In the long history of military conflict, no war ended quite like World War II. Rather than punish outright both the leaders and citizens of the vanquished nations—as had been customary in most previous global clashes—the victorious Allies chose to conduct legal proceedings against the Axis powers’ senior hierarchy. It was a remarkable approach for the victors to take, particularly because of the extent and depravity of the defendants’ crimes.
The most important of the tribunals took place in the Palace of Justice in Nuremberg, and though the outcomes of those proceedings are well known today, overlooked with the passage of time is the fact that as the Allied leaders began to consider how to handle the legacy of a post-Nazi Europe, they were sailing into unknown waters.
Discussions on how justice would be administered actually began while the war was still raging. In 1942, as credible reports of mass killings at heretofore unknown places such as Auschwitz and Treblinka began to reach the ears of Allied officials, President Franklin D. Roosevelt announced that it was his intention to actively prosecute war criminals at the conclusion of hostilities.
On October 24, 1942, Roosevelt clarified an earlier statement he had made on war crimes and war criminals. “I said [in August] that this government was constantly receiving information concerning the barbaric crimes being committed by the enemy against civilian populations in occupied countries, particularly on the continent of Europe. I said it was the purpose of this government, as I knew it to be the purpose of the other United Nations, to see that when victory is won the perpetrators of these crimes shall answer for them before courts of law.
“I now declare it to be the intention of this government that the successful close of the war shall include provision for the surrender to the United Nations of war criminals. It is not the intention of this government or of the governments associated with us to resort to mass reprisals. It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons and the commission of atrocities which have violated every tenet of Christian faith.”
Exiled leaders of nations living under the boot heel of Nazi occupation were doubtless relieved to hear this. About 10 months earlier they had gathered at St. James’s Palace in London to discuss what would be done once their countrymen were finally liberated. They also organized a group dubbed “The Inter-Allied Commission on the Punishment of War Crimes,” whose purpose was to “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.”
Roosevelt and, somewhat reluctantly, British Prime Minister Winston Churchill had given their stamp of approval to the St. James Declaration in July 1942. With memories of the suffering of Londoners during the Blitz still fresh in their minds, Churchill and many of his cabinet initially favored taking a much harsher stance toward any Nazi leaders who might eventually fall into their hands. Britain’s leaders preferred speedy trials and a swift administration of justice. In Churchill’s view, even that courtesy would not be extended to the likes of Adolf Hitler and his closest henchmen, who he said would be immediately executed. For his part, Soviet Premier Josef Stalin favored the formation of a special international tribunal.
With the war in its third year and victory far from certain, planning any future legal proceeding was not a top priority, and details of what form a tribunal would take languished for some time. In October 1943, a year after Roosevelt had first announced his intention of forming an international judicial body to prosecute war criminals, the foreign ministers of the United States, Great Britain and the Soviet Union issued the Moscow Declaration, which stated that the fate of any potential criminals would be judged solely by those three Allied powers.
By the summer of 1944, U.S. Secretary of War Henry Stimson raised the matter with Roosevelt. The secretary pushed for an international tribunal, an opinion he shared with the Army’s judge advocate general (JAG). The JAG’s office had already issued orders to commanders in the field to arrest any person suspected to be in “violation of the laws and customs of war.”
Following Stimson’s meeting with Roosevelt, Lt. Col. Murray Bernay was assigned the task of devising the legal basis for trying captured Nazis and the parameters of any indictments. After carefully reviewing international case law and other legal factors, the Harvard-trained attorney concluded that many of the crimes perpetrated by the Nazis began before the war, and that if a full accounting were to be achieved, those crimes should be judged along with ones committed during the war.
Given the scope of the criminality, Bernay realized that it would be logistically impossible to try every individual accused of a war crime. Instead, he concluded it would be more prudent to develop a mechanism that would allow trials for individuals and, where applicable, organized groups within the Nazi state. For example, if the SS as an entity was convicted, then all members of that group could be punished accordingly. He also made it clear that since these trials would consider crimes against humanity as a whole, any judicial body would have to consist of international representatives and not separate tribunals held by the various powers.
Bernay’s final report was studied by members of the U.S. War Department, including Assistant Secretary of War John J. McCloy and his chief deputy, Colonel Ammi Cutter, who gave their approval to Bernay’s conclusions and recommended them to Stimson. On November 21, 1944, Stimson briefed Roosevelt on Bernay’s findings, placing particular emphasis on the charge of conspiracy against Nazi leaders and agencies. The president gave his tentative approval.
Churchill, however, did not agree. He clung to the demand that senior Nazi leaders should be immediately executed. The debate had not reached a conclusion when on April 12, 1945, the world received the shocking news that Roosevelt had died. Before the month was out, the Russians were in Berlin and Hitler was dead by his own hand. It would now be up to the new president, Harry S. Truman, to decide how to prosecute the former leaders of the Third Reich.
Two weeks after Roosevelt’s death, Truman appointed Robert Jackson, a 53- year-old associate justice of the U.S. Supreme Court, to be the chief prosecutor “in preparing and prosecuting charges of atrocities and war crimes against each of the leaders of the European Axis powers as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.”
On May 31, 1945, the United Nations War Crimes Commission met in London, with all parties agreeing on a format that included a military tribunal. The first issue for the tribunal was how to integrate the legal systems of the four major Allied powers, with a free France now involved in the process. Using his powers of persuasion, Jackson managed to convince the French and Russian teams to adopt a system closely based on the American and British models.
On August 8, 1945, the four powers signed the London Agreement, which had as its basis a charter and procedures for an international military tribunal. The IMT was composed of eight judges, one judge and one alternate from each country. The principal American judge was Francis Biddle, the U.S. attorney general. Serving as president of the tribunal was the British representative, Sir Geoffrey Lawrence. Also appointed were the four prosecutorial teams, which would be led by Justice Jackson for the United States, Attorney General Maxwell Fyfe as the British representative, André Gros for France and Maj. Gen. Ion T. Nikitchenko for the Soviet Union. Gros and Nikitchenko were replaced by François de Menthon and Lt. Gen. Roman Rudenko, respectively, as prosecutors at the actual trials.
Indictments were handed up on October 19, 1945. The accused were charged with the following crimes: “Count One: Common Plan or Conspiracy; Count Two: Crimes Against Peace; Count Three: War Crimes. And Count Four: Crimes Against Humanity.” Responsibility for prosecuting each of the four indictments would be divided among the four powers. American prosecutors would concentrate on count one, the British on count two and the French and Soviets on three and four.
Given the competing national interests of the prosecutorial nations and the unusual nature of the proceedings, it was to be expected that the arrangements would not please everyone. Even before the trials began, the court’s effectiveness was questioned when it was deemed that the defendants would not be allowed to appeal their convictions beyond the Allied Control Council, nor would they have any say as to which judges would sit on the panel. One of the harshest criticisms was pointed at Nikitchenko, who had been named the Russian judge. He had presided in Stalin’s show trials in 1936-38 that condemned thousands, and did not speak English.
Despite all the haggling, the fine points were worked out and the tribunal, with 22 defendants, began on November 20, 1945. Although most of the Nazi hierarchy was already dead, they would be tried in absentia, as would a number of senior leaders still living. Among those brought to the dock were Admiral Karl Dönitz, the Reich’s last Führer; Grand Admiral Erich Raeder, commander in chief of the German navy until 1943; Walter Funk, minister of economics; Reichsmarschall Hermann Göring, the highest-ranking Nazi taken into captivity; Rudolf Hess, Hitler’s deputy; Alfred Jodl, chief of operations for the Oberkommando der Wehrmacht (OKW); Wilhelm Keitel, OKW chief of staff; Joachim von Ribbentrop, the German foreign minister; Ernst Kaltenbrunner, who was responsible for transporting Jews to the death camps; Alfred Rosenberg, Reich minister of Eastern Occupied Territories; Hans Frank, governor-general of Nazi-occupied Poland; Wihelm Frick, a lawyer who was minister of the interior from 1933 to 1943; and Julius Streicher, founder of the anti-Jewish German Socialist Party. Also indicted were leading industrialists, bankers and others who, although not part of the government, had actively aided and abetted it in its crimes.
Another important objective of the trials, in addition to seeking justice, was to provide proof of Nazi crimes in a forum that could not be disputed. Proceedings were kept as transparent as possible, and reporters and news cameramen were welcomed inside the courtroom.
As expected, Jackson’s opening remarks, before a hushed courtroom, suited the importance of the occasion. “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility,” he proclaimed. “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.”
Using the Nazi state’s own words to help convict the accused, Jackson relied on the mountains of written memoranda and other documentation that spelled out with chilling bureaucratic formality the deliberate murder of millions of innocent people. To add to his prosecutorial punch, Jackson then showed “Nazi Concentration Camps,” which had been filmed by American soldiers as they began to liberate the camps in early 1945.
The visual record of atrocities was so graphic that not only was the audience shocked, but even some of the defendants. Jackson finished his case with the eyewitness testimony of Maj. Gen. Erwin Lahousen, who had been a member of the Abwehr, Germany’s intelligence service. The witness testified to several instances in which he had been ordered to aid and abet the regime in its crimes.
It was then the turn of the British, French and Russian representatives to present their cases to the tribunal. Finally, in February 1946, after thousands of pages and countless hours of the most horrific evidence of deliberate mass murder ever heard in a courtroom, the prosecution rested its case.
The defense team did its best, but because of the prosecution’s damning evidence the outcome was never really in doubt. When they finally rested their case on August 31, 1946, there was a universal feeling of relief, particularly among the Germans who for the first time had been forced to confront the truth of the actions carried out by their leaders, as well as having those crimes become public knowledge around the world.
Verdicts were handed down on September 30 and October 1, 1946. The defendants were made accountable for their crimes, some more than others. Three were found not guilty, seven were given prison sentences and 12 were sentenced to death—including Hitler deputy Martin Bormann, who was sentenced in absentia.
The Allied Control Council rejected appeals to reduce or commute the sentences. On October 15, Göring escaped the hangman’s noose by hours, taking his own life with a cyanide pill that had been smuggled into his cell. The next day, 10 others were hanged.
A second series of trials took place between November 1946 and April 1949, during which time American lawyers tried 185 other defendants, convicting 142. The sentences ranged from long prison terms to death.
It cannot be denied that far too many of those who committed some of history’s most atrocious crimes escaped justice. It can also be argued that in the final analysis, the makeup of the tribunal was less than perfect—the defendants were given limited legal rights, and sentences were carried out without right of appeal to independent judicial review. Critics, however, should never forget that those convicted were given far greater redress than any of their victims and that the tribunal did its best to bring the rule of law into the international arena as never before—to carry justice to its ultimate end.
Originally published in the October 2006 issue of World War II. To subscribe, click here.