defendants were charged with the German invasion of Norway, and their lawyers argued that this invasion was undertaken to prevent a British invasion; a cover-up prevented the defense from capitalizing on this argument.[87][149] United States admiral Chester Nimitz testified that the United States had used the same methods of submarine warfare that the German admirals were accused of; Dönitz's counsel successfully argued that this meant that such actions could not be crimes.[150] The judges barred most evidence on Allied misdeeds from being heard in court.[151]

In order to appease concerns about fair process, the defendants were allowed a free hand with their witnesses and a great deal of irrelevant testimony was heard.[152] The defendants' witnesses sometimes managed to exculpate them, but other witnesses—including Rudolf Höss, the former commandant of Auschwitz, and Hans Bernd Gisevius, a member of the German resistance—effectively incriminated the defendants.[153] Midway through the trial, Winston Churchill's Iron Curtain speech denouncing the Soviet threat delighted the defense.[87] Over the course of the trial, Western judges allowed the defendants additional leeway to denounce the Soviet Union, which was ultimately revealed to be a co-conspirator in the outbreak of World War II.[154] The United States controlled the prison where the defendants and some of the witnesses were held, and tried its best to shut the Soviets out of the proceedings.[155] In the context of the brewing Cold War, the trial became a means of condemning not only Germany but also the Soviet Union.[156]

On 31 August, closing arguments were presented.[157] Over the course of the trial, crimes against humanity and especially against Jews (who were mentioned as victims of Nazi atrocities far more than any other group) came to upstage the aggressive war charge.[158][136] In contrast to the opening prosecution statements, all eight closing statements highlighted the Holocaust; and the French and British prosecutors made this the main charge, as opposed to that of aggression.[159] During the closing statements, most defendants disappointed the judges by their lies and denial. Speer managed to distinguish himself from other defendants, giving the impression of apologizing, although without assuming personal guilt or naming any victims other than the German people.[160] On 2 September, the court recessed; and the judges retreated into seclusion to decide the verdict and sentences, which had been under discussion since June. The verdict was drafted by British alternate judge Norman Birkett. All eight judges participated in the deliberations, but the alternates could not cast a vote.[161][162]