The background, jurisdictional basis and the procedural and evidential fairness of the trial of German major war criminals, Nuremberg, 1945-1946

Ever since the signing of the agreement in London on 8 August 1945 by representatives of the British, French, American and Russian Governments ('London agreement'), followed by the presentation to the International Military Tribunal sitting at Berlin on 18 October 1945 of the indictment against twenty four of the most prominent German military and political leaders, and the proceedings at Nuremberg which culminated in the judgement delivered on 30 September and 1 October 1946, there has been widespread and persistent controversy among lawyers, academics, scholars, historians and others, who have found ''Nuremberg Law\ a fascinating research subject. The principal issue was and remains whether or not the trials conducted pursuant to the Charter annexed to the London Agreement had a sound jurisdictional basis. For the most part the views publicly expressed by writers on the issue have been firm and diametrically opposed. It will be submitted that much of the literature whether it expresses concurring or dissenting views with respect to the validity of 'Nuremberg Law' places too much emphasis on the judgment of the Tribunal and not enough on the three basic documents. The London Agreement and Charter were a code which prescribed provisions designed to ensure so far as it was practicable to do so a fair trial before the world of German major war criminals following the virtually undisputed acts of atrocity and inhumanity of a dimension never previously experienced. The International Military Tribunal went beyond the constituent documents and propounded a number of obiter propositions. Thereby the Tribunal itself sparked much of the controversy which the trial engendered. A further object of the study is to demonstrate that many of the critics of 'Nuremberg Law' ignored the facts that the German Reich had surrendered unconditionally to the major Allied Powers and that in reaching agreement on the terms of the London Agreement and Charter they were exercising sovereign legislative authority analogous to that of the Parliament of the state of Israel when it enacted the Nazis and Nazi Collaborators (Punishment) Law of 1950. The study also includes in as much detail as is practicable an assessment of the procedural and evidential fairness of the Nuremberg trial. The object of such an evaluation is to demonstrate from the perspective of a trial lawyer that in such an emotive criminal trial as that at Nuremberg courtroom 'atmosphere' and rulings on questions of evidence and procedure were more fundamental in ensuring a fair trial than dogmatic assertions concerning legal principles such as the ex post facto doctrine and the maxim of nullum crimen nulla poena sine leae. The basic fact will always remain that the London Agreement and Charter were paramount and binding."