THE TRIAL OF THE CENTURY--AND OF ALL TIME, PART
Published in Flagpole Magazine, p. 6 (July 17, 2002).
Author: Donald E. Wilkes, Jr., Professor of Law, University of Georgia School of Law.
There were two blockbuster witnesses at the Nuremberg
Trial. When each of these two witnesses testified, the usual whispering
and murmur of activity in the courtroom died away until you could hear
a pin drop, spectators gasped silently, and all eyes focused in horrified
fascination on the testifying witness. The first of these star witnesses
testified on January 3, 1946. He was SS General Otto Ohlendorf, who
had commanded Einsatzgruppe D, a special 500-man military formation
of SS troops, Gestapo policemen, and Nazi intelligence agents which systematically
massacred Jews in the Ukraine after the German invasion of the U. S. S.
R. (Ohlendorf was hanged for his crimes in 1951.) Ohlendorf
was, in the words of Robert E. Conot, "a gem of veracity." Unlike
most Nazi mass killers, Ohlendorf freely admitted what he had done.
Ohlendorf answered some of the questions asked him as follows:
"What was the ultimate objective of Group D?"
The other star witness who electrified the courtroom was
SS Lt.-Col. Rudolf Franz Ferdinand Hoess, commandant of Auschwitz concentration
camp from 1940 until 1943. He testified (as a defense witness!)
on April 15, 1946. (Hoess, who was hanged for his crimes in 1947,
is not to be confused with one of the defendants on trial at Nuremberg,
Rudolf Hess, once Hitler's Deputy Fuhrer.) Like Ohlendorf, Hoess
frankly acknowledged the truth about the mass murder he had committed.
"Here, in Hoess," Ann Tusa and John Tusa have written, "were personified
all the Nazi virtues of duty, hard work, obedience; and all the worst of
Nazi callousness and bestiality. Here was a human being who had unleashed
horror on a scale beyond imagination." It was Hoess who had constructed
gas chambers capable of holding 2,000 people each. Some his testimony
was as follows:
"The instructions were that in the Russian operational
areas of the Einsatzgruppen the Jews, as well as the Soviet political commissars,
were to be liquidated."
"And when you say ‘liquidated,' do you mean killed?"
"Yes. I mean killed."
* * *
"Do you know how many persons were liquidated by Einsatz
Group D under your direction?"
"In the year between June 1941 and June 1942 the Einsatzcommando
reported ninety thousand persons liquidated."
"Did that include men, women, and children?"
"On what pretext, if any, were they rounded up?"
"On the pretext that they were going to be resettled."
"Will you continue?"
"After the registration, the Jews were collected at
one place; and from there they were later transported to the place of execution,
which was, as a rule, an antitank ditch or a natural excavation.
The executions were carried out in a military manner by firing squads under
"Didn't you exterminate about three million
Jews in Auschwitz?"
As spectators gaped, Hoess also acknowledged the truth of
an affidavit he had signed, which stated: "I commanded Auschwitz until
1 December 1943, and estimate that at least 2,500,000 victims were executed
and exterminated there by gassing and burning, and at least another half-million
succumbed to starvation and disease, making a total dead of 3,000,000.
This figure represents about seventy or eighty percent of all persons sent
to Auschwitz as prisoners."
"No. I never said three million."
"What did you say?"
"You said two and half million were gassed."
"And half a million died because of disease and
"Is that three million all together, or isn't it?"
"Yes. But not three million were exterminated."
Another reason the Nuremberg Trial is a landmark is that
it advanced and bolstered the cause of international protection of human
rights, especially where the human rights violations are committed by governments.
Large-scale violations of basic human rights were recognized as criminal
acts under international law, and individuals who had committed such violations
while clothed with the power of a modern state were brought to justice
Furthermore, the fundamental due process principle that
even heinous offenders are entitled to a fair trial and an adequate defense
was spectactularly reaffirmed by the way the Nuremberg defendants were
treated by the IMT. If there was anything repugnant to Nazis, it
was giving a criminal defendant a fair trial. Denying a man or woman
charged with crime a fair trial on the charges was not only Nazi
practice, but also a Nazi principle. One of the defendants, Goering,
for example, who like other Nazis had contempt for criminal defendants
and their attorneys, had boasted in 1934: "We deprive the enemies of the
people of legal defense... We National Socialists wittingly oppose false
gentleness and false humanitarianism... We do not recognize the fallacious
quibbles of lawyers or the monkey tricks of judicial subtleties."
The Allies, on the other hand, gave the Nazis what the
Nazis never gave anybody and what they would never have given the Allies–a
fair trial conducted in a dignified atmosphere, presided over by impartial
judges. The defendants were represented by competent, diligent, court-appointed
counsel, and the trial was conducted in what prosecutor Robert Jackson
called "solemn grandeur." There were times when testimony about Nazi
horrors plunged the courtroom into great sadness and sepulchral gloom;
there were interludes when the courtroom sagged with boredom; there were
rare moments of humor when the judges, the attorneys, the defendants, and
even the white-helmeted military police guards would laugh or smile.
But the tone in the IMT courtroom was usually one of deliberation, civility,
calmness, grave earnestness, and respect for rights of the accused.
There can be no greater contrast than that between the respectful judicial
decorum of the Nuremberg Trial and the inhumane show trials, the hideous
caricatures of justice featuring shouting, sardonic judges and browbeaten
accuseds, that the Nazis gave their defendants.
And while the Nuremberg defendants were confined in close
custody and under strict surveillance before and during the trial, they
were never subjected to the torture and cruelties that Nazis regularly
inflicted on their prisoners. There were no Gestapo cellars in Allied
The everlasting achievement of the Nuremberg Trial is
that it firmly established, as a governing rule of law, what has been called
"the Nuremberg principle," applicable to criminal proceedings generally.
The Nuremberg principle has two parts. First, the fact that the crime
charged was committed by a government officer or agent, whether high
or low, is no defense to the criminal charge, and also is not a matter
that mitigates punishment. Second, the fact that the crime charged
was committed pursuant to a government order or to superior orders is not
a defense to the crime charged, although it may be considered in mitigation
The ten hangings, which officially brought the Nuremberg
Trial proceedings to a close, continue to exert a morbid appeal.
The eleventh Nazi condemned to death, Goering, committed suicide in his
cell two hours before the executions were scheduled to begin.
The executions, in a brightly lighted prison gymnasium
where three looming black wooden gallows had been erected, were witnessed
by a handful of Allied military officers and eight journalists, one of
whom, Kingsbury Smith of International News Service, wrote a famous newspaper
article, "The Execution of Nazi War Criminals, 16 October 1946," based
on his eyewitness observations. Although Smith discreetly omitted
mentioning it, the experienced Army hangman, Master Sgt. John C. Woods,
botched the executions. A number of the hanged Nazis died, not quickly
from a broken neck as intended, but agonizingly from slow strangulation.
Ribbentrop and Sauckel each took 14 minutes to choke to death, while Keitel,
whose death was the most painful, struggled for 24 minutes at the end of
the rope before expiring.
To the witnesses, however, what was most striking about
the executions was not the death agonies of the Nazis, but the stern, unadorned,
Old Testament righteousness of the hangings. As Robert E. Conot wrote
of the ten executions: "It was a grim, pitiless scene. But for those
who had sat through the horrors and tortures of the trial, who had learned
of men dangled from butcher hooks, of women mutilated and children jammed
into gas chambers, of mankind subjected to degradation, destruction, and
terror, the scene conjured a vision of stark, almost biblical justice."
In 2000, a miniseries based on the Nuremberg Trial appeared
on TV. The miniseries, entitled Nuremberg, was inspired by
the Persico book, and starred Alec Baldwin as prosecutor Robert Jackson.
Surprisingly, perhaps, the miniseries was, with some exceptions, historically
accurate. The testimony of Hoess, the Auschwitz commandant, for example,
which so stunned the IMT courtroom, was depicted quite truthfully.
In fact, many of the courtroom scenes in the miniseries came verbatim from
the Nuremberg Trial's published transcript. Perhaps the best scenes in
the miniseries were when Alec Baldwin reenacted, quite accurately, Robert
Jackson's splendid opening and closing speeches for the prosecution–speeches
that authoritative lawyers regard as the greatest ever delivered
at a criminal trial.
Remarkably, the actors who portrayed the trial defendants
bore an amazing physical resemblance to the Nazi leaders actually tried.
The miniseries was also correct in implying that Goering was able to commit
suicide with a poison capsule only because of assistance given him by Capt.
Jack G. Wheelis, one of the military police guards. Since the publication
of Ben E. Swearingen's book The Mystery of Hermann Goering's Suicide
(1985), historians have generally come to accept Swearingen's conclusion
that Wheelis, an immature, impressionable U. S. Army officer from Texas
whom Goering showered with gift watches and jewelry, probably, out of mistaken
sympathy for Goering, allowed Goering access to stored luggage where the
poison was hidden, and then looked the other way as Goering went through
History, it must be pronounced, has vindicated
the Nuremberg Trial judge who, according to Telford Taylor, The Anatomy
of the Nuremberg Trials (1992), wrote in his personal diary before
the trial ended: "The historian of the future will look back to [the Nuremberg
Trial] with fascinated eyes. It will have a glamour, an intensity,
an ever-present sense of tragedy that will enthrall the mind engaged upon
The official legal citation to the Nuremberg Trial, the most monumental trial of the 20th century, indeed of all time, is United
States v. Goering, 6 F. R. D. 69 (Int'l Mil. Trib. 1946).
NUREMBERG TRIAL INDIVIDUAL DEFENDANTS
Note: All the defendants sentenced to death were
executed except Goering, who committed suicide.
(1) Hermann Goering, convicted on all 4 counts, sentenced
(2) Joachim Ribbentrop, convicted on all 4 counts, sentenced
(3) Wilhelm Keitel, convicted on all 4 counts, sentenced
(4) Ernst Kaltenbrunner, convicted on 3 counts, sentenced
(5) Alfred Rosenberg, convicted on all 4 counts, sentenced
(6) Hans Frank, convicted on 2 counts, sentenced to death.
(7) Wilhelm Frick, convicted on 3 counts, sentenced to
(8) Julius Streicher, convicted on 1 count, sentenced
(9) Fritz Sauckel, convicted on 2 counts, sentenced to
(10) Alfred Jodl, convicted on all 4 counts, sentenced
(11) Arthur Seyss-Inquart, convicted on 3 counts, sentenced
(12) Rudolf Hess, convicted on 2 counts, sentenced to
(13) Walter Funk, convicted on 3 counts, sentenced to
(14) Erich Raeder, convicted on 3 counts, sentenced to
(15) Albert Speer, convicted on 2 counts, sentenced to
20 years imprisonment.
(16) Baldur von Schirach, convicted on 1 count, sentenced
to 20 years imprisonment.
(17) Konstantin von Neurath, convicted on all 4 counts,
sentenced to 15 years imprisonment.
(18) Karl Doenitz, convicted on 2 counts, sentenced to
10 years imprisonment
(19) Hans Fritzsch, acquitted and released.
(20) Hjalmar Schacht, acquitted and released.
(21) Franz Von Papen, acquitted and released.