OriginThe press releases on 2 January 2006, from the British War Cabinet in London have shown that as early as December 1944, the Cabinet had discussed their policy for the punishment of the leading Nazis if captured. British Prime Minister Sir 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, and was only dissuaded from this by talks with U.S. 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. U.S. President Franklin D. Roosevelt joked 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."12 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 de-industrialization of Germany, along with forced labour and other draconian measures similar to those that the Nazis themselves had planned for Eastern Europe. Roosevelt initially supported this plan, and managed to convince Churchill to support it in a less drastic form. 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. 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 20 November 1945, in the city of Nuremberg. Creation of the courtsOn January 12, 1942, representatives from the nine occupied countries 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 States, Soviet Union and the United Kingdom, 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, issued on 8 August 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 3 September 1939. The war crimes tribunal tried and punished personnel only from Axis countries. Accusations arose claiming victor's justice, since Allied war crimes could not be triedcitation needed. It is, however, usual that the armed forces of a civilised country3 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 defence was in part based on the Field Manual published by the War Department of the United States Army, on 1 October 1940, and the American Soldiers' Handbook4. 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 to some Finns at the end of the concurrent Finnish-Soviet Continuation War. In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law. LocationThe 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 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.
The Nuremberg judges, left to right: John Parker, Francis Biddle, Alexander Volchkov, Iona Nikitchenko, Geoffrey Lawrence, Norman Birkett
ParticipantsEach of the four countries provided one judge and an alternate, as well as the prosecutors. The judges were:
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 François de Menthon and Auguste Champetier de Ribes for France. Assisting Jackson was the lawyer Telford Taylor and a young US Army translator named Richard Sonnenfeldt. Assisting Shawcross were Major Sir David Maxwell-Fyfe and Sir John Wheeler-Bennett. Mervyn Griffith-Jones, later to become famous as the chief prosecutor in the Lady Chatterley's Lover obscenity trial, was also on the 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. Robert Falco was an experienced judge who had tried many in court in France. The main trialThe International Military Tribunal was opened on 18 October 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 organizations - the leadership of the Nazi party, the Schutzstaffel (SS) and Sicherheitsdienst (SD), the Gestapo, the Sturmabteilung (SA) and the High Command of the German armed forces (OKW). The indictments were for:
The 24 accused were: "I" indicted "G" indicted and found guilty "O" Not Charged
"I" indicted "G" indicted and found guilty "O" Not Charged 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 demeanour and personality of the defendants survive. The death sentences were carried out 16 October 1946 by hanging using the standard drop method instead of long drop.2829 The executioner was John C. Woods. 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. Of the twelve defendants sentenced to death by hanging, two were not hanged: Hermann Göring committed suicide the night before the execution and Martin Bormann was not present when convicted. The remaining ten defendants sentenced to death were hanged. 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 and prosecuted in the so-called Doctors' Trial led to the creation of the Nuremberg Code to control future trials involving human subjects. Of the organizations the following were found not to be criminal: Subsidiary and related trials
Influence on the development of international criminal lawThe 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 Nürnberg Tribunal and in the Judgement of the Tribunal (Yearbook of the International Law Commission, 1950, vol. II30). 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. Part of the defence 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 humanity31 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. But the customary law of war exists, and has existed, since time immemorial; the use of treaty to codify what is allowed and what is prohibited is merely its modern expression; just as the common law in the English-speaking nations has forbidden murder, under pain of death, since its inception, without a word on the statute-books proscribing murder in many of the common law countries up to the present day. The idea that there are certain expectations of those practicing the profession of arms among the civilized nations has been ingrained in many cultures--including those of Europe, East Asia (c.f. bushido, the warrior code of Japan), the Middle East (c.f. Saladin, the Arabian/Islamic exemplar of knightly virtue, respected and honored across the battle-lines by the Crusaders), and other civilizations. In particular, the culture of Europe gave rise to the concept of chivalry, the code of honor regulating the conduct of knights, men-at-arms, and in later days, in more modern forms, soldiers. Traditionally, in Europe and elsewhere, the obligation of the warrior is to levy war upon all those who bear arms against him, his brothers-in-arms, his commander, and his nation, using whatever means at his disposal are necessary and honorable for the task, and not using those which are dishonorable or perfidious, but in so doing, to save and to defend the innocent, the weak, and the helpless; to bring succor to the wounded, comfort to the dying; to spare from the rigors of war those who do not present a threat, not bearing arms against him; to give quarter, and to treat with humanity and military dignity the enemy soldier who has yielded, or is incapacitated; and, above all, to protect women and children from the sword. The idea that a warrior owes a duty not just to his nation, or his army, but also to his common humanity is a concept as old as civilization itself is. Over the millennia, civilization has remembered with respect those warriors who were courageous in battle and merciful to those they defeated, regardless of whose banner under which they fought32, while history regards with infamy those warriors, regardless of their military success, who willingly discarded the very honor and respect that they may have earned in battle through their atrocities committed upon civilians or cruelties visited upon vanquished foes. No warrior has been regarded as a man of courage for slaughtering of the weak or innocent, for his pillages or sacks, or for brutalities and barbarities he visited upon his foes; therein lies no honor or glory, only senseless cruelty. This indicates that just as the law against murder in the common-law nations is established not by statute, but by history, custom, the human condition, and by being immanent in Nature, so too is the law of war, and so too has it always been, whether its violation is explicitly prohibited by treaty or not. 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.
Validity of the courtUS 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."33 Associate Supreme Court Justice William O. 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."34 The validity of the court has been questioned for a variety of reasons:
However, as described above, the unconditional surrender of the Axis powers was unusual and led directly to the formation of the international tribunals. 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; in restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law. Moreover, 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.42 Additionally, many commentators felt the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punishment could ensue; including some of the defendants and their legal team:
Condemnation of the Nuremberg Trials U.S. Senator Robert Taft condemned the postwar Nuremberg Trials as victor's justice in which the people who won the war were the prosecutors, the judges and the alleged victims, all at the same time. Taft condemned the trials as a violation of the most basic principles of American justice and internationally accepted standards of justice. Although his opposition to the trials was strongly condemned by many, other observers, such as Senator John F. Kennedy in his bestselling Profiles in Courage, applauded Taft's principled stand even in the face of great criticism. Notes
Further readingSee also
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