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Lee Spielmann[/caption] Commencing in September 1947 and concluding the following April, ranking members of the “Einsatzgruppen,” part of Nazi Germany’s SS and Police apparatus, were prosecuted in Nuremberg Military Tribunal Case No. 9, United States v. Ohlendorf (NMT9). The passage of 70 years makes it appropriate to explore the significance and lasting legal legacy of “the biggest murder trial in history.” (The decision is available at http://www.mazal.org/archive/nmt/04/nmt04-T04-T0585.htm (page references to copy in author’s file); Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History (2009), 196.) With Germany’s June 1941 invasion of the Soviet Union, four battalion-sized Einsatzgruppen (designated A, B, C and D) followed the German army to secure the areas behind military lines by shooting those deemed Germany’s enemies. While the Einsatzgruppen initially shot male Jews of military-service age, within several weeks they were shooting all Jews irrespective of gender, age or position in Soviet society. The Einsatzgruppen compiled reports of their activities. For example, in mid-October 1941, Einsatzgruppe A reported having killed over 118,000 Jews; Einsatzgruppe D reported in March 1942 having killed nearly 92,000. By the end of 1941, approximately 600,000 Jews had been murdered in the Soviet territories, the eventual total reaching 1.5 million. (NMT9, at 428-30. Saul Friedländer, The Years of Extermination: Nazi Germany and the Jews, 1939-1945 (2007), 209; Peter Black, “Foot Soldiers of the Final Solution: The Trawniki Training Camp and Operation Reinhard,” 25 Holocaust and Genocide Studies (2011), 2. Other SS and Police units, and both indigenous collaborators and the German army, also perpetrated massacres.) Beginning November 1945, the United States, Great Britain, France and Soviet Union jointly tried leading Nazi criminals in the International Military Tribunal (IMT). In December 1945 they authorized each nation to try accused Nazi criminals within its occupation zone, and NMT9 was one of 12 such proceedings. Twenty-three defendants were charged with crimes against humanity (defined to include “murder [and] extermination … against any civilian population”), war crimes and membership in an organization the IMT found criminal. Defendants were the commanders and deputy commanders of the Einsatzgruppen, their subordinate company-sized operational units, or officers within these units. The NMT9 Tribunal found defendants killed over 1,000,000. Twenty-one were found guilty on all counts; 14 were sentenced to death, two to life imprisonment and five to 10- or 20-year prison terms. (NMT, at 431, 509-89.) NMT9’s significance can be variously measured. Rejecting all defense arguments, the Tribunal reaffirmed salient IMT rulings, including that individuals can be criminally liable for perpetrating state-sponsored crimes. The decision helped secure important legal principles and found prescient echoes in later Holocaust-related proceedings. Discussing crimes against humanity, the Tribunal wrote, “Humanity is the sovereignty that has been offended and a tribunal is convoked to determine why.” The defendants were tried because they were “accused of having offended against society itself, and society, as represented by international law, has summoned them for explanation.” The Tribunal analogized to piracy, stating “no authority … denies any belligerent nation jurisdiction over individuals in its actual custody charged with violation of international law.” (NMT9, at 497, 462, and 459-60.) Such statements invoked the principles underlying the universal jurisdiction doctrine (“universality principle”) as the lawful basis for defendants’ prosecution. This doctrine holds some crimes are so universally condemned that any nation may prosecute one accused of such a crime even if committed extraterritorially and no other connection exists between the prosecuting sovereign and the crime. (See, e.g., Demjanjuk v. Petrovsky, 776 F.2d 571, 582 (6th Cir. 1985); Restatement 3rd of United States Foreign Relations Law (1987), §404, at 254; Kenneth Randall, “Universal Jurisdiction Under International Law,” 66 Texas Law Review 785, 805 (1988).) The Tribunal’s jurisdictional discussion comports with analyses in subsequent Holocaust-related proceedings, its explanation presaging later courts’ express reliance upon the universality principle to try accused Holocaust perpetrators. NMT9 was one of the earliest cases to invoke this principle as the jurisdictional basis for prosecuting crimes against humanity, thereby helping expand the doctrine’s future use. (See, e.g., U.S. v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003); Thomas Sponsler, “The Universality Principle of Jurisdiction and the Threatened Trials of American Airmen,” 15 Loyola Law Review 49-50 (1968-1969).) For example, Israel’s criminal prosecution of Adolf Eichmann (head of the Nazi office responsible for the European-wide [outside Poland] deportations of Jews to the extermination camps) was upheld because Israel, as any other country, “was entitled, pursuant to the principle of universal jurisdiction...to try” him. The court certifying John Demjanjuk subject to extradition to stand trial in Israel on charges he operated the gas chambers at the Nazi extermination camp Treblinka held Israel’s intention to try him under its domestic law “conforms with the international law principles of ‘universal jurisdiction’” without “violat[ing] United States jurisdictional principles or practices.” (Attorney General v. Eichmann, 36 I.L.R. 277, 304, 306 (Sup. Ct. Israel 1962), Raul Hilberg, The Destruction of the European Jews (3rd ed. 2003), 425; In re Extradition of Demjanjuk, 612 F. Supp. 544, 554-55 (N.D. Ohio 1985).) Courts today accept “universal jurisdiction exists to prosecute” crimes universally condemned including “torture, genocide, crimes against humanity, and war crimes.” Federal law implementing ratification of the international genocide convention reflects this. Congress, constitutionally-empowered “[t]o define and punish … Offences against the Law of Nations,” authorized criminal prosecutions of persons accused of genocide even when the crimes occur extraterritorially and defendants’ only domestic nexus is their “presen[ce] in the United States.” A direct line runs from NMT9’s jurisdictional principles to present-day conceptions regarding universal jurisdiction. (Sosa v. Alvarez-Marchain, 542 U.S. 692, 762 (2004) (Breyer, J., concurring); 18 U.S.C. §1091(e)(2)(D); Art. I, Sec.9, cl.10.) The Tribunal’s rejection of defense arguments foreshadowed later rulings. Arguing the killings were committed for Germany’s defense, defendants asserted, in part, when “the war aims of one of the opponents are total, then the opponent is vindicated in claiming self-defense and state of necessity … .” The Tribunal unequivocally rejected this patently absurd argument: “The annihilation of the Jews had nothing to do with the defense of Germany [and] was in no way connected with [its] protection” and “the argument … the Jews … constituted an aggressive menace to Germany … which called for their liquidation in self-defense, is untenable as being opposed to all facts, all logic and all law.” NMT9, at 465, 469-70. In federal proceedings against Holocaust perpetrators, comparably untenable arguments met similar repudiation. One argument in the Demjanjuk extradition proceeding prompted the response that the “claim that the killing of defenseless civilians at Treblinka was part of the Nazi war effort...is frivolous and offensive.” When a former concentration camp chief invoked the court’s sense of “decency” and “compassion” to prevent his deportation to the Soviet Union, the tone and tenor of the court’s dismissal matched NMT 9’s repudiation of the self-defense argument: “Linnas’ appeal to humanity, a humanity which he has grossly, callously and monstrously offended, truly offends this court’s sense of decency.” (612 F. Supp. at 570; Linnas v. INS, 790 F.2d 1024, 1032 (2d Cir. 1986).) Some rulings reflect well-settled principles of American criminal law. A number of defendants, admitting participation in the killings, denied culpability, arguing they followed orders. The Tribunal rejected this argument: