University of Tennessee, Knoxville TRACE: Tennessee Research and Creative Exchange Masters Theses Graduate School 8-1947 The Legal Bases of the Nuremberg Trial of German Leaders Richard Harrison Doughty Follow this and additional works at: https://trace.tennessee.edu/utk_gradthes Part of the History Commons Recommended Citation Doughty, Richard Harrison, "The Legal Bases of the Nuremberg Trial of German Leaders. " Master's Thesis, University of Tennessee, 1947. https://trace.tennessee.edu/utk_gradthes/2985 This Thesis is brought to you for free and open access by the Graduate School at TRACE: Tennessee Research and Creative Exchange. It has been accepted for inclusion in Masters Theses by an authorized administrator of TRACE: Tennessee Research and Creative Exchange. For more information, please contact [email protected]. To the Graduate Council: I am submitting herewith a thesis written by Richard Harrison Doughty entitled "The Legal Bases of the Nuremberg Trial of German Leaders." I have examined the final electronic copy of this thesis for form and content and recommend that it be accepted in partial fulfillment of the requirements for the degree of Master of Arts, with a major in History. Ruth Stephens, Major Professor We have read this thesis and recommend its acceptance: J. Wesley Hoffmann, S. J. Folmsbee Accepted for the Council: Carolyn R. Hodges Vice Provost and Dean of the Graduate School (Original signatures are on file with official studentecor r ds.) July 25, 1947 To the Committee on Gradua te Study : I am submitting to lou a thesis wr itten by Richard Harrison Doughty entitled The Legal Bases of the Nuremberg Trial of German Leaders." I recommend that it be accepted for nine quarter hours credit in partial fulfillment of the requirements for the degree of Master of Arts, wi th a ma jor in History. We have read this thesis an� re commend its acceptance : / ,._..(\�'.. ,;:r.d<>-r-= �•' t:..�·z14==;Ck - 4·'�4'.?e. Accepted for the Committee THE LEGAL BAS ES OF THE NUREMB ERG TRIAL OF GERMAN LEADE RS A THE SIS Subm itted to The Committee on Gra dua te Stu d� o:t The University of Tenness ee in Pa rtial Fu lf illment of the Requ irements for the degree of Mas ter of Arts ...... ... 4 .. ... •• •HI e . .. ... .. .... ... " " . .... .... by Richard Ha rris on Doug ht� Au gus t 1947 PREFACE The purpose of this study is to examine the legal justi­ fica tion for the trial held at Nuremberg, Germany, of the leading German Nazis. The wisdom of the trial, its possible future effects, its fairness or unfairness are not primarily the con­ cern of this thesis. An exhaustive study of these questions would require a much more ambitious effort than this one pr oposes to be. Here the question is--did there exist before the creation of the Charter of the Tribunal , recogni zed international law on wh ich each of the counts of the Indictment against the Nazis could properly be based? Early in my study I ga ined the impression that adequate, recogni zed interna tional law existed for the charges of war crimes and crimes against humani ty, but I felt that no custom nor convention existed to sustain the counts or conspiracy and crimes against peace. Therefore, I concluded that the firs t two counts of the Nuremberg Indictment were based on !! 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 reasonab ly sound bases existed for these counts also , if we bear in mind the following things : (1) until a world govern- ment is created with an adequate legislature, we must continue to depend upon custom , convention, and the crystallization of interna tional thinking for the creation of international law; iii (2) a great many resolutions , a multilateral treaty and the think ing of many pub li ci sts combi ned in condemn ing aggressive war as an international crime before 1939 ; an d (3) for custom to develop there must be a first prec edent and in terna tional law must grow in the same mann er as di d the Anglo-Saxon common law. Sinc e none of the ac c used Germans lost hi s li fe by being convic ted solely on co unts one or two , I am convi nc ed that the Nuremberg trial was the fairest mann er possible for dea ling wi th the Naz i leaders . Materials us ed in this study are of American and British origin and the Judgmen t and Op inion of the Tribu nal whic h tried the Nazis. In va luab le assistance has been rendered by Dr. Ruth Stephens of the University of Tennessee Hi story and Politica l Sc ience Departments. Dr. Stephens suggested the subj ec t an d ai ded in suggestions for coll ec tion of materials and organi­ zation. The writer is indeb ted to Dr. J. Wesley Hoffmann, Chairman of the History Dep artment and Dr. s. J. Folmsbee for reading the thesis and suggesting changes. Richard Harrison Dough ty TABLE OF CONTENTS CHAPTER PAGE I PREC EDENTS FOR NUREMBERG • • • • • • • • • • • 1 Cases ar ising from the American Revolut ion and the Civil War --Proposals to try German leaders after World War I--The Leipzig Trials . II PRELUDE TO NUREMBERG ••••••• •••• • • • 32 De velopme nt of the movement to try German leaders at the conclus ion or World War II-­ Format ion of the Un ited Nat ions War Cr ime s Commission--The Mo scow Dec larat ion--Ap­ po intment of Robert H. Jackson as Chief Pr osecutor for the Un ited States--The London Agreement and Charter of the Inter­ national Mi litary Tribunal . III THE LEGAL BASES FOR NUREMBERG • • • • • • • • • 66 The Nuremberg Indictme nt--The legality of count one--the charge of the � post facto natur� of the law ot count two--The law governing war crimes and crime s against humanity--The doctrines of immuni ty ot he ads ot states and superior orders-­ Responsibility ot each defendant--Fair­ ness ot the trial. IV NUREMBERG • • • • • • • • • • • • • • • • • • .104 Comp osition of the Tribunal--The Trial-­ The Judgment and Op inion or the Tr ibunal-- · The Sentences . V CONCLUSIONS DRAWN FROM NUREMBERG • • • • • • • 17 3 Conclusive pr oof of Nazi guilt--Attitude s of the Big Four--Nuremberg, an American show-­ Fairne ss or the trial--The problem ot eli­ mi�ating war--Effects ot the trial on the German pe ople . BIBLIOGRAPHY • • • • • • • • • • • • • • • • • • • • • 181 CHAPTER I PRECEDENTS FOR NUREMBERG There is wide divergence of opinion as to the legality of the trial at Nuremberg of the Nazi leaders. For the first time the leaders of a defeated, aggr essor state have been called to the prisoner's do ck to answer charges for acts committed in connection with war. History ha s no precedent for such a trial and it is difficult to deduce from int erna tional law as it existed in 1939 principles on wh ich some of the charges can be based. There are precedents in the history of the United States for the war crimes count of the Nuremberg indictment . During the Ame rican Revolut ion a trial developed from an incident connected wi th the Battle ·of Saratoga. A certain Colone l David Henley, the officer in charge of guarding the surrendered troops of General Burgoyne at Cambri dge , Massachusetts, was court­ martialed for attacking a British soldier, Sergeant Reeves. Colonel Henley had become incensed at some insulting remarks of Reeves and "pinked the breast" of the Britisher. General Burgoyne demanded tha t Henley be brought to trial, although there were no well-established precedents or laws of war covering this so-called crime. Henley's only defense was a brief wr itten statement, in which he did not recognize the legality of the charges made by Burgoyne. He 2 was not "conscious ot having failed in his duty to his country under trying circumstances" and was "pertectly willing to accept the decision of the court" so conscious was he ot having "acted throughout with humanity. " The trial ended with He nley 's acquittal. General Heath 1n charge ot the court­ martial expressed a wish that th1 s trial would not establish 1 a precedent for the ruture . Out ot the War Between the States, there arose three oases--Coleman� Tennessee, �.� Johnson, and Freeland ·XL Williams , which were also concerned with war crime s. The first case was concerned with a crlmi nal act, and the other two cases with civil ac tions. In Coleman� Tennessee, a Union soldier, Coleman, was charged w1th hav ing committed murder in Tennessee, wh ile serv­ ing there during the rebellion. By a court-martial he was convicted and sentenced to de ath. For some reason the sentence never was carried into effect . After Tennessee was restored to statehood , Coleman was indicted and brought to trial for the same offense. To the indictment he pleaded his conviction before the court-martial, but the plea was over-ruled and he was tried, convicted, and sentenced to death. On writ ot error the case was brought before the United States Supreme 1 Samuel c. Wi lliams, •colonel David Henley," East Tennessee Historical Society's Publications, XVIII , 1946 , pp. 4-7. Court which held, "The State Court had no right to try h1m �or the of�ense, as he, at the time of the action, was not amenable to its laws." Thus the United States Supreme Court declared that officers and soldiers of the Army of the United States were not subject to the laws of the enemy, nor amenable to his tribunals for offenses committed by them during the war.