THE TRIAL OF THE CENTURY--AND OF ALL TIME, PART ONE

Published in Flagpole Magazine, p. 8 (July 10, 2002).

Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.

In a large red brick schoolhouse (the Ecole Professionelle et Technique des Garcons, which I visited in 1971) in Reims, France, Germany surrendered unconditionally to the Allies in the early morning hours of Monday, May 7, 1945.  CBS correspondent Charles Collingwood was there for the ceremony.  Shortly afterward he gave an eyewitness account of the surrender in a live radio broadcast which ended: "The most terrible war in human history had finally come to an end.  The mad dog of Europe was put out of the way, the strange, insane monstrosity that was Nazi Germany had been beaten into submission.  To millions of people this was the end of suffering.  It was perhaps the best news the world had ever had--the surrender of Reims had been signed."

The defeat of Nazi Germany brought to the forefront a problem the Allies had been grappling with for years-what should be done with the Nazi leaders who had not been killed, committed suicide, or escaped into hiding?  The Allies agreed that the top Nazi leadership could not allowed their liberty.  But beyond that the Allies were in sharp disagreement.  Some wanted to summarily execute the Nazi leadership without further ado.  Others wanted to place the Nazi leaders on trial and punish them only if convicted.

On August 8, 1945 the four principal Allies--the United States, the U. S. S. R., France, and England--signed the London Charter, an international agreement setting up the International Military Tribunal for the trial of the major war criminals of the European Axis countries.  Pressure from the United States, which strongly opposed summary executions of the Nazis, was the principal reason the Allies, after lively discussions, had decided to put the Nazi leaders on trial, rather than simply shoot them on the spot.  The matter was of such grave importance to the United States that as early as May 2, 1945, five days before Germany's capitulation, President Truman appointed U. S. Supreme Court Justice Robert H. Jackson as chief prosecutor of major Axis war criminals, whereupon Jackson took a leave of absence from the Supreme Court.

After the London Charter had been signed, the Allies decided to hold the trial in the German city of Nuremberg, partly because its Palace of Justice was one of the few courthouses still standing in bombed-out Germany, and partly because Nuremberg had been the site of annual Nazi party mass rallies and celebrations, making it a fitting place in Germany to put the leading Nazis on trial for their enormous crimes.  (Because the trial was for the benefit of the German people as much as for the Allies themselves, and also because of logistics, the trial had to be in Germany.)

The trial of the top Nazis that took place in Nuremberg between November 1945 and October 1946 is generally regarded by legal scholars as the Trial of the Century--the most important criminal proceeding of the 20th century.  But the Nuremberg Trial was even more.  It was, in the words of one of the presiding judges, not only a "trial unique in the history of jurisprudence," but also "the greatest trial in history."  "This trial," Robert Jackson, the chief American prosecutor, observed, "has a scope that is utterly beyond anything that has ever been attempted that I know of in judicial history."  As Robert E. Conot says in Justice at Nuremberg (1983): "The panorama was epic, the issues profound, the cast of characters unparalleled.  For the first time, the leaders of a nation were charged with international crimes committed on a scale so vast as to strain belief."

There are in fact many reasons why the Nuremberg Trial towers over all other trials and ranks as the mega-giant among legal cases.  Even putting to one side the atrocious criminality charged, the time span of the crimes, and the fact that the defendants had been high-ranking Nazi leaders utilizing governmental power to commit their crimes on a massive scale, nearly everything about the Nuremberg Trial must, in order to be comprehended, be couched in the superlative.  The findings, judgments, verdicts, and sentences of the trial court take up a whopping 133 double-columned pages in the Federal Rules Decisions, where the Nuremberg Trial is officially reported.  The English translation of the Nuremberg Trial's transcript, including documents introduced into evidence, is nearly 17,000 pages long, filling 42 thick published volumes.  The International Military Tribunal sat continuously in Nuremberg in 403 open sessions for a trial that lasted 10 months and 10 days, hearing 216 days of testimony from 125 witnesses.  Another 143 witnesses testified by submitting written answers to interrogatories.  Over 4,000 documents and 38,000 affidavits were introduced into evidence.

The Nuremberg Trial was the most publicized state trial in modern history.  Proceedings were public; attendance by interested persons and members of the press was encouraged; there were hundreds of seats in the large courtroom for spectators and reporters; the courtroom was packed; hundreds of reporters from all over the world attended the trial; and the events of the trial were headline news or given major coverage in newspapers and magazines all around the world for months.  More books and scholarly articles have been written on the Nuremberg Trial than on any trial in history.

No trial in history involved as much manpower as the Nuremberg Trial.  The number of lawyers and legal staff personnel was unprecedented.  The United States prosecution team alone consisted of 640 persons, including 150 lawyers.  Nor has any trial in history been accompanied by such elaborate security precautions.  During the trial the Palace of Justice was surrounded by hundreds of troops and five tanks armed with 75 mm guns; and scores of military police constantly patrolled the premises of the courthouse.  On September 30, 1946, the day the verdicts were returned, this formidable  protective force was reinforced by 1,000 additional troops.  These precautions were necessary.  The trial was, after all, taking place in Germany itself, and the defendants were, as Joseph Persico says in his Nuremberg: Infamy on Trial (1994), "the worst criminals mankind had ever known."

The indictment agreed upon by the prosecutors for the four signatories to the London Charter alleged the defendants were guilty of stupendous, inconceivable crimes.  The defendants, it was charged, had planned and started and savagely waged the most terrible and destructive war in human history; and while they were in power, it was further charged, the defendants, exercising Nazi state or party authority, had committed mass murders, genocide, religious and racial persecution, and other crimes of colossal depravity, for over ten years.

The indictment, 65 printed pages long, contained four counts.  Counts 1 and 2 charged Crimes Against Peace--that is, (1) conspiring to wage aggressive war, and (2) waging a war of aggression.  Count 3 charged War Crimes--killings of hostages, killings and ill-treatment of prisoners of war, killings and ill-treatment of civilian populations, use of slave labor, and other violations of the laws of warfare.  Count 4 charged Crimes Against Humanity--the persecution of the Jews, mass murder, genocide, extermination camps, gas chambers, mass enslavement, deportations, and wide-scale looting and plundering of public and private property.
 
In charging crimes of unspeakable hideousness committed over a decade as a matter of national policy, the indictment recited the worst crimes in human history ever prosecuted in court.  "In its concise, factual phrases it catalogues crimes so vast, so nightmarish," a contemporary newspaper wrote, "that it would seem at first impossible to convey the sense of them to the imagination."

There were 21 individual defendants present in court, all of whom had held high rank in the Nazi party or government.  In addition, there were seven Nazi organizations named as defendants, including the Gestapo (the Nazi secret police), the SS (which ran the concentration camps), and the SA (the Storm Troopers).

There can be no doubt about the guilt of those defendants who were convicted.  The evidence against them produced at the trial was overwhelming and conclusive.  By the time the trial ended, Joseph Persico writes, "[t]he four counts of the indictment had been proven indisputably and repeatedly, mostly through documentary evidence that the Germans had generated themselves."

What chief U. S. prosecutor Robert Jackson called "the Teutonic passion for thoroughness in putting things on paper" was, therefore, a disastrous mistake on the part of the Nazis because by keeping written records of their deeds the Nazis had guaranteed their own convictions.  Among the hundreds of thousands of documentary pages examined by Allied prosecutors there was, for example, Robert E. Conot tells us, an official file on the killings of mental defectives and inmates of homes for the elderly which contained this ghastly notation: "Hardly any mistakes have occurred so far.  Thirty thousand attended to.  Another hundred thousand to one hundred and twenty thousand waiting.  Keep the circle of those in the know as small as possible.  Today we will deal only with clear cases, one hundred percent executions.  Later on this will be enlarged."

There were reports to Heinrich Himmler, the sinister head of the SS, which, Persico recounts, "described how an enterprising SS team had filled a van with inmates of an asylum, had run the exhaust pipe into the back of the van, and then had driven to a graveyard.  By the time the vehicle reached its destination, the passengers were asphyxiated and ready for burial."  Some of these reports on the gas wagons bore a spine-chilling postscript: "Give my best to Frau Himmler and all the little Himmlers."

There were also the Todesb├╝cher, the "death books," at Mauthausen, one of the concentration camps where the Nazis committed mass murder of prisoners.  According to the death books, Persico notes, at Mauthausen "people, during a given hour, died in alphabetical order, one minute apart, all from heart attacks; the next hour all from strokes, the next hour from another imaginary cause."

Except for Hess and Frick, all the individual defendants took the stand and testified in their defense.  None of the defendants claimed the massacres committed by the Nazis had not occurred.  As Persico notes: "Not a single defendant at Nuremberg ever denied that the mass killing had taken place, only that he had lacked personal knowledge and responsibility."

The trial evidence belied the defendants' protestations of innocence.

For example, the evidence showed, in the words of journalist Kingsbury Smith, who attended the trial, that defendant Kaltenbrunner had been "Gestapo chief and director of the greatest mass murder Europe has seen since the Dark Ages."

The evidence showed that defendant Sauckel, to again quote Kingsbury Smith, "had been the slave-labor director and one of the worst of the blood-stained men of Nazidom ... [a] man who drove millions into bondage on a scale unknown since the pre-Christian era ..."  (In his closing arguments, prosecutor Robert Jackson accurately summarized the evidence against Sauckel by calling him "the cruelest slaver since the Pharoahs.")

The evidence showed that defendant Goering had founded the infamous Gestapo as a ruthless and murderous secret police unrestrained by law or courts.

The evidence showed that when defendant Seyss-Inquart took over as Nazi governor of occupied Holland in 1940 there were 140,000 Dutch Jews; when the Allies liberated Holland five years later only 8,000 Dutch Jews remained alive.  In a letter written to Adolf Hitler's secretary in February 1944, Seyss-Inquart proudly reported: "We have cleaned up the Jewish question in the Netherlands ...  The Jews have been eliminated from the body of the Dutch people ...  About 8-9,000 Jews have avoided transport by submerging [in hiding].  By and by they are being seized and sent to the East; at the moment, the rate of seizures is 5-600 a week.  The Jewish property has been confiscated and is undergoing liquidation."

And the evidence showed that defendant Frick, a Nazi lawyer and Minister of the Interior under Hitler, wrote the laws the Nazis enacted that legalized terrifying repression and persecution in Hitler's Germany.  Frick's speciality was, as Ann Tusa and John Tusa put it in The Nuremberg Trial (1990), "envisag[ing] the monstrous and cloak[ing] it in 'law.'"

Four of the convicted defendants had held high military rank: Field Marshal Keitel and Colonel General Jodl (both hanged), and two Grand Admirals, Doenitz and Raeder (both imprisoned).  Their convictions proved significantly that even professional soldiers obeying orders can be convicted and punished for offenses such as War Crimes and Crimes Against Humanity.  Keitel had signed and enforced orders for the murder of captured Allied fliers, paratroopers, and commandos, for the murder of Soviet commissars and Soviet prisoners of war, and for the shootings of hostages.  He had even ordered some Soviet Army prisoners branded.  Jodl too had approved orders for the murder of captured Allied soldiers.
 


CHRONOLOGY OF THE TRIAL OF THE CENTURY

 1945
May 2       President Truman appoints U. S. Supreme Court Justice Robert H. Jackson as "Chief Counsel for the Prosecution of Nazi Criminality."
Aug. 8      In London, the U.S., England, France, and the U.S.S.R. sign the London Charter, an international agreement establishing the International Military Tribunal (IMT) for the trial and punishment of the major war criminals of the European Axis countries.
Oct. 18   First formal (private) session of the IMT, in Berlin.  The eight judges (two from each of the four signatories to the London Charter) take their oaths.  The indictment is officially filed.
Oct. 19     The defendants are served with copies of the indictment in their prison cells in Nuremberg.
Oct. 25    One of the defendants, Robert Ley, who had destroyed labor unions and crushed organized labor in Nazi Germany, commits suicide in his cell.
Nov. 14  First public session of IMT, now sitting permanently in the Palace of Justice in Nuremberg.
Nov. 20  The trial begins.  The indictment is read in open court.  (The IMT will sit continuously for 10 months and 10 days, until Oct. 1, 1946.  There will be 216 days of testimony.)
Nov. 21   The defendants plead not guilty.  Chief U. S. prosecutor Robert Jackson begins the opening statements for the prosecution.

 1946
Jan. 3    Testimony of Otto Ohlendorf, head of Einsatzgruppe D, which massacred 90,000 Jews in Russia in 1941-42.
Mar. 4    Prosecution completes presentation of its case.
Mar. 8    Defense begins its case.
Mar. 18 Prosecutor Robert Jackson begins a 2-day cross-examination of defendant Hermann Goering.
Apr. 15   Testimony of Rudolf Franz Ferdinand Hoess, commandant of Auschwitz, called to the stand by defendant Kaltenbrunner.
July 20    Robert Jackson begins his closing argument for the prosecution.
Aug. 31   Presentation of evidence and arguments of lawyers are concluded.  The defendants are allowed to make personal pleas to the IMT.
Sept. 1   The IMT begins deliberations.
Sept. 30 The IMT delivers its verdicts today and on the following morning.  Eighteen of the 21 individual defendants are found guilty; 3 are acquitted.
Oct. 1     In the afternoon the 18 convicted defendants are sentenced.  Eleven of the top Nazis are sentenced to death; 3 are sentenced to life imprisonment; and the remaining 4 Nazis are sentenced to fixed terms of imprisonment ranging from 10 to 20 years.
Oct. 15 Two hours before his scheduled execution, Goering commits suicide in his cell.
Oct. 16 Between 1:16 a.m. and 2:57 a.m. the 10 remaining Nazi leaders sentenced to death by the IMT are hanged, one by one, in a gymnasium in their Nuremberg prison.