Nuremberg Trials

International Military Tribunal trial of war criminals at Nuremberg, December 10, 1945. Courtesy of National Archives
and Records Administration.

The Nuremberg Trials were a series of trials most notable for the prosecution of prominent members of
the political, military and economic leadership of Nazi Germany. The trials were held in the city of
Nuremberg,Germany, from 1945 to 1946, at the Nuremberg Palace of Justice. The first and best known of
these trials was the Trial of the Major War Criminals Before the International Military
Tribunal (IMT), which tried 24 of the most important captured leaders of Nazi Germany. It was held
from November 20, 1945 to October 1, 1946. The Nuremberg Trials were an attempt to bring to justice
those leaders of Nazi Germany who were not only responsible for World War II itself, but also
the Holocaust, perpetrated against millions of people of Central and Eastern Europe.
There was a second set of trials of lesser war criminals that was conducted under Control Council Law
No. 10 at the U.S. Nuremberg Military Tribunals (NMT), including the Doctors' Trial, among others.

Origin
Papers released on January 2, 2006, from the British War Cabinet in London have shown that as early as
December 1942, the Cabinet had discussed their policy for the punishment of the leading Nazis if
captured. British Prime Minister Winston Churchill had then advocated a policy of summary execution
with the use of an Act of Attainder to circumvent legal obstacles, and was only dissuaded from this by
pressure from the U.S. later in the war. In late 1943, during the Tripartite Dinner Meeting at the Tehran
Conference, the Soviet leader, Josef Stalin, proposed executing 50,000-100,000 German staff officers.
Not realizing that Stalin was serious, U.S. President Franklin D. Roosevelt humorously suggested that
perhaps 49,000 would do. Churchill denounced the idea of "the cold blooded execution of soldiers who
fought for their country." However, he also stated that war criminals must pay for their crimes, and that in
accordance with the Moscow Document, which he himself had written, they should be tried at the places
where the crimes were committed. Churchill was vigorously opposed to executions "for political
purposes."[1][2]
U.S. Treasury Secretary, Henry Morgenthau Jr., suggested a plan for the total denazification of Germany;
this was known as the Morgenthau Plan. The plan advocated the forced deindustralization of Germany,
along with forced labor and other draconian measures similar to those that the Nazis themselves had
planned for Eastern Europe. Both Churchill and Roosevelt supported this plan, and went as far as
attempting its authorization at the Quebec Conference in September 1944. However, the Soviet
Union announced its preference for a judicial process. Later, details were leaked to the public, generating
widespread protest. Roosevelt, seeing strong public disapproval, abandoned the plan, but did not proceed
to adopt support for another position on the matter. The demise of the Morgenthau Plan created the need
for an alternative method of dealing with the Nazi leadership. The plan for the "Trial of European War
Criminals" was drafted by Secretary of War Henry L. Stimson and the War Department. After Roosevelt
died in April 1945, the new president, Harry S. Truman, gave strong approval for a judicial process.
After a series of negotiations between the U.S., Britain, the Soviet Union, and France, details of the trial
were worked out. The trials were set to commence on November 20, 1945, in the city of Nuremberg.

Creation of the courts

At the meetings in Tehran (1943), Yalta (1945) and Potsdam (1945), the three major wartime powers,
the U.S., USSR, and the United Kingdom, agreed on the format of punishment to those responsible for
war-crimes during World War II. France was also awarded a place on the tribunal.
The legal basis for the trial was established by the London Charter, issued on August 8, 1945, which
restricted the trial to "punishment of the major war criminals of the European Axis countries". Some 200
German war crimes defendants were tried at Nuremberg, and 1,600 others were tried under the traditional
channels of military justice. The legal basis for the jurisdiction of the court was that defined by the
Instrument of Surrender of Germany, political authority for Germany had been transferred to the Allied
Control Council, which having sovereign power over Germany could choose to punish violations of
international law and the laws of war. Because the court was limited to violations of the laws of war, it did
not have jurisdiction over crimes that took place before the outbreak of war on September 1, 1939.
The restriction of trial and punishment by the international tribunal to personnel of the Axis countries has
led to accusations of victor's justice and that Allied war crimes could not be tried. It is, however, usual
that the armed forces of a civilized country [3] issue their forces with detailed guidance on what is and is
not permitted under their military code. These are drafted to include any international treaty obligations
and the customary laws of war. For example at the trial of Otto Skorzeny his defense was in part based on
the Field Manual published by the War Department of the United States Army, on October 1, 1940, and
the American Soldiers' Handbook.[4]
If a member of the armed forces breaks their own military code then they can expect to face a court
martial. When members of the Allied armed forces broke their military codes, they could be and were
tried, as, for example, at the Biscari Massacre trials. The unconditional surrender of the Axis powers was
unusual and led directly to the formation of the international tribunals. Usually international wars end
conditionally and the treatment of suspected war criminals makes up part of the peace treaty. In most
cases those who are not prisoners of war are tried under their own judicial system if they are suspected of
committing war crimes as happened the end of the concurrent Continuation War and led to the warresponsibility trials in Finland. In restricting the international tribunal to trying suspected Axis war
crimes, the Allies were acting within normal international law.

Location
The Soviet Union had wanted the trials to take place in Berlin, but Nuremberg was chosen as the site for
the trials for specific reasons:
It was located in the American zone (at this time, Germany was divided into four zones).
The Palace of Justice was spacious and largely undamaged (one of the few that had remained largely
intact through extensive Allied bombing of Germany). A large prison was also part of the complex.
Because Nuremberg had been appointed "City of the party rallies," there was symbolic value in making it
the place of the Nazi party's demise.

It was also agreed that France would become the permanent seat of the IMT and that the first trial (several
were planned) would take place in Nuremberg. Because of the Cold War, there were no subsequent trials.
Also, these trials were in Nuremberg since it was easily accessible.

Participants
Each of the four countries provided one judge and an alternate, as well as the prosecutors. The judges
were:
Colonel Rt Hon Sir Geoffrey Lawrence (British main and president)
Sir Norman Birkett (British alternate)
Francis Biddle (U.S. main)
John Parker (U.S. alternate)
Professor Henri Donnedieu de Vabres (French main)
Robert Falco (French alternate)
Major-General Iona Nikitchenko (Soviet main)
Lieutenant-Colonel Alexander Volchkov (Soviet alternate)
The chief prosecutors were Robert H. Jackson for the United States, Sir Hartley Shawcross for the UK,
Lieutenant-General R. A. Rudenko for the Soviet Union, and Franois de Menthon and Auguste
Champetier de Ribes for France. Assisting Jackson was the lawyer Telford Taylor and assisting Shawcross
were Major Sir David Maxwell-Fyfe and Sir John Wheeler-Bennett. Shawcross also recruited a young
barrister Anthony Marreco, who was the son of a friend of his, to help the British team with the heavy
workload. Robert Falco was an experienced judge who had tried many in court in France.

The main trial

Gring and Hess during trials

The International Military Tribunal was opened on October 18, 1945, in the Supreme Court Building
in Berlin. The first session was presided over by the Soviet judge, Nikitchenko. The prosecution entered
indictments against 24 major war criminals and six criminal organizationsthe leadership of the Nazi
party, the Schutzstaffel (SS) and Sicherheitsdienst (SD), the Gestapo, the Sturmabteilung (SA) and the
High Command of the German army (OKW).
The indictments were for:
Participation in a common plan or conspiracy for the accomplishment of crime against peace
Planning, initiating and waging wars of aggression and other crimes against peace
War crimes

Crimes against humanity

Throughout the trials, specifically between January and July 1946, the defendants and a number of
witnesses were interviewed by American psychiatrist Leon Goldensohn. His notes detailing the demeanor
and personality of the defendants survive. The death sentences were carried out Oct 16th 1946
by hanging using the standard drop method instead of long drop. The French judges suggested the use of
a firing squad for the military condemned, as is standard for military courts-martial, but this was opposed
by Biddle and the Soviet judges. These argued that the military officers had violated their military ethos
and were not worthy of the firing squad, which was considered to be more dignified. The prisoners
sentenced to incarceration were transferred to Spandau Prison in 1947.
The definition of what constitutes a war crime is described by the Nuremberg Principles, a document
which was created as a result of the trial. The medical experiments conducted by German doctors led to
the creation of the Nuremberg Code to control future trials involving human subjects, including the socalled Doctors' Trial.
Of the organizations the following were found not to be criminal:
Reichsregierung,
Oberkommando and Generalstab der Wehrmacht
SA (as most of its crimes were committed before the war started; it was not closely looked at)
Reiter-SS

Influence on the development of international criminal law

The Nuremberg trials had a great influence on the development of international criminal law. The
International Law Commission, acting on the request of the United Nations General Assembly, produced
in 1950 the report Principles of International Law Recognized in the Charter of the Nrnberg Tribunal
and in the Judgment of the Tribunal (Yearbook of the International Law Commission, 1950, vol. III). The
influence of the tribunal can also be seen in the proposals for a permanent international criminal court,
and the drafting of international criminal codes, later prepared by the International Law Commission.
Part of the defense was that some treaties were not binding on the Axis powers because they were not
signatories. This was addressed in the judgment relating to war crimes and crimes against
humanity[6] contains an expansion of customary law "the Convention Hague 1907 expressly stated that it
was an attempt 'to revise the general laws and customs of war,' which it thus recognised to be then
existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations,
and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6
(b) of the [London] Charter." The implication under international law is that if enough countries have
signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be
interpreted as binding on all nations not just those who signed the original treaty. This is a highly
controversial aspect of international law, one that is still actively debated in international legal journals.

The Nuremberg trials initiated a movement for the prompt establishment of a permanent international
criminal court, eventually leading over fifty years later to the adoption of the Statute of the International
Criminal Court.
The Conclusions of the Nuremberg trials served to help draft:
The Genocide Convention, 1948.
The Universal Declaration of Human Rights, 1948.
The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against
Humanity, 1968.
The Geneva Convention on the Laws and Customs of War, 1949; its supplementary protocols, 1977.

Validity of the court

The validity of the court has been questioned by some for a variety of reasons:
The defendants were not allowed to appeal or affect the selection of judges. Some have argued that,
because the judges were appointed by the victors, the Tribunal was not impartial and could not be
regarded as a court in the true sense. A. L. Goodhart, Professor at Oxford, opposed this view, writing:
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" ("The Legality of the Nuremberg Trials," Juridical Review, April, 1946).
The main Soviet judge, Nikitchenko, had taken part in Stalin's show trials of 1936-1938.
One of the charges included conspiracy to commit aggression against Poland in 1939. The Secret
Protocols of the German-Soviet Non-Aggression Pact of August 23, 1939, proposed the partition of
Poland between the Germans and the Soviets; however, Soviet leaders were not tried for being part of the
same conspiracy.
In 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging, for
the first time, another government (the Sublime Porte) of committing "a crime against humanity." The
argument could be made it was not until the phrase was further developed in the London Charter that it
had a specific meaning. As the London Charter definition of what constituted a crime against humanity
was unknown when many of the crimes were committed, it could be argued to be a retrospective law, in
violation of the principles of prohibition of ex post facto laws and the general principle of penal law
nullum crimen, nulla poena sine praevia lege poenali.
The trials were conducted under their own rules of evidence; the indictments were created ex post
facto and were not based on any nation's law; the tu quoque defense was removed; and some claim the

entire spirit of the assembly was "victor's justice". Article 19 of the Nuremberg International Military
Tribunal Charter reads as follows:
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest
possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to
be of probative value.
U.S. Supreme Court Chief Justice Harlan Fiske Stone called the Nuremberg trials a fraud. "[Chief US
prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg," he wrote. "I don't
mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding
according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas." [7]
Associate Supreme Court Justice William Douglas charged that the Allies were guilty of "substituting
power for principle" at Nuremberg. "I thought at the time and still think that the Nuremberg trials were
unprincipled," he wrote. "Law was created ex post facto to suit the passion and clamor of the time."