There is a judge in Nuremberg

For the third time, I am accepting the editor’s kind invitation to write a series of summer articles for *Il Foglio*. Following my pieces on Churchill’s life and the trial of Jesus, this is apparently an easier task, given that I am an expert in the field. Yet the Nuremberg trials are so unique, complex and problematic that even today many legal experts dispute their legitimacy and emphasise the unfulfilled expectations surrounding them. Like all reconstructions, this one is certainly coloured by my own biases, which I have sought to overcome by reading dozens of books by authors – almost all of them foreign – with differing perspectives. The account by Arkadi Poltorak, a journalist sent to Nuremberg by Stalin, is downright grotesque in its silence on the Molotov–Ribbentrop Pact and the Katyn massacre. My hope, however, remains the same as ever: to spark the reader’s curiosity to consult the sources, beyond the evocative cinematic reconstructions, so that they may ultimately draw their own conclusions.

On 31 August 1946, exactly 80 years ago, the proceedings of the largest trial in history conducted by an international military tribunal came to an end. The venue was the Nuremberg Palace of Justice, one of the few buildings to have survived the Allied aerial bombardments. The defendants were 22 high-ranking Nazi officials, politicians, civilians and military personnel. There were four charges: 1) conspiracy against peace, 2) war of aggression, 3) war crimes and 4) crimes against humanity. The judges and prosecutors belonged to the four victorious powers (though for France the term was an exaggeration) of the Second World War. At the end of the hearing, the Court withdrew to deliberate, and a month later delivered its verdicts, followed by the corresponding sentences. We shall therefore examine, in a logical order, the composition of the Court, the accused, the nature of the charges, the conduct of the trial and, finally, considerations regarding its legitimacy and its consequences.

As early as the Tehran Conference in December 1943, the ‘Big Three’ had agreed to punish the Nazi criminals following the inevitable victory. Stalin had raised a toast to the hoped-for execution of 50,000 Nazi leaders and military personnel; Churchill, horrified, had protested, whilst the ailing Roosevelt, with macabre humour, had proposed reducing the number to 49,900. Winston was appeased with the excuse that it had been a joke, and Roosevelt certainly saw it that way. As for the Georgian tyrant, he was playing it down. He had already liquidated thousands of German prisoners, and above all 22,000 Poles – officers, industrialists, intellectuals and priests – guilty of nothing more than being who they were. A lasting disgrace officially admitted only after the collapse of the USSR, about which the Italian Communist Party (PCI) and its leaders, starting with Togliatti, had always shamelessly lied. But that is another story.

Discussions on the establishment of the Tribunal continued at various intervals, and eventually France was also involved; although it had in fact lost the war, it served as a useful bulwark against Soviet claims. Roosevelt died in April 1945, and Harry Truman followed his lead by maintaining the procedural framework envisaged by his predecessor. Thus, with the London Agreement of 8 August 1945, the United States, the United Kingdom, the USSR and France, representing the United Nations, laid the foundations of substantive and procedural law that would govern the trial. It was not an easy process. Roosevelt’s idealism, embodied by the ‘prosecutor’ he had chosen, clashed with Stalin’s harsh pragmatism; Stalin would have preferred to resolve matters in his own way, as he had done during the purges of the 1930s and as he would continue to do with dissidents after the war’s end. Churchill, who had been wary of establishing such a diverse body, had been replaced by the Labour politician Clement Attlee, who was more malleable. In the end, the Tribunal was presided over by a judge of Her Majesty’s Court.

Politically, ethically and legally, the problem was almost insurmountable. The crimes committed by the Nazis were, in fact, so atrocious that they went beyond the categories of offence provided for in all existing criminal codes. And those who had committed them were so numerous that it would have required hundreds of courts and decades to ensure a fair determination of liability. What is more, the leaders of the Third Reich had almost all disappeared. Hitler, Goebbels and Himmler had committed suicide. Nothing was known of Bormann, and he was tried in absentia. Eichmann, a subordinate and enthusiastic executor of a planned genocide, was on the run in Argentina with the help of complacent prelates. Of the bigwigs, only Hermann Goering remained; he, however, had been dismissed by the Führer in the final days of the war and accused of treason. But the Americans’ objective was more ambitious than simply punishing the remaining key figures in the Nazi hierarchy. It was the affirmation of a general principle condemning wars of aggression and establishing a permanent tribunal to punish violations of that principle. The chief prosecutor, Robert H. Jackson, put it this way in his opening statement: ‘The fact that four great powers, proud of their victory and torn by their wounds, are holding back the hand of vengeance and voluntarily submitting their enemies to the judgement of the law, is one of the most significant tributes that force has ever paid to reason.’ These are noble and solemn words. However, eighty years on, one still wonders whether they were empty rhetoric, a utopian illusion or a reasonable hope. Probably a bit of all three. But let us return to the Tribunal.

The choice of members was, of course, political, and this alone should cast doubt on its impartiality. The separation of powers is a cornerstone of democracy, and we would be horrified at the prospect of governments appointing judges. This anomaly, however, persists in certain international institutions, without anyone raising any objections. In any case, Western democracies did their best to appoint distinguished judges. The Americans chose Francis Biddle, an aristocratic lawyer from Philadelphia, whose career is worth reviewing. He did not like the role of judge, and had begged Roosevelt to keep him out of politics as well. In 1940, when Jackson became Attorney General – that is, Minister of Justice – Biddle took on the role of ‘Solicitor General’, which corresponds, very loosely, to our State Attorney General. In 1941, Jackson was appointed to the Supreme Court, and Biddle replaced him as Attorney General, remaining in that post until 1945, when Truman sent him to Nuremberg. He proved extremely effective. He repeatedly rebuked the prosecutors themselves and threatened to arrest one, who was being excessively boisterous, for ‘contempt of court’. A salutary example, one that we too would do well to follow. Readers, accustomed to the controversies surrounding the separation of careers and the chasm that separates political power from judicial power in our country, might be astonished that such things could happen in the world’s largest democracy. Here too, it is merely a matter of prejudice. As his replacement, Truman chose John Parker, a Republican from South Carolina who had failed to secure Senate confirmation for a seat on the Supreme Court.

The British took a course of action that was even more surprising (to us). There was an initial disagreement over the selection criteria between the Foreign Office and the Lord Chancellor, who at that time was the Keeper of the Great Seal of the Realm, and has only since 2005 been the equivalent of the author. At the end of August, the Lord Chancellor had sent a letter to Norman Birkett, a High Court judge, proposing his appointment. The distinguished judge was initially enthusiastic, but his disappointment was great when he learnt that the Foreign Office was requiring a ‘Law Lord’, that is, a Senior Judge of the House of Lords. Birkett was annoyed by this ‘absurd snobbishness’, as he described it in his diary, and, despite his apparent amiability, harboured a lasting grudge against everything and everyone. Sir Geoffrey Lawrence, who had been a ‘Lord Justice of Appeal’ for a year, was appointed in his place. It was a fortunate choice. Although lacking Birkett’s legal erudition, Lawrence proved to be a model of style and impartiality and presided over the proceedings with the skilful composure of a nobleman of the Crown. The French preferred a distinguished professor from the University of Paris, Henry Donnedieu de Vabres, a fervent advocate of international criminal law, who said nothing during the trial but took meticulous notes. His contribution, in chambers, was decisive in distinguishing individual responsibilities. The Soviets followed their usual script. They placed staunch military figures of proven loyalty amongst the judges (and prosecutors), who were in daily contact with the Kremlin’s satrap. The presiding judge, Iona Nikitchenko, was a member of the Supreme Soviet, and as a military magistrate had contributed to the conviction of Kamenev and Zinoviev, communists whose convictions were so strong that they aroused Stalin’s suspicion and wrath, leading him to send them to the gallows.

Each judge was assisted by a deputy, who did not formally have the right to vote but contributed substantially to the deliberations in chambers. The French deputy, Robert Falco, was a learned judge of the Court of Appeal. We have already mentioned the Englishmen Birkett and Parker. As for the Soviet representative, Colonel Alexander Volchov, he was a taciturn, obsequious figure who toe the line of Nikitchenko’s views. But malicious tongues insinuated that he was the political commissar.

The prosecution team was far larger and more diverse. Apart from the Soviet delegation, led by the unyielding Roman Rudenko, a three-star general and Hero of Labour and of the Party, the others were lawyers, prosecutors, judges and military officers. Towering above them all was Robert H. Jackson, whom many television viewers will recognise from Alec Baldwin’s portrayal of him years ago in a hit TV series. But the American ‘prosecutor’ bore little resemblance to the dashing Hollywood actor. Jackson was a burly man, looking well over his fifty years, and was driven by the ideal of a supranational judicial ethic. His career was unique, and it demonstrates just how far removed the Anglo-Saxon legal system was (and remains) from the Italian one. He had never obtained a law degree, but had risen, through his competence and integrity, to the highest political and judicial offices – first, as we have seen, at the Ministry of Justice, and then at the Supreme Court. At the end of April 1945, a few days after Roosevelt’s death, Truman tasked him with organising the Nuremberg trials, drawing up the charges and selecting the defendants to be tried. He was assisted by Robert Falco, and subsequently also by Nitichenko. As can be seen, the interplay of roles between the drafters of the Charter, the judges and the prosecutors was rather unusual, and would have raised concerns amongst legal experts and objections (which were rejected) amongst the defence lawyers. As for Jackson, his closing arguments reached the heights of the finest forensic oratory. But as a prosecutor he was a disaster. His cross-examination of Goering was clumsy and convoluted, and the shrewd Nazi leader emerged from it almost triumphant. Only the subsequent intervention by the British prosecutor Maxwell Fife mitigated the defeat and re-established Goering’s liability. But Jackson never forgot that humiliation.

Maxwell Fife and his colleague Sir Hartley Showcross were politicians and leading figures amongst British barristers. Both proved to be well-prepared, brilliant and resolute prosecutors. They did not have the fierce expression of their (former) Prime Minister, but once they had identified their prey, they never let it go. They were undoubtedly the most incisive members of the vast array of prosecutors. As for the Soviets, Rudenko seemed to be a carbon copy of Nikitchenko, and both of them were carbon copies of Vishinsky. They were manifestly intolerant of the defence lawyers’ requests and annoyed by the presence of the defendants. It was perfectly clear that, had it been up to them, everything would have ended just as it did in the trials presided over by Roland Freisler, the president of Hitler’s People’s Court, where the hearing began in the morning with a lecture from the judge and ended in the evening with a noose. Somewhat in the background was the French delegation, led by François de Menthon, a hero of the Gaullist Resistance and a man of Catholic upbringing. He too, like Jackson and Maxwell Fife, had held a position equivalent to that of our Minister of Justice. He opened his closing speech by focusing on crimes against humanity; he spoke for more than four hours calmly and without rancour, even though he had endured the occupation, capture and exile, risking his life on several occasions. He earned the respect of most of the accused but did not see the trial through to the end. He was immediately recalled to his post as Minister of Justice.

Once the initial difficulties had been overcome, the composition of the Court gave rise to other minor issues. The English judges wanted to wear wigs, the American judges only their robes, and the French judges also the ‘jabot’, that is, the ruff or starched collar. The Soviets were adamant in insisting on their uniforms: after all, they said, this was a military tribunal. As for the seats, the alternate judges complained that theirs was too small. In the end, a compromise was reached. Each judge wore whatever they pleased (the British dispensed with the court wig) and everyone sat at the same height. These may seem like insignificant details, but they took up time and energy: in court, as in church, form is also substance. The proof came when the Soviets, dissatisfied with the film footage of Rudenko’s closing speech, had him deliver it again in private, passing it off as the genuine article. Today we have the photographs: in the one used for propaganda purposes, two light bulbs are missing from the general’s podium that are visible in the official version.

These issues did not arise for the defence lawyers, but there were difficulties nonetheless. No one, not even the Russians, doubted that a fair trial required a proper defence. But no one knew where or how the defendants might choose their lawyers, or who would pay them. Krupp put forward Andrew Clark, a renowned English barrister, who declared himself available. The Allies – and the London Bar Council – ruled him out, insisting that the choice must be limited to German lawyers. This was a questionable decision, given that in the parallel trials already being set up, many defence lawyers were members of the US Army, who appeared in court in uniform. As the defendants’ assets were meagre, or had been confiscated, the court itself covered the legal fees. This amounted to around 3,500 marks a month, a sum that was formally adequate. But as the mark was no longer worth anything, the focus was mainly on food. Rations for the Germans were meagre, at around 1,500 calories a day; the lawyers and their families, however, could count on a wider variety of foodstuffs that were almost impossible to find. However, the main reason that prompted many lawyers to accept the case was the realisation that their names would go down in history, albeit amid controversy. One of them, Robert Servatius, would go on to defend Adolf Eichmann at the Jerusalem trial sixteen years later.

Just as Jackson towered amongst the prosecutors, so too did Otto Stahmer, Goering’s defence counsel, stand out on the opposing side. He was a distinguished jurist, and when I read his closing speech on the non-retroactivity of criminal law sixty years ago, I was dazzled by it: only our own Carnelutti had reached such heights. We shall, however, examine the substance of these objections later on, along with the Court’s response to them. The other lawyers, as mentioned, were all German and had been more or less involved with the regime, given that its opponents had ended up in concentration camps or on the gallows. The difficulties of their task were, of course, varied. Some defendants were truly indefensible, and even repugnant, such as Streicher and Kaltenbrunner. Conversely, others, such as Schacht and Fritzsche, had been put on trial for reasons that were unclear (and were, in fact, acquitted). In between lay some highly ambiguous cases. The most problematic was that of Admiral Dönitz, who called upon a brilliant naval officer, Otto Kranzbühler, to assist him; Kranzbühler mounted a highly effective defence. On the whole, the tribunal was up to the task, even though it had not been able to examine all the documents that had, in contrast, been made available to the prosecution. But given the times and circumstances, it was indeed, as Jackson had demanded, a ‘fair trial’ – the very fair trial that the Nazis had never even remotely granted to their opponents.