The Freytag – The Three Acquittals – Nuremberg 1946–2026

Eighty years after the Nuremberg verdicts: Why a court only gains credibility where it does not convict

A Monday at the Palace of Justice

There are sentences that are chilling in their repetition. On the afternoon of October 1, 1946, the same phrase is pronounced twelve times in Courtroom 600 of the Nuremberg Palace of Justice: The court sentences the defendant to death by hanging on the counts for which he has been found guilty. Eleven men are brought forward individually; one—Martin Bormann—is not present at all. The tribunal’s president, the Briton Geoffrey Lawrence, reads the sentences without raising his voice. Verdicts of world-historical significance are rarely spectacles; usually, they are administrative acts that make history.

The day before—a Monday—the court had addressed the legal foundations and the specific sets of charges; the guilty verdicts followed on Tuesday morning at 9:30, and the sentences after the lunch break. Eighty years have passed since then, and anyone living here in Franconia needs no calendar to know it: The city bears the date like a scar—one that is no longer visible, yet is felt when the weather turns.

Nuremberg is usually remembered for the twelve death sentences. On this Friday, however, I wish to speak of the three acquittals, for it is these that transform a victors' tribunal into a genuine court of law. The path there leads via a banker, a diplomat, and a broadcaster—through Heidelberg and Basel—and ultimately, it must be revealed, to The Hague.

Twelve, seven, three

The arithmetic of the verdict is quickly told. Twenty-four men had been indicted; Robert Ley hanged himself in his cell in October 1945, and Gustav Krupp was declared unfit to stand trial. Of the twenty-two who remained—Bormann was tried in absentia—twelve were sentenced to death, three to life imprisonment, and four to prison terms ranging from ten to twenty years; three were acquitted. Hermann Göring escaped the noose by taking poison the night before the execution; the other ten were hanged in Nuremberg Prison on October 16. The court declared the leadership corps of the NSDAP, the Gestapo, the Security Service (SD), and the SS to be criminal organizations; the SA, the Reich Cabinet, the General Staff, and the High Command of the Wehrmacht were exempted from this designation.

That all this took place in Nuremberg was neither coincidence nor mere cynicism, but a mixture of both. The Palace of Justice on Fürther Straße had largely survived the bombing raids, whereas the Old Town had lain in ruins since January 2, 1945; a prison was attached to the complex, and the courtroom was sufficiently large. Moreover, the city of the Reich Party Rallies—where the racial laws had been proclaimed in 1935—offered history a dramatic twist that no director could have staged better. Franconia provided the backdrop for both triumph and reckoning.

These are the statistics of severity, and they prove little. A court that hands down nothing but death sentences is merely an execution squad that keeps minutes. A trial becomes interesting where it hesitates.

The Banker, the Diplomat, the Broadcaster

Hjalmar Schacht was President of the Reichsbank and Minister of Economics—the financier of German rearmament; Franz von Papen was the man who paved the way for Hitler’s rise to power in 1933, later serving as ambassador to Vienna and Ankara; Hans Fritzsche was a department head in the Ministry of Propaganda whose voice on the radio was more familiar than his name. All three were acquitted. The Soviet judge, Iona Nikitchenko, dissented—just as he had dissented regarding the life sentence for Rudolf Hess, which he considered too lenient.

The scene that followed had a tragi-comic quality. The acquitted men appeared smiling before the press—Schacht, the Associated Press correspondent reported, was as combative as ever—yet they spent the night back in their cells because no transport could be arranged. That same day, Bavarian Minister-President Wilhelm Hoegner announced that any of them remaining in the American zone would face a denazification tribunal; this meant several years in a labor camp. The German justice system was thus stricter than the international court—a fact that appears surprisingly rarely in later narratives about "victor's justice."

I do not say this to whitewash the three men. As President of the Reichsbank, Schacht had helped found the Bank for International Settlements in Basel—an institution whose role from those years to the present day continues to occupy historians. Yet the acquittal was not a fluke; it was proof that the case had been rigorously examined. In all three instances, the court deemed the evidence regarding the specific charges insufficient. That Papen, as ambassador in Vienna, had paved the way for the *Anschluss* was attributed to political unscrupulousness rather than criminality, and Fritzsche was too low in the hierarchy to have been a party to the decisions regarding war and murder. The acquittals draw the line between revenge and justice—and they draw it with all the discomfort inherent in such boundaries.

The Prohibition of Retroactivity and Its Opponents

The strongest objection to Nuremberg was never sympathy for the defendants, but rather a point of legal doctrine: *nullum crimen, nulla poena sine lege*—no crime and no punishment without a pre-existing law. The charge was that, in 1939, the crime of aggressive war had nowhere been codified as an offense punishable at the individual level. No one articulated this more brilliantly than Carl Schmitt; in 1945, he drafted an expert opinion for the defense of the industrialist Friedrich Flick—a text that did not appear until decades later—in which he described the criminalization of war as the transformation of the enemy into a criminal. A footnote worth remembering is the irony that Schmitt himself was held in custody in Nuremberg in the spring of 1947 as a potential defendant in a subsequent trial, only to be released after weeks of interrogation without ever being charged.

The response came from the other side of the legal discipline. Gustav Radbruch, a legal philosopher from Heidelberg and former Minister of Justice during the Weimar Republic, published his essay "Statutory Injustice and Suprastatutory Law" in 1946. His concept—later famous as the "Radbruch Formula"—held that positive law takes precedence over justice, even if the law is substantively unjust, unless the contradiction becomes intolerable. Where justice is not even sought, the law loses its legal character. In the 1990s, German courts invoked this formula to prosecute those responsible for the fatal shootings at the inner-German border. Nuremberg was its first major case, even before the formula had a name. One need not agree with every argument from both sides to see what was at stake here: whether law is merely what has been enacted, or also what ought to be enacted. After initial hesitation, the Federal Republic opted for the latter—and rightly so, even though jurists still reproach it for the fact that any exception to the rule endangers the rule itself.

Violence That Establishes Law

In his 1921 essay "Critique of Violence," Walter Benjamin advanced the unsettling thesis that every legal order rests upon a form of violence that establishes law before it can preserve it. Nuremberg was law-establishing violence in its purest form: a tribunal that had to substantiate the very law it applied—and did so through victors who had just demonstrated, via their armies, the basis of their authority. American Chief Prosecutor Robert Jackson was aware of this. His opening statement of November 21, 1945, ranks among the few trial speeches that can be read without prior knowledge of the case files. He described the victors’ decision to submit their captives to the judgment of the law as one of the most significant tributes power has ever paid to reason.

One might dismiss this tribute as mere posturing. Yet the tribunal took him at his word—in both respects. It rejected the *tu quoque* argument—the claim that the crimes of the opposing side exonerated the defendants. At the same time, it accepted on the bench a representative of the very state that had partitioned Poland with the defendant Ribbentrop in 1939; the Katyn massacre appeared in the Soviet indictment as a German crime but was absent from the final verdict. Such shadows are part of the historical record. Yet precisely because the tribunal could not dispel them, it required the acquittals: only those who make demonstrable distinctions may claim to be doing more than merely exacting revenge. Legitimacy—to extend Benjamin’s line of thought—arises not from the origin of violence, but from its self-restraint.

This self-restraint encompassed a second principle: an order is no excuse. The Statute allowed for it to be considered, at most, as a mitigating factor. Keitel and Jodl, who invoked military obedience, were hanged; responsibility, according to the court, cannot be delegated upwards.

Guilt Beyond Measure

On August 17, 1946—just weeks before the verdict was announced—Hannah Arendt wrote a letter to her teacher, Karl Jaspers, that transformed Nuremberg into a question. In his work *The Question of German Guilt* (derived from lectures given in Heidelberg to students sitting amidst the rubble and shame), Jaspers had distinguished between four types of guilt: criminal, political, moral, and metaphysical; only the first, he argued, belonged in a court of law. Arendt questioned the idea of ​​framing the politics of the National Socialists as merely "criminal guilt." These crimes transcended the boundaries of law—that was precisely where their monstrous nature lay—and no punishment could be commensurate with them. Jaspers countered with an argument that remains unsettling to this day: to elevate the deed beyond the realm of ordinary guilt is to imbue it with a quality of "satanic greatness." In December, Arendt conceded that she was dangerously close to doing just that; any attempt to mythologize the horror, she agreed, had to be resisted.

Thus was posed the question that has haunted Nuremberg ever since: How does one measure the immeasurable? The tribunal’s answer was unheroic: one does not. It did not measure the monstrous; it measured individuals. Who knew what? Who intended, ordered, or signed what? This is the language of accountants, yet it was the only language that allowed one to avoid the myth of the demonic. When Arendt described the trial of Adolf Eichmann in Jerusalem seventeen years later, she returned to this insight, terming it the "banality of evil." For his part, Jaspers left Heidelberg in 1948 to teach in Basel—a German living in a neutral country that would not thoroughly examine its own role until decades later.

A Tribunal Without a Victory

And today? Nuremberg was a trial that followed a victory; the defendants sat in the dock because the judges’ armies had reached Berlin. The special tribunal for the crime of aggression against Ukraine—agreed upon by the Council of Europe and Ukraine in the summer of 2025 and joined by thirty-six states, including Germany and Switzerland, in mid-May of this year—must proceed without a victory. It is to be based in The Hague because the International Criminal Court lacks jurisdiction to rule on the aggression committed by Russia: Moscow never acceded to the Rome Statute, and its veto in the Security Council makes any amendment impossible. Russia’s top leadership remains immune to trials in absentia as long as they hold office; charges could be brought, but the proceedings would remain stalled. The Ukrainian Foreign Minister called the decision a turning point and invoked the memory of Nuremberg. Germany had already declared its intention to join the initiative in late March: the country that stood trial at Nuremberg now sits alongside those seeking to make such a proceeding possible.

What is remarkable is not so much the tribunal itself as the context in which it arises. Washington has imposed sanctions on the International Criminal Court’s judges and prosecutors; the United States—the driving force behind Nuremberg in 1946—is conspicuously holding back today, and a draft peace plan circulating last autumn even contemplated a comprehensive amnesty for war crimes. Skeptics dismiss the tribunal as a pipe dream, arguing that a defendant will likely never actually appear in the courtroom. Proponents point out that Nuremberg, too, began merely as a statement of intent: the Moscow Declaration of 1943 predated the first day of the trial by two years. Both sides are right, and so the question remains—the same one that was decisive back in 1946: not how many people a court convicts, but whether it can also acquit.

What Remains

Anyone visiting Fürther Straße today—where the Nuremberg Trials Memorial is housed within the Palace of Justice—sees a building that looks like a place of bureaucracy rather than world history. That is arguably its greatest compliment. Perhaps the trial’s most profound lesson lies in the fact that its dignity is revealed less by what it did than by what it refrained from doing: it imposed no collective punishment. Even regarding organizations declared criminal, it did not issue a blank check for guilt by association; members were to be held accountable only upon proof of personal culpability. Even where the world’s wrath was rightly immense, the trial rejected the easy path of sweeping judgment. In *Politics as a Vocation*, Max Weber distinguished the ethics of responsibility from the ethics of conviction: those who act politically are answerable for the consequences, not merely the purity of their intentions. Nuremberg translated this principle into procedural law, and the acquittals demonstrate that it applies in both directions. A court that only convicts is a weapon. A court that can also acquit begins to be a true court of law.

For those wishing to read further after this column: Karl Jaspers’ slim volume *The Question of German Guilt* can be read in a single evening yet takes a lifetime to fully process; meanwhile, his correspondence with Hannah Arendt reveals how two brilliant minds, in the autumn of 1946, grappled with concepts we still need today. The Nuremberg verdicts are eighty years old. The question they posed is not.

Sapere aude!

S.

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