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Volume 19, Fall 2006           
Nuremberg Trials 60th Anniversary
Background and Preparation for the Nuremberg Trials

Section 1
Background and Preparation
Trial Chronology
Formulation of International Law
Preparation of the Palace of Justice
Translations at the International Military Tribunal
Section 2
Proceedings of the International Military Tribunal
Section 3
Twelve Subsequent Trials

In order to understand the Nuremberg Trials readers need to have some background on the Holocaust; therefore, a brief summary of the Holocaust follows.

The Holocaust (1933-1945)

Between 1933 and 1945, the Third Reich led by the Nazi Party and the Fuhrer Adolf Hitler adopted policies of aggressive war and persecuted minorities, the Jews in particular. The years before World War II, 1933-9, witnessed the steady erosion of rights for Jews and other Germans not considered pure Aryans, and in November 1938 a widespread pogrom resulted in massive property loss and the arrest and detention of almost 30,000 Jewish males. Less than a year later, the German Army invaded Poland which precipitated the outbreak of World War II that lasted until the spring of 1945 in the West and the late summer of 1945 in the Far East.

The world community was shocked to learn what the Nazi regime had done to Jews and other minorities when Allied Powers liberated concentration camps and the death camps in 1945, at the end of World War II. The condition of surviving inmates revealed a cruelty the world had never before witnessed and the heaps of corpses left to rot in freight cars or incinerators of the crematoria were beyond the imagination of many. The radio commentator Edward R. Murrow warned listeners that his broadcast from Buchenwald concentration camp on April 15, 1945, would not be pleasant listening: "If you are at lunch or have no appetite to hear what Germans have done, now is a good time to switch off the radio, for I propose to tell you of Buchenwald:"

There surged around me an evil-smelling stink, men and boys reached out to touch me. They were in rags and the remnants of uniforms. Death already had marked many of them, but they were smiling with their eyes. I looked out over the mass of men to the green fields beyond, where well-fed Germans were ploughing.

[I] asked to see one of the barracks. It happened to be occupied by Czechoslovaks. When I entered, men crowded around, tried to lift me to their shoulders. They were too weak. Many of them could not get out of bed. I was told that this building had once stabled 80 horses. There were 1200 men in it, five to a bunk. The stink was beyond description . . . .

In the aftermath of these revelations, the main questions on the minds of Allied leaders were the following:
  • Who was to be held accountable for these acts?

  • How should justice be meted out to those responsible?
Background to the Creation of the
International Military Tribunal at Nuremberg

Moscow and Yalta Conferences
All during the World War II at various high level conferences in Moscow, Bermuda, and Yalta, the leaders agreed that something should be done to demonstrate world censure of the Nazi aggression and mistreatment of civilians and POWs. The Allied leaders at Moscow and Yalta had concluded that there must be some form of punishment of the war criminals responsible for breaking the peace of Europe and atrocities against civilian populations and prisoners of war.

During the Moscow Conference in November 1943, representatives vowed that there would be punishment of the major war criminals. At the Yalta Conference (also known as the Crimea Conference), in February 1945, representatives of Great Britain, the United States, and the Soviet Union maintained that it was their purpose to destroy German militarism and Nazism and to insure that Germany would never again be able to disturb the peace of the world. Yet there was no definitive action taken as to how this would be implemented.

How Should those Responsible be Punished?
There were varying responses from world leaders:
  • Sir Winston Churchill, Prime Minister of Great Britain during the war, felt strongly that the top Nazis should be immediately executed with no trials. He feared that a long drawn out judicial process might only bring attention and possible sympathy for the Nazi leadership.

  • Joseph Stalin preferred show trials such as those conducted during the Great Purge of the 1930s.

  • President Franklin Roosevelt Initially, Roosevelt was inclined to follow Churchill's ideas of summary justice but he eventually agreed with key advisers in his administration that emphasized the need for a judicial process and outlined how such a proceeding could be organized in an International Military Tribunal. Roosevelt and his successor, Harry S. Truman, insisted that the rule of law be observed with trials that provided for counsel for the defense as well as ample opportunity for the prosecution to present the evidence.
Lt. Colonel Murray C. Bernays's Response

In late 1944 Lt. Colonel Murray C. Bernays, a naturalized American Jew of Lithuanian origin, and a graduate of Harvard Law School, who was heading head up the investigation of Nazi war crimes against U.S. servicemen, produced a document that was critical of the American policy on prosecuting war criminals. Bernays argued that there must be judicial proceedings and that leading Nazi war criminals should be charged with conspiracy to commit crime. Bernays also argued that certain Nazi organizations such as the SS, the Nazi Party, and the Gestapo should be indicted, not just individual leaders. It was not necessary to indict every member of the criminal organizations, but representative individuals in the organizations. Once the organization was tried and convicted, an individual member could be considered a coconspirator and given a summary trial by the Allies. Leading officials in the Roosevelt administration endorsed Bernays' ideas of conspiracy organizations in November 1944.

Colonel Bernays

Winston Churchhill

Joseph Stalin
President Harry Truman

Rosenman Sent to England and United Nations for Trail Agreement

After the Yalta Conference, President Franklin Roosevelt sent Judge Samuel Rosenman to Great Britain to garner British support for a trial for war criminals in conformity with agreements made at Yalta. Rosenman was on this mission when Franklin Roosevelt died on April 12, 1945. Harry S. Truman, Roosevelt's successor, requested that Rosenman continue his efforts by going to San Francisco for the United Nations Conference on International Organization. Associate Supreme Court Justice Robert H. Jackson assisted Rosenman in drafting a document for San Francisco. During the San Francisco conference, Rosenman obtained general agreement for a trial of major war criminals by an International Military Tribunal and the establishment of a committee of representatives from each of the four governments to prepare and prosecute a case.

Judge Samuel I. Rosenman

Special Counsel to
President Roosevelt, 1943-45 and to
President Truman, April 12, 1945 -
February 1, 1946

Truman Designates Justice Jackson

On May 2, 1945, President Truman issued an executive order that officially designated Justice Robert H. Jackson to act as the representative for the United States in drafting the protocol for the International Military Tribunal and the chief of counsel in preparing and prosecuting charges of atrocities and war crimes against leaders of the Axis powers. He was authorized to select personnel from offices and agencies of the government to assist him and was directed to cooperate with any foreign government to the extent deemed necessary by him to carry out the duties delegated to him.

Robert Jackson

Procedures and Form of the Trials

Disagreements arose about procedures and form of the trials because the Anglo-American and continental legal systems were very different. As the historian Robert Gellately explains:

. . . The United States and Great Britain have an adversarial system, whereby relatively open cases go to trial, evidence is presented in court, and witnesses, sometimes also the accused, are cross examined under oath by defense lawyers and the prosecution who face each other in court and fight it out. On the European continent, however, there is more of an inquisitorial system, in which the investigative work is done by a magistrate who puts together a dossier based on the evidence. If a charge is warranted, copies of the dossier are given to the court and the accused. During the trial, it is the judges who decide whether to hear further testimony. It is they who question witnesses, but rarely cross-examine the accused, who may or may not make a statement at the end of the trial. The Soviet judge at Nuremberg, whose participation in the notorious show trials of the 1930's in Moscow was well known in the West, asked with some consternation at one of the last pre-Nuremberg meetings in 1945, "What is meant in English by cross-examine?"

In the final analysis, the English and Americans prevailed on the procedures for the trials. Nevertheless, certain basic rights for defendants in Anglo-American courts were not fully accorded the Nazi war criminals. For example, the accused could not invoke the Fifth Amendment which would have permitted them to refuse to answer a question on the grounds that doing so might tend to incriminate them.

The fifteen sessions at London were tense because of these fundamental differences. Early in the negotiations, Francis Shea, one of Jackson's assistants, reflected in his diary.

I doubt that the bare description gives any real feeling of the atmosphere. I was on tenterhooks throughout and so was Bill Whitney. The Justice seemed to be making a show of force, and I had real fear during the morning session that the result might well be to prejudice the chances of the agreement. . . . Bill and I both urged the Justice [Justice Jackson] to take it easy.

The London Agreement and Charter

On August 8, 1945, the London Agreement was announced, consisting of two major parts: The Agreement and the Charter.

The Agreement called for the establishment of an International Military Tribunal in Nuremberg for the trial of war criminals whose offenses had no particular geographical location and provided that the constitution, jurisdiction, and functions of the Tribunal should be those set out in the annexed Charter. Provision was made for the governments that comprised the United Nations to adhere to the Agreement.

The Charter created the International Military Tribunal in Nuremberg to provide a just and prompt trial and punishment of the major war criminals of the European Axis. The Tribunal was to have four members, each with an alternate. One member and one alternate were to be appointed by each of the original signatories. The presence of all four members or the alternate for any absent member was necessary to constitute a quorum. The members of the Tribunal were to decide among themselves on who would serve as the president. Decisions were to be by majority vote, with the vote of the president declining in case of ties, except that convictions and sentences were to require the affirmative votes of at least three members.

Appointment of Chief Prosecutors

Each signatory of the Agreement was to appoint a chief prosecutor, and the prosecutors were directed to act as a committee to decide upon the person to be tried, and for approving an indictment and lodging it with the Tribunal.

Rights of the Defendants

Provisions were made to assure a fair trial to the accused. They were to be served copies of the indictment in a language understood by the accused. Defendants had the right to conduct their own defense or to have the assistance of counsel and had the right to present evidence in their own behalf and had the right to cross examine witnesses called by the prosecution.

Court Proceedings

The Nuremberg Tribunal was accorded all powers necessary for carrying out a proper trial. Procedures were to be put in place that would assure that all evidence of probative value would be admitted. All official documents were to be produced, and all court proceedings conducted in English, French, and Russian, and in the language of the defendant.

Judgments of Nuremberg Trials to be Final

The judgment of the Nuremberg Tribunal as to the guilt or innocence of a defendant was to be final and not subject to review. The Tribunal had the authority to impose a sentence of death or other sentences on the persons convicted. In those cases where defendants were found guilty, sentences were to be carried out in compliance with orders of the Control Council for Germany, which had the power to reduce or alter sentences but could not increase the severity of the sentence handed down.

Questions following Background:

  1. Crucial meetings took place in London in the summer of 1945 to determine how the Allies would create an international tribunal to try the principle war criminals of Nazi era. Why do you think the representatives had such difficulty coming to agreement on the methods for trying war criminals? What were the possible consequences of the trial?

  2. From your knowledge of the role Nuremberg played during the Nazi era, why do you think Nuremberg was an appropriate selection for the location of the war crimes trials?

  3. What are the similarities and differences between the Nuremberg Trials and the trial of Saddam Hussein in Baghdad? Explain.
The Nuremberg Trials and their Legacy

Today, six decades after the trials, people from all walks of life acknowledge the significance of these trials. Even those who criticize the procedures agree that trials were essential for bringing closure to World War II and for reminding the world of the evil that prevails if basic fundamental respect for all human life is disregarded. Of primary importance, the Nuremberg Trials remind all of us, in whatever generation, that individuals are responsible for their actions and are to be held accountable for actions that threaten or harm the lives of others.

Sir Norman Birkett, Alternate Judge for Great Britain at the International Military Tribunal at Nuremberg, January 20, 1946, explained:

The thing that sustains me is the knowledge that this trial can be a very great landmark in the history of International Law. There will be a precedent of the highest standing for all successive generations, and aggressor nations great and small will embark on war with the certain knowledge that if they fail they will be held to grim account.

Dean Jan Colijn of The Richard Stockton College of New Jersey argues:

In popular history, the Nuremberg Trials arguably provide a sense of some closure to World War II. Crimes were punished. The allied victors in the war and the Nazi victims can accept that some kind of justice was done to the Nazi leadership, responsible for a wide variety of war atrocities, central among which towers the carnage of the Holocaust. That justice was, of course, incomplete. Thousands upon thousands of lesser war criminals went unpunished because documentation was lost, victims were dead or because it was deemed politically inexpedient to mete out justice across the board (that is how many Nazi collaborators in occupied territories escaped a just fate).

Franklin Littell, Distinguished Professor of Holocaust and Genocide Studies at the Richard Stockton College of New Jersey, explains:

Military historians refer to the American Civil War as the first modern war. The chief characteristic of modern war is the fact that civilian casualties far outnumber the losses of those in uniform. By the time of the Second World War, the safest place to be was in uniform.

The major significance of the Nuremberg Trials was the fact that the prosecution took the time and effort to hold them and to follow the formalities of a legitimate trial: lawyers for the accusation and lawyers for the accused. Stalin wanted the Nazi leaders strung up at the nearest telephone pole, and the French took a walk.Only the Americans, with the quiet support from the British, insisted on due process of law.

Why Nuremberg?

Nuremberg is an age old city in Germany. During the Nazi era it became a center for Nazi Party Rallies where Hitler and other Nazi officials would announce major policies. Particularly important were the rallies for the Hitler Youth that took place in Nuremberg.

Figure A

Nazi Rally in Nuremberg

Nazi Rally in Nuremberg

After World War II when the victorious Allied Powers considered a place for trying the major war criminals, Nuremberg seemed an appropriate location. Not only did it have the historical association with the rise of the Nazi Party, but the Palace of Justice, which contained space for courtrooms and a prison for defendants, was sufficiently intact that it could be renovated for the trials.

Also, if one studies the map of how the allies divided Germany into sectors, it becomes apparent that Nuremberg fell within the American zone of occupation. Since several leading American politicians and jurists pressed for trials of war criminals to take place, the selection of Nuremberg in the American zone seemed a logical location.

After World War II, Nuremberg was the seat of two sets of trials.

1) The International Military Tribunal (IMT)

First was the International Military Tribunal (IMT) consisting of judges and prosecutors from the four victorious powers, Great Britain, the United States, France and the Soviet Union. Twenty-one defendants were examined at the International Military Tribunal that lasted between November 20, 1945 and October 15-16, 1946.

2) The Twelve Subsequent Trials

Nuremberg also was the seat of twelve subsequent trials of war criminals conducted by judges and prosecutors from the United States. Since Nuremberg fell within the American zone of occupation, it was convenient to continue to use the Palace of Justice in Nuremberg for the subsequent trials between December 1946 and the spring of 1949. The twelve subsequent trials at Nuremberg focused on individuals involved in professions and military leadership essential to the operation of the Third Reich. The Allied Powers in the other zones of occupation also conducted subsequent investigations of Nazi war criminals but they were not as extensive or elaborate as those held under American auspices.

Focus of the Trials

Thus, the word Nuremberg stands for both the place and for the trials after World War II. While many in the twenty-first century tend to equate Nuremberg with trials about the Holocaust and the crimes against the Jews, the great majority of the International Military Tribunal and the Twelve Subsequent Trials dwelled primarily on the aggressive war conducted by Nazi Germany rather than the assault on the Jews and other non-Aryan minorities.

Questions to consider and possible classroom activities before learning details of the Nuremberg Trials:

Look up Nuremberg on the internet. What made it such a well known city in Germany? Why do you think the Nazis selected it for so many national party events?
  • Look up Nuremberg on the internet. What made it such a well known city in Germany? Why do you think the Nazis selected it for so many national party events?

  • Why do you think correspondents such as Edward R. Murrow felt it so imperative that the details of the concentration camps be reported even though they feared such reports would be considered distressful if not sickening for their audiences?

  • Allied soldiers who came upon the concentration camps at the end of the war were shocked. Discuss why so many of these soldiers did not speak or write about their experiences in these camps for many years after World War II. Indeed, even to this day there are liberators who refuse to talk about what they witnessed.

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