A fair trial, but only half-finished

Once it had retired to chambers, the Court was supposed to deliberate in secret. Nevertheless, much information leaked out, and was subsequently supplemented by the publication of Judge Biddle’s comments. The highly principled judge had no intention of breaking the law: his were notes compiled to better set out his own ideas and challenge those of others. From reading them today, we have a fairly good idea of what the arguments – and the ‘dissenting opinions’ – of the panel of judges were. It was a laborious task: and on 17 September, the Court announced that the reading of the judgement would be postponed by a week.

The discussion began with determining the number of votes required to impose the death penalty. Was unanimity necessary, or was a majority sufficient, or even a tie? It was a heated debate. In the end, the majority view prevailed. The discussion then turned to the method of execution. Donnedieu de Vabres favoured firing squads, at least for military personnel; the British and Americans favoured hanging; the unyielding Nikitchenko proved indifferent: the important thing was to execute them all, and quickly. The Anglo-American position prevailed: ‘death by hanging’. Once other minor issues had been resolved, Donnedieu de Vabres began by lamenting the absurdity of putting organisations on trial: a device, he said, unknown to French law (and to ours too). He was told that he should have raised the issue at the preliminary hearing, and that it was now too late. The venerable jurist reluctantly resigned himself to this, ready to shift his focus: the charges of conspiracy and crimes against peace, he argued, were vague and generic, and moreover contrary to the principle of non-retroactivity in criminal law. Here too he was outvoted by Biddle and Lawrence. Nikitchenko, naturally, agreed with them.

Individual responsibilities were therefore established. For some defendants and certain offences, the evidence was clear, not least because traces of their written orders had been preserved. Goering and Keitel, for example, had drafted and issued decrees authorising the killing of prisoners in uniform. But when it came to crimes against peace and the war of aggression, one had to resort to blatant hypocrisy. Austria had opened its doors to Hitler without any resistance, amidst obvious displays of jubilation. The Sudetenland had been ceded under the Munich Agreement, signed – with the Duce acting as mediator – by Chamberlain and Daladier. Norway itself had been the subject of a dispute between Germany and Great Britain, and both had planned its occupation. As for Poland, Hitler and Stalin had agreed to its partition through the infamous Molotov–Ribbentrop Pact, which had effectively legitimised the outbreak of hostilities. The judges turned a blind eye and, amid Donnedieu de Vabres’s grumbling, pressed on undeterred. Although only the four full members had the right to vote, the authority and expertise of the alternate members – particularly Birkett and Parker – were nonetheless decisive. Volchkov, like Don Rodrigo’s dinner guests, merely nodded when his colleague spoke. In summary, the British sometimes proved to be stricter than the Americans, and at other times more flexible. The French were generally more lenient. The unyielding Nikitchenko always voted for the death penalty for all the defendants and on all counts. In the end, compromises were reached. And on 30 September, Lord Lawrence began reading out the verdict: it was exasperatingly long because, unlike in our country, the reasoning preceded the operative part. The judges took turns every 45 minutes. At the end of the day, the President, exhausted, adjourned the hearing until the following day. Thus, on 1 October, the proceedings came to a conclusion. Once the remaining part of the general reasoning had been read out, the court moved on to the reasoning relating to the individual defendants. They entered one by one to hear the judgement, that is, the sentence imposed. The first was Göring: death by hanging. Then Hess, life imprisonment; followed by Keitel, Ribbentrop, Kaltenbrunner, Frank, Rosenberg, Frick, Jodl, Streicher, Sauckel and Seyss-Inquart: all sentenced to death by hanging. Raeder and Funk were sentenced to life imprisonment. Von Schirach and Speer received twenty years’ imprisonment, Von Neurath fifteen, and Dönitz ten. Fritzsche, Schacht and von Papen were acquitted. The defendants reacted in their own ways, often with more surprise than despair: on the whole, they remained calm. The prosecutors expressed moderate satisfaction. The frustrated Nikitchenko voiced his ‘dissenting opinion’. He returned to Moscow and was assigned to minor posts. He was lucky; ten years earlier, he would have been sent to Siberia.

Once the trial phase was over, the enforcement phase began. The three acquitted men remained cautiously under protection for fear of external violence, and were subsequently subjected to a summary denazification trial, without serious consequences. We have already mentioned the others sentenced to prison terms; of those destined for the gallows, it is necessary to mention Goering, who swallowed cyanide shortly before facing the executioner. No one ever knew how he had obtained it, and there is no point in relying on questionable cinematic reconstructions. The others awaited their final moment under the watchful eye of the unyielding Colonel Andrus, who was irritated that, following the suicide of Robert Ley—who had hanged himself from the toilet cistern pipe—Göring too had evaded the noose. The lawyers for those sentenced to death had lodged appeals, even without the consent of their clients. Speer had flatly refused, writing that ‘his sentence was lenient compared to the evil we have inflicted on the world’. On 11 October, the defendants were informed that all appeals had been rejected. On 15 October, Speer was allowed to make the rounds of the death row cells. The architect of the Thousand-Year Reich described it as “a nightmarish sight”. In reality, they were all lying down and resigned to their fate, except for Keitel, who until the very end diligently wrote his memoirs and, with equal care, made his bed before heading to the gallows. This had been erected in the gymnasium adjacent to the court, under the supervision of Andrus and Sergeant John C. Woods, a professional ‘hangman’. Despite British opposition, the Control Council permitted the presence of eight journalists, two from each judging nation. Once the platform had been set up, the condemned men were led in, one by one. Almost all of them invoked God and sought His protection for Germany; only Rosenberg refused religious comfort. The execution was by no means efficient, even though Woods had measured the noose and the neck of each condemned man. Some struck their heads against the trapdoor and died covered in blood. Others, instead of having their necks broken according to the rules of the ‘long rope’, writhed in convulsions during a long and agonising death. Finally, the bodies were placed on four wooden planks, sufficient to carry them to the place of cremation. The ashes were scattered at an unknown location, so that not even a trace of their memory might remain.

Thus ended the Nuremberg trials, which, according to Jackson’s intentions, were meant to mark the beginning of a new era in international criminal law. In fact, this pilot experiment had been preceded by others, against Nazi criminals who were fewer in number but no less malicious. Let us recall a couple of them. The first is particularly significant, as it concerns female brutality. In the aforementioned Bergen-Belsen concentration camp, where horror had become an everyday reality, the role of the devil was played by an almost angelic face, framed by a mass of golden hair: that of Irma Grese, a twenty-two-year-old girl born in Wrechen, in northern Germany. She had run away from home at the age of 15 and sought refuge in the SS medical corps, where she probably developed the sadistic instincts that would make her the cruelest woman of the century. In any case, once her training was complete, she embarked on a career of infamy. First at Ravensbrück, as a guard in the women’s camp; then at Auschwitz, as Dr Mengele’s assistant; and finally at Bergen, where she was appointed ‘works manager’: her rise through the ranks grew in proportion to her criminal output. Captured by the British, on 17 September 1945 she appeared before the British Military Tribunal in Lüneburg, Saxony, forty kilometres from her hellish place of work, alongside her former commander and 43 other defendants. It was, in fact, the first trial held against Nazi military and civilian personnel. Its speed stemmed from a highly pragmatic decision by the prosecution: to select the charges, limiting them to specific acts constituting offences already provided for under national and international law. This avoided the objections and quibbles regarding the vagueness of the charges and the non-retroactivity of criminal laws, which we have seen slow down the Nuremberg trials. Irma Grese would tear at the breasts of the younger female prisoners and watch with relish as they were removed; she would set dogs upon the naked victims, emulating Nero in watching them being torn to pieces; the most repugnant aspect was her uncontrollable sexual arousal in the face of suffering: she had many male and female lovers amongst the SS guards and even amongst the female prisoners, whom she would then kill with gas or phenol. She did much more, but decency prevents us from continuing this grim catalogue of depraved fantasies. During the trial, she behaved with contemptuous indifference. The few films of the hearings show her standing amongst the other defendants, in her schoolgirl’s dress, with a childish smile and no sign of embarrassment, let alone remorse. It is hard to believe that such innocence could conceal, in such a small space, such malice. The Court was not swayed either by the defendant’s good looks or by her almost childlike demeanour. It applied the law fairly and rigorously: as many as fourteen defendants were acquitted because the evidence against them was insufficient or unconvincing. But for Irma Grese, and ten other perpetrators, the sentence was severe: death by hanging. Facing the noose, Irma simply said: “Schnell” (Quickly!). Her wish was granted.

The second trial was even more remarkable. When, on 29 April 1945, the Americans liberated the Dachau concentration camp, they found, amongst other things, a fully-fledged medical laboratory for clinical experiments on prisoners. At Auschwitz, the sinister Dr Mengele had been at work: but his actions had amounted to cruel amateurism carried out by a bloodthirsty quack. At Dachau, however, this depravity had taken on the character of a methodical programme of work. Its director was Klaus Karl Schilling, a seventy-four-year-old university professor with a proud bearing and an authoritative gaze. Working alongside him were other specialists, engaged in various types of experimentation. Some prisoners were immersed in ice-cold water to simulate the hypothermia suffered by pilots who had crashed into the sea. Many died; others were revived with hot baths or, as Dr Rascher suggested, through human contact: by placing two women beside the patient, he would sometimes regain consciousness – the doctor diligently noted – even showing signs of sexual satisfaction. A few unfortunate souls were placed in depressurised chambers until their brains burst. Others, finally, were mutilated and dissected whilst still alive. The documents and findings were rigorously recorded and sent to universities. Dr Shilling’s speciality was infecting healthy people with the bacilli of typhoid fever, malaria and other diseases, in order to observe the progression of the illness at close quarters. To some he administered small doses, and they died within two weeks after excruciating suffering. To others he gave excessive doses, and these, the more fortunate ones, died within a few hours. Using these methods, Schilling infected more than a thousand people: five hundred died during the ‘treatment’, whilst the rest ended up in the crematoria. However, some survived and testified at the trial against Schilling and 39 co-defendants. The judges were eight senior officers. The defence lawyers, too, with the exception of one, were American military personnel. All upheld the arguments already put forward at Nuremberg: the non-retroactivity of criminal law, and the defence of obedience to orders. On 15 December 1945, the Court sentenced them to death. On 28 May 1946, the elderly professor was led to the gallows. The execution was filmed and can still be viewed today on various websites: the condemned man firmly refused religious comfort and died unperturbed. This trial demonstrated, even more so than the Nuremberg trials, the great ethical dignity of a liberal judicial system. Dr Schilling and his accomplices had been astonished to find they could choose a defence lawyer of their own choosing, paid for by the victors no less. Those who accepted court-appointed defence counsel were even more astonished. The only moment of humanity they showed during those four weeks was when they shook their lawyers’ hands, moved to tears – men in uniform who, until yesterday, had been their mortal enemies, and who had fought in the name of the law, even if it was applied to monsters, or perhaps precisely because of that. Before disbanding the unit, President Lentz organised a dinner with judges, prosecutors and defence lawyers. Everyone shook hands, because each had carried out their duty to the best of their ability. The finest comment came from a private: “Now we know why we fought.”

And now let us return to the Nuremberg trials, regarding which various questions have been raised without definitive answers. Was it a legal judgement? Yes, because the rules of procedure were observed. Was it also impartial? Yes, within the limits imposed by the composition of a court appointed by governments. But the acquittal of three defendants and the relatively lenient sentences handed down to others suggest an affirmative answer, albeit with reservations. Was it also fair? Formally, perhaps not, but in substance, yes. The fact that the victor administers justice does not in itself mean that justice is unjust. Admittedly, the law and the judges were established ad hoc. But what other choice was there? Many defendants had committed crimes so heinous that they deserved the gallows, and, as some said, even more. The sentence—excessive in the case of General Jodl—was offset by the one—too lenient—for Speer and by the acquittal of von Papen. Even viewed in retrospect, Nuremberg truly constituted a titanic effort to assert the primacy of the law over that of force. But the attempt to establish a binding precedent failed, and it could not have been otherwise. After the trials mentioned above, and others against lesser defendants, the justice system ground to a halt: out of exhaustion, out of powerlessness, or for reasons of political expediency. Almost all those convicted at Nuremberg served their full sentences, but their colleagues detained by the Anglo-Americans were always released early. The Soviets dealt with them in their own way: they used some as spies, informers and torturers; after all, the Gestapo and the Moscow secret police had always admired and copied one another. The other prisoners were summarily executed or left to die in the gulags from starvation and disease. As for Italy, the execution by firing squad of Mussolini and the fascist leaders at Dongo was not a model of due process. No one can really regard the death sentence handed down by the CLN-AI and (perhaps) immediately carried out by Colonel Valerio as such. However, as Churchill said, it spared us an Italian Nuremberg. But that was not where the failure lay. It lay precisely in the cruel but predictable betrayal of the ideals of Jackson and of all those – starting with Kant – who dreamt of a supranational justice system with broad and exclusive jurisdiction. After Nuremberg, various war crimes tribunals were in fact established: some, such as the one set up by Sartre and Russell for crimes in Vietnam, were politically biased caricatures. Others, however, were – and are – governed by rules and treaties. A few verdicts have even been handed down, and some criminals are still behind bars. However, when one considers the daily massacres taking place across half the world – both those widely discussed and those rarely mentioned – the very idea of a court with both punitive and deterrent effects appears as an empty metaphysical abstraction. This confirms Thucydides’ well-known assertions that the strong always dominate the weak, and that the latter would do the same were the roles ever reversed.

(6 – End)

Eighty years ago, around this time in August, the proceedings of the greatest trial in history, conducted by an international military tribunal, drew to a close: on trial were the crimes of Nazism, embodied in the 22 defendants – senior political, civilian and military leaders of Hitler’s Germany. Carlo Nordio, Minister of Justice, has presented us with a six-part account of the trial. The first, “C’è un giudice a Norimberga”, was published on Friday 31 July; the second, “Goering e poi gli altri”, on 7 August; the third, ‘Ideologists and Butchers in the Courtroom’, on 14 August; the fourth, ‘Crimes against Humanity’, on 21 August; and the fifth, ‘Uncommon Criminals’, on 28 August.