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Volume 19, Fall 2006
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Nuremberg Trials 60th Anniversary
The Formulation of International Law
Long before 1945, a body of international law had been developed to deal with war crimes and the rules of war. Nevertheless, it was only in 1945 that there was an attempt of the international community to apply international law to war criminals.
Pre-Questions for students:
Think about international law, especially as it applies to war:
- What do you think people mean by international law?
- If you were making the laws of war, what would these laws be?
Mary Maudsley, Esquire, writes, "International law consists of agreements and treaties between and among nations, conventions, statutes and conventions adopted by the United Nations, as well as historical customs and practice."
Before World War II and the Holocaust, a body of international law, clarifying rules of warfare as well as the treatment of civilians and prisoners of war had evolved. Meetings among Allied leaders during World War II further clarified rules of war and set forth general guidelines for the treatment of war criminals. The following outline charts the evolution of international law, highlighting laws and decisions that would influence the process at the International Military Tribunal following World War II.
Dwight Eisenhower called the laws of war the product of the "military-industrial complex" (qtd in Taylor 5). In earlier centuries, for example the military made the laws, if we can call them that. Soldiers lived off the countries they had conquered, pillaging, raping, and destroying. This behavior was detrimental to the inhabitants but also to the economies of these occupied towns. Gradually soldiers became professionals, with regular pay, and thus distinctions were made between civilians and soldiers, requiring "respect for the lives and livelihoods of civilians" (Taylor 6). Originally these laws were not thought of as international law. During the nineteenth-century distinctions were made between the killing of soldiers and the killing of civilians (noncombatants). Laws about the treatment of prisoners of war were also formulated. These laws, however, were not codified; "they were known as customary law" (Taylor 8).
Laws of war developed during the 18th and 19th centuries. Particularly important in the early process was the creation of the Lieber Code.
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| Francis Lieber
Lieber Code (1863)
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Laws of war were first codified by Francis Lieber, a German emigrant to the United States, a citizen and professor at Columbia Law School. In 1863 he drafted the Lieber Code, 157 articles which dealt with prisoners, the rights of noncombatants, partisans, and spies. The code prohibits the use of poisons, cruelty, unnecessary violence and destruction. This code systematized and articulated "the accumulated practices and experiences of the previous century, customary law" (Taylor 9).
The Hague Conventions (1899, 1907)
Taylor writes that the international breakthrough occurred through the Hague Conventions of 1899 and 1907, conventions regarding war on land and sea, which were signed by a the United States, Mexico, Japan, Persia, Siam, and nineteen European nations (10). None of these laws stated penalties for violation of these general principles of conduct nor did they include a method of enforcement (Taylor 10). None of these laws addressed war by air because they pre-dated military aviation. Neither did these conventions or previous precedents impose penalties on aggressive warfare. However, these conventions were the basis for the international community's concern with "war crimes" post-World War I.
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| The Hague |
The Treaty of Versailles of 1919
In 1919 the Paris Peace Conference did address the question of trials for war crimes in the Treaty of Versailles. Yet no international tribunal was formed and eventually the Allies agreed that the Germans would try their own war criminals. Only six defendants were ever tried.
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| Versailles |
The Kellogg-Briand Pact of 1928
United States Secretary of State Frank Kellogg and French premier Aristide Briand wanted to end wars of aggression. The result of their efforts was the Pact of Paris, signed by more than 60 nations, including Germany. This pact included two principal provisions including war:
- Article I: The condemnation of war as the solution for international disputes and a renunciation of war as a national policy in relation with other nations.
- Article II: Agreement that disputes or conflicts would be settled by peaceful means.
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| Kellogg-Briand Pact of 1928 |
President Roosevelt's "Quarantine Speech" of August 1937
President Roosevelt who was concerned about the aggressive nations of Italy, Japan, and Germany. He spoke of "a reign of terror and lawlessness" that threatened the foundations of civilizations" (Sprecher 18-9). Roosevelt recommended quarantining these nations in order to prevent the spread of their aggression.
Churchill's Statement of March 1941 about Broader Social Justice
Churchill said that after the victory there was a good possibility of an "advance toward a grater and broader social unity and justice" than might have been possible in a time of peace (quoted in Sprecher 20).
The Atlantic Charter, August 1941
On August 11, 1941, Roosevelt and Churchill met off the coast of Newfoundland and signed a declaration known as the Atlantic Charter that contained their hopes for a better world. Two of the points are of particular importance:
- "Third, they respect the right of all people to choose the form of government under which they will live; and they wish to see the sovereign rights and self-government restored to those who have been forcibly deprived of them"
- "Sixth, after the final destruction of Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries and which will afford assurance that all men in all the lands may live out their lives in freedom from fear and want."
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| The Atlantic Charter |
The St. James Declaration, 1942
Representatives of nine occupied European countries met in London in January 1942 and signed the "St. James Declaration." At the end of the war they wanted to repress acts of vengeance by the public. They wanted to see through organized justice the punishment of those responsible for war crimes, those who had "ordered them, perpetrated them, or participated in them" (Sprecher 22).
The Casablanca Conference, 1943
Roosevelt and Churchill met in Casablanca, Morocco, in January 1943, deciding that they would seek "unconditional surrender" of Germany and Japan. Therefore, Nazi leaders could expect to be treated as war criminals.
The Moscow Declaration, 1943
At a conference in Moscow, attended by the foreign ministers of the United States, Great Britain, and the Soviet Union (Cordell Hull of the United States, Anthony Eden of Great Britain, and V. M. Molotov of the Soviet Union), a declaration was drafted and signed by Roosevelt, Churchill, and Stalin in November 1943. The declaration stated that because of the "evidence of atrocities, massacres, and cold-blooded mass executions" that offenders would be dealt with in two ways:
- Crimes occurring within a particular locale or setting, these offenders will be sent back to the countries in which their deeds took place and they will then be judged according to the laws of those countries.
- The major German leaders and the high officials who did not directly participate in the execution of crimes and whose offenses have "no particular geographic location will be punished by joint decision of the Government of the Allies."
The Yalta Conference, 1945
In order to discuss post war mechanisms and procedures for trials of major war criminals, Roosevelt, Churchill, and Stalin met in February 1945 in the Crimea at Yalta.
In reporting to the Congress on Yalta, President Roosevelt talked about the concept of "unconditional surrender" (Sprecher 33). Roosevelt said it did not mean "the destruction or enslavement of the German people . . . . It means for the Nazi war criminals a punishment that is speedy and just, and severe" (quoted in Sprecher 33).
Questions dealing with the formulation of international law:
- After World War I war criminals were not prosecuted. Yet during the course of World War II, the Allied leaders are already thinking about how to try the Nazi war criminals? Why do you think that it was so important that Nazi war criminals be prosecuted? Discuss.
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Robert H. Jackson,
Chief Counsel for the United States Prosecution
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The central personality at the International Military Tribunal was Robert H. Jackson, Chief Counsel for the United States prosecution team. Jackson was eminently qualified for the position. During the war Jackson had gained a reputation as an international law expert. He was dedicated to transforming international law from abstract concepts to concrete guidelines for governing the behavior of nations. From his perspective, international law was the only means for helping mankind achieve peace.
Robert H. Jackson Biography
Born in 1892 in Spring Creek, Pennsylvania, he was the son of a horse breeder. Without attending law school, he qualified as a lawyer and opened a private practice in Jamestown, New York. During the Roosevelt administration, he moved into public service. In 1938 he became the Solicitor General and two years later in 1940 he became the Attorney General. A year later (1941), he was appointed Associate Justice of the Supreme Court.
Throughout these years, he was a crusader for the rule of law. His appearance suggested his distinguished legal and public career. As the historians John and Mary Tusa have described, Robert Jackson was a thick-set man of medium height who frequently wore a "watch-chain across the waistcoat that had an inner white facing, a black jacket, striped trousers and gleaming spats." The British prosecutor, David Maxwell-Fyfe, captured the essence of Jackson's dedication to law:
In the truest sense of the word, he was a romantic of the law. For him, the vocation of the lawyer left dull huckstering and pettifogging things. It caught the full wind of the traditions of natural justice, reason, and human rights.
In 1941, Jackson's paper for the Inter-American Bar Association clearly stated that aggressive war was a crime and that courts should be established to deal with those who waged wars. Later that year at the American Bar Association meeting in Indianapolis, Jackson argued that even if the machinery for international law was not fully developed, it must be used to stop war.
Four years later, on April 13, 1945, Jackson addressed the American Society of International Law, arguing that true trials based on traditions of justice must be used for trying war criminals. Alarmed by Stalin's demand for show trials of Nazi war criminals, Jackson stated: "You must put no man on trial before anything that is called a court . . . under forms of judicial proceeding, if you are not willing to see him freed if not proved guilty. If you are determined to execute a man in any case, there is no occasion for a trial, the world yields no respect to courts that are merely organized to convict."
President Harry Truman who succeeded Franklin Roosevelt in April 1945 appointed Jackson to serve as the United States Chief Counsel for the prosecution of the Nazi war criminals. Jackson took a leave of absence from the Supreme Court to fill the appointment. Jackson spent much of the summer of 1945 in London, drafting the London Charter and Agreement that served as the basis for the Nuremberg trials.
From the opening of the International Military Tribunal until its closing in the fall of 1946, Jackson served his prosecutorial role with considerable vigor and dedication. After the international proceeding, he resigned his post to return to the U.S. Supreme Court where he was disappointed to learn that Truman had named Justice Fred Vinson as Chief Justice. Jackson had thought he was a prime candidate for the post.
Nevertheless, Jackson, the Chief American Prosecutor, believed he had made substantial accomplishments with his service at the International Military Trial. As explained by the Robert H. Jackson Center:
Despite his remarkable achievements in government service, Jackson believed his greatest accomplishments were the international legal principles established by the International Military Tribunal in Nuremberg, Germany, following World War II. Jackson served at Nuremberg as Chief of Counsel for the United States in charge of prosecuting the highest ranking Nazi leaders.
Jackson's brilliance and courage in bringing Nazi war criminals to justice set the standards for modern international law, standards to which the world continues to look today . . . .
On returning from Nuremberg, Jackson resumed his position at the Supreme Court and played a role in the unanimous decision for the desegregation of schools in 1954 (Brown v Board of Education).
Robert Jackson died in 1954 at the age of 62. His lifelong dedication to international law and respect for the rule of law earned him respect from the international legal community.
The Judges at the Nuremberg Trials
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| Nuremberg judges, left to right: John Parker, Francis Biddle, Alexander Volchkov, Iona Nikitchenko, Geoffrey Lawrence, Norman Birkett |
| Judges of the Nuremberg Trials |
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Geoffrey Lawrence (president) |
Norman Birkett (alternate) |
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Francis Biddle (judge) |
John Parker (alternate) |
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Henri de Vabres (judge) |
Robert Falco (alternate) |
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Iona Nikitchenko (judge) |
Alexander Volchkov (alternate) |
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Geoffrey Lawrence, 3rd Baron Trevethin and 1st Baron Oaksey, DSO, KC (1880 - 1971)
Lawrence was the main British Judge during the Nuremberg trials after World War II, and President of the Judicial group. From Radnorshire, England, Geoffrey Lawrence was the youngest son of Lord Trevethin, attended Haileybury and New College, Oxford.
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Soviet guard salutes the president of the International
Military Tribunal, English Lord Geoffrey Lawrence |
Lawrence was called to the Bar (Inner Temple) in 1906 to chambers specializing in taking appeal cases to the highest courts, the House of Lords. During World War I Lawrence served in France with the Royal Artillery; he was mentioned in dispatches twice and awarded membership of the Distinguished Service Order in 1918. After the end of the war he continued in membership of the Territorial Army until 1937. In 1932, he was appointed as a Judge of the King's Bench Division. With this appointment came the customary Knighthood. In 1944 Lawrence became a Lord Justice of Appeal in 1944.
He was chosen as an experienced judge to be the lead to Norman Birkett in the British delegation to the judicial group in the Nuremberg trials. He was then elected as President of all the Judges. His conduct of the trials was praised by many of those involved who appreciated his striving to understand the relevance of each piece of evidence and willingness to stop long-winded counsel. Lawrence was not an exceptional legal talent but won acclaim for delivering a very clear Judgment (largely penned by Birkett) that expressed the moral sense of the Court's conclusions. After the successful conclusion of the trials, Lawrence was given a Peerage as Baron Oaksey on January 13, 1947. www.wikipedia.com
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| Francis Beverley Biddle (1886 - 1968) |
The primary American judge during the Nuremberg trials. Biddle, one of four sons of Algernon Biddle, a law professor at the University of Pennsylvania, was born in Paris, where his family was living. Graduating from the Groton School, Biddle earned degrees from Harvard University: A.B. in 1909 and a JDD in 1911. He first worked as a private secretary to Supreme Court Justice Oliver Wendell Holmes, Jr. and then practiced law in Philadelphia for the next 27 years. In 1935, President Franklin D. Roosevelt nominated him to be chairman of the National Labor Relations Board; then four years later, Biddle became a judge on the United States Court of Appeals for the Third Circuit. He only served one year before leaving to become the United States Solicitor General.
In 1941 Roosevelt nominated him Attorney General of the United States. Serving in this position throughout most of World War II, Biddle is perhaps best remembered as Attorney General for his actions in directing the FBI arrest of "enemy aliens" on December 7, 1941 as the precursor to Executive Order 9066 which authorized the US Japanese internment camps of the second world war. At President Truman's request, he resigned after Roosevelt's death. Shortly after, Truman appointed Biddle as a judge at the International Military Tribunal at Nuremberg. www.wikipedia.com
Iona Timofeevich Nikitchenko (1895-1967) a judge of the Soviet Union. Nikitchenko presided over some of the most notorious of Stalin's show trials during the purges of 1936 to 1938. Nikitchenko was one of the three main drafters of London Charter. He was also the Soviet Union's judge at the Nuremberg trials, and was President for the session at Berlin. Nikitchenko's prejudices were evident from the outset. Before the Tribunal convened, Nikitchenko explained the Soviet perspective of the trials: The whole idea is to secure quick and just punishment for the crime."
True to form, Nikitchenko dissented against the three acquittals and argued for a death sentence for Rudolf Hess. Nikitchenko also famously said, in the lead-up to the trials, "If . . . the judge is supposed to be impartial, it would only lead to unnecessary delays." also on June 29, 1945. During the trials, the French judges suggested that a firing squad should be used for the military condemned. Nikitchenko fiercely resisted this, arguing that the accused were common criminals who had disgraced their military ethos and tradition. www.wikipedia.com
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Professor Henri Donnedieu de Vabres
(in middle) |
The primary French judge during the Nuremberg trials, with Robert Falco as his alternate. Prior to the war, Donnedieu had campaigned for the concept of an International Criminal Court while serving as a professor of Criminal Law at Paris University. Later in 1947, he would again submit his idea before the United Nations' Committee on the Progressive Development of International Law and its Codification.
During the trials, Donnedieu was noted for protesting the charges of Conspiracy to Wage War since he felt it was too broad to be served in such a monumental trial. As a corollary of this view, he strongly protested the conviction of General Alfred Jodl, stating that it was a miscarriage of justice for the professional soldier to be convicted, when he held no allegiance to Nazism. Jodl was later exonerated posthumously by a German court, citing Donnedieu's statement. Donnedieu was also the one to suggest that a firing squad might be a more honorable way to execute those found guilty, though that was strongly contested by the Francis Biddle and Iona Nikitchenko.
Along with Raphael Lemkin (the academic who devised the term genocide in his 1944 book Axis Rule in Occupied Europe) and Vespasian V. Pella, Donnedieu was consulted by John P. Humphrey to prepare the United Nations Secretariat Draft for the Convention on the Prevention of Genocide. www.wikipedia.com
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| The Right Honorable (William) Norman Birkett, 1st Baron Birkett, PC (1883 -1962) a noted British Barrister and judge who served as the alternate British Judge during the Nuremberg trials after World War II. |
Norman Birkett was a native of Lancashire, England, educated at Barrow-in-Furness Grammar School and at Emmanuel College, Cambridge. He was called to the Bar in 1913 and joined the chambers of the celebrated defense lawyer Edward Marshall Hall. Like Hall, Birkett specialized in criminal defense cases.
Birkett was a Liberal in politics and served briefly in Parliament for Nottingham East (which ensured a rapid rise to King's Counsel) from 1923 to 1924. In 1939 he was picked to head an Advisory Committee to oversee the internment of British citizens under Defense Regulation 18B and in 1941 he was made a Judge of the King's Bench Division. His experience in 18B cases and other wartime trials led him to be selected over more experienced colleagues to be the British Judge at the Nuremberg Trials. Because of his junior status the initial plan for him to be the leading Judge was revised and he became the deputy to Geoffrey Lawrence. Birkett resented the fact that Lawrence received a peerage after the end of the trials whereas he did not, although he was appointed to the Privy Council in 1947. www.wikipedia.com
John Johnston Parker (1885-1958) served as an alternate judge on the International Allied Military Tribunal at Nuremberg, Germany. Parker was born in Monroe, North Carolina, the son of John Daniel and Frances Johnston Parker. He received the Bachelor of Arts degree from the University of North Carolina at Chapel Hill in 1907 and a Law Degree in 1908. After leaving the University, Parker practiced law in Greensboro, North Carolina in 1908-1909, and then, from 1910 until 1922, he practiced law in his home town of Monroe. He was nominated for a number of public offices in the state by the Republican Party and ran against Cameron Morrison for governor in 1920. In 1924, he was elected Republican National committeeman from North Carolina and member of the Republican National Convention which nominated Calvin Coolidge. After serving as special assistant to the attorney general of the United States in 1923, Parker was appointed, in 1925, as one of the judges of the United States Court of Appeals for the Fourth Circuit. He would serve in this capacity until his death in 1958, at which time he was Senior Appellate Judge of the United States.
In 1930, Parker was nominated by President Herbert Hoover to the United States Supreme Court, but was defeated by one vote in the Senate as a result of political opposition. In particular, Parker was opposed by labor groups because of a decision he had written regarding the United Mine Workers and Yellow-Dog contracts, and by the NAACP because of remarks he had made in 1920 about African-Americans while a candidate for Governor of North Carolina. www.wikipedia.com
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| Biddle and Parker |
Lieutenant Colonel Alexander Fedorovich Volchkov the alternate Soviet judge during the proceedings. Before taking up the practice of law he had worked in the film business and as a prosecutor, criminal judge, and a diplomat.
Robert Falco was an alternate French judge. He was one of the main authors of the London Charter of the International Military Tribunal.
Reflection:
Think about and discuss the importance of the Allied Nations being represented in the International Tribunal.
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