The material cost of vengeance is high enough, but the moral and political consequences are incalculable. It is as urgently necessary to revive the German people's faith in democratic justice as to cease destroying their assets and capacity to work for the rehabilitation and defense of Europe.
Four years after their unconditional surrender the Germans are still rechtlos : without civil or political rights and without the security offered by a government of laws not of men.
As one prominent German lawyer said to me at Nuremberg : "We have merely exchanged one dictatorship for another; after twelve years of Hitler's lawless rule, we have had four years of military government with its similar arbitrary decrees and denial of justice."
The basis of democracy is government of laws not of men, and this means that the law is known and applied to all. But at Nuremberg we not only applied ex post facto law but also stated that it applied only to Germans. According to the judgments of the United States tribunals at Nuremberg the will of the conquerors is absolute, and the vanquished have no right to appeal to international law, American law, or any other law against it.
Instead of teaching the Germans that "crime does not pay," we have enunciated the theory that the victors are entitled to do anything they please to the vanquished once the war is over. According to the logic of our judgments at Nuremberg, the Germans are punished, not for having committed war crimes, but for having lost the war.
The belief that Might makes Right is clearly stated to be the basis of the trials the United States has conducted at Nuremberg. "We sit," said the American judges, "as a Tribunal drawing its sole power and jurisdiction from the will and command of the four occupying powers. . . . In so far as Control Council Law No. 10 may be thought to go beyond established principles of international law, its authority, of course, rests upon the exercise of the 'sovereign legislative power' of the countries to which the German Reich unconditionally surrendered."*
Few Americans at home may be aware of it, but their representatives at Nuremberg have expressly stated that the victors are not bound by the same laws as the vanquished. When the German defense counsel argued that if it was a crime against international law for the Germans in occupied Poland and Russia to confiscate private property, use civilians and prisoners of war as forced laborers, and starve the people in the occupied territories, then why is it not also a crime for American, British, French or Russian Military Government to do the same thing, they were told :
"The Allied Powers are not subject to the limitations of the Hague Convention and rules of land warfare."
"Because," said the American judges and prosecutors at Nuremberg, "the rules of land warfare apply to the conduct of a belligerent in occupied territory so long as there is an army in the field attempting to restore the country to its true owner, but these rules do not apply when belligerency is ended, there is no longer any army in the field, and, as in the case of Germany, subjugation has occurred by virtue of Military conquest." † (Italics added.)
In other words, if Germany had won the war, she would have ceased to be bound by international law, and none of her nationals could be held guilty of having committed war crimes or "crimes against humanity." Since we won it we are not limited in any way by the provisions of the Hague or Geneva conventions, or by any international or recognized law.
The argument that what is a crime during war ceases to be one as soon as the fighting stops, is surely the choicest bit of legal sophistry thought up by Mr. Justice Jackson, or Brigadier General Telford Taylor who succeeded him as chief United States Prose-
cutor at Nuremberg. It is tantamount to saying that you must not hit a man below the belt while you are fighting him, but you can kick him in his most sensitive spot once he is down and out.
The argument that the Hague and Geneva conventions ceased to be binding on us the moment the Germans surrendered unconditionally was continually repeated by the American judges and prosecutors at Nuremberg : "A distinction is clearly warranted," it was stated in the Judges case, "between the measures taken by the Allies prior to destruction of the German Government, and those taken thereafter. Only the former need to be tested by the Hague Regulations, which are inapplicable in the situation now prevailing in Germany."
This theory was given immediate application after Germany's surrender. Many German prisoners of war in American hands, who had hitherto been decently treated, suddenly found themselves transformed into rightless men liable to be forced to work long hours for a pittance in consequence of a disposition made in Washington. Instead of being sent home at the war's end, according to the Geneva Convention, their American captors handed them over to the French to be used as slave laborers in mines and factories. The French thereupon deprived them even of their warm clothing and the dollars they had earned as prisoners of war. The British similarly kept German prisoners of war as forced laborers for years after the end of the war.
President Truman's agreement at Potsdam, that "reparations in kind" should be exacted from Germany in the form of labor conscripted to work in the victor countries, gave Stalin the right to add hundreds of thousands more German slave laborers to the gangs of prisoners of war already working in Russia.
This imitation of Nazi practices was given a "legal" basis by the convenient thesis that international law ceased to be binding upon the victorious "democracies" on May 15, 1945, when Germany surrendered unconditionally.
The fact that only the Germans are liable to punishment for war crimes, because they were defeated and have no government to protect them, was expressly stated at Nuremberg :
"It must be admitted that Germans were not the only ones who were guilty of committing war crimes; other violators of international law could, no doubt, be tried, and punished by the state of which they were nationals, by the offended state if it can secure
jurisdiction of the person, or by an International Tribunal of competent authorized jurisdiction."
"The apparent immunity from prosecution of criminals in other states," the Germans were told, "is not based on the absence there of the rules of international law we enforce here" [at Nuremberg], but is due to our exercise of sovereignty in Germany as against the impossibility of any international authority assuming power "within a state having a national government exercising sovereign power."*
In other words, the conquest of Germany and elimination of her government makes German nationals liable to prosecution while the nationals of undefeated countries are not so liable. The fact that only the defeated are liable to punishment for breaches of international law was expressly stated in the Generals case (No. 7). When the German defense counsel argued that such acts as "devastation unwarranted by military necessity"; the seizure of private property; the infliction of general penalties, "pecuniary or otherwise," upon the population of occupied territories; "requisitions in kind and services demanded from municipalities or inhabitants except for the needs of the army of occupation," and "out of proportion to the resources of the country"; seizure of "cash funds and realizable securities which are not strictly the property of the state"; compulsory recruitment from the population of an occupied country for labor in the occupying country; and other acts expressly forbidden by the Hague and Geneva conventions had all been committed by the victors as well as by the Germans, the American Tribunal replied :
"It has been stated in this case that American occupational commanders issued similar orders. This Tribunal is not here to try Allied occupational commanders, but it should be pointed out that subsequent to the unconditional surrender of Germany, she has had no lawful belligerents in the field.†
In their anxiety to prove that only Germans should be punished for war crimes, the American judges and prosecutors at Nuremberg with their theory concerning the difference between what is permitted under a "nonbelligerent" occupation, but not permissible while fighting is going on, have got the Americans and the British into an ambiguous position. Mr. Richard Stokes, the English
Labour Member of Parliament, argued in a speech made in the House of Commons on June 30, 1948 :
I doubt very much if we are legally entitled to take reparations until there is a peace treaty. I should like to hear the opinions of an international lawyer about that. I believe that reparations form a part of peace terms, and are not a consequence of the cessation of hostilities, even if this involved unconditional surrender. I believe that reparations taken before a peace treaty are loot, and nothing else. Honorable Members may not like the term, but that is what I believe it is in international law.
Such legal and moral scruples have not troubled the American prosecutors at Nuremberg, who have felt secure in the knowledge that the American public has been left completely ignorant by its press and Congress of the moral and legal issues at stake. Some of the United States Judges sent to Nuremberg, however, have felt qualms in applying an unprecedented law based on nothing but the power and will of the conquerors. In the "Judges Case" where the basis for the judgments pronounced at Nuremberg was most clearly expressed, the United States Tribunal endeavored to reassure itself by saying : "Surely Control Council Law Number Ten, which was enacted by the authorized representatives of the four greatest powers on earth, is entitled to judicial respect." The will of the Big Four Powers was thus held to provide the sanction reserved to the Deity or to a rational concept of the Rights of Man in other legal systems.
While maintaining that international law does not apply to our occupation of Germany because her unconditional surrender transferred sovereignty to the occupying powers, it was also stated at Nuremberg that "the fact that the Four Powers are exercizing supreme legislative authority in governing Germany for the punishment of German criminals, does not mean that the jurisdiction of this Tribunal rests in the slightest degree upon any German law, prerogative or sovereignty."
This latter statement is obviously in direct contradiction to the first, which claims that the transfer to us of sovereignty in Germany justifies our repudiation of international law. We have the Germans both going and coming. We refuse to observe international law because we are the "sovereign" power; and we refuse to apply American or German law because our tribunals derive their power from "international authority." The Germans are left rechtlos—
without the protection of any law and subject to the arbitrary decrees issued by their conquerors. We have, in fact, outlawed the whole German "race" as Hitler outlawed the Jews. In the name of democracy we have subjected the German people to the rule, not of laws but of men.
Since no peace treaty has been signed and yet our occupation of Germany is held to be "nonbelligerent," the question arises : "What is its legal basis?" Is the United States ruling its zone in Germany as a colony in theory as well as practice? In that case should not either "native" law or American law be applied, since international law has been ruled out? The answer given to the German defense counsel was in the negative.
Neither international law, nor German law, nor American law, nor the basic principles of Anglo-Saxon jurisprudence were the basis of the indictments, procedures, and judgments of the Nuremberg Tribunals.
The British, French, and Russians withdrew from Nuremberg after the first and only "International Military Tribunal" (I.M.T.) had tried and condemned Goering and other top Nazi leaders. The other twelve trials which subsequently took place at Nuremberg and only came to an end in November 1948, were all-American shows. The judges and prosecutors were all American citizens; the trials were held under the American flag; the proceedings began each morning by the Marshal of the Court asking God's blessing on the United States of America; and the indictments ran : "The United States of America, plaintiff versus the defendants." Nevertheless the tribunals were supposed to be "international" and to derive their authority from the Allied Control Council even after the latter ceased to exist.
Neither the principles nor the procedures of American jurisprudence were followed, and the defendants were debarred from appealing to the Supreme Court or any higher authority than the United States Military Governor. The verdict of the American judges who constituted the Tribunal was absolute, except for the right of General Clay to mitigate the sentences.
The "legal" basis for these trials was Control Council Law No. 10, drawn up by the United States, the Soviet Union, Britain, and France for the "Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity."
Far from being the beautiful child of International Justice as Mr. Justice Jackson still maintains, CC Law No. 10 is the mon-
strous offspring of Communist "Peoples democratic justice" and the savage principle of "Woe to the Vanquished."
It is based on the totalitarian concept of collective guilt and punishment. It decrees that anyone, who in any capacity, military or civilian, aided or abetted the German war effort, is guilty of the crime of waging aggressive war. Its scope is so wide that it defeated its purpose. American judges sent to Nuremberg to judge war criminals have not known where to draw the line without incriminating the whole German population and creating a precedent for the incrimination of all Americans in any future war designated as "aggressive" by the Communists. For CC Law No. 10 can be held to mean that the peasant or farmer who produced and sold food, the industrialist who continued to give employment and the workers employed, the civil servant and the soldier who obeyed orders, are all guilty.
CC Law No. 10 seems in fact to have been a "legal" attempt to indict the whole German nation and thus justify the Morgenthau Plan. But such was the reluctance of most American judges to administer totalitarian "justice," that none but the top policy makers condemned by the International Military Tribunal have been sentenced on this count, in spite of the passionate efforts of the American prosecution to secure convictions.*
Unfortunately, however, the articles of Control Council Law No. 10 relating to "war crimes" and "crimes against humanity" which are equally wide in their scope have been the basis for the sentences imposed at Nuremberg by American Tribunals.
According to CC Law No. 10 you are accounted guilty of a war crime or atrocity if you "took a consenting part therein" (i.e., obeyed orders); were "connected with plans or orders involving its commission"; were "a member of any organization or group connected with the commission of any such crime"; "held a high position, civil or military" (including General Staff), or "held a high
position in the financial, industrial or economic life" of Germany or its allies or its satellites.
This latter provision suggests the influence of the Communists in drawing up the CC Law No. 10, since it indicts most of the capitalist class.
The American judges at Nuremberg insisted on drawing a line and would not apply the principle of collective guilt in the manner demanded by the prosecution. They insisted, for the most part, on proof of some direct responsibility or overt act, and thus modified the law, instead of acting like Soviet judges. Nevertheless, in many cases the judgments at Nuremberg have no basis in international law and bear the imprint of a Communist conception of justice. This was notably the case when Alfred Krupp was indicted and condemned in place of his father, although the younger man had never been in control of the Krupp enterprises.
It was strange and horrifying to sit listening to the proceedings in the Ministers case (No. 11) in the same courtroom in which the representatives of the Soviet dictatorship had formerly shared the bench with American, British, and French judges, and to hear American jurists in November 1948 refer to the judgments of the International Military Tribunal as precedents. When one reflected that General Rudenko, who was the chief Russian prosecutor at the International Military Tribunal trial, is now commandant of the Sachsenhausen Concentration Camp in the Russian zone, one could appreciate what kind of "justice" was being administered by American judges at Nuremberg.
The powers and procedure to be followed by the American Nuremberg Tribunals were laid down in United States Military Government Ordinance Number Seven. This ordinance specifically states that American rules of evidence are not to be applied by the judges. Hearsay and double hearsay evidence is permitted, and it is left entirely to the discretion of the judges whether or not the defense be permitted to question the authenticity or probative value of evidence. It is worth reproducing Paragraph VII of Ordinance No. 7, since it is one of the bitterest complaints of the German defense lawyers that all known rules of evidence were jettisoned by the Nuremberg Tribunals :
The Tribunals shall not be bound by technical rules of evidence. They shall adopt and apply to the greatest possible extent expeditious
and non-technical procedure, and shall admit any evidence which they deem to have probative value. Without limiting the foregoing general rules, the following shall be deemed admissible if they appear to the tribunal to contain information of probative value relating to the charges : affidavits, depositions, interrogations, and other statements, diaries, letters, records, findings, statements and judgments of the military tribunals and the reviewing and confirming authorities of any of the United Nations, and copies of any document or other secondary evidence of the contents of any document, if the original is not readily available or cannot be produced without delay. The tribunal shall afford the opposing party such opportunity to question the authenticity or probative value of such evidence as in the opinion of the tribunal the ends of justice require.
The Judges were also given the right to be informed beforehand of any evidence to be presented by the defense, and could refuse to allow it if they did not consider it "relevant." Considering the close proximity in which the judges and prosecutors lived in the small closed American community in Nuremberg, this proviso was taken by the Germans to mean that the prosecution would always be informed beforehand of the defense's evidence. The assumption that the judges and the prosecutors had an identity of interest was justified in at least one trial by the spectacle of the prosecutors shaking hands with the judges and congratulating them on their verdict.
The defense counsel were in any case in a very weak position. The accused had all spent a long period in prison before being brought to trial and their papers had been seized and searched by a large American staff. Whatever was useful came into the hands of the prosecution, while the defense lawyers had the utmost difficulty in securing any documents. Only in the last trial, that of Baron von Weizsäcker and other Foreign Office officials, was the defense allowed to peruse the files of captured documents in the possession of Military Government, and even in this case only a few weeks were allowed in comparison with the years during which the prosecution had prepared its case.
In the Krupp case the German lawyers never had an opportunity to search the files carefully and didn't even know if all the files had been made available.
The accused, weakened by long imprisonment and insufficient food before being brought to trial, had to rely for the most part on their memories, instead of upon documents, for their defense.
The gravest handicap of all under which the defense labored was
the difficulty of finding witnesses, obtaining access to them, and inducing them to testify at Nuremberg. The prosecution had all Military Government information and facilities at its disposal for locating witnesses, and the right to imprison them, interrogate them endlessly and exert fearful pressures to induce them to testify as the prosecution desired.
The defense lawyers had neither access to Military Government information, nor communication and transport facilities, nor funds to spend on searching for witnesses, since the property of all the accused was sequestered before they were proved guilty.
At the time of the International Military Tribunal trial of major war criminals, nearly all the witnesses were in jail, and could not be interviewed by the defense if the prosecution claimed them as its witnesses. By 1947 the situation had improved so that most witnesses were free, although some were still in prison and could be interviewed by the defense counsel only in the presence of a representative of the prosecution.
Naturally, witnesses whose release from imprisonment depended on the favor of the United States Military Government were reluctant to give any testimony contrary to the desires of the prosecution. Moreover, even those not in custody were frightened by the close connection between the prosecution and the denazification authorities.
There was a "Special Projects" branch of Military Government in the Palace of Justice at Nuremberg, which analyzed all the documents presented at the trials with a view to uncovering such evidence as might convict the witnesses in denazification courts. Thus many witnesses found themselves hauled off to prison to be tried by denazification courts supplied with evidence against them by the "Special Projects" branch.
The fear of all witnesses that they would land up in prison themselves if they came into the United States zone to testify at Nuremberg was so great that in the fall of 1947 Military Government had to give "safe conducts" guaranteeing their return home to witnesses living in the British and French zones.
Witnesses at Nuremberg were never subject to the horrible tortures used at the Dachau Military Tribunal trials, which I deal with in the next chapter. At Nuremberg the pressures exerted on witnesses by the prosecution were mental rather than physical. It was often possible to get the testimony required from a witness by keeping him in prison for two or three years in terrible anxiety for
the fate of his family, left unprovided for, or by threatening him with being arraigned as a war criminal himself if he refused to testify against the accused.
In some cases the all-too-familiar weapon of Military Government in Germany was employed : the threat of handing over an un-co-operative witness to the Russians. This practice was dramatically revealed in the trial of Baron von Weizsäcker and other German Foreign Office officials, in the fall of 1948.
Van Weizsäcker had so many eminent liberal friends abroad who testified to his innocence that it was possible to raise funds to hire an American lawyer for his defense. Mr. Warren Magee of Washington, D.C., came to Nuremberg and, being an American, was able to obtain access to documents denied to the German defense counsel. He managed to get hold of a transcript of the interrogation of Friedrich Gaus, who although designated as the "Grey Eminence" of the German Foreign Office, and as "Ribbentrop's evil spirit," had become the prosecution's chief witness. There was a sensation in court when Mr. Magee read out the transcript of Gaus's first interrogation which showed that Mr. Kempner, the American prosecutor, had threatened to hand Gaus over to the Russians, if he did not help the prosecution.
The highhanded manner in which the American Tribunal treated the defense counsel in several of the trials, and the denial to the defense of the right to examine or cross-examine many witnesses, led to one of the biggest scandals of the Nuremberg trials, and finally discredited American justice in German eyes.
The American judges in the Krupp case were from all accounts more prejudiced and un-American in their method of conducting a court of law than any others who came to Nuremberg. They continually overruled the defense counsel, while allowing the prosecution to shout and rant at the witnesses and the German lawyers. Finally, Judge Daly drove the defense counsel to leave the court in a body in protest. He first overruled the German lawyers' objections to the examination of witnesses out of court by a commissioner, and then arranged for the examination to take place while the Tribunal was sitting, so that the defense lawyers would have no opportunity of being present unless they could arrange among themselves which of them would stay in court and which of them be present at the commissioner's examination.
When one of the defense counsel started to ask for an adjournment in order that this could be done, he had hardly opened his
mouth before Judge Daly, then presiding, said to him : "Take your seat or I'll order you out of the courtroom." The German, Dr. Schilf, having started to say, "Ich bitte darum" ["I beg you"], Judge Daly told him to "remove himself." Thereupon the other defense counsel followed him out of the court in a spontaneous protest.
Not having been permitted to speak, the German lawyers sat down to draft a written statement asking to be allowed to exercise their right to be present at the examination of witnesses. Before they could present it to the Tribunal, they were all arrested and taken into custody. They were kept in prison over the week end and then asked to apologize for their "contempt of court," although the apologies would seem to have been clearly due to them, not from them.
Dr. Kranzbuehler, who was Krupp's counsel and a brilliant jurist, had been absent on a case in the French zone when this incident occurred. On his return, which coincided with the release of his fellow defense lawyers from prison and the demand that they all apologize to the court, he made a statement to the Tribunal, part of which I reproduce below. Because of the contempt of American justice shown by this Nuremberg Tribunal applying the bastard law based on CC Law No. 10 and United States Military Government ordinance No. 7, Kranzbuehler was able to shame the American judges.
Referring to the question of whether or not the German lawyers had been guilty of "contempt of court" he said :
I am in the unfortunate position of not knowing according to which law this decision is to be taken. Yesterday the Tribunal through Judge Wilkins explicitly refused to apply American law. It has rather tried to base its decision, or based its decision, on Ordinance Number Seven which gives the authority to the Tribunal to have a summary proceeding "with contumacy," as it is said there.
I would like to comment on this as follows : The question of which law is to be applied is of fundamental importance. The attorney has grown up and is trained in the legal concepts of his country. When, in a task that he has undertaken as a German lawyer, judgment is suddenly passed under the legal system of a country which is foreign to him, or according to a legal system which does not belong to any country at all, but the significance and interpretation of which is entirely up to the discretion of the Tribunal, then there is great danger that decisions are passed which in his eyes are a grave injustice.
The German defense counsel is already surprised to ascertain that his conduct is considered according to the same procedural regulations as apply to the trial of alleged war criminals, that is, rules which are drawn up for a specific purpose, and that this is the opinion of the Tribunal has definitely been confirmed to me when I moved that Judge Daly should be excluded because of prejudice. Therefore, without regard to which law the Tribunal will finally consider using, I state the principles which would be guiding for such incidents as occurred here under German law. Only then will the Tribunal understand the basis of the instinctive reactions of the defense attorneys present here.
According to German procedural law, it is first of all a breach of duty for a judge not to hear a motion by defense counsel. Such a breach of duty entitles a German defense counsel, among other things, to complain to the superiors of such a judge. Furthermore, a German defense counsel has the possibility, when he deals with a tribunal which is made up of several judges, to object against the ruling of one of the members of the tribunal and to appeal beyond that to the decision of the whole of the tribunal. Therefore, according to German procedure, it was right for Dr. Schilf to do what he did. In addition, a German judge is not permitted to dismiss a defense counsel from the courtroom so long as he performs his duty.
Under German law there are very often long and heated discussions between the tribunal and the defense counsel, and no judge would think that he could hold a defense counsel guilty of contempt of court because of objections on the part of the defense counsel to the statements of the tribunal. For such a conception, Your Honor, is not included in German law. The judge has no disciplinary authority against a defense counsel. . . . If the tribunal believes that the defense counsel has not fulfilled his duty properly, then it can appeal for a decision to the bar association having jurisdiction. On the other hand, however, the defense counsel has the right to complain about the tribunal if he believes that their attitude caused him to be dismissed from the courtroom.
With biting sarcasm, Kranzbuehler observed :
These in large outlines are the fundamentals of German law. Your Honors will probably agree with me that under such legal training the events look entirely different than they look from your point of view under the legal training of an American Judge.
While making his oblique denunciation of "American" justice as applied at Nuremberg, Kranzbuehler made good use of his opportunity to protest against the unfairness of the whole proceedings; and he was heard through to the end, perhaps because Judge
Schick, United States president of all the courts, had told Judge Daly and Judge Wilkins that they had got themselves into a mess and warned them to behave with more circumspection.
This is the third trial [Kranzbuehler said] which I am experiencing at Nuremberg. I cannot say that I am spoiled in my expectations of Nuremberg trials which is partly caused by the nature of the whole procedures. . . . Many and grave anxieties have overshadowed the defense counsel in this trial to an enormous degree.
After protesting the kind of evidence decreed as inadmissible by the Judges, he concluded by saying :
I would ask the Tribunal to consider that these defendants have been in an almost hopeless position from the beginning, and are entirely dependent upon our being able to assure a fair trial for them. I know the Tribunal will probably say or perhaps think : "That is our business as judges, to safeguard a fair trial." But, Your Honors, you will probably have to admit that—I still remember the words which were said at the beginning of the session yesterday—that "ultimately this is a trial of the victors against the vanquished." In the judgment in the Flick case, right at the beginning, this fact was mentioned specifically. The Tribunal deduced from this its duty to safeguard all the rights and privileges of the defendants in every detail; but in these trials, here in Nuremberg, such a guarantee is only valid if either the Tribunal itself creates all the prerequisites for a fully fair trial, or if the defense counsel is in a position, because of their motions and objections, to insist that the trial be a fair one.
If you consider for a moment, Your Honors, that you have here the unlimited authority of an American judge, which you know from your own home country, but that we have not all the guarantees here which you have in your country to prevent a wrong or, in the eyes of the defense counsel, unjustified use of such authority. These defendants have no constitutional rights. It has been confirmed again and again to them that guarantees as given in American procedure are not applicable to them. . . . Neither is there a powerful press, which in complete independence, can see to it that no misuse of power can occur. . . ."
Dr. Kranzbuehler, also referred to the enormous responsibility of the German defense counsel at the Nuremberg Trials owing to the fact that there is no higher court of appeal. He had himself, on February 27, 1948, sent a telegram to President Truman saying that "all endeavors to secure a fair trial" had been frustrated "on account of rules originating from American military authorities," and appealing to the President of the United States for "help and re-
lief." His appeal was not answered. It was referred back to the United States Military Government on the ground that the "international status of the Nuremberg tribunals based as they are on quadripartite agreement precludes any responsibility or duty resting upon any executive agency of the United States Government to entertain any such petition or plea." Kranzbuehler was further informed that no such German petitions would in future be transmitted by Berlin.
Thus, by the hypocritical pretense that the American Nuremberg Tribunals were "international," the United States washed its hands of responsibility for the conduct of its own judges. If this is the way we expect to teach respect for justice and democracy to the Germans, we must be among those whom the gods mark out for destruction by first making them mad.
The subject of the Nuremberg trials requires a book, not a few pages. I have endeavored here only to present the basic assumptions of the trials, so that the American public may know how justice is mocked in their name.
A Swiss journalist pointed out the disservice which these trials have rendered to the interests and reputation of the American people. Writing in Die Weltwoche of Zürich in October 1948, Robert Ingrim, quoted what Alexander Hamilton had said in 1788 :
To establish an act as a crime after it has been committed, or in other words to punish people for things which did not violate any law when committed, and the practice of arbitrary detention, were at all times the most favorite and also most horrid tools of tyranny.
Many of the condemned at Nuremberg were, no doubt, guilty of hideous crimes and deserved their sentences. But, as the Swiss journalist pointed out, the effect of verdicts based on ex post facto legislation violates the sense of justice so that even justified convictions leave doubts among a large number of people. We have made martyrs of criminals by the Nuremberg trials, and given a new lease on life to Nazi doctrines by our own transgressions against fundamental democratic principles.
Lastly the Nuremberg trials have aroused a justified suspicion, not only in Germany but also in other European countries, that the real objective of the Americans responsible for them was to "level the social structure of Germany." The aim of the prosecution at Nuremberg seemed to be to prove that "the capitalists and landowners" were the main support of Nazism, and to obscure the re-
semblance of the Third Reich to Stalin's Russia. Hence the endeavor to indict Flick and Krupp and other German industrialists as war criminals. Hence also the trials of German generals, some of whom had in fact opposed, not encouraged, Hitler's mad ambitions. Hence also, and far more unjustly, the arraignment at Nuremberg of Baron von Weizsäcker, the aristocratic diplomat who had continued in office under the Nazis, but whose endeavors to prevent war and to save the victims of Nazi terror were attested at his trial by such persons as Lord Halifax and other Englishmen in other responsible positions; the former French Ambassador François-Poncet : Carl Burckhardt, former High Commissioner of the League of Nations in Danzig; von Steiger, the President of Switzerland; Bishop Berggrav, the leader of the Norwegian resistance movement under German occupation; the Pope; the American Catholic Bishop Muench, of Fargo, North Dakota, now Apostolic Visitor in Germany; the Protestant Bishop Wurm of Stuttgart, who was persecuted by the Nazis : and many of the relatives of Hitler's blood purges, including Jews.
As the afore-mentioned editor of the Swiss Weltwoche suggested, "by dragging the Junkers, militarists and industrial barons in the dust, not on the basis of individual guilt but collectively," the prosecution at Nuremberg was endeavoring to pave the way for Stalin by obscuring the fact that Nazism was akin to communism, and by falsely representing it as a "concoction of the German upper classes." They were endeavoring to destroy, not the Nazis but the pre-Nazi social structure of Germany, based on private property, free enterprise, and the European tradition.
The Kempners of Nuremberg [wrote Robert Ingrim] cannot get over the fact that the list of those executed after [the plot against Hitler of] July 20, 1944, looked like an excerpt from the Almanach de Gotha. Deep down in their hearts those who adored the masses were much closer to the Führer than to Moltke, and Stauffenberg : for Hitler was spirit of their spirit, the most common of all common men, the national socialist, the owner of the miraculous formula which offers self-adoration in the nation as compensation for the inferiority complex of common men.
There are grounds for suspecting that Brigadier General Telford Taylor, who as Chief Counsel for War Crimes directed the Nuremberg Trials after Justice Jackson's departure, was sympathetic to the Soviet Union. For instance, he refused even to apply to the
Soviet Government for the extradition of German witnesses in Soviet territory, such as the notorious Nazi, Martin Bormann, suspected to be still alive, because it might be "embarrassing to the Russians."
When asked by the correspondent of the London Evening Standard whether the Russian campaigns in Poland, Finland, Roumania, Lithuania, Latvia, and Estonia could be considered as "aggression" under the International Military Tribunal findings, General Taylor replied : "Whether a particular episode constitutes a crime against the peace is not determined solely by legal definitions, but by the evidence relating to 'action' and 'state of mind.' " And he went on to say that it was not his function as chief prosecutor to comment on "episodes outside his competence."
Asked before leaving Germany on September 25, 1948, whether the transfer of German workers to slave labor in Russia is in contravention of the laws established at Nuremberg, General Taylor said that the evidence concerning this was only "lay" evidence and that Russia's action ought, in any case, to be considered "in relation to the existing situation."
These remarks are not conclusive proof of where General Taylor's sympathies lie, and since he had left Nuremberg before I got there, I had no opportunity to interview him myself. But the consensus among the correspondents devoid of Communist sympathies supported the German and Swiss conviction that he was a sympathizer, or dupe, of the Communists who have derived such great benefits from the travesty of American justice at Nuremberg.
In spite of the 115 convictions at Nuremberg, including 18 death sentences, which he had secured out of a total of 144 completed cases, General Taylor was not satisfied with the result of his efforts. For he not only failed to secure the conviction of any German capitalists on the aggressive war count, but he was also unsuccessful in trying to persuade the British to stage any trials similar to the political trials conducted by America. The British sense of legality led them to try Germans only for abuse of recognized international law, or for atrocities which would be punishable under German or Anglo-Saxon law.
General Taylor's only success was to induce the French to set up a tribunal, complete with a Polish Communist, as well as a Dutch and French judge, to indict and sentence a German industrialist, Roechling, on the aggressive war charge. But even in this case, General Taylor, who attended the trial, was said to have been disap-
pointed that Roechling was sentenced to seven years' imprisonment, not as a capitalist, but as the German official in charge of steel production.
Whether or not German and neutral opinion was right in believing that the aim of the American prosecution was to "level the social structure of Germany" by proving that "capitalists and landowners" were guilty as a class, and that a big German executive was ipso facto a Nazi, the trials gave good grounds for the suspicion.
Not only did the prosecution direct its fiercest invective against German industrialists and the Wehrmacht generals, and try hardest to convict the former of the aggressive war charge. The fact that Alfred Krupp was indicted and sentenced for his father's "crimes" make these trials seem designed to punish a class, not individual guilt.
As regards "landowners," it was noticeable that the prosecution used the most notorious Nazi murderers as the main witnesses against the titled Wehrmacht generals who had opposed, and in some cases failed to carry out, Hitler's orders for the liquidation of Poles, Russians, and Jews.
In the Generals' case the chief witnesses for the prosecution were Oswald Pohl, the former administrative chief of the SS who testified in fetters; and Otto Ohlendorf, Gruppenführer (major general) in the SS in charge of the Einsatzgruppen, formed in 1941 for the purpose of following the German army into Russia to exterminate Jews and Communist officials. Otto Ohlendorf, admitting at his own trial that he had killed 90,000 people, had been condemned to death. But he was not executed because the prosecution valued him for his bitter hatred of the Wehrmacht generals who had despised and hated him and his kind. He was kept as the prosecution's star witness against the "officers and gentlemen" it wished to convict.
This use of men condemned to death or long years of imprisonment as prosecution witnesses was a particularly unsavory feature of the Nuremberg Trials. Naturally such men could easily be induced to bear false witness in the hope of saving their lives or regaining their freedom. The case of Ohlendorf was particularly revolting since he was and remains a fanatic Nazi ready to say anything to convict the Wehrmacht generals whom he loathes.
Reading the indictments and judgments in most of twelve cases of "The United States versus the defendants," one is struck by the anomaly that we should have spent so much time, money, and
energy, and so tarnished America's reputation for impartial justice, prosecuting Germans for having committed war crimes in Russia, while the Soviet Government itself refused to have any part in the trials. The Soviets for their part were busy inducing the German "war criminals" to become their collaborators. So it frequently happened that American judges at Nuremberg sentenced those who had carried out the orders of their superiors, while the superior officers themselves were occupying high positions in the Russian zone. For instance, General Vincent Müller who drafted the order for the liquidation of Russian civilians in the way of the German army, is now Chief of Staff to von Seydlitz who commands the Soviet-German "police force" in the Russian zone. But General Hans von Salmuth who was the staff officer who distributed the order was condemned to twenty years' imprisonment by the American Tribunal at Nuremberg. And many an obscure sergeant or corporal has already been hung for carrying out the orders of his superiors, while those responsible for the orders have not been punished.
It might satisfy the American prosecutors and judges at Nuremberg to say that a crime was only a crime when committed during a war, and that in peacetime crimes against humanity could be committed with impunity. But to me—and I felt sure to most Americans also, as well as Englishmen—this doctrine is repugnant.
Unfortunately most Americans and most Englishmen have no knowledge of the crimes against humanity which we have committed or agreed to let our allies commit.
The American press reported little beyond the indictments and statements of the prosecution in the Nuremberg trials. At the United States Public Information Office in the Nuremberg Palace of Justice I found that, whereas copies of the indictments, judgments, and statements made by the prosecution were available in unlimited quantities, I could not secure copies of the statements made by the defense counsel. I had to spend hours copying them myself from the single copy available in the office.
The attitude of the American Public Information officials appeared to be that it was impertinent of the Germans to put up any defense. "When these lousy kraut lawyers get through with their dirty tricks," was the answer given to an inquiry when Case No. 11 was likely to end.
When I asked the Chief Public Information Officer, who was supposed to arrange appointments for correspondents, to put me
in touch with one of the German defense counsel, he said he didn't know how to contact them and made me understand that I was guilty of a breach of good manners, if I was not positively a suspicious character, because of my wish to talk to the German lawyers.
Betty Knox, an American newspaperwoman who hails from Kansas, but is now a correspondent of the British Beaverbrook press and has spent three years in Nuremberg, told me that at the International Military Tribunal, although hundreds of copies of the prosecution documents to be presented to the court were available to the foreign press before the proceedings, only two copies in German were provided for the thirty-five defense lawyers, and these only after each day's proceedings. When Betty Knox asked Justice Jackson why more copies were not supplied to the German defense counsel, he said that in the United States there was no exchange of documents. When she insisted that in international law courts it is done, Jackson got furious and exclaimed : "That would be too good for these bastards!"
The Nuremberg Trials are now at an end. The only function they have fulfilled is that of making a mockery of American justice and filling the Germans with hatred and contempt for our hypocrisy. It is to be hoped that Congress, which has begun to interest itself in the miscarriage of justice in Germany under the American flag, will order a review of the sentences passed at Nuremberg, so that the innocent may be released from prison and only the guilty punished.
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