The Winners Are Judging

The organisers of the Nuremberg Trials in a relatively short time managed to solve a complex legal conundrum. They were able to formulate an international criminal procedure code, enclosed in the main documents of the tribunal - the Charter and Rules of Procedure - and in the procedural decisions of the court. The task was complicated by the fact that the Allied powers all had different national legal systems. Lawyer Sergei Miroshnichenko, a researcher of international law, talks about how the Allied victors attempted to reconcile their conflicting legal concepts, found a common legal language and devised a workable procedure for the trial.

Great Britain and the United States observe the principles of the Anglo-Saxon legal system. In it, the main role in the course of the criminal process is played by the parties as represented by the lawyers for the prosecution and defence. They collect evidence, question witnesses, and try to convince the court or the jury of their line of argument. The judge's role is a rather passive one, deciding what punishment the defendant deserves if he or she should be found guilty. At the same time, the judge has the right to determine independently the order in accordance with which the case will be considered. The USSR and France follow the principles of the continental legal system. Here the judge is the pivotal figure of the court process. The meeting begins with the prosecution presenting an indictment with all the accompanying case evidence. Then the defendants are asked whether they admit their guilt, after which both they and the witnesses are interrogated. After the arguments have been heard, the last pleas of the defendants are heard and the court brings in a verdict. At the same time, the court, as well as the prosecution and defence, work within clear boundaries established by the criminal procedure legislation.

In the beginning, the organisers of the trial considered trying to determine which of the two procedures would be more suited to an international tribunal. But pretty quickly, they agreed that it was worth taking the best of both. As a result, a balance was struck between the norms of the Anglo-Saxon and the continental systems. The tribunal procedure was born out of a synthesis of the two. The trial began with the announcement of a detailed indictment, followed by the presentation of evidence for the prosecution, after which evidence for the defence was presented, as is customary on the continent. At the same time, the tribunal made extensive use of the right provided by the Anglo-Saxon system to formulate procedural rules already in the course of the actual trial. Witnesses were also interrogated according to the Anglo-Saxon method: first, direct interrogation was carried out by the party that called the witness, with subsequent cross-examination by the opposite party, and after that - repeated interrogation on issues that had arisen during the cross-examination. This method helped to get maximum information out of each witness.

For example, the defendant Hermann Wilhelm Göring was interrogated by a lawyer for the defence for a week and, similarly, for a full week by prosecutors. During the interrogation for the defence, neither the president of the judicial group, British judge Geoffrey Lawrence, nor the prosecution intervened. However, when it came to the motives for retaliatory operations against the resistance movement in France, US chief prosecutor Robert H. Jackson raised the objection that punitive measures could not be justified by the legal doctrine of reprisals. The chairman heard views on the issue from the prosecutor and defence counsel, as well as the German law professor Franz Exner, Counsel for Defendant Alfred Jodl. This is a manifestation of the characteristic features of the Anglo-Saxon system - the right of a judge to deviate from the procedural order and accept as a stated position the opinions of authorities in the field of law. When the prosecution completed their interrogation of Göring, his defence lawyer tried to interrogate him again to draw some general conclusions. However, the initiative was duly thwarted by the tribunal, which stated that re-interrogation could only be carried out on issues that arose during cross-examination.

The gathering and presentation of evidence for the prosecution both before and during the trial were equally entrusted to both parties. The prosecution focused on incriminating circumstances, the defence, in turn, sought to identify circumstances mitigating guilt or refuting the prosecution's arguments. This was in line with the Anglo-Saxon system, where the opposing sides are often referred to as “combatants” and which does not recognise the preliminary investigation as an independent stage of the criminal process.

The procedural rules gave the tribunal the power to reject evidence or witness statements if deemed irrelevant. The Tribunal accepted state documents of the Third Reich, as well as accepting documents of competent state bodies appointed in the prescribed manner to investigate war crimes and crimes against humanity. This applied to materials presented by the Extraordinary State Commission (CHGK) of the USSR, the United Nations Commission for the Investigation of War Crimes, government reports from Belgium, Holland, Greece, Norway, Yugoslavia, and Poland.

The tribunal followed the issue preclusion principle in the sense acknowledged in the continental legal system, that is, it unconditionally accepted as evidence the judicial acts of the countries organising the tribunal that had already entered into legal force.

Because of the fact that the tribunal, besides cases of individual defendants, considered the issue of declaring criminal a number of organisations in Nazi Germany, which included hundreds of thousands of members, many disputes arose over the institution of commissioners entrusted with collecting and evaluating evidence outside the courtroom. This method is characteristic of Anglo-Saxon law, whereas, in continental law, the entire case is heard in open sessions. Agreeing to compromise, the two sides appointed commissioners to interrogate only those witnesses who physically could not be summoned to the tribunal or whose testimony could be presented in the form of an affidavit (written testimony given under oath). The very use of affidavits is a typical element of Anglo-Saxon law, whereas continental law uses interrogation protocols. The difference is that an affidavit can be obtained by a notary or a lawyer and is a handwritten statement by the witness, containing facts known to the aforementioned witness, and the interrogation is carried out only by the investigating authorities. Several thousand affidavits were presented to the tribunal as evidence, the most famous being the affidavit of Wilhelm Gustav Keitel, a Gestapo officer to whom Otto Adolf Eichmann once boasted that he had been involved in the extermination of six million Jews. The affidavits were predominantly used by the defence – more extensively than the testimony of witnesses.

The continental tradition relies primarily on legislative acts as a source of law, whereas the Anglo-Saxon method uses the concept of judicial precedent. In this sense, the Nuremberg trials largely followed the Anglo-Saxon system: in their argumentation, the parties repeatedly referred to precedents.

As already noted, the tribunal was the first of its kind in the history of international law; it gave birth to the procedural rule that guided its participants. Sometimes the courtroom witnessed disputes pertaining to the order in which evidence should be presented, and whether it was possible to hear a previously unannounced witness. The tribunal resolved these issues directly at the trial.

Subsequent international criminal tribunals made extensive use of the trailblazing legacy of the Nuremberg Trials - in particular, the wording of the corpus delicti (body of crime), including the definition of genocide. These formulations have since entered both national legislation and the Statute of the International Criminal Court. Further development of procedural rules followed the continental system, growing more complex over time. For example, the Statute of the Nuremberg Tribunal states that the trial must be held within a short time frame. However,  the International Tribunals for Rwanda and former Yugoslavia, as well as the International Criminal Court, do not impose a time limit on either the prosecutors or the judicial investigation.

Prepared by Daniil Sidorov