NUREMBERG TRIAL PROCEEDINGS
..............INTERNATIONAL MILITARY TRIBUNAL:
............TRIAL OF THE MAJOR WAR CRIMINALS (1946)
Used with permission of the Yale Law School Avalon Project
..<http://www.yale.edu/lawweb/avalon/imt/imt.htm#proc>
.....................................excerpts from
CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL
..........INDICTMENT OF THE DEFENDANTS
....................WITNESS EXAMINATION (Otto Ohlendorf)
..............................JUDGMENT OF THE TRIBUNAL
........................................and NOTES & QUESTIONS

...........................................................................CHARTER
.......................................OF THE INTERNATIONAL MILITARY TRIBUNAL

................................................................................Article 1.
.....In pursuance of the Agreement signed on the 8th day of August 1945 by 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, there shall be established an International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt trial and punishment of the major war criminals of the European Axis.
.................................................................................. ... . .
.................................................................................Article 6.
.....The Tribunal established by the Agreement referred to Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
.....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 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 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, whether or not in violation of the domestic law of the country where perpetrated.
.....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.

...................................................................INDICTMENT
.................................COUNT ONE: THE COMMON PLAN OR CONSPIRACY
.....All the defendants ... participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity, as defined in the Charter of this Tribunal, and, in accordance with the provisions of the Charter, are individually responsible for their own acts and for all acts committed by any persons in the execution of such plan or conspiracy. The common plan or conspiracy embraced the commission of Crimes against Peace, in that the defendants planned, prepared, initiated, and waged wars of aggression, which were also wars in violation of international treaties, agreements, or assurances. In the development and course of the common plan or conspiracy it came to embrace the commission of War Crimes, in that it contemplated, and the defendants determined upon and carried out, ruthless wars against countries and populations, in violation of the rules and customs of war, including as typical and systematic means by which the wars were prosecuted, murder, ill-treatment, deportation for slave labor and for other purposes of civilian populations of occupied territories, murder and ill-treatment of prisoners of war and of persons on the high seas, the taking and killing of hostages, the plunder of public and private property, the indiscriminate destruction of cities, towns, and villages, and devastation not justified by military necessity. The common plan or conspiracy contemplated and came to embrace as typical and systematic means, and the defendants determined upon and committed, Crimes against Humanity, both within Germany and within occupied territories, including murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war, and persecutions on political, racial, or religious grounds, in execution of the plan for preparing and prosecuting aggressive or illegal wars, many of such acts and persecutions being violations of the domestic laws of the countries where perpetrated.

............................................COUNT TWO: CRIMES AGAINST PEACE
.....All the defendants with divers other persons, during a period of years preceding 8 May 1945, participated in the planning, preparation, initiation, and waging of wars of aggression, which were also wars in violation of international treaties, agreements, and assurances.

.....................................................COUNT THREE: WAR CRIMES
............................................................................. . . .
.....All the defendants, acting in concert with others, formulated and executed a Common Plan or Conspiracy to commit War Crimes as defined in Article 6 (b) of the Charter [see also textbook §10.6]. This plan involved, among other things, the practice of "total war" including methods of combat and of military occupation in direct conflict with the laws and customs of war, and the commission of crimes perpetrated on the field of battle during encounters with enemy armies, and against prisoners of war, and in occupied territories against the civilian population of such territories.
............................................................................. . . .
.....These methods and crimes constituted violations of international conventions, of internal penal laws and of the general principles of criminal law as derived from the criminal law of all civilized nations, and were involved in and part of a systematic course of conduct.

...................................COUNT FOUR: CRIMES AGAINST HUMANITY
............................................................................. ...
.....All the defendants, acting in concert with others, formulated and executed a common plan or conspiracy to commit Crimes against Humanity . . . . This plan involved, among other things, the murder and persecution of all who were or who were suspected of being hostile to the Nazi Party and all who were or who were suspected of being opposed to the common plan alleged in Count One.
..................................................................................
.....For the purposes set out above, the defendants adopted a policy of persecution, repression, and extermination of all civilians in Germany who were, or who were believed to be, or who were believed likely to become, hostile to the Nazi Government and the common plan or conspiracy described in Count One. They imprisoned such persons without judicial process, holding them in "protective custody" and concentration camps, and subjected them to persecution, degradation, despoilment, enslavement, torture, and murder.

..........................................................Nuremberg Trial Proceedings
...............................................................WITNESS EXAMINATION
..............................................................THURSDAY 3 JANUARY 1946--MORNING SESSION

COLONEL JOHN HARLAN AMEN (Associate Trial Counsel for the United States): May it please the Tribunal, I wish to call as a witness for the Prosecution, Mr. Otto Ohlendorf.
............................................................................ ...
COL. AMEN
: What position did you occupy with respect to this agreement?
.....OHLENDORF: From June 1941 to the death of Heydrich in June 1942, I led Einsatzgruppe D, and was the representative of the Chief of the Sipo and the SD with the 11th Army.
............................................................................. ...
COL. AMEN: Where did Group D operate?
.....OHLENDORF: Group D operated in the Southern Ukraine.
............................................................................. ...
.....OHLENDORF: On the question of Jews and Communists, the Einsatzgruppen and the commanders of the Einsatzkommandos were orally instructed before their mission.
COL. AMEN: What were their instructions with respect to the Jews and the Communist functionaries?
.....OHLENDORF: The instructions were that in the Russian operational areas of the Einsatzgruppen the Jews, as well as the Soviet political commissars, were to be liquidated.
COL. AMEN: And when you say "liquidated" do you mean "killed?"
.....OHLENDORF: Yes, I mean "killed."
............................................................................. ...
COL. AMEN
: So that before you commenced to march into Soviet Russia, you received orders at this conference to exterminate the Jews and Communist functionaries in addition to the regular professional work of the Security Police and SD; is that correct?
.....OHLENDORF: Yes.
............................................................................. ...
COL. AMEN
: Did you have any other conversation with Himmler concerning this order?
.....OHLENDORF: Yes, in the late summer of 1941 Himmler was in Nikolaiev. He assembled the leaders and men of the Einsatzkommandos, repeated to them the liquidation order, and pointed out that the leaders and men who were taking part in the liquidation bore no personal responsibility for the execution of this order. The responsibility was his, alone, and the Fuehrer's.
COL. AMEN: And you yourself heard that said?
.....OHLENDORF: Yes.
.............................................................................. ...
COL. AMEN
: Do you know how many persons were liquidated by Einsatz Group D under your direction?
.....OHLENDORF: In the year between June 1941 to June 1942 the Einsatzkommandos reported 90,000 people liquidated [about 250 per day].
COL. AMEN: Did that include men, women, and children?
.....OHLENDORF: Yes.
COL. AMEN: On what do you base those figures?
.....OHLENDORF: On reports sent by the Einsatzkommandos to the Einsatzgruppen.
COL. AMEN: Were those reports submitted to you?
.....OHLENDORF: Yes.
COL. AMEN: And you saw them and read them?
.....OHLENDORF: I beg your pardon?
COL. AMEN: And you saw and read those reports, personally?
.....OHLENDORF: Yes.
COL. AMEN: And it is on those reports that you base the figures you have given the Tribunal?
.....OHLENDORF: Yes.
COL. AMEN: Do you know how those figures compare with the number of persons liquidated by other Einsatz groups?
.....OHLENDORF: The figures which I saw of other Einsatzgruppen are considerably larger.
................................................................................ ...
COL. AMEN
: Did you personally supervise mass executions of these individuals?
.....OHLENDORF: I was present at two mass executions for purposes of inspection.
COL. AMEN: Will you explain to the Tribunal in detail how an individual mass execution was carried out?
.....OHLENDORF: A local Einsatzkommando attempted to collect all the Jews in its area by registering them. This registration was performed by the Jews themselves.
COL. AMEN: On what pretext, if any, were they rounded up?
.....OHLENDORF: On the pretext that they were to be resettled.
COL. AMEN: Will you continue?
.....OHLENDORF: After the registration the Jews were collected at one place; and from there they were later transported to the place of execution, which was, as a rule an antitank ditch or a natural excavation. The executions were carried out in a military manner, by firing squads under command.
COL. AMEN: In what way were they transported to the place of execution?
.....OHLENDORF: They were transported to the place of execution in trucks, always only as many as could be executed immediately. In this way it was attempted to keep the span of time from the moment in which the victims knew what was about to happen to them until the time of their actual execution as short as possible.
COL. AMEN: Was that your idea?
.....OHLENDORF: Yes.
COL. AMEN: And after they were shot what was done with the bodies?
.....OHLENDORF: The bodies were buried in the antitank ditch or excavation.
COL. AMEN: What determination, if any, was made as to whether the persons were actually dead?
.....OHLENDORF: The unit leaders or the firing-squad commanders had orders to see to this and, if need be, finish them off themselves.
COL. AMEN: And who would do that?
.....OHLENDORF: Either the unit leader himself or somebody designated by him.
COL. AMEN: In what positions were the victims shot?
.....OHLENDORF: Standing or kneeling.
............................................................................... ...

.......................................................................JUDGMENT
.......................................... of the International Military Tribunal (1946)
.................................................22 INTERNATIONAL MILITARY TRIBUNAL:
.........................................................TRIAL OF THE MAJOR WAR CRIMINALS 411 (1948)

Court's Opinion. The charges in the indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
.....To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.
.....The first acts of aggression referred to in the indictment are the seizure of Austria and Czechoslovakia; and the first war of aggression charged in the indictment is the war against Poland begun on the 1st September 1939. Before examining that charge it is necessary to look more closely at some of the events which preceded these acts of aggression. The war against Poland did not come suddenly out of an otherwise clear sky; the evidence has made it plain that this war of aggression, as well as the seizure of Austria and Czechoslovakia, was premeditated and carefully prepared, and was not undertaken until the moment was thought opportune for it to be carried through as a definite part of the preordained scheme and plan.
.....For the aggressive designs of the Nazi Government were not accidents arising out of the immediate political situation in Europe and the world; they were a deliberate and essential part of Nazi foreign policy. From the beginning, the National Socialist movement claimed that its object was to unite the German people in the consciousness of their mission and destiny, based on inherent qualities of [an allegedly superior] race, and under the guidance of the Fuhrer.
.....For its achievement, two things were deemed to be essential: The disruption of the European order as it had existed since the Treaty of Versailles, and the creation of a Greater Germany beyond the frontiers of 1914. This necessarily involved the seizure of foreign territories.
.....War was seen to be inevitable, or at the very least, highly probable, if these purposes were to be accomplished. The German people, therefore, with all their resources, were to be organized as a great political-military army, schooled to obey without question any policy decreed by the State.
.....The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against 10 nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also "wars in violation of international treaties, agreements, or assurances." These treaties are set out in . . . the indictment. Those of principal importance are the following [which are herein summarized by the Tribunal]:

.....(A) HAGUE CONVENTIONS
.....In the 1899 Convention the signatory powers agreed: "before an appeal to arms . . . to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers." A similar clause was inserted in the Convention for Pacific Settlement of International Disputes of 1907. In the accompanying Convention Relative to Opening of Hostilities, article I contains this far more specific language:

The Contracting Powers recognize that hostilities between them must not commence without a previous and explicit warning, in the form of either a declaration of war, giving reasons, or an ultimatum with a conditional declaration of war.

.....Germany was a party to [and thus bound by] these conventions.

.....(B) VERSAILLES TREATY
.....Breaches of certain provisions of the Versailles Treaty are also relied on by the prosecution . . . to "respect strictly the independence of Austria" (art. 80); renunciation of any rights in Memel (art. 99) and the Free City of Danzig (art. 100); the recognition of the independence of the Czecho-Slovak State; and the Military, Naval, and Air Clauses against German rearmament found in part V. There is no doubt that action was taken by the German Government contrary to all these provisions....
.....The question is, what was the legal effect of this [Kellogg-Briand] pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the pact.
......................................................................................

Notes & Questions:
1.
The Nuremberg result was not well received in all sectors of the political spectrum. US Senator Robert Taft,.Republican Majority Leader after the WWII, referred to this case as a "miscarriage of justice [that] the American people would long regret." In his opinion, "the trial of the vanquished leaders could not be impartial.no matter how it was hedged about with the forms [appearance] of justice." This perspective, and others, are analyzed in Migone, After Nuremberg, Tokyo, 25 Texas L. Rev. 475 (1947). Further reading is available in the resources contained at Endnote 66 in the print portion of the textbook. The fifteen volumes of the Nazi War Crime Trials, inlcuding wartime death capm photographs are being uploaded to the Internet. Click here.

2. Criticisms of such trials were not limited to just the Nuremberg proceedings. India's dissenting judge in the Tokyo trials complained that there was no applicable body of law, prior to World War II, for the majority's decision that war was then unlawful under International Law. In Justice Pal's words, national resort to war was a "recognized rule of international life." Although there were a number of noble statements made in treaties--most of which were honored in the breach--customary State practice necessitated the legal conclusion that "war was.a legitimate instrument of self-help" when peaceful solutions failed. His views on this subject were published in R. Pal, International Military Tribunal for the Far East: Dissident Judgment 103 (Calcutta: Sanyal,1953). 

3. Related issues regarding the US "War on Terrorism," which responded to the September 11, 2001 terrorist.attack on the US), are addressed in Chapter 10, §10.9: click here. One issue would be whether to conduct the potential trial of Usama Bin Laden in a Nuremberg-like tribunal. For the author's preliminary analysis (Nov. 7, 2001), click here, then search "Slomanson."

4. For the most complete collection of original materials, see Harvard Law School's June 2003 new website entitled Nuremberg Trials Resources--click here.

Go To Chapter 9, Section 9.5, text p.413, after Nuremberg Trial Proceedings reference to this web page.
..Last rev: Orig docs: 12/31/69 This web page: 04/13/03
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