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official transcript of the proceedings, the compendium in ten volumes of the prosecution’s documentary evidence, the unpublished papers of the US prosecutor, Robert H. Jackson, and of the principal US judge, Francis Biddle, and numerous published memoirs. Both have consulted unpublished collections of papers in the US and Britain, although in some cases not the same ones; and both regale us with titbits from interviews with surviving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

Although President Roosevelt was briefly overpersuaded by Morgenthau, the bulk of the US bureaucracy and most of his political advisers backed the War Department’s plan; and when Roosevelt died, President Truman decisively endorsed it. France and the USSR followed suit. Britain held out for an executive solution until the end of May: but in April, by appointing Justice Robert Jackson of the Supreme Court chief US prosecutor, Truman made it plain that there would be a trial even if Britain took no part.

Nazi Germany having ceased to exist, delegations from the US, the USSR, Britain and France, the four powers that had set up military governments in the zones into which Germany had been divided, agreed in London on 8 August 1945 to establish an international military tribunal to try major war criminals ‘whether they be accused individually or ... as members of organisations or groups’. Attached to this agreement was a document laying down the composition, powers and procedures of the tribunal, which became known as its ‘charter’. The tribunal was to consist of four judges, one from each of the powers governing the military zones; and it was both to decide whether the defendants were guilty or not, and to pass sentence on those who were. Each judge was to have an alternate. In the event, none of the judges became incapacitated, and when the tribunal deliberated the alternates spoke and voted as judges.

The US judges were Francis Biddle, an aristocratic New Deal Democrat who had been Roosevelt’s Attorney-General, and John J. Parker, a US circuit court judge, who had been nominated to the Supreme Court in 1930 by President Hoover, but rejected by the Senate owing to opposition by labour and blacks. Although the Russians proposed that Biddle preside over the tribunal, he declined on the ground that the trial would then appear to be too American. The chief British judge, Sir Geoffrey Lawrence, a Lord Justice of Appeal, was thereupon chosen. What he lacked in legal ability was made up by the British alternate, Norman Birkett, who in the pre-war years had been one of Britain’s outstanding criminal lawyers. Conot appraises Lawrence unsentimentally but fairly: ‘He had a tendency to confuse faces and occasionally his mind wandered. Sometimes he took catnaps on the bench. But he was impartial and could be resolute; and he had the good sense to let Birkett do most of the work, while he himself provided the diplomacy and image.’ The chief French judge, Donnedieu de Vabres, was an academic – a professor of law at Paris and Montpellier. His alternate, Robert Falco, a judge of the Cour de Cassation, had been the French delegate at the London conference. Both were to contend pertinaciously for a French as distinct from an Anglo-Saxon position on all questions of law. The chief Russian judge was Nikitchenko, Vice-Chairman of the Soviet Supreme Court, who had also been a delegate at the London conference. His alternate, Volkchov, was a nonentity suspected of being Nikitchenko’s KGB ‘keeper’. On the legal issues that were to divide the tribunal, whether conspiracy was a legitimate charge at all, and, if it was, whether organisations could be conspiracies, the Russians and French differed from the beginning, and cancelled each other out. The decisive voices on these issues were to be Biddle’s and Birkett’s.

The charter ordained that, as in common law, the prosecution’s case was to be fully presented at the trial itself, and not in a pretrial investigative report that would be presumed true except where proved otherwise. On the other hand, as in Continental law, the indictment was to summarise the whole of the prosecution’s case, and was to be documented – a considerable advantage to the defence. By contrast, the charter was evasive on the charges the tribunal was to hear. At the London conference, Falco, who was to be the French alternate judge on the tribunal, had questioned the common law concept of conspiracy, and had objected that indicting organisations would be not only unprecedented and unjust, but also unnecessary – not comprehending Bernays’s strategy of simplifying the prosecutions of minor war criminals by condemning as conspiratorial the organisations to which they belonged. In response to these doubts, the charter provided that the tribunal should hear charges of three kinds – of crimes against peace, conventional war crimes and crimes against humanity: but yielding to US pressure for Bernays’s strategy, its wording left room for the tribunal to consider charges of conspiracy to commit those crimes. That was enough. Work on the prosecution’s case was divided between the four national teams. To the British went crimes against peace, and to the Russians and French war crimes and crimes against humanity in the east and west respectively. The Americans took charges against organisations and the potentially comprehensive charge of conspiracy.

Most of the individual defendants were obvious. Hitler, Himmler and Goebbels were dead. Bormann, whose fate was then unknown, could be (and was) presumed a fugitive and tried in absentia. But 16 of Hitler’s former ministers and governors of occupied countries were in Allied hands: Frank, Frick, Funk, Goering, Hess, Kaltenbrunner, Ley, Neurath, Papen, Ribbentrop, Rosenberg, Sauckel, Schacht, Schirach, Seyss-Inquart and Speer. Streicher, who had been in charge of the regime’s most disgusting antisemitic propaganda, was too notorious to omit. And, since both the higher command of the Armed Forces and the leaders of German industry were deeply implicated in Nazi crimes, it was decided to include five others: Keitel, the Chief of Staff of the Oberkommando der Wehrmacht, and Jodl, chief of the Wehrmacht operations staff; Raeder and Doenitz, who in succession commanded the German Navy; and Gustav Krupp, representing the armaments industry. For the indictment of Fritsche, a second-rank official in Goebbels’s propaganda ministry, no better explanation is offered than Conot’s: without him, the French and Russians would have contributed one defendant each (Neurath and Raeder), and ‘it was a matter of national pride to the Russians that they be permitted at least two.’ Ley having succeeded in committing suicide, the defendants present at the trial were reduced to 21 when Krupp was proved medically unfit. The tribunal, observing judicial propriety, refused either to try him in absentia – he was not a fugitive – or to countenance an improper substitution, even though his far more guilty son Alfried was to hand.

‘The documentary evidence ... is just unbelievable,’ Major Frank Wallis wrote to Bernays. ‘Their own reports illustrated with pictures are far better than any of the studies we have compiled on the persecution of the Jews, crimes against humanity, etc. The Germans certainly believed in putting everything in writing.’ Unfortunately, there was too much for even the large US prosecuting staff to master before the trial. Jackson’s opening speech for the entire prosecution was nevertheless masterly: largely in the horrifying words of their own documents, he showed how the Nazis deliberately passed from barbarising Germany to barbarising Europe, varying their tactics but never wavering from objectives repeatedly avowed by Hitler, which in terms of the tribunal’s charter could not be denied to be criminal. Although the lesser US prosecutors sometimes lost their way in presenting their evidence for conspiracy, the ‘sheer volume’ of what they produced, as the Tusas remark, ‘smashed their points home’. Counsel for the defence ‘challenged minor details, fretted at minutiae’, but found no answer on the facts to any single charge.

The charge of crimes against peace, as distinct from conspiracy, was indisputable in fact, and barely disputable in law. The British prosecutors argued that since aggressive war had been outlawed by numerous treaties to which Germany had been a party, German citizens could not object to being tried for violating legal obligations their country had assumed. As the Tusas sum it up, ‘the British presented to the judges the treaties which Germany had signed, the specific military plans which were put into effect to break them, and the historical facts of unprovoked invasions. It was a straightforward, limited concept; there was plenty of evidence to support it, all of it straight from archives.’

As the French and Russian prosecutors developed the charges of war crimes and crimes against humanity, the atmosphere changed. As part of the charge of conspiracy, evidence had already been introduced of the looting, enslavement and murder of most of European Jewry, of the murder of Allied prisoners, and of the deportation, enslavement and murder of non-Germans from all over Europe, but as the French and Russians brought home the scale and depravity of what had been done, those in the courtroom passed from astonishment through disbelief to unrelieved horror. At one point, the US alternate judge, Parker, complained to an assistant to the tribunal, James Rowe (who told the Tusas): ‘You know, Jim, they’re going too far in this trial. They claimed today that the guards threw babies up and shot them in the camps. You know no one would do that.’ Soon after, the Russians showed a 45-minute film. It began with shots of 800,000 pairs of shoes in the warehouse at Maidanek, but it continued with German sequences of, among other things, naked women being herded into mass graves, where they lay down and were shot, their murderers smiling for the camera. Few of the defendants could watch it. Parker took to his bed for three days. Before the film the judges had not restrained their impatience when prosecutors had accumulated evidence unnecessarily: after it, the Tusas observe, it was as if they had come to recognise that ‘the proceedings must fulfil a further need ... to give release.’

That most of the defendants had been principals in the crimes of the Nazi state was proved without difficulty. Documentary evidence abounded; and witnesses survived, some of whom testified. For example, the defendant generals Keitel and Jodl, whose indictment many Allied soldiers had questioned, had signed numerous confessedly illegal orders for the murder of Allied prisoners and civilian hostages. However, a few effective individual defences were entered. Papen and Schacht, who had been ministers in the early years of the Nazi regime, had been dismissed before the war, and had not been shown to have conspired to wage it. Nobody except the Russians had ever imagined Fritsche to have been a major figure in the regime. And Admiral Doenitz had become commander-in-chief of the Navy only in 1943, too late to have conspired to wage aggressive war. Apart from that, the only crime of which the German Navy was accused was the killing of survivors of ships sunk by submarines. Submariners had already been executed by the Allies for firing on the occupants of lifeboats, allegedly on Doenitz’s orders. But Doenitz denied ever ordering more than that submarines were not to take risks to save survivors; and his counsel, Otto Kranzbuehler, argued that it was not contrary to international law for a submarine subject to attack not to rescue survivors, submitting an affidavit by US Admiral Nimitz which not only upheld Doenitz’s position, but acknowledged that the US Navy had acted on it also.

Two of the civilian defendants professed a degree of shame, and tried to present themselves as moderates who had no direct part in the major Nazi crimes. One of them may have been truthful, namely Funk, the director of the Reichsbank, which had collected from the SS gold and jewels stolen from concentration camp prisoners, and disposed of them to pawnbrokers. The other, Speer, at the end of the war the chief Nazi slavemaster, was a plausible scoundrel who contrived to impose upon too many of the prosecutors and judges and much of the public. Conot exposes his testimony as a compound of misdirection, evasion and downright lying, and draws attention to evidence with which he should have been confronted but was not. Although less clear-headed, the Tusas record a moment in which he was caught off-guard. ‘Jackson produced records of eighty steel whips used at Krupp’s for disciplining [sic] the workers. “These are nothing but replacements for rubber truncheons,” expostulated Speer.’

The cases against organisations were the last to be heard, and occupied most of August. Of the seven indicated, three – the Gestapo, the SS and the SD (SS Security Service) – were conclusively shown to have been in large part created to carry out both crimes against humanity and conventional war crimes: but the remaining four were not: the Reichsregierung (the Cabinet, the Defence Council and the Secret Cabinet Council), the General Staff and High Command, the Nazi Party’s leadership corps, and the SA (or Brownshirts). The Reichsregierung was an organisation only on paper, and since 1918 the General Staff had not even been that. Neither planned or executed any Nazi policy. As for the party leadership corps (every Nazi whose party title contained the word Leiter), it comprised not only national and provincial leaders, but block dues collectors (who boasted the title Blockleiter). And finally, the SA had been deprived of power and influence since the Roehm purge of 1934, and its active members had transferred to other organisations.

When the time came for the defence to put its side, it was evident that on the facts most of the prosecution’s case was unanswerable. But was it good in law? On behalf of the defence as a whole, Jodl’s counsel Hermann Jahrreis forcibly argued that it was not. It outraged natural justice that charges against the vanquished, and only against them, should be judged by the victors. Nor were the deeds with which the defendants were charged crimes under international law when they were allegedly committed. Aggressive war may have been declared illegal by the Kellogg-Briand pact, but waging it was not criminal. And as for the charge of conspiracy, not only was it unknown to international law, but to prove its counterpart in German law it would have been necessary to show that the defendants had fully known Hitler’s criminal plan, had foreseen the acts to be committed in executing it, and had approved them, which the prosecution had not done.

Unless they had concluded that both the charges and the procedures laid down in the tribunal’s charter were legal, the judges would presumably not have agreed to serve on it: but not until they delivered judgment could they collectively say why. All of them upheld the moral legitimacy of the war aim of punishing Nazi crimes, and hence of creating the judicial means of doing so. Victors’ justice was therefore unavoidable: but it had to be justice, and in this case it was. The trial had been fair. The defendants’ rights had been respected. Except that of conspiracy, all the charges were solidly founded in international law and in pre-Nazi German law, as well as in morality. What the tribunal’s charter had added to international law were not new crimes but rather a new means of bringing criminals to justice.

Regarding the charges of conspiracy and of criminality against organisations, the French judges had from the beginning accepted the defence’s objections to them, and Biddle agreed that they were legally indefensible in the form in which the prosecution had argued them. However, Conot’s and the Tusas’ lively tales of the judges’ wrangles are evidently suspect. Biddle’s papers, the only rich source available to them, are not impartial. What we know is the tribunal’s eventual decision: that the only Nazi conspiracy was to wage aggressive war, and that the only large organisations found to be criminal – the Gestapo, the SD and the part of the SS that had joined before the war – while guilty of war crimes and crimes against humanity, were not conspiratorial. ‘Thus,’ Conot sums up, ‘the tribunal was left with the head of one animal and the tail of another – a conspiracy to wage aggressive war, and a group of organisations with complicity for charges on which the tribunal had ruled that there had been no conspiracy.’

This repudiated ‘Bernays’s central concept of the trial – that the Nazi era represented a conspiracy carried out through the medium of the organisations.’ It could have been saved if the US prosecutors had refined the concepts of conspiracy and of a conspiratorial organisation sufficiently to persuade either Biddle or Birkett, or if one of the judges – Parker perhaps – had done so in the tribunal’s deliberations. But the prosecutors did not divine what needed to be done, and if any of the judges did, they were not able to do it. A great legal opportunity was lost. On the other hand, by cutting the prosecutors’ charges to pieces, the tribunal showed it was not in collusion with them.

On the whole, verdicts on individuals and sentences accorded with the evidence. The 11 sentenced to death by hanging had either, like Ribbentrop, been major conspirators against peace, or had been guilty of war crimes or crimes against humanity. Those acquitted – Fritsche, Papen and Schacht – had certainly not been major war criminals. The sole evident injustice was the conviction of Doenitz – the judgment on whom, written by Biddle who had voted to acquit him, could only be read as a exoneration. A few perceived that sentencing Sauckel to death and Speer to 20 years’ imprisonment was not equal justice. Sauckel had procured slaves for Speer, but it was under Speer’s orders that they had been beaten, starved and killed. Still, Speer’s manners were unquestionably more engaging.

Both books have an execution scene. Conot’s is the more matter of fact, and, judging by ordinary canons of plausibility, the more accurate. All the condemned died bravely. However, as Conot reminds us, ‘for those who had sat through the horrors and tortures of the trial’, what was done was no more than ‘stark, almost biblical justice’.