On the evening of 29 November 1943, at a dinner at the Tehran Conference between ‘the Big Three’, the subject came up of how to deal with the leading Nazis after the war. Stalin provocatively proposed that there were just 50,000 who had led the Nazi war effort and that they should all be shot at the war’s end. Churchill was shocked and said that neither he nor the British public would tolerate mass executions. American President Franklin Roosevelt, trying to defuse the tension with humour, said maybe only 49,000 should be shot. His son Elliott, who was also present as military attaché, announced that the US Army would definitely support Stalin’s plan. Outraged, Churchill got up and left the table in a huff. A few minutes later, Stalin came up to him in jovial mood in an adjoining room, put his hand on his shoulder and said he had been joking all along. At this, Churchill returned to the dinner, the rest of which passed off without incident. But the whole issue of how to deal with the Nazi leaders after the war was left unresolved.
It is this debate that the new Sky Originals production Nuremberg picks up on. The war is over. In the opening scenes, Reichsmarschall Hermann Goering surrenders to an American patrol. In Washington, a Supreme Court judge, Justice Robert Jackson, argues that the Nazi leaders need to be brought to justice so the world can witness what evil they have done. But it is explained to him that the concept behind international law is that no nation has the right to try individuals of another nation in their own country, and there is no legal basis on which the Nazi leaders can be put on trial by the Allies. Jackson, however, persists, despite a widespread feeling in the US and Europe that the Nazi leaders should simply be executed and be done with. In the film, Jackson eventually comes up with the concepts of ‘waging an aggressive war’ and ‘crimes against humanity’, which become the legal basis for the trial of the Nazi leaders and of most criminal prosecutions for war crimes ever since. The Soviets agree to the trial. And the preparations for the trial and the drama of the courtroom confrontations are dramatised in epic scope in Nuremberg.
In fact, the story is rather more complex than this movie presents from its very American perspective. Philippe Sands has shown in his brilliant book East West Street that the legal concepts of both ‘crimes against humanity’ and ‘genocide’ came from two Polish Jewish lawyers, Hersch Lauterpacht and Raphael Lemkin, from Lviv. This legal framework was confirmed in the London Conference of the International Military Tribunal in the summer of 1945. Jackson argued that plotting and ‘waging an aggressive war’ should also be included. It is at this point that the narrative of Nuremberg begins.
