Unprecedented in history, the Nuremberg Trial brought high-ranking Nazis to
justice. This is the story of how the trial took shape in postwar Germany.
By Robert Barr Smith
They didn’t look like much. With a couple of exceptions, they were just a gaggle of wan, morose, rumpled men, mostly middle-aged or elderly. Some paid close attention to what went on around them. Some seemed not to care. Taken as a group they were unimpressive, the kind of people one could pass on the street and never notice.
But once they had come extremely close to ruling the world.
The trial had begun on November 20, 1945, 50 years ago this month. Twenty-one tired-looking men sat in two rows in a Nuremberg courtroom, on trial for their lives. They were what remained of the top leadership of the Thousand-Year Reich, and just short months before, they had cast very long shadows indeed. Now those days were just a bitter memory, already fading in the hunger and depression of postwar occupied Germany.
The ground rules for the war crimes prosecutions were straightforward in theory, although they were sometimes a little hard to administer in practice. Traitors would be dealt with by their own nations. The British, for example, duly tried the odious William Joyce, better known as Lord Haw-Haw, for his propaganda broadcasts from Nazi Germany. Too late, American-born Joyce tried to repudiate his claim to British citizenship. His apostasy did not save him from the gallows.
Small fry–the ordinary killers and such–would be tried by courts-martial. And those Germans who had committed crimes centered in the countries that Germany had occupied during the conflict would be dealt with in those countries. Thus Karl-Hermann Frank, the repulsive Reichsprotektor of the Czech Protectorate, was tried and publicly executed in Prague in 1946, as some 5,000 approving Czechs looked on.
A number of trials also took place in the Far East. Many Japanese, both civilian and military, were tried for wartime atrocities. Twenty-eight of the top leaders were tried by the International Military Tribunal, with 11 nations represented among the judges. The trial lasted two years, and all the defendants were convicted.
In Europe, most of the minor trials were held within the zones of occupation by the respective occupiers. American courts tried the concentration-camp staff at Dachau; the British dealt with the brutal Belsen guards; other Germans were tried in Denmark, Belgium, Russia, or wherever their crimes were alleged to have taken place.
For the rest, many of the more important European trials were held in Berlin. The ones that drew the most attention, however, took place in Nuremberg. There were 12 of them altogether, all involving important figures in World War II Germany.
The International Military Tribunal in Nuremberg would deal with "major defendants," in the words of Robert Jackson, America’s chief prosecutor. Less clearly, the Tribunal would also address the criminal character of certain organizations, including the Sicherheistdienst (State Security Service), the SS, and the Gestapo. And here the character of the trials diverged from the ordinary course of criminal justice. "Findings in the main trial," said Jackson, "that an organization is criminal in nature will be conclusive in any subsequent proceedings against individual members…."
This was an uncomfortable concept, this idea of "guilt by membership." And, as it turned out, the theory was largely unnecessary to the prosecutions; the accused German leaders had done enough ugly things that party membership was not necessary to convict them of serious crimes. The offenses charged against the defendants fell generally into three categories. First, there were "war crimes," a fairly well-defined class of offenses long recognized by most soldiers, which included maltreatment of POWs (prisoners of war), murdering wounded men, and similar offenses.
The second category comprised "offenses against humanity"– various atrocities, contrary to generally accepted notions of criminal law, that had been committed on racial grounds since the Nazi rise to power in 1933. Such offenses had been recognized as criminal at least since the Hague Convention of 1907.
Last, and least clearly drawn, were "crimes against peace," the making of aggressive war. Although most laypeople would agree that war is by nature aggressive, a line was drawn between defensive war (permitted) and offensive war (punishable). Early on, in the charter that established the system, "obedience to orders" was banned as a defense. It might be raised in mitigation of a sentence, but it would not support an acquittal.
The Nuremberg defendants were divided into groups, mostly according to their wartime activities and positions. There were, for example, the "medical" trials, a prosecution of doctors and other medical officials for the hideous experiments that maimed and murdered countless concentration-camp inmates and POWs.
Those defendants were the white-coated killers who had injected helpless people with urine and gasoline and typhus, who had ruptured prisoners’ lungs in high-altitude experiments, who had sterilized men with massive, burning doses of X-rays. Twenty-three defendants were tried in that single proceeding. Seven were acquitted; seven were sentenced to death; nine others went to prison, some of them for life.
All 12 trials were convened under an Allied mandate called Law No. 10, promulgated pursuant to the 1945 London Charter on the prosecution of war criminals. The dozen trials involved some 185 defendants split into five general categories, each category tried in two or three separate trials.
Twenty-two government ministers faced justice, along with 56 members of the police and SS. Twenty-six military officers, 39 lawyers and doctors (including those in the medical trial), and 42 financiers and industrialists completed the list. Four of the accused committed suicide; four more were excused from prosecution because of age or illness. Of the 177 actually tried, 35 were acquitted. Twenty-four of the rest were sentenced to death. Twenty more received life sentences; 98 were sentenced to prison for a term of years.
But the famous trial was the prosecution before the International Military Tribunal, the litigation most people recognized simply as "the Nuremberg Trial." That trial was special, the proceeding against the major figures of Hitlerian Germany, the big names who in the public eye represented all the brutality and aggression, the murderous racial theories and the countless killings.
And it was fitting that those men were tried in Nuremberg. Gutted by Allied bombs, a moonscape of ruins, legendary, medieval Nuremberg had once been the Valhalla of National Socialism. This lovely old city had seen the biggest of the party rallies: the serried ranks of the Nazi faithful, the bands crashing out the "Horst Wessel Lied," the massed swastika flags, the booming chant of "Sieg Heil! Sieg Heil!" when the Führer finished one of his electrifying speeches.
Now, in this first dreary, full year of peace, the men who had led Germany down her tragic road were going to pay the bills. Ghosts of a myriad of innocents long dead were rising again. Their cold presence was in the very courtroom, somehow all the more terrifying as they lingered in the shadows behind the matter-of-fact arguments by a series of international prosecutors.
Hitler was not in the dock, of course, the arch criminal himself. The Führer had sent old men and boys to die, firing Panzerfausts at Soviet tanks in the ruins of Berlin, but he had saved the easy road for himself: a single pistol shot. Heinrich Himmler, the petit bourgeois snob, had gone the same way. Captured by the British in Lüneburg, Himmler had crushed a vial of poison between his teeth and departed for whatever special hell is reserved for those who murder helpless people by the millions.
One other famous figure was not present, though he was still on trial in absentia. Martin Bormann, the crass, crude, calculating chief of the Nazi Party Chancellery. In the last days of the war, Bormann had disappeared in the shell-torn horror of wrecked Berlin. He was dead, some men said, but others were not so sure. Without positive proof of his death, he remained a defendant, the "Brown Eminence" still, a shadow at the back of the prisoners’ dock.
But most of the other old familiar names were there. There was Rudolph Hess, the demented longtime deputy party leader, who had flown to Scotland in May 1941 on a half-baked "peace mission." Much to his surprise and anger, he had languished in a British prison ever since.
Next to Hess sat Der Dicke ("The Fat One"), Reichsmarschall Hermann Göring, chief of the Luftwaffe and once Hitler’s heir apparent. A legitimate ace fighter pilot in World War I, Göring had gone on to sybaritic luxury, almost unbounded power, and a host of Wagnerian illusions. Now he was simply a somewhat deflated fat man in a plain, baggy uniform.
In the back row sat Albert Speer, architect and engineer. Speer was a remarkable man, always something of a loner in Nazi Party circles, creator of the phenomenal surge in German war production even under the shower of Allied bombs. Highly intelligent, basically decent, in the last days of the war Speer saved Germany’s future at the risk of his own life. He had countermanded Hitler’s Götterdämmerung order to burn and destroy all that remained of German resources. Nevertheless, Speer had used slave laborers by the millions to supply Germany’s war machine. For that he would be tried as a major war criminal.
Sitting together at the other end of the back row were the senior officers of the vanquished German navy. A dedicated Nazi, Grossadmiral Erich Raeder had commanded the Kriegsmarine until January 1943, when he resigned in protest of a decree by Hitler to scrap the surface fleet. As the author of unrestricted submarine warfare, Raeder faced charges of war crimes. Raeder’s companion, Admiral Karl Dönitz, had succeeded Raeder as chief of the German navy. Also a convinced party member, Dönitz was appointed Hitler’s successor in the Führer’s will. As Germany fell apart around him, he spent his few days in office trying to negotiate a peace, largely with the Western Allies alone. Dönitz was the U-boat master, the single commander who came closest to winning the war for Germany; his boats sank some 15 million tons of Allied shipping. Had Hitler listened to his urgings to build up the U-boat fleet at all costs, who knows how the war might have ended?
Joachim von Ribbentrop was there, too, the ex-champagne salesman who had risen to be Hitler’s closest adviser on foreign policy and foreign minister of Germany. Unctuous and fawning to Hitler, he was obsessed with power and social standing. He had no claim to nobility, but fraudulently added the aristocratic von to his name. Propaganda Minister Paul Josef Goebbels, who had a way with words, summed up Ribbentrop pretty well: "He bought his name, he married his money, and he swindled his way into office."
Next to Ribbentrop in the front row sat one of the two professional soldiers on trial. Feldmarschall Wilhelm Keitel, then 64, had risen to be chief of the armed forces under Hitler. A servile flatterer, he once called Hitler "the greatest commander of all times." His fawning attitude to Hitler earned him the contemptuous nickname of Lakeitel (lackey) throughout the German army. One story says that stenographers at the Führer’s conferences never bothered to record Keitel’s first remarks. They were always the same as Hitler’s last ones.
Keitel abetted the systematic murders carried out by the SS in the East, and he promulgated the infamous Nacht und Nebel (Night and Fog) decrees, allowing seizure without warrant or trial of people "endangering German security."
In the row behind Keitel sat General Alfred Jodl, chief of the Wehrmacht operations staff, which directed the entire war outside of Russia. Jodl had condoned a number of illegal acts, including the shooting of hostages.
Julius Streicher was a particularly nasty piece of work. One of the very early Nazis, Streicher’s major contribution to the party had been a series of rabble-rousing speeches and his crass, semipornographic tabloid, Der Stürmer (The Stormer). Streicher’s paper dripped with hatred for anything Jewish and invented whatever "news" it needed to condemn Jews as the authors of every ill Germany was heir to. A sadist, he rose to become Gauleiter (district leader) of Franconia, although his influence declined somewhat as the war went on.
Even fouler than Streicher was huge, brutal Ernst Kaltenbrunner, onetime Austrian lawyer and police official. A boyhood friend of Adolf Eichmann, Kaltenbrunner became commander of the Austrian SS, and after the Anschluss (the German annexation of Austria) became Austrian minister for state security. In 1943 he replaced the vile Reinhard Heydrich as chief of the Reichssicherheitshauptamt (RSHA), the state security office. He thus became not only Gestapo chief but also boss of the death camp system and executor of the "final solution," the extermination of the Jews. An alcoholic egotist, Kaltenbrunner personally researched the efficacy of the various means of execution used in his camps. He drove RSHA’s goons to hunt down more Jews and was responsible for the murder of Allied parachutists.
Equally repulsive in his own way was Walther Funk. Once a journalist of sorts, he became able chief of the office for economic policy for the party. Funk, an oily, undersized man, was a well-known homosexual and alcoholic, but for a while served as the spokesman for German big business. He became president of the Reichsbank in 1939, and as such presided over the huge secret SS accounts, stuffed with phenomenal amounts of money and other valuables stolen from murdered Jews.
Alfred Rosenberg, the "philosopher" of National Socialism, dealt in the mystic nonsense that passed for Nazi doctrine. He preached, for example, that international Jewry was responsible for the Russian Revolution and that Freemasons had somehow fomented World War I. His writing, as convoluted and distorted as his speech, included such racist claptrap as The Track of the Jew Through Time and Immorality in the Talmud.
Obsessed with dark, international conspiracies, Rosenberg harped endlessly on the Protocols of the Elders of Zion, the plan of an international Zionist "conspiracy," a spurious document in fact invented by the czarist secret police. Rosenberg also edited the Nazi Party paper, and in 1930 published The Myth of the Twentieth Century, a garbled smorgasbord of Nazi racial and anti-Christian theory that Goebbels condescendingly referred to as "philosophical belching." Baldur von Schirach, Reich youth leader, said that Rosenberg "sold more copies of a book no one ever read than any other author" (maybe excepting Hitler’s turgid Mein Kampf).
Schirach himself sat in the dock just a few seats from Rosenberg. Schirach was a genuine aristocrat, and his American mother had passed on to him the blood of two signers of the Declaration of Independence. Anti-Semitic, anti-Christian and oddly anti-aristocrat, Schirach joined the party in 1924 and for many years was the highly effective organizer and leader of the Hitler Youth, a compulsory military-style organization for German youth between the ages of 10 and 18. Later relieved of his job due to Bormann’s intrigues, he became Gauleiter of Vienna. He participated in the deportation of almost 200,000 Austrian Jews to the East, although he tried to persuade Hitler to moderate his treatment of Eastern Europe generally and the Jews in particular.
Near Schirach sat Arthur Seyss-Inquart, Austrian Nazi and enthusiastic supporter of the 1938 Anschluss. He was rewarded for his treason with the governorship of Austria, which he held until the spring of 1939. As governor of the Netherlands during the war, he deported Dutch Jews to the camps and shipped some 5 million Netherlanders to Germany for forced labor.
Hans Frank was the Nazi Party’s pet lawyer, personal counsel to Hitler from the earliest days, and marcher in the farcical Beer Hall Putsch of 1923. Appointed governor-general of Poland, Frank systematically looted the country and exterminated what remained of its leadership. As for the Jews, he was utterly merciless, declaring: "They will have to go….We must destroy the Jews wherever we meet them…."
Wilhelm Frick was a doctor of laws, and an early Nazi who used his position to help Nazi criminals escape trial. Sentenced to 15 months in prison for his part in the 1923 putsch, in the surreal Germany of the time Frick nevertheless continued as chief of the Munich criminal police. Frick served as minister of the interior, in which job he did nothing to curb the brutalities of the SS and Gestapo. Appointed Reichsprotektor of Bohemia and Moravia in 1943, he presided over the death camps in his "protectorate," although his subordinate, Karl-Hermann Frank, did most of the actual dirty work.
Goebbels, the Nazis’ clever chief of propaganda, had poisoned his six children before he died outside the Berlin bunker with his pitiful wife. He was beyond the reach of the Tribunal, but one of his lesser deputies was not. Hans Fritzsche held several responsible posts in Goebbels’ ministry, and during the war was a widely heard radio commentator.
Close to Fritzsche sat Constantin Freiherr von Neurath, a 73-year-old career diplomat. Neurath, a conservative rather than a passionate Nazi, had been foreign minister until 1938, when he was removed from office after he was unwilling to endorse Hitler’s plans for stealing Austria and Czechoslovakia and making war on the Western powers. After a series of meaningless jobs, he was appointed protector of Bohemia and Moravia in 1939–only to be removed from that job, too,in 1941.
Fritz Sauckel spent most of the war years as plenipotentiary-general for labor mobilization, in which capacity he was responsible for the rounding up of some 5 million workers for the German war machine. As a sidelight, he supervised the extermination of thousands of Jewish laborers in Poland.
In stark contrast to the crude Sauckel was sophisticated Franz von Papen. Pompous scion of an old aristocratic family, he became chancellor of Germany in 1932. A believer in the strong totalitarian state, he had immediately abolished the ban on the SA (Sturm Abteilung), Hitler’s private army, and had begun firing republican officials. Conspiring with Hitler–in hopes of controlling him–Papen served as vice chancellor for a while but criticized extreme Nazi philosophy and was very nearly murdered along with Ernst Röhm and the leaders of the SA in 1934. Thereafter he served as ambassador to Austria, and, for most of the war years, to Turkey.
Last, but not least, was Hjalmar Schacht, banking wizard and financial manager of Nazi Germany in the 1930s. An ardent nationalist, Schacht said, "I wish a great and strong Germany; to achieve it I would enter an alliance with the Devil." And he did. Schacht organized support for Hitler among the industrial giants of Germany, Krupp, I.G. Farben and the rest. Schact was fired as president of the Reichsbank in 1939 when he opposed full-scale war preparation on the grounds that Germany could not economically support a long conflict. He was also, apparently, upset by the organized anti-Jewish repression of 1938 and the purge of the army leadership. Arrested after the failed July 20, 1944, plot to kill Hitler, Schacht was sent to the Ravensbrück concentration camp, and later was held at Flossenbürg and Dachau.
There had been 24 Nuremberg defendants at the start. In addition to the men already mentioned, the accused included Gustav Krupp von Bohlen und Halbach. Head of the Krupp works that supplied so much of Germany’s armaments, Gustav Krupp used thousands of slave laborers, many of whom did not survive. He did not stand trial, however, because a stroke had reduced him to incompetence.
Also absent was Robert Ley, who headed the German Labor Front from 1933 to the end of the war. Another crude, uncouth anti-Semite, Ley controlled an enormous budget and was virtual czar of all German workers. He controlled wages and hours and such profitable swindles as the Volkswagen fraud, in which thousands of workers paid for a car in installments and nobody ever saw either a car or a refund of his hard-earned marks. Unwilling to face trial at Nuremberg, Ley had hanged himself in his cell on October 24, 1945.
One of the minor miracles of Nuremberg–and the other prosecutions–was that they happened at all. In an understandable fury at the enormous crimes perpetrated in Nazi Germany, many people wished for vengeance, pure and simple, administered summarily and quickly.
To the everlasting credit of the Allies, the trials were to be run fairly and formally, each person judged according to the evidence, and punished–or not–according to individual guilt. Lord Simon, speaking in the British House of Lords in 1943, put it as well as anybody could: "From…the British point of view, we must never fail, however deeply we are tried, and however fundamentally we are moved by the sufferings of others, to do justice according to justice…whatever happens…war criminals shall be dealt with because they are proved to be criminals, and not because they belong to a race led by a maniac…who has brought this frightful evil upon the world."
The trial itself was unique. It had no parallel in legal history. Retribution after war was certainly nothing new, but the Nuremberg prosecutions were unprecedented in every way. For one thing, they were to be good-faith proceedings, dedicated to convicting nobody, save on substantial evidence of guilt.
The Soviets were not happy with all the protections afforded the accused. The accused, they said, were already guilty, and needed only to be sentenced, a sort of "they’re-guilty-because-we-say-they-are" approach. The Western Allies, of course, would have none of the Soviet view, even though the Soviets were by no means alone.
Many people across the civilized world expressed their willingness to deal summarily with all "war criminals." Even The Nation, long the flagship of the American liberal press, proclaimed: "In our opinion…the proper procedure would have been to…read off their crimes with as much supporting data as seemed useful, pass judgment upon them quickly, and carry out the judgment without any delay whatever."
The accused would have the protection of an expert, unbiased judicial panel, one judge from each of the four major Allies (though it is and was a little hard to say "unbiased" and "Soviet" in the same breath). The International Military Tribunal would decide procedural matters by majority vote, with the president’s vote deciding ties. Conviction or sentence of any accused required three votes out of four. Each nation also appointed an alternate judge, present and sitting when that nation’s primary judge was absent for any reason. All four nations had to be represented before the Tribunal could do any business.
Most important of all, perhaps, the defendants were protected by defense counsel, able German lawyers whose sole obligation was to fight as hard as they could for their clients.
Just working out the procedure of the trials proved to be a complicated undertaking. To start with, some way had to be found to operate efficiently in four languages and have everybody in the courtroom fully understand what went on. And some common procedure had to be arrived at, some melding of the Anglo-American common-law tradition and the basically Roman law practiced in Europe. Even between the practitioners of Roman law–the Germans, the French and the Soviets–there were substantial differences.
There were other problems. Even the place of trial had to be settled. While the Western Allies agreed that Nuremberg was the logical venue, the Russians grumbled and held out for Berlin. Once that hurdle was cleared, there remained the substantial problem of facilities.
The Nuremberg Palace of Justice, like much of the rest of the ancient city, had been heavily bombed. Much reconstruction needed doing before any sort of trial could be held. And, besides general refurbishment, the chosen courtroom had to be greatly enlarged. It had to hold not only an elevated bench to accommodate eight judges but also the 21-defendant dock, plus room for a small army of counsel for both sides (some 50 lawyers appeared for the prosecution alone). Room also had to be found for a good-sized interpreters’ booth, a lectern from which the lawyers could question and argue, a witness box, a press gallery, and an area for spectators.
And so a wall was knocked out to expand the courtroom. The new courtroom got the requisite furniture and a fresh coat of paint. Left standing at the courtroom entrance were three large bronze panels mounted on marble pillars. In the center, Eve offered Adam an apple, emblematic of human temptation to do the forbidden. Eden was flanked by a figure with a sword–that was justice–and the Roman fasces, the bundle of rods and axes that symbolized the authority of the state.
The courtroom also received a sophisticated sound system. All testimony, arguments of counsel and rulings by the court were to be transmitted into the interpreters’ booth and simultaneously translated into the three languages not then being spoken. All participants in the trial, including each accused and counsel, were provided with headsets and a system of switches, by which they could choose to listen to the proceedings in any of the four languages. The sound system extended to the press gallery and the spectators’ seats as well. There was even a system of lights, installed to warn speakers when they were talking too fast.
Once facilities were available, the accused were moved into the neighboring prison–most of them had thus far been confined in Luxembourg. They were held in individual cells, and some care was exercised to thwart attempts at suicide.
Even so, Ley had managed to unravel a GI towel and hang himself. After that, precautions against suicide were increased, although the spectacle of the erstwhile Nazi Party bigwig dangling from a toilet pipe in a dingy cell seemed at least as appropriate as a formal execution. After Ley’s death, each defendant was constantly watched by a guard, day and night.
The prosecution glittered with a whole galaxy of illustrious lawyers. Counsel for the United States was led by tough, able Robert H. Jackson, justice of the United States Supreme Court. For Britain, Attorney General Sir Hartley Shawcross led, although the lion’s share of the actual trial was carried by brilliant, urbane Sir David Maxwell-Fyfe, himself once attorney general under Sir Winston Churchill.
Well before the trials began, the prosecutors had to decide whether to rely primarily on documentary evidence or on live witnesses. The decision was taken to depend on documents, a resolution that turned out to be quite correct. Aside from the stupendous logistical task of rounding up the right witnesses in the wilderness of postwar Europe, there was another, more important consideration. Nobody could later accuse a piece of paper of having a poor memory, of perjury, or of biased testimony. However, the decision to rely primarily on paper evidence required the sifting of thousands upon thousands of documents, a colossal job of evaluation and cross-referencing that required months of work by hundreds of people.
The Nuremberg Trial proceeded on a formal indictment, couched in four counts. First, the defendants were accused of participating in a "Nazi master plan," a massive conspiracy to gain "totalitarian control of Germany," to rearm, to conquer others, and in the process to commit war crimes and crimes against humanity.
The second count simply alleged that the defendants did the things they were alleged to have planned under count one.
Count three charged violations of the customs and laws of warfare, including killing civilians, taking hostages, and maltreating prisoners of war.
The fourth and final count charged "crimes against humanity." It incorporated the allegations of count three, but added allegations dealing with the concentration camps and with the persecutions of Jews and other groups of people prior to the war, in Germany, Czechoslovakia and Austria.
The Tribunal convened in Nuremberg in the autumn of 1945, headed by its president, brilliant, articulate Lord Justice Geoffrey Lawrence. Lord Geoffrey led off with a simple, impressive statement of the Tribunal’s function, a reminder to everybody concerned to "discharge their duties without fear or favor, in accordance with the sacred principles of law and justice….[It] is the duty of all concerned to see that the Trial in no way departs from those principles and traditions which alone give justice its authority and the place it ought to occupy in the affairs of all civilized states."
The trial lasted about 10 months, the verdicts and sentences being handed down September 30October 1, 1946. Before it was over, the world learned much about death camps and other horrors of the Thousand-Year Reich. Most of the 21 defendants were sentenced to hang or to long prison terms; several were acquitted. The unprecedented trial was not without controversy, but the turmoil surrounding it was small indeed compared to the death and destruction the world had just witnessed.