Second, the problem of holding individuals responsible for the crimes of a government. The Hague Convention clearly holds signatory powers responsible for adherence to the provisions of the charter but nowhere are individuals said to be culpable. The prosecution avoided this issue by arguing that the "crimes against humanity" were carried out in a centrally controlled manner and that those accused were an essential link between the orders and their ultimate realization. Essentially, the charge was "conspiracy" and the accused were significant parties to that conspiracy.
Third, there was the overwhelming difficulty of obtaining documentary evidence. In the first place, Hitler's style of administration was to let it be known what his wishes and intentions were and allow his subordinates, who undoubtedly feared the consequences of disappointing the Fuehrer, create a plan of implementation.
In the meeting of the German Defense Council help on May 5, 1933, Wilhelm Keitel, Hitler's Military Chief of Staff, presiding, the members were instructed that:
"No document must be lost since otherwise the enemy propaganda would make use of it. Matters communicated orally cannot be proven; they can be denied by us in Geneva"
However, the Germans were not as thorough at destroying incriminating evidence as they were at other tasks. By the time the researchers were finished, thirteen large volumes of documentary evidence had been gathered.
A fourth issue, the "higher command" issue, proved to be a very difficult one. In almost every case, the defendants who appeared before the International Military Tribunal could rightly claim that they were following orders from superiors -- often directly from Hitler himself. Likewise, they could legitimately argue that orders they gave to those under their command were issued in obedience to Hitler of one of his top officers. Hitler was, after all, the dictator of Germany politically and Supreme Commander of the Armed Forces. However, the Tribunal's Charter, Article 8, is very clear with regard to the Tribunal's position on this argument:
"The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that Justice so requires." in Telford Taylor, The Anatomy of the Nuremberg Trials, New York: Alfred Knopf, 1992: Appendix A, p.648.
Finally, the defendants could rightfully claim, and Goering did so frequently, that the Allied forces committed some of the same atrocities for which they were being charged. Allied bombing of non-military and unprotected German cities (and Japanese cities) brought untold injury and death to civilian populations. But, it was not the Allied officers who were under indictment for war crimes and another person's, or nation's, guilt does not decrease or diminish the guilt of another person or nation.
The indictment which served as the basis for the trial and for charging the defendants contained four counts:
In the first Trial which convened on November 20, 1945, there were a total of 22 defendants named in the indictment. Originally, 24 were named in the indictment. One, Robert Ley, leader of the German Labor Front which suppressed and replaced existing labor unions in Germany after Hitler's takeover in 1933, committed suicide before the indictment could be served. A second, Gustav Krupp, was bedridden and senile at the time of the indictment. There was substantial debate and disagreement between the British and the Americans as to whether the aging Gustav or the younger Alfried Krupp should be the defendant. Neither was named for the final dock of defendants.
Before identifying the defendants, it should be pointed out that there were four who did not face trial but who would certainly have done so: Hitler, Himmler, Goebbels and Heydrich. Hitler and Joseph Goebbels committed suicide in Hitler's bunker on April 30, 1945, as the Red Army was about to march into Berlin. About two weeks later, Heinrich Himmler, SS Head and principal architect of the concentration camp system bit into a cyanide capsule after being captured by the British. Reinhard Heydrich, head of the SD, leader of the Einsatzgruppen forces and principal actor in the Wannsee Conference, was assassinated by Czech agents in 1942. Several others such as Adolph Eichmann, Franz Stangl, Klaus Barbie and Josef Mengele fled the country and escaped arrest. They were later extradited from their hiding places and prosecuted.
Still, there are some remarkable, and inexplicable, omissions from the list of defendants. Dr. Christian Wirth, head of the <1>Euthanasie Programme and pioneer in the development of gas chambers at Belzek, Viktor Brack, Dr. Hans Ritter, Rudolf Hoess, Marshall Philippe Petain, leader of the Vichy regime in France, and scores of others were omitted from the indictment.
Two important questions need to be addressed. First, how were the defendants selected for inclusion in the indictment? The conclusion of the war and the surrender of the German army delivered thousands of military personnel into the hands of allied forced. By 1943, Murray Bernays had already compiled a list of "major war criminals" which contained 122 names. And, of course each of the signatory nations had its own list. Some names, such as Goering, Hans Frank, Seyss-Inquart, etc. were on everyone's list. The British wanted to try Hitler and Himmler in absentia even though they were already dead. They also had reservations about Hess due to his unstable state of mind.
After extensive negotiations, when the Tribunal opened its proceedings on November 20, 1945, the dock held 22 defendants.