1 For this matter, as well as for a partial (ratione temporis) digest of jurisprudence, an indispensable source of information is The History of the United Nations War Crimes Commission and the Development of the Laws of War published by the Commission itself (London, 1948).

2 Judgment, Cmd. 6964, at 39.

3 Occasionally reference is made to the Murray C. Bernays Collection (University of Wyoming). Referring to a letter in these files, Smith notes that “as late as 1949, when the panorama of the wartime holocaust was visible to all, Bernays, whose father was Jewish, made the incredible assertion that most of the anti-Jewish atrocities had been committed ‘before the war’” (p. 26).

4 Robinson, Jacob, “The IMT and the Holocaust — Some Legal Reflections” (1972) 7 Is.L.R. 1.CrossRefGoogle Scholar

5 As had been envisaged by another ally — and as anticipated by those who chose suicide, thereby depriving themselves of any other way to justify their policy: e.g., Hitler, Himmler, Goebbels, Ley …

6 ‘United Nations’ here refers to those nations which had signed the Declaration of 1 January 1942 on the Cooperative War Effort (47 States in all, including the last four — Egypt, Saudi Arabia, Lebanon, Syria — who had signed on 27 February and 1 March 1945, respectively).

7 Discussed in Robinson, op. cit. supra n. 4.

8 Their choice was Lord Justice Sir Geoffrey Lawrence (later Lord Oaksey), as a matter of political convenience (p. 4) but also as a matter of common sense, considering that he was the only one among the four main judges to have had court room practice as a judge. Two alternates — Sir William Norman Birkett and John J. Parker — were judges of higher courts. The other members were either University teachers or career administrators with legal training and practice.

9 In the present context the characterization of the trial as ‘political’ relates to our assigning it to the complex of ‘political coexistence’ of States in their quality of political entities. It is the same framework in which the Paris Pact of 1928 is a centre-piece of the Judgment. We are very far indeed from that reading which holds the trial to have been political in the sense of having had for its purpose, the advancement of the interests of the victor States irrespective of considerations of justice and due process of law. Contentions of that kind have no foundation either in fact or law. An example of this ‘political’ nature will be found in the manner in which the Anschluss of Austria had been dealt with (p. 116); it felt the doors open to the claim, constantly advanced at Vienna 1945, that Austria's status 1938–1945 was that of an occupatio bellica … As Tončić-Sorinj admits, it is but in 1942 (Churchill's statement of 18 February) that the process of recognition of Austria as part of Germany, was reversed.

10 For documentation, see Germany's Master Plan — The Story of Industrial Offensive, published some months earlier by J. Borkin and C.A. Welsh, officials of the U.S. Dept. of Justice and of the Office of Price Administration with the help of the Antitrust Division and various other offices, although “it should also be stated that this book does not necessarily constitute the views of the said offices. The introduction to the book is written by Thurman Arnold, an Assistant Attorney General, who holds the record — 230 — of antitrust cases instituted, many of which included German firms.

11 The reference is to Lord Chancellor Simon “who had brought along his own plan for executing the top Nazi leaders without trial” (p. 29). Ibid., on the attitudes of Churchill, Eden, etc.

12 Stimson is another of the lawyers here mentioned to have “made part of his legal reputation in an antitrust conspiracy case” (p. 31); but the more important personal experience was the doctrine of non-recognition elaborated by Stimson in 1931 upon the Japanese conquests on the Asian mainland.

13 What makes the reservations of the Assistant Attorney General [Wechsler] so significant is that he later served as legal adviser to the American judges during most of the Nuremberg trial. Of even greater consequence, of course, is the fact that Attorney General Biddle … was to become the senior American member at the Nuremberg Tribunal. Obviously, the doubts that Wechsler and Biddle harboured about conspiracy and the prosecution of group crime were to play a major role in the shaping of the Nuremberg Judgment (p. 33).

14 This is the title of a comprehensive history by Lucy S. Dawidowicz (New York, 1975).

15 Lador-Lederer, , “International Penal Sanctions for Violations of Human Rights” in (1974) 4 Israel Yearbook on Human Rights 89 ff.Google Scholar

16 Cmd 6964, p. 43.

17 The main reference is to the distinction between ‘act’ and ‘activity’ (an ongoing process), illustrated by a comparison between a single act of aggression with that protracted period during which European Jewry was physically exterminated in thousands of ways (not even all can be technically termed ‘acts’, because thousands were driven to suicide or were deprived of medical treatment) in a thousand places, the gas chambers dealing only with the residual cases. This distinction makes it necessary to distinguish between conspiracy for dolosive collusion (for crimes against Peace) and conspiracy for dolosive coordination of policy and collaboration in its execution (for crimes of genocide and economic warfare). As a consequence of avoiding this analysis, the Judgment is based on a historiographial description of ‘acts’, with an incidental evaluation of defence pleas of a specific character (e.g. Doenitz, Schacht), but not on a story of conspiracies, as part of the German political and governmental machinery. (The Section ‘Measures of Re-armament’ covers three out of 130 pages).

18 One may compare — in order to test this optique — the Wilhelmstrasse case with the Eichmann case, the common feature being the fact that the officials in question, whether big or small cogs, were known as not having held the murder instrument in their own hands, but, sitting at their desks, to have caused it to be operated. (The German terminology is ‘befohlen’ and ‘veranlasst’). Counsel for defence made the best out of it. To no avail. Use and non-use of the probatory force of the Wannsee protocol (NG-2586) appears to be part of this complex; it was produced first in the Wilhelmstrasse case.

19 Fisher is reported to have “made short work of the prosecution's assertion that the Nazi's antisemitic programme had been carried out in order to destroy domestic opposition to the aggressive war plans. The antisemitic programme was ‘a blind unreasoning hatred’ that had originated ‘from Hitler's own disordered mind’, Fisher concluded, and it had nothing to do with preparations for aggressive war”. Is it necessary to add that Counsel appears to have grossly erred?!

20 This obviously left out of consideration the conspiracy to sabotage the Peace Treaty of 1919, although the Tribunal was aware of it (Cmd 6964, p. 11). “Washington's hope to develop conspiracy to a degree that would condemn the whole Nazi system was to be never held to be a serious possibility during the Tribunal's deliberations” (p. 133).

21 One may interpret Smith's report, on how Biddle had applied for Wechsler's ‘considered opinion’, that the latter had endorsed the Bernays formula, and that, accordingly, “the counts charging conspiracy to commit War Crimes and Crimes Against Humanity should definitely be jettisoned” (p. 134). While Nikitchenko was “opposed to the inclusion of any suggestion that a grand Nazi conspiracy might not have existed”. the most extreme opposite view was held by Donnedieu de Vabres: “… in the final form of the Judgment, the Biddle-Wechsler compromise is a short three-page section tucked away in the middle of the document and labelled Paraph V: ‘The Law as to Common Plan or Conspiracy’ (Cmd. 6964, pp. 42–44, but see also pp. 64ff.). The story goes on, ibid. The crucial dictum, p. 44, reads: “The Tribunal will disregard the charges in Count One that the defendants conspired to commit war crimes and crimes against humanity, and will consider only the common plan to prepare, initiate and wage aggressive war” — a way to put to nought that part of Art. 6 of the Charter which provides that the conspirators against Peace are ipso facto “responsible for all acts performed by any persons in execution of such plan”.

22 See this writer's Capitalismo mondiale e cartelli tedeschi tra le due guerre (Torino, 1959)Google Scholar, which is a succinct history of the international relations of German Big Business, particularly with American partners. The problem obtained full coverage in the United States, partly in Senatorial Committee hearings, partly as background information provided by experts engaged in research and prosecution.

23 Martin, J.S., All Honorable Men (Boston, 1950) 12.Google Scholar

24 Senate, U.S., Mobilization Hearings Pt. 16, p. 1975.Google Scholar

25 Ugolovnaya Otvetstvenost Gitlerovtsev. None less than Vishinsky prepared the English translation, Hitlerite Responsibility under Criminal Law (London, 1945).

26 How much intelligence had been collected even during the war may be gathered from a publication, February 1943, by the Information Department of the prestigious Royal Institute of International Affairs, under the heading Occupied Europe — German Exploitation and its Post-war Consequences.

27 G.A. Finch and Quincy Wright in (1947) 41 A.J.I.L. — two papers casting doubt on the propriety of IMT jurisdictional assignments. Their views are in part echoed by Davidson, Eugene, The Trials of the Germans (New York, 1966) 13.Google Scholar The point of congruence is found in the — critical — mention that International Law, as developed in the period of Imperialism, was providing war with legal safeguards. (This writer wrote in 1940, still in Croatia, in the same sense). This reference requires, for balance, that mention be made of the anti-imperialist tradition in the United States itself, as initiated by the Monroe Doctrine, 1823. As well known, Germany — under the Kaiser as well as under Hitler — acted politically in a manner which put into question whether, as required by the Doctrine, she was ready to forego intervention in the Western Hemisphere. In 1941 Roosevelt intervened against the Colombial — German financed and managed — airline SCADTA because of the proximity of its airbases to the Canal of Panama.

28 Sasuly, R., IG-Farben (New York, 1947).Google Scholar

29 The matter is, in fact, a comedy of errors: the original U.S. suggestion was to put Alfried Krupp in the dock, but Jackson corrected it to read Gustav Krupp: “… the U.S. forces”. writes Smith (p. 68) “had apparently not discriminated carefully enough between the various Krupps”. (Would you believe it!). But “by mid-November it was obvious to all that Gustav Krupp was a senile old man whose mind could control neither his thoughts nor his bladder” (p. 78). The Tribunal ruled that Gustav Krupp's case be separated; proposals made to ‘substitute’ Alfried for Gustav were rejected. Smith does not report how the ‘amendments’ had been formulated, i.e. whether the suggestion had been made to extend the indictment so as to include Alfried Krupp. Nor is it known what kind of evidence had been prepared, nor to whom it related.

30 “Nuremberg in Retrospect” (1974) 13 International Problems (Tel Aviv) 186.

31 Ibid. The tentative defendants were: Alfried Krupp (sponsored by all four participants), two IG-Farben directors, Hermann Schmitz and Georg von Schnitzler (on U.S.-proposal), Kurt von Schroeder, a banker (on British proposal), Herman Röchling, an industrialist (on French proposal). This choice shows that this time the intention was to go farther back than September 1937, at least to Hitler's ascent to power. The indictment of the IG-Farben people, of Krupp and Röchling would have led to the sabotage of the demilitarization clauses of the Peace Treaty of 1919. Another topic to come up would have been spoliation of property, owned by Jews prior to September 1939.

32 All these documents are reprinted in Taylor's, TelfordFinal Report to the Secretary of the Army on the Nürnberg Trials under Control Council Law, No. 10 (Washington, 1949).Google Scholar

33 Op. cit. supra n. 22, at 373 ff.

34 This approach echoes the views of the Attorney General of 5 January 1945, who believed that the problem of prosecution of “subordinate criminals” can be dealt with before “very many courts” (p. 33).

35 What delay of the Krupp trial had meant, may be gathered from William Manchester's massive reportage, The Arms of Krupp (1968) where the point is made how some crucial witnesses (for the prosecution) “went underground” (p. 706), and that even Berthold Krapp failed “to find people who had known Alfried when he was making major decisions—none of them seemed to be in Germany any more” (p. 711); Berthold's views of the trial were such that, after a compliment to the “top Americans”, he found that “the fire in the prosecution staff came from German Jews [and who] … were acting from hate. They made the trial political“. Manchester, who recorded this statement, adds “to this day Essen remains convinced that Alfried was the victim of vindictive, embittered Juden” (p. 712).

36 While the Agreement itself is between the two Governments, Protocols Nos. 1 and 2, which are attached to it, are signed by the Government of FRG and by representatives of the Conference on Material Claims against Germany, forming the basis for the eventual compensation procedure. Cf., a collection of documents, Vogel, R., ed., The German Path to Israel (London, 1969).Google Scholar

37 The reference is, in fact, to their moral inferiority. Blue Series IV, Trial of Major War Criminals before the IMT, Official text (Nuremberg, 1947–9) 482. Speeches by Himmler, July 1942 and October 1943 are quoted in the Judgment, Cmd 6964, p. 52. See also docs. NO- 1908, NO- 2921; doc. R-135 contains also a report of 18 June 1943 to Alfred Rosenberg, the Minister in charge of the Ostgebiete, in which the reporter, Lohse, speculates on the possible effects of “such occurrences” should they become known abroad; but then, he adds, they might have no effect at all since people would refuse to believe them.

38 Cmd 6964, p. 48. Compare this with the following: On 20 January 1942 the Wannsee conference was held, resulting in the adoption of the Endlösung. Three months later, 29 April, a letter was despatched by the German Red Cross to the International Committee of the Red Cross, which is in an ICRC publication, summarized as follows: “The German Red Cross informs the ICRC that it has been unable to obtain the information requested concerning non-Aryans moved from occupied territories; the competent authorities have refused to give any information concerning them. The German Red Cross therefore requests the ICRC henceforth to send it no more inquiries which it is not in a position to answer. In future, the German Red Cross will be able to make inquiries only regarding non-Aryans of foreign nationality who are on German territory”. (Documents relating to the Work of the ICRC for the Benefit of Civilian Detainees in German Concentration Camps, 1939–1945 (Geneva, 1975) 37). It will be noted that non-Aryans of German or Austrian nationality (on whom a German Staatsangehörigkeit had compulsorily been conferred by a Decree of 3 July 1938, RGB I, p. 190) had never been included in attempts at protection—a triumph of Positive Law.

39 As reported by Smith (p. 48), as late as the Summer of 1945 a personality as highly placed as Sir Maxwell Fyfe “… announced his perception, as revealing a heretofore unsuspected truth, that the Maidanek concentration camp ‘could only have been run with the approval of the German Government”: indeed, “… like their American counterparts, the British also revealed an amazing ignorance about the systematic nature of Nazi atrocities”. Although Biddle had had some practice with German cartelist conspiratorial practices, he is nevertheless reported as having “scrawled question beside Adolf Eichmann's name in an early draft of the Judgment—‘Who was he?” (p. 115).

40 Lador-Lederer, , “Refugee Care—the Jewish Case” (1977) 7 Israel Yearbook on Human Rights (Tel Aviv) 77ff.Google Scholar

41 Hausner, G., Justice in Jerusalem (1966).Google Scholar

42 Kempner, R.M.W., Eichmann und Komplizen (Zürich, 1961)Google Scholarpassim.

43 The matter, kept underwater for some time, surfaced in 1956, as Jacob Robinson pointed out, in a German autonomous legislative act: as ‘Veranlassung’, as per Art. 43(2) BEG; it is a norm on remedy, not on penalization.

44 The Holocaust: The Nuremberg Evidence, Part One: Documents (Jerusalem, 1976).

45 The second session of the UN General Assembly, on 21 November 1947 adopted Res. 177 (II) calling on its International Law Commission to formulate “the principles of international law recognized in the Charter of the Nuremberg Tribunal” and their interpretation by the Tribunal. To this end, the Secretary-General submitted a Memorandum (Sales No. 1949, V. 7), and the Commission, at its second session, adopted a set of seven Principles and reported it back to the General Assembly, which took note of it. For text and commentary see (1950) 2 ILC Yearbook.

46 On 13 January 1942 eight Governments-in-Exile and the Free French Committee met in what came to be known as the St. James’ Conference; a Declaration was issued branding the reign of terror in German-occupied territories, the mass expulsions, the execution of hostages and the massacres. The warnings were reiterated on 21 July 1942, 17 December 1942, 1 November 1943 (Declaration on German Atrocities, by the participants to the Moscow Conference).

47 Para. 11, i.f.; text in (1968) 37 International Law Reports (London). The law referred to is the Nazi and Nazi Collaborators (Punishment) Law, 1950, (4 L.S.I. 154).

48 To this point the said Judgment quotes Grotius, De Jure Belli ac Pacis, book 2, chap. 20: “It must also be known that kings … may demand that punishment be imposed not only for wrongs committed against them or their subjects—but also for all such wrongs as do not specifically touch them, but violate in extreme form the law of nature or the law of nations, in relation to any person”: “sed in quibusvis personis jus naturae aut gentium immaniter violantibus”.

49 Para. 12 of the above-quoted Judgment: “Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes— international law is, in the absence of an International Court, in need of the judicial and legislative organs of every country to give effect to its criminal interdictions and to bring the criminals to trial. The jurisdiction to try crimes under international law is universal”.