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Nuremberg – Law on Trial

by Michele Ernsting

10-11-2005

Nuremberg, November 1945. In the dock, front row: Hermann Goering, Rudolf Hess, Joachim von Ribbentrop and Wilhelm Keitel

At the end of World War Two, as nations assess the scale of the destruction in their individual countries, the outline of an enormous crime begins to appear: whole countries have been pillaged, millions have been deported, robbed, tortured, murdered, exterminated.

What name do you give such a crime? The four allies who gathered to pass judgment called it 'The waging of aggressive war'.

By putting war on trial they were also putting the law itself on trial. 
 
As World War Two grinds to an end, the victorious allies must decide what to do with the German leadership. Several ideas are proposed by the leaders of America, Britain, Russia and France; ideas which reflect the scale of their injuries and their own sense of justice; execution of all Nazi officers, a show trial, a summary court martial.

Ultimately, the American proposal to create an international military tribunal prevailed.

Collecting the evidence
The first task was to gather evidence. The scale of the Nazi crimes were, at that time, unclear. Ben Ferencz, now 86, was one of many people who helped document what later became known as the Holocaust.

Nuremberg prosecutor Ben Ferencz

Indictments
Based on the collected evidence, the allies issued indictments for crimes against peace, war crimes, crimes against humanity, and planning, initiating and waging wars of aggression. While war crimes had been defined, the other three legal definitions added to what was then a much smaller body of international law.

The crime of waging aggressive war had never been codified or argued in a court of law. Critics said this constituted ex-post facto justice – law after the fact.

Aerial view of the Nuremberg Palace of Justice, where the International Military Tribunal tried 22 leading German officials for war crimes. (Photo: US National Archives and Records Administration)

At the time, the notion that international law would supercede national law was novel. One of the biggest challenges of Nuremberg lay in establishing a legal code acceptable to all the allies. Whitney Harris, now 91, was the assistant to the American Chief Prosecutor Robert Jackson:

“The trial involved a compromise of both the Anglo-American legal system and the continental legal system. We permitted the defendants to select their own defense counsel.”

Courtroom scene with Whitney Harris in the middle

The defendants
"The goal was to have a trial of the arch criminals representing the major sectors of the Reich," says law Professor John Q Barrett. In the end, 22 men were tried; they included Hitler's right-hand man Herman Göring, Deputy Führer Rudolf Hess and Albert Speer, Director of War Ministries. 

“Of course there were mistakes made,” says Ben Ferencz.

“The (defendants) were rather a mélange slapped together in a hurry, as it had to be, because the public demanded action; trying to have four nations participate, including the Soviet Union, which was itself accused of major crimes. This diminishes the impact, the clarity and the perfection of the trials, but these are relatively minor flaws. The important thing was that certain acts were condemned as evil and illegal and for which perpetrators would be held to account.”

Whitney R Harris

The trials
The first trial began on 20 November 1945. It went on for 11 months and was followed by another 12 trials of other groups which worked with the Nazi party, including medical doctors and industrialists. At the age of 27, Ben ferencz prosecuted the leaders of the Einsatzgruppen, the nazi mobile murder units. It was the biggest murder trial in history.

In the end 206 people were put on trial, 36 received the death penalty, 24 were actually put to death and 38 people were acquitted. The rest were sentenced to varying terms of imprisonment.

Despite this outcome, critics of the Nuremberg process say it represents victor’s justice.  “These people were tried by those who won the war,” says Whitney Harris. But, he adds,  “it was the evidence that convicted these individuals, it was not the fact that they lost the war.”

Acceptance
Throughout the trial, the Germans living in the former Nazi stronghold of Nuremberg showed little interest in the proceedings. They were busy trying to survive among the ruins of bombed out buildings. Also, "Germans were victims of their own propaganda," says Ewald Behrschmidt, judge at Nuremberg's Superior Court. "The government said: "If we lose the war, you'll be dealt with in a cruel way by the victors. They will tell you lies."

Rudolf Hoess

"And then, there were ten months of witnesses, inmates from the concentration camps. The commander of the concentration camp Auschwitz, Rudolf Hoess, confessed he had organised the mass execution of millions of Jews. So, the Germans learned that atrocities were committed in their names. As a result, the acceptance of the trial at the end was better than at the beginning. And 60 years later, you can say the trials have been accepted."

The promise of Nuremberg
But Justice Behrschmidt laments that 'the promise' of Nuremberg has not been honoured. In his closing speech, Justice Robert Jackson pledged that those nations who were now judging would, in the future, agree to be judged by the same standards.

But this never happened. The cold war froze the development of international law. It would take almost 50 years before the creation of the subsequent international criminal tribunals for Yugoslavia and Rwanda.

From Nuremberg to the International Criminal Court
In 2002, the International Criminal court was created in the Dutch city of The Hague to try the gravest crimes. President Philippe Kirsch sees a direct link between the ICC and Nuremberg.

"The interest of Nuremberg was finally to demonstrate that international criminal justice was feasible. The idea of international criminal tribunals existed long before, but in modern times those initiatives always failed. Even after 60 years, Nuremberg was the only real point of reference that the international community used to create new tribunals."

ICC building in the Hague

But 60 years after Nuremberg, the International Criminal Court is not able to prosecute the main crime prosecuted at Nuremberg; the waging of aggressive war. As well, the American government refused to ratify the treaty on which the ICC is based. "I think we had a vision of a more humane world under law," says Ben Ferencz, "and I very much regret that we've not been able to make more progress in that direction. I regret it doubly when I see that that this US administration has forgotten what we tried to teach the world at Nuremberg. It's very regrettable, and I feel that pain. "

The legacy of Nuremberg
Nuremberg posed the question, "can law save man from his worst instincts?" And despite setbacks since Nuremberg, Ben Ferencz believes it can.

"Absolutely! Today everybody in the world knows genocide is a crime, and everyone knows human rights should be respected. International courts are springing up everywhere. These are all based on the Nuremberg precedents. In order to have a peaceful society, you need clear laws and you need courts to enforce them, and that's what the people at Nuremberg tried to do. And for that I think the world owes them a debt."

Tags: Germany, ICC, Iraq, martial law, Nazi trials, Nuremberg, US, war crimes

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