Nuremberg Vengeance of The Victors

JAN SCHNITZER
THE NUREMBERG JUSTICE TRIAL 1947

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VENGEANCE OF THE VICTORS ?
LLM THESIS
LAWS 591
FACULTY OF LAW
2010
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In memory of the victims of the German
judiciary between 1933 and 1945

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TABLE OF CONTENTS
ABSTRACT .................................................................................................. 9
ACKNOWLEDGEMENTS ....................................................................... 11
I INTRODUCTION ................................................................................ 13
II LEGAL BASIS OF THE TRIAL ........................................................ 19
A The Allies as the Controllers of the Legislative Power in
Germany after World War II ....................................................... 19
1 The legitimisation of the trial by Allied documents ................... 19
(a) Declaration on German Atrocities (Moscow Declaration
1943) ..................................................................................... 20
(b) London Agreement of 8 August 1945 .................................. 22
(c) Charter of the International Military Tribunal ..................... 25
(d) Allied Control Council Law No. 10 ..................................... 29
(e) Ordinance No. 7 of the US Military Government for
Germany ............................................................................... 31
(f) Judgment of the International Military Tribunal .................. 33
2 Compatibility with existing international law and customs....... 34
(a) Non-applicability of Hague Convention No. IV ......................
(Laws and Customs of War on Land) .................................. 34
(b) The issue of Germany‟s remaining sovereignty................... 37
(i) View of US Military Tribunal III ..................................... 38
(ii) Dissenting view of Judge Blair ........................................ 41
(iii) Evaluation .................................................................... 45
(c) The implementation of a purely US court ............................ 47
(i) Historical experience ........................................................ 48
(ii) The violation of the principle of separation of powers .... 51
B The Moral Necessity of the Trial ................................................. 55
C Conclusion .................................................................................... 59
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III INVOLVED PARTIES .................................................................... 61

A The Tribunal ................................................................................. 62
1 The judges and their qualifications ........................................... 63
2 Independence of the judges from US post-war politics ............. 65
3 Conclusion ................................................................................. 67
B The Prosecution ............................................................................ 69

1 The prosecutors and their qualifications ................................... 70
(a) Taylor ................................................................................... 72
(b) LaFollette ............................................................................. 73
2 Conclusion ................................................................................. 74
C The Defendants ............................................................................. 76

1 Selection criteria ........................................................................ 78
(a) General aspects..................................................................... 79
(b) Individual aspects ................................................................. 80
(i) Officials of the Reich Ministry of Justice ........................ 81
(ii) Members of the National Socialist People‟s Court .......... 82
(iii) Members of National Socialist Special Courts ............ 84
2 Conclusion ................................................................................. 85
IV TRIAL-PROCEEDINGS ................................................................. 89
A The Creation of a New International Criminal Law .................. 90
1 The charges and their development ........................................... 91
(a) Conspiracy to commit war crimes and crimes against
humanity ............................................................................... 92
(b) War crimes ........................................................................... 94
(c) Crimes against humanity ...................................................... 96
(d) Membership in criminal organisations ............................... 100
2 The ex post facto principle (nullum crimen sine lege, ...................
nulla poena sine lege) .............................................................. 103
3 Individual liability.................................................................... 108
4 The tu quoque argument .......................................................... 111
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5 Conclusion ............................................................................... 114
B Fairness of the Trial ................................................................... 115

V JUDGMENT OF THE TRIBUNAL ................................................. 121
A General Remarks ........................................................................ 121
1 The Tribunal’s analysis of the German law under the Nazis .. 122
(a) Ermaechtigungsgesetz (Enabling Act 1933) ...................... 123
(b) Arbitrariness in criminal law .............................................. 124
(c) Discrimination against minorities ...................................... 127
(d) Expansion of the German law on occupied territories ....... 128
(e) Courts and the law of procedure ........................................ 129
(f) The execution of the law in Nazi Germany ....................... 131
(i) Hitler as supreme judge.................................................. 131
(ii) Execution of Hitler‟s will ............................................... 133
(iii) Outcome ..................................................................... 135
2 The Tribunal’s evaluation of the legality of Nazi laws ............ 137
(a) Habitual criminals .............................................................. 138
(b) Plunder in German territory ............................................... 138
(c) Crimes against the wartime economy ................................ 139
(d) Undermining military efficiency ........................................ 139
(e) Treason and High Treason ................................................. 141
(f) The Nacht und Nebel Erlass (Night and Fog Decree)........ 142
(g) Racial persecution .............................................................. 144
3 Conclusion ............................................................................... 146
B Individual Verdicts and Sentences ............................................. 147

1 The Tribunal’s evaluation of the defendant’s role ........................
in Nazi Germany ...................................................................... 149
(a) Schlegelberger .................................................................... 149
(b) Klemm ................................................................................ 151
(c) Rothenberger ...................................................................... 153
(d) Lautz ................................................................................... 155
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(e) Mettgenberg ....................................................................... 156

(f) von Ammon........................................................................ 157
(g) Joel ..................................................................................... 158
(h) Rothaug .............................................................................. 160
(i) Barnickel, Petersen, Nebelung and Cuhorst ....................... 163
(j) Oeschey .............................................................................. 164
(k) Altstoetter ........................................................................... 167
(l) Engert and Westphal .......................................................... 168
2 The Tribunal’s relatively mild sentencing ............................... 169
3 Conclusion ............................................................................... 170
VI LEGACY OF THE TRIAL ............................................................ 175

A The Establishment of a New International Criminal Law ....... 175
1 Development ............................................................................ 175
2 Criticism................................................................................... 178
3 Conclusion ............................................................................... 180
B The Failure of the US War Crimes Trial Programme .............. 182

1 The upcoming Cold War .......................................................... 183
2 The resistance of Germany’s post-war judiciary ..................... 186
3 The amnesties of the 1950s ...................................................... 191
4 Conclusion ............................................................................... 194
VII CONCLUSION ............................................................................... 199

APPENDIX: PICTURES FROM THE TRIAL .................................... 207
BIBLIOGRAPHY .................................................................................... 213
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ABSTRACT
Nuremberg became famous for the 13 Nuremberg Trials against the leading
German officials after World War II. Following the first trial against the remaining Nazi
leaders before the Allied International Military Tribunal in 1945-1946, the United States
initiated 12 subsequent proceedings against leading members of all areas of Germany‟s
society. The Justice Trial against 16 representatives of Nazi Germany‟s judicial system was
the third of these trials and held before US Military Tribunal III in 1947.
Organised and held under the aegis of the United States as one of the war‟s victors,
the trials were seen by many as simple acts of vengeance, hidden behind a smokescreen of
legality. Therefore, especially in post-war Germany, the trials were often described as
victor‟s justice. Yet, besides investigations relating to specific aspects of this allegation, a
profound analysis of this issue has not been done for the Justice Trial.
This study aims to help in closing this gap. Focussing on the issue of victor‟s
justice, the work analyses and evaluates all stages of the Justice Trial, from its legal basis,
to the planning and preparation, to the proceedings and judgments, to the enforcement of
the sentences after the trial. In the end, it is concluded that only two aspects, the violation of
the principle of separation of powers and the restriction to initiate trials only against
German nationals, can be seen as examples of victor‟s justice.
All other aspects cannot be proved as examples of victor‟s justice; whether

Germany‟s state sovereignty was violated, whether the judges were impartial, whether the
ex post facto principle was violated, whether the defendants could be held individually
responsible, whether the defendants received a fair trial, whether the trial was justified from
a moral point of view, whether the defendants were selected for appropriate reasons,
whether the Tribunal analysed and evaluated the Nazi legal system and the defendant‟s role
therein reasonably, whether the US judges and prosecutors were qualified enough, and
whether the early release of the convicted defendants in the 1950s was arbitrary.
The Justice Trial and all other Nuremberg Trials, in many ways, set unique
precedents for international criminal law. The legacy, therefore, is primarily a positive one.
Thus, overall, it is concluded that the limited examples of victor‟s justice within the Justice
Trial do not ultimately undermine these achievements.
The text of this paper (excluding abstract, table of contents, footnotes, bibliography and
appendices) comprises approximately 49,608 words.
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ACKNOWLEDGEMENTS
I wish to first acknowledge and thank my supervisor, Dr Grant

Morris, for his advice, guidance and patience throughout the working
process. I also want to thank Jonathan Dempsey, who always helped when
needed.
Further, I thank my dear friends Marc, Norbert, Katrin and Dominik,

who especially helped me during the first half of my study when difficult
times in private life almost prompted me to end this project.
I thank my family for their long-distance encouragement and

support, and particularly my Mum, who made one of the longest possible
journeys on earth to stand beside me when I needed someone close.
In the second half of my study, I primarily worked in room 227 of

the Law library, and I want to thank my fellow students and roommates Joy,
Symone, Rani and Jule for their company during this time.
Last but not least, I thank my flatmates Tina and Ange for creating
an atmosphere in which I felt at home and for always listening when I
needed to talk.
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I INTRODUCTION
The name Nuremberg became well known for the trial against the
German major war criminals after World War II. On 1 October 1946, the
International Military Tribunal sentenced prominent Nazis like Hermann
Goering, Rudolf Hess and Albert Speer, among others, to death or long time
imprisonment.1 The judgment itself was a document of historic significance,
which for the first time brought to light the enormous number of violent
crimes committed by Nazi Germany. Furthermore, this trial was one of the
first and most important steps on the way to an accepted international
criminal law, which did not really exist prior the event.
Reporters, politicians, writers and the world public stood still when it
came to the reading of the judgment by the Tribunal; afterwards, people
attempted to get back to a normal life, especially in Europe where the war
had left millions without a home and with terrible trauma. However, the
four major allied winners of the war, the United States of America, Great
Britain, the Soviet Union and France, had decided that there needed to be
more trials to investigate the atrocities carried out by Nazi Germany before
and during World War II.2
Originally, it was planned that the International Military Tribunal

would continue its work and proceed with a series of trials following the
trial of the major war criminals but, for different political and strategic
reasons relating to the upcoming Cold War, it remained the only trial held
by the International Military Tribunal.3 Though, by Allied Control Council
Law No. 10, enacted on 20 December 1945, each of the four Allies received
1
The United States of America, the French Republic, the United Kingdom of Great Britain
and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann Wilhelm
Goering and others (International Military Tribunal) (1945-1946) I Trial of the Major War
Criminals before the International Military Tribunal 365-367.
2
Jonathan Friedman “Law and Politics in the Subsequent Nuremberg Trials, 1946-1949” in
Patricia Heberer and Juergen Matthaeus (eds) Atrocities on Trial: Historical Perspectives
on the Politics of Prosecuting War Crimes (University of Nebraska Press, Lincoln, 2008)
75-77.
3
Ibid, 76-77.
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the power to establish their own courts for trying Nazi criminals within their
occupation zone.4 The city of Nuremberg, as the location where the major
trial was held, was part of the American zone of occupation; therefore, the
United States Military Government for Germany was in charge for the so
called subsequent Nuremberg proceedings.5
Since the International Military Tribunal had already established the

criminality of war crimes, aggressive war and crimes against humanity,
these trials were for the purpose of determining the guilt of second-tier
Nazis accused of those crimes.6 As many as 185 defendants, representing
different sectors of German society, were indicted before American military
tribunals in a series of 12 trials.7 The defendants were grouped according to
their main area of activity, namely medical, legal, ethnological, economic
and political.8
From 17 February 1947 until 18 October 1947, the third of these

subsequent trials was held under US Military Tribunal III, charging the
representatives of the legal group with several crimes.9 It was the case of
The United States of America v Josef Altstoetter and others, generally
known as the Justice or Judges’ Trial.
In his opening statement for the prosecution, Chief Prosecutor

Brigadier General Telford Taylor stated:10
This case is unusual in that the defendants are charged with crimes
committed in the name of the law. These men, together with their
deceased or fugitive colleagues, were the embodiment of what passed for
justice in the Third Reich. Most of the defendants have served, at various
times, as judges, as state prosecutors, and as officials of the Reich
Ministry of Justice. All but one are professional jurists; they are well
4
M Cherif Bassiouni Crimes against Humanity in International Criminal Law (2 ed,
Kluwer Law International, The Hague, 1999) 531-532.
5
Ibid, 533.
6
“Subsequent Nuremberg Proceedings” www.ushmm.org (last accessed 16 March 2010).
7
Friedman, above n 2, 75.
8
“Nurnberg Military Tribunals: Indictments” www.loc.gov/rr/frd (last accessed 16 March
2010).
9
The United States of America v Josef Altstoetter and others (Justice Case) (1947) III
Trials of War Criminals before the Nuernberg Military Tribunals under Control Council
Law No. 10 (Case No 3) 3-6.
10
Ibid, 31.
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accustomed to courts and courtrooms, though their present role may be

new to them.
The Justice Trial was a difficult one for the American occupants as
well as for the German public. Most of the accused men were not obviously
evil like some of the defendants in the major trial before. During the Nazi
reign, all 16 defendants were officials in the Reich Ministry of Justice or
members of the People‟s Court and Special Courts in Germany.11 They had
served for the German Government following and applying the given
legislation in Nazi Germany. Therefore, this trial, like all other Nuremberg
Trials, was often under fire for being victor’s justice.
The German jurisprudence could not accept that the Nazi crimes had
been punished on the basis of international law; especially the violation of
the rules of the ex post facto principle was criticised.12 Hence, generations
of German post-war jurists were taught that Nuremberg was victor‟s justice
and, even today, some jurists treat the Nuremberg Trials as questionable.13
Accordingly, my thesis will analyse the question to what extent victor‟s
justice was really committed within the Justice Trial.
Among the winners of World War II, the United States made clear
from the beginning that there had to be some punishment of the Nazi
officials.14 Yet, instead of using martial law and just shoot or imprison the
responsible Germans, the US Government favoured regular court trials.15
However, many people were and are still convinced that these trials were
purely a creation of the victors to exercise vengeance on the Germans.
The term victor’s justice is strongly connected with the concept of

vengeance. It was especially popular in post-war Germany and “implies the
imposition of an alien, largely inappropriate, and unfair legal procedure
11
Ibid, 3.
12
Klaus Baestlein “Der Nuernberger Juristenprozess und seine Rezeption in Deutschland”
in Lore Maria Peschel-Gutzeit (ed) Das Nuernberger Juristen-Urteil von 1947 (Nomos
Verlag, Baden-Baden, 1996) 9.
13
Ibid.
14
Robert K Woetzel The Nuremberg Trials in International Law with a Postlude on the
Eichmann Case (rev ed, Stevens, London, 1962) 3-5.
15
Telford Taylor “The Nuremberg Trials” (1955) 55 Colum L Rev 488, 499.
16
against the vanquished.”16 Regarding this issue, a lot of literature is

available relating to the trial of the major war criminals, but not much work
has been done for the subsequent trials and, among these, particularly not
for the Justice Trial. Thus, this thesis will investigate different aspects of
what could be seen as victor‟s justice within the Justice Trial and will
evaluate them. The paper is structured chronologically, based on the
historical facts. Within each chapter, the facts of the trial will be detailed
and questioned using different aspects of victor‟s justice.
The question of victor‟s justice is broad and vague. Therefore, it is

necessary to divide it into several sub-questions, which will be asked and
answered in their respective chapters. The outcome will be an overall
conclusion that argues either to what extent the Justice Trial was only the
framework for exercising vengeance on the defeated Germans or that
victor‟s justice was not committed in this trial.
Chapter II analyses the legal background of the trial by examining

the following issues:
Who had the legal and political power in Germany at the time of the
trial? Were the Allies entitled to legislate for the German territory?
Was the trial legitimated by existing international law?
Why did a German court not deal with this case?
Why did the Tribunal consist only of judges from the United States?
Was there a moral necessity for such a trial?
In chapter III, the involved parties of the trial will be introduced and
the issues of victor‟s justice will be analysed by discussing the following
questions:
16
Patricia Heberer and Juergen Matthaeus “Introduction: War Crimes Trials and the
Historian” in Patricia Heberer and Juergen Matthaeus (eds) Atrocities on Trial: Historical
Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press,
Lincoln, 2008) xv.
17
Were the US judges sufficiently qualified to judge over jurists from

another legal system?
Were the deciding judges of the Tribunal independent from US post-

war politics?
Was the prosecution counsel sufficiently qualified to accuse jurists

from another legal system?
What were the criteria for selecting the defendants?
Chapter IV looks at the trial proceedings and focuses on the

following questions:
Were the charges, especially the count of crimes against humanity,

compatible with existing rules of criminal law? What about the ex
post facto principle? Could the defendants be held individually
responsible?
Was the tu qouque argument a valid argument used by the defence?
Did the defendants receive a fair hearing?
Chapter V analyses the judgment of US Military Tribunal III and

discusses the following questions:
Did the Tribunal analyse and evaluate the German legal system
under the Nazis appropriately?
Did the Tribunal evaluate the role of the defendants in Nazi

Germany appropriately?
Why were the individual verdicts relatively mild compared to

sentences given in other trials at Nuremberg?
Finally, in chapter VI, the legacy of the Justice Trial and of the
Nuremberg Trials in general will be discussed by examining the following
questions:
18
Why did the US Military Government initiate only this one trial
against members of the Nazi judiciary and many other German
jurists were not tried at all?
Why were all convicted defendants released long before the end of
their prison terms?
A conclusion will be drawn in chapter VII stating that before, during

and after the trial there were certain issues that have to be seen as victor‟s
justice. However, by looking at the whole situation after World War II, it is
exceptional how the Allies, and in particular the United States, dealt with
the defeated Germans. The atrocities committed by Nazi Germany, not only
in conquered territories during the war but also within Germany itself, were
unique in world history and needed a significant response. The Nuremberg
Trials gave such a response and were, in respect to the given circumstances,
an exceptional and admirable way to deal with those responsible for it.
Nuremberg set a precedent for international law, and the Justice Trial
clarified once and for all that no jurist should ever again just apply the given
law of one‟s country without paying respect to the most basic moral
principles of humankind. The few aspects within the Justice Trial that have
to be evaluated as examples of victor‟s justice do not ultimately undermine
these achievements. Therefore, although it was the victorious Allies who
presided over the vanquished Germans, the Nuremberg Trials in my opinion
cannot be seen as vengeance of the victors.
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II LEGAL BASIS OF THE TRIAL
This chapter analyses the question whether victor‟s justice can be

seen in the establishment of US Military Tribunal III, and will conclude that
this is not the case as the Allies legally exercised governmental power in
Germany after World War II.
After the war, the victorious Allies divided the German territory in
four occupation zones. The Military Government of each Allied Power
became authorised to rule and legislate for their part of the German territory.
It will be shown that the enacting of new laws by the Allied authorities to
create a legal basis for the trials of Nazi war criminals did not violate
international law, although the reasons differ among experts.
Furthermore, this chapter will deal with the question of whether the
Justice Trial was necessary in a moral way, an argument those responsible
in the US administration always stressed as a major reason for the
Nuremberg Trials. It will be concluded that there truly was a moral
necessity for the conduct of the trial. After the outrageous atrocities
committed by the Nazis within their own country, hidden behind a
smokescreen of alleged legality, there was no better way to deal with it.
A The Allies as the Controllers of the Legislative Power in Germany

after World War II
1 The legitimisation of the trial by Allied documents

20
(a) Declaration on German Atrocities (Moscow Declaration 1943)
The Moscow Declaration from 30 October 1943 is the real starting

point of the legitimisation process for the International Military Tribunal
and also for the subsequent US military tribunals.
Previously, several official actions were taken by statesmen and

governments: President Roosevelt of the United States and Prime Minister
Churchill from Great Britain simultaneously warned the Axis Powers,
namely Germany, Italy and Japan, on 25 October 1941 that retribution
would follow in the wake of their crimes.17 On 21 August 1942, President
Roosevelt warned again and issued a statement “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 to answer for their acts.”18
Prime Minister Churchill declared on 8 September 1942 “that those

guilty of war crimes will „have to stand up before tribunals in every land
where the atrocities have been committed.‟”19 The Governments in exile of
nine German-occupied countries issued the St. James Declaration on 13
January 1942 in London, wherein they explicitly rejected punishment by
acts of vengeance and promulgated “that the signatory powers „place among
their principal war aims the punishment, through the channel of organized
justice, of those guilty of or responsible for these crimes‟”20. Furthermore,
on 7 October 1942, the decision of seventeen nations to form the United
Nations Commission for the Investigation of War Crimes was announced in
Washington and London.21
17
Woetzel, above n 14, 3.
18
Whitney R Harris Tyranny on Trial: The Evidence at Nuremberg (Southern Methodist
University Press, Dallas, 1954) 4.
19
20
Yves Beigbeder Judging War Criminals: The Politics of International Justice (St.
Martin‟s Press, New York, 1999) 32.
21
Woetzel, above n 14, 4. The Commission was finally established in October 1943, but it
was not more than a weak evidence-collecting body that left investigations to its member
states. By the time Nuremberg was in the works, it was unceremoniously dismantled. Gary
21
However, until the Moscow Conference there was no joint

declaration of the major Allied Powers, who at the time were the United
States, Great Britain and the Soviet Union only. At the conference, the
representatives of these countries, President Roosevelt, Prime Minister
Churchill and Soviet-leader Stalin, debated for the first time together about
what should happen to the German officials after the war. In the end, they
declared the following:22
The United Kingdom, the United States and the Soviet Union have
received from many quarters evidence of atrocities, massacres and cold-
blooded mass executions which are being perpetrated by the Hitlerite
forces in the many countries they have overrun and from which they are
now being steadily expelled. The brutalities of Hitlerite domination are no
new thing and all the peoples or territories in their grip have suffered from
the worst form of government by terror. ...
At the time of the granting of any armistice to any government which may
be set up in Germany, those German officers and men and members of
the Nazi party who have been responsible for, or have taken a consenting
part in the above 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 and of the free governments which will be created therein. ...
The above declaration is without prejudice to the case of the major

criminals, whose offences have no particular geographical localisation
and who will be punished by the joint decision of the Government of the
Allies.
Although the outcome of this statement finally resulted in the

Nuremberg Trials, to the three Allies it was not at all obvious at the time
that trials were the best way to deal with the defeated Germans. 23 When
Churchill and Roosevelt met in Quebec in September 1944, they principally
adopted the Morgenthau Plan, under which approach, as part of the
denazification process of Germany, the major Nazi war criminals were to be
shot on sight and lesser Nazis were sent to repair Allied lands damaged by
J Bass Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton
University Press, Prinveton, 2002) 149.
22
Moscow Declaration on German Atrocities (released 1 November 1943).
23
Bass, above n 21, 147.
22
the war.24 Henry Morgenthau Jr. was America‟s Secretary of the Treasury
and said what the British and American public would have preferred to hear
at the time.25
However, in the end, legalism triumphed because President

Roosevelt became convinced by the plan of his Secretary of War, Henry L
Stimson, that war criminals had to be put on trial for the reason of
America‟s own domestic respect of due process, and Roosevelt was able to
convince Churchill, who had called for the execution of the top Axis leaders
without trial, of this idea.26
Stalin, on the other side, was in favour of summary executions at any

time. At the Tehran Conference, which was held in 1943 but after the
Moscow Conference, he proposed the shooting of 50,000 to 100,000
Germans.27 When he had to realise that this was unlikely, he tried to arrange
show trials, which would have not been too different from those established
in Stalin‟s purges.28 In the end, fortunately, he did not succeed with this idea
(b) London Agreement of 8 August 1945
At the conference in Yalta, the three Allies declared on 11 February

1945 that they would accept the unconditional surrender of the Axis Powers
only.29 Furthermore, they agreed that the Allied Powers will each occupy a
separate zone of Germany with coordinated administration and control
through a Central Control Council composed of the supreme commanders of
the Allied armed forces at Berlin.30 France was to be invited to take over a
zone of occupation and to participate as a fourth member of the Control
24
Beigbeder, above n 20, 31. The author refers to the Quebec Conference held in
September 1942, but this is obviously a typo as no conference was held in Quebec at the
time.
25
26
Ibid, 147-148.
27
Ibid, 147.
28
Ibid.
29
Justice Case, above n 9, 1187.
30
Ibid.
23
Council for Germany.31 Also, it was announced the “inflexible purpose to ...
bring all war criminals to just and swift punishment”32.
On 8 May 1945, the German armed forces surrendered

unconditionally, and on 5 June 1945, by the Berlin Declaration, the Allied
Powers, including France, which had accepted the invitation from Yalta,
took over the state authority in Germany.33 Additionally, the Allies declared
that the punishment of European Axis war criminals “was made a primary
task of the military occupation of Germany.”34 However, the question about
the exact procedure for dealing with the war criminals remained open.
Consequently, on 26 June 1945, representatives of the four major

Allied Powers met in London and opened formal discussions toward a
quadripartite agreement for an international trial. They lasted for six weeks
paying tribute to very different ideas among the delegates.35 The participants
from the Soviet Union, for example, were convinced that the Nazi leaders
were already guilty. General Nikitchenko, who later became one of the
judges of the International Military Tribunal in the trial against the major
war criminals, stated:36
The fact that the Nazi leaders are criminals has already been established.
The task of the Tribunal is only to determine the measure of guilt of each
particular person and mete out the necessary punishment – the sentences.
This was absolutely contrary to the ideas of the US delegation. US

Supreme Court Justice Robert H Jackson, who later became the Chief
Prosecutor for the United States before the International Military Tribunal,
made clear that “the Moscow and Yalta declarations „are an accusation and
not a conviction.‟ … The United States had decided against „political
31
Ibid.
32
33
Berlin Declaration Regarding the Defeat of Germany and the Assumption of Supreme
Authority by Allied Powers (5 June 1945), preamble.
34
35
Taylor “The Nuremberg Trials“, above n 15, 498.
36
Ibid, 499.
24
executions,‟ and „if we are going to have a trial, then it must be an actual
trial.‟”37
However, after long discussions the representatives of the four

Allied Powers resolved their remaining differences and, on 8 August 1945,
promulgated the London Agreement “for the Prosecution and Punishment of
the Major War Criminals of the European Axis”38, embodying Jackson‟s
conception rather than Nikitchenko‟s.39 Later on, 19 other countries adhered
to the Agreement, reinforcing its international credentials.40
With the London Agreement, the four Allies took over the
responsibility to prosecute and punish the major war criminals and set the
stage not only for the trial before the Nuremberg International Military
Tribunal but also for the subsequent Nuremberg Trials. With respect to the
Justice Trial, the relevant parts of the Agreement read as follows:41
Now therefore the Government of the United States of America, the

Provisional Government of the French Republic, the Government of the
United Kingdom of Great Britain and Northern Ireland and the
Government of the Union of Soviet Socialist Republics ... acting in the
interests of all the United Nations and by their representatives duly
authorized thereto have concluded this Agreement.
Article 1. There shall be established after consultation with the Control

Council for Germany an International Military Tribunal for the trial of
war criminals whose offenses have no particular geographical location
whether they be accused individually or in their capacity as members of
organizations or groups or in both capacities.
Article 2. The constitution, jurisdiction and functions of the International

Military Tribunal shall be those set out in the Charter annexed to this
Agreement, which Charter shall form an integral part of this Agreement.
...
37
Ibid.
38
London Agreement (8 August 1945), preamble.
39
Taylor “The Nuremberg Trials“, above n 15, 499-501.
40
Beigbeder, above n 20, 32.
41
London Agreement, above n 38, preamble, arts 1, 2, 4, 6.
25
Article 4. Nothing in this Agreement shall prejudice the provisions

established by the Moscow Declaration concerning the return of war
criminals to the countries where they committed their crimes. ...
Article 6. Nothing in this Agreement shall prejudice the jurisdiction or the

powers of any national or occupation court established or to be
established in any allied territory or in Germany for the trial of war
criminals. ...
(c) Charter of the International Military Tribunal
According to Article 2 of the London Agreement, the conference

participants issued a charter for an International Military Tribunal, which
they attached to and made an integral part of the Agreement. Article 1 of
this Charter reads as follows:42
In pursuance of the Agreement signed on the 8 th day of August 1945 by

the Government of the French Republic, the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of
the Union of Soviet Socialist Republics, there shall be established an
International Military Tribunal ... for the just and prompt trial and
punishment of the major war criminals of the European Axis. ...
Hereinafter, the Charter described the power and jurisdiction of the

then established International Military Tribunal and defined or recognized
the crimes for which the European Axis war criminals were to be tried. 43 In
Article 6, the crimes which were punishable were listed and defined:44
The following acts, or any of them, are crimes coming within the
jurisdiction of the Tribunal for which there shall be individual
responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or

waging of a war of aggression, or a war in violation of international
42
Charter of the International Military Tribunal (8 August 1945), art 1.
43
44
Charter of the International Military Tribunal, above n 42, art 6.
26
treaties, agreements or assurances, or participation in a common plan or

conspiracy for the accomplishment of any of the foregoing;
(b) War crimes: namely, violations of the laws or customs of war. Such
violations shall include, but not be limited to, murder, ill-treatment or
deportation to slave labor or for any other purpose of civilian population
of or in occupied territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or villages, or devastation
not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination,

enslavement, deportation, and other inhuman acts committed against any
civilian population, before or during the war, or persecutions on political,
racial or religious grounds in execution of or in connection with any
crime within the jurisdiction of the Tribunal, whether or not in violation
of the domestic law of the country where perpetrated.
Furthermore, the Charter explained the responsibility of individuals

in relation to these crimes:45
Article 6. ... Leaders, organizers, instigators and accomplices participating

in the formulation or execution of a common plan or conspiracy to
commit any of the foregoing crimes are responsible for all acts performed
by any persons in execution of such plan.
Article 7. The official position of defendants, whether as Heads of State

or responsible officials in Government Departments, shall not be
considered as freeing them from responsibility or mitigating punishment.
Article 8. The fact that the Defendant acted pursuant to order of his
Government or of a superior shall not free him from responsibility, but
may be considered in mitigation of punishment if the Tribunal determines
that justice so requires.
Also, the Charter granted a special jurisdiction to declare Nazi

groups or organisations as a whole criminal. In the Charter this is stated as
follows:46
Article 9. At the trial of any individual member of any group or

organization the Tribunal may declare (in connection with any act of
45
Ibid, arts 6-8.
46
Ibid, arts 9-11.
27
which the individual may be convicted) that the group or organization of

which the individual was a member was a criminal organization. ...
Article 10. In cases where a group or organization is declared criminal by

the Tribunal, the competent national authority of any Signatory shall have
the right to bring individuals to trial for membership therein before
national, military or occupation courts. In any such case the criminal
nature of the group or organization is considered proved and shall not be
questioned.
Article 11. Any person convicted by the Tribunal may be charged before
a national, military or occupation court, referred to in Article 10 of this
Charter, with a crime other than of membership in a criminal group or
organization and such court may, after convicting him, impose upon him
punishment independent of and additional to the punishment imposed by
the Tribunal for participation in the criminal activities of such group or
organization.
In its judgment from 1946, the International Military Tribunal

declared that in its opinion the Charter was the expression of international
law which existed already at the time of the Charter‟s creation, and the
Charter itself was a contribution to international law.47 Consequently, the
International Tribunal concluded that the law of the Charter was decisive
and binding upon them.48
Former Lord Chancellor of Great Britain, Viscount Maugham,

criticised this view of the International Military Tribunal. He mentioned that
the Charter as drawn did not found its provisions on the rules of
international law, and the Allies formulated the Charter on their own
authority and created provisions which they thought would be just and
proper in the trial of the major war criminals rather than exercising existing
international law.49 For example, he stated that since the law of nations
came into existence there had never been a case50
47
Office of United States Chief of Counsel for Prosecution of Axis Criminality Nazi
Conspiracy and Aggression: Opinion and Judgment (US Government Printing Office,
Washington DC, 1947) 48.
48
Ibid.
49
Viscount Frederic H Maugham U.N.O. and War Crimes (John Murray, London, 1951)
18.
50
Ibid.
28
where any individual has been tried for the alleged crime of participating
in the waging of an aggressive war or a war in violation of an
international treaty, and that no Nation had ever before asserted that such
an act was a crime under international law.
Hence, for him, the London Agreement and its annexed Charter as
well as the jurisdiction of the International Military Tribunal depended only
“on the fact of the unconditional surrender by the German armies and the
occupation thereafter of the whole of Germany by the four Powers who
signed the document.”51
Maugham‟s view was that the International Military Tribunal was

without doubt an ad hoc tribunal with a limited jurisdiction, and the London
Agreement with the annexed Charter was rather a document of victor‟s
justice to set out rules for the punishment of the defeated Germans than the
expression of existing international law.52 However, he agreed that the
International Military Tribunal, as being the creation of the Charter, was
necessarily bound by its terms and the Charter, therefore, was the legal basis
of the International Military Tribunal.53
Regarding the Justice Trial, the London Agreement together with the
annexed Charter established not only the legal basis for the International
Military Tribunal but also for the subsequent Nuremberg Trials. When
looking at the judgment in the Justice Trial, it becomes clear that the rules
and principles set out in the Charter formed the background for the
decisions of US Military Tribunal III. Therefore, the Charter was also part
of the legitimisation process for Tribunal III.
However, according to Maugham, the code necessarily was derived

from the four different systems of Allied national law and, therefore, applied
only in the major trial.54 Hence, the problem remained that the Charter was
created for the joint court of the Allies only and, originally, was not made
for the separate courts of each Allied Power within their jurisdictional
territories.
51
Ibid, 17.
52
Ibid.
53
Ibid.
54
Ibid, 49.
29
(d) Allied Control Council Law No. 10
On 20 December 1945, the four Allied Powers resolved this issue by

enacting Control Council Law No. 10, which became the most important
part in the creation of the US Military Tribunals at Nuremberg. In its
preamble, Control Council Law No. 10 stated that this act was established55
in order to give effect to the terms of the Moscow Declaration of 30

October 1943 and the London Agreement of 8 August 1945, and the
Charter issued pursuant thereto and in order to establish a uniform legal
basis in Germany for the prosecution of war criminals and other similar
offenders, other than those dealt with by the International Military
Tribunal ...
Control Council Law No. 10 defined the jurisdiction of US Military

Tribunal III and of similar military tribunals in Germany.56 Article III
granted the authorisation of arresting, charging and trying war criminals to
the Military Governments of each Allied Power within their zone of
occupation. Article III sections (1) and (2) read as follows:57
1. Each occupying authority, within its Zone of occupation,
(a) shall have the right to cause persons within such Zone suspected of
having committed a crime, including those charged with crime by one of
the United Nations, to be arrested ...
(d) shall have the right to cause all persons so arrested and charged, and
not delivered to another authority as herein provided, or released, to be
brought to trial before an appropriate tribunal. ...
2. The Tribunal by which persons charged with offenses hereunder shall

be tried and the rules and procedure thereof shall be determined or
designated by each Zone Commander for his respective Zone. Nothing
herein is intended to, or shall impair or limit the jurisdiction or power of
any court or tribunal now or hereafter established in any Zone by the
55
Control Council Law No. 10 1945 (US, UK, France, USSR).
56
Ibid, arts I-V.
57
Ibid, art III ss (1), (2).
30
Commander thereof, or of the International Military Tribunal established

by the London Agreement of 8 August 1945. ...
Also, the provisions of the London Agreement, of its annexed

Charter and of the Moscow Declaration were made an integral part of
Control Council Law No. 10. This was announced in Article I:58
The Moscow Declaration of 30 October 1943 „Concerning Responsibility

of Hitlerites for Committed Atrocities‟ and the London Agreement of 8
August 1945 „Concerning Prosecution and Punishment of Major War
Criminals of the European Axis‟ are made integral parts of this Law. ...
Consequently, in its judgment, US Military Tribunal III made clear

that its creation and legal jurisdiction was based upon and limited by these
statutes. In the Tribunal‟s opinion, the defendants were rightly accused with
crimes as defined in Control Council Law No. 10 only, and it stated that this
law was legally enacted by the Allied Control Council for Germany. 59 In
due consideration of Article 2 of the London Agreement, which provided
that the Charter of the International Military Tribunal shall form an integral
part of the Agreement, the judgment stated:60
Thus, it appears that the indictment is drawn under and pursuant to the
provisions of Control Council Law No. 10 ... that ... expressly
incorporates the London Agreement as a part thereof, and that the IMT
Charter is a part of the London Agreement.
Furthermore, Control Council Law No. 10 specified four wide

ranging statutory offences, namely (a) crimes against peace; (b) war crimes;
(c) crimes against humanity; and (d) membership in criminal
organisations.61 The Tribunal in the Justice Case had to deal with crimes of
the categories (b), (c) and (d) only.62 Article II section (1) of Control
Council Law No. 10 defined these crimes as follows:63
(b) War Crimes. Atrocities or offences against persons or property

constituting violations of the laws or customs of war, including but not
58
Ibid, art I.
59
Justice Case, above n 9, 956-957.
60
Ibid.
61
Control Council Law No. 10 1945, above n 55, art II s (1).
62
63
Control Council Law No. 10 1945, above n 55, art II s (1).
31
limited to, murder, ill treatment or deportation to slave labour or for any
other purpose, of civilian population from occupied territory, murder or ill
treatment of prisoners of war or persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities, towns
or villages, or devastation not justified by military necessity.
(c) Crimes against Humanity. Atrocities and offences, including but not
limited to murder, extermination, enslavement, deportation,
imprisonment, torture, rape, or other inhumane acts committed against
any civilian population , or persecutions on political, racial or religious
grounds whether or not in violation of the domestic laws of the country
where perpetrated.
(d) Membership in categories of a criminal group or organization declared

criminal by the International Military Tribunal.
Hence, Control Council Law No. 10 stipulated not only the formal
jurisdiction of US Military Tribunal III but also the substantive criminal law
itself, which had to be applied in the Justice Trial. For this reason, Control
Council Law No. 10 was the legal basis not only for the creation, but also
for the decisions, of US Military Tribunal III.
(e) Ordinance No. 7 of the US Military Government for Germany
With the establishment of Control Council Law No. 10, the zone
commanders of each Allied Power were authorised to designate tribunals for
the trial of offences hereunder and to determine the rules and procedure of
these bodies.64
Interestingly enough, each of the four authorities over the separate

zones adopted their own method of ascertaining, bringing to trial and trying
the persons in their zone believed to be guilty of war crimes.65 Furthermore,
the definitions of crime in the four zones were widely different. For
example, Control Council Law No. 10 was made applicable in the American
64
Maugham, above n 49, 87.
65
Ibid, 19.
32
but not in the British zone of occupation.66 The British Military Government
did not operate under the rules of Control Council Law No. 10 but under a
Royal Warrant from 14 June 1945, which limited the crimes for which
persons in the British zone could be tried to violations of the laws and
usages of war, excluding crimes against peace and crimes against
humanity.67
However, on 18 October 1946, the US Military Government enacted

Ordinance No. 7 “for the organization and powers of certain military
tribunals”68, and to implement the rules of Control Council Law No. 10
within the American zone of occupation. Article II section (a) of the
Ordinance said:69
Pursuant to the powers of the Military Governor for the United States
Zone of Occupation within Germany and further pursuant to the powers
conferred upon the Zone Commander by Control Council Law No. 10 and
Article 10 and 11 of the Charter of the International Military Tribunal
annexed to the London Agreement of 8 August 1945 certain Tribunals to
be known as „Military Tribunals‟ shall be established hereunder.
Accordingly, US Military Tribunal III was established on 13

February 1947 with the task to try the selected defendants for crimes listed
and defined in Article II of Control Council Law No. 10. 70 Article I of
Ordinance No. 7 explicitly recognised these crimes as punishable offences.
There it said:71
The purpose of this Ordinance is to provide for the establishment of

military tribunals which shall have power to try and punish persons
charged with offenses recognized as crimes in Article II of Control
Council Law No. 10, including conspiracies to commit any such crimes.
Nothing herein shall prejudice the jurisdiction or the powers of other
courts established or which may be established for the trial of any such
offenses.
66
Ibid.
67
Ibid, 20. Maugham stated further that “certain persons however were charged before
Control Commission Courts for „Crimes against Humanity‟ committed against Allied
nationals”. Ibid, 20; See also Bassiouni, above n 4, 533-534.
68
Military Ordinance No. 7 1946 (US), art I.
69
Ibid, art II s (a).
70
71
Military Ordinance No. 7 1946, above n 68, art I.
33
Ordinance No. 7 also regulated the law of procedure, what in fact

was an adoption of the rules of procedure as defined in the London
Agreement and Control Council Law No. 10.72 These rules were solely
based on the common law tradition, what meant that instead of the
inquisitorial system used in German criminal law, the adversarial system
used in the United States was taken.73 Thus, it was not on the Tribunal to
explore the truth (like in the inquisitorial system), but the statements and
pleadings by the parties became the basis of the proceeding (like in the
adversarial system).74
(f) Judgment of the International Military Tribunal
According to the Charter annexed to the London Agreement, the

International Military Tribunal was created. The major war criminals of
Nazi Germany were tried and sentenced with judgment from 30 September
and 1 October 1946 by this Tribunal, which consisted of judges from all
four Allied Powers, namely the United States, Great Britain, France and the
Soviet Union.75 Control Council Law No. 10 referred directly to this
judgment. For example, Article II section (1) (d) of Control Council Law
No. 10 stated that “each of the following acts is recognized as a crime: ...
Membership in categories of a criminal group or organization declared
criminal by the International Military Tribunal.”76
Furthermore, Article X of Ordinance No. 7 stipulated that statements

and conclusions of the International Military Tribunal were binding for the
subsequent US military tribunals. Article X reads as follows:77
72
Frank M Buscher The U.S. War Crimes Trials Program in Germany, 1946-1955
(Greenwood Press, New York, 1989) 31.
73
Baestlein, above n 12, 11.
74
Ibid; See also Antonio Cassese International Criminal Law (2 ed, Oxford University
Press, Oxford, 2008) 355-356.
75
76
Control Council Law No. 10 1945, above n 55, art II s (1) (d).
77
Military Ordinance No. 7 1946, above n 68, art X.
34
The determination of the International Military Tribunal in the judgment

in Case No. 1 that invasions, aggressive acts, aggressive wars, crimes,
atrocities or inhumane acts were planned or occurred, shall be binding on
the tribunals established hereunder and shall not be questioned except
insofar as the participation therein or knowledge thereof by any particular
person may be concerned. Statements of the International Military
Tribunal in the judgment in Case No. 1 constitute proof of the facts stated,
in the absence of substantial new evidence to the contrary.
Hence, the judgment of the International Tribunal was also part of

the legal basis of US Military Tribunal III.
2 Compatibility with existing international law and customs
(a) Non-applicability of Hague Convention No. IV (Laws and Customs of

War on Land)
The international conferences of 1899 and 1907 in The Hague in the

Netherlands established rules of warfare between the signatory nations.78
Hague Convention No. IV was created, after minor revisions on the text
from 1899, at the second conference providing laws and customs of war on
land.79 It consisted of nine articles in the main text and 56 annexed articles,
and it was enacted with agreement from 18 October 1907.80 At both
conferences, Germany, Austria-Hungary, France, Great Britain, Russia and
the United States were among the countries which signed the Convention.81
Article 2 of Hague Convention No. IV stated:82
78
“Hague Convention” www.britannica.com (last accessed 16 March 2010).
79
Ibid.
80
See generally Hague Convention Respecting the Laws and Customs of War on Land
(Hague IV) (18 October 1907).
81
General Report of the United States Commission to the Peace Conference of The Hague
(31 July 1899).
82
Hague Convention Respecting the Laws and Customs of War on Land (Hague IV), above
n 80, art 2.
35
The provisions contained in the Regulations referred to in Article 1, as

well as in the present Convention, do not apply except between
Contracting Powers, and then only if all the belligerents are parties to the
Convention.
Hence, Hague Convention No. IV was valid and binding

international law between Germany and the four Allied Powers in 1947.
However, it did not apply to post-war Germany because of Article 42 of the
annex to the Convention. Therein it said: “Territory is considered occupied
when it is actually placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has been
established and can be exercised.”83
John H E Fried looked at this rule in regard to the existing situation

in Germany after World War II and, in 1946, he stated:84
The provisions of the Hague Regulations restricting the rights of an

occupant refer to a belligerent, who, favored by the changing fortunes of
war, actually exercises military authority over enemy territory and
thereby prevents the legitimate sovereign -who remains the legitimate
sovereign- from exercising his full authority. The Regulations draw
important legal conclusions from the fact that the legitimate sovereign
may at any moment himself be favored by the changing fortunes of war,
reconquer the territory and put an end to the occupation. ... In other
words, the Hague Regulations think of an occupation which is a phase of
an as yet undecided war. Until May 7, 1945, the Allies were belligerent
occupants in the then occupied parts of Germany, and their rights and
duties were circumscribed by the respective provisions of the Hague
Regulations. As a result of the subjugation of Germany the legal character
of the occupation of German territory was drastically changed. The
occupants do no longer act in lieu of the „legtimate sovereign‟. They
themselves exercise sovereignty. ...
This interpretation by Fried is viable but not the only possible

argument. However, if one looks at Article 42 related to the overall structure
of Hague Convention No. IV, it becomes obvious that only belligerent
83
Ibid, Annex art 42.
84
John H E Fried “Transfer of Civilian Manpower from Occupied Territory” (1946) 40 Am
J Int‟l L 303, 327.
36
occupations, meaning the invasion of an army into the territory of another

country during acts of war,85 can be meant.
This view was supported by many scholars of high standing in the

field of international law, among them Hans Kelsen and Alwyn V
Freeman.86 In 1947, Freeman said:87
On the other hand, a distinction is clearly warranted between measures

taken by the Allies prior to destruction of the German Government and
those taken thereafter. Only the former need be tested by the Hague
Regulations, which are inapplicable to the situation now prevailing in
Germany. Disappearance of the German State as a belligerent entity,
necessarily implied in the Declaration of Berlin of June 5, 1945, signifies
that a true state of war -and hence belligerent occupation- no longer exists
within the meaning of international law. ...
This view was also supported by the International Military Tribunal.

In its case against the German major war criminals, the defendants had
claimed that Germany was no longer bound by the rules of Hague
Convention No. IV in many of the territories occupied during the war
because Germany had completely subjugated those countries and
incorporated them into the German Reich, a fact which allegedly gave
Germany authority to deal with the occupied territories as though they were
part of Germany.88 The International Tribunal referred to the doctrine of
subjugation and held that it is unnecessary to decide whether the doctrine
has any application where the subjugation is the result of aggressive war.89
The reason given was significant and confirmed the interpretation of Fried
and Freeman:90
The doctrine [of subjugation] was never considered to be applicable so

long as there was an army in the field attempting to restore the occupied
territories to their true owners, and in this case, therefore, the doctrine
could not apply to any territories occupied after 1st September, 1939.
85
86
Ibid, 962.
87
Alwyn V Freeman “War Crimes by Enemy Nationals Administering Justice in Occupied
Territory” (1947) 41 Am J Int‟l L 579, 605.
88
International Military Tribunal I, above n 1, 254.
89
Ibid.
90
Ibid.
37
US Military Tribunal III referred to this statement and concluded as

follows: 91
The clear implication from the foregoing is that the Rules of Land
Warfare apply to the conduct of a belligerent in occupied territory so long
as there is an army in the field attempting to restore the country to its true
owner, but that those rules do not apply when belligerency is ended, there
is no longer an army in the field, and, as in the case of Germany,
subjugation has occurred by virtue of military conquest.
Hence, in the case of post-war Germany, after the unconditional

surrender of the German armed forces on 8 May 1945, the status of
belligerent occupation of the German territory by the Allied Powers did not
exist anymore and, therefore, Hague Convention No. IV could not apply to
Germany after 8 May 1945.
Although the reasons differ, all opinions described above share the
same point of view, which is that the written rules set out in Hague
Convention No. IV did not apply to post-war Germany and, therefore, the
enacted laws of the Allied Powers, especially Control Council Law No. 10
and Ordinance No. 7, did not have to match the criteria of the Hague
Convention.
(b) The issue of Germany‟s remaining sovereignty
In general, the sovereignty of a state is defined as follows: 92
Sovereignty is the power of a state to do everything necessary to govern

itself, such as making, executing, and applying laws; imposing and
collecting taxes; making war and peace; and forming treaties or engaging
in commerce with foreign nations.
Therefore, the power to legislate is an inseparable part of a country‟s

sovereignty. The validity of Control Council Law No. 10 and of Ordinance
91
92
West‟s Encyclopedia of American Law 2008 “Sovereignty” http://legal-
dictionary.thefreedictionary.com (last accessed 16 March 2010).
38
No. 7 and, with it, the right of the Allies to legislate for the German
territory, was questioned throughout all Nuremberg Trials by several
German writers.93 Contrary to most legal scholars in international law, those
critics argued that the Allies did not have the legal authority to exercise
legislative power over the German territory because, in their opinion,
Germany had never lost its sovereignty after the war.94
In its judgment for the Justice Trial, US Military Tribunal III

carefully considered this issue and discussed it in considerable length.
Although one member of the Tribunal, Judge Blair, did not agree with the
Tribunal‟s analysis, his final evaluation was the same, namely that the Allies
truly had the right to legislate and rule for the German territory after World
War II because of the unconditional surrender and the simultaneous collapse
of the German Government.95
In terms of victor‟s justice, there are no signs that the opinions of the
judges of Tribunal III were based on ideas of vengeance. Their statements in
the judgment represented a critical and careful analysis of this issue based
on legal theory rather than on personal feelings or emotions. Within their
statements one is not able to find obviously subjective opinions about Nazis
and Nazi Germany. By replacing the words Germany and Germans with
other names of nations and nationals, the judgment could just as well have
been made for other countries where a similar post-war situation could have
occurred.
(i) View of US Military Tribunal III
In all subsequent trials at Nuremberg, the defence had claimed that

the jurisdiction of the Allied tribunals violated Germany‟s sovereignty. In
the Justice Case, Tribunal III responded vigorously to this. In the judgment,
93
94
Ibid.
95
Justice Case, above n 9, 959-971, 1178-1195.
39
two of the three judges argued that the legitimacy of the Tribunal was based
on the legitimacy of the Allied defeat of Germany. The judgment referred to
the Berlin Declaration from 5 June 1945 and explained:96
The unconditional surrender of Germany took place on 8 May 1945. The

surrender was preceded by the complete disintegration of the central
government and was followed by the complete occupation of all of
Germany. There were no opposing German forces in the field; the
officials who during the war had exercised the powers of the Reich
Government were either dead, in prison, or in hiding. On 5 June 1945 the
Allied Powers announced that they „hereby assume supreme authority
with respect to Germany, including all the powers possessed by the
German Government, the High Command, and any state, municipal or
local government or authority,‟ and declared that „there is no central
government or authority in Germany capable of accepting responsibility
for the maintenance of order, the administration of the country, and
compliance with the requirements of the victorious powers.‟ …
Consequently, the Tribunal then drew a conclusion that Germany

had lost its sovereignty to the Allies because, after the complete
disintegration of the German Government followed by the unconditional
surrender of the German armed forces and the occupation of the German
territory, there was an inevitable necessity for the Allies to exercise supreme
governmental powers not only for administrative but, in the first place, also
for humanitarian reasons. In the judgment it is stated as follows:97
It is this fact of the complete disintegration of the government in

Germany, followed by unconditional surrender and by occupation of the
territory, which explains and justifies the assumption and exercise of
supreme governmental powers by the Allies. The same fact distinguishes
the present occupation of Germany from the type of occupation which
occurs when, in the course of actual warfare, an invading army enters and
occupies the territory of another state, whose government is still in
existence and is in receipt of international recognition, and whose armies,
with those of its allies, are still in the field. In the latter case, the
occupying power is subject to the limitations imposed upon it by the
Hague Convention and by the laws and customs of war. In the former
case (the occupation of Germany) the Allied Powers were not subject to
96
Ibid, 959.
97
Ibid, 960.
40
those limitations. By reason of the complete breakdown of government,

industry, agriculture, and supply, they were under an imperative
humanitarian duty of far wider scope to reorganize government and
industry and to foster local democratic governmental agencies throughout
the territory.
Hence, in the view of US Military Tribunal III, after the war

Germany was not a sovereign state anymore and Control Council Law No.
10, as well as other codes enacted by the Military Governments, was a valid
law because the Allies were the new holders of governmental power in
Germany. However, the Tribunal seemed to be inconsistent in its
explanation. In the judgment, the Tribunal contradicted itself within
different sections. At one place it is stated:98
International law is not the product of statute for the simple reason that
there is as yet no world authority empowered to enact statutes of universal
application. International law is the product of multipartite treaties,
conventions, judicial decisions and customs which have received
international acceptance or acquiescence.
This means that, in the view of the Tribunal, there has never been an
international legislature. Yet, at another place, the judgment stated as
follows: 99
Since the IMT Charter and C. C. Law 10 are the products of legislative
action by an international authority, it follows of necessity that there is no
national constitution of any one state which could be invoked to
invalidate the substantive provisions of such international legislation.
Although the judgment additionally explained that Control Council

Law No. 10 “may be deemed to be a codification rather than original
substantive legislation”100, this statement has to be seen as conflicting with
the first one. Eventually, at still another place, the judgment stated:101
In its aspect as a statute defining crime and providing punishment the

limited purpose of C. C. Law 10 is clearly set forth. It is an exercise of
98
Ibid, 974-975.
99
Ibid, 965.
100
Ibid, 966.
101
Ibid, 965.
41
supreme legislative power in and for Germany. It does not purport to

establish by legislative act any new crimes of international applicability.
However, these conflicting conclusions do not need to be discussed

further as the judgment itself offered an explaining statement
additionally:102
For our purposes, however, it is unnecessary to determine the present

situs of „residual sovereignty‟. It is sufficient to hold that, by virtue of the
situation at the time of unconditional surrender, the Allied Powers were
provisionally in the exercise of supreme authority, valid and effective
until such time as, by treaty or otherwise, Germany shall be permitted to
exercise the full powers of sovereignty. We hold that the legal right of the
four Powers to enact C. C. Law 10 is established and that the jurisdiction
of this Tribunal to try persons charged as major war criminals of the
European Axis must be conceded.
Thus, in the end, it remains that US Military Tribunal III held the
opinion that Control Council Law No. 10 was a valid act, based either on
the overtaking of the German legislative power by the Allies or in another
way after the unconditional surrender on 8 May 1945. According to the
Tribunal‟s judgment, Germany lost its full powers of sovereignty because of
the complete breakdown of political and civil structures within Germany
after the war.
(ii) Dissenting view of Judge Blair
Judge Blair evaluated the issue of Germany‟s legal status in a

different way. Although he agreed that the Allies had the legitimacy to enact
Control Council Law No. 10 and the Tribunal had the legal jurisdiction to
carry out the trial, he disagreed with the explanation for it. He argued:103
No authority or jurisdiction to determine the question of the present status

of belligerency of the occupation of Germany has been given this
102
Ibid, 963.
103
Ibid, 1178-1179.
42
Tribunal. This question of present belligerency of occupation rests solely

within the jurisdiction of the military occupants and the executives of the
nations which the members of the Allied Control Council represent. … If,
however, any possible questions are here present for determination with
respect to (1) the character of the present status of occupation of
Germany; and (2) the present status of belligerency, such questions can
only relate to the rights of the victorious belligerent to exercise control
over Germany. Such matters as regard the American Zone are controlled
by both the written and unwritten laws, rules, and customs of warfare and
by the rights and obligations of a victorious occupant under international
law.
Accordingly, he referred to existing US rules, especially to several

articles of the Basic Field Manual on Rules of Land Warfare, which were
published in 1940 by the Judge Advocate General of the US Army:104
Under the foregoing rules of military occupation [Articles 273 to 275,

285, and 286 of the United States Basic Field Manual on Rules of Land
Warfare], there is no rule which would, because of the unconditional
surrender of the German armed forces, transfer the sovereignty of
Germany to the Allied occupants, or to either of them, in their respective
zones of occupation.
Certainly, the binding nature of these purely US rules is questionable

but Judge Blair also referred to existing international law:105
It may here be pointed out that the report of 1919 by the Commission on
the Responsibility of the Authors of War and Enforcement of
Penalties[106] lists among other war crimes in violation of international
law or of the laws and customs of land warfare, „(10) the usurpation of
sovereignty during military occupation.‟
Hence, with respect to both of these regulations, he concluded that

Germany remained fully sovereign after 8 May 1945, and the Allies
exercised their governmental power only provisionally until Germany,
104
Ibid, 1179-1180.
105
Ibid, 1181.
106
The Commission on the Responsibility of the Authors of the War and on the Enforcement
of Penalties was established after World War I in January 1919. It consisted of 15
representatives from ten states and had the task to report on the responsibility for the start
of the war, violations of the laws of war and the establishment of an appropriate tribunal to
held trials of such violations. Kate Bicknell “Is every International Criminal Law Trial
Really a Show Trial?” (LLM Research Paper, Victoria University of Wellington, 2007) 14.
43
purged from influences from Nazism and militarism, could take back its
place in the world community:107
There has been no act or declaration of the Allied Powers, either before or
since their occupation of Germany under the terms of the unconditional
surrender, which could possibly be construed as showing that they intend
by the subjugation and occupation of Germany to transfer her sovereignty
to themselves. To the contrary every declaration that has been made by
the Allied Powers with respect to their occupancy of Germany and the
enactment of laws for her control during the occupation has emphasized
the fact that the ultimate purpose of such occupancy is to destroy the Nazi
form of government and militarism in Germany so that as thus extirpated
from these influences she may take her place in the comity of the nations
of the world.
Consequently, he explained that the jurisdiction and power of

Tribunal III to try and punish war criminals was given by “established
international law relating to warfare” already;108 the Allied laws,
additionally, determined the punishable crimes and the rules of procedure
only.109
Furthermore, Blair analysed Control Council Law No. 10 and

Ordinance No. 7 with their referrals to the parts of the Moscow Declaration,
the London Agreement and the Charter of the International Military
Tribunal, which expressed the Allied concept to try and punish the German
war criminals and which authorised the zone commanders to establish
military tribunals, and declared:110
As so created and established this and other similar military tribunals are
international in character and jurisdiction. … The jurisdiction and power
of this and similar tribunals to try and punish war criminals find full
support in established international law relating to warfare. This law is
that during hostilities and before their formal termination belligerents
have concurrent jurisdiction over war crimes committed by the captured
enemy persons in their territory or against their nationals in time of war.
Accordingly, it has been generally recognized that belligerents during the
107
108
Ibid, 1189.
109
Ibid, 1186-1190.
110
Ibid, 1189-1190.
44
war may legitimately try and punish enemy persons charged with
infraction of the rules of war, if the accused is a prisoner of war and if the
act charged has been made a penal offense by the generally accepted laws
and customs of war. In such cases the accused usually is tried before the
court, commission, or tribunal set up by and adjudged in accordance with
the laws and procedure of the victor. After armistice or peace agreement
the matter of punishment of war crimes is determined by the terms
thereof.
According to this, Blair referred to an article about the London

Agreement by Lord Chief Justice Wright published in 1946. Therein,
Wright stated that the listed crimes in the Agreement “are not crimes
because of the agreement of the four Governments, but that the
Governments have scheduled them as coming under the jurisdiction of the
Tribunal because they are already crimes by existing law.”111
Blair then concluded that similar holdings can be made for Control
Council Law No. 10 as it recognised the same basic crimes and, therefore,
Control Council Law No. 10 was a valid act because it was112
an expression of the treaties, rules, and customs of international law on

crimes against peace, war crimes, and crimes against humanity; each is in
effect and purpose a listing of crimes in violation of pre-existing
international law and each „to that extent is itself a contribution to
international law‟.
In stating that, Blair referred to the Hague Conventions of 1899 and

1907, the Peace Conference of 1919 and the Versailles Treaty, the various
treaties of mutual guarantee, arbitration and nonaggression and the Kellog-
Briand Pact of 1928.113
Finally, Blair‟s opinion can be summarised as follows: although

Germany did not lose its sovereignty after 8 May 1945, the jurisdiction of
the Tribunal as well as the legitimacy of the Allies to rule about the German
territory was granted by treaties, rules and customs of existing international
law.
111
Quincy Wright “War Crimes under International Law” (1946) 62 LQR 40, 41
112
113
Ibid.
45
(iii) Evaluation
According to the German historian Klaus Baestlein, the four Allied

Powers officially took over the state authority in Germany with the Berlin
Declaration on 5 June 1945.114 It was a novelty that neither a peace
agreement nor an annexation followed but, in fact, the state population and
the state territory continued to exist while the Allies exercised the state
authority.115
Baestlein expressed a view, which was supported by the vast

majority of international legal experts since World War II. However, many
German jurists disagreed and argued that the Allies did not become the
holders of the state authority, but only provisional administrators in a
fiduciary or managing sense, which implied that they were not legitimated
to enact new laws and rules for the German territory. 116
Later on, even the Governments of the Federal Republic of Germany

adopted this way of thinking and acted like the legal successor of the Third
Reich with exclusive power of representation.117 A final clarification of this
issue did not happen until the signing of the two-plus-four treaties on the
occasion of the German unification in 1990, in which the Federal Republic
of Germany officially accredited the legal takeover of the state authority by
the Allies through the Berlin Declaration on 5 June 945.118
However, in my opinion, the German critics cannot be taken

seriously because after World War II the whole German society had
collapsed. There was no functioning government on state or local level, no
functioning administration and no functioning jurisdiction. The existing
laws of Nazi Germany were obviously inappropriate for a new start, and the
114
115
Ibid.
116
Ibid, 9-10.
117
Ibid, 10.
118
Ibid.
46
majority of German jurists in 1945 were either loyal Nazis or sympathisers.

According to Nathan Stoltzfus and Henry Friedlander, an estimated 90 per
cent of all German judicial officials had been members of the Nazi Party.119
Ingo Muller, additionally, gives the examples of Westphalia, were 93

per cent of the court personnel had been members of the Nazi Party or its
subsidiary organisations, Bamberg, where 302 out of 309 members of the
Court of Appeal had been in the Party, and Schweinfurt, where the number
of Party members was 100 per cent.120 Hence, in Mueller‟s view: “The
unconditional surrender of the Great German Reich not only brought an end
to institutionalized terror; it brought an end to the entire judicial system.”121
Therefore, at the time, there was no other option than the

establishment of a new legal order by the Allies. In the end, it does not
matter whether the Allies did this by overtaking Germany‟s full sovereignty
or by ruling on a provisional basis only. It is a matter of fact that the
German Reich disappeared after the war and, in 1947, Germany had lost its
practical sovereignty because there was no self determination possible
anymore.
In terms of victor‟s justice, this means that the accusation of an

illegal overtaking of Germany‟s state authority by the Allies is proved
wrong for the primary reason that there would have been no alternative
besides abandoning the German people to their fate, which would probably
have been meant chaos and death.
119
Nathan Stoltzfus and Henry Friedlander “Introduction: Nazi Crimes and the Law” in
Nathan Stoltzfus and Henry Friedlander (eds) Nazi Crimes and the Law (Cambridge
University Press, New York, 2008) 8.
120
Ingo Mueller Hitler’s Justice: The Courts of the Third Reich (Harvard University Press,
Cambridge, 1991) 202.
121
Ibid, 201.
47
(c) The implementation of a purely US court
As early as January 1947, three months after the rulings of the

International Military Tribunal, the US Government rejected the official
appeal from the French authorities for a second Allied tribunal.122 The
reason was that the American authorities, especially the US Chief
Prosecutor for the first trial and one of the creators of the London
Agreement, Robert H Jackson, disliked the methods of the Soviet
prosecution and favoured trials by US tribunals only.123
Thus, on 14 February 1947, the Military Governor for the American

occupation zone in Germany, Lieutenant General Clay, issued General
Order No. 11, which constituted US Military Tribunal III to try high ranked
German jurists.124 Based on Ordinance No. 7, this order named the members
of the Tribunal and the place of trial at Nuremberg.125 Although Article III
section (1) (d) of Control Council Law No. 10 contained the possibility of
trying the defendants in front of a German court, the US authorities made no
use of it in this case.126
Hence, the accusation of victor‟s justice was brought up soon. The

mostly German critics argued that the judges of the Nuremberg Tribunals
were not in a position to judge the German problem objectively, because
they were citizens of a victorious state and, therefore, were not free from
national resentment and passion.127 Also, some German lawyers asserted
that for victors to try the defeated was in contradiction to international
law.128 Accordingly, two major arguments were brought up: one was based
122
123
Ibid, 76-77.
124
125
Ibid.
126
Control Council Law No. 10 1945, above n 55, art III s (1) (d).
127
Karl-Heinz Lueders “The Nuremberg Judgment: Penal Jurisdiction over Citizens of
Enemy States” in Wilbourn E Benton and Georg Grimm (eds) Nuremberg: German Views
of the War Trials (Southern Methodist University Press, Dallas, 1955) 129.
128
Ibid.
48
on an historical background; the other was related to the principle of

separation of powers.
(i) Historical experience
The first argument was a weak one and related to the Acts of State
doctrine, which129
is based on the idea that an individual cannot be made responsible for an

act which he performed as an instrument or „organ‟ of his state, since
responsibility for such violations rests on the „collectivity of individuals,‟
which is the state.
It was claimed that war crimes trials historically were supposed to be

held by national courts of the defendants‟ nationality only. 130 Before World
War I, the German opinion, strongly supported by the Reichsmilitaergericht
(Reich Military Tribunal), was that “only the soldier‟s native state possesses
penal jurisdiction over those crimes which he committed before he was
taken prisoner, even if those crimes were directed against the enemy state or
its citizens.”131 This view was also supported by Article 3 of the Hague
Convention of 1907, which said that the state “shall be responsible for all
acts committed by persons forming part of its armed forces.”132
In contrast, British thoughts on this point were different even before

World War I, as British courts held that they had jurisdiction over such
cases.133 Therefore, after World War I, at the Peace Conference in Paris in
1919, the Commission on the Responsibility of the Authors of the War and
on Enforcement of Penalties was established to find a method for action
against enemy nationals accused of having committed war crimes.134
129
130
See generally Lueders, above n 127, 127-135.
131
Ibid, 129.
132
Hague Convention Respecting the Laws and Customs of War on Land (Hague IV),
above n 80, art 3.
133
134
Ibid, 27.
49
In many ways, this Paris Conference resembled the London

Conference in August 1945.135 Although favoured by the French and British
Government, the American delegates mentioned that an international
tribunal would not have a current penal law which it could apply, because
no regulation of international law and no state treaty rendered the violations
of the customs of war and the law of war an international crime which could
be punished.136 This view was closer to the German opinion than to the
views of the other Allies. As a result, the idea of an international tribunal
was finally overthrown and the extradition of war criminals to the military
jurisdiction of the defeated enemy power was decided.137
Unlike the London Conference after World War II, the Paris
Conference was supposed to work out peace treaties between the Allies and
the defeated nations. In the case of Germany, the result was the Treaty of
Versailles from 28 June 1919.138 It was not a real agreement but a directive
of provisions to the Government of the new German Weimar Republic.139
However, although Articles 228 to 230 of the treaty recognised the

right of the Allied and Associated Powers to try persons accused of
violating the laws and customs of war before military tribunals and obliged
the German Government to hand over these persons and furnish all
documents and materials that could be used as evidence,140 these punitive
provisions were never realised in the sense that they were intended.141
In February 1920, a list with 896 names of German nationals who

were to be handed over for trial was submitted to the German delegate at the
Paris Conference, Baron von Lersner.142 The list included high ranking
officials like Chancelor Bethman, Marshal Hindenburg, Marshal Ludendorff
135
Ibid.
136
Lueders, above n 127, 127.
137
Ibid, 128.
138
139
See generally Treaty of Versailles (28 June 1919).
140
Ibid, arts 228-230.
141
Woetzel, above n 14, 30-31.
142
Ibid, 31.
50
and the Imperial Crown Prince.143 Baron von Lersner was indignant at this
and resigned in protest.144
The list was then handed to the German Government, which from
then on made every effort to prevent the handing over of the designated
persons.145 After discussion, the Allies finally declared themselves willing
to accept the proposal of Germany‟s Government to try these individuals
themselves at the Reich‟s Supreme Court in Leipzig.146
The outcome was disastrous. From an abridged list of 45 names the

Allies had submitted to the Germans, only twelve persons were tried and six
were convicted and sentenced to terms of imprisonment from two months to
four years.147 In the following years, 1,744 preliminary investigations were
initiated by the German prosecution, but only 13 proceedings led to an
indictment at the Leipzig Supreme Court.148
The Allies protested strongly and announced that they will conduct
these and further trials by themselves according to Article 228 to 230 of the
Treaty of Versailles, but they did not again request the extradition of the
accused persons.149 In the end, very few trials were held against defendants
in absentia in Belgium and France.150 The German Emperor Wilhelm II,
who had fled to the Netherlands after the war, was never extradited and died
there in 1941.151
Thus, it is obvious that this bad experience of the Leipzig Trials had
caused the Allies of World War II, which were, except for the Soviet Union,
the same as in World War I, to arrange the war crimes trials against the
German Nazis under their own aegis.
Furthermore, it has to be taken into consideration that the supporters

of the German critics on the purely US tribunals tended to forget historical
143
144
145
Ibid, 31-32.
146
Ibid, 32.
147
148
Klaus Kastner “Der Nuernberger Prozess“ (1995) Juristische Arbeitsblaetter 802, 803.
149
150
Ibid.
151
“Wilhelm II” www.bbc.co.uk (last accessed 16 March 2010).
51
facts. Although the German Military Penal Code during World War I
expressed a different view, the German Reich and its military tribunals had
also tried Allied prisoners of war who were guilty of disregarding the Hague
Convention on land warfare during the time prior to their seizure.152 This
was in accordance with the practice of the Allies, which was legal not only
in England but in the whole Anglo-Saxon sphere of law already before
World War I.153
During World War II, this practice was also committed by German
military courts.154 The German politician Lueders, who later on became a
high ranked official in the Ministry of the Interior in West Germany, in
1946, stated as follows:155
In the same manner in which many German soldiers are today tried before
English, American, French, and Russian military tribunals, many Allied
soldiers were tried before German military courts a few years ago. This is
easily overlooked when today the war crimes trials of the present are
criticized in this country with slashing opinions.
Conclusively, it has to be said that the criticism of the

implementation of a purely US court with arguments based on historical
facts was a double-edged sword from the very beginning. One cannot argue
with certain parts of history ignoring other parts, which, when highlighted,
give a completely different view of the facts.
(ii) The violation of the principle of separation of powers
On 19 November 1945, all defence counsels at the trial before the

International Military Tribunal made a joint application in which, among
other things, the composition of the court was criticised.156 It said:157
152
153
Ibid.
154
Ibid, 133-134.
155
Ibid.
156
International Military Tribunal I, above n 1, 168-170.
52
The Judges have been appointed exclusively by States which were the one
party in this war. This one party to the proceeding is all in one: creator of
the statute of the Tribunal and of the rules of law, prosecutor and judge. It
used to be until now the common legal conception that this should not be
so; just as the United States of America, as the champion for the
institution of international arbitration and jurisdiction, always demanded
that neutrals, or neutrals and representatives of all parties, should be
called to the Bench.
This criticism was made in all Nuremberg Trials by the defence. It

was based upon the principle of separation of powers, which generally
means that the three branches of government, legislature, executive and
judiciary, have to be separated from each other, and that no branch should
be able to perform a function belonging to another, and no individual should
hold office in more than one branch.158 In international criminal law this
means that legislator, prosecutor and judge should not come from the same
country.159
In the Justice Case, US Tribunal III stated explicitly that it was

entitled to enforce international law, which was superior to any German law.
It said:160
The Nuernberg Tribunals are not German courts. They are not enforcing
German law. The charges are not based on violation by the defendants of
German law. On the contrary, the jurisdiction of this Tribunal rests on
international authority. It enforces the law as declared by the IMT Charter
and C. C. Law 10, and within the limitations on the power conferred, it
enforces international law as superior in authority to any German statute
or decree.
Therefore, international law rather than German or US law was

applied by the Tribunal, and the principle of separation of powers in
international law should have been respected. However, it was not and,
therefore, this was itself a violation of international law. The legislation in
157
Ibid, 169-170.
158
Bede Harris Essential Constitutional Law (2 ed, Routledge-Cavendish, London, 2004)
14.
159
Michael R Marrus The Nuremberg War Crimes Trial 1945-1946: A Documentary
History (Bedford Books, Boston, 1997) 34.
160
53
form of the London Agreement, Control Council Law No. 10 and Ordinance
No. 7 was made by the Americans as part of the Allies or all alone, the
prosecution counsel was American and all four judges were US nationals.
Hence, besides the common question why a German court was not
appointed to deal with the case, it was primarily criticised that no neutral or
German judges were included in the personnel of the court.161 An
international representation in the Justice Case would have required the
appointment of a German judge and of judges from neutral and other
countries.162 However, several reasons for the decision of the US authorities
against an international representation or a German court have to be taken
into account:
Firstly, the experience with the disaster of the Leipzig Trials after
World War I spoke against the idea that the Americans give out of hand the
whole trial to the German judicature and a German court.163 Furthermore, in
1947, before the trial, nobody really knew how infiltrated the German
judicature was by Nazis and Nazi ideology. As expressed by Professor
Robert K Woetzel: “Eleven years of National Socialism and five years of
war had reduced the German judiciary to such a feeble and corrupt state that
it could not be trusted, at the outset, to resume operations.”164
Indeed, during the trial, the incredible amount of atrocities in the

name of German law and the widespread of support for the Nazi ideas
among German jurists came to light and, in retrospect, justified the US
decision against a German court.165 Additionally, it may also have been
161
Wilbourn E Benton “Introduction” in Wilbourn E Benton and Georg Grimm (eds)
Nuremberg: German Views of the War Trials (Southern Methodist University Press, Dallas,
1955) 23-24; See also Hans Ehard “The Nuremberg Trial against the Major War Criminals
and International Law” in Wilbourn E Benton and Georg Grimm (eds) Nuremberg:
German Views of the War Trials (Southern Methodist University Press, Dallas, 1955) 102-
103; and Carl Haensel “The Conclusion of the Nuremberg Trial” in Wilbourn E Benton and
Georg Grimm (eds) Nuremberg: German Views of the War Trials (Southern Methodist
University Press, Dallas, 1955) 190.
162
163
See Part II A 2 (c) (i) Historical experience.
164
165
See generally Justice Case, above n 9, 311-940.
54
problematic to find a judge who would have accepted sitting in judgment of

his former colleagues.166
Secondly, as concluded above, the sovereignty of Germany in 1947

was legally exercised by the Allied Powers in their respective occupation
zones.167 Therefore, even if the Tribunal did not apply German criminal law,
it was appointed legally by the state authority at the time.168 Moreover, it
consisted of judges who were not involved in the legislation process before;
and all four members worked as civil judges in the United States and were
never involved in any activities of the US authorities responsible for the
German war criminals question.169 They were flown in exclusively for the
trial and left Germany afterwards.170
Thirdly and most importantly, the exclusion of neutral judges, for

example from the World War II neutral countries Switzerland, Sweden or
Portugal, was legally irrelevant and would have made no difference to the
trial because the judges, whatever their nationality was, were obliged to
apply the laws of the London Agreement and its annexed Charter, Control
Council Law No. 10 and Ordinance No. 7 as the legal basis of their
jurisdiction.171
However, although the neutral countries may have refused to

participate in the trial for the simple reason of their neutrality,172 the
acceptance of the court in public opinion surely would have been enhanced
if judges from neutral countries or even from Germany had been
included.173
Finally, besides the legal arguments, it cannot be overlooked that

Germany practically was a collapsed society in 1947. It was still too soon
166
167
See Part II A 2 (b) The issue of Germany‟s remaining sovereignty.
168
Ibid.
169
Telford Taylor Final Report to the Secretary of the Army on the Nuernberg War Crimes
Trials under Control Council Law No. 10 (US Government Printing Office, Washington
DC, 1949) 34-35.
170
Ibid, 35.
171
Benton, above n 161, 24.
172
173
Benton, above n 161, 24.
55
after the war for a new and functioning judicial administration to be

established and that one could speak of a denazificated judicature yet.
Nevertheless, it remains the argument that at least judges from

neutral countries could have been appointed as members of the Tribunal.
The counterargument that those would probably have denied their
participation is a purely theoretical one, because the Americans never did
ask. Therefore, although there is a consensus among international law
experts as well as among German jurists that the appointed judges handled
the case with real objectivity,174 one cannot deny that it makes a difference
whether nationals from a victorious belligerent state or citizens of a neutral
state preside over the vanquished.
B The Moral Necessity of the Trial
World War II caused over 50 million deaths, compared to World

War I with ten million.175 The killings, devastations, losses and suffering in
Europe were not only larger than in World War I, but they took a new
dimension as a result of the Nazi racist ideology against the Jews and the
Slavic peoples of Eastern Europe.176
This sick Nazi ideology was not only brutally exercised during the
war in the occupied territories but also, at the same time and earlier, in
Germany itself. In this, the German judiciary and most legal professionals
were at least willing partners if not enthusiastic executors.177 Some authors
go as far as saying that most German judges over-identified with the Nazi
regime, and have seen themselves as fighters on the internal battlefront with
the responsibility to punish the enemy within.178
174
175
176
Ibid, 29-30.
177
See generally Mueller, above n 120.
178
Douglas O Linder “The Nuremberg Trials: The Justice Trial” www.law.umkc.edu (last
accessed 16 March 2010).
56
Ingo Mueller, although controversial, estimated that 80,000 death

sentences were passed by German courts during the Nazi reign from 1933 to
1945.179 This number seems small compared to the millions of victims of
the SS or Gestapo, but if one looks at Germany‟s allies Italy and Japan,
which were also ruled over by Fascist governments during this period of
time, it becomes clear that this brutality was unparalleled.180 In Italy, civil
courts passed only 29 death sentences in 5,319 trials and in Japan, only two
persons were sentenced to death in approximately 600 trials.181
During National Socialism, the German law was obviously

transformed into an instrument of terror. This was not done against the will
of the German judiciary but with its active help and support. Mueller drew
the conclusion that the German judiciary was “a smoothly functioning part
of the National Socialists‟ system of intimidation.”182 German jurists first
helped to transform the existing laws of the Weimar Republic, which
Tribunal III described as “a civilized and enlightened system of
jurisprudence”183, into an instrument of Nazi politics, and then executed it in
a way which had never deserved to be named the enforcement of law.184
In 1945, the German law was based on a degenerated legal system

with the only purpose to spread the National Socialist ideology and
exterminate any existing opposition, whether for their political opinion,
religious belief, race or nationality.185 Thus, it becomes clear that the Allies
had to do something to make clear that the crimes, perpetrated in the name
of law, could not stay unpunished.
The decision for holding trials was based on a simple reason,

expressed by the US Secretary of War, Henry L Stimson, in 1947 with
179
Mueller, above n 120, 196.
180
Ibid, 196-197.
181
Ibid, 197.
182
Ibid, 196.
183
184
Ibid, 988.
185
Ibid, 985-988.
57
respect to the major trial, but is also applicable to the subsequent Nuremberg
proceedings, especially to the Justice Trial:186
There were three different courses open to us when the Nazi leaders were
captured: release, summary punishment, or trial. Release was unthinkable;
it would have been taken as an admission that there was here no crime.
Summary punishment was widely recommended. It would have satisfied
the immediate requirement of the emotions, and in its own rough-hewn
way it would have been fair enough, for this was precisely the type of
justice that the Nazis themselves had so often used. But this fact was in
reality the best reason for the rejecting such a solution. The whole moral
position of the victorious Powers must collapse if their judgments could
be enforced only by Nazi methods. Our anger, as righteous anger, must be
subject to the law. We therefore took the third course and tried the captive
criminals by a judicial proceeding. We gave to the Nazis what they had
denied their own opponents – the protection of the law.
The idea was also to reorient and re-educate the German people. US
authorities thought that the trial-proceedings would offer a great opportunity
to demonstrate the evils of totalitarianism and the virtue of democracy to the
German public.187 Morally, this was a wise idea because many Germans
were still in doubt whether they followed an evil ideology or only lost a war.
The big advantage of a trial was to make public for the first time what really
happened in the name of law during the Nazi reign, and it gave the victims a
possibility to speak.
Today, the atrocities carried out by German courts before and during
World War II are well known and documented because the Justice Trial
brought it to light. Nobody knows what would have happened to Nazi law
documents if they were not used as evidence for the trial immediately after
the war. The importance of a trial in regard to these aspects is best expressed
by the words of Hans Ehard, Bavarian Prime Minister and Minister of
Justice in the German Federal Parliament between 1946 and 1966, in an
186
Henry L Stimson “The Nuremberg Trial: Landmark in Law” (1947) 25 Foreign Aff 179,
179-180.
187
Buscher, above n 72, 2.
58
article he wrote as a critique of the proceedings at the International Military

Tribunal:188
The blush of shame must rise in the face of every German if he hears the
incontrovertible proof thereof and sees how cowardly cruelty, currish
fealty, insane obsession debased honor and humanity and forfeited the
German reputation. One would like to tell every German to read these
documents, particularly those people who forget too soon and would like
to avert their eyes from the horrors of the near past.
Finally, a last moral aspect in favour of a trial has to be seen in the

international law novelty to punish so called desk perpetrators. According
to Helmut Kramer, the jurists of the Third Reich represented this type of
criminals at best.189 He describes desk perpetrators as people which have
built up a remarkable distance to the execution of the crime itself and, as a
matter of fact, in nearly all cases neither the judges of the Reich People‟s
Court nor the judges of the Special Courts were present at the execution of
death sentences they had passed.190 To try those persons for the first time in
history was not only a way to deal with the Nazi past, but an opportunity to
show that in the future everybody, even when obliged by his own
government, has to be responsible for his or her actions to the world
community.
In summary, for me, it is obvious that a trial against German jurists

and the German judiciary after World War II was absolutely necessary from
a moral point of view. Alternatives like leaving it with the German post-war
judiciary, summary punishment or doing nothing were unthinkable for the
shown reasons. The atrocities committed by German courts in the name of
law needed a strong response and reaction by the world community to
establish and renew values of morality and ethics not only in Germany but
worldwide. A trial open to public view was the best way to answer.
188
Ehard, above n 161, 85.
189
Helmut Kramer Plaedoyer fuer ein Forum zur juristischen Zeitgeschichte (WMIT Druck
und Verlags GmbH, Bremen, 1998) 14.
190
Ibid, 14-15.
59
C Conclusion
It remains that only one issue could be seen as a violation of

international law here and, therefore, could give support for the reproach of
victor‟s justice: the violation of the principle of separation of powers.
US Military Tribunal III was established as a war crimes tribunal

with the authority to apply international law, but all four judges were
citizens of one country. Moreover, this country was not a neutral state but a
victorious belligerent. American judges applied international law against
non-American citizens and, therefore, the Tribunal‟s decision for many
people has the stigma of vengeance.
No doubt, in public opinion it would have been better if neutral

judges were on the bench or German judges were included, but it is
questionable if this would have been a real possibility according to the
existing situation after the war. However, only the exclusion of neutral
judges I would evaluate as a minor failure. The exclusion of German jurists
was absolutely understandable as, in 1947, it was not clear at all which
judges from German courts were morally and personally adequate for such
an important trial.
Furthermore, it has to be considered that international law generally

recognises the right of the victorious belligerent to judge over the citizens of
the defeated state.191 The German philosopher Karl Jaspers stated with
respect to the trial at the International Military Tribunal: “The trial is due to
the fact that we did not free ourselves from the criminal regime but were
liberated by the Allies.”192 The German historian Golo Mann stated a little
bit more soberly: “Sieger-Justiz ohne Zweifel und dadurch beeintraechtigt,
dass nach den „Kriegsverbrechen‟ der Sieger niemand fragen durfte; aber
191
192
Karl Jaspers “The Question of German Guilt” in Guenael Mettraux (ed) Perspectives on
the Nuremberg Trial (Oxford University Press, Oxford, 2008) 683.
60
wer sonst haette den Prozess fuehren sollen?” (Victor‟s justice, without
doubt, occurred because nobody was allowed to ask for war crimes
committed by the victorious powers; but who else should have carried out
the lawsuit?).193
By answering the question whether the trial against the leading

German jurists of the Nazi era was necessary from a moral point of view, I
refer to the explanations in the respective chapter above. Nevertheless, I
want to emphasise that, firstly, the trial brought to light for the first time
details of the crimes committed in the name of justice in Nazi Germany and,
secondly, it brought back civilised principles to the judicature on German
territory after 12 years of judicial barbarity. A punishment without a trial
would have only continued the brutality of the years of war and, therefore,
would have been a bad solution.
Overall, I conclude this chapter with a statement of Lueders, which

in my opinion is a good summary of what any critic of the Nuremberg Trials
should always keep in mind:194
Independent of general international law, we Germans cannot raise any

objections against these proceedings - from the legal standpoint - because
with the unconditional surrender we have agreed to all measures of the
Allies which are compatible with the commandments of humanity and
that part of the principles of international law which is indispensable as a
moral minimum.
193
Golo Mann Deutsche Geschichte des 19. und 20. Jahrhunderts (Fischer Verlag,
Frankfurt/Main, 1966) 972.
194
61
III INVOLVED PARTIES
The laws, codes, internal directives, political plans, preparation,

proceeding and outcome of a trial, in the end, always depend on the
personalities of the involved people. The personal experiences, emotional
connections and individual backgrounds of the parties involved are
important factors in a lawsuit.
The major participants in the Justice Trial were the four Tribunal
members, the members of the prosecution counsel and the 15 defendants
together with their lawyers.195 When asking whether victor‟s justice
occurred in the Justice Trial, it is especially important to have a look at these
people and their individual backgrounds. The appointment of certain judges,
the professional background of the prosecutors and the selection of the
defendants poses the question: why these people and not others?
Morally, the trial, within the framework of all subsequent

Nuremberg proceedings, was a trial not only of individuals from the
German legal profession but of the whole German system of law under the
Nazi Government with tens of thousands of participants. The reasons for the
selection of the specific defendants as representatives of the Nazi judiciary,
and the individual qualifications of the judges and prosecutors and their
personal relationship to US post-war politics provide the information, which
makes it possible to evaluate the trial on a more personal basis.
However, in the end, it will be concluded that a charge of victor‟s

justice on these issues cannot be made for several reasons; most
importantly, the exemplary impartiality of the Tribunal members and the
thorough and non-arbitrary selection of the defendants by the prosecution.
195
62
A The Tribunal
Based on Control Council Law No. 10, the US Military Government

for Germany enacted Ordinance No. 7 on 18 October 1946 to establish rules
for the creation and procedure of military tribunals within the American
zone of occupation in Germany.196 Article II section (b) of the Ordinance
provided: “Each such tribunal shall consist of three or more members to be
designated by the Military Governor. One alternate member may be
designated to any tribunal if deemed advisable by the Military Governor.
...”197
Accordingly, between 25 October 1946 and 24 December 1947 the

Military Governor appointed 32 judges for the 12 tribunals of the
subsequent Nuremberg proceedings.198 For the Justice Trial, Military
Tribunal III was created by General Order No. 11 on 14 February 1947,
which designated four judges as members of the Tribunal, namely
Carrington T Marshall as Presiding Judge, James T Brand and Mallory B
Blair as Judges, and Justin W Harding as Alternate Judge.199 For reasons of
illness, Presiding Judge Marshall was relieved on 19 June 1947, and Brand
was appointed Presiding Judge of the Tribunal from then on.200 Harding was
promoted to be a regular judge on the same day.201
196
See generally Military Ordinance No. 7 1946, above n 68.
197
Ibid, art II s (b).
198
Taylor Final Report, above n 169, 35-36; See also Friedman, above n 2, 78.
199
200
Ibid, 8, 955.
201
Ibid.
63
1 The judges and their qualifications
Article II section (b) of Ordinance No. 7 stated further that202
all members and alternates shall be lawyers who have been admitted to
practice, for at least five years, in the highest courts of one of the United
States or its territories or of the District of Columbia, or who have been
admitted to practice in the United States Supreme Court.
This statute was based on the idea that military courts martial
normally do not render opinions,203 and therefore, “judgments by
professional, civilian judges would command more prestige both within
Germany and abroad, in the legal profession and with the general public
alike.”204 The recruitment and selection of judges for the subsequent
Nuremberg Trials was executed by the US War Department and the Office
of the US Military Government for Germany (OMGUS). 205 In the end, as
stated above, 32 judges were appointed for the 12 trials.
Yet, the selection process was difficult and not without criticism.
Contrary to Article II of Ordinance No. 7, US Supreme Court Chief Justice
Harlan F Stone had prohibited Supreme Court justices from serving on any
subsequent war crimes tribunal, after the first Nuremberg Trial was
finished.206 The reason was that the Chief Prosecutor for the United States in
the first trial, Robert H Jackson, was a Supreme Court Justice himself and,
during his absence in Europe, the court often found itself deadlocked on
major decisions.207 Stone wanted to avoid this happening again.208
To make it worse, Stone‟s successor as Chief Justice, Fred Vinson,

extended the ban on federal judges as well.209 Hence, only state judges were
202
Military Ordinance No. 7 1946, above n 68, art II s (b).
203
Taylor Final Report, above n 169, 28-29.
204
Ibid, 29.
205
Ibid, 34-35.
206
207
Ibid.
208
Ibid.
209
Taylor Final Report, above n 169, 35; See also Friedman, above n 2, 78.
64
left to ask.210 In the end, 25 of the 32 appointed judges were state court
judges, of whom 14 had served on the highest court of a State and the others
in State intermediate appellate or trial courts.211 The other seven judges
included prominent practicing attorneys and a law school dean.212
Although a major concern about this selection was that none of these
judges had extensive experience in international law or military laws, it was
widely seen as an advantage that they had the status of Washington
outsiders, a projection of homespun wisdom and impartiality.213 However,
in some cases the character of the judges was criticised by prominent US
lawyers like Abraham Pomerantz,214 and the Chief Prosecutor for the
subsequent trials, Telford Taylor, told Robert H Jackson in a memorandum
in 1946, after he was sent to a mission to the United States to recruit jurists
for the prosecution teams in the subsequent trials:215
With few exceptions, the lawyers recruited have been poor. I do not refer
to Pomerantz and Robbins. ... Most of the rest, however, are utterly
vacuous political hacks. They are of no earthly use to us and if they aren‟t
very unhappy already they are going to be very shortly. ... it is quite bad
enough to have such persons visited upon us as lawyers, but it would be
fatal in the case of the judges. I think that no judge should be sent over
here without the personal approval of yourself or Judge Patterson[216].
The four selected judges for Tribunal III in the Justice Case were all
state court judges. Marshall was the former Chief Justice of the Supreme
Court of Ohio, Brand was a Justice of the Supreme Court of Oregon, Blair
was an Associate Justice of the Court of Civil Appeals of Texas and
Harding was a former Assistant Attorney General of the State of Ohio and a
District Judge in Alaska.217
210
211
Taylor Final Report, above n 169, 35.
212
Ibid.
213
214
Ibid.
215
Ibid, 77-78.
216
Robert P Patterson was the United States Secretary of War under President Truman
from 1945 to 1947. “Robert P. Patterson (1945-1947): Secretary of War”
www.millercenter.org (last accessed 17 March 2010).
217
65
Hence, it was not the elite of American jurists which sat in

Nuremberg to judge over their German colleagues, but very experienced and
highly regarded professional judges and prosecutors from civil courts in the
American provinces.218
2 Independence of the judges from US post-war politics
After the selection of the judges many law experts became nervous
about the neutrality of the judges. This was a legitimate concern. Firstly, the
judges of Tribunal III were all from the United States; it was not only their
home country, but also they necessarily had strong professional ties to the
ideals of US law and politics. Secondly, they were no experts in
international law; a possibly weak knowledge of the rules and customs of
international law may have made them more susceptible to the views of the
US Government in post-war Germany.
Yet, the ambitions of the US Government for post-war Germany

were not necessarily bad. Certainly, a major purpose of the war crimes
programme was the punishment of the Nazi perpetrators, but it was also
intended to use the trials as an integral part of a policy to reorient the
Germans by demonstrating to the German public the evils of totalitarianism
and the virtues of democracy.219
Furthermore, it was hoped that the trials would result in a future code
of conduct for governments and armies.220 Thus, it is a matter of fact that
the punishment of the defendants was not the only reason for the trials, and
the danger of non-impartiality of the judges in favour of the suggestions of
the prosecution was therefore limited.
218
219
220
Ibid.
66
However, one certain fact makes very clear that the judges of
Tribunal III were and acted independently from governmental opinions and
influences:
The indictment in the Justice Case, filed by the prosecution on 4

January 1947, contained 34 charges and was based on a comprehensive
analysis of German judicial material, which had been brought together in so
called Document Centres of the US Army in Germany since the end of the
war.221 The charges were summarized into four counts: (1) conspiracy to
commit war crimes and crimes against humanity; (2) war crimes; (3) crimes
against humanity; and (4) membership of certain defendants in criminal
organisations.222
By order from 11 July 1947, Tribunal III basically dropped count

one, after the defendants had challenged it.223 It stated:224
It is the ruling of this Tribunal that neither the Charter of the International
Military Tribunal nor Control Council Law No. 10 has defined conspiracy
to commit a war crime or crime against humanity as a separate
substantive crime; therefore, this Tribunal has no jurisdiction to try any
defendant upon a charge of conspiracy considered as a separate
substantive offense.
By looking at the importance this count had in the view of the US

officials who developed the US war crimes trial programme including the
legislation, it becomes clear that only truly independent judges would have
made such a decision.
With reference to the trial before the International Military Tribunal,

the Canadian historian Michael R Marrus stated that the charge of
conspiracy “was an American product from first to last”225. Against strong
objections of the French and Soviets, the US representatives at the London
221
Baestlein, above n 12, 17; Justice Case, above n 9, 17-26.
222
Justice Case, above n 9, 8, 955.
223
Ibid, 956; See generally United Nations War Crimes Commission Law Reports of Trials
of War Criminals: Trial of Josef Altstoetter and others (Case No 35) (Vol VI, His
Majesty‟s Stationery Office, London, 1948) 104-110.
224
225
Michael R Marrus “The Nuremberg Trial: Fifty Years After” (1997) 66 Am Scholar
563, 567.
67
Conference 1945 introduced the concept of conspiracy in the London

Agreement and its annexed Charter.226
The whole conspiracy idea was based on the thoughts of Henry L

Stimson and one of his assistants, a young New York lawyer named Murray
Bernays, and it was fully adopted by Jackson and Taylor who were deeply
convinced by the scheme.227 Conspiracy was the term the US jurists wanted
to come up trumps with at Nuremberg.228 It was imagined not only as the
crucial point of the American indictment before the International Military
Tribunal, but also as an essential point of the indictments within the
subsequent trials.229
Therefore, it was no surprise within the trial before the International

Tribunal that the American prosecution took responsibility for count one
(conspiracy), while the British prosecuted count two (crimes against peace)
and the French and Soviets jointly prosecuted count three (war crimes) and
count four (crimes against humanity).230
However, it remains that Tribunal III rejected the whole concept of

conspiracy, which could have been seen not only as an insult to the
prosecution but also to the Tribunal members‟ own superior, the head of the
US War Department, Stimson.
3 Conclusion
There is no doubt that by present standards the judges of Tribunal III

lacked the background, which would qualify them for an international war
226
Beigbeder, above n 20, 41; See also Bradley F Smith Reaching Judgment at Nuremberg
(Basic Books, New York, 1977) 51.
227
Thomas Darnstaedt “Das Weltgericht” (16 October 2006) 42 Der Spiegel Hamburg
(Germany) 66 www.spiegel.de (last accessed 17 March 2010).
228
Ibid.
229
Gabi Mueller-Ballin Die Nuernbeger Prozesse 1945-1949 (BZ-Materialien Band 1,
Nuernberg, 1995) 29, 32-33.
230
Jackson Nyamuya Maogoto War Crimes and Realpolitik: International Justice from
World War I to the 21st Century (Lynne Rienner Publishers, Boulder, 2004) 98-99.
68
crimes trial. However, it has to be considered that they were the most
qualified US judges available at the time.
Regardless of whether judges from neutral countries would have

been more suitable candidates, the members of Tribunal III acted with high
diligence and impressive impartiality. According to Baestlein, the judges in
the Justice Trial had not heard much about the circumstances in Germany
during the war, and were confronted almost completely unprepared with the
onset of barbarity in Germany‟s modern era between 1933 and 1945;231
before their eyes it opened up how a “Volk der Dichter und Denker” (a
nation of poets and philosophers) left the circle of civilised nations and
immediately turned into a “Volk der Richter und Henker” (a nation of
judges and hangmen).232
Although understandably shocked by this, the judgment and

sentences of Tribunal III indicate an instinctive feeling and great care in
evaluating the situation of German law and lawyers during the Nazi
regime.233 Considering the given facts the defendants were tried for, the
Tribunal, in the end, showed an exemplary impartiality. Therefore, I
conclude with the words of Lueders, written in regard to the trial before the
International Military Tribunal, but which, in my opinion, are equally valid
for the Justice Trial:234
At the beginning many may have thought the Nuremberg judges were not
fit for the task because as citizens of the victorious states they would not
face the defendants free from hatred, passion, and national prejudice.
Many may therefore have thought of a trial by German judges as more
just. But today, when the judgment of Nuremberg and the reaction to it
among the German population is known, only malevolent persons and
hardened National Socialists can doubt the real objectivity of these
judges.
231
232
Ibid.
233
See Part V Judgment of the Tribunal.
234
69
B The Prosecution
On 2 May 1945, the Joint Chiefs of Staff of the US Government

created the Office of the Chief of Counsel for the Prosecution of Axis
Criminality (OCCPAC).235 Supreme Court Justice Robert H Jackson was
appointed Chief of Counsel and, accordingly, became the Chief Prosecutor
for the United States in the major trial against the Nazi leaders before the
International Military Tribunal.236
In November 1945, the Subsequent Proceeding Division within

OCCPAC (SPD-OCCPAC) was established to prepare the American zone
trials under Control Council Law No. 10.237 Colonel Telford Taylor was
named head of the division.238 Later on, in March 1946, Taylor was also
named the successor of Jackson and received the military rank of Brigadier
General,239 but it was not until October 1946, after the International Military
Tribunal had come to a close, when Taylor replaced Jackson.240
During Jackson‟s term, Taylor was subordinate of and accountable

to Jackson, who himself reported directly to US President Truman.241 Yet,
after the major trial was finished and Jackson had resigned, this changed.242
On 24 October 1946, the OCCPAC was dissolved and succeeded by the
Office of the Chief of Counsel for War Crimes (OCCWC), which was
created as a division of the Office of the US Military Government for
Germany (OMGUS).243 Taylor was appointed as the new Chief of Counsel
and Chief Prosecutor for the United States by Military Governor General
235
Joseph Brunner “American Involvement in the Nuremberg War Crimes Trial Process”
(Winter 2002) Mich J Hist I.
236
Ibid.
237
Ibid.
238
Ibid.
239
240
241
242
Ibid.
243
Ibid.
70
McNarney,244 and from now on, was no longer accountable to the President
but to the Military Governor.245
1 The prosecutors and their qualifications
As mentioned before, Chief Prosecutor Taylor was not convinced

about the quality of his staff for the subsequent trials.246 As well as being
hard for the War Department to find adequate judges, it was hard for the
OCCWC to find qualified prosecutors.247 It was even harder as the task of
recruiting and selecting suitable lawyers for all 12 subsequent trials was on
Taylor and his office alone, alongside with all the other executive and
administrative tasks necessary to hold trials of such dimensions, including
the selection of the defendants, interrogations of witnesses and suspects,
handling of linguistic problems, cooperation with other governments,
organisation of all physical facilities, technical and other equipment, staff
recruitment and so forth.248
Consequently, in his Final Report to the Secretary of the Army on

the Nuernberg War Crimes Trials under Control Council Law No. 10, he
retrospectively complained about the huge amount of administrative
responsibilities, which were imposed solely on the prosecution.249 His
complaint was confirmed by the figures, which are truly impressive:
In total, 1,200 court sessions were held by the 12 tribunals, and the
transcripts of these proceedings exceeded 330,000 pages; 250 in July 1946,
the staff of OCCWC numbered 113, by the end of the year 1,000 and at its
244
Justice Case, above n 9, XXIII.
245
246
See Part III A 1 The judges and their qualifications.
247
248
Taylor Final Report, above n 169, VII, 14-21.
249
In his conclusion, Taylor suggested that it would have been much better if “at the very
outset a single organization for the purpose of planning and carrying out the war crimes
trials” had been established, and the field of administrative responsibility was not be solely
placed on the prosecution. Ibid, 105-106.
250
Justice Case, above n 9, III.
71
peak in October 1947 1,774;251 an enormous amount of pages was translated

by OCCWC throughout the trials, 133,762 pages alone between September
1947 and September 1948;252 an average of 175,000 copies were made per
month;253 the prosecution offered 605 different document books with a total
amount of over 6 million pages, including 46,000 copies of these books;254
and approximately 10,000 interrogations were conducted by OCCWC
between October 1946 and October 1948.255
By looking at these figures, it becomes clear what Taylor meant

when he stated: “The task which the Division faced was enormous and
complex, and the recruitment problem was correspondingly difficult.”256
The recruitment of lawyers was only one part of the duties of OCCWC, and
perhaps, explains the overall lack of quality of the selected persons.
However, in the Justice Case, Taylor had formed at an early stage a

prosecution team mainly from personnel of the Ministries Division within
OCCWC,257 and placed it under the direction of Charles M LaFollette, who
was appointed Deputy Chief Counsel.258 Besides Taylor as the Chief of
Counsel, LaFollette became the face of the prosecution in the Justice Trial.
They were assisted by the Associate Counsels Robert D King and Alfred M
Wooleyhan, and Assistant Counsel Sadie B Arbuthnot.259
Due to limited space, a broad look will be undertaken only in regard

to Taylor‟s and LaFollette‟s biographies. Nevertheless, it is well-recognised
that the work and success of the prosecution counsel depended on the whole
team and not on these two persons only.
251
Taylor Final Report, above n 169, 14, 43-44.
252
Ibid, 45.
253
Ibid.
254
Ibid.
255
Ibid, 61.
256
Ibid, 14.
257
To prepare the trials and indictments, the OCCWC at the outset was divided in six
divisions: the Military, Ministries, SS, and Economics Divisons worked on the cases which
lay within the fields of their respective titles; additionally, two special divisions were
established to prepare the I.G. Farben case and the Flick case for trial. Ibid, 39.
258
Ibid, 40; Justice Case, above n 9, 14.
259
72
(a) Taylor
Telford Taylor was born in 1908 and died in 1998.260 He was a

superior student and graduated from Harvard Law School in 1932.261 Due to
his brilliance, he soon became a protégé of the prominent professor and
Supreme Court Justice Felix Frankfurter.262 Before Taylor joined the Army
in October 1942, he worked in various federal offices of the United States,
including the Department of Justice, which gave him many appearances
before the Supreme Court and put him in first contact with Robert H
Jackson.263
During the war, he worked for the US Army Intelligence Service in

England, which helped him to gain expertise on Germany that he later used
at the war crimes trials.264 In 1944, he was appointed Military Attaché in the
US Embassy in London, and in 1946, he became an assistant of the Chief
Prosecutor for the first Nuremberg Trial Jackson.265
Despite the increasing calls for vengeance after the revelations of

Nazi atrocities mounted, Taylor, together with Jackson, remained committed
to conducting fair proceedings within a defined legal framework.266
Throughout his life, Taylor was a strong advocate of the new international
law, which was created with his help in the London Agreement and its
annexed Charter, even when it was uncomfortable for the Allies itself; for
example, he condemned the lifelong imprisonment of Rudolf Hess267 in
260
“Telford Taylor” The Scribner Encyclopedia of American Lives, Volume 5: 19997-1999
http://galenet.galegroup.com.helicon.vuw.ac.nz/servlet/BioRC (last accessed 17 March
2010).
261
Ibid.
262
Ibid.
263
Ibid.
264
Ibid.
265
Ibid.
266
Robert Cherny “Telford Taylor” http://c250.columbia.edu/c250_celebrates/remarkable_
columbians/telford_taylor.html (last accessed 17 March 2010).
267
Rudolf Hess was a high ranked Nazi, who was sentenced to life imprisonment in the trial
against the major war criminals before the International Military Tribunal; he was
imprisoned at the Spandau Prison in Berlin for more than 40 years, being the only inmate
73
Berlin‟s Spandau Prison by saying that “such long-continued incarceration,

especially in a huge prison where he was the sole inmate, was a crime
against humanity.”268
In the decades after the Nuremberg Trials, Taylor became famous

and highly considered for his criticism of US politics and actions in
Vietnam, Nicaragua and Bosnia.269 He also was among the first opponents
of Senator McCarthy‟s Anti-Communism programme in the United States in
the 1950s.270
Taylor left the Army in 1949, highly decorated by the United States
and several foreign governments, and returned to New York to practice
law.271 Until his death, he taught at prominent law schools like Columbia,
Harvard, Yale and Cardozo;272 and he was the author of several books,
including The Anatomy of the Nuremberg Trials (1992) and the award
winning Munich: The Price of Peace (1979).273
(b) LaFollette
Charles M LaFollette was born in 1898 and died in 1974.274 He

served in the US Army during World War I and, afterwards, studied law at
Vanderbilt University.275 In 1925, he was admitted to the bar and
commenced practice in Evansville/Indiana.276
for most of the time, and committed suicide there in 1987 at the age of 93. Richard Severo
“Telford Taylor, who prosecuted Nazis at Nuremberg War Crimes Trials, is dead at 90” (24
May 1998) The New York Times New York (US) www.nytimes.com (last accessed 17
March 2010).
268
Ibid.
269
Cherny, above n 266.
270
Severo, above n 267.
271
“Telford Taylor”, above n 260.
272
273
W Hays Parks “Telford Taylor, 1908-1998” www.icrc.org (last accessed 17 March
2010)
274
“La Follette, Charles Marion, (1898-1974)” www.bioguide.congress.gov (last accessed
17 March 2010)
275
Ibid.
276
Ibid.
74
LaFollette was a prominent lawyer as well as a politician, and he was

a member of the Indiana State House of Representatives from 1927 to
1929.277 In 1943, he was elected as a member of the Republican Party for
the US House of Representatives.278 He served two terms until 3 January
1947, but was not a candidate for re-election, due to his assignment as
Deputy Chief of Counsel in Nuremberg.279
Like Taylor, LaFollette was strongly convinced of the necessity of a

fair trial in respect to the historic significance of the Nuremberg war crimes
trials and, therefore, became a strong advocate against the accusation of
victor‟s justice. In 1948, he stated:280
I believe that not only a real contribution was made to the body of
international law by the trial of this case but also that valuable lessons can
be learned by the legal profession and by laymen all over the world from
the evidence produced there. If a person distrusts the fairness of the
procedure he undervaluates the important principles of international law
announced and applied in this case.
After the Justice Trial was finished, LaFollette became the Director
of the US Office of Military Government for Wuerttemberg-Baden in
Southwest Germany.281 He held this position from December 1947 to
January 1949, before returning to the United States where he went back in
his old life as a lawyer and politician.282
2 Conclusion
Between the creation of OCCWC on 24 October 1946 and its

deactivation on 20 June 1949,283 its staff accomplished an outstanding
277
Ibid.
278
Ibid.
279
Ibid.
280
Charles M LaFollette “Justice Case at Nuremberg, Part I” (1948) 138 Information
Bulletin, Magazine of US Military Government in Germany 9, 9.
281
“La Follette, Charles Marion, (1898-1974)”, above n 274.
282
Ibid.
283
Taylor Final Report, above n 169, VII.
75
performance in both quantity and quality of the work of the prosecution

counsel in all 12 subsequent trials. The task, the division was confronted
with, could have just as well been a lifetime process, but it was all managed
and finished in less than three years.
All US officials agreed that the trials should be completed quickly

after the war, but most of them had underestimated the size and difficulty of
the programme.284 As a result, there was not enough time and resources to
recruit the best of the best for the prosecution teams. Additionally, military
rules like the spousal ban made it extra hard to find willing lawyers, until it
was overturned.285 However, the evidence given by German documents was
so overwhelming that it was a much easier job to prosecute than to judge.286
In the Justice Trial, the leading figures for the prosecution were
Charles M LaFollette and Telford Taylor. Whether or not LaFollette had a
good legal knowledge of international law and the functioning of the
German law system, he was limited to the principles and rules set by the
London Agreement, its annexed Charter, Control Council Law No. 10 and
US Ordinance No. 7 anyhow.
Also, it is likely that the knowledge about the German judiciary and
the role of the German jurists in general was poor outside Germany at the
time. By preparing the indictment, Taylor, LaFollette and their team had to
study the German legal documents, which were captured by the Allied
forces all over Europe during and after the war, intensively. As a result, they
automatically became experts of the German law system under the Nazis.
Additionally, Taylor was regarded as one of the best US jurists of his

generation, and he proved this by excellent performances in court during the
subsequent trials.287 As Herbert Wechsler, a prominent legal scholar himself
who had worked together with Taylor in Nuremberg, put it: “If I was asked
284
Ibid, 76, 104.
285
Taylor had enormous problems to find adequate lawyers for his team because of the
Army‟s general spousal ban. He reported this to Jackson, who filed an objection with the
result that the spousal ban was removed. Friedman, above n 2, 77.
286
287
See for example his opening statement for the prosecution in the Justice Trial. Justice
Case, above n 9, 31-108.
76
to name the person of my generation whom I most admired, I would

promptly answer Telford Taylor. … wise counselor, persuasive advocate,
careful scholar, all the qualities that signify distinction … were his
degree.”288
C The Defendants
From the very beginning, it was planned by the US authorities that

the defendants in the Nuremberg Trials should represent all major segments
of the Third Reich, including government officials, SS, police and Party
officials, military leaders, bankers and industrialists.289
When the organisation of the trials began, it was soon realised that
only a few persons out of the hundreds of thousands of potential candidates
could possibly be tried.290 Including those individuals which were members
of a Nazi organisation declared criminal by the International Military
Tribunal, the total number was no less than an estimated two million
persons in all of Germany and approximately 500,000 in the US occupation
zone.291
There was no way for OCCWC to deal with such an amount of

people and, therefore, the vast majority of these cases were excluded from
the Nuremberg proceedings and handled under the so called denazification
programme.292 However, there were still several thousands of persons
left.293
288
289
290
291
292
Ibid; Besides the Nuremberg Trials and other trials of the Allies carried out in their
respective occupation zones, the denazification programme was the joint effort of the Allies
to remove active members of the former National Socialist Party from public office and
influential positions in Germany after World War II. It was based on the Law for Liberation
from National Socialism and Militarism (commonly known as Denazification Law), which
was enacted in 1946 by the Allied Control Council for Germany. Millions of individuals (in
the US zone of occupation more than 13 million persons alone) were screened for their role
in Nazi Germany and categorized in (1) major offenders, (2) offenders, (3) lesser offenders,
77
The selection of the defendants was the exclusive responsibility of

the Chief of Counsel Telford Taylor,294 who had realised early that only a
maximum of a few hundred persons could be tried, but these295
should be those highly placed individuals who bore the greatest

responsibility for formulating and ordering the execution of the criminal
policies which directly led to and instigated the aggressive wars and mass
atrocities launched and committed under the authority of the Third Reich.
With these self-made high expectations, Taylor started the selection

process by firstly making a list of several thousand suspects, and then
reducing this list on and on until he held 570 persons in confinement. 296 In
the end, with the assistance of his large staff, 185 individuals were finally
selected for indictment at the 12 subsequent Nuremberg Trials.297
Concerning the Justice Case, 16 leading Nazi jurists were selected,

but only 14 were actually tried.298 Carl Westphal committed suicide in his
cell in Nuremberg, and a mistrial was declared in Karl Engert‟s case
because of illness.299
(4) followers, and (5) persons exonerated. In the end, the programme failed to a large extent
because political changes, especially the upcoming Cold War, caused the Allies to transfer
the programme into the hands of German post-war authorities and many former Nazis were
rehabilitated although undoubtedly involved in Nazi crimes. Jozeph Michmann and
Michael Berenbaum “Denazification” www.jewishvirtuallibrary.org (last accessed 17
March 2010); See also Whitney R Harris, above n 18, 441-542.
293
Taylor stated that “2,000 or even 20,000 could have been convicted ...”. Taylor Final
Report, above n 169, 74.
294
Ibid, 73, 85.
295
Ibid, 54.
296
297
From the 185 defendants only 177 were actually tried, because eight persons committed
either suicide or were severed from the proceedings by reason of illness. Taylor Final
Report, above n 169, 91.
298
Justice Case, above n 9, 3; See also Roger Clark and Irina A Lediakh “Influence on the
Development of International Law” in George Ginsburgs and Vladimir N Kudriavtsev (eds)
The Nuremberg Trial and International Law (Martinus Nijhoff Publishers, Dordrecht,
1990) 266.
299
Justice Case, above n 9, 3, 15-16.
78
1 Selection criteria
As mentioned above, it was the intention of Taylor and his staff to

bring to trial the leaders and key figures of Nazi Germany‟s judiciary.300
However, its highest leaders could no longer be prosecuted: Reich Minister
of Justice Franz Guertner had died in 1941; his successor, Otto Georg
Thierack, had committed suicide in a British internment camp in 1946;
Erwin Bumke, President of the Reichsgericht, had also committed suicide as
the US Army was entering the city of Leipzig in 1945; and the infamous
President of the People‟s Court, Roland Freisler, had been killed in Berlin in
an air raid in March 1945.301
Hence, the principal defendant in the dock was Franz

Schlegelberger, Acting Reich Minister of Justice from 29 January 1941 to
20 August 1942.302 The other defendants included several more high-
ranking officials of the Reich Ministry of Justice, the Chief Prosecutor of
the People‟s Court and several prosecutors and judges of both the People‟s
Court and Special Courts.303
The defendants in the Justice Trial were selected for different

reasons, but mainly because they were the highest-ranking available
officials among the German jurists. Nevertheless, after the most prominent
faces of the German judiciary had disappeared, the selection process was a
difficult task for the prosecution.
300
See Part III C The Defendants.
301
302
Taylor Final Report, above n 169, 169; Justice Case, above n 9, 16, 1082.
303
79
(a) General aspects
In general, the prosecution had based its final selection of the

individuals to be indicted in the 12 subsequent trials on four basic factors:
Firstly, the collection and analysis of written and oral evidence, and
what the evidence showed concerning the activities of particular
individuals.304 The existence of substantial evidence was an absolute
necessity, because it was a firm policy of OCCWC not to indict anyone
without such.305
Secondly, the use of deductive and inductive methods of

investigation based on the knowledge of the prosecution staff members
about the organisation and functioning of the law system in the Third
Reich.306 The staff members were expected to familiarise themselves as
rapidly as possible with it.307 Additionally, a special section within OCCWC
was set up to compile a list of who’s who of leading German politicians,
civil servants, military men, business men and others.308
The third factor was the availability of individuals.309 Many war

crime suspects were not located until a year or more after the end of the war,
and some were under arrest but not available for trial or were held under
arrest in other occupation zones and not available for the US authorities.310
Fourthly, the number of individuals to be tried depended on the

overall policy and on administrative factors such as time, staff and
money.311 For legal and policy reasons, the trials were planned to be
completed without unnecessary delay, when the evidence was still fresh and
304
305
Ibid, 75.
306
Ibid.
307
Ibid.
308
Ibid.
309
Ibid.
310
Ibid, 75-76.
311
Ibid, 76.
80
the general public was still interested.312 Administrative issues were of a

more practical nature but inevitable, for example, the size of the defendants‟
docks in the courtrooms.313
Altogether, these criteria helped the prosecution to separate the

wheat from the chaff. Nevertheless, tribute had to be paid in regard to the
limited facilities available at the location where the trials were held, the
Nuremberg Palace of Justice.314 Accordingly, Taylor stated self-critically in
1949:315
It should be made perfectly clear that the individuals indicted under Law
No. 10 were a small minority of those who, on the basis of the available
evidence, appeared and probably could be proved to be guilty of criminal
conduct. … The responsibility for the selection of defendants in the
Nuernberg trials under Law No. 10 was mine alone, and the blame for any
mistakes that were made is equally mine.
(b) Individual aspects
The selection of the specific defendants in the Justice Trial was

based on a mixture of availability of the persons and severity of their
offences. As mentioned before, the highest leaders of the German judiciary
312
Ibid.
313
Six courtrooms in total were available for the subsequent trials. Two could
accommodate up to 24 defendants, whether the others had capacity for a maximum of 15
defendants. The Justice Case was held in one of the smaller courtrooms, and it was the trial
with the largest amount of defendants in these smaller courtrooms. Ibid, 77.
314
The Palace of Justice in Nuremberg was chosen as the site for the trials, because it was
spacious and as one of very few buildings throughout Germany largely undamaged, and a
large prison was part of the complex. Also, there was a symbolic value as Nuremberg had
been the city of the Nazi Party rallies, and the place where the German Parliament had met
in its one session outside Berlin during the Third Reich in 1935, where it enthusiastically
approved the measures against the German Jews, commonly known as the Nuremberg
Laws. Carmelo Lisciotto “The 1st Nuremberg Trial” www.holocaustresearchproject.org
(last accessed 17 March 2010); Gerhard L Weinberg “The Setting and the Significance of
the Nuremberg Trials: A Historian‟s Perspective” in Nathan Stoltzfus and Henry
Friedlander (eds) Nazi Crimes and the Law (Cambridge University Press, New York, 2008)
35.
315
Taylor Final Report, above n 169, 74, 85.
81
could no longer be tried,316 and therefore, the next level of jurist leaders
came into focus.
Primarily, these were eight high ranked officials of the Reich

Ministry of Justice and members of both the People‟s Court and Special
Courts.317 The prosecution put its focus especially on these institutions
because the Ministry was the administrative supreme authority within the
German law system, and the People‟s Court as well as the Special Courts
had been a special creation of the Nazis with a focus on so called political
offences.318
(i) Officials of the Reich Ministry of Justice
The Ministry of Justice was hierarchically structured, and the eight

selected defendants for the Justice Trial all held high positions within the
institution.319
Josef Altstoetter was Chief of the Civil Law and Procedure Division
in the Reich Ministry of Justice; he also was a member of the SS.320
Wilhelm von Ammon was the Ministerial Counsellor of the Criminal

Legislation and Administration Division in the Reich Ministry of Justice; he
also was the coordinator of proceedings against foreigners for offences
against Reich occupational forces abroad.321
Guenther Joel was Legal Adviser to the Reich Minister of Justice

concerning criminal prosecutions; also, he was the Chief Public Prosecutor
of Westphalia at Hamm and a member of the SS and SD.322
316
See Part III C 1 Selection criteria.
317
Klaus Kastner “Der Dolch des Moerders war unter der Robe des Juristen verborgen: Der
Nuernberger Juristen-Prozess 1947” (1997) Juristische Arbeitsblaetter 699, 700.
318
Mueller, above n 120, 51-52.
319
320
Ibid, 15.
321
Ibid.
322
Ibid, 15-16
82
Herbert Klemm was State Secretary in the Reich Ministry of Justice;

he also was the Director of the Legal Education and Training Division in the
Ministry, Deputy Director of the National Socialist Lawyers League and a
member of the SA.323
Wolfgang Mettgenberg held the position of Representative of the

Chief of the Criminal Legislation and Administration Division in the Reich
Ministry of Justice; in particular, he supervised criminal offences against
German occupational forces in occupied territories.324
Curt Rothenberger held the position of State Secretary in the Reich

Ministry of Justice; additionally, he was Deputy President of the Academy
of German Law and a Regional Leader of the National Socialist Lawyers
League.325
Franz Schlegelberger was a State Secretary in the Ministry of

Justice, before becoming the Acting Reich Minister of Justice from 29
January 1941 to 20 August 1942.326
Carl Westphal was Ministerial Counsellor of the Criminal

Legislation and Administration Division in the Reich Ministry of Justice; he
was responsible for questions of criminal procedure and penal execution
within the Reich; additionally, he was the Ministry coordinator for nullity
pleas against adjudicated sentences.327
(ii) Members of the National Socialist People‟s Court
The Volksgerichtshof (People‟s Court) was established on 24 April

1934, and was created to further the aims of National Socialism.328
323
Ibid, 16.
324
Ibid.
325
Ibid.
326
Ibid.
327
Ibid, 16-17.
328
83
Subdivided into a number of senates and departments, its tribunals consisted

each of two judges and five officials of the Nazi Party.329
Contrary to the widespread opinion of the general public, the

People‟s Court was not the superior court of Germany (that was the
Supreme Court in Leipzig) but an elite court with virtually exclusive
jurisdiction over cases of treason and high treason, espionage and
undermining of national defence.330 The People‟s Court soon became
infamous for its severe sentences; between 1937 and 1944, 14,319
defendants were indicted, of whom 5,191 received the death penalty.331
Six of the defendants in the Justice Trial had been members of the
People‟s Court and worked there either as judges or public prosecutors.
Paul Barnickel was a Senior Public Prosecutor of the People‟s Court;

at the same time he was a member of the SA.332
Karl Engert was Vice President of the People‟s Court; additionally,

he held the position of Chief of the Penal Administration Division and of the
secret Prison Inmate Transfer Division in the Reich Ministry of Justice; he
also was a member of the SS and the NSDAP Leadership Corps.333
Ernst Lautz was the Chief Public Prosecutor of the People‟s Court.334
Guenther Nebelung was Chief Justice of the Fourth Senate of the

People‟s Court; he also was a member of the SA and of the NSDAP
Leadership Corps.335
Hans Petersen was a Lay Judge of both the First Senate and the
Special Senate of the People‟s Court; he was a member of the SA.336
329
330
Hannsjoachim Wolfgang Koch In the Name of the Volk: Political Justice in Hitler’s
Germany (Tauris, London, 1989) 3, 128-130.
331
332
333
Ibid.
334
Ibid, 16.
335
Ibid.
336
Ibid.
84
Oswald Rothaug was a Senior Public Prosecutor of the People‟s

Court; before, he had been the former Chief Justice of the Special Court in
Nuremberg; he also was a member of the NSDAP Leadership Corps at
regional level.337
(iii) Members of National Socialist Special Courts
On 21 March 1933, soon after the Nazis had taken over the German
Government, so called Sondergerichte (Special Courts) were erected within
each of the 26 Court of Appeals districts in Germany. 338 They soon became
an effective tool against the political opposition, as the defendants had no
right to appeal verdicts and the sentences took effect immediately. 339 During
the war, Special Courts were also erected in the occupied territories.340
The courts had jurisdiction over all crimes that threatened the
National Socialist state and ideology, such as violations of all directives of
the national government, incitement to such violations that caused public
danger, high treason, arson, sabotage and aggravated insurrection.341 Like
the People‟s Court, the Special Courts became infamous for their harsh
sentences, including more than 15,000 death penalties.342 In fact, the Special
Courts fulfilled the dream of the Nazi leaders “of a judicial system in which
the harshest of sentences could be imposed after a minimum of
formalities”343.
Three of the defendants in the Justice Trial had been members of

Special Courts, including Oswald Rothaug who, by the end of the war, was
337
Ibid.
338
339
Ibid, 153-154.
340
Ibid, 159-160.
341
Ibid, 51.
342
Helmut Kramer “Richter vor Gericht: Die juristische Aufarbeitung der
Sondergerichtsbarkeit” (2007) 15 Juristische Zeitgeschichte NRW 121, 122.
343
85
a Public Prosecutor at the People‟s Court.344 The remaining two defendants

were Hermann Cuhorst and Rudolf Oeschey.
Hermann Cuhorst was Chief Justice of the Special Court in Stuttgart

and Chief Justice of the First Criminal Senate of the District Court in
Stuttgart; he also was a member of the Leadership Corps of the Nazi Party
and a sponsoring member of the SS.345
Rudolf Oeschey was a Judge of the Special Court in Nuremberg and

successor of the defendant Rothaug as Chief Justice of the same court; he
was a member of the NSDAP Leadership Corps at regional level and an
executive of the National Socialist Lawyers League.346
2 Conclusion
The selection of the defendants in the Justice Trial was done with
great care and accuracy by the prosecution. Furthermore, the selection
criteria were legitimate and comprehensible. However, it is interesting that
no legal scholar or defence lawyer was indicted.
In the case of lawyers it is perhaps understandable, because they had,

at least formally, the function of defending defendants against the
accusations of the National Socialist State, but scholars had been an
important factor of spreading the Nazi ideology and the decline of law
during the Third Reich.347
Certainly the most prominent Nazi scholar was the so called state
thinker of the Third Reich Carl Schmitt. As early as 1934 he stated: “The
whole of German law today … must be governed solely and exclusively by
the spirit of National Socialism … Every interpretation must be an
344
See Part III C 1 (b) (ii) Members of the National Socialist People‟s Court.
345
346
Ibid, 16.
347
86
interpretation according to National Socialism.”348 Together with other

leading National Socialist professors, for example Ernst Forsthoff, Ernst
Rudolf Haber and Theodor Maunz, he was the originator of the new Nazi
doctrines in the field of law.349
It is an embarrassing fact for post-war Germany that the majority of

these professors retained their positions or returned to them in the 1950s,
Maunz even became a co-editor and co-author of the leading commentary to
the new German Basic Law of 1949,350 but in regard to the Nuremberg war
crimes trials they could hardly be accused.
Although they helped to build the legal basis for the Nazi state, they
did not participate directly in the Nazi legislation or the execution of these
laws. Therefore, in the end, it makes more sense that Ministry officials and
judges were indicted rather than those who were responsible only indirectly.
Furthermore, the selection of the individual defendants cannot be

seen as arbitrary. No doubt that there were many other judges or officials in
the German judiciary who could also have been selected for the trial,
especially among the Special Court Judges, but it could never be an
acceptable argument against the selection of the 16 defendants. The limited
resources simply made it impossible for the US Military Government to try
all potential war criminals at Nuremberg.
Also, it cannot be said that the selection process spared highly

respected persons or prominent individuals. Schlegelberger, for example,
was held in high esteem by the public. He had an excellent reputation, and
many people labelled him as the last decent jurist under Hitler.351 I agree
with Taylor who stated:352
The trials under Law No. 10 … explored the record and judged the
conduct of a large number of men, who were not „professional Nazis‟ but
who occupied key positions in the Third Reich, such as career diplomats,
348
Carl Schmitt “Nationalsozialismus und Rechtsstaat” (1934) 63 Juristische
Wochenschrift 713 cited in Ibid, 70.
349
Ibid, 42.
350
Ibid, 236.
351
352
87
doctors, lawyers and judges, businessmen, and military leaders. Whatever

mistakes were made at Nuernberg, and no doubt there were many, I do
not think it can ever be seriously charged that wealth, prestige, or the
„garments of respectability‟ served to protect from indictment any
individual against whom substantial evidence appeared to exist, or that
any group or category was singled out for either favourable or severe
treatment.
Overall, it is obvious that the 185 indictments in the subsequent

Nuremberg Trials constituted only a minute fraction of the hundreds of
thousands of suspected Nazi criminals who remained at large,353 but nobody
can seriously complain that those, who were finally indicted in the Justice
Case, did not belong there.
353
88
89
IV TRIAL-PROCEEDINGS
After the indictment had been filed on 4 January 1947, and the
defendants had been arraigned on 17 February 1947, the Justice Trial
officially opened on 5 March 1947 with the opening statement of the
prosecution.354 The trial needed 129 court sessions, lasted 11 month and the
English transcript of the proceedings comprised 10,964 mimeographed
pages.355 The final statements of the defendants were heard on 18 October
1947, and the judgment and sentences were delivered on 3 and 4 December
1947.356
In this chapter, firstly, the charges against the defendants and their
compatibility with existing international law and principles at the time will
be analysed. In terms of victor‟s justice, it will be asked whether the charges
were only a creation of the victorious Allies to hide the exercise of
vengeance behind a smokescreen of legality or were the proper expression
of international criminal law.
A conclusion will be drawn stating that the charges did change but
not violate international law and, therefore, justified the trial. However, the
fact that they were applied only on the defeated Germans has to be
evaluated as an example of victor‟s justice.
Secondly, the chapter will look at certain aspects of the trial-

proceedings and asks the question whether the defendants were treated
fairly. It will be concluded that the defendants received a fair trial and the
Americans, herewith, set a remarkable example for the proceedings of
subsequent international tribunals.
354
355
Ibid, 4-5.
356
Ibid, 5.
90
A The Creation of a New International Criminal Law
The charges against the defendants in the Justice Trial were based on
the crimes defined in Article II section (1) of Allied Control Council Law
No. 10, which by itself had its origins in the London Agreement and the
London Charter.357 Herein, the Allies had established four new categories of
crimes to try and punish the German war criminals: (a) crimes against
peace; (b) war crimes; (c) crimes against humanity; and (d) membership in
criminal organisations.358
Especially the categories of crimes against peace and crimes against

humanity became a target of heavy criticism by many legal experts,359 but
only the category of crimes against humanity is relevant here as no
defendant in the Justice Trial was charged with crimes against peace.
The criticism and also the arguments of the defence, not only in the
Justice Trial but in all Nuremberg Trials were based on two principal
subjects: (1) the violation of the ex post facto principle; and (2) the excuse
of just obeying superior orders in relation to the issue of individual
liability.360 Additionally, the tu quoque argument was raised and questioned
the legitimacy of the whole concept of the Allied war crimes trials
programme.361
357
See Part II A 1 (b) London Agreement of 8 August 1945, Part II A 1 (c) Charter of the
International Military Tribunal and Part II A 1 (d) Allied Control Council Law No 10.
358
See Part II A 1 (d) Allied Control Council Law No 10.
359
See for example Maugham, above n 49, 25-39; and John H Morgan The Great Assize:
An Examination of the Law of the Nuremberg Trials (John Murray, London, 1948) 19-38.
360
Bassiouni, above n 4, 537-538.
361
Ibid, 525, 554.
91
1 The charges and their development
In his opening statement for the Justice Trial, Chief Prosecutor

Telford Taylor declared:362
… the root of the accusation here is that those men, leaders of the German
judicial system, consciously and deliberately suppressed the law, engaged
in an unholy masquerade of brutish tyranny disguised as justice, and
converted the German judicial system to an engine of despotism,
conquest, pillage, and slaughter.
The indictment of the trial contained 34 allegations, which were

arranged under four counts: (a) conspiracy to commit war crimes and crimes
against humanity; (b) war crimes; (c) crimes against humanity; and (d)
membership in criminal organisations.363 All defendants were charged with
the first three counts, only seven of the defendants were charged with the
fourth count.364
Basically, the indictment charged the defendants with participation

in a common design involving the assumption by the Ministry of Justice of
total control over the administration of justice and the use of the judicial
process as a weapon for the persecution and extermination of all opponents
of the Nazi regime and for the persecution and extermination of races.365
Taylor outlined the core of the charges in his opening statement as

follows:366
In summary, the defendants are charged with judicial murder and other
atrocities which they committed by destroying law and justice in
Germany, and by then utilizing the emptied forms of legal process for
persecution, enslavement, and extermination on a vast scale.
362
363
Ibid, 17-26; See also Part III A 2 Independence of the judges from US post-war politics.
364
365
Katrina Gustafson “Altstoetter and others (The Justice Trial)” in Antonio Cassese (ed)
The Oxford Companion to International Criminal Justice (Oxford University Press,
Oxford, 2009) 582.
366
92
And in an essay, written in 1949 and part of his Final Report, he

added more specifically:367
The indictment charged that the defendants in the Ministry of Justice had
participated in drafting and enacting unlawful orders and decrees, such as
those which discriminated against Poles, Jews, and others in occupied
territory, and the notorious „Nacht und Nebel‟ (Night and Fog) decree
under which civilians in the occupied territories were spirited away to
368
Germany for secret trial before special „courts.‟ The defendants were
also charged with imprisoning and killing Jews, and other members of
groups to which the Nazis were hostile, by trials which were a flagrant
travesty of the judicial process, and divers other offenses.
(a) Conspiracy to commit war crimes and crimes against humanity
All defendants were charged with conspiracy to commit war crimes

and crimes against humanity, and the unlawful participation in the
formulation and execution of plans to commit war crimes and crimes against
humanity.369
As mentioned before, the conspiracy charge was a favourite of the

American prosecution at Nuremberg.370 It was introduced in the London
Charter against the resistance of the French and Soviet delegations, and it
became the count for which the American prosecutors took responsibility at
the trial before the International Military Tribunal.371 Consequently, the
charge of conspiracy also became an important part of the indictment at the
Justice Trial.
Attacked by legal experts during the trial of the major war criminals
before the International Military Tribunal already, it was mainly criticised
that the concept of conspiracy was a new one to continental law and had
367
368
See Part V A General Remarks.
369
Gustafson, above n 365, 582; Justice Case, above n 9, 17-19.
370
See Part III A 2 Independence of the judges from US post-war politics.
371
Ibid.
93
developed in Anglo-Saxon law only.372 Furthermore, the critics argued that

“members and leaders of bands of criminals may be made responsible for all
crimes of the band, even if they cannot be shown to have participated
actively in each individual crime”, but in the case of Nazi crimes it “does
not provide any clear limit and is too little adapted to political reality” as it
would “make every leading National Socialist responsible for all crimes of
the regime.”373
On these grounds, the charge of conspiracy was objected by the

defence in several cases of the subsequent Nuremberg Trials.374 On 9 July
1947, five US military tribunals, including Tribunal III which was in charge
for the Justice Trial, held a joint session to hear the arguments of both
defence and prosecution in regard to the sufficiency of counts, which
charged defendants with conspiracy to commit war crimes and crimes
against humanity as a separate offence.375
In the end, Military Tribunal III disregarded the count, because it

found that it had no jurisdiction under the London Charter or Control
Council Law No. 10 to try conspiracy as a substantive crime.376
Additionally, the Tribunal stated:377
This Tribunal has held that it has no jurisdiction to try any defendant for
the crime of conspiracy as a separate substantive offense, but we
recognize that there are allegations in count one of the indictment which
constitute charges of direct commission of war crimes and crimes against
humanity. However, after eliminating the conspiracy charge from count
one, we find that all other alleged criminal acts therein set forth and
committed after 1 September 1939 are also charged as crimes in the
subsequent counts of the indictment. We therefore find it unnecessary to
pass formally upon the remaining charges in count one. Our
pronouncements of guilt or innocence under counts two, three, and four
dispose of all issues which have been submitted to us.
372
Ehard, above n 161, 81.
373
Ibid.
374
See generally United Nations War Crimes Commission, above n 223, 104-110; See also
Haensel, above n 161, 198-199.
375
United Nations War Crimes Commission, above n 223, 104.
376
Justice Case, above n 9, 956; Gustafson, above n 365, 582-583; See also Part III A 2
Independence of the judges from US post-war politics.
377
94
Thus, in the view of Military Tribunal III, the lack of jurisdiction did
not lead to a lack of punishment of certain actions of the defendants,
because those actions were also covered by the other counts.
Nevertheless, it is important to note that count one included crimes

committed in the period between January 1933, the time when the Nazis
took over power in Germany, and April 1945, the time when World War II
came to an end, whereas the other counts charged only crimes committed
between September 1939, the start of the war, and April 1945.378 As a result,
the judgment of the Justice Trial, at the end, was limited to crimes
committed during World War II, and did not include any evaluation of
actions of the defendants in times of peace.
(b) War crimes
Count two charged all the defendants with war crimes, including
plunder, murder, torture, illegal imprisonment and brutalities, atrocities and
other inhumane acts, against thousands of civilians of territories occupied by
Germany during the war and against soldiers of countries at war with
Germany, committed during the period between September 1939 and April
1945.379
The main allegations were that the Ministry of Justice had

participated in the execution of Hitler‟s Night and Fog Decree and the Nazi
programme of racial purity, had aided and implemented the unlawful
annexation and occupation of Czechoslovakia, Poland and France, and had
granted immunity to and amnesty for Nazi Party members who had been
prosecuted and convicted of major crimes.380
Codified for the first time in international law by Article 6 (b) of the
London Charter and Article II section (1) (b) of Control Council Law No.
378
Ibid, 955; See generally Ibid, 17-26.
379
Gustafson, above n 365, 582; Justice Case, above n 9, 19.
380
Justice Case, above n 9, 20-22; See also Part V A General Remarks.
95
10,381 this count was less subject to legal controversies during the
Nuremberg Trials than other charges, because it was principally based on
well-established traditional law like the Hague Convention of 1907 and
annexed regulations concerning the laws and customs of war on land.382
However, it established individual criminal responsibility at the

international level, whereas the Hague Regulations of 1907 had provided
that only states could be liable for compensation for acts committed by
members of their armed forces.383
In its judgment, Military Tribunal III evaluated the concept of war

crimes as established in the London Charter and Control Council Law No.
10 not as the creation of a new offence, but the first extensive embodiment
of acts in violation of the laws and customs of war.384 It stated:385
Here we observe the controlling effect of common international law as

such, for the statutes by which we are governed have adopted and
incorporated the rules of international law as the rules by which war
crimes are to be identified.
The concept of war crimes was limited to cover criminal acts against
non-Germans only and, therefore, did not include atrocities committed by
Germans against their own nationals.386 According to Tribunal III, this was
expressed very clearly in Article 6 of the London Charter which restricted
the listed acts of war crimes towards the population, soldiers or property “of
or in occupied territory” only.387
381
Charter of the International Military Tribunal, above n 42, art 6 (b); Control Council
Law No. 10 1945, above n 55, art II s (1) (b); See also Part II A 1 (c) Charter of the
International Military Tribunal and Part II A 1 (d) Allied Control Council Law No. 10.
382
383
Ibid; See also Part IV A 3 Individual liability.
384
385
Ibid, 971.
386
Ibid, 971-972; See generally Charter of the International Military Tribunal, above n 42,
art 6 (b); Control Council Law No. 10 1945, above n 55, art II s (1) (b); See also Part II A 1
(c) Charter of the International Military Tribunal and Part II A 1 (d) Allied Control Council
Law No. 10.
387
96
Similarly, the Tribunal interpreted Article II section (1) (b) of

Control Council Law No. 10, which at one place limited several war crimes
acts towards the “civilian population from occupied territory.”388
(c) Crimes against humanity
Under count three, all defendants were charged with crimes against
humanity, including murder, extermination, enslavement, deportation,
illegal imprisonment, torture, persecution on political, racial and religious
grounds, ill-treatment and other inhumane acts against German civilians and
nationals of occupied territories, committed between September 1939 and
April 1945.389
The allegations were basically similar to those charged under count

two, with the addition of the accusation that special health courts perverted
eugenic and sterilisation laws or policies which resulted in the systematic
murder and ill-treatment of thousands of persons, and the accusation that
German family and inheritance laws were changed by the Ministry of
Justice for the sole purpose of confiscating Jewish properties.390 Count
three, therefore, was wider than count two and, most notably, included
criminal acts committed against German nationals.391
The charges of count three were based on Article 6 (c) of the London
Charter and Article II section (1) (c) of Control Council Law No. 10.392
When looking at the definitions of war crimes and crimes against humanity
in these regulations, it becomes clear that war crimes may also constitute
388
Ibid.
389
390
391
392
See generally Charter of the International Military Tribunal, above n 42, art 6 (c); and
Control Council Law No. 10 1945, above n 55, art II s (1) (c); See also Part II A 1 (c)
Charter of the International Military Tribunal and Part II A 1 (d) Allied Control Council
Law No. 10.
97
crimes against humanity, because the same offences may amount to both
types of crime.393
Yet, the concept of crimes against humanity is broader than war

crimes in that criminal acts can be committed in either peace or war against
one‟s own citizens.394 In its judgment, Military Tribunal III stated:395
[The sections of crimes against humanity as defined in the London

Charter and Control Council Law No. 10] supplement the preceding
sections on war crimes and include within their prohibition not only war
crimes, but also acts not included within the preceding definition of war
crimes. In place of atrocities committed against civilians of or in or from
occupied territory, these sections prohibit atrocities „against any civilian
population‟. … C.C. Law 10 clearly demonstrates that acts by Germans
against German nationals may constitute crimes against humanity within
the jurisdiction of this Tribunal to punish.
However, Tribunal III also narrowed down the scope of crimes

against humanity by saying that isolated offences do not constitute crimes
against humanity, and that the proof of systematic governmental
organisation of the acts is a necessary element of the crime. It stated:396
We hold that crimes against humanity as defined in C.C. Law 10 must be

strictly construed to exclude isolated cases of atrocity or persecution
whether committed by private individuals or by governmental authority.
As we construe it, that section provides for punishment of crimes against
German nationals only when there is proof of conscious participation in
systematic government organized or approved procedures amounting to
atrocities and offenses of the kind specified in the act and committed
against populations or amounting to persecutions on political, racial, or
religious grounds.
The concept of crimes against humanity was discussed among legal

experts before, during and after the Nuremberg Trials. Prior to Nuremberg,
393
394
Otto Kranzbuehler “Nuremberg as a Legal Problem” in Wilbourn E Benton and Georg
Grimm (eds) Nuremberg: German Views of the War Trials (Southern Methodist University
Press, Dallas, 1955) 118.
395
396
Ibid, 982.
98
crimes against humanity did not exist as a legal category.397 It was codified
for the first time in the London Charter for the International Military
Tribunal, because some of the atrocities committed by the Nazis during
World War II, such as the planned and systematic persecution and
extermination of the European Jews and Gypsies and many other inhumane
acts based on political, racial or religious grounds, did not qualify as war
crimes under existing international law.398
Yet, there was uncertainty whether the new concept of crimes

against humanity as established in the London Charter was just the
codification of common international law or the creation of something
completely new.399
Critics like Otto Kranzbuehler, a German lawyer who represented

Grand Admiral Karl Doenitz in the trial against the major war criminals
before the International Military Tribunal, and who was one of the leading
defenders in the cases of the subsequent Nuremberg Trials against the
German industrialists Friedrich Flick (Case 5) and Alfried Krupp (Case
10),400 stated that the typical feature of this crime was its characterisation as
a governmental crime and, therefore, “the acceptance of this crime
necessarily includes the liability of the perpetrators, namely the
government.”401 As a result, he argued: “Such a crime clearly offers a
possibility for intervention by any foreign power in the domestic policy of a
defeated country before and during the war, depending only on vastly
undefined moral concepts.”402
397
Sheri P Rosenberg “The Nuremberg Trials: A Reappraisal and their Legacy” (2006) 27
Cardozo L Rev 1549, 1550; See also Mark Aarons “Justice Betrayed: Post-1945 Responses
to Genocide” in David A Blumenthal and Timothy L H McCormack (eds) The Legacy of
Nuremberg: Civilising Influence or Institutionalised Vengeance? (Martinus Nijhoff
Publishers, Leiden, 2008) 73.
398
Rosenberg, above n 397, 1550; Beigbeder, above n 20, 47.
399
Bassiouni, above n 4, 535-536.
400
International Military Tribunal I, above n 1, 6; The United States of America v Friedrich
Flick and others (Flick Case) (1947) VI Trials of War Criminals before the Nuernberg
Military Tribunals under Control Council Law No. 10 (Case No 5) 9; The United States of
America v Alfried Krupp and others (Krupp Case) (1947-1948) IX Trials of War Criminals
before the Nuernberg Military Tribunals under Control Council Law No. 10 (Case No 10)
6.
401
Kranzbuehler, above n 394, 118-119.
402
Ibid, 119.
99
In Kranzbuehler‟s view, the concept of crimes against humanity was

a new one and violated international law by granting foreign governments
the right to interfere into a state‟s sovereignty.403 Military Tribunal III had a
different view. It stated:404
The force of circumstance, the grim fact of world-wide interdependence,

and the moral pressure of public opinion have resulted in international
recognition that certain crimes against humanity committed by Nazi
authority against German nationals constituted violations not alone of
statute but also of common international law.
Regarding the novelty of crimes against humanity and the possibility

of interventions into another state‟s sovereignty, it is true that the
codification of the concept was new. However, historically, the concept was
not new at all.
In 1827, for example, England, France and Russia intervened in the

Greco-Turkish warfare to end the atrocities;405 in 1840, President Van Buren
intervened in Turkish affairs on behalf of the prosecuted Jews of Damascus
and Rhodes;406 in 1861, the French intervened in Lebanon to check on
religious atrocities;407 and in 1915, during World War I, a joint declaration
of Great Britain, France and Russia explicitly described the Turkish
massacres of Armenians as “crimes against humanity and civilisation.”408
Additionally, the first Hague Convention of 1899 on Laws and Customs of
War on Land invoked humanity as a norm and, according to Caroline
Fournet, considered “„the laws of humanity‟ as being the mould of
„principles of international law.‟”409
403
Ibid, 119; See also Part II A 2 (b) The issue of Germany‟s remaining sovereignty.
404
405
Ibid, 981.
406
Ibid.
407
Ibid.
408
Caroline Fournet International Crimes: Theories, Practice and Evolution (Cameron
May, London, 2006) 27.
409
Ibid.
100
Also, it is a matter of fact that the elements of the newly defined

crimes against humanity were similar to those which constituted murder,
torture, rape and other atrocities that were and are universally proscribed.410
In the end, therefore, it cannot be said that the concept of crimes

against humanity was something completely new or unknown prior to 1945.
Faced with the horrors committed during World War II, the Allies were not
to repeat their failure in regard of punishing war criminals after World War
I, and created the London Charter to let the existing concept of crimes
against humanity finally emerge into positive international law.411
Military Tribunal III concluded its evaluation of this issue with the
following statement, which is a good summary of the outcome of the legal
analysis above:412
Whether the crime against humanity is the product of statute or of

common international law, or, as we believe, of both, we find no injustice
to persons tried for such crimes. They are chargeable with knowledge that
such acts were wrong and were punishable when committed.
(d) Membership in criminal organisations
Seven of the defendants were charged with membership in an

organisation declared criminal by the International Military Tribunal. The
charges were based on Articles 9 and 10 of the London Charter, and Article
II section (1) (d) of Control Council Law No. 10.413
In its judgment, the International Military Tribunal had declared the

following Nazi organisations as criminal: the Leadership Corps of the Nazi
410
Aarons, above n 397, 73.
411
Fournet, above n 408, 29.
412
413
See generally Charter of the International Military Tribunal, above n 42, arts 9, 10;
Control Council Law No. 10 1945, above n 55, art II s (1) (d); See also Part II A 1 (c)
Charter of the International Military Tribunal and Part II A 1 (d) Allied Control Council
Law No. 10.
101
Party, the Gestapo,414 the SD415 and the SS416. Altstoetter, Cuhorst, Engert
and Joel were charged with membership in the SS; Cuhorst, Oeschey,
Nebelung and Rothaug were charged with membership in the Leadership
Corps of the Nazi Party; and Joel was charged with membership in the
SD.417
The count was criticised by legal experts for that it was based purely
on the judgment of the International Military Tribunal and, according to the
famous British General and lawyer J H Morgan, “the „views‟ of a military
tribunal can neither change International Law nor create it.”418
Yet, it has to be asked, in absence of a world authority in 1945, who

if not this tribunal, which consisted of members of the four most powerful
countries at the time and, furthermore, was fully authorised by the
Governments of those four and 19 other countries who had signed the
London Agreement, should have been able to judge instead.419
However, the International Military Tribunal itself limited the use of

the count only to persons who had knowledge of the criminal purposes or
acts of the organisation, and those who voluntarily became members and
were not drafted by the State for membership.420 The Tribunal introduced a
test to determine the guilt or innocence of an individual member of a
414
The Gestapo was the secret state police of Nazi Germany, responsible for the
elimination of any opposition to the Nazis within Germany and its occupied territories. It
was also responsible for the roundup of Jews throughout Europe and their deportation into
extermination camps. “Gestapo” www.britannica.com (last accessed 17 March 2010).
415
“The Sicherheitsdienst des Reichsfuehrers-SS (commonly known as the SD), a
department of the SS, was developed into a vast espionage and counter-intelligence system
which operated in conjunction with the Gestapo and criminal police in detecting,
suppressing and eliminating tendencies, groups and individuals deemed hostile or
potentially hostile to the Nazi Party, its leaders, principles and objectives, and eventually
was combined with the Gestapo and criminal police in a single security police department,
the Reich Main Security Office.” International Military Tribunal I, above n 1, 82.
416
The Schutzstaffeln der NSDAP (commonly known as the SS) was an elite corps of the
Nazi Party, consisting of many sub-departments, including the SD. Founded by Hitler in
1925 as a small personal bodyguard, it developed into the most powerful and brutal force of
Nazi Germany, dealing with military, policy, and racial matters. During World War II, the
SS carried out massive executions of political opponents, Gypsies, Jews, Polish leaders,
Communist authorities, partisan resisters and Russian prisoners of war. “SS”
www.britannica.com (last accessed 17 March 2010).
417
418
Morgan, above n 359, 8.
419
See Part II A 1 (b) London Agreement of 8 August 1945.
420
International Military Tribunal I, above n 1, 256.
102
criminal organisation. Hereafter, members were to be declared criminal only

when they421
became or remained members of the organisation with knowledge that it

was being used for the commission of acts declared criminal by Article 6
of the Charter, or … were personally implicated as members of the
organisation in the commission of such crime.
As a result, the final decision whether the individual member was

guilty or not always remained at the respective court‟s own discretion.422
Therefore, although just membership in a specific organisation could bring
one to trial, the count itself cannot be evaluated as a violation of
international law as the decision for guilt or innocence exclusively depended
on the member‟s personal contribution to the crimes committed by the
organisation.
In its judgment, Military Tribunal III, furthermore, demonstrated

clearly that the decision of the International Military Tribunal in respect to
criminal organisations had no bias and the courts retained their
independence. It stated:423
C.C. Law 10 provides that we are bound by the findings as to the criminal
nature of these groups or organisations. However, it should be added that
the criminality of these groups and organisations is also established by the
evidence which has been received in the pending case. Certain of the
defendants are charged in the indictment with membership in the
following groups or organisations which have been declared and are now
found to be criminal, to wit: The Leadership Corps, the SD, and the SS. In
passing upon these charges against the respective defendants, the Tribunal
will apply the tests of criminality set forth above.
421
Ibid, 262.
422
423
Ibid, 1031.
103
2 The ex post facto principle (nullum crimen sine lege, nulla poena sine
lege)
The major point of criticism regarding the Justice Trial and all other
Nuremberg Trials was the reproach that the newly defined crimes in the
London Charter and Control Council Law No. 10, especially the category of
crimes against humanity, violated the principle of nullum crimen sine lege,
nulla poena sine lege (no crime without law, no punishment without law).424
The doctrine, also known as the ex post facto principle, postulates

“that a person may only be held criminally liable and punished if, at the
moment when he performed a certain act, the act was regarded as a criminal
offence by the relevant legal order.”425
The principle derived from the era of the Enlightenment and reflects
the idea of separation of powers after the French political thinker
Montesquieu, who basically said that the judiciary must judge only where
the legislation had enacted a corresponding law to protect the individual as
the owner of inherent inviolable rights from unforeseeable and arbitrary use
of power by the state.426
The German penal code, created in 1871 and with many amendments
used ever since, holds onto this principle until today. 427 Only during the
Nazi regime was the principle suspended from German criminal law.428
Thus, it is an irony of fate that the defendants in the Justice Trial

claimed protection under this principle, although they ignored it as a
424
Friedman, above n 2, 81; Bassiouni, above n 4, 526.
425
Antonio Cassese “Nullum Crimen Sine Lege” in Antonio Cassese (ed) The Oxford
Companion to International Criminal Justice (Oxford University Press, Oxford, 2009) 438.
426
Lore Maria Peschel-Gutzeit and Anke Jenckel “Aktuelle Bezuege des Nuernberger
Juristenurteils: Auf welchen Grundlagen kann die deutsche Justiz das Systemunrecht der
DDR aufarbeiten?“ in Lore Maria Peschel-Gutzeit Das Nuernberger Juristen-Urteil von
1947 (Nomos Verlag, Baden-Baden, 1996) 279.
427
German Criminal Code 1871 (as amended on 4 July 2009), ss (1) and (2).
428
Gesetz zur Aenderung des Strafgesetzbuches vom 28. Juni 1935 (Law Concerning the
Alteration of the Penal Code from 28 June 1935) 70 RGBl 1935 I 839, art 1 para (2); See
also Justice Case, above n 9, 990.
104
defence plea during their terms in office and had celebrated its official
suspension in 1935 as progress within the Nazi judicature.429 Military
Tribunal III commented: “The defendants claim protection under the
principle nullum crimen sine lege, though they withheld from others the
benefit of that rule during the Hitler regime.”430
Nevertheless, the objections of the defence were understandable

from a formal point of view, and the Tribunal extensively dealt with this
issue.431
The defendants primarily claimed that they had no guilty knowledge,

which means that they lacked any feeling of doing wrong because they
acted in conformity with the given law, and argued that “heute nicht
Unrecht sein kann, was gestern Recht war” (it cannot be wrong today, what
was right yesterday).432
Against this, Military Tribunal III stated as follows:433
Under written constitutions the ex post facto rule condemns statutes

which define as criminal, acts committed before the law was passed, but
the ex post facto rule cannot apply in the international field as it does
under constitutional mandate in the domestic field. Even in the domestic
field the prohibition of the rule does not apply to the decisions of common
law courts, though the question at issue be novel. International law is not
the product of statute for the simple reason that there is as yet no world
authority empowered to enact statutes of universal application.
International law is the product of multipartite treaties, conventions,
judicial decisions and customs which have received international
acceptance or acquiescence. It would be sheer absurdity to suggest that
the ex post facto rule, as known to constitutional states, could be applied
to a treaty, a custom, or a common law decision of an international
tribunal, or to the international acquiescence which follows the event. To
have attempted to apply the ex post facto principle to judicial decisions of
common international law would have been to strangle that law at birth.
429
Susanne Schott “Curt Rothenberger: Eine politische Biographie” (PhD Thesis,
University of Halle-Wittenberg, Germany, 2001) 163.
430
431
See generally Ibid, 974-979.
432
Kastner “Der Dolch des Moerders war unter der Robe des Juristen verborgen: Der
Nuernberger Juristen-Prozess 1947”, above n 317, 701.
433
105
This argument in favour of the non-applicability of the ex post facto

principle in international law was shared by the International Military
Tribunal and many legal experts.434
The legal theorist and German jurist Gustav Radbruch agreed that
the principle could not be applied in the cases at Nuremberg, but he argued
with a different approach which became known as the Radbruch
Formula.435 Emerging from the public dispute over the role of law in Nazi
Germany between the theories of naturalism, which “seeks to connect law
with a higher moral code”436, and positivism, which “is content to identify
law in an amoral, descriptive fashion”437, Radbruch‟s Formula reads as
follows:438
The conflict between justice and legal certainty may well be resolved in
this way: The positive law, secured by legislation and power, takes
precedence even when its content is unjust and fails to benefit the people,
unless the conflict between statute and justice reaches such an intolerable
degree that the statute, as „flawed law‟, must yield to justice. It is
impossible to draw a sharper line between cases of statutory lawlessness
and statutes that are valid despite their flaws. One line of distinction,
however, can be drawn with utmost clarity: Where there is not even an
attempt at justice, where equality, the core of justice, is deliberately
betrayed in the issuance of positive law, then the statute is not merely
„flawed law‟, it lacks completely the very nature of law. For law,
including positive law, cannot be otherwise defined than as a system and
an institution whose very meaning is to serve justice.
In short, Radbruch‟s Formula can be expressed as follows: Although

appropriately enacted and socially effective, laws lose their legal character
or their legal validity when they are extremely unjust. Radbruch had
developed this approach exclusively in respect to the Nazi laws and
434
Ibid, 975-979
435
See generally Gustav Radbruch “Statutory Lawlessness and Supra-Statutory Law
(1946)” translated by Bonnie Litschewski-Paulson and Stanley L Paulson (2006) 26 Oxford
J Legal Stud 1, 1 et seq.
436
Grant Morris Law Alive: The New Zealand Legal System in Context (Oxford University
Press, Oxford, 2008) 158; See also generally H L A Hart “Positivism and the Separation of
Law and Morals” (1958) 71 Harv L Rev 593, 593 et seq; and Lon L Fuller “Positivism and
Fidelity to Law: A Reply to Professor Hart” (1958) 71 Harv L Rev 630, 630 et seq.
437
Ibid.
438
Radbruch, above n 435, 7.
106
concluded: “Measured by this standard, whole portions of National Socialist

law never attained the dignity of valid law.”439
Similar views were expressed by other legal experts,440 but

Radbruch‟s Formula gained universal attention and was applied by several
courts in later trials, for example, by German civil courts in the Wall-
shooters’ trials after the unification of Germany.441
With respect to the Radbruch Formula, the validity of positive law is

not unrestricted. When justice is violated in an extreme manner, statutes can
turn into non-law and, in reverse, non-law can turn into positive or, at least,
applicable law. Consequently, retrospective laws can become applicable if
an inadequacy between justice and legal certainty emerges. An example
would be, if one is acting in a way that he or she knows is unjust but not
punishable and uses the benefits of the ex post facto principle to betray its
original aim, the creation of justice.
In both approaches, the non-applicability of the ex post facto

principle in international law and the idea of the Radbruch Formula,
defendants do not benefit from the principle because it has to stand back in
favour of the creation of justice as the ultimate purpose. For the Justice Trial
this meant that it had to be balanced out whether the general predictability
and undermining of law or an unjust verdict would have been the smaller
risk.
Insofar as the defendants acted in the confidence of a penal code that

did not recognise their actions as crimes, they were disappointed in their
legal certainty by Control Council Law No. 10. This confidence, however,
was limited already because representatives of the countries occupied by
Germany and the four Allies had declared in multiple official statements
throughout the war, starting as early as 1940, that the persons responsible
439
Ibid.
440
See for example Woetzel, who stated: “Since it is an ethical principal rather than a rule
of law, it may be set aside if considerations of justice demand it.” Woetzel, above n 14,
112.
441
See generally Horst Dreier “Gustav Radbruch und die Mauerschuetzen” (1997) 52
Juristen Zeitung 421, 421-434; See also Part VI A 2 Criticism and Part VI A 3 Conclusion.
107
for the atrocities committed in their countries will be punished.442 This

could not be remained unnoticed by the defendants.
Additionally, as expressed by Sir David Maxwell Fyfe, one of the

British prosecutors at the first Nuremberg Trial, the defendants must have
been aware of that their actions were criminal:443
With regard to „crimes against humanity‟, this at any rate is clear: the
Nazis, when they persecuted and murdered countless Jews and political
opponents in Germany, knew that what they were doing was wrong and
that their actions were crimes which had been condemned by the criminal
law of every civilised State.
Furthermore, the newly constituted crime against humanity, from its

content, corresponded with the existing German penal laws, because
deprivation of liberty, battery, rape and murder had always been punishable
crimes.444 In this context, Military Tribunal III stated:445
Many of the laws of the Weimar era which were enacted for the
protection of human rights have never been repealed. Many acts
constituting war crimes or crimes against humanity as defined in C.C.
Law 10 were committed or permitted in direct violation also of the
provisions of the German criminal law. It is true that this Tribunal can try
no defendant merely because of a violation of the German penal code, but
it is equally true that the rule against retrospective legislation, as a rule of
justice and fair play, should be no defence if the act which he committed
in violation of C.C. Law 10 was also known to him to be a punishable
crime under his own domestic law.
After all, a violation of the ex post facto principle by Control

Council Law No. 10, therefore, is only a violation in a very formal sense,
because no actions were criminalised by the law that were not already
punishable before.
442
Baestlein, above n 12, 12; See also Part II A 1 (a) Declaration on German Atrocities
(Moscow Declaration 1943).
443
444
445
108
3 Individual liability
The London Charter, for the first time in history, established the rule
that individuals are liable for their actions under international criminal
law.446
There had been efforts before to introduce individual responsibility

in international law, for example, the Treaty of Versailles, but the overall
failure to prosecute the war criminals after World War I, including the
unsuccessful attempt to capture the German Emperor Wilhelm II, led to the
stagnation of this concept.447 As a result, the Acts of State doctrine remained
the dominating principle in international law, meaning that only states are
subject to international law and individuals cannot be made responsible for
their actions, which they performed as an instrument or organ of the state.448
The new approach of the London Charter soon became the target of
the defence in all Nuremberg Trials, who claimed that the concept violated
international law, and the defendants could be held individually responsible
only under national law.449 Additionally, the defence in the Justice Trial
claimed that the defendants could not be held personally liable, because they
were not responsible for the transformation of the German law into an
instrument of the Nazis.450
Related to the classical plea of just obeying superior orders, it was

argued that the different decrees, orders, directives, decisions and
instructions had been solely based on the decisions of Hitler.451 After the so
446
Charter of the International Military Tribunal, above n 42, arts 6-8; See also Part II A 1
(c) Charter of the International Military Tribunal.
447
See Part II A 2 (c) (i) Historical experience.
448
Woetzel, above n 14, 68; See also Part II A 2 (c) (i) Historical experience and Part VI A
1 Development.
449
Woetzel, above n 14, 104-108; See also International Military Tribunal I, 168-170.
450
Justice Case, above n 9, 1062; See also Hermann Jahrreiss “Statement before the
Nuremberg Tribunal” in Wilbourn E Benton and Georg Grimm (eds) Nuremberg: German
Views of the War Trials (Southern Methodist University Press, Dallas, 1955) 67-72.
451
Jahrreis, above n 450, 71-72; See also Part V A 1 (f) The execution of the law in Nazi
Germany.
109
called Fuehrer Principle, which had been established in all governmental

areas of Nazi Germany after the Nazis had taken over power, Hitler was the
supreme legislator as well as the supreme judge.452 His will, therefore, was
the final authority, and his orders constituted law directly.453
However, there was an unusual consensus among legal experts and

the judges of the Nuremberg Tribunals – certainly caused by the growing
knowledge about the atrocities committed by the Nazis all over Europe –
that individuals have to be held responsible for their actions.
Military Tribunal III referred to the judgment of the International

Military Tribunal, which had stated as follows: 454
It was submitted that international law is concerned with the actions of

sovereign States, and provides no punishment for individuals; and further,
that where the act in question is an act of State, those who carry it out are
not personally responsible, but are protected by the doctrine of the
sovereignty of the State. In the opinion of the Tribunal, both these
submissions must be rejected. That international law imposes duties and
liabilities upon individuals as well as upon States has long been
recognized ... Crimes against international law are committed by men, not
by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced.
According to Robert K Woetzel, an individual may be held

responsible for a crime under international law, when it “is an act which
injures not only the state against which it is directed, but the whole
international community.”455
The different Nuremberg Tribunals argued similarly and “insisted

that inhumane acts such as murder, deportation, enslavement, and
persecution on the basis of racial and religious grounds shocked the
conscience of every decent human being.”456 They concluded “that those
452
Justice Case, above n 9, 1010-1011; See also Part V A 1 (f) The execution of the law in
Nazi Germany.
453
Jahrreiss, above n 450, 67, 72; See also Part V A 1 (f) The execution of the law in Nazi
Germany.
454
Justice Case, above n 9, 1062; International Military Tribunal I, 222-223.
455
Woetzel, above n 14, 108-109.
456
110
who participated in such conduct could not claim that they did not realize
the illegality of their actions.”457
Additionally, the Nuremberg Tribunals dealt with the question

whether the doctrine of individual liability was legally introduced in
international law by the London Charter. Military Tribunal III stated:458
International law is not the product of statute. Its content is not static. The
absence from the world of any governmental body authorized to enact
substantive rules of international law has not prevented the progressive
development of that law. After the manner of the English common law it
has grown to meet the exigencies of changing conditions. It must be
conceded that the circumstance which gives to principles of international
conduct the dignity and authority of law is their general acceptance as
such by civilized nations, which acceptance is manifested by international
treaties, conventions, authoritative textbooks, practice, and judicial
decisions.
This reasonable argument makes sense, especially when one looks at

the new dimensions of crimes committed by Nazi Germany, which were
without precedent in world history.459
The world community was challenged to make a necessary reaction,

and the London Charter as part of the London Agreement was the result of a
joint decision of the three most powerful nations at the time, the United
States, Great Britain and the Soviet Union, and 19 other nations of the
civilised world.460 Also, it has to be taken into consideration that Germany
practically had lost its self determination after the war, and the existing
German Nazi laws were obviously inappropriate to use.461
Additionally, in support of individual liability under international

law, J H Morgan, generally in opposition to the Nuremberg Trials, may be
cited here with a comment he made on the plea of just obeying superior
457
Ibid.
458
459
See Part II B The Moral Necessity of the Trial.
460
See Part II A 1 (b) London Agreement of 8 August 1945.
461
See Part II A 2 (b) (iii) Evaluation.
111
orders by the defendants in the trial of the major war criminals before the
International Military Tribunal:462
The general directive, the „superior orders‟, of Hitler were so infamous

that any officer with any sense of honour would sooner have died a
soldier‟s death by shooting than obey them. These paladins of the German
Army preferred to live – to live only to die a felon‟s death by hanging.
They had had their alternative.
Although not related to the non-military defendants of the Justice

Trial, this statement makes clear that the establishment of individual liability
under international law was supported by the vast majority of international
legal experts.
In the end, the concept of individual liability cannot be seen as a

violation of international law and, therefore, also not as an occurrence of
victor‟s justice.
4 The tu quoque argument
During the first Nuremberg Trial before the International Military

Tribunal, Hermann Goering, the infamous Reichsmarschall and second
most powerful Nazi after Hitler, stated: “The victor will always be the
judge, and the vanquished the accused.”463
Although this was just another polemic expression of Goering‟s

general opinion about the trial, he, in fact, was right. At Nuremberg, only
German war criminals were tried and any charges that the Allies had also
committed war crimes and crimes against humanity were rejected by the
tribunals as outside the terms of the London Charter and, therefore, outside
their mandate.464
462
Morgan, above n 359, 16.
463
464
Beigbeder, above n 20, 39; See also generally Justice Case, above n 9, 970-971.
112
As a result, the different tribunals were charged with the

pronouncement “that it is wrong to try Germans for crimes while the same
crimes have been or are being committed by individuals of other nations.”465
This accusation was based on the most classical approach of victor‟s justice:
the argument of tu quoque (you, also), which denounces that the standards
of law applied to the defeated Germans were not applied to the victorious
Allies.466
Article 6 of the London Charter limited the jurisdiction of the

International Military Tribunal “to try and punish persons who, acting in the
interests of the European Axis countries” only.467 The 12 US military
tribunals at Nuremberg, including Tribunal III, relied heavily on the Charter
and followed the same path.468
Nevertheless, it is a matter of fact that the Allies also committed war

crimes and crimes against humanity, for example, the American and British
strategic bombings on exposed German cities like Hamburg and Dresden in
1945, the failure of American submarines to pick up survivors in the Pacific
Ocean, the dropping of the Atomic bombs on Japan by the US Air Force and
the numerous atrocities committed by the Russians, including the massacre
of Polish soldiers in Katyn Forest and the mistreatment of prisoners of
war.469
Military Tribunal III acknowledged these facts by stating:470
It must be admitted that Germans were not the only ones who were guilty
of committing war crimes; other violators of international law could, no
doubt, be tried and punished by the state of which they were nationals, by
465
LaFollette, above n 280, 9; See also Friedman, above n 2, 79-80.
466
Bassiouni, above n 4, 525-526; Christoph Burchard “Goering and others” in Antonio
Cassese (ed) The Oxford Companion to International Criminal Justice (Oxford University
Press, Oxford, 2009) 700.
467
Charter of the International Military Tribunal, above n 42, art 6.
468
Bassiouni, above n 4, 532.
469
Robert E Conot Justice at Nuremberg (Harper & Row, New York, 1983) 452-455;
Salman Kazmi “Is Victor‟s Justice in Nuremberg Trial Justified or Not?” (Publication
Quaid-e-Azam Law College, Pakistan, 2006) 3-4; Alexandra Letzel “International
Precedent or Victor‟s Justice” (Writing, University of California Santa Barbara, United
States, 2007) 5-8.
470
113
the offended state if it can secure jurisdiction of the person, or by an

international tribunal if of competent authorized jurisdiction.
However, it also denied its own jurisdiction for the trial of non-
German nationals, because Control Council Law No. 10 “is limited” and
“specifically directed to the punishment of German criminals.”471
In his opening speech for the prosecution in the first Nuremberg

Trial before the International Military Tribunal, Robert H Jackson had
stated:472
We must never forget that the record on which we judge these defendants
today is the record on which history will judge us tomorrow. To pass
these defendants a poisoned chalice is to put it to our own lips as well.
And in another place:473
And let me make clear that while this law is first applied against German
aggressors, the law includes, and if it is to serve a useful purpose it must
condemn aggression by any other nations, including those which sit here
now in judgment.
Yet, these high demands were never realised. After World War II, no
member of the Allied armed forces had faced criminal responsibility for war
crimes, although the Allies were aware of that such had been committed;474
Curtis LeMay, an US Air Force pilot who had targeted 63 Japanese cities
for annihilation by American bombing, once said: “I suppose if I had lost
the war, I would have been tried as a war criminal. Fortunately, we were on
the winning side.”475
As a result, it remains that the value of the achievements of

Nuremberg is impaired by the failure of the Allies to pursue any prosecution
of their own. Therefore, one has to agree with Professor M Cherif Bassiouni
who stated: “This is not to say that those who were prosecuted did not
471
Ibid, 972-973.
472
The United States of America, the French Republic, the United Kingdom of Great
Britain and Northern Ireland, and the Union of Soviet Socialist Republics v Hermann
Wilhelm Goering and others (International Military Tribunal) (1945-1946) II Trial of the
Major War Criminals before the International Military Tribunal 101.
473
Ibid, 154.
474
475
Ibid, 8-9.
114
deserve it, but rather that on the Allies‟ side there were many similar crimes
that warranted prosecution, but were conveniently overlooked.”476
It is important to say here that such similar crimes were not even
close to some of the atrocities committed by Nazi Germany, for example,
the organisation and execution of the Holocaust, and therefore, it is not
intended to compare German and Allied war crimes on the same level; but
under the provisions of the London Charter and Control Council Law No.
10, it is likely that Allied actions, such as the atomic bombing of Japanese
cities or the mistreatment of prisoners of war, constituted crimes against
humanity.
In his evaluation of the Nuremberg Trials, Otto Kranzbuehler

stated:477
In the entire public political appraisal of the Nuremberg proceedings one

fact must be regarded in the right light: the fact that proceedings of this
kind have been, and in the near future will be, conducted against members
of defeated nations only.
Although may not intended by the creators of the London Charter, this
statement truly describes a negative side of Nuremberg‟s legacy and
confirms the words of Goering.
Hence, the refusal of the Allies to bring to trial members of their

own nations, in the end, caused a valid reproach of the Nuremberg Trials as
an example of victor‟s justice.
5 Conclusion
The counts within the Justice Trial were based on a code that was
legally enacted by the Allies with support from the world community.478
The difficulties of punishing war crimes and crimes against humanity under
476
Bassiouni, above n 4, 554.
477
Kranzbuehler, above n 394, 125.
478
See Part II A 2 (b) The issue of Germany‟s remaining sovereignty.
115
international law before World War II were surmounted by the codification

of these laws. Nevertheless, it was widely criticised as a violation of
international law.
Indeed, the new criminal concepts changed the traditional

international law, but it did not violate it. As shown above, neither was the
ex post facto principle, in its basic idea, violated, nor did the establishment
of individual responsibility violate any law.
The scope of German atrocities was unique and without precedent in

world history and made it necessary to change the antiquated rules of
international criminal law. Thus, in respect to the issues of the ex post facto
principle and individual liability, the appointment and proceedings of the
tribunals at Nuremberg, including Military Tribunal III, were not examples
of victor‟s justice.
A different story, unfortunately, was the refusal of the United States

and the other Allied Governments to bring to trial nationals of their own
countries for crimes which fell under the same categories of crimes as
defined in the London Charter and Control Council Law No. 10, and which
the defendants in the Justice Trial were accused of.
This has to be evaluated as an example of victor‟s justice, because

here obviously not the rule of law but the rule of the victors prevailed.
B Fairness of the Trial
In 1949, the Chief Prosecutor of the subsequent Nuremberg Trials,

Telford Taylor, stated in an essay:479
The procedures at Nuremberg were largely the product of evolution based

on actual experience there. Certainly some difficult and unusual problems
arose out of the mixture of different legal systems and the novelty of the
479
Telford Taylor “The Nuremberg War Crimes Trials: An Appraisal” (1949) 23
Proceedings of the Academy of Political Science 19, 24.
116
situation, and there is room for honest differences of opinion on a number

of points. But the fundamental fairness of the trials was patent to the
observer and will, I believe, be apparent to anyone who examines the
record of the proceedings.
Indeed, besides some German critics,480 there is a broad consensus

that the Nuremberg Tribunals were characterised by a sense of fairness and
impartiality.481 According to Jonathan Friedman, all Nuremberg Trials
“adopted numerous safeguards from Anglo-American legal tradition,
including the right to counsel, the presumption of innocence, and the rule
that conviction is dependent upon proof of the crime beyond a reasonable
doubt.”482
Furthermore, in the Justice Trial, the defence was granted free access
to the US Army Document Centres,483 and the prosecution furnished the
defence with German-language copies of their exhibits before they were
submitted into evidence.484
As a result, the defence in the Justice Trial offered 518 affidavits, of

which the prosecution called only three for cross-examination, compared to
76 affidavits offered by the prosecution, of which the defence called 64.485
Additionally, the defence offered 1,452 documentary exhibits compared to
only 641 of the prosecution;486 and from the 138 witnesses heard by the
Tribunal, the majority was called by the defence.487
In its judgment, Military Tribunal III stated:488
Whenever possible, and in substantially all cases, applications of defense

counsel for the production in open court of persons who had made
affidavits in support of the prosecution, have been granted and the affiants
480
See generally for examples Wilbourn E Benton and Georg Grimm (eds) Nuremberg:
German Views of the War Trials (Southern Methodist University Press, Dallas, 1955).
481
482
Ibid.
483
Baestlein, above n 12, 17; See also Part III A 2 Independence of the judges from US
post-war politics.
484
485
LaFollette, above n 280, 9.
486
487
Ibid.
488
Ibid.
117
have appeared for cross examination. Affiants for the defense were cross
examined orally by the prosecution in comparatively few cases.
The differences in the numbers can be easily explained by the fact

that the captured German documents offered huge amounts of incriminating
evidence against the defendants, and the prosecution only needed to present
the most serious ones, whereas the defence could hardly find any
exonerating material.489 However, it shows clearly that the defendants were
not handicapped in their defence and, in the end, also the defence counsels
in the Justice Trial agreed that the basic principles of due process were not
violated at the proceedings.490
Furthermore, the US administration created a social environment for

the defendants and their lawyers, which, compared to the general living
conditions in 1947 in the war-damaged city of Nuremberg, could be
described as almost luxurious. As described in Telford Taylor‟s Final
Report, the “prison temperature ... the caloric content of the food, and other
conditions in the jail” were constantly checked,491 and the492
[d]efense counsel were paid 3,500 RM (Reichsmark) per defendant per

month ... Defense counsel who did not live in Nuremberg were provided
with billets through arrangements made by the Defense Center. They
were also entitled to three meals per day at a cost of only 50 pfennigs per
meal, and were issued gratis a carton of cigarettes each per week. They
were also provided with office space, furniture, and office supplies in the
Palace of Justice. Witnesses requested by defense counsel were procured
and were housed, fed, and paid ... without cost to the defense. When
defense counsel found it necessary to travel to interview witnesses or for
other reasons connected with the trial, railway transportation or the
necessary amount of gasoline for privately owned automobiles was
furnished free of charge. Extensive clerical and translation assistance,
together with a great variety of other services, was also rendered.
Nevertheless, besides these positive aspects of the trial-proceedings,

two issues were always considered disadvantages for the defendants: firstly,
489
490
Ibid, 19.
491
492
Ibid, 49.
118
that the proceeding was based on the Anglo-American tradition with the
tools of examination, cross-examination and re-examination, which the
German lawyers were not familiar with;493 and secondly, the lack of any
appellate instance to affirm or void the judgments.494
The missing of an appellate court created a constant headache for the

US authorities who wanted the Nuremberg Trials not only as an institution
to punish the German war criminals but also as a model to demonstrate the
virtue of democracy.495 In the end, this problem was solved by the
implementation of substitutes, such as the granting of extensive clemency
and regular administrative sentence reviews, what turned out to be only
advantageous for the convicted defendants of the Justice Trial, as they were
all released early from prison in the 1950s.496
The other aspect, the unfamiliarity of the defence counsels with the
Anglo-American style of procedure, concerned many jurists before the start
of the trial. However, the fact that the Tribunal was established as an
international and not a German court,497 and the ability of the defence to
cope with the proceedings, let the initial disadvantage vanish.
According to Henry L Stimson,498
the law demands three things: that the defendant be charged with a
punishable crime; that he have full opportunity for defense; and that he be
judged fairly on the evidence by a proper judicial authority. Should it fail
to meet any of these three requirements, a trial would not be justice.
A show trial, on the other hand, Gary J Bass describes as follows:499
[A] show trial has no chance of returning an acquittal, keeps the judges in
thrall to the prosecution and behind that the state, cares little for
493
Baestlein, above n 12, 19; See generally Military Ordinance No. 7 1946, above n 68; See
also Part II A 1 (e) Ordinance No. 7 of the US Military Government for Germany.
494
Buscher, above n 72, 21; See also Part VI B 3 The amnesties of the 1950s.
495
Buscher, above n 72, 2; See also Part II B The Moral Necessity of the Trial.
496
Buscher, above n 72, 22; See also Part VI B 3 The amnesties of the 1950s.
497
See Part II A 2 (c) (ii) The violation of the principle of separation of powers.
498
Marrus The Nuremberg War Crimes Trial 1945-1946: A Documentary History, above n
159, 244.
499
119
procedure or standards of evidence, and has a propensity toward the quick

execution.
When looking at these definitions, the proceedings of the Justice

Trial have to be considered as fair. The defendants were charged with
punishable crimes, and they received a fair proceeding. Although naturally
disadvantaged by a lack of experience with some rules of the Anglo-
American procedures, the defendants and their lawyers received the same
privileges as the prosecution and, therefore, were granted all benefits which
constitute a fair trial.
Additionally, it has been shown already that Military Tribunal III

acted independently and impartially.500 Hence, the overall outcome is that
the defendants were treated fairly in all aspects of a modern trial.
Furthermore, the release of the protocols of the Justice Trial and of

all other Nuremberg Trials in the volumes of the so called Blue, Red and
Green Series established their methods of procedure as an example for later
tribunals in international criminal law,501 and simultaneously, disprove the
assumption that trials initiated by the winners of a war are always show
trials and an example of victor‟s justice.
500
See Part III A The Tribunal.
501
The Nuremberg Trials are well documented in four major publications: The 42 volumes
of the so called Blue Series contain the official proceedings of the trial of the major war
criminals; additionally, the eight volumes of the so called Red Series cover the evidence
and guide materials from that trial; the official condensed record of the subsequent trials is
published in 15 volumes of the so called Green Series; and, eventually, a final report on all
the war crimes trials held in Nuremberg from 1945 to 1949 was issued by the Chief of
Counsel for War Crimes, Brigadier General Telford Taylor. “Nuremberg Trials”
www.loc.gov/rr/frd (last accessed 18 March 2010).
120
121
V JUDGMENT OF THE TRIBUNAL
In the Justice Trial, like in all other Nuremberg Trials, the judgment
was not only about punishing war criminals, it was also a profound analysis
and evaluation of the atrocities done in the name of law in Nazi Germany
and of the involvement of the legal profession.
At first, this chapter examines the analysis of the Nazi legal system
carried out by Military Tribunal III and deals with the question whether
victor‟s justice occurred due to a distorted illustration of the laws and legal
practice of Nazi Germany. It will be concluded that the Tribunal undertook
a very careful examination by reflecting only on the given facts without
making things out to be worse or better, and therefore, there is no sign of
victor‟s justice on this issue.
Secondly, this chapter investigates whether the Tribunal evaluated

the defendants‟ role in the Nazi legal system, upon which the final judgment
was based on, appropriately, and whether the convicted defendants received
adequate sentences. A conclusion will be drawn stating that the analysis of
the Tribunal had been impressively accurate and, moreover, the sentences
have to be seen as very moderate compared to the individual guilt of some
of the defendants, and compared to sentences which were given in other
Nuremberg Trials.
A General Remarks
Germany‟s development from a democracy into one of the harshest

dictatorships on earth was perfectly recorded in many documents issued by
122
the Nazi officials themselves.502 Additionally, the racist and unlawful laws
enacted by the Nazi Government were published and available at all times.
The evidence of the prosecution in the Justice Trial, therefore, was

based mainly on contemporaneous documents discovered in German
archives by the Allies after the war, and on many discriminatory Nazi laws
which spoke for themselves.503
In analysing these laws and documents, Tribunal III had not much
opportunity but keeping to the true facts. It stated: “In rendering this
judgment it should be said that the case against the defendants is chiefly
based upon captured German documents, the authenticity of which is
unchallenged.”504
1 The Tribunal’s analysis of the German law under the Nazis
The defendants in the Justice Trial argued that they could not be
convicted because they had acted within the authority and by the command
of German laws and decrees.505
The Tribunal referred to Control Council Law No. 10, which

provided punishment for crimes against humanity “whether or not the acts
were in violation of the domestic laws of the country where perpetrated.”506
It then stated:507
502
503
504
Ibid, 955.
505
Herbert Thiele-Fredersdorf “The Judgment of Military Tribunal III in the Nuremberg
Trial of Justices” in Wilbourn E Benton and Georg Grimm (eds) Nuremberg: German
Views of the War Trials (Southern Methodist University Press, Dallas, 1955) 140. This
claim was a valid one under the approach of Positivism, but not under the approaches of
Naturalism and the Radbruch Formula. See Grant Morris, above n 436, 158; and see
generally Hart, above n 436, 593 et seq; Fuller, above n 436, 630 et seq; See also Part IV A
2 The ex post facto principle (nullum crimen sine lege, nulla poena sine lege).
506
Justice Case, above n 9, 983; Control Council Law No. 10 1945, above n 55, art II s (1)
(c).
507
123
The very essence of the prosecution case is that the laws, the Hitlerian
decrees and the Draconic, corrupt, and perverted Nazi judicial system
themselves constituted the substance of war crimes and crimes against
humanity and that participation in the enactment and enforcement of them
amounts to complicity in crime.
Hence, before evaluating the individual guilt of the defendants,

Tribunal III looked at the existing German law and its development under
the Nazi Government.
(a) Ermaechtigungsgesetz (Enabling Act 1933)
The Weimar Constitution of Germany from 11 August 1919

contained not only generally accepted provisions of international law but
also fundamental rights, which were guaranteed to all Germans.508 The
weak point of the Constitution was Article 48, which provided that the
Reich President was empowered to suspend certain fundamental rights
either completely or partially, if the safety and order of the German Reich
was considerably disturbed or endangered.509
Based on this Article, Reich President von Hindenburg and Hitler,

the new Reich Chancellor, on 28 February 1933, promulgated a decree that
expressly suspended basic rights of the Weimar Constitution and, in
addition, provided that the Reich Government might temporarily take over
the powers of the highest State authority to restore public security.510
A month later, on 24 March 1933, an intimidated Reichstag, the

German Federal Parliament, enacted the Gesetz zur Behebung der Not von
Volk und Reich (Law concerning the Relief of Distress of the Nation and the
Reich), commonly known as Ermaechtigungsgesetz (Enabling Act 1933),
508
Weimar Constitution 1919 (Germany), arts 109 et seq; See also Justice Case, above n 9,
986.
509
Weimar Constitution 1919, above n 508, art 48; See also Justice Case, above n 9, 986.
510
Verordnung des Reichspraesidenten zum Schutz von Volk und Staat vom 28. Februar
1933 (Order of the Reich President for the Protection of People and State from 28 February
1933) 17 RGBl 1933 I 83, para 2; See also Justice Case, above n 9, 986-987.
124
which in fact opened the door for the Nazi Government to overrule the
Constitution itself.511 It provided that laws decreed by the government may
deviate from the constitution, and that laws of the Reich can be enacted by
the government apart from the procedures provided by the constitution.512
As a result, on 14 July 1933, a law was enacted declaring the

NSDAP to be the only political party, and making it a crime to maintain or
form any other political party.513 Also, on 30 January 1934, the Reichstag
passed a law ruling that the sovereign powers of the German States are fully
transferred to the Federation.514 The provisions of the Enabling Act were
reconfirmed by Acts of the Reichstag on 30 January 1937 and on 30 January
1939.515
The Tribunal stressed that the Enabling Act 1933 was the starting
point of516
the legal and judicial process by which the entire judicial system was
transformed into a tool for the propagation of the National Socialist
ideology, the extermination of opposition thereto, and the advancement of
plans for aggressive war and world conquest.
(b) Arbitrariness in criminal law
After the obstacle of the Weimar Constitution was hurdled, the

criminal law in particular was changed in many ways to become an
511
512
Gesetz zur Behebung der Not von Volk und Reich vom 24. Maerz 1933 (Law
concerning the Relief of Distress of the Nation and the Reich from 24 March 1933) 25
RGBl 1933 I 141, arts 1 and 2; See also Justice Case, above n 9, 987.
513
Gesetz gegen die Neubildung von Parteien vom 14. Juli 1933 (Law against the creation
of Political Parties from 14 July 1933) 81 RGBl 1933 I 479, paras 1 and 2; See also Justice
Case, above n 9, 987.
514
Gesetz ueber den Neuaufbau des Reichs vom 30. Januar 1934 (Law for the
Restructuring of the Reich from 30 January 1934) 11 RGBl 1934 I 75, arts 1 and 2; See
also Justice Case, above n 9, 987-988.
515
516
Ibid.
125
instrument of Nazi politics and ideology. Military Tribunal III described this
process as follows:517
Beginning in 1933, there developed side by side two processes by which

the Ministry of Justice and the courts were equipped for terroristic
functions in support of the Nazi regime. By the first, the power of life and
death was ever more broadly vested in the courts. By the second, the
penal laws were extended in such inconclusive and indefinite terms as to
vest in the judges the widest discretion in the choice of law to be applied,
and in the construction of the chosen law in any given case.
On 4 April 1933, just two months after the Nazis took over
government, the death sentence was introduced in German criminal law by
the Gesetz zur Abwehr politischer Gewalttaten (Law for the Protection
against Violent Political Acts). It authorised the death penalty for a number
of crimes, particularly adding that it applies “whenever milder penalties had
been prescribed hitherto.”518
A year later, on 24 April 1934, the definition of high treason was

also greatly expanded, and the death sentence was implemented as a
possible punishment.519
A significant step was the Gesetz zur Aenderung des

Strafgesetzbuches (Law Concerning the Alteration of the Penal Code) from
28 June 1935. It abolished the general rule that criminal statutes should be
definite and certain, and allowed judges to sentence following a similar law
if no specific law could be applied directly.520
The transformation of the law continued: On 17 August 1938, the

death sentence was authorised and made mandatory to the crime of
undermining German military efficiency;521 in 1939, different ordinances
517
Ibid.
518
Gesetz zur Abwehr politischer Gewalttaten vom 4. April 1933 (Law for the Protection
against Violent Political Acts from 4 April 1933) 31 RGBl 1933 I 162, para 1; See also
519
Gesetz zur Aenderung von Vorschriften des Strafrechts und des Strafverfahrens vom 24.
April 1934 (Law for the amendment of the Provisions of Criminal Law and Procedure from
24 April 1934) 47 RGBl 1934 I 341, para 83; See also Justice Case, above n 9, 988-989.
520
Gesetz zur Aenderung des Strafgesetzbuches vom 28. Juni 1935 (Law Concerning the
Alteration of the Penal Code from 28 June 1935), above n 428, art 2.
521
126
and decrees like the Feindsenderverordnung (Decree to Stop Deliberate

Listening to Foreign Stations) and the Verordnung gegen Volksschaedlinge
(Decree against Public Enemies) were enacted, implementing new crimes
that could be punished by death;522 on 5 December 1939, the death penalty
was extended to various crimes of violence, even when those were
committed before the decree became valid what, in fact, was the
abolishment of the ex post facto principle;523 and on 4 September 1941, the
death penalty was also provided for dangerous habitual criminals and sex
criminals.524
However, the transformation of the German law system into an

instrument of the Nazi Party culminated on 20 August 1942, when Hitler
issued a decree to establish a strong National Socialist Administration of
Justice, if necessary in deviation from any existing law.525 Finally, on 5 May
1944, influenced by the heavy German war defeats, came the quasi-
suspension of all legal restrictions for judges as to the degree of penalty.526
At this point, law and justice had been replaced by judicial

arbitrariness. Tribunal III summarised as follows:527
The statutes which we have reviewed were merely steps in the process of
increased severity of the criminal law and in the development of a loose
concept concerning the definition of crime. … [The decree of 20 August
1942] was especially evident in the statutes concerning the „sound
sentiment of the people‟, crime by analogy, and undermining the military
efficiency of the nation. In place of the control of law there was
substituted the control of National Socialist ideology as a guide to judicial
action.
522
Ibid, 991-992.
523
Ibid, 992.
524
Ibid.
525
Ibid, 993.
526
Ibid, 992-993.
527
Ibid, 993.
127
(c) Discrimination against minorities
On 7 April 1933, a law of the Reich Government provided that

Communists and people of non-Aryan descent, which in the eyes of
National Socialist ideology were mainly Jews, may be refused permission to
practice law.528 The Gesetz zum Schutze des deutschen Blutes und der
deutschen Ehre (Law for the Protection of German Blood and German
Honour) from 15 September 1935, also known as the infamous Nuremberg
Laws, prohibited marriages and sexual intercourse between Jews and
Aryans.529 These laws were the starting point of legislation that almost
completely expelled Jews from public service and public life.530
On 4 December 1941, the Verordnung ueber die Strafrechtspflege

gegen Polen und Juden in den eingegliederten Ostgebieten (Decree
concerning the Organisation and Criminal Jurisdiction against Poles and
Jews in the Incorporated Eastern Territories) came into effect.531 It provided
special regulations for allegedly criminal acts committed by Jews or Poles,
for example: “The death penalty, or in less serious cases imprisonment, shall
be imposed on any Jew or Pole … [i]f he urges or incites to disobedience to
any decree or regulation issued by the German authorities.”532
In the view of Tribunal III, this decree “marks perhaps the extreme
limit to which the Nazi Government carried its statutory and decretal
persecution of racial and religious minorities.”533 However, the decree was
only the climax of the establishment of injustice within the German
judiciary.
528
See generally Gesetz ueber die Zulassung zur Rechtsanwaltschaft vom 7. April 1933
(Law concerning the Admission to the Legal Profession from 7 April 1933) 36 RGBl 1933
I 188; See also Justice Case, above n 9, 993-994.
529
Gesetz zum Schutze des deutschen Blutes und der deutschen Ehre vom 15. September
1935 (Law for the Protection of German Blood and German Honour from 15 September
1935) 100 RGBl 1935 I 1146; See also Justice Case, above n 9, 994.
530
531
Ibid, 995-996.
532
Ibid, 996.
533
Ibid, 995.
128
On 1 July 1943, the 13. Verordnung zum Reichsbuergergesetz (13th

Regulation under the Reich Citizenship Law) was issued, which provided
that allegedly criminal actions of Jews were to be punished directly by the
police without any indictment and proceeding.534
This was the final step of depriving the Jews of their human rights
and almost completely outlawing them in everyday life.
(d) Expansion of the German law on occupied territories
Besides the special regulations for allegedly criminal acts of Jews

and Poles, the decree from 4 December 1941 also introduced another
important element to the Nazi judiciary, which Tribunal III described as
“the extension of German laws to occupied territory, to purportedly annexed
territory, and to territory of the so-called protectorates.”535
In March and September 1938 and in March 1939, already before the
start of World War II, the German Army had invaded Austria and parts of
Czechoslovakia (the Sudetenland and Bohemia and Moravia) and had
incorporated them into the German Reich.536 During World War II, also all
or portions of Poland, Denmark, Norway, Belgium, the Netherlands,
Luxembourg, Yugoslavia, Greece and Russia were occupied and annexed to
the German Reich.537
The German criminal law had always been applicable to German

nationals but, beginning in April 1939, different statutes extended the
draconic and discriminatory German laws, which had been put into force in
534
Ibid, 996-997.
535
Ibid, 995.
536
Ibid, 997-998.
537
Ibid, 998.
129
the old Reich, to the occupied territories.538 For example, on 14 April 1939,
an act provided that539
[p]ersons who are not German nationals are subject to German

jurisdiction for offenses – (a) to which German criminal law applies, (b) if
they are prosecuted under a private action provided the action has been
brought by a German national.
Since 5 September 1939, the Verordnung gegen Volksschaedlinge

(Decree against Public Enemies) was made “applicable in the Protectorate
of Bohemia and Moravia and also for those persons who are not German
citizens”540; and on 25 November 1939, another Verordnung gegen
Wehrmittelbeschaedigung (Decree against Damage to War Materials) was
explicitly made applicable also to non-Germans of the Protectorate Bohemia
and Moravia.541
On 6 May 1940, the Verordnung ueber den Geltungsbereich des

Strafrechts (Decree on the Extension of the Application of Criminal Law)
made German criminal law applicable to crimes which were committed by
foreigners abroad;542 and on 25 November 1941, the Verordnung ueber die
Beschlagnahme juedischen Vermoegens (Decree concerning the
Confiscation of Jewish Property) was made applicable in the Protectorate of
Bohemia and Moravia and the incorporated Eastern territories.543
(e) Courts and the law of procedure
Similar to the substantive law, the Nazis also extended the law of
procedure and the German court system.
538
Ibid.
539
Ibid.
540
Ibid.
541
Ibid.
542
Ibid, 998-999.
543
Ibid, 999.
130
Besides the newly created People‟s Court and the Special Courts,
whose jurisdictions were rapidly extended,544 the Nazis also erected courts
martial, Police courts and SS courts. Contrarily to the traditional civil
courts, which struggled with their loss of jurisdiction in many areas, these
courts did not really deserve to be called courts at any time.
Good examples are the courts martial, which were erected in the
occupied Eastern territories to apply the provisions of the Decree against
Poles and Jews from 4 December 1941. Article XIII section (2) of the
decree provided the death sentence as the only punishment imposed by these
courts, which resulted in proceedings that often consisted of nothing else but
the delivery of a judgment.545
Changes within the law of procedure began with the centralisation of

the clemency powers to the President of the Reich on 16 February 1934.546
However, only a decree promulgated by Hitler on 21 March 1942, regarding
the simplification of the administration of justice, brought fundamental
changes to the procedure.547
To realise the provisions of this statute, subsequent decrees were

issued by the responsible Ministers of Justice Schlegelberger (on 13 August
1942) and Thierack (on 15 February 1945), limiting the participation of
lawyers in criminal proceedings and expanding the jurisdictions of courts
martial.548
In the view of Tribunal III, this did not only make it easy to punish
alleged criminals, but it also ensured that “the will of Hitler became a
dominating force in the Ministry of Justice and in the courts.”549
544
See Part III C 1 (b) (ii) Members of the National Socialist People‟s Court and Part III C
1 (b) (iii) Members of National Socialist Special Courts.
545
546
Ibid, 1007.
547
Ibid, 1008.
548
Ibid, 1008-1009.
549
Ibid, 1007.
131
(f) The execution of the law in Nazi Germany
The law in action in Nazi Germany was primarily based on the so

called Fuehrer Principle, which seriously affected officials of the Ministry
of Justice, prosecutors and judges.550 Tribunal III stated:551
Two basic principles controlled conduct within the Ministry of Justice.

The first concerned the absolute power of Hitler in person or by delegated
authority to enact, enforce, and adjudicate law. The second concerned the
incontestability of such law.
This evaluation was based on the testimony of a witness for all of the
defendants, Professor Hermann Jahrreiss, who had stated that “restrictions
under German law did not exist for Hitler. He was legibus solutus in the
same meaning in which Louis XIV claimed that for himself in France.”552
(i) Hitler as supreme judge
Hitler was not only the supreme legislator but also the supreme judge
of Nazi Germany.553 In an address to the Reichstag on 26 April 1942, Hitler
had declared:554
I do expect one thing: That the nation gives me the right to intervene
immediately and to take action myself wherever a person has failed to
render unqualified obedience. … I therefore ask the German Reichstag to
confirm expressly that I have the legal right to keep everybody to his duty
and to cashier or remove from office or position without regard for his
person, or his established rights, whoever, in my view and according to
my considered opinion, has failed to do his duty. … From now on, I shall
550
Ibid, 1010; See also Part IV A 3 Individual liability.
551
552
Ibid, 1011.
553
See Part IV A 3 Individual liability.
554
132
intervene in these cases and remove from office those judges who
evidently do not understand the demand of the hour.
On the same day, the Reichstag had resolved:555
… the Fuehrer must have all the rights postulated by him which serve to
further or achieve victory. Therefore – without being bound by existing
legal restrictions – in his capacity as leader of the nation, Supreme
Commander of the Armed Forces, governmental chief and supreme
executive chief, as supreme justice, and leader of the Party – the Fuehrer
must be in a position to force with all means at his disposal every
German, if necessary, whether he be common soldier or officer, low or
high official or judge, leading or subordinate official of the Party, worker
or employee, to fulfil his duties. In case of violation of these duties, the
Fuehrer is entitled after conscientious examination, regardless of so-called
well-deserved rights, to mete out due punishment, and to remove the
offender from his post, rank and position, without introducing prescribed
procedures.
With this clear manifestation of Hitler‟s will and of the Nazi

ideology as the only valid German law, it is quite surprising that the reaction
among the leading German jurists was not some kind of opposition or
resignation from their positions in reaction to the limitation of their power
and independence, but instead massive support of this new principles. The
defendant Rothenberger, for example, once stated:556
Here is a man [Hitler] who in his position represents the ideal of the judge
in its perfect sense, and the German people elected him for their judge –
first of all, of course, as „judge‟ over their fate in general, but also as
„supreme magistrate and judge‟.
And at another place, in 1943, Rothenberger summarised his legal

philosophy as follows: “The judge is on principle bound by the law. The
laws are the orders of the Fuehrer.”557
Rothenberger shared this view with his co-defendant Schlegelberger,

who had expressed his opinion already on 10 March 1936: “It should be
555
Beschluss des Grossdeutschen Reichstags vom 26. April 1942 (Resolution of the Great-
German Reichstag from 26 April 1942); See also Justice Case, above n 9, 1012.
556
557
Ibid, 1014.
133
emphasised, however, that in the sphere of the law, also, it is the Fuehrer
and he alone who sets the pace of development.”558 Additionally, both
defendants were flanked by Minister of Justice Thierack, who had said on 5
January 1943: “So also with us the conviction has grown in these 10 years
in which the Fuehrer has led the German people that the Fuehrer is the chief
justice and the supreme judge of the German people.”559
As a result, it can be said that Hitler not only acted like the supreme
judge of Nazi Germany, but was also seen and accepted as such by
Germany‟s judiciary.
(ii) Execution of Hitler‟s will
The concrete execution of the Fuehrer Principle within the German

judicature was realised by the so called Richterbriefe (Judges‟ Letters),
which were issued by the Reich Minister of Justice and systematically
distributed to all German judges.560
The letters were made as instructions for judges as how to decide

certain cases by discussing particular decisions, which had been filed in
various courts and had failed to be in line with National Socialist
ideology.561 The first of these letters was issued on 1 October 1942 and
reminded the judges “that Hitler was the supreme judge and that „leadership
and judgeship have related characters.‟”562
Soon after the first Judges‟ Letters were distributed, Minister of

Justice Thierack also started issuing so called Anwaltsbriefe (Lawyers‟
Letters).563 In the view of Military Tribunal III, those were made primarily
to warn the defence counsels “that they avoid any criticism of National
558
Ibid, 1013.
559
Ibid.
560
Ibid, 1017.
561
Ibid.
562
Ibid.
563
Ibid, 1019.
134
Socialist justice and refrain from too much ardor in the defense of persons
charged with political crimes.”564
All these actions pursued only one goal: to manipulate the German
judges in their decisions in favour of National Socialist ideology. However,
it was no guarantee. Therefore, Hitler and his top-ranking associates often
interfered in the finding of individual criminal sentences and objected to
many judgments themselves, until they were revised into a decision
convenient to Hitler‟s opinion.565
Among many others, one example is the case of the Jew Markus
Luftgas, who was originally sentenced to two and a half years imprisonment
for hoarding eggs.566 After an objection from Hitler, the State Secretary and
Chief of the Reich Chancellery, Hans-Heinrich Lammers, wrote to
Schlegelberger on 25 October 1941: “The Fuehrer wishes that Luftgas be
sentenced to death.”567 Schlegelberger replied on 29 October 1941: “I have
handed over to the Gestapo for the purpose of execution the Jew Markus
Luftgas who had been sentenced to 2½ years of imprisonment.”568
Additionally, Hitler also delegated this direct exertion of influence to

the Reich Minister of Justice. In defiance of all principles of an independent
judiciary, he explicitly authorised him “to deviate from any existing law” in
August 1942.569
564
Ibid.
565
Ibid, 1014.
566
Ibid, 1016.
567
Ibid, 1016-1017.
568
Ibid, 1017.
569
Ibid.
135
(iii) Outcome
From a substantive law point of view, all changes illustrated in this

chapter finally resulted in the replacement of the old principle “no penalty
without a law” by a new principle “no crime without punishment”570.
This new philosophy in Nazi Germany‟s jurisdiction was specifically

made clear by the infamous Reich Minister of Propaganda Joseph Goebbels,
who addressed the members of the People‟s Court in a speech on 22 July
1942:571
While making his decisions the judge had to proceed less from the law
than from the basic idea that the offender was to be eliminated from the
community. During a war it was not so much a matter of whether a
judgment was just or unjust but only whether the decision was expedient.
The State must ward off its internal foes in the most efficient way and
wipe them out entirely.
Altogether, Tribunal III concluded that the described occurrences, in

fact, led to the “utter destruction of judicial independence and
impartiality”572. It further pointed out: “The function of the Nazi courts was
judicial only in a limited sense. They more closely resembled administrative
tribunals acting under directives from above in a quasi-judicial manner.”573
However, the Tribunal also stated that the Nazi law system divided
the judges in two categories:574
In the first we find the judges who still retained ideals of judicial
independence and who administered justice with a measure of impartiality
and moderation. Judgments which they rendered were set aside by the
employment of the nullity plea and the extraordinary objection. The
defendants they sentenced were frequently transferred to the Gestapo on
570
Ibid, 1022.
571
Ibid, 1021-1022.
572
Ibid, 1024.
573
Ibid, 1024-1025.
574
Ibid, 1025.
136
completion of prison terms and were then shot or sent to concentration

camps. The judges themselves were threatened and criticized and
sometimes removed from office. In the other category were the judges
who with fanatical zeal enforced the will of the Party with such severity
that they experienced no difficulties and little interference from party
officials.
A prominent example for the few German judges who belonged to

the first category was Lothar Kreyssig, a judge at the Brandenburg County
Court.575 He had formally protested the secret killings of handicapped and
the detentions in concentration camps by sending letters of complaints to the
President of the Prussian Supreme Court;576 he had issued injunctions
against the Nazi programme of killing mentally handicapped persons;577 and
he had brought charges against one of its administrators.578
In 1940, he was forced to retire early and a criminal investigation

against him took place.579 However, after the investigation was closed in
1942, he was left in peace by the Nazi authorities.580
Although this case may not be valid as a guarantee that every judge
had the opportunity to resist without fearing life or health threatening
consequences,581 it confirms the Tribunal‟s view that, although the whole
law system in Nazi Germany was transformed into an instrument of
National Socialist policy, the individual judge himself had still been able to
adhere to moral and ethical values and to resist to become an accomplice of
the Nazis, at least until removed from office.
Yet, the Tribunal realised that in such a case the removal from office
was only a matter of time and, therefore, declined the suggestion that the
575
576
“Nuremberg Trials 60th Anniversary: Justice Case” www.adl.org (last accessed 18
March 2010); Mueller, above n 120, 193-196.
577
Ibid.
578
Ibid.
579
580
Ibid.
581
It has to be noted here that, as a matter of fact, no judge or prosecutor who served under
the Nazi Government was physically harmed for any politically unpopular decisions.
Nevertheless, it has to be taken into account that during the Nazi regime nobody could be
sure about it. Kramer Plaedoyer fuer ein Forum zur juristischen Zeitgeschichte, above n
189, 15.
137
defendants who had been working as judges could be entitled to benefit

from the Anglo-American doctrine of judicial immunity. The Tribunal
argued reasonably as follows:582
The doctrine that judges are not personally liable for their judicial actions
is based on the concept of an independent judiciary administering
impartial justice. Furthermore, it has never prevented the prosecution of a
judge for malfeasance in office. If the evidence sited supra does not
demonstrate the utter destruction of judicial independence and
impartiality, then we „never writ nor no man ever proved‟.
2 The Tribunal’s evaluation of the legality of Nazi laws
No doubt, the rigorous laws and court decisions in Nazi Germany

were immoral and generally did not really deserve to be called lawful, but
the judges of Tribunal III tried to free their minds completely from such
conclusions, and evaluated these laws and decisions from a purely legal
point of view. In the judgment, they stated:583
The Tribunal is keenly aware of the danger of incorporating in the

judgment as law its own moral convictions or even those of the Anglo-
American legal world. This we will not do. We may and do condemn the
Draconic laws and express abhorrence at the limitations imposed by the
Nazi regime upon freedom of speech and action, but the question still
remains unanswered: „Do these Draconic laws or the decisions rendered
under them constitute war crimes or crimes against humanity?‟
To find an answer, the Tribunal concentrated on cases in which the

death penalty had been imposed by German courts.584
582
583
Ibid, 1025-1026.
584
Ibid, 1025.
138
(a) Habitual criminals
Based on the penal code, German courts sentenced habitual

criminals to death in many cases during World War II. Tribunal III
compared this fact to a likely situation in other countries, including the
United States, and concluded that the imposed death penalties by German
courts in such cases could not be classified as a crime against humanity.585
The Tribunal argued as follows:586
In many civilized states statutory provisions require the courts to impose

sentences of life imprisonment upon proof of conviction of three or more
felonies. We are unable to say in one breath that life imprisonment for
habitual criminals is a salutary and reasonable punishment in America in
peace times, but that the imposition of the death penalty was a crime
against humanity in Germany when the nation was in the throes of war.
(b) Plunder in German territory
Similar to the treatment of habitual criminals, the penal code of Nazi

Germany provided the death penalty also for plunderers. Especially during
the war, German courts had often imposed this hardest possible punishment
on persons who had looted in the ruined German cities after Allied air raids.
Military Tribunal III evaluated these codes and sentences as

necessary in the specific situation of Germany during the war.587 It stated:588
Anyone who has seen the utter devastation of the great cities of Germany
must realize that the safety of the civilian population demanded that the
585
Ibid, 1026.
586
Ibid.
587
Ibid.
588
Ibid.
139
werewolfes who roamed the streets of the burning cities, robbing the
dead, and plundering the ruined homes should be severely punished.
As a result, the Tribunal concluded that the imposed death sentences

by the judiciary in cases of plundering did not constitute crimes against
humanity.589
(c) Crimes against the wartime economy
Tribunal III evaluated cases in which German courts had sentenced

people to death for hoarding or for violating war economy decrees similarly
to cases of plundering. The Tribunal‟s view was that the threat and
enforcement of capital punishment was required to secure the chances of
individual survival of the civilian population during times of war, when all
kind of goods, especially food, were rare and of high value.590
The Tribunal‟s argument was simple but understandable: “Every

nation recognizes the absolute necessity of more stringent enforcement of
the criminal law in times of great emergency.”591
Hence, in the view of Tribunal III, the imposition of the death

penalty by German courts in cases of crimes against the wartime economy
had been not necessarily a crime against humanity.592
(d) Undermining military efficiency
The death sentences by German courts in cases of undermining

military efficiency were analysed with great care by Tribunal III.
Defendants in such cases were mostly tried for violating the limitations on
589
Ibid.
590
Ibid.
591
Ibid.
592
Ibid.
140
freedom of speech, which were imposed by the Nazi laws to protect the
military aims of Nazi Germany during World War II.593
After stressing that these limitations are generally revolting “to our
sense of justice”594, the Tribunal said:595
A court would have no hesitation in condemning them under any free

constitution, including that of the Weimar republic, if the limitations were
applied in time of peace; but even under the protection of the Constitution
of the United States a citizen is not wholly free to attack the Government
or to interfere with its military aims in time of war. In the face of a real
and present danger, freedom of speech may be somewhat restricted even
in America. Can we then say that in the throes of total war and in the
presence of impending disaster those officials who enforced these savage
laws in a last desperate effort to stave off defeat were guilty of crimes
against humanity?
The Tribunal, further, argued that the fact that Germany was waging
a criminal war of aggression could not have any impact on the Justice Trial,
because the defendants here were not charged with crimes against peace, nor
has it been proven that they were part of a criminal conspiracy to plan the
war, nor was the start of the war per se a violation of international law.596
Also, in the view of the Tribunal, the actions of the German judiciary
during the war could not all be seen as illegal just because it was a criminal
war of aggression, otherwise “every soldier who marched under orders into
occupied territory or who fought in the homeland was a criminal and a
murderer.”597
Thus, Tribunal III concluded that “the domestic laws and judgments
in Germany which limited free speech in the emergency of war cannot be
condemned as crimes against humanity”598. The imposed death sentences,
therefore, although often given arbitrarily and in a discriminatory manner,
593
Ibid.
594
Ibid.
595
Ibid.
596
Ibid.
597
Ibid, 1027.
598
Ibid.
141
were principally not illegal under the existing circumstances in Germany

during World War II.599
(e) Treason and High Treason
Generally, the crimes of treason and high treason exist in the penal
code of almost every nation. To punish offenders with the death penalty was
also not totally unusual in many countries of the civilised Western world at
the time. Nevertheless, Tribunal III made a big difference in its analysis of
those death sentences, which had been imposed on Poles who were charged
with high treason against the German Reich.
In many cases, Poles had been charged with high treason for the only
reason that they attempted to escape from the Reich territory.600 They were
indicted for “attempting, by violence or threat of violence, to detach from
the Reich territory belonging to the Reich, contrary to the express provisions
of section 80 of the law of 24 April 1934.”601 The so called territory in these
cases consisted of portions of Poland which the German Reich had illegally
annexed after the outbreak of World War II. 602
In the Tribunal‟s view, this would have meant that “every Polish
soldier from the occupied territories fighting for the restoration to Poland of
territory belonging to it would be guilty of high treason against the
Reich”603. Hence, Tribunal III evaluated these cases and the underlying laws
599
Ibid, 1026-1027.
600
Ibid, 1028.
601
Ibid; See also Gesetz zur Aenderung von Vorschriften des Strafrechts und des
Strafverfahrens vom 24. April 1934 (Law for the amendment of the Provisions of Criminal
Law and Procedure from 24 April 1934), above n 519, para 80.
602
Justice Case, above n 9, 1027-1028; US Military Tribunal III had stated before: “Sir
Arnold D. McNair expressed a principle which we believe to be incontestable in the
following words: „A purported incorporation of occupied territory by a military occupant
into his own kingdom during the war is illegal and ought not to receive any recognition.‟”
603
Ibid, 1028.
142
as an “unwarrantable extension of the concept of high treason, which

constituted … a war crime and a crime against humanity.”604
(f) The Nacht und Nebel Erlass (Night and Fog Decree)
The Night and Fog Decree was basically a personal order of Hitler
from 7 December 1941, which provided as follows:605
(a) that criminal acts committed by non-German civilians directed against

the Reich or occupation forces endangering their safety or striking power
should require the application of the death penalty in principle;
(b) that such criminal acts would be tried in occupied territories only
when it appeared probable that the death sentence would be passed and
carried out without delay. Otherwise the offenders would be taken to
Germany;
(c) that offenders taken to Germany were subject to court martial

procedures there only when a particular military concern should require
it;
(d) that the Commander-in-Chief in occupied territories and certain

subordinates within their command would be held personally responsible
for the execution of this decree;
(e) that the Chief of the OKW[606] would decide in which of the occupied
territories this decree would be applied.
The order received its name because, under it, people were taken
away from their homes, often by night, and disappeared “forever into the
fog of the unknown.”607
604
Ibid.
605
United Nations War Crimes Commission, above n 223, 8-9.
606
OKW was the abbreviation for Oberkommando der Wehrmacht (High Command of the
German Armed Forces). Its head was German field marshal Wilhelm Keitel, who was
sentenced to death by the International Military Tribunal at Nuremberg. “Wilhelm Keitel”
www.britannica.com (last accessed 18 March 2010).
607
Whitney R Harris, above n 18, 220.
143
The decree was executed by the Ministry of Justice in cooperation

with the OKW and the Gestapo.608 Its aim was to discourage the population
of occupied territories from military and political resistance. 609 After having
analysed the huge amount of exhibits, Tribunal III described the workings
of the programme as follows:610
… civilians of occupied countries accused of alleged crimes in resistance

activities against German occupying forces were spirited away for secret
trial by special courts of the Ministry of Justice within the Reich; that the
victim‟s whereabouts, trial, and subsequent disposition were kept
completely secret, thus serving the dual purpose of terrorizing the
victim‟s relatives and associates and barring recourse to evidence,
witnesses, or counsel for defense. If the accused was acquitted, or if
convicted, after serving his sentence, he was handed over to the Gestapo
for „protective custody‟ for the duration of the war. These proceedings
resulted in the torture, ill treatment, and murder of thousands of persons.
The Tribunal, further, emphasised that the existence of concentration

camps was extensively used as a tool to terrorize the people in occupied
territories.611 It referred to the judgment of the International Military
Tribunal, which had described in detail the manner of operation of
concentration camps and the appalling cruelties and horrors therein,612 and
stated: “Such concentration camps were used extensively for the NN
prisoners in the execution of the Night and Fog decree …”613.
The prosecution charged all of the defendants in the Justice Trial

with participation in the execution and carrying out of the Night and Fog
Decree.614 Thus, Tribunal III spent a lot of its time discussing and analysing
this issue.615 In the end, it concluded:616
608
609
610
611
Ibid, 1033.
612
Ibid; See also International Military Tribunal I, 234 et seq.
613
Justice Case, above n 9, 1033; NN is used as an abbreviation by Tribunal III throughout
the judgment and refers to the Night and Fog Plan.
614
Ibid, 1032.
615
616
Ibid, 1057.
144
The enforcement of the directives under the Hitler NN plan or scheme

became a means of instrumentality by which the most complete control
and coercion of a lot of the people of occupied territories were affected
and under which thousands of the civilian population of occupied areas
were imprisoned, terrorized, and murdered. The enforcement and
administration of the NN directives resulted in the commission of war
crimes and crimes against humanity in violation of the international law
of war and international common law relating to recognized human rights,
and of article II, paragraph 1(b) and (c) of Control Council Law No. 10.
(g) Racial persecution
One of the major issues in all Nuremberg Trials, and one of the most
shocking insights about Nazi Germany after World War II, was the
treatment of Poles and Jews by the Nazi Government.617
Based on Hitler‟s rabid anti-Semitism, the Nazi movement had

developed racial theories, which declared the supremacy of the Nordic
German race and, at the same time, denounced especially Jews as inferior
people.618 Accordingly, the official programme of the Nazi Party from 24
February 1920 read as follows:619
Only a member of the race can be a citizen. A member of the race can
only be one who is of German blood without consideration of confession.
Consequently, no Jew can be a member of the race.
After the Nazis had taken over power, the Nazi racism ideology
became official policy in Germany.620 In different procedures before and
during World War II, Jews were persecuted within and outside the German
Reich.
The so called solution of the Jewish problem was carried out in three
steps: (1) the elimination of the Jews from the political and economic life of
617
See Part V A 1 (c) Discrimination against minorities.
618
Justice Case, above n 9, 1064; Whitney R Harris, above n 18, 281.
619
Whitney R Harris, above n 18, 290.
620
Justice Case, above n 9, 1063; Whitney R Harris, above n 18, 281-282.
145
Germany; (2) the enforced deportation and isolation in ghettos all over
Europe; and (3) the so called final solution, which was the Nazi term for the
extermination of the Jews through slave labour and mass murder, today
known as the Holocaust.621
The defendants in the Justice Trial were charged with participating622
in carrying out a governmental plan and program for the persecution and
extermination of Jews and Poles, a plan which transcended territorial
boundaries as well as the bounds of human decency. Some of the
defendants took part in the enactment of laws and decrees the purpose of
which was the extermination of the Poles and Jews in Germany and
throughout Europe. Others, in executive positions, actively participated in
the enforcement of those laws and in atrocities, illegal even under
German law, in furtherance of the declared national purpose. Others, as
judges, distorted and then applied the laws and decrees against Poles and
Jews as such in disregard of every principle of judicial behaviour.
Tribunal III analysed the given evidence and affirmed that the
programme was actually made for the extermination of Jews and Poles, but
that “lesser forms of racial persecution were universally practiced by
governmental authority and constituted an integral part in the general policy
of the Reich.”623
The Tribunal referred to Nazi laws and decrees by which (1) Jews
were excluded from the legal profession; (2) intermarriages between Jews
and persons of German blood were prohibited; (3) Jews were almost
completely expelled from public service, from educational institutions and
from many business enterprises; and (4) upon the death of a Jew his
property was confiscated without any compensation.624
Also, it described the role of the German courts, which had punished
sexual intercourse between Jews and German nationals with extreme
severity, had rigorously enforced the Decree against Poles and Jews from 4
621
Whitney R Harris, above n 18, 282-283.
622
623
Ibid.
624
Ibid, 1063-1064; Kastner “Der Dolch des Moerders war unter der Robe des Juristen
verborgen: Der Nuernberger Juristen-Prozess 1947”, above n 317, 701; See generally also
Whitney R Harris, above n 18, 290-291.
146
December 1941, had imposed different types of punishment for Poles and
Jews from those imposed upon Germans for the same crimes, had severely
circumscribed their rights as defendants and had imposed death sentences
on Poles and Jews even when such punishment was not prescribed by
law.625
Last, the Tribunal mentioned the 13th Regulation under the Reich
Citizenship Law, under which allegedly criminal acts committed by Jews
were to be punished directly by the police without any employment of
judicial process.626
In the end, Tribunal III concluded:627
While the part played by the Ministry of Justice in the extermination of

Poles and Jews was small compared to the mass extermination of millions
by the SS and Gestapo in concentration camps, nevertheless the courts
contributed greatly to the „final solution‟ of the problem. … The evidence
conclusively establishes the adoption and application of systematic
government-organized and approved procedures amounting to atrocities
and offenses of the kind made punishable by C. C. Law 10 and committed
against „populations‟ and amounting to persecution on racial grounds.
These procedures when carried out in occupied territory constituted war
crimes and crimes against humanity. When enforced in the Alt Reich
against German nationals they constituted crimes against humanity.
3 Conclusion
With evidence based mainly on German records, the Tribunal was

able to analyse and evaluate the existing law and the legal practice in Nazi
Germany in a thorough manner. It drew the correct conclusion that many
laws enacted by the Nazi Government and the execution of law within the
Third Reich did not deserve to be called law at all and were, in fact, crimes
against humanity.
625
626
Ibid, 1064.
627
Ibid, 1081.
147
At this, the documentary evidence speaks for itself as the democratic

principle of an independent judicature was in fact abolished, and court
proceedings did exist only as a leftover of democratic times without any
meaning for the final judgment.
The analysis of the Tribunal in relation to this issue, bears no signs

of victor‟s justice. The chances of exercising such had been, in fact, very
small because the Nazi laws and decrees as well as the many captured
German documents drew a very accurate picture of the barbarity and
inhumanity, which usurped the German law after the Nazis took over power.
However, the objectivity of the Tribunal becomes clear by the fact that not
all laws and actions of the German judiciary were evaluated unlawful, for
example, the infliction of the death penalty in certain cases of habitual
crimes and plunder during the war.
Overall, it is remarkable how carefully Tribunal III looked at the

details of the Nazi legal system, obviously to get a better understanding of
the individual situation of the defendants under the Nazi regime.
B Individual Verdicts and Sentences
The question whether the defendants were individually guilty fuelled

a ferocious debate throughout the Justice Trial. Based on the argument that
they did not have much choice but to follow Hitler‟s superior orders, it was
widely controversial in public and among legal experts whether the 16
defendants could be held responsible for the atrocities committed in the
name of law in Nazi Germany and its occupied territories.628
Military Tribunal III stated:629
No defendant is specifically charged in the indictment with the murder or

abuse of any particular person. If he were, the indictment would, no
628
See Part IV A 3 Individual liability.
629
148
doubt, name the alleged victim. Simple murder and isolated instances of
atrocities do not constitute the gravamen of the charge. Defendants are
charged with crimes of such immensity that mere specific instances of
criminality appear insignificant by comparison. The charge, in brief, is
that of conscious participation in a nation wide government-organized
system of cruelty and injustice, in violation of the laws of war and of
humanity, and perpetrated in the name of law by the authority of the
Ministry of Justice, and through the instrumentality of courts. The dagger
of the assassin was concealed beneath the robe of the jurist.
To prove or rebut this accusation, the Tribunal had to undertake an

intense look at the personal and professional story of each individual
defendant under the Nazi regime.
The evidence against the defendants was primarily based on captured

German documents, but also on testimonies of witnesses and statements of
the defendants themselves.630 In his Final Report, Chief Prosecutor Telford
Taylor stated:631
Few of the defendants committed atrocities with their own hands, and in
fact they were rarely visible at or within many miles of the scenes of their
worst crimes. They made plans and transmitted orders, and the most
compelling witnesses against them were the documents which they
drafted, signed, initialled, or distributed.
The evidence was of such dimension that a complete illustration

would exceed the limited space of this paper. Therefore, only a
representative selection of evidence and the overall evaluation of Tribunal
III regarding each defendant‟s individual guilt will be outlined here.
Altogether, Tribunal III sentenced four of the defendants to life

imprisonment, six to prison terms between five and ten years and four
defendants were acquitted.632 A mistrial was declared for two of the
defendants.633
630
See Part V A General Remarks.
631
632
Ibid, 169,174.
633
Ibid.
149
1 The Tribunal’s evaluation of the defendant’s role in Nazi Germany
(a) Schlegelberger
Born on 23 October 1875, Franz Schlegelberger was the main

defendant in the dock.634 He looked back on a successful career in the
German judicature: first, in the Weimar Republic, where he started working
for the Ministry of Justice and became a State Secretary in 1931;635 and
then, under the Nazi regime, where he stayed in this position and, upon
Reich Minister Guertner‟s death, was appointed Acting Reich Minister of
Justice in January 1941.636
He was the highest-ranked official in the Justice Trial and also a

professor and author of several famous books.637 He was known as an
excellent jurist and was held in high esteem by legal experts.638 Many of his
contemporaries described him as “the last decent jurist under Hitler”639.
In terms of power, Schlegelberger belonged more to the second-tier

of Nazi jurists than to the more prominent group, which included Freisler
and Thierack.640 However, it turned out to be a fortunate accident of history
that he and his cohorts were in the dock, because they were much better
representatives of the vast majority of jurists in Nazi Germany, who were
mostly not fanatical National Socialists but conservative loyal servants of
the government.641
634
635
Ibid, 1081-1082.
636
Ibid.
637
Baestlein, above n 12, 14; Justice Case, above n 9, 1081.
638
Baestlein above n 12, 13, 16.
639
Ibid, 13; See also Part III C 2 Conclusion.
640
See Part III C 1 Selection criteria.
641
150
Indeed, Schlegelberger‟s role was typical for many jurists under the
Nazi regime and, therefore, he became the symbolic figurehead of
Germany‟s legal profession and its involvement in the reign of terror.642
Tribunal III dealt carefully with Schlegelberger‟s role in Nazi

Germany. It considered that he was not a convinced Nazi and joined the
NSDAP in 1938 only because he was ordered to do so by Hitler
personally.643 Furthermore, it accepted his defence that the German
administration of justice was under constant assaults by Himmler 644 and
other advocates of the police state and, therefore, he had feared that if he
were to resign, a worse man would have taken his place.645
Indeed, this was proved when Schlegelberger‟s successor Thierack

became Reich Minister of Justice in 1942, and the police usurped the
functions of the administration of justice and murdered thousands of Jews
and political prisoners.646 Nevertheless, Tribunal III adjudged him guilty on
counts two and three of the indictment and sentenced him to imprisonment
for life.647
Besides the fact that he received a gift of 100,000 Reichsmark from

Hitler as appreciation upon his retirement as Acting Minister of Justice on
20 August 1942,648 the evidence against him was overwhelming.649
Concerning his involvement in the unlawful Night and Fog Decree,650
Tribunal III stated:651
By his exhortations and directives, Schlegelberger contributed to the

destruction of judicial independence. It was his signature on the decree of
7 February 1942 which imposed upon the Ministry of Justice and the
642
Ibid; Baestlein, above n 12, 13.
643
644
Heinrich Himmler was the overall Chief of the infamous SS and, in that role, was the
prime architect of the Holocaust. During the war, he became one of the most powerful men
in the Third Reich. After being captured by the Allies in April 1945, he committed suicide
by taking poison. “Heinrich Himmler” www.britannica.com (last accessed 18 March 2010).
645
646
Ibid.
647
Ibid, 1200.
648
Ibid, 1082.
649
650
See Part V A 2 (f) The Nacht und Nebel Erlass (Night and Fog Decree).
651
151
courts the burden of the prosecution, trial, and disposal of the victims of
Hitler‟s Night and Fog. For this he must be charged with primary
responsibility.
The Tribunal further stated that Schlegelberger did at least

participate in the crimes against Poles and Jews.652 It referred to the Decree
against Poles and Jews from 4 December 1941, whose first draft was made
by Schlegelberger, and stated:653
He was guilty of instituting and supporting procedures for the wholesale

persecution of Jews and Poles. Concerning Jews, his ideas were less
brutal than those of his associates, but they can scarcely be called
humane. … Schlegelberger‟s draft constituted the basis on which, with
certain modifications and changes, the law against Poles and Jews was
enacted. In this respect he was not only guilty of participation in the racial
persecution of Poles and Jews; he was also guilty of violation of the laws
and customs of war by establishing that legislation in the occupied
territories of the East.
In the end, Tribunal III summarised Schlegelberger‟s role and its

relevance in Nazi Germany‟s legal system as follows:654
We are under no misapprehension. Schlegelberger is a tragic character.

He loved the life of an intellect, the work of the scholar. We believe that
he loathed the evil that he did, but he sold that intellect and that
scholarship to Hitler for a mess of political pottage and for the vain hope
of personal security.
(b) Klemm
Unlike Schlegelberger, Herbert Klemm was a convinced National

Socialist.655 Born in 1903, he joined the NSDAP as early as 1931 and
worked in the Ministry of Justice from 1935 to 1940.656
652
Ibid.
653
Ibid, 1083-1085.
654
Ibid, 1087.
655
Ibid, 1087-1088.
152
Between July 1940 and March 1941, he fulfilled his war service in
Holland as head of the department dealing with legal matters in the
occupied Dutch territories, and from March 1941 to 1944, he served in the
office of the Deputy of the Fuehrer and the Party Chancellery in Munich and
Berlin.657 On 4 January 1944, he was appointed State Secretary in the
Ministry of Justice and remained in this position until Germany‟s
surrender.658
Klemm was found guilty under counts two and three of the
indictment and was sentenced to imprisonment for life.659 In evaluating
Klemm‟s actions, Military Tribunal III could rely on clear evidence
presented by the prosecution: While Klemm worked in the Party
Chancellery, he made suggestions for strengthening the powers of police,
and he took part in drafting the act to make the law relating to treason
retroactive and applying to the annexed Eastern territories.660 As State
Secretary in the Ministry of Justice, Klemm was effectively involved in the
crimes committed by the German judiciary in the last one and a half years of
the Nazi reign.661
Based on the evidence against him, the Tribunal stated:662
… Klemm knew of abuses in concentration camps. He knew of the

persecution and oppression of the Jews and Poles and gypsies. He must be
assumed to have known, from the evidence, the general basis of Nacht
und Nebel procedure under the Department of Justice.
Additionally, Klemm was blamed for (1) denying clemency appeals

of death sentences, which were obviously based on confessions made while
getting tortured;663 (2) supporting and participating in the plan of the Nazi
leaders to inspire the lynching of Allied airmen by the people of
656
Ibid, 1087.
657
Ibid; United Nations War Crimes Commission, above n 223, 14.
658
659
Ibid, 1107, 1200.
660
Ibid, 1090.
661
662
663
Ibid, 1092-1095.
153
Germany;664 and (3) as head of the department within the Ministry of Justice
which was competent for Germany‟s penal institutions, being jointly
responsible for the execution of approximately 800 political prisoners of the
penitentiary at Sonnenburg in January 1945.665
In conclusion, Tribunal III stated:666
When Rothenberger was ousted as State Secretary because he was not

brutal enough, it was Klemm who was chosen to carry on the Thierack
program in closest cooperation with the heads of the Nazi conspiracy.
Klemm was in the inner circle of the Nazi war criminals. He must share
with his dead friend, Thierack, … and his missing friend Bormann[667],
the responsibility, at a high policy level, for the crimes committed in the
name of justice which fill the pages of this record. We find no evidence
warranting mitigation of his punishment.
(c) Rothenberger
Curt Rothenberger was born on 30 June 1896.668 He joined the

NSDAP on 1 May 1933 “for reasons of full conviction”, as he had stated
himself.669 From 1935 to 1942, he was the President of the District Court of
Appeals in Hamburg.670 During this period he was actively engaged as a
Party official in several organisations of the NSDAP.671
In August 1942, Rothenberger was appointed State Secretary in the

Reich Ministry of Justice, but left the Ministry in December 1943, due to
664
Ibid, 1093-1099.
665
Ibid, 1093, 1099-1106.
666
Ibid, 1107.
667
Martin Bormann was the head of the Party Chancellery, and the head of the whole
administrative machinery of the Nazi Party in Germany. He escaped after the war, but was
indicted and sentenced to death in absentia by the International Military Tribunal at
Nuremberg in 1946. “Martin Bormann” www.britannica.com (last accessed 18 March
2010).
668
Schott, above n 429, 18.
669
670
Ibid, 1107.
671
Ibid.
154
bad relations with Minister Thierack.672 Afterwards, he served as a notary in

Hamburg.673
Rothenberger was found guilty under counts two and three of the
indictment and was sentenced to seven years imprisonment.674 Based on the
given evidence, consisting of statements of Rothenberger himself,
documents and testimonies of witnesses,675 Tribunal III stated:676
In conclusion, the evidence discloses a personality full of complexities,

contradictions, and inner conflict. He was kind to many half-Jews, and
occasionally publicly aided them, yet he was instrumental in denying
them the rights to which every litigant is entitled. He fulminated publicly
against the „Schwarze Korps‟[677] for attacking the courts, yet he
reproached judges for administering justice against Party officials and
unquestionably used his influence toward achieving discriminatory action
favorable to high Party officials and unfavorable to Poles and Jews. He
wrote learnedly in favor of an independent judiciary, yet he ruled the
judges of Hamburg with an iron hand. He protested vehemently against
the practice of Party officials and Gestapo officers who interfered with the
judges in pending cases, but he made arrangements with the Gestapo, the
SS, and the SD whereby they were to come to him with their political
affairs and then he instituted „preview and review‟ of sentences with the
judges who were his inferiors. He thought concentration camps wrong but
concluded that they were not objectionable if third degree methods did
not become a habit.
Although the Tribunal took into account that Rothenberger could not
stand the brutality of the Nazi system and was “deceived and abused by his
superiors” Thierack and Himmler, who Rothenberger considered his
personal enemies,678 it concluded:679
The defendant Rothenberger is guilty of taking a minor but consenting

part in the Night and Fog program. He aided and abetted in the program
672
Schott, above n 429, 119, 148-156.
673
674
Ibid, 1118, 1200.
675
676
Ibid, 1117-1118.
677
Das Schwarze Korps (The Black Corps) was the weekly newspaper of the SS. Randall L
Bytwerk “Das Schwarze Korps” www.calvin.edu (last accessed 18 March 2010).
678
679
Ibid.
155
of racial persecution, and notwithstanding his many protestations to the

contrary he materially contributed toward the prostitution of the Ministry
of Justice and the courts and their subordination to the arbitrary will of
Hitler, the Party minions, and the police. He participated in the corruption
and perversion of the judicial system.
(d) Lautz
Born in 1887, Ernst Lautz served as Chief Public Prosecutor at the

People‟s Court in Berlin from 20 September 1939 until the end of the
war.680 He became a member of the NSDAP in May 1933, but never
actively participated in Party affairs.681 In his position at the People‟s Court
he was the supervisor of the defendants Barnickel and Rothaug.682
Military Tribunal III found Lautz guilty upon counts two and three
of the indictment and sentenced him to ten years imprisonment.683 It
stressed especially that the proof of his guilt depended not solely on
captured documents or the testimony of witnesses, but on his own sworn
statements.684
In summary, he was convicted for his involvement “in enforcing the

law against Poles and Jews which we deem to be part of the established
governmental plan for the extermination of those races” 685, for “a violation
of the laws and customs of war in connection with prosecutions under the
Nacht und Nebel decree”686, and for participating “in the perversions of the
laws relating to treason and high treason under which Poles guilty of petty
offenses were executed.”687
680
Ibid, 1118-1119; Kastner “Der Dolch des Moerders war unter der Robe des Juristen
verborgen: Der Nuernberger Juristen-Prozess 1947”, above n 317, 704.
681
682
Ibid, 1119.
683
Ibid, 1128, 1200.
684
Ibid, 1128.
685
Ibid.
686
Ibid.
687
Ibid.
156
In its evaluation of Lautz‟s role in the Nazi legal system, Tribunal III
finally stated:688
There is much to be said in mitigation of punishment. Lautz was not

active in Party matters. He resisted all efforts of Party officials to
influence his conduct but yielded to influence and guidance from Hitler
through the Reich Ministry of Justice, believing that to be required under
German law. He was a stern man and a relentless prosecutor, but it may
be said in his favor that if German law were a defense, which it is not,
many of his acts would be excusable.
(e) Mettgenberg
Wolfgang Mettgenberg was born in 1882.689 He held the position of

Representative of Chief in Departments III and IV of the Reich Ministry of
Justice, which dealt with penal legislation and penal administration. 690 He
was the supervisor of, and worked close together with, the defendant von
Ammon, who was in charge of the Night and Fog section within
Mettgenberg‟s subdivision.691
Mettgenberg was found guilty under counts two and three of the
indictment and was sentenced to ten years imprisonment.692 The Tribunal
convicted him primarily for his leading role in the accomplishment of
Hitler‟s Night and Fog Decree. Based on Mettgenberg‟s own affidavit,693 it
stated:694
… the defendant Wolfgang Mettgenberg frankly and fully admits his

connection with the Hitler Night and Fog decree. His statements show
that he exercised wide discretion and had extensive authority over the
entire plan from the time the Night and Fog prisoner was arrested in
688
Ibid.
689
690
691
Ibid, 1129.
692
Ibid, 1132, 1200.
693
694
Ibid, 1128.
157
occupied territory and continuously after his transfer to Germany, his

trial, and execution or imprisonment.
Overall, Tribunal III then concluded:695
The evidence shows beyond a reasonable doubt that that he acted as a

principal, aided, abetted, and was connected with the execution and
carrying out of the Hitler Night and Fog decree in violation of numerous
principles of international law …
(f) von Ammon
Wilhelm von Ammon was born in 1903 and joined the SA, the
leading military force of the Nazi Party before and in the early years of the
Nazi Government,696 in December 1933, shortly after the Nazis had taken
over power in Germany.697
He started his service in the Reich Ministry of Justice in 1935 and

was promoted Ministerial Counsellor in 1943, under the supervision of the
defendant Mettgenberg.698 As stated above, von Ammon was responsible for
the Night and Fog cases within Mettgenberg‟s subdivision.699 He was also a
member of the NSDAP, which he joined in 1937.700
Tribunal III found von Ammon guilty under counts two and three of
the indictment and sentenced him to ten years imprisonment.701 Similarly to
Mettgenberg, von Ammon was primarily charged with various
responsibilities in the execution of Hitler‟s Night and Fog Decree.
Among other things, von Ammon was especially responsible for the
decision of distributing the Night and Fog cases among the several Special
695
Ibid, 1132.
696
“SA” www.britannica.com (last accessed 18 March 2010).
697
Nuernberger Juristen-Prozess 1947”, above n 317, 703; Justice Case, above n 9, 1132.
698
699
Ibid, 1132-1133.
700
Ibid, 1132.
701
Ibid, 1134, 1200.
158
Courts and the People‟s Court, and von Ammon was granted a large degree
of autonomy by Mettgenberg in his handling of individual cases, including
the authority to confirm death sentences.702
Like Mettgenberg, von Ammon also proved the charges against him
by his own testimonies.703 Thus, the Tribunal got a detailed overall picture
of von Ammon‟s responsibility and stated as follows:704
The defendant von Ammon held an executive position of responsibility

involving the exercise of personal discretion. Within the ministry he was
in charge of the section which handled Night and Fog cases. … We have
already quoted a note signed by von Ammon wherein he remarked that it
was „rather awkward‟ that the defendants should learn the details of their
charges only during the trial and commented on the insufficiency of the
translation facilities in the trial of French NN prisoners. Von Ammon is
chargeable with actual knowledge concerning the systematic abuse of the
judicial process in these cases.
(g) Joel
Born in 1903,705 Guenther Joel took office in the Ministry of Justice

in 1933 as a Junior Public Prosecutor and rose to the rank of Ministerial
Counsellor in 1941.706 Between 1937 and 1943, he was the Personal
Referent707 of Reich Minister Guertner and his successor Thierack in special
cases.708
In 1943, Joel left the Ministry after he was appointed Attorney

General to the Supreme Provincial Court of Appeals in Hamm.709 Quickly,
in August 1943, he was promoted Chief Prosecutor of the Court of Appeals
702
Ibid, 1133-1134.
703
Ibid, 1041-1042, 1132.
704
Ibid, 1134.
705
706
707
Personal Referent is a specific German term and is equivalent to a Ministerial Advisor.
708
709
Ibid, 1136.
159
in Hamm, responsible for a huge territory, including all of Westphalia and

the district of Essen.710 In this position he stayed until the end of the war.
Joel was a Party man711. He entered the NSDAP in May 1933 and
became a member of the SS in January 1938.712 From 1937 to 1943, he
acted as Liaison Officer between the Ministry of Justice and the SS, SD and
Gestapo.713
Tribunal III adjudged Joel guilty under counts two, three and four of
the indictment and sentenced him to ten years imprisonment.714 He was
convicted for his actions as a Referent in the Ministry of Justice, in which he
dealt with many cases tried under the Decree against Poles and Jews from 4
December 1941, including the review and passing of death sentences for
Poles and Jews who had committed alleged crimes against the Reich or the
German occupation forces.715
Also, he was convicted for his work as Liaison Officer between the
Ministry and the SS and Gestapo, which “was productive and satisfactory in
the carrying out of the plan or scheme of racial persecution and
extermination of Poles and Jews.”716 Furthermore, the Tribunal blamed him
for his work as Chief Prosecutor of the Court of Appeals in Hamm, in which
he was in charge of the Night and Fog programme.717 Lastly, he was
convicted for his membership in the SS and SD, which the judgment of the
International Military Tribunal had declared to be criminal organisations.718
Many documents proved his guilt and, therefore, in its judgment the
Tribunal concluded:719
The defendant Joel is chargeable with knowledge that the Night and Fog
program from its inception to its final conclusion constituted a violation
710
Ibid, 1137.
711
Ibid, 1134.
712
Ibid, 1134-1135.
713
Ibid, 1135-1136.
714
Ibid, 1142, 1200-1201.
715
Ibid, 1142.
716
Ibid, 1136-1137.
717
Ibid, 1137.
718
Ibid, 1134.
719
Ibid, 1138, 1142.
160
of the laws and customs of war. … As Referent in the department of

justice and as liaison officer between the department and the SS, Joel
obtained extensive information and exercised far-reaching power in the
execution of the law against Jews and Poles. He therefore took an active
part in the execution of the plan or scheme for the persecution and
extermination of Jews and Poles. Concerning Joel‟s membership in the SS
and SD, a consideration of all of the evidence convinces us beyond a
reasonable doubt that he retained such membership with full knowledge
of the criminal character of those organizations.
(h) Rothaug
Oswald Rothaug was born on 17 May 1897.720 He worked as a

lawyer, public prosecutor and local court judge before he was appointed
Director of the District Court in Nuremberg in April 1937. 721 In this
position, which he held until May 1943, he was Chairman of the Court of
Assizes, of a penal chamber and of the Nuremberg Special Court.722 In May
1943, he was promoted Senior Public Prosecutor at the People‟s Court in
Berlin.723
Rothaug joined the NSDAP in 1938.724 He was an active Party

member and an “honorary collaborator” of the SD.725 Furthermore, he was
Executive Chief of the Lawyers‟ League in the District of Franconia.726
Rothaug became symbolic of the worst excesses of the racist and evil
Nazi ideology which took over the German judiciary after 1933.727 Military
Tribunal III described him and the defendant Oeschey as “judges who with
fanatical zeal enforced the will of the Party”728.
720
Ibid, 1143.
721
Ibid.
722
Ibid.
723
Ibid.
724
Ibid.
725
Ibid, 1143-1144.
726
Ibid, 1144.
727
Ibid, 1156.
728
Ibid, 1025; See also Part V A 1 (f) (iii) Outcome.
161
The evidence against Rothaug was voluminous and verified his

“attitude of virulent hostility” towards Poles and Jews.729 Many documents
and witness statements of his own associates, including judges, prosecutors,
defence lawyers and medical experts, proved his guilt.730 Hence, the
Tribunal found Rothaug guilty on count three of the indictment and
sentenced him to imprisonment for life.731
The judgment was primarily based on three exemplary cases, which

were tried in front of the Special Court at Nuremberg with Rothaug as the
Presiding Judge:
In the first trial, Rothaug adjudged two Polish girls of minor age
within one hour for alleged sabotage and sentenced them to death, although
they had repudiated their confessions made during the interrogation by the
Gestapo and their lawyer had objected that a proper defence was impossible
because he was summoned by Rothaug just two hours before the start of the
trial.732 They were executed just four days after the trial.733
In the second trial, a 25 year old Polish farmhand was accused to

have made indecent advances to his employer‟s wife.734 He was sentenced
to death under the Decree against Poles and Jews from 4 December 1941
and was subsequently executed.735 Rothaug‟s judgment included the words:
“The whole inferiority of the defendant, I would say, lies in the sphere of
character and is obviously based on his being a part of Polish subhumanity,
or in his belonging to Polish subhumanity.”736
The third trial was the well-known case of Leo Katzenberger, a 68

year old Jewish merchant and the head of the Jewish community in
Nuremberg.737 He was accused of racial pollution with the 30 year old
729
730
Ibid.
731
Ibid, 1156, 1201.
732
Ibid, 1146.
733
Ibid, 1147.
734
Ibid.
735
Ibid, 1150.
736
Ibid, 1149.
737
Ibid, 1150; See generally Hartmut Frommer and Kathrin Westner “Die Vernichtung von
Leo Katzenberger durch das Sondergericht Nuernberg” (1998) 85 Mitteilungen des Vereins
fuer Geschichte der Stadt Nuernberg 315 et seq.
162
German woman Irene Seiler, who had given a sworn statement that
Katzenberger and her family had been close friends for many years and that
their relationship was only a friendly and fatherly one without any sexual
intercourse.738
After the indictment appeared to fail, because there was no evidence

at all, Rothaug organised that the case was to be tried before his Special
Court.739 He ordered that Katzenberger be indicted with racial defilement in
combination with a charge under the Decree against Public Enemies, which
was the only possibility to give a death sentence, and that Seiler was
indicted with the charge of perjury, so she was precluded as a witness for
Katzenberger.740
Prior the start of the trial, Rothaug told the medical counsellor of the
court that Katzenberger “would be beheaded anyhow”741 and, on the
doctor‟s objection that his guilt was questionable, he replied: “It is sufficient
for me that the swine said that a German girl had sat upon his lap.”742
During the recess after the introduction of evidence was concluded, Rothaug
talked to the prosecutor and urged him to ask for a death sentence for
Katzenberger.743 He also gave him suggestions for arguments.744 In the end,
Katzenberger was sentenced to death, and Seiler was sentenced to two years
imprisonment.745
In its conclusion, Tribunal III evaluated Rothaug‟s role in the Nazi

judicial system as follows:746
From the evidence it is clear that these trials lacked the essential elements
of legality. In these cases the defendant‟s court, in spite of the legal
sophistries which he employed, was merely an instrument in the program
of the leaders of the Nazi State of persecution and extermination. That the
number the defendant could wipe out within his competency was smaller
738
739
Ibid, 1151.
740
Ibid.
741
Ibid, 1152.
742
Ibid.
743
Ibid.
744
Ibid.
745
Frommer and Westner, above n 737, 319.
746
163
than the number involved in the mass persecutions and exterminations by

the leaders whom he had served, does not mitigate his contribution to the
program of those leaders. His acts were more terrible in that those who
might have hoped for a last refuge in the institutions of justice found these
institutions turned against them and a part of the program of terror and
oppression.
The individual cases in which Rothaug applied the cruel and

discriminatory law against Poles and Jews cannot be considered in
isolation. It is of the essence of the charges against him that he
participated in the national program of racial persecution. It is of the
essence of the proof that he identified himself with this national program
and gave himself utterly to its accomplishment. He participated in the
crime of genocide. …
By his manner and methods he made his court an instrumentality of terror

and won the fear and hatred of the population. From the evidence of his
closest associates as well as his victims, we find that Oswald Rothaug
represented in Germany the personification of the secret Nazi intrigue and
cruelty. He was and is a sadistic and evil man.
(i) Barnickel, Petersen, Nebelung and Cuhorst
The defendants Paul Barnickel, Hans Petersen, Guenther Nebelung

and Hermann Cuhorst were all acquitted by Military Tribunal III.747 A
closer look at these defendants, therefore, is not necessary because the
danger of victor‟s justice in the individual cases is out of question.
Interestingly enough, though, is the fact that the Tribunal was

generally convinced that the defendant Cuhorst committed crimes as defined
in Control Council Law No. 10.748 It stated:749
There are many affidavits and much testimony in the record as to the
defendant‟s character as a fanatical Nazi and a ruthless judge. There is
747
Ibid, 1156-1159.
748
Ibid, 1158.
749
Ibid.
164
also much evidence as to the arbitrary, unfair, and unjudicial manner in

which he conducted his trials.
Nevertheless, Tribunal III did not find him guilty for the only reason
that the records of the cases, which were tried by Cuhorst as Chief Justice of
the Special Court in Stuttgart, had been destroyed when the Palace of Justice
in Stuttgart was burned.750 The decision was explained as follows:751
From the evidence available, this Tribunal does not consider that it can
say beyond a reasonable doubt that the defendant was guilty of inflicting
the punishments which he imposed on racial grounds or that it can say
beyond a reasonable doubt that he used the discriminatory provisions of
the decree against Poles and Jews to the prejudice of the Poles whom he
tried.
(j) Oeschey
Together with Rothaug, whose successor as Chief Justice of the

Special Court in Nuremberg he became in 1943, Rudolf Oeschey was
characterized as one of “the guiding, if not controlling, spirits of the Special
Court at Nuernberg, which was known as the most brutal of the special
courts in Germany.”752
Born in 1903,753 Oeschey early became a member of the NSDAP in

1931.754 He served in several offices of the Nazi Party until, in 1940, he was
provisionally commissioned with the direction of the legal office of the
NSDAP in the District of Franconia and the leadership of the District of
Franconia in the National Socialist Lawyers League.755
750
Ibid.
751
Ibid.
752
Ibid, 1159.
753
754
755
Ibid.
165
After Rothaug‟s promotion to Berlin, Oeschey was appointed

Director of the District Court in Nuremberg.756 He held this position until
February 1945, when he was drafted into the German Army.757 For the
period from 4 April 1945 to 14 April 1945, he was released to serve as
Chairman of the Civilian Court Martial at Nuremberg.758
Tribunal III found Oeschey guilty on counts three and four of the indictment
and sentenced him to imprisonment for life.759 Many cases gave evidence of
his arbitrary character, but the Tribunal analysed only two in detail:760
In the first case, Oeschey found a Polish woman guilty of a violation

under the Decree against Poles and Jews, and her boyfriend, a Ukrainian
male, he found guilty for assisting her to commit this alleged crime after a
harmless skirmish with their employer, a German farmer, had occurred.761
Both were sentenced to death, and the evidence in the Justice Trial proved
that Oeschey imposed his will upon his two fellow judges and had induced
them to concur.762 Accordingly, the Tribunal concluded:
In this case Oeschey, with evil intent, participated in the government-

organized system for the racial persecution of Poles. This is also a case of
such a perversion of the judicial process as to shock the conscience of
mankind.
The other case was the one of Count Montgelas, who was tried and
convicted for having allegedly made insulting remarks concerning Hitler to
a woman in a private room.763 He was sentenced to death by the Nuremberg
Civilian Court Martial with Oeschey as the Presiding Judge.764 By violating
almost all rules of a fair trial, which were also valid for courts martial, this
756
Ibid.
757
Ibid.
758
Ibid.
759
Ibid, 1170, 1201.
760
Ibid, 1159.
761
Ibid, 1159-1160.
762
Ibid, 1161.
763
Ibid, 1163-1164.
764
Ibid, 1163.
166
case was one of the most terrifying examples of the Nazi judicial practice.765
Tribunal III summarised as follows:766
Thus, on the last days of the war, when the American Army was almost at
the gates of Nuernberg, and within a month of the total collapse of
German opposition, a sick man, after solitary confinement, is indicted on
3 April, tried on 5 April, and shot on 6 April without the knowledge of his
counsel in secret proceedings, and without the benefit of witnesses who
would have testified for him. Such a mock trial is not a judicial
proceeding but a murder.
The most shocking facts about Oeschey‟s character were not given
by the captured documents, but by many witnesses who had been his
associates.767 Most of them described Oeschey as a racist, especially in
regard to Poles, and a fanatical Nazi who often had announced before trial
that the defendant will be executed.768 For example, a statement of Hermann
Mueller, who was a prosecutor at the Nuremberg Special Court and a
witness at the Justice Trial, is quoted here: “Oeschey was the most brutal
judge that I have ever known in my life and a most willing instrument of the
Nazi terroristic justice.”769
Based on such statements and the documentary evidence, it was

relatively easy for Tribunal III to get a profound picture of Oeschey‟s
personality and his role in the Nazi judicial system. Thus, at the end of its
analysis, it concluded: “In view of the sadistic attitude and conduct of the
defendant, we know of no just reason for any mitigation of punishment.”770
765
Ibid, 1162-1164.
766
Ibid, 1164.
767
768
Ibid, 1165-1167.
769
Ibid, 1165.
770
Ibid, 1170.
167
(k) Altstoetter
Josef Altstoetter, born in 1892, is the only defendant in the Justice

Trial, who was found guilty on count four of the indictment only. 771 Besides
his professional career in the Ministry of Justice, where he was promoted
Chief of the Civil Law and Procedure Division in 1943, he was a very active
member within the Nazi Party.772
When the Nazis took over power in Germany, he had been a member
of the paramilitary organisation Stahlhelm, which was absorbed by the SA
in 1934.773 In the following years, he developed a good relationship to
Heinrich Himmler and, on his request, Altstoetter resigned from the SA to
become a member of the SS in 1937.774 In 1938, he also joined the NSDAP,
which later awarded him the Golden Party Badge for service to the Party.775
Altstoetter was a good friend to Himmler and Ernst Kaltenbrunner776

and, probably for that reason, received several promotions in the SS.777 The
peak of his SS career was reached in 1944, when he was promoted to the
rank of Oberfuehrer, which was a very high position within the
organisation.778
Tribunal III sentenced Altstoetter to five years imprisonment.779 It

referred to the judgment of the International Military Tribunal, which in
detail had described the criminal activities of the SS, such as the deportation
771
Ibid, 1170, 1177.
772
Ibid, 1171.
773
Ibid.
774
Ibid.
775
Ibid.
776
Ernst Kaltenbrunner was Chief of the SD and Gestapo from 1943 until the end of the
war. In this position, he was in charge of the system of Nazi concentration camps
throughout Europe and controlled the administrative apparatus for carrying out the
extermination of European Jewry. He was indicted as a war criminal and sentenced to death
by the International Military Tribunal in 1946. “Ernst Kaltenbrunner” www.britannica.com
(last accessed 18 March 2010).
777
778
Ibid, 1172.
779
Ibid, 1201.
168
and extermination of the Jews, the widespread murder and ill-treatment of

the civilian population in occupied territories and the brutal treatment of the
inmates of concentration camps.780
The evidence of Altstoetter‟s connection with the SS was based

primarily on his personnel file, his correspondence with SS leaders and his
own testimony, and it showed clearly that he knew about the crimes
committed by the SS, for example, the evacuation of Jews in Austria.781
Thus, in conclusion, the Tribunal stated as follows:782
He accepted and retained his membership in the SS, perhaps the major
instrument of Himmler‟s power. Conceding that the defendant did not
know of the ultimate mass murders in the concentration camps and by the
Einsatzgruppen, he knew the policies of the SS and, in part, its crimes.
Nevertheless, he accepted its insignia, its rank, its honors, and its contacts
with the high figures of the Nazi regime. These were of no small
significance in Nazi Germany. For that price he gave his name as a
soldier and a jurist of note and so helped to cloak the shameful deeds of
that organization from the eyes of the German people.
(l) Engert and Westphal
Karl Engert, Vice President of the infamous People‟s Court, and Carl
Westphal, a high official in the Reich Ministry of Justice, were both indicted
but not tried.783
Engert became seriously ill and was not able to be present in court
for most of the trial, so Tribunal III declared a mistrial.784 Westphal
780
Ibid, 1173-1175.
781
Ibid, 1171, 1176.
782
Ibid, 1176-1177.
783
Ibid, 3.
784
Ibid, 954.
169
committed suicide in his cell in the Nuremberg jail after the indictment was
issued, but before the opening of the trial.785
2 The Tribunal’s relatively mild sentencing
Many people criticised the sentences in the Justice Trial as too mild,
which is fully understandable if one looks at other trials conducted at
Nuremberg. Death sentences were given in the major trial before the
International Military Tribunal, and in Case No. 1 (Medical Trial), Case No.
4 (Pohl Trial) and Case No. 9 (Einsatzgruppen Trial) of the subsequent
Nuremberg Trials.786 The Deputy Chief Prosecutor in the Justice Trial,
Charles M LaFollette, stated in a review of the trial in 1948: “The judgment
was attacked for its leniency by more Germans than Americans.”787
Hence, the question arises why none of the defendants in the Justice
Trial was sentenced to death and why most of the given prison terms, except
for the lifelong sentences, were relatively short? Defendants like Rothaug or
Oeschey may have been appropriate candidates for the death penalty.
At first, the perspectives of the judges of Tribunal III have to be

considered, because it could be a reason for the mildness of the sentences.
Besides the fact that the members of the Tribunal were sitting opposite of
former peers, they were confronted with a unique situation in world history,
namely the task to evaluate the role of jurists, who usually did nothing else
but to apply the existing laws of their country.
Additionally, they did not judge over some ordinary cads but
representatives of Germany‟s academic elite, who were able to speak and
argue in a proper way and sometimes showed regret. Especially
Schlegelberger left a good personal impression on the Tribunal.788
785
Ibid, 3.
786
Beigbeder, above n 20, 38; Whitney R Harris, above n 18, 546, 548, 551.
787
LaFollette, above n 280, 12.
788
See generally Justice Case, above n 9, 1081-1087.
170
Therefore, the judges of Tribunal III had to deal with an emotional pressure
based on the unanswerable and terrifying question: What would I have done
in the situation of the defendants?
Another reason was the social and political situation in 1947. In his
Final Report, Chief Prosecutor Telford Taylor explained the differences in
the sentences of the 12 subsequent Nuremberg Tribunals as follows:789
On the whole, it was apparent to anyone connected with the entire series
of trials under Law No. 10 that the sentences became progressively lighter
as time went on … No doubt a number of factors played a part in this
trend toward leniency, including waning interest on the part of the general
public and the shift in the focus of public attention resulting from
international events and circumstances.
Indeed, the public interest shifted away from the war crimes trials
after the major Nazis had been convicted by the International Military
Tribunal, and also the US policy in regard to Germany‟s war criminals
changed dramatically after it became clear that a new democratic Germany
was needed as an ally in the context of the upcoming Cold War.790
As analysed before, the judges of Tribunal III evaluated and judged

with a great sense of impartiality,791 Nevertheless, they were human beings
and could hardly free themselves completely from these developments.
However, the relative mildness of the sentences passed by Tribunal III
disprove the accusation that the verdicts in the Justice Trial were based on
victor‟s justice.
3 Conclusion
The judges of US Military Tribunal III were confronted with an

extremely difficult task: to put themselves in the position of a leading
789
790
Friedman, above n 2, 91-92.
791
See Part III A 2 Independence of the judges from US post-war politics.
171
German jurist under the Nazi Government and evaluate the actions that were
done. In doing so, it has to be taken into consideration, and the judges
probably did, that at the time, people of any nation depended much more on
their home country than today.
The world was not as international, and emigration was an option

with a much bigger personal sacrifice than it is today. Most of the people in
the 1930s were deeply rooted in the communities where they had grown up,
and persons with a social background and standing like the defendants had
even stronger roots to their local area, because they belonged to the guiding
elite of those communities. Additionally, some of the defendants had
already reached an age, which would have made it even more difficult for
them to leave their beloved home country.
In the end, the Tribunal evaluated the role of the defendants

reasonably and passed appropriate sentences. Persons like Schlegelberger or
Rothenberger did obviously struggle with the development of law and their
role in Nazi Germany‟s judicial system. Nevertheless, they were – directly
or indirectly – responsible for the atrocities committed in the name of law in
Germany.
Tribunal III did not only punish them for their actions but sent an
important message for future generations: that individuals of such high
intelligence and good standing should have taken their leading roles in
society not only for their personal benefits but for the good of moral and
conscience and, therefore, should have probably resisted or left their
country.
Individually, in my opinion, all defendants were adjudged in a fair

and just manner without signs of victor‟s justice. However, regarding the
responsibility of German judges, German Professor Eberhard Schmidt, in
1947, stated that it was not the judiciary but the legislature who undermined
172
the justice system and, therefore, the responsibility for it cannot be heaped
upon the judiciary but only on the legislature.792
Nevertheless, it is a given fact that sometimes courts had exceeded

the possible range of punishment in Nazi laws by “150 per cent” 793, and had
sentenced political opponents or Poles and Jews to death without any
need.794 Therefore, although personally an opponent of the death penalty, I
am convinced that the life sentences handed down by the Tribunal were
deserved, as one can possibly argue that only defendants like Rothaug and
Oeschey may have deserved the death penalty.
In the case of Altstoetter, there are signs of weak evidence as he was

convicted only for his membership in the SS, with the explanation that he
knew about the crimes committed by this organisation. However, with
respect to the legal basis and background of Tribunal III, including the
obligation to apply the rules of Control Council Law No. 10 and US
Military Ordinance No. 7, his conviction was understandable.
When one looks at his sentence of just five years imprisonment, the
mildest sentence of all convicted defendants in the Justice Trial, it becomes
clear that the Tribunal took his less severe guilt into account.
Furthermore, the acquittals of four of the defendants definitely

disprove the accusation of victor‟s justice. Especially the case of Cuhorst
clarifies that Tribunal III held onto fundamental principles of criminal law,
although all available evidence and facts strongly indicated his guilt.
The Tribunal adhered to the principle in dubio pro reo (when in

doubt, for the accused) and acquitted him because it was not able to say
“beyond a reasonable doubt” that he was guilty.795 Unlike the Nazi legal
practice, which disregarded this principle among many others, it sent out a
strong signal to future tribunals to follow the basic rules of criminal law and
justice, free of emotional feelings and the public cry for vengeance.
792
Kramer “Richter vor Gericht: Die juristische Aufarbeitung der Sondergerichtsbarkeit”,
above n 342, 168.
793
Translated from the German “einhundertfuenfzigprozentig”. Ibid, 169.
794
Ibid.
795
173
With respect to the atrocities committed by the Gestapo and in

concentration camps, all of the defendants had claimed that they did not
know about it.796 On this, the Tribunal stated as follows:797
The thousands of Germans who took part in the atrocities must have
returned from time to time to their homes in the Reich. The atrocities
were of a magnitude unprecedented in the world. Are we to believe that
no whisper reached the ears of the public or of those officials who were
most concerned? Did the defendants think that the nation-wide pogrom of
November 1938 officially directed from Berlin and Hitler‟s
announcement to the Reichstag threatening the obliteration of the Jewish
race in Europe were unrelated? At least they cannot plead ignorance
concerning the decrees which were published in their official organ, „The
Reichsgesetzblatt‟. … They read The Stuermer[798]. They listened to the
radio. They received and sent directives. They heard and delivered
lectures. This Tribunal is not so gullible as to believe these defendants so
stupid that they did not know what was going on. One man can keep a
secret, two men may, but thousands never.
However, in the end, Tribunal III did not settle for this assumption.
Instead it looked accurately and in detail at each defendant‟s actions and
responsibilities, and it relied on the individually given evidence. Therefore,
once more, it has to be said that in regard to the evaluation of the
defendants‟ individual roles, victor‟s justice was not exercised by the
Tribunal.
796
Ibid, 1079.
797
Ibid, 1080-1081.
798
The Stuermer was a popular but infamous newspaper published between 1923 and 1945
in Germany. Its only aim was to denounce Jews in crude, vicious and vivid ways. The
editor Julius Streicher was indicted as a war criminal and sentenced to death by the
International Military Tribunal in 1946. Randall L Bytwerk “Der Stuermer”
www.calvin.edu (last accessed 18 March 2010); “Julius Streicher” www.britannica.com
(last accessed 19 March 2010).
174
175
VI LEGACY OF THE TRIAL
From today‟s perspective, the 13 Nuremberg Trials have been one of

the most remarkable events in world history and changed the rules of
international law forever.
With a focus on the Justice Trial, this chapter will firstly outline how
Nuremberg was the starting point for the establishment of a new
international criminal law; it will be concluded that these new rules and
principles formed a proper basis for the future treatment of war criminals.
Secondly, it will be analysed why the US war crimes trial

programme, in the end, failed and whether the Justice Trial has to be seen as
an example of victor‟s justice because it remained the only trial by the US
Military Government against Nazi jurists after World War II. In this context,
it will also be examined why all convicted defendants were released long
before the end of their prison terms, although the US officials had always
claimed that the sentences were not based on the rule of the victors but the
rule of law.
In the end, a conclusion will be drawn stating that in the context of

the aftermath of World War II the Justice Trial cannot be seen as an
example of victor‟s justice.
A The Establishment of a New International Criminal Law
1 Development
From the very beginning at the London Conference in 1945, the

United States intended that the trials against the German war criminals were
176
not only for punishing the perpetrators of Nazi Germany, but to establish a
new world order in which not the states but the people were the subjects of
the law.799
Since the Peace of Westphalia in 1648, which marked the end of the
devastating 30 Years‟ War in Europe, it was the right of a sovereign state to
make war against other sovereign states and to treat its own population as
they liked.800 That was not good, not evil, not unfair and not illegal in the
context of that time, it was simply the world order for 300 years.801
Indeed, although international treaties and war conventions existed

to protect the civilian population, in general only states were subject to the
international law, and individuals like the defendants in the Justice Trial
could not be made responsible for their actions, which they performed as an
instrument or organ of the state.802
The Nuremberg Trials changed this old world order forever. Besides
the first trial against the major Nazi war criminals, which established that
state leaders can be held individually responsible for aggression, war crimes
and crimes against humanity,803 the subsequent Nuremberg proceedings
additionally “established clear notions of enslavement, torture, deportation,
slave labour, and superior responsibility, all of which helped clarify the
content of crimes against humanity and war crimes as international crimes
bearing individual criminal liability.”804
The new concept of crimes against humanity and the new principle
of individual responsibility meant a revolution in international criminal law
799
Thomas Darnstaedt “Die Neuordnung der Welt” (23 October 2006) 43 Der Spiegel
Hamburg (Germany) 160 www.spiegel.de (last accessed 19 March 2010).
800
Darnstaedt “Das Weltgericht”, above n 227; See also Rosenberg, above n 397, 1550.
801
Darnstaedt “Das Weltgericht”, above n 227.
802
Woetzel, above n 14, 68; See also Part IV A 3 Individual liability and Part V A 1 (f) The
execution of the law in Nazi Germany.
803
Burchard, above n 466, 701.
804
Jens Ohlin “US Military Tribunals sitting at Nuremberg” in Antonio Cassese (ed) The
Oxford Companion to International Criminal Justice (Oxford University Press, Oxford,
2009) 561.
177
at the time.805 Following this, the argument of obedience to superior orders

was once for all denied as an absolute defence in international law.806
The Justice Trial, in particular, established several new doctrines: (1)

that crimes against humanity can include crimes committed by national
authorities against its own nationals “where such crimes were committed
through systematic government approved procedures committed against
populations or amounted to persecutions on political, racial, or religious
grounds”807; (2) that judges could not benefit from the doctrine of judicial
immunity and, therefore, would be liable for their judicial actions if the
evidence shows that the courts “were neither independent nor impartial, but
resembled administrative tribunals acting under directives from above in a
quasi-judicial manner”808; and (3) that the infliction of mental cruelty, such
as committed under the Night and Fog Decree, can constitute inhumane
treatment.809
Overall, the Nuremberg Trials laid the foundation of modern

international criminal law. The concept of crimes against humanity served
as a basis and inspiration for the Universal Declaration of Human Rights of
1948, the Genocide Convention of 1948 and the extension of the four
Geneva Conventions of 1949.810 Also, the so called Nuremberg Principles
were adopted by the United Nations in 1950, and serve today as a solid basis
for international war crimes tribunals.811
Unfortunately for the development of international law, the Iron

Curtain during the Cold War re-established the old principle of state
sovereignty “so that in the 1980s the Nuremberg‟s legacy was indeed that of
failure.”812
805
Bassiouni, above n 4, 535; See also Rosenberg, above n 397, 1550.
806
Beigbeder, above n 20, 49; See also Rosenberg, above n 397, 1550.
807
808
Gustafson, above n 365, 583; Justice Case, above n 9, 1024-1025; See also Part IV A 3
Individual liability.
809
Gustafson, above n 365, 583, Justice Case, above n 9, 1058-1059.
810
Beigbeder, above n 20, 49; Burchard, above n 466, 701.
811
Burchard, above n 466, 701; See generally United Nations International Law
Commission Principles of International Law Recognized in the Charter of the Nuernberg
Tribunal and in the Judgment of the Tribunal (1950).
812
Burchard, above n 466, 701.
178
Nevertheless, after the end of Communism in Eastern Europe, the

Nuremberg ideas revived and found their ultimate establishment within the
creation of new international war crimes tribunals, such as the Tribunals for
Ex-Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990s.813 The provisional
climax was reached by the Rome Statute of 1998 and the subsequent
installation of the permanent International Criminal Court (ICC) in 2002.814
Additionally, the Nuremberg rules and principles formed the legal

basis for many other courts, such as the South African Truth and
Reconciliation Commission (1995-1998),815 the Special Court for Sierra
Leone (since 2002),816 the Special Tribunals for Lebanon (since 2009) and
Cambodia (since 2007),817 the East-Timor Commission for Reception, Truth
and Reconciliation (2002-2005),818 the Iraq Tribunal (2005-2006),819 and
the German civil courts, who carried out the Wall-shooters’ trials against
former East German soldiers and officials (1991-2005).820
2 Criticism
The Nuremberg Trials revolutionised the international law by

threatening future national leaders and their subordinates with the possibility
of being tried for starting an aggressive war or committing war crimes and
crimes against humanity.821 However, it did not lead to the end of wars and
war crimes. Between 1945 and 1998, international conflicts and tyrannical
813
Ibid; Beigbeder, above n 20, 49; See also “International Criminal Tribunals and Special
Courts” www.globalpolicy.org/international-justice (last accessed 19 March 2010).
814
Burchard, above n 466, 701; See also “The International Criminal Court”
www.globalpolicy.org/international-justice (last accessed 19 March 2010).
815
See generally “Truth and Reconciliation Commission” www.justice.gov.za (last
accessed 19 March 2010).
816
See generally “International Criminal Tribunals and Special Courts”, above n 813.
817
Ibid.
818
Ibid.
819
Ibid.
820
See generally Michael Brettin “Die Prozesse gegen die Mauerschuetzen und ihre
Hintermaenner” (5 May 2009) Berliner Kurier Berlin (Germany)
www.berlinonline.de/berliner-kurier (last accessed 19 March 2010).
821
Harry Reicher “A Turning Point in the Law, A Growing Momentum” (2004) 26 Nat‟l L
J 38, 38.
179
regimes caused an estimated 170 million casualties, and most of the

perpetrators of these crimes have never faced a trial.822
Therefore, some critics state that the Nuremberg Trials did more
harm than good to society and the rule of law, because the fact that only a
very small amount of Nazi criminals were finally tried did not deter future
perpetrators from committing war crimes but almost encouraged them.823
Author Ellis Washington expressed this opinion as follows:824
… the Nuremberg Trials were ultimately, pathetic show trials concocted

by the Allies purely out of expediency and with the intent to dispense
symbolic justice so that they could get on with the work of rebuilding
Europe which had been so utterly devastated by the war.
On the other hand, it has to be taken into account that the

development of Western Europe in the second half of the 20th century
emerges as a success story.825 In 2005, Susanne Karstedt wrote:826
None of the contemporaries who witnessed the end of World War Two,
and saw the sheer scale of European calamity, would have dared to
predict that only a decade later Western European economies would be
thriving, and a union amongst the former enemies would have been
forged in the Western parts of the continent. If anything else, this unique
European experience demonstrates that peace and reconciliation are
possible, even after the most horrific atrocities and unspeakable injustices,
and even after two wars that had cost the lives of millions of European
citizens within the lifetime of one generation, leaving nearly no family
unaffected.
822
Bassiouni, above n 4, 554; See also Stoltzfus and Friedlander, above n 119, 12.
823
Ellis Washington The Nuremberg Trials: Last Tragedy of the Holocaust (University
Press of America, Lanham, 2008) 125-127; See also Lord Hankey, who generally shared
this view and described the trials as “a deplorable example to other nations, and especially
to those with a relatively low standard of civilization and morality”, but he also gave credit
to the Allies that they achieved to a certain degree “the establishment of a rule of law
among the nations that will operate in war no less than in peace.” Lord Hankey “Postscript:
A Political Commentary” in Viscount Frederic H Maugham U.N.O. and War Crimes (John
Murray, London, 1951) 128-129.
824
Washington, above n 823, 125.
825
Susanne Karstedt “The Nuremberg Tribunal and German Society: International Justice
and Local Judgment in Post-Conflict Reconstruction” in David A Blumenthal and Timothy
L H McCormack (eds) The Legacy of Nuremberg: Civilising Influence or Institutionalised
Vengeance? (Martinus Nijhoff Publishers, Leiden, 2008) 13.
826
Ibid.
180
Nevertheless, Washington has a point, though, and as a matter of

fact, it is obvious that the Nuremberg Trials did not deter dictators and
tyrants from breaking the rules of international law. However, it cannot be
said that Nuremberg did more harm than good to society as Germany and
Western Europe in the second half of the 20th century experienced their
most peaceful and prosperous time in history.
3 Conclusion
The Nuremberg Trials were not perfect, but they changed the world
order in an impressive manner. The implementation of new criminal
concepts, such as crimes against humanity and individual responsibility, and
– specifically introduced in the Justice Trial – the rule that judges can be
held responsible for their actions independent from what their national law
says and the principle that crimes committed by national authorities against
its own citizens may also be crimes under international law, established a
completely new system of criminal law, under which we live today.
The transition from a system entirely premised on state sovereignty

to a system which protects the human rights of individuals, is the biggest
achievement in international law since the Peace of Westphalia in 1648.
Unfortunately, Nuremberg did not prevent new wars, conflicts and

human rights violations, but nobody could have seriously expected this. In
this context, the legacy of Nuremberg is not the prevention of such crimes
but the clear signal that their perpetrators can never feel protected by law
again.
The subsequent Nuremberg Trials, additionally, made clear that this

applies not only to the leaders but to everybody who actively participates or
supports such crimes. I agree with Telford Taylor, who stated in 1955: “The
great question today is not whether the Nuremberg principles are valid, but
181
whether mankind can live up to them, and whether it can live at all if it
fails.”827
Regarding the achievements within the substantive law, the

establishment of several international and national tribunals since the 1990s
have shown that the Nuremberg ideas are more relevant than ever. For
example, the doctrines established by the Justice Trial became an important
factor within the legal processing of East Germany‟s past by German courts
after the end of the East German state in 1990.828
Proceedings like the Wall-shooters’ trials and the Perversion-of-

justice trials against East German soldiers, officials and judges were mainly
based on the Nuremberg ideas of protecting fundamental human rights and
holding individuals responsible for their actions, regardless of their
hierarchical position in society.829
In summary, it has to be concluded that Nuremberg truly established

a new international criminal law. The London Agreement with its annexed
Charter and the following first Nuremberg Trial caused a complete
turnaround of the existing world order towards the international recognition
of human rights.
Additionally, the subsequent Nuremberg Trials, including the Justice

Trial, refined these doctrines and established many precedents for later
trials. Eventually, the legacy of these trials is best described by author
Jonathan Friedman who stated: “[T]he subsequent trials gave the
prosecution of war crimes a depth in legal theory and practice that
heretofore did not exist.”830
827
Taylor “The Nuremberg Trials”, above n 15, 525.
828
See generally Peschel-Gutzeit and Jenckel, above n 426, 287-295.
829
Ibid.
830
182
B The Failure of the US War Crimes Trial Programme
Based on the London Charter and Control Council Law No. 10, the
four Allies convicted around 5,000 war criminals after World War II in their
respective occupation zones.831. However, in the context of the estimated
hundreds of thousands of potential German war criminals, these numbers
are very small.832
With respect to the trials in the US zone, various authors take the
view that the US war crimes trial programme failed in many ways.833 Mark
Aarons, for example, stated as follows:834
As the Cold War sharpened, tensions between the former Allies in the
second half of the 1940s, the effort to bring Nazis to justice wound slowly
down and then ground to a complete halt in the early 1950s. At this time,
Western efforts at denazification in Germany and trials of accused war
criminals descended into farce, as the building of West Germany was
found to be impossible without pardoning and releasing many convicted
mass killers.
Indeed, the Nuremberg Justice Trial remained the only trial of the
US authorities against members of the legal profession of Nazi Germany,835
and the convicted defendants were all released in the 1950s, long before the
end of their original prison terms.836 Yet, the upcoming Cold War was a
major but not the only reason for the failure of the US programme. The
deep-rooted opposition from Germany‟s society, and the US amnesties,
which were based on both political and legal reasons, were also important
factors.
831
The United States convicted 1,814 persons of whom 450 were executed, Great Britain
1,085 with 240 executed, France 2,107 with 109 persons executed, and the Soviet Union
tried and executed an unknown number of persons. Bassiouni, above n 4, 532.
832
833
See generally Buscher, above n 72, 159-164; Stoltzfus and Friedlander, above n 119, 1-
13; Friedman, above n 2, 91-95; Clark and Lediakh, above n 298, 275-280.
834
Aarons, above n 397, 76.
835
Baestlein, above n 12, 9; Heribert Ostendorf “Politische Strafjustiz vor und nach 1945”
(1999) 248 Informationen zur politischen Bildung 1, 7.
836
183
When looking at the core question of this paper, the uniqueness of

the Justice Trial and the early release of the convicts from prison seem only
beneficial for the vanquished Germans, but then it has to be asked whether
this was an arbitrary exercise of power by the US Government and,
therefore, an example of victor‟s justice.
It will be shown that different factors of a political and legal nature

caused these results and, in the end, the former US authorities can be
exonerated from the accusation that victor‟s justice had occurred.
1 The upcoming Cold War
Political and ideological differences between the Western Allies and

the Soviet Union were put aside during World War II to defeat the German
armed forces in a joint effort. Nevertheless, after the war was won, these
differences soon started to become insurmountable obstacles in the
relationship between the former Allies.
Additionally, several occurrences in the second half of the 1940s

created a hostile atmosphere especially between the United States and the
Soviet Union, which finally culminated in the Cold War837 which dominated
the world until the end of Communism in Eastern Europe in the early 1990s.
In respect of the US war crimes trial programme, Friedman summarised
these post-war developments as follows:838
From the first trial session in October 1946 to the last review in December
1949, the world had witnessed an escalating series of confrontations
between the Western Allies and the Soviet Union, among them the
837
The term Cold War stands for “the open yet restricted rivalry that developed after World
War II between the United States and the Soviet Union and their respective allies. The Cold
War was waged on political, economic, and propaganda fronts and had only limited
recourse to weapons. … Throughout the Cold War the United States and the Soviet Union
avoided direct military confrontation in Europe and engaged in actual combat operations
only to keep allies from defecting to the other side or to overthrow them after they had done
so. … In late 1991 the Soviet Union collapsed and … [t]he Cold War had come to an end.”
“Cold War” www.britannica.com (last accessed 19 March 2010).
838
184
Communist incursion into southeastern Europe and central Asia before

1947, which inspired the Truman Doctrine[839]; the Communist coup in
Czechoslovakia in March 1948; the promulgation of the Marshall
Plan[840] one month later; the Berlin Blockade[841] in the summer of that
year; the founding of the North Atlantic Treaty Organization on 4 April
1949; the founding of the West German Federal Republic in May; the
Soviets‟ detonation of a nuclear weapon in September 1949; and the
creation of the communist German Democratic Republic (GDR) on 7
October.
Naturally, these occurrences strongly influenced the US policy

towards Germany and, according to Friedman, “[a]s a result … of this
intensifying conflict, American policy toward Germany shifted from one of
occupation and denazification … to one of reconstruction and
integration”842.
Fearing that Communism could become the dominant political

system all over Europe, the United States, together with their Allies Britain
and France, decided early to rebuild and strengthen the area of Western
Europe as a bulwark against Communism.843 The decision to establish a
839
The Truman Doctrine generally describes the Cold War strategy of containment of the
United States versus the Soviet Union and the expansion of Communism, established by
President Harry S Truman in March 1947, after he had declared immediate economic and
military aid to the governments of Greece and Turkey, which had become targets on
Communist insurrection and Soviet expansion in the Mediterranean area. “Truman
Doctrine” www.britannica.com (last accessed 19 March 2010).
840
The Marshall Plan was the “U.S.-sponsored programme designed to rehabilitate the
economies of 17 western and southern European countries in order to create stable
conditions in which democratic institutions could survive.” Established by the Truman
Government, some 13 billion dollars worth of economic aid, helping to restore industrial
and agricultural production, establish financial stability, and expand trade, were distributed
between April 1948 and December 1951, leading to a strong European economy in the
1950s. “Marshall Plan” www.britannica.com (last accessed 19 March 2010).
841
The Berlin Blockade was an “international crisis that arose from an attempt by the
Soviet Union, in 1948-1949, to force the Western Allied powers … to abandon their post-
World War II jurisdictions in West Berlin. … [T]he Soviet occupation forces in eastern
Germany began a blockade of all rail, road, and water communications between Berlin and
the West. … On June 26 [1948] the United States and Britain began to supply the city with
food and other vital supplies by air. … [T]he airlift kept life going in West Berlin for 11
months, until on May 12, 1949, the Soviet Union lifted the blockade.” “Berlin Blockade
and Airlift” www.britannica.com (last accessed 19 March 2010).
842
Friedman, above n 2, 91-92.
843
Buscher, above n 72, 56, 70.
185
new West German republic on the territory of the former occupation zones
of the three Western Allies was the clearest sign of this new policy.844
In return, East Germany was founded as a Communist state under

the influence of the Soviet Union on the territory of its former zone of
occupation, and this established the Cold War as the new world order for the
next 40 years.
The newly founded Federal Republic of West Germany was the

closest neighbour of the new Communist countries of Eastern Europe and,
therefore, became very important as an ally of the US and of the Western
Europe defence community.845 To protect the Western world from
Communism, a German contribution to the defence of the West was
desperately needed and, to achieve this support, the Western Allies were
aware that they “would have to pay for this by restoring the sovereignty of
Germany.”846
Additionally, the creation of an East German paramilitary force in

1949, and the outbreak of the Korean War in June 1950 as the first proxy
war of the Cold War conflict between the United States and the Soviet
Union, put the question of Germany‟s rearmament on the map.847
In this situation, the Allied scheme to prosecute and punish German

war criminals turned from a programme into a problem. The imprisoned war
criminals became an uncomfortable burden to both the Allied and the West
German Governments on the path to make West Germany an equal partner
militarily and politically.848 Although criticised before, the US war crimes
trial programme now became the target of many attacks from legal experts
and powerful political groups in both German and American society,
including the US Congress and the new West German Parliament.849
844
Ibid, 56.
845
Ibid, 3.
846
Ibid, 70.
847
Ibid.
848
Ibid.
849
Friedman, above n 2, 91; Buscher, above n 72, 55, 92, 115.
186
Consequently, beginning in 1951, the focus of the US authorities

was no longer on punishing war criminals and re-educating the German
public, but rather on preventing the war criminals problem from causing
further controversy in both the United States and Germany.850 As a result,
no more trials were held under US tribunals, and clemency and sentence
modification procedures were introduced for those Germans who had been
already convicted and imprisoned.851
With this new war criminals policy the way was cleared for the
realisation of the political visions of the Western Allies and, in 1955, West
Germany actually became sovereign and joined the North Atlantic Treaty
Organisation (NATO) with its own national army.852
Yet, the Western Allies had to pay a high price for these
achievements, which is best summarised by Frank M Buscher who stated:
“The decision to promote German participation in the defense of Western
Europe led to the dismantling of the war crimes program.”853
2 The resistance of Germany’s post-war judiciary
When the US authorities designed their war crimes trial programme,

they had in mind that the subsequent Nuremberg Trials shall also serve as
examples for further trials conducted by German post-war courts under
Control Council Law No. 10.854 Yet, they underestimated that Germany‟s
post-war judiciary “was embedded within a society whose members had, by
and large, consented to the Nazi dictatorship.”855
850
851
Ibid.
852
Ibid, 71.
853
Ibid, 70.
854
Ibid, 2; Doerte Hinrichs and Hans Rubinich “Von Hitler zu Adenauer” (29 November
2007) Die Zeit Hamburg (Germany) www.zeit.de (last accessed 19 March 2010); See also
Taylor Final Report, above n 169, 16, 95, 101, 106.
855
Stoltzfus and Friedlander, above n 119, 8; See also Part II A 2 (b) (iii) Evaluation and
Part II B The Moral Necessity of the Trial.
187
Nevertheless, in the beginning, the US war crimes trial programme

seemed promising as many Germans showed interest and had a generally
positive opinion about the conduct of trials against Nazi perpetrators.856 This
basic attitude changed in 1947, when the denazification programme of the
Allies reached its peak and millions of Germans suddenly imagined
themselves in the dock.857
Guided by the popular motto of Schlussstrich ziehen (drawing the

final line under the Nazi past) in the 1950s in post-war Germany, the war
crimes trials became opposed by many leading institutions of the West
German society, including the first government, almost all political parties,
the Catholic and Protestant churches, many legal experts and veterans and
refugee organisations.858
Their arguments were based on different reasons and varied from

legal ones, such as that the Nuremberg sentences “had relied on ex post
facto law”859, to political ones, such as the claim that “a German
contribution to Western defence would be impossible if the Americans
insisted on executing the remaining Landsberg[860] death row inmates”861, to
moral ones, such as that the war crimes trials were “a direct attack on the
honour of the German soldier … whose only crime was that they had
fulfilled their orders.”862
In this atmosphere, the German post-war judiciary was no exception

and opposed the war crimes trial programme in its own way. Although
German post-war judges had managed to sentence around 4.500 Nazi
criminals under Control Council Law No. 10 until the end of 1952,863
members of their own profession were not among them.864 This situation
856
Baestlein, above n 12, 27; Kastner “Der Dolch des Moerders war unter der Robe des
Juristen verborgen: Der Nuernberger Juristen-Prozess 1947”, above n 317, 703.
857
Baestlein, above n 12, 27; See also Part III C The Defendants.
858
Buscher, above n 72, 3, 92, 115, 162.
859
Ibid, 93.
860
Landsberg (US), Wittlich (France) and Werl (Britain) were the three prisons in
Germany, where the Western Allies locked up their convicted German war criminals. Ibid,
56.
861
Ibid, 71; See also Part VI B 1 The upcoming Cold War.
862
Buscher, above n 72, 107, 163.
863
864
188
changed for the better when a new generation of German jurists entered
offices in the 1960s and 1970s, but even then, the amount of indictments
against Nazi judges and prosecutors was all too small compared to the
amount of crimes committed in the name of law during the Nazi era.865
Additionally, Germany‟s post-war judiciary tended to accept court

rulings issued during the Nazi period as valid.866 Although a total of
approximately 90,000 investigations were carried out against Nazi criminals
in the area of Western Germany, only 6,500 persons were finally
convicted.867 Also, it is a devastating fact that – apart from two exceptions
regarding judges of courts martial in the closing phase of the war – no
German judge, prosecutor, or legal official was finally convicted by a
German post-war court for his actions during the Nazi era.868
Furthermore, in the small number of trials against former Nazi

jurists, the reasons for the acquittals given by the German courts were most
of the time outrageous. For example, the Kassel County Court decided in a
case against a Nazi Special Court judge that “because of the judges‟
fanaticism, „the possibility of blindness to injustice, based on political
delusions … cannot be excluded.‟ The verdict was therefore „not guilty.‟”869
The Federal Supreme Court of West Germany adopted the

permanent view of legal scholars and officials that “a judge could be found
guilty of murder, manslaughter, or false imprisonment only if it could be
proved that he had knowingly broken the law.”870 In most of the cases, this
was exactly what could not be proved and, therefore, led to the acquittal of
the defendants.871
The most prominent example of these embarrassing verdicts is the

case of Hans-Joachim Rehse, who was the most culpable judge of the Nazi
865
866
Stoltzfus and Friedlander, above n 119, 7-8.
867
Karstedt, above n 825, 32.
868
Baestlein, above n 12, 33; See also Ostendorf, above n 835, 7; Mueller, above n 120,
274.
869
870
Ibid, 276; See also Ostendorf, above n 835, 8.
871
Ostendorf, above n 835, 8.
189
People‟s Court besides Roland Freisler.872 After the Berlin County Court
had found Rehse guilty of aiding and abetting murder and had sentenced
him to five years imprisonment in 1967, refusing the defendants‟ argument
of blindness to injustice as a valid defence, the case was appealed and
brought to the Federal Supreme Court.873
Its judges claimed to see “obscurities and contradictions”874, quashed

the verdict and handed down the case to the County Court with the
undisguised recommendation to find for acquittal.875 In the end, a new jury
at the Berlin County Court acquitted not only Rehse but, according to Ingo
Mueller, “in effect the entire Nazi People‟s Court and the entire Nazi
judicial system.”876
When looking at the numbers of jurists who served under the Nazi
Government and maintained or regained their jobs in the West German
judicial system, these judgments are not surprising. True to the motto
Schlussstrich ziehen, the new German Parliament and Government did
everything they could to rehabilitate not only former Nazi jurists but almost
all members of the elites of German society who had been involved in Nazi
crimes.877
Based on Article 131 of the new German Basic Law of 1949, which
provided that federal laws shall regulate the rights of persons “who on 8
May 1945 were employed in the public service … and have not yet been
reinstated or are employed in positions that do not correspond to those they
previously held”878, the German Parliament enacted several laws which
872
Mueller, above n 120, 280; See also generally Robert M W Kempner Anklaeger einer
Epoche: Lebenserinnerungen (Ullstein Verlag, Frankfurt/Main, 1986) 423-425.
873
Mueller, above n 120, 280-281.
874
Ibid, 281.
875
Ibid; See also generally Urteil des Bundesgerichtshofs vom 30. April 1968 (Judgment of
the German Federal Supreme Court (BGH) from 30 April 1968) 21 NJW 1339 (BGH -5
StR 670/67-).
876
877
Christian Staas “Was damals Recht war …” (25 February 2009) Die Zeit Hamburg
(Germany) www.zeit.de (last accessed 19 March 2010).
878
Basic Law for the Federal Republic of Germany 1949 (as amended up to June 2008), art
131.
190
finally led to the reemployment of almost all judges and prosecutors of the
Nazi judiciary in the new West German judicial system by the mid 1950s.879
As a result, the West German judiciary became dominated by jurists

who had been part of the Nazi judicial system and were, at least to a certain
degree, jointly responsible for the terrors of the Nazis.880 Some authors went
as far as saying that the West German judiciary became re-nazificated.881
However, according to many legal experts and historians, the

obvious resistance of Germany‟s post-war judiciary to deal with its own past
can be explained not only by self-justification of potential perpetrators.882
Also, the traditionally conservative world view of members of the legal
profession, which implies that judges in any time have to act neutrally and
have to apply the given laws to protect law and order within a state, is seen
as an important factor.883
Consequently, there was a true belief – even by many judges who

had not been part of the Nazi legal system or were born afterwards – that
most of the judges of the Nazi era were innocent, and only the political
leaders and legislators of Nazi Germany could be held responsible for the
committed cruelties.884
As late as 1995, the Federal Supreme Court of Germany corrected its

previous jurisdiction concerning Nazi perpetrators, admitted the failure of
the West German judiciary in coming to terms with its own past and
particularly expressed its regret over its past decisions in regard to the Nazi
jurisdiction.885 Additionally, the German Parliament, in 1999, officially
879
Mueller, above n 120, 205-206; See also Staas, above n 877; Hinrichs and Rubinich,
above n 854; Ostendorf, above n 835, 8; Volker Friedrich Drecktrah “Der Versuch aus der
Vergangenheit zu lernen, ist nicht ganz gescheitert” (2003) 11 Neue Justiz 578, 580.
880
Staas, above n 877; Hinrichs and Rubinich, above n 854; Ostendorf, above n 835, 8;
Drecktrah, above n 879, 580; Baestlein, above n 12, 34.
881
Drecktrah, above n 879, 580.
882
Ibid; Kramer “Richter vor Gericht: Die juristische Aufarbeitung der
Sondergerichtsbarkeit”, above n 342, 166-168.
883
Ibid.
884
Kramer “Richter vor Gericht: Die juristische Aufarbeitung der Sondergerichtsbarkeit”,
above n 342, 168.
885
Ibid, 170; Drecktrah, above n 879, 578, 580; See also generally Urteil des
Bundesgerichtshofs vom 16. November 1995 (Judgment of the German Federal Supreme
Court (BGH) from 16 November 1995) 41 BGHSt 317 (BGH -5 StR 747/94-).
191
declared the unjust judgments of the Nazi era illegal.886 This was an
important symbolic sign, but too late for consequences as the vast majority
of Nazi jurists was not alive anymore.
In the end, it remains that the US authorities had the good idea of
help for self-help but underestimated the unwillingness of Germany‟s post-
war society, and especially its judiciary, to face up to the past.
3 The amnesties of the 1950s
The convicted defendants in the Justice Trial were sentenced by a

purely US tribunal. Therefore, they took their chances to file writs of habeas
corpus to the US Supreme Court, who denied them in all cases by order of 2
May 1949.887 However, this was not the end of the story as the convicts
were able to benefit from US parole and clemency programmes in the
1950s.888
When the Office of the US High Commissioner for Germany

(HICOG) was established on 6 June 1949, the Military Government of the
US zone of occupation in Germany officially ended.889 Military Governor
General Lucius Clay was succeeded by the first High Commissioner, former
Assistant Secretary of War John J McCloy, who also took over the
responsibility for the execution and review of sentences against the convicts
of the 12 subsequent Nuremberg Trials.890
Clay had reduced sentences in only three cases from the trials, but
this changed dramatically under McCloy.891 As a response to pressure from
German and American political leaders,892 McCloy established a clemency
886
Staas, above n 877.
887
888
889
890
Ibid, 88-89; Buscher, above n 72, 57.
891
Friedman, above n 2, 89, 93.
892
See Part VI B 1 The upcoming Cold War and Part VI B 2 The resistance of Germany‟s
post-war judiciary.
192
review board in November 1949.893 After a quick review, the board

recommended the reduction of sentences or immediate clemency in several
cases and, on 31 January 1951, McCloy announced that “of the 101
convicted war criminals held in Landsberg prison, 33 were to be released
immediately, an additional 35 were to have their sentences reduced, and 16
death sentences were to be commuted.”894
These orders applied to all convicts of the Justice Trial, who were
imprisoned at the US prison for war criminals in Landsberg. Due to illness,
Schlegelberger had been released from prison in 1950 already, but all others
– except for Rothaug, whose sentence was commuted to 20 years
imprisonment – were at liberty again in 1951.895 Other amnesties followed
and led also to the release of Rothaug in 1956.896
During the early and mid 1950s, not only the US but the British and
French authorities as well granted “amnesty to almost all the Nazi criminals
they had previously sentenced.”897 One of the prosecutors at the first
Nuremberg Trial and a leading expert within the area of Nazi crimes, Robert
M W Kempner, described this policy of the Western Allies as a “pardoning
fever”898.
Indeed, from 3,643 German war criminals held in custody of the

Western Allies and other foreign countries on 1 April 1950, only 1,033
persons were still imprisoned on 25 August 1952.899 The prison population
in Landsberg (US) became reduced from 663 to 338, in Werl (Britain) from
379 to 132 and in Wittlich (France) from 273 to 105.900 By May 1955, only
fifty prisoners remained at Landsberg,901 and in 1957, Britain and France
893
894
Ibid.
895
Mueller, above n 120, 273; Baestlein, above n 12, 29-31.
896
Mueller, above n 120, 273; Baestlein, above n 12, 31.
897
898
Ibid.
899
900
Ibid.
901
Ibid, 4.
193
closed their prisons for war criminals at Werl and Wittlich, followed by the
US prison at Landsberg in 1958.902
Simultaneously, the Parliament of the new West German Federal

Republic passed legislation, which granted amnesties to thousands of
potential German war criminals.903 As one of the first laws passed by the
new parliament, a general amnesty was granted “for all crimes committed
during the Nazi era with a maximum penalty of one year in prison or
less.”904. Additionally, amnesty was granted to “anyone who had „disguised
his identity for political reasons‟ by forging documents or giving false
information.”905
In 1954, this legislation was even extended to cover906
all crimes that had maximum sentences of up to three years and that had
been committed „under the influence of the unusual circumstances of the
collapse between October 1, 1944, and July 31, 1945, while carrying out
an official or legal duty, particularly an order‟.
Also, the law provided that “[p]enalties imposed by de-Nazification

boards immediately after the war were erased from the criminal records”907,
allowing Nazi criminals to rejoin the public service and enter leading
positions in Germany again easily.908
At first sight, the reasons for all these amnesties are based on the
political situation. The upcoming Cold War and the need of a West German
contribution to the defence of the Western world strengthened the German
Government and weakened the Allies in regard to the war criminals issue.909
Nevertheless, the political situation was not the only matter that caused the
US amnesties.
902
Ibid, 162.
903
See generally Mueller, above n 120, 242-243.
904
Ibid, 242.
905
Ibid.
906
Ibid, 243.
907
Ibid.
908
Ibid.
909
See Part VI B 1 The upcoming Cold War and Part VI B 2 The resistance of Germany‟s
post-war judiciary.
194
The lack of any planning for an appellate court and the fact that the
accused could not appeal the judgments and the verdicts of the US tribunals
made the US authorities feel uncomfortable from the beginning.910
Therefore, they began to address these questions as early as 1946 with the
result that “[e]xecutive clemency and regular administrative sentence
reviews became substitutes for an appellate court.”911
It allowed US officials to ensure that equal offences would be

punished evenly, which had not always been the case, especially when one
compares the grade of judgments in the trials at the beginning (more severe)
and the trials at the end (more lenient).912 As a result, from a purely legal
point of view, the clemency programmes truly created a good balance
between the different decisions of the trials.913
4 Conclusion
A combination of political and legal reasons led to the dismantling of

the US war crimes trial programme. The increasing conflict between East
and West and the vehement resistance of leading parts of West German
society including all the judiciary, led to a sudden stop of the prosecution of
more German war criminals by US authorities.
In addition with the legal problem of the absence of an appellate

court, these factors also led to the large-scale US amnesties, from which not
only the convicts of the Justice Trial but many other Nazi war criminals
benefited. These facts, however, do not qualify the Justice Trial as an
example of victor‟s justice.
At the time of the trial, in 1947, the US authorities did not plan to
stop their war crimes trial programme just a few years later. They also had
910
Buscher, above n 72, 22; See also Part IV B Fairness of the Trial.
911
912
Ibid; See also Part V B 2 The Tribunal‟s relatively mild sentencing.
913
See generally Whitney R Harris, above n 18, 546-554.
195
in mind that a new German post-war judiciary would continue the work of
the US tribunals and would try war criminals under Control Council Law
No. 10. It was not foreseeable at the time that the attitude of Germany‟s
society towards the prosecution of war criminals would change from
support to opposition, and that dramatic developments in international
politics would occur in the late 1940s.
Furthermore, nobody could expect that West Germany‟s new

judiciary would ignore the jurisdiction of the Nuremberg Trials for decades
and would resist sentencing Nazi criminals to a large extent. One maybe
asks then why the US authorities did not continue their war crimes trial
programme themselves.
After it had become clear that a German contribution to the defence

of Western Europe was needed, West Germany‟s position in its relationship
with the Western Allies grew strong. To continue prosecuting German war
criminals on their own would have created the risk for the US authorities of
losing an important ally in the new confrontation with Communism and
was, therefore, not a realistic option.
As a result, only a tiny minority of the tens of thousands of war

criminals from the Nazi era was finally convicted, and the defendants in the
Justice Trial remained – besides very few exceptions – the only members of
the legal profession of Nazi Germany who stood trial for their actions.
Nevertheless, the global political conditions of the late 1940s justify the
uniqueness of the Justice Trial and exculpate the US authorities from the
accusation that the trial was only an example of victor‟s justice.
The early release of the convicts of the Justice Trial from prison in
1951 and 1956, caused by generous amnesties of the US High
Commissioner, can also not be evaluated as an example of victor‟s justice.
Victor‟s justice, here, does not refer to any disadvantages of the German
defendants as the amnesties were obviously only for the benefit of the
convicts, but to the question whether the US authorities exercised their
power as the winners of the war in an arbitrary way.
196
The necessary change of US policy towards West Germany from

occupation and denazification to reconstruction and integration, let both
American and German politicians put immense pressure on the US
authorities responsible for the imprisoned war criminals to find a quick and
practical solution.
Additionally, the legal problem of having no appellate court made it

necessary to run extensive clemency programmes. These were important
reasons for the amnesties and, although the lenient results were a slap in the
face for Nazi victims and for those who were aware of the committed
crimes, it cannot be said that the US authorities used their power in an
arbitrary manner.
Obviously, the war criminals issue was heavily influenced by

political decisions, but this should not necessarily be evaluated as negative
because law is always strongly connected with politics. Without the Nazi
policy, the German law system would have never been transformed into an
instrument of terror, and without the decisions of the US Government in
favour of trials, the German war criminals would probably have just been
shot.
Political decisions, therefore, need to be evaluated carefully. The

Nazi policy for the change of the German judicial system was without doubt
arbitrary, based on a mad ideology of racism and conquest. The US policy
in regard to its own war crimes trials programme, in contrast, was based on
understandable reasons. Surely, it would have been possible for the US
authorities to maintain the programme in favour of moral and ethical values,
but the given circumstances demanded a change.
As a result, the US officials may be criticised for choosing the

easiest way but, as shown above, it was definitely for a comprehensible
reason. Hence, in my view, the United States used their power not arbitrarily
and, therefore, the amnesties cannot be evaluated as an example of victor‟s
justice.
197
However, the small number of convictions of Nazi perpetrators, and

the full re-integration of most Nazi jurists in West Germany‟s society,
caused the overall failure of the US war crimes trial programme, which casts
a shadow over the legacy of the Justice Trial. Yet, its legacy is still
extraordinary.
Besides the establishment of new principles and rules in international

criminal law, the Justice Trial, together with the other Nuremberg Trials,
became “the world‟s first post mortem examination of a totalitarian
regime”914, and resulted in a unique record of the Nazi judicial system and
the involvement of its members in Nazi crimes.915
It has to be asked whether Germany‟s judiciary today, known as

independent and generally fair, would be the same without this knowledge,
especially when considering the Schlussstrich mentality of Germany‟s
society in the 1950s.
914
Taylor “The Nuremberg Trials”, above n 15, 522.
915
See Part IV B Fairness of the Trial.
198
199
VII CONCLUSION
At the end of World War II, Hans Morgenthau, known as the father
of American realism, said:916
I am doubtful of the whole setup under which these [Nuremberg] trials

will be conducted. What, in my opinion, they should have done is to set
up summary courts-martial. Then they should have placed these criminals
on trial before them within 24 hours after they were caught, sentenced
them to death, and shot them in the morning.
To realists, “a war crimes tribunal is simply something that the

countries that decisively win a war inflict on the helpless country that loses
it. It is punishment, revenge, spectacle – anything but justice.”917
Accordingly, Morgenthau‟s statement implied the concern that the
Nuremberg Trials would be nothing else but examples of victor‟s justice
and, therefore, would be without any value for international law and society.
Before the trials, there was good reason for such concern, because
the dimension of atrocities committed by Nazi Germany established a cry
for vengeance which could not be ignored by the organisers of the trials.
However, in the end, the trials have to be seen as generally fair, and they set
important precedents for international criminal law.
This work focused on the third of the subsequent Nuremberg Trials,

the Justice Trial, which is a fascinating one not only because Hollywood
used it as the basis for the Academy Award winning movie Judgment at
Nuremberg, but because here, for one of the only times in history, men were
put on trial who acted in the name of existing domestic law.
The question whether these men were tried and – some of them –
convicted in accordance with international law and approved rules and
principles of due process or were just victims of victor‟s justice is the core
916
917
Ibid, 11.
200
and overall question of this thesis. The term victor‟s justice describes a
special form of vengeance, exercised behind a smokescreen of legality in a
judicial proceeding, which in fact, is nothing else but a show trial.
The paper has analysed and evaluated all areas of the Justice Trial in
relation to the concept of victor‟s justice: from the creation of the legal
basis, to the proceedings and judgments during, to the enforcement of the
sentences after the trial. In most areas, there were no convincing examples
of victor‟s justice.
However, two issues have to be regarded as examples of victor‟s

justice: firstly, the violation of the principle of separation of powers by
establishing a court which ruled under international law but had only
nationals of the United States as members of the Tribunal and the
prosecution; and secondly, the refusal of the US authorities to try members
of their own armed forces for crimes similar to some of the crimes the
defendants were charged with and which were defined in the London
Charter and Control Council Law No. 10 (te quoque argument).
On the other hand, popular accusations, such as the violation of

Germany‟s state sovereignty, the lack of impartiality of the judges, the
violation of the ex post facto principle, the illegal introduction of individual
responsibility and the denial of a fair trial, could not be approved as
examples of victor‟s justice:
The passing of legislation by the Allies for and the establishment of

Allied tribunals on German territory immediately after World War II did not
violate Germany‟s state sovereignty because, from a practical point of view,
a German state did not exist anymore. The unconditional surrender of
Germany had not only ended the war, it had ended National Socialism
which had infiltrated all areas of life in Germany so deeply that its end
caused the complete collapse of German society.
Furthermore, German courts and judges were not trustworthy at the

time, and by dropping the conspiracy charge of the indictment, the
201
appointed US judges of Military Tribunal III proved that they acted

impartially and independently.
Also, the introduction of new concepts such as crimes against

humanity and individual liability did not violate international law. The ex
post facto principle had to step back in favour of its original aim, the
creation of justice, because the defendants were aware of the criminality of
their actions at any time. The same reason apply to individual responsibility
as the defendants knew that they were doing wrong, and therefore, could not
expect to go unpunished. Additionally, the unprecedented variety and
dimension of Nazi crimes, which injured the whole international community
and shocked the conscience of humankind, required a change of traditional
international criminal law away from the Acts of State doctrine towards
individual responsibility.
With respect to the principles of due process, the Justice Trial

fulfilled all requirements of a fair trial and disproved the accusation of being
a show trial, because the defendants were charged with punishable crimes,
they had full opportunity for defence, including free access of their lawyers
to captured documents and exhibits, and they were judged fairly on the
evidence by a proper court.
Additionally, victor‟s justice did also not occur from a moral point of
view, because the amount and variety of unprecedented atrocities committed
by Nazi Germany and the involvement of the German judiciary in it needed
a significant response. Likewise, the selection of the defendants by the
prosecution as well as the analysis and evaluation of the Nazi legal system
and of the individual role of the defendants in Nazi Germany by Tribunal III
showed no signs of victor‟s justice, as both acted with great care and in an
unbiased manner.
Further, this paper analysed the questions of how suitably qualified

the judges and prosecutors were, why the final sentences were relatively
mild and why the defendants were all released early from prison in the
1950s. The idea here was to find out whether the Tribunal and the US
authorities acted arbitrarily or whether these decisions were based on
202
understandable reasons. Several reasons of practical, political and moral

nature were given and, therefore, exculpated the members of the Tribunal as
well as the US officials from the accusation of victor‟s justice in relation to
these issues.
In the end, only two aspects can be seen as examples of victor‟s

justice. The Justice Trial cannot be evaluated without considering them but,
in the overall context, it would be wrong to draw the conclusion that the
trial, therefore, was an occurrence of victor‟s justice. As shown in the
respective chapter above, the achievements of the trial for international
criminal law are of high value and, although limited by the overall failure of
the US war crimes trial programme, the trials‟ legacy is a primarily positive
one.
Many legal experts were convinced before and during the 13

Nuremberg Trials that the trials would be nothing else but show trials and
examples of victor‟s justice. In the end, they were proved wrong and,
although several aspects of the trials, such as the question whether the ex
post facto principle was violated, remain controversial, the vast majority of
legal experts today agree that Nuremberg was characterised by exemplarily
fair proceedings and set remarkable precedents for international law.918
When looking at the incredible atrocities committed by Nazi

Germany between 1933 and 1945, it is impressive and remarkable how the
Allied victors, excepting the show trials and the arbitrary handling of
prisoners of war by the Soviet Union,919 dealt with the German perpetrators.
The result was not only a more or less fair handling of the vanquished
Germans, but also the creation of a unique basis for a new international
criminal law.
To quote the impressive words of the Chief Prosecutor for the United
States, Robert H Jackson, which he made in his opening statement for the
918
See for example Bassiouni, above n 4, 554; Baestlein, above n 12, 34; Stoltzfus and
Friedlander, above n 119, 6.
919
Kastner “Der Nuernberger Prozess”, above n 148, 805; See also Bassiouni, above n 4,
532.
203
prosecution in the trial against the major war criminals before the
International Military Tribunal on 21 November 1945:920
The wrongs which we seek to condemn and punish have been so

calculated, so malignant and so devastating, that civilization cannot
tolerate their being ignored because it cannot survive their being repeated.
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. ...
Unfortunately, the nature of these crimes is such that both prosecution

and judgment must be by victor nations over vanquished foes. The
worldwide scope of the aggressions carried out by these men has left but
few real neutrals. Either the victors must judge the vanquished or we must
leave the defeated to judge themselves. After the first World War, we
learned the futility of the latter course. The former high station of these
defendants, the notoriety of their acts, and their adaptability of their
conduct to provoke retaliation make it hard to distinguish between the
demand for a just and measured retribution, and the unthinking cry for
vengeance which arises from the anguish of war. It is our task, so far as
humanly possible, to draw the line between the two. We must never
forget that the record on which we judge these defendants today is the
record on which history will judge us tomorrow. To pass these defendants
a poisoned chalice is to put it to our own lips as well. We must summon
such detachment and intellectual integrity to our task that this Trial will
commend itself to posterity as fulfilling humanity‟s aspirations to do
justice. ...
These defendants may be hard pressed but they are not ill used. ... If these
men are the first war leaders of a defeated nation to be prosecuted in the
name of the law, they are also the first to be given a chance to plead for
their lives in the name of the law. Realistically, the Charter of this
Tribunal, which gives them a hearing, is also the source of their only
hope. It may be that these men of troubled conscience, whose only wish is
that the world forget them, do not regard a trial as a favour. But they do
have a fair opportunity to defend themselves - a favour which these men,
when in power, rarely extended to their fellow countrymen. Despite the
fact that public opinion already condemns their acts, we agree that here
they must be given a presumption of innocence, and we accept the burden
920
International Military Tribunal II, above n 472, 98-102.
204
of proving criminal acts and the responsibility of these defendants for

their commission.
The defendants in the Justice Trial received all benefits of a real

trial, including an independent judiciary, the possibility of acquittal, fair
proceedings and some kind of proportionality in sentencing.921 Thus, there
can be no doubt that those defendants, who were found guilty, deserved
their sentences, because they committed crimes which could not and should
never go unpunished under international law.
According to Professor Harry Reicher,922
Law is inherently neutral. If it is used with wisdom and compassion, it

can accomplish the greatest good. But if a legal system falls into the
wrong hands, it can become the instrument of the greatest barbarities.
These wrong hands were not only Hitler‟s. Besides some leading
Nazi jurists, they also belonged to many thousands of judges, prosecutors
and other members of the German judicial system, who stayed in office after
the Nazis took over power and who applied the new Nazi laws without any
sense of shame. The defendants in the dock sat as representatives for all
these German jurists. Although the defendants could and were made
responsible for their individual guilt only, morally, the whole German
judiciary was also indicted at the Justice Trial.
As correctly analysed by US Military Tribunal III, the German

judicial system was transformed into an instrument of the Nazi Party soon
after 1933 with the willing help and support of the vast majority of German
jurists.923 Telford Taylor stated in 1949:924
The very nature of the Third Reich was totally incompatible with any
„law‟ worthy of the name, and German jurists bore a heavy share of the
blame, both for what they did and what they failed to oppose, for the
excesses of the dictatorship.
921
See generally for these requirements of a bona fide trial Bass, above n 21, 16.
922
Reicher “An Infamous Date: Nazi Laws, From Middle Class to Desperate” (2004) 26
Nat‟l L J 27, 28.
923
See Part V Judgment of the Tribunal.
924
205
As a German citizen and lawyer, I am ashamed of the cowardice of

my colleagues during the Third Reich. Few expected them to resist actively
or refuse any orders but, at least, they should have followed the lowest
moral and ethical standards of humankind and resign from office.
Many of the jurists, who had collaborated with the Nazis, later
criticised the Nuremberg Trials as an occurrence of victor‟s justice. Some of
them also became leading members of West Germany‟s new judiciary in the
1950s, which denied trying Nazi jurists to a large extent. I do not blame
their criticism of Nuremberg as this paper shows that many aspects were
controversial, but I do condemn their refusal to deal with their own past.
However, it enhances the legacy of the Justice Trial because, without

the trial, the dimension of involvement of Germany‟s judiciary in Nazi
crimes would probably be unknown today. The trial record, therefore, stands
not only for the individual guilt of certain members of Nazi Germany‟s
judicial system, but also as a memorial for future generations of jurists.
206
207
APPENDIX: PICTURES FROM THE TRIAL
The Nuremberg Palace of Justice in 1947925
The judges of US Military Tribunal III after the previous presiding Judge Carrington T
Marshall had resigned for reasons of illness (from left to right: Judge Mallory B Blair,
Presiding Judge James T Brand and Judge Justin W Harding)926
925
Picture from www.holocaustresearchproject.org (last accessed 25 March 2010).
926
Picture from Charles M LaFollette “Justice Case at Nuremberg Part II” (1948) 139
Information Bulletin, Magazine for US Military Government in Germany 11, 11.
208
The Prosecution Counsel (Deputy Chief Charles M LaFollette and Chief Prosecutor Telford
Taylor are sitting on the left table in front)927
Chief Prosecutor, Brigadier General Telford Taylor928
927
Picture from Ibid, 13.
928
Picture from www.law.umkc.edu (last accessed 25 March 2010).
209
Deputy Chief for the Prosecution, Charles M LaFollette929
The defendants‟ dock930
929
Picture from LaFollette, above n 280, 9.
930
Picture from Charles M LaFollette “Justice Case at Nuremberg Part V” (1948) 142
Information Bulletin, Magazine of US Military Government in Germany 9, 9.
210
Franz Schlegelberger Rudolf Oeschey Oswald Rothaug

State Secretary and Acting Chief Justice of the Senior Public Prosecutor
Minister of Justice. Guilty Special Court Nurem- of the People‟s Court
of war crimes and crimes berg. Guilty of crimes and Chief Justice of the
against humanity. Sen- against humanity and Special Court Nurem-
tenced to imprisonment for membership in the SS. berg. Guilty of crimes
life.931 Sentenced to imprison- against humanity.
ment for life.932 Sentenced to imprison-
ment for life.933
Ernst Lautz Curt Rothenberger Herbert Klemm

Chief Public Prosecutor of State Secretary of the State Secretary of the
the People‟s Court. Guilty Ministry of Justice. Guilty Ministry of Justice.
of war crimes and crimes of war crimes and crimes Guilty of war crimes and
against humanity. Sen- against humanity. Sen- crimes against humanity.
tenced to ten years‟ tenced to seven years‟ Sentenced to imprison-
imprisonment.934 imprisonment.935 ment for life.936
931
Picture from Charles M LaFollette “Justice Case at Nuremberg Part IV” (1948) 141
Information Bulletin, Magazine of US Military Government in Germany 17, 17.
932
Picture from Ibid.
933
Picture from Ibid.
934
935
Picture from Ibid.
936
Picture from Ibid.
211
Wolfgang Mettgenberg Guenther Joel Wilhelm von Ammon

Representative of the Chief Legal advisor to the Ministerial Counsellor of
of the Criminal Legislation Minister of Justice the Criminal Legislation
and Administration Divi- concerning criminal and Administration
sion of the Ministry of prosecution. Guilty of Division of the Ministry
Justice. Guilty of war war crimes, crimes of Justice. Guilty of war
crimes and crimes against against humanity and crimes and crimes against
humanity. Sentenced to ten membership in the SS. humanity. Sentenced to
years‟ imprisonment.937 Sentenced to ten years‟ ten years‟ imprison-
imprisonment.938 ment.939
Guenther Nebelung Paul Barnickel Josef Altstoetter

Chief Justice of the Senior Public Prosecutor Chief of Civil Law and
Fourth Senate of the of the People‟s Court. Procedure Division of the
People‟s Court. Acquit- Acquitted.941 Ministry of Justice. Guilty
ted.940 of membership in the SS.
Sentenced to five years‟
imprisonment.942
937
938
Picture from Ibid.
939
Picture from Ibid.
940
941
Picture from Ibid.
942
Picture from Ibid.
212
Karl Engert Hans Petersen Hermann Cuhorst

Chief of the Penal Lay Judge of the First Chief Justice of the
Administration Division Senate of the People‟s Special Court in Stuttgart
and Secret Prison Inmate Court and Lay Judge of and Chief Justice of the
Transfer Division of the the Special Senate of the First Criminal Senate of
Ministry of Justice. Not People‟s Court. Acquit- District Court in Stuttgart.
tried because of illness.943 ted.944 Acquitted.945
943
944
Picture from Ibid.
945
Picture from Ibid.
213
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E Film
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Angeles, 1961)

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JAN SCHNITZER

THE NUREMBERG JUSTICE TRIAL 1947

VENGEANCE OF THE VICTORS ?

In memory of the victims of the German

judiciary between 1933 and 1945

III INVOLVED PARTIES .................................................................... 61

B The Prosecution ............................................................................ 69

C The Defendants ............................................................................. 76

5 Conclusion ............................................................................... 114

B Fairness of the Trial ................................................................... 115

B Individual Verdicts and Sentences ............................................. 147

(e) Mettgenberg ....................................................................... 156

VI LEGACY OF THE TRIAL ............................................................ 175

B The Failure of the US War Crimes Trial Programme .............. 182

VII CONCLUSION ............................................................................... 199

All other aspects cannot be proved as examples of victor‟s justice; whether

I wish to first acknowledge and thank my supervisor, Dr Grant

Further, I thank my dear friends Marc, Norbert, Katrin and Dominik,

I thank my family for their long-distance encouragement and

In the second half of my study, I primarily worked in room 227 of

Originally, it was planned that the International Military Tribunal

Since the International Military Tribunal had already established the

From 17 February 1947 until 18 October 1947, the third of these

In his opening statement for the prosecution, Chief Prosecutor

accustomed to courts and courtrooms, though their present role may be

The term victor’s justice is strongly connected with the concept of

against the vanquished.”16 Regarding this issue, a lot of literature is

The question of victor‟s justice is broad and vague. Therefore, it is

Chapter II analyses the legal background of the trial by examining

Was the trial legitimated by existing international law?

Why did a German court not deal with this case?

Was there a moral necessity for such a trial?

Were the US judges sufficiently qualified to judge over jurists from

Were the deciding judges of the Tribunal independent from US post-

Was the prosecution counsel sufficiently qualified to accuse jurists

What were the criteria for selecting the defendants?

Chapter IV looks at the trial proceedings and focuses on the

Were the charges, especially the count of crimes against humanity,

Was the tu qouque argument a valid argument used by the defence?

Did the defendants receive a fair hearing?

Chapter V analyses the judgment of US Military Tribunal III and

Did the Tribunal evaluate the role of the defendants in Nazi

Why were the individual verdicts relatively mild compared to

A conclusion will be drawn in chapter VII stating that before, during

II LEGAL BASIS OF THE TRIAL

This chapter analyses the question whether victor‟s justice can be

A The Allies as the Controllers of the Legislative Power in Germany

1 The legitimisation of the trial by Allied documents

(a) Declaration on German Atrocities (Moscow Declaration 1943)

The Moscow Declaration from 30 October 1943 is the real starting

Previously, several official actions were taken by statesmen and

Prime Minister Churchill declared on 8 September 1942 “that those

However, until the Moscow Conference there was no joint

The above declaration is without prejudice to the case of the major

Although the outcome of this statement finally resulted in the

However, in the end, legalism triumphed because President

Stalin, on the other side, was in favour of summary executions at any

(b) London Agreement of 8 August 1945

At the conference in Yalta, the three Allies declared on 11 February