55 Spring 2026 he Holocaust stands as one of history’s most devastating crimes of mass atrocity, a genocidal program of systematic and specific murder that singularly targeted Europe’s Jews between 1933-1945. The scale and organized nature of the crimes fundamentally challenged existing legal frameworks and necessitated the development of new approaches to criminal accountability in cases of mass atrocity. This article explores how international law evolved in response to the Holocaust to overcome the obstacles to prosecution presented by the legal status quo, changes that were manifest in later proceedings including the International Criminal Tribunals for Rwanda and the former Yugoslavia. The article further describes how that evolution influenced German legal thought post-World War II which finally enabled the junction of dedicated war crimes prosecutors with courts willing to hear the cases. A significant element of the legal climate that enabled the meeting of German prosecutors and courts was the rapidly evolving international law in the latter twentieth century. In an effort to provide prosecutorial avenues to adjudicate crimes of mass atrocity, especially in state-sponsored systematic programs of persecution, legal communities sought methods of prosecution beyond the individual accountability of the western traditions. To that end, the doctrine of Joint Criminal Enterprise (JCE) became an increasingly important influence, indirectly and from without, on German sensibilities vis-à-vis approaches to Holocaust justice from the late 1990s and beyond. In the immediate aftermath of World War II, the international community faced an unprecedented challenge. Beyond summary execution, how would Great Britain, France, the Soviet Union, and the United States, the Allied partners of World War II, bring to justice those responsible for the planned and structured murder of six million Jews and the millions of others deemed undesirable by the Nazi regime.1 The answer, after significant machinations, was a judicial proceeding jointly governed by the four Allies. To that end, the International Military Tribunal (IMT) was established in Nuremberg, Germany in 1945.2 An unprecedented legal innovation, the IMT resulted directly from the cooperative climate and a demand for accountability of crimes committed by Hitler’s regime, which was shared by the victorious Allied powers in the aftermath of the war. Established formally by the London Charter of 1945, the IMT represented the first coordinated attempt by the international community to hold individuals accountable for crimes committed on behalf of a state. The tribunal introduced three categories of crimes: crimes against peace, war crimes, and crimes against humanity. Because the concept of genocide had not yet been codified into law, the inclusion of crimes against humanity was particularly significant because the charge encompassed acts of persecution, extermination, and deportation committed against civilian populations.3 A fourth criminal charge, the Western Germany’s Journey to Holocaust Accountability and the Evolution of International Law David G. Cotter 1. Richard J. Evans, THE THIRD REICH IN POWER 67ff. (Penguin Books 2005). In the cited chapter, “Enemies of the People,” Evans identified the many groups to be targeted. Of all the groups, however, only the Jews were persistently and consistently targeted for complete annihilation. 2. Michael R. Marrus, THE NUREMBERG WAR CRIMES TRIAL, 1945-46: A DOCUMENTARY HISTORY 51-2 (Bedford/St. Martins 1997). See also TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER 1945 – 1 OCTOBER 1946, vol. 1, at 10-16 (International Military Tribunal 1947). 3. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, available at https://www.un.org/en/genocide-prevention/1948-convention. Raphael Lemkin, who coined the term “genocide” was able to insert the language into some IMT documents, but it had no legal standing until ratification of the 1948 Convention. T
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