Books > Ladies and Gentlemen of the Jury >

Excerpts

Architects of Genocide

The Victorious Allies Put Hitler's Henchmen in the Defendant's Box at Nüremberg

The Guns Fall Silent

Dawn came early to Reims, France, on the morning of May 7, 1945. This was not nature's dawn, but then the darkness which it ended was not the brief and pretty peace of nature's night. The darkness was a maelstrom made of men, bent on Holocaust and war. As the dawn finally came, the light of Europe's liberation from National Socialism illuminated the deeds of those evil men, who now faced judgment for having turned much of the world on a perverted Axis of persecution, the darkest point of which was Nazi Germany.

At Reims, France, at 2:41 A.M., May 7, 1945, General Alfred Jodl, chief of the Operations Staff of the German High Command, signed the instrument of unconditional surrender of all German land, sea, and air forces.

The newborn peace found more than 30 million dead, many of them civilians and Allied prisoners of war who endured a crimson march of displacement, internment, enslavement, deprivation, involuntary labor, quasimedical experimentation, and a myriad of other tortures, before their demise.

Genocide, the wholesale slaughter of the Jews wherever they could be found, was to be the legacy of Hitler's Third Reich. The entire industrial might of a modern Western nation had been subverted, harnessed, to create an industry of death. German companies submitted bids, hoping to win lucrative contracts to build ovens in which to burn Jews, to build chambers in which to gas Jews, and the right to slave labor, supplied by the Jews and captured Slavs. It was clear to the victors that something new was necessary, to assign blame for the terrible war and its very modern atrocities. They decided that there were to be war crimes trials, something that had never been done before. Rather than dispense summary judgment and execute the Nazi leadership, the rule of law would be reestablished in Germany, after twelve lawless years of Nazi rule.

The bringing to justice of those still alive and responsible at the highest level of Nazi authority for these perfidious acts was part of the unfinished business of World War II, which the unconditional surrender of Germany made possible but did not itself accomplish. Bringing that grave and arduous task to a conclusion became the job of the International Military Tribunal at Nüremberg, Germany, which heard and decided the Trial of the Major War Criminals of the European Axis between November 20, 1945, and September 30, 1946. It is no wonder, then, that the chief counsel for the United States at the Nüremberg trial, justice Robert H. Jackson, declared that "Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering a whole continent, and involving a score of nations, countless individuals, and innumerable events....This trial has a scope that is utterly beyond anything that has ever been attempted that I know of in judicial history."

The Road to Nüremberg

Just as V-E Day made good the Allied promise of unconditional surrender, so the Nüremberg trial was the culmination of Allied declarations of intention to bring to justice the major figures in the European Axis for their acts of aggression and the atrocities committed by their minions during the Second World War. On October 25, 1941 -- even before the entry of the United States into the war -- President Roosevelt and Prime Minister Churchill made simultaneous statements warning Axis leaders that their "crimes" would not go unpunished.

In order to gather evidence against such suspected war criminals, fifteen nations, including the United States and Britain (but not the Soviet Union), formed the United Nations War Crimes Commission, which first convened in London on October 26, 1943. Shortly thereafter, on November 1, 1943, the leaders of the United States, Britain, and the Soviet Union issued the Moscow Declaration, which called for the following:

[A]t 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 atrocities, massacres, and executions, will be sent back to the countries where 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 government which will be erected therein...[but this policy] is without prejudice to the case of German criminals whose offenses have no particular geographical localization, and who will be punished by joint decision of the Governments of the Allies. (Emphasis added.)

It was this latter category of alleged war criminals which formed the caseload of the International Military Tribunal at Nüremberg, and which gave to Robert Jackson the greatest litigative challenge of his career.

In a memorandum to President Roosevelt, dated January 22, 1945, the secretaries of state and war and the attorney general recommended "ways and means for carrying out the policy regarding the trial and punishment of Nazi criminals," as follows:

After Germany's unconditional surrender the United Nations could, if they elected, put to death the most notorious Nazi criminals, such as Hitler or Himmler, without trial or hearing. We do not favor this method. While it has the advantage of a sure and swift disposition, it would be violative of the most fundamental principles of justice, common to all the United Nations. This would encourage the Germans to turn over these criminals, and, in any event, only a few individuals could be reached in this way.

We think that the just and effective solution lies in the use of the judicial method. Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the Judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality.

The three cabinet officers further recommended that "the trial of the prime leaders [be] by an international military commission or military court, established by Executive Agreement of the heads of State of the interested United Nations." Such a court, the officers added, could consist of persons appointed by the "Big Four" powers of Britain, France, the United States, and the Soviet Union, and by other Allied countries.

The cabinet officers also suggested that the prosecution of the major Nazi leaders be directed by "a full-time executive group" composed of lead counsel from the same Big Four powers.

At first, the cabinet officers' call for a war crimes tribunal met with less enthusiasm abroad than at home. In an aide-mèmoire to the U.S. administration dated April 23, 1945, the British government held "that it is beyond question that Hitler and a number of arch-criminals associated with him (including Mussolini) must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war." Consequently, London argued "that execution without trial is the preferable course."

The Honorable Robert Jackson, associate justice of the United States Supreme Court, disagreed. In a speech prepared for delivery to the American Society of International Law on April 13, 1945 (the day after President Roosevelt's death), Jackson stated that "I am not so troubled as some seem to be over the problems of jurisdiction of war criminals or of finding existing and recognized law by which standards of guilt may be determined." However, Jackson also cautioned that "if you are determined to execute a man in any case, there is no occasion for a trial. The world yields no respect to courts that are merely organized to convict."

Thusly armed, Jackson set about forming a staff of attorneys for the coming war crimes litigation. Among the deputy prosecutors selected by Jackson were U.S. Army Gen. Telford Taylor, who later served as chief of counsel for War Crimes at the second round of trials held at Nüremberg before American judges between 1946 and 1949, and Thomas Dodd, who later served as a United States senator from Connecticut. He also opened an office in London, where he would meet with British, French, and Soviet representatives on the constitution and composition of the upcoming war crimes tribunal and its proceedings.

Jackson was not only America's chief prosecutor at Nüremberg, but also the president's representative at the Big Four talks in London during June-August 1945, where the rules of engagement for the International Military Tribunal would be written. Thus, Jackson possessed a power few prosecutors before or since him would have: to create the court before which he would appear, and to shape the substantive and procedural law which that court would apply to the cases he would present to it.

In giving shape to the Nüremberg trial, however, Jackson did not exercise absolute authority. Rather, he was obliged to work compromises in London with representatives of Britain, France, and the Soviet Union, each with its own separate legal tradition. In particular, Jackson attempted in London to reconcile the Anglo-American and Continental systems of jurisprudence. For example, Jackson and his London interlocutors had to fashion an indictment of those to be tried before the tribunal. In doing so, Jackson admitted that he "would not know how to proceed with a trial [as in Continental countries] in which all of the evidence had been included in the indictment. I would not see anything left for a trial, and, for myself, I would not know what to do in open court." In the end, Article 16 of the Charter of the International Military Tribunal, drafted as a compromise by Jackson and company at London, provided that "the Indictment shall include full particulars specifying in detail the charges against the Defendants."

Furthermore, Article 15(a) of the charter required the chief Allied prosecutors to undertake the "investigation, collection, and production before or at the Trial of all necessary evidence" (emphasis added). Arguing in favor of a more Continental approach, including an expedited form of trial practice and of a less rigid separation of the judicial and prosecutorial functions, was the Soviet representative, General Nikititchenko: "[T]he Soviet Delegation considers that there is no necessity in trials of this sort to accept the principle that the judge is a completely disinterested party with no previous knowledge of the case."

For his part, Jackson responded that the tribunal's "judges will have to inquire into the evidence and reach an independent decision....That is the reason why, at the very beginning, the position of the United States was that there must be trials, rather than political executions...(1) have no sympathy with these men [i.e., the likely defendants], but, if we are going to have a trial, then it must be an actual trial."

On August 8, 1945, Jackson was able to negotiate and obtain the Big Four's signatures on a Charter of the International Military Tribunal (IMT), an international executive agreement which provided for an independent panel of four judges (one each to be appointed by the American, British, French, and Soviet governments) responsible for drawing up its own rules of procedure, and empowered to impose convictions and sentences on war crimes defendants only upon the approval of at least three of its members. Furthermore, the charter which Jackson negotiated guaranteed to defendants the rights to detailed notice of the charges against them, to the assistance of counsel, to cross-examination of prosecution witnesses, to presentation of a defense, and to a full translation of court proceedings.

In return, Jackson agreed with his negotiating partners that the proceedings of the tribunal "need not be encumbered with the legalisms of Anglo-Saxon law." Article 19 of the charter stated: "The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to have probative value." Also, Article 18 required the tribunal to "confine the trial strictly to an expeditious hearing of the issues raised by the charges...."

On the subject of charges, Jackson helped in defining the following acts as crimes within the Jurisdiction of the tribunal for which individual responsibility could be found:

(a) Crimes Against Peace: namely, planning, preparation, initiation, or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing:

(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor members of the civilian population in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity:

(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

The charter's definition of war crimes was largely compatible with longstanding prohibitions in United States and international law, including Francis Lieber's Instructions for the Government of Armies of the United States in the Field, promulgated as General Orders No. 100 by President Abraham Lincoln on April 24, 1863, and the Hague Conventions of 1899 and 1907 Respecting the Laws and Customs of War on Land. However, the inclusion of crimes against peace among the charter's litany of actionable offenses was a bolder, more novel stroke by Jackson and the U.S. administration to, in the words of Telford Taylor, "establish the initiation of aggressive war as a crime under universally applicable international law." Also, the separate category accorded to crimes against humanity gave heightened legal attention and importance to the concept of "genocide" -- a concept newly named by a member of Jackson's Nüremberg staff -- the extermination of Jews and other minority groups under Nazi rule. The deputy prosecutor in question was Raphael Lemkin, who in later years lobbied intensively for U.S. ratification of the United Nations Genocide Convention.

Also on the subject of charges, Article 9 of the charter authorized the tribunal that a group or organization of which an individual defendant had been a member (e.g., the SS) "was a criminal organization." Article 10 in turn permitted any signatory state to the charter to bring individuals to trial in separate proceedings on charges that they had been members of such a criminal organization. "In any such case[s] the criminal nature of the group or organization is considered proved and shall not be questioned." Jackson pressed hard for the enactment of these provisions, because they "constitute[d] the means through which...a large number of people can be reached with a small number of long trials -- perhaps one main trial. The difficulty in our case [i.e., that of the United States] is that we have in the neighborhood of perhaps 200,000 prisoners. We don't want to have 200,000 trials."

On the subject of defenses, Jackson and the other Allied representatives prevented those at the top and those at the bottom of the Nazi chain of command from escaping legal responsibility for the criminal orders they gave or the ones they followed:

Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigation punishment.

Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

In his report to President Truman dated October 7, 1946, Jackson correctly concluded that the Charter of the IMT "made explicit and unambiguous what was theretofore...implicating International Law" -- that the planning and waging of aggressive war and the mass dislocating and killing of racial, religious, and ethnic minorities are crimes whose perpetrators, high and low, individual and organizational, will be held accountable for before the bar of justice. To Jackson, the charter was more than the rules of a particular court: "It is a basic charter in the international law of the future."

The Nüremberg Trial

On August 29, 1945, Jackson and the other Allied prosecutors announced the indictment of twenty-four persons for trial before the IMT. The defendants included:

Hermann Goering, Reichmarschal of the German Air Force, chief of War Economy, minister-president of Prussia, and, from 1939 until April 23, 1945, Adolf Hitler's designated successor.

Rudolf Hess, the person to whom Hitler dictated his venomous political testament, Mein Kampf ("My Struggle"), and Nazi party chairman, who in May 1941 had parachuted into Scotland (where he was interned as a British prisoner of state for the duration of World War 11) in a madcap effort to negotiate peace with King George VI.

Joachim von Ribbentrop, the Nazi German foreign minister who negotiated Japan's adherence to the European Axis and who collaborated in the identification, deportation, and extermination of European Jewry.

Wilhelm Keitel, Hitler's closest military adviser, head of the High Command of the German Armed Forces, who issued orders for the wartime execution of Soviet commissars and of non-German civilians who acted in opposition to Nazi rule.

Ernst Kaltenbrunner, head of the Reich Security Main Office of the SS, and in that regard, overseer of the German Gestapo (secret state police).

Alfred Rosenberg, Reich minister of Eastern Occupied Territories and principal Nazi party ideologist.

Hans Frank, Hitler's main legal adviser and his governor over much of Poland.

Wilhelm Frick, author of the Nüremberg Laws of 1935 which dispossessed German Jews, Nazi minister of the Interior, and Reichsprotector of Bohemia and Moravia (now the Czech Republic).

Julius Streicher, self-proclaimed "Jew-Baiter Number One," publisher of the anti-Semitic Nazi newspaper Der Stuertner ("The Storm"), and principal organizer of the 1935 Nüremberg Rally at which Hitler announced his new laws against the Jews.

Walter Funk, Nazi minister of Economic Affairs and president of the Reichsbank which helped finance German wartime aggression and the Final Solution of the Jewish Question.

Hjalmar Horace Greeley Schacht, high-ranking prewar Reich economic adviser who later joined the German resistance to Hitler.

Karl Doenitz, grand admiral of the German Navy, Hitler loyalist, and acting German head of state from April 30, 1945 (the date of Hitler's suicide) to May 22, 1945 (the date of Doenitz's arrest by Allied authorities).

Erich Raeder, German Admiral Doenitz's predecessor as naval commander in chief.

Baldur von Schirach, head of the Hitler Youth and Wartime Gauleiter (Nazi leader) of Vienna, Austria, whose paternal grandfather had served as a major in the U.S. Army during the American Civil War and as an honorary pallbearer at Abraham Lincoln's funeral.

Fritz Sauckel, Nazi party leader and governor of Thuringia, Germany, and Reich plenipotentiary for the mobilization of labor, including slave labor.

Alfred Jodl, chief of the Operations Staff of the German High Command.

Martin Bormann, Hitler's private secretary and head of the chancellery of the Nazi party, who was missing at the time of the Nüremberg trial and so was prosecuted there in absentia.

Franz von Papen, who preceded Hitler as German chancellor and who helped engineer Hitler's appointment as chancellor in January 1933.

Artur Seyss-Inquart, SS general, Reich governor of Austria, and Reich commissioner of the German-occupied Netherlands.

Albert Speer, a Hitler confidant and wartime German minister for Armaments and Munitions.

Konstantin von Neurath, von Ribbentrop's predecessor as Nazi foreign minister.

Hans Fritzsche, Nazi newscaster and second-ranking official under Josef Goebbels in the Nazi Propaganda Ministry.

Two other persons were also indicted: Robert Ley, founder and head of the Nazi German Labor Front and anti-Semitic agitator; and Gustav Krupp, dean of the German arms industry which supplied Hitler with the means for his war of aggression. However, Ley committed suicide in his Nuremberg cell on October 25, 1945, and Krupp was found unable to stand trial for health reasons by the IMT. By a three-to-one vote, the tribunal rejected Jackson's November 1945 request to substitute Gustav's son, Alfried Krupp, as a defendant. (Alfried Krupp was an SS member who had managed his family's armaments industry since his father's first stroke in 1941, and who had participated in the use of slave labor to achieve war production aims.) Only the Soviet judge voted to grant Jackson's motion.

The resulting proceedings before the Tribunal at Nüremberg were an enormous exercise, as reported by Jackson himself:

The trial began on November 20, 1945, and occupied 216 days of trial time. Thirty-three witnesses were called and examined for the prosecution. Sixty-one witnesses and 19 defendants testified for the defense; 143 additional witnesses gave testimony by interrogatories for the defense. The proceedings were conducted and recorded in four languages -- English, German, French, and Russian -- and daily transcripts in the language of his choice was provided for each prosecuting staff and all counsel for defendants. The English transcript of the proceedings covers over 17,000 pages.

In preparation for the trial, over 100,000 captured German documents were screened or examined and about 10,000 were selected for intensive examination as having probable evidentiary value. Of these, about 4,000 were translated into four languages and used, in whole or in part, in the trial as exhibits.

By far the most damaging evidence introduced against the defendants at Nüremberg were the "documents of their own making, the authenticity of which has not been challenged except in one of two cases." Jackson, his fellow prosecutors, and their staffs, therefore deserve great credit for their meticulous preparation of the paper trail which led the majority of the defendants from the dock to the gallows or prison.

It is therefore unfair and unfortunate that Jackson's performance at Nüremberg has been criticized, disproportionately so, for his March 1946 cross-examination of Hermann Goering. The expectations placed on Jackson for that examination were unrealistically high. For example, the alternate British judge at Nüremberg, Sir Norman Birkett, asserted that "It will be a duel to the death between the representative of all that is worthwhile in civilization and the last important surviving protagonist of all that was evil." Judged by such hyperbole, Jackson's plodding and somewhat long-winded manner of interrogation was deemed a failure in the face of Goering's confident and quick-witted style of response. At one point during his examination of Goering, Jackson's frustration with the witness, exacerbated by his fatigue from months of litigation and by his sense of public disappointment in his confrontational skills, caused him to dissolve into confusion as he asked, "Now, was the leadership principle supported by and adopted by you [Goering] in Germany because you believed that no people are capable of self-government, or that you believed that some may be, but not the German people: or for that matter whether some of us are capable of using our own system but it should not be used in Germany." In reply, Goering arrogantly but effectively stated that although he did not understand the question, he would try to answer it anyway. Goering was not to get away with murder, but he at least succeeded in getting Jackson's goat.

Nevertheless, Jackson and his fellow Nüremberg prosecutors were largely successful in their courtroom efforts. In its judgment of September 30, 1946, the International Military Tribunal found nineteen of the twenty-two defendants guilty on one or more of the counts of the indictment. Five defendants -- Goering, von Ribbentrop, Keitel, Rosenberg, and Jodl -- were convicted on all four counts of "a common plan or conspiracy," crimes against peace, war crimes, and crimes against humanity. Those five defendants, and the also criminally convicted Kaltenbrunner, Frank, Frick, Streicher, Sauckel, Bormann, and Seyss-Inquart, were sentenced to death. The remaining criminally convicted defendants received sentences ranging from fifteen years to life imprisonment. Only three Nüremberg defendants -- Schacht, von Papen, and Fritasche -- were wholly acquitted. The tribunal's Soviet judge, Nikitchenko, dissented from these acquittals and also argued for a death sentence for Hess. Furthermore, the tribunal found four Nazi organizations to be criminal in character: the leadership corps of the Nazi party; the SS; the SID, or Security Service of the SS; and the Gestapo. In the end, Jackson achieved the goal he and the U.S. government had set for the Nüremberg proceedings: a fair trial, with culpability apportioned to individuals and groups based only on the evidence provided to an independent tribunal.

Jackson's Closing Argument

Jackson's closing argument to the tribunal of July 26, 1946, was the first of four final speeches for the prosecution. Jackson in his argument focused on count one of the indictment and the evidence of a common plan or conspiracy. The British lead prosecutor, Lord Shawcross, then argued for convictions for crimes against peace under count two of the indictment. The French and Soviet prosecutors then spoke as to counts three and four -- war crimes against humanity.

In his closing argument, Jackson was clearly in his element. As one of his Nuremberg colleagues, Telford Taylor, noted: "Jackson had shaken off the malaise contracted in his encounter with Goering. He was most comfortable and skilled beyond his fellows, in the preparation and presentation of courtroom arguments. At the lectern he was the picture of confidence."

Jackson rose to the occasion of his argument and spoke as the advocate for civilization against those who had sought and almost achieved the conquest of the world.

Biography

An associate justice of the United States Supreme Court doesn't get to try cases; those days are long gone by the time an attorney makes his way to the most prestigious position in the American legal system -- unless that attorney happens to be Robert Houghtwout Jackson. Appointed to the Supreme Court in 1941 by President Franklin D. Roosevelt, Jackson was granted a leave of absence in 1945 to participate in the prosecution of Nazi war criminals. Jackson was to head the U.S. delegation and serve as the lead prosecutor.

The path that led Jackson to Nüremberg began in 1892, in Spring Creek, Pennsylvania. He received his legal training at Albany Law School, in Albany, New York. After graduating and passing the bar, he practiced law in Jamestown, New York, until 1934, when he was appointed general counsel for the U.S. Bureau of Internal Revenue in 1934.

Jackson prospered in Washington, D.C., and was tapped by FDR in 1936 to serve as assistant attorney general of the United States, where he distinguished himself by his skillful prosecutions of major U.S. corporations charged with violating antitrust laws. Promoted in 1938, he served as solicitor general of the United States for two years. In 1940 Jackson headed the justice Department after he was chosen to become U.S. attorney general. In 1941, FDR appointed him to the Supreme Court. He was also FDR's frequent fishing and poker-playing companion.

Four years after his appointment to the bench, Jackson's service was interrupted when President Harry S. Truman sent word to Jackson that his trial expertise was needed in Germany, asking him to serve as American chief counsel for the prosecution in the trials at Nüremberg. On May 2, 1945, Truman issued Executive Order 9547, appointing the fifty-three-year-old Jackson "as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal." He accepted; and on May 3, 1945, Jackson took the reins of what would prove to be one of the most significant trials in the history of humanity.

Following the Nüremberg trials, Jackson returned to the United States and his place on the Supreme Court. His writings include The Case Against the Nazi War Criminals (1946) and The Nürnberg Case (1947).

He remained a sitting (if sometimes absent) justice until his death on October 9, 1954.

Commentary

Jackson's summation at Nüremberg ranks among the finest arguments ever delivered; if ever there was a blueprint for a prosecution close, this is it. There are so many outstanding aspects of this argument it is difficult to know where to begin. First and foremost, Jackson recognized his role in this extraordinary trial. He had to take the vast scope of the Nazis' atrocities and give it a contextual framework in order to allow his jury, made up of the members of the IMT, to deal with the sheer enormity of the deeds. Next, he had to strike a clear and compelling central theme, one which would faithfully serve him through the argument and more importantly, strike a resounding chord with his jury. Third, he had to separate the wheat from the chaff, clear the trial of the peripheral material brought by the defense, and keep the jurors focused on the significant facts and relevant issues. Finally, Jackson had to organize the evidence to assist the jurors in dealing with the huge amount of evidence that was introduced.

It is difficult for the mind to come to grips with the Holocaust. The sheer enormity of the crimes is so beyond ordinary human experience that t