Military justice before the Second World War
Until the second half of the XIX century, the concept of war crime didnʼt exist. Since ancient Rome, the principle of "woe to the vanquished"; — the statement of the fact that the victors can do anything. Although certain ideas about permissible and inadmissible actions in war in different nations in different eras were still there. King Richard I of England was nicknamed the Lionheart, according to one version, for his cruelty — in 1191, after the siege of Acre, he executed 2,700 captured Saracens, after not receiving a ransom for them in the desired time. Some of the kingʼs contemporaries considered such actions excessive, but formally Richard did not break any rules, so this execution did not affect anything but his reputation as a cruel man.
The possible laws of war were described in the 17th century by the Dutch lawyer Hugo Grotius in his work Three Books on the Law of War and Peace. At that time, these were theoretical reflections that were just waiting to be officially consolidated at the state level. The first formal consolidation of the customs of war in Europe happened in 1864, when the first Geneva Convention for the Improvement of the Condition of the Wounded was adopted. It addressed purely medical issues and stated that doctors and nurses were not involved in the fighting. Two documents from the Hague Conventions of 1899 and 1907 were added to this document. In general, they formulated rules for the treatment of civilians, merchant ships at sea, non-use of war gases and expansive bullets.
The First World War showed that these rules can be disregarded because there is no mechanism for punishing for their violation. In 1919, when signing the Peace of Versailles, the winning countries tried to create a punishing mechanism by adding an article to the treaty stating that the German government recognized their right to military trials over German soldiers and officers. Initially, the plans were grandiose — France and Britain even offered to put to the trial personally the former German Kaiser Wilhelm II for initiating the war. But the United States and Japan did not agree to this offer, and the Netherlands, where the Kaiser lived, refused to give him. The Peace of Versailles first put the question of responsibility for the outbreak of war in itself, but no one was punished.
At the initiative of France and Britain, a special commission of lawyers from different countries was set up to investigate German war crimes. The international tribunal was in fact not established, it was decided to try the German military in the German court in Leipzig, in the presence of international observers. Initially, the commission found 901 war criminals. Then most of them were acquitted at the stage of the investigation. Just 12 soldiers and officers appeared before the court in 1921, of which 7 more were acquitted in the process. Only 5 received different terms, but very short ones — from 6 months to 2 years in prison.
It turned out that the judges and international overseers themselves donʼt have answers to the question of how to properly classify a criminal order or its execution and who exactly to blame in such cases — the perpetrator or his commander. For example, Generals Hans von Schack and Benno Krusk were accused in a Leipzig court of having a typhus outbreak that killed 1,280 people due to poor conditions in a POW camp. But the generals proved in court that they had organized life in the camp in accordance with the orders of the high command, and therefore could not be held responsible for carrying out direct orders. The court acquitted them.
Churchill offered to shoot the Nazis, Roosevelt — to put them to trial, Stalin — to do both
During World War II, new war crimes were committed. And the countries of the anti-Hitler coalition began to consider the responsibility of Germany. This time, they decided to approach it more thoroughly and formulate the principles of the future tribunal in advance.
Punishment for Germany and its allies was first discussed in 1943 at the Moscow Conference of Foreign Ministers of the USSR, Great Britain and the United States. The parties then signed the Declaration on General Security, which provided for an international tribunal for the leaders of the Third Reich. Other war criminals, soldiers and officers, were to be tried where they committed crimes. For example, the commander of the Plaszow concentration camp, Amon Goethe, was sentenced to death in 1946 by a tribunal in Poland, where he committed his crimes. But the crimes of some Nazis were extraterritorial, they could not be tried in one country alone.
Since 1943, there have been various plans to punish Germany for war and crime. The most severe was the plan of US Treasury Secretary Henry Morgenthau. He urged President Franklin Roosevelt not to hold trials at all, but simply to blame the entire Reich population for everything. The entire German leadership and key war criminals are to be shot. And to deprive Germany itself of industry and turn it into a backward agrarian country.
The plan of US Secretary of War Henry Stimson was radically different. He believed that the tribunal over the Nazis should, on the contrary, be a new standard of law and justice for Europe and the world. By order of Stimson, the draft of such a tribunal was developed by a former lawyer, Colonel Murray Bernays. He suggested using the term "conspiracy" in accusing the Nazis. The concept of conspiracy in British and American law was used to condemn members of the mafia and other criminal groups. When it was not possible to prove the personal guilt of each member of a criminal group, it was necessary to prove the existence of their conspiracy to obtain illegal income in general. European legislation in general did not know such a mechanism. Thus, Bernays wanted to expand the issue of Nazi crimes so that the tribunal would consider their actions not only after the war, but only since 1933, when the Adolf Hitler regime was formed in Germany.
The final decision on the format of the Nazi punishment was made at the Yalta Conference in February 1945. Churchill was generally in favor of the Morgenthau plan and considered it a waste of time to judge Reich leaders. Roosevelt had previously supported Morgenthau, but by then he was hesitant and inclined to the Stimson-Bernays plan. Stalin expressed the third position: the Nazis must be tried, but also shot. That is, the Soviet leader proposed to make the courts purely theatrical, with a predetermined result, as well as the trials of "enemies of the people" in the USSR itself. As a result, the Big Three decided that the court should still be prepared.
Franklin Roosevelt died on April 12, 1945. The new US President Harry Truman has unequivocally called for a full-fledged international tribunal. The allies agreed. The tribunal was based on the principles of the Bernays plan, but expanded and specified.
Three groups of crimes at the Nuremberg tribunal
President Truman sent a group of American lawyers to Europe, led by Supreme Court Justice Robert Jackson, to talk to colleagues from France, Britain and the Soviet Union, and begin drafting the constituent documents of the future tribunal. Jackson was to become the main prosecutor on the part of the United States. He was known as a very principled lawyer and a supporter of the rule of law. For example, he was one of the few American judges who openly considered the internment of American Japanese during the war illegal and criticized the government.
On June 25, 1945, the London Conference began, at which representatives of the United States, the Soviet Union, Britain, and France discussed the statute of the future tribunal. On 8 August, delegations promulgated the Statute of the Tribunal and the agreement establishing it. They formulated three main groups of crimes for which the Nazis should be tried.
- Crimes against peace. There were problems with this point, because the Soviet delegation demanded to add that only acts of aggression committed by Germany and its allies were meant. Robert Jackson logically saw this as an attempt to close the issue of Soviet aggression against, for example, Finland in 1939. In the end, the Soviet delegation agreed to a neutral wording. By the way, in justifying the term "aggressive war", Jackson referred to the work of Hugo Grotius of the XVII century. He argued that the difference between military aggression and defensive war was obvious long before World War II.
- War crimes. Despite the fact that the term "conspiracy" from the Bernays plan was absent from the statute, his spirit influenced the wording. Jackson succeeded in convincing other delegates that not only the soldier and his commander were guilty of war crimes, but also all "leaders, organizers, instigators and accomplices."
- Crimes against humanity. A separate group of such crimes had to be singled out, because not all Nazi crimes could be called military. For example, crimes against Jews who had German citizenship and lived in Germany itself. In addition, this point made it possible to judge those who never approached the front and did not take up arms. The tribunal sentenced the propagandist Julius Streicher, editor-in-chief of the Sturmovik newspaper, to death for inciting the extermination of Jews. Although it has not been proven that Streicher killed someone himself.
The principles of the Nuremberg tribunal at that time were revolutionary. It turned out that the internal affairs of the country and its laws are not only its internal affairs. Most Nazi criminals acted in accordance with the current legislation of the Third Reich and carried out the orders of the legitimate government. But according to the new approach, international law is higher than national law, so compliance with domestic laws can also be criminal. It was also stated that the execution of the order does not release a person from responsibility, if the conscious choice of the executor was actually possible. That is, a person who carried out a criminal order because a gun was put to her temple could be innocent. And if a person carried out such an order without direct threats to himself, having a choice, he still committed a crime. Similarly, being in any official position or performing official duties does not release a person from responsibility for his actions.
The issue of collective responsibility
One of the most contentious issues faced by delegations was the collective responsibility of Nazi organizations. The statute of the tribunal gave him the right to recognize an organization as criminal — that is, to consider a crime the very fact of membership in it. Such organizations included the SS, SA, SD, and Gestapo, the NSDAP leadership, the Imperial Cabinet, the General Staff, and the Wehrmacht High Command. The charges against the SA and the Wehrmacht command were then dropped.
But in practice, the tribunal did not automatically consider all members of these organizations criminals. Membership led to an investigation into the person and deprived him of the presumption of innocence — he himself had to prove that while in the ranks, for example, the SS, did not commit crimes. And theoretically it could be justified. The judges of the tribunal eventually decided not to abandon the principle of criminal law, according to which legal liability arises only for personal actions and omissions.
Despite such thorough preparations for the tribunal, most Germans, according to Robert Jackson, still considered the whole trial a triumph of winners over losers, in which there are no rules. The most famous defendant, Hermann Goering, was of the same opinion. He repeatedly stated during the trial that all this was just a farce.
Jackson himself came to the conclusion that, unfortunately, there could be no other form of conviction for crimes against peace and humanity than the trial of the vanquished. But he also formulated the main task of the tribunal, which was to influence any regime in any country in the future: "We must make it clear to the Germans that the case for which their former leaders are on trial is not that they lost war, and in the fact that they started it.