In western Europe, which was highly visible to the outside world, Germany was careful to observe Geneva Convention guidelines. Consequently, their actions were not a matter of international concern. In the east, particularly in Poland, atrocities had been committed, blatantly, from 1939 onward. The escape of Slovakian Jews, Rudolf Vrba and Alfred Weczler, from Auschwitz in April of 1944 brought the brutal treatment of camp inmates to the attention of western authorities. Even earlier, following the invasion of Poland, members of the exiled Polish government, in particular Edvard Benes, had reported on the Nazi treatment of civilians in eastern Europe where slave labor was commonplace from 1939 on and where extermination was the order of the day after 1942. In response to these reports, the United Nations forms the United Nations' War Crimes Commission in October, 1943 and a list of war criminals was already in process over a year before the war ended. The Commission met in London on October 26, 1943 and drafted the London Agreement to prosecute war criminals.
At the conclusion of the war, the Allied nations formed an International Military Tribunal charged with the task of prosecuting Nazi war criminals. The United States Prosecutor, Robert Jackson, articulated the three areas of prosecution to be pursued:
It is my purpose to open the case, particularly under Count One of the Indictment, and to deal with the Common Plan or Conspiracy to achieve ends possible only by resort to Crimes against Peace, War Crimes, and Crimes against Humanity. (Trial of the Major War Criminals before the International Military Tribunal. Volume II. Proceedings: 11/14/1945 -11/30/1945.)
The tribunal, realizing that its task was unprecedented in human history, went to considerable lengths to provide a rationale for a process based on international law. This task was fairly easy with regard to the treatment of prisoners of war. The Hague Convention had spelled out the guidelines in this area very clearly. For the other two areas, however, the Tribunal was on shaky ground and pretty much made up the rules and rationale as the trials unfolded. Three factors account for this circumstance. First, the absence of any precedent and clear statement of international law, second, the recency of the events under examination, and third, the uniqueness of the events under examination. "Crimes against the peace" referred to the act of waging an aggressive war. Of course, war by its very nature is aggressive. However, in the aftermath of World War I, world powers made an attempt, through the United Nations, to create the mechanisms by which world war could be avoided in the future. Germany was certainly in violation of these stated principles forbidding military aggression.
Crimes against Humanity" was the category for the brutal murder of millions of innocent civilians. No specific international agreements existed, simply because the signatories to the Geneva and Hague agreements had never imagined that the kinds of atrocities the Tribunal would have to consider could ever be an issue among civilized nations.
There were four main prosecutors representing the United States, Great Britain, France and the Soviet Union. The first issue of the Tribunal was to deal with the charge of "Crimes Against Humanity," specifically the Nazi conspiracy to exterminate the Jews of Europe. The trial opened on November 20, 1945. Justice Robert Jackson, the United States' chief prosecutor, gave the opening address .
In July, 1944, with evidence of Nazi atrocities, not only against European Jews but also against Allied prisoners of war, the U.S. Office of the Chief of Staff appointed Lt. Colonel Murray C. Bernays to head up the investigation on Nazi war crimes against U.S. servicemen. Bernays, a naturalized American Jew of Lithuanian origin, and a graduate of Harvard Law School, was practicing law in New York at the time of his appointment. A brilliant lawyer and meticulous investigator, he began the task of collecting information.
Very early in the process, it became evident to Bernays that it would not be enough to try specific individuals for specific offenses. In his view, it would be a travesty of justice to try individual Nazis and leave the Nazi movement out of which they emerged unpunished. Accordingly, Bernays began looking for a philosophical and theoretical rationale for unmasking the bestiality of the Nazi plan and program as well as its implementation through the instrumentality of accused war criminals. According to Robert E. Conot, Justice at Nuremberg, 1983:12, Bernays found the inspiration he needed in Raphael Lemkin's book, Axis Rule in Occupied Europe. Lemkin had argued that organizations like the SS were criminal conspiracies. In that context, the murder of 6 million Jews and nearly 6 million additional civilians by the Nazi government could be viewed as a monstrous conspiracy against humanity -- a conspiracy based upon the doctrine of racial purity.
The second prong of Bernays' approach was the concept of international law which, in his view, represents the conscience of humanity. If, in fact, the Nazi program was a gigantic conspiracy against humanity, carried out in violation of international law, any legal proceedings against Nazi war criminals should be, first and foremost, a trial of the entire Nazi conspiracy. If the Nazi organization is found guilty of atrocities against humanity, that conviction should also extend to any of its members.
Bernays' ideas were presented to President Roosevelt in late November, 1944, in a memorandum from Secretary of War, Henry Stimson, and Secretary of State, Cordell Hull, entitled "The Trial and Punishment of European War Criminals." Major opposition came from Great Britain. The British that war criminals should be executed without trial created something of a stalemate in Washington. One person in the United States who took strong exception to the British reaction was Supreme Court Justice Robert Jackson, a Roosevelt appointee and close personal friend of the President.
On April 12, 1945, President Roosevelt died and Vice-President Harry Truman moved in to fill the office. Exactly two weeks later, Truman authorized Justice Jackson to proceed with preparations for the trial pending approval from the United Nations.
Jackson began putting together a staff and developing a prosecution plan. His plan called for the creation of an international military tribunal composed of prosecutors from the United States, Great Britain, France and the Soviet Union. British opposition remained strong until it became apparent that the end of the war was near. When Hitler and Himmler and Goebbels committed suicide and Mussolini was executed in Italy, their position shifted significantly. On May 31, 1945, the United Nations War Crimes Commission met in London. General approval was given to the Military Tribunal plan. Churchill appointed Attorney General Maxwell Fyfe as the chief British prosecutor. Andre Gros led the French delegation and Major General I.T. Nikitchenko headed up the Soviet staff.
After some very sharp debate, the Palace of Justice in Nuremberg, Germany was chosen as the site of the trials. On August 8, 1945, in London, the four participating nations signed the Charter of the International Military Tribunal.
In the course of the trial it was Justice Jackson and the other prosecutors who emerged as the principal actors, along with the defendants. Colonel Telford Taylor is generally credited with designing the procedure for gathering evidence and organizing the preparation for the trial. But it was Colonel Murray C. Bernays who first conceived of the trial and identified the fundamental bases upon which it was to be constructed.
Marian Mushkat, "Laws Punishing Nazis and Nazi Collaborators," in Gutman, ed., Encyclopedia of the Holocaust, Vol.3:856-857, provides the following:
In occupied Germany, the Allied Control Commission, on December 20, 1945, enacted...Law No. 10, which faithfully reflects the principles then being formulated in preparation for the IMT. It also deals in detail with the punishment of members of organizations that the law defines as criminal. Law No. 10, by its application, reinforced the postulate that the punishment of Nazi war criminals was not to be regarded as an act of revenge, but as a contribution to peace and justice. The trials held in accordance with Law No. 10 clearly show the impact of the proposals that were being drafted for the IMT and that were to guide its procedure and judgments.
All four nations prosecuting the trials adopted the principles outlined in Law No. 10, or drew upon pre-existing principles of military justice in their own countries. The law was clearly rooted in the concept of international law as outlined by the Hague and Geneva Conventions.