University of Baltimore Law Review
Volume 46
|
Issue 3 Article 4
5-2017
A Court Pure and Unsullied: Justice in the Justice
Trial at Nuremberg
Stephen J. Sfekas
Circuit Court for Baltimore City, Maryland
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Vol. 46 : Iss. 3 , Article 4.
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457
A COURT PURE AND UNSULLIED: JUSTICE IN THE
JUSTICE TRIAL AT NUREMBERG*
Hon. Stephen J. Sfekas**
Therefore, O Citizens, I bid ye bow
In awe to this command, Let no man live
Uncurbed by law nor curbed by tyranny . . . .
Thus I ordain it now, a [] court!
Pure and unsullied . . . .
1
!
I. INTRODUCTION
In the immediate aftermath of World War II, the common
understanding was that the Nazi regime had been maintained by a
combination of instruments of terror, such as the Gestapo, the SS, and
concentration camps, combined with a sophisticated propaganda
campaign.
2
Modern historiography, however, has revealed the
critical importance of the judiciary, the Justice Ministry, and the legal
profession to maintaining the stability of the regime.
3
As an example, although the number of persons confined to
concentration camps from 1933 to 1934 rose to as many as 100,000
people, most were quickly released.
4
The number of concentration
camp inmates thereafter fell to 4,000–5,000 persons at any given time
during the 1930s.
5
However, the number of political prisoners
sentenced by the civilian courts had risen to 23,000 by the mid-
* Portions of this article will be published as a chapter under the title “Taming the
Furies: The Justice Trial at Nuremberg-1947” in Advances in International Law and
Jurisprudence: New Roles for the Judiciary in Upholding the Rule of Law, coeditors
Prof. Thomas Boudreau, Ph.D., and Dr. Prof. Juan Carlos Sainz-Borga, to be
published by The Elias-Clark Group, 2017.
** Stephen J. Sfekas is a Senior Judge of the Circuit Court for Baltimore City,
Maryland. He received a BSFS from the School of Foreign Service at Georgetown
University in 1968, an M.A. in history from Yale University in 1972, and a J.D.
from the Georgetown University Law Center in 1973.
1. AESCHYLUS, The Furies, in THE ORESTEIA TRILOGY 138 (Alan Weissman ed., E.D.A.
Morshead trans., Dover Thrift ed. 1996) (1909) (emphasis added).
2. RICHARD J. EVANS, THE THIRD REICH IN HISTORY AND MEMORY 100–05 (Oxford
Univ. Press 2015).
3. Id. at 100–02.
4. Id. at 100.
5. See id.
458 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
1930s.
6
What is most striking about this phenomenon is that most
judges and lawyers in 1933 were not in fact members of the Nazi
Party, and, as the Nazi regime lasted only for twelve years (1933–
1945), the great majority of the legal profession up to the very end of
the regime had been trained prior to the Nazi accession to power.
7
As the legal profession loomed large in the operation of the regime,
it also loomed large in the post-war war crime trials at Nuremberg.
Five of the twenty-two defendants in the International Military
Tribunal (IMT), were lawyers, including: Ernst Kaltenbrunner, the
head of the Reich Security Office (the Gestapo, the SD, and the
concentration camps);
8
Hans Frank, general counsel to the Nazi
Party, and later head of the Government General of Poland;
9
Arthur
Seyss-Inquart, who as chancellor of Austria for a short time, signed
the agreement by which Austria was annexed by Germany, and later
was head of the occupation of the Netherlands;
10
Wilhelm Frick,
who was Minister of the Interior until 1943 when he became the
governor of the Protectorate of Bohemia and Moravia (now the
Czech Republic), from 1943 to 1945;
11
and Constantin Von Neurath,
Foreign Minister of Germany from 1932–1938, and governor of the
Protectorate of Bohemia and Moravia from 1939 to 1943.
12
All five
of the IMT lawyer defendants were convicted of war crimes and
crimes against humanity.
13
In the twelve subsequent trials conducted by American authorities
at Nuremberg, under the leadership of Telford Taylor (chief of
prosecution), generally referred to as the Nuremberg Military
Tribunals (NMT), a large number of second level Germans were tried
on a variety of charges.
14
The third trial, United States v. Altstötter,
6. Id. at 101.
7. INGO MÜLLER, HITLER’S JUSTICE: THE COURTS OF THE THIRD REICH 38–39 (Deborah
Lucas Schneider trans., Harvard Univ. Press 1991) (1987).
8. THOMAS J. SHAW, WORLD WAR II LAW AND LAWYERS: ISSUES, CASES, AND
CHARACTERS 420–21 (2013).
9. Id. at 419–20; see also ANN TUSA & JOHN TUSA, THE NUREMBERG TRIAL 495 (1983);
IAN KERSHAW, HITLER: 1936-1945: NEMESIS 239 (2000).
10. SHAW, supra note 8, at 285–88.
11. Id. at 344.
12. Id. at 342; TUSA & TUSA, supra note 9, at 498–99.
13. SHAW, supra note 8, at 288, 342, 344, 420–21. See generally TELFORD TAYLOR, THE
ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR (Skyhorse Publ’g, Inc.
2013) (1993) [hereinafter TAYLOR I] (providing an excellent account of the IMT);
TUSA & TUSA, supra note 9 (providing additional accounts of the IMT).
14. KEVIN JON HELLER, THE NUREMBERG MILITARY TRIBUNALS AND THE ORIGINS OF
INTERNATIONAL CRIMINAL LAW 1–2 (2011); TELFORD TAYLOR, FINAL REPORT TO THE
SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES TRIALS UNDER CONTROL
COUNCIL LAW NO. 10 (1949) [hereinafter TAYLOR II]. Heller and Taylor provide the
best overall treatment of the twelve Nuremberg Military Tribunals. Taylor’s work is
2017 Justice in the Justice Trial at Nuremberg 459
which is the subject of this article, has come to be known as the
“Justice Trial” because the sixteen original defendants were
prominent judges, prosecutors, and Justice Ministry officials of the
Nazi regime.
15
Telford Taylor, who would serve as chief of prosecution for all of
the trials and who would deliver the opening statement in the Justice
Trial, commented that this trial would be of particular interest to
lawyers and judges because of the anomaly that judges and
prosecutors of one country were trying judges and prosecutors from
another country for crimes committed within the judicial process.
16
Indeed, German judges and justice officials were tried on German
soil, in many cases for crimes against German citizens and for acts of
injustice apparently sanctioned under German law.
17
The trial permits an exploration of the problem of what constitutes
justice from the perspectives of both the Americans conducting the
an excellent, near contemporary account of the trials by the chief prosecutor in the
NMT trials. The twelve trials produced 132,855 pages of transcript, from 1,300
witnesses and 30,000 documents. The judgments in the twelve trials run to 3,828
pages. HELLER, supra note 14, at 3. Taylor felt strongly that the record of the cases
should be readily available to document the proceedings of the court, however, the
sheer volume of material made it impracticable to publish the entirety of the trials.
Therefore, after completion of the trials, his staff combed through the transcript to
put together an edited version of the most important components of the transcript,
key documents, and the final opinion. See generally 3 TRIALS OF WAR CRIMINALS
BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO.
10 (1951) [hereinafter JUSTICE TRANSCRIPT] (consisting of 1,250 pages excepted
from the record of the Justice Trial).
15. JUSTICE TRANSCRIPT, supra note 14, at 3. Early on, Taylor decided that each trial
would focus on particular groups from elite German society, rather than on particular
events or subject matters. Thus, Trial I was the “Doctor’s Trial,” which involved the
medical officials who had authorized or undertaken medical experiments of doubtful
scientific value, or engaged in involuntary euthanasia of so-called undesirable
populations. In addition, there were trials of high ranking German officers (“High
Command Trial”), German commanders in the Balkans (“Hostages Trial”), industrial
leaders (“Krupp Trial,” “I.G. Farben Trial,” and “Flick Trial”), the senior
professional civil service (“Ministries Trial”), special police units (“Einsatzgruppen
Trial”), and of course, the Justice Trial of German judges and justice officials. See
generally TAYLOR II, supra note 14, at 159–217 (discussing the organization of
grouped trials).
16. TAYLOR II, supra note 14, at 110–12.
17. See id. at 169. Unfortunately, this trial would have been mostly forgotten if not for
the film Judgment at Nuremberg, which was based largely on this trial (indeed, the
prosecution’s opening statement in the movie is verbatim from the first several pages
of Taylor’s opening), and, but for the recent revival of interest in the Nuremberg
trials after the creation of war crime proceedings in the aftermath of the conflicts in
the former Yugoslavia, Rwanda, Cambodia, and the creation of the International
Criminal Court.
460 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
trial and the Germans who were on trial in their capacities as judges
or justice officials. Indeed, this trial can best be interpreted as an
attempt to establish universal standards of justice: one that would
both govern the way the trial was conducted as well as one to which
the German judicial officials would be held accountable.
The trial poses three questions. First, was the trial procedurally
fair? As the court’s opinion implicitly set forth the minimum criteria
for a fair trial, the trial itself establishes the test for the fairness of its
own processes. This question is of particular interest in that the IMT
and NMT trials took place before the landmark equal protection, due
process, and criminal law decisions of the United States Supreme
Court. Second, was the trial substantively fair? That is, were the
defendants charged and convicted of crimes recognized as such under
international law? Third, regardless of legal culpability, was justice
done? Of particular interest are the arguments in mitigation raised by
the defendants and the subsequent impact of the NMT trials.
The thesis of this article is that the NMT trials in general and the
Justice Trial in particular were procedurally and substantively fair.
Indeed, the German defendants were in some cases afforded
procedural protections that would not be constitutionally required
under American law until the criminal law decisions of the Supreme
Court almost two decades later.
18
Similarly, the substantive charges
were justified under international law despite the novelty of the
charge of crimes against humanity.
19
Finally, despite the early
termination of sentences, justice was done.
20
Part II will briefly describe the evolution of the German legal
system during the pre-war Nazi years.
21
Part III will describe the
development of the international war crimes program under the
London Charter, Allied Control Council Law Number 10 (ACC 10),
and Office of Military Government-Germany, United States
Ordinance No. 7 (OMGUS 7).
22
Part IV will recount the Justice Trial
and its aftermath.
23
Part V will address the three questions posed in
this introduction.
24
18. See infra Sections V.A–B.
19. See infra Section V.B.
20. See infra Part V.C.
21. See infra Part II.
22. See infra Part III.
23. See infra Part IV.
24. See infra Part V.
2017 Justice in the Justice Trial at Nuremberg 461
II. THE EVOLUTION OF THE GERMAN LEGAL SYSTEM IN
THE PRE-WAR NAZI YEARS
I sit in one of the dives
On Fifty-Second Street
Uncertain and afraid
As the clever hopes expire
Of a low dishonest decade . . . .
25
Before the Nazi accession to power in 1933, Germany had a well-
established, internationally respected legal system. It had the rule of
law, enforcement of contracts, protection of rights, and other features
of western European legal systems of the time.
26
However, certain
features of the German legal system left it vulnerable to the kinds of
changes that took place in the Nazi era.
The system had grown up in the authoritarian and positivist
traditions of the German Empire. The judiciary never came to terms
with the fall of the German Empire and the establishment of the
Weimar Republic and democratic norms after World War I.
27
As an
example, German judges (recruited from the judicial track at German
law schools), had to serve an initial unpaid and untenured
probationary period of several years before reaching full judicial
status.
28
Therefore, judicial candidates had to have independent
means of financial support during the probationary period. The lack
of tenure also meant that politically or ethnically marginal persons
could be weeded out before they could finish the probationary
period.
29
As a result, there were very few left-wing or Jewish judges,
and left-wing agitators consistently received longer prison terms than
conservative agitators during the 1920s. As an example, Hitler had to
serve only a short sentence in minimum security imprisonment after
his abortive coup d’état in 1923.
30
By contrast, the leaders of the
People’s Republic of Bavaria, an abortive communist coup d’état,
received lengthy sentences.
31
Furthermore, similar to other members of the German middle class,
the judiciary lost savings during the hyperinflation of the early years
of the Republic and lost income and status during the period of
25. W.H. AUDEN, September 1, 1939, in ANOTHER TIME 98, 98 (1940) (emphasis added).
26. See MÜLLER, supra note 7, at XV.
27. See id. at 10.
28. Id. at 6.
29. Id. at 6–7.
30. Id. at 16.
31. Id. at 11–12.
462 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
budgetary austerity, which occurred at the beginning of the Great
Depression.
32
The judiciary was also inclined to blame the Republic
for the alleged “stab in the back,” which had led to an armistice while
German armies still occupied France and what was perceived as a
humiliating Versailles Treaty ending World War I.
33
The judiciary
was primed for the accession to power of an authoritarian, nationalist
alternative to the democratic parties which controlled the Weimar
Republic.
34
Additionally, the Nazis came to power within the letter, although
not the spirit, of the law. Hitler was invited to form a government on
January 30, 1933.
35
He immediately called for new elections to
secure a majority.
36
On February 28, 1933, a fire of suspicious
origins broke out in the Reichstag building.
37
Hitler immediately
blamed the Communist Party for the fire, claiming that it was a first
step towards an overthrow of the government.
38
He then invoked
Article 48 of the Weimar Constitution, which permitted the President
to suspend civil liberties when faced with an internal crisis.
39
After several weeks of terror, the Nazi Party paramilitary
organization, the Sturmabteilung (literally “Stormtroopers,”
frequently referred to as the SA), with the acquiescence of the
government, assaulted opposing politicians, destroyed campaign
offices and opposition newspapers, and intimidated supporters of
opposing parties.
40
Additionally, the police arrested leaders of the
Communist Party and harassed the leaders of the Social Democratic
and Catholic Center Parties (the latter two being the only parties with
32. Stephen J. Sfekas, The Enabler, the True Believer, the Fanatic: German Justice in
the Third Reich, 26 J. JURIS. 189, 194 (2015).
33. Id.
34. See MÜLLER, supra note 7, at 12; Sfekas, supra note 32, at 195.
35. Sfekas, supra note 32, at 195.
36. Id.
37. Id.
38. Id.
39. Id. Weimar Constitution, Article 48, section 2 reads:
If the public safety and order in the German Reich are seriously
disturbed or endangered, the national President may take the
measures necessary for the restoration of public safety and order,
and may intervene if necessary with the assistance of the armed
forces. For this purpose he may temporarily set aside in whole or
in part, the fundamental rights established in Articles 114, 115,
117, 118, 123, 124, and 153.
Weimar [Constitution] Aug. 11, 1919, ch. 3, art. 48 (Ger.). The latter articles were
the German equivalent of the First, Fourth, and Fifth Amendments of the United
States Constitution. See Sfekas, supra note 32, at 195.
40. Sfekas, supra note 32, at 195–96.
2017 Justice in the Justice Trial at Nuremberg 463
a genuine commitment to democracy).
41
Despite this, the Nazis were
able to get only forty-three percent of the vote.
42
However, by
combining their newly elected deputies with those of other right-wing
parties, the Nazis acquired a working majority of the Reichstag.
43
By
intimidating the Center Party and excluding the Communist deputies
from the Reichstag, Hitler achieved the two-thirds majority needed to
pass the Enabling Act, which amended the Weimar Constitution to
permit Hitler to rule by decree.
44
Thus, the dictatorship was
established.
45
The first decree passed after the Enabling Act barred Jews and
members of the left-wing parties from the professional civil service
and also disbarred all Jewish lawyers, with some exceptions.
46
The
remaining non-Jewish lawyers and judges were required to swear a
personal oath to Hitler.
47
There is no evidence of resistance or
protest from the remaining judges or lawyers to any of these
developments.
48
During the 1930s, “race” in the German sense
49
became a dominant
legal category, especially after the passage of the so-called
Nuremberg racial laws.
50
Jews were increasingly barred from the
protections of the law and access to the courts, and were treated much
more harshly in the criminal law.
51
Additionally, a decree in the mid-1930s permitted judges to rule on
cases by analogy.
52
If a judge felt that the specified punishment in a
41. Id. at 196.
42. IAN KERSHAW, HITLER: 1889-1936: HUBRIS 461 (1998).
43. See id. at 461–62; Sfekas, supra note 32, at 195–96.
44. See KERSHAW, supra note 42, at 438–39, 460–62; JUSTICE TRANSCRIPT, supra note
14, at 163.
45. KERSHAW, supra note 42, at 436.
46. Id. at 474–75; JUSTICE TRANSCRIPT, supra note 14, at 163.
47. MÜLLER, supra note 7, at 36–38.
48. Id. at 37.
49. Americans typically think of race as being a matter of skin color. German race
theory treated what Americans would view as ethnic groups as being separate races.
Thus, the Germans considered Jews and Poles to be of separate races from non-
Jewish Germans, whereas Americans would not do so.
50. JUSTICE TRANSCRIPT, supra note 14, at 180–81, 626–27.
51. See id. at 1082–83, 1112–14.
52. The Extracts from the Law of 28 June 1935 which amended the Criminal
(Penal) Code provided:
Article 2
Whoever commits an act which the law declares as
punishable or which deserves punishment according to the
fundamental idea of a penal law or the sound sentiment of the
people, shall be punished. If no specific penal law can be directly
464 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
criminal law was insufficiently harsh, he could analogize the offense
to a more serious crime and impose a harsher penalty. If the judge
felt that an act did not violate any criminal law, but nevertheless
objected to the defendant’s act, he could analogize the act to a
prohibited act and find the defendant guilty anyway. Under law by
analogy, no one could ever be certain whether any act was illegal or
what the penalty would be for an illegal act.
53
German law also developed the notion of the nullity plea and the
extraordinary plea.
54
In the case of the nullity plea, if a prosecutor
felt that a penalty was insufficient, he could request that the Justice
Ministry nullify the penalty and make it harsher.
55
In the case of the
extraordinary plea, if the prosecutor did not agree with an acquittal,
he could ask that the acquittal be set aside and a conviction entered.
56
Early in the regime, two new courts were created.
57
The Special
Courts were created at the regional level to hear cases involving
internal subversion.
58
The People’s Courts were created at the
national level to deal with external subversion.
59
The Nazis had
complete control over personnel of these new courts, and these courts
were largely staffed with committed Nazis.
60
Obviously, the
jurisdiction of the two courts overlapped with one another, as well as
applied to the act, it shall be punished according to the law whose
underlying principle can be most readily applied to the act.
Article 170a
If an act deserves punishment according to the sound
sentiment of the people, but is not declared punishable in the law,
the prosecutor will examine whet her the underlying principle of a
penal law can be applied to the act and whether justice can be
helped to triumph by analogous application of that penal law.
Article 267a
If the trial shows that the defendant has committed an act
which deserves punishment according to the sound sentiment of
the people, but is not declared punishable by the law, the court
will examine whether the underlying principle of a penal law
applies to the act and whether justice can be helped to triumph by
analogous application of that penal law.
Id. at 176–78.
53. See id.
54. Sfekas, supra note 32, at 200.
55. Id. at 200, 214.
56. Id. at 200–01, 214.
57. Id. at 198.
58. Id. at 199.
59. Id.
60. Id.
2017 Justice in the Justice Trial at Nuremberg 465
the jurisdiction of the ordinary criminal courts. Cases began to
migrate from the ordinary criminal courts to the Special and People’s
Courts, and ultimately, from the Special Courts to the more radical
People’s court.
61
Virtually every judge and prosecutor charged in the
Justice Trial was associated with these two courts.
By the time the war began, the German legal system had become a
prime buttress of the Nazi regime. Under the pressures of the war,
and particularly as the war began to deteriorate for the Germans, the
courts and the Justice Ministry became increasingly radicalized. Law
by analogy was used to impose draconian punishments for offenses,
and the Justice Ministry imposed new policies, such as the Night and
Fog program and the Law Against Poles and Jews, to intimidate and
persecute the populations of newly occupied territories.
62
Although
in absolute numbers the total persons killed or imprisoned by the
civilian judiciary was dwarfed by the total persons murdered by the
SS, Gestapo, and extermination camps, the German legal system
made its substantial contribution to the horrors of the Nazi regime.
63
III. THE LONDON CHARTER, ALLIED CONTROL COUNCIL
LAW NO. 10, AND OFFICE OF MILITARY GOVERNMENT-
GERMANY, U.S. NO. 7
You must put no man on trial before anything that is called
a court . . . . under the forms of judicial proceedings if you
are not willing to see him freed if not proven guilty.
64
A. The London Charter
In 1942, the Governments-in-Exile of nine German occupied
nations meeting at St. James Palace in London issued a call for the
punishment of persons committing war crimes in their respective
countries by means of “organized justice.”
65
This Declaration of St.
James received little notice, but was the first call for a trial of war
61. MÜLLER, supra note 7, at 51–53; see also H.W. KOCH, IN THE NAME OF THE VOLK:
POLITICAL JUSTICE IN HITLER’S GERMANY 51–55 (1989).
62. Sfekas, supra note 32, at 200, 204–11.
63. The Ministry of Justice of the Federal Republic of Germany estimated that civilian
courts during the Third Reich ordered 32,000 judicial executions, the majority of
which occurred during the war. Koch estimated a total of 16,560. Id. at 218–19.
64. Robert H. Jackson, Assoc. Justice of the Supreme Court of the U.S., Address at the
American Society of International Law Annual Meeting: The Rule of Law Among
Nations 15–16 (Apr. 13, 1945), https://www.roberthjackson.org/wpcontent/uploads/
2015/01/Rule_of_Law_Among_Nations.pdf.
65. TAYLOR I, supra note 13, at 25.
466 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
criminals rather than summary justice.
66
Subsequently, the Western
Allies organized the United Nations War Crimes Commission to
investigate war crimes including the “bestial policy of extermination
of the Jewish people in Europe.”
67
In November 1943, the foreign ministers of Great Britain, the
United States, and the Soviet Union met and issued the Moscow
Declaration.
68
This declaration provided that Italian Fascist chiefs
and generals suspected of war crimes would be “arrested and handed
over to justice,” and that Austria would be treated as a victim nation
and not as a participant in German aggression.
69
With respect to
German war crimes there were two provisions of note. The
Declaration provided that:
At the time of the granting of any armistice to any
government which may be set up in Germany, those
German officers and men and members of the Nazi party
who have been responsible for, or have taken a consenting
part in the above atrocities, massacres and executions, will
be sent back to the countries in which their abominable
deeds were done in order that they may be judged and
punished according to the laws of these liberated countries
and of the free governments which will be created
therein. . . . The above declaration is without prejudice to
the case of the major criminals, whose offences have no
particular geographical localisation and who will be
punished by the joint decision of the Governments of the
Allies.
70
This Declaration created the basic framework for the war crimes
trials. First, crimes committed by identifiable Germans in occupied
66. See id.
67. Id. at 26. The term “United Nations” became the preferred term describing the
Allied Powers during the war. The Commission was not an arm of the modern day
United Nations Organization which was created after the war. This Commission
would be superseded by the IMT and NMT trials and various other national tribunals
and did not play a role in the investigation of war crimes. However, under the
leadership of a notable Australian jurist, Lord Robert Anderson Wright of Durley,
the Commission collected and published law reports on all of the major international
and national war crimes trials after the war, including the thirteen Nuremberg trials.
Lord Wright wrote excellent analyses of the war crimes trials including an overview
of all the trials in the fifteenth volume of the series. See 1–15 UNITED NATIONS WAR
CRIMES COMM’N, LAW REPORTS OF TRIALS OF WAR CRIMINALS (1947–1949).
68. See STAFF OF THE COMM. & THE DEP’T OF STATE, A DECADE OF AMERICAN FOREIGN
POLICY: BASIC DOCUMENTS, 1941–49, S. DOC. NO. 123, at 9 (1st Sess. 1950).
69. Id. at 11–13.
70. Id. at 13–14.
2017 Justice in the Justice Trial at Nuremberg 467
countries would be returned to these countries for trial. Second, there
would be a subset of major criminals, such as Hitler himself, whose
crimes affected all of Europe and whose fate would be settled by the
major powers. As the war drew to a close, the question of what to do
with the major criminals became acute. Among the options
considered were: (1) summary execution of up to 50,000 German
offenders, which was proposed by Joseph Stalin at a dinner at the
Yalta Conference, perhaps jocularly (Winston Churchill strongly
objected, and Franklin D. Roosevelt did not take the proposal
seriously);
71
(2) exile of the major leaders; (3) summary execution of
the leading Nazis (this would remain the favored British position
until the end of the London Conference in August 1945);
72
(4) do
nothing and let them go;
73
and (5) an international tribunal for the
major offenders.
74
The issue was crystallized for the Allies when word of the so-called
Morgenthau plan leaked to the public. This proposal by the Secretary
of the Treasury, Henry Morgenthau, initially endorsed by Roosevelt
and Churchill, would have called for the deindustrialization of
Germany and the transformation of the country into a pastoral and
agricultural economy.
75
This proposal was heavily criticized and
ultimately rejected.
76
It did, however, result in intensified post-war
planning. Two key developments tipped the balance towards an
international trial.
The first was a memorandum proposed by Colonel Murray
Bernays, chief of the Special Projects Branch of the War Department,
which proposed a trial of major war criminals, along with a trial of
criminal organizations such as the SS.
77
If an organization were
found to be a criminal enterprise, further proceedings could take
place against former members of the organization, which could be
limited to disposition because guilt would have been established by
mere membership.
78
71. TAYLOR I, supra note 13, at 29–30.
72. Id. at 29–33.
73. TUSA & TUSA, supra note 9, at 26.
74. TAYLOR I, supra note 13, at 28.
75. TUSA & TUSA, supra note 9, at 50–51, 60.
76. Id. at 60–61.
77. See TUSA & TUSA, supra note 9, at 54–55.
78. See COLONEL MURRAY BERNAYS, MEMORANDUM FOR JUDGE ROSENMAN 2–3 (1945).
Bernays’ memorandum set forth what would be viewed as a practical way to try the
massive numbers of Nazi war criminals. Although the memo would convince the
American government of the need for war crimes trials, Bernays himself played no
role at Nuremberg.
468 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
The second key development was the appointment of Justice
Robert H. Jackson by Harry Truman (who became president after the
death of Roosevelt on April 12, 1945) to be the chief United States
prosecutor at the war crimes trials.
79
Truman’s appointment occurred
on May 2, 1945, and was one of Truman’s earliest and most inspired
appointments.
80
Even at this point, Justice Jackson had had an extraordinary career.
He first met Franklin D. Roosevelt while Roosevelt was still
Governor of New York, and Jackson followed Roosevelt to
Washington after he became President.
81
Jackson held an
increasingly significant number of government jobs, culminating in
his service as Solicitor General in 1938 and U.S. Attorney General in
1940.
82
He was appointed to the Supreme Court in July 1941.
83
Most significantly was Jackson’s role in Korematsu v. United States,
which upheld the military order that resulted in the internment of
loyal Japanese citizens of the United States without any semblance of
due process or indication of wrongdoing. Jackson wrote an eloquent
and scathing dissent denouncing the denial of due process and the use
of racial and ethnic categories in the internment order.
84
On April 13, 1945, shortly before his appointment, Jackson gave a
speech before the American Society of International Law, in which
he stated:
I am not so troubled as some seem to be over problems of
jurisdiction of war criminals or of finding existing and
recognized law by which standards of guilt may be
determined. But all experience teaches that there are certain
things you cannot do under the guise of judicial trial. Courts
79. See TAYLOR I, supra note 13, at 44–45 (stating that after Justice Jackson gave a
speech on war crimes on April 13, 1945, President Truman expressed his wish to
appoint Justice Jackson as the country's representative and Chief Counsel for war
crimes).
80. See Douglas O. Linder, The Nuremberg Trials: Chronology, FAMOUS WORLD
TRIALS, http://law2.umkc.edu/faculty/PROJECTS/FTRIALS/nuremberg/
NurembergChronology.html (last visited Apr. 1, 2017).
81. See generally TAYLOR I, supra note 13, at 43 (discussing how Jackson met important
people in New York such as Franklin Roosevelt and how subsequently Jackson went
on to greater appointments such as Attorney General).
82. Id.
83. Id. Justice Jackson would be the last and possibly the only Supreme Court Justice in
the twentieth century who did not attend college and never completed law school.
He left Albany Law School after one year, but was able to pass the New York State
Bar Exam. See Phil C. Neal, Justice Jackson: A Law Clerk’s Recollections, 68 ALB.
L. REV. 549, 549 (2004); Solicitor General: Robert H. Jackson, U.S. DEP’T JUST.,
https://www.justice.gov/osg/bio/robert-h-jackson (last visited Apr. 1, 2017).
84. Korematsu v. United States, 323 U.S. 214, 245–46 (1944) (Jackson, J., dissenting).
2017 Justice in the Justice Trial at Nuremberg 469
try cases, but cases also try courts. . . . [T]here is no reason
for a judicial trial except to reach a judgment on a
foundation more certain than suspicion or current
rumor. . . . But, further, you must put no man on trial if you
are not willing to hear everything relevant that he has to say
in his defense and to make it possible for him to obtain
evidence from others. . . . [Y]ou must put no man on trial
under the forms of judicial proceedings if you are not
willing to see him freed if not proven guilty.
85
This speech, which was likely the cause of Truman’s appointment of
Jackson,
86
would be the basis of American policy. Justice Jackson
would lead the United States delegates to the London Conference and
would be the dominant personality at the conference.
In August 1945, representatives of the major Allied Powers—the
United States, Great Britain, France, and the Soviet Union—met in
London to determine what was to be done with the major Nazi war
criminals.
87
The London Charter, which resulted from the
conference, set the tone and parameters for the IMT and for the NMT
trials that followed, including the Justice Trial. The London
Conference dealt with three categories of issues: (1) the logistics of a
trial, (2) the charges to be brought, and (3) the procedures, including
rules of evidence to be used.
1. Logistics
The logistics issues were difficult but readily resolved. The trial
would be held at the Palace of Justice in Nuremberg, Germany,
primarily because Nuremberg, unlike most German cities, had an
intact courthouse connected to an intact jail, with sufficient housing
and office space to support the personnel associated with the trial.
88
Furthermore, Nuremberg was in the U.S. zone of occupation, which
meant that the United States, as the wealthiest of the allied countries,
would provide the support services for the trial.
89
Additionally,
85. Jackson, supra note 64, at 15–16.
86. John Q. Barrett, “One Good Man”: The Jacksonian Shape of Nuremberg, in THE
NUREMBERG TRIALS: INTERNATIONAL CRIMINAL LAW SINCE 1945, at 129, 132
(Herbert R. Reginbogin & Christoph J. M. Safferling eds., 2006).
87. See TAYLOR I, supra note 13, at 59.
88. The Nuremberg Courtroom: Why Nuremberg?, U.S. HOLOCAUST MEMORIAL
MUSEUM, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007089 (last
visited Apr. 1, 2017).
89. See TAYLOR I, supra note 13, at 61.
470 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Nuremberg had great symbolic power as the site of the annual Nazi
Party rallies and the place where the Nuremberg racial laws were
announced.
90
Language issues would bedevil all the proceedings, particularly the
IMT, as all documents and all testimony had to be translated from the
language of the original into English, French, German, and Russian,
respectively. Colonel Leon Dostert of the U.S. Army and engineers
at IBM solved the language problem by developing the technologies
of simultaneous interpretation and creating the listening and
recording technologies by which each participant could hear the trial
in his or her own language by earphones.
91
Throughout the thirteen
trials, the U.S. Army maintained a massive staff of interpreters to
translate documents into the respective languages. Telford Taylor
notes that, at its peak, the NMT trials required a support staff of over
1,300 persons.
92
2. The Charges
Although the logistics issues were complex, they were not a subject
of major division among the Allies. The choice of charges and trial
procedures, however, caused major difficulties and took weeks of
negotiation to resolve.
93
Jackson came to the London Conference
convinced that the greatest evil—the one that subsumed all others—
was the waging of aggressive war itself.
94
The Holocaust, war
crimes, slave labor, displacement of populations, starvation of
civilians, mass destruction of property, theft of art treasures, and
sexual abuse of civilians all flowed from or were part of preparation
for aggressive war. Accordingly, Jackson insisted that one of the
charges be crimes against the peace, and the other parties agreed.
95
As this was not one of the charges in the Justice Trial, this shall not
be discussed further.
However, Jackson also insisted on the inclusion of a separate
charge of conspiracy to wage aggressive war, as well as charges of
90. Id.
91. TUSA & TUSA, supra note 9, at 218–19. Dostert later founded what was formerly the
School of Languages and Linguistics at Georgetown University. FRANCESCA GAIBA,
THE ORIGINS OF SIMULTANEOUS INTERPRETATION: THE NUREMBERG TRIAL 161
(1998). His system is in use in international proceedings to this day. Id. at 62.
92. TAYLOR II, supra note 14, at 43–44, 157–58.
93. See id. at 63 (illustrating that the reason for the difficulties and length of negotiations
was due to a large number of unanswered questions that needed to be resolved).
94. See TAYLOR I, supra note 13, at 66–67, 76–77 (discussing Jackson’s strong feelings
on the waging of aggressive war and his persistence in advocating for its inclusion as
a separate charge).
95. Id. at 65–66, 76–77; TAYLOR II, supra note 14, at 139–40.
2017 Justice in the Justice Trial at Nuremberg 471
war crimes and crimes against humanity.
96
The conspiracy charge
would be a controversial component of all the trials. The difficulty
with conspiracy as an independent charge is that conspiracy, although
a part of the common law tradition of the United States and the
United Kingdom, is not part of the civil law tradition of France,
Germany, the Soviet Union, or most of the other belligerent powers.
97
The French, in particular, argued that conspiracy was not part of the
customs of war or of customary international law since it was not
accepted as law by the legal system used by the majority of affected
countries.
98
This issue was important because the charges of crimes
against the peace required the actual invasion of a country. Thus, the
charge would only apply to events immediately leading up to
September 1, 1939, the day that Germany attacked Poland, and the
events and persons directly involved in planning and implementing
the invasion.
99
Jackson’s conception was much broader. In his view, everything
leading up to the beginning of the war, including the Nazi seizure of
power, the rearmament of Germany, the expansion of the Army, the
persecution of Jews and political opponents in Germany, were all part
of a plan leading to the initiation of war.
100
Furthermore Jackson
believed that the subsequent war crimes were a continuation of the
same conspiracy.
101
The British shared Jackson’s perspective on the
law of conspiracy, but the French and Soviets strongly opposed it.
102
The issue was resolved by an agreement that the charge of conspiracy
would be limited to crimes against the peace, but would not extend to
war crimes or crimes against humanity.
103
The second problem with the charges arose out of the limitations
on the traditional notion of war crimes. Unlike the other charges in
the indictments, a body of law relating to war crimes had developed
by 1945.
104
Prior to 1863, war crimes were primarily a matter of
customary international law based on “the laws and customs of war
96. TAYLOR I, supra note 13, at 76–77; TAYLOR II, supra note 14, at 139–40.
97. TAYLOR I, supra note 13, at 35–36, 65–66.
98. Id.
99. TAYLOR II, supra note 14, at 63, 69, 139–40, 146–48.
100. Id. at 139–40.
101. See TUSA & TUSA, supra note 9, at 73, 86–87.
102. TAYLOR I, supra note 13, at 36; TUSA & TUSA, supra note 9, at 86.
103. TAYLOR I, supra note 13, at 75–76.
104. See id. at 25–28 (providing historical background on the development of the body of
law relating to war crimes).
472 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
among civilized nations.”
105
During the American Civil War,
Abraham Lincoln commissioned Francis Lieber, a legal scholar, to
develop a code of conduct for Union armies to deal with the Southern
armies and the hostile civilian population.
106
The resulting code,
known generally as “Lieber’s Code” and more recently and more
appropriately known as “Lincoln’s Code,” was incorporated into
General Order Number 100 and was issued by President Lincoln to
govern the conduct of all armies in the American Civil War.
107
For the first time, this code attempted to clarify and set out the law
of war. The code was viewed as a significant success, and it was
gradually adopted by European countries to govern the conduct of
their armed forces in times of war.
108
Lincoln’s Code thereafter
became one of the primary sources for the Hague Conventions of
1899 and 1907.
109
Prior to World War II, there was further
modification of Lincoln’s Code in the Geneva Convention of 1929.
110
The laws of war, as defined by these treaties, had a number of
important limitations which complicated the effort to bring the
defendants to justice. First, the laws of war require a war; second, the
war must be between belligerent powers.
111
Thus, the laws of war as
declared in the Conventions would not apply at all before September
1, 1939, nor would they apply to offenses committed by Germany in
Germany or on German allies. As an example, the persecution of
Jews in Czechoslovakia or Austria would not be a war crime because
both countries had been absorbed by Germany prior to September 1,
1939, and the absorption had not been contested by the international
community. Similarly, the persecution and extermination of Jews in
Hungary after April 1944, would not have been a war crime as
Hungary technically was an ally of Germany.
To deal with this issue, the London Conference concluded that
certain offenses of a sufficiently substantial nature associated with
war crimes or the waging of war would constitute crimes against
humanity. Indeed, the Hague Convention notes in the preamble that:
105. JOHN FABIAN WITT, LINCOLN’S CODE: THE LAWS OF WAR IN AMERICAN HISTORY 118
(2012); TAYLOR I, supra note 13, at 6, 8.
106. TAYLOR I, supra note 13, at 8–9; WITT, supra note 105, at 1–2.
107. See TAYLOR I, supra note 13, at 9; WITT, supra note 105, at 8.
108. WITT, supra note 105, at 342–45.
109. Id. at 349–50.
110. Geneva Convention Relative to the Treatment of Prisoners of War art. 1, July 27,
1929, 47 Stat. 2021.
111. Hague Convention Respecting the Laws and Customs of War on Land art. 2, July 29,
1899, 32 Stat. 1803 [hereinafter Hague Convention of 1899] (“The provisions
contained in the Regulations mentioned in Article 1 are only binding on the
Contracting Powers, in case of war between two or more of them.”).
2017 Justice in the Justice Trial at Nuremberg 473
Until a more complete code of the laws of war is issued,
the High Contracting Parties think it right to declare that in
cases not included in the Regulations adopted by them,
populations and belligerents remain under the protection
and empire of the principles of international law, as they
result from the usages established between civilized nations,
from the laws of humanity, and the requirements of the
public conscience.
112
Thus, the Hague Conventions were not intended to be a
comprehensive declaration of all the rules of war or of “the laws of
humanity[] and the requirements of the public conscience.”
Therefore, the London Conference concluded that international law
encompassed the offense of “crimes against humanity.”
113
However,
the London Charter put an important limitation on this charge, one
that would change significantly in Allied Control Council Law No.
10 and OMGUS 7, which covered the NMT Trials. Under the
London Charter, a crime against humanity was:
[M]urder, 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 the domestic law of
the country where perpetrated.
114
Thus, a crime against humanity within the contemplation of the
London Charter could be committed before the war or in Germany or
in its allies, regardless of the domestic law of Germany, if it were “in
execution of or in connection with any crime within the jurisdiction
of the Tribunal.”
115
A crime against humanity, therefore was
predicated on the commission of a separate crime within the
Tribunal’s jurisdiction (i.e., war crimes, crimes against the peace or
conspiracy to commit crimes against the peace). As Jackson’s
conception of the conspiracy charge incorporated acts as early as
112. Id. at 248.
113. TUSA & TUSA, supra note 9, at 498; see also Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis art. 6(c), Aug. 8,
1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter London Charter].
114. London Charter, supra note 113, 59 Stat. at 1547, 82 U.N.T.S. at 288 (emphasis
added).
115. Id.
474 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
January 30, 1933, a crime against humanity could include acts
committed in Germany or Greater Germany or German allies from
1933 onward.
3. Procedures
The differences between civil law and common law traditions
presented a major problem in designing the procedures to be used in
the IMT. Common law criminal trials, such as those of the United
States and Great Britain, rely on the prosecution to present evidence
to prove the defendant guilty beyond a reasonable doubt.
116
The
indictment, therefore, is short and intended to provide notice of the
charge only.
117
The defense has the right to cross-examine or to
present evidence of its own.
118
The judge’s involvement is limited to
rulings on the law, admissibility of evidence, and asking clarifying
questions.
119
Before the decision in Brady v. Maryland, 373 U.S. 83
(1963), the defendants in American courts had extremely limited
discovery, so trial by surprise was routine.
120
In the civil law tradition, the prosecutor prepares a lengthy and
detailed indictment with relevant documents attached and witness
affidavits summarizing the testimony of each of the witnesses to be
called.
121
The defense may suggest additional witnesses and
documents, but the defense receives complete discovery when it
receives the indictment.
122
The trial is conducted before a multi-
judge panel.
123
One of the judges reviews the indictment and
accompanying materials and decides whether the case should move
forward.
124
The judges then decide which witnesses will be heard in
person, and the court conducts the questioning.
125
Thus, the lawyers
116. Donald A. Dripps, The Constitutional Status of the Reasonable Doubt Rule, 75
CALIF. L. REV. 1665, 1670 (1987).
117. See Jessica Smith, The Criminal Indictment: Fatal Defect, Fatal Variance, and
Amendment, 3 UNC SCH. GOV’T 3, 3 (2008).
118. See U.S. CONST. amend. VI.
119. See United States v. Liddy, 509 F.2d 428, 438 (D.C. Cir. 1974) (establishing that
while a judge has discretion to ask clarifying questions, the judge must exercise
restraint in doing so).
120. See Brady v. Maryland, 373 U.S. 83, 87 (1963).
121. See generally VIVIENNE O’CONNOR, PRACTITIONER’S GUIDE: COMMON LAW AND
CIVIL LAW TRADITIONS 25–26 (2012) (discussing the indictment process in a civil
law system).
122. See id. at 26–27.
123. Loïc Cadiet, Introduction to French Civil Justice System and Civil Procedural Law,
28 RITSUMEIKAN L. REV. 331, 333–34 (2011).
124. TUSA & TUSA, supra note 9, at 76.
125. Id. at 77.
2017 Justice in the Justice Trial at Nuremberg 475
are relatively passive and the judges play the most active role in
prosecuting the case.
126
The London Charter authorized judges to develop rules of
procedure to govern the IMT. The rules of procedure, as in civil law
practice at the time, provided for: (1) the right to counsel of the
defendant’s choice; (2) the appointment of counsel if the defendant
did not have one; (3) the right of the defendant to compulsory
process; (4) the right of the defendant to receive copies of all the
documents made a part of the indictment and have access to other
documents in the prosecution’s possession translated into German.
127
It should be noted that these rules of procedure were adopted prior to
the U.S. Supreme Court decisions in Mapp v. Ohio, 367 U.S. 643
(1961), Gideon v. Wainwright, 372 U.S. 335 (1963), Brady v.
Maryland, 373 U.S. 93 (1963), and Miranda v. Arizona, 384 U.S. 436
(1966), so that defendants were accorded more rights than the
existing constitutional minimums in American law at the time.
128
In practice, the IMT used a hybrid between civil and common law
principles for the presentation of cases.
129
Notably, the case did not
rely on strict rules of evidence.
130
The prosecution relied heavily on
captured German documents, which were organized into evidence
books with affidavits explaining where and when the documents were
discovered and certifying the accuracy of translation.
131
The practice
of having the prosecutor read portions of the document into the
record and make an oral presentation of the significance of the
document packet also developed. Much of the testimony in both
cases was by way of affidavit.
132
However, the parties had the right
to require a party to call a witness who had rendered an affidavit. A
version of this practice was to be used in the NMT trials.
133
The trial lasted from November 1945 through July 1946.
134
Nineteen of the twenty-two defendants were found guilty.
135
Twelve
126. TAYLOR I, supra note 13, at 63–64.
127. London Charter, supra note 113, 59 Stat. at 1550–54, 82 U.N.T.S. at 294–98.
128. TUSA & TUSA, supra note 9, at 85.
129. Id.
130. London Charter, supra note 113, 59 Stat. at 1551, 82 U.N.T.S. at 296.
131. TUSA & TUSA, supra note 9, at 190–91.
132. See id. at 200–01 (showing the effect of affidavits by victims such as Jacob Vernick,
a survivor of Treblinka, who stated that “writing his statement had given him the
only reason to continue his life”).
133. See generally id. at 85 (detailing how defendants were given a full indictment prior
to trial which included all of the relevant evidence and were permitted to give a final
statement without prosecutor challenge and not under oath).
134. See Quincy Wright, The Law of the Nuremberg Trial, 41 AM. J. INT’L L. 38, 41
(1947).
476 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
received death sentences, three received life sentences, four received
a significant sentence, and three were acquitted.
136
B. Allied Control Council Law No. 10
It had always been contemplated that the IMT would be the first
trial of major Nazi war criminals, but that others would likely follow.
However, the logistical, cultural, and legal difficulties of conducting
a lengthy and complex trial in four languages with hybrid procedures
and law derived from two different systems of law caused widespread
reluctance at the prospect of repeating the experience.
137
Justice
Jackson ultimately decided that the United States would not
participate in a following trial under the same circumstances.
138
The Allied Control Council, which consisted of the commanders of
the four occupying armies in Germany, issued Allied Control Council
Law Number 10 (ACC 10), which established a new process for
trying the remaining major war criminals.
139
Under ACC 10,
responsibility for future trials would be in the hands of the respective
occupation zones.
140
The occupying authority in each zone would
have the ability to convene a military tribunal to try German
defendants within its custody under the general framework of ACC
10.
141
ACC 10 set forth a number of general principles regarding
subsequent trials:
1. The occupying authorities other than the occupying zone
conducting the trial would give full cooperation in
transferring defendants, serving subpoenas, and
producing witnesses and documents.
142
2. The principles and provisions of the Moscow
Declaration and the London Charter were incorporated
by reference into the directive.
143
135. Id.
136. See id.
137. See TAYLOR II, supra note 14, at 26–27.
138. See id.
139. See Control Council Law No. 10, Punishment of Persons Guilty of War Crimes,
Crimes Against Peace and Against Humanity (Dec. 20, 1945), reprinted in TAYLOR
II, supra note 14, at 250, 253 [hereinafter ACC 10].
140. Id. at 251–52.
141. See id. at 251.
142. Id. at 251–53.
143. Id. at 250.
2017 Justice in the Justice Trial at Nuremberg 477
Most importantly however, ACC 10 clearly defined the scope of
jurisdiction of the subsequent trials in Article II and the specifications
of the crimes with which the defendant could be charged.
144
Article II, Section (a) set forth the crime of “crimes against the
peace” and used the same definition as the London Charter.
145
Similarly, Article II, Section (b) defined war crimes in the same
manner as the London Charter.
146
The third crime, crimes against humanity, as set forth in Article II,
Section (c) differed in important respects from the definition in the
London Charter. The definition of the crime in Article 6 of the
London Charter included “murder, extermination, enslavement,
deportation, and other inhumane acts . . . in execution of or in
connection with any crime within the jurisdiction of the Tribunal.”
147
However, the corresponding language of ACC 10 reads “[a]trocities
and offenses, including but not limited to murder, extermination,
enslavement, deportation, imprisonment, torture, rape or other
inhumane acts . . . .” and dropped the limiting clause “in connection
with any crime within the jurisdiction of the Tribunal.”
148
The definition of ACC 10 therefore is substantially broader than the
definition of the London Charter in important respects. First, the list
of acts constituting acts against humanity is broadened to include
imprisonment, torture, and rape. The inclusion of rape is of some
note given the massive number of sexual assaults by the Red Army
during its invasion of Germany and to a lesser extent by the French
Army.
149
The specific reference to imprisonment also makes it clear that the
acts of German judges, prosecutors, and other justice officials would
fall within the jurisdiction of the court. The definition by inclusion of
the term “including but not limited to” also makes clear that the
offenses which follow are intended as examples of the crimes, not a
comprehensive listing of the elements of the crime.
144. See id. at 250–51.
145. See id. at 250; London Charter, supra note 113, 59 Stat. at 1547, 82 U.N.T.S. at 288.
146. See ACC 10, supra note 139, at 250; London Charter, supra note 113, 59 Stat. at
1547, 82 U.N.T.S. at 288.
147. London Charter, supra note 113, 59 Stat. at 1547, 82 U.N.T.S. at 288.
148. See ACC 10, supra note 139, at 250; London Charter, supra note 113, 59 Stat. at
1547, 82 U.N.T.S. at 288.
149. See RICHARD BESSEL, GERMANY 1945: FROM WAR TO PEACE 152–58 (2009); TONY
JUDT, POSTWAR: A HISTORY OF EUROPE SINCE 1945, at 20–21 (2005). Lowe
estimates that two million German women may have been raped in the Russian
invasion of Germany. KEITH LOWE, SAVAGE CONTINENT: EUROPE IN THE
AFTERMATH OF WORLD WAR II 55 (2012).
478 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
The deletion of the reference to “in execution of or in connection
with any crime” represented an evolution of thinking as to what
constituted crimes against humanity. There had been concerns at the
London Conference about crimes against humanity.
150
Were they
simply a logical extension of war crimes and therefore within the
tradition of international law, or were they, in fact, a new crime? If
the latter, the defendants might have a strong argument about the ex
post facto application of the law. The “in connection with” language
therefore emphasized that this was a natural extension of existing law
rather than a new law.
As did the definition in the London Charter, crimes against
humanity in ACC 10 applied to any civilian population, including
offenses against German civilians, “whether or not in violation of the
domestic laws of the country where perpetrated.”
151
The directive
also stated that the defendant’s official position would not free the
defendant from criminal responsibility, and the fact that a defendant
was following orders did not constitute a defense to charges but
might be considered in mitigation.
152
From the perspective of judges and defense counsel, the definitions
of the crimes created serious problems. The defendants might have
defenses against the charge of war crimes since the crime requires
there to be a war and applies only to offenses committed against
belligerent populations. By September 1, 1939, the day that World
War II began, Austria and Czechoslovakia had already been
incorporated into greater Germany.
153
After the conquest of Poland,
portions of Poland known as the “Incorporated Eastern Territories”
were formally incorporated into Germany.
154
Therefore, offenses
committed in the former Austria, Czechoslovakia and the
incorporated portions of Poland arguably were taking place in
Germany, and thus were not war crimes. Most of the actions of the
defendants in fact took place in Germany so defined.
Crimes against humanity, however, were not limited as to place
since the definition applied to any population. The offense did not
require the existence of a war, meaning acts before September 1,
150. See generally London Charter, supra note 113, 59 Stat. at 1547, 82 U.N.T.S. at 288
(including crimes against humanity as a separate offense contemplated and
punishable under the London Charter).
151. ACC 10, supra note 139, at 250.
152. Id. at 251.
153. JUSTICE TRANSCRIPT, supra note 14, at 997–98.
154. Id. at 594.
2017 Justice in the Justice Trial at Nuremberg 479
1939, arguably could be charged.
155
Finally, the exclusion of reliance
on the domestic law as an excuse eliminated an additional defense.
156
The definition of a crime against the peace included a specific
statement that “participation in a common plan or conspiracy for the
accomplishment of any of the foregoing” would also be an offense.
There is no such reference to conspiracy in the definition of war
crime or crimes against humanity.
157
The final potential charge was membership in an organization
found to be a criminal organization by the IMT. Liability, however,
would be established only if the defendant knew of the criminal
nature of the organization.
158
ACC 10 did not establish trial procedures nor even require any of
the occupying authorities to take any particular action. In response,
the British, for example, issued a royal warrant limiting further
prosecutions to trials of war crimes, especially those associated with
British citizens.
159
Similarly, the French conducted trials in their
zone only for crimes committed in France during the occupation
period.
160
The United States, however, decided to continue the prosecution of
major war criminals under ACC 10. In response to ACC 10, the
Office of the Military Government-Germany, United States
(OMGUS) issued Ordinance Number 7 (OMGUS 7), which
established the procedures for the conduct of the Nuremberg Military
Tribunals to be held in the American zone.
161
OMGUS 7 ostensibly was intended to implement ACC 10, but not
to make substantive changes in its provisions. Yet, the ordinance
altered ACC 10 in its first sentence, which reads: “The purpose of
this Ordinance is to provide for the establishment of military tribunals
which shall have power to try and punish persons charged with
offenses recognized as crimes in Article II of Control Council Law
No. 10, including conspiracies to commit any such crimes.”
162
155. See ACC 10, supra note 139, at 251 (listing the required elements of the offenses).
156. See id. at 250.
157. See id.
158. See id. at 250–51.
159. See generally id. at 254–257 (stating the regulations for governing the trials of war
criminals).
160. 3 UNITED NATIONS WAR CRIMES COMM’N, LAW REPORTS OF TRIALS OF WAR
CRIMINALS 100–02 (1948) (discussing Ordinance No. 36 of February 25, 1946 by
the French Commander-in-Chief).
161. Office of the Military Government-Germany, United States Zone, Ordinance No. 7,
art. I (effective on Oct. 18, 1946), reprinted in TAYLOR II, supra note 14, at 286
[hereinafter OMGUS 7].
162. Id.
480 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
However, ACC 10 and the London Charter recognized conspiracy
only with respect to crimes against the peace, but not as part of war
crimes or crimes against humanity. The balance of the OMGUS 7
would be less controversial.
Article II established the tribunals. The tribunals would consist of
three judges and one alternate judge.
163
Each judge would have to be
a member of the bar in good standing of any American jurisdiction
with at least five years’ experience.
164
As a practical matter, the great
majority of the judges were current or retired judges of state appellate
courts.
165
Article IV sets forth basic precepts of the trials:
1. The defendant would receive copies of the indictment
and of relevant documents at a reasonable time,
translated into German;
2. The trial would be conducted in or translated into
German;
3. The defendant would have the right to counsel of his
own choice, and the court would appoint counsel for
anyone unrepresented. The counsel would be
compensated by the occupying forces;
4. The defendant would have the right to be present at all
stages of the proceeding;
5. The defendant would have the right to present evidence
on his own behalf and cross-examine prosecution
witnesses;
6. The defendant would have the right to request the
tribunal to produce witnesses or documents.
166
Additionally, the tribunal would have the power to issue
subpoenas, administer oaths, or to impose sanctions for contempt of
court.
167
Article XI set forth the order of proceedings.
168
Article VII is of particular interest as it lays out the rules of
evidence. It states that the tribunal would not be bound by the
technical rules of evidence and that it shall admit any evidence into
163. Id.
164. Id.
165. HELLER, supra note 14, at 41. Heller includes brief biographical material as to each
participating judge. Id. at 85–105. Chief Justice Carl Vinson would not permit any
sitting federal judge to participate in the Nuremberg trials as he felt the federal court
case load was too great to permit federal judges to be absent from their duties for
extended periods of time. Id. at 41.
166. See OMGUS 7, supra note 161, at 287.
167. See id. at 288.
168. Id. at 289.
2017 Justice in the Justice Trial at Nuremberg 481
the record which it deems to have probative value.
169
The tribunals
were specifically authorized to admit: “affidavits, depositions,
interrogations [the term “interrogations” likely refers to
interrogations performed by military intelligence], and other
statements, diaries, letters, the records, findings, statements and
judgments of the military tribunals . . . .”
170
However, the opposing
party must be given an opportunity to question the affidavit or
probative value of such evidence.
171
In most respects, the evidentiary
rule laid out in OMGUS 7 closely resembles the rules typical of
federal and state administrative hearings.
172
In general, the trial
would be conducted in accordance with proceedings in American or
British courts.
IV. THE TRIAL
But a court is far more than a courtroom; it is a process
and a spirit. It is the house of law. This the defendants
know, or must have known in times past. I doubt that they
ever forgot it.
173
A. The Defendants, Lawyers, and Judges
The sixteen defendants were largely judges and prosecutors of the
People’s Court and Special Courts and the balance were officials of
the Ministry of Justice, specifically:
1. Judges of the Peoples Court: Karl Engert, Gunther
Nebelung, Oswald Rothaug, Hans Petersen;
2. Prosecutors of the Peoples Court: Paul Barnickel, Ernst
Lautz;
3. Judges of the Special Court: Hermann Cuhorst, Rudolf
Oeschey, Oswald Rothaug (who had also served as a
judge of the People’s Court);
4. Prosecutors of the Special Courts: Günther Joël;
5. Ministry of Justice: Josef Altstötter, Wilhelm von
Ammon, Karl Engert, Günther Joël, Herbert Klemm,
169. Id. at 288.
170. Id.
171. Id.
172. Id. at 289.
173. JUSTICE TRANSCRIPT, supra note 14, at 31 (opening statement of Brigadier General
Telford Taylor) (emphasis added).
482 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Wolfgang Mettgenberg, Curt Rothenberger, Franz
Schlegelberger, Carl Friedrich Otto Westphal.
174
The People’s Court and the Special Courts were established after
the Nazi takeover of Germany in 1933 as courts parallel to the
existing German judicial system.
175
The People’s Court had
concurrent jurisdiction over internal subversion and the Special
Courts had jurisdiction over external threats.
176
Both courts were
staffed by loyal Nazis and were primarily tools for maintaining party
control.
177
The Ministry of Justice, after a reorganization of the legal system
after the Nazi takeover, was the central organization of the legal
system. The Ministry included all the courts, all the prosecutors, and
issued all laws and decrees relating to criminal justice.
178
All the defendants were charged with war crimes, crimes against
humanity, and conspiracy to commit war crimes and crimes against
humanity.
179
Additionally, Altstötter, Cuhorst, Engert, Joël,
Nebelung, Oeschey, and Rothaug were charged with membership in a
criminal organization, that is, the leadership ranks of the Nazi Party
or the SS.
180
None of the defendants were charged with crimes against the peace
or conspiracy to commit crimes against the peace.
181
The most
prominent of the defendants, and the primary target of the
prosecution was Franz Schlegelberger, who had been an
internationally known legal scholar, and one of the pillars of the
German legal establishment.
182
In 1941, after a long and illustrious
career, he became the acting Minister of Justice, and in that capacity
took part in some of the most notorious abuses of the German legal
system under the Nazis.
183
OMGUS 7 gave the defendants the right to counsel of their own
choice.
184
By the time of the NMT trials, there were a group of fifty
German lawyers with experience in the proceedings who were
174. HELLER, supra note 14, at app. A (listing each defendant, his role, the charges
against him, the results of his trial, and disposition).
175. MÜLLER, supra note 7, at 51.
176. See id.
177. See id. at 140–41.
178. See JUSTICE TRANSCRIPT, supra note 14, at 212–17.
179. HELLER, supra note 14, at app. A.
180. Id.
181. Id.
182. See JUSTICE TRANSCRIPT, supra note 14, at 1081, 1087.
183. Id. at 1082–86.
184. TAYLOR II, supra note 14, at 30.
2017 Justice in the Justice Trial at Nuremberg 483
deemed acceptable to the tribunal and recommended to the
defendants.
185
It was also determined that, although an attorney with
a significant Nazi past would not be recommended to the defendants,
such a lawyer might be acceptable to the tribunal if the defendant
chose someone not on the recommended list.
186
Some of the counsel
did in fact have a history of participation in Nazi activities.
187
The German attorneys, however chosen, were paid by the U.S.
Army and were provided housing in Nuremberg at no cost.
188
They
were also provided cigarettes, low cost meals, office space, and
staff.
189
In the conditions prevailing in immediate post-war
Germany, the cigarettes, housing, and food provisions were likely as
important as the actual monetary payments.
190
In accordance with OMGUS 7, a panel of three judges and an
alternate were chosen. Covington Marshall, chief justice of the Ohio
Supreme Court, was intended to be the presiding judge in the Justice
Trial, but withdrew from the tribunal for health reasons.
191
He was
replaced by Justin W. Harding who had served as a JAG Officer
during the war, but had also been a federal judge in the then-territory
of Alaska from 1929 to 1933.
192
Harding was the only former or
sitting federal judge to serve in any of the NMT trials. James T.
Brand, an associate judge of the Supreme Court of Oregon, became
the new presiding judge.
193
Mallory Blair, an associate justice of the
Court of Civil Appeals of Texas, was the third judge.
194
The prosecutors assigned to the case included former Republican
Congressman Charles LaFollete (lead counsel), Robert King, Alfred
Wooleyhan, Arnold Buchold, Rudolph Auerbach, and Sadie
Arbuthnot, one of a number of women attorneys on the various
185. Id.
186. Id. at 46–47.
187. Id. at 47. Ultimately, over 200 attorneys represented defendants in the twelve NMT
trials. Id.
188. Id. at 49 & n.156.
189. Id. at 46, 49.
190. See id. (explaining the full extent of services and goods rendered by the government
to defense counsel during the trials).
191. HELLER, supra note 14, at 90.
192. Id.
193. Id.
194. Id.
484 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
prosecution teams.
195
However, Telford Taylor himself gave the
initial portion of the opening statement.
196
B. Preliminary Motions
The defendants in the first three NMT trials, that is, the Medical
Trial, the Milch Trial, and the Justice Trial, all moved to dismiss
Count I of the indictment relating to conspiracy to commit crimes
against humanity and war crimes.
197
The motion was argued by Egon
Kuboshok, attorney for Schlegelberger and von Ammon in the Justice
Trial, on behalf of all the defendants in all three trials. Telford
Taylor argued for the prosecution.
198
The three tribunals heard the
motion together and they issued three separate, essentially identical,
opinions.
199
As previously noted, the conspiracy count had been problematic
throughout the entire Nuremberg war crime program. At the London
Conference, the American and British representatives had argued for
the inclusion of a conspiracy count and the French and Russian
delegates had strongly opposed its inclusion in the charges.
200
The
compromise solution was to include a count for conspiracy to commit
crimes against the peace, but not as to war crimes or crimes against
humanity.
201
Neither ACC 10 nor OMGUS 7 had clarified matters.
Indeed, ACC 10 specifically included language related to conspiracy
in Article 2, Section (a), describing crimes against the peace, but not
in Article 2, Section (b) or Article 2, Section (c), relating to war
crimes and crimes against humanity, whereas OMGUS 7 recognized
conspiracy as applying to all counts.
202
The decision in the IMT also was not helpful to the prosecution as
the tribunal gave a narrow interpretation of the conspiracy charge and
ultimately no defendant was found guilty of conspiracy unless he had
also been found guilty of crimes against the peace. The defendants
argued strenuously that conspiracy was uniquely a feature of Anglo-
195. JUSTICE TRANSCRIPT, supra note 14, at 14. Taylor made a point of recruiting women
lawyers to the trial teams. Heller notes that ten of ninety-four prosecutors were
women. See HELLER, supra note 14, at 34.
196. JUSTICE TRANSCRIPT, supra note 14, at 31.
197. HELLER, supra note 14, at 276.
198. See JUSTICE TRANSCRIPT, supra note 14, at 14.
199. See generally HELLER, supra note 14, at 275–80 (discussing the arguments made by
both prosecution and defense at trial). See also 6 UNITED NATIONS WAR CRIMES
COMM’N, LAW REPORTS OF TRIALS OF WAR CRIMINALS 109–10 (1948).
200. See supra Section II.A.2.
201. See London Charter, supra note 113, 59 Stat. at 1547, 82 U.N.T.S. at 288.
202. ACC 10, supra note 139, at 250; OMGUS 7, supra note 161, at 286.
2017 Justice in the Justice Trial at Nuremberg 485
American law and had no counterpart in the civil law system, and
therefore none in international law.
203
Taylor argued, on behalf of the prosecution, that although
conspiracy was part of British and American practice, civil law
systems all contain prohibitions on aiding and abetting or attempting
to commit a crime.
204
Therefore, the issue was not whether persons
could have participated in the commission of a crime without pulling
the trigger, as all legal systems recognize closer and farther circles of
accountability. The prosecution argued that the inclusion of the
charge of conspiracy with respect to crimes against the peace resulted
from the fact that crimes against the peace was a newer offense,
which had not developed an analog in domestic law unlike the other
offenses, so there was greater need to spell out that the offense was a
collective one.
205
Taylor also argued that the London Charter did not intend to limit
the application of conspiracy law to the other crimes when it included
it in the definition of a crime against the peace.
206
ACC 10, which
was adopted before the IMT rendered its decision with its narrow
interpretation of conspiracy law, was intended to give an expansive
rather than restrictive application of the law.
207
The importance of this issue lies in the use of the conspiracy count
in the IMT. Justice Jackson had used the conspiracy count as the
core of the entire prosecution. He viewed the conspiracy as having
commenced in 1933, and he viewed all that followed as part of the
overall conspiracy.
208
Thus, for him and for the American
prosecutors in general, the conspiracy charge allowed the prosecution
to explore all participants, events, and aspects of the Third Reich
from its inception in 1933 to its end in 1945.
209
This broad interpretation of conspiracy in the Justice Trial would
have allowed the prosecution to build strong cases against defendants
whose modest involvement in offenses might otherwise have resulted
in acquittals or light sentences. It also would have recognized
liability for each of the defendants for wrongful acts of other
defendants.
203. UNITED NATIONS WAR CRIMES COMM’N, supra note 199, at 105–06.
204. Id. at 106–07.
205. Id. at 107–109.
206. Id. at 106–108.
207. Id. at 107–09; HELLER, supra note 14, at 278–79.
208. UNITED NATIONS WAR CRIMES COMM’N, supra note 199, at 2.
209. TAYLOR II, supra note 14, at 74.
486 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
The three tribunals ultimately ruled in favor of the defendants and
dismissed the conspiracy counts on the basis that their jurisdiction
had been established by ACC 10, which only referred to conspiracy
with respect to crimes against the peace.
210
One of the major implications of the ruling was that the defendants
could not be found guilty of war crimes or crimes against humanity
for any act committed before September 1, 1939. However, the
prosecution could use acts committed before that date to prove
motive, knowledge, or intent with respect to acts committed after
September 1, 1939.
211
C. Opening Statements
The opening statement for the prosecution was delivered by
Telford Taylor, Charles LaFollette, Alfred Wooleyhan, and Robert
King. Taylor’s eloquent opening statement established important
principles in the trial of this particular group of defendants. Most
notably, Taylor made clear that the judges were not being prosecuted
for being bad judges; indeed, early in his argument, Taylor noted:
The “trials” they conducted became horrible farces, with
vestigial remnants of legal procedure which only served to
mock the hapless victims. This conduct was dishonor to
their profession. . . . But the defendants are not now called
to account for violating constitutional guaranties or
withholding due process of law.
212
On the contrary, the defendants are accused of
participating in and being responsible for the killings,
tortures, and other atrocities that resulted from—and which
the defendants knew were the inevitable consequences of—
the conduct of their offices as judges, prosecutors and
ministry officials.
213
Thus, the prosecution’s theory was that the German legal system
actually ceased to be a legal system, and the judges and prosecutors
210. Id. at 227–28.
211. As a result of this temporal restriction, several important allegations of crimes
against humanity, such as euthanasia, compulsory sterilization, and persecution of
the Catholic Church and the Confessing Church (protestant dissidents) could not be
fully explored as most of the offenses took place prior to September 1, 1939. See
Charles M. LaFollette, Speech Before the Interzonal Conference of Lawyers and
Justice Officials 18–19 (June 3, 1948).
212. JUSTICE TRANSCRIPT, supra note 14, at 31–32.
213. Id. at 32.
2017 Justice in the Justice Trial at Nuremberg 487
committed crimes through the legal system. Taylor described in
detail the degeneration of the German legal system during the Nazi
era.
214
LaFollette then took over the opening and argued at length
that the tribunal was authorized to make its own interpretation of the
London Charter and ACC 10 and was free to interpret them more
broadly than the IMT had.
215
In particular, he emphasized that the
definition of crimes against humanity in ACC 10 was broader than in
the London Charter, as it did not require that crimes against humanity
be in association with other crimes.
216
He then noted that the evidence would fall into three categories.
First, there were offenses that clearly fell within traditional notions of
war crimes, specifically violations of the Hague Convention of 1907
and of the Geneva Convention of 1929.
217
These offenses included
two of the major categories in the trial, the Night and Fog Decree,
the extension of German law to the Incorporated Eastern
Territories,
218
and the deprivation of rights to Poles and Jews in that
extension.
219
Second, was the extensive cooperation by the judiciary
with the Gestapo and SS in persecution of Germans and non-
Germans alike.
220
Third, was the systematic denial of fair trials to
political and ethnic minorities so that trials would be tantamount to
murder.
221
King refined these categories to focus specifically on the Law
Against Poles and Jews, and the Night and Fog program.
222
Wooleyhan laid out the facts in some detail that would be proven as
to each individual defendant, including descriptions of the most
notorious cases tried by the various judges.
223
Finally, LaFollette
resumed the podium to discuss questions of evidence and provide
additional argument concerning the perversion of the legal profession
under Nazi rule.
224
214. See id. at 33–40.
215. Id. at 62–63.
216. Id. at 65–66.
217. Id. at 70.
218. The Incorporated Eastern Territories were the portion of Poland directly adjacent to
the German border. After the invasion of Poland, Germany annexed the territories
into Germany. Id. at 119, 594.
219. Id. at 995, 997, 1003, 1063–64.
220. Id. at 70–71.
221. Id. at 71.
222. Id. at 71–78; see infra Section IV.D.
223. See JUSTICE TRANSCRIPT, supra note 14, at 78–89.
224. Id. at 89–100.
488 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
Kuboshok, Schlegelberger’s attorney, assumed the role of lead
counsel for all the defendants in the opening statement.
225
The other
defense counsel presented additional arguments with respect to their
specific clients.
226
Kuboshok made two points. First, in the German
civil law system, unlike the American or British common law
systems, judges essentially apply law codes adopted by competent
authorities.
227
Before Hitler, law would have been adopted by the
Reichstag.
228
However, after passage of the Enabling Act of 1933,
legal authority to legislate passed to Hitler personally.
229
Thus, after
1933, Hitler was the duly constituted supreme legislative authority
under the Weimar Constitution, which, it should be noted, was never
abrogated.
230
As the German legal tradition dissociated morality and
law, it was not the role of the judiciary to ignore valid law, no matter
what the ethical implications were.
231
Second, many of the specific provisions complained of had pre-
Nazi antecedents or were legitimate exercises of power in wartime
conditions. Thus, in 1936, law by analogy was intended to introduce
the flexibility of the common law system into the civil law.
232
There was precedent in Weimar Germany for use of Special Courts
and People’s Courts. Under the customs and usages of war, many
acts, which might otherwise be viewed as war crimes, might be
excused because of military necessity.
233
As an example, the
offensive components of the Night and Fog Decree flowed out of
military necessity of secrecy in judicial proceedings involving the
Resistance. Kuboshok also noted that the judiciary was in a constant
struggle with the SS, the Gestapo, and the Nazi party for control of
the judicial process and the maintenance of judicial independence.
234
225. Id. at 108.
226. Id. at 130, 142, 150, 154.
227. Id. at 108–09.
228. Id. at 986–87.
229. Id. at 109–10.
230. Id.
231. Id. As Professor Hermann Jahrreiss, who was called as an expert by the defense on
the German legal system and constitutional law, testified:
On the continent of Europe, in the course of four centuries, a
development has taken place by which law and morality in
legislative thought are separated sharply; and so as the question of
morality arises, the lawyer on the continent of Europe says as a
lawyer, “That has nothing to do with me.”
Id. at 257.
232. Id. at 108–09.
233. Id. at 120–21.
234. See id. at 108–26 (statement of Dr. Kubuschok).
2017 Justice in the Justice Trial at Nuremberg 489
In the remaining arguments, that of Erich Wandschneider, counsel
for Rothenberg, is of the most interest. Wandschneider pointed out
that his client was operating within the climate of a totalitarian
state.
235
In a dictatorship, the average citizen tends to fall into a
general attitude of passivity because, unlike in a democracy, any
display of initiative requires a high degree of personal commitment
and courage.
236
It is false, therefore, to look at a course of conduct
retrospectively without taking into account the pressures and climate
of a dictatorship.
237
Acts, which under normal circumstances might
be culpable, might be readily excusable under the special
circumstances of Nazism.
238
Thus, Rothenberger’s notorious
memorandum on the reorganization of the German judiciary on
National Socialist lines
239
was actually an effort to preserve some
remnants of judicial independence. The tribunal, therefore, had to
view the evidence in the case in light of the circumstances with which
the defendants were faced.
240
D. Testimony
Arraignment took place on February 17, 1947.
241
The trial began
on March 5, 1947, and ended on October 18, 1947.
242
There were
140 live witnesses, 2,093 exhibits, and 10,964 pages of trial
transcript.
243
The trial proceeded in the manner set forth in OMGUS 7. The
prosecution presented its case first, the defense responded with its
case, and the prosecution had opportunity for rebuttal.
244
The
235. See id. at 144–46.
236. Id. at 146–47.
237. Id. at 147–48.
238. Id. at 146–47.
239. Rothenberger was an idealistic believer in Nazi ideology. When he became a senior
official in the Justice Ministry, he composed a lengthy memorandum urging the
creation of a “Nazi Conception of Law,” which, among other things, called for the
complete subordination of the judiciary to Hitler. See generally J. WALTER JONES,
The Nazi Conception of Law, in 21 OXFORD PAMPHLETS ON WORLD AFFAIRS (1939)
(explaining the Nazi emphasis on unity and strength of leadership, which compelled
submission of any potentially conflicting political forces in Germany, such as the
judiciary). Rothenberger would argue in his testimony that this was his effort to
preserve judicial independence from the inroads of the Gestapo and SS. See Sfekas,
supra note 32, at 215, for a fuller account of Rothenberger’s role in the ultimate
destruction of judicial independence.
240. JUSTICE TRANSCRIPT, supra note 14, at 146–47.
241. Id. at 5.
242. Id.
243. Id.
244. OMGUS 7, supra note 161, at 289.
490 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
prosecution had to prove its case beyond a reasonable doubt, and had
to do so by the use of sworn testimony and documents, subject to
defense cross-examination and confrontation.
245
The defense had a
full opportunity to present its witnesses and documentation, and, in
fact, the defense presented substantially more testimony and
documents than did the prosecution.
246
All prosecution documents
had to be provided to the defense prior to introduction and translated
into German or English.
247
Evidence could be presented by affidavit on either side, subject to
the opposing side’s requests that the witness be produced for cross-
examination.
248
The bulk of testimony in the trial was, in fact, taken
by affidavit.
249
Documents were introduced with an affidavit from
the document center created by the U.S. Army, certifying the
authenticity and place of origin of the document.
250
As in the IMT, the prosecution chose to rely heavily on
documentary proof of wrongdoing, so that the proof of guilt would be
by the defendants’ own words.
251
By contrast, the defense relied
more heavily on oral testimony, and most of the defendants actually
testified in the trial.
252
The prosecution did very little cross-
examination of defense witnesses.
253
Although there would be substantial evidence introduced with
respect to a number of issues—such as the failure to prosecute
civilians who had lynched Allied flyers that were shot down, the
failure to prosecute members of the Gestapo or SS for abuse of
POWs or political prisoners, and the persecution of a German
Catholic priest for officiating at a Polish laborer’s funeral—the heart
of the case against all of the defendants was their participation in
either or both the Night and Fog program or actions taken in
accordance with the Law Against Poles and Jews and other anti-
Semitic laws.
254
245. Id. at 288.
246. JUSTICE TRANSCRIPT, supra note 14, at 5.
247. OMGUS 7, supra note 161, at 287.
248. TAYLOR II, supra note 14, at 88.
249. Id. at 88–89.
250. See JUSTICE TRANSCRIPT, supra note 14, at 5.
251. See id.
252. See id. at 115, 125–26, 1212–16.
253. See id. at 592–93, 731–33, 760–61, 898–902, 925–29.
254. See id. at 594, 913–14.
2017 Justice in the Justice Trial at Nuremberg 491
After the invasion of Poland on September 1, 1939, Poland was
partitioned between the Germans and Soviets.
255
Part of German-
occupied Poland was organized into the “Government General,”
where military law would apply.
256
The parts of Poland contiguous
to Germany were annexed to Germany and became known as the
“Incorporated Eastern Territories.”
257
The Law Against Poles and
Jews was issued to provide the legal framework for the
administration of the Incorporated Eastern Territories.
258
The law had two major themes. First, in the new regime, Poles
would be reduced to a docile permanent underclass who would
support the spread of German settlement in Eastern Europe and, over
time, be eliminated.
259
Thus, the law as to Poles would be applied
harshly to break the spirit and establish German domination, but
would not seek to eliminate the Polish population in the short run.
260
Second, the goal was to eliminate the massive Jewish population of
Poland.
261
The law itself provided substantively that Poles and Jews would be
subject to the death penalty for any of the following activities:
1. Any act of violence against a German;
2. Manifesting any anti-German sentiment by making anti-
German comments or defacing or removing official
notices or lowering the prestige of the German people.
262
The sentence would be death or imprisonment for any of the
following:
1. Any “act of violence against any member of the German
armed forces,” police, or any agency of the Nazi Party
whether the victim was German or not;
2. Causing damages to any installation of the German
government or the Nazi Party;
3. Soliciting any person to disobey any decree or
regulation;
255. Agnieszka Nosowska, 17 September 1939 – The Soviet Invasion of Poland, EUR.
NETWORK REMEMBRANCE & SOLIDARITY (Sept. 16, 2013, 4:11 PM),
http://enrs.eu/en/news/882-17-september-1939-the-soviet-invasion-of-poland.
256. See JUSTICE TRANSCRIPT, supra note 14, at 119, 615–17.
257. Id. at 119.
258. HELLER, supra note 14, at 225.
259. See JUSTICE TRANSCRIPT, supra note 14, at 614–15, 1065.
260. Id.
261. Id. at 1065.
262. Id. at 616.
492 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
4. Conspiring with or aiding or abetting anyone in the
violation of this decree;
5. Possession of any weapon;
6. Committing any other act contrary to “fundamental
principles of German criminal law” or contrary to the
interest of the German state.
263
The death penalty was made mandatory for any act for which death
was the only penalty.
264
A schedule of prison terms ranging from
three months to ten years was prescribed when imprisonment was an
option.
265
However, “in cases where the law does not provide for the
death sentence, [it shall] be imposed, if the committed action testifies
to an exceptionally vicious character or if for other reasons the crime
is a very serious one.”
266
The minimum penalties could not be
reduced unless the crimes were committed against a fellow Pole or
Jew.
267
The law also changed the procedures available to a Polish or
Jewish defendant:
1. The cases would be brought before the Special Courts in
most cases.
2. All sentences, including the death penalty, would be
carried out without delay.
3. The prosecutor could appeal a decision, but the
defendant had no right to appeal.
4. Poles and Jews had no right to lodge a criminal
complaint.
5. Poles and Jews had no right to ask for recusal for bias of
a German judge.
6. Poles and Jews could not be sworn in as
witnesses. However, even if unsworn, they could be
prosecuted for perjury or false statements.
268
7. Although proceedings would be conducted in
accordance with the German Law of Civil Procedure,
the court was free to depart from the established rules
263. Id. at 616, 633.
264. Id. at 617.
265. Id. at 633.
266. Id. at 617.
267. Id.
268. The provision of this law forbidding the swearing in of Poles or Jews as witnesses,
while retaining penalties for perjury, would seem to be contradictory. However, the
purpose of the provision was to discourage the calling of Poles or Jews in any case
involving a German and to receive such testimony only with the utmost caution. Id.
at 617–18, 668–69.
2017 Justice in the Justice Trial at Nuremberg 493
when appropriate for the rapid and efficient conduct of
proceedings.
269
The Law allowed the governor of the Incorporated Eastern
Territories to impose martial law and to try Poles and Jews before
civilian courts-martial or to defer trial indefinitely and to refer the
case directly to the Gestapo.
270
Finally, Poles and Jews were forbidden to file civil cases.
271
In
January 1942, a subsequent decree was issued over Schlegelberger’s
signature making this law retroactive.
272
On July 1, 1943, a new decree was issued which deprived Jews of
any right to a trial at all and turned any Jew accused of a crime over
to the police for processing.
273
The Jew’s property would be
confiscated upon his death. Thus, the Law Against Poles and Jews
would no longer apply to Jews.
274
This change in the law reflected
the official adoption of the so-called Final Solution, that is, the
systematic murder of the entire Jewish population in the occupied
territories of Europe.
275
By 1941, resistance movements had sprung up in a number of
occupied countries, and the German Army was struggling to find a
solution to the growing problem of maintaining control of the
occupied territories.
276
Hitler instructed the German Army to
implement a program whereby suspected resistors would disappear
into the “Night and Fog.”
277
The Night and Fog Decree was issued on December 7, 1941, at
Hitler’s direction by Field Marshal Wilhelm Keitel, who was the
Chief of the Supreme Council of the Armed Forces.
278
Keitel himself
would be tried by the IMT and found guilty of war crimes, crimes
against humanity, crimes against the peace, and conspiring to commit
crimes against the peace. He would be executed in 1946.
279
The decree provided that in circumstances in which the trial of a
member of the resistance could not be dealt with within one week of
269. Id. at 618.
270. Id. at 619.
271. Id. at 635.
272. Id. at 642.
273. Id. at 685.
274. Id. at 685–86.
275. See id. at 648–50.
276. See id. at 75, 833.
277. See id. at 21, 1031–32.
278. Id. at 774–81.
279. TAYLOR I, supra note 13, at 608–10.
494 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
arrest, the resistor would be transferred to Germany for trial.
280
The
defendant’s family and acquaintances would not be informed of his
or her fate, would not be allowed contact or correspondence with the
person, and would not be informed of his or her location.
281
If the
person died, either of natural causes or execution, the family
members would not be informed.
282
If the defendant wrote a will or a
farewell letter, the document would not be delivered until the war’s
end.
283
As no foreign witnesses would be allowed to testify in court
in order to preserve secrecy, the defendant essentially had no ability
to call witnesses on his own behalf.
284
The defendant would have the
right to counsel in capital cases (the great majority of cases), but the
choice of counsel would be made by the court with permission of the
prosecutor.
285
The proceedings would be conducted in German with
restrictions on the availability of interpreters.
286
The decree was
made applicable in all cases involving:
1. Assault with intent to kill[;]
2. Espionage[;]
3. Sabotage[;]
4. Communist activity[;]
5. Crimes liable to create disorder[;]
6. Favoring of the enemy [by] the following means:
a. Smuggling people into a country[;]
b. The attempt to enlist in an enemy army[;]
c. Support of members of an enemy army
(parachutist; etc.)[;] [or]
7. Illegal possession of arms.
287
Although the decree was applicable to all the occupied territories, it
in fact was primarily directed at the west European occupied
countries (i.e., France, Belgium, the Netherlands, Luxemburg, and
Norway) except for Denmark.
288
The case against Schlegelberger focused on his role in drafting the
Law Against Poles and Jews and on his role in implementing the
280. JUSTICE TRANSCRIPT, supra note 14, at 779.
281. Id. at 75.
282. Id.
283. Id. at 77–78.
284. See id.
285. Id. at 78, 785.
286. See id. at 640.
287. Id. at 778–79.
288. See id. at 785.
2017 Justice in the Justice Trial at Nuremberg 495
Night and Fog Decree and keeping it in the judiciary rather than
leaving it with the Wehrmacht (the German Army), where it more
likely should have been kept.
289
The testimony indicated that the
Wehrmacht was reluctant to participate in the program because of
doubts as to its legality.
290
The prosecution introduced Schlegelberger’s draft of the Law
Against Poles and Jews, which showed him to have played a pivotal
role in producing that policy and overseeing its implementation.
291
The prosecution produced many documents signed by Schlegelberger
indicating his complicity in the overall degradation of German justice
in the Nazi period.
292
Two particularly damaging pieces of evidence
were a memo removing two notaries from office for having bought
postcards from a Jewish street vendor,
293
and his proposal that Jews
who were in mixed marriages not be deported to the East if they
agreed to be sterilized.
294
The defense, for its part, produced
Schlegelberger in his own defense. He noted that during the entire
period of Nazi rule, the Ministry of Justice and the judiciary were in a
constant struggle against the SS, Gestapo, and the Nazi Party for
control of the judicial process.
295
Schlegelberger argued that much of
what he did therefore actually served to protect judicial independence
and protect defendants.
296
He argued that even the Law Against
Poles and Jews offered some limited procedural rights to the victims
and was therefore better than the laws which might have been
proposed by the SS, Gestapo, or the Nazi Party.
297
He also testified that he agreed to take on the Night and Fog
program because the alternative, given the Werhmacht’s reluctance,
would have been to have turned over the defendants to the Gestapo or
SS for immediate disposition without trial.
298
Schlegelberger also
noted that many of the harsh measures adopted in the Law Against
Poles and Jews were intended to stave off harsher measures.
299
He
also pointed out that he was in fact replaced by Thierack, a Nazi
zealot, as Minister of Justice after his resignation in 1942, and that all
289. See id. at 811–15.
290. See id. at 806–07.
291. Id. at 615–20.
292. See id. at 598–606, 611–20.
293. Id. at 363–65.
294. Id. at 648–49.
295. See id. at 292–93.
296. See id. at 808–09.
297. See id. at 809–10.
298. See id. at 808–09.
299. See id. at 811–13.
496 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
semblance of judicial independence and adherence to legal norms
disappeared after his departure.
300
The prosecution introduced testimony that, in addition to
Schlegelberger, Klemm, Rothenberger, Lautz, Mettgenberg, von
Ammon and Joël were all involved in the Night and Fog program.
301
Additionally, there was substantial evidence against Rothaug, Lautz,
and Joël for actions under the Law Against Poles and Jews.
302
Of the greatest interest was the testimony against Rothaug and
Oeschey, two People’s Court judges, which consisted of case reports
and testimony of multiple trials in which Poles and Jews had been
deprived of all semblance of a fair trial, and had ultimately been
found guilty and executed.
303
Many of the best-known incidents of
the trials occurred in their courtrooms,
304
most notably with evidence
of the Katzenberger-Seiler case.
305
1. The Katzenberger-Seiler Case
Leo Katzenberger was a 68-year-old Jewish man, a leader in the
Jewish community, who had befriended Irene Seiler, the daughter of
a tenant of his.
306
They had maintained a friendly relationship for
years and on one occasion she was seen to have sat on his lap.
307
Katzenberger was charged with violating the Nuremberg race laws,
which prohibited sexual relations between Jews and non-Jewish
Germans.
308
The evidence showed that Rothaug prejudged the case
and privately disclosed before the trial that Katzenberger would be
found guilty and would receive the death penalty, even though there
was no evidence that he had in fact had sexual relations with
Seiler.
309
Because Seiler denied any sexual contact with Katzenberger,
Rothaug decided that she would be tried for perjury in the same trial
300. Id. at 300.
301. See id. at 1086, 1107, 1118, 1128, 1134, 1138.
302. Id. at 1128, 1142, 1156.
303. Id. at 1145–55, 1159–61.
304. Id. at 1159.
305. See id. at 1150–56. This case was recounted in the film Judgment at Nuremberg as
the “Feldenstein case.” See DAVID FRASER, CENTRE FOR THE STUDY OF POST-
CONFLICT CULTURES, JUDGING JUDGMENT AT NUREMBERG: LAW, JUSTICE, AND
MEMORY IN HOLLYWOOD 13 (2007),
http://www.academia.edu/5991394/Judging_Judgment_at_Nuremberg_Law_Justice
_and_Memory_in_Hollywood_CIDESC_Centre_for_the_Study_of_Post-
Conflict_Cultures.
306. See JUSTICE TRANSCRIPT, supra note 14, at 1150–51.
307. Id. at 1151–52.
308. Id. at 1153–54.
309. Id. at 1152.
2017 Justice in the Justice Trial at Nuremberg 497
as Katzenberger.
310
Thus, her denial was discredited. The minimum
penalty for violation of the Nuremberg laws was imprisonment for up
to one year or a fine or both.
311
Rothaug noted, however, that the
alleged offenses occurred at night.
312
Using law by analogy, he
concluded that the sexual relationship was analogous to a violation of
the wartime blackout restrictions, for which the death penalty was
available.
313
Rothaug sentenced Katzenberger to death and Seiler to
two years’ imprisonment.
314
2. The Kaminska-Wdowen Case
315
Oeschey presided over the Kaminska-Wdowen Case.
316
Sophie
Kaminska was a 36-year-old Polish woman who was the mother of
three children.
317
Her husband was killed in the German attack on
Poland in September 1939.
318
Thereafter she came to Germany to
work on a German farm.
319
Wasyl Wdowen was a 20-year-old
Ukrainian farm worker who resided in Poland at the time of the
German invasion.
320
Kaminska and Wdowen developed a romantic
attachment and had a child together while working on the farm.
321
At
some point a dispute broke out between Kaminska and the German
farmer over compensation.
322
Wdowen joined the dispute in support
of Kaminska and reportedly shoved the farmer.
323
A German soldier
on leave heard the commotion and joined the dispute.
324
He later
gave a statement that Kaminska slapped him and he slapped her
back.
325
She was also alleged to have picked up a hoe and threatened
him.
326
The soldier then pulled out a bayonet and ordered Kaminska
310. Id. at 1151–52.
311. See id. at 180–81.
312. Id. at 1153–54.
313. See id.
314. Id. at 654. The verdict of both defendants is at the beginning of Rothaug’s full
opinion. See id. at 653–64.
315. Id. at 1159–61.
316. Id. at 706.
317. Id. at 706–07.
318. Id. at 707, 998.
319. Id. at 707.
320. Id. at 706–07.
321. Id. at 707.
322. Id.
323. Id.
324. Id.
325. Id.
326. Id.
498 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
and Wdowen to leave.
327
As the soldier left on his bicycle to call the
police, Kaminska threw a stone at him.
328
Kaminska’s account differed in that she testified that the soldier
slapped her first.
329
The soldier’s account came in a statement he
gave at the police station.
330
As he was missing in action in North
Africa, he did not testify.
331
Kaminska gave unsworn testimony, in
accordance with the law.
332
The court credited the soldier’s
testimony and discredited hers.
333
When the police came to arrest
her, she resisted arrest.
334
Wdowen tried to help her, but was ordered
to stay away.
335
He followed her to the jail and took her hands as she
was being put into jail.
336
Kaminska was convicted of using a knife or a thrusting weapon
against a German soldier (based on her throwing a stone at him as he
rode off).
337
Using the doctrine of decision by analogy, Oeschey
concluded that the purpose of throwing the stone was to injure the
soldier.
338
If he had been hit by the stone he might have died.
339
As a
soldier he was essential to the German war effort.
340
Therefore the
stone must be considered to be the equivalent of a knife, and she was
therefore guilty of a serious violent crime.
341
By invoking the Law
Against Poles and Jews, Oeschey imposed a death sentence on
Kaminska.
342
Oeschey found Wdowen guilty of insulting German honor by
pushing the German farmer.
343
In addition, by holding Kaminska’s
hands while a police official tried to put her in jail, he offered
forceful resistance to an official in performance of his official duty.
344
As these crimes were only possible because the war called most able-
bodied men to the army, he was also found to be taking advantage of
327. Id.
328. Id.
329. Id. at 708.
330. See id. at 708–09.
331. See id. at 708.
332. Id. at 1002–03.
333. Id. at 708–09.
334. Id. at 708.
335. Id.
336. Id. at 711.
337. Id. at 709.
338. Id. at 709–10.
339. Id. at 710.
340. Id.
341. Id.
342. Id. at 706, 712.
343. Id. at 711.
344. Id.
2017 Justice in the Justice Trial at Nuremberg 499
wartime conditions to commit his crimes.
345
As a result, Oeschey
also sentenced him to death.
346
3. The Stefanowicz-Lenczewski Case
In another case, typical of many cited in the opinion, two Polish
laborers, Paul Stefanowicz, age twenty, and Franz Lenczewski, age
eighteen, left their workplaces to which they were committed and
attempted to cross the border into Switzerland.
347
They were caught
by border control.
348
The court noted that although it could not be
proven that they intended to join the Polish army (indeed the court
noted that both men appeared to be “effeminate”): “Nevertheless, as
Poles, both of them have harmed the interests of the German Reich
by their conduct. For they were assigned to work in the Reich, and in
total warfare any loss in this regard harms the interests of the
Reich.”
349
Under the Law Against Poles and Jews, Stefanowicz was
sentenced to death and Lenczewski to eight years’ imprisonment.
350
It should be noted that although neither had ever been a German
citizen, they were both charged with treason, thereby vesting the
People’s Court with jurisdiction.
351
The prosecutor in this case was
defendant Lautz.
352
4. The Durka and Struss Cases
An additional case concerned seventeen and eighteen-year-old
Polish girls who worked in a munitions factory.
353
Both were
accused of setting a fire at the factory, and both were alleged to have
confessed.
354
Their trial was held the same day as the arrest and the
fire.
355
Their attorney was given two hours’ notice of the trial, and
his request for postponement was denied.
356
One of the girls, who
reportedly confessed, recanted her confession at the trial.
357
Both
were found guilty and were sentenced to death by the presiding
345. Id. at 711–12.
346. Id. at 712.
347. Id. at 702–03.
348. Id. at 703.
349. Id. at 704.
350. Id.
351. Id. at 1123.
352. Id. at 702–03.
353. Id. at 1146.
354. Id.
355. Id.
356. Id.
357. Id.
500 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
judge, defendant Rothaug.
358
They were executed four days after the
trial.
359
In each of these cases, the trappings of a trial were present,
but the reality of a fair trial was not.
E. Opinion
Woe to those who make unjust laws, to those who issue
oppressive decrees, to deprive the poor of their rights and
withhold justice from the oppressed of my people.
360
On December 3–4, 1947, the tribunal issued a thorough and
comprehensive opinion, running to 223 pages.
361
The opinion began
with a review of its jurisdiction and authority to proceed under the
London Charter, ACC 10 and OMGUS 7.
362
The tribunal then went
on to a detailed analysis of the crimes charged in the indictment,
particularly focusing on Count III, crimes against humanity.
363
As has been noted, the charge of crimes against humanity was first
specifically identified in the London Charter and was modified by the
requirement that such an offense be in association with some of the
other crimes identified in the London Charter, to wit, crimes against
the peace and war crimes.
364
Despite the opinion of the IMT, which
found a number of defendants guilty of crimes against humanity, the
difference in text between the definition of crimes against humanity
in the London Charter and ACC 10 left many questions about the
application of the charges. The tribunal set about to answer these
questions.
First, the tribunal clearly distinguished between a war crime and a
crime against humanity and, in doing so, established a definition used
in subsequent cases of international law. The tribunal noted that a
war crime was an offense committed during war time against the
population of a belligerent enemy power.
365
The specific type of
offense constituting a war crime was set forth in treaties, such as the
Hague and Geneva Conventions, as well as by the traditional customs
and usages of war.
366
A war crime could be committed against a
single person.
367
358. Id. at 1147.
359. Id.
360. Isaiah 10:1–2 (emphasis added).
361. JUSTICE TRANSCRIPT, supra note 14, 954–1177.
362. Id. at 956–59.
363. Id. at 959–1010.
364. Id. at XIII–XIV, XVIII–XIX.
365. Id. at 972.
366. Id. at 960.
367. See id. at 972.
2017 Justice in the Justice Trial at Nuremberg 501
The defendants had argued that an offense committed against
civilians in the Incorporated Eastern Territories could not be a war
crime because they were now part of Germany.
368
The tribunal
concluded that because there were Polish armies still in the field
fighting,
369
and a Polish government in exile had existed throughout
the war, the administrative decision to incorporate Polish land into
the German Reich did not change any part of pre-war Poland into
German territory.
370
Crimes against humanity, particularly as defined in ACC 10, served
as a complement to war crimes. Under ACC 10, Section 2(b) a crime
against humanity was an offense against any civilian population, not
only that of a belligerent power.
371
Thus, German officials could be
guilty of a crime against humanity even if the offense were against
German civilians or on German soil.
The tribunal recognized that not all offenses against German
civilians would constitute crimes against humanity or a crime under
international law.
372
For example, the court concluded that the
imposition of what appeared to be excessively harsh penalties on
certain categories of offenders such as habitual criminals or violators
of laws concerning hoarding or black markets were not crimes
against humanity, as long as the prosecution or penalty was not based
on racial, religious, or prohibited discrimination.
373
Similarly, the
references in ACC 10 to offenses “against any civilian population”
had to be interpreted to mean that an offense against an individual, no
matter how serious, would not be a crime against humanity.
374
The
tribunal therefore came to the following interpretation:
368. Id. at 961.
369. Subsequent to the conquest of Poland, substantial numbers of Polish soldiers were
released by the Soviet Union to fight for the Western Allies. Polish army units had a
distinguished combat record during the war, including the capture of Monte Cassino
in the Italian campaign, and played a major role in the breakout from the Normandy
bridgehead. A Polish parachute brigade fought at Arnhem. There were two armed
revolts in Warsaw during the war, including the revolt of the Warsaw ghetto and the
revolt of the Polish Home Army. Polish flyers had also served in the RAF during
the Battle of Britain. See RICK ATKINSON, THE DAY OF BATTLE: THE WAR IN SICILY
AND ITALY, 1943-1944, at 511, 531–33 (2007); JOHN KEEGAN, SIX ARMIES IN
NORMANDY: FROM D-DAY TO THE LIBERATION OF PARIS, JUNE 6TH–AUGUST 25TH,
1944, at 262–82 (1982).
370. JUSTICE TRANSCRIPT, supra note 14, at 1027–28, 1076.
371. ACC 10, supra note 139, at 250.
372. JUSTICE TRANSCRIPT, supra note 14, at 1026.
373. Id. at 1025–27.
374. Id. at 973.
502 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
We hold that crimes against humanity as defined in C.C.
Law 10 must be strictly construed to exclude isolated cases
of atrocity or persecution whether committed by private
individuals or by governmental authority. As we construe
it, that section provides for punishment of crimes committed
against German nationals only where there is proof of
conscious participation in systematic government organized
or approved procedures amounting to atrocities and offenses
of the kind specified in the act and committed against
populations or amounting to persecutions on political, racial
or religious grounds.
375
Although the opinion, in deciding the fate of individual
defendants—particularly the judges on trial—relied heavily on clear
incidents of miscarriages of justice, the opinion made clear that the
specific cases were being cited to demonstrate a pattern of
wrongdoing against populations, rather than constituting offenses in
their own right.
376
The defendants in all of the NMT cases argued that the charge of
crimes against humanity was an ex-post facto law since the crime
was first officially identified in the London Charter.
377
All the
tribunals concluded that, as their jurisdiction was established by the
London Charter and ACC 10, they accepted the inclusion of crimes
against humanity as binding.
378
This tribunal, however, was the only one to consider whether the
offenses also violated fundamental justice as an ex-post facto law.
379
The tribunal first noted that, unlike legislation in the United States
or other constitutional countries, there was no constitutional limit or
superior law by which to challenge the London Charter or ACC 10.
380
Thus, there was no basis for a legal challenge to the offense.
However, the tribunal concluded that the ex-post facto rule was
based on notions of justice and that there was no injustice in the
application of ACC 10.
381
First, the ex-post facto principle is
primarily applied to statutory provisions, but is generally not applied
in decisions under the common law, that is, decisions which typically
deal with novel situations.
382
International law is comparable to the
375. Id. at 982.
376. Id. at 984–85.
377. Id. at 974; HELLER, supra note 14, at 123–29.
378. HELLER, supra note 14, at 123.
379. See id. at 125.
380. JUSTICE TRANSCRIPT, supra note 14, at 974–75.
381. See id. at 977.
382. Id. at 974–75.
2017 Justice in the Justice Trial at Nuremberg 503
common law in that it grows by accretion.
383
Thus, a rigid
application of the ex-post facto principle would
“strangle . . . [common international] law at birth.”
384
More to the point, the tribunal noted that:
As a principle of justice and fair play, the rule in question
will be given full effect. As applied in the field of
international law that principle requires proof before
conviction that the accused knew or should have known
that in matters of international concern he was guilty of
participation in a nationally organized system of injustice
and persecution shocking to the moral sense of mankind,
and that he knew or should have known that he would be
subject to punishment if caught.
385
The opinion then noted that, as part of the Versailles Peace
Conference, the Commission on Responsibility of Authors of the War
had specifically stated that persons who had violated “the laws and
customs of war or the laws of humanity, are liable to criminal
prosecution.”
386
The opinion also recounted a number of prior incidents in which
countries had intervened with Ottoman Turkey to protect its Christian
minorities, with Russia and Romania on behalf of their Jewish
minorities, and with Spain on behalf of the Cuban population.
387
Finally, and ironically, Hitler himself had justified his intervention in
Czechoslovakian internal affairs on behalf of the allegedly persecuted
Sudeten Germans, which was the incident triggering the notorious
Munich agreement dismembering Czechoslovakia.
388
Thus, the defendants had to have known that if they had engaged in
massive acts of injustice, even against their own people in wartime,
they might very well be found criminally liable. There was no
unfairness or injustice in trying the defendants for crimes against
humanity.
389
The tribunal disposed of several other defenses of the defendants.
First, the tribunal concluded that the defendants were charged with
using German law as an instrument for the commission of war crimes
383. Id. at 975.
384. Id.
385. Id. at 977–78.
386. Id. at 978.
387. Id. at 981–82.
388. Id. at 982.
389. Id. at 983.
504 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
and crimes against humanity, and as ACC 10 specifically rejected
compliance with domestic law as a defense, the defendants could not
use compliance with German law in defense.
390
Additionally, the tribunal noted that the doctrine of judicial
immunity, applicable in American courts, would not be available to
the German judges as the immunity was only available to judicial
officials who were acting independently.
391
Judicial independence
had ceased to exist in Germany.
392
Although there was a great deal of testimony on a number of
issues, the opinion focused on two general categories of offense: (1)
acts associated with the Night and Fog Decree and (2) acts of racial
persecution, particularly with the Law Against Poles and Jews.
393
The tribunal’s task with respect to the Night and Fog Decree was
simplified by the decision in the IMT, which found field marshals
Keitel and Jodl guilty of war crimes and crimes against humanity for
their role in the Night and Fog program.
394
There was, therefore,
binding precedent for finding that the Night and Fog program could
not be justified on the basis of military necessity. Indeed, the tribunal
noted that, in a number of cases, the victims in the Night and Fog
cases were acquitted or given light sentences as posing little threat,
yet they were sent to concentration camps anyway, rather than being
sent home where they could reveal the nature of the program.
395
The tribunal noted that the program violated the laws of war, in
particular, Article 5 of the Hague Convention pertaining to the
treatment of prisoners of war; Article 23 pertaining to maintaining the
civilian courts of the occupied countries; Article 43 pertaining to
maintaining order and enforcing the law; and most importantly,
Article 46 pertaining to protection of family honor and rights and
protecting the lives and property rights, religious practices, and
convictions of persons in occupied territories.
396
An important part of the decision was the tribunal’s conclusion that
the secrecy of the Night and Fog program was intended to terrorize
and intimidate families of the victims as well as members of the
occupied population—whether they were engaged in resistance
activities or not—thereby violating international law.
397
Thus,
390. Id. at 984.
391. Id. at 1024–25.
392. Id.
393. See id. at 1031–81.
394. Id. at 1060.
395. Id. at 1058.
396. Id. at 1061.
397. Id. at 1058.
2017 Justice in the Justice Trial at Nuremberg 505
intentional infliction of emotional harm to third parties could
constitute a crime.
398
The tribunal also addressed the nature of the Night and Fog court
proceedings as well. Had the trials provided under the Night and Fog
program been conducted fairly, the programs likely still would have
been viewed as a war crime or a crime against humanity, but the
crimes would have been highly mitigated. However, as the tribunal
noted:
The trials of the accused NN persons did not approach
even a semblance of fair trial or justice. The accused NN
persons were arrested and secretly transported to Germany
and other countries for trial. They were held
incommunicado. In many instances they were denied the
right to introduce evidence, to be confronted by witnesses
against them, or to present witnesses in their own behalf.
They were tried secretly and denied the right of counsel of
their own choice, and occasionally denied the aid of any
counsel. No indictment was served in many instances and
the accused learned only a few moments before the trial of
the nature of the alleged crime for which he was to be tried.
The entire proceedings from beginning to end were secret
and no public record was allowed to be made of them.
399
It is clear that the systematic denial of these rudiments of a fair
trial, whether under common law, civil law, or courts martial to
persons in occupied countries could itself constitute a war crime and
a crime against humanity.
400
Each of the defendants indicted for
participation in the Night and Fog program, whether as drafters of the
decree, as judges or as prosecutors, was found guilty of war crimes
and crimes against humanity.
401
The second broad category of offense discussed in the opinion was
racial persecution, particularly of Poles and Jews. A majority of the
specific cases cited were of Poles, rather than Jews, because Jews
were effectively barred from the court system in early 1943, as the
Final Solution was implemented.
402
398. Id.
399. Id. at 1046–47.
400. Id. at 1046.
401. See id. at 1031–33, 1087, 1107, 1118, 1128, 1132, 1134, 1142, 1156, 1170.
402. See id. at 81.
506 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
This portion of the opinion focused on the impact of the Law
Against Poles and Jews and on the trials of Polish citizens for high
treason against Germany. Schlegelberger and others drafted the Law
Against Poles and Jews to extend German law, including its racial
laws, to the newly annexed Polish land.
403
As was previously noted,
this law dramatically reduced the rights of Poles and Jews in the legal
system and, coupled with provisions of German law, such as law by
analogy, made it impossible for a Pole or Jew even to know what
conduct of his or hers might constitute a crime under the new German
laws.
404
Schlegelberger, as primary draftsman, and Oeschey and Rothaug,
as judges applying the law, were the principal targets of this portion
of the case. Although the tribunal reviewed individual acts of cruelty
and injustice committed by the various defendants in great detail, the
defendants were not found guilty because of the conduct of any
particular trial.
405
Rather, the tribunal found that the overall policy of
the government was the extermination of Jews and Poles from
Germany and throughout Europe. The defendants took part in this
policy of extermination by various actions, including the enactment
of laws for the persecution and extermination of Poles and Jews, for
attempting to enforce those laws, and for presiding over the
adjudication of alleged violations of such laws, by means of sham
trials.
406
The policy of extermination constituted a war crime despite the
purported annexation of portions of Poland because, as previously
noted, a Polish government in exile was still operating and a Polish
army was still in the field resisting Germany.
407
The tribunal
concluded that the annexation should not be recognized, and that it
would be improper to allow a country to evade responsibility for war
crimes by the simple expedient of annexing occupied territories.
408
Therefore, the Law Against Poles and Jews and actions taken under it
could constitute war crimes. Additionally, because German policy
consisted of atrocities and persecutions by the German government
against racial and religious minorities, the law would in any event
constitute a crime against humanity.
409
403. Id. at 1066.
404. See id. at 1083.
405. Id. at 1177.
406. Id. at 1063.
407. Id. at 1027–28, 1076.
408. See id. at 1076.
409. Id. at 1081.
2017 Justice in the Justice Trial at Nuremberg 507
The opinion’s discussion of the charges against the defendants
Oeschey and Rothaug are of particular interest. The tribunal
concluded that the trials conducted by Oeschey and Rothaug were
conducted in a manner so failing to meet even minimal levels of due
process or fairness so as not to be trials at all.
410
The tribunal
recognized the recently coined term, “genocide,” which is the
deliberate murder of members of a defined group in order to
eliminate the group’s existence.
411
As the only purpose of these trials
was the judicial murder of Jews and Poles in accordance with the
overall government policy, Rothaug was one of the first persons in
history found guilty of genocide, a subset of crimes against
humanity.
412
The tribunal also considered a bizarre feature of German law
during the war. Polish laborers from the annexed areas were brought
into Germany, whether voluntarily or involuntarily to work on
German farms.
413
On a number of occasions, workers fled their
farms to escape to Switzerland.
414
These escaped farm hands were
captured, tried for high treason against Germany, and sentenced to
death even though they had no allegiance to Germany.
415
Between
150–200 Polish workers were prosecuted under this theory.
416
The
tribunal found this program to be a crime against humanity and a war
crime because the finding of guilt for treason required that the death
penalty be imposed.
417
As with the Night and Fog portion of the opinion, the opinion
describes the manner in which Oeschey and Rothaug failed to meet
minimum standards of justice in their courts. Specifically, they
refused to permit the Poles and Jews who were tried before them to
present witnesses on their own behalf.
418
They denied defense
counsel time to prepare a defense or even to be present.
419
They were
410. See id. at 1155–56, 1161, 1167.
411. Id. at 983. The term genocide was coined by Raphael Lemkin, a Jewish refugee
lawyer, who lobbied successfully for this U.N. resolution and for the subsequent
genocide convention. See SAMANTHA POWER, A PROBLEM FROM HELL: AMERICA IN
THE AGE OF GENOCIDE 42, 53–54 (2002).
412. See JUSTICE TRANSCRIPT, supra note 14, at 1156. Lautz, the prosecutor who brought
the high treason cases against the Polish farmworkers, also was found to have
participated in genocide. Id. at 1128.
413. See id. at 858.
414. Id. at 1120–24.
415. Id. at 1123.
416. Id. at 1120–21.
417. Id. at 1028.
418. Id. at 1046.
419. See, e.g., id. at 1047, 1146.
508 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
neither fair nor impartial.
420
Indeed, in a number of cases, these
judges met with prosecutors to advise them on how to present their
cases or to come to agreement on the punishment before the trial was
even held.
421
Both indicated from the bench that they would not
believe the testimony of a Jewish or Polish witness.
422
One
conclusion of this opinion is that the systematic denial of a fair trial
could constitute a war crime or a crime against humanity.
F. Verdict and Sentences
Schlegelberger was found guilty of crimes against humanity and
war crimes arising out of his involvement with the Night and Fog
Decree and the Law Against Poles and Jews.
423
The tribunal took
seriously Schlegelberger’s argument that the judiciary was under
constant challenge from the SS, the Nazi Party, and the Gestapo, and
that his actions were intended to ward off even harsher actions, and
that anyone who would have followed him would have been
worse.
424
The tribunal acknowledged that his actual successor,
Thierack, was in fact worse,
425
and that Schlegelberger may have
mitigated some measures.
426
Even so, the tribunal noted that in
attempting to hold off the SS and Gestapo, Schlegelberger and the
other defendants had created a system of which more extreme
successors would take advantage.
427
The Court concluded that:
Schlegelberger is a tragic character. He loved the life of an
intellect, the work of the scholar. We believe that he
loathed the evil that he did, but he sold that intellect and that
scholarship to Hitler for a mess of political pottage and for
the vain hope of personal security.
428
Schlegelberger was sentenced to life imprisonment.
429
420. See id. at 1046–47 (“The trials of the accused . . . persons did not approach even a
semblance of fair trial or justice.”).
421. See id.
422. See id. at 1166.
423. Id. at 1084–85.
424. Id. at 1086.
425. Id.
426. Id. at 1083–84. The tribunal noted one such “mitigation.” When German authorities
issued an order that all remaining German Jews be evacuated to the East and certain
death, Schlegelberger suggested that half-Jews be given the alternative of
sterilization, rather than evacuation. The tribunal noted that this alternative itself
was hardly humane. Id.
427. Id. at 1086.
428. Id. at 1087.
429. Id. at 1200.
2017 Justice in the Justice Trial at Nuremberg 509
In addition to Schlegelberger, von Ammon, Klemm, Lautz,
Mettgenberg, and Rothenberger were convicted of crimes against
humanity and war crimes.
430
Joël and Oeschey were convicted of
crimes against humanity, war crimes, and membership in a criminal
organization.
431
Rothaug was convicted of crimes against humanity,
but was acquitted of war crimes.
432
Altstötter was convicted of
membership in a criminal organization, but was acquitted of war
crimes and crimes against humanity.
433
Barnickel, Cuhorst,
Nebelung, and Petersen were acquitted.
434
Westphal died before trial,
and Engert was granted a mistrial due to illness.
435
In addition to
Schlegelberger, Klemm, Oeschey, and Rothaug received life
sentences, the rest received sentences from five to ten years in
length.
436
One group of verdicts is of particular interest. Seven of the
defendants were tried for offenses committed in their capacity as
judges.
437
A mistrial was declared in Engert’s case, and the tribunal
acquitted Nebelung and Petersen with no explanation or review of
evidence.
438
The opinion described at great length its conclusion with respect to
Oeschey, Rothaug and Cuhorst. In each case the tribunal described
the actions of the defendants in harsh terms. As an example, Cuhorst
is described as: “a fanatical Nazi and a ruthless judge. There is also
much evidence as to the arbitrary, unfair, and unjudicial manner in
which he conducted his trials.”
439
However, the tribunal also noted
that some of the records of his cases had been destroyed in an air
raid, with the result that:
[T]his Tribunal does not consider that it can say beyond a
reasonable doubt that the defendant was guilty of inflicting
the punishments which he imposed on racial grounds or that
it can say beyond a reasonable doubt that he used the
430. HELLER, supra note 14, at app. A.
431. Id.
432. Id.
433. Id.
434. Id.
435. Id.
436. Id. (providing a list of the defendants, the results of their cases, and their sentences).
437. Id.
438. JUSTICE TRANSCRIPT, supra note 14, at 1156–57.
439. Id. at 1158.
510 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
discriminatory provisions of the decree against Poles and
Jews to the prejudice of the Poles whom he tried.
440
Thus, although Cuhorst may have been an agent of injustice, it had
not been proved that he committed a crime against humanity, one
element of which was atrocity or persecution based on racial,
religious, or political grounds.
441
There was no such problem of
proof with respect to Oeschey and Rothaug. Their convictions were
based on many examples of sham trials and harsh sentences given to
defendants specifically because they were Jews or Poles.
442
G. Aftermath
The story does not end with the imposition of sentence. Both
during and after the twelve Nuremberg Military Tribunals, pressure
to stop the trials or mitigate the sentences developed in Germany and
in the United States. The opposition in the United States was led by a
group of conservative Republican Senators, notably Senators Joseph
McCarthy and Robert Taft.
443
In Germany, a number of groups sought the release of the NMT
defendants, including church groups and the Adenauer government of
the newly formed Federal Republic of Germany.
444
While the United
States was negotiating for German accession to the NATO alliance,
and for German support in the Cold War, the High Commissioner for
Germany, John McCloy, set in motion processes which resulted in
the release of all the NMT defendants, including all of the Justice
Trial defendants.
445
Schlegelberger received a medical release in
1951.
446
The last Justice Trial defendants to be released were
Oeschey in 1955 and Rothaug in 1956.
447
440. Id.
441. JUSTICE TRANSCRIPT, supra note 14, at 1157–59.
442. Id. at 1166; see supra notes 303–04 and accompanying text.
443. Chapter Summaries on Robert A. Taft and Daniel Webster, JOHN F. KENNEDY:
PRESIDENTIAL LIBR. & MUSEUM, https://www.jfklibrary.org/Education/Profile-in-
Courage-Essay-Contest/Curriculum-Ideas/Curriculum-Appendix-3.aspx/ (last visited
Apr. 1, 2017); see TAYLOR I, supra note 13, at 490.
444. See Donald Bloxham, The Nuremberg Trials and the Occupation of Germany, 27
CARDOZO L. REV. 1599, 1606 (2006).
445. See HELLER, supra note 14, at 350–51.
446. Id. at 352.
447. See generally id. at 331–67 (giving an excellent account of the process in which the
Justice Trial defendants were released).
2017 Justice in the Justice Trial at Nuremberg 511
V. CONCLUSION
I myself was a criminal judge. One single
murder . . . occupied our time for 2 to 3 weeks, and it
was a terrible thing. Two murders by one person—that
was horrifying. If someone had eight to ten murders on
his conscience, then he was described as a mass
murderer in the press of Europe, and people asked
themselves whether this was something that could be
handled by means of the penal code at all.
When, last year, in the courtroom of the big trial I
listened to the witness, Hoess, of Auschwitz, when he
answered the question of the prosecutor as to how many
people he had killed . . . he answered he didn’t remember
exactly whether two and a half or three million. At that
time it was quite obvious to me that . . . this had anything
to do anymore with legal considerations because, Mr.
Prosecutor, no matter what a state regulates concerning
the question of review of a law the state has to think of
normal conditions. These occurrences and matters
cannot be measured by any order of the world at all.
448
[T]he arc of the moral universe is long, but it bends toward
justice.
449
In the introduction to this article, three questions were posed. Was
the trial procedurally fair? Was it substantively fair? Was justice
done?
A. Was the Trial Procedurally Fair?
The opinion in the trial provides the appropriate measure of its
fairness. In discussing the Night and Fog program in particular, the
tribunal set forth a number of criteria defining a fair trial under
international law.
A fair trial would have to be public, with a record of proceedings.
The defendants could not be held incommunicado. They would be
entitled to counsel of their own choice. They would receive adequate
notice of the charges against them with sufficient time to prepare for
448. JUSTICE TRANSCRIPT, supra note 14, at 281–82 (statement of Professor Hermann
Jahrreiss) (emphasis added).
449. Martin Luther King, Jr., Speech at the Annual S. Leadership Conference: Where Do
We Go from Here? (Aug. 16, 1967) (emphasis added).
512 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
their case. They must have an opportunity to confront witnesses
against them and to present witnesses and documents on their own
behalf. There must be interpreters available for those who cannot
understand the language or the proceedings. The finder of fact and
law had to be fair and impartial.
450
The Nuremberg Trials, in general, and the Justice Trial, in
particular, met this international standard well. The defendants not
only had counsel of their own choosing, but unlike American
practice, pre-Gideon, the United States government paid for their
counsel.
451
They received copies of the indictments long before the
trial and were given copies of all documents the prosecution intended
to introduce before their introduction.
452
The defendants were
allowed to present witnesses on their own behalf and to present
exhibits.
453
Indeed, the defense submitted more witnesses and
exhibits than did the prosecution.
454
Guilt had to be established
beyond a reasonable doubt.
455
Given the hybrid nature and logistical problems of the proceedings,
much of the evidence was presented by affidavit, rather than by live
witnesses.
456
However, the defense had the ability to require the
prosecution to call any person whose affidavit the prosecution had
produced for purposes of cross-examination.
457
The defense also
benefitted from the availability of simultaneous interpreters.
458
As
noted above, Justice Jackson offered as a rule of thumb for
determining the fairness of a proceeding that the result could be the
acquittal of defendants.
459
In the Justice Trial, the tribunal granted
the defense motion striking the conspiracy count.
460
It also acquitted
four of the defendants.
461
Most significantly, it acquitted Cuhorst.
462
Although it found that he was a terrible judge, it could not find him
450. See JUSTICE TRANSCRIPT, supra note 14, at 106–07; UNITED NATIONS WAR CRIMES
COMM’N, supra note 199, at 103–04.
451. Joseph A. Ross, Göring’s Trial, Stahmer’s Duty: A Lawyer’s Defense Strategy at the
Nuremberg War Crimes Trial, 1945-46, 5 MADISON HIST. REV. 1, 3 (2004).
452. See supra note 166 and accompanying text. Sixteen years later, the U.S. Supreme
Court held that defendants in a criminal case have an absolute right to all
exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963).
453. JUSTICE TRANSCRIPT, supra note 14, at 5.
454. Id.
455. TAYLOR II, supra note 14, at 90.
456. Id. at 89.
457. See supra notes 166–71 and accompanying text.
458. TAYLOR II, supra note 14, at 143–44.
459. Jackson, supra note 64.
460. JUSTICE TRANSCRIPT, supra note 14, at 3–4.
461. Id. at 4.
462. Id. at 1157–59.
2017 Justice in the Justice Trial at Nuremberg 513
guilty beyond a reasonable doubt of the charge of war crimes because
it had not been proved that he had discriminated against Poles and
Jews on the basis of race.
463
If this trial is said to have established a universal standard of
procedural fairness, it is of note that many of the protections afforded
the defendants, such as provision of counsel at public expense, or full
discovery, would not be constitutionally mandated under American
law for years to come. Additionally, although the American legal
system was well-regarded at this time, the standard of justice for
African Americans, particularly in the South, did not meet the
standard set forth by the Justice Trial tribunal.
464
On the other hand, other elements of American and British practice
were not recognized as universally binding. For example, the trials
made no use of a lay jury.
465
Hearsay in the form of affidavits was
easily admitted, and concomitantly the confrontation of witnesses
was not required.
466
However, the defendants were allowed to
challenge affidavits and to require that the preparer of the affidavit
make the witness available for cross-examination and
confrontation.
467
On balance, it appears that the trial was conducted
fairly.
B. Was the Trial Substantively Fair?
This is a more difficult question than procedural fairness. The
entire Nuremberg project has been criticized from its inception for
being “victors’ justice” and for trying the defendants ex-post facto.
468
In a sense, most international criminal trials could be viewed as
victors’ justice. The trials generally can only take place when the
suspect is in custody, and witnesses and documentation are available.
In the case of high government officials or warlords, these conditions
will only occur after military defeat or the overthrow of a
463. Id.
464. See, e.g., Powell v. Alabama, 287 U.S. 45, 52–53 (1932); Patterson v. Alabama, 294
U.S. 600, 601 (1935); Norris v. Alabama, 294 U.S. 587, 588 (1935). It appears also
that the trial and execution of Japanese General Yamashita did not meet the
international standard recognized in the Justice Trial. See In re Yamashita, 327 U.S.
1, 26–27 (1946) (Murphy, J., dissenting); In re Yamashita, 327 U.S. 1, 41–89 (1946)
(Rutledge, J., dissenting).
465. See HELLER, supra note 14, at 39.
466. Id. at 140–42.
467. Id. at 141–42.
468. Charles E. Wyzanski, Nuremberg: A Fair Trial? A Dangerous Precedent, ATLANTIC
(Apr. 1946), https://www.theatlantic.com/magazine/archive/1946/04/neuremberg-a-
fair-trial-a-dangerous-precedent/306492.
514 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
government.
469
Thus, there was no prospect for trial of Nazi leaders
until the Allies had defeated Germany, captured its leaders and seized
German archives. To this extent, the charge of victors’ justice is of
no weight. The Nuremberg project could have constituted victors’
justice if the trials had been show trials or if, as the British suggested
at the London Conference,
470
the Allies had simply shot the Nazi
leaders. It should be noted that in some circumstances in post-war
Europe, victors’ justice in fact occurred. Mussolini and other Fascist
leaders were summarily executed by resistance forces.
471
Female
collaborators in France and Italy were publicly humiliated.
472
German populations were summarily expelled from Czechoslovakia
for collaboration.
473
Some critics have suggested that the trial should have included at
least one German judge or perhaps a judge from a neutral country.
474
Given the failure of the Leipzig trials after World War I
475
and the
very discrediting of the German judiciary which led to the convening
of the Justice Trial, it would have been profoundly inappropriate to
have had German judges. Similarly, there were few neutrals in
World War II. The only European neutrals were Spain and Portugal,
both with authoritarian governments;
476
Sweden, which had
cooperated with the Germans in the military occupation of Norway
and sold iron and weapons to Germany;
477
Ireland, whose intense
anti-British feelings led it to refuse all cooperation with the Allies;
478
and Switzerland, which despite Allied pressure sold war materials to
the Germans until late in the war.
479
More importantly, none of these countries, by their failure to have
entered the struggle against Nazism and by their frequent
469. The experience of the International Criminal Court with respect to Darfur and Kenya
demonstrates this problem. Mark Kersten, In Withdrawal? Africa and the
International Criminal Court, JUST. IN CONFLICT (Dec. 21, 2016),
https://justiceinconflict.org/2016/12/21/in-withdrawal-africa-and-the-international-
criminal-court/.
470. See supra notes 71–74 and accompanying text.
471. LOWE, supra note 149, at 146.
472. See id. at 163.
473. Id. at 233.
474. See Wyzanski, supra note 468.
475. The Treaty of Versailles, which ended World War I, called for war crimes trials of
alleged German war criminals to be held in German courts. The trials were a sham.
TAYLOR I, supra note 13, at 16–18.
476. Additionally, Franco’s Spain, while neutral, favored the Nazis. See GERHARD L.
WEINBERG, A WORLD AT ARMS: A GLOBAL HISTORY OF WORLD WAR II 72, 396–97
(1994).
477. Id. at 174–75, 394–95.
478. Id. at 146, 372–73.
479. Id. at 399–400.
2017 Justice in the Justice Trial at Nuremberg 515
collaboration with the German war effort, had earned the moral
stature to participate in the trials.
480
It is not clear that participation
by neutral governments would have been acceptable to any of the
belligerent powers or that their participation would in any way have
contributed to the real or perceived justice of the proceedings.
The ex-post facto charge is of greater moment. None of the
defendants in the Justice Trial were charged with crimes against the
peace, and the charge of conspiracy to commit war crimes and
conspiracy to commit crimes against humanity were dismissed as
those charges were not recognized in international law.
481
The charge of belonging to a criminal organization was an offense
recognized in the International Military Tribunal, but was viewed as
problematic even in that proceeding. The charge required proof that
voluntary participation in a criminal organization (e.g., the SS, at a
sufficiently high level with knowledge) would constitute a crime.
482
Only Altstötter was found guilty on that count alone.
483
This count,
while not technically one of conspiracy, certainly is its first cousin.
There was little or no precedent for this change other than the IMT
trial itself, and the charge essentially was a residue of the Bernays’
Memorandum.
484
This count is the most doubtful of the counts in the
case and Altstötter’s conviction the only questionable conviction in
the trial.
By contrast, the war crimes count was based on centuries of
customary law and, since General Order 100 and the subsequent
Hague and Geneva Conventions, codified law. All of the defendants,
with the exception of Altstötter, Rothaug, and those acquitted, were
convicted of war crimes.
485
The charge of crimes against humanity was the great substantive
innovation of the Nuremberg Trials. In each of the NMT trials, the
defendants moved to dismiss this count, but in eleven of the twelve
trials, the tribunals declined to dismiss the count on the basis that
ACC 10 had defined the tribunals’ jurisdiction to include crimes
against humanity.
486
The tribunal in the Justice Trial went further
and addressed the fairness of the charges. In the London Charter, the
crime was defined as a crime in association with one of the other
480. See WILLIAM C. HEFFERNAN, DIMENSIONS OF JUSTICE: ETHICAL ISSUES IN THE
ADMINISTRATION OF CRIMINAL LAW 147–49 (2015).
481. See JUSTICE TRANSCRIPT, supra note 14, at 3–4.
482. Id. at 1129–31.
483. Id. at 1776–77.
484. See id. at 1186–90.
485. See id. at 1199–1201.
486. See id. at 58–62.
516 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
offenses such as crimes against peace or war crimes.
487
In fact, many
crimes against humanity also constituted war crimes. ACC 10 of
course eliminated the “in association with” language, and thus
seemed to show greater confidence in the charge.
488
In the IMT and in the NMT trials, the argument was made that
crimes against humanity should be recognized as a natural extension
of existing offenses, such as war crimes.
489
As international criminal
law should grow, like the common law, by application of existing
principles to new situations, there was no ex-post facto application.
Furthermore, and fundamentally, the defendants knew or should have
known that what they were doing was wrong and that should
Germany lose the war, there would be liability. Interestingly, Telford
Taylor seemed to agree that at least the offense of crimes against the
peace was ex-post facto, but argued that the injustice would have
been greater had the charge not been brought.
490
The tribunal made a
strong showing that whether the charge was ex-post facto or not,
there was no injustice in applying the charge to these defendants.
The defendants all argued in their defense that they were acting in
accordance with German domestic law and that they did not have the
option of disobedience or of holding the law invalid.
491
This defense
of dealing with the unjust Nazi laws has generated a veritable cottage
industry among legal philosophers debating the nature of law.
492
Professor Hart, arguing from a positivist position, discussed a case in
which a German court tried a German woman for the offense of
having informed on her husband for having violated Nazi law,
knowing that he would likely be convicted and executed.
493
Hart
argued that the German law in the Nazi era, although unjust and
violating moral norms, was nevertheless law, and therefore it was
unjust to convict her for making use of it.
494
He acknowledged that,
although the unjust law might have a claim of obedience over her,
she would have had a moral imperative to disobey.
495
487. Id. at 972.
488. See TAYLOR II, supra note 14, at 8.
489. See JUSTICE TRANSCRIPT, supra note 14, at 972.
490. TAYLOR I, supra note 13, at 629.
491. TAYLOR II, supra note 14, at 109–10.
492. See generally Richard Primus, A Brooding Omnipresence: Totalitarianism in
Postwar Constitutional Thought, 106 YALE L.J. 423 (1996) (providing a good
description of the impact of the Nazi experience on legal theory).
493. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV.
593, 618–19 (1958).
494. Id. at 619.
495. Id. at 619–20.
2017 Justice in the Justice Trial at Nuremberg 517
Professor Lon Fuller, a modern natural law philosopher, responded
to Hart’s article and made the argument that German law under the
Nazis violated basic norms for the recognition of the validity of the
law (e.g., the ad hoc application of rules).
496
Thus, at a certain point
Germany ceased to have a legal system at all.
497
Therefore, the wife
should not have been able to claim the protection of the law.
498
Ronald Dworkin, the leading interpretivist philosopher, criticizes
Hart and the positivists for their semantic focus on the word law. It
certainly is correct that Nazi Germany had laws, which the
government expected its subjects to obey and which most Germans
obeyed.
499
Hart was wrong, however, in rejecting the notion based
on a deeper understanding of German law that it lacked fundamental
characteristics of a flourishing legal system, and therefore, lacked the
moral basis to command obedience.
Fuller and Dworkin seemed to have the better of the argument.
Certainly, the enactment of law by analogy in 1936 eliminated all
certainty from the law. Henceforth, judicial decisions would be
whatever a judge, motivated by national socialist ideology, wanted it
to be. Among the defendants, the Ministry of Justice officials such as
Schlegelberger, could not claim Hart’s approach as defense, as the
Ministry of Justice officials were the drafters of the unjust laws.
Prosecutors and judges, to the extent that their trials were shams,
intended only to give a legal pretext to discriminatory and lethal
conduct, and therefore, were departing from any reasonable concept
of the law.
One of the ironies about the development of the law under Nazism
was that the fundamental positivist basis of German jurisprudence
was negated by law by analogy. This law, relying as it does on the
“sound sentiments of the people,”
500
in effect established a perverse
form of natural law. Traditional natural law theories assumed a
fundamental transcendent structure of law found in nature and
ordained by God (although Fuller’s version of natural law does not
have a theological basis).
501
National Socialist ideology, however,
posited that the fundamental law of nature was a struggle for
existence on the basis of race in which the fittest race would
496. Lon L. Fuller, Positivism and the Fidelity to Law – A Reply to Professor Hart, 71
HARV. L. REV. 630, 648 (1958).
497. See id. at 652.
498. See Hart, supra note 493, at 619.
499. RONALD DWORKIN, LAW’S EMPIRE 35 (1986).
500. See supra notes 35–63 and accompanying text.
501. See Fuller, supra note 496, at 660.
518 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
survive.
502
The “sound sentiment of the people,” in effect was an
appeal to a higher legal or moral authority than positive law.
503
Thus,
the judges felt comfortable departing from existing written law
relating to punishment, as an example, when they felt there to be a
racial imperative to impose a higher sentence, such as with Leo
Katzenberger, or the Polish farmworkers. It is striking that although
several of the defendants in the IMT, notably Speer, experienced
remorse for their deeds, not one of the defendants in the Justice Trial
did so.
C. Was Justice Done?
They defiled the German temple of justice . . . . The
temple must be reconsecrated. This cannot be done in
the twinkling of an eye or by any mere ritual. It cannot
be done in any single proceeding or at any one place. It
certainly cannot be done at Nuernberg alone.
504
The defendants in this case, with the arguable exception of
Altstötter, were fairly convicted.
505
However, there were a number of
interesting arguments offered in mitigation which must be considered
in evaluating the overall fairness of the proceeding.
In his opening statements, counsel for Rothenberger argued that the
members of the tribunal had to recognize the difficulty of life in a
dictatorship.
506
Under circumstances in which arbitrary arrest or
dismissal were possible, only the unusually courageous would go
against the system. Most people, including apparently most of the
defendants, lost all initiative and acquiesced in the system despite
personal objections.
This argument would have greater strength were it not apparent that
many of the defendants were members of the Nazi Party, and all had
been willing to draft unjust laws or to willingly rule by analogy.
507
It
is striking that there was resistance to the Nazis in other areas of
German society such as the Confessing Church, the White Rose, and
the Kreisau Circle, among Christian groups, and the July 20, 1944
502. See Dorothy Thompson, National Socialism: Theory and Practice, 13 FOREIGN AFF.
557, 561–62 (1934).
503. See supra notes 52–53 and accompanying text.
504. JUSTICE TRANSCRIPT, supra note 14, at 33 (opening statement of Brigadier
General Telford Taylor) (emphasis added).
505. See infra note 507 and accompanying text.
506. JUSTICE TRANSCRIPT, supra note 14, at 146–47.
507. See, e.g., id. at 25–26; Sfekas, supra note 32, at 220, 227.
2017 Justice in the Justice Trial at Nuremberg 519
conspiracy in the Army, and the aristocracy.
508
There was no
equivalent resistance among the judiciary.
509
Schlegelberger argued that what he did was a strategy designed to
mitigate the worst parts of Nazi rule.
510
He was in constant conflict
with the SS, the Gestapo, and the Nazi Party to maintain judicial
independence. Thus, by accepting civil jurisdiction over the Night
and Fog cases, he kept the victims from being turned over to the
Gestapo for summary execution or immediate confinement in a
concentration camp.
511
His draft of the Law Against Poles and Jews
was designed to maintain at least some semblance of legal process for
Poles and Jews.
512
He argued that his suggestion that half-Jews be
given the option of sterilization rather than be deported to the East (to
what he knew would be certain death) was the commission of a small
evil to avoid the greater.
513
In his final statement, he argued that he
knew that his successors would be far worse than he and that he had a
clear conscience.
514
Rothenberg made a similar argument. He testified as an example
that a lengthy memorandum he had written concerning a Nazi
conception of law was ultimately intended to increase Hitler’s
comfort level with the judiciary so that he would not feel it necessary
to end judicial independence.
515
The tribunal took this argument seriously, particular with respect to
Schlegelberger.
516
However, the tribunal also noted that this strategy
rather than tempering the demands of the regime instead facilitated
them.
517
The opinion notes that: “If the judiciary could slay their
thousands, why couldn’t the police slay their tens of thousands?”
518
Thus, the tribunal nevertheless felt compelled to hand down severe
sentences. In the aftermath of the trials, as has been noted, every
single defendant regardless of the severity of the offense or degree of
508. Sfekas, supra note 32, at 189–90.
509. MÜLLER, supra note 7, at 193–95 (identifying only one judge of all the German
judges who in fact had the courage to resist unjust laws, and his only penalty was an
early retirement at full pension).
510. JUSTICE TRANSCRIPT, supra note 14, at 127.
511. Id. at 808–10.
512. See id. at 611–15.
513. Id. at 721–22.
514. Id. at 941, 1086.
515. Id. at 498–99. See Sfekas, supra note 32, at 215–16, for a more in-depth discussion
of the Rothenberg memorandum.
516. See JUSTICE TRANSCRIPT, supra note 14, at 1086–87.
517. See id. at 1086.
518. Id.
520 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
moral culpability was released early—most notably Schlegelberger in
1951, only four years after the end of the trial.
519
Although justice was done in the trial itself, the disproportionately
short sentences served constituted an injustice, particularly as the
commutations of sentence were driven by political expediency rather
than by legal or moral considerations. Whether justice was done as
to the individual defendants in this case, or for that matter their
victims, who received no restitution and perhaps retribution for their
suffering, this trial and the NMT trial in general served larger
interests of justice.
The Justice Trial and the other NMT trials exposed to the world
and to the German public the crimes of the Nazis and of German
society in a way that was credible and fair.
520
It was precisely
because the defendants had a full opportunity afforded by a trial to
challenge the prosecution’s case, to present their own witnesses and
introduce documents, that we have a full record of the Nazi era.
Every book and article on the German legal system relies on the
record of the Justice Trial. The NMT trials also were an important
part of post-war efforts to define more clearly the laws of war and
crimes against humanity. In fact, the trials preceded the 1949 Geneva
Conventions,
521
which further defined the laws of war and crimes
against humanity, as well as the Genocide Convention.
The cycle of Nuremberg trials should perhaps best be understood as
part of a general effort to create a new and just world order.
Nuremberg was part of an effort internationally, including the Four
Freedoms, the Atlantic Charter, the formation of the United Nations,
and the series of post-war treaties defining the laws of war and
international humanitarian law, including, most notably, the Geneva
Convention of 1949, the Genocide Convention, and the Universal
Declaration of Human Rights to establish new norms of international
conduct and to create a rule-based system to govern international
conflict. Indeed, the trials created the precedent of personal criminal
responsibility, which would ultimately give these treaties greater bite.
The Justice Trial, in particular, established the precedent that judges,
519. HELLER, supra note 14, at 352.
520. The Office of the Military Government (OMGUS) did intensive public opinion
surveys of the German public from 1945 to 1949 on a variety of issues. In polls
taken between 1945 and 1946, 79% of the German public thought that the IMT was
fair; 55% thought the sentences handed down were just; 21% thought the sentences
were too lenient; and 84% stated that they had learned something new from the trial.
PUBLIC OPINION IN OCCUPIED GERMANY: THE OMGUS SURVEYS, 1945-1949, at 34–
35 (Anna J. Merritt & Richard L. Merritt eds., 1970).
521. The NMT trials commenced in October of 1947. JUSTICE TRANSCRIPT, supra note
14, at III.
2017 Justice in the Justice Trial at Nuremberg 521
prosecutors, and legal officials would enjoy no immunities for sham
legal proceedings or for the misuse of the law for purposes of
justifying war crimes or crimes against humanity.
522
Telford Taylor,
in the opening of the Justice Trial, stated that: “The temple [of
justice] must be reconsecrated,” in reference to the German legal
system.
523
By the mid-1960s, Germany in fact was conducting its
own war crimes trials.
524
In the third play of the Oresteia Trilogy, the Furies, ancient
goddesses of vengeance, pursue Orestes, son of Agamemnon, to
avenge his murder of his mother.
525
The goddess Athena convenes a
trial which acquits Orestes and the Furies accept the result.
526
Athena
states that a new civilization will result from the replacement of
revenge by law.
527
The postwar treatment of the German leadership could have taken
many forms—from exile to summary execution to inaction. The
trials that did take place documented Nazi atrocities in a manner
convincing to all but the Holocaust deniers, vindicated the suffering
of the victims, and established both international standards for fair
trials and useful precedent for future international criminal trials.
Most importantly, the trials helped to end the cycle of retribution and
violence which threatened to destroy postwar Europe. Although the
Justice Trial and NMT trials in general achieved only partial success
with respect to individual defendants, they were a material advance in
the civilization of the world.
522. This precedent has obvious implications if and when the United States ever comes to
grips with the use of torture and prisoner abuse by the CIA and military
interrogators. These abuses were perpetrated under the purported authority of a
series of poorly reasoned legal opinions by a small group of lawyers in the
Department of Justice. These opinions were all subsequently withdrawn by the
Justice Department. See SENATE SELECT COMM. ON INTELLIGENCE, COMMITTEE
STUDY OF THE CENTRAL INTELLIGENCE AGENCY’S DETENTION AND INTERROGATION
PROGRAM 7–8 (2014).
523. JUSTICE TRANSCRIPT, supra note 14, at 31–33.
524. JUDT, supra note 149, at 810.
525. AESCHYLUS, supra note 1, at 120–22.
526. Id. at 141.
527. Id. at 148–49.
522 UNIVERSITY OF BALTIMORE LAW REVIEW Vol. 46
