56 No. 77 JUSTICE concept of conspiracy, was prominently featured in the Nuremberg indictment. The conspiracy charge, though not universally supported by all the Allies, represented an early attempt to address collective criminal responsibility. To accomplish this the Nuremberg prosecutors charged defendants with participating in a common plan, a conspiracy, to commit crimes against peace, war crimes, and crimes against humanity. Yet this approach focused primarily on high level leaders, strategic level planners and decision makers, logistics enablers, and other members of the upper stratum of National Socialism. Left still unresolved were questions about how to hold accountable the thousands of mid-level and lower-level perpetrators whose actions were essential to carrying out the Final Solution, the Nazi plan of the total extermination of Europe’s Jews. Unfortunately, as the glow of victory began to further fade, so too did the spirit of Allied cooperation, especially between the USSR and the other three. The result was that only one IMT proceeding was begun and completed and as enthusiasm for continued prosecutions began to wane the Nuremberg court adjourned permanently in October 1946. Following the IMT, the individual Allied Nations assumed responsibility for subsequent prosecutions in their assigned occupation areas, the so-called national tribunals. Nevertheless, the single IMT established several foundational principles that would shape international criminal law for decades. Among the most important was the rejection of the defense of superior orders, and the affirmation of individual criminal responsibility for violations of international law. The tribunal’s charter and judgments established that individuals could be held accountable for their participation in state-sponsored atrocities, regardless of their official position. However, while Nuremberg successfully prosecuted major war criminals and established important precedents, it faced significant limitations in addressing the vast network of perpetrators who facilitated the Holocaust, often far removed from the scenes of the crimes. The question of how to address the thousands of individuals who participated in the Holocaust’s machinery without personally committing murder remained largely unresolved. Traditional criminal law frameworks, built around concepts of individual culpability and direct causation, proved inadequate for addressing bureaucratized mass murder where responsibility was diffused across many actors. The IMT began the process of altering the approach to accountability in cases of mass atrocity, a process that occurred in four phases. Four Phases of Post-Holocaust German Justice Each of the four distinct phases of the process reflected changing political realities, social attitudes, and legal philosophies. The first phase — which occurred following the adjournment of the IMT— was a period in which the Allied occupation authorities conducted war crimes trials with varying degrees of rigor. In this, the Germans did not participate as either prosecutors or judges, and seventy percent of total Holocaust war crimes prosecutions, 14,046 trials, were adjudicated in the span of less than four years, 1945-1949.4 This first period of effective prosecution established many important precedents but was limited in scope and quickly lost priority to emerging Cold War tensions. The second phase began with restoration of German sovereignty, a graduated five-year process that began in late 1949 and extended through the 1960s. During this period, a strong sense of victimhood arose among Germans who considered themselves victims of the Reich, post-conflict violence, and of Allied victor’s justice. That spirit enabled the emergence of a troubling phenomenon of lessening significantly the denazification program emplaced by the Allies. The new German government of Conrad Adenauer eased drastically the parameters for denazification which enabled many who had clearly been part of the mass murder enterprise to escape accountability. Adenauer’s Germany was anxious to move on with the rebuilding challenges and to reintegrate into the community of nations. Unlike the denazification program under the Allies, under the Adenauer government, former Nazis required significantly less evidence to declare themselves non-Nazis or, at least, as members of the party but not perpetrators of any evil. The individuals under scrutiny could swear to their relative innocence and be issued a document certifying their 4. Edith Raim, NAZI CRIMES AGAINST JEWS AND GERMAN POST-WAR JUSTICE: THE WEST GERMAN JUDICIAL SYSTEM DURING ALLIED OCCUPATION (1945-1949) 153 (De Gruyter 2015). Noteworthy in this context are the several Sovietsponsored trials conducted before the end of the war in areas liberated by the USSR push westward.
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