THE NUREMBERG TRIALS—THE VICTOR’S RETRIBUTION OR A REVOLUTION IN INTERNATIONAL LAW?

THE NUREMBERG TRIALS—THE VICTOR’S RETRIBUTION OR A REVOLUTION IN INTERNATIONAL LAW?

 

INTRODUCTION AND PROCEDURAL BACKGROUND

November 20th, 1945, saw opening statements in the Palace of Justice in the city of Nuremberg, Germany. An Associate Justice of the United States Supreme Court, Robert Jackson, handpicked by President Truman in Executive Order 9547, laid out as Senior Trial Counsel what was at that time a groundbreaking case in what is known as the Major War Criminals Trial in the newly created International Military Tribunal (IMT). Twenty-one senior members of the Nazi Party and the main policy makers and military officials implementing Adolf Hitler’s war and social engineering objectives faced grim justice. Goering, Keitel, Von Ribbentrop, Hess, and others sat in the dock and doubtless knew the outcome. The proceedings, as will be examined herein, were unprecedented and controversial in international legal circles. Nothing like this had occurred even in the wake of World War I. More on that later.

Nuremberg was a little-known venue in Germany yet had suffered extensive bombing by the Allies. After the war and during the formative stages of the debates upon how to proceed in the cases of the leaders of the Reich, it was chosen for the rather banal reason that it had still standing a Palace of Justice and a jail suitable to the task of holding for trial the architects of the aggressive war that cost tens of millions of lives and had engineered a genocide. German POWs and GIs built additions and repaired the damage to accommodate the proceedings. GIs with insufficient points to be discharged became guards with the now counterintuitive task of keeping the Nazis alive for trial, as two had committed suicide after capture. I am sure that was a very unpopular notion, and instances of them taunting the captives are legion.

The path to those opening statements and the IMT was a long and controversial one. As early as 1943, the United States, Great Britain, and the Soviet Union had issued the Moscow Declaration vowing to defeat the Reich and pursue Nazi policy makers “to the ends of the earth” so that justice would be done. Intelligence reports had established the existence of concentration camps and atrocities that follow systemic genocide. The Soviet Union suffered millions of dead, with civilians viciously tortured and killed during the Wehrmacht’s initial advances. Poland, Czechoslovakia, Denmark, and Norway had seen the initiation of what became known as “aggressive war” to achieve Hitler’s aims of soil and resources to settle the “master race” and dominate the civilized world. At Yalta and elsewhere the “Major Powers” of Great Britain, the United States, France, and the Soviet Union debated how to proceed since by 1944 victory seemed inevitable as the Reich withered between the two front pincers of the Allies pressing from East and West.

The United States, France, and Great Britain favored a political solution after an unconditional surrender wherein the government of Germany was vanquished. Summary capture and immediate execution of the major actors was the favored “eye-for-an-eye” proposal. U.S. Treasury Secretary Henry Morganthau strongly urged this, as such actions had already taken place at the unit level in Germany and elsewhere. Surprisingly, Stalin and the Soviet Union objected, stating that a trial would be necessary if executions were contemplated so “the world doesn’t see that we were afraid to try them.”

President Roosevelt, prior to his death, had supported the plan proposed by the Department of War and Secretary Stimson. This was to treat the Nazi regime and its execution of the war in the territories and countries it had aggressively invaded as war criminals engaged in a criminal conspiracy. Truman carried this forward after Roosevelt’s sudden death, and Justice Jackson was asked to take a leave of absence from the Supreme Court, fly to London, and craft a procedure and means to try the newly captured and jailed Nazis, such as Goering. After considerable debate the IMT was formed, and a series of new and unprecedented crimes formed an indictment that would form the basis of the trials. Representatives of the victorious powers would serve as judges and prosecutors. The defendants were detailed counsel, and from November 20th, 1945, until October 1st, 1946, when the varied sentences were handed down, the trial heard evidence from live witnesses to atrocities as well as a treasure trove of thousands of documents and photographs, including a documentary. The Nazis documented their actions with Teutonic precision, and some of the defendants, including Hans Frank, tried to curry favor with their captors, with Frank turning over his diary and official papers. He had directed the extermination of Jews in Poland. He was eventually hanged along with Keitel, Von Ribbentrop, Jodl, and others in a gymnasium next to the jail on October 16th, 1946. Trials continued until 1949, and many others would see justice.

Legal scholars had, however, criticized the proceedings, not for the want of vengeance and certainly with recognition of the morality of such proceedings in addressing both aggressive war and genocide but for the fact that this was clearly an application of ex post facto law. The crimes were newly created after the commission of the actions put on trial out of a vague notion of international decency, but no criminal or international legal code existed prior to the war, and the charges, which will be listed below, were crafted by the IMT into a Charter which formed the indictment. Chief Justice of the Supreme Court Harlan Stone was quoted as commenting, “Jackson is over conducting his high-grade lynching party in Nuremberg … I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court or proceeding according to common law.” Judge Learned Hand saw that applying retroactive and newly created international crimes to the defendants was understandable but unacceptable, even if the vengeance of the victor was morally justified. Why the controversy? Read on.

 

THE LEGAL ISSUES DEBATED BEFORE AND SINCE

Justice Jackson had a weighty task before him. The notion of criminal conspiracy was at the time foreign to many legal systems, especially within some of the legal systems of the nations represented in the IMT. There was no international legal precedent for the creation of the IMT, much less the crimes that made up the Charter of the IMT. The framers of the IMT cited the Kellog-Briand Pact of 1928, which condemned war as an instrumentality of national policy but did not have a provision codifying initiating aggressive war as a crime and had no enforcement mechanism. This Pact was a Treaty, not a set of codes, and was never enforced. Even the jurisdiction of the IMT was challenged to enforce newly created criminal sanctions, as there was no “world court,” so to speak, and theretofore international law sanctioned states, not individuals. There is no doubt that the proceedings and the Charter were cut from new and whole cloth; however, the major powers had established two major bases for the formation of the IMT:

 

• 1) The Declaration of Berlin of June 5th, 1945, saw an annexation of Germany by the Allied Powers, and no German government was then in existence. The Allied powers were the de facto government as the occupiers of the German state, and all of the laws and structures of the Nazi regime were displaced and declared to be in conflict with civilized standards of decency and justice. Therefore, the defendants, as the policy makers and engineers of aggressive war and genocide, could be brought to justice on German soil by the de facto German government represented by the victors and occupiers;
• 2) This settled the jurisdictional question, and the substantive “law” issues were said to derive from long-standing international legal principles embodied in treaties such as Kellogg-Briand, the Hague Conventions of 1899 and 1907, as well as the Geneva Conventions of 1929. Included were some principles embodied in the laws of the occupying states defining common law crimes. It was urged that the defendants, as senior policy makers, had fair warning that acts of aggression and genocide, as well as mistreatment of civilian and military prisoners, had been contrary to accepted international legal principles as embodied in the Treaties cited.

 

Objections persisted that this was all de facto ex post facto law, or retroactive law, enacted after the actions which became the subject of the Charter indictments, and that there had been no international custom of “world courts” or “world crimes” prior to Nuremberg. The offenders, however odious to principles of decency even in the crucible of war, were subject to arbitrary justice after the fact. Notice of criminality before an allegation of criminality is seen as a core principle of criminal law, especially within the legal systems of the occupying victors that comprised the IMT.  I maintain that the core issues of the “Jewish question” and the systematic genocide practiced in the camps and in the villages and forests through mass murder, as well as the mistreatment of those working in the camps, including horrific experimentation upon their bodies, transcend this criticism and place the acts of the defendants within the realm of international and “individual state” well-defined standards of justice and decency. The IMT utilized these principles and charged the Major War Criminals in the first trial with the following crimes:

 

• “a) Crimes against Peace—the waging of aggressive war in violation of international treaties and for purposes not recognized in the law of war as accepted at that time;
• b) War Crimes—violations of the laws or customs of war, including murder, deportation to slave labor, ill treatment of prisoners, plunder, and wanton and needless destruction of property;
• c) Crimes against Humanity—murder, extermination, enslavement, and inhumane acts committed against the civilian population before and during the war, including persecution on religious grounds”

 

In addition, the Charter as an indicting instrument declared in Article 8 that “the fact that the defendant acted pursuant to order of his government or his superior shall not free him from responsibility.” The principle of “you did it too” was also nullified as a defense, and since documentary evidence would be utilized in significant numbers, traditional rules of hearsay and foundation were thrown out. Still, there was the notion that this was to be as fair a proceeding as could be practicable, and not a Soviet-style sham trial. IBM pioneered a translation system to facilitate comprehension of the multiple languages utilized in the proceedings, and a team was flown to Nuremberg to install it. The defendants were detailed counsel consisting of German nationals. Direct and cross-examination were as performed in any trial, criminal or civil. The evidence was at intervals gruesome and compelling. Any legal or technical objections to the composition of the IMT would soon fade. Two defendants were acquitted; Hess, Speer (the Minister of Armaments), and others were given varied prison sentences. Goering committed suicide with a secreted cyanide capsule the morning of his scheduled execution, and it was long suspected that he had convinced an American Army Lieutenant to sneak it in to him. In a few hours on the morning of October 16th, 1946, the architects of aggressive war and genocide, such as Von Ribbentrop, Keitel, Jodl, and Frank, among others, were hanged. The trials continued until 1949.

 

CONCLUSION

The prosecution of war as a national objective and foreign policy initiative is well entrenched in history and customs on the world stage. What set these trials apart was the prosecution of war and invasion to facilitate a vision by Hitler and the Nazi party hierarchy to declare that the Germanic peoples were superior and that Jews, Gypsies, and Slavs, among others, were subhuman and that genocide, imprisonment, and displacement were justified so Germany could have the land and resources necessary to propagate this insane notion. The “Jewish Question” was summed up by reference to Hans Frank’s own papers and records—he spoke on December 16th, 1941, in Krakow, Poland, and stated flatly:

 

“…As an old National-Socialist, I must say: this war would only be a partial success, if the whole lot of Jewry would survive it, while we would have shed our best blood to save Europe. My attitude towards the Jews will, therefore, be based on the expectation that they must disappear. They must be done away with. I have entered negotiations to have them deported to the East. A great discussion regarding that question will take place in Berlin in January … Gentlemen I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews, wherever we find them and wherever it is possible, in order to maintain the structure of the Reich as a whole. This will naturally be achieved by other methods…”

 

This was part of Translated Document 2233-PS admitted at the trial and validated by Frank himself. Any denial of the Holocaust and its objectives is abject lunacy and intellectual dishonesty of the lowest order. The political rhetoric uttered in the halls of our Republic and echoed in the corrupt legacy media that Trump and his cabinet are “Nazis” is laughable and tragic at the same time, as many on the left conveniently forget what actual Nazis did and believed and still believe. Shame on them. Yes, the victor’s justice was earned with the deaths of millions. The destruction of the Second World War was unprecedented, and the death toll beyond staggering. All for the vindication of the aspirations of a former German corporal to achieve a “master race.” Civil society prevailed, but we must never forget that aggressive wars will be fought, so-called international norms will be violated, and nations will be in conflict in their national interests. Such is mankind.

 

Mike Imprevento
November 20th, 2025