The Nuremberg Trials, 1945-46

What happened

On August 8, 1945, the United States, Britain, the Soviet Union, and France signed the London Agreement and its Charter, which created an International Military Tribunal and defined what it could prosecute. ¹ The court opened in Nuremberg on November 20, 1945. ¹ Twenty-four men were indicted and twenty-two stood trial. ¹ Adolf Hitler, Heinrich Himmler, and Joseph Goebbels had already killed themselves; Gustav Krupp was excused as too ill; Robert Ley killed himself before proceedings began; Martin Bormann was tried in absentia. ¹

Each of the four Allied governments supplied a judge and a prosecution team. ¹ Britain's Geoffrey Lawrence presided, with the tie-breaking vote. ¹ The chief prosecutors were Robert H. Jackson for the United States, Hartley Shawcross for Britain, Roman Rudenko for the Soviet Union, and François de Menthon and then Auguste Champetier de Ribes for France. ¹

The indictment ran to four counts: conspiracy to commit the other three crimes, crimes against peace, war crimes, and crimes against humanity. ¹ Two of those were close to new. The Charter's Article 6 defined crimes against peace as the "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances," and crimes against humanity as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population" along with "persecutions on political, racial or religious grounds." ³

Two further articles did the work that outlasted the trial. Article 7 said that a defendant's official position, "whether as Heads of State or responsible officials in Government Departments," would not free him from responsibility or reduce his punishment. ³ Article 8 addressed the defense every soldier and clerk was expected to raise: acting on the order of a government or a superior "shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." ³ Following orders could reduce a sentence, but under the Charter it could not clear a defendant. ³

Jackson opened the prosecution's case the next day. "That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason," he told the court on November 21, 1945. ⁴ He also said what the prosecution was after: "the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness." ⁴

The verdicts came in October 1946. Nineteen defendants were convicted and three were acquitted: Hjalmar Schacht, Franz von Papen, and Hans Fritzsche. ¹² Twelve were sentenced to death. ¹ Hermann Göring, convicted on all four counts, killed himself the night before the executions. ¹² Ten men were hanged on October 16, 1946, among them Wilhelm Keitel, Joachim von Ribbentrop, Ernst Kaltenbrunner, Alfred Jodl, Alfred Rosenberg, Hans Frank, Wilhelm Frick, Fritz Sauckel, Arthur Seyss-Inquart, and Julius Streicher. ² Streicher, the publisher of Der Stürmer, was convicted on the crimes against humanity count alone. ² The prison sentences ran from ten years for Karl Dönitz to life for Rudolf Hess, who served the full term and died in custody at 93. ² Albert Speer and Baldur von Schirach got twenty years each and were released in 1966. ²

Why it still matters

Three of the men in the dock were found not guilty and went home. ¹² Our view: that is the fact to keep in mind about Nuremberg, because a tribunal assembled by the victorious powers did not convict everyone the victorious powers put in front of it. The court also sorted convictions count by count rather than declaring the whole group guilty of everything, which is why Kaltenbrunner was convicted on two counts and Seyss-Inquart on three. ²

In 1950 the UN's International Law Commission wrote down what the trial had established, in seven numbered Nuremberg Principles. ⁵ Principle III holds that acting as head of state or a responsible government official does not relieve a person of responsibility under international law. ⁵ Principle IV says the same about acting on the order of a government or a superior, "provided a moral choice was in fact possible to him." ⁵ Principle V gives anyone charged the right to a fair trial on the facts and the law. ⁵ And Principle II closes the loophole that would otherwise swallow the rest, holding that a country's own laws failing to punish an act does not make that act lawful under international law. ⁵

There was a real limit built into the original design. Under Principle VI, crimes against humanity counted only when done "in execution of or in connection with any crime against peace or any war crime." ⁵ A government could persecute its own citizens in peacetime and fall outside the frame. That gap is roughly what Raphael Lemkin spent the rest of his life closing.

Lemkin, a Polish Jewish lawyer, coined the word genocide in his 1944 book Axis Rule in Occupied Europe, building it from the Greek genos, meaning race or tribe, and the Latin cide, killing. ⁶ He meant the coordinated destruction of a group's foundations rather than a tally of individual murders. ⁶ He helped prepare the Nuremberg case and got the word into the indictment against the Nazi leadership. ⁶ While he was there he learned that 49 members of his family, including his parents, had been killed. ⁶ He then took the argument to the new United Nations, which approved the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. ⁶ Today crimes against humanity are understood not to require an armed conflict at all and can occur in peacetime. ⁷

What Nuremberg produced was a procedure. A defendant can still say he was ordered to, and since 1946 a court has had a written basis for refusing to accept it. ³⁵ That is a smaller thing than the survivors were owed and a larger thing than existed before 1945. For the scale of what was lost, see our explainer on the Holocaust in numbers; for how the evidentiary record built at Nuremberg gets attacked, see the one on Holocaust denial and distortion.

The words you'll hear

The IMT. The International Military Tribunal, the four-power court created by the London Charter of August 8, 1945, which tried 22 major German defendants at Nuremberg from November 1945 to October 1946. ¹

Crimes against peace. Planning, preparing, initiating, or waging a war of aggression or a war in violation of treaties, the count that made starting a war itself a prosecutable crime. ³

Crimes against humanity. Murder, extermination, enslavement, deportation, and other inhumane acts against a civilian population, including persecution on political, racial, or religious grounds. ³ Under current UN usage these do not require an armed conflict and can occur in peacetime. ⁷

Superior orders. The defense that a defendant was only following orders. Article 8 of the Charter and Principle IV of the Nuremberg Principles both reject it as an excuse, allowing it at most as mitigation and only where no moral choice was available. ³⁵

The Nuremberg Principles. The seven principles the UN International Law Commission drew from the Charter and judgment and adopted in 1950, covering individual responsibility, the irrelevance of domestic law and official position, the right to a fair trial, the three categories of crime, and complicity. ⁵

Genocide. Lemkin's 1944 coinage, defined in the 1948 Convention as acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such. ⁶⁷