II THE LONDON AGREEMENT AND THE THE London Agreement was signed by representatives of the four powers occupying Germany "acting in the interests of all the United Nations."16 Other governments of the United Nations were given the opportunity of "adhering" to the Agreement,17 and nineteen 18 subsequently took advantage of this provision; by this action they endorsed the principles of the Agreement, and many of them sent observers and representatives to assist in the preparation of the prosecution's case at the trial. Article 1 of the Agreement authorized the establishment of 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." The "Charter" of the IMT, annexed to the Agreement, specified that the IMT should "consist of four members, each with an alternate," one member and his alternate to be designated by each of the four signatories. The heart of the Charter was Article 6, defining the crimes within the jurisdiction of the Tribunal. These crimes, corresponding to the "legal charges" outlined in Justice Jackson's report (and later included in the four counts of the indictment), were described as "crimes against peace" (the planning or waging of aggressive war, or conspiracy for the accomplishment thereof), "war crimes" (violations of the laws and customs of war), and "crimes against humanity" 16 The language is quoted from the preamble to the Agreement, which was signed by Justice Jackson for the United States, Robert Falco for France, I. T. Nikitchenko and A. N. Trainin for Russia, and the Lord Chancellor (Lord Jowitt) for the United Kingdom. 17 Agreement, Article 5. 18 Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxemburg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia. (atrocities and other inhumane 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"). Others among the recommendations in Jackson's report were adopted in the Charter. The fact that a defendant had acted pursuant to "superior orders" was ruled out as a defense, but might be considered in mitigation.19 The Tribunal was empowered to declare that a "group or organization" to which a defendant had belonged was a "criminal organization"; members of organizations declared criminal could thereafter be prosecuted on account of their membership.20 Jackson had emphasized that "fair hearings for the accused are, of course, required to make sure that we punish only the right men and for the right reasons," and the Charter contained numerous safeguards directed to that end.21 That the representatives of four great nations with distinct and highly developed judicial traditions could agree at all upon a charter for an international criminal court was an impressive demonstration of how imperative and wide-spread was the demand-first expressed in the St. James Declaration—for retribution "through the channels of organized justice . . . in a spirit of international solidarity." No doubt the Charter borrowed more heavily from the common law system of jurisprudence— the basis of English and American law-than the civil law, from which French, Russian, German, and most other European legal systems are derived. But it was a genuinely international legal document. For instance, the provision that the defendants might take the witness stand and testify subject to cross-examination22 is customary criminal procedure in England and the United States but quite unknown in continental legal systems; conversely, the provision that the defendants might make statements 19 Charter, Article 8. Likewise, under Article 7, the defendants were foreclosed from claiming immunity on the ground that they had acted in an official capacity. 20 Charter, Articles 9, 10, and 11. 21 Charter, Articles 16 et seq. 22 Charter, Article 24 (g). to the Tribunal not under oath and not subject to cross-examination23 is wholly foreign to Anglo-American practice, but familiar to continental lawyers. The Indictment The indictment, too, was "international" on its face. Counts One and Two, charging conspiracy and crimes against peace, were drafted in principal part by the English and Americans; following common law practice, the charges were reasonably precise, but the evidence in support thereof was not set forth in detail. Counts Three and Four, charging war crimes and crimes against humanity, were based largely on evidence of particular atrocities supplied by the Russians, the French, or other recently German-occupied countries, and reflected the continental practice of "pleading" the details in the statement of charges. Count One of the indictment was patterned after Jackson's declaration (in his June 1945 report) that "our case against the major defendants is concerned with the Nazi master plan." In effect, it charged that all the defendants, with numerous confederates, engaged in a gigantic "common plan or conspiracy" to acquire "totalitarian control of Germany," to mobilize the German economy for war, to construct a huge military machine for conquest, and to overrun and subjugate Austria, Czechoslovakia, Poland, and the other victims of German arms; and, in the course of all the foregoing, to commit numerous war crimes and crimes against humanity. Count Two of the indictment contained only the formal allegation that all the defendants did commit crimes against peace by planning, preparing, initiating, and waging wars of aggression against twelve named countries.24 Count Three ac 23 Charter, Article 24 (j). 24 The twelve (in the order of the initiation of the wars) were Poland; United Kingdom and France; Denmark and Norway; Belgium, the Netherlands, and Luxemburg; Yugoslavia and Greece; Soviet Russia; and the United States. It is noteworthy that Austria and Czechoslovakia were not included. Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946 (Nuremberg, Germany, 1947–49), Vol. I, p. 42. cused the defendants of violating the laws and customs of war, specifying the murder and ill-treatment of millions of civilians in the German-occupied countries, deportation of other millions to slave labor, murder and ill-treatment of prisoners of war, killing of hostages, plunder and looting and unjustified devastation, forcing non-German civilians to swear allegiance to Hitler, and despotically "Germanizing" occupied areas, particularly Alsace and Lorraine and parts of Poland. In Count Four, charging "crimes against humanity," were incorporated all the allegations of Count Three, but in addition Count Four included accusations based on events in Germany (and Austria and Czechoslovakia) prior to the outbreak of the war. Particular stress was laid on the imprisonment of Jews and political opponents of Nazism at Dachau, Buchenwald, and elsewhere, and on general mistreatment and persecution of Jews and other political, racial, and religious groups by the Nazis. The twenty-four defendants included, in addition to Hermann Goering and Rudolf Hess (the No. 2 and No. 3 political figures of the Third Reich until its last two or three years), the Foreign Ministers (Ribbentrop and von Neurath), the Navy commanders in chief (Raeder and Doenitz), the two leading generals in Hitler's own military staff (Keitel and Jodl), and prominent Nazi party leaders or administrators such as Ley, Rosenberg, Frick, Schirach, Kaltenbrunner, Hans Frank, Funk, Streicher, Sauckel, Speer, Seyss-Inquart, and Bormann (who was never discovered and was tried in absentia). The dock also included the ubiquitous von Papen and the enigmatic Dr. Schacht, the prominent industrialist Gustav Krupp von Bohlen, and one Hans Fritzsche, a division chief in the deceased Goebbels' Propaganda Ministry.25 In addition, the indictment named six "groups or organizations"-including the SS, the SA, and the 25 Most of the leading figures of the Third Reich who survived the end of the war were taken prisoner by British or American forces. The Soviet Union wished to have some of its own prisoners in the dock, and from four or five suggested defendants in Soviet custody the chief prosecutors chose Raeder (obviously a sound selection) and Fritzsche. "General Staff and High Command" of the Wehrmacht26— against which "declarations of criminality" were asked.27 Early in October 1945 the IMT assembled in Berlin, and chose the British member, Lord Justice Geoffrey Lawrence, as its President.28 They received the indictment (dated 6 October and filed 18 October 1945) signed by the four chief prosecutors,29 and then moved to Nuremberg, where preparations for the trial were in progress at the Palace of Justice. The IMT obtained and approved defense counsel selected by the accused, adopted rules to govern its proceedings, and took other preliminary steps. The defendant Ley committed suicide in the Nuremberg jail late in October, and on 15 November the Tribunal ruled that Gustav Krupp could not be tried, because of his physical and mental condition. A motion by a majority of the chief prosecutors (the British prosecutor did not join) to amend the indictment by adding Gustav's son, Alfried Krupp, was denied by the Tribunal two days later. Accordingly, when the trial opened on 20 November 1945, the defendants comprised twentyone individuals physically present in the dock and the absent Bormann; the six accused "groups or organizations" were, in a practical sense, defendants too. The Trial and Judgment Burdened with vexing administrative and organizational questions, harassed by misunderstandings generated by a polyglot bench and bar, and almost buried under a mountain of evidence through which it painfully worked its way, the Interna 26 Also the "Reich Cabinet," the "Leadership Corps" of the Nazi Party, and the "Gestapo." 27 Appendixes to the indictment set forth the positions held by the defendants, defined the composition of the "groups or organizations," and listed the treaties charged to have been violated. 28 The other members were Francis Biddle (United States), H. Donnedieu de Vabres (France), and I. T. Nikitchenko (Soviet Union). The alternates were Sir Norman Birkett (United Kingdom), John J. Parker (United States), R. Falco (France) and A. Volchkov (Soviet Union). 29 The indictment was signed by Justice Jackson for the United States, François de Menthon for France, R. Rudenko for the Soviet Union, and the AttorneyGeneral (Sir Hartley Shawcross) for the United Kingdom. |