Preparations for the Nuremberg Trials
The truth of what happened to Athenia emerged during the Nuremberg Trials of the chief Nazis that were held between 20 November 1945 and 1 October 1946. This page explains the background to the trials; the next will cover the relevant parts of the trials themselves.
The scale of the appalling deeds of Hitler and his associates are difficult to comprehend even now. They had taken over Germany and subverted all of its organisations, declared 'Aryans' to be the Master Race, terrorised or exterminated those who opposed them or were considered untermensch (sub-human) - a term they applied to Jews, Roma, Slavs, non-white people, plus the physically and mentally disabled, homosexuals and basically anyone else they disliked. They had invaded and laid waste to much of Europe and part of Russia - justifying this (to themselves at least) with the concept of Lebensraum (literally living space), and ultimately they brought about the ruination of Germany itself.
Many estimates have been made of how many civilians were killed by the Nazis - a mid-range estimate is 20,946,000 of which more than half were Russians. Estimates of the total number of deaths for WW2 across all nations is between 70,000,000 and 85,000,000. The latter figure equates to between 3.0 and 3.7% of the entire world population at the time.
At an early stage the Allies knew that at the end of the war they would need to deal with those who had committed war crimes. After WW1, trails and sentencing of Germans accused of war crimes had been delegated to German institutions but these had been extremely lenient and ineffective.
Well before WW2 was over, the governments of the Allied countries were discussing what to do. Clearly a different approach was needed to that applied after WW1 but what form should it take? The extent of the crimes was unprecedented and there was a need to satisfy the very different legal systems of several countries.
British policy was discussed by the British War Cabinet in December 1944. Like Joseph Stalin and Franklin D. Roosevelt, Churchill was initially in favour of summary executions of the key war criminals. Guy Liddell, head of counter-espionage at MI5, supported a plan drawn up by the director of public prosecutions, Sir Theobald Mathew, for selected Nazis to be 'bumped off' rather than put on trial, after a commission of inquiry had 'come to the conclusion' this was the preferred option.
Roosevelt came round to the view that the US public would not accept the British approach and would want senior Nazis put on trial. Stalin liked the idea of public trials as this was an established way of life in Russia and in his view could be used for propaganda. Churchill was out-voted and accepted the principle of putting the senior Nazis on trial and the question become more one of how should this be done.
Within the US there were two schools of thought proposed by Henry Morgenthau and Henry Stimson:
The US Treasury Secretary Henry Morgenthau proposed to completely and utterly destroy Germany's industrial infrastructure leaving it as a pastoral economy; to remove all Nazi supporters from their positions and use them as forced labour to rebuild the damage wreaked by the Nazis across Europe; and to demilitarise Germany completely and permanently. He also proposed to issue the names of the major war criminals to the military to summarily execute them when captured and identified.
I am sure that, if asked, a large part of the general population of Europe and Russia would have agreed with this approach due to the suffering they had been through as a result of the Nazis.
Morganthau's ideas were strongly opposed by Henry Stimson the US Secretary for War as likely to be both self-defeating and to cause even more problems for Europe. In a memorandum to the US President on 5 September 1944 he said:
It is primarily by the thorough apprehension, investigation and trial of all the Nazi leaders and instruments of the Nazi system of terrorism such as the Gestapo, with punishment delivered as promptly, swiftly and severely as possible, that we can demonstrate the abhorrence which the world has for such a system and bring home to the German people our determination to extirpate it and its fruits forever.
In a further letter to Roosevelt on 9 September 1944 Stimpson said:
.... the very punishment of these men in a dignified manner consistent with the advance of civilisation will have the greater effect on posterity ..... I am disposed to believe that, at least as to the chief Nazi officials we should participate in an international tribunal constituted to charge them.
Stimson also sent a memo to his Assistant Secretary John McCloy in which he insisted that:
... the method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgement, at least the rudimentary aspects of the Bill of Rights, namely notification to the accused of the charge, the right to be heard and, within reasonable limits, to call witnesses in his defence.
Murray Bernay's Proposal
The task of turning this high-level view into concrete proposals was delegated to Colonel Murray C. Bernays who produced a six-page outline of how the trials could proceed. Key parts of the Bernays approach were to put Nazi organisations like the SS on trial as well as individuals. By doing this, leaders and organisations could be tried at the same time and evidence used against individuals could be applied to the organisations they led and vice versa. He also introduced the idea of indicting the accused as 'criminal conspirators' with the leaders and institutions accused of plotting from the beginning all the crimes of which they were being accused. The single trial would have a dramatic impact and expose graphically to the German people the criminal nature of the Nazi regime.
Although some senior US lawyers derided the Bernays approach, it had a number of perceived advantages and was refined and largely adopted for the trials:
- It would simplify and shorten the proceedings and reduce costs
- It avoided the 'ruthless vengeance' of Morgenthau's approach
- The 'conspiracy' aspect seemed to make the wide range of Nazi crimes simple to understand
- If the organisations and leaders could be convicted it would be a lot easier to handle the trails of subordinates at a later date
The Bernays approach relied heavily on the concept of conspiracy which, although familiar in US and UK law, was not something Continental courts were used to. Continental courts expected charges and evidence related to criminal acts and criminal intentions of the top Nazis - but they had relied on subordinates to do the dirty work rather than getting their own hands dirty. As the plan was for an International tribunal, for the Bernays approach to be adopted, the German, French and Russian teams would need to accept the 'conspiracy' approach. There was also a problem that, even if the accused had been part of a conspiracy, there was no law in existence at the time so this was a case of an ex post facto law - one introduced after the 'crime' had been committed. The argument being that a person should have known, or could be expected to have known, that an act was illegal.
The Bernays approach also introduced a problem with acts, however appalling, committed by organs of a state on its own citizens - this was not covered by International Law at that time. A state could do what it liked to its own citizens with impunity under international law.
There was yet another problem with indicting someone because they belonged to an organisation that had been found guilty. A person who had been coerced to join an organisation that had been found guilty, or perhaps someone that had only just joined it, would potentially have been treated the same as a willing volunteer who had carried out many atrocities.
The Agreed Way Forward
Given the two opposing positions, a decision on the way forward had to be made by politicians. It seemed that Morgenthau's approach would succeed at first but the press became involved and there was a big public reaction against it in the United States. It was also opposed by the US departments of War, State and Justice.
Ultimately it was decided that there would be formal trials taking the form of International Military Tribunals. The fine details took months to agree and the negotiations between the USA, British, French and Russian representatives were long, involved and far too complex to go through here. Those wishing to learn more about the preparations for the trial should refer to Ann Tusa and John Tusa's book The Nuremberg Trial - reference on the Sources and Acknowledgements page of the website HERE.
The next matter to be considered was the wording of the indictments. Given the nature and extent of the crimes, what charges should be made and what was the legal basis for them?
The introductions to the indictments shown below are taken from the International Tribunal documentation which cover the indictments in great detail with specific examples under each indictment. You can access the text of these documents at either the Avalon Project or the Nizkor Project - links to both are on the Sources and Acknowledgements page of the website HERE.
|Count One: The Common Plan or Conspiracy||All the defendants, with divers other persons, during a period of years preceding 8 May 1945, participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity, as defined in the Charter of this Tribunal, and, in accordance with the provisions of the Charter, are individually responsible for their own acts and for all acts committed by any persons in the execution of such plan or conspiracy. The common plan or conspiracy embraced the commission of Crimes against Peace, in that the defendants planned, prepared, initiated, and waged wars of aggression, which were also wars in violation of international treaties, agreements, or assurances. In the development and course of the common plan or conspiracy it came to embrace the commission of War Crimes, in that it contemplated, and the defendants determined upon and carried out, ruthless wars against countries and populations, in violation of the rules and customs of war, including as typical and systematic means by which the wars were prosecuted, murder, ill-treatment, deportation for slave labor and for other purposes of civilian populations of occupied territories, murder and ill-treatment of prisoners of war and of persons on the high seas, the taking and killing of hostages, the plunder of public and private property, the indiscriminate destruction of cities, towns, and villages, and devastation not justified by military necessity. The common plan or conspiracy contemplated and came to embrace as typical and systematic means, and the defendants determined upon and committed, Crimes against Humanity, both within Germany and within occupied territories, including murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war, and persecutions on political, racial, or religious grounds, in execution of the plan for preparing and prosecuting aggressive or illegal wars, many of such acts and persecutions being violations of the domestic laws of the countries where perpetrated.|
|Count Two: Crimes Against Peace||All the defendants with divers other persons, during a period of years preceding 8 May 1945, participated in the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances.|
|Count Three: War Crimes||All the defendants committed War Crimes between 1 September 1939 and 8 May 1945, in Germany and in all those countries and territories occupied by
the German Armed Forces since 1 September 1939, and in Austria, Czechoslovakia, and Italy, and on the High Seas.
All the defendants, acting in concert with others, formulated and executed a Common Plan or Conspiracy to commit War Crimes as defined in Article 6 (b) of the Charter. This plan involved, among other things, the practice of "total war" including methods of combat and of military occupation in direct conflict with the laws and customs of war, and the commission of crimes perpetrated on the field of battle during encounters with enemy armies, and against prisoners of war, and in occupied territories against the civilian population of such territories.
The said War Crimes were committed by the defendants and by other persons for whose acts the defendants are responsible (under Article 6 of the Charter) as such other persons when committing the said War Crimes performed their acts in execution of a common plan and conspiracy to commit the said War Crimes, in the formulation and execution of which plan and conspiracy all the defendants participated as leaders, organizers, instigators, and accomplices.
These methods and crimes constituted violations of international conventions, of internal penal laws and of the general principles of criminal law as derived from the criminal law of all civilized nations, and were involved in and part of a systematic course of conduct.
|Count Four: Crimes Against Humanity||All the defendants committed Crimes against Humanity during a period of years preceding 8 May 1945 in Germany and in all those countries and
territories occupied by the German armed forces since 1 September 1939 and in Austria and Czechoslovakia and in Italy and on the High Seas.
All the defendants, acting in concert with others, formulated and executed a common plan or conspiracy to commit Crimes against Humanity as defined in Article 6 (c) of the Charter. This plan involved, among other things, the murder and persecution of all who were or who were suspected of being hostile to the Nazi Party and all who were or who were suspected of being opposed to the common plan alleged in Count One.
The said Crimes against Humanity were committed by the defendants and by other persons for whose acts the defendants are responsible (under Article 6 of the Charter) as such other persons, when committing the said War Crimes, performed their acts in execution of a common plan and conspiracy to commit the said War Crimes, in the formulation and execution of which plan and conspiracy all the defendants participated as leaders, organizers, instigators, and accomplices.
These methods and crimes constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilized nations and were involved in and part of a systematic course of conduct. The said acts were contrary to Article 6 of the Charter.
The Prosecution will rely upon the facts pleaded under Count Three as also constituting Crimes against Humanity.
Crimes Excluded from the Nuremberg Trials
One of the later criticisms of the Nuremberg Trials was that they excluded many events during the war as they were likely to be met with a Tu quoque defence. This form of defence is based on the principle that 'you did it as well'. As an example, the death of British civilians caused by indiscriminate air raids was not included in the indictments as the Allies had carried out even more damaging and lethal air raids on German cities such as Dresden and Cologne later in the war.
The Tu quoque defence was used successfully by the legal representative of Karl Dönitz who cited responses to written questions put to US Admiral Nimitz related to unrestricted submarine warfare carried out in the Pacific Ocean by the United States. However a Tu quoque defence was not accepted during the trial of Klaus Barbie "The Butcher of Lyons" who was finally extradited to France in 1984 and sentenced to life imprisonment.
Location for the Trials
Nuremberg was chosen as the place to put the major war criminals on trial. It had a suitable courthouse and it was a symbolic gesture as Hitler had held many rallies there and, in a sense, it could be considered as 'the birthplace of Nazism'. The courtroom had to be specially adapted for the purpose and a large organisation was put in place to manage the vast number of documents submitted as evidence and translation of the evidence and court documents into English, German, French and Russian.
Adolph Hitler, Joseph Goebbels, Martin Bormann and Heinrich Himmler had all committed suicide so evaded trial. The trials of the 24 major war criminals who had been apprehended started on 20 November 1945 and ended on 1 October 1946.
A further series of trials for those lower in the Nazi pecking order took place over the following years and covered those responsible for concentration and death camps, physicians involved in dreadful 'medical' experiments on prisoners, manufacturers - including I.G. Farben who had supplied Zyklon B chemicals used in the gas chambers at extermination camps, corrupt judges and lesser armed services and civil servants involved in killing and running the Nazi administration.
A system to enable a team of interpreters to instantaneously translate everything said in the courtroom was proposed by Colonel Leon Dostert - a US citizen who had been born in France and who was a native French speaker. Digital recordings and tape machines were not available but Dostert consulted IBM and a system of microphones and headsets was created for the purpose with a team of interpreters. The system was tested prior to the start of the trials and overall seems to have worked quite well although at first people complained about the earphones.
The accused and others in the court could thus hear what was going on in their own language. I think it is fair to say that most of those involved in the court proceedings were very overworked and under great strain - partly due to the appalling nature of some of the material they had to translate. The need for translation of proceedings into multiple languages continues to be a challenge for modern day institutions such as the International Criminal Court and even the European Union. At Nuremberg it was a new technique but the trails could not have been conducted without it. Dostert's model for instantaneous translation (albeit with much more modern equipment) remains in use today at the United Nations
The photo below from the US National Archives shows from left to right Capt. Macintosh of the British Army translating from French into English, Margot Bortlin translating from German into English and Lt. Ernest Peter Uiberall monitoring the translations.
The photo below from the US National Archives shows a group of interpreters in action. The front row being the English desk, the back row the French desk. Note that the interpreters have SLOW signs to ask speakers to slow down when necessary.
The end of the war in Europe was not a one-off event and happened over a period of time culminating in the signing of an unconditional surrender by General Alfred Jodl on 7 May 1945 at Reims in France. Eisenhower had issued an ultimatum that remaining German forces would not be allowed behind Western lines without an unconditional surrender and Jodl consulted Dönitz whom Hitler had appointed his successor in his will before committing suicide; Dönitz had agreed. The alternative would have been capture by the Russians and the Germans feared massive reprisals. Victory in Europe Day (VE Day) was declared on 8 May. Some German units did not surrender immediately and fighting went on for some days in certain areas.
Although fighting had ended in Europe, war had not ended in the Far East and Japan. Many troops were transferred there with fighting going on for another 3 months until the surrender of Japan following the dropping of atomic bombs on Hiroshima and Nagasaki.
In June 1945, 50 countries signed the United Nations Charter and pledged to maintain international peace and security. The war left millions of refugees and displaced persons and the aftermath of the wide damage done to the infrastructure of many European cities to deal with. During July and August 1945 meetings were held at Potsdam to decide the division of Germany and the nature of its occupation. This division would harden during the years of the Cold War and remain until the eventual re-unification of Germany in 1990.
There was great public interest in bringing the hated Nazi leaders to justice - particularly with more and more information coming to light about the atrocities that had been committed in death camps and elsewhere. The public wanted to know how preparations for the trials were progressing with the hope of retribution. You can see examples of the press coverage below.
24 July 1945
The Gloucester Citizen and other papers reported that the location of the war crimes trials would be Nuremberg and seemed very pleased to hear that Ribbentrop would be one of the first to be tried.
9 August 1945
The Yorkshire Post and Leeds Intelligencer reported that the International Military Tribunal will have its headquarters in Berlin and gave an overview of the makeup of the Tribunal and the indictments that would be made.
14 August 1945
The Derby Daily Telegraph and many other papers reported that the major war criminals were being flown into cells in Nuremberg.
20 August 1945
The Hull Daily Mail reported both the beginning of the trial of Major Vidkun Quisling in Norway and the arrival of more prisoners at Nuremberg and the conditions they would be kept in. They noted the removal of material that might be used to commit suicide - though this later proved not to insufficient in the case of Goering.
Vidkun Abraham Lauritz Jonssøn Quisling (1887-1945) was the founder of the Norwegian fascist party Nasjonal Samling (National Union). He attempted to seize power on 9 April 1940 as the German invasion of Norway was in progress but the Germans didn't support his government. He later served as Prime Minister of Norway from 1942-1945 leading a puppet Nazi government that came to be known as the Quisling Regime. He was put on trial for embezzlement, murder and high treason and executed by firing squad on 24 October 1945 - the Norwegians didn't waste time bringing him to justice. The term Quisling has become a byword for collaborator or traitor and a term of contempt.
30 August 1945
The Yorkshire Evening Post had a definite gloating tone as it painted a picture of the Nuremberg prisoners and their circumstances under the heading 'Head Gangsters'. And who can blame them.
15 September 1945
The Sphere carried photos of the preparation of the courtroom and Nuremberg and a typical cell used by the prisoners.
8 October 1945
The Nottingham Evening Post and other papers reported that Hess had been flown to Germany to join the other major war criminals for trial at Nuremberg.
27 October 1945
The Illustrated London News carried on its front cover photos of all those to be tried.
2 November 1945
Newspapers during November included a great deal of coverage of the Belsen and other concentration camp trials. They also continued to provide updates on progress with the main Nuremberg trial preparations.
The Yorkshire Evening Post announced the arrival of Raeder and Fritsche at Nuremberg - marking the assembly of the final Nazis on trial apart from the missing Martin Bormann - who was still being sought but was in reality already dead.
17 November 1945
The Liverpool Evening Express included a photo of the documentation related to the various accused.
The Hull Daily Mail announced that the trial would definitely start on 20 November - there had been many earlier suggestions that the start date would be postponed.
19 November 1945
The Aberdeen Press and Journal referred to a dress rehearsal of the language translation service that would be used during the trial.
The Liverpool Evening Express reported the ambition of US hangman John C. Wood to despatch any of the war criminals found guilty. He had voluntarily deferred his demobilisation date and was pictured posing with a hangman's rope. He later achieved his ambition but allegedly did not do a clean job of it.
The International Military Tribunal commenced on Tuesday 20 November 1945 with the reading of the indictments and pleas by the defendents.
31 December 1945
The cutting below from The Times makes a specific reference to Athenia and evidence being presented as part of the trail of Erich Raeder.