Until the twentieth century, the imperialistic fever of all nations made them regard war as inevitable, and as a legitimate method of carrying out foreign policy. The First World War brought this condition into extreme prominence. After examining the situation solemnly, the civilized peoples of the world found this to be an intolerable condition. Although efforts had been made previously to impose moral and legal limits to the destruction of one’s fellow- men and their property, another generation had suffered as their predecessors, only on a more universal scale. The immediate need was felt for specific efforts. Statesmen were forced by public opinion to establish a legal procedure for presenting aggressive warfare and its extra-legal acts as criminal acts for which punishment of responsible individuals was demanded.
The Hague Convention of 1907 was one of the earliest attempts to institute rules for governing the community of nations in time of war. The rights and duties of nations and persons in case of war on land were put into a code to convert obsolescent conventions into more modern international rules of warfare.
As further steps in establishing an international conscience, there were three related moves towards making implicit the dictum that aggressive warfare was a crime. The Geneva Protocol for the Pacific Settlement of International Disputes, and the Eighth Assembly of the League of Nations, during the period from 1924 to 1927, declared aggressive warfare a crime but did not designate the explicit procedures for its punishment. The Kellogg-Briand Pact of 1928 bound practically all the important nations of the world to settle their disputes by arbitration and other pacific means, and outlawed war as an instrument of national policy. In general, an understanding was reached that no nation could force its will on another by war. Again, however, the issue of illegal warfare was not clearly defined as a crime against the society of nations.
Step by step international legal thought followed its brief to the inevitable conclusion that aggressive war involved the criminal punishment of states. The world was not ready to punish the individual conspirators who planned and waged aggressive warfare behind the principle of national policy at the beginning of World War II.
When World War II began, International Law had been in the process of being undermined for a decade. Pillar by pillar, each belligerent incident removed another strength factor in the complex structure of international amity. The China “affair,” in which Japan attempted her wayward stabilization of the Far East, resulted in the utter disregard of some of the basic concepts of humanity. This “affair,” an undeclared war, reached its climax in the fall of Nanking, where the looting, pillaging, and raping of noncombatants horrified the world.
The Ethiopian adventure, wherein Mussolini attempted the reconstruction of the Roman Empire, gave the world a preview of the future. The ruthless bombing of nonmilitary objectives and the destruction of civilians and their possessions, together with the use of poison gas, which had been prohibited, demonstrated the utter disregard for international law and humanity which was so prevalent.
These international lawless tactics were just a prelude to the wholesale violation of every international agreement and common concept of humanity which became evident in World War II. The mass murder of the Jews was executed, wherein a race was scheduled for annihilation in accordance with the plan of a so-called master race. Inhumane experimentation with human beings, the use of slave labor, and complete disregard for the rules of warfare and the rights of prisoners represented aggressive warfare at its totally destructive and immoral peak.
The proposition was squarely before all civilized nations. Were the instigators and leaders of this wanton and aggressive practice to emerge again after defeat as normal citizens and public servants of their respective criminal states to start anew a terrible cycle of uninhibited destruction? The condemnation and punishment of any system or individual which might again bring the world to the brink of total warfare and self destruction was in order, if not an absolute requisite for the future survival of civilized nations.
In London, on the eighth day of August, 1945, the representatives of the United States, the Provisional Government of France, of the United Kingdom, and of the Union of the Soviet Socialist Republics came to an agreement to establish an International Military Tribunal for the trial of major war criminals whose offenses had no particular geographical location, whether they were accused individually or in their capacity as members of groups or organizations considered criminal. Carefully a charter was drawn up and adopted for the new and unprecedented tribunal. An effective weapon had been forged from the steel in the hearts of oppressed and suffering peoples of the world. Operation Justice, the last major operation of the most devastating war in history, was being executed to bring to punishment the individual perpetrators of acts of aggressive warfare and the violators of the laws of warfare and humanity.
The collection of pacts, treaties, and agreements in which international law was developed pointed the way for the specific wording of crimes listed in the charter. They had not, however, been established into an international code of law, and there was no international criminal court for the trial of war criminals under such a code. This condition existed even though the illegality of aggressive warfare and uncivilized methods of warfare had been incorporated into national codes. The German Constitution itself provided that “the generally accepted rules of International Law are to be considered as binding, integral parts of the law of the German Reich.”
Considering logical development, the charter had merely substituted specific codification of war crimes on an international basis for the principles recognized generally by national codes of law.
Section II, Article VI of the Charter of the International Military Tribunal specified the following crimes:
(A) Crimes against peace:
Namely, planning, preparation, initiation, or waging of 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;
(B) War crimes:
Namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill treatment, or deportation to slave labor or for any other purpose, of the 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 cities, towns, or villages, or devastation not justified by military necessity;
(C) Crimes against humanity:
Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the 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 domestic law of the country where perpetrated.
In addition Article VI specified that:
Leaders, organizers, instigators, and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in the execution of such plan.
Under the Charter, Nazi leaders were being held responsible as individuals for crimes against the peace, crimes against humanity, and war crimes. The decisions on the latter two could be well sustained by the evidence and by public opinion. The violations of the laws of war were so widespread that the crimes of war were well established. The murder, extermination, and enslavement of the Jews was more than enough to cover the charge of crimes against humanity, even though the establishment of such crimes was unprecedented. However, the crimes against the peace were a startling innovation and not yet accepted by world opinion as applicable to the individuals in the service of the State. The statesmen of the world decided to set the necessary precedent for the benefit of all the civilized nations.
By the establishment of an International Military Tribunal, international law was incorporating within itself a criminal branch which heretofore had not been specifically included in the body of civil and diplomatic agreements. The abstract entity of the State was no longer considered above the criminal code. A definite criminal procedure had been introduced to try individuals who formerly concealed their guilt behind the facade of national government and national acts. The punishments to be assigned also included the punishments meted out to the common criminal who performed similar deeds on a smaller scale.
The importance of this new legal body was enhanced in that it was not a result of unilateral action, but of the multi-lateral action of four of the most powerful nations in the civilized world. Four nations with four systems of law and using four different languages simultaneously administered justice to defendants who were formerly subject to a completely different system of law. The International Military Tribunal required and demonstrated a very high order of cooperation among nations which might well be followed in the General Assembly of the United Nations.
In order to accomplish its objectives the Tribunal required time, money, and the services of a large legal and military staff. It was evident from the reaction of world opinion that the expense and efforts were justified, for motions were made to organize similar tribunals so that none of the Nazi criminals would escape. However, in the opinion of the representatives of the United States, there was no need for another international trial subsequently, for the International Military Tribunal would establish procedure and precedents for the national tribunals to cover the comparatively minor crimes.
There were two alternatives in the. process of convicting the major Nazi criminals: one was to select the most important evidence in sufficient quantity and quality to remove any reasonable doubt; the other was to present masses of evidence to cover every aspect and shade of criminal guilt so that historians would never find it difficult to reach the same conclusion without the benefit of contemporary knowledge and juridical acceptance. The Tribunal followed the latter course. Thousands of authentic documents and photographs as to the conduct of the war, which would have never been available in one place without this official record of proceedings, were brought to the fore as overwhelming evidence of guilt.
The need for the establishment of an International Military Tribunal as such was felt when the form of the court was considered. The law of nations inherently requires a trial prior to punishment for even the gravest offenses. If the defendants were to be treated as prisoners of war, a trial by a military tribunal was a prerequisite for their punishment. The United States brought the situation to prominence in World War II when it protested the execution of American aviators who bombed Tokyo. The Japanese were accused of executing their prisoners of war without a fair trial as required by the Geneva convention. Public opinion in general, after the sufferings and hardships of war, would have supported and even lauded summary execution of the Nazi criminals for the atrocities they had committed. It may be assumed that, if Germany or Japan had been victorious, the leaders of the United Nations would have received short shrift under that ruthless Axis idea of justice which recognized no legal or moral obstacles to the accomplishment of national objectives. The United Nations with great foresight wished to preserve for future generations a respect for the high tribunal which was vindicating the principles of international law and order, and the requirements of an international conscience which the Nazi criminals had never recognized and had trampled underfoot. A formal trial on the highest level of jurisprudence was considered a prerequisite for justice.
The International Military Tribunal did give the accused a fair trial with the solemn procedure of our highest court. It not only offered the criminals an opportunity to interpose a defense or evidence in mitigation, but presented an open forum for the determination of the specific acts which were violations of the laws of warfare and civilized codes of criminal law.
The Tribunal was organized along practical and realistic lines. The results of the Leipzig Trials of the criminals in World War I, where German criminals were tried by Germans, demonstrated that, in order to attain the just punishment of those concerned with war crimes, the trial must be swift, and sure, by judges uninspired by nationalism in their interpretation of the laws of warfare and criminal codes. It seems strange in retrospect that the United States and Japan were the nations who objected to an international trial of World War I criminals. These two nations had objected on the basis that it was unprecedented, and that no international code of criminal law existed for their trial. World War II placed Japan in the role of transgressor and the United States as party to the agreement establishing the International Military Tribunal. The United States, Russia, Great Britain, and France had become aware, if they were not before, that the laws which had been violated were the laws upon which the peace and the security of the world depended. If the war criminals were not punished this time, the signatory nations might not again have a similar opportunity to establish the required precedent.
From a legal standpoint, a multiplicity of objections have been conceived as to the rights and jurisdiction of the International Military Tribunal. Some objections were based on the feeble conception that there were no precedents to follow; others arose from the apparent conflict with the particular wording of national codes or international agreements.
The idea of an international criminal court is not new. When the Permanent Court of International Justice was being organized, Belgium proposed such a court. The proposal was too vague in specifying crimes, since it left it to the court to define the crimes. In view of the fact that a criminal code on an international basis was not established, the idea of the international court was shelved at that time.
In the Treaty of Versailles the German government recognized the right of the Allies to bring before military tribunals German leaders accused of committing acts in violation of the laws and customs of war. The creation of such a tribunal was vetoed by the United States and Japan in the commission which was preparing the report on the violations of international law chargeable to Germany and her allies. The need for an international tribunal to promote the international safety and welfare was keenly felt during the interval between World War I and World War II. The ideas, however, were never crystallized. What better time than after World War II for the victors to fix this concept of international criminal justice as an important specific contribution to international law and order?
Among freedom loving people the sacred right of being exempt from ex post facto laws has been rigidly protected. This legal concept was raised frequently as a defense during the trial of the Nazi war criminals. According to the defendants, the crimes mentioned in the indictments were established by the Charter after the acts were committed. The crimes laid down in the Charter were a crystallization of the principles of civilized criminal justice. At no time were the accused unaware that they were violating the common law of nations and that they would be liable to punishment. In fact, the United Nations early warned the malefactors of the consequences of their acts even though such a reminder was never needed or heeded. The principle of ex post facto was originally established for protection against the retroactivity of laws; an act which was innocent when committed could not later be declared a crime and the perpetrator punished. But under no circumstance nor conceivable misinterpretation could the Nazis, even before World War II began, have believed that their destructive conspiracy against humanity was blameless or not liable to punishment.
Even if the crimes had been established prior to the Charter, where were the instructions for the punishment of individuals in the common laws of nations? This plea was entered by the accused to dispute the jurisdiction of the tribunal. Nations only were designated for punishment under the vague wording of most statements on international justice.
Under the laws of war, however, individual violators may be tried and punished by the military code of the belligerent which captures them. Penalties can be prescribed in accordance with those covered in national statutes. The Charter of the International Military Tribunal established that crimes not included under the laws of war could be punished in a similar manner in accordance with any civilized code of criminal law. If the Nazis pleaded that their crimes were not liable to punishment under German law, the reply should have been that German Law under the Nazis was not typical in systems of jurisprudence. In addition, no nation should be permitted to have its nationals escape punishment for crimes recognized and punished by most national codes of justice.
If the spirit of civilized justice is to prevail, surely crimes and punishment established on a national scale should be the criteria when they are applied on an international scale. In fact, aggravation of the crime should be considered when the crime affects the society of nations rather than individuals or smaller groups.
Another defense maneuver was the plea that States rather than individuals were the guilty party when international law was violated. The Charter, however, provided in Article 8:
The fact that the defendant acted pursuant to the order of his government or of a superior shall not free him from the responsibility but may be considered a mitigation of punishment.
The true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but where moral choice was in fact possible.
At the end of World War I it was held that the law of nations was addressed against States, and that the punishment of individuals required a specific statement to that effect under national laws. However, crimes against international law are committed by men, not by abstract concepts such as States. Only by punishing individuals who commit these crimes can international law be enforced. If specific implementation of this principle was required, the International Military Tribunal accepted the responsibility of setting the required precedent.
The basic law and procedure for the tribunal was necessarily a combination of four systems on national justice. When that did not provide sufficient latitude to attain the ends of justice, the jurists could in every case, as in national courts, fall back upon the common law or the unwritten code well established by precedents. The International Military Tribunal had an unwritten code of international law which was observed by all nations as their common law. Even though the lawless Nazis would not accept these principles, they were well aware of their substance and that they would be enforced.
The major criminals of the conspiracy against civilized nations were tried by the representatives of the injured parties, the United Nations. They were tried before a new tribunal which held them individually responsible for crimes promulgated under a new charter. Whether they thought themselves guilty or not, they were eventually convinced that the United Nations had a moral right to put them on trial by means of the Tribunal. The closing pleas made it evident that such a condition of mind existed. Frank, the former governor of occupied Poland, in his closing plea urged the Germans to return to the paths of Christianity from which the Nazis had led them. Devious legal theorists may question and find irregularities with the basis and procedure of the Tribunal. It is hoped that the sober judgment of history will laud the realistic attempt to settle the principles of international law in a spirit of justice for all men.
The men on trial at Nuernberg were the leaders of the indicted Nazi organizations and Nazi Germany. They were beaten and surrendered unconditionally. The victorious United Nations seized the opportunity to bring them to trial in an effort to establish the principle of international law that aggressive warfare and its attendant aspects are crimes. In light of these facts, the particular defendants chosen for the trial were significant in that they represented individually and collectively those who would be considered criminals in the future.
The principal defendant was Goering, Supreme Leader of the SA, General in the SS, President of the Reichstag, Commander in Chief of the Air Force, and President of the Council of Ministers for Defense. Ribbentrop was the Reich Minister of Foreign Affairs, and Hitler’s advisor on foreign policy. Hess was a general in the SS and SA, and a Reich Minister without portfolio. He was also a member of the Council bi Ministers for Defense. Kaltenbrunner, who succeeded Heydrich, was a general in the SS, and Chief of the Security Police and security service to consolidate the Nazi control of Austria as chief of the concentration camps. Rosenberg was the Reich leader of Ideology and Foreign Policy, and was the editor of the newspaper Volkisher Beobachter. He was also the intellectual head of the psychological warfare and had presented the world with the Nazi ideology of the master race. Frank was the Governor General of Poland and a general in the SS, whose lawless occupation of Poland was admired by all the Nazi leaders. Bormann was tried in absentia and is believed dead; he was a member of the High Command of the SA, Hitler’s Secretary, and a member of the Council of Ministers for the Defense of the Reich. Frick was the Governor General of the occupied territories of Bohemia and Moravia, Reich Minister of the Interior, and a general in the SS. Sauckel was tried in place of Ley, who was dead, as the leader of the German labor front. As the joint organizer of the Central Inspection for the Care of Foreign Workers, he was responsible for the modern form of slave labor and the exploitation of the peoples of occupied territories. Speer, Reich Minister for Armament and Munitions, was chairman of Hitler’s armament council; he was notorious for his exploitation of slave labor for the manufacture of armaments for aggressive warfare. Schacht was the Reich Minister of Economics and the president of the German Reichsbank. Funk, who was Schacht’s successor, was Hitler’s economic advisor, and was well known for his economic exploitation of occupied territories. Von Papen, the smooth diplomatic agent of the Nazi rise to power, was Vice Chancellor of the Reich and Ambassador to Austria and Turkey. Neurath, a general in the SS, had been Reich Minister of Foreign Affairs and Reich Protector of Bohemia and Moravia. Schirach was Reich Youth Leader on the staff of the SA high command and Reich Leader of the Nazi Party for Youth Education; it was his insidious objective to form the youth into a model of Nazi immoral and pagan ideology and principles. Seyss-Inquart was chancellor of Austria and member of the Reich Cabinet; he had promoted the seizure of Austria by the Nazis. Fritsche was Editor in Chief of the Official German News Agency (Deutsche Nahrichlen Buro), and Head of the Press Bureau of the Reich Ministry for Propaganda. Streicher, as General in the SA and Gauleiter of Franconia, was editor of the leading German Anti-Semitic newspaper and was particularly indicted for inciting and aggravating anti-Semitic movements. Field Marshal Keitel was Chief of the High Command of the Armed Forces; he was held particularly responsible for the treatment of prisoners of war and the civilian population of the occupied territories. Colonel General Jodi was in charge of the Operations Division of the Wehrmacht and was responsible for crimes similar to those of Keitel. Admiral Raeder was the Commander in Chief of the German Navy and a member of the Secret Cabinet Council; he was particularly indicted for crimes of sea warfare. Admiral Doenitz was not only the Commander in Chief of U-boats, but also an advisor to Hitler. He became successor to Hitler as head of the German government at the end of the war in Europe.
The prosecutor, U. S. Supreme Court Justice Jackson, based his recommendations that the above defendants be found guilty on the following acts of a common plan or conspiracy: (1), the seizure of power and the subjugation of Germany to a police state; (2), the preparation and waging of wars of aggression; (3), warfare in disregard of international law; (4), the enslavement and plunder of populations in the occupied countries; (5), persecution and extermination of Jews and Christians.
In the trial of the major war criminals in Europe another international precedent was set when Nazi organizations were put on trial for criminal conspiracy, although individuals , also were considered frequently in connection with them. In order to connect the men on trial directly with the indicted organizations, the Charter had been clear in stating that a case against an organization could be considered only if a representative of the organization was on trial at the same time.
The Germans feel themselves more involved in the court’s decision on these organization groups than in the verdicts against the individual defendants, who to most of the Germans, intent as they are on their immediate problems, already appear as figures in the distant past. Among the groups indicted was the Reich Cabinet, which included about 200 members. It included the Council of Ministers for Defense of the Reich, as well as the Secret Cabinet Council. Another organization indicted was the Leadership Corps of the Nazi Party, which included about 3,000,000 members. Other organizations under indictment were the SS of some 500,000 members, the exclusive group of political soldiers which guarded Hitler and his Nazi leaders, and the SD, also of about 500,000 members, the espionage and counter-intelligence division which cooperated with the Gestapo in purging probable enemies of the Nazis. The SS and SD administered the concentration camps and Nazi racial and displacement policies. The secret state police, or Gestapo, was likewise indicted. This group consisted of 50,000 members trained in SS and SD schools, and was notorious for its elimination and suppression of interests and individuals inimical to the Nazi principles and objectives. The organization known as the SA, likewise under indictment, had 2,000,000 members; it had promoted the original development of the Nazi Party by disorder and brutal elimination of its opponents. These “Storm Troopers” later became an auxiliary security force for concentration camps and prisoner of war camps, and also helped control slave labor. The group which included the high command of the Navy, Army, and Air Forces was indicted as the General Staff and High Command of the German Armed Forces. It is interesting to note the particular commands included: Commander in Chief of the Navy; Chief of the Naval War Staff; Commander in Chief of the Army; Chief of the General Staff of the Army; Commander in Chief of the Air Force; Chief of the General Staff of the Air Force; Chief of the High Command of the Armed Forces; Chief of the Operations Staff of the High Command of the Armed Forces; Deputy Chief of the High Command of the Armed Forces; and Commander in Chief of the Field of the Navy, Army, and Air Force.
The justice meted out by the International Military Tribunal did not satisfy all concerned on the court. The defendants sentenced to hang were Goering, Bormann (in absentia), Ribbentrop, Field Marshal Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Colonel General Jodi, and Seyss-Inquart. Those sentenced to prison were Hess, Funk, and Admiral Raeder, for life; Schirach and Speer, for twenty years; Neurath, for fifteen years; and Admiral Doenitz, for ten years; sentences were to be served in a prison in Berlin under the control of the four powers on the Tribunal. After an appeal to the Allied Control Council which failed its purpose, those sentenced to be hanged were hanged and cremated and their ashes scattered. Two high ranking Nazis escaped trial and judgment before the trial; Ley hanged himself in Nuernberg jail, and Krupp was declared physically and mentally incompetent. Goering escaped the hangman by poisoning himself after he had been sentenced by the Tribunal. Schacht, Von Papen, and Fritsche were acquitted and were immediately claimed for trial by denazification boards. It is true that some of the sentences were light. Major General Nikitchenko, the Soviet judge, dissented on the acquittals and declared for the death sentence for all the prisoners arraigned before the Tribunal. Justice Jackson himself expressed his dissatisfaction with the acquittal of Schacht and Von Papen.
Even admitting the several inadequacies of the trial, they compare favorably with the inadequacies of summary execution. The judges were very meticulous in the procedure of the tribunal. Every defendant had his day in court. Every witness was heard, no matter how extensive his testimony. We cannot predict the judgment of history, but within the lights of the civilized world the Tribunal has done well in their dignified and high minded proceedings.
Schacht, Von Papen, and Fritsche did not escape the judgment of mankind by being acquitted. The reasons for their acquittal were various ones. Schacht started the early stages of German armament, but the Tribunal found that he had resigned in 1937 as a protest against aggressive warfare. Von Papen did not carry through the Nazi policies but had been relieved by Neurath when the so-called master race ideology became the leading Nazi principle. Fritsche, as a member of the press, obtained immunity on the basis of freedom of press and speech, although it seems that he could have been indicted for libel of the civilized nations of the world. Fritsche was found not actively involved in the conspiracy for aggressive warfare.
The judgment of the members of the armed forces created great interest among the leaders of the armed forces of all nations. Field Marshal Keitel and Colonel General Jodi were convicted on all counts and were hanged. The last Chief of the German General Staff, Colonel General Jodi approved Hitler’s memorandum for the instigation of military operations against Czechoslovakia by provocation. After 1938, both Jodi and Keitel executed documents which proved their criminal guilt on all counts beyond any reasonable doubts. Admiral Raeder escaped on the counts of crimes against humanity but was found guilty in different degrees of the other counts. The idea of attacking Norway had originated with Admiral Raeder and Rosenberg; the evidence presented the invasion of Norway as an act of aggressive warfare. Admiral Raeder, who claimed that he did nothing that the Allied Admirals would not have done, was shown in conference with Hitler, Goering, and Quisling, while preparing for the invasion. Admiral Raeder was also the originator of the armament plan for attaining a readiness for war which would enable the Nazis to initiate war without an alert. For these non-professional operations he was sentenced to life imprisonment. Admiral Doenitz issued the operational order for the invasion of Norway and Denmark, but this was done in a professional status which caused his final judgment to include only ten years’ imprisonment.
The tribunal had made a definite distinction between legal, or war of defense, and illegal warfare, or war of aggression. There was no criticism of the leaders of the armed forces, as such, in legal warfare fought according to the rules of warfare. It was stated that an illegal war logically involved conspiracy against the society of nations and crimes against the peace, on which counts any high command could be indicted. Violation of the rules of warfare by the high command, where moral choice could be exercised, made most of the Nazi command vulnerable on the count of War Crimes. Crimes against humanity, or total warfare, which causes the persecution and the destruction of non- combatants and their property, were also committed on the high command level. The leaders of sea warfare were fortunate that non-combatants are not found in large numbers in naval operational theaters, so that the Nazi admirals were not found in the role of committing crimes against humanity on the high seas, to the same degree as the high command of the Army and Air Force in their respective domains.
The decisions on the organizations indicted by the Tribunal will affect the Nazis until the last national court and denazification board have handed down their judgments. All the organizations indicted were found to be criminal except the SA, the Reich Cabinet, and the General Staff and High Command. Although the Tribunal did not find them criminal in a legal sense, it thoroughly condemned them in its judgment. The SA was found to be an organization which used gangster tactics to aid the Nazi rise to power; these tactics were not found to be a part of the plan to wage aggressive warfare, so that the Tribunal could not hold them criminal. The SA subsequently had become a completely auxiliary organization of hangers-on of the Nazi regime. The General Staff and High Command escaped judgment as a criminal group under the technicality of not being a group or organization as the terms were used in the Charter. It was also found that their operational technique was the usual one in the armed forces of other nations. However, the Tribunal stated that the German General Staff under the Nazis was “a disgrace to the honorable profession of arms.” With Hitler in complete control, there was no real Reich Cabinet in the true sense of the term. The members of the Reich Cabinet were figureheads and committed most of their crimes in their other capacities as leaders of criminal Nazi organizations.
The magnitude of the operations of the International Military Tribunal could best be appreciated by a few of the statistics on what it involved. The trial began on November 20, 1945, and lasted nine months, of which 216 days were trial days. Thirty-three witnesses for the prosecution and sixty-one witnesses and nineteen defendants for the defense were called. The proceedings were conducted in four languages, and daily transcripts were provided in any language requested. The English record of the proceedings covered 17,000 pages. Out of 100,000 captured documents, 10,000 were closely reviewed, and 4,000 of these documents were used wholly or in part in the evidence. 100,000 feet of film and 25,000 still photographs were used at Nuernberg. Facilities were provided for the simultaneous interpretation of the proceedings in four languages by means of earphones and a sound system. When to the above factors, the complex principles of four systems of jurisprudence had to be applied, it is amazing that the trial was over in such a short time.
After the expenditure of time and money on such a scale, the accomplishments of this Tribunal had to submit to very close scrutiny. The results were admirable. No longer could the theory be upheld that International Law was concerned only with the acts of Sovereign States. In order to enforce international law there must be the threat of punishment for its violation. The State as an abstract idea could not be punished; therefore, the Tribunal established that individuals concerned must be held responsible and punished for crimes which violated the laws of nations. This realistic approach by the Tribunal demonstrated an important lesson in practical international jurisprudence.
The concrete beginning of an international code of criminal law was made in the Charter of the International Military Tribunal, the Record of Proceedings, and the judgment handed down by the Tribunal. The unwritten law of nations was partially written. Inciting, preparing for, and waging war of aggression was now a crime against all nations. The persecution, destruction, and oppression of peoples on racial, political, and religious grounds, and the extermination, enslavement, and deportation of civilians was also a national crime.
For the punishment of these international crimes, future generations thenceforth would have an instrument and procedure to follow. This instrument was the International Military Tribunal, and its procedure that of national high courts. A dispassionate inquiry into legal evidence puts this modern international criminal court on the very solemn basis of jurisprudence which the punishment of the awful crimes of war deserve. It will be the model court for the victors of any future wars.
One of the most important accomplishments of this trial of major war criminals was the detailed picture of Nazi Germany at war. Thousands of documents brought to light the story of the Nazi conquests of helpless peoples and their exploitation during occupation. While this information was available it was documented by a legal system. The authentic record of the Nazi aggressors was exposed in its true and sordid detail for the judgment of this and future generations; The first reaction of horror at the revelations has been diminished due to the repetition of the hideous pictures presented. The study of the record and judgment, however, will have tremendous influence on civilized peoples by aiding them in the appreciation of the awfulness of war in any form. If the full impact of the atrocities and degradation of war is felt by all nations during this troublesome stage of post-war adjustments and animosities, the peace will be more permanent and justice will be attained for all peoples. In its judgment the Tribunal has changed the international conscience from an implicit aspect to an explicit one. It was not sufficient to prove merely that crimes had been committed; it was necessary to prove that these crimes were condemned by humanity. It was proved that the defendants knew their heinous course and made their choice to persist in it while depending on victory to/ exonerate them. Future violators of the international conscience will see the clear-cut choice, even though its threat might not deter them. But in that case they know that they will be gambling their lives on victory.
To the above accomplishments of the Tribunal must be added the establishment of a scale of punishments for violators of international law. Those individuals who plan and wage aggressive warfare, and those who commit crimes against humanity, will hereafter be subject to long prison sentences or death, as appropriate. However, it was made clear that the members of the armed forces, even in aggressive warfare, are not automatically liable to punishment, but that they will be punished for personal violations of the rules.
In the legal theater of operation justice, precedents had to be established as matters of procedure as the trial progressed. The alternatives would have been summary execution or ineffective exile of the criminals in a spirit of revenge. The jurisdiction of the Tribunal and the statement of the crimes as laid down in the Charter had to be accepted in order to have any trial at all. The accomplishments of the Tribunal were attained by its members after conscientious planning and solemn execution of their duties.
The planning resulted from a universal decision by Eastern and Western powers which ordinarily find it difficult to agree on almost every post-war decision which has to be made. The four powers who sat on the Tribunal were supported by the declaration of fifteen other states. If any Tribunal represented mankind, the International Military Tribunal at Nuernberg did. With firm resolve and juridical planning, the Tribunal made use of the trial to punish all the major violations of the international peace despite sincere arguments against its jurisdiction and legal procedure.
In the trial of the major war criminals in Europe, the International Military Tribunal made the first great advance in international law in a generation. The Tribunal handed down to the peoples of the civilized world the responsibility for the universal observance and enforcement of the explicit rules of international law and order which were established for the guarantee of human rights in an age of mistrust and violence. Whether the sense of civilized justice of the peoples of the world has reached a stage of maturity where they will accept the law which has been formulated is uncertain. Suggestions have already been made by the United States that the precepts under which the Nazi war criminals were tried and convicted be written into the permanent body of international criminal law. The final test of acceptance for these new precedents and their enforcement will be in the hands of the victors of any future conflict. May there be a courthouse left intact for this test case if it ever comes!