Prosecuting genocide before the Genocide Convention: Raphael Lemkin and the Nuremberg Trials, 1945–1949

Abstract

Between 1945 and 1949, American, British, French and Soviet prosecutors, indicted and tried approximately 207 former Nazis for war crimes and crimes against humanity in what has come to be called collectively, ‘The Nuremberg Trials’. This article explores the place of genocide in these trials. It examines the extent to which Raphael Lemkin influenced the Nuremberg prosecutors to incorporate genocide into the indictments, how the crime was prosecuted in the courtroom and, ultimately, how it was understood by the court in their judgments. Although there were thirteen separate trials at Nuremberg, this article focuses mainly on one of these, the SS–Einsatzgruppen trial of 1947–48, in which twenty-two high-ranking SS officers were tried for crimes against humanity. The SS–Einsatzgruppen were the vanguard of the ‘Final Solution’. As ideological soldiers of the Third Reich they had killed one million civilians, mainly Jews, between June 1941 and July 1943, clear evidence of genocide according to Lemkin's definition of the crime that was circulating in Nuremberg at the time. Even though ‘genocide’ had been articulated when this trial began, the Nuremberg prosecutors did not fully employ it at trial. Ultimately, this article explores the tension between the meaning of genocide and its practical application in the post-war courtrooms of Nuremberg.