A hand-carved sculpture of the IMT defendants’ box, made by one of the American guards. The sculpture is on display in the library at TJAGLCS. (Credit: Jason Wilkerson, TJAGLCS)
Lore of the Corps
The Nuremberg Trials at 75
The International Military Tribunal and the Military Trials Under Council Law No. 10 (1945-1949)
By Fred L. Borch III
Seventy-five years ago, on 20 November 1945, an international military court in Nuremberg, Germany, began criminal proceedings against twenty-two high ranking Nazis. Charged with having committed “crimes against humanity,” “crimes against peace,” and “violations of the laws and customs of war,” the defendants were tried by four judges—one American, one Frenchman, one British, and one Russian. When this International Military Tribunal (IMT) completed its work on 31 August 1946, twelve of the twenty-two defendants had been sentenced to death, and three received life imprisonment. With the exception of three individuals who were found not guilty, the remaining accused were sentenced to confinement, ranging from ten to twenty years. Five Nazi organizations were also declared criminal.
Immediately following the end of the IMT, the American military government held twelve more war crimes trials in Nuremberg.1 They were convened under the authority of Control Council Law No. 10, a law enacted by the Allied Control Council2
that governed Germany after World War II. These “Subsequent Proceedings”
(as most historians call them) indicted 185 commanders, doctors,
lawyers, judges, industrialists, bankers, and other Germans who had
willingly participated in war crimes, crimes against peace, and crimes
against humanity. Seventy-five years have passed since the start of the
IMT and the Law No. 10 tribunals. Now is the time to commemorate this
important legal milestone by briefly telling the story of these thirteen
Nuremberg trials, Army judge advocates’ role in them, and their
importance in the development of international criminal law and the law
of armed conflict (LOAC).
International Military Tribunal
There were some senior Allied leaders who believed that the guilt of
major Nazi leaders was “so black” that they should be summarily
executed.3 Ultimately, however, the United States, United Kingdom, France, and the Soviet Union—collectively known as the Four Powers—decided that there should be some sort of judicial disposition, a trial, where those determined to be guilty of war crimes would be punished.4 The result was the Allied Executive Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (Agreement) and a Charter of the International Military Tribunal (Charter). Together, the Agreement and the Charter established the law under which the Nazi leaders would be tried as well as the shape of the Tribunal that would try them.5
Probably the most important issue for the IMT was which law should be applied at the proceedings. There were two possibilities: the IMT could use existing international law and determine this law by using the traditional methods of international tribunals. Alternatively, the IMT could simply apply the law as already determined by the Four Powers. The problem with the first approach was that it opened up the defense that a crime charged in an indictment was not an offense under international law. Justice Robert H. Jackson, the lead American prosecutor, argued that “in view of the disputed state of the law of nations,” it was “entirely proper” that the Four Powers should determine the criminal law that would be the basis of the IMT prosecution.6 This explains why the Charter declares the law to be used at the Tribunal. It specifies that certain acts are war crimes, and that the only decision for the IMT judges to make was which of the defendants were guilty of which crimes.
Article 6 of the Charter declared the following three crimes as prosecutable at the IMT:
- Crimes against Peace. The crime of planning, preparing, initiating or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or conspiring to do so;
- War Crimes, or violations of the laws and customs of war; and
- Crimes against humanity, or inhumane acts committed against civilian populations.7
There was not much difficulty when it came to gathering evidence supporting convictions for violations of the laws and customs of war (e.g., unlawful killing of prisoners of war) or crimes against humanity (e.g., unlawful killing of Jews and Roma in concentration camps). When it came to proof that the Nazis had committed crimes against peace, however, it was more problematic. As Brigadier General Telford Taylor, Mr. Justice Jackson’s deputy at the IMT, wrote:
the IMT left for another day the prosecution of the “trigger-pullers” and those like them
Men plan and prepare for war by acts lawful in themselves—economic estimates, military plans and maneuvers, the manufacture of weapons, political memoranda—and to prove that these were done with guilty intent to initiate an aggressive war is difficult at best. It was unusually easy in the cases of [Herman] Göring and [Joachim von] Ribbentrop, and others who were present at conferences (recorded in writing with typical German thoroughness) at which Hitler and his associates spoke openly of their intention.8
In addition to the problem of determining intent, the IMT had to interpret the term “war of aggression.” Ultimately, it held that “aggressive acts” were different from “aggressive wars.” Hitler’s seizure of Austria and Czechoslovakia were aggressive acts, while the invasion of Poland—and the subsequent invasion of France, the Low Countries, and the Soviet Union—constituted a “war of aggression.” This distinction seems rather artificial, if not illogical, and this no doubt explains why there has been no prosecution for crimes against peace since the IMT. It is no wonder the crime today is considered “something of a dead letter.”9
After the decision about the applicable law, the next most important issue was who to prosecute. Justice Jackson explained that the IMT would focus on major leaders and policy makers. “Our case,” Jackson wrote, “is concerned with the Nazi master plan, not with individual barbarities and perversions which occurred independently of any central plan.”10 In theory, the IMT could have prosecuted any and every German citizen who had committed a war crime. In focusing on the policy makers, and not those individuals who put these policies into effect, the IMT left for another day the prosecution of the “trigger-pullers” and those like them. Ultimately, the “major war criminals” were tried by the IMT. While all were important, those with the greatest name recognition included Herman Göring (Reichsmarschall and Commander of the Luftwaffe, President of the Reichstag, and Hitler’s named successor), Joachim von Ribbentrop (Foreign Minister of Nazi Germany from 1938 to 1945), and Field Marshal Wilhelm Keitel (Chief of the High Command—the highest ranking officer in the German Armed Forces).11
As for the procedure at the IMT, the Charter
borrowed from both common and civil law. Under Article 24(g), for
example, an accused could testify on his own behalf, under oath and
subject to cross-examination. While this is a fundamental right in
Anglo-American jurisprudence, it is unknown in many European courts. On
the other hand, under Article 24(j), an accused was permitted to make an
unsworn statement to the Tribunal on the merits—a statement not subject
to cross-examination. Lawyers trained in European civil law were
familiar with this practice. Common-law attorneys, however, viewed
Article 24(j) as quite extraordinary.12
For the lawyer accustomed to Anglo-American jurisprudence, the lack of a
rule against hearsay and other rules of evidence designed to protect an
accused were most unusual. Article 19, however, clearly stated that the
“Tribunal shall not be bound by technical rules of evidence,” and that
the court “shall admit any evidence which it deems to have probative
value.”13 Judge advocates familiar with Ex parte Quirin, however, would have known that the military commission trying the German U-boat saboteurs had a similar rule, i.e., any evidence probative to a reasonable person was admissible.14
Despite this mixture of common law and civil law procedure at the IMT, the process was quite fair to the defendants. The indictment had to specify “in detail the charges against the defendants,” and a copy of the indictment “and of all the documents lodged with the indictment” had to be given to the accused “at a reasonable time before trial.”15 The defendants also had the right to present a defense and have the assistance of counsel. Finally, they had the right to cross-examine any witness called by the prosecution.16
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The cover of the program for the Military Tribunals, Case No. 3. (Photo
courtesy of Fred Borch III)
As for the composition of the IMT itself, the four judges represented
each of the Four Powers. The members were: Francis Biddle (United
States); Donnedieu de Vabres (France); Lord Justice Lawrence (United
Kingdom), president; and General I. T. Nikitchenko (Soviet Union).
Biddle had been the Attorney General under President Franklin D.
Roosevelt and had been one of the prosecutors in the military commission
that tried the U-boat saboteurs.
When the IMT ended on 31 August 1946, the four judges had listened to
some 360 witnesses give hours and hours of testimony. They also had
considered thousands of pages of documents. In its judgment, based on a
forty-two volume record of trial, the IMT found eight of the accused
guilty of “conspiracy to commit crimes against peace.” The chief
evidence supporting these verdicts was that the accused had participated
in conferences at which Hitler and the eight accused “spoke openly of
their intention” to initiate war in violation of international treaties
and agreements.17 The IMT also found twelve of the accused guilty of “waging aggressive war against ten nations.” While the conspiracy to commit crimes against peace and waging aggressive war were both crimes against peace, the distinction lies in the former relating to planning, preparing, and initiating war, while the latter concerned the actual waging of war.18
In regards to war crimes, the IMT held that the “evidence relating to war crimes has been overwhelming in its volume and detail.”19 The IMT heard about the murder, ill-treatment, and deportation of civilians in occupied territories, and also the murder and mistreatment of prisoners of war (POWs). Most importantly, in finding the accused guilty of having committed war crimes, the IMT rejected the defense of “superior orders” in accordance with Article 8 of the Charter, which provided that “the fact that the defendant acted pursuant to [the] order of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment.”20 The significance of Article 8 simply cannot be overstated. It signaled the death knell to the “act of state doctrine” that previously had provided a complete defense to criminal acts committed pursuant to orders from a superior government official. No longer would a soldier of any rank be able to escape punishment for killing those wounded in combat or mistreating POWs because his commander had ordered him to do so or because such crimes were sanctioned by his government.21
Finally, in regards to crimes against humanity, the IMT heard evidence that the accused had implemented programs that either degraded or exterminated “national, political, racial, religious, or other groups.”22 The accused were convicted of being leaders, organizers, instigators, and accomplices in the formation or execution of a common plan or conspiracy to commit inhuman acts against civilians, including murder, extermination, enslavement, and deportation.23
Although some scholars and commentators have criticized the IMT as “victor’s justice” and a violation of the prohibition against ex post facto laws,24 the import of the tribunal’s decisions are clear: for the first time in history, an international court had determined that there was individual criminal responsibility for violations of international law, including responsibility for acts of state.
Military Trials Pursuant to Control Council Law No. 10
Since Articles 22, 23, and 30 of the Charter contemplated that there would be multiple IMTs, the Allies discussed plans for a second IMT, while the quadripartite judicial proceedings were underway in Nuremberg after 20 November 1945. By late October or early November 1946, however, President Truman had decided that the United States would not take part in any more IMTs. He most likely was persuaded by Justice Jackson’s final report to him on the IMT, in which Jackson argued that holding additional Four-Party trials would be inefficient. The better course of action, wrote Jackson, was for “each of the occupying powers [to] assume responsibility for a trial within its own zone.”25 A zonal prosecution “can be conducted in two languages instead of four [as occurred at the IMT], and since all of the judges in any one trial would be of a single legal system, no time would be lost in adjusting [to] different systems of procedure.”26 While Jackson’s words should be taken at face value, it also was increasingly apparent to President Truman that a second IMT might “devolve into a wrangle between capitalist and communist ideologies” and that the Russians would be more interested in scoring propaganda points than punishing German war criminals.27
Truman was prescient, as relations with the Soviet Union soon
deteriorated into a Cold War, and the emergence of the Truman Doctrine
only increased tensions between the Russians and the West.28
In January 1947, Truman informed the British, French, and Soviets that
the United States would not participate in any more IMTs and that it
intended to prosecute German war criminals “in national or occupation
courts” as authorized by Control Council Law No. 10,
Punishment of Persons Guilty of War Crimes, Crimes Against Peace and
Against Humanity. Under Article III of Law No. 10, every zone commander was authorized
to prosecute “all persons…arrested and charged” for war crimes “before
an appropriate tribunal.” While the French and Soviets almost certainly
would have liked to have continued with the IMT as a vehicle for
prosecuting war crimes, Truman’s announcement that the United States
would no longer participate in a Four-Party tribunal meant that the
Nuremberg IMT would be a stand-alone event in legal history. All war
crimes prosecutions now would occur in the Allies’ respective zones;
there would be no more quadripartite judicial proceedings.29
While Truman’s January 1947 announcement meant that there would be no
IMT after Nuremberg, the U.S. Army had been busy preparing for other war
crimes prosecutions long before this decision. In October 1944, Major
General Myron C. Cramer, then serving as The Judge Advocate General,
established the “War Crimes Division” in his office in Washington, D.C.,
and placed Brigadier General John M. Weir, a career Army lawyer, in
charge of it. Weir and his staff began collecting reports of war crimes.
Three judge advocates also went to London to work with the United
Nations Commission for the Investigation of War Crimes. The War Crimes
Division (renamed the War Crimes Office in March 1945) published lists
of alleged war criminals, and gave these to Allied troop commanders (and
to occupation authorities after May 1945), to enable them to apprehend
wanted war criminals. Along with Weir, another key figure in the Army’s
efforts to gather information on war crimes was judge advocate Colonel
David “Mickey” Marcus, who followed Weir as the head of War Crimes
Division/Office.30
Consequently, in September 1945, when General Dwight D. Eisenhower appointed Brigadier General Edward C. Betts—the Theater Judge Advocate—to oversee the identification and apprehension of persons suspected of war crimes, much had already been done by Army lawyers. Moreover, Betts played a key role in the war crimes program because he instructed Charles H. Fahy, the head of the American Legal Division of the Allied Control Council, to draft a law that would permit the British, French, Soviets, and Americans to prosecute war criminals in zonal trials. On 20 December 1945, as a result of Betts’s directive to Fahy, Law No. 10 was enacted by the Control Council.31
Ultimately, Brigadier General Betts was responsible for the prosecutions of all cases involving war crimes committed against Americans and war crimes committed in concentration camps liberated by U.S. troops. The Malmedy and Mauthausen trials held at Dachau, Germany, are the most well-known of cases in this category.32
But while judge advocates working for Betts prosecuted the Malmedy, Mauthausen,
and other similar cases at so-called Military Government Courts, where
the evidence was heard by panels of Army officers, all twelve trials
conducted under Council Law No. 10 were heard by a three-member panel of
civilian judges. This alone made them unique judicial proceedings, in that no military personnel were determining findings and sentencing, as might be expected at a military tribunal. As for the law being applied at the tribunals conducted under Law No. 10, the judges insisted that crimes listed in Law No. 10 “reflected pre-existing rules of international law;”33 and they consistently rejected the criticism that the tribunals somehow were prosecuting the accused for offenses that were not criminal at the time they were committed.
Since Law No. 10 did not dictate the structure of the zonal tribunals, General Lucius D. Clay, in his role as Military Governor and commander of the American zone in Germany, promulgated Ordinance No. 7 on 18 October 1946.34 Titled Organization and Power of Certain Military Tribunals, it established the framework for the twelve subsequent proceedings,
and permitted the tribunals to hear evidence against those men and women
accused of violating the crimes listed in Law No. 10. Under Article VII
of Ordinance No. 7, the rules of evidence were similar to those adopted
at the IMT, in that the judges could “admit any evidence which they deem
to have probative value,” including hearsay.35
Ordinance No. 7 also required proof beyond a reasonable doubt, and
viewed this as meaning that such doubt existed when an “unbiased,
unprejudiced, reflective person…could not say that he felt an abiding
conviction amounting to a moral certainty of the truth of the
charge.”36
While the judges at the twelve subsequent proceedings were civilians, the lead prosecutor was military: Brigadier General Telford Taylor. A thirty-seven-year-old attorney who had served as a deputy to Justice Jackson at the IMT, Taylor was not a member of the Judge Advocate General (JAG) Department. His close relationship with Jackson, however, and his prior work on the IMT made him well-qualified to lead all prosecution efforts under Council Law No. 10; and, on 29 March 1946, Jackson announced that Taylor would be in charge of all post-IMT trials. By this time, Taylor—aided by Colonel Marcus—had been able to recruit thirty-five attorneys, as well as scores of administrators, court reporters, translators, stenographers, and typists, who would assist in the prosecution of what is best described as the Nuremberg Military Tribunals.37
While an accused had the right to conduct his own defense, no accused made such a choice; and, as a result, more than 200 attorneys served as defense counsel in the twelve military tribunals. A few represented more than one accused in the same trial. All the defense attorneys were German lawyers, with the exception of two U.S. and one Swiss attorney. Many of the German attorneys had been Nazi Party members, and a few had been members of the Sturmabteilung (SA) and Schutzstaffel (SS).38 This Nazi affiliation, no matter how serious, did not disqualify these Germans from serving as defense counsel.39
Over the next twenty-eight months, Brigadier General Taylor (he was
promoted because the rank of colonel was thought to have insufficient
prestige for a chief prosecutor) and his staff would convene twelve
trials involving 177 accused in the Palace of Justice where the IMT had
been held. The accused represented “all the important segments of the
Third Reich,” including: Nazi judges and prosecutors; SS and other
military leaders; German industrialists and bankers; members of killing
squads; and Nazi ministers and diplomats. Of the 177 accused, 142 were
convicted. Twenty-five were sentenced to death; the rest received
sentences to imprisonment. What follows is a very brief summary of the
twelve Nuremberg Military Tribunal proceedings, starting with the
Medical Case that began on 9 December 1946 and concluding with the High Command Case that ended on 28 October 1948.40 With few exceptions, only the nature of the crimes charged and the results of trial are examined in the narrative that follows.
Case No. 1: Medical Case
Twenty-three physicians and other officials associated with German medical institutes were indicted for engaging in a “common design or conspiracy” to commit war crimes and crimes against humanity—the crimes being a variety of medical experiments performed by the accused on German civilians and enemy POWs without their consent. Most of the experiments occurred at the concentration camps. These included: high-altitude, malaria, and freezing experiments at Dachau; sterilization experiments at Auschwitz and Ravensbrueck; and spotted fever, poison, and incendiary experiments in Buchenwald.41 When the verdicts were announced on 19 August 1947, the three-civilian-judge court convicted sixteen accused and acquitted seven.
One of the most important aspects of the Medical Case was the court’s willingness to give the accused the benefit of the doubt in terms of the standard of proof. In this regard, the judges found three of the accused not guilty of having conducted horrific medical experiments on camp inmates at Dachau, even though there was “much in the record to create a grave suspicion that the defendants” participated in them.42 The Medical Case also established that there was a right against self-incrimination at war crimes trials. After the prosecution requested the testimony of Walther Neff, who had assisted in the medical experiments at Dachau, the tribunal agreed to call Neff; but, it insisted that he be advised that any statements he made before the court could be used against him at a later trial.
Case No. 2: Milch Case
Luftwaffe Field Marshall Erhard Milch was prosecuted for his involvement in creating the Nazi’s slave labor program, which had resulted in the forced removal of at least five million enslaved laborers to Germany. He was convicted and sentenced to life imprisonment, most likely because the court learned that Milch “himself urged more stringent and coercive measures to supplement the dwindling supply of labor in the Luftwaffe.”43 Released from prison in 1954, Milch died in January 1972 in Wuppertal-Barmen, Germany.44
Case No. 3: Justice Case
The fifteen accused were prosecuted for perverting the rule of law by transforming the German courts into a system of “cruelty and injustice.” They had used so-called “People’s Courts” and “Special Courts” to hold secret trials for civilians to eliminate all political opposition to Nazi Party rule. They also were charged with furthering the extermination of German Jews by applying discriminatory laws to them in legal proceedings that lacked “all semblance of due process.”45
Trial began on 5 March 1947 and ended on 4 December 1947. The import of the Justice Case is that it rejected the argument by the accused that LOAC violations were the only offenses recognized by international law. As the tribunal put it, the killings in the concentration camps were “acts of such scope and malevolence, and they so clearly imperiled the peace of the world, that they must be deemed to have become violations of international law.”46 Four accused were acquitted; the remainder were convicted of war crimes, crimes against humanity, or both. Three accused were also convicted of criminal membership in the SS. Four accused were sentenced to life imprisonment. The remainder received sentences of between five and ten years in jail.
There is a JAG Corps connection to the Justice Case: one of the three tribunal judges, Justin Woodward Harding (1888-1976), had served as a judge advocate colonel in World War II. Prior to his service as an Army lawyer and as a judge at Nuremberg, Harding had a distinguished law career: former Assistant Attorney General of Ohio, U.S. Attorney for the Alaska Territory, and U.S. District Court judge for the First Division of Alaska from 1929 to 1933. This made Harding the only federal judge to sit on any of the twelve tribunals.47
Case No. 4:
Pohl Case
The eighteen accused in the Pohl Case were all members of the WVHA (Wirschafts- und Verwaltungshauptamt or “Main Economic and Administrative Office”), one of the twelve main SS offices. The WVHA was responsible for overseeing the concentration camps as well as managing a number of “economic enterprises” that were “operated almost entirely by the use of concentration camp labor.” Since millions of innocent civilians had died in these camps, SS-Obergruppenführer, Oswald Pohl, a three-star-general equivalent who had been the chief of the WVHA, along with seventeen fellow WVHA members, were charged with conspiring to commit war crimes and crimes against humanity. The war crimes included murder and mistreatment of civilians and POWs in the camps, as well as systematic extermination of the Jews.
Ultimately, Pohl and fourteen accused were convicted. Three were acquitted. Three of the fifteen convicted men were sentenced to death (including Pohl). Three were sentenced to life imprisonment, and the remainder received between ten and twenty-five years imprisonment.48
Case No. 5: Flick Case
Friedrich Flick and the other five accused were high-ranking directors in Flick’s group of companies, called Flick Kommanditgesellschaft. The six men were charged with committing crimes against humanity, chiefly by seizing properties belonging to Jews in Germany, Czechoslovakia, and other countries. The prosecution alleged that this so-called “Aryanization” of real and private property amounted to systematic plunder in violation of the laws of war.
The trial began on 21 April 1947 and ended on 22 December 1947. Three of the accused were found not guilty. The three others were convicted for using slave labor in the companies owned or controlled by them. They received sentences ranging from two-and-a-half years to seven years.49
Flick, who was convicted of using slave labor in his company, and who had received the longest sentence, managed to reconstitute his business after being released from prison. When he died in 1972, he was one of the richest people in the world, with some 300,000 employees in 330 companies.50
Case No. 6: Farben Case
There were twenty-four accused, all of whom were employed in various plants and departments in the I. G. Farben company. The gist of the fifty-one-page indictment—the longest in the twelve subsequent proceedings—was that Farben, a chemical and pharmaceutical conglomerate, had financed the Nazi regime. It had expanded its manufacturing “far in excess of the needs of a peacetime economy” so as to allow Hitler to wage aggressive war. The indictment also charged the accused with having committed war crimes by plundering the occupied territories and using slave labor in I. G. Farben’s various factories.51
While examination of witnesses ordinarily was conducted by the prosecutors, defense attorneys, and judges, the Farben tribunal was noteworthy in permitting the accused to personally conduct cross-examination. This was a rejection of the procedure at the IMT, as that tribunal held that an accused represented by counsel was not entitled to question a witness. In Farben, however, the trial judges decided that “the complexity of expert testimony” justified permitting one or more of the accused to cross-examine a witness.52
Case No. 7: Hostage Case
The eleven accused were charged with ordering the execution of thousands of civilian hostages in occupied territory in reprisal for attacks on German troops. The prosecution stressed that the hostages had been killed without any investigation or trial and in accordance with “arbitrarily established ratios,” which varied “from 50 to 100 for each German soldier killed and 25 to 50 for each German soldier wounded.”53 Moreover, the accused were charged with having plundered public and private property, and murdering civilians in occupied Norway, Greece, Yugoslavia, and Albania. Finally, they were charged with illegally ordering their subordinates to deny POW status to combat captives and to summarily execute them.54
The trial began on 15 July 1947 and ended on 19 February 1948. Charges against one accused were dismissed because of ill health. Two others were found not guilty. Seven of the other eight were found guilty of executing hostages without due process. Five of the eight accused also were convicted for ordering the execution of POWs. Two accused received life imprisonment, and the remainder received sentences between seven and twenty years in jail.55
The judges in the Hostage proceedings wrestled with the defense of superior orders. While accepting that it was no longer a bar to individual liability, the court did hold in effect that if a subordinate did not know, and could not be expected to know, that the order he carried out was illegal, mens rea was lacking and the subordinate could not be convicted. The litmus test was the “reasonable man standard”—where a person could not reasonably be expected to know of an order’s illegality, this lack of criminal intent precluded a finding of guilt.56
Case No. 8: RuSHA Case
The fourteen accused were members of the Rasse- und Siedlungshauptamt der SS or RuSHA, which was responsible for safeguarding the racial purity of Germany. The indictment alleged that the accused had committed crimes against humanity by participating in “a systematic program of genocide, aimed at the destruction of foreign nations and ethnic groups, in part by murderous extermination, and in part by elimination and suppression of national characteristics.”57 The accused also were charged with criminal membership in the SS.58
Trial began on 20 October 1947 and ended on 10 March 1948. A female accused was acquitted. Five of the other accused were convicted solely of criminal membership in the SS and were sentenced to time served. The other eight accused were convicted of all charges. One was sentenced to life imprisonment. The remaining received sentences ranging from ten to twenty-five years.59
Case No. 9: Einsatzgruppen Case
The charges in this trial were modelled after the RuSHA indictment, in that the accused were charged with crimes against humanity by using the Einsatzgruppen to carry out “a systematic program of genocide.”60 They also were charged with a variety of war crimes, including the murder of POWs and civilians in occupied territory, and the destruction of property not justified by military necessity. All of the accused were also charged with being members of a criminal organization—either the SS, Gestapo, or Sicherheitdienst (SD or Security Service).61
The proceedings began on 29 September 1947 and ended on 9 April 1948. All were convicted; but, Otto Rasch—the commanding officer of Einsatzgruppe C—was severed from the trial for ill health. Twenty of the accused were sentenced to death, and two were sentenced to be imprisoned for life.62
The judges in the IMT Justice case, including Justin W. Harding, sitting just right of the flag. Harding was a judge advocate colonel in WWII, but was a civilian at the time of the trial. (Photo courtesy of Fred Borch III)
Case No. 10: Krupp Case
The indictment in Krupp was modelled after the charge sheet in Farben. The accused were charged with crimes against peace by financing the Nazis’ rise to power in Germany. Some of the accused were charged with war crimes and crimes against humanity by systematically plundering public and private property in countries occupied by the Germans during the war.63
The trial began on 8 December 1947 and ended on 31 July 1948. None of the accused were convicted of crimes against peace because the tribunal granted a motion to dismiss on the ground that the government had failed to present sufficient evidence to support a conviction as a matter of law. One accused was found not guilty of all charges.
Four of the accused were found guilty of plunder and slave labor—including Alfried Krupp, who the court considered to be the most culpable given his position in the Krupp group of companies. He was sentenced to twelve years’ imprisonment and ordered to forfeit all his real and personal property. The other convicted accused received sentences between time served and ten years.64
Case No. 11: Ministries Case
In a fifty-page indictment, the twenty-three accused were charged with committing crimes against peace by taking part in wars of aggression and invasion; committing war crimes—including the murder of Allied pilots and aircrew who made forced landings in Germany and been summarily executed; with participating in the murder, mistreatment, and persecution of German Jews in the 1930s; and with deporting and enslaving civilians in the occupied territories on a massive scale.65
The trial, which began on 6 January 1948 and finished on 13 April 1949, lasted more than fifteen months. Some of the accused were high level officials in the Foreign Office and Presidential Chancellory; others were members of the SD or SS, or both. Five accused were convicted of crimes against peace, two were acquitted, and the remainder were convicted of various offenses. One important aspect of the Ministries judgment is that the court refused to convict any of the accused for murder, mistreatment, or persecution of German Jews between 1933 and 1939, as it concluded that Council Law No. 10 did not make criminal any offenses that were not connected to war crimes or crimes against peace—and the offenses in question had occurred prior to the start of World War II.66
Case No. 12: German High Command Case
Wilhelm von Leeb and thirteen other high-ranking Army and Navy officers were charged with committing crimes against peace by planning various wars of aggression and invasions. They were also charged with war crimes, including the issuance of orders that “certain enemy troops be refused quarter and denied the status and rights of prisoners of war,” and the deportation and enslavement of civilians in occupied territories.67 Justin Harding, the former judge advocate colonel who had participated as a judge in the Justice Case, also sat in judgment in the High Command Case.68
The trial commenced on 5 February 1948 and ended on 28 October 1948. On
the first day, Johannes Blaskowitz—who had participated in the invasion
of Poland and held various Army commands until 1945—committed suicide by
throwing himself off a balcony at the Nuremberg prison. The court
subsequently would acquit Balskowitz of all charges. As for the
remaining thirteen accused, all were convicted of war crimes. The
evidence was overwhelming that the accused had treated Soviet POWs with
“particular inhumanity,” and that the deaths of many of these POWs “was
the result of systematic plans to murder” them.69
The court also heard evidence that some of the accused had implemented
Hitler’s order that there was to be no interference when German
civilians killed Allied airmen who had been forced to land in
Germany.70 Sentences imposed ranged from life imprisonment to time served.71
Conclusion
It is not an exaggeration to say that the IMT and the twelve subsequent
Law No. 10 trials are the foundation of modern international criminal
law. The IMT is important because it firmly established that LOAC
violations are committed by individuals—not by nations or states—and
that “only by punishing individuals who commit such crimes can the
provisions of international law be enforced.”72
Moreover, the claim that an accused should not be punished because he
was acting pursuant to the order of his government or of a
superior—which previously had limited individual responsibility for LOAC
violations—was rejected as an absolute defense by the IMT. After the IMT
verdict, all men and women were on notice that “individuals have
international duties which
transcend the national obligations of obedience
imposed by the individual State.”73 The IMT also established that LOAC includes crimes against humanity and the crime of criminal group membership. But the IMT provided no guidance for lawyers on evidence and procedure, and very little on defenses and sentencing.
The Law No. 10 trials, however, covered all those areas in great detail—and more—and consequently are extraordinarily important. The Justice Case, for example, held that it was a crime for the Nazis to transform German jurisprudence into a “nationally organized system of injustice and persecution”; the decision emphasizes the importance of the rule of law in international law. The Flick, Farben, and Krupp decisions established that the German industrialists who financed Hitler’s rise to power and equipped the German armed forces could be convicted of waging aggressive war in violation of international law. The Einsatzgruppen decision established that accused could be guilty of peacetime crimes against humanity that were not connected to the waging of aggressive war. Finally, the Hostage Case established that LOAC places limits on the principle of “military necessity”; killing thousands of civilian hostages in reprisal for attacks on German troops could not be justified as required by military necessity.
The Law No. 10 decisions, however, also promoted due process in LOAC. The Medical Case established that witnesses must be informed of their right not to incriminate themselves. Even though nothing in Ordinance No. 7 required it, all twelve tribunals permitted the accused to cross-examine witnesses against them. The judges were also willing to adopt innovative procedures, such as permitting the accused to personally conduct cross-examinations. Finally, the courts took the burden of proof seriously, acquitting some accused even when there was substantial evidence of guilt, as in the Medical Case.
As we mark the 75th anniversary of the start of the IMT and the twelve subsequent military tribunals, now is the time to acknowledge their impact on the evolution of LOAC and the role played by Army lawyers in the development of war crimes prosecutions. Additionally, it is important to recognize that these trials, besides their importance to lawyers and historians, aided in the denazification and democratization of Germany—and so helped create the free, stable, and economically vibrant Federal Republic of Germany that plays a major role in the world today. TAL
Mr. Borch is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.
Notes
1. After the unconditional surrender of Germany in May 1945, the Allies assumed extraordinary authority in Germany. The defeated nation—and its capital city, Berlin—were divided into American, British, French, and Soviet zones of occupation, and military governments were established in each zone. To coordinate the administration of these four zones, which included the right to hold war crimes trials within each zone, the commanders-in-chiefs of the four occupying armies formed an Allied Control Council. That council met on a regular basis to set—and coordinate—occupation policies in the four zones, including: food distribution, industrialization, denazification, and reparations. David Zabecki, Germany at War: 400 Years of Military History 540 (2014).
2. The Four Power Control Council consisted of France, the Soviet Union, the United Kingdom, and the United States. Each country occupied a “zone” or sector of Germany and each also occupied a zone of Berlin. See
1 Trials of War Criminals Before the Nuernberg Military Tribunals
under Control Council Law No. 10 (1951).
3. Telford Taylor, The Anatomy of the Nuremberg Trials 29 (1992).
4. The Soviets were the first to suggest that a tribunal be convened to prosecute Nazis for war crimes. While there is little doubt that Stalin believed that the Nazis were guilty and deserved to be hanged as soon as possible, he “envisioned the Nuremberg Trials as [he] had the Moscow Trials of 1936 to 1938,” that is, “as a grand political spectacle whose outcome was certain.” Francine Hirsch, Soviet Judgment at Nuremberg: A New History of the
International Military Tribunal after World War II, at 4 (2020).
5. Dina G. McIntyre, The Nuremberg Trials, 24 U. Pitt. L. Rev. 75 (1962). The Executive Agreement and the Charter both resulted from the London Conference held from 25 April to 26 June 1945. Id.
6. While Mr. Justice Jackson was one of four prosecutors—each of the Four Powers appointed a lead prosecutor to the IMT—he had the greatest impact because of his knowledge of international law and his experience as an Associate Justice on the U.S. Supreme Court. It was Mr. Justice Jackson, for example, who insisted that “aggressive war-making is aggressive and criminal,” a view that inexorably led to the IMT charge of “crimes against peace.” Robert Jackson had been on the U.S. Supreme Court since 1941 and, after his service as the lead American prosecutor at Nuremberg, he returned to the U.S. Supreme Court, where he served until his death in 1954. Id. at 82
7. Charter of the International Military Tribunal, reprinted in Kevin John Heller, The Nuremberg Military Tribunal and the Origins of
International Criminal Law 465-71
(2011).
8. Telford Taylor, Final Report to the Secretary of the Army on the
Nuremberg War Crimes Trials under Control Council Law No. 10, at 66-67 (1949).
9. Gary D. Solis, The Law of Armed Conflict 104 (2d ed. 2016).
10. U.S. Dep’t of State, Report of Robert H. Jackson, United States
Representative to the International Conference on Military
Trials
47 (AMS Press 1971) (1949).
11. The other accused were: Ernst Kaltenbrunner (head of the Reich Main Security Office); Alfred Rosenberg (minister for the Occupied Territories in the East until 1941); Hans Frank (governor-general of Poland); Wilhelm Frick (minister for internal affairs); Julius Streicher (publisher of the newspaper Der Stürmer); Fritz Sauckel (plenipotentiary of the mobilization of labor); Alfred Jodl (Colonel General and head of the Oberkommando der Wehrmacht); Arthur Seyss-Inquart (commissioner for the Netherlands from 1940 to 1945); Martin Borman (deputy Führer after 1941 (tried in absentia)); Rudolf Hess (deputy Führer until May 1941); Erich Raeder (grand admiral and commander of the Navy until 1943); Karl Dönitz (grand admiral and commander of the Navy from 1943 to 1945); Baldur von Schirach (leader of the Hitler Youth and Gauleiter of Vienna); Albert Speer (minister of armaments); Konstantin Neurath (Reich protector of Bohemia and Moravia from 1939 to 1943); Hjalmar Schacht (president of the Reichsbank from 1933 to 1939 and minister of economics from 1934 to 1937); Fritz von Papen (former vice chancellor and ambassador to Turkey); Hans Fritzche (head of the radio division of the Ministry of Propaganda).
12. Heller, supra note 7.
13. Id. McIntyre, supra note 5, at 76.
14. Ex parte Quirin, 317 U.S. 1 (1942). These saboteurs were a small group of German agents who landed on beaches in New York and Florida. Their mission was to wage a campaign of sabotage on U.S. soil. The mission failed when one of the Germans turned himself in to the Federal Bureau of Investigation. For more on Quirin, see Louis Fisher, Military Tribunals & Presidential Power 91-124
(2005).
15. Heller, supra note 7, at 469 (specifically referring to Article 16 of the charter).
16. McIntyre, supra note 5, at 76.
17. Taylor, supra note 8, at 66-67. Presumably these treaties included The Hague Conventions of 1899 and 1907, and the Kellogg-Briand Pact of 1929. The so-called Wannseekonferenz, which occurred in January 1942, is a good illustration, as it was here that the Nazis planned in detail the “Final Solution” for the Jews. For more on the Final Solution, see Lucy Dawidowicz, The War Against the Jews: 1933-1945 (1975).
18. McIntyre, supra note 5, at 84.
19. Id. at 86.
20. Taylor, supra note 8, at 66-67.
21. Article 8 did not entirely eliminate the superior orders defense. It is true that the IMT proceedings established that the defense of superior orders, in and of itself, was no longer a legal shield. But other defenses, such as coercion or duress, were still relevant to guilt. Additionally, if a “subordinate had no good reason for thinking that the order was unlawful,” then the superior orders defense would be applicable. Solis, supra note 9, at 388.
22. Taylor, supra note 8, at 64.
23. McIntyre, supra note 5, at 90.
24. Id. at 109-16.
25. Letter from Robert H. Jackson, U.S. Rep. to the Int’l Conf. on Mil. Trials, to Harry S. Truman, President of the U.S. (Oct. 7, 1946), https://avalon.law.yale.edu/imt/jack63.asp.
26. Id.
27. Heller, supra note 7, at 22.
28. In 1947, President Truman announced that the United States would “support free peoples who are resisting attempted subjugation by armed minorities or by outside pressure.” This so-called Truman Doctrine was official recognition of the Cold War between the United States and its North Atlantic Treaty Organization allies and the Soviet Union and its Warsaw Pact allies in the east.
29. Control Council Law No. 10, reprinted in Heller, supra note 7, at 473-76.
30. David “Mickey” Marcus (1901-1948) was a remarkable individual by any measure. A graduate of the U.S. Military Academy and Brooklyn Law School, Marcus practiced law in New York City and served as an Assistant U.S. Attorney prior to World War II. During the war, as a member of the JAG Department, Marcus served in a variety of assignments in Washington, D.C., Hawaii, and Europe. Colonel Marcus resigned his commission in 1947 and subsequently was recruited to help organize and train the military forces of the Provisional Jewish Government that would emerge as Israel in 1948. He was serving as a general in the Israeli armed forces when he was accidentally shot and killed during operations near Jerusalem on 10 June 1948. The film Cast a Giant Shadow, starring Kirk Douglas as Marcus, was one of the most popular movies in American theaters in 1965. Cast a Giant Shadow (Batjac Productions 1966). For more on Marcus, see
Fred L. Borch,
Soldier: David “Mickey” Marcus, On Point, Winter 2010, at 17. See also Steven L. Ossad, Out of the Shadow and into the Light: Col. David “Mickey” Marcus and
U.S. Civil Affairs in World War II, Army Hist., Winter 2016, at 6.
31. Heller, supra note 7, at 12. Edward C. Betts’s distinguished career as an Army lawyer was cut short when he died unexpectedly of “a heart ailment” on 6 May 1946. He was fifty-six years old at the time of his death in Frankfurt, Germany. Gen. E.C. Betts, 56, Army Legal Figure, N.Y. Times, May 8, 1946, at 25.
32. For more on the Malmedy war crimes trial, where seventy-four former SS members were tried for killing hundreds of U.S. POWs and Belgian civilians, see Steven P. Remy, The Malmedy
Massacre: The War Crimes Trial Controversy (2017). For more on the Mauthausen war crimes trial, which focused on the crimes committed by concentration camp personnel, see Tomaz Jardim, The Mauthausen Trial: American Military Justice in
Germany (2012). See also
Joshua M. Greene, Justice at Dachau: The Trials of an American
Prosecutor (2017).
33. Heller, supra note 7, at 123.
34. Id. at 25.
35. Article VII, Ordinance No. 7, reprinted in Heller, supra note 7, at 479.
36. Heller, supra note 7, at 140.
37. Id. at 17. In later years, Taylor became an outspoken critic of America’s involvement in Vietnam, arguing that U.S. actions in Southeast Asia reflected a failure “to learn the lessons of Nuremberg.” Telford Taylor, Nuremberg and Vietnam: An American Tragedy 207
(1970).
38. Heller, supra note 7, at 17. The SA, or Sturmabteilungen (Storm Detachment), was an early Nazi paramilitary organization created by Hitler in 1920. Hitler used his SA “stormtroopers” as an instrument of street terror in his rise to political power. By the early 1930s, however, some SA leaders had become a threat to Hitler, and so he destroyed the SA in 1934. After the disappearance of the SA, the SS or Schutzstaffeln (Protection Squads) took its place as an independent organization within the Nazi Party. Men in the SS originally functioned as bodyguards, orderlies for mass rallies, and party propagandists. By the late 1930s, however, the SS was running the Nazi concentration camps and was involved in more than forty different economic activities, ranging from agriculture and forestry to publishing and iron production. By the end of World War II, however, the bulk of the SS (known as the Waffen-SS) consisted of 800,000 men in 38 combat divisions. These combat troops were an integral part of the German Armed Forces in World War II. Zabecki, supra note 1, at 1254-56.
39. Heller, supra note 7, at 162-63.
40. While the High Command Case was the last case to begin—which explains why it is identified as Case No. 12—it was Case No. 11 that finished last, on 13 April 1949. Id. at 103.
41. Id. at 85.
42. Id. at 141.
43. Id. at 89.
44. Zabecki, supra note 1, at 855.
45. Heller, supra note 7, at 89.
46. Id. at 130.
47. Id. at
90.
48. Id. at 56-57.
49. Id. at 58-59.
50. Friedrich Flick Is Dead at 89; Industrialist Who Aided Hitler, N.Y. Times, July 22, 1972, at 30, https://www.nytimes.com/1972/07/22/archives/friedrich-flick-is-dead-at-89-industrialist-who-aided-hitler-served.html
(the website provided leads to a digitized version of the article from
the N.Y. Times print archive, before the start of online publication in 1996).
51. Heller, supra note 7, at 60-61, 65, 93-96.
52. Id. at 142.
53. Id. at 96.
54. Id.
55. Id.
56. Solis, supra note 9, at 378.
57. Heller, supra note 7, at 98
58. Id.
59. Id.
60. Id. at 99.
61. Id. at 99-100.
62. Id. For more on the Einsatzgruppen proceedings, see Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945-1958
(2009).
63. Heller, supra note 7, at 100-02.
64. Id.
65. Id. at 102-04.
66. Id.
67. U.N. War Crimes Comm’n, XII Law Reports of Trials of War Criminals: The German High Command Trial 3-4 (1949) [hereinafter German High Command Trial].
68. Heller, supra note 7, at 104.
69. Id.
70. German High Command Trial, supra note 67, at 17.
71. Id. at 105.
72. Judgment of the International Military Tribunal for the Trial of
German Major War Criminals
41 (1946).
73. McIntyre, supra note 5, at 112.