The Biggest Murder Trial in History

Benjamin B. Ferencz

“The Einsatzgruppen Case” opened in the main courtroom of the partially restored Palace of Justice in the partially destroyed city of Nuremberg, Germany. Twenty-two somber defendants, closely guarded by American soldiers, entered the paneled chamber via a lift that took them from the prison below the courtroom directly into the dock. These very ordinary looking men were Hitler’s eager executioners accused of “the murder of more than one million persons, tortures, atrocities, and other inhumane acts.” Arranged before them sat rows of former Nazi Party members chosen by the prisoners as their defense counsel. To their right stood tables reserved for members of the prosecution. Behind them were rows of visitors of varied nationalities who had come to see justice in action. Facing the accused was a raised tribune for the three American judges clad in black robes. Translators were poised for the novel rendition of simultaneous translation into the earphones at every seat. The trial was about to begin. The Associated Press called it “The biggest murder trial in history.”

As I was preparing my opening statement, there was never any doubt in my mind that all of the defendants deserved to be convicted. Nearly 200 contemporaneous secret reports, backed up by dozens of affidavits given by the accused themselves when they were first arrested, were incontrovertible. At the same time, I was keenly aware that there was no way for the scales of justice to balance the murder of more than a million innocent human beings against the lives of two dozen of their executioners. It was my hope that the trial would serve a more useful and enduring purpose; that it might somehow help to deter the repetition of such horrors in the future. I was determined to do whatever I could to help lay a foundation for a more humane world than the one that had indelibly traumatized me during World War Two.

When Presiding Judge Michael A. Musmanno called upon the prosecution to make its Opening Statement, I began by noting that it was “with sorrow and with hope” that we were about to disclose the deliberate slaughter that was the tragic fulfillment of the Nazi program of intolerance and arrogance. Vengeance was not our goal, nor did we seek merely a just retribution. The victims had been killed solely because they did not share the race or ideology of their killers. We asked the Court to affirm the legal right of all human beings to live in peace and dignity, regardless of their race or creed. “The case we present is a plea of humanity to law.” That theme, of trying to use international law for the protection of the most fundamental rights of human beings everywhere, has guided me throughout my life.

The Opening Statement for the Prosecution that detailed the crimes of each defendant had been carefully prepared by the EG team and approved by General Taylor. The genocide perpetrated against Jews and Gypsies had been crimes against humanity and war crimes in violation of existing international law. We promised to show that every man in the dock committed those horrendous crimes with full knowledge and intent. I concluded, “The defendants in the dock were the cruel executioners whose terror wrote the blackest page in human history. Death was their tool and life their toy. If these men be immune, then law has lost its meaning and man must live in fear.” Little did I realize that these words spoken in the Nuremberg courthouse in September 1947 would resonate across the world again half a century later. They were quoted by Professor Antonio Cassese, President of the new UN special Tribunals for crimes in Yugoslavia and Rwanda, in his September 1997 annual report to the United Nations. I must admit that I was deeply touched that the words I had uttered as a young man of 27 had not been completely lost in the wind.

The Defense Counsel took their turns in making Opening Statements on behalf of each Nazi client. Whatever arguments could conceivably be made or invented were put forth. Defendants challenged the authenticity of their own official secret reports. They denied that atrocities had been committed. If abuses had occurred, it was not while they were in command. Besides, killing all those people, who were enemies of the Reich, was quite legal—it was self-defense against Bolshevism. Those “eliminated” were partisans who had been convicted by German military courts. Of course, they never used the term “murder;” that would be crude. Jews were “resettled,” or “eliminated,” or “liquidated,” or simply, “the Jewish problem was solved.” Whatever euphemism was used, the conclusion was always the same: the Jews were all killed. The same applied to the Gypsies. The judges listened attentively. Presiding Judge Musmanno announced: “The Prosecution may now proceed with its case.”

I did not intend to call a single witness. I knew that every survivor of a concentration camp would be eager to testify that any one of the defendants was responsible for the murder of his or her family. But I also knew that witness testimony can be fallible, and I did not have to risk it. I would rely upon the captured official German documents to prove the guilt of each defendant. A typical EG Report, for example, said, “In the city of Minsk, about 10,000 Jews were liquidated on 28 and 29 July (1941), 6,500 of whom were Russian Jews—mainly old people, women, and children—the remainder consisted of Jews unfit for work….” We knew which unit made the report and who was in command. And we had hundreds of such statements, including totals for each unit that added up to more than a million executions. When the report said only that the area was “cleansed of all Jews” and no numbers were given, I took a count of only one. I believed in being very fair to the accused, especially since I had over a million more murders to hang around their necks. Despite constant intrusions by defense counsel objecting to the translation or some other technicality, the Prosecution submitted its evidence and rested its case after two days. I suppose that the Guinness Book of World Records might have noted it as the fastest prosecution in a trial of such magnitude. The next move was up to the defendants.