The Nuremberg Trials

Lecture at the University of Toronto, June 1996

Fifty years ago today the International Military Tribunal at Nuremberg was in session. Hermann Goering and 21 other Nazi accused were on trial for their lives. The trial would still continue until Judgment was rendered on October 1, 1946. There was no appeal as such, but the Allied Control Council for Germany reviewed and rejected all applications for clemency. Two weeks later, in the early morning hours of October 16th, ten of the convicted were hung. Goering himself, who had asked to be shot and whose request had been denied, took a cyanide capsule before he was found by the guards.

Three of the accused were acquitted: the former Chancellor Franz von Pappen, the former Minister of Finance Hjalmar Schacht and the former Press Chief Hans Fritzsche.

Many books have been written on this most famous of all criminal trials, including most recently the memoirs of Telford Taylor, an American Assistant Prosecutor at the International Military Tribunal and Chief Prosecutor at the subsequent 12 Nuremberg Trials under American jurisdiction. For those who remember the movie "Judgment and Nuremberg" with Spencer Tracey, Maximillien Schell and Judy Garland, that movie did not concern the main trial but rather the third U.S. Trial, which targeted members of the German judiciary.

Of course, there are as many ways to approach the subject matter as there are authors. Most agree that in the light of the horrors of the Second World War, in particular the Holocaust, trial and punishment of the Nazi leadership was necessary. Most authors also agree that the Nuremberg trials failed to impact on international practice, since no leader has been deterred from engaging in aggressive war or from ordering and committing war crimes and crimes against humanitythe international community had not succeeded to follow-up on the Nuremberg Principles, although there had been countless wars of aggression and innumerable war crimes and crimes against humanity following the Nuremberg Trials. Not only had the Trials failed as a deterrent to aggressive war, they had even failed as a deterrent against the most horrible crimes of torture and genocide.

No international criminal tribunal was ever established to adjudicate over the horrors of India-Pakistan War of 1971-73 that ended, after enormous cruelties and civilian casualties, in the emergence of the new State of Bangladesh. No international criminal tribunal ever condemned the use of prohibited chemical weapons or the massacring of child soldiers in the Iran-Iraq war of the 1980's. No international tribunal ever sat over Pol Pot and the Khmer Rouge to condemn them for their policy of genocide, although, he was placed under "house arrest" in August 1997 and died in April 1998 in the Cambodian Khmer hide out.

Only after the end of the cold war between the communist and the capitalist world was it possible to achieve consensus in the United Nations and establish two tribunals to prosecute war crimes and crimes against humanity. One for the War in the Former Yugoslavia 1991 to 1995 (established by decision of the UN Security Council, Resolution 827 1 ), one for the civil war in Rwanda in 1994 (S.C.Res. 935/1994 vom 1 Juli 1994).

So wurde die Konvention gegen den V ö lkermord 1948 von der UNO-Generalversammlung verabschiedet. 1949 folgten die 4. Genfer Rotkreuz-Konventionen, im Jahre 1974 die Definition des Angriffkrieges, im Jahre 1977 die Protokolle I und II zu den Genfer Rotkreuz-Konventionen. Freilich k ö nnen die Normen allein nicht viel bewirken. Man muss die Normen lehren, und dann auch die Mechanismen entwickeln, damit Verst ö sse wirkungsvoll bestraft werden k ö nnen.

During the Second World War, Telford Taylor served in Europe as a U.S. Army intelligence officer; after the war he joined the American prosecution staff at the International Military Tribunal in Nuremberg, and in 1946 was promoted to brigadier-general and made Chief Prosecutor for the twelve ensuing Nuremberg Trials under American jurisdiction. This book focuses on the international military trial against Hermann Goering and 21 other accused.

There is no need in this review to recount the history of the London Charter establishing the Tribunal, describe the indictment or the judgment, which are aptly summarized by the author. What the reader expects is to see how a former prosecutor views the trials in retrospect, how he perceives issues such as nullum crimen sine lege , which is associated with the new notion of "crimes against peace"; how he appreciates the conduct of the trial, taking account of the principle of equality of arms, access to documentation, the tu quoque defence, mitigating circumstances; how he stands vis B vis the verdicts; the precedent value of the trials, their impact on the development of the laws of armed conflict, in particular the 1949 Geneva Conventions and 1977 Protocols thereto, and whether he thinks that the time is ripe for another international criminal tribunal. The reader gets answers to some of these questions, but much remains to be said. Undoubtedly Taylor is one of the few persons alive who can give us a systematic analysis of the complex legal issues, but this book is not so much intended as a legal treatise, but rather as a personal memoir, full of vignettes, anecdotes, lively excerpts from the transcripts of oral argument, analysis of the respective strategies, and evaluation of the performance of the various prosecutors, defence counsel, their witnesses, etc.

After a brief introduction, Taylor tells a coherent tale in 22 chapters, devoting ample attention to the pre-history of the trials, an evaluation in the light of the laws of war, and focussing on special issues such as the charges against the SS and the General Staff-High Command (chapter 10), the criminal organizations (chapter 11), the French and Soviet Prosecutions (chapter 12); he takes the defendants in groups: Goering and Hess (chapter 13), "Murderers' Row" (chapter 14), bankers and admirals (chapter 15), and dwells on the closing arguments (chapter 17), defendants' last words (chapter 19), and on the judgment (chapters 20 and 21).

Perhaps the most notorious confrontation in the trial was Goering's cross-examination by the American chief prosecutor Robert Jackson, which began late in the morning session of March 18, 1946 and would last for several days. Taylor explains why the celebrated duel turned into an embarrassment for Jackson, and enhances our knowledge by drawing on his own impressions of the personalities involved, including the judges who ruled against Jackson and caused this rather self-righteous man to lose his bearings (pp.335-347). Cross-examination by the British prosecutor Sir David Maxwell-Fyfe proved more successful, but Fyfe fell short of establishing Goering's complicity in the illegal execution of the air force fugitives from Stalag Luft III at Sagan, Silesia, which was carried out by Himmler upon a direct order from Hitler.

The most shocking evidence in the trial was presented in connection with the extermination of the Jews by the Einsatzgruppen, the destruction of the Warsaw ghetto, and the conditions in the concentration camps, including the testimony of Auschwitz commandant Hoess. An interesting aspect here is that none of the accused admitted knowledge of the gas chambers and that the prosecution assumed, but was unable to establish, their actual knowledge; moreover, many of the accused insisted that although they were aware of the manifold anti-Jewish measures adopted by Hitler, they had not learned about exterminations until the Nuremberg trial itself. It would have been most interesting if Taylor had elaborated on this crucial issue of knowledge of the exterminations and possibilities of opposing them, since there was much germane testimony, e.g. on Hitler's Order Number One concerning secrecy on State affairs 2 and on the discovery by SS judge Georg Konrad Morgen of the killings at Lublin/Maidanek, which prompted him to seek an indictment against Adolf Eichmann 3 .

With regard to the defence of the High Command of the Wehrmacht, this reviewer disagrees with Taylor's statement that "as for the asserted preservation of the laws of war by the German Army, [defence counsel] Laternser and his witnesses gave no evidence in support of their claim" (p. 530). Laternser, in fact, presented 3,186 affidavits to the Tribunal, many of them describing the measures taken by many Army Generals and Colonels to ensure the observance of the Hague and Geneva Conventions, including the prosecution by court martial of Wehrmacht soldiers who had committed crimes against the civilian population in occupied territory, as well as the disregard or non-transmittal of Hitler's illegal Commissar and Commando orders 4 . The originals of these affidavits are found at the Peace Palace at the Hague, but not a single one of them was reproduced in the published 42-volume IMT documentation.

As to the verdicts, Taylor feels that Grand Admiral D ö nitz should not have been convicted on the evidence, nor Julius Streicher, whose main crime was that of being repulsive, but the Tribunal may have been influenced "by the likelihood of a negative public reaction if Streicher got anything less than the worst" (p.599); according to Taylor, "mitigation" in the case of Seyss-Inquart could have justified a prison sentence of twenty years instead of death, but his case was apparently not pressed forcefully enough. On the other hand, Taylor believes that the evidence fully justified the death sentence againt Jodl, that the death sentence against Funk would have been appropriate, that Speer was at least as guilty as Sauckel for the use of forced labour in the war industry and could similarly have been sent to the gallows. All sentences were submitted to the Allied Control Council for clemency; but the Control Council was a political body, not a judicial appellate court. In spite of the arguments made by defendants' lawyers, all sentences were confirmed. Goering's, Keitel's and Jodl's petitions to be shot rather than hanged were rejected.

Taylor gives the reader an interesting review of the serious hypotheses concerning Goering's suicide, where he might have hidden the cyanide capsule, and whether the American lieutenant "Tex" Wheelis helped him (pp.618-624). As to the execution by hanging of the ten remaining convicts in the early hours of October 16, 1946, Taylor refers to press articles criticising the fact that apparently the drop was not long enough and that the men had not been properly tied, so that their heads struck the platform as they fell and they "died of slow strangulation" (London Star ). Taylor spares the reader the more gruesome details that Jodl took 18 minutes to die, Keitel 24 minutes, and that Streicher kept moaning long after the fall.

Over the dissenting vote of the Soviet judge, three of the accused were acquitted: Hans Fritzsche, Franz von Pappen and Hjalmar Schacht. After their release, they were all subjected to further penal proceedings. The Spruchkammer in Nuremberg sentended Fritzsche to nine years of hard labor, loss of voting, pension, and public office rights; von Pappen was sentenced by the same court to ten years in a labor camp. Similarly, Schacht was sentenced by a Stuttgart court to eight years in the Ludwigsburg labor camp; on appeal he was acquitted, but then subjected to further denazification proceedings in L ü neburg. Taylor reports on this without addressing the apparent violation of the principle of ne bis in idem (pp. 612-14).

One of the most problematic aspects of the trial concerned the indictment against organizations such as the SS and the Gestapo. Obviously the organizations could not be "punished", since they had all ceased to exist. But the motivation for the indictment was to facilitate the punishment of the individual members of these organizations, an idea that flies in the face of the principles of presumption of innocence and individual guilt. Thus, mere membership in a "criminal organization" could lead to conviction and sentencing of individuals who under contemporary legal principles would not be deemed to have committed any criminal offence. The Nuremberg judgment held the SS, SD, Gestapo and leadership corps of the NSDAP to be "criminal organizations"; the Reich cabinet, the SA, the general staff and the High Command of the Wehrmacht (OKW) were not so found. Taylor concludes that the judgment against the organizations was of little consequence, since the process of denazification was subsequently applied to all Germans, who were thus punished and disenfranchised independently of the Nuremberg judgment.

On p. 634 Taylor poses the final question: was the IMT a success? He believes that it was. In this context he recalls the United Nations General Assembly Resolution of 11 December 1946, which "affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal." 5 This meant, among other things, that the concept of "crimes against peace" had been recognized and that the precedent of individual responsibility for waging aggressive war had been established. This reviewer observes that although the criminalization of aggressive war for the future is indubitably a good thing, the violation of the ex post facto principle vis B vis the Nuremberg defendants remains a flaw, and, as Taylor concedes, for a great many Germans, Nuremberg was not a success (p. 639). Moreover, Nuremberg's criminalization of aggressive war has notoriously failed to deter politicians from launching countless aggressions since World War II.

The chapter on the defendants' last words is interesting, not only from the human and psychological aspect, but also because of certain legal issues that the defendants raised. While Goering criticised the evaluation of the evidence by the Tribunal, Hans Frank put his finger on perhaps the most important flaw in the trial: the double-standard or double-morality of the victors. When testifying during the trial, Frank had acknowledged the enormity of the German crimes: "a thousand years would not suffice to erase the guilt brought upon our people because of Hitler's conduct of this war". Now he rectified his prior statement: "Every possible guilt incurred by our nation has already been completely wiped out today, not only by the conduct of our wartime enemies toward our nation, and its soldiers, which has been carefully kept out of this trial, but also by the tremendous mass crimes of the most frightful sort which -- as I have now learned -- have been and still are being committed against Germans by Russians, Poles, and Czechs, especially in East Prussia, Silesia, Pomerania, and Sudetenland. Who shall ever judge these crimes against the German people?" Taylor wryly records that "when delivered, the passage caused no stir in the courtroom"(p. 539). The reader would have welcomed greater elaboration by Taylor, especially in his capacity as professor of international law. Indeed, if the Nazis had been convicted of war crimes and crimes against humanity partly upon the specific indictment of having carried out compulsory population transfers, how will history judge the Allied prosecutors and judges whose governments were, at the very same time when the Nuremberg trials were being conducted, engaged in the gruesome enterprise of expelling 14 million Germans from their homelands, a barbarous process which more than two million did not survive. It is to the credit of the British Jewish publicist Victor Gollancz that he vigorously protested against this Allied crime against humanity in his book Our Threatened Values , where he observed: "If the conscience of mankind ever again becomes sensitive, these expulsions will be remembered to the undying shame of all who committed or connived at them. . .The Germans were expelled, not just with an absence of over-nice consideration, but with the very maximum of brutality."(p.96) Taylor apparently does not perceive this matter as a "political wart on Nuremberg and the IMT" (p.639), as he does the presence of Soviet judges and prosecutors at IMT, including General Roman Rudenko, who had been a prosecutor at Stalin's purge trials in the 1930s, and bearing in mind Stalin's invasion of Poland in September 1939 and the Soviet aggression against Finland (November 1939-March 1940). Admittedly, the Soviet presence at Nuremberg did pose problems, not to speak about the failed attempt to pin the Katyn murders on the Germans (pp. 466-72). But Taylor somehow still seems to think that the Western Allies were on very solid moral ground. This reviewer would observe that by comparison with the enormity of the Allied decisions (at Teheran/Yalta/Potsdam) to uproot 14 million Germans and to use German labour as "reparations in kind" (effectively reintroducing slave labour, pursuant to specific agreement at Yalta 6 on 11 February 1945), the above-mentioned "political warts" are but historical arabesques.

Although the bibliography is relatively short (only 77 titles), it is well chosen, including the important but neglected works by August von Knieriem, The Nuremberg Trials , and by H.K. Thomson and Henry Strutz (eds.), Doenitz at Nuremberg: A Reappraisal . Some critical English sources are missing, such as Lord Hankey's indignant Politics, Trials and Errors , and reference to germane studies on Allied war crimes 7 ; nor does the bibliography include important German-language sources such as Kurt Heinze and Karl Schilling's handbook Die Rechtsprechung der N ü rnberger Milit ä rtribunale , Robert Kempner's Das Dritte Reich im Kreuzverh ö r , and Otto Kranzb ü hler's thoughtful Rückblick auf Nürnberg. The notes at the end of the book are extremely helpful and thorough.

It is perhaps an anomaly that in the 46 years following the Nuremberg and Tokyo judgments no other international military tribunal has been established to prosecute the grotesque violations of the Hague and Geneva Conventions that have been committed in the many wars that have taken place in this period. There have been, of course, private tribunals established by concerned individuals in order to draw public attention to the abuses in some of those wars, such as the Bertrand Russell Tribunals of the 1970s concerning the Vietnam war and the Commission of Inquirty for the International War Crimes Tribunal, in which former U.S. Attorney General Ramsey Clark participated, and which examined the legality of U.S. actions during the war against Iraq in 1991, popularly known as "desert storm". 8

This book is particularly timely in the light of the United Nations Security Council Resolution to establish a war crimes commission and a war crimes tribunal in connection with the war in the former Yugoslavia 9 .

It is to be hoped that Telford Taylor will have the opportunity of writing another personal memoir of the twelve American trials held at Nuremberg from 1946 to 1949, for which he served as chief prosecutor. Also with respect to these trials it is good to recall Taylor's concluding remark that "the laws of war do not apply only to the suspected criminals of vanquished nations. There is no moral or legal basis for immunizing victorious nations from scrutiny. The laws of war are not a one-way street." (p. 641) Who would disagree?

1 Report of the Secretary General pursuant to Paragraph 2 of Security Council Resolution 808 (22. Februar 1993), U.N. Doc. S/25704).

2 I.M.T. vol. XX, p. 510.

3 Ibid., pp. 511-14.

4 A. de Zayas, "Der N ü rnberger Prozess", in Alexander Demandt (ed.), Macht und Recht, Grosse Prozesse in der Geschichte , C.H.Beck, Munich, 1990, pp. 249-270.

5 UNGA Res. 95(I).

6 Protocol on German Reparations, Foreign Relations of the United States, the Conferences at Malta and Yalta, 1945, pp. 982-3.

7 See the review by Otto Kimminich in GYIL vol. 34 of de Zayas, The Wehrmacht War Crimes Bureau (pp. 598-600).

8 Ramsey Clark, The Fire This Time: U.S. War Crimes in the Gulf, New York, 1992.

9 Security Council Resolution 780 of 6 October 1992, establishing the war crimes commission, and Security Council Resolution 808 of 22 February 1993 calling for the establishment of an ad hoc tribunal.