The Nuremberg Trial — a learning doc

The route

The Problem

Why a trial at all? Execution lists, show trials, and the argument that chose law.

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The Charter

Writing the law first: London, August 1945, and the four counts.

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The Courtroom

Why Nuremberg, who judged, who prosecuted, and the 22 men in the dock.

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The Case

Trial by document: how the prosecution proved the unprovable.

to come

The Defense

Superior orders, tu quoque, and Göring against Jackson.

to come

Judgment

Verdicts, sentences, three acquittals, and the night of 16 October 1946.

to come

The Critics

Victor’s justice? The serious objections, taken seriously.

to come

The Legacy

From the Nuremberg principles to Eichmann, The Hague, and the ICC.

to come

Why a trial at all?

Start in May 1945. Germany has surrendered unconditionally. The Third Reich — a regime that started a war costing tens of millions of lives and ran an industrial system for murdering civilians — has simply ceased to exist, and its surviving leadership is sitting in Allied custody: Göring, Ribbentrop, Keitel, Speer, and the rest.

Here is the thing to hold onto, because it is the engine of this whole module: nobody doubted these men were guilty. Not the public, not the governments, not the men themselves in some cases. The question the Allies could not agree on was not whether to punish them. It was by what procedure — and it turns out that procedure is everything. The procedure you choose is the difference between an act of vengeance and an act of judgment, and that distinction is the deepest idea in this entire topic.

So before a single lawyer walks into a courtroom, there is a fight — between the Allied capitals, and inside them — over four genuinely different answers.

Four ways to deal with captured tyrants

Option A · London’s first instinct

Shoot them

For most of the war, the British position was summary execution: the top Nazis were “outlaws” whose guilt was beyond legal process. Identify them, confirm who they are, and execute them within hours. Churchill himself argued this — a trial, he worried, would hand them a stage.

Fast, cheap, no risk of a propaganda circus
But: indistinguishable from what the Nazis did to their enemies
And it settles nothing — no record, no findings, no facts on paper

Option B · Moscow’s version

Stage a trial

Stalin, surprisingly, wanted trials — but Soviet-style trials, where the verdict is settled before the doors open. At the Tehran conference in 1943 he had proposed (perhaps half-jokingly) shooting 50,000 German officers; Churchill stormed out in protest. A Moscow-style trial is theater: the courtroom as execution paperwork.

Looks like law, works like a firing squad
The defendant’s guilt is an input, not an output
History would smell it instantly — and did, in the 1930s purge trials

Option C · The Precedent

Let Germany judge

This had actually been tried — after World War I. The Treaty of Versailles demanded war-crimes trials; the Allies eventually let Germany try its own soldiers before its own supreme court at Leipzig. It was a debacle (the black panel below tells the story), and every planner in 1945 knew it.

Respects sovereignty, avoids “victor’s justice”
But a defeated nation acquits its own heroes
Leipzig was the proof, and it poisoned the option for good

Option D · Washington’s argument

A real trial

An international court, real judges, real defense lawyers, real rules of evidence — and, crucially, a real possibility of acquittal. This was the American position, and it won. Not because it was easy: it was by far the hardest option, because it required inventing a court that had never existed to apply law that had never been written.

Slow, risky, legally awkward — and honest about it
Produces a permanent, tested record of what happened
Treats law as the thing the Nazis abandoned — and the Allies didn’t

The ghost in the room · 1919–1921

The Leipzig lesson

The Kaiser escapes

Article 227 of the Versailles Treaty arraigned Kaiser Wilhelm II for “a supreme offence against international morality and the sanctity of treaties.” He had already fled to the Netherlands — which simply refused to hand him over. He died in bed, in exile, in 1941. Lesson one: don’t declare a prosecution you cannot physically deliver.

The list shrinks

The Allies drew up a list of roughly 900 accused war criminals, including field marshals and princes. Germany refused extradition; the Allies backed down and accepted German trials of a whittled-down set of test cases. By the time court convened at Leipzig in 1921, a handful of low-level defendants remained.

The verdicts evaporate

The few convictions that were handed down came with sentences of months, not years — and some of the convicted “escaped” from custody to public celebration. German opinion treated the defendants as martyrs; Allied opinion treated the trials as a farce. Both were responses to the same underlying fact: the process wasn’t real.

What 1945 concluded

Every architect of Nuremberg carried Leipzig around like a scar. It discredited Option C completely, and it set the bar for Option D: if you hold a trial, it must be run by the Allies themselves, hold the leaders rather than scapegoat privates, and be procedurally real enough that history cannot laugh at it.

Why this matters: Leipzig is the reason “just let the courts handle it” wasn’t naive idealism’s opposite — it was the discredited option. In 1945, the cynics were the ones pointing at Leipzig. Anyone proposing a real trial had to explain why this time would be different. That burden of proof shaped everything about how Nuremberg was designed.

The fight inside Washington

The American position didn’t start as the trial. In September 1944, Treasury Secretary Henry Morgenthau put forward a plan to strip Germany of its industry and pastoralize it — and to deal with the major war criminals by firing squad, on identification. For a while Roosevelt leaned toward it.

The counterattack came from Secretary of War Henry Stimson, then in his late seventies and the most old-fashioned lawyer in the cabinet. His argument was not that the Nazis deserved mercy. It was sharper: the punishment itself should demonstrate the thing the Nazis denied their victims — law. Shooting men without trial, Stimson argued, would poison the postwar order at its root; a documented, adversarial trial would plant something permanent in its place.

Inside Stimson’s War Department, a lieutenant colonel named Murray Bernays contributed the idea that made a trial practically imaginable: charge the Nazi regime as a criminal conspiracy — a common plan — and its key organizations as criminal organizations. Why does that matter? Because the crime was twelve years long and continent-wide, committed through millions of hands. Try each atrocity separately and you would need ten thousand trials; prove the plan, and each leader’s participation in the plan, and one trial can reach the whole design. (Keep a pin in this — conspiracy becomes Count One of the indictment, and one of the trial’s most controversial features.)

Roosevelt died in April 1945 without fully settling the question. Harry Truman settled it within weeks: on 2 May 1945 he appointed Supreme Court Justice Robert H. Jackson as chief American prosecutor, with a mandate to negotiate an international tribunal with the British, French, and Soviets. The trial had won the argument. Now it just had to be invented.

The core idea: judgment is vengeance plus risk

Here is the concept this module exists to install, the one everything later builds on. What separates a judgment from an act of vengeance is not the punishment — the gallows at the end of a real trial and a summary execution kill the same man. The difference is that a real trial can come out the other way.

A court that can only convict is a firing squad with stenographers. The moment the Allies chose a real trial, they accepted a genuine, uncomfortable risk: that some of these men, prosecuted before the whole world, might be found not guilty — and would have to be released. That risk is not a bug in the design. It is the entire source of the verdict’s authority. The conviction of a man who might have been acquitted means something; the conviction of a man who never had a chance means nothing at all.

Hold onto this test, because in Module 6 it gets its payoff: when the verdicts came down in October 1946, three of the twenty-two defendants walked free — acquitted, by the victors’ own court, over furious Soviet objection. Whatever else you conclude about Nuremberg (and Module 7 will give the critics their full say), that fact is the strongest single piece of evidence that what happened in that courtroom was judgment and not theater.

Common misconception

“A trial was the obvious, inevitable choice”

Looking back through eighty years of international courts, the trial feels foreordained. It wasn’t. Summary execution was the stated preference of the British government into 1945, the Soviets wanted verdicts pre-written, and the American cabinet nearly went the same way with the Morgenthau Plan. The trial won late, narrowly, and mostly by argument — one department’s lawyers persuading one new president. Modern international justice exists because that argument happened to be won.

“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.”

Robert H. Jackson, opening statement for the prosecution — Nuremberg, 21 November 1945. This single sentence is the trial’s thesis: it names exactly the choice this module is about.

Where this leads · Module 02

So the Allies have chosen a real trial. Immediately they hit the problem that makes Nuremberg legally fascinating: under what law? There is no international criminal court, no criminal code for states, and no statute anywhere that says starting a war is a crime a person can hang for. Before anyone can be tried, four nations with three legal systems and two definitions of “fair” have to sit down in London and write the rulebook — after the crimes were committed. That document, the London Charter, and the four counts it created, is Module 2.

Prove it

Question 1 of 4

Through most of the war, what was the British government’s preferred way of dealing with the top Nazi leadership?

Churchill’s government treated the top Nazis as “outlaws” whose guilt was beyond legal process — identify and execute. The trial was originally the American position, and London came around late.

Question 2 of 4

What did the Leipzig trials of 1921 demonstrate to the planners of 1945?

Versailles let Germany judge its own: a 900-name list shrank to a handful of test cases, sentences were trivial, convicts escaped to applause. Leipzig killed the “let their courts handle it” option — the trial, if held, had to be run by the Allies and aimed at the leadership.

Question 3 of 4

Murray Bernays’s conspiracy concept mattered because it solved which practical problem?

The regime’s crimes ran through millions of hands over twelve years — case-by-case prosecution would mean thousands of trials. Charging a common plan, and each leader’s role in it, let a single proceeding reach the whole design. It became Count One.

Question 4 of 4

In this module’s core argument, what is the essential thing that separates judgment from vengeance?

A court that can only convict is a firing squad with stenographers. The risk of acquittal is what gives a conviction its meaning — and at Nuremberg the risk was real: three defendants walked free in 1946.