Stay the Hand of Vengeance

At ten minutes to three on the afternoon of 1 October 1946, the President of the International Military Tribunal at Nuremberg began reading out sentences. "Defendant Hermann Wilhelm Goering, on the counts of the Indictment on which you have been convicted, the International Military Tribunal sentences you to death by hanging." Then Rudolf Hess, imprisonment for life. Then Joachim von Ribbentrop, death by hanging. It went on through the dock.

Three men were not on the list. Hjalmar Schacht, Franz von Papen and Hans Fritzsche had been acquitted earlier that day and told they would be discharged. The Soviet judge put on record that he thought all three should have been convicted. He was outvoted.

That detail, three acquittals over the objection of one of the four powers that ran the court, is a large part of why Nuremberg is remembered as a trial rather than a show.

A court of the winners

The tribunal was set up by the four victorious powers, the United States, Britain, the Soviet Union and France, and it opened on 20 November 1945. Twenty-two of the leaders of Nazi Germany were tried, one of them, Martin Bormann, in his absence. They faced four charges: a conspiracy to commit the other crimes, crimes against peace, war crimes, and crimes against humanity.

The American chief prosecutor, Robert Jackson, a justice of the US Supreme Court on leave, opened the case the next day. "The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility," he began. Then the passage everyone remembers:

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.

He was making an argument as much as a speech: that the victors had chosen a courtroom when they could have chosen something rougher.

The charge that was new

War crimes, the killing of prisoners or the murder of civilians in occupied territory, were already crimes under the laws of war. The problem was "crimes against peace", the planning and waging of a war of aggression. No court had ever convicted anyone of it, and the defence said so directly.

The tribunal's judgment sets out their argument fairly. "A fundamental principle of all law, international and domestic, is that there can be no punishment of crime without a pre-existing law," the defendants argued: nullum crimen sine lege, no crime without a law. No sovereign power had made aggressive war a crime when they acted, no statute had defined it, no penalty had been fixed, and no court had been created to try it.

It is a serious argument, and it is the one lawyers have argued about ever since.

The tribunal's answer

The judges' reply came in two parts. The first was moral. The rule against retrospective punishment, they said, "is not a limitation of sovereignty, but is in general a principle of justice." And it would not be unjust to punish men who had attacked their neighbours in defiance of treaties, because "the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished."

The second was legal. In 1928 the Kellogg-Briand Pact had renounced war as an instrument of national policy, and by 1939 it bound sixty-three nations, Germany among them. The defendants, the tribunal said, must have known of the treaties Germany had signed.

The weakness is plain. The pact renounced war but said nothing about putting individual officials on trial for it, and a "principle of justice" is not the same as a statute. The tribunal more or less conceded the point by arguing that the maxim did not apply.

It was on firmer ground about who could be punished. "Crimes against international law are committed by men, not by abstract entities," the judgment said, "and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Nor could they hide behind orders. The court's charter said acting on the orders of a government or a superior "shall not free him from responsibility", though it could reduce the sentence.

Its most quoted sentence came in the section on aggression. To start a war of aggression, the judgment said, "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."

Why the acquittals mattered

A court that convicts everyone put in front of it is not really a court. The three acquittals showed that this one was weighing evidence.

Schacht's case is the clearest. He had been Hitler's economics minister and president of the Reichsbank, and he had financed German rearmament. The prosecution argued he must have known the rearmament was for aggressive war. The tribunal considered the evidence "with great care" and concluded that this "necessary inference has not been established beyond a reasonable doubt." Von Papen and Fritzsche were acquitted on similar grounds.

None of this answers the deepest criticism, which is that only the defeated were in the dock and the judges came from the powers that defeated them. No Allied official was ever going to be tried for anything at Nuremberg. That criticism is fair, and it was fair at the time.

What became of it

Ten of the condemned were hanged on 16 October 1946. Goering killed himself the night before.

The trial's ideas outlived its weaknesses. In 1950 the International Law Commission of the United Nations set out seven Nuremberg Principles. The first reads: "Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment." The fourth removed the defence of superior orders, "provided a moral choice was in fact possible to him." The sixth listed crimes against peace first.

Then it took half a century. The Rome Statute of 1998 created a permanent International Criminal Court, and on 17 July 2018, after years of negotiation over a definition, the court's jurisdiction over the crime of aggression finally took effect. The charge that the Nuremberg defence called retrospective is now written down, with a definition and a court, as its critics said it should have been.

Jackson had seen the risk coming. "We must never forget," he said, "that the record on which we judge these defendants today is the record on which history will judge us tomorrow." The acquittals of 1 October 1946 are on that record, next to the twelve sentences of death.

Sources

• The Avalon Project, Yale Law School, "Judgement: Sentences" (the pronouncement of sentences from 2.50 pm on 1 October 1946, including Goering, Hess and Ribbentrop; the Soviet member's dissent from the acquittals of Schacht, von Papen and Fritzsche).
• The Avalon Project, "Judgement: The Law of the Charter" (the defence argument of nullum crimen sine lege; the tribunal's reply that it is "in general a principle of justice"; the Kellogg-Briand Pact binding sixty-three nations; crimes "committed by men, not by abstract entities"; Article 8 on superior orders).
• The Avalon Project, "Judgement: The Common Plan or Conspiracy and Aggressive War" (aggressive war as "the supreme international crime").
• The Avalon Project, "Judgement: Schacht" (the tribunal's finding that the necessary inference had not been established beyond a reasonable doubt, and his acquittal).
• The Avalon Project, "Nuremberg Trial Proceedings Vol. 2, 21 November 1945" (Robert Jackson's opening statement, including "the first trial in history for crimes against the peace of the world" and "stay the hand of vengeance").
• United States Holocaust Memorial Museum, "International Military Tribunal at Nuremberg" (the opening on 20 November 1945; the 22 defendants and Bormann in absentia; the four charges; twelve death sentences and three acquittals; the executions of 16 October 1946 and Goering's suicide; Jackson's line about the record on which history will judge).
• United Nations, International Law Commission, "Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, 1950" (Principles I, IV and VI as quoted).
• International Criminal Court, "Assembly of States Parties held a three-day special session on the review of amendments of the crime of aggression" (the activation of the court's jurisdiction over the crime of aggression on 17 July 2018).