The Legacy of International Cooperation at the Nuremberg Trials

On November 21, 1945, Robert H. Jackson, the Chief Prosecutor for the United States of America opened the prosecution’s case against German defendants in Nuremberg, Germany. The war in Europe had ended only six months earlier, many of the buildings in Nuremberg and the rest of Germany still bearing the physical scars of bombing raids and the Allied invasion. Before this massive trial could proceed, the victorious Allied powers drew up a charter for the International Military Tribunal, defining the rules of procedure, the charges of the indictment and the defendants to be prosecuted.

The Allied powers were already debating the punishment of the Axis leadership—German and Japanese—before the war had concluded. Tensions between leaders of Great Britain, France, the United States and the Soviet Union complicated this process at every turn, but despite this, the trial at Nuremberg emerged as an important precedent in international law and human rights. The major sources of tension stemmed from the debate as to the possibilities of either carrying out summary executions of Nazi leaders or putting them on trial (fairly) for war crimes, choosing the defendants to be tried, negotiating the charges of the indictment, and the problematic aspect in allowing the Soviets to prosecute the Germans for war crimes, despite their complicity in committing some of the acts for which the Nazis were accused.

Nuremberg is located in southern Germany, and during the Nazi regime, had been a mass rallying point for the leadership. “Nuremberg,” wrote Stephan Landsman, “had been the epicenter of the Nazi movement… [and] in its streets and stadiums jubilant Nazis had marched and rallied.”2 The city fit the needs for the trial and all the powers agreed to its setting, even though Soviets had argued in favor of Berlin initially—located in their zone of occupation rather than the American-occupied Nuremberg.

The trial itself commenced on November 21, 1945 and continued until October 1, 1946. Twelve smaller trials were held subsequently between 1946 and 1949, but they were not prosecuted jointly by the Allied powers but rather only by the American prosecution under the direction of Telford Taylor, who had worked on Robert Jackson’s staff during the first trial. Allied powers had been negotiating the fate of the Nazi leaders since the first meeting of American President Franklin Roosevelt, British Prime Minister Winston Churchill and Soviet Union leader Joseph Stalin in Tehran, Iran. As the war in Europe began to draw to an end in early 1945, these negotiations continued until all powers agreed to a trial, the procedure of which was to be decided at a later date.

Robert Jackson, a member of the U.S. Supreme Court, was appointed as the Chief Prosecutor and his vision dominated the proceedings. He had been advocating retribution against the Nazi leadership even before the American entry into the war. In 1941, shortly before Japan bombed Pearl Harbor, Jackson spoke at a meeting of the American Bar Association. “It is [a] grave thing to perpetuate by our inaction an anarchic international condition in which every State may go to war with impunity whenever its interests are thought to be served.”3 The other members of the prosecution were Sir Hartley Shawcross (Great Britain), Lieutenant-General Roman Andreyevich Rudenko (Soviet Union) and François de Menthon (France). Each man had a staff working under them—Jackson, at various times, was directing over a hundred people. These delegates negotiated the International Military Tribunal Charter which established the rules of procedure.

Each Allied power had two judges, one of which served as an alternate. The head judge was not American, but rather British Sir Geoffrey Lawrence, in an effort to balance the perceived power held by the Americans in the process. Sir Norman Birkett served as his alternate. Other members of the judge panel: Major General Iona Nikitchenko (Soviet), Lieutenant-Colonel Alexander Volchkov (Soviet alternate), Francis Biddle (America), John J. Parker (American alternate), Professor Henri Donnedieu de Vabres (French), and Robert Falco (French alternate).

Despite ideological and interpersonal tensions, the International Military Tribunal met in London in the summer of 1945 to hammer out the nuts and bolts of procedure and to formulate the indictment. These negotiations lasted mere months, resulting in the trial opening only a little over six months after Germany’s formal surrender on May 8, 1945, illustrating that the primary goal was to hold these trials and that they would not be delayed by any of the foreign powers. In 1947, American prosecutor, Thomas J. Dodd wrote:

“The story of [sic] International cooperation between the lawyers of the four great powers, at a time when international affairs were not at their very best, contains, we hope, a lesson and a moral and some direction for our own generation and those who are to follow.”4

Nuremberg and International Law

It was an unprecedented prospect to prosecute a nation’s leadership for crimes committed during war. Earlier leaders had been executed, exiled, or had returned to power, suffering little for having waged war. The International Military Tribunal sought to change that, challenging what Stefan Glaser would, in 1948, term “state sovereignty.”5 He went on to elaborate on this concept: “the Charter recognized individuals as subjects of international law… [and] broke with the doctrine of immunity for what is called an ‘act of State.’” In other words, the Allies were asserting that the old days of war for territorial expansion, a time-honored tradition in Western civilization, were over and any nation that persisted in the old ways would be punished. An international prosecution had been discussed at the end of World War I and provisions for such were made in the Treaty of Versailles, but the European powers had eventually allowed Germany to prosecute its own war criminals in order to preserve the stability of the Weimar Republic. Those who did go to trial were either acquitted or received lenient sentences. This could not be allowed to happen again.

Henry L. Stimson, the Secretary of War under President Franklin Roosevelt wrote, “International law is not a body of authoritative codes or statutes; it is the gradual expression, case by case of the moral judgments of the civilized world.” 6 The law used at Nuremberg was not created specifically for the purposes of the trial, but merged the very different legal processes used in the continental and in the Anglo-American courtrooms, balancing the adversarial cross-examinations of the United States with the prominence of magistrates in Europe. “The concept of an international trial, with judges and lawyers from different nations overcoming obstacles of languages, custom and procedure,” is the most enduring of Nuremberg’s legacies according to Ehrenfreund. 7

The international law that concerned the Tribunal stemmed both from the Geneva Protocol of 1924 and the Kellogg-Briand Pact of 1928. The Geneva Protocol had been negotiated by the League of Nations and stated “a war of aggression constitutes a violation of this solidarity and an international crime.” 8 The Kellogg-Briand Pact, signed in 1928 by sixty nations including Germany, spoke along the same lines. “The High Contracting Parties agree that the settlement of solution of all disputes or conflicts of whatever kind or nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”9 These agreements were the basis for the criminal account of aggressive war. Having specifically agreed not to wage a war of conquest, the Nazi’s approach to expansion in the 1930s and 1940s violated this, therefore they could be prosecuted. These pacts made the acts illegal, but punishments were either absent or vague. Jackson aimed to change this with the indictment.

Summary Execution or Presumption of Innocence: Punishments for Nazi Leadership

“The whole moral position of the victorious Powers must collapse if their judgments could be enforced only by Nazi methods. Our anger, as righteous anger, must be subject to the law.”10

President Roosevelt, British Prime Minister Winston Churchill and Soviet Union leader Joseph Stalin had met several times during the war to discuss strategies for fighting the war and plans for the Nazis afterwards. The leaders issued the Moscow Declaration of November 1943, which agreed that “without prejudice to the case of the major war criminals whose offenses have no particular geographic location and who will be punished by joint decision of the Governments of the Allies.”11 This joint decision would be one of the first areas of disagreement for the Allied powers.

Roosevelt and Churchill, in particular, were vacillating between summary executions of the primary leaders and putting them and lower-level Germans on trial. Roosevelt’s own administration was divided into two distinct groups—the Treasury Department headed by Henry Morgenthau, Jr., which wanted summary executions, and the War Department, led by Henry L. Stimson who favored the trials. Stimson argued that a trial would “afford the most effective way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate the system and prevent its recurrence.”12

This disagreement led to tension within the Cabinet, with Morgenthau and Stimson firing off memos dedicated to each side, hoping to swing Roosevelt their way. At one point, after a conference in Quebec, Roosevelt agreed to Morgenthau’s drastic plan for Germany—summary executions for leaders, and the removal of heavy industry, turning the land into one large agricultural farm. “I want to make Germany so impotent,” Morgenthau said in his memorandum, “that she cannot forge the tools of war.”13 Germany, under Morgenthau's plan, would never be able to pursue an aggressive war again.