Nuremberg Trials





These defendants are charged with war crimes and crimes against humanity. The concept of war crimes is not a new one. From time immemorial there have existed rules, laws and agreements which kept opposing forces within bounds in the matter of the conduct of warfare, the treatment of prisoners, wounded persons, civilian noncombatants, and the like. Those who violated these rules were subject to trial and prosecution by both the country whose subjects they were and by the country whose subjects they maltreated.

But an evaluation of international right and wrong, which heretofore existed only in the heart of mankind, has now been written into the books of men as the Law of Humanity. This law is not restricted to events of war. It envisages the protection of humanity at all times. The crimes against which this law is directed are not unique. They have unfortunately been occurring since the world began, but not until now were they listed as international offenses. The first count of the Indictment in this case charges the defendants with crimes against humanity. Not crimes against any specified country, but against humanity.

Humanity is the sovereignty which has been offended and a Tribunal is convoked to determine why. This is not a new concept in the realm of morals, but it is an innovation in the empire of the law. Thus a lamp has been lighted in the dark and tenebrous atmosphere of the fields of the innocent dead.

Murder, torture, enslavement and similar crimes which heretofore were enjoined only by the respective nations now fall within the proscription of the family of nations. Thus murder becomes no less murder because directed against a whole race instead of a single person. A Fuehrer-Order, announcing the death of classifications of human beings can have no more weight in the scales of international justice than the order of a highwayman or pirate.

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Despite the gloomy aspect of history, with its wars, massacres and barbarities, a bright light shines through it all if one recalls the efforts made in the past in behalf of distressed humanity. President Theodore Roosevelt in addressing the American Congress, said in 1903:

"There are occasional crimes committed on so vast a scale and of such peculiar horror as to make us doubt whether it is not our manifest dusty to endeavor at least to show our disapproval of the deed and our sympathy with those who have suffered by it."

President William McKinley in April 1898, recommended to Congress that troops be sent to Cuba "in the cause of humanity -

and put an end to the barbarities, bloodshed, starvation, and horrible miseries now existing there, and which the parties to the conflict are either unable or unwilling to stop or mitigate."

These two American presidents were but expressing the yearning of all mankind for a medium by which crimes against humanity could be stopped and the instigators punished. One recommended diplomatic protest, the other armed intervention. Both methods have been used but they do not express the ideal. The former is often ineffectual and the latter achieves its benevolent objective only at the further expenditure of blood. No recourse was had to law because there was no jurisprudence on the subject, nor was there any legal procedure to punish the offenders. Humanity could only plead at the doors of the mighty for a crumb of sympathy and a drop of compassion.

But now it has been seen that humanity need not supplicate for a Tribunal in which to proclaim its rights. Humanity need not plead for justice with sobs, tears, and piteous weeping. It has been demonstrated here that the inalienable and fundamental rights of common man need not lack for a court to proclaim them and for a marshal to execute the court's judgments. Humanity can assert itself by law. It has taken on the robe of authority.

Following the London Agreement of August 8, 1945 between the four Allied powers, 19 other nations expressed their adherence

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to that Agreement. In giving effect to the London Agreement and the Charter pursuant thereto,as well as the Moscow Declaration of October 30, 1943, the Allied Control Council formulated its Law No. 10 which treated, among other things, of crimes against humanity. Those who are indicted under this provision, however, are not responding alone to the nations which have approved the principles expressed in the London and Moscow Agreements, they are answering to humanity itself, humanity which has no political boundaries and no geographical limitations. Humanity is man itself. Humanity is the race which will go in in spite of all the fuehrers and dictators that little brains and smaller souls can elevate to platforms of tinsel poised on bastions of straw.

Crimes against humanity are acts committed in the course of wholesale and systematic violation of life and liberty. It is to be observed that insofar as international jurisdiction is concerned the concept of crimes against humanity does not apply to offenses for which the criminal code of any well-ordered State makes adequate provision. They can only come within the purview of this basic code of humanity because the State involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals.

At the VIIIth Conference for the Unification of Penal Law held on July 11, 1947 the Counselor of the Vatican defined crimes against humanity in the following language:

"The essential and inalienable rights of man cannot vary in time and space. They cannot be interpreted and limited by the social conscience of a people or a particular epoch for they are essentially immutable and eternal. Any injury.....done with the intention of extermination, mutilation or enslavement, against the life, freedom of opinion.....the moral or physical integrity of the family.....or the dignity of the human being, by reason of his opinion, his race, caste, family or profession, is a crime against humanity."

The International Military Tribunal, operating under the London Charter, declared that the Charter's provisions limited the Tribunal to consider only those crimes against humanity which were

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committed in the execution of or in connection with crimes against peace and war crimes. The Allied Control Council, in its Law No. 10, removed this limitation so that the present Tribunal has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law.

As this law is not limited to offenses committed during war, it is also not restricted as to nationality of the accused or of the victim, or to the place where committed. While the overwhelming majority of those killed in the present case were Soviet citizens, some were German nationals. A special report prepared by Einsatzgruppe A, and previously quoted in another connection, declared:

"Since December 1940 transports containing Jews had arrived at short intervals from the Reich. Of these 20,000 Jews were directed to Riga and 7,000 Jews to Minsk.....all evacuated Jews who survive the winter can be put into this camp (a part of the Riga ghetto) in the Spring. Only a small section of the Jews from the Reich is capable of working. About 70 to 80% are women and children or old people unfit for work. The death rate is rising continually also as a result of the extraordinary hard winter."
(Emphasis supplied)

Another report, already referred to, spoke of the execution of 3,500 Jews "most of whom had been sent to Minsk from Vienna,.....Bremen and Berlin."

These two instances fall clearly within Count I of the Indictment which covers, inter alia, crimes against German nationals.

Although the Nuremberg trials represent the first time that international tribunals have adjudicated crimes against humanity as an international offense, this does not, as already indicated, mean that a new offense has been added to the list of transgressions of man. Nuremberg has only demonstrated how humanity can be defended in court, and it is inconceivable that with this precedent extant, the law of humanity should ever lack for a tribunal.

Where law exists a court will rise. Thus, the court of humanity, if it may be so termed, will never adjourn. The scrapping of treaties, the incitement to rebellion, the fomenting

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of international discord, the systematic stirring up of hatred and violence between so-called ideologies, no matter to what excesses they may lead, will never close the court doors to the demands of equity and justice. It would be an admission of incapacity, in contradiction of every self-evident reality, that mankind, with intelligence and will, should be unable to maintain a tribunal holding inviolable the Law of Humanity, and, by doing so, preserve the human race itself.

Through the centuries man has been striving for a better understanding between himself and his neighbor. Each group of people through the ages has carried a stone for the building of a tower of justice, a tower to which the persecuted and the downtrodden of all lands, all races and all creeds may repair. In the Law of Humanity we behold the tower.

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Musmanno, Michael A., U.S.N.R, Military Tribunal II, Case 9: Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 112 - 116 (original mimeographed copy)

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Ken Lewis
May 1, 1998
Rev. 1.1