'All roads lead to Nuremburg'
Rachel Donnelly: “So, to begin our discussion this evening, let's start by considering the origins and the conduct of the Nuremberg Trials. Lady Tusa, if I can put this first question to you. When was the idea of putting war criminals on trial first developed?”
Ann Tusa: “War criminals always have been put on trial, sent back to the country where their crimes had been committed to be judged there. For the first time, it was decided that the crimes committed during this war had been on a continental scale and of a brutality which demanded something new. Um, most of the of the allies against Hitler were too engaged in fighting the war, very doubtful about whether they'd win it, and left the matter hanging what to do with criminals. The push for an international military tribunal came from America, started as rows between departments in America, do we pastoralise America, Germany as well as demilitarise and de-nazify. From the War Department, which said, “You can't make it so punitive you cause grievance, we have to come up with something better, something clean cut, which settles the record once and for all, prevents new myths about stabs in the back, or they started it, not us, developing and causing another war.”
So in 1943, somebody in the War Department drew up a general scheme of the sort of people who should be brought to trial, the major men in the Nazi regime, whose hands had never had blood on them but who sat at nice clean, tidy desks and directed others to commit crimes, and six of the major Nazi institutions who had carried out that work.
Much doubt about whether this was a good idea, the American public swung behind it in 1944, when 70 American prisoners of war were shot by the SS in Malmedy in France. And then, of course, films of the concentration camps made everyone swing behind the idea that there had to be a trial. There was a conference in London in June 1945, remember, one month after the end of the war, they really got a move on. Where representatives from America, Russia, Britain, France, who were the major allies in the coalition against Hitler drew up a charter stating the principles on which the trial would take place, the law which would be applied and issued its rules of procedure for the way in which the trial would be presented.”
Rachel Donnelly: “Are we there? So, in your view was such a trial inevitable?”
Ann Tusa: “No, there were plenty of alternatives; you could do nothing, you know, shake hands, say jolly good war, see you at the next one. There was obviously a dread of lynching, but lynching is murder. There could have been drumhead tribunals. Cordell Hull, Secretary of State in America, said, “Give them, you know, name a few, give them a Court Martial, state your name, read the charge out and he said at dawn next day there would occur a historic incident i.e. shot.” Not very much better than murder and to Eden, the British Foreign Secretary, asked what to, British soldiers should do if he arrested Hitler said, “I leave that to the soldier concerned”, which is Pontius Pilate washing his hands and putting the responsibility on a junior man, who, if Hitler had been dressed in uniform when arrested, would have been shooting a Prisoner of War, against the Geneva Conventions, that's what we were accusing Germans of doing.
Um, what else? A show trial. Well, the example of the Moscow show trials of the 1930s, of the trials of the Nazi conspirators, not Nazi German conspirators who tried to murder Hitler, were very distasteful. So what do you do? You need a decent proper trial based on law, rights of the defendants to a proper defence, and conducted in a calm and reasonable manner.”
Philippe Sands QC: “You see, to understand in the simplest of terms before 1945, the reason Nuremberg was so significant was that a state could, as a matter of international law, treat its citizens as it wished. So, if I was a governmental leader in a country, and I decided that everyone on the right side of the room as I look at the room will be put to death tomorrow at 6:00pm, there may be restrictions under domestic law on my right to do that, but international law said, fine, that's fine, sovereignty, we don't interfere with that, and the revolutionary moment that happened with UN Charter, birth of modern human rights, and Nuremberg, which happened at exactly the same time, was to say no, those days are finished the sovereign is subject to limitations and that was the crucial change. That was coupled with, in August 1945, was to say that for certain acts that are so heinous, it is not only the state that is responsible, but the individual who acts on behalf of the state, that was the second revolutionary change that took place, and both changes took place in an instant.”
Ann Tusa: “They wanted to set a record through the trial so that everyone could see what had been done, the Germans, above all, must be shown what had been done in their name. There was great anxiety to get enough German participation in the public gallery, but people were much too miserable, much too desperate to find food to attend very often. Extra newsprints delivered so that German newspapers could give full accounts, but above all, the aim was to restore the rule of law to Europe, by starting off with the legal process.”
Rachel Donnelly: “Phillipe, is there anything that you would at all in terms of the inevitability of the trial or the development of the original trial?”
Philippe Sands: “I noticed you didn't mention that Churchill himself was not in favour of a trial.”
Ann Tusa: “No.”
Philippe Sands: “He would have just lined them up and shot them, and there is material in the Roosevelt and Truman Papers, which made it very clear that messages were communicated, um, sort of, ironically, Stalin was a great believer in the idea.”
Ann Tusa: “Stalin, however, 1943 Tehran Conference, raised one of his very many glasses by that state of the evening and toasted death to all the defendants and more, and when asked ‘quite how many do you think should be shot?’, he said 50,000, and everyone was so shocked that, that put a bit of stiffening into the idea of a trial.”
Philippe Sands: “The approach that I've taken in writing my book is to home in on a number of personal stories and tease out from the personal stories, the same, it leads in the same direction, but it paints a very different picture. So for example, the two characters on the German and Nazi side that I focus in on East West Street were Hans Frank, who had been Adolf Hitler's lawyer and his deputy, Otto Wächte. And interestingly, as early as October 1942, the New York Times had a very big piece which described how the top 10 Germans in occupied Poland had already been indicted by the Polish Government in exile, which was based here in London, so there was already a narrative that was beginning, but when the war came to an end in 1945, in May, the European war, and the decision was taken, as Ann rightly described, they had a number of major problems; where to hold the trial? What crimes would be included? And this was a big issue because Ann has rightly mentioned war crimes, but war crimes are very limited. And the Germans, very attentive to the formalisms of law, had taken steps to avoid the application of the Geneva Conventions from the 1920s, and even earlier texts by, for example, incorporating occupied territories into their own country, making them part of the Reich, which had the effect, in part, of bypassing the application of those laws. So, there was a major problem, um, what crimes do we put into the Charter that is going to be established? And essentially what happened, three new crimes were invented; the crime of aggression, waging illegal war, which did not exist until August 1945 on any statute book. Crimes against humanity, which was put into the Charter on the 6th of August 1945, following a meeting held in the garden of number 6 Cranmore Road, in Cambridge, between Robert Jackson, the prosecutor, and Hersch Lauterpacht, the professor of international law at Cambridge University, where Lauterpacht came up with the idea of putting titles into the Charter and for the killing other than war crimes of large numbers of individuals, he said, “Why not use the term crimes against humanity?”
Jackson thought it was a terrific idea, took it back to London, persuaded the other three countries to agree to it, and that was it, it happened in a matter of days, there wasn't a great legislative moment. Crimes against humanity or the rough equivalent of the term, had already existed in 1915 as a political statement, but not as a legal term of art. Genocide was literally invented by a single individual called Raphael Lemkin. Genocide referred to the killing of groups, the destruction of groups, and Lemkin was deeply disappointed when it didn't make it into the Nuremberg Charter. He was part of the American team working in Washington, side by side with Lauterpacht, but distinctly. And so, he flew himself to London for the drafting of the indictment, which was negotiated here in London. The specific charges against the original 22 defendants. And he got genocide into the indictment, not as a crime against humanity, but as a war crime. And those new crimes all saw the light of day, and I've often reflected how it was to have been a defendant on the day the trial opens on the 20th of November 1945, and many of them were lawyers, many of the defendants, Hans Frank was there, he was defendant number 7, he was a lawyer, and he's, he'll be sitting there reading the charge sheet, and three of the four crimes with which he is charged did not exist two months earlier, and that's a big issue, and that's always been a big issue in the Nuremberg trial.”
Lauren Willmott: “How did the Allies decide who to put on trial? Was it very much a judgement of the Nazi state or did they want to imply judgement of, of Germany and the German people as a whole?”
Ann Tusa: “Individuals of the Nazi state. Um, there was a strong feeling that Germany had to be part of the rebuilding of Europe after the war. That by writing German war guilt into the Treaty of Versailles after the First World War, there had been a grievance on which the Nazis had worked, and which they built up, which had led to this part, partly, led to the Second World War. So, there was a strong wish to keep the Germans on one side, the Nazis on the other.”
Philippe Sands: “They wanted to get a representative group, but in the end it was 21, but the defendants were chosen to represent different parts of those who remained, including military, the SS, the occupied territories, the business side of the community, the people who ran the finance, Spear was there as a sort of builder and a slave labourer, and the aim frankly, of the prosecutors, was to obtain 21 death sentences, and there is material that exists which makes it very clear that the prosecutors would consider it to be a total failure if any one of the defendants escaped the sentence of death. I came across that for the first time that the, that, we haven't yet come to who the judges were that the President of the Tribunal was a British judge, a Court of Appeal judge, Sir Geoffrey Lawrence, Marjorie Lawrence, wife of Geoffrey, kept a daily scrapbook, and in the scrapbooks, you find the most extraordinary documents. You find poems that the prosecutors are passing up to the judges, one from Maxwell Fyfe. You know, for a, an English judge, an English barrister today, the idea that there are those kinds of connections is incredible. But in that material and in other contemporaneous accounts, you find that they attended dinner parties together, the prosecutors and the judges, not the defence counsel, interestingly, actually, the English bar passed a rule that no member of the English bar was to act as counsel for any defendant, which I now look back on and think that that seems problematic. But that's why they all had German legal counsel, which did put them, of course at something of a disadvantage because they didn't do cross examination, they dealt with evidence in different ways, and so on and so forth. But in these materials, you find snippets of conversations during the dinner parties where the anxiety of the prosecutors that some may get off was aired directly to the judges, so you cannot imagine for those of you who are English, Scottish, Welsh, Northern Irish lawyers that it's like a national domestic court proceeding. They're living in a Crucible, it's a deeply damaged, destroyed town, they were all hanging out together, they were going to dinner parties together, they were talking together, they were sharing information together, they were going on trips together during the Christmas break, it's just a different world. You've got to suspend disbelief about how it was; it wasn't like English court proceedings today or international court proceedings today.”
Lauren Willmott: “What type of evidence did, did the Allies bring into the court?”
Ann Tusa: “[inaudible] documentary evidence. All German documentary evidence and a great deal of it signed by the defendants themselves. They'd um, teams had gone through as the Allies advanced and seized whole archives. The order had gone out from Hitler that all archives were to be destroyed But as John Wheeler-Bennett, the historian, said, “To ask an archivist to destroy his archive is like asking a mother to eviscerate her children.” So, they’d all hidden them away and were thrilled to hand them over to the Allies, and in many cases said, “Can I come with you please and look after them and make sure they're kept in the proper order?”
Philippe Sands: “So, there's the documentary evidence, but the trial broke new ground in many, many ways. It's the first ever trial with simultaneous interpretation; that had never happened before. So you see, for the first time headsets, and the only women who were in the courtroom were the interpreters who played an absolutely central role in that regard, but just the final thing just to come in on evidence is film, this is the first ever trial in which film is used and the famous films, Soviet films and the American films and the British films were absolutely transformative.”
Ann Tusa: “Re, re film, the second American judge Parker, a nice chap couldn't simply believe some of the evidence that the prosecution was producing and he said, you know, “The prosecution's going too far, you know, human beings would never do that.” And the next day, film of concentration camps was shown in the courtroom and poor Mr Parker took to his bed for three days. They brought home, it was very difficult always to conceive of what had gone on, the scale was so awful, the numbers of people who had suffered were beyond comprehension, and film had a great effect, as did witnesses, there was no need for witnesses, the documents would have done the job. But to produce a witness was to bring down to human scale, instantly, graphically communicating what had happened and what it had done, witnesses for the prosecution absolutely proved her right to the judges had been to say ‘you can't say you were obeying orders’. That was ruled out, every single defendant tried to say ‘I was only obeying orders’. And when you get a very high-ranking general, who says I argued with Hitler, I said I wouldn't do what he ordered, and I resigned. You pulled the rugs out of a major piece of defence.”
Lauren Willmott: “Phillipe, did you want to add anything?”
Philippe Sands: “Well, I mean there, there, there was I think only one German part of the military machine who served as a witness for the prosecution. And, and there was a problem finding witnesses. It was also incidentally in the trial that one of the witness statements, but also he was a witness for the defence, Wilhelm Hertel, who in his statement is the first person in history to have identified the number of 6,000,000 Jews having been killed and the origins of that number are traced to a statement of someone who was in the SD, in the intelligence service of the SS and who was then recruited by the Allies and then became an employee of the Gehlen Organisation, the new fledgling German intelligence service. Because the other thing you have to tell in terms of difficulties is the Nuremberg Trial coincided with the beginning of the Cold War. And so, the alliance with the Soviets at Nuremberg became problematic, it's the reason that a lot of the propaganda films made, but the big famous propaganda film made by the Americans of the Nuremberg trial was never shown to the American public by Budd Schulberg because it showed the Americans working with the Soviets and so, there's this sort of other level of complexity going on as the trial is unfolding, the Iron Curtain speech comes down in the spring of 1946 by Winston Churchill, and that transforms the relationship, for example, between the British, American, French on the one hand, and Soviet judges on the other hand. Because, having started in a collegial fashion, by the summer of 1946, the bench, too, is divided by an Iron Curtain, and, it everything becomes more problematic.”
Lauren Willmott: “Looking at the outcomes of the trial, obviously they produce stacks and stacks of evidence and, and witnesses; what were the sentences then imposed on the defendants? Were they successful in getting the outcome of death sentences for all?”
Ann Tusa: “Absolute not, it had been a real trial in which there had been the right of defence, the right to choose your defence counsel, much more time was spent; 73 days on the prosecution, four to five months on the defence and the result was three acquittals, Schacht, Fritzsche, Papen, three life sentences, twelve people condemned to hang and the rest are given an assortment of prison sentences, um, shortest being ten years. And it might be said also added that the three who were acquitted, a sheltered in the jail because there was a mob outside wishing to lynch them and they were later arrested by the German authorities, brought to trial and imprisoned. And I think the sentences in the end, although there was horse trading, came down to what a German lawyer who worked for the Americans said to us was “nearness to the corpses”. In spite of the legal complications, in spite of the arguments which still remain about how correct this was and how wrong the other thing was, had these people murdered people? And that settled it.”
Philippe Sands: “I'd say a real trial up to a point as being a bit sort of formalistic and legalistic, but an anecdote to explore that. So, in doing the research I came across, I focus on four men, one of them is Hans Frank. In 1935, Hans Frank became the president of the Deutsche Akademie Recht, the German Academy for law and use of Nazi construct to remake German and Nazi law. And he holds a big Congress in Berlin and he invites hundreds of people from Germany and a few people from outside Germany. One of the people he invites is the professor of penal criminal law at the Sorbonne in Paris, Professor Henri Donnedieu de Vabres. Professor de Vabres gives rousing lecture at the Congress on the need for an International Criminal Court. After the evenings lecture, he goes and has dinner with Hans Frank and Julia Stryker. The next day, Frank provides his response, “What a ridiculous idea, it’s never going to happen.” Fast forward ten years, Frank is in the dock on the 20th of November, the door opens and one of the four main judges is Henri Donnedieu de Vabres.
And I've often wondered, you know, as a practising barrister, you're in court, you exchange looks with people, you know there's a connection, you don't speak, but you look at each other and there's eye contact. And I've often wondered what passed between them at that moment that they set eyes upon each other for the first time. And when it came to the sentencing of Hans Frank, the four principal judges were the main ones; three voted for the death penalty and one voted against, Henri Donnedieu de Vabres, because you can't sentence to death someone you've had dinner with, that, that is one of the morals of the story. And in Biddle's Papers, he writes, “Donnedieu de Vabres curiously tender towards Frank.”
Lauren Willmott: “At the time were the trials considered a success? What were, what were the responses to the trials? And if we take it forward to, to your opinions now, do you think the trials were a success?”
Ann Tusa: “I think they were acclaimed as a success, and everyone recognised that to have held that trial in Europe in the condition in which they found it was a miracle. To have to find all the equipment, the translation, the courtroom, not much bigger than this at the working end. To deal with lighting, interpreters, um, all the stenographers who sat and took things down, and the people did wire recording. There was 124 miles of wire in that room. So, that I think people praised for they, it was wonderfully quietly conducted. People always expected there'd be degrading, hysterical scenes; there weren't. Geoffrey Lawrence contained the court very quietly, very authoritatively, he refused to use gavel, he would just occasionally tap on the table with his pen, and everyone went quiet, everyone did as they were told, back they came to order again.”
Lauren Willmott: “And Phillipe, from your perspective as a practising barrister, would they be considered a success today?”
Philippe Sands: “Well, I mean, there's so many ways to answer that. It was success in this sense, it was the start of modern International Criminal law, all roads lead to Nuremberg, if there hadn't been Nuremberg, there wouldn't have been Tokyo, there wouldn’t have been Yugoslavia, there wouldn’t have been Rwanda, the International Criminal, it's just as simple as that. So, if you think International Criminal justice is a good thing, and the International Criminal Court today is a good thing, then it was success, success that led to that but, but, it created a legitimation in the eyes of some of justice in a lopsided way; justice for the victors, there was nothing with the Soviets, there was nothing about Dresden, there was nothing about this. And if you fast forward to today, and if you go onto the website of the International Criminal Court, you will see that every single person who has been indicted is black and African. Black people and African people do not have a monopoly on international crime. Essentially, the path of international justice has been that it's a system used by the powerful against the weak, and that is a fundamental problem, that is not a way of saying it wasn't a successful trial or it shouldn't have happened, but it set in train things that essentially said, justice for the powerful and the strong is acceptable, and that was taken forward.
Now, it’s not always been like that. It's different bit in Yugoslavia, different a bit in Rwanda but, but but there's a nugget there of an issue. And then if you go down to the micro, if you take the two guys that I focused on, Lauterpacht thought it was a terrific success. Crimes against humanity was in the judgement, he thought it would save lives, he thought it would give rise to a new consciousness, and he reacted positively.
On the other hand, Lemkin was devastated by the fact that the judgement makes no mention of the term genocide. Why? Because the Americans were totally against it. Robert Jackson and no American prosecutor, uses the word genocide at any point in the entire trial because they're under intense pressure from Southern American senators worried that it's going to be used by African Americans in the United States context. So, the question was it a success or not is a multifaceted, very complex question, best answered by another question from the perspective of who?”
Ann Tusa: “Well, from my perspective it was well conducted, a form of justice which none of the defendants had expected. I think it can only be judged in its own time and by its own standards. Those were very high, very ambitious. It was a human endeavour under very difficult circumstances. I don't, would not expect perfection, but I think they did a brilliant job.”
Philippe Sands: “But there is of course also another way of looking at it, it’s a very complex question that you've asked because. Well, well, it's just it asks a bigger question about the purpose of formal criminal justice in these circumstances. Very few people were judged. Fewer even were convicted. And that created a context which essentially said, those who were not put on trial, those who were not judged and those who were not convicted were innocent. And that has had continuing consequences, those of you…”
Ann Tusa: “That's all justice. Murderers are convicted if they can be found and brought to trial but the world is full of murderers who weren't found.”
Philippe Sands: “But it forces us to ask the question, “What's the purpose of a criminal justice system?” I mean, I'm not saying it shouldn't have happened, you've heard me loud and clear. I'm absolutely, I think it's right. But I think, for example, a museum like this, which is going to have a gallery that deals in part with the question of this trial and related domestic trials and the trials that followed, the domestic trials that were held, I think the proper function of the museum is to tell that story honestly and not, it would be wrong, in my view, to portray what happened in Nuremberg as some sort of monumental success and triumph of justice, it's much more nuanced and complex than that.
It's not to say that we can't celebrate what happened as a remarkable and revolutionary thing, but we need to be honest about how it was achieved and we need to ask ourselves the bigger questions about what the purpose of it has been over the longer term. So, I don't think we're inconsistent, we're just coming at it from different, from different perspectives.”
Ann Tusa: “Every word spoken in court was then published verbatim transcripts, 22 volumes. You can all go and read those volumes and decide for yourselves whether it was a good, fair trial.”
Lauren Willmott: “And we have them here at the Imperial War Museum. [laughter] That seems like quite a good note to end it on actually, before, so, we'll open up questions to the floor.”
Question one: “I'm going to go back to Lauren's can of worms question, sorry, but by specifying a by whom. So, you mentioned earlier that the prosecution would have considered the trials a failure if any of the defendants received anything less than a death penalty. And given that some of them did, what did the prosecution think of the trial and the outcome of the trial?”
Philippe Sands: “Well, immediately the judgement came down they reacted, some of them very negatively, and there's documentary evidence of that. They were, they were horrified that they were complete acquittals, that was just seen. But it, solid, solid, it solidified the legitimacy of the trial later on. So, there is the reaction of the individual participants at the time, but there is then the ability of government to say, look, look, it was a proper trial, some of these guys got off.”
Ann Tusa: “It was the prosecution's job to get everyone found guilty, but any prosecutor surely knows that some people aren't guilty. And I think there was a genuine awareness, certainly in the British prosecution team, that many of the cases were very weak. And until you could actually establish the, this man had blood on his hands, you're on very poor ground indeed.”
Philippe Sands: “Yeah, I mean, I mean my, my reading of the of the individual prosecutors is that some of them were pretty devastated. The three who were acquitted were all sentenced by the Soviet judges. I mean, the Soviets would have just hanged everyone. And that was for the Soviets also. That's what it was about.”
Ann Tusa: “And I think that was one of the major disappointments, that there was a dissenting judgement delivered by the Russians.”
Philippe Sands: “But, but, but over time, the, the acquittals have helped give the trial a certain legitimacy, and I think if everyone had been hanged, or even less dramatic, everyone convicted, perhaps it wouldn't have had the same resonance that it has had, it's an interesting question.”
Rachel Donnelly: “I think at that point we will need to draw questions to close. So, thank you very much. I'd like to invite Gill to come and close our proceedings this evening, thank you.”
Gill Webber: “Ann and Philippe, thank you so much. It has been an absolutely fascinating evening. I'm sure everybody here and feels the same way that we've really benefited from your expertise and, you know, feel suitably enlightened about the, about the trials, absolutely fascinating, so thank you so much. And we have a very small token of our appreciation. Maybe you could just join me in showing your appreciation in the normal way.”
IWM After Hours presents 'The Legacy of the Nuremberg Trials: Justice, Retribution and the Birth of International Law'
The Nuremberg Trials were arguably the most famous trials in history. They not only played a pivotal role in shaping the rules governing the conduct of war, but also the entire body of international human rights law. The Panel discussed the relevance of the Trials today.
On Wednesday 21 November 2018, IWM was joined by Philippe Sands QC, Professor of Law at University College London and author of the bestselling East West Street, and Ann Tusa who wrote The Nuremberg Trial which was first published in 1983. Tusa has since completed a trilogy exploring key events in post-war European history.
The session was chaired by Lauren Willmott and Rachel Donnelly IWM Curators for the Holocaust exhibitions and education programme.