On the morning of 20 November 1945 a former American railway lawyer named Robert H. Jackson rose to his feet in Courtroom 600 of the Justizpalast in Nuremberg and began the opening statement of the most consequential trial of the twentieth century. The room had been rebuilt in the previous three months by American army engineers from the wreckage of a building that had itself, until April that year, been the courthouse where the Nazi People’s Court had handed down its racial death sentences. The defendants sat behind a wooden rail twelve feet from the prosecution lectern. There were twenty-two of them. They wore civilian suits or, in the case of Hermann Göring, a faded Luftwaffe uniform stripped of its insignia. They had been the second tier of the Third Reich; the first tier, Hitler, Himmler, Goebbels, were dead by their own hands.
Jackson spoke for two hours and twenty minutes. He did not raise his voice. The opening sentences became, almost immediately, the most quoted lines of postwar legal history. The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilisation cannot tolerate their being ignored, because it cannot survive their being repeated. The court interpreters relayed the words simultaneously into German, French and Russian through earphones, the first time in any courtroom anywhere that simultaneous interpretation had been used. The defendants listened. Some took notes. Göring, by every account, smiled.
What was at stake in Courtroom 600 over the following ten and a half months was not whether the killing had happened. The captured German records, three trainloads of them shipped from caches in salt mines and castles across the American zone, established that beyond any argument. What was at stake was whether a court could try the leaders of a sovereign state for what their state had done; whether it could try them for crimes that had not, before 1945, existed as named offences in international law; and whether the verdict it produced would be remembered as justice or as the dressed-up vengeance of the winners. Eighty years on, the question is still asked. The trial’s defenders and its critics have not stopped arguing. What is not in dispute is that the trial happened, that it produced a record, and that everything that came afterwards in international criminal law, the Genocide Convention, the Geneva Conventions of 1949, the tribunals for Yugoslavia and Rwanda, the International Criminal Court, was built on what was done in that room.
How a court came to exist
The decision to try the surviving Nazi leadership had not been obvious. Winston Churchill, in private exchanges with Roosevelt and Stalin in 1944 and into 1945, argued for summary execution of the senior leaders on the basis of a list. The reasoning was practical: Churchill thought any judicial process would be so long and contentious that it would either descend into farce or give the defendants a propaganda platform. He thought, after Versailles, that Allied commitments to international tribunals were rarely honoured and that the Nazi case had to be closed before the postwar coalition collapsed. The Soviet position, surprisingly, was for trials, partly because Stalin had a domestic appetite for show trials and saw international ones the same way. The decisive intervention was American. Henry Stimson, the Secretary of War, and within his department a group of younger lawyers led by Murray Bernays and later Telford Taylor, pressed for proper trials on proper charges with proper evidence. Truman backed them. Churchill gave way at the Potsdam Conference in July 1945.
The London Conference of June and August 1945 hammered out the Charter under which the trial would proceed. The four delegations, American, British, Soviet, French, argued for six weeks. The Soviet delegation pressed for the inclusion of charges relating specifically to Nazi crimes against the Soviet Union, including the Katyn massacre, which the Soviets themselves had committed but blamed on the Germans. The American team, led by Jackson, fought to keep the charge of crimes against peace, which the British thought legally novel and dangerous. The French team, led by Robert Falco, wanted explicit recognition of crimes against humanity as a category extending to acts committed before the war began. The compromise was the four-count Charter: conspiracy to wage aggressive war; crimes against peace; war crimes; and crimes against humanity. Each count came with its own evidentiary problems. The third was the most secure in existing law. The fourth was the most morally important. The first two were the most contested.
The defendants in the dock were chosen from the surviving leadership, not at random and not without controversy. Hermann Göring, Reichsmarschall and Hitler’s designated successor for most of the war, was the senior figure. Rudolf Hess, who had flown to Scotland on his eccentric peace mission in 1941, sat beside him. Joachim von Ribbentrop, the foreign minister; Wilhelm Keitel, chief of the Wehrmacht High Command; Ernst Kaltenbrunner, head of the Reich Security Main Office and Heydrich’s successor; Alfred Rosenberg, the regime’s chief racial theorist; Hans Frank, the Governor-General of occupied Poland; Wilhelm Frick, the interior minister; Julius Streicher, publisher of Der Stürmer; Walther Funk, president of the Reichsbank; Karl Dönitz, who had succeeded Hitler as Reich President for the eight days before the surrender; Erich Raeder, the senior naval commander before Dönitz; Baldur von Schirach, leader of the Hitler Youth; Fritz Sauckel, the slave-labour plenipotentiary; Alfred Jodl, chief of operations at the Wehrmacht High Command; Franz von Papen, the conservative politician who had handed Hitler the chancellorship in 1933; Arthur Seyss-Inquart, the Austrian Nazi who had run the occupied Netherlands; Albert Speer, the architect and armaments minister; Konstantin von Neurath, the foreign minister before Ribbentrop; Hans Fritzsche, a senior radio propagandist; Hjalmar Schacht, the early-1930s economics minister who had broken with Hitler in 1937; Martin Bormann, Hitler’s secretary, tried in absentia and never found.
The room and the rules
The mechanics of the trial mattered. The prosecution rested its case principally on captured German documents. Jackson’s tactical decision, against the advice of some of his team, was to let the records do the work. The Reich Ministry of Justice files, the Reich Chancellery files, the foreign ministry cables, the SS personnel files, the army situation reports, the racial laws and their implementing decrees, the Wannsee Protocol, the Einsatzgruppen reports, the Korherr Report on the progress of the Final Solution, were submitted in volume after volume. Witnesses were used sparingly, mostly to authenticate documents or to give context the documents could not. The Allied side wanted the trial to feel less like a melodrama than the Nazi People’s Court had felt and more like a procedure that could be reviewed in any law school in the world. They largely succeeded.
The defendants had counsel of their choice, paid by the tribunal. Most chose senior German lawyers, several of whom had themselves been members of the Nazi Party but had no record of complicity in war crimes. The defence had access to all documents the prosecution introduced. They could call their own witnesses. They could cross-examine the prosecution’s. The presiding judge, Sir Geoffrey Lawrence of the British bench, ran the courtroom with restraint that exasperated the Soviet judges and reassured almost everyone else. Defence counsel were given more latitude than the Allied prosecutors had wanted. The proceedings ran in four languages with simultaneous interpretation, an IBM system that worked, mostly, after a difficult first month. The transcripts, eventually published in forty-two volumes, ran to over six million words.
The witnesses who spoke for the dead
The trial heard a small number of witnesses whose testimony has stayed in print. Marie Claude Vaillant-Couturier, a French Communist resistance member who had survived Auschwitz, gave a day of evidence on 28 January 1946 describing the selection ramp at Birkenau. She described arrivals from Greece, France, the Netherlands, Hungary; the separation of families; the column led to the chambers; the smoke. She had been an ordinary witness to the system and she described what she had seen in the calm flat voice that survivors developed because no other voice was bearable. Göring sat watching her. The court transcript records that she was on the stand for several hours.
Otto Ohlendorf, who had commanded Einsatzgruppe D, gave testimony on 3 January 1946 in the course of the prosecution’s case on the killing in the East. Ohlendorf was not in the dock; he was a witness for the prosecution under a partial immunity arrangement that he later regretted. He described how his unit had killed 90,000 men, women and children in twelve months between 1941 and 1942 in southern Ukraine and the Crimea. He described the procedure: pits, lines, the firing detail. He defended what he had done. The stenographer’s record gives no indication that he hesitated. Ohlendorf was tried in his own right at the Subsequent Nuremberg Proceedings two years later and was hanged at Landsberg in 1951.
The most consequential single witness was Rudolf Höss, who had commanded Auschwitz from 1940 to 1943 and who had returned in 1944 to oversee the killing of Hungarian Jewry. He had been captured in March 1946 by a British counter-intelligence unit, interrogated at length, and brought to Nuremberg as a prosecution witness in the case against Kaltenbrunner. He testified on 15 April 1946. He described the gas chambers at Birkenau, the rate of killing, the specific design choices that distinguished his methods from those at Treblinka. He gave a figure for those killed at Auschwitz under his administration of two and a half million, a figure subsequent historians have brought down to about a million, his over-estimate apparently a matter of vanity. He was returned to Polish custody, tried in Warsaw the following year, and hanged on the grounds of his former camp in April 1947 at the gallows the Polish authorities had constructed for the purpose, on the ground in front of the main gate.
The defence and its argument
The defence cases varied. Göring made the calculated choice of mounting a political defence, treating the trial as a continuation of the war and seeking to rehabilitate the regime in the eyes of future Germans. He spoke for several days from the witness box in his own defence, performed well by the standards of theatre, and was systematically dismantled by Jackson and then by the British prosecutor David Maxwell Fyfe in cross-examination. The Maxwell Fyfe cross-examination, conducted over two days in March 1946, is studied in law schools as a model. Fyfe led Göring through the regime’s racial laws, the Kristallnacht pogrom, the looting of the Polish economy, the slave labour programme and the killings in the East. Göring tried bombast, then wit, then evasion. None of it worked. By the second day he was visibly diminished.
Speer’s defence was different. He acknowledged the regime’s crimes, accepted what he called collective responsibility for them, denied personal knowledge of the killing, and presented himself as a technocrat who had served his country and lost his moral way. The performance was convincing enough to save his life. Subsequent research, particularly by Gitta Sereny in Albert Speer: His Battle With Truth (1995), has shown that Speer knew far more than he admitted at Nuremberg, including that he had attended Himmler’s first Posen speech in October 1943 in which the killing was described in detail. The Nuremberg court accepted his account because the documents available at the time did not contradict it. Some of the documents that would have contradicted it were among those whose discovery Speer’s evidence had helped to deflect.
Frank, the Governor-General of Poland, surprised the court by admitting his guilt and asking for forgiveness. Streicher, by contrast, conducted himself with such open antisemitism on the witness stand that he made the prosecution’s case for them. Hess, the most pitiable defendant, gave a long disordered statement at the close of the trial that left in serious doubt whether he understood the charges. The court’s medical panel had already debated whether he was fit to stand trial; the decision to proceed was a contested one.
The verdicts
The judgment was delivered on 30 September and 1 October 1946. It ran to about 250 typed pages, read out across two days by the four presiding judges in turn. The court rejected the defence argument that the charges were retroactive, holding that the conduct charged had been recognisably criminal under the law of nations as it stood when the acts were committed, and that the silence of pre-1939 international law on aggressive war did not exempt those who had waged it. It rejected the defence of superior orders as a complete defence, holding that an order from a superior could be a mitigating factor but did not dissolve individual responsibility for crimes the participant knew or should have known to be wrong.
Twelve defendants were sentenced to death by hanging: Göring, Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodl, Seyss-Inquart and Bormann (the last in absentia). Three were sentenced to life imprisonment: Hess, Funk and Raeder. Four drew terms of years: Speer (twenty), Schirach (twenty), Neurath (fifteen), Dönitz (ten). Three were acquitted: Schacht, von Papen and Fritzsche. The acquittals were the proof that mattered most, the proof that the trial had been a trial and not a foregone conclusion. They infuriated the Soviet judge, Iona Nikitchenko, who issued a dissenting opinion. They reassured everyone else.
The hangings were carried out on the night of 15 to 16 October 1946 in the Nuremberg prison gymnasium, by an American hangman named John C. Woods who had been brought in for the purpose. The gymnasium was a small room. Woods had not designed his gallows well; the trapdoor was too small and the rope too short for the body weights involved. Several of the condemned died slowly, struggling on the rope, in violation of every standard of execution practice the United States Army had set out. Streicher shouted “Heil Hitler” before the hood was placed over his head. Frank prayed. Most of the others said little. Göring was not among them. Two hours before his scheduled hanging, in a cell that had been searched repeatedly, he swallowed a cyanide capsule. The source of the capsule has never been definitively established. The most plausible accounts attribute it to an American lieutenant who had grown sympathetic to him over the months of guard duty. Göring left a note saying that the Reichsmarschall could not be hanged.
What the trial left
The first thing the trial left was a record. The forty-two volumes of the published transcripts, the additional volumes of evidentiary documents, the photographs, the films, the cross-examinations, the judgment and the dissenting opinions, are the largest single body of contemporaneous testimony, document and analysis on the Third Reich in existence. They are searchable. They can be cited. They have been cited in every serious work of Holocaust scholarship since 1947. The decision to put the case on the record, rather than to take Churchill’s view that summary justice would have been quicker, was the decision that gave the future the material it needed.
The second was a set of legal principles that the United Nations General Assembly affirmed unanimously in resolution 95(I) of December 1946 and that the International Law Commission codified in 1950 as the Nuremberg Principles. The principles were that any person committing an act constituting a crime under international law is responsible and liable to punishment; that the absence of an internal-law penalty does not relieve responsibility; that heads of state and government officials are not exempt; that following superior orders is not a defence if a moral choice was possible; that the right to a fair trial applies; that crimes against peace, war crimes and crimes against humanity are punishable; and that complicity is itself a crime. The propositions are now uncontroversial. In 1945 they were radical. They are the framework on which subsequent international criminal law has been built.
The third was the language. The trial introduced into general use the terms genocide (coined by Lemkin in 1944, used at Nuremberg as a descriptive but not yet a charged offence) and crimes against humanity (drafted by Hersch Lauterpacht for the British team, derived from the 1907 Hague Conventions but expanded for the new context). These terms now organise the way the modern world thinks about state-organised mass killing. They were not in the lexicon when Jackson rose to speak in November 1945. They were when he sat down in October 1946.
The criticisms and their weight
The trial has been criticised continuously since 1945. The criticisms divide into three families.
The first is that it was victors’ justice. The bench was made up of judges from the four prosecuting powers. The Soviet judge represented a state that had, in the period covered by the indictment, invaded Poland, Finland, the Baltic states and Romania, and that had committed the Katyn massacre. The American and British judges represented states that had bombed Hamburg, Dresden and Tokyo with conventional weapons and Hiroshima and Nagasaki with atomic ones. None of these acts was within the indictment. The defendants noticed this. So has every commentator since. The Nuremberg defenders’ answer is that the alternative to imperfect justice was no justice at all; that the crimes the defendants had committed were on a different scale and of a different character from those of the Allies; and that a trial conducted by neutrals would have been impractical to organise in 1945. The answer is reasonable. It is not complete. The criticism remains.
The second is that the conspiracy count was a legal invention. The prosecution argued that the entire Nazi project, from the Munich putsch of 1923 onwards, had been a single conspiracy to wage aggressive war and commit crimes against humanity, and that membership of the leadership was therefore membership of a criminal enterprise. The court accepted the conspiracy count narrowly and rejected the more expansive American version. Subsequent international tribunals have largely abandoned conspiracy charges in favour of the more specific doctrine of joint criminal enterprise, an indication that the original Nuremberg formulation was indeed flawed.
The third is that the trial was unbalanced in its choice of defendants. The senior surviving political and military figures were tried. The men who had run the camps, designed the gas chambers, drafted the racial laws, deported the Jews of France or Hungary or Greece, were not in the dock at the IMT. They were tried later, in the twelve Subsequent Nuremberg Proceedings between 1946 and 1949, in the Frankfurt Auschwitz Trial of 1963 to 1965, in the trials at Tel Aviv (Eichmann, 1961), Düsseldorf (Treblinka, 1964 to 1965; Sobibór, 1965 to 1966), Lüneburg (the Bergen-Belsen trial, 1945), Hamburg (the Stutthof trial, 1946 to 1947), and many others. The international military tribunal tried twenty-two leaders. The crimes had needed many more.
What the trial was for
Rebecca West covered the trial for the New Yorker and described it, in a phrase that has stuck, as a citadel of boredom. She meant that the proceedings were laborious, the courtroom drab, the evidence repetitive, the defendants for the most part diminished. She also meant that this was the point. The trial was not designed to entertain. It was designed to put on the record what had been done, by whom, on what authority, and on what evidence, in a form that would survive the deaths of everyone present in that courtroom and would still be usable a century later. The boredom was the methodology.
It worked. Almost everything we now know about the inner workings of the Third Reich was first established at Nuremberg or in the trials that followed it. The historians who came afterwards, Hilberg, Bauer, Friedländer, Browning, Longerich, did their work on the foundations the prosecutors and the documents had laid. The institutions that came afterwards, the Genocide Convention of 1948, the Geneva Conventions of 1949, the European Convention on Human Rights of 1950, the International Criminal Tribunals for the former Yugoslavia and Rwanda, the International Criminal Court, drew their authority from the proposition that a court could try the leaders of a state for what their state had done. Before Nuremberg that proposition had no real precedent. After it, it was the common law of nations.
The men in the dock were not the only ones the trial was speaking to. It was speaking to everyone who would, in the eight decades that followed, hold a position in which the choice between obedience and crime would be put. Some of them have heeded the message. Some have not. The trial does not by itself make people behave better. What it does is leave them without the excuse that no one has ever asked the question.
Sources
- International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, 42 vols, Nuremberg, 1947 to 1949 (the Blue Series)
- Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir, Knopf, 1992
- Robert E. Conot, Justice at Nuremberg, Harper and Row, 1983
- Ann Tusa and John Tusa, The Nuremberg Trial, Macmillan, 1983
- Joseph E. Persico, Nuremberg: Infamy on Trial, Viking, 1994
- Kim Christian Priemel, The Betrayal: The Nuremberg Trials and German Divergence, Oxford University Press, 2016
- Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld and Nicolson, 2016
- Rebecca West, A Train of Powder, Macmillan, 1955
- Gitta Sereny, Albert Speer: His Battle With Truth, Macmillan, 1995