The Nuremberg Trials
In early October 1945, the four prosecuting nations -- the
United States, Great Britain, France and Russia -- issued an indictment
against 24 men and six organizations. The individual defendants
were charged not only with the systematic murder of millions of
people, but also with planning and carrying out the war in Europe.
Twenty-one of the indicted men eventually sat in the dock
in the Nuremberg courtroom. One of those named, labor leader Robert
Ley hanged himself before the trial began. Another, the industrialist
Gustav Krupp, was judged too frail to stand trial. Martin Bormann,
who as Adolf Hitler's private secretary was one of the most powerful
Nazi leaders, was nowhere to be found. He was tried in absentia
and sentenced to hang if he should ever turn up. Bormann apparently
died as the Soviets entered Berlin -- his remains were identified
there in 1972 and he was declared dead by a German court the following
Lt. Col. Murray Bernays, an attorney in the U.S. War Department
who collected evidence on crimes committed against GIs, had devised
a scheme to try the Nazis as conspirators in waging aggressive
war and to try Nazi organizations as a means of reaching hundreds
of thousands of members. His ideas were promoted by Secretary
of War Henry Stimson and eventually incorporated into the indictment.
The Indictment of Nazi Organizations The indictment of Nazi
organizations was designed to deal with the problem of what to
do about the hundreds of thousands of people who had been members
of organizations such as the SS and the Gestapo. The idea was
to find them to have been criminal organizations, then hold hearings
to determine the extent to which a member was guilty.
At the conclusion of the trial against the 21 individuals,
the International Military Tribunal spent a month hearing testimony
about the organizations.
The indictment of the organizations, however, raised a fundamental
legal question: the legitimacy of creating a system of guilt by
association. Although members of the criminal organizations were
later tried by German denazification courts set up by the U.S.
occupation government, no one was ever punished solely on the
basis of the tribunal convictions.
Three of the six indicted organizations were found guilty.
They were: the SS, the Gestapo and the Corps of the Political
Leaders of the Nazi Party.
Three of the organizations were not convicted. They were:
the SA (Hitler's street thugs, known as brownshirts, whose power
had dwindled in the 1930s); the Reichsregierung (Reich Cabinet)
and General Staff and High Command of the German Armed Forces.
The latter two organizations were determined to cover relatively
few members so that it was deemed better to deal with them as
The Charges The four powers divided the prosecution work,
giving the United States the complicated and most difficult job
of proving Count One -- the conspiracy charge.
Count One: Conspiracy to Wage Aggressive War The "common
plan or conspiracy" charge was designed to get around the
problem of how to deal with crimes committed before the war. The
defendants charged under Count One were accused of agreeing to
The concept of conspiracy was not a part of continental law,
and remained controversial throughout the trial.
Some historians have argued that this count caused prosecutors
to over-emphasize the coherence of Nazi policymaking. It also
gave the defense an additional reason to emphasize the confused
Nazi command structure and allowed the defendants to buttress
their contentions of ignorance of the regime's brutality.
Count Two: Waging Aggressive War, or "Crimes Against
Peace" This evidence was presented by the British prosecutors
and was defined in the indictment as "the planning, preparation,
initiation, and waging of wars of aggression, which were also
wars in violation of international treaties, agreements, and assurances."
This charge created problems for the prosecutors. Although
Hitler had clearly waged an aggressive war, beginning with the
invasion of Poland in 1939, Count Two was based on allegations
that the Germans had violated international agreements such as
the Kellogg-Briand Pact of 1928. Signatories to that agreement
had renounced war as an instrument of national policy (as opposed,
say, to defensive war), but the pact did not define "aggressive
war" and did not spell out the penalties for its violation.
(The Anschluss and the invasion of Czechoslovakia were not
held to be aggressive wars because Hitler had manipulated the
political situation in each nation in order to avoid an invasion.)
The Soviet Union also had broken the Kellogg-Briand Pact by
invading Finland, Poland and the Baltics, and had schemed with
Hitler to sign the Nazi-Soviet Non-Aggression Pact in 1939 (which
secretly divided Poland).
Robert Jackson, the chief U.S. prosecutor, wanted the International
Military Tribunal to create new international law that would outlaw
aggressive war. Clearly, the premise that it is possible to outlaw
war is a questionable one.
Count Three: War Crimes The Russian and French prosecutors
presented evidence on atrocities committed in the East and West,
Count Three was intended to deal with acts that violated traditional
concepts of the law of war -- e.g. the use of slave labor; bombing
civilian populations; the Reprisal Order (signed by Field Marshal
Wilhelm Keitel, a defendant, this order required that 50 Soviet
soldiers be shot for every German killed by partisans); the Commando
Order (issued by Keitel, it ordered that downed Allied airmen
be shot rather than taken captive).
The violations of international law under Count Three were
more clearly rooted in precedent than the other counts.
International laws of war had developed during the 18th and
19th centuries. The Hague Conventions of 1899 and 1907 dealt with
the conduct of war by outlawing certain types of weapons (dum-dum
bullets, poison gas) and outlining treatment of POWs and civilians.
The Geneva Conventions of 1864 and 1906 dealt with treatment of
the sick and wounded. (After 1929, the treatment of POWs was promulgated
by the Geneva Convention.) Naval law developed separately and
originally dealt with problems of piracy, rescue, false flags
and the like.
War crimes were defined under the London Charter (the document
drafted by the Allies before the trial began) as "murder,
ill treatment or deportation to slave labor or for any other purpose
of civilian population or in occupied territory, murder or ill-treatment
of prisoners-of-war or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities,
towns, or villages or devastation not justified by military necessity."
Count Four: Crimes Against Humanity The Russians and the French
again divided responsibility along East-West lines.
Count Four was applied to defendants responsible for the death
camps, concentration camps and killing rampages in the East.
Initially, crimes against humanity were understood to be crimes
committed by a government against its own people, and there was
some question as to whether the concept could be applied internationally.
Their inclusion in the London Charter was a novel extension of
The London Charter defined these crimes as "murder, extermination,
enslavement, deportation, and other inhumane acts committed against
any civilian population before or during the war, or persecutions
on political, racial, or religious grounds in execution of or
in connection with any crimes within the jurisdiction of the International
Military Tribunal, whether or not in violation of domestic law
of the country where perpetrated."
Selection of Defendants The list of the accused was to some
extent arbitrary. The defendants represented the major administrative
branches of the Third Reich and included prisoners held by each
of the four prosecuting nations. Apparently, little attention
was paid to the availability of evidence against them. Attention
was generally paid to how well known they were and how much power
they had wielded. However, Hans Fritzsche, who was held by the
Russians, had been a relatively minor official in Josef Goebbels'
propaganda ministry but was included, along with Admiral Erich
Raeder, to appease the Russians.
International War Crimes