The Nuremberg Trials

Click here for sample essay

Footnotes

1 Louis Henkin and et. al., International Law, (St. Paul: West Publishing Co., 1993), 884.
2 Ibid., 884

3 Roy Gutman and David Rieff, ed., Crimes of War: What The Public Should Know, (London: W.W. Norton & Company, 1999), 8.
4 Henkin, 607.
5 Ibid., 607.

6 United Nations Landmarks in Human Rights: A Brief Chronology, (visited on March 20, 2000), http://www.un.org.
7 Thomas M. Magstadt, Nations & Governments: Comparative Politics in Regional Perspective, (New York: St. Martin's Press), 251.

8 United Nations: Statute of the International Tribunal, adopted 25 May 1993, as amended 13 May 1998, Article 2.
9 Gutman, 154.

10 Kofi Annan, The Secretary-General of United Nations, Statement On Receiving The Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, 16 December 1999.
11 Neil J. Kritz, ed., Transitional justice: How Emerging Democracies Reckon Former Regimes: Volume 1 (Washington, D.C.: United States Peace Institute, 1995), xi.
12 Terry McCarthy, Survival of the Paranoid, Time, 22 March 1999, 59.

Essay Prompt:

While the Nuremberg trials did not end war crimes or crimes against humanity, they did provide a clear message to the world that no one is above the law and that there are profound consequences for those found guilty of such offenses. Using the definitions of the various crimes that you derived from the documents, identify at least one individual in your lifetime that should be brought before a Nuremberg style tribunal. In the first half of a balanced essay, present the evidence that you feel would be used to convict the individual while using the second half of your essay to present and explain the evidence that could be used to exonerate the defendant.

THE WORLD SINCE NUREMBERG

Since the Nuremberg Trials, it is estimated that close to 100 million people have died as a result of war crimes, crimes against humanity, and genocide. The twentieth century has seen ethnic cleansing conducted by the Serbs on the Muslims in the former Yugoslavia, the Rwanda genocide of Tutsis and Hutus, and the Cambodia massacre--to name just a few of its horrors. What has happened since Nuremberg? The trials were supposed to serve as a lesson to those who might believe that they could engage in these acts of horror with impunity. The consequences of Nuremberg can be viewed on a variety of levels.

"The United Nations and the Nuremberg Trials were virtually twin offspring of the Allied negotiations and agreements with respect to the peace that would follow victory. It was at the Moscow Conference in October, 1943, that Eden, Hull and Molotov issued joint declarations pledging their countries to the establishment of an international organization to maintain peace and security.”(1) The Charter of the UN established the United Nations Organization "to maintain peace and security. . .promoting respect for human rights."(2) With the charter for the United Nations came the creation of the International Court of Justice (ICJ).

Over the years, the United Nations has played a significant role in setting the agenda of international human rights. "The Nuremberg Tribunals of 1945 set down the principle that there were such things as crimes against humanity, systematic crimes against civilians that can occur inside a country but that might be tried anywhere else."(3) In 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide to give meaning to this principle. Among the first of the UN's measures was the Universal Declaration of Human Rights often referred to as the International Bill of Rights which was adopted on November 10, 1948, by a vote of 48 to 0 with eight abstentions. The Declaration serves "as a yardstick by which to measure the content and standard observance of human rights,"(4) according to a former UN Secretary. Second, the reaffirmation of the Declaration and its provisions in a series of other instruments (including Universal Declaration of Human Rights and four other Geneva Conventions relating to handling of wounded soldiers and the protection of civilians) make up the "rules governing war between states, differentiating legal conduct from illegal and criminal acts in war."(5) Sometimes these laws are referred to as "International Humanitarian Law."

Other landmark measures were the UN's call for periodic reports on the state of human rights from member states. It was the "precursor to the reporting requirements contained in many subsequent human rights covenants."(6) In 1966, the United Nations established the Human Rights Commission and subsequently authorized it to examine information relevant to gross violations of human rights and fundamental freedoms. Later in 1968, the General Assembly eliminated the statutory limitations on War Crimes. Another convention outlawed torture and other cruel, inhuman or degrading treatment or punishment. Then in 1984 and 1985, the UN adopted principles relating to extralegal, arbitrary, and summary executions, as well as to the protection of persons under detention or imprisonment. Finally, during the 90s, the UN adopted a declaration for the protection of ethnic, religious, and minority rights.

The use of international tribunals to prosecute war crimes did not end in Nuremberg. Two major prosecutions occurred in the 90s. One grew out of the ethnic conflict in the former Yugoslavia. Under the Communists, the state of Yugoslavia was "cobbled together with Serbs, Croats, and Slovenes. The breakup of communism triggered the demise of the state and produced flash points in ethnic conflict. Egregious human rights violations. . .characterized the conflict." (7) As a result of suspected war crimes and ethnic cleansing in the former Yugoslavia, the United Nations established the ad hoc International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law. The Tribunal was given the power to prosecute persons who committed "grave breaches of the Geneva Conventions of 1949, violated the laws and customs of war, committed genocide, and crimes against humanity."(8) The Tribunal indicted and convicted numerous war criminals.

Another situation involved the Rwandan genocide campaign of 1994. Over 800,000 Rwandans were slaughtered by their countrymen and women simply because they belonged to a different ethnic group. In fact, the Rwanda President, Juvenal Habyarimana, and his government carried out a planned genocide against the Tutsi and the Tutsi returned the favor against the Hutus. As defined by the 1948 Convention for the Prevention and Punishment of Genocide, it is certain acts "committed with an intent to destroy, in part or in whole, a national, ethnic, racial, or religious group."(9) The Secretary General of the United Nations called the action, "Genocide in its purest and most evil form." (10) Although Article 1 of the Genocide Convention binds the signatories to act to prevent as well as punish, the international community failed to act. The UN force on the ground stood by and watched as the killing took place. After the slaughter was over, an international tribunal was established to bring the guilty to trial. The Tribunal arrested former cabinet members and brought many of them to trial. Many other of the accused still languish in prisons awaiting trial by the local authorities.

Many argue that justice can only be achieved through these prosecutions. Others argue that the best approach is to forgive and forget. The argument continues with each new government making the hard choices as they move toward democracy. Legal questions abound in the treatment of these crimes. Many of the abuses were not crimes under the former governments. Should they be prosecuted after 25 years? Should everyone who participated in the crimes be prosecuted? What crimes should be dealt with in the prosecution? What should be the limits on the penalties for the crimes? Should there be non-criminal sanctions? Should there be compensation for the victims? Who will finance the compensation? These are not easy questions. However, what is becoming increasing clear is that a "full, official accounting of the past is increasingly seen as an important element to a successful democratic transition."(11)

In recent years, non-government organizations such as Human Rights Watch and Amnesty International "have worked closely with sympathetic governments to establish new legal approaches ranging from the truth commissions of Latin America and South Africa to the International tribunals for Rwanda and the former Yugoslavia."(12) Success in this area is encouraging. In addition, the development of international agreements on the legal aspects of human rights law is inspiring. But war crimes and crimes against humanity have not stopped. An interesting question and one that is not easy to answer, is: How many war crimes have NOT been committed because of Nuremberg?

While a casual observer might conclude that the Nuremberg trials simply attempted to apply an international standard of justice to an eclectic collection of individuals who attempted to hide their criminal activities behind the cloak of war, the more reasoned individual should be able to see how it succeeded at reintroducing the “rule of law” to parts of Europe that had been subjected to the “rule of dictators” for more than a decade. Additionally, the qualified success of the tribunals and the application of international law at Nuremberg signaled to the world that future atrocities would be held accountable and that all citizens would be held to a standard that was higher than the arbitrary, self-serving standards espoused by future dictators and morally bankrupt governments.

Historical Background Narrative

Between 1945 and 1949, twelve trials involving more than one hundred defendants took place in the German city of Nuremberg (Nurnberg). While the first Nuremberg trial has captured the imagination of modern students because of its focus on twenty-one major war criminals, the true legacy of Nuremberg should be measured in its cumulative impact on the restoration of the “rule of law” (the fundamental principle that no one is above the law) in Europe and the foundation it established for future international tribunals.

In 1944, when victory over the Axis powers seemed likely, President Franklin Roosevelt asked the War Department to devise a plan for bringing war criminals to justice. Before the War Department could come up with a plan, however, Treasury Secretary Henry Morgenthau sent his own ideas on the subject to the President's desk. Morgenthau's eye-for-an-eye proposal suggested summarily shooting many prominent Nazi leaders at the time of capture and banishing others to far off corners of the world. Under the Morgenthau plan, German POWs would be forced to rebuild Europe. The Treasury Secretary's aim was to destroy Germany's remaining industrial base and turn Germany into a weak, agricultural country.

Secretary of War Henry Stimson saw things differently than Morgenthau. The counter-proposal Stimson endorsed, drafted primarily by Colonel Murray Bernays of the Special Projects Branch, would try responsible Nazi leaders in court. The War Department plan labeled atrocities and waging a war of aggression as war crimes. Moreover, it proposed treating the Nazi regime as a criminal conspiracy. Roosevelt eventually chose to support the War Department's plan. Other Allied leaders had their own ideas, however. Churchill reportedly told Stalin that he favored execution of captured Nazi leaders. Stalin answered, "In the Soviet Union, we never execute anyone without a trial." Churchill agreed saying, "Of course, of course. We should give them a trial first." All three leaders issued a statement in Yalta in February, 1945 favoring some sort of judicial process for captured enemy leaders.

Every nation had its own criminal statutes and its own views as to how the trials should proceed. Delegates from the Allied nations debated whether to proceed using the Anglo-American adversarial system with defense lawyers for the defendants, or whether instead to use the judge-centered inquisitive system favored by the French and Soviets. After ten days of discussion, the shape of the proceedings to come became clearer. The court for the first trial would be called the International Military Tribunal, and it would consist of one primary and one alternate judge from each country, subsequent trials would exclusively use members of the American judiciary and the adversarial system preferred by the Americans and British would be used for all trials. The indictments against the defendants would prohibit defenses based on the notion of following orders issued by superiors, as well as tu quoque (the "so-did-you" defense). Delegates were determined not to let the defendants and their German lawyers turn the trial into one focused on the questionable war conduct of the Allied forces.

Following the war, few German cities had a standing courthouse in which a major trial could be held. One of the few cities that did was Nuremberg, site of Zeppelin Field and some of Hitler's most spectacular rallies. It was also in Nuremberg that Nazi leaders proclaimed the infamous Nuremberg Laws, stripping Jews of their property and basic rights. The logistical component coupled with the historical symbolism of the city proved enough motivation for the Allied representatives to select Nuremberg as the site for these historic trials.

As the first round of trials was set to begin on November 20, Nuremberg began to fill with visitors. A prosecutorial staff of over 600 Americans plus additional hundreds from the other three Allied powers assembled and began interviewing potential witnesses and identifying documents from among the 100,000 captured for the prosecution case. German lawyers, some of whom were themselves Nazis, arrived to interview their clients and began trial preparation.

What follows is a selection of primary source documents that provide an insight into the German courts under Nazi rule, outline the principal charges leveled against the various defendants (military leaders, civilian authorities, judges, and industrialists), and bear witness to the desire of Allied leaders to restore the “rule of law” to Germany.

Portions excerpted from Doughlas O. Linder's The Nuremberg Trials ©2000
http://www.law.umkc.edu/faculty/projects/ftrials/nurembergACCOUNT.html