Justice and the Enemy Read online

  American attitudes in the middle of the war years were mixed. Henry Morgenthau Jr., the U.S. secretary of the treasury, persuaded Roosevelt to accept the quick execution of Nazi leaders. More radically, Morgenthau argued for the “re-pastoralization” of Germany so that it would never again become a powerful industrialized nation capable of creating an aggressive war machine, as it had done so swiftly after its defeat in 1918. He considered it “a question of attacking the German mind.” 5

  Morgenthau also proposed deporting millions of Germans: “It seems a terrific task; it seems inhuman; it seems cruel. We didn’t ask for this war; we didn’t put millions of people through gas chambers. We didn’t do any of these things. They have asked for it.” 6 When officials in his department questioned the wisdom of dismantling German industry, Morgenthau responded sharply, “Why the hell should I care what happens to their people? . . . For the future of my children and my grandchildren, I don’t want these beasts to wage war.” When his plan was denounced as immoral, he riposted, “I suppose putting a million or two million people in gas chambers is a godlike action.” 7

  There were other American leaders who (at least at times) shared Morgenthau’s rage against the Nazis and Germany. In July 1944 (shortly after the D-day landings), Eisenhower expressed a desire to “exterminate all of the General Staff, perhaps some 3,500 people, as well as all of the Gestapo and all Nazi Party members above the rank of Major.” He was prepared to allow the Soviets to carry out any such exterminations, except in the case of the Twelfth S.S. Panzer Division, which in June 1944 had killed sixty-four Allied prisoners of war. “I think that the American Army as a unit will handle the Twelfth S.S., every man they can get hold of. They are the men that killed our people in cold blood. . . . We hate everybody that ever wore a Twelfth S.S. uniform.” 8

  As the Allies became increasingly confident they would defeat the Nazis, their attitudes changed. When Morgenthau’s ruthless if not unrealistic plans were leaked to the press in September 1944, Roosevelt was embarrassed. He sought advice instead from Henry Stimson, the secretary of war, who argued that America’s own respect for due process demanded that war criminals be put on trial. So did Judge Samuel Rosenman, Roosevelt’s special legal adviser; and so did Justice Felix Frankfurter of the Supreme Court.

  Stimson was particularly influential. Mindful of Stalin’s Tehran toast to the shooting of fifty thousand Germans, he feared mass revenge killings would tarnish the whole war effort. Concerned by the specter of mass vengeance against the German people, he suggested instead that the entire Gestapo should be interned and then put on trial “as the main instruments of Hitler’s system of terrorism in Europe.” The men and women running “the Hitler machine” should be punished, rather than the German people at large. 9

  In January 1945, the president received a memorandum from Henry Stimson, Edward Stettinius, and Attorney General Francis Biddle proposing the creation of an Allied court to try the Nazi leaders for their “atrocious crimes” and for taking part in a “broad criminal enterprise.” Significantly, they argued against civil courts and proposed a military tribunal, as this would be “less likely to give undue weight to technical contentions and legalistic arguments.” Roosevelt accepted the proposal and took it with him to the meeting with Stalin and Churchill in Yalta in January 1945. There Stalin agreed that “the grand criminals should be tried before being shot.” The British were alone in resisting any sort of trial of the Nazi leaders. 10

  When Roosevelt suddenly died in April 1945, just days before victory in Europe, his successor, Harry Truman, enthusiastically endorsed the concept of a trial. Truman was the last U.S. president not to have a university education, but he was well-read in history. He saw that the trial would not only deliver justice to those Nazi leaders who could be seized, but would also establish a documentary record of all that the regime had done and prevent the rise of a new Napoleonic myth. At that time, it was hoped that Hitler, Goebbels, Himmler, Bormann, and Goering would all be captured and tried.

  Churchill’s preferred plan was to execute the leading Nazis.11 Just before V.E. Day, the British government submitted an aide mémoire that argued: “HMG assumes that it is beyond question that Hitler and a number of arch-criminals associated with him must, so far as they fall into Allied hands, suffer the penalty of death for their conduct leading up to the war and for the wickedness which they have either themselves perpetrated or have authorized in the conduct of the war.” London considered the real charge against Hitler to be “the totality of his offences against the international standard which civilized countries try to observe.” Any trial seeking to show the scale of Nazi crimes would be “exceedingly long and elaborate.” Moreover, it would be seen by many as a “put up job” designed by the Allies to justify a punishment that had been pre-determined. “Hitler and his advisers—if they decide to take part and to challenge what is alleged—may be expected to be very much alive to any opportunity of turning the tables.” 12

  The British were also concerned about Hitler’s pre-war aggression being one of the counts of the indictment in any trial. The belief in London was that Germany’s unprovoked attacks on other countries “are not war crimes in the ordinary sense, nor is at all clear that they can properly be described as crimes under international law.” The British feared that the defense could easily point to many recent precedents in which various countries had declared war and acquired new territory “which certainly were not regarded at the time as crimes against international law.” 13

  Such arguments were no longer persuasive in Washington. The War Department now proposed that the German leaders be charged not only with specific atrocities but also for their participation in a broad criminal enterprise.

  On May 2, 1945, Truman offered Robert Jackson, a distinguished jurist and an associate justice of the Supreme Court, the position of chief prosecutor at the proposed tribunal and, after short reflection, Jackson accepted. It was an inspired choice, even though there were grumblings amongst the highest American legal circles that a justice should not step down into the arena of a trial—indeed Chief Justice Harlan Fiske Stone disapproved so much that he wrote about “Jackson’s lynching party in Nuremberg.” Stone’s objections were to the use (or misuse) of law. “I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding as to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.” 14

  Jackson, on the other hand, had long believed that aggressive war should be declared a crime. He was convinced that the courts had the authority to try those who waged such wars, if only steps were taken to give international law more force. And he also believed that the best should never be the enemy of the good. In 1941 he had argued that “the worst processes of the law” were better than none: “We cannot await a perfect international tribunal or legislature before procribing resort to violence, even in the case of legitimate grievance. We did not await the perfect court before stopping men from settling their differences with brass knuckles.” 15

  But Jackson also abhorred the idea of anything that could appear to be a show trial. By coincidence, on the day after Roosevelt died, Jackson made a speech in which he declared that it would be better to shoot the Nazi criminals rather than corrupt the process of law. He made one especially important point that resonates today: “You must put no man on trial under the forms of judicial proceeding, if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.” 16

  Peace in Europe was declared on May 7 (V.E. Day), and only two weeks later Jackson arrived, determined to create the tribunal with all speed. In early July, he made a remarkable journey through the wreckage of the continent—to Germany, Austria, and then to France. He visited Nuremberg, where he was glad to find that the Palace of Justice had survived the Allied bombing. It seemed the ideal place
for the trial—except to the Russians, who for some time insisted on Berlin.

  In Paris, Jackson was astonished and encouraged to find the vast number of Nazi documents that had already been unearthed. “I did not think men would ever be so foolish as to put in writing some of the things the Germans did put in writing. The stupidity of it and the brutality of it would simply appall you.” 17 In short order he persuaded the British to overcome their objections to a military tribunal, set up the machinery required for a trial, and formulate the general principles on which charges against the leading Nazis should be based. It was a superb achievement and an innovative one.

  The American case rested on the assumption that the United States had “an inescapable responsibility” to conduct an inquiry and trial of those thought guilty of Nazi atrocities. “To free them without a trial would mock the dead and make cynics of the living.” And the alternative of summary executions without definite findings of guilt “would violate pledges repeatedly given and would not set easily on the American conscience or be remembered by our children with pride.” 18

  The greatest difference of opinion lay not between Washington and London but between Washington and Moscow. Jackson pointed out that the Russians assumed that wartime declarations by the Allied leaders meant that the accused were already convicted and so no trial before independent judges was needed. In America by contrast these declarations were “an accusation and not a conviction. That requires a judicial finding.” 19

  He went on to say, “the reason is the evidence”—not the statements made by heads of state. “The United States feels we could not make political executions. I took that position publicly.” 20 He was troubled that other governments did not agree and he wondered whether, if the disagreements were so great, perhaps the only solution would be separate tribunals conducted by each nation according to its own standards.

  The British government had by now set up a prosecution team, the British War Crimes Executive. Yet reservations remained. One senior Foreign Office official complained that to allow Russia to be part of any tribunal “will one day be regarded as almost a high point in international hypocrisy.” The Russians, just like the Nazis, sought to dominate other nations and they too conducted “atrocities, persecutions and deportations.... There have been two criminal enterprises this century—by Germans and Russians. To set up one lot of conspirators as judges of the other . . . robs the whole procedure of the basis of morality.” 21 Such arguments had force; they represented a crucial and, at the time, problematic recognition of the moral compromises having to be made by the Allied side.

  At the end of June the four powers met at the London Conference to try to reach an agreement. It was not easy and, to Jackson’s dismay, the arguments over law and process lasted six long weeks. Jackson insisted, “If we are going to have a trial then it must be an actual trial.” The United States would not be party to setting up a judicial body just to ratify a previous political decision to convict. And he was not always diplomatic in attempting to persuade doubters to his point of view, in particular about the nature of aggressive war. Throughout July arguments between the Soviets and their democratic Allies persisted. 22

  Meanwhile Britain had been conducting an immediate postwar general election. The votes of soldiers still serving overseas took time to count and the result was not declared until July 1945. Only a few weeks after victory in Europe, Winston Churchill, the European leader who had done more than any other single man to defeat and destroy the Nazi war machine, lost power to the Labour Party and Clement Attlee became prime minister.

  My father, a barrister specializing in criminal law, had served during the war as a regional commissioner organizing civil defense in Britain. Aged forty-three, he became one of the newly elected Labour M.P.s and probably the most senior lawyer on the new government benches. Attlee immediately appointed him attorney general of Great Britain and Northern Ireland. One of his first duties was to take up the position of chief British prosecutor at the planned tribunal.

  He became at once aware that the four prosecution teams were still riven with disputes over law, facts, and process. This was hardly surprising—there was absolutely no precedent for such a tribunal. The prosecution would have to be conducted in four languages by lawyers trained in four different legal systems, two of which were in the common law tradition and two in the Roman school of law. Moreover, the Soviet government, unlike the others, was utterly authoritarian and had no understandable framework for due process and the legal protections considered vital to liberal democracies. The Soviets wanted nothing from the trial save propaganda and convictions—public vengeance, and the glorification of the Soviet state. Negotiations between the wartime allies almost collapsed.

  Despite these obstacles, in early August 1945 the Allied powers agreed to the framework for the tribunal at Nuremberg. As Francis Biddle wrote, “Robert Jackson’s tireless energy and skill had finally brought the four nations together—a really extraordinary feat.” 23

  On August 8, the heads of delegation signed the London Charter, which established three main counts against Nazi individuals and organizations. The first was crimes against peace or the waging of aggressive war. The second count dealt with war crimes and held leaders responsible for the misdeeds of the men and women they commanded. The third count—crimes against humanity—was a completely new legal concept and encompassed the persecution of racial and religious groups, as well as the ruthless exploitation of European peoples and resources. Jackson anticipated the complaint that it was merely “victors’ justice.” But he pointed out that there was no other way “except that the victors judge the vanquished.... We must make it clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the War, but that they started it.” 24

  Problems with the Russians persisted. One of the greatest was over the responsibility for the murder of some twenty thousand Polish officers, found buried with their hands tied behind their backs in the forest at Katyn. The Russians insisted that the indictment must include the charge that the Germans were responsible for this mass murder. The evidence at that time was not conclusive (it later became so) but it strongly suggested that the crime had been committed by the Soviets. Jackson and my father were opposed to this and went together to General Rudenko, the chief Soviet prosecutor, to urge that the charge be dropped from the indictment. He refused and so the democratic Allies felt they were compelled to choose between acquiescence and complete breakdown. They went along with an indictment they knew to be partly a lie; my father wrote later that they informed Rudenko that “the Americans, the British, and the French would not seek to establish this charge nor make any reference to it; the sole responsibility must rest upon the Soviet side of the prosecution.” In the end the evidence the Russians produced was (not surprisingly) unpersuasive and the tribunal ignored the charge. No defendant at Nuremberg was punished for Katyn. But the compromise was distasteful.

  In Berlin on October 18, 1945, my father lodged the indictment on behalf of the prosecuting powers, rules of procedure were laid down, and the opening of the trial was fixed for thirty days after the indictments were served on the defendants. Everyone then repaired to Nuremberg.

  There was much of a domestic nature still to be done. The American army was still reconstructing the court; simultaneous translation and press and telegraph facilities were being installed, accommodation and catering (1,500 lunches a day in the court cafeteria) were still being prepared for all those who were about to descend upon the town to witness this extraordinary spectacle.

  All this and much more was completed in time. With speed that seems astonishing in a day when all such processes have become more bureaucratic and laborious, the trial opened on November 20, 1945.

  There were twenty-two prominent Nazis charged, the most important of whom was Field Marshall Her mann Goering.b Jackson made a superb opening address, on which he had worked alone and with great care. He pointed out that “less than eigh
t months ago today the courtroom in which you sit was an enemy fortress in the hands of German S.S. troops. Less than eight months ago nearly all our witnesses and documents were in enemy hands. The law had not been codified, no procedures had been established, no tribunal was in existence, no usable courthouse stood here, none of the hundreds of tons of official German documents had been examined, no prosecuting staff had been assembled, nearly all the present defendants were at large and the four prosecuting powers had not yet joined in common cause to try them.” 25

  When he came to recount the crimes of which the men in the dock were accused, Jackson’s voice sometimes broke. The privilege of opening the first trial in history for crimes against the peace of the world imposed, he said, a grave responsibility. “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.” 26

  Jackson was careful to note the propagandistic power of the “broken men” on trial. The prisoners, he said, “represent sinister influences that will lurk in the world long after their bodies have returned to dust. We will show them to be living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life. They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names.” 27