After the Reich (83 page)

At their various meetings, the Second World War Allies agreed on the need to liquidate the top Nazis. The question was how? Should they suffer summary execution, a drumhead court martial, or should the victors risk a trial?
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When the fate of the ‘war criminals’ was discussed in Moscow in October 1943, the American secretary of state, Cordell Hull, was in favour of a drumhead court martial. The Soviet delegation could not have approved more strongly. As their Nuremberg judge, General Iona Nikitchenko, put it: the accused were ‘war criminals . . . who have already been convicted’. It was the British and Anthony Eden who reminded the conference of ‘legal forms’. Legal form was clearly important, but they all knew whom they wanted to eliminate. The British prosecutor, attorney-general Sir David Maxwell Fyfe, put it in a nutshell: ‘Our work . . . is to see the top-notch Nazis tried, condemned, and many of them executed.’ Hull’s master, Roosevelt, was in favour of shooting them, and appointed a judge to look into the possibility. His advisers, however, told the president that it would be illegal. America switched course and called for a trial, and Soviet Russia joined in. By this time the British had changed their minds and favoured summary execution!
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If there were to be trials, there had to be a law to try them by - the old maxim runs
nulla poena sine lege
(there is no crime without laws, sometimes rendered as
nullum crimen sine lege
). The Allies had to invent a body of law that would criminalise Nazi offences and backdate it to cover the period in question. It would be a code based on merging two conventions: the Hague Convention on Land Warfare of 1907 and the Geneva Convention of 1928, to which Germany (and not Soviet Russia) had been a party. It had been argued that the Hague Convention had merely framed laws and usages that had existed for centuries, but it had been assembled at a time when, for example, aerial warfare was unknown and when guerrilla armies were not taken into consideration. Some things emerged with crystal clarity: Article 23 of the Geneva Convention stated that it was an illegal act to kill or wound a soldier who had laid down his arms. It was also illegal to deny quarter. German soldiers had the Ten Commandments printed in their pay-books. It was correctly assumed that those who slaughtered POWs knew they had done wrong, and there were instances when their comrades in arms shunned them as pariahs as a result.

The result of the fusion was ‘Nuremberg Law’. Nuremberg Law was the basis of the Royal Warrant of 18 June 1945 used in the military courts in the British Zone. The British defined the ‘war crime’ as a violation of the laws and usages of war. Stalin threw everything he could at the invading German armies; and he did not play by the book. German soldiers were rightly terrified of falling into enemy hands alive. Savage reprisals were directed towards the civilian populations of the Soviet Union when German troops were slaughtered behind the lines. It was a policy that had been losing German armies friends since the time of the Franco-Prussian War, but it was an accepted ‘usage’ allowed by Article 453 of the British Manual of Military Law. As the Labour MP and KC Reginald Paget put it, ‘It was really unreasonable to expect the Germans to fight these all-in wrestlers in accordance with the Queensberry rules.’
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The Americans were even more ruthless: ‘one shot merited the destruction of a village. You will see the result in some heaps of rubble in Bavaria and Franconia. As they advanced, if a shot was fired from a village, they either stopped, or evacuated, and whistled up the air force. The isolated heaps of rubble in this relatively undamaged countryside are very striking. The result was that the Americans had very few casualties.’
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The Germans were to be judged for their behaviour in foreign territory. This was inserted at the behest of the Russians and the French. It involved the treatment of civilians: murder, abuse, deportation, slave labour; the murder of prisoners of war, killing hostages, plunder of public or private property, ‘the wanton destruction of cities, towns or villages, or devastation not justified by military necessity’.
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‘Genocide’ was a new word for a relatively new crime. The destruction of the European Jews figured as only a small part of the case against the Germans in the early trials. The killing of German and Austrian Jews on the territory of the Greater German Reich was not automatically covered as it was theoretically the legal right of a sovereign state to dispose of its citizens as it pleased. On the other hand there was agreement that Julius Streicher should be done to death, so legal nicety had to be bent a little as he was not really guilty of any other crime that had been brought to the Allies’ attention.
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The persecution of German and Austrian Jews at home was therefore vaguely included under the aegis of ‘aggression and the preparation for unjust war’.

For the Russians the massacre of Jews was hardly of interest, although half a million of their Jewish citizens were slaughtered by the Nazis. The reason for this was the rampant antisemitism they themselves experienced after the war in reaction against the upsurge in Zionism. On the other hand the prosecution found the Final Solution increasingly useful when it came to breaking down the defendants. Films of the concentration camps had a sobering effect even on such seasoned performers as Göring and Hess. By the time the trials were under way no German was an antisemite any more. As one later commentator glibly put it, ‘there was hardly a defendant who could not produce evidence that he had helped some half-Jewish physics professor, or that he had used his influence to permit a Jewish symphony conductor to conduct a little longer, or that he had intervened on behalf of some couple in a mixed marriage in connection with an apartment’.
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There was very little call for retribution from Jewish groups at first. Henry Morgenthau remained a voice in the wilderness, and Truman for one wanted to keep him there. He later resigned in a huff. Zalman Grinberg, president of the liberated Jews in the American Zone, accused the Allies of a lack of concern, and wondered whether this would have been the case if another race had been the victim of a similar purge. Morgenthau continued to thunder, as did the presidential adviser Bernard Baruch and the columnist Walter Winchell, but they were not greatly heeded. On the other hand the enormity of the crimes committed by Germans did provoke Americans to calls for the severest punishments in the spring of 1945. Joseph Pulitzer of the
St Louis Post-Despatch
thought 150,000 Nazis should be shot. Congressman Dewey Short of Missouri advocated mass executions of SS and OKW men.
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The hypocrisy of Nuremberg Law alarmed many people. One was the Indian jurist Rahabinode Pal, a judge in the Tokyo trials, who dissented from the judgments, seeing the sentences meted out as retrogressive, ‘a sham employment of legal process for the satisfaction of a thirst for revenge’. Field Marshal Lord Montgomery also disapproved of the tenor of the trials that ‘have made the waging of unsuccessful war a crime, for which the generals of the defeated side would be tried and then hanged’. He understood that if the Germans had won the war, he might have been put on trial himself.
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Shortly after a British Military Court in Hamburg sitting in the aptly named Curio-Haus had condemned Field Marshal Erich von Manstein to eighteen years in prison, the Korean War broke out, and the German press was happy to report that the American army was accused of precisely the same atrocities as the field marshal.
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Many contemporary observers agreed with Pal and believed the scores of trials that took place after the end of the war were simply a case of victors’ justice. These dissenters included soldiers, jurists and judges. The Soviets, who provided a general as their prosecutor in the main trials in Nuremberg (he had been involved in fake trials in the 1930s and later became the director of Sachsenhausen concentration camp in its first years under Soviet management) and a more junior officer as a judge, constantly reminded the Western Allies that the purpose of the tribunals was to punish the defeated enemy. Yet the Soviet attitude was in some senses the most lenient, because they of all the nations that had defeated Nazi Germany were the most likely to have committed atrocities on a similar scale.

Reginald Paget KC was one of the most stentorian voices raised against the trials. He agreed to lead Field Marshal von Manstein’s defence team gratis, describing the Royal Warrant as ‘simply an exercise of the power of the victor over the vanquished’. As far as he was concerned, none of the convictions would have been secure in an English court, and they would all have been quashed by the Court of Appeal. For Paget the conqueror had no right to impose a form of trial which he ‘would consider inadequate for his own citizens’.
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And yet something needed to be done. The Germans had performed terrible acts. To claim that what they had done was in no way illegal because they were obeying higher commands or putting through the secret policies of the state was simply not good enough: not all Germans had sat around waiting for homicidal orders; many had acted on their own initiatives. Trials would also have the further advantage of recording the acts of the Nazi regime, providing a huge quantity of sworn evidence about the workings of the state. They would also have the effect of laying the blame. The American prosecutor Justice Robert H. Jackson made it clear: they were not trying the German people, just the men in the dock. Although many condemned the trials at the time, a precedent was set for war crimes and crimes against humanity and there is little protest against global jurisdictions today. Clay realised that the courts were establishing something. Writing to Jackson’s successor Colonel Telford Taylor on 17 October 1947, he said, ‘At Nuremberg we are establishing procedure for [the] future and not aiming at any specific individuals. History will make no distinction between a von Rundstedt and a von Leeb.’
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Under Nuremberg Law, the implication was that any officer who received what was
later
liable to be interpreted as a criminal command must refuse to carry it out, although - as Paget pointed out - both the British and American Manuals allowed superior orders to be used as a defence for ‘criminal’ actions.
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In reality that meant an officer had to resign his commission. In Nazi Germany the response would have been a court martial and a firing squad. Colonel General Beck
did
resign his command in 1938, and encouraged other generals to follow his example (none did), but that was not in wartime. He was one of the movers and shakers behind the various military and civil plots to remove or kill Hitler between 1938 and 20 July 1944, when finally he did indeed pay with his life.

Suggesting that generals had absolute authority within their areas of command was also to misunderstand the nature of Hitler’s regime. Like Stalin, the Führer was a great believer in
impera et divida
. He alone had enjoyed unrestricted power; the underlings had to jostle for position beneath him. On the battlefield this became a struggle for control between the SS and the Wehrmacht. The SS reported to Himmler, who answered to Hitler. The Waffen-SS had the advantage of better equipment, while the traditional army tended to lead the campaign under experienced generals, the majority of whom hailed from the traditional, Prussian officer corps. The SD was responsible for the dirty work behind the lines. It, too, answered to Himmler, but its actions within the Wehrmacht domains were agreed by the general commanding, which - as so often in Hitler’s state - involved making the traditional general
complicit
in the actions of the SD either by co-operating with it or by agreeing to take over its functions by rounding up commissars, partisans or Jews. It was not Hitler’s or Himmler’s intention that anyone should emerge from the conflict with clean hands. Even diplomats were obliged to sign memos that said they agreed with the policy of deporting the Jews.

Paget pointed out that ‘usages’ were not considered binding in the British Manuel of Military Law and ‘could be disregarded by belligerents’. There were other fishy aspects to the Royal Warrant that had been taken from Nuremberg Law: the accused was not allowed to know the charges nor what evidence was adduced against him; he could not challenge the authority or jurisdiction of the court; he could not insist on being tried by his peers - and was generally subjected to the judgments of those holding inferior rank and therefore diminished responsibility. The Royal Warrant disregarded the long-established rules of evidence and admitted hearsay. The statements of hearsay witnesses were not only given credence, the witnesses were not summoned and could not be cross-examined. There was no right of appeal.
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Paget also made it clear that the defendants remained prisoners of war, because Britain had not brought hostilities to an end. As POWs they could demand particular treatment. POWs had rights in international law: the captor had to treat them as well as he did his own troops and subject them to the same law as he would apply towards his own men.
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Interrogations

Before the German war criminals could be put on trial they needed to be apprehended and interrogated. The British, for example, possessed a remarkable collection of Nazi-hunters. They included men who later achieved fame in other spheres, such as Robert Maxwell
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and the historian Hugh Trevor-Roper. The interrogations and the accumulated details of Nazi crimes had another role - they could be used against the German population. Trevor-Roper was compiling his report for British intelligence at the time. It was published as
The Last Days of Hitler
and was considered to be excellent propaganda for the Allied cause. Trevor-Roper hardly needed to be encouraged to belittle the Nazi leadership and show the Germans how foolish they had been to follow them.
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