Crimes of the Holocaust: The Law Confronts Hard Cases

By Stephan Landsman

The problem of prosecuting individuals complicit in the Nazi regime's "Final Solution" is almost insurmountably complex and has produced ever less satisfying results as time has passed. In Crimes of the Holocaust, Stephan Landsman provides detailed analysis of the International Military Tribunal prosecution at Nuremberg in 1945, the Eichmann trial in Israel in 1961, the 1986 Demanjuk trial in Israel, and the 1990 prosecution of Imre Finta in Canada. Landsman presents each case and elaborates the difficulties inherent in achieving both a fair trial and a measure of justice in the aftermath of heinous crimes. In the face of few historical and legal precedents for such war crime prosecutions, each legal action relies on the framework of its predecessors. However, this only compounds the problematic issues arising from the Nuremberg proceedings.

Meticulously combing volumes of testimony and documentary information about each case, Landsman offers judicious and critical assessments of the proceedings. He levels pointed criticism at numerous elements of this relatively recent judicial invention, sparing neither judges nor counsel and remaining keenly aware of the human implications. Deftly weaving legal analysis with cultural context, Landsman offers the first rigorous examination of these problematic proceedings and proposes guideposts for contemporary tribunals. Crimes of the Holocaust is an authoritative account of the Gordian knot of genocide prosecution in the world courts, which will persist as a confounding issue as we are faced with a trial of Saddam Hussein. This volume will be compelling reading for legal scholars as well as laypersons interested in these cases and the issues they address.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: Mar 1, 2013
• ISBN: 9780812202571

Book preview

Prologue

In the face of the horrors of the Second World War, the international community struggled to come to grips with a radically new crime: genocide—the deliberate attempt to exterminate an entire people. This book traces the world’s halting development of a courtroom response to the Nazis’ effort to destroy all of Europe’s Jews in what has come to be referred to as the Holocaust. It analyzes the strengths and limitations of four of the most prominent proceedings conducted against alleged Nazi criminals using the tools of the Anglo-American legal tradition, and considers their significance for contemporary national and international tribunals.

The book begins in 1945 with the International Military Tribunal prosecution at Nuremberg, which focused on crimes committed by Adolf Hitler, the National Socialist Party, the Third Reich, and numerous followers who conducted a war of aggression and carried out their leaders’ commands to murder all of Europe’s Jews. The Nazis’ genocidal program was comprised of millions of criminal acts undertaken by tens or perhaps hundreds of thousands of henchmen. With the defeat of Germany, the world faced the unprecedented challenge of deciding how to deal with those perpetrators who had survived the death of their führer and his Thousand Year Reich. The victorious Allied powers decided to use the apparatus of the criminal law, rather than summary executions, and thereby expressed their desire for a new and, it was hoped, more effective response to the misdeeds of those who had committed among the most heinous and depraved acts in human experience. Equally important, they decided to establish an international tribunal as the forum in which to pursue their objective.

The legal systems of the United States, Great Britain, France, and the Union of Soviet Socialist Republics (which, apart from France, constituted the victorious World War II Allies) offered few precedents for dealing with crimes of such magnitude, especially when committed by people of other nations in their own land or on occupied territory. The International Military Tribunal’s prosecution drew on preexisting national justice systems (most particularly those of America and England), but converting them into mechanisms suited to the adjudication of the Nazis’ gravest crimes proved exceedingly difficult both because the crimes lacked a single geographical or political locus and because they involved the operations of an entire government’s bureaucratic apparatus. The Nuremberg trial did establish an indelible record of Nazi wrongdoing, and its verdict properly held individuals and groups responsible for war crimes and crimes against humanity. Yet the process was complicated by the contradictions inherent in treating defendants not only as individuals but also as representatives of entire groups; by the abandonment of traditional rules of evidence and their replacement by ad hoc procedures for the admission of documentary evidence and the examination of witnesses; and by the unequal resources allowed to the prosecution and the defense. Judged by the criteria of Anglo-American criminal justice, the Nuremberg trial was lacking in fundamental elements of fairness. These shortcomings did not much worry the world in 1945, in part because the judges who presided at Nuremberg provided salutary correctives to the procedural problems. However, the problems that marked the Nuremberg trial set unfortunate precedents for subsequent criminal prosecutions of individuals suspected of participating in the Nazis’ genocidal war against the Jews.

The successor trials of Adolf Eichmann in 1961 and of John Demjanjuk in 1986, both conducted in Israel, and the 1990 prosecution of Imre Finta in Canada have posed troubling questions. For the most part, each trial built on the approaches used at Nuremberg without significant reflection on the problems inherent in them. The trajectory of development has actually heightened difficulties in prosecuting genocidal acts. Each successive trial was more problematic and yielded less satisfactory results, notwithstanding the acquittal of defendants who were not proven to have committed the particular crimes for which they were charged.

A critical analysis of this record yields valuable insights as the world struggles to grapple with the challenge of genocide, which appeared in new forms toward the end of the twentieth century. The final chapter of this book focuses most of its attention on the international legal response to more recent acts of genocidal violence and the world’s attempts to create international forums to address such criminality. International criminal tribunals with significant resemblance to the International Military Tribunal at Nuremberg have been created in response to genocidal campaigns in the former Yugoslavia and in Rwanda. The final chapter also considers the strengths and weaknesses of these new initiatives in light of the world’s pursuit of Nazi criminals. It then turns its attention to the International Criminal Court, designed to extend the reach of international justice to a range of infamous misconduct.

The world’s effort to respond to genocide has been one of the most significant legal developments in the last fifty years. It has been profoundly influenced by the Anglo-American approach to adjudication through adversarial proceedings. As an American trial lawyer, legal academic, and Jew, I felt it was important to examine these developments and to ask whether we have succeeded in fashioning a system that is effective in prosecuting genocide and providing reasonable assurance regarding the punishment of those who commit it. I could think of no better way to approach that task than carefully to examine the records of the trial proceedings in what, by consensus, have been viewed as among the most significant adversarial proceedings against accused Nazi henchmen.

Chapter 1

Nuremberg

The prosecution of Nazi war crimes and crimes against humanity conducted at Nuremberg, Germany, in 1945–46 was unprecedented, both in the magnitude of the crimes it sought to address and in the international nature of the tribunal, the scope of its investigation, and the open character of the proceedings. Although crucial aspects of procedure were worked out during the trial, the shape of the tribunal, its charges and defendants, and the adversarial approach it adopted were outlined in advance by the victorious Allied powers.

The road to Nuremberg began when the Allied nations rejected arguments for the summary execution of Nazi leaders and negotiated an agreement intended to harmonize an array of potentially conflicting goals: the punishment of major Nazi war criminals through an International Military Tribunal (IMT); the creation of an authoritative record of the corrupt nature of the National Socialist regime; and a speedy resolution of the issue. The United States, Great Britain, France, and the Soviet Union had divergent international concerns and were subject to various domestic political pressures, so their agreement in principle was sketchy enough to leave significant procedural questions to the tribunal itself to resolve.

Establishing an International Military Tribunal

Defining Goals

The Allies’ determination to hold German leaders accountable for the atrocities committed by German forces across Europe increased as news reports of Nazi crimes against Jews and others in occupied nations reached the public during the final years of the war. Franklin Delano Roosevelt, Winston Churchill, and Joseph Stalin agreed that hearings to document Nazi misdeeds as well as punishment for war crimes were a fundamental Allied goal.

The Allies had previously threatened Axis leaders with prosecution for war crimes. For example, in August 1942, Roosevelt declared: When victory has been achieved, it is the purpose of the Government of the United States, as I know it is the purpose of each of the United Nations, to make appropriate use of the information and evidence in respect to these barbaric crimes of the invaders in Europe and in Asia. It seems only fair that they should have this warning that the time will come when they shall have to stand in courts of law in the very countries which they are now oppressing and answer for their acts.¹ The rhetoric of barbaric crimes committed by invading Germans (and Japanese) rallied American support at this juncture, even though the president envisioned the trials taking place in the oppressed countries after their liberation. In October 1942, the Americans and British set up the United Nations War Crimes Commission to consider what to do about the issue.² The USSR did not initially join in this effort but, in November 1942, set up the Soviet Extraordinary State Commission to Investigate War Crimes.

As the tide of battle turned in the Allies’ favor, discussions about how to punish war criminals took on a new seriousness. In the fall of 1943, American Secretary of State Cordell Hull, his Soviet counterpart, Vyacheslav Molotov, and British Foreign Secretary Anthony Eden jointly issued the Moscow Declaration, which contained an outline of the policy to be followed after the war. Those German officers and men and members of the Nazi party … who have been responsible for … atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they may be judged and punished according to the laws of these liberated countries. The above declaration is without prejudice to the case of the major war criminals whose offenses have no particular geographical localization and who will be punished by the joint decision of the governments of the allies.³ The declaration defined two categories of war criminals: those responsible for particular atrocities, massacres and executions, and major war criminals who devised the policy that Germany enforced throughout Europe. The first group would be sent back to the countries of their crimes for prosecution. The second group, whose offenses have no particular geographical localization, would be punished in whatever way the Allied governments agreed upon.

The British argued forcefully for the summary execution of top German leaders. At the conclusion of World War I, the British and the French had sought the trial of Kaiser Wilhelm II and several subordinate German officials, but the United States refused to support the proposal. To Britain’s chagrin, the kaiser fled to Holland, where he was granted asylum. The trials of lesser war criminals in German courts in Leipzig degenerated into a fiasco. Cognizant of their past experience and fearful of the difficulties of a protracted prosecution, the British maintained that Nazi leaders should be executed without benefit of trial. As ever more persuasive evidence of Nazi atrocities spread, government opinion in the United States seemed to drift toward the British position. In a September 9, 1944, memo to President Roosevelt, Secretary of the Treasury Henry Morgenthau, Jr., proposed that Germany be reduced to a vast expanse of farmland and that its leading war criminals be summarily executed. Morgenthau argued that trials would provide the Nazis with a forum for propaganda and pose the risk of creating martyrs for Hitler’s cause. Roosevelt brought Morgenthau’s proposal to his meeting with Churchill in Quebec, and, on September 15, 1944, the two leaders initialed the plan for summary executions.

Prominent members of the Roosevelt administration were horrified. The plan’s details were leaked to the press, and a public uproar ensued. This hostile public reaction led Roosevelt to reconsider. Secretary of War Henry Stimson quickly exploited this opening. From the outset, he had opposed the call for summary justice. In a memorandum to his key aide, Assistant Secretary John McCloy, written on September 9, 1944 (the same day as Morgenthau’s memo to the president), Stimson set forth an alternative to the firing squad: [T]he 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.⁴ Stimson sought basic American-style justice for those accused of war crimes.

The Soviet Union’s objections to the summary execution of German leaders proved decisive. When Churchill presented this plan to Stalin in October 1944, the Soviet leader emphatically rejected it. Stalin insisted, according to a Churchill cable to Roosevelt, that [t]here must be no executions without trial otherwise the world would say we were afraid to try them.⁵ In the terrible purge trials of the 1930s, Stalin had shown himself to be an enthusiast for public prosecution. Communist interrogators were adept at producing a persuasive courtroom show, and most noncommunist newspapers and governments were taken in by the charade. Moreover, the Soviets had already begun conducting their own war-crimes trials. In December 1943, they tried and convicted three German prisoners of war, along with a Russian, on charges of committing atrocities resulting in the deaths of 30,000 civilians in the city of Kharkov. The Soviet prosecutors obtained confessions from the defendants that included admissions that poison-gas vans and other methods of mass extermination had been used against the population.

Stimson responded to the collapse of the Morgenthau plan with a proposal to prosecute major Nazi war criminals by an international tribunal. Devising a feasible plan involved resolving a number of difficult questions. How would the prosecution of the major war criminals by such a tribunal relate to the prosecution of thousands of their subordinates by national justice systems? Would atrocities committed by the Nazis against other Germans before the outbreak of war also be subject to prosecution? Stimson submitted these questions to his staff, and on September 15 he received a proposal from Colonel Murray Bernays. Bernays suggested that the arch-criminals be tried not just as individuals but as representatives of Nazi organizations, such as the SS (Schutzstaffel) and Gestapo, which had conducted patently criminal operations. Once the defendants and the organizations they represented had been found guilty, the organizations’ remaining members would be held liable without elaborate trial and be sentenced in accordance with their positions in the organization. Bernays proposed that the leading Nazis be charged not only with specific war crimes but also with a more general conspiracy. Under Anglo-American law, once two or more criminals agree to pursue an unlawful end, all their acts in furtherance of that end may be punished. A conspiracy theory would allow Allied prosecutors to reach back to the beginnings of the Nazi regime in 1933 and argue that each brutal act had been conducted as part of a conspiratorial design. This approach would make it easier to connect individuals and organizations to criminal acts, without requiring that direct proof of each individual’s commission of or participation in the specific acts be offered at trial.

Secretary of War Stimson was enthusiastic about Bernays’s proposals, which offered solutions to the most obvious problems associated with an international tribunal. The conspiracy charge was particularly appealing to Stimson because previously, as a government prosecutor, he had successfully used the conspiracy strategy in a major antitrust case. Stimson mentioned Bernays’s ideas to Roosevelt in November 1944 and noted in his diary that the president gave his very frank approval when I said that conspiracy with … representatives of all classes of actors brought in from top to bottom, would be the best way to try it.⁶

The next step was to define the crimes with which Nazi leaders would be charged. In late November, Colonel William Chanler noted that the Bernays plan did not address the apparent illegality of the Nazis’ resort to aggressive war in violation of a series of treaties, including the Kellogg-Briand Pact of 1928, in which Germany had foresworn resorting to aggression. Stimson eventually embraced the idea of charging leading Nazis with launching an illegal war of aggression, thereby facilitating the introduction at trial of facts concerning the Nazis’ betrayal of a series of treaties and agreements as well as their effort to dominate Europe by force. President Roosevelt reviewed the proposal in January 1945 and wrote in a memo to Secretary of State Edward Stettinius that [t]he charges should include an indictment for waging aggressive war in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.⁷

The Stimson-Bernays-Chanler proposal was roundly criticized by other American policy makers. Attorney General Francis Biddle and Assistant Attorney General Herbert Wechsler expressed misgivings about the entire prosecutorial strategy. In a December 29, 1944, memo, Wechsler warned that the prosecution of misconduct before the onset of war would have the character of an ex post facto proceeding—unconstitutional under the Bill of Rights—in which the court found defendants guilty of acts that had not been legally defined as crimes at the time they were committed. Wechsler also challenged the idea of prosecuting organizations, arguing that it paved the way for guilt by association—also an infringement of civil liberties in U.S. terms. Furthermore, he argued, the Anglo-American concept of conspiracy was too unfamiliar and idiosyncratic a legal device to use in a trial in which European prosecutors and defendants would figure so centrally. Wechsler’s reservations were wise ones, as the experience at Nuremberg demonstrated, but no viable alternative was proposed.

The attractions of the Stimson-Bernays-Chanler scheme were too powerful to resist. The proposal seemed to obviate the need for thousands of separate trials of Nazi henchmen and German functionaries at lower levels of the organizational hierarchy and allowed proof of Nazi misdeeds before 1939. The conspiracy strategy linked individuals, organizations, and leaders with a whole string of heinous crimes committed within and beyond Germany. Attorney General Biddle eventually accepted the proposal, and the United States then proposed it to the European Allies.

The effort to secure British and Soviet agreement began at the February 1945 meeting of the Big Three at Yalta. The American delegation offered a memorandum calling for the trial of major Nazi war criminals by an international military tribunal on charges that included conspiracy, wholesale aggression, and organizational criminality. The American proposal was not adopted at Yalta, each of the Allies expressing a need to review the matter, but it established the framework for subsequent negotiations.

One of the remarkable features of the American proposal was that it pointed toward a massive trial focused not just on the criminal deeds of particular Nazi leaders but on the organizations they headed and the thousands of henchmen who belonged to those organizations. The story to be told at trial was not simply one of specific criminal acts but of an ongoing conspiracy that stretched from 1933 to the fall of the Third Reich in 1945. Such a case would, of necessity, be vast. The defendants called before the bar were there not simply in an individual capacity but as representatives of the Nazi system and its constituent organizations. The tensions inherent in treating a defendant as both an individual criminal and a stand-in for an entire organization or regime were woven into the fabric of the trial from the outset.

A key goal of the American proposal was to establish a definitive record of the evil workings of the entire Nazi regime. Stimson saw the trial as a way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate the system and prevent its recurrence.⁸ After his November 1944 conversation with Roosevelt, Stimson noted in his diary that the president regarded such a trial as valuable because it would establish a lasting record of what the Nazis had done. Roosevelt’s desire for a record appeared to be spurred by his recollection that, in the aftermath of the First World War, revisionist historians and isolationists had (with considerable success and, it can now be recognized, justification) challenged the notion of German responsibility for the 1914–18 conflict. Americans’ faith in the propriety of intervention in the Great War had been weakened, which had intensified popular resistance to involvement in international conflicts. Roosevelt felt that he had to contend with these forces of isolation and revision as he guided the United States in the war against Hitler and strove to establish the country’s leadership of the entire noncommunist world. Judge Samuel Rosenman, Roosevelt’s confidante and representative in post-Yalta negotiations with the British on the question of a trial, said of his leader: He was determined that the question of Hitler’s guilt—and the guilt of his gangsters—must not be left open for future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents. … In short, there must never be any question anywhere by anyone about who was responsible for the war and for the uncivilized war crimes.⁹ Similar sentiments were expressed by leaders of both major political parties and incorporated into a concurrent resolution unanimously adopted by the U.S. Congress in the spring of 1945 at the urging of California Congressman Cecil King.

Two leading American jurists who participated in the trial were committed to the creation of a record that would lay out in persuasive detail the Nazis’ foul history. Supreme Court Justice Robert Jackson, who was selected to head the U.S. prosecutorial team, declared in a June 1945 report to President Harry Truman: Unless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible the accusatory generalities uttered during the war. We must establish incredible events by credible evidence.¹⁰ These sentiments were echoed in the memoirs of former Attorney General Francis Biddle, who was chosen to serve as the U.S.-designated lead judge at the trial.¹¹

The goal of establishing a detailed record of the Nazi government’s reprehensible history required the compilation and presentation of a massive trial narrative. The story not only covered a wide range of criminal conduct by numerous Nazi organizations over a dozen years all across Europe but also had to provide authentic documentation that could withstand the most rigorous scrutiny. The trial became a gigantic project focused not solely on individuals and the crimes they committed but on the Nazi system as a whole. Prosecutors sought documentary proof because material created by the Nazis themselves would be the most difficult to discredit. Written records made by Hitler’s forces were better than witnesses, who might suffer lapses of memory on the stand and were vulnerable to charges that they were trying to curry favor or escape responsibility. Paper trails rather than human narratives were more likely to forge the unassailable record that Stimson, Roosevelt, Jackson, and Biddle all sought.

The desire for a record of National Socialist criminality implied a set of evidentiary restrictions as well. Two sorts of proof were considered irrelevant in light of the Allies’ goals. Evidence that sought to explain, excuse, or justify Nazi misdeeds would be inadmissible. The record the Allies sought to create was not a dispassionate historical assessment of the period between the end of the First World War and 1945; it was, rather, conceived as a catalogue of the Nazi criminal conduct that had warranted Allied action. Evidence of Allied war crimes was also ruled out of order. The tribunal was designed to concentrate on Nazi misbehavior; the actions of the Allies were irrelevant.

The advocates of an international tribunal wanted to get the proceedings under way in the most expeditious manner. Roosevelt and Stimson recalled that delay after the First World War had contributed to the failure to prosecute the kaiser and the frustration of the Leipzig trials. The sense of urgency that prevailed in official circles led to an inclination to begin proceedings before worrying about procedural niceties; these might be addressed on an ad hoc basis as the need arose. At the same time, the Allies were motivated by domestic and international political considerations to ensure that the tribunal complied with basic Anglo-American guarantees of procedural rights. The American public seemed to demand a trial that had the essential elements of an American criminal prosecution—as Stimson put it, at least the rudimentary aspects of the Bill of Rights. The desire for a full-dress trial tapped into strongly held (if, perhaps, naive) American beliefs about the role of morality and law in world affairs, which George Kennan called America’s legalistic-moralistic mind-set,¹² an approach he thought unworkable in the conflict-riven and power-obsessed world of international relations. Coupled with these domestic considerations was an international one: a jointly conducted trial would serve as an expression of solidarity and mutual respect among the victorious Allies. Such an undertaking provided a means for the United States and the USSR to work together to help establish a new world order, a goal that became increasingly important as tensions between the Allies began to mount with the approach of victory in Europe.

Outlining Process

On August 8, 1945, the Allies signed a formal document, called the London Agreement and Charter, outlining an international tribunal to prosecute Nazi war crimes. Negotiations among the four governments had taken place over three months that spring and summer. First came a concerted American effort to persuade the British to abandon their insistence on summary executions. President Roosevelt’s special emissary, Judge Rosenman, obtained British assent to a tribunal. Negotiations were temporarily interrupted by Roosevelt’s death on April 12, 1945. His successor, Harry Truman, a former judge, enthusiastically embraced the project. Truman instructed Rosenman to attend the U.N. conference in San Francisco, where he hoped that an agreement regarding the international tribunal could be reached. Between May 2 and 10, the Allies reviewed the question and tentatively agreed to formulate a plan. Simultaneously, on May 2, 1945, President Truman appointed Justice Robert Jackson of the U.S. Supreme Court as the head American prosecutor, called chief of counsel.¹³ The appointment of so prominent and highly regarded an American jurist as chief prosecutor sent a clear signal that the United States was committed to an international tribunal.

The tribunal’s character and procedure were defined over six weeks in negotiations that began in London at the end of June 1945. The four powers were represented by high-ranking officials, including Robert Jackson on behalf of the United States. The process took fifteen intense bargaining sessions. Because the four prosecuting parties—the United States, Great Britain, France, and the Soviet Union—had significantly different legal systems, each had to surrender some aspects of its national procedure. The Soviets, in particular, were not predisposed to favor a trial conducted along Anglo-American lines but preferred a public recitation of the defendants’ crimes followed by the imposition of predetermined death sentences. As the lead Soviet negotiator, Major General I. T. Nikitchenko, put it: We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [Yalta] declarations.¹⁴ Jackson was horrified by this suggestion and intimated that the Americans and Soviets might not be able to reach an agreement. Telford Taylor, one of the ranking members of the American prosecution team, suggests in his retrospective analysis of the trial that Jackson’s deep and abiding suspicion of the Soviets may have led him to seek to sabotage the negotiations so that the Americans and British could go it alone and avoid the taint of Soviet participation.¹⁵ The American, British, and Soviet heads of state were unwilling to abandon a joint trial and said so in the plainest terms in an August 2, 1945, communiqué from Potsdam, Germany. Facing substantial pressure from their respective governments, the negotiators reached an accord that was set forth in a two-part document.

Article 2 of the London Charter declared that the International Military Tribunal would consist of four member judges and four alternate judges designated by each of the four signatory powers. The term military was used to distinguish the tribunal from any existing court system and to indicate that it was the product of the powers that had defeated Nazi Germany through force of arms. The tribunal was intended to be a court of the victors, not a forum of neutral parties, a representative of the international community, or a court of the reconstructed nations. The IMT judges were the designated representatives of their governments and sought a sort of justice that reflected their own traditions. While the objective was a fair trial whose legitimacy would be beyond question, the prosecution was to be undertaken and judgment to be rendered by the powers that had won the war and defeated Nazism.

The charter incorporated the goal of telling the sweeping story of twelve or more years of Nazi oppression across Europe. Article 6 defined three categories of crimes to be prosecuted: crimes against peace, war crimes, and crimes against humanity. The first charge included the planning, preparation, initiation or waging of war of aggression. By this definition, all the momentous events of World War II from the German invasion of Poland in 1939 were rendered grist for the IMT’s mill. War crimes encompassed acts that transgressed the laws or customs of war, including murder or ill-treatment of civilian populations or prisoners of war. The third category, crimes against humanity, included actions that Nazis had committed both within Germany and in occupied nations. This heading encompassed such Nazi misdeeds as murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war.

The charter recognized the potential criminality of participation in the formulation or execution of a common plan or conspiracy to commit crimes covered by Article 6. The Americans hoped that the incorporation of the conspiracy concept would lead the court to hold the Nazis responsible for every wrong they had committed for as long as the party had been in existence. Although the court declined this invitation, the conspiracy charge opened the trial to the presentation of evidence of the widest possible scope. Virtually nothing the Nazis had ever done or said was beyond IMT purview. In the aftermath of the trial, the prosecutors underscored the singular enormity of their undertaking. In his final report to President Truman in October 1946, Chief of Counsel Jackson declared: It is safe to say that no litigation approaching this in magnitude has ever been attempted…. We have documented from German sources the Nazi aggressions, persecutions, and atrocities with such authenticity and in such detail that there can be no responsible denial of these crimes in the future…. No history of this era can be entitled to authority which fails to take into account the record of Nuremberg.¹⁶ The conspiracy charge could not be made to stick, yet it enabled prosecutors to achieve their equally central objective of compiling a comprehensive record of Nazi atrocities.

Article 9 of the charter authorized the tribunal to declare that any group or organization of which [a convicted defendant] was a member was a criminal organization. While the defendants were to be tried for their own crimes, they were also viewed as representatives of or stand-ins for the organizations with which they were associated. So significant was this representative function that Article 9 directed that members of targeted organizations who were not charged be allowed to seek leave to be heard by the Tribunal upon the question of the criminal character of the organization. The defendants’ guilt was not theirs alone but to be ascribed to a host of others. Prosecutors were authorized to probe not just what the defendants had done but what their organizational associates had done along with them.

Using the defendants in a representative capacity had both significant advantages and problematic implications. The prosecutors could mount a big case without involving an unworkably large number of defendants; all they had to do to bring a key organization before the tribunal was charge one of its members. Despite the convenience of using defendants as stand-ins for organizations, the strategy presented potentially serious conflicts. The selected defendant might be an arch-criminal, and his association with a particular organization might blacken that organization’s reputation unfairly. Conversely, the individual defendant might have had only the most limited contact with a particularly vicious organization, so he might be unfairly associated with a criminal operation. Those who outlined the IMT’s procedures assumed that the conduct of the defendants chosen would be congruent with that of the organizations on whose roster their names appeared and that the guilt of one could unhesitatingly be transferred to the other. These assumptions were untested and simplistic, and if they were invoked erroneously the entire approach could prove unfair to either the defendant or the organization with which the prosecutors associated him.

In another move to facilitate the prosecution’s pursuit of the big picture, Article 19 of the charter abrogated the application of technical rules of evidence and directed the tribunal to admit any evidence which it deems to have probative value—that is, affording proof of the charges under consideration. Under Article 21, the court was authorized to take judicial notice of facts of common knowledge as well as the contents of a vast array of U.N. documents and materials generated by committees set up in various allied countries for the investigation of war crimes. These provisions opened the IMT to an unparalleled flood of documentary material. The usual protective barriers erected in Anglo-American courts against unreliable documentary evidence are the hearsay rule and the authentication requirement. Under the hearsay rule, many out-of-court statements (whether written or spoken) are banned because the material cannot be tested to ensure the speaker’s sincerity, clarity, or soundness of perception, much less cross-examined to ensure the testimony’s accuracy, veracity, and consistency. The authentication requirement insists that the authorship or origin of each proffered document be proven before it may be admitted. With a single sentence, the Allies did away with these protections. The Allies had captured a vast trove of German documents, detailing their own crimes, so there was intense prosecutorial pressure to introduce this material. In the absence of evidentiary restraints, the trial would be flooded with documentary proof.

In its provisions regarding the scope of acceptable evidence, the charter adopted an approach to the prosecution that was implicit in the American proposals. While a troublingly broad range of evidence of Nazi crimes would be admitted, two kinds of potentially exculpatory evidence would be entirely excluded. The defendants would not be granted much latitude to offer historical explanations for Nazi policy or to demonstrate that the Allies had committed analogous war crimes. The IMT’s proof-taking process was carefully structured to ensure that such matters would be deemed irrelevant. The Soviets in particular desired to avoid any reference to troublesome aspects of their own conduct, especially the partition of Poland, the invasion of Finland, and the treatment of prisoners of war. Article 6 offered a means of cutting off the defendants’ attempts to introduce such materials by specifying that the trial was to be exclusively devoted to an examination of the wrongdoing of the major war criminals of the European Axis countries. Everything else, especially Allied misdeeds, was by definition outside the jurisdiction of the IMT. As a follow-up to this rather general proposition, Article 18 declared: The Tribunal shall (a) confine the Trial strictly to an expeditious hearing of the issues raised by the charges, (b) take strict measures to prevent any action which will cause unreasonable delay, and rule out irrelevant issues and statements of any kind. These forceful injunctions highlighted the prosecuting nations’ intention that the tribunal focus exclusively on Nazi offenses. The use of the words strictly and strict—terms that appear nowhere else in the charter, and indeed are an exception to its liberality of language regarding other rules of evidence and procedure—underscore this objective.

The charter outlined a fundamentally Anglo-American adversarial approach to trial. In a criminal case conducted under the adversarial system, the government and the defendants, through the prosecuting and defense attorneys, are responsible for the selection, presentation, and examination of evidence, including both documents and witnesses. This system assigns judges a less active role than in a European-style, inquisitorial system, in which the judge directs the trial to ascertain the innocence or guilt of the accused. Judges presiding over trials conducted on an adversarial basis may ask supplementary questions and rule on the admissibility of evidence that is proffered, but they are not key players in the fact-gathering process. The adversarial nature of the procedure to be followed by the IMT is reemphasized in Article 16(e), which details several of the enumerated rights of the accused: A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution.

As Jackson put it, the Americans and the British set out to follow the general philosophy of our system.¹⁷ In this respect, they certainly succeeded. Those alterations which were made to the adversarial approach were designed to try these cases in a reasonable length of time and without undue difficulties.¹⁸ In pursuit of expediency, the rules of evidence and the defendants’ protection against self-incrimination were removed. The negotiators added two European-style inquisitorial elements to the trial: the setting forth of full particulars in the indictment and an opportunity for defendants to make unsworn and unexamined statements to the tribunal if they so chose. Neither of these provisions had a substantial impact on the fundamental character of the proceedings.

The tribunal relied heavily on counsel for the selection, presentation, and examination of voluminous bodies of evidence. For the adversarial system to work fairly, counsel on the opposing sides must be more or less equal in skill and resources. The charter did little to address the issue of equality and vested the choice of defense counsel in the accused. It was doubtful that Nazis on trial in a shattered Germany could find counsel willing and able to press their cause vigorously. When the defendant Gustav Krupp sought the assistance of a British barrister, the General Council of the [British] Bar declared: It is undesirable that a member of the English Bar should appear for the defense.¹⁹ It appears that no American lawyers or other advocates trained in the adversarial system were approached or offered their services. The defendants were left to choose from German lawyers, inexperienced in the fundamentals of the system relied upon by the tribunal and fresh from the poorest imaginable training—twelve years of Nazi legal practice.

This unbalanced adversarial arrangement, coupled with the asymmetrical rules of evidence, produced a system with significantly fewer protections for the accused than criminal trials in the United States or Great Britain. The tribunal was open to a flood of written materials designated by the prosecution. Beyond a broad outline of procedure, stipulations allowing a great deal of the prosecution’s evidence to be admitted, and relevancy rules restricting potential offerings by the defense, the charter did little to fix the specifics of the procedure to be used in trying the case.

Rather than take the time required to sort out in advance the most important procedural questions that might arise, the planners, by Article 13, vested the tribunal with the power to draw up rules for its procedure. In October 1945, shortly before the trial began, and again in February 1946, just before the defendants began their presentations, the IMT promulgated procedural rules. This ad hoc, or spur-of-the-moment, approach to rule-making eliminated lengthy pretrial negotiations about procedure, but it rendered the tribunal vulnerable to charges that the rules it put in place were motivated by expediency or bias rather than by disinterested notions of fairness. The rules the court fashioned were bound to reflect what the judges felt was necessary in light of what was happening at trial. Dispassionate rule makers divorced from the press of immediate business and insulated from the substantive issues involved were nowhere in sight. Judges appointed as representatives of the countries prosecuting the case formulated its rules in the midst of the trial. It was a legitimate matter of concern that they might draft rules that would make their jobs easier or be of particular assistance to their governments pressing the charges.

The wide-ranging nature of the charges, the potentially vast array of proofs, and the looseness of the rules of evidence; the felt need for a speedy resolution, which stood in contradiction to the demand for scope; the tension between the individual and representative roles of the defendants; the imbalance of experience and resources between defense counsel and prosecutors;