The Nuremberg Interviews (2 page)

Roosevelt and Churchill came to the conclusion that on balance it would be best to execute certain Nazi leaders without any trials, and this was a point of view that Stalin also seemed to share. Churchill was somewhat surprised, therefore, to learn on a visit to Moscow in October 1944 that evidently Stalin had changed his mind. He and other Soviet leaders
now favored a trial, along the lines of an international tribunal as originally suggested by Molotov. It is also possible that once Stalin saw for himself that Churchill would never go along with the liquidation of tens of thousands of the German elite, he went over to the idea of holding a trial of the major war criminals, which could be used for propaganda purposes. Perhaps Stalin also thought that in advocating trials, he might be able to polish his tarnished image in the West.
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In the meantime the Soviets were taking steps of their own to settle scores with the invaders. As they liberated their land from the Nazi yoke in the summer of 1943, they began carrying out their own trials, including trials of their own citizens, for participation in Nazi war crimes. In the first such trial (July 14–17, 1943), at Krasnodar, the Soviets made public to the world one of the first cases of mass murder of the Jews. There were eight death sentences, which were carried out in the city square in front of a crowd estimated at thirty thousand people.
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In August and September some smaller Soviet trials followed, but in Kharkov on December 15–18, another large and public trial took place, with a similar result. It culminated in the hanging of those found guilty, in the market square before an estimated fifty thousand. The event was widely publicized by special news films as well as on the radio and in the press. Such proceedings reminded some western observers, as well they might, of the show trials that were a prominent feature of the Soviet Great Terror in the late 1930s. The Soviets used these first trials of Nazi sympathizers to appeal to world opinion as well as to strengthen morale. Soviet practice, therefore, began to favor some kind of trial over summary execution. The Soviets’ intention, of course, was to use the format of a trial to demonstrate the guilt of the accused.

The governments of the United States and Great Britain were concerned about these Soviet show trials just behind the lines. They were especially worried lest the proceedings set off Nazi retaliations and lead to the execution of American and British prisoners of war who were in German captivity. Indeed, Hitler was incensed, and in response he ordered his own show trials, not of Soviet prisoners of war but of what he called “English-American war criminals” and especially “Anglo-Saxon terror bombers.”
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Hitler’s orders were in fact followed up, but eventually came to nothing, as often happened to many of his more destructive orders by war’s end.

The U.S. government, prodded by Stimson, gradually came to accept
the view that judicial proceedings were preferable to summary executions. Stimson could not simply voice his opposition to Morgenthau, who seemed to have the support of President Roosevelt; he had to come up with an alternative. In September 1944 he gave the task of looking into such a plan to his assistant secretary John J. McCloy, who passed it down the chain of command. Eventually Colonel Murray C. Bernays produced what turned out to be a key document in the evolution of American policy.

Bernays was a lawyer in civilian life. He drew up a paper on what he called the “trial of European war criminals,” in which he made strong arguments in favor of due process. He claimed that a trial would have enormous advantages over mere political condemnation — such as had followed the end of the previous war. Bernays argued that the Nazis could and should be charged with conspiracy to commit crime. Moreover, he maintained that certain organizations (such as the Nazi Party, the Gestapo, and the SS) could be indicted, not just a few individual leaders. Such organizations would also be charged with being part of a criminal conspiracy. It would not be necessary to charge every single person in the organization, just “representative individuals.” Once the organization was tried and convicted, an individual member could be judged as a criminal coconspirator, and given a summary trial by the Allies. It is important to note, however, that contrary to what some of the defendants said when they spoke with Goldensohn, Article 10 of what became the charter of the International Military Tribunal did not simply declare certain Nazi organizations to be criminal. That decision was left to the tribunal to determine. Moreover, any particular member of those organizations that the tribunal eventually found to be criminal was not automatically deemed to be criminal. Each had the right to a trial.
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The political and judicial position of the American administration in favor of trials, along with the conspiracy/organizations approach, was endorsed by Secretary of State Cordell Hull, Secretary of the Navy James Forrestal, and Stimson. On November 11, 1944, they sent a memorandum to President Roosevelt with a view to providing him with guidance for the upcoming Yalta Conference.
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Roosevelt was surprisingly slow to come around, however. At Yalta (February 7–12, 1945), the president apparently made no mention of the changed position of his administration. He and Churchill still seemed to prefer summary executions, but no decisions were taken.

It was Stalin and the Soviets who perhaps ultimately did most to persuade the other Allies that some sort of “judicial procedure was the way forward.”
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Stimson and others kept trying to move the president in that direction. They continued to insist on the need to avoid the impression that the Allies were seeking vengeance. That view was accepted by the new president, Harry S. Truman, after he took over when Roosevelt died suddenly on April 12, 1945.
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The demands for summary execution came to naught, as Truman adopted the position in favor of a trial put forward in late 1944 and early 1945 by Stimson, Hull, and other high government officials.
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In several meetings between the Allies in 1945, the Americans also convinced the reluctant British. By May 3 (at San Francisco), the western Allies and the Soviet Union, along with newly liberated France, all agreed in principle to judicial proceedings. By August 8, after still more months of negotiations in London, they finally worked out a charter for the trials. They established in detail how the court would be constituted and what rights the defendants would have. At the same time the Allies worked out and agreed to the four counts of the indictment: conspiracy to commit crimes, crimes against peace, war crimes, and crimes against humanity.
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Even after the Allies had agreed in principle to the trials, they had to overcome the last hurdles to holding them. Part of the difficulty lay in the fact that the liberal-democratic Anglo-American powers and the Soviet Union conceived of the trials in very different ways. The Soviets had endured extreme suffering at the hands of the invading Germans. Even by conservative and quite reliable estimates, the German-Soviet war had led to the deaths of around 25 million people in the USSR, most of whom were civilians.
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For the Soviet leaders, the trials would be more like grand show trials, designed to demonstrate the “measure of guilt” of each of the accused, after which each would get “the necessary punishment.”
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For the United States and Great Britain, however, once they finally accepted the notion of a trial, it necessarily followed (at least in theory) that the defendants had certain rights of self-defense. There also had to be an assumption of innocence until they were proven guilty and the possibility that some or all of the accused might be set free or at least found not guilty on some counts.

It was also difficult for the Allies to reach agreement about the form and procedures of the trials because Anglo-American and continental
legal traditions are quite different. The United States and Great Britain have an “adversarial” system, whereby relatively open cases go to trial, evidence is presented in court, and witnesses — sometimes also the accused — are cross-examined under oath by defense lawyers and the prosecution, who face each other in court and fight it out. On the European continent, however, there is more of an “inquisitorial” system, in which the investigative work is done by a magistrate who puts together a dossier based on the evidence. If a charge is warranted, copies of the dossier are given to the court and the accused. During the trial, it is the judges who decide whether to hear further testimony. It is they who question witnesses, but rarely cross-examine the accused, who may or may not make a statement at the end of the trial. The Soviet judge at Nuremberg — whose participation in the notorious show trials of the 1930s in Moscow was well known in the West — asked with some consternation at one of the last pre-Nuremberg meetings in 1945, “What is meant in the English by ‘cross-examine’?”
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The Americans and the British carried the day on how the trials would proceed. They worked out what is sometimes called a clever compromise with the Soviets and the French, but of course the accused had no say whatsoever in any of the pretrial discussions. They were also deprived of many of the most important rights enshrined in the American Constitution. For example, the accused could not invoke the Fifth Amendment, which would have permitted them to refuse to answer a question on the grounds that doing so might tend to incriminate them. The accused could be, and were, questioned in court, each in turn, and they could not decline to testify.

The defendants at Nuremberg were indicted on four counts, the first two of which proved to be particularly controversial for scholars of international law.

Count one
alleged that the accused had “participated as leaders, organizers, instigators or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes Against Peace, War Crimes, and Crimes Against Humanity as defined in the Charter.”
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Count two
was related to the first and indicted the defendants and diverse others who, over many years, “participated in the planning,
preparation, initiation, and waging wars of aggression, which were also wars in violation of international treaties, agreements and assurances.” This count thus indicted what were called “crimes against peace,” and obviously had to include acts of aggression like the German invasion of Poland on September 1, 1939, even though that act of war was clearly carried out as part of a joint conspiracy with the Soviet Union, which went unmentioned. The Nazi-Soviet Nonaggression Pact of August 23, 1939, not only opened the door to war but contained secret clauses about the division of Poland, which the Soviet Union also invaded from the east as Germany did so from the west.

Counts one and two, therefore, opened the tribunal to controversy, not least because they failed to indict the Soviet Union for these “crimes against peace” — which would have been politically unpalatable at the time. The very appearance of doing justice was colored also because the Soviets acted as judges and prosecutors at Nuremberg. On balance it might have been better not to have brought the first two counts at all, but to have focused instead on war crimes and crimes against humanity.

Count three
accused the defendants of having a “common plan or conspiracy to commit War Crimes.” Carrying out this plan, it was alleged, involved the practice of “total war,” which exceeded “the laws and customs of war.” More particularly, this count in the indictment pointed to crimes such as the murder and mistreatment of civilian populations, the deportation and use of slave labor, the murder and mistreatment of prisoners of war, the killing of hostages, and the plunder and wanton destruction of cities, towns, and villages.

Count four
dealt with “crimes against humanity,” which “included murder, extermination, enslavement, deportation and other inhumane acts committed against civilian populations before and during the war.” Count four also singled out “persecution on political, racial and religious grounds in execution of and in connection with the common plan mentioned in count one.”

None of the accused who were indicted before the International Military Tribunal was charged in a specific count for persecuting and murdering the Jews. Terms such as “genocide” or “the Holocaust” became current only later. “Genocide,” which was coined in 1944 by the Polish jurist Raphael Lemkin, was made into a crime by a special United Nations convention in 1948.
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“Holocaust” had existed earlier, certainly before 1939, but it was not used during the trials.
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But the unprecedented
atrocities committed against the Jews across Europe were mentioned in passing under count three, and more extensively in count four, which charged that the “mass murder” of Jews involved “millions of persons.”

These four counts brought serious charges, all of them more or less without precedent in international law. The first two were especially problematical, and without them — also without the continuing and misplaced attempt to link all the crimes to an overall conspiracy — the trials might have been more fruitful for future prosecutions of war crimes and crimes against humanity. In an effort to make its case on all counts, however, and particularly on the first — the long-term conspiracy charge — the prosecution exaggerated the intentionality and coherence of Nazi planning and policy making. The United States was especially enthusiastic about the conspiracy charge, which was somewhat familiar in American law, even if it had previously been used far more restrictively. The idea of such a wide-ranging conspiracy certainly gave the British cause for concern, but from the Americans’ perspective it had the advantage of making it possible to link pre-1939 human rights and legal abuses inside Germany to the far more egregious kinds committed during the war.

The idea of a conspiracy — which in fact informed every count in the indictment — opened the door to the defense. The counsels took every opportunity to show, not without some plausibility, that there was enormous confusion of authority in the Third Reich. They said that the regime had a haphazard, incoherent, and inefficient system of administration and government. It became common for the accused to plead ignorance, and to point to the highly compartmentalized system of Nazi administration. The defendants all claimed to have had limited knowledge and to have played no part in any long-term conspiracy.