Crimes of the Holocaust: The Law Confronts Hard Cases

1: Nuremberg

Chapter 1 Nuremberg The prosecution of Nazi war crimes and crimes against humanity conducted at Nuremberg, Germany, in 1945-46 was unprecedented, both in the magnitude of the crimes it sought to address and in the international nature of the tribunal, the scope of its investigation, and the open character of the proceedings. Although crucial aspects of procedure were worked out during the trial, the shape of the tribunal, its charges and defendants, and the adversarial approach it adopted were outlined in advance by the victorious Allied powers. The road to Nuremberg began when the Allied nations rejected arguments for the summary execution of Nazi leaders and negotiated an agreement intended to harmonize an array of potentially conflicting goals: the punishment of major Nazi war criminals through an International Military Tribunal (IMT); the creation of an authoritative record of the corrupt nature of the National Socialist regime; and a speedy resolution of the issue. The United States, Great Britain, France, and the Soviet Union had divergent international concerns and were subject to various domestic political pressures, so.their agreement in principle was sketchy enough to leave significant procedural questions to the tribunal itself to resolve. Establishing an International Military Tribunal Defining Goals The Allies' determination to hold German leaders accountable for the atrocities committed by German forces across Europe increased as news reports of Nazi crimes against Jews and others in occupied nations reached the public during the final years of the war. Franklin Delano Roosevelt, Winston Churchill, andJoseph Stalin agreed that hearings to 2 Chapter 1 document Nazi misdeeds as well as punishment for war crimes were a fundamental Allied goal. The Allies had previously threatened Axis leaders with prosecution for war crimes. For example, in August 1942, Roosevelt declared: "When victory has been achieved, it is the purpose of the Govemment of the United States, as I know it is the purpose of each of the United Nations, to make appropriate use of the information and evidence in respect to these barbaric crimes of the invaders in Europe and in Asia. It seems only fair that they should have this warning that the time will come when they shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts."1 The rhetoric of "barbaric crimes" committed by invading Germans (and Japanese) rallied American support at this juncture, even though the president envisioned the trials taking place in the oppressed countries after their liberation . In October 1942, the Americans and British set up the United Nations War Crimes Commission to consider what to do about the issue.2 The USSR did not initially join in this effort but, in November 1942, set up the Soviet Extraordinary State Commission to Investigate War Crimes. As the tide of battle tumed in the Allies' favor, discussions about how to punish war criminals took on a new seriousness. In the fall of 1943, American Secretary of State Cordell Hull, his Soviet counterpart, Vyacheslav Molotov, and British Foreign Secretary Anthony Eden jointly issued the Moscow Declaration, which contained an outline of the policy to be followed after the war. "Those German officers and men and members of the Nazi party ... who have been responsible for ... atrocities , massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may bejudged and punished according to the laws of these liberated countries. The above declaration is without prejudice to the case of the major war criminals whose offenses have no particular geographical localization and who will be punished by thejoint decision of the govemments of the allies."3 The declaration defined two categories of war criminals: those responsible for particular "atrocities, massacres and executions," and "major war criminals" who devised the policy that Germany enforced throughout Europe. The first group would be sent back to the countries of their crimes for prosecution. The second group, "whose offenses have no particular geographical localization," would be punished in whatever way the Allied govemments agreed upon. The British argued forcefully for the summary execution of top German leaders. At the conclusion of World War I, the British and the French had sought the trial ofKaiser Wilhelm II and several subordinate German officials, but the United States refused to support the proposal. Nuremberg 3 To Britain's chagrin, the kaiser fled to Holland, where he was granted asylum...