With victory over National-Socialist Germany in May of 1945, the Allied forces consolidated their gains, moved to take control of German territory, and accelerated plans to hold leading Germans legally accountable for the war.
Initially, Stalin suggested rounding up the top 50,000 or even 100,000 top German war leaders and executing them without further legal ado, as they had done in 1939/40 with the Polish elite. At first, the British and U.S. administrations agreed to this proposal. Shortly afterwards, the British backpedalled and instead suggested handing over for further processing the smaller war criminals to the countries where they had committed their crimes, while arresting and executing the Axis’s top 50 or 100 war leaders.
It was Stalin, of all leaders, who opposed this plan, insisting instead on a trial – no doubt the Soviet mock style – before executing these leaders. It took Roosevelt to die and Truman to take office for the U.S. administration to agree with Stalin and bring the British around. Stalin, however, dragged his feet when it came to organizing this mock trial. Hence, Truman had the U.S. take the lead, installed Justice Robert H. Jackson of the U.S. Supreme Court to be the chief prosecutor of all Allied Nations, and made sure that the upcoming trial was firmly under U.S. control.
Jackson, however, disagreed that he or anyone ought to lead the entire prosecution, as he foresaw that the Soviets would submit evidence which no one else wanted to take responsibility for. Hence, in the end, all four Allies had their own prosecutors. Jackson won the support of the Office of Strategic Services (O.S.S.), the CIA’s predecessor, to prepare the U.S.’s case. Since the O.S.S. was involved in spreading black propaganda about Germany, among other things, this did not bode well for what was to come. The O.S.S. in turn collaborated closely with the Soviet NKVD to prepare their case. Fine bed fellows indeed.
In June 1945, barely one month after Germany surrendered, all four Allies agreed to have their top legal experts convene in London to hammer out a framework for the upcoming show trial. The Soviets insisted on a trial with a swift verdict based on what was already “known” to be the defendants’ guilt. Evidence and arguments were quite superfluous. However, eventually, the Soviets agreed to an Anglo-American proposal of a more formal trial, which was then signed by all four Allies on 8 August 1945 as the London Agreement, which set out the framework and procedural rules of the upcoming International Military Tribunal (IMT).
The IMT was technically illegal for three reasons:
- Up to the creation of the IMT, no international court had existed. Therefore, any such court could have had jurisdictions over the citizens of a certain country only if that country had agreed to accept the jurisdiction of that court. The German post-Hitler government under Admiral von Dönitz was not asked to accept the court’s jurisdiction.
Under international law, only German courts of law could have legally prosecuted German war crimes. In fact, Dönitz’s government offered just that on 15 May 1945. He authorized Germany’s Supreme Court in Leipzig to conduct a German trial against suspected German war criminals. Dönitz’s request to Eisenhower for permission to go ahead with that trial resulted in U.S. and British forces arresting all members of the German government on 23 May 1945, hence more than two months prior to the creation of the IMT. Therefore, there could not have been any consent by any German government in accepting the jurisdiction of the IMT.
- In no court of the world would it be legal to put those who claim to have been wronged in the position of being both the prosecutor and the judge. At a minimum, the judges should have been chosen from countries not part of the conflict, such as Switzerland or Sweden.
- Four laws were invented for this trial under which the German war criminals were to be prosecuted:
- Conspiring to commit crimes against peace
- Waging wars of aggression
- Committing war crimes
- Committing crimes against humanity
While points b) and c), if following earlier precedents of international law, could be seen as a mere reframing of old laws, points a) and d) were completely new and unheard of. These new laws were then applied retro-actively on acts allegedly perpetrated before these laws existed. This is a violation of one of the most basic principles of law.
The farcical nature of the entire setup becomes clear when considering that this “international” court by its statute was only allowed to prosecute suspected war criminals of the Axis powers. Any truly international court would have charged whoever committed war crimes, not just those of the vanquished. During the IMT, any argument by the defense to demonstrate that the Allies had done no better, or even worse, was rejected as invalid.
During the IMT, the German leaders on trial were accused of:
- having waged wars of aggression or invading peaceful countries – when the Soviet Union had waged wars of aggression against Poland and Finland in 1939, had invaded Romania and the Baltics in 1940, and was conspiring to overrun all of continental Europe in 1941; the British had conspired to invade neutral Norway and Sweden; the U.S. had invaded neutral Iceland and Iran.
- having incarcerated hundreds of thousand without due process – while simultaneously the Allied nations had incarcerated hundreds of thousands of Americans of Japanese descent, Italians and Germans without due process, not to mention the millions who were incarcerated in the Soviet Union without due process;
- having exploited hundreds of thousands as slave laborers – while at the same time the Soviets were deporting hundreds of thousands of Germans and anyone who had collaborated with them during the war to slave-labor camps;
- letting hundreds of thousands die of neglect in ghettos and camps – while during those very months of the IMT, German “disarmed enemy forces” were dying by the hundreds of thousands in American, Canadian, Polish, French and Russian camps, not to mention the millions who had disappeared and were still disappearing in the Soviet Union’s GULag;
- having ethnically cleansed hundreds of thousands of Poles from their centuries-old homesteads in the “Warthegau” – while concurrently some ten million German civilians in East Germany and all over eastern Europe were ethnically cleansed from their centuries-old homesteads, with more than two million of them dying in the process;
- having mass-murdered innocent (Jewish) civilians by the millions – when more than two million innocent German civilians had been burned alive and blown to pieces during Allied carpet-bombing campaigns, and were being mass-slaughtered in East Germany and eastern Europe in the biggest ethnic-cleansing campaign the world had ever seen.
The worst hypocrisy of all was reserved for Justice Jackson. As a representative of the very nation which instantly mass-murdered hundreds of thousands of innocent civilians by dropping nuclear bombs on undefended cities of a country that was ready to surrender (Japan), he seriously – and falsely – accused German leaders during the IMT of having mass-murdered 20,000 innocent Jewish civilians with a nuclear blast! Here is the United States’ chief prosecutor Jackson talking during the IMT (IMT, Vol. 16, pp. 529f.):
“And certain experiments were also conducted and certain researches conducted in atomic energy, were they not? […] Now, I have certain information, which was placed in my hands, of an experiment which was carried out near Auschwitz […]. The purpose of the experiment was to find a quick and complete way of destroying people without the delay and trouble of shooting and gassing and burning, as it had been carried out […]. A village, a small village was provisionally erected, with temporary structures, and in it approximately 20,000 Jews were put. By means of this newly invented weapon of destruction [= nuclear bomb], these 20,000 people were eradicated almost instantaneously, and in such a way that there was no trace left of them;”
(But see also the entry on Ohrdruf.)
During the IMT, Jackson aptly described what this trial was essentially all about:
“As a military tribunal, this Tribunal is a continuation of the war effort of the Allied nations. As an International Tribunal, it is not bound by the procedural and substantive refinements of our respective judicial or constitutional systems […].” (IMT, Vol. 19, p. 398)
This mockery of international justice found its stage at the Nuremberg Court House, where the show unfolded from November 1945 to October 1946.
By mid-1945, the Allies had designated 24 Germans, among the hundreds captured, as “major war criminals.” These would be subject to the IMT’s unprecedented brand of justice. Of the 24, the two highest-ranking men were Hermann Göring, Reichstag president (1932–1945) and head of the Luftwaffe, Germany’s air force (1935–1945), and Martin Bormann, chief of the Reich Chancellery (1941–1945). Since Bormann was missing but believed to be alive, he was tried in absentia. Both men were sentenced to death, but Göring committed suicide before his execution. The remaining 22 men, all held in custody, were, in alphabetical order (see IMT, Vol. 22, pp. 524-587 for the verdicts, and pp. 588f. for the sentences):
- Karl Dönitz, head of the Kriegsmarine (German Navy, 1943–1945): ten years imprisonment.
- Hans Frank, head of the General Government in occupied Poland (1939–1945): death sentence.
- Wilhelm Frick, Minister of the Interior (1933–1943), Reich Leader (1933–1945), Protector of Bohemia and Moravia (occupied Czechia, 1943–1945): death sentence.
- Hans Fritzsche, popular radio commentator and head of the Nazi news division: acquitted.
- Walther Funk, Minister of Economics (1938–1945), Reichsbank president (Germany’s Central Bank, 1939–1945): life imprisonment.
- Rudolf Hess, Hitler’s Deputy (1933–1941): life imprisonment.
- Alfred Jodl, Chief of Operations Staff of the Wehrmacht’s Oberkommando (Supreme Command, 1939–1945): death sentence.
- Ernst Kaltenbrunner, Chief of the Reichssicherheitshauptamt, Germany’s Department of Homeland Security (1942–1945) and highest-ranking SS leader to be tried: death sentence.
- Wilhelm Keitel, head of the Wehrmacht’s Oberkommando (Supreme Command, 1938–1945): death sentence.
- Gustav Krupp von Bohlen und Halbach, major industrialist; found medically unfit for trial.
- Robert Ley, head of Deutsche Arbeitsfront (DAF, German Labor Front, 1933–1945): committed suicide three days after being indicted.
- Erich Raeder, Commander in Chief of the Kriegsmarine, Germany’s navy (1935–1943): life imprisonment.
- Joachim von Ribbentrop, Minister of Foreign Affairs (1938–1945): death sentence.
- Alfred Rosenberg, leading racial theorist and Minister of the Eastern Occupied Territories (1941–1945): death sentence.
- Fritz Sauckel, Gauleiter (district leader) of Thuringia, and General Plenipotentiary for Labor Deployment (1942–1945): death sentence.
- Hjalmar Schacht, Reichsbank president (Germany’s Central Bank, 1933–1939) and Minister of Economics (1934–1937): acquitted.
- Arthur Seyss-Inquart, Reichskommissar of the occupied Netherlands (1940–1945): death sentence.
- Albert Speer, architect, and Minister of Armaments (1942–1945): twenty years imprisonment.
- Julius Streicher, Gauleiter of Franconia (1929–1940) and publisher of the weekly tabloid newspaper Der Stürmer: death sentence.
- Baron Konstantin von Neurath, Minister of Foreign Affairs (1932–1938): fifteen years imprisonment.
- Franz von Papen, Chancellor of Germany (1932) and Vice-Chancellor (1933–1934): acquitted.
- Baldur von Schirach, Head of the Hitler Youth (1933–1940), Reich Leader of Youth Education (1940-1945), and Gauleiter of Vienna (1940–1945): twenty years imprisonment.
Each of them could be charged with any one, or any combination, of the above-listed four charges. Twelve men were in fact indicted on all four counts. Verdict was then rendered for each man on each individual count. A guilty verdict on even one count was sufficient for the death penalty.
In order to implement the tribunal, each of the four powers supplied one judge and one leading prosecutor, along with a support team of many individuals. These leading men were as follows:
|Henri de Vabres
|François de Menthon
British Judge Lawrence would also serve as president of the IMT. The American team was extensive, and included such men as Telford Taylor, Thomas J. Dodd, William Walsh and Walter Brudno. On the British side, Shawcross was supported by David Maxwell-Fyfe, John Wheeler-Bennett and Mervyn Griffith-Jones.
Notable, though, was the extensive Jewish presence on both the American and British teams from the very beginning. Roosevelt’s close confidant Samuel Rosenman “crafted… the founding document of the IMT,” together with Jackson (Townsend 2012, pp. 173f.). British Jews at the trial itself included Maxwell-Fyfe, Benjamin Kaplan, Murray Bernays, David Marcus and Hersh Lauterpacht. Jewish-American prosecutors or advisors were far more numerous; they included William Kaplan, Richard Sonnenfeldt, Randolph Newman, Raphael Lemkin, Sidney Alderman, Benjamin Ferencz, Robert Kempner, Cecilia Goetz, Ralph Goodman, Gustav Gilbert, Leon Goldensohn, Siegfried Ramler, Hannah Wartenberg and Hedy Epstein.
The striking Jewish presence was noted at the time by the (non-Jewish) American Thomas Dodd. In a letter to his wife of 20 September 1945, he explained his concerns about Jewish dominance:
“The staff continues to grow every day. Col. [Benjamin] Kaplan is now here, as a mate, I assume, for Commander [William] Kaplan. Dr. [Randolph] Newman has arrived and I do not know how many more. It is all a silly business—but ‘silly’ really isn’t the right word. One would expect that some of these people would have sense enough to put an end to this kind of a parade. […Y]ou will understand when I tell you that this staff is about 75% Jewish.” (Dodd 2007, p. 135)
Dodd clearly felt that this undermined the integrity of the trials:
“[T]he Jews should stay away from this trial—for their own sake. For—mark this well—the charge ‘a war for the Jews’ is still being made, and in the post-war years it will be made again and again. The too-large percentage of Jewish men and women here will be cited as proof of this charge. Sometimes it seems that the Jews will never learn about these things. They seem intent on bringing new difficulties down on their own heads. I do not like to write about this matter […] but I am disturbed about it. They are pushing and crowding and competing with each other, and with everyone else. They will try the case I guess.” (Ibid., pp. 135f.)
Who had decided that it was appropriate to have dozens of Jews on the prosecution? Who believed that anything like 75% representation was acceptable, from a nation that had, at best, 2% Jews? And why?
The trial itself was conducted from 14 November 1945 until 1 October 1946.
Mounting a defense for the defendants during the IMT was borderline impossible for many structural problems that the Allies had put in place either deliberately or as an inevitable result of their occupational policies.
The best defenders would have been German lawyers familiar with the details of the German government and military, and sympathetic to their cause. However, most of these lawyers were barred from practicing law because they had been involved in German official affairs or were members of organization deemed criminal in nature by the Allies. This left lawyers of lower tiers with less experience who were likely unsympathetic to the defendant’s cause.
The defendants’ properties, funds and assets had largely been confiscated, and what was left was usually devalued by the collapse of the Reichmark’s value at war’s end. Hence, the defendants could not afford hiring large legal teams, and they most certainly could not hope to get support by the German government, which no longer existed, or by any group of sympathizers, who would have been disbanded and arrested by the Allies, had they dared make a public appearance.
The Allies confiscated tons of documents from all over Germany. Much of it was brought to the Allies’ document center in Paris, where a large team of hundreds of legal clerks sifted through the material in search of incriminating material. Thousands of documents were eventually cherry-picked by the prosecution to bolster their case. However, none of the defense lawyers was ever granted access to this pool of documents. No defense team can prepare any legal case without access to the files of the prosecution. The only material that the defense lawyers ever saw were the thousands of pre-selected incriminating documents. If they wanted to find exonerating documents, they were on their own. However, with no noteworthy financial resources or manpower at their disposal, such a search for any left-over documents not confiscated and hidden by the Allies had little chance of success.
To make matters worse, German lawyers couldn’t just travel through Germany in search of documents or witnesses. The Allies had carved up Germany into occupational zones, and traveling through them and across zone borders was restricted. Furthermore, many potential witnesses for the defense were either arrested and inaccessible to defense lawyers, or they would put themselves in acute danger of getting arrested, should they agree to testify on behalf of the defense. Here is a concise list of challenges the defense faced during the IMT:
- Defendants: threats and psychological torture; prolonged interrogations; confiscation of personal property.
- Witnesses for the defense: intimidation, threats, even arrests; withholding of defense witnesses; forced testimonies.
- Evidence: “proof” based on hearsay; documents of arbitrary kinds; disappearance of exonerating evidence; distorted affidavits; tendentious translations; twisted meaning of documents.
- Procedure: dishonest simultaneous translations; arbitrarily rejected motions to introduce evidence; confiscation of files; refusal to provide defense access to documents; systematic obstruction of the defense’s efforts by the prosecution.
The IMT started out with every prosecutor and judge assuming that all defendants were considered guilty unless proven innocent. The very nature of the IMT demanded relatively rapid verdicts for a large number of people, which effectively prohibited time-consuming but essential phases of evidence-collection and refutation, on-site visits, expert reports, and the like. However, the prosecution did not intend to spend time on this, and the defense could not afford it due to financial and manpower restrictions. Time-cutting measures were even integrated into the very rules of the IMT. Article 19 of the London Statute, for example, states:
“The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to have probative value.” (IMT, Vol. 1, p. 15)
In other words, testimony did not have to be confirmed with material or forensic evidence. The IMT could accept virtually any statement as fact: opinion, hearsay, rumor, inference, belief. The top priority was “expeditiousness.”
Furthermore, any facts that the court chose to take as “common knowledge,” no matter how they were obtained or how improbable they were, required no proof or evidence at all. This was known as “judicial notice.” Hence, we have Article 21:
“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 Nations, including the 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 or other Tribunals of any of the United Nations.” (Ibid.)
This “common knowledge” included any alleged “fact” established by any authority or commission of any Allied country, whether in documents, verdicts, acts, reports, or other records. Once the court had taken judicial notice of something, it stood as an established fact and could not be challenged. If the defendant happened to disagree, he had no recourse.
Some of the “facts” which the IMT accepted as common knowledge were fraudulent reports written by Soviet investigative commissions about alleged atrocities committed at places such as Auschwitz, Majdanek and Treblinka. Other “facts” were those created by verdicts of Allied show trials prior to the IMT, such as those staged by the Soviet Union in Krasnodar and Kharkov, where accusations of mass murder with so-called gas vans were levied; or those that unfolded under British and American aegis in West Germany, where it has been solidly documented that both American and British investigators systematically tortured German defendants to extract false confessions. (See the entry on torture for details.)
Therefore, the IMT was a highly problematic event consisting of criminal actions against helpless detainees, and “confessions” obtained under the worst conditions imaginable. Little surprise that it found prominent critics, even among Westerners. American jurist Harlan Fiske Stone served on the U.S. Supreme Court from 1926 until his death in 1946. In his final year, he described the situation as follows (in Mason 1956, p. 716):
“[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.”
He was not speaking metaphorically; eleven of the 23 men were ultimately sentenced to death, and nine of them executed by hanging. Göring committed suicide shortly before his scheduled execution, while the eleventh death sentence against Bormann was only declamatory in nature, since he was not present.
U.S. judge Charles Wennerstrum, who presided over the seventh of the 12 later NMT trials, the “Hostages Trial,” stated the obvious: “The victor in any war is not the best judge of the war crime guilt.” The whole system was “devoted to whitewashing the Allies and placing sole blame for World War II upon Germany.” (For more extracts, see the entry on Charles Wennerstrum.)
The reflections of lawyer and U.S. senator from Ohio Robert Taft are also pertinent. Though not directly involved in the trials, Taft took an interest in events happening in postwar Europe, and he was generally appalled at the brutality and harshness of the victorious Allies. Just after the conclusion of the IMT on 1 October 1946, Taft offered a stinging indictment of the entire trial process based primarily on the principle that one cannot, after the fact, create laws by which individuals can then be prosecuted:
“I believe that most Americans view with discomfort the war trials which have just been concluded in Germany and are proceeding in Japan. They violate that fundamental principle of American law that a man cannot be tried under an ex post facto statute. The hanging of the 11 men convicted at Nuremberg will be a blot on the American record which we shall long regret.
The trial of the vanquished by the victors cannot be impartial, no matter how it is hedged about with the forms of justice. I question whether the hanging of those who, however despicable, were the leaders of the German people, will ever discourage the making of aggressive war, for no one makes aggressive war unless he expects to win. About this whole judgment there is the spirit of vengeance, and vengeance is seldom justice.” (Taft 2003, p. 200)
Overall, The IMT was a highly flawed and tendentious mock trial aimed not at truth or justice but at revenge, punishment and ideological hegemony.
Documentation on the IMT is extensive. The full proceedings, mostly in the form of transcripts and documents submitted as evidence, were published shortly after the trials. In hard-copy format, it comprises 42 volumes, each running to 500 or 600 pages. Only the largest research universities have actual copies, but fortunately it is now available for free online. The work, published in 1947, appears under two titles: The Trial of German Major War Criminals, and Trial of the Major War Criminals before the IMT. It is also referred to as the “Blue Series” or the “Blue Set” due to the blue cloth these 1947 volumes were bound with. The full series is online at the US Library of Congress website:
However, a comparison of the trial’s original sound recordings with the published transcripts has revealed, that the transcripts are not always accurate. Some passages have been excised (see the case of Julius Streicher). Some statements made in foreign languages were inaccurately translated. This mostly concerns the defendants’ German testimonies. Furthermore, even the spoken English words were at times misrepresented.