We are indebted to many persons who have provided invaluable assistance to us as we have written this book. Both of us are indebted to Jennifer Hammer, our editor at New York University Press, and her assistant, Constance Grady. Their comments and advice, and their selection of extremely knowledgeable reviewers who have provided us with numerous helpful suggestions, vastly improved the end product which follows in these pages. Thanks also to Dan Geist and Professor Peter Hayes for their many helpful editorial suggestions.
With respect to the chapters written by Michael Bazyler, he is grateful to his faculty assistant Mary DeVlugt and law library assistant Deborah Lipton of the Dale E. Fowler School of Law at Chapman University. Professor Marilyn Harran at the Rodgers Center for Holocaust Education at Chapman University is a superb colleague, educator, and scholar, who took time out of her busy schedule to review the manuscript and provide very useful comments. A large number of Chapman law students provided invaluable research and cite-checking assistance. They include Tamara Rider, Malka Barhodari, Alison Bollbach, Nicole Hughes, Blair Russell, and Kellyanne Gold. William Elperin, president of The “1939” Society and his wife Rosemary also provided inspiration and guidance. Last, Michael is especially thankful to his independent editor, Bonny V. Fetterman.
With respect to the chapters written by Frank Tuerkheimer, he has been enormously assisted by Cheryl O’Connor of the University of Wisconsin Law Library and Michael Roffer of the New York Law School Library. Each has provided invaluable help in obtaining the background literature, not all of which is in English, but essential to the end product. Assistant Dean Kevin Kelly of the University of Wisconsin Law School was extraordinarily helpful in sharing his knowledge of U.S. military law. He is also indebted to Eileen Dorfman and Melissa Young, law students whose assistance has been essential in finalizing his chapters. Finally, his wife, Barbara Wolfson Tuerkheimer, has been a steady and constant source of encouragement over the years it has taken to bring this book to fruition. She has shared his sense that these trials should not be forgotten because the facts they reveal cannot be consigned to oblivion.
We dedicate this book to the many prosecutors who have labored tirelessly, sometimes with emotionally wrought and shaky witnesses, sometimes with ancient documents in a foreign language, sometimes with hostile tribunals, and always with engaged and effective opponents, in an effort to bring the perpetrators of mass murder to justice. Our admiration for them is unbounded. We single out two: Murray Bernays, who died in 1970, and Benjamin Ferencz, who at age ninety-four in 2014 is still pursuing the fight against genocide. Bernays was a lawyer with the United States Army who envisaged and helped implement a comprehensive postwar effort at Nuremberg to bring to justice those responsible for the carnage of the Second Word War in Europe. Ferencz was a young lawyer on the prosecution staff at Nuremberg who carried out the Bernays idea, prosecuted the Einsatzgruppen trial covered in Chapter 6, and who, in the almost seventy years since Nuremberg, has steadfastly continued his effort to expand and apply the principles of international criminal law developed at Nuremberg to the contemporary world.
Introduction
The Holocaust: a conspiracy to murder eleven million people that succeeded in killing six million of them.1 Unlike most conspiracies, which operate in secret to avoid detection and subsequent prosecution by the state, this one operated above ground, and not just with the state’s awareness, but with the state as the driving force. There is no clearer evidence of this conspiracy to murder the Jews of Europe than Reich Marshal Hermann Göring’s directive to Reinhard Heydrich, head of the Reich Main Security Office (RSHA), dated July 31, 1941:
I hereby charge you with making all necessary preparations in regard to organizational and financial matters for bringing about a complete solution to the Jewish question in the German sphere of influence in Europe. Wherever other governmental agencies are involved, these are to cooperate with you. I charge you furthermore to send me, before long, an overall plan concerning the organizational, factual and material measures necessary for the accomplishment of the desired solution of the Jewish question.2
This directive came with the rapid advance of the German military into the Soviet Union after its June 1941 invasion, bringing the vast majority of European Jewry under German control.
The conspirators wasted no time. In short order, the four separate groups of the Nazi security organization—the SS—known as the Einsatzgruppen followed the German Army eastward and proceeded to annihilate close to one million Soviet Jews in less than one year.3 The Germans reported these murders with chilling accuracy in regular reports from the field. From killing by shooting, to asphyxiation in mobile vans where the carbon monoxide exhaust was pumped into the trucks loaded with Jewish victims, to the more elaborate killing process in the death camps, the conspiracy continued unhindered. Even as the tide of the war turned against the Germans—when the Soviets pushed the German military westward after the Battle of Stalingrad in early 1943 and American and British troops landed at Normandy in June 1944—the killings continued. The German invasion of Hungary on March 9, 1944, then subjected Hungarian Jewry, the last large Jewish community standing in Europe, to the “desired solution”—annihilation. In the ensuing ten months, more than four hundred thousand Hungarian Jews were sent to their deaths at Auschwitz, where 80 percent were gassed upon arrival. The brutality and sheer inhumanity of German excesses could not be swept under the rug of the peace that ended the war in Europe in May 1945.
At the war’s end, how were the Allies to respond to this enormous crime? Even in an ideal world, it would have been impossible to bring all the perpetrators to trial. There were too many; as the massive task of rebuilding began, they blended into the background of a Europe devastated by war. In too many cases, the witnesses had been killed. Nevertheless, an attempt was made to prosecute some of the perpetrators.
The first major trial after the war took place at Nuremberg before the International Military Tribunal (IMT) between November 1945 and October 1946. Judges from the United States, the United Kingdom, France, and the Soviet Union presided. The prosecutors had organized their evidence under difficult circumstances in postwar Germany, with its wrecked transportation and communications systems. They reviewed hundreds of thousands of documents. They synthesized different legal systems and the differing approaches of the four Allied powers, and the end product was made available in four languages: English, French, Russian, and German. While the prosecutors made mistakes,4 these are minor when one considers the amazing amount of organization that went into preparing for the trial with such limited time, and in incredibly taxing conditions. Under the circumstances, their ability to put together such a massive case as effectively as they did must rate as one of the great accomplishments in the history of criminal trials.
The focus of the IMT trial, however, was not the Jewish genocide—the crime that later came to be known as the Holocaust—for several reasons.5 First, the principal concern of the prosecutors at Nuremberg was the charge of crimes against the peace, defined in the Nuremberg Charter as “the planning, preparation, initiation, or waging of wars of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”6 After the carnage