"To the Best of My Ability" is part of an ongoing series commemorating the 75th Anniversary of the End of World War II made possible by The Nierenberg Family.

Archival Audio - Robert H. Jackson’s Opening Statement at Nuremberg

The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. 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.

This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 15 more, to utilize international law.

Dr. Kristen Burton

On November 20, 1945, the Trial of Major War Criminals began in Nuremberg, Germany. The location was intentionally selected for both  its symbolic value as it was the site for Hitler’s gigantic Nazi rallies, and because its Palace of Justice was one of only a few locations in Germany largely undamaged from the war. The first of a series of military tribunals to occur after World War II, the Allied forces held the trials under newly established international law and laws of war. Though much of the format followed traditional American and British law, decisions were to be made by a panel of judges rather than a judge and jury, and each of the four Allied nations--the US, Great Britain, France, and the USSR--  supplied a main judge and an alternate. The trial was the first of its kind, and set a precedent for future war crimes trials.

Not all of the Allied nations agreed with the concept of such tribunals. At the Yalta Conference in February 1945, British Prime Minister Winston Churchill expressed Great Britain’s belief that summary executions -- being executions that take place immediately without granting the accused a trial -- or brief court martial proceedings would suffice. Soviet leader Joseph Stalin favored the idea of tribunals, and thought conducting trials would be an excellent anti-Nazi propaganda opportunity.

Truman and his administration were also in favor of the tribunals, and Secretary of War Henry Stimson drafted a plan that would serve as the basis for discussions with the other Allied leaders. Ultimately, the four nations came to an agreement and in the fall of 1945, the trials were scheduled to commence at Nuremberg.

Archival Audio - Truman Taking the Oath of Office

“I Harry S. Truman do solemnly swear to faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States, so help me God.”

Dr. Kristen Burton

You’re listening to “To the Best of My Ability: The Postwar Years” from The National WWII Museum in New Orleans. This is episode 1, “Doomed Men on Gallows Hang.” I’m your host, Dr. Kristen Burton. This week, 24 high ranking Nazi officials are put on trial for atrocities committed during World War II.

Archival Audio - Newsreel: Nazis Face War Crimes Trials

[Upbeat Music]

The greatest war crimes trial in modern history proceeds at Nuremberg with Hermann Goering, Rudolf Hess, and ex-Foreign Minister von Ribbentrop playing starring roles. Fritz von Papen and sighs in court also await the day of judgement worldwide news service and a core of court reporters record thousands of words of testimony and accusation while transoceanic telephones and cables are flooded with dispatches detailing the progress of this dramatic aftermath of global war. The wheels of justice grinding slowly on seemed to bore big stuff. The entire Hitler dynasty is charted so that the blame can be squarely placed on the guilty men who's evil plotting brought on years of world chaos and caused the deaths of millions of innocent persons. Could it be a slight case of ropeburn, Mr. Goering?

Dr. Kristen Burton

Joining us this week is Dr. Jason Dawsey, research historian in the Institute for the Study of War and Democracy at The National WWII Museum. Our story begins back in Washington, as Truman makes the decision that Supreme Court justice Robert H.Jackson will serve as the United States chief prosecutor at Nuremberg.

Dr. Jason Dawsey

Yes, so he goes through kind of a process of deciding who is the figure, I think, that the best represents the American case. And so in this case, he looks to the highest court in the land, which is the United States Supreme Court. And Jackson is a person who has been a kind of key figure in Democratic politics at that point for almost a decade. And he's thought of as a person who has tremendous energy. He's a great public speaker. And he had already been working, you know, thinking about a team very early on. And so he is the logical choice for the Truman administration.

Dr. Kristen Burton

Earlier that spring, Jackson had spoken before the American Society of International Law in Washington, advocating for a war crimes tribunal to be conducted in order to put the highest ranking Nazi officials on trial. For Jackson, who was speaking while Allied victory was imminent but not yet a reality, the war that took so many millions of lives needed to end with a civilized proceeding in a court of law that would determine the guilt or innocence of the perpetrators. Jackson’s ardent support for the tribunals was what made him an obvious choice to Truman as he was deciding who to select to be the United States’ chief prosecutor.

Dr. Jason Dawsey

So these prosecutors are all selected really on the basis of their kind of legal, juridical knowledge, and thought to be the figures that could best represent each of the four countries. And they were making their cases. And I thought I would just mention one more thing about the chief prosecutors. It's really a division of labor they agree on, and in coordination with the judges, where the United States will take the lead in investigating issues about the general conspiracy, which is one of the key things that come out of the tribunal, that there was a conspiracy at the highest levels of leadership in the Third Reich. And they will look at—they were really kind of focused on this. Whereas the British will focus on crimes against peace and on crimes on the high seas. The French focus on crimes of war, crimes against humanity in Western Europe. And the Soviets will do likewise in Eastern Europe. So there's a division of labor that's reached with the judges and chief prosecutors. And so what we have in terms of all of the evidence that's mustered and the cases that are made really comes out of this division of labor.

Dr. Kristen Burton

Among the most notable facing charges included Herman Goering, the highest ranking Nazi official to be under indictment; Wilhelm Frick, who co-authored the Nuremberg race laws; Alfred Jodl, who had signed orders for summary executions of Allied commandos and Soviet commissars; and deputy fuhrer Rudolf Hess. 

The indictments were set to begin in October of 1945, and defendants faced the possibility of four charges: participation in a common plan or conspiracy for the accomplishment of a crime against peace; planning, initiating, and waging wars of aggression and other crimes against peace; participating in war crimes; and crimes against humanity.

Dr. Jason Dawsey

This is a really interesting part of the trial, even before it gets started. It’s—it’s the indictment process. They literally—in fact, Jackson in his opening address refers to hundreds of tons of documents that had been assembled and had been worked through, literally, since late in the war. You have to think that this is October, November 1945 when this is taking place. The indictment comes down on October 6, and his address is basically six weeks later. So they had had to do this very rapidly. And what they settled on is essentially looking at six organizations in the Third Reich that they're going to charge with criminality, for organizations that are literally criminal. I'm just going to mention those very briefly, the SS, the security gathering wing of the SS, the SD, the Gestapo, the SA, the Storm Troopers, in addition to the kind of leadership core of the Nazi Party, and the general staff and high command of the German Armed Forces. So these six organizations. There are 24 individuals that are charged. And of the 24, 21 of them will actually stand trial.

So you might wonder, “What about the other three?” One of those individuals was Martin Bormann, who was part of Hitler's inner circle, head of the party chancellery. He was not in custody and so not available for actually being in the dock at Nuremberg with the others. Bormann, in fact, was later confirmed, was killed trying to get out of Berlin as the Red Army was taking the city in the spring of 1945. A second person that was not brought—never stood trial was Robert Ley, who was the head of the German Labor Front. And he committed suicide before the proceedings really started. He was in custody but took his own life. And then the third was Gustav Krupp von Bohlen und Halbach. He is—at one time had been the leading figure in the famous Krupp family, known for producing munitions and armaments. And they were certainly interested in charging him with aiding the German war effort. But he was—he was not ever brought to trial because of ill health. So there are 21 of them that do stand trial.

Dr. Kristen Burton

Jackson’s opening statement set the tone for the trials. Assembled in the courtroom that day were the four teams of prosecutors, the international tribunal, media from all over the world, and 21 of the defendants. In the weeks and months leading up to the trial, Jackson had worked on the draft of his opening statement. He aimed to find the right tone -- somber, restrained, and focused on the aggressive war-making that constituted these crimes against humanity.

Dr. Jason Dawsey

Chief Prosecutor Jackson's opening address, November 21, 1945, at the Palace of Justice in Nuremberg is really one of the more remarkable statements in modern legal history. It does go on for some seven hours. For people out there who want to read the entire thing, The Robert Jackson Center has the entire piece transcribed there, so you can work through it. But as part of the division of labor that I just mentioned, Jackson really wants to present the case about the historic nature of the trial, that this really is something new, where the kind of war leaders of a nation are going to be put on trial for crimes committed by that nation during wartime. So he wants to talk about the fact that they really are—these are leaders. These are policymakers. They are planners. These are not the little guys who were stuck implementing orders. That these are to the best of their ability, to the best of the research that could be done, these are chief people, you know, in the Nazi regime, connected to the Nazi regime that plan and prosecute this criminal war. So that's one of the things he wanted to draw attention to. He clearly distinguished in his address between three groups, top people in the Nazi party, conservatives who cooperated with the Nazi regime, and then central figures in the military establishment in Germany.

These were the kind of—this was an alliance, as far as Jackson was concerned, that had really carried this war off. And he wanted to make sure that they were not conflated, these figures, with the German people as such. The German nation as such was not on trial. It was these chief figures. And in fact, in the address, he wants to point out how the German people were themselves subjugated. That's a very controversial claim to this day. But he wanted to separate the German people from the regime and people who were working with the regime. And so that's one of the things he really wanted to do to make the case for. And also, just to talk about the fact that this was—this trial was really about the best in the Western legal tradition, that these individuals were getting a trial, something that they did not afford millions of their victims. So this was a case for him about reason, about law, about justice in its highest form that the victor nations were working to put into practice. And he was very well aware of the fact that this is going to set an enormous precedent for future trials.

Archival Audio - Robert H. Jackson’s Opening Statement at Nuremberg

There is no count in the indictment that cannot be proved by books and records. The Germans were always meticulous record keepers and these defendants had their share of the teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films, you will see their own conduct and hear their own voices as these defendants reenact for you some of the events in the course of the conspiracy. We would also make clear that we have no purpose to incriminate the whole German people.

Dr. Kristen Burton

As prosecutors planned for the trial, Jackson came to the conclusion that the best evidence the prosecution could present against the Nazis were the records they kept themselves. Though some records had been accidentally destroyed during Allied bombing and the Germans had begun destroying more towards the end of the war, there were still millions of documents that proved the Nazi plan to murder all European Jews. The prosecutors submitted nearly 3,000 tons of records, including documents, film footage, photographs, and looted items, during the course of the trial. This documentation provided irrefutable proof that these crimes were deliberate, calculated, and were consistent with the criteria for crimes against humanity.

Notably, most of the eyewitness testimony came not from survivors but from the perpetrators.

Dr. Jason Dawsey

Some of these witnesses, it's interesting that—we could do a whole podcast, obviously, on the dozens of witnesses that are brought up. Many of these themselves will be high-level perpetrators who were tried later on. And just to mention a few of them, Rudolf Höss, who was the commandant at Auschwitz, is one of the figures who is brought up. He will provide testimony about Nazi racial policy, about what actually happens at Auschwitz, but he himself is not in the dock there, but provides some very important testimony. Then he will be extradited to Poland, where he is tried for what he does on Polish soil and is executed in 1947. One can also mention Eric Von Dem Bach Zelewski, who had—in August 1944, he was the one given the mission of crushing the Warsaw Uprising that broke out at the beginning of August 1944. This is all part, again, about crimes against humanity, crimes—war crimes that are committed in Eastern Europe. So these are figures that are brought in and provide testimony before they themselves are often tried. One could also mention Otto Ohlendorf, who commanded an Einsatzgruppen in the southern Soviet Union, responsible probably for the deaths of some 90000 Jews. And Ohlendorf will be tried in a successor trial. In fact, he’s one of the last people executed by the United States in 1951. So many of these high-level perpetrators, they're not in the dock. There is a focus on the leadership positions, but it's not that they themselves will escape justice, or at least many of them don't. They're just tried later.

I think one thing we should note is that people will often assume that the Holocaust was a central part of the Nuremberg proceedings. There’re certainly—there is evidence gathered. There is discussion of crimes committed by the Nazi regime against Jews, about mass killing. Yet, the Holocaust is not a central part of these proceedings. That will really come out later. It's worth noting here, there's very little in the way of victim testimony. That's also something that you see later on.

Dr. Kristen Burton

For eleven months, Jackson and the other prosecutors tried the case of their lives, and on October 1, 1946, the tribunal found all but three of the defendants guilty. Sentencing was announced the same day, and the world learned the fate of these doomed men.

Dr. Jason Dawsey

So there is huge discussion about sentences, about what kinds of sentences will be meted out. In fact, this had gone back to arguments preceding the trials themselves. The British at one point, prior to the formation of the tribunal, they had favored summary executions. Once major Nazi war criminals had been identified, they should be executed. So this—there have been arguments of this sort for some time. There was concern, of course, about the issue of precedent. What does it mean here about what we're going to do in terms of putting these people to death? Is that too severe or are we making martyrs out of people? These are arguments that were all had, but at the end of the day, they settled on death sentences for 12 of the 21 that are tried, and those are carried out in October 1946.

Dr. Kristen Burton

On October 16, ten of history’s most heinous war criminals were hanged. Goering managed to escape execution by committing suicide via poison the night before his sentence was to be carried out. Bormann, who remained missing, was tried in absentia. After the death sentences were carried out, some debate arose over the method of execution.

Dr. Jason Dawsey

These individuals are hanged and the execution is overseen by an American, a master sergeant, John Woods, who had 15 years of experience as an executioner. These individuals are brought in and they're there are set of gallows erected, and they're there hanged to successively, and the bodies are photographed. And there's a controversy that ensues soon thereafter about the humaneness of the executions. That Woods and not really provided for a long enough drop. They were not—the actual ropes were not tied well enough. So these were—these were very difficult issues that were debated in the American press, also in the press in Europe about whether or not these were carried out in the most humane manner. And that really got to the spirit of the proceedings, that this was about justice being done. And so for many people afterward, there were a lot of questions that were raised about were the executions handled properly.

They're put into wooden coffins, they're photographed, and they're taken into a crematorium near Munich, cremated, and reportedly, the ashes are then dropped in the Isar River nearby. That way, there can be no possibility of these becoming a kind of pilgrimage site for Nazis or neo-Nazis.

Dr. Kristen Burton

While the Trial of Major War Criminals is the most well-known, additional trials continued to be held at Nuremberg into the 1950s. Ben Ferencz, a Harvard Law graduate and World War II veteran who served under General Patton, was chosen to investigate Nazi war crimes for the US Army’s War Crimes Branch. Ferencz was tasked with gathering evidence, which often involved visiting recently-liberated concentration camps, for the express purpose of putting these Nazi criminals on trial. Soon after his honorable discharge from the Army in 1945, he was recruited  to join the team working on the Nuremberg tribunals, most famously working to gather evidence against the Einsatzgruppen -- roving death squads that targeted Jews, Roma, suspected communists, and Soviet intellectuals, across Europe. At the age of just 27, he was appointed chief prosecutor in what the Associated Press would call “the biggest murder trial in history.”

Oral History - Benjamin Ferencz

I had 3000 Einsatzgruppen members who every day went out and shot as many Jews as they could, and gypsies as well. I tried 22. I convicted 22. Thirteen were sentenced to death. Four of them were actually executed. The rest of them got out after a few years. The other 3000, nothing ever happened to them. Every day, they committed mass murder. Where is justice? It was only symbolic. It was a beginning. 

Dr. Kristen Burton

In addition to the Einsatzgruppen, prosecutors tried doctors who stood accused of conducting medical experiments on Holocaust victims and prisoners of war, lawyers and judges who faced charges of blindly implementing racial laws and eugenics progams, industialists who were charged with crimes related to profiting from the use of prisoner slave labor, and military officers who were indicted for atrocities against concentration camp prisoners. The additional trials resulted in 5,025 convictions; 806 of those convicted were sentenced to death. 

The Nuremberg Trials created a crucial precedent for the subsequent prosecution of war crimes in Japan, which would begin in April 1946. The trials also directly led to the establishment of the United Nations Genocide Convention and Universal Declaration of Human Rights in 1948, as well as the Geneva Convention on the Laws and Customs of War in 1949. The Nuremberg Trials sent a message to the world that a country cannot commit crimes against humanity and escape prosecution, and through the law, justice could be found.

Oral History - Benjamin Ferencz

So the law is again the answer. You can’t go back and say, okay, Afghanistan did it. Crime is committed by people, not by entities. Find out who are the people responsible. In my proposal here, it’s only the leaders that are accountable. The sheep who go and carry out the killings and all that—I was a combat soldier. I know what it’s like to be in war. And I was not responsible for the war, but I was asked to kill people I didn’t even know.  And they were trying to kill me. They didn’t even know me.

But the people who let it happen, and the genocides in our time after the Holocaust as well, that you had in Rwanda and that you have elsewhere going on—this is caused by individuals making the wrong decisions, seeking power, seeking prestige or seeking to transform the world in their image. We can’t tolerate that. We must condemn it as the most supreme international crime, as it was held to be in Nuremberg. 

Archival Audio - Robert H. Jackson’s Closing Arguments

Credibility is one of the main issues of this trial only those who have failed to learn the bitter lesson of the last decade and doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same now is against such a background that these defendants now ask this tribunal to say that they are not guilty of planning executing or conspiring to commit this long list of crimes and wrongs they stand before the record of this Tribunal has blood-stained roster stood by the body of his slain King he begged of the widow as they beg of you say I slew them not and the Queen replied then say they were not slain but dead they are if you were to say of these men that they are not guilty would be a true there has been no war that there are no slayings, that there has been no crime.

Dr. Kristen Burton

In our next episode, “Aliyah Bet,” thousands of European Jewish refugees attempt to clandestinely immigrate to British-controlled Palestine in an effort to escape a wave of pogroms and growing anti-Semitic threats, only to be captured and incarcerated on the island of Cyprus.

From The National WWII Museum, I’m Dr. Kristen Burton. This episode was written by executive producer Gemma R. Birnbaum. Media production manager Jeremy Burson did the sound mixing. Archival and oral history audio is courtesy of the National Archives and the United States Holocaust Memorial Museum Steven Spielberg Film and Video Archive.

If you like this podcast, please rate and review us on Apple Podcasts. Reviews are important to help others find the series. "To the Best of My Ability" is part of an ongoing series of programs commemorating the 75th Anniversary of the End of World War II made possible by The Nierenberg Family.