|Court||International Military Tribunal|
|Decided||September 30 - October 1, 1946|
|Subsequent action(s)||See below; twelve German defendants sentenced to death|
|Judges sitting|| Geoffrey Lawrence (President) |
John J. Parker
Edward Francis Carter
Henri Donnedieu de Vabres
The Nuremberg trials (German: Nürnberger Prozesse) were a series of military tribunals held after World War II by the Allied forces under international law and the laws of war. The trials were most notable for the prosecution of prominent members of the political, military, judicial, and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were held in Nuremberg, Germany, and their decisions marked a turning point between classical and contemporary international law.
The first and best known of the trials was that of the major war criminals before the International Military Tribunal (IMT). It was described as "the greatest trial in history" by Sir Norman Birkett, one of the British judges present throughout. Held between 20 November 1945 and 1 October 1946, the Tribunal was given the task of trying 24 of the most important political and military leaders of the Third Reich. Primarily treated here is the first trial, conducted by the International Military Tribunal. Further trials of lesser war criminals were conducted under Control Council Law No. 10 at the U.S. Nuremberg Military Tribunal (NMT), which included the Doctors' trial and the Judges' Trial.
The categorization of the crimes and the constitution of the court represented a juridical advance that would be followed afterward by the United Nations for the development of an international jurisprudence in matters of war crimes, crimes against humanity, and wars of aggression, and led to the creation of the International Criminal Court. For the first time in international law, the Nuremberg indictments also mention genocide (count three, war crimes: "the extermination of racial and national groups, against the civilian populations of certain occupied territories to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.")
A precedent for trying those accused of war crimes had been set at the end of World War I in the Leipzig War Crimes Trials held in May to July 1921 before the Reichsgericht (German Supreme Court) in Leipzig, although these had been on a very limited scale and largely regarded as ineffectual. At the beginning of 1940, the Polish government-in-exile asked the British and French governments to condemn the German invasion of their country. The British initially declined to do so; however, in April 1940, a joint declaration was issued by the British, French, and Polish. Relatively bland because of Anglo-French reservations, it proclaimed the trio's "desire to make a formal and public protest to the conscience of the world against the action of the German government whom they must hold responsible for these crimes which cannot remain unpunished."
Three-and-a-half years later, the stated intention to punish the Germans was much more trenchant. On 1 November 1943, the Soviet Union, the United Kingdom, and the United States published their "Declaration on German Atrocities in Occupied Europe", which gave a "full warning" that, when the Nazis were defeated, the Allies would "pursue them to the uttermost ends of the earth ... so that justice may be done. ... The above declaration is without prejudice to the case of the major war criminals whose offenses have no particular geographical location and who will be punished by a joint decision of the Government of the Allies." This intention by the Allies to dispense justice was reiterated at the Yalta Conference and at Potsdam in 1945.
British War Cabinet documents, released on 2 January 2006, showed that as early as December 1944 the Cabinet had discussed their policy for the punishment of the leading Nazis if captured. The British Prime Minister, Winston Churchill, had then advocated a policy of summary execution in some circumstances, with the use of an Act of Attainder to circumvent legal obstacles, being dissuaded from this only by talks with US and Soviet leaders later in the war.
In late 1943, during the Tripartite Dinner Meeting at the Tehran Conference, the Soviet leader, Joseph Stalin, proposed executing 50,000-100,000 German staff officers. US President Franklin D. Roosevelt joked that perhaps 49,000 would do. Churchill, believing them to be serious, denounced the idea of "the cold-blooded execution of soldiers who fought for their country" and that he would rather be "taken out in the courtyard and shot" himself than partake in any such action. However, he also stated that war criminals must pay for their crimes and that, under the Moscow Document which he had written, they should be tried at the places where the crimes were committed. Churchill was vigorously opposed to executions "for political purposes." According to the minutes of a meeting between Roosevelt and Stalin at Yalta, on 4 February 1945, at the Livadia Palace, President Roosevelt "said that he had been very much struck by the extent of German destruction in Crimea and therefore he was more bloodthirsty in regard to the Germans than he had been a year ago, and he hoped that Marshal Stalin would again propose a toast to the execution of 50,000 officers of the German Army."
Henry Morgenthau Jr., US Secretary of the Treasury, suggested a plan for the total denazification of Germany; this was known as the Morgenthau Plan. The plan advocated the forced de-industrialisation of Germany and the summary execution of so-called "arch-criminals", i.e. the major war criminals. Roosevelt initially supported this plan, and managed to convince Churchill to support it in a less drastic form. Later, details were leaked in the US generating widespread condemnation by the nation's newspapers and propaganda was published about the plan in Germany. Roosevelt, aware of strong public disapproval, abandoned the plan, but did not adopt an alternative 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. Following Roosevelt's death in April 1945, the new president, Harry S. Truman, gave strong approval for a judicial process. After a series of negotiations between Britain, the US, the Soviet Union, and France, details of the trial were worked out. The trials were to commence on 20 November 1945, in the Bavarian city of Nuremberg.
On 20 April 1942, representatives from the nine countries occupied by Germany met in London to draft the "Inter-Allied Resolution on German War Crimes". At the meetings in Tehran (1943), Yalta (1945), and Potsdam (1945), the three major wartime powers, the United Kingdom, United States, and the Soviet Union, agreed on the format of punishment for 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, which was agreed upon by the four so-called Great Powers on 8 August 1945,  and 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 1 September 1939. The Soviet Union was one of the main driving forces behind the creation of a Special Military Tribunal, which evolved into the Nuremberg Trials by the creation of the legal framework to allow the charges against Nazi Germany to be applied. Soviet Lawyer Aron Trainin, formed the legal framework for developing the concepts of aggressive war, genocide, and human rights.
Leipzig and Luxembourg were briefly considered as the location for the trial. The Soviet Union had wanted the trials to take place in Berlin, as the capital city of the 'fascist conspirators', but Nuremberg was chosen as the site for two reasons, the first being decisive:
As a compromise with the Soviets, it was agreed that while the location of the trial would be Nuremberg, Berlin would be the official home of the Tribunal authorities. 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.
Most of the accused had previously been detained at Camp Ashcan, a processing station and interrogation center in Luxembourg, and were moved to Nuremberg for the trial.
Each of the four countries provided one judge and an alternative, as well as a prosecutor.
Assisting Jackson were the lawyers Telford Taylor, William S. Kaplan and Thomas J. Dodd, and Richard Sonnenfeldt, a US Army interpreter. Assisting Shawcross were Major Sir David Maxwell-Fyfe and Sir John Wheeler-Bennett. Mervyn Griffith-Jones, who was later to become famous as the chief prosecutor in the Lady Chatterley's Lover obscenity trial, was also on Shawcross's team. 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.
The vast majority of the defense attorneys were German lawyers. These included Georg Fröschmann, Heinz Fritz (Hans Fritzsche), Otto Kranzbühler (Karl Dönitz), Otto Pannenbecker (Wilhelm Frick), Alfred Thoma (Alfred Rosenberg), Kurt Kauffmann (Ernst Kaltenbrunner), Hans Laternser (general staff and high command), Franz Exner (Alfred Jodl), Alfred Seidl (Hans Frank), Otto Stahmer (Hermann Göring), Walter Ballas (Gustav Krupp von Bohlen und Halbach), Hans Flächsner (Albert Speer), Günther von Rohrscheidt (Rudolf Hess), Egon Kubuschok (Franz von Papen), Robert Servatius (Fritz Sauckel), Fritz Sauter (Joachim von Ribbentrop), Walther Funk (Baldur von Schirach), Hanns Marx (Julius Streicher), Otto Nelte (Wilhelm Keitel), and Herbert Kraus/Rudolph Dix (both working for Hjalmar Schacht). The main counsel were supported by a total of 70 assistants, clerks and lawyers. The defense witnesses included several men who took part in war crimes themselves during World War II, such as Rudolf Höss. The men testifying for the defense hoped to receive more lenient sentences.[clarification needed] All of the men testifying on behalf of the defense were found guilty on several counts.[dubious ]
The International Military Tribunal was opened on 19 November 1945 in the Palace of Justice in Nuremberg. The first session was presided over by the Soviet judge, Nikitchenko. The prosecution entered indictments against 24 major war criminals and seven organizations - the leadership of the Nazi party, the Reich Cabinet, the Schutzstaffel (SS), Sicherheitsdienst (SD), the Gestapo, the Sturmabteilung (SA) and the "General Staff and High Command", comprising several categories of senior military officers.[avalon 1] These organizations were to be declared "criminal" if found guilty.
The indictments were for:
The 24 accused were, with respect to each charge, either indicted but not convicted (I), indicted and found guilty (G), or not charged (--), as listed below by defendant, charge, and eventual outcome:
|Martin Bormann||I||--||G||G||Death (in absentia)||Successor to Hess as Nazi Party Secretary. Sentenced to death in absentia.[avalon 2]Remains found in Berlin in 1972 and eventually dated to 2 May 1945 (per Artur Axmann's account); thought to have been killed trying to flee Berlin in the last few days of the war.|
|Karl Dönitz||I||G||G||--||10 years||Leader of the Kriegsmarine from 1943, succeeded Raeder. Initiator of the U-boat campaign. Briefly became President of Germany following Hitler's death.[avalon 3] Convicted of carrying out unrestricted submarine warfare in breach of the 1936 Second London Naval Treaty, but was not punished for that charge because the United States committed the same breach. Released 1 October 1956. Died 24 December 1980. Defense attorney: Otto Kranzbühler|
|Hans Frank||I||--||G||G||Death||Reich Law Leader 1933-45 and Governor-General of the General Government in occupied Poland 1939-45. Expressed repentance.[avalon 4] Hanged 16 October 1946.|
|Wilhelm Frick||I||G||G||G||Death||Hitler's Minister of the Interior 1933-43 and Reich Protector of Bohemia and Moravia 1943-45. Co-authored the Nuremberg Race Laws.[avalon 5] Hanged 16 October 1946.|
|Hans Fritzsche||I||-||I||I||Acquitted||Popular radio commentator; head of the news division of the Nazi Propaganda Ministry.[avalon 6] Released early in 1950. Fritzsche had made himself a career within German radio, because his voice was similar to Goebbels'. Died 27 September 1953.|
|Hitler's Minister of Economics; succeeded Schacht as head of the Reichsbank. Released because of ill health on 16 May 1957.[avalon 7] Died 31 May 1960.|
|G||G||G||G||Death||Reichsmarschall, Commander of the Luftwaffe 1935-45, Chief of the 4-Year Plan 1936-45, and original head of the Gestapo before turning it over to the SS in April 1934. Originally the second-highest-ranked member of the Nazi Party and Hitler's designated successor, he fell out of favor with Hitler in April 1945. Highest ranking Nazi official to be tried at Nuremberg. Committed suicide the night before his scheduled execution.[avalon 8]|
|Hitler's Deputy Führer until he flew to Scotland in 1941 in an attempt to broker peace with the United Kingdom. Had been imprisoned since then. After trial, incarcerated at Spandau Prison, where he committed suicide in 1987.[avalon 9]|
|Alfred Jodl||G||G||G||G||Death||Wehrmacht Generaloberst, Keitel's subordinate and Chief of the OKW's Operations Division 1938-45. Signed orders for the summary execution of Allied commandos and Soviet commissars [avalon 10] Signed the instruments of surrender on 7 May 1945 in Reims as the representative of Karl Dönitz. Hanged 16 October 1946. Posthumously rehabilitated in 1953, which was later reversed.|
|Ernst Kaltenbrunner||I||--||G||G||Death||Highest-ranking SS leader to be tried at Nuremberg. Chief of RSHA 1943-45, the Nazi organ comprising the intelligence service (SD), Secret State Police (Gestapo) and Criminal Police (Kripo) and having overall command over the Einsatzgruppen.[avalon 11] Hanged 16 October 1946.|
|Wilhelm Keitel||G||G||G||G||Death||Head of Oberkommando der Wehrmacht (OKW) and de facto defence minister 1938-45. Known for his unquestioning loyalty to Hitler. Signed numerous orders calling for soldiers and political prisoners to be executed. Expressed repentance.[avalon 12] Hanged 16 October 1946.|
|Gustav Krupp von Bohlen und Halbach||I||-||I||I||No decision||Major industrialist. C.E.O. of Friedrich Krupp AG 1912-45. Medically unfit for trial; he had been partially paralyzed since 1941. Due to an error, Gustav, instead of his son Alfried (who ran Krupp for his father during most of the war), was selected for indictment. The prosecutors attempted to substitute his son in the indictment, but the judges rejected this due to proximity to trial. However, the charges against him remained on record in the event he should recover (he died in February 1950). Alfried was tried in a separate Nuremberg trial (the Krupp Trial) for the use of slave labor, thereby escaping worse charges and possible execution.|
|Robert Ley||I||-||I||I||No decision||Head of DAF, German Labour Front. Committed suicide on 25 October 1945, before the trial began. Indicted but neither acquitted nor found guilty as trial did not proceed.|
|Baron Konstantin von Neurath||G||G||G||G||15 years||Minister of Foreign Affairs 1932-38, succeeded by Ribbentrop. Later, Reich Protector of Bohemia and Moravia 1939-43. On furlough since 1941, he resigned in 1943 because of a dispute with Hitler. Released (ill health) 6 November 1954[avalon 13] after suffering a heart attack. Died 14 August 1956.|
|Franz von Papen||I||I||--||--||Acquitted||Chancellor of Germany in 1932 and Vice-Chancellor under Hitler in 1933-34. Ambassador to Austria 1934-38 and ambassador to Turkey 1939-44. Although acquitted at Nuremberg, von Papen was reclassified as a war criminal in 1947 by a German de-Nazification court, and sentenced to eight years' hard labor. He was acquitted following appeal after serving two.[avalon 14]|
|Erich Raeder||G||G||G||--||Life imprisonment||Commander In Chief of the Kriegsmarine from 1928 until his retirement in 1943, succeeded by Dönitz. Released (ill health) 26 September 1955.[avalon 15] Died 6 November 1960.|
|Joachim von Ribbentrop||G||G||G||G||Death||Ambassador-Plenipotentiary 1935-36. Ambassador to the United Kingdom 1936-38. Minister of Foreign Affairs 1938-45.[avalon 16] Expressed repentance. Hanged 16 October 1946.|
|Alfred Rosenberg||G||G||G||G||Death||Racial theory ideologist. Later, Minister of the Eastern Occupied Territories 1941-45.[avalon 17] Hanged 16 October 1946.|
|Fritz Sauckel||I||I||G||G||Death||Gauleiter of Thuringia 1927-45. Plenipotentiary of the Nazi slave labor program 1942-45.[avalon 18] Hanged 16 October 1946. Defense attorney: Robert Servatius|
|Dr. Hjalmar Schacht||I||I||--||--||Acquitted||Prominent banker and economist. Pre-war president of the Reichsbank 1923-30 & 1933-38 and Economics Minister 1934-37. Admitted to violating the Treaty of Versailles.[avalon 19] Many at Nuremberg alleged that the British had brought about Schacht's acquittal to safeguard German industrialists and financiers; Francis Biddle revealed Geoffrey Lawrence had argued that Schacht, being a "man of character", was nothing like the other "ruffians" on trial. By 1944, he had been imprisoned in a concentration camp by the Nazis, and he was outraged to be put on trial as a major war criminal.|
|Baldur von Schirach||I||--||--||G||20 years||Head of the Hitlerjugend from 1933-40, Gauleiter of Vienna 1940-45. Expressed repentance.[avalon 20] Released 30 September 1966. Died 8 August 1974.|
|Arthur Seyss-Inquart||I||G||G||G||Death||Instrumental in the Anschluss and briefly Austrian Chancellor 1938. Deputy to Frank in Poland 1939-40. Later, Reichskommissar of the occupied Netherlands 1940-45. Expressed repentance.[avalon 21] Hanged 16 October 1946.|
|Albert Speer||I||I||G||G||20 years||Hitler's friend, favorite architect, and Minister of Armaments from 1942 until the end of the war. In this capacity, he was ultimately responsible for the use of slave laborers from the occupied territories in armaments production. Expressed repentance.[avalon 22] Released 1 October 1966. Died 1 September 1981.|
|Julius Streicher||I||--||--||G||Death||Gauleiter of Franconia 1922-40, when he was relieved of authority but allowed by Hitler to keep his official title. Publisher of the anti-Semitic weekly newspaper Der Stürmer.[avalon 23] Hanged 16 October 1946.|
The accusers were successful in unveiling the background of developments leading to the outbreak of World War II, which cost around 50 million lives in Europe alone, as well as the extent of the atrocities committed in the name of the Hitler regime. Twelve of the accused were sentenced to death, seven received prison sentences (ranging from 10 years to life sentence), three were acquitted, and two were not charged.
The death sentences were carried out on 16 October 1946 by hanging using the standard drop method instead of long drop. The U.S. Army denied claims that the drop length was too short, which may cause the condemned to die slowly from strangulation instead of quickly from a broken neck, but evidence remains that some of the condemned men choked in agony for 14 to 28 minutes. The executioner was John C. Woods. The executions took place in the gymnasium of the court building (demolished in 1983).
Although the rumor has long persisted that the bodies were taken to Dachau and burned there, they were incinerated in a crematorium in Munich, and the ashes scattered over the river Isar. The French judges suggested that the military condemned (Göring, Keitel, and Jodl) be shot by a firing squad, as is standard for military courts-martial, but this was opposed by Biddle and the Soviet judges, who argued that the military officers had violated their military ethos and were not worthy of the more dignified death by shooting. The prisoners sentenced to incarceration were transferred to Spandau Prison in 1947.
Of the 12 defendants sentenced to death by hanging, two were not hanged: Martin Bormann was convicted in absentia (he had, unknown to the Allies, died while trying to escape from Berlin in May 1945), and Hermann Göring committed suicide the night before the execution. The remaining 10 defendants sentenced to death were hanged.
The definition of what constitutes a war crime is described by the Nuremberg principles, a set of guidelines document which was created as a result of the trial. The medical experiments conducted by German doctors and prosecuted in the so-called Doctors' Trial led to the creation of the Nuremberg Code to control the future trials involving human subjects, a set of research ethics principles for human experimentation.
Of the indicted organizations the following were found not to be criminal:
The American authorities conducted subsequent Nuremberg Trials in their occupied zone.
Other trials conducted after the first Nuremberg trial include the following:
While Sir Geoffrey Lawrence of Britain was the judge who was chosen to serve as the president of the court, arguably, the most prominent of the judges at the trial was his American counterpart, Francis Biddle. Before the trial, Biddle had been Attorney General of the United States but had been asked to resign by Truman earlier in 1945.
Some accounts argue that Truman had appointed Biddle as the main American judge for the trial as an apology for asking for his resignation. Ironically, Biddle was known during his time as Attorney General for opposing the idea of prosecuting Nazi leaders for crimes committed before the beginning of the war, even sending out a memorandum on 5 January 1945 on the subject. The note also expressed Biddle's opinion that instead of proceeding with the original plan for prosecuting entire organizations, there should simply be more trials that would prosecute specific offenders.
Biddle soon changed his mind, as he approved a modified version of the plan on 21 January 1945, likely due to time constraints, since the trial would be one of the main issues which were to be discussed at Yalta. At trial, the Nuremberg tribunal ruled that any member of an organization convicted of war crimes, such as the SS or Gestapo, who had joined after 1939 would be considered a war criminal. Biddle managed to convince the other judges to make an exemption for any member who was drafted or had no knowledge of the crimes being committed by these organizations.
Justice Robert H. Jackson played an important role in not only the trial itself but also in the creation of the International Military Tribunal, as he led the American delegation to London that, in the summer of 1945, argued in favor of prosecuting the Nazi leadership as a criminal conspiracy. According to Airey Neave, Jackson was also the one behind the prosecution's decision to include membership in any of the six criminal organizations in the indictments at the trial, though the IMT rejected this because it was wholly without precedent in either international law or the domestic laws of any of the Allies. Jackson also attempted to have Alfried Krupp be tried in place of his father, Gustav and even suggested that Alfried volunteer be tried in his father's place. Both proposals were rejected by the IMT, particularly by Lawrence and Biddle, and some sources indicate that this resulted in Jackson being viewed unfavorably by the latter.
Thomas Dodd was a prosecutor for the United States. There was an immense amount of evidence backing the prosecutors' case, especially since meticulous records of the Nazis' actions had been kept. There were records taken in by the prosecutors that had signatures from specific Nazis signing for everything from stationery supplies to Zyklon B gas, which was used to kill the inmates of the death camps. Thomas Dodd showed a series of pictures to the courtroom after reading through the documents of crimes committed by the defendants. The showing consisted of pictures displaying the atrocities performed by the defendants. The pictures had been gathered when the inmates were liberated from the concentration camps.
Henry F. Gerecke, a Lutheran pastor, and Sixtus O'Connor, a Roman Catholic priest, were sent to minister to the Nazi defendants. Photographs of the trial were taken by a team of about a dozen US Army still photographers, under the direction of chief photographer Ray D'Addario.
The Tribunal is celebrated for establishing that "crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." The creation of the IMT was followed by trials of lesser Nazi officials and the trials of Nazi doctors, who performed experiments on people in prison camps. It served as the model for the International Military Tribunal for the Far East which tried Japanese officials for crimes against peace and crimes against humanity. It also served as the model for the Eichmann trial and present-day courts at The Hague, for trying crimes committed during the Balkan wars of the early 1990s, and at Arusha, for trying the people responsible for the genocide in Rwanda.
The Nuremberg trials had a great influence on the development of international criminal law. The Conclusions of the Nuremberg trials served as models for:
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 Nürnberg Tribunal and in the Judgement of the Tribunal (Yearbook of the International Law Commission, 1950, vol. II). See Nuremberg Principles.
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.
Tourists can visit courtroom 600 on days when no trial is on. A permanent exhibition has been dedicated to the trials.
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. This movement was brought about because, during the trials, there were conflicting court methods between the German court system and the U.S. court system. The crime of conspiracy was unheard of in the civil law systems of the Continent. Therefore, the German defense found it unfair to charge the defendants with conspiracy to commit crimes, while the judges from common-law countries were used to doing so.[page needed]
It [IMT] was the first successful international criminal court, and has since played a pivotal role in the development of international criminal law and international institutions.
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Though the guilt of the sentenced parties is generally considered beyond doubt, the trials themselves have been criticised on several procedural points.
A contemporary German jurist said:
That the defendants at Nuremberg were held responsible, condemned and punished, will seem to most of us initially as a kind of historical justice. However, no one who takes the question of guilt seriously will be content with this sensibility. Justice is not served when the guilty parties are punished in any old way, even if this seems appropriate concerning their measure of guilt. Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge.
Chief Justice of the United States Supreme Court Harlan Fiske Stone called the Nuremberg trials a "fraud". "[Chief U.S. prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg[.] 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", Stone wrote.
Associate Supreme Court Justice William O. Douglas wrote 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. Law was created ex post facto to suit the passion and clamor of the time." Another prominent American who raised the ex post facto criticism was Robert A. Taft, a US Senate Majority Leader from Ohio and son of William Howard Taft. This position contributed to his failure to secure the Republican nomination for President in 1948.
Critics of the Nuremberg trials argued that the charges against the defendants were only defined as "crimes" after they were committed and saw the trial as a form of "victor's justice".Quincy Wright, writing eighteen months after the conclusion of the IMT, explained the opposition to the Tribunal thus:
The assumptions underlying the Charter of the United Nations, the Statute of the International Court of Justice, and the Charter of the Nuremberg Tribunal are far removed from the positivistic assumptions which greatly influenced the thought of international jurists in the nineteenth century. Consequently, the activities of those institutions have frequently been vigorously criticized by positivistic jurists ... [who] have asked: How can principles enunciated by the Nuremberg Tribunal, to take it as an example, be of legal value until most of the states have agreed to a tribunal with jurisdiction to enforce those principles? How could the Nuremberg Tribunal have obtained jurisdiction to find Germany guilty of aggression, when Germany had not consented to the Tribunal? How could the law, first explicitly accepted in the Nuremberg Charter of 1945, have bound the defendants in the trial when they committed the acts for which they were indicted years earlier?
In 1915, 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". However, 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 retroactive law, in violation of the principles of the prohibition of ex post facto laws and the general principle of penal law nullum crimen, nulla poena sine praevia lege poenali.[avalon 24]
The Tribunal itself strongly disputed that the London Charter was ex post facto law, pointing to existing international agreements signed by Germany that made aggressive war and certain wartime actions unlawful, such as the Kellogg-Briand Pact, the Covenant of the League of Nations, and the Hague Conventions of 1899 and 1907.[avalon 25]
One criticism that was made of the IMT 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,[avalon 26] which contains an expansion of customary law: "the [Hague] Convention expressly stated that it was an attempt 'to revise the general laws and customs of war,' which is thus recognized to be then existing, but by 1939 these rules laid down in the Convention were recognized by all civilized 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."
Jackson, in a letter discussing the weaknesses of the trial, in October 1945 told U.S. President Harry S. Truman that the Allies themselves "have done or are doing some of the very things we are prosecuting the Germans for", including violation of the Geneva Convention and the Soviet Union's aggression against the Baltic states. One of the charges, brought against Keitel, Jodl, and Ribbentrop, included conspiracy to commit aggression against Poland in 1939. However, Soviet leaders were not tried for their part in the German-Soviet Non-Aggression Pact. Moreover, Allied Powers Britain and the Soviet Union were not tried for preparing and conducting the Anglo-Soviet invasion of Iran (1941) and the Winter War (1939-1940), respectively. The main Soviet judge, Iona Nikitchenko, presided over some of the most notorious of Joseph Stalin's show trials during the Great Purges of 1936 to 1938, where he, among other things, sentenced Kamenev and Zinoviev, as part of a regime that executed 681,692 people arrested for "counter-revolutionary and state crimes" in 1937 and 1938 alone. Though the ICTY later held it to be "flawed in principle", the tu quoque argument, adduced by German defendants, was admitted as a valid defense during the trials, and the admirals Dönitz and Raeder were not punished for waging unrestricted submarine warfare.
The validity of the court has been questioned on several grounds.
The trials were conducted under their own rules of evidence. The Charter of the International Military Tribunal permitted the use of normally inadmissible "evidence". Article 19 specified that "The Tribunal shall not be bound by technical rules of evidence ... and shall admit any evidence which it deems to have probative value". Article 21 of the Nuremberg International Military Tribunal (IMT) Charter stipulated:
The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United [Allied] Nations, including acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and the records and findings of military and other Tribunals of any of the United [Allied] Nations.
The chief Soviet prosecutor submitted false documentation in an attempt to indict defendants for the murder of thousands of Polish officers in the Katyn forest near Smolensk. However, the other Allied prosecutors refused to support the indictment and German lawyers promised to mount an embarrassing defense. No one was charged or found guilty at Nuremberg for the Katyn Forest massacre. In 1990, the Soviet government acknowledged that the Katyn massacre was carried out, not by the Germans, but by the Soviet secret police.
Luise, the wife of Alfred Jodl, attached herself to her husband's defense team. Subsequently, interviewed by Gitta Sereny, researching her biography of Albert Speer, Luise alleged that in many instances the Allied prosecution made charges against Jodl based on documents that they refused to share with the defense. Jodl nevertheless proved some of the charges made against him were untrue, such as the charge that he helped Hitler gain control of Germany in 1933. He was in one instance aided by a GI clerk who chose to give Luise a document showing that the execution of a group of British commandos in Norway had been legitimate. The GI warned Luise that if she did not copy it immediately she would never see it again.
The tribunal's eventual decision was that Gustav Krupp could not be tried because of his condition but that 'the charges against him in the Indictment should be retained for trial thereafter if the physical and mental condition of the defendant should permit'.
The trial removed 11 of the most despicable Nazis from life itself. In the early morning hours of Wednesday, October 16, 1946, ten men died in the courthouse gymnasium in a botched hanging that left some strangled to death for as long as 25 minutes.
the experienced Army hangman, Master Sgt. John C. Woods, botched the execution. A number of the hanged Nazis died, not quickly from a broken neck as intended, but agonizingly from slow strangulation. Ribbentrop and Sauckel each took 14 minutes to choke to death, while Keitel, whose death was the most painful, struggled for 28 minutes at the end of the rope before expiring.
... in the light of the similar conduct of the British Admiralty and the United States Navy, the tribunal did not impose any punishment on the Admirals for these violations; they were punished for other violations only [p. 103] ... the tu quoque argument received recognition at the International Military Tribunal at Nuremberg [p. 117] ... the [ICTY] Trial Chamber argued that 'the tu quoque argument is flawed in principle ... [p. 119]
These citations refer to documents at "The International Military Tribunal for Germany". The Avalon Project: Documents in Law, History, and Diplomacy. Yale Law School Lillian Goldman Law Library.