A world of peace and justice under the rule of law: from Nuremberg to the International Criminal Court.

• Published date: 22 December 2016
• Author: Harris, Whitney R.
• Date: 22 December 2016

It is a great honor to be here for this meeting of the Institute for Global Legal Studies and I wish Washington University the greatest success in the expansion of the study of law to embrace international affairs as well as our domestic laws.

The genesis of the trial of the major German war criminals at the end of World War II was the Moscow Conference of October, 1943, at the conclusion of which, a statement was signed by President Roosevelt, Prime Minister Churchill, and Premier Stalin declaring the determination of the three powers to hold Germans individually responsible for crimes committed by them in the course of the war. The statement did not declare whether such offenders would be punished by executive action or pursuant to the judicial process. In Britain, Lord Chancellor Simon and Prime Minister Churchill were of the view that major war criminals should be disposed of by executive action. This view was echoed in the United States by Secretary of the Treasury Morganthau, who proposed to President Roosevelt that German arch criminals be shot upon capture and identification. Secretary Morganthau was opposed in the Cabinet by Secretary of War Henry L. Stimpson who believed that leading Nazis should be brought to trial before an international military tribunal. Stimpson's views ultimately prevailed and a memorandum recommending a trial was prepared for the use of President Roosevelt at the three-power Yalta Conference in February 1945. The memorandum stated that condemnation of German war criminals after a trial would command maximum public support and receive the respect of history and it noted that use of the judicial method would make an authentic historic record of Nazi crimes.

Supreme Court Justice Robert H. Jackson was appointed by President Truman on May 8, 1945, as the United States Chief of Counsel charged with obtaining the agreement of the Allies to a trial of the major German war criminals before an international military tribunal. He entered upon this daunting task with unswerving determination. He succeeded in persuading the British to accept the proposal to punish German war criminals after trial by an international military tribunal established for that purpose. Representatives of the United States, Great Britain, France and the Soviet Union met in London on June 26, 1945, for the purpose of drafting an agreement to establish an international military tribunal for the trial of major war criminals, a charter for the tribunal, and an indictment of the principal leaders of Nazi Germany. The London Agreement was adopted on August 8, 1945.

The charter created the International Military Tribunal for the just and prompt trial and punishment of the major war criminals of the European Axis. The charter set forth three basic crimes charged to the defendants: the crime of initiating and waging aggressive war, war crimes, and crimes against humanity committed in the course of war. In addition, under the American prosecution theory, the defendants were charged with engaging in a common plan or conspiracy to commit all of these crimes. It was the American theory that Adolf Hitler and his associates sought to gain control of the German State, establish a dictatorship, and lead the German people into domination of Europe by force of arms. This was the basic common plan and all who joined with Hitler necessarily supported these criminal objectives and were liable for the crimes committed in furtherance of the conspiracy.

The trial opened on November 20, 1945. The president of the tribunal, Lord Justice Lawrence of Great Britain, set the tone for the proceedings of that day and all the days to follow when he said, "The trial which is now about to begin, is unique in the history of the jurisprudence of the world and it is of supreme importance to millions of people all over the globe. For these reasons, there is laid upon everybody who takes any part in this trial the solemn responsibility to discharge their duties without fear or favor in accordance with the sacred principles of law and justice. The four signatories have invoked the judicial process. It is the duty of all concerned to see that the trial in no way departs from these principles and traditions which alone give justice its authority and the place it ought to occupy in the affairs of all civilized states."

The indictment was read at length into the record, after which the defendants were called upon to enter their pleas. Ley was dead by his own hand and the tribunal had postponed proceedings against Krupp von Bolen because of his physical incapacity. Bormann was absent and a "not guilty" plea was entered for him. Kaltenbrunner was hospitalized and later made his personal plea of "not guilty." All other defendants were present in court and entered "not guilty" pleas. In his opening statement, which has become a jurisprudential classic, Justice Jackson began by stating: "The privilege of opening the first trial of history for crimes against the peace of the world imposes a grave responsibility. 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."

Following his opening speech, Justice Jackson directed the presentation of evidence by the various members of his staff on the common plan, individual defendants, and indicted organizations. The defendants were represented by counsel of their choice, including former members of the Nazi party. For the most part, this representation was rigorous and professional. Defense counsel contended that the case should be dismissed because the laws under which the tribunal proceeded had been enacted after the alleged crimes had been committed. The tribunal ruled that the proceeding was not ex post facto since the charter of the tribunal was merely declaratory of existing principles of international law. In some cases, vigorous defense was rewarded, as in the case of Karl Doenitz, whose defense counsel proved by affidavit from Admiral Nimitz that the United States had engaged in undeclared submarine warfare in the Pacific Theater; thereby undermining this charge against Doenitz.

The principal repressive agency of the Nazi regime was the Reich Main Security Office, or RSHA. Both intelligence and special police agencies were combined in this office. Although I was a line officer in the Navy during most of the war, I had served in the Office of Strategic Services, or OSS, during the last months of its duration. Since I had acquired some knowledge of the Nazi intelligence system while serving in OSS, I was assigned the case against the Gestapo and SD, two organizations within the Reich Main Security Office, and against the chief of that office, the defendant, Ernst Kaltenbrunner. I was provided an office in the drafty Palace of Justice, a second-hand typewriter, a German secretary, and told to prove the case against these defendants.

The major crime against humanity charged to the defendants was the extermination of the Jews in Europe, along with Gypsies and other unwanted minority groups. This crime was primarily the responsibility of the Gestapo and the SD, within the government, and the SS, within the party, thus, proving this part of the lawsuit fell significantly into my hands. From the outset, a primary source of evidence of Nazi crimes was captured German documents. Incriminating orders were frequently given wide distribution and fell into Allied hands. I had collected documents through British intelligence in Great Britain while serving in OSS. Colonel Robert Storey, who served as executive trial counsel to Justice Jackson, had assembled a large collection of documents in Paris, primarily...