The Legal Bases of the Nuremberg Trial of German Leaders

Preface: The purpose of this study is to examine the legal justification for the trial held at Nuremberg, Germany, of leading German Nazis. The wisdom of the trial, its possible future effects, its fairness or unfairness are not primarily the concern of this thesis. An exhaustive study of these questions would require a much more ambitious effort than this one proposes to be. Here the question is--did there exist before the creation of the Charter of the Tribunal, recognized international law on which each of the counts of the Indictment against the Nazis could properly be based?

Early in my study I gained the impression that adequate, recognized international law existed for the charges of war crimes and crimes against humanity, but I felt that no custom nor convention existed to sustain the counts of conspiracy and crimes against peace. Therefore, I concluded that the first two counts of the Nuremberg Indictment were based on ex post facto law. As my study progressed and I read the opinions of many learned jurists and publicists and considered trends between World War I and World War II, I decided that reasonably sound bases existed for these counts also, if we bear in mind the following things: (1) until a world government is created with an adequate legislature, we must continue to depend upon custom, convention, and the crystallization of international thinking for the creation of international law; (2) a great many resolutions, a multilateral treaty and the thinking of many publicists combined in condemning aggressive war as an international crime before 1939; and (3) for custom to develop there must be a first precedent and international law must grow in the same manner as did Anglo-Saxon common law.

Since none of the accused Germans lost his life by being convicted solely on counts one or two, I am convinced that the Nuremberg trial was the fairest manner possible for dealing with the Nazi leaders.

Materials used in this study are of American and British origin and the Judgment and Opinion of the Tribunal which tried the Nazis.

Invaluable assistance has been rendered by Dr. Ruth Stephens of the University of Tennessee History and Political Science Departments. Dr. Stephens suggested the subject and aided in suggestions for collection of materials and organization. The writer is indebted to Dr. J. Wesley Hoffmann, Chairman of the History Department and Dr. S. J. Folmsbee for reading the thesis and suggesting changes.