Trials, Crimes and Laws
© S D Stein
As Telford Taylor, Associate Trial Counsel at the Trial of the German Major War Criminals, and Chief of Counsel for War Crimes in the US Zone of occupation, pointed out in his review of the Nuremberg Trials, official protests were first lodged against alleged crimes committed by the authorities and troops of the Third Reich subsequent to their invasion and initial occupation of Poland and Czechoslovakia. In October 1941 Roosevelt condemned the "German practice of executing scores of innocent hostages", as did Churchill. The Soviet government, in both November 1941 and January 1942, circulated diplomatic notes accusing the German Government of "criminal, systematic and deliberate violations of international law" in their treatment of Russian prisoners of war, the destruction of property and looting, and various atrocities against their civilian population. [Telford Taylor. "The Nuremberg War Crimes Trials." International Conciliation, No.450, April, 1949, p.244]
The Inter-Allied Declaration was signed on 13th January, 1942, in London, by the representatives of nine countries occupied by German forces. They resolved to place " amongst their principal war aims punishment through the channel of organized justice of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them". This heralded a series of firmer undertaking announced by the Allied powers relating to the settlement of judicial accounts with the Axis powers. In October 1942, Roosevelt and the British Lord Chancellor proposed the setting up of a United Nations Commission for the Investigation of War Crimes. The United Nations War Crimes Commission (UNWCC) first met a year later with the participation of seventeen countries: Australia, Belgium, Canada, China, Czechoslovakia, France, Greece, India, Luxemburg, the Netherlands, New Zealand, Norway, Poland, South Africa, the United Kingdom, the United States and Yugoslavia. The UNWCC did not itself initiate prosecutions. It processed information it received from its member countries, publishing lists of war crimes suspects and related information.
At the Moscow Conference of October 1943, Roosevelt, Churchill and Stalin issued a declaration relating to those acting on behalf of the Third Reich who were responsible for or involved in war crimes. The Moscow Declaration, signed by Roosevelt, Churchill and Stalin in October, 1943, established two principles. The first was that those who committed war crimes and other transgressions against international law would be tried in the countries where these had occurred.
Secondly, that this would be without prejudice to the case of German criminals "whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies."
Whilst the Moscow Declaration was the seedbed of the agreements that were eventually arrived at in relation to the trials of those accused of the commission of crimes against the peace, war crimes, and crimes against humanity, there were many who at the time were of the opinion that a speedier settling of accounts, bypassing such legal niceties would be preferable. Stalin was certainly of this persuasion at various times after the invasion of the USSR. The liberation of the concentration and death camps during 1944 and 1945 tried the patience of many of the liberators and observers. At Dachau, among other places, soldiers took matters into their own hands and proceeded to shoot SS guards. The British Lord Chancellor, Lord Simon, noted in 1943, that from the British point of view:
During the first half of 1945 discussions took place between the representatives of the powers in Washington, London and San Francisco, eventuating in the presentation by the United States authorities of a plan to the other Allied powers for the establishment of an International Military Tribunal which would be charged with adjudicating on the guilt of the major German war criminals, that is, those whose crimes ranged over various European countries. Those accused whose alleged crimes were restricted primarily to a particular country, and were not major figures in the political, administrative, economic or military structure of the Third Reich, would, in line with the Moscow Declaration, be tried in those countries where they were committed.
Roosevelt entrusted the negotiations and preparations for the trials to Supreme Court Justice Robert H Jackson. Jackson at the time differentiated between four categories of persons who were liable to prosecution: (1) The major war criminals whose offenses "have no particular geographical location", the category to which his responsibilities extended, (2) those who had been responsible for war crimes against US servicemen, but on a much lesser scale, (3) those responsible for perpetrating war crimes and other atrocities who would be sent for trial in the countries where the alleged offences had occurred, in line with the principles of the Moscow Declaration, and (4) those who were accused of collaboration and treason against their own nationals. His report outlined the legal principles that he believed should guide the deliberations, and the charges that should be brought.
On August 8, 1946, representatives of the United Kingdom, the USSR, the US and France signed an Agreement for the Establishment of an International Military Tribunal, to which was annexed the Charter of the International Military Tribunal. The Agreement authorised the establishing of an International Military Tribunal (IMT) "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 1) It also stipulated that the signatories would use their best endeavours to bring before the tribunal, and seek the apprehension, of those who fell within its jurisdiction.(Article 3) Nothing in this agreement was to prejudice the bringing to trial of those alleged to have committed war crimes by the countries in which such crimes had allegedly been perpetrated (Article 4), nor prejudice the establishing of other "national or occupation court established or to be established in any Allied territory or in Germany for the trial of war criminals." (Article 6)
As Telford Taylor notes, the numbers of those potentially involved under the various categories of war criminal identified by Robert H Jackson in his Report to the President, including "major criminals whose offenses have no particular geographical localization," was so great that it was clear from the outset that the complex procedures established for the IMT would be unsuitable for trying any but a few that fell into that latter category. A procedure that would meet the requirements of justice, but which would do so expeditiously, was required. This was partly achieved through the promulgation of Control Council Law No.10.
Although the Trial of the German Major War Criminals was from a symbolic point of view extremely important, in terms of the number of persons processed, the number of offenses falling under various categories that were documented, and the number of offenders punished, Control Council Law No.10 was more significant. It is not entirely implausible to argue that the salience of the major war criminals trial somewhat blunted the achievement of the objectives that were sought with the staging of trials for war crimes and crimes against humanity. It certainly contributed to the viewpoint that as far as the destructive processes were concerned it was only a relatively small number of individuals who constituted a critical mass. Whilst significant sections of the population in Western industrial societies and elsewhere have "heard about" or "know about" the Nuremberg Trial, not many are familiar with themore numerous Nuremberg Trials that were held under the terms of Control Council Law No 10, yet alone the many other thousands of tribunals that tried defendants on similar charges. Moreover, when reference is made to the Nuremberg Principles, those principles are generally argued or pointed to in terms of the trial of German Major War Criminals, despite the fact that those principles, points of law, etc., were aired far more frequently at trials held under the provisions of the Control Council Law No.10, as well as at thousands of others, although, perhaps, not as eloquently.
The provisions of Control Council Law No.10 were not radically dissimilar from those incorporated in the charter of the International Military Tribunal. The indictable offenses included were crimes against peace, crimes against humanity, war crimes, and membership in proscribed organisations (e.g., SS, Gestapo). In line with the recommendations made in the Report of Robert H Jackson to the President, there would be no immunity for a head of state, office holder, or on grounds of obedience to superior orders. The most detailed provisions concerned who had precedence in bringing prosecutions under the law: the country in which the crime was committed, the occupying authority in a zone of occupation, the International Military Tribunal or the German courts. There were, of course, many potential defendants who had committed crimes in a number of countries and the Control Council Law set forth a framework for settling disputes over who should be handed over to particular jurisdictions.
Although a much larger number of individuals were prosecuted under the terms of Control Council Law No.10 than under the Charter of the International Military Tribunal, there were only thirteen trials held under its authority, twelve of which were conducted by the United States, and one by France. Those conducted by the United States, the Nuremberg Military Tribunal (NMT) trials, had on their benches established judged or experienced jurists. They did not, however, sit in judgment on the very large number of individuals who had been members in those organisations declared criminal by the IMT (The Leadership Corps of the Nazi Party, SS, Gestapo and SD). Instead, they concentrated on trying "major culprits, many of whom bore an overall responsibility for the crimes of the Third Reich. The Nuremberg Military Tribunals tried 177 individual defendants, and many of these were members of organizations declared criminal by the IMT and were charged with and tried for that offense among others." [Source: Telford Taylor, op.cit., p.277]
In addition to those conducted at Nuremberg, the Americans set up United States Military Commissions which sat in various places in Europe and Asia, and the General Military Government Court and Intermediate Government Court of the American Zone of Germany. The Military Commissions tried persons accused of war crimes against American soldiers. According to Tutorow, the United States held in all approximately 900 war crimes trials, involving more than 3000 defendants. This included those held in the Far East. Of those tried in Germany, 1380 were convicted and 421 death sentences were imposed, many of which were commuted. [N.E Tutorow. War Crimes, War Criminals and War Crimes Trials. New York: Greenwood Press, 1986, p.5] In the British zone trials were carried out before military tribunals under the authority of international laws relating to war crimes. Probably the most famous of these was the trial of Josef Kramer and others accused of war crimes perpetrated at Belsen and Auschwitz. [See: Trial of Josef Kramer and Forty-Four Others: The Belsen Trial. London: William Hodge, 1949] Trials were also conducted by the French Permanent Military Tribunal, the French Court of Appeal and the French General Military Government Tribunal of the French Occupation Zone of Germany, the Australian Military Court, the Canadian Military Court, the Netherlands Temporary Court-Martial and Special Courts, the Norwegian Court of Appeal, the Supreme Court of Norway, and the Supreme National Tribunal of Poland.
Many of those who were tried for offenses relating to the conduct of the war in Europe were brought before tribunals that were established by or in countries that had been occupied by Germany or who had been allied against her. British military tribunals were convened in Italy to prosecute those who were responsible for the committal of crimes against the Italian population after the Italian capitulation. Tribunals in Denmark, Greece, Holland, Norway, Poland, USSR and Yugoslavia tried large numbers of civilian, military, police, and SS personnel for atrocities and crimes committed during the German occupation.
In the zone of occupation of the United States the three länder passed a denazification law which required the registration of 13 million persons. Those that were subjected to prosecution were classified as either major offenders, offenders, lesser offenders, or followers. The major objective of the law was to remove those who had most closely followed and aided the Nazis from positions of leadership, or to prevent such persons from holding future public office. Those found to have been major offenders "were subject to immediate removal or permanent exclusion from public office, confiscation of property, and to a maximum of ten years in prison." More than 930,000 defendants were brought before the denazification courts.
Quite separate from these denazification trials were those conducted by German courts against war criminals, involving nearly 12,000 defendants, between 1945 and 1963, some of whom had been tried by other tribunals and acquitted. According to one German government report, in the American Zone 450 had been sentenced to death, in the French 104, and in the British 240. More than half of these were carried out. Between 1945 and 1983, 88,000 war crimes cases were opened in West Germany: "non-appealable sentences were imposed upon 6456 defendants [6487 according to Mildt, p.20], while acquittals were handed down in 79,638 cases-over 90% of the cases tried." [Source: Tutorow, op.cit, p.8] As Mildt had recently noted:
Many of these indictments related to Endphaseverbrechen, end phase crimes, those committed in the dying months of the war, mainly in connection with the extrajudicial execution of German citizens for failing to obey orders germane to the continued prosecution of the war, for denouncing others to the Gestapo and police, and "persons who were tried for their involvement in a wide variety of more or less `incidental' killings related to war crimes or other capital offences that similarly fell outside the scope of Third Reich mass destruction." During the whole period 1945-1992, West German courts convicted and punished only 472 defendants for involvement in the persecution and killing of Jews, despite the fact that probably more than 100,000 individuals were in some way directly connected with the extermination programme, not to mention the denunciation, persecution and appropriation of Jewish owned property and artifacts.[op.cit, p.21]
Mildt documents at some length the reasons why so few convictions, in comparison to investigations undertaken by German legal authorities, occurred in the years 1950-1992. These included, in the early years, limitations on the powers of legal authorities to initiate prosecutions of individuals who either did not reside in their areas of jurisdiction, or whose offenses had not occurred there, the various statutes of limitations that existed under West German law for all crimes, with the exception of capital ones, difficulties of marshalling evidence, the granting of `biological amnesties', arising from the incapacitation, or alleged incapacitation, mental and physical, of defendants to stand trial and a decision of the High Court on 20 May 1969 which prevented the prosecution of desktop administrators (Schreibtischtäter) involved in mass extermination, a decision which encompassed all those who had been working in the RSHA.