Books
Qualified judgments
Airey Neave
Reaching Judgement at Nuremberg Bradley F. Smith (Andre Deutsch £6.50)
The Nuremberg judges faced a nightmare task. British, American, French and Russian members of the International Military Tribunal were presented with the biggest judicial headache of all time Professor Smith's exhaustive account is somewhat patronising; in fact they showed great courage and sagacity. The eight judges (one senior and one alternate for each of the four Allied powers) wrestled with complexities which no court had ever encountered. They were asked to cope with the terrifying woolliness of the American prosecution, and their confused legal concepts of 'conspiracy' and 'aggressive war'. They presided over the trial of Nazi leaders accused of the most revolting cruelty to human beings amid scenes of horror and emotion. They sat for over two hundred days with no important precedents or settled procedure. They were therefore obliged to rule on minor points which would have been handled by the clerk of a British or American court. By their prodigious industry, they remedied some of the worst defects in this first trial of the victors in a world war.
I was present throughout the trial as a 'British judicial aide', though not during deliberation on the judgment. Professor Smith gives understandable prominence to the contributions of the American judges and their aides. That the whole thing did not collapse in farce and recrimination was largely due to the genial and wise Presidency of the Tribunal by the first Lord Oaksey. Lord Birkett, the British alternate, saved the Tribunal time and again by his skill and patience in drafting the final judgment, delivered in September 1946. The French said little. Francis Biddle,„ Roosevelt's Attorney-General, and Judge Parker for the United States (known as Piddle and Barker) were sincere and divided. All showed a striking independence of their governments and of the Allied prosecution though the Soviet members supported the Stalin line, which meant death for all the defendants.
Professor Smith is an American historian, who did not see the judges at work nor does he fully understand what six years of war and twelve years of Nazism meant to those who took part in the trial in 1945 and 1946. But as time passes, new assessments of Nuremberg will be made and the memory of the savage Nazi occupation of Europe will be no longer a bitter reality. It is possible, thanks to the thorough researches of Professor Smith, to discover how the judges reached their conclusions. We can see how the 'major issues' were resolved.
What were thesemajor issues'? The first, and most difficult, concerned the charge against the twenty-two Nazi leaders in the dock of a 'common plan or conspiracy to wage aggressive war'. The second, equally controversial from the point of view of the law, was the American insistence in prosecuting the German General Staff and High Command, the Reich Cabinet, the SS and other organs of Hitler's regime as 'criminal organisations'. The 'common plan or conspiracy' included 'crimes against peace', as well as war crimes and crimes against humanity. It raised appalling problems. Many legal systems do not recognise the crime of conspiracy and this charge divided the Tribunal more deeply and bitterly than any other aspect of the trial. There was no definition in international law of 'aggressive war'. The prosecution argued that international law like common law grew by custom and that Germany had adhered to several agreements such as the Kellogg-Briand Pact which implicitly made 'aggressive war' illegal.
These complex matters were at the heart • of the American case, led by Justice Robert H. Jackson, a brilliant but short-tempered member of the Supreme Court, to which the other Allies had agreed with some misgivings. They were enshrined in the Charter of the Tribunal signed by the Allied powers before the trial. This specifically and arbitrarily declared that 'participating in a common plan or conspiracy' to commit a 'crime against peace' was an international crime. The judges were also forced to accept that the Nazi leaders had in fact planned and prepared for war. General Nikitchenko, the intelligent and sphinx-like Russian judge, irritated by these long discussions of principle, told his colleagues to act like practical men and not like a debating society.
Throughout their long discussion on the judgment in August and September 1946, the members of the Tribunal were torn between acting like a 'real court' and using what Birkett had described as their 'knowledge of men and affairs'. Astonishingly, the indictment named no date for the beginning of the 'conspiracy'. The Tribunal could only make sense of this charge by fastening on a meeting held by Hitler in November 1937, attended by some of the defendants and many German generals, known as the 'Hossbach Conference' after its secretary, Oberst Hossbach. Hitler had declared his intention to absorb Austria and destroy Czecholslovakia, though there is much debate among historians as to the real significance of his words. Professor Smith clears the prosecution of falsifying the notes made by Hossbach to bolster their conspiracy charge. In the end the Tribunal used much the same arguments as the prosecution, and most of the facts, to establish that 'crimes against peace' were in fact crimes. Their judgment has, in consequence, been much criticised.
Were these eight hardworking men really to blame? Their difficulties were mountainous. Paced with unravelling the 'conspiracy' they were also asked to decide the problem of the 'criminal organisations'. This was another novel prosecution with no precedents in international law. What was a 'group crime' and what constituted 'collective guilt'? In the event, Nikitchenko's advice to abandon legal theorising and be practical seems to have won the day. Professor Donnedieu de Vabres, the French judge, the only legal theorist among them, evidently could not be heard to say that the Gestapo, the SD, and the SS and the Leadership Corps of the Nazi Party were not 'criminal organisations'.
Having made what they could of these involved questions, the Tribunal turned to the fate of the twenty-two defendants. It was a hot September and there were altercations. All eight judges found Goering guilty on all counts and sentenced him to death by hanging. Donnedieu de Vabres, who seldom uttered a word in open court, .wanted him shot; Goering cheated them by his suicide. Ribbentrop; Field Marshal Keitel; Hans Frank, the Butcher of Poland; Julius Streicher, the Jew-baiter; Fritz Sauckel, number two to Albert Speer; General Jodl of the Operations Staff of the Armed Forces, and four other unpleasant individuals were condemned to death by hanging without much debate. Their paricipation in mass murder and extermination played the largest part in these decisions. Professor Smith accuses the judges of 'class bias, ideological blindness and personal antipathy' in respect of the sentences on Sauckel, Streicher and Jodl. My own recollection of the Jodl case is different. While he would never have been executed a year later when passions had cooled, he had signed innumerable orders to commit atrocities in obvious contravention of the rules of war. His plea of 'superior orders' from Hitler was not considered in mitigation, being specifically excluded by the Charter as a defence. This was to have an important application in the case of Lieutenant Cally and My Lai.
The case of Sauckel worried me greatly at the time. Why should Albert Speer, the real architect of the slave labour programme, get twenty years imprisonment and his unattractive lieutenant Fritz Sauckel go to the gallows? As Armaments Minister Speer gave orders for foreign labourers to Sauckel who procured them. Why was Sauckel more guilty than Speer? Speer convinced the Tribunal of his sincere repentance. He was reputed to have offered 'technical information' to the Allies and he gave evidence with charm and professional skill. What the court could not ignore was that although he
toyed with plans to kill Hitler, he was ready to use concentration camps and turn a who served Hitler so well, must have grasped the moral implications of what he was doing. In his Spandau: The Secret Diaries, published in 1976, Speer asks why was he sentenced to twenty years instead of being acquitted? He will find the answer on pages 218-223 of Professor Smith's book. At one time two of the judges wanted him executed. Professor Smith attributes his compromise sentence to the court's 'social prejudices'. It certainly seemed at the time that the wretched Sauckel belonged to the wrong class.
Other sentences caused the Tribunal much anxiety and have since remained a source of debate, One was the pathetic case of Rudolf Hess. Anyone who saw and spoke to Hess at that time, as I did, would have been well aware of his mental instability. He played no part in preparing his own defence. He did not go into the witness box and the prosecution case against him was never strong. How the decision to sentence him to life imprisonment was reached is not clear, but he is still in Spandau Prison.
Previous page
