Unusual criminals

The trial opened on 20 November 1945 amidst an atmosphere of great excitement and curiosity. Three-quarters of Nuremberg lay in ruins, but the Palace of Justice, though damaged, remained standing. The courtroom had been repainted and given an austere appearance with appropriate panelling. Internal order was maintained by American military police, who were impeccable and disciplined. Seated at the top were the eight judges, whom we already know. To their left, at the bottom, were the prosecutors, divided into the four sections representing their respective nations. To the right were the simultaneous interpreters: an absolute novelty, like the stenographers, for those times. And finally, opposite them, the 21 defendants (Bormann was in absentia), before whom stood their defence lawyers in their robes. In a gallery of dubious sturdiness, press correspondents who had managed to gain accreditation were crammed together. A few fixed cameras filmed the proceedings, though not always. The artificial lighting was glaring, and some of the defendants wore dark glasses.

In accordance with the Anglo-Saxon procedure, the judges read out the indictment. It was read out in full and took a day and a half. The defendants were then asked to plead ‘guilty or not guilty’. Goering was called first, and began to read a statement. The presiding judge interrupted him, explaining that for the time being he need only answer the question. The Reichsmarschall replied contemptuously: ‘In the sense of the indictment, not guilty’. All the others, in a more or less formal manner and with varying nuances, pleaded “Nicht schuldig”. Only Hess, in a fit of rage, shouted “Nein!”. At which point Lawrence, unperturbed, recorded in the minutes that this was to be taken as a plea of not guilty.

It was then the turn of the prosecutors to present their opening statement. The opening address naturally fell to Jackson, who dealt with the ‘conspiracy’. He did so with a Shakespearean eloquence, the opening lines of which we have already quoted. He had drafted the indictment in his own hand, and, like Manzoni, had spent far more time refining it than writing it. His aim was not merely to present evidence of the defendants’ conspiracy, but to lay the foundations for a new universal criminal law, to prevent a recurrence of such barbarity, which, he said, civilisation would not have survived. He emphasised the importance of the London Charter as a legal instrument for prosecuting crimes that transcended national borders and undermined the very foundations of human dignity. He explained how the doctrines of racial superiority and the consequent ‘living space’ were not abstract theories, but the premises of a real policy of persecution, aggression and extermination. “Nazism,” he concluded, “preached hatred and practised murder. It promised glory and brought devastation.” It was a powerful and effective opening address, which has now rightfully taken its place in the annals of the finest forensic rhetoric.

According to logic and procedure, it would have been the British representative’s turn to present the second charge. But Jackson wanted to move straight from words to images, and on 29 November he had General Donovan screen a documentary – filmed at Dachau, Buchenwald and Bergen-Belsen – which in itself depicts the entire hellish conception, construction, management and conclusion of a planned genocide. The most heart-rending images show bulldozers pushing mountains of corpses towards mass graves, to prevent decomposition in the open air and the inevitable spread of epidemics. Those emaciated bodies came largely from Auschwitz, which the Nazis had almost completely evacuated as the Red Army advanced, forcing thousands of unfortunate prisoners onto a death march. And yet, these three complexes – where prisoners were dying in their thousands anyway – were not actual extermination camps. We have very little documentation regarding the latter, only eyewitness accounts. It was Chelmno, Treblinka, Majdanek, Belzec and Sobibor that paved the way for mass killings, initially carried out in a haphazard and rudimentary manner, and subsequently perfected with the opening of Auschwitz-Birkenau. To corroborate the authenticity of these images, the prosecution immediately called Rudolf Höss, whom we have already mentioned, to give evidence.

The British prosecutor tasked with setting out the charges of crimes against peace and the crime of aggression was Sir Hartley Shawcross. His speech was less literary than Jackson’s, but more effective in procedural terms. The American had essentially set out the case for conspiracy and advocated a revolution in international criminal law. The Englishman got straight to the point: the conviction of the Nazi criminals.

The third charge – war crimes – was entrusted to the French, represented by François de Menthon, himself a former Minister of Justice. Whilst his two colleagues had observed the war from afar, this courageous patriot had been imprisoned by the Nazis and, following a daring escape, had risked his life by joining the French Resistance. Incidentally, the French Resistance was the first to emerge in Europe; it was founded by ‘Combat’, a right-wing anti-communist movement, and laid the foundations for that Gaullism which, despite its many flaws, thwarted the pro-Soviet attempt to seize power after the Liberation. De Menthon had witnessed first-hand the massacres that had been reported and documented. However, his ‘esprit de géométrie’ prevailed over misleading emotionalism. He was every bit as effective as Shawcross, and after the closing speech he immediately returned to politics.

Finally, it was the Russians’ turn, represented by General Roman Rudenko. His task was both easy and repugnant. Easy, because the Nazis had exterminated some twenty million people in the USSR, including prisoners, Jews, political commissars and innocent civilians. The documentation, the testimonies and the very admissions of torturers such as Ohlendorf were such as to allow for a predictable indictment. But it was also repugnant because Stalin had agreed with Hitler to partition Poland, allowing him to invade that country, which was already squeezed between two dictatorships. Not only that: once he had occupied the portion that was due to him, the Kremlin butcher had over twenty thousand Polish soldiers, intellectuals and priests murdered at Katyn, in order to lay the foundations for a solid people’s democracy. Like all of Stalin’s vassals – including, sadly, some Italians – Rudenko had the nerve to distort even the most obvious facts, attributing to the Germans a crime committed by his own colleagues. He was so arrogant and hypocritical that Judge Biddle proposed to his colleagues that he be arrested for contempt of court. Nikitchenko was stunned, and Lawrence restored calm with British composure.

Once the ‘case for prosecution’ had been exhausted, the presentation of evidence began, starting with documentary evidence. Some were of dubious reliability, chosen at random from hundreds of thousands of documents hastily gathered in just a few months. But others constituted overwhelming evidence, such as the decrees on the deportation and imprisonment of civilians, the ‘special treatment’ of Jews, the execution of escaped prisoners and, more generally, the suppression of the Reich’s enemies, whether real or presumed. In any case, their reliability was corroborated by various witness statements and, above all, by the film footage. Once this phase was complete, the floor was given to the defendants.

It is not possible here to describe everyone’s attitude, but Goering’s is the most significant. The ponderous field marshal had regained his physical and, above all, intellectual vigour following the rigorous detoxification imposed on him by his imprisonment. If there is any proof of just how harmful – and, above all, how foolish – it is to take drugs, it is embodied in this inveterate morphine addict, who, according to the prison psychologists, possessed superior intelligence, yet in his final years had been reduced to a ridiculous clown, marginalised by Hitler and despised by his colleagues. Following his enforced withdrawal, this former aviation hero lost dozens of kilos and regained billions of neurons. The victim was Robert Jackson, who believed he was facing an ordinary criminal. The American prosecutor got off to a poor start with generic, moralising charges, to which Goering replied as a seasoned politician, with arguments that any statesman would have endorsed: the war of aggression was merely a matter of perspective; and it was ridiculous that such accusations should be levelled by representatives of states that had conquered, by force of arms, four-fifths of the planet. The journalists Rebecca West and Janet Flanner wrote that Jackson had employed an “intimidating, police-style method that might have worked on timid small-time crooks, but proved a disaster in the cross-examination of that extraordinary criminal”. Jackson was utterly crushed by it, and Maxwell Fyfe told Judge Birkett that he had found him “in a dreadful state”. It was the clearest demonstration that a great jurist and an excellent judge can turn out to be a terrible prosecutor. A lesson we have yet to learn.

It was, in fact, Fyfe himself who turned the prosecution’s fortunes around. He was more of a politician than a magistrate, but he proved – perhaps precisely because he was accustomed to parliamentary debates – to be the most skilful cross-examiner. He got straight to the point, challenging specific facts, starting with the murder of fifty Allied airmen who had escaped from Stalag Luft III in Sagan, only to be recaptured and shot almost immediately. The massacre (well reconstructed in the famous film "The Great Escape") was in fact carried out by the SS, but Goering bore joint responsibility for it, and in any case contradicted himself several times with vague answers and childish excuses. He was a tough nut to crack, and his examination lasted a total of twelve days of hearings, from 8 to 22 March. Exhausted, the Tribunal imposed strict time limits on the examinations of the other defendants.

None of them made any sensational revelations. Most merely claimed to have obeyed orders from above, and since, in the hierarchy of power, everything ultimately rested with Hitler, it seemed as though humanity’s greatest tragedy had been orchestrated by a single former house painter, endowed with a hypnotic, diabolical power. Whilst from a legal standpoint this defence was virtually uniform, various differences emerged from a human perspective. Keitel and Jodl maintained their military dignity. Frank repeatedly declared himself remorseful. Hess continued to feign amnesia. Schacht, von Papen and Fritzsche wondered why they should have to share that dock with vile scoundrels such as Streicher or Kaltenbrunner. Speer, whilst continuing to plead not guilty, admitted his responsibility ‘for the policies of his government, which had brought about a global catastrophe’. Goering, having regained his energy after the blow dealt to him by Maxwell Fyfe, resumed his role as an indifferent and boastful leader.

And so the trial reached its final stage. According to Article 24 of the London Charter, the procedure – unlike our own – provided first for the defence counsel’s closing arguments, followed by the prosecutors’ closing speeches. This applied to the individual defendants. Subsequently, and in the same order, the discussion on the responsibility of the organisations would take place. Once again, President Lawrence urged brevity. The defence lawyers complied. Hermann Jahrreiss, chosen to speak on behalf of his colleagues on ‘general questions of law and fact’, focused on the illegality of the indictment concerning crimes against peace. His closing speech is also counted amongst the ‘famous closing speeches’ that ought to be studied at university; Otto Stahmer emphasised the principle of non-retroactivity of criminal law. The other defence lawyers did their best: for some, the case was lost from the outset; for others, there was scope for a proper defence, and they made diligent use of it.

With this phase also over, on the morning of 26 July Robert Jackson took to the podium for his closing address. He too had regained his confidence and vigour after his embarrassing moment with Göring: he had been a terrible duellist, but he returned to being an excellent soloist. He was at once stern and ironic, serious and witty. ‘If we are to believe the defendants,’ he said, ‘after Hitler we had a number two who knew nothing about the Gestapo he himself had created; a foreign minister who was ignorant of foreign policy; a governor of Poland (Frank) who reigned but did not govern; and so on.’ Finally, changing his tone completely, Jackson resumed the role of a refined jurist steeped in Elizabethan literature. Quotations are risky, because they can mask a lack of argument and slip into pedantry. But when they are appropriate, they can condense the content of a good book, adorned with a sense of solemnity. And Jackson’s closing remarks were memorable. ‘The defendants,’ he said, ‘stand before the findings of the trial like the bloodthirsty Gloucester beside the body of his murdered king. He implored the widow, just as they implore you: “Say that I did not kill them.” And the queen replied: “Then say that they were not killed.” But dead they are. ‘If you were to declare,’ he concluded, ‘these men not guilty, it would be like saying there was no war, there were no massacres, no crimes were committed.’ Although not all the defendants were consumed by the wickedness of Richard III, many of them recognised themselves in the prosecutor’s words.

It was difficult to emulate such an oratorical ‘tirade’, and indeed the subsequent speeches were of sound legal merit but of little emotional impact. The Englishman Shawcross was concise to the point of being perfunctory; the Frenchman Champetier de Ribes, who had replaced De Menthon upon his return to politics, read a brief introduction and handed over to Charles Dubost, who summarised the points already set out by his predecessor; finally, General Rudenko, ignoring Stalin’s complicity with Hitler in the partition of Poland, was, as Telford Taylor wrote, as stern and unyielding as his physical appearance. By 30 July, this phase too had come to an end, and proceedings moved on to the testimonies concerning the organisations under indictment: the SS, the SD, the Gestapo, the SA, the Reich Government and the Army General Staff. It was an extremely confusing array of charges, with overlaps and duplications that revealed a cursory and partial preliminary investigation, partly due to a lack of documents. Even today, in many publications, the SD and the Gestapo are confused. That aside, it was rather peculiar to name as a defendant a General Staff that had in fact ceased to exist since 1918, and which had in any case been replaced by the OKW, led by Keitel, the Führer’s ‘lackey’. The only interesting aspect was the parade of former generals and field marshals who had gained great prestige in the early stages of the war: Erich von Manstein, who had planned the breakthrough of the French front; and Gerd von Rundstedt, who had commanded it. Apart from their historical significance, the hearings added almost nothing to what was already known. The previous sequence was therefore repeated. After the defence counsels’ closing arguments, on 28 August the floor was given to the prosecutors, and to the by now well-known Maxwell Fyfe, followed by a small group of colleagues of varying degrees of competence. The last to speak was the ineffable Rudenko, who insulted one of the defence counsels, Mr Boehm, by calling him a fascist. For this, Judge Biddle, indignant, proposed the arrest of the Soviet prosecutor for ‘contempt of court’. Lawrence, with his usual dignity, averted disaster, and Rudenko concluded with his equally customary Stalinist rhetoric. He even had the sensitivity to allude to the extermination of the Jews, something the Soviets never wished to expose in its atrocious and inhuman scale. Stalin’s orders were to present the Russian people as the principal, if not the sole, victims of that immense carnage. The final word, however, was reserved for the defendants to make a brief statement. On 3 August, in a packed courtroom, they all took turns at the microphone. Each repeated what they had already stated during the interrogation, and many, starting with Goering, called upon Almighty God as their witness. Ribbentrop and Kaltenbrunner were livid with rage, and stammered out some vile remarks. Frank, the executioner of Poland who had converted whilst in prison, proclaimed that ‘Hitler’s path was godless and far from Christ’. The most sincere – and certainly the most dignified – appeared to be Wilhelm Keitel, who, by accepting his responsibility as a soldier – even when obeying manifestly criminal orders – redeemed himself from the reputation as a ‘yes-man’ that had been pinned on him through a play on words. Finally, Lawrence thanked the defence lawyers for having ‘fulfilled an important civic duty in keeping with the finest traditions of the legal profession’, and adjourned the hearing until 23 September for the reading of the verdict.

(5 - Continua)