Victors’ Justice

Alan Donagan

  • Justice at Nuremberg by Robert Conot
    Weidenfeld, 593 pp, £15.00, October 1983, ISBN 0 297 78360 2
  • The Nuremberg Trial by Ann Tusa and John Tusa
    Macmillan, 519 pp, £12.95, October 1983, ISBN 0 333 27463 6

From 20 November 1945 to 1 October 1946 21 leaders of Nazi Germany stood trial before an international military tribunal at Nuremberg; all but three were found guilty, of whom 11 were sentenced to be hanged and the rest to be imprisoned for long terms. Why the trial was held at all, how it was conducted, and whether justice was done are the themes of these books.

The core of the evidence on which both draw is the same: the 22 volumes of the official transcript of the proceedings, the compendium in ten volumes of the prosecution’s documentary evidence, the unpublished papers of the US prosecutor, Robert H. Jackson, and of the principal US judge, Francis Biddle, and numerous published memoirs. Both have consulted unpublished collections of papers in the US and Britain, although in some cases not the same ones; and both regale us with titbits from interviews with surviving participants.

Although the story both books tell is substantially the same, there are differences. Using British papers not available to Conot, the Tusas often tell it from the point of view of the British prosecutors or judges. On the other hand, using US sources (especially the Bernays papers) which the Tusas neglect, Conot makes sense of the US conception of the prosecution while they do not. Both profess to tell the story of the trial, and not of the crimes of the Nazis. However, in the two hundred-odd pages each devotes to the prosecution, whereas the Tusas stick to their last and let what happened at the trial speak for itself, Conot repeatedly deviates into a history of the crimes the prosecution was trying to prove. On the whole, the Tusas’ book is the better work of institutional reference: if I want to find when a given meeting was held, who was there, and what was decided, I turn to it. On the other hand, if I am, looking for a hard-headed reconstruction of events that are not matters of reliable public record, or for an intelligible explanation without waffle, I go to Conot’s. Still, the differences are not great. By and large, both books are good.

How did the trial come to be held at all? Neither Conot nor the Tusas answer this question adequately, because neither explores the interaction of bureaucracy and political authority that led to it. Both tell us some of the things this or that individual did, but neither goes into the bureaucratic or governmental situations within which they were done. In the war of 1914-18 German conduct in occupied territories had not been impeccable, and the British bureaucracy remembered how the provision of the 1919 Versailles Treaty for the trial of war criminals had foundered in 1922, in farcical trials conducted at Leipzig by the Weimar Republic. A repetition of that fiasco was forestalled when, in November 1943, the US, the USSR and Britain agreed that those accused of war crimes in occupied countries should be returned to those countries for trial. But what of the major war criminals whose crimes were not associated with a particular place? That they should be proceeded against internationally was agreed, but not how.

From 1942, according to the Tusas, the British Government and bureaucracy had concluded (the Lord Chancellor, Simon, scrupling half-heartedly) that the major war criminals should not be tried, but put to death by executive action. Much was made of the precedent of the relegation of Napoleon to St Helena by a decision of the Congress of Vienna. The Tusas do not record whether any Whitehall mandarin reflected that exile is not death, or wondered what to do if their soldiers should respond to executive orders to kill prisoners as Wellington had to the suggestion that he should execute Napoleon.

Fortunately, the US did better, but not without conflict. In mid-1944 the Treasury, under Henry Morgenthau Jr, carried the executive solution favoured by the British to its monstrous limit. Germany was to be declared a criminal nation, and crippled by destroying her heavy industries. Its leaders, since proving them individually guilty would be superfluous, were to be proscribed by executive action, and summarily shot. There was a reaction. The US Cabinet and bureaucracy for the most part believed neither that Germans as such were criminal, nor that the criminal element in Nazi Germany, whose punishment they demanded as strongly as Morgenthau, could acceptably be proceeded against except judicially. When on 9 September the Secretary of War, Henry Stimson, demanded an alternative to the Treasury plan, Lt-Col Murray Bernays, a legal officer in the Personnel Division charged with collecting evidence of war crimes against US servicemen, was found to have been studying the problem since July – as best I can make out from Conot, as an act of bureaucratic free enterprise suggested to him by a colonel in the Civil Affairs Division. By mid-September Bernays submitted a six-page scheme, the essential idea of which was to try, on a charge of conspiracy, not only the major war criminals, but also the organisations by which the Nazi state had carried out that conspiracy. Once these organisations had been judicially pronounced criminal, minor war criminals could be dealt with simply by establishing that they belonged to them, individuals being permitted to plead mitigating circumstances. The Tusas disparage this plan as ‘written in a few weeks to a departmental brief, and by a not very distinguished lawyer’. Conot is more just. That a plan raises legal problems it does not solve is a decisive objection only if those problems are insoluble or if there is a practicable alternative. Neither has been shown. Even the Tusas concede that ‘the essentials’ of Bernays’s plan ‘were to remain. Their seductions were irresistible.’ For ‘seductions’ read ‘intellectual merits’.

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