Europe: A History (216 page)

Nurnberg (Nuremberg), one of Germany’s most ancient and most German cities, had been reduced to a sea of rubble, having been subjected to eleven mass bombing raids. Then, when two SS divisions decided to make it the scene of their last stand, it had been mercilessly shelled into submission by American heavy artillery. Home of the medieval Meistersingers and of Tannhãuser, of Albrecht Diirer and of Veit Stoss, it had been chosen in the previous century as the home of the German Museum, a magnificent collection of German national art and history. In the 1930s it had been chosen as the venue for Hitler’s most dramatic Nazi rallies. It had now been chosen for the Trials partly for its symbolic value, partly because its imposing Palace of Justice had miraculously survived the bombing. To hold the trials in Nuremberg was to emphasize the Allied view that the root of Germany’s evil lay not in Prussian militarism (as was the view in 1918) but in the very nature of the Germans’ national identity. The setting of the trial seemed designed to teach a history lesson far deeper than the offences of the individual defendants.

Nuremberg’s special contribution to the Trials, however, was to be found in the person of defendant no. 8, Julius Streicher (b. 1885), who had ruled the city as Nazi Gauleiter from 1933 to 1940. He was serving his second time in the cells behind the Palace of Justice, having once been arrested for molesting a boy prisoner during one of his official visits. He was a blatant sexual pervert, as his jailers were able to observe, and a lifelong Jew-baiter whose speciality lay in linking sex with anti-semitism. In his crusade against ‘race pollution’ he had invented a spurious biochemical theory, whereby the albumen of Jewish semen was capable of permanently ‘infecting’ any woman with whom it came into contact. As the editor of
Der Stürmer
he waged a constant campaign to protect German maidens from Jewish seducers—a cause which he later gave pseudo-scientific cover in the journal
Deutsche Volksgesundheit aus Blut und Boden
. He was the main instigator of the Nuremberg Laws which forbade all sexual intercourse in Germany between Jews and non-Jews. In 1938, on Kristallnacht, he had made a speech urging the rioters to follow the glorious example of the medieval pogroms that had been perpetrated in the city. As an early recruit to the NSDAP, he was one of the few Nazi leaders to address the Führer as
du
. But he overstepped the mark when he publicly asserted that Göring’s daughter had been conceived by artificial insemination. The infuriated Reichsmarschall had instigated a commission of inquiry that uncovered such gross corruption that Hitler himself could not save his Gauleiter from instant retirement.

The Allied decision to stage a war crimes trial had not been lightly reached. Churchill had been against it, as had Henry Morgenthau, the Secretary of the US Treasury. In the absence of legal precedents, they argued that it would be better
to shoot the Nazi leaders by summary execution. Their opinion was overruled: the Allied governments had committed themselves to the principle of war crimes trials by the Declaration of St James (January 1942) and the Moscow Declaration (November 1943); and the established policy had too much support to be discarded. Of the Big Three, Roosevelt and Stalin were both in favour. As a result, the trial had to take place. They were necessary both as ‘a sincere but naive attempt to apply the rule of law’
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and to demonstrate the limitless power of the victors. Stalin had used show trials as an instrument of his political victory inside the Soviet Union; and there is no reason to think that he would have missed the opportunity for a similar show of strength after his great international victory. Stalin, after all, was the chief beneficiary, since in any equitable settlement he might easily have found himself in the dock.

The International Military Tribunal was created in consequence of the Potsdam Agreements. Its Charter was published on 8 August 1945, two days after the Hiroshima bombing. The Nuremberg Trials were planned as the European counterpart to similar trials against Japanese leaders that were due to take place in Tokyo.

Once the indictments were served, the opening of the Nuremberg Trials was set for 20 November 1945. From then, the Trials proceeded through 403 open sessions in the main courtroom of the Palace of Justice until the final sentences of the judgment were read more than ten months later, on 1 October 1946. The four Allied judges, under their Chairman, Sir Geoffrey Lawrence QC, sat on one side with their deputies. The 21 defendants present, who all pleaded not guilty, filled the benches of the dock opposite, under strict military guard. The four Allied prosecutors—an American, a Briton, a Frenchman, and a Soviet—shared the middle ground with their deputies and assistants, with the crowd of defending German counsel, and with a mass of clerks, translators, and interpreters. A raised public gallery had been built in one lateral wing of the courtroom. The proceedings were conducted and recorded in English, German, French, and Russian. At any one time, therefore, the majority of participants would be listening to simultaneous translations on headphones.

In addition to those present, Martin Bormann, Hitler’s deputy, was tried
in absentia
, as were eight defendant organizations charged with collective criminality: the SS, the SD, the SA, and the Gestapo: the ‘leadership corps of the NSDAP’, the Reich Cabinet, the General Staff, and the High Command of the German Armed Forces. Proceedings against Gustav Krupp, the industrialist, were dropped on account of the defendant’s incapacity. In all, the prosecution produced over 4,000 documents, 1,809 affidavits, and 33 live witnesses. They also showed films, and introduced a number of grisly exhibits including ‘human lampshades’ and the heads of men mounted on wooded stands like those of stags. The defence produced 143 witnesses, together with hundreds of thousands of affidavits. The corpus of the Trials, published in 1946, ran to 43 volumes.
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The opening speeches of the prosecution made lofty appeals to the highest
moral principles, whilst betraying some sensitivity to the legal uncertainties. Justice Robert H. Jackson admitted that the Tribunal was ‘novel and experimental’. Sir Hartley Shawcross appealed to the ‘rule of law’, M. de Menthon to ‘the conscience of the peoples’. General Rudenko spoke of‘the sacred memory of millions of victims of the fascist terror’… and ‘the conscience of all freedom-loving peoples’. Jackson probably made the best case by arguing from the inadmissibility of inaction. ‘Civilisation asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude …’
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Within their limited terms of reference, the Trials were conducted with great decorum and circumspection. Lord Justice Lawrence set an example to the judges by extending every courtesy to the defence, and by acidly reprimanding the prosecution where necessary. The only time when the proceedings became unruly was when Jackson lost control of Goring during cross-examination. Blanket verdicts were never likely, acquittals always possible.

The strongest testimony was presented on the counts of war crimes and crimes against humanity. Here the evidence against the Nazi party men was damning, especially when derived from their own records. The death-camps of the Final Solution, the unspeakable horrors of pseudo-medical experiments, mass atrocities of unprecedented proportions were comprehensively documented in a manner leaving little margin for error. The weakest testimony was offered on the counts of common conspiracy, and on points where it was easy for the defence to plead normal practice of sovereign states. It was hard to prove that Hitler’s ‘secret meetings’ with his colleagues constituted evil intent, or that rearmament was in itself inspired by aggressive motives. Direct comparisons with Allied conduct, however, were not permitted. The defence could not raise the failings of the Versailles settlement or of the Allied bombing offensive, nor the subject of Soviet atrocities. ‘We are here to judge major war criminals,’ Lord Justice Lawrence insisted, ‘not to try the prosecuting powers.’ Attempts to discuss conditions in Allied internment camps or the forcible expulsion of Germans, which was in progress at the time, were cut short. ‘The Defence is attempting to introduce breaches of International law by the Allies,’ reported
The Times
on 8 May 1946, ‘but [the prosecutor] made the point that if this were accepted, he would be obliged to bring evidence of rebuttal, which would needlessly prolong the trial.’
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The subject of the Katyń massacres was initially raised by the Soviet prosecutor. When the defence lawyers were able to show that many of the prosecutor’s facts were false, the Soviet team promptly dropped the accusations. [
KATYKI
]

Eyewitnesses to the Trials recalled many moments of drama and irony. There was the symbolic scene of the wild-eyed Hess sitting in the dock reading Grimms’
Fairy Tales
. Another minor sensation occurred in November when the Soviet prosecution team was joined unannounced by Andrei Vyshinsky, the chief Soviet delegate to the United Nations, best remembered as Stalin’s chief prosecutor in the Purge trials of the 1930s. Many observers commented on the eerie contrast between the fate-laden climate of the courtroom and the merry flow of pink gins in the bar of the Grand Hotel next door.

The American security staff provided two psychiatrists and one psychologist for the defendants’ welfare. As part of his duties, the psychologist prepared tests for the defendants’ IQ ratings:

Schacht, 143; Seyss-Inquart, 140; Goring, 138; Dönitz, 138; von Papen, 134; Raeder, 134; Frank, 130; Fritzsche, 130; von Schirach, 130; Ribbentrop, 129; Keitel, 129; Speer, 128; Jodl, 127; Rosenberg, 127; von Neurath, 125; Funk, 124; Frick, 124; Hess, 120; Sauckel, 118; Kaltenbrunner, 113; Streicher, 106.
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The sentences, when they came, caused some surprise. Schacht, the banker, Fritzsche, the propagandist, and von Papen, the sometime Vice-Chancellor, were acquitted on all counts. So, too, were the Reich Cabinet, the General Staff, and the High Command. Dönitz, von Neurath, von Schirach, Speer, and Hess received prison sentences varying from 10 years to life. Goring was branded ‘the leading war aggressor’ and convicted on all four counts. He and ten others were sentenced to death by the rope. The Soviet prosecutor entered a dissenting opinion on all the acquittals and prison sentences. Each of the prisoners reacted in his own way to the prospect of hanging. Jodl said bitterly ‘That, I didn’t deserve.’ Ribbentrop said, ‘I won’t be able to write my beautiful memoirs.’ Hans Frank said, ‘I deserved it and expected it.’
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When the psychologist asked Hess what sentence he had been given, Hess replied ‘I’ve no idea. Probably the death penalty. I didn’t listen.’
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Goring cheated the hangman by killing himself with a cyanide pellet concealed in a dental crown.

Ten executions were carried out in the gymnasium of the prison block on 16 October 1946. Most of the condemned died with patriotic words on their lips. Frank shouted, ‘Deutschland über alles’. Streicher said, ‘Heil Hitler. Purim 1946. The Bolsheviks will hang you all,’ then commended himself to his wife. Rumour held that the US army executioner botched his job, causing lingering deaths, and that the bodies were cremated at Dachau. The five remaining convicts were transported to Spandau Jail in Berlin, where the four-power administration was to continue until the strange death of Hess in 1987.

A wide range of criticisms was levelled against the trials from the outset. On the purely political front, fears were expressed that the defendants would be turned into martyrs. This did not happen, either in Germany or elsewhere. The head of repugnance built up by the Trials’ revelations was large enough to offset any counter-currents of sympathy. If there was a general consensus, it held that the crimes of the Nazis outweighed any element of rough justice that was meted to individuals. Many lawyers, however, were gravely worried by the
ex post facto
nature of the indictments.
Nulla poena sine lege
. Dissenting voices did not accept Jackson’s contention that the Tribunal was contributing to ‘the growth of international law\
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They were also scandalized by the court’s lack of independence. For the Allied Powers to supply both the judges and the prosecutors on terms and in an arena dictated by themselves made for bad legal practice, and for poor publicity. ‘While clothed with forms of justice,’ objected Senator Robert Taft, ‘[the
trials] were in fact an instrument of government policy, determined months before at Yalta and Teheran.’
¹³³
A widespread opinion, especially among the Allied military, held that honourable German officers like Admiral Dönitz should not have been put in the same dock as active Nazis like Goring or Streicher. When Dönitz was released in 1956, several hundred distinguished Allied veterans, headed by US Admiral Nimitz, contributed to a volume of regrets.
¹³⁴

To those who could resist the emotions of the times, it was scandalous that the Western press and government agencies often encouraged the notion of collective guilt. All the defendants were routinely labelled as ‘criminals’ long before the verdicts were pronounced. Most seriously of all, the fact that the Nuremberg trials were limited to offences committed by the defeated enemy erected an insuperable obstruction to any general and impartial investigation into war crimes or crimes against humanity. It created the lasting impression in public opinion that such crimes could not by definition be committed by agents of the Allied Powers.

For historians, the Nuremberg Trials are of interest both as a historical event in their own right and as an exercise in examining the past through legal methods. Their advocates were convinced that ‘we discovered the truth’.
¹³⁵
Their critics maintain that less than half the truth was discovered. To be precise, the Nuremberg Trials confirmed beyond all reasonable doubt the reality of Nazi crimes. They also documented the role played by Germany in the origins and conduct of the Second World War, not always in the light demanded by the prosecutors. At the same time, by isolating the German factor from all others, they were bound to construct a biased and, in the last resort, an untenable analysis. Equally, by knowing omissions, they encouraged the erroneous view that there was little more to discover. The historical material which was marshalled in the indictments, and then in the preamble to the final judgment, was intended for ‘throwing light on matters of interest to the International Military Tribunal’. Yet it was so blatantly selective that even the most fervent opponents of Nazism could despair. To mention the Nazi-Soviet pact, for example, but only in the category of treaties violated by the German Reich, was grossly misleading. ‘The published indictment’, wrote a leading historian on the day that the document was served in the cells, ‘reads like history written by non-historians.’
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