The Nuremberg War Crimes Tribunal Essay, Research Paper

In early October 1945, the four powers victorious after the Second World War issued an indictment against 24 men and six organizations. Fifty years ago the Prosecution?s opening statement was read by Associate United States Supreme Court Justice Robert Jackson. Just eight months prior to that reading, the very building in which the historical trial took place was “an enemy fortress in the hands of German troops”

The Nuremberg Trials are historically significant because they represent the first time leaders of a defeated nation were prosecuted in the name of International law- the first time such leaders were actually given a chance to plead for their lives in a tribunal setting.

The Indictment

The charges pertaining to the six organizations were designed around the problem of what to do with the hundreds of thousands of people who had been members of organizations such as the SS and the Gestapo. To indict an organization raised an important legal question regarding the legitimacy of creating a system whereby one could be found guilty based solely on proof of his association with that organization. The idea behind creating such a system was to find these organizations to have been criminal, and then to later hold hearings to determine to what extent a member was guilty.

The indictment alleged four counts of wrongdoing: Count One- Conspiracy to Wage Aggressive War, Count Two- Waging Aggressive War, or ?Crimes Against Peace?, Count Three- War Crimes, and Count Four- Crimes Against Humanity.

Issues

Conspiracy, although we didn?t talk about it in class, was mentioned as a specific intent crime; that is, the intent to commit the crime cannot be inferred merely because of acts that were undertaken by the defendant. Considering this in the context of the Nuremberg defendants, to prove that each of the twenty-one men involved individually had the requisite intent to conspire to commit aggressive war would be difficult. Solely demonstrating that they were all involved in the planning is not enough. It must also be shown that their acts were done with the intent that they succeed in waging aggressive war. This count of the indictment would therefore be the most difficult to prove.

Count two of the indictment cites the actual overt act of waging aggressive war. Whereas count one charged that there was a common plan, count two charges that there was planning and engaging in the plan in order that it may be completed. The same evidence was introduced to prove both of these counts, since the acts themselves were essential in proving the existence of a common plan.

In order to prove specific intent with respect to the above charges, the prosecution must demonstrate that the defendants acted with knowledge, and purposefully, since this will show that there was intent to do something beyond the actus reus. Furthermore, they must demonstrate that the defendants acted in such a manner with respect to each and every element of the aforementioned crimes.

For example, in regards to the crime charged in count one of the indictment, the elements of the crime can be summarized as follows:

A person is guilty of conspiracy to wage aggressive war if he:

1.

i. Plans, prepares, initiates, or wages a war of aggression

OR

ii. Plans, prepares, initiates, or wages a war that is in violation of international treaties, agreements, or assurances

OR

iii. Participates in a common plan or conspiracy to wage EITHER

an aggressive war OR a war that is in violation of international treaties, agreements, or assurances

AND

2. His purpose in such participation is to further the accomplishment of any of the foregoing.

So while in a general intent crime, the burden of proof would include only the first three circumstances listed under element number one, a specific intent crime adds the second element to the burden of proof, and requires that it be shown what the defendants intended to occur as a result of their acts.

It would appear that the charges listed in counts three and four of the indictment are, in contrast, strict liability crimes, since there is no direct mention in the statutory language of any Mens Rea. A closer look reveals that there is indeed a requirement for Mens Rea in these charges. When the statute mentions what offenses constitute crimes of war, words such as murder, killing, wanton destruction, and plunder appear. Each of these terms carries with it a definition that details the requisite Mens Rea for that offense.

Unfortunately none of these particular offenses were directly discussed in our class. Indirectly, however, the Nuremberg Tribunal addresses questions of the Equal Protection Doctrine, and Ex Post Facto Laws, as well as the issues of legality discussed early in the quarter: Freedom of Speech, and Cruel and Unusual Punishments.

The Nuremberg Defendants? treatment of civilians in the territories they occupied embodied all of these issues, and ultimately led to their trial. Jews were not offered Equal Protection of the Law, were victimized by Ex Post Facto Laws, stripped of their right to free speech, and subjected to cruel and unusual punishments, as an understatement. The examples of these facts are too numerous to discuss here, so will be understood as part of the larger picture.

The Defendants

Four committees were organized to handle the investigation and prosecution of the four counts in the indictment. The United States would address count one, the British count two, the Russian and French count three and four jointly.

The individual defendants were:

Karl Doenitz, Supreme Commander of the Navy,

Hans Frank, Governor-General of occupied Poland,

Wilhelm Frick, Minister of the Interior,

Hans Fritzsche, Head of the radio division in the Propaganda Ministry,

Walther Funk, President of the Reichsbank,

Hermann Goering, Chief of the Air Force,

Rudolph Hess, Deputy to Hitler,

Alfred Jodl, Chief of Army Operations,

Ernst Kaltenbrunner, Chief to Reich Main Security,

Wilhelm Keitel, Chief of Staff of the High Command of the Armed Forces,

Erich Raeder, Grand Admiral of the Navy,

Alfred Rosenberg, Minister of the Occupied Eastern Territories

Fritz Saukel, Labor leader,

Hjalmar Schacht, Minister of Economics,

Arthur Seyss-Inquart, Commisar of the Netherlands,

Albert Speer, Minister of Armaments and War Production,

Julius Streicher, Editor of the Der Sturmer,

Constantin von Neurath, Protector of Bohemia and Moravia,

Franz von Papen, Chancellor of Germany,

Joachim von Ribbentrop, Minister of Foreign Affairs, and

Baldur von Schirach, Reich Youth Leader.

Of the twenty-four indicted, only twenty-one were actually tried. One of the defendants, Robert Ley hanged himself before the trial began. Another, Gustav Krupp, was judged too frail to stand trial. Martin Bormann, private secretary to Hitler, missing and presumed dead, so he was tried in absentia and sentenced to hang if he should ever turn up. After the trial of the 21 individual defendants was concluded, the court heard testimony about the organizations.

The six indicted organizations included the SS, Gestapo, Corps of the Political Leaders of the Nazi Party, the SA, the Reichsregierung, and General Staff and High Command of the German Armed Forces. The last two of these organizations were determined to contained so few members that it was better to try each member individually.

The Crimes

The charges of counts one and two revolve around the concept of aggressive war, its planning and execution, respectively. The Nuremberg War Charter details this as illegal and states:

“?planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing?”

Count three of the indictment alleges War Crimes, which are defined by the International Military Tribunal for the trial of war criminals as:

“?Violations of the laws or customs of war, including murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”

Count four of the indictment alleges ?Crimes Against Humanity? which are defined by the same source as follows:

“?Namely murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated?”

Evidence and Intent

The Chief Prosecutor noted in his opening statement that the circumstances of the trial were such that both prosecution and judgement ?must be by victor nations over vanquished foes, as a result of the fact that the worldwide scope of their aggressions left but few true neutrals?. As a result of this fact, there was some speculation about how fair this trial could really be.

To their advantage, however, the prosecution needed only to rely on the evidence created by the defendants themselves, and there was plenty of it. As the Germans were notoriously meticulous record-keepers, there was no shortage of proof in that regard. Additionally, they were vain enough to have arranged to be frequently photographed in action, and filmed as well.

There was, in fact, so much evidence, that the court was belabored to hear it all, and several times noted that a certain point had already been made satisfactorily in order to avoid getting lost in the sea of paperwork.

Among the evidence provided to the Tribunal were correspondence to and from the Fuehrer, as well as records kept by the concentration camps of Jews killed and experimented with. Due to the fact that all of this evidence was seized from and created by the Germans, its authenticity was never really in question. The photos and videos were especially powerful inasmuch as they provided irrefutable proof of who was involved in certain activities.

The Defense

Each of the defendants pled not guilty. Most felt it necessary to embellish their plea of not guilty in some way, usually by saying something like ?before my country and God, I swear I am not guilty??, and one defendant attempted to read a statement on his own behalf at the time he was scheduled to plead. This, of course, was not permitted by the judge, as the time when pleas are entered is not appropriate for such testimony.

The Prosecution?s case had, for all intents and purposes, divided the defendants into five groups. The first consisted of Goering, Ribbentrop, Kaltenbrunner, Keitel, Jodl, Rosenberg, Frank, Saukel, and Speer. Associated with varied and numerous atrocities, their names had come up repeatedly, and they seemed damned.

The second group consisted of Hess and Streicher, who were both close to Hitler, and were fanatic Nazis. Neither had any significant executive power, however, and they had faded from the picture before most of the atrocities took place.

The third group included Frick, Funk, Seyss-Inquart, Schirach, and Fritzsche. They were linked to some of the crimes, but their level of culpability was clearly less than that of those in group one.

Group four was a separate category which Raeder and Doenitz occupied; they were charged with conducting the naval campaign contrary to the laws of war.

Group five was the Nationalists: Schacht, Papen, and Neurath. These men were accused of having lent themselves to Hitler?s preparations for the waging of aggressive war, and could be considered accessories to that count of the indictment.

There was little doubt in the minds of the defense or the prosecution that the essence of the Nazi Regime?s culpability had been proven. In light of the fact that their guilt was proven with a mountain of evidence- most in the form of documents that they had themselves created, there was little hope of arguing against it. With this understanding, the approach used by each of the defendants to prove their innocence or at least mitigate their guilt was to dissociate himself from the group in any way possible, to show that he had not participated in the formulation of the common plan, and that he had not been involved in violations of the international law or crimes against humanity.

The most critical part of their respective trials, then, would be the impression they each made on the stand.

Witnesses

Aside from Hess, the only defendant who did not testify was Wilhelm Frick. As their defensive strategies were chiefly to minimize their personal involvement in the whole affair, each defendant that testified attempted to dissociate himself from the rest.

There was considerable infighting among the remaining defendants, as they attempted to exert influence over each other in order to censor testimony. Surprisingly, most of these men agreed on one thing: they did not believe that Adolph Hitler had any character flaws.

The most interesting of these witnesses, in my opinion, was Hans Frank. He was ostensibly different from the rest because he was the first to denounce and reject Hitler. He stated in his testimony that his conscience would not allow him to throw the responsibility on the shoulders of the Jews, and that although he never personally installed, or promoted the installation of extermination camps for Jews, he takes responsibility, since Hitler laid that responsibility on his people.

That statement attempts to imply that the man had a conscience. In actuality, he had been involved in all the phases of Jewish extermination. His own journal bore witness against him, and he was forced to assert that his words were much worse than his actual deeds. Frank?s testimony was labeled a ?cheap and dramatic confession? by Justice Biddle, et al., and caused dissention in the ranks among the other defendants, who found his testimony every bit as objectionable as did the Tribunal.

Outcome

In the view of most historians, Nuremberg?s legacy is mixed. Generally, there is a favorable view of the attempt made by the Allies to bring some form of international judicial action against the horrors of the Nazi regime. The Nuremberg Tribunal represents the most thorough record of Hitler?s rise to power, and the planning and launching of World War II. As such it was no small achievement.

Some argue that it was an imperfect justice, however, because the accused were chosen arbitrarily, and charged with violations of international law. Such law was binding on nations, not individuals, and it was argued that individuals could be brought to justice only under the laws of their own country. These defendants were tried under a new order established at the conclusion of the Second World War; an ?ex post facto? type of trial, perhaps, but there wasn?t really any alternative.

At its conclusion, the Tribunal had aquitted three of the accused. Eight received long prison sentences, and the rest were sentenced to death. On October 15, 1946, Hermann Goering cheated the executioner with a cyanide capsule. Two hours later the executions began.

Bibliography

Conot, Robert E., Justice at Nuremberg. Harper & Row Publishers, New York, 1983. PP. 99-120, 389-400.

Taylor, Telford, The Anatomy of the Nuremberg Trials. Alfred A. Knopf, Inc., New York, 1992. PP 3, 23, 165-180, 262-273.

Bassiouni, M. Cherif and Ved P. Nanda. A Treatise on International Law, Volume I, Crimes and Punishment. Charles C. Thomas, Publisher, Springfield, Illinois, 1973. PP 231-232, 575,