1939, the drafters of the Nuremberg Charter felt that all steps should be taken to unambiguously affirm that the waging of aggressive war was an international crime, for which political and military leaders were not immune from prosecution. In his opening address, Justice Robert H. Jackson would refer to crimes against peace as the “supreme crime.”7
Second, at the time that the prosecutors were putting together their evidence for the IMT trial they were only beginning to appreciate the extent of the conspiracy to exterminate European Jewry. For example, it is instructive that Justice Jackson made no reference to Auschwitz in his opening address. In his memoir of the Nuremberg trials, Jackson’s assistant and successor, Telford Taylor, recalls that he knew nothing of the mass extermination of the Jews when he arrived at Nuremberg.8 While it was the legal actors who first unearthed the conspiracy, as they were combing through the vast depository of undestroyed Nazi documents to find legally admissible evidence of criminality, even they did not fully comprehend at the time what they had discovered. The term “genocide” had not yet entered the criminal vocabulary and the “Holocaust” would not take hold as the term referring specifically to the extermination of six million Jews by the Germans until two decades later.
Finally, none of the defendants at the first Nuremberg trial had hands-on responsibility for the Holocaust. Hitler and Himmler were dead; Eichmann was still at large; Reinhard Heydrich, the person directed by Hermann Göring to implement the Final Solution, had been assassinated; and his successor, Ernst Kaltenbrunner, while an IMT defendant, left the job of administering the plan to murder Europe’s Jews to his subordinates, Heinrich Mueller, Adolf Eichmann, and others. While Göring may have formally initiated the plan for the Final Solution with his directive of July 31, 1941, the bulk of Göring’s responsibilities fell under the other Nuremberg charges—crimes against the peace and war crimes—and those were understandably the focus of the case against him. When it finally came time to cross-examine Göring about the conspiracy to exterminate the Jews, he simply denied knowledge of its full scope.
To be sure, the prosecutors were quick learners, and so the conspiracy to exterminate the Jews did comprise part of the case that the prosecutors put on at Nuremberg. Count One of the indictment (titled “The Common Plan or Conspiracy”) speaks of the conspirators’ “program of relentless persecution of the Jews, designed to exterminate them” and concludes: “[I]t is conservatively estimated that 5,700,000 have disappeared, most of them deliberately put to death by the Nazi conspirators. Only remnants of the Jewish population of Europe remain.”9
At trial, the prosecutors presented considerable evidence about the mass murder of the Jews. SS General Otto Ohlendorf testified that, as a commander of an Einsatzgruppen unit, his instructions to his men were to “liquidate” all Jews they encountered, and he acknowledged responsibility for the murder of ninety thousand Jews in Ukraine. (His trial is discussed in chapter 6.) Rudolf Höss, commandant of Auschwitz, testified as to the killing of two million Jews at Auschwitz, a number since reduced to about one million Jews.
And in their summations, both the French and British prosecutors spoke about the mass murder of the Jews. Chief British prosecutor Hartley Shawcross personalized the killing process by reading from the affidavit of German engineer Hermann Graebe, who witnessed the mass execution of the Jews of Dubno, Ukraine by an Einsatz commando killing squad. Shawcross read Graebe’s account, which focused on the mass extermination of the Jews, in open court:
On October 5, 1942, when I visited the building office at Dubno, my foreman told me that in the vicinity of the site Jews from Dubno had been shot in three large pits, each about 30 meters long and 3 meters deep. About 1,500 persons had been killed daily. All the 5,000 Jews who had still been living in Dubno before the pogrom were to be liquidated. As the shooting had taken place in his presence, he was still much upset. Thereupon, I drove to the site accompanied by my foreman and saw near it great mounds of earth, about 30 meters long and 2 meters high. Several trucks stood in front of the mounds. Armed Ukrainian militia drove the people off the trucks under the supervision of an SS man. The militiamen acted as guards on the trucks and drove them to and from the pit. All these people had the regulation yellow patches on the front and back of their clothes, and thus could be recognized as Jews. My foreman and I went directly to the pits. Nobody bothered us. Now I heard rifle shots in quick succession from behind one of the earth mounds. The people who had got off the trucks—men, women, and children of all ages—had to undress upon the orders of an SS man, who carried a riding or dog whip. They had to put down their clothes in fixed places, sorted according to shoes, top clothing, and underclothing. I saw a heap of shoes of about 800 to 1,000 pairs, great piles of underlinen and clothing. Without screaming or weeping, these people undressed, stood around in family groups, kissed each other, said farewells, and waited for a sign from another SS man, who stood near the pit, also with a whip in his hand. During the fifteen minutes that I stood near I heard no complaint or plea for mercy. I watched a family of about eight persons, a man and a woman both about fifty with their children of about one, eight and ten, and two grown-up daughters of about twenty to twenty-nine. An old woman with snow-white hair was holding the one-year-old child in her arms and singing to it and tickling it. The child was cooing with delight. The couple were looking on with tears in their eyes. The father was holding the hand of a boy about ten years old and speaking to him softly; the boy was fighting his tears. The father pointed to the sky, stroked his head, and seemed to explain something to him. At that moment the SS man at the pit shouted something to his comrade. The latter counted off about twenty persons and instructed them to go behind the earth mound. Among them was the family, which I have mentioned. I well remember a girl, slim and with black hair, who, as she passed close to me pointed to herself and said “Twenty-three [years old].” I walked around the mound and found myself confronted by a tremendous grave. People were closely wedged together and lying on top of each other so that only their heads were visible. Nearly all had blood running over their shoulders from their heads. Some of the people shot were still moving. Some were lifting their arms and turning their heads to show that they were still alive. The pit was already two-thirds full. I estimated that it already contained about 1,000 people.10
It was not until fifteen years later at the Eichmann trial that the same scenario was testified to, but this time from the victim’s perspective.
The Eichmann trial in 1961–62 in Jerusalem is generally seen as the “other” Holocaust trial, if not the major Holocaust trial. Although grounded on the same legal principles that came out of Nuremberg, the formal charge against Eichmann was not the commission of “crimes against humanity” but, specifically, “crimes against the Jewish people.” Since Gideon Hausner, the Israeli attorney general, aimed to show the full scope of mass murder of the Jews, he called a Holocaust survivor from each country where Jews were murdered. Eichmann, of course, was not personally present or even directly involved in the acts that the witnesses testified to, and so much of the live testimony dealt with events with which Eichmann had little or no connection. Because the charge alleged that Eichmann, together with others, agreed to the murder of Europe’s Jews, under basic principles of conspiracy law, the conduct of others in furtherance of the underlying criminal agreement became admissible against Eichmann.
These two trials—at Nuremberg in 1945–46 and Jerusalem in 1961–62—though by far the best known, were not the only trials in which the major focus, or even a significant portion of the trial, was the mass murder of the Jews. Over the last seventy years, tens of thousands of individuals who were part of the German regime and their local collaborators in the occupied countries have been prosecuted for crimes committed during the years of German rule of occupied Europe. In somewhat sporadic and unorganized fashion, many of these trials dealt either directly or indirectly with the genocide of the Jews. A close look at some of these other Holocaust trials tells us a great deal about the implementation of the conspiracy to murder European Jewry and how various justice systems have tried to address it. While some of these trials are well known to scholars, they have been overshadowed by the Nuremberg and Eichmann trials. Because they have faded from public memory, we call them “forgotten trials of the Holocaust.”
The ten trials discussed in this book have taken place over the last seventy years in a range of countries. While separate books have been written on