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Nuremberg

 

   On November 20, 1945, the first of twelve World War II war crimes trials began in Nuremberg, Germany.  The Nuremberg Trials were held under the supervision of an International Military Tribunal that was made up of representatives of the United Kingdom, United States, France and the USSR. During the trials twenty-two military leaders and civilian officials were tried for conspiracy to commit aggressive war, crimes against the peace, war crimes and crimes against humanity.  These four crimes, and their use in the Nuremberg Trials, have had a major impact on international law as it stands today.  At the time of the Nuremberg Trials international law was not organized or developed enough to deal with the cases from a legally binding standpoint.  So in the absence of these precedents, non-legislative, or unwritten, law justified most of the actions taken at Nuremberg.  The issues of the Nuremberg Trials and the precedents set by them have had far reaching effects on international law. 

    The Nuremberg Trials organized the crimes committed during the war into four major categories.  The first of these crimes was that of conspiracy to commit aggressive war.  This conspiracy charge covered a multitude of actions that had been taken by the defendants from having prior knowledge of an attack, to the transportation of people to concentration camps, to publicizing the Nazi party and its ideals.  The second major category of crime was that of the violations of the law and the customs of war, or war crimes in general.[i]  This category was based upon the Hague Conventions and the principles generally accepted by most civilized nations.  The third category of crimes was crimes against the peace that involved planning, initiating or carrying out acts of aggressive war.  The fourth and final category or war crimes was that of crimes against humanity.  The main point of the crimes against humanity count was to try people for the “large scale atrocities against civilians.”[ii]  Due to the fact that these charges are rather large and severe it was decided that the punishment of those found guilty must be carried out in an organized and fair fashion.  In the end the overall decision was to carry out imposed sentences “in accordance with the orders of the control council”[iii] which had the right to reduce or alter the sentences but could not make them more severe.  All of the defendants at Nuremberg were faced with the same four charges but suffered very different fates due to their varying degrees of involvement and circumstances of that involvement during the war. 

     The charge of having committed conspiracy to commit aggressive war was useful in apprehending those in the Nazi party who were high-ranking officials, but avoided actually carrying out any of the plans themselves.  One of these men was Rudolph Hess, the Fuhrer’s deputy.   Although Hess had very little actual authority, he was responsible for carrying out many of Hitler’s directives in his name.  His position in the Nazi regime, as well as his tight connections to Hitler himself, put him in the view of those who were compiling lists of known Nazi war criminals.  Hess was found guilty of both conspiracy to commit aggressive war and violations of the law and the customs of war.  Another man who was not directly involved in the Nazi party and their large-scale atrocities against the people was Walther Funk.  Walther Funk was the minister of economics and the President of the Reichsbank.  His role in the Third Reich was that of finding ways to make Hitler’s plans financially possible.  Due to his assistance in helping the Reich fund their horrifying actions, he was found guilty on all but the fourth charge, crimes against humanity. 

     The use of the conspiracy charge is of current interest due to the issues in the Middle East.  It can be said that many of the leaders of the political parties in the Israeli Palestinian conflict are asking their people to commit these terrible acts of violence, but they are not doing anything to stop it.  The terrible suicide bombings and random shootings that have been going on between the Jews and Muslims in the disputed lands around and in Jerusalem may not have been directly sanctioned by the leaders of either group.  Still, there are allegations on both sides that much of the terrorism has been state sponsored.  It is especially questionable because neither leader has really made any serious attempt and reaching a peaceful settlement. Due to their lack of action, in terms of the conspiracy charge, they could be held responsible for the terrorist actions. 

     The second charge, violations of the law and the customs of war, also served the Nuremberg tribunal in charging many people with a variety of different crimes.  Karl Doenitz is a prime example of someone who violated the law and the customs of war.  He had served as the commander of the U-boat program, the chief of the navy and was named Hitler’s successor.  In fact, Doenitz served as the head of the Reich for a total of twenty days before its fall.  However, the majority of his violations of law and customs of war were during his days as the chief of the navy.  Doenitz had created a “formal system of killing survivors of torpedoed ships”[iv] This went against many of the basic principles of warfare established in terms of unwritten law.  The cruelty shown to those who had already survived acts of war was incredibly cruel and unusual.  Doenitz was also found guilty of crimes against the peace, but he was only given a ten-year jail sentence for his involvement in the war.  Erich Raeder was also charged due to involvement in the terror of the seas by the U-Boat program.  The tribunal felt that the unrestricted use of submarine warfare was a very serious issue to consider during the Nuremberg Trials.  Raeder however, was also heavily charged with the transmission of the “commando order, which Hitler had secretly issues in 1942.”[v] This order basically demanded that all members of the Reich’s military or police services were to execute all commandos and prisoners of war immediately upon their capture without trial.  The charges against Raeder were much like the charges against Doenitz.  Both men were being held accountable for carrying out orders that, though cruel and unusual, were not on a large enough scale to have them be considered crimes against humanity.  However, Raeder was punished more harshly for his role in the war then Doenitz.  Raeder was sentenced to life in prison while Doenitz only served ten years.

     The third charge, crimes against the peace, was used against those who may not have assisted in planning but were the direct hands that carried out many of the awful acts of war.  This is true in the case of Martin Bormann who was sentenced to death by hanging for his “role in subjugating the occupied territories, persecuting Jews, and maltreating slave laborers and prisoners of war.”[vi]  Bormann was directly involved with the oppression of these people even though his job in the Nazi party was not one of direct decision making.  However, as he served as Hitler’s secretary, his initiatives came directly from those who made the major decisions in the Nazi party.  Fritz Sauckel, also charged with crimes against the peace, was named as Hitler’s plenipotentiary of labor in 1942.  As such Sauckel was given the job of forcing workers from Nazi occupied territories to labor jobs and camps in Germany.  His role in the war was not as great or as far reaching as others who had been charged, but his actions directly impacted and, in many cases, ended the lives of people around him.  For his cooperation with the Nazi regime, he found himself sentenced to death by hanging along side Martin Bormann. 

     The fourth, and final charge was that of crimes against humanity.  Of the four charges used at Nuremberg, it was most certainly the most severe.  Those who were found guilty of this charge had committed some of the most awful crimes of the war.  Ernst Kaltenbrunner is a prime example of the type of person who had committed crimes against humanity.  During his term with the Nazi party he had served as Himmler’s chief deputy as well as a “SS man, Nazi police official…secret police chief and executioner…chief of the RSHA and presided over the SD and the Gestapo.”[vii]  In these positions Kaltenbrunner was responsible for issuing murderous directives as well as carrying them out.  His direct hand in the atrocities of war led to him being found guilty of crimes against the peace as well as crimes against humanity.  Yet another member of the Nazi party whose position and actions during the war were largely considered crimes against humanity was Field Marshal Wilhelm Keitel.  He had served as the High Commander of the armed services for the Nazi party, and from his position was deeply involved in the “general and detailed preparations for every Nazi attack and invasion…[and] signed nearly every order affecting military war crimes or crimes against humanity.”[viii]  Even though he had not been physically involved in the murder or torture of any person during the war, Keitel was indirectly responsible for the terrible atrocities of war.  Had he not signed the orders and assisted in the planning of the attacks it is possible that some of the death and destruction might not have occurred. 

     There was very little in the way of international law prior to the Nuremberg Trials.  The first two charges at Nuremberg were tried heavily upon the basis of the Kellogg-Braind Pact of 1928.  This pact provided for the fifteen signatory nations to renounce “war as an instrument of national policy.”[ix]  In doing this, the conspiracy to commit war crimes and the general war crimes charges were solidly set in stone.  This pact called for all conflicts to be dealt with in a peaceful manner and, in the case of war, that civilians not be the targets of any action of war.  For the purposes of the Nuremberg trials, and other war crimes trials that followed, the people on trial had to try to prove that their actions did not violate any of those given sanctions.  They also had to prove that their actions did not violate the sanctions set up by the Hague Convention of 1907.  Specifically regarding the accepted rules of war on land and at sea.  Aside from setting up a very raw outline for a military tribunal, or court of justice, the convention also “gave the Court a creative law-making role. In the absence of a legal foundation for its judgments in international rules, it was to follow the principles of justice and equity.”[x]  This was the base for many of the other pieces of legislation used during the Nuremberg trials were created.

One of the biggest controversies surrounding the Nuremberg Trials has to do with there not being laws previously in place to try the war criminals against for the charges of crimes against the peace and crimes against humanity.  Due to the lack of precedents for crimes of such severity there were three pieces of legislation drafted and used proactively to try the Nuremberg defendants: the Moscow Declaration of October 30, 1943, the London Agreement of August 8, 1945 and Law Number 10.  The Moscow Declaration was a joint declaration from the heads of state for the US, Great Britain and the USSR.  The statement outlined the processes for the axis powers working together to dismantle the Nazi regime after the signing of the armistice. It also declared that as soon as an interim government could be put in to place, those who were responsible for the atrocities of war would be held responsible for their actions.[xi] The London Agreement of August 8, 1945 took the ideas of the Moscow Declaration one step further.  It provided for the “establishment of the Military Tribunal”[xii] which was to be composed of “one judge and one alternate judge from each of the signatory nations.”[xiii]  It was this article that set up the Military Tribunal that is currently in use in international law.  Law Number 10 was signed on December 10, 1945 and allowed for war crimes trials in “each of the four zones of occupied Germany.”[xiv]  This gave all members of the allied forces the right to try the criminals who resided in their portion of Germany during or after the war. 

At the end of the Nuremberg Trials there were several precedents that had been established that were used in the following war crimes trials.  One of these principles is that of “individual accountability”[xv] for carrying out any action that could be considered a war crime.  Due to these trials the defense of “just following orders” was negated as a viable excuse in criminal cases due to these trials.  This was because the Tribunal felt that the “true test is not the existence of the order but whether moral choice was in fact possible.”[xvi] This put the responsibility for all action on the moral conscience of those committing any crime.  The tribunal also made it clear, however, that the people who issue the orders are also criminally responsible for the actions that are committed.  Due to the theory of individual accountability, and the responsibility of the people giving the orders, one of the defendants at Nuremberg was acquitted.  Hanz Fritzsche, who worked for the Propaganda Ministry as a radio announcer, was set free because only he was being tried, not his superiors.[xvii]

Another precedent set by the trials was that of the usefulness and lawfulness of the decisions made by international tribunals.  Previously all criminals had to be put to trial by domestic courts.  The Nuremberg trials allowed for another avenue of justice in cases in which the crimes were to horrifying to try domestically.[xviii]  The Nuremberg Trials also used an old precedent and made it even more useful in modern international law:  that is enforcing not only the written laws and provisions of a country but also the unwritten laws of cultural, moral and ethic standards in place.  These trials also showed that the use of retroactive laws was not always a bad thing.  Laws that were passed in a time of crisis because of horrifying wrong doings could be used against the perpetrators of those crimes.  This was one of the issues the defendants at Nuremberg fought against.  The lawyers for the defendants argued that using retroactive laws to punish them was completely unlawful.  The prosecutors of the cases, however, aptly pointed out “the Nazis were not greatly troubled about the existence of any law – retroactive or other.”[xix]  Regardless, the principles involved with the Nuremberg trials did very little to hinder the same types of atrocities from happening during 1945 and after due to the tensions of the Cold War.  Luckily though, the precedent was set that would allow for the trial of those who commit crimes against humanity had been set. 

There are certain terms in international laws that were specifically defined by the Nuremberg Trials.  The first of these terms was exactly what a war crime tribunal was to do.  War crimes trials were defined as a trial that was concerned with the violations of laws and customs of war.  Crimes against humanity was also formally defined by the August 1945 Charter of the International Military tribunal as the “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civil population before or during the war, or persecutions on political, racial, or religious grounds.”[xx]  The final term that was defined during the Nuremberg Trials is that of Genocide.  As of December 9, 1948 the Convention on Prevention and Punishment of the Crime of Genocide officially defined genocide as “the crime of destroying, or committing conspiracy to destroy a national, ethnic, racial or religious group.”[xxi]  The official definition of crimes against humanity and genocide has served for the punishment of many crimes that have occurred since the end of WWII. 

In the aftermath of World War II the United Nations, and international law in general has become supremely concerned with protecting human rights.  In 1948 the UN adopted the Universal Declaration of Human Rights.  Shortly thereafter, in 1966, the UN also signed the International Convention on the Elimination of All Forms of Racial Discrimination.  In 1975 it also adopted the Declaration on the Protection of All Persons from Being Subjected to Torture or Other Cruel, Inhumane, or Degrading Treatment or Punishment.[xxii]  All of these declarations have served to set up a system and a standard of human rights that the UN expects all nations in the body to adhere to.  If it were not for these very specific laws of war, there would be very little the international community could do about war crimes. 

In the decades following the end of World War II there were many other war crimes trials.  In 1946 there began war crimes trials in Tokyo.  In Tokyo there were 28 people tried for war crimes, seven were condemned to death with all but two of the remaining defendants getting life in prison.  The International Military tribunal for the Far East was held under the same authority as the Nuremberg Trials.  At its conclusion in 1948, the 11-nation tribunal reached many of the same conclusions as had been reached at the end of the trials in Nuremberg.[xxiii]

Following in the footsteps of Nuremberg and adding on to the precedents set for War Crimes trials were the 1994 war crimes trials in Rwanda.  Using the basic theories of the Nuremberg trials, Jean-Paul Akayesu, was tried for his incitement of the murder of more than 2,000 Tutsis in Rwanda.  The beginning of this reign of terror in Rwanda began on April 6, 1994.  Over the course of the hundred days that followed approximately 800,000 Hutus were killed.[xxiv]  Of course, the Hutus retaliated and so both sides, the Hutus and the Tutsies, are being held responsible for acts of genocide.  This trial was the first time ”high-ranking individuals have been called to account before an international court of law for massive violations of human rights in Africa.”[xxv]  Due to Akayesu’s position as the mayor of Taba in Rwanda the precedent had been set for the trial of other high ranking officials for their support of war crimes.  Though the basic crimes against humanity charge could have covered the crimes in Rwanda, there was another more fitting charge, that of genocide.  Due to the fact that genocide had been defined as a crime in 1948 the tribunal had that definition to work on, unlike in the Nuremberg tribunals. 

     The Nuremberg Trials also affected the Bosnia War Crimes tribunal of 1997.  The first of the Bosnian War Crimes Trials was that of Bosnian Serb Dusko Tadic who was charged with “crimes related to the rape, torture and murder of prisoners in and around three prison camps in northern Bosnia.”[xxvi]  A vast majority of the other Bosnian War Crimes Trials was of other war criminals from the Bosnian-Croatian-Serbian War.  Tadic was found guilty on eleven of the thirty charges that were brought against him, charges of persecution and beatings.  Had it not been for the precedents set by the Nuremberg Trials, Tadic could have said that his actions were justifiable because they were against prisoners and those who could possibly have been trying to help them escape.  The mere location of his horrible actions could have been the key to his going free.  However due to the Nuremberg Trials the international courts only see the beating, rape and torture of a person as that to engage in any of these activities is illegal.  Tadic was sentenced to twenty years in jail for his misdeeds.

     While Tadic was imprisoned for the deaths of Bosnian Serbs, the other parties of the Bosnian war did not go unpunished for their actions during the war.  An International Tribunal has also tried another Bosnian war criminal, General Tihomir Blaskiç.  He was given a 45-year sentence “for the persecution and ethnic cleansing of Bosnian Muslims.”[xxvii]  In this, the tribunal goes along with the basic premises with which it was set up.  The tribunal is being used to attempt to stop acts of war from occurring within a country and in the international community. 

     The most current war crimes trial is that of Slobodan Milosevic, the Yugoslavian president, who is currently representing himself in the international tribunal for war crimes.  He has been charged with inciting the ethnic cleansing of “non-Serb populations from Croatia in 1991-1992.”[xxviii]  However, Milosevic has fought the charges against him at every turn and “refuses to plead to charges of orchestrating genocide by Serb forces.”[xxix]  This refusal, as well as his insistence that he get to represent himself, has put a major kink in the International Tribunal trial that is currently going on.  This is unprecedented, however: the charges against him are directly linked to the Nuremberg tribunal charges and have the complete backing of the International community. 

     The international community has been greatly influenced by the availability of the international tribunal set up.  As the United States looks forward to where it is going with its war on terrorism, it is greatly debated whether the parties responsible for the attacks on the World Trade Center would be tried as a war criminal.  The setup of the tribunal is ideal for such an emotional and far-reaching case.  The ability of members of the international community to try those whom they feel have done great misdeed to the people of their own country, or of another country, has allowed for a camaraderie among nations.  The concept of sharing the responsibility for the future of those who do wrong allows all nations to have their say in bad situations and keep them for escalating to higher plateaus of violence and bloodshed. 

     Having a rubric by which to judge actions during times of war is helpful to those who have to make life or death decisions.  The precedents set by the Nuremberg trials and their effect on the current state of international law and very much intertwined.  However, the international community is not using all of the resources that international law makes available to them.  Even though the International Court of Justice has been involved in these severe cases it was long after the events had actually occurred.  The punishment of the war criminals does not undo what they have done and is not proportional to their crimes.  If the international courts were used more effectively and frequently they might help as a deterrent to these types of crimes.  The expanded use of this court system would allow for further development of international law through the identification of different classes of crimes and appropriate punishments.  Much like the Nuremberg Trials the actions of the international court would break new ground and set new precedents when dealing with international incidents.

[i] Microsoft Encarta Online Encyclopedia, 2002, s.v. “Crimes Against Humanity.”

[ii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “War Crimes Trials.”

[iii] Glueck, Sheldon, The Nuremberg Trial and Aggressive War (New York: Alfred A. Knopf, 1946), 69-70.

[iv] Smith, Bradley F. Reaching Judgment at Nuremberg, (New York: Basic Books, Inc., 1977), 248.

[v] Smith, Reaching Judgment at Nuremberg, 243.

[vi] Smith, Reaching Judgment at Nuremberg, 231.

[vii] Smith, Reaching Judgment at Nuremberg, 189.

[viii] Smith, Reaching Judgment at Nuremberg, 186

[ix] The Avalon Project, 1996.  The Avalon Project: Kellog-Braind Pact 1928[on-line]; available from http://www.yale.edu/lawweb/avalon/imt/kbpact.htm; Internet; accessed 19 March 2002.

[x] Viasov, Antony. 1997. International Prize Court – Introduction [on-line]; available from http://www.worldcourts.com/ipc/eng/intro.htm; Internet; accessed 19 Marc 2002.

[xi] The Avalon Project, 1996.  The Avalon Project: The Moscow Conference, October 1943 [on-line]; available from http://www.yale.edu/lawweb/avalon/wwii/moscow.htm; Internet; accessed 19 March 2002.

[xii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “War Crimes Trials.”

[xiii] Ibid.

[xiv] Ibid.

[xv] Microsoft Encarta Online Encyclopedia, 2002, s.v. “Genocide.”

[xvi] Microsoft Encarta Online Encyclopedia, 2002, s.v. “War Crimes Trials.”

[xvii] Smith, Reaching Judgment at Nuremberg, 292.

[xviii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “International Law.”

[xix] Glueck, The Nuremberg Trial, 72.

[xx] Microsoft Encarta Online Encyclopedia, 2002, s.v. “Crimes Against Humanity.”

[xxi] Microsoft Encarta Online Encyclopedia, 2002, s.v. “Genocide.”

[xxii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “International Law.”

[xxiii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “War Crimes Trials.”

[xxiv] CovertAction Quarterly, 1995.  Genocide in Rwanda [on-line]; available from http://mediafilter.org/MFF/CAQ/CAQ52Rwanda.html; Internet, accessed March 21 2002.

[xxv] International Crime Tribunal for Rwanda, 2002.  International Crime Tribunal for Rwanda [on-line]; available from http://www.ictr.org/; Internet, accessed March 21 2002.

[xxvi] 1999. Court TV Casefiles: Bosnia War Crimes Tribunal [on-line].
; Available from http://www.courttv.com/casefiles/warcrimes/; Internet; accessed 19 March 2002.

[xxvii] Microsoft Encarta Online Encyclopedia, 2002, s.v. “War Crimes Trials.”

[xxviii] Cable News Network, 2002.  CNN.com – Timeline: The Milosevic Years – Feburary 11, 2002 [on-line]; available from http://www.cnn.com/2002/WORLD/europe/02/11/milosevic.timeline/index.html; Internet; accessed 19 March 2002.

[xxix] Ibid.