Does a bad peace treaty justify a new war of aggression?

On March 26, 1946, those involved in the Nuremberg trial of major war criminals disputed this: defense attorneys, prosecutors and judges.

The defendants stayed out.

Although, or perhaps precisely because, this day of the trial refuted the accusation that had been raised again and again that “victorious justice” was being pursued against them.

Whenever winners judge losers, the suspicion is that short work is being made.

At least for a time, Great Britain's Prime Minister Winston Churchill also envisaged this in the Second World War: He spoke to confidants of declaring up to a hundred German war criminals "lawless" and having them executed without further ado.

But at the same time he rejected the more extensive proposal of his unloved ally Josef Stalin at the conference in Tehran in 1943, who wanted to have "50,000 to 100,000 German officers" shot unceremoniously after the end of the war.

Churchill was certain: "The British Parliament and the public will never accept mass executions."


In fact, as early as 1943, the United States and Great Britain were convinced that those primarily responsible for the Nazi regime and its countless crimes should be tried in a strictly constitutional process.

In other words, the exact opposite of a "short process".

One man revolutionized international criminal law

Robert H. Jackson was the US chief prosecutor in the major war crimes trial in which leading National Socialists were convicted in 1945/46.

The mammoth process ushered in a new era.

Source: The World

On November 1, 1943, the states of the anti-Hitler coalition published their "Declaration on German Crimes in Occupied Europe".

It said: “Those German officers and soldiers as well as members of the NSDAP who were responsible for atrocities, massacres and executions, or who participated in them, should be sent to the countries where they committed their heinous acts so that they could Laws of these liberated countries and the free governments established therein can be punished. "

But that's not all: The main war criminals, whose “crimes cannot be assigned to a specific country”, should “be punished according to a joint decision of the Allied governments”.

The details are yet to be determined.


One thing was certain: a German court was out of the question, because after the First World War the attempt to leave the defeated nation to punish those who had previously been politically responsible had already failed - at that time the Leipzig Reichsgericht was extremely lenient with the accused.

So the victorious powers established the International Military Tribunal, which became a turning point in legal history.

The legal basis was a general agreement, the London Statute of August 8, 1945. It defined three charges: on the one hand, “crimes against peace”, that is, waging wars of aggression;

on the other hand, “war crimes”, ie violence against civilians and soldiers apart from specific combat operations;

finally “crimes against humanity” (or “crimes against humanity”, because the English formulation “crimes against humanity” allowed both translations).

The court on December 20, 1945

Source: Getty Images

The indictment of October 6, 1945, like the entire proceedings, following the Anglo-Saxon legal tradition, added a further charge: the “conspiracy”, which was originally part of the first count.


In theory, there were then and are now three different ways of dealing with the crimes of a dictatorship in a constitutional manner: First, you can create special criminal offenses that are based on general human rights, but at the same time precisely record the crimes to be punished.

That is practicable and, as long as one concentrates on clearly demonstrable crimes such as mass murder or genocide, wars of aggression and torture that are really clearly in breach of human rights.

However, this approach contradicts the age-old rule of law “Nulla poena sine lege”.

According to him, a crime can only be charged if the offense was explicitly formulated at the time of the offense and threatened with sanctions.

The second possibility is to apply exclusively the national law valid at the time of the respective crime in the sense of the pure legal doctrine.

Although this path removes the ground for allegations of retrospective punishment, it has other disadvantages.

For example, under the respective regime, formally valid, but practically not implemented law must be weighed against unambiguous instructions from superiors to the perpetrators to break this law.

OKW boss Wilhelm Keitel (left) in the dock in conversation with Alfred Jodl, Hitler's closest military advisor from 1939 to 1945

Source: Toronto Star via Getty Images

The third option is to apply internationally valid international criminal law through specially appointed and staffed courts.

The problem here often lies in the question of whether the judges are actually competent;

the accusation of winning justice is just as obvious as the instrumentalization of such procedures for nationalist propaganda.

In 1945 the governments of the anti-Hitler coalition opted for the first way.

The prosecutors of the victorious powers selected 24 persons who were undoubtedly primarily responsible, all of whom had belonged to the top ranks of Hitler's Germany and against whom numerous documents were available.

The agitator Julius Streicher on the witness stand

Source: Getty Images

Members of different parts of the leadership were deliberately accused: Hitler's followers such as Hermann Göring and Rudolf Hess and Reich Foreign Minister Joachim von Ribbentrop, the highest military officials such as Wilhelm Keitel, Alfred Jodl, Erich Raeder and Karl Dönitz, but also Gestapo chief Ernst Kaltenbrunner and Armaments Minister Albert Speer .

All defendants were given full rights and self-elected defense lawyers;

they were not mistreated or forced to testify.

Most of them were stubborn;

the international military tribunal was formally not responsible, argued Hermann Göring, for example.

Of the defendants, only Albert Speer showed himself willing to admit at least part of the guilt;

his skillful tactics eventually saved him death by hanging.

Hitler's former chief lawyer Hans Frank on the witness stand.

He was responsible for millions of deaths in Poland

Source: Getty Images


The taking of evidence dragged on for months.

33 prosecution witnesses were heard, as were all of the defendants.

The defense named 61 exonerating witnesses.

In addition, more than 100 written statements were submitted.

The trial was not only intended to adequately punish the defendants' acts, but also to comprehensively educate the German public about the crimes of the Third Reich.

That is why there was intensive coverage of the process in the newspapers still under Allied control, on the radio and in "newsreels".

All official court documents were made public, while the defense lawyers had and exercised the right of secrecy.

Therefore, the process in Nuremberg can be regarded as the best-documented process in legal history.

Albert Speer in the dock

Source: Getty Images

According to surveys by the US military government between October 1945 and August 1946, the German post-war public was informed: three quarters of those questioned had the impression that the defendants would get a fair trial, only a quarter saw it differently or, like Göring, denied the formal validity of the legal basis.

At the time, two out of three Germans agreed with the statement that they had learned a lot about the Nazi crimes.

Nonetheless, almost half of those questioned expected all of the accused to be sentenced to death as a lump sum;

They were surprised when the judges pronounced differentiated sentences: only eleven of them were to be executed (in the end Göring evaded this sentence by suicide), while seven received prison terms of between ten years and life;

three defendants were acquitted;

one of them had been tried in absentia;

one defendant had committed suicide;

the last one was no longer negotiated because of his poor health.

Hjalmar Schacht made the armament of the Third Reich possible.

Nevertheless, he was acquitted

Source: Getty Images

The Nuremberg Trial was, of course, victorious justice in a purely formal sense, but in reality exactly the opposite of what is usually expressed with this word: It was a fair and actually constitutional process that delivered fair judgments.

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