There Was No Justice At Nuremberg
There Was No Justice At Nuremberg
The International Military Tribunal Served a Purpose, But It Was Not Justice
It was announced on Sunday that Ben Ferencz, the last surviving prosecutor at Nuremberg, had died on 7 April, aged 103. Ferencz, who was in his 20s during the trial in the 1940s, took from his experience a highly idealistic view that the whole world in future could be legally ordered, summarised in his famous phrase, “Law, Not War”, which he elsewhere expanded to, “Law, not war, can save the world!” The problem is that this was self-evidently wrong from the get-go: the Nazi war criminals were brought to trial at Nuremberg because they had been defeated by force of arms. The myth of the Nuremberg trials as a model of justice that Ferencz did so much to cultivate obscured the fact the trials were an exercise in raw power, the concluding scenes of the most brutal war in history. Where Ferencz was correct, albeit unintentionally, was seeing Nuremberg as the template for the development of “international law”, which presents itself as an enterprise of dispassionate justice, while being a continuation of politics by other means.
A TRIAL UNDER MOSCOW RULES
Any claim Nuremberg—formally the International Military Tribunal (IMT)—has to be a legal exercise is annihilated by the fact one of the key powers overseeing it was the Soviet Union. The problem is not merely that this meant the inclusion of prosecutors and judges from a state responsible for killing far more innocent people during “peacetime” than the Nazis had during war, absurd as that was. But the Soviet inclusion distorted the entire process in two senses.
First, there was the operational distortion. “The Nuremberg Trials might not have happened at all had the Soviet view not prevailed”, writes Francine Hirsch in Soviet Judgment at Nuremberg (2020).1 The central concept in the August 1945 London Charter that set up the IMT, “crimes against peace”, as well as the refusal of superior orders as a defence, were developed by Soviet theorists. The alternative to the IMT, favoured by some American officials, notably Treasury Secretary Henry Morgenthau Jr., and most British officials, it seems including Winston Churchill, was the Allies invoking their authority as military occupiers to execute Nazi war criminals after a fact-finding commission.
The British were very clear-eyed about what they were dealing with. It was not just the fear that Nuremberg would appear as a “victor’s justice” sham, a concern shared by the idealistic American jurists. Guy Liddell, the head of counter-espionage at MI5, noted in his diary that “most of the things the [Nazis at Nuremberg] are accused of having done over a period of fourteen years, the Russians have done over a period of twenty-eight years. This adds considerably to the somewhat phoney atmosphere of the whole proceedings”. Liddel recorded the proposal for the House of Commons to determine which Nazis “should be bumped off” and which “others should receive varying terms of imprisonment”, then issue this order to the military to carry out. This would be overtly political, a continuation—and conclusion—of the war. Whatever the drawbacks, it was “a much clearer proposition and would not bring the law into disrepute”.2
U.S. President Franklin Roosevelt was opposed—and he was probably correct that it was politically impossible to sell Western publics, certainly Americans, on essentially battlefield executions. Liddel got to the heart of the matter in noting that “Joe [Stalin] supported Roosevelt on the perfectly frank grounds that Russians liked public trials for propaganda purposes. It seems to me that we are just being dragged down to the level of the travesties of justice that have been taking place in the U.S.S.R. for the past twenty years.”
Hirsch shows clearly that the Soviets conceived of Nuremberg as they had the show trials during Yezhovshchina (“the Great Terror”), “the largest scale peacetime political persecution and blood-letting in European history”, with three million people murdered in 1937-38 and seven million forced into GULAG concentration camps to be used as slave labour. This was not simply a spiritual connection. As Hirsch documents, “nearly everyone … on the Soviet side with any real responsibility had proven his mettle … in the 1930s show trials”.
For the Soviets, Nuremberg was a political platform, a chance to tell a story constructed by Joseph Stalin that would glorify the Soviet Union, denigrate its perceived enemies, and further the cause of bringing the world under Communism. There was no concern for getting at the truth about the guilt or innocence of the defendants. The primary Soviet judge, Iona Nikitchenko, a blood-stained fanatic who had overseen the most infamous Moscow Trials, declared in June 1945—five months before the IMT opened—that those on trial had “already been convicted”. Leaning into the General Melchett conception of a fair trial, Nikitchenko made repeated public statements of the same kind before and during the IMT.
The Soviets had to slightly alter their approach when it turned out they were not going to get an out-and-out show trial at Nuremberg on the model of the Kharkov and Krasnodar Trials the Soviets staged in 1943, only this time with the added prestige of the Allies collaborating in the theatre. Stalin had shot all the translators—being heard speaking German was sufficient grounds for execution during the war and foreign-language capacity in general, i.e. an ability to communicate with the outside world, brought suspicion on Soviet citizens—leaving the Soviets reliant on substandard personnel, wholly unequal to translating the legal concepts under discussion with the other Allies in the preparation period of the IMT. Even without miscommunications, Soviet officials struggled with the very concept of negotiations, let alone the practical subtleties and tactics, and this was as true for setting a meeting agenda as it was for defining the legal theories governing the IMT; they were used to obeying instructions from above. Hirsch walks readers through the Soviets’ mounting horror as it dawns on them the format will be that of an adversarial trial, where the Nazis are going to be allowed to present an unscripted defence, rather than simply read a “confession” tortured out of them at Lubyanka.
The Soviets swiftly adapted and set about stage-managing the process from behind-the-scenes. A commission was set up in Moscow headed by Andrey Vyshinsky to direct in the minutest detail the actions of the Soviet prosecutors and judges in Nuremberg, all of whom were under intense surveillance anyway from the NKVD, as was the rest of the Soviet delegation: the interpreters, typists, drivers, and all-purpose assistants. Vyshinsky was the great impresario of the Moscow Trials, the refined and eloquent “state prosecutor” who gave just enough intellectual cover to the bloodbath that those who really wanted to believe the fantastical “charges”, like the Western press corps in the Soviet capital, could claim that they did.
The logistics of this arrangement—totalitarianism by remote-control—chronically paralysed the IMT. Having anticipated a show trial, communication between Moscow and Nuremberg did not seem like it would be much of an issue; once the Soviets were thrust into a situation of having to react to unscripted developments, it was much more complicated. Men conditioned by Bolshevism only to obey and rightly terrified of even unintentionally defying the Party, the Soviet officials at Nuremberg were neither capable nor willing to take any decision on their own. Hirsch’s book is frequently amusing in describing the elaborate shenanigans the Soviets at the IMT went through to stall for time as they awaited Stalin’s orders and to keep it concealed from the other states that they were acting as puppets of Moscow Centre.
THE BIG LIE AT NUREMBERG
The second sense in which the Soviets distorted the Nuremberg trials was more pervasive. The “supreme international crime” charged against the Nazis at Nuremberg was waging aggressive war, since this crime was the one that enabled all the others. It was awkward, then, that the attack on Poland that began the Second World War was a joint Nazi-Soviet operation. And that was just the start. The Secret Protocols in the August 1939 Hitler-Stalin Pact demarcated a carve-up of Europe. In the first year of being allied to the Nazis, the Soviets invaded seven countries, the same number as Hitler. The heart of the Nuremberg proceedings was corrupted in a way that radiated throughout the whole exercise by Moscow’s effort to conceal, and the IMT ultimately collaborating in suppressing, the central fact of the matter under discussion: the Soviets had been the Nazis’ partner in plunging Europe into war.
The Soviets had audaciously focused the prosecution case on the “Treaty of Non-Aggression”, as the Pact was formally known and presented in public, arguing from a legal standpoint that the Nazi regime’s conscious breach of this treaty in invading the Soviet Union added to the culpability of its high officials in crimes against peace. Politically, the Soviets were hoping to use the discussion of the treaty to further a narrative wherein the Soviets had done all they could to preserve peace and then, when faced with German treachery, the new Soviet Man built by Communism had heroically resisted a demonic capitalist-industrialist Fascist onslaught. The problem, of course, was that by bringing attention to the Pact, the Soviets were standing on an enormous trapdoor.
The Nazi defence teams had already adopted as one of their strategies the launching of counter-charges at the “Grand Alliance”. America and Britain could swat away these distractions, even in more controversial cases like firebombing, by arguing that these tactics were adopted as part of a defensive war. The Soviets could make no such claim over the Secret Protocols. Given that one of the men on trial was the Nazi Foreign Minister, Joachim von Ribbentrop, who had signed the Pact, it can seem bafflingly reckless that the Soviets walked the Pact into court. Again, though, the Soviets had prepared for a show trial; they had not fully absorbed that Ribbentrop and others could respond. The Soviets had to watch helplessly, on 30 March 1946, when Ribbentrop took the stand and Alfred Seidl, the defence attorney for Hans Frank and Rudolf Hess, manoeuvred the questions to the Secret Protocols—the first mention of the Protocols in public. From the dock, Ribbentrop said he had “talked very frankly during the negotiations with Stalin and [Soviet Foreign Minister Vyacheslav] Molotov”, and the Soviet leaders had, “us[ing] plain language”, agreed upon a “line of demarcation” for after the Nazis and Soviets had jointly obliterated Poland. As Seidl bluntly put it, if the German attack on Poland was an aggression (all agreed it was) and the framework in which that had taken place was the Secret Protocols (as it was), “then both sides are guilty for it”. To the dismay of the Soviets, this discussion continued over several days.
What made this worse for the Soviets was that even their chief prosecutor, Roman Rudenko, had arrived at Nuremberg—with instructions to pursue the line of questioning over the Pact—while being genuinely unaware of the Secret Protocols that provided Hitler’s endorsement for Stalin’s conquest of eastern Poland, Latvia, Lithuania, Estonia, Bessarabia, and the attack on Finland. By the time of Ribbentrop’s testimony, Rudenko and two others in the Soviet delegation had been briefed, but the rest had not, including the Russian translator Tatiana Stupnikova, who “later wrote about how shocking it was … and how she had struggled to maintain her composure”.
Seidl had tried to get the Secret Protocols officially entered into evidence in the form of an affidavit by Friedrich Gaus, the former head of the German Foreign Office’s Legal Department, who had accompanied Ribbentrop to Moscow to sign the Pact. The Soviets managed to block that. Seidl was undeterred. Hirsch narrates Seidl’s campaign to shine a light on the Secret Protocols. Once Ribbentrop had mentioned the Secret Protocols, Seidl had embarrassed the Soviets by ostentatiously asking Nikitchenko if perhaps the Soviet government would furnish the original document, since it had one copy in Moscow and had seized the other when it took over the German Foreign Ministry. The Soviets appealed to the Western judges on the basis of the precedent set by disregarding testimony over the Munich Agreement that served up Czechoslovakia to Hitler to shut down all future discussion of the Secret Protocols. The Western judges were unsympathetic: the Soviets themselves had brought the Pact into court and whatever Munich’s deficiencies it did not contain secret clauses for Britain and France to assist Hitler in an aggressive war.
Details of the Secret Protocols were mentioned several more times. A notable, if indirect, instance was during the session for Hans Fritzsche, a relatively minor propaganda functionary that none of the Western judges believed should be on trial alongside the Nazi elite. Fritzsche, a broadcaster on Nazi radio, had been involved in the July 1944 attempt to kill Hitler led by Colonel Claus von Stauffenberg that would have installed a military government to de-Nazify the state and cut a deal with the West to prevent Germany falling to the Red Army. This was the underlying reason for the Soviet vendetta against Fritzsche. The Soviets also wanted a stand-in for the deceased Joseph Goebbels, since an important part of Moscow’s messaging at Nuremberg was the effect of propaganda in inciting Germans to atrocities on the Eastern Front, and they wanted a death sentence. After Fritzsche had turned himself over to the Soviets on 2 May 1945, he broadcast a message on their behalf calling on Germans to surrender, and was carried off to Moscow by SMERSH, where he was “interrogated” for three months until he signed an outlandish “confession” about his role in the Nazi regime. When Rudenko cross-examined Fritzsche on 28 June 1946, the Soviets ran into immediate problems by referring to the “confession” extracted from Fritzsche in Moscow: Fritzsche hinted broadly that he had signed the document under torture, and when Rudenko tried to enter statements from three other Nazis in Soviet custody against Fritzsche, the defence was readily able to essentially dismiss them as fabrications, noting the Soviet jargon these Germans had supposedly used. The worst moment for Rudenko was when he tried to implicate Fritzsche in the Nazi aggression against Poland by referring to a radio broadcast Fritzsche made in August 1939 saying Germany would have to attack Poland as a matter of self-defence. Fritzsche reaffirmed his belief that this is what happened, adding that it was “a matter of great satisfaction” to read in the Soviet press just after his broadcast that the Soviet government agreed with this interpretation of events. The Secret Protocols were also used by the defence during summing up.
The Soviets did, however, manage to exclude the actual text of the Secret Protocols—which Seidl acquired in somewhat mysterious circumstances—from the official evidence file. By the time that final decision on exclusion was made on 8 June 1946 it was a pyrrhic Soviet victory: the Secret Protocols had become common knowledge thanks to Thomas Dodd, the second-ranked American prosecutor at Nuremberg, who leaked Seidl’s copy to the media on 22 May.
On 23 May 1946, Nikolai Zorya, the head of the Department of the Supervision of the Military, added to the Soviets’ Nuremberg delegation to ensure proceedings steered away from their list of taboo topics like the Secret Protocols, was found shot in the head in his hotel room—a dreadful accident while cleaning his pistol, the Soviets explained. Nobody believed this, Hirsch notes, though whether Zorya was murdered by the NKVD or pre-empted what he assumed would be his fate after the debacle the previous day is unclear. Either way, Zorya’s death brought even more attention to the Secret Protocols being published and the general malign behaviour of the Soviet Union, this being ten weeks after Churchill’s “Iron Curtain” speech in Fulton, Missouri, recognising the onset of the Cold War, amid the Azerbaijan crisis and the ongoing Sovietization of Eastern Europe.
KATYN
Fusing together all the problems of having one of the criminals representing the prosecution, the single most grotesque event at Nuremberg was the space given for the Soviets to attempt to pin the blame for the Katyn Massacre, one of the great crimes of the Soviet Union, on the Nazis.
The Allies had made the bizarre decision in September 1939 to declare war on only one of the states that dismembered Poland. By March 1940, there were dangerous signs a course-correction was underway. Stalin’s undisguised war of aggression against Finland had outraged Western opinion and led, belatedly, to reconsideration in the West of the policy that treated only half of the totalitarian alliance that was rampaging through Europe as officially hostile. Plans to support the Finnish defence by landing Western troops were in progress and serious consideration was being given to bombing the oil facilities in Baku—a logical extension of the anti-Hitler war, since these installations were literally fuelling the Nazis’ conquests.
Stalin, well-informed by his spy networks in senior positions in the U.S. and Britain, cut his losses over Finland, concluding a quick “peace” that removed the political rationale for a move against him, and simultaneously consolidated his position in Poland by giving the order to exterminate the Polish elite so they could not form the basis of a resistance movement the Allies might support. 22,000 Polish military officers, policemen, government officials, and other “class enemies”—doctors, university professors, teachers, journalists—were systematically murdered in NKVD basements over several weeks in April 1940, and their bodies dumped in the Katyn Forest, about fifteen miles west of Smolensk. The wives and children of these men, 60,000 people, were deported to labour camps in Kazakhstan, and a separate deportation from the Soviet-occupied zone of Poland transferred 78,000 people to the GULAG archipelago, the overwhelming majority of them—more than eighty percent—Jews who had fled over the line of demarcation from the Nazi-occupied zone.
The Wehrmacht found the Katyn graves in April 1943, and the Nazi regime made a huge public spectacle of the discovery on 13 April. On the radio, Fritzsche proclaimed it an example of the evil work of the “Jewish-Bolshevik secret police”, the kind of thing Germans could expect to be visited on them if the Red Army entered Germany. Sean McMeekin’s Stalin’s War (2021) describes what happened next. The Germans, quite correctly, said the victims had been butchered by the NKVD in the spring of 1940 after the Soviet conquest of Poland six months earlier. On 15 April, Radio Moscow responded by claiming the Poles had been murdered by “German-Fascist hangmen in the summer of 1941”, shortly after the onset of Operation BARBAROSSA and the Nazi occupation of the area around Smolensk. The Soviets would stick to this lie until 1990.
The Nazis knew the value of the discovery, McMeekin explains: they could drive a wedge into the Allied camp and they could remind everyone that the high moral tone being taken by the Allies was the grossest hypocrisy as they stood shoulder-to-shoulder with the co-initiator of the war and a man capable of atrocities every bit as gruesome as the Nazis. For once, Nazi propaganda needed no lies and no exaggeration; all they needed was attention. When the Polish leader-in-exile, Wladyslaw Sikorski, based in London, requested that the International Committee of the Red Cross (ICRC) examine the Katyn burial site, he found the Nazi government had already filed such a request with the ICRC. Placed in the middle of a white-hot political issue, the ICRC said it would only examine the site if Sikorsky, the Nazis, and the Soviets endorsed their mission. That the Soviets refused told its own story. The Nazis ultimately put together an “International Katyn Commission” of forensic and other experts, mostly Germans and some from other Nazi-occupied or -aligned states. Propaganda exercise it might have been, its findings were basically accurate.
Britain and America utterly disgraced themselves in response. It had been one thing to make the decision in 1941 that it was in the West’s strategic interest that the Soviet regime not go under to the Nazi invasion; it was quite another by 1943 to be ramping up Lend-Lease support as the Soviets moved to conquer Eastern Europe and to provide political cover for Stalin’s world-historical crimes. Churchill muzzled the Polish press in London and the Roosevelt administration publicly declared its support for the Soviet story. As McMeekin points out, the U.S. official position on Katyn was only revised to reflect reality in late 1951, as America led the NATO forces trying to hold back the Stalin-orchestrated armies in Korea. Emboldened by this Anglo-American cravenness, Stalin severed diplomatic relations with the Polish government-in-exile on 25 April 1943, slanderously accusing Sikorski of coordinating with Hitler to vilify and weaken the Soviet government so the Poles could fulfil their imperialistic intentions of annexing Soviet territories in Belorussia, Ukraine, and Lithuania. Not a word of protest about this was issued from London or Washington.
Fast-forward three years to Nuremberg. Those in the Soviet delegation who knew the truth understood, once it was clear they were not going to be presiding over a show trial, that it had been a terrible mistake to add Katyn to the docket. (One theory for Zorya’s demise is that he had expressed these misgivings too forcefully to the NKVD or had killed himself in despair at the prospect of trying to prove the Nazis’ guilt for Katyn.) The Western judges distanced themselves as far as possible from the Katyn session, having never been comfortable with the inclusion of the massacre.
The Soviets had already prepared the way for the claims they would make about Katyn at Nuremberg. The basis of the Soviet case was the “findings” of a Commission led by the Surgeon-General of the Red Army Nikolay Burdenko, a tissue of fabricated witness statements and technical information, about everything from rates of decomposition to the weather, purporting to demonstrate the Nazis had massacred the Polish captives in July-August 1941. The Burdenko Report, among whose authors was the president of the Soviet Red Cross Sergei Kolesnikov, was published on 24 January 1944. Around that time, Solomon Lozovsky, head of the Soviet Information Bureau, showed Western journalists around the Katyn site and sought to demonstrate the Soviet story.
Here we return to Hirsch’s invaluable research. The Soviet prosecutor for the Katyn showdown at Nuremberg was Lev Smirnov, believed by the Centre to be “one of the Soviet Union’s most able courtroom orators”, Hirsch writes: Smirnov had impressed the Soviet leadership with his performance at the 1943 war crimes “trials” and his oratory at Nuremberg on crimes against humanity in February 1946. The lead figure in preparing the “evidence” the Soviets would present over Katyn was Aron Trainin, the most prominent Soviet “jurist” to Westerners, whose “crimes against peace” concept was so central to the IMT. Trainin had deep experience in weaving a web of lies in court: it was his theory of “conspiracy” that underpinned the Moscow Trials. One of those assisting Trainin was Leonid Raikhman, the head of the NKVD’s Polish office, who, Hirsch notes, had “signed off on the order for the massacre” and been involved in fabricating the “evidence” in the Burdenko Report.
Before the Soviets had their chance to use the world stage of Nuremberg for their lies about Katyn, however, the defence was up. Led by Otto Stahmer, Hermann Göring’s defence lawyer, three witnesses were called and the case they made swayed quite a lot of the audience, significant sections of the Western delegations, and even parts of the Soviet delegation that had been kept in the dark.
The Soviets handled the first two Katyn defence witnesses reasonably well. On the first day of the Katyn trial, 1 July 1946, Col. Friedrich Ahrens took the stand and conclusively demonstrated the Burdenko Report had erred: he could not have been responsible for the massacre, as it claimed, because he arrived near Katyn in late November 1941. Smirnov countered that even if this meant Ahrens was personally innocent, it also meant he could not know if the massacre had taken place months earlier. The primary issue on which the Katyn evidence turned was when the massacre had taken place and Smirnov had kept alive the possibility it had occurred in the summer 1941 timeframe the Soviets claimed. Next, Lt. Reinhard von Eichborn, a telephone expert with Army Group Centre, testified no order could have come through for the massacre without him knowing about it. But Smirnov forced Eichborn to admit that in fact the Einsatzgruppen and other “special” Nazi killer brigades had “their own wireless stations” separate from his.
The Soviets handled the final witness, Lt.-Gen. Eugen Oberhauser, the chief signal officer of Army Group Centre and Ahrens’s commanding officer, much less well. Oberhausen had arrived in the Katyn area in September 1941 and handled all communications; no order had come from Berlin for the massacre of the Poles. Oberhauser was also convincing that his detachment did not have the type or quantity of weapons needed for the massacre that had taken place and—a small detail, but the kind that stuck in people’s minds—he pointed out that it was illogical, if his unit had murdered the Poles, they would situate their headquarters right next to the grave. The smell, apart from anything else, had been horrific. The Soviet prosecutor had established this when getting Ahrens to admit he had not closely inspected the graves personally; he had driven past a number of times, always quickly, due to the stench.
Added to this was a key piece of physical evidence for the defence, Hirsch notes, was “a Polish officer’s diary that ended abruptly [in the spring of 1940], expressing in one of its final entries the fear that ‘something horrible was going to happen’.”
The first Soviet witness was Boris Bazilevsky, an astronomy professor who had been Smolensk’s deputy mayor during the Nazi occupation, and one of the “witnesses” Lozovsky had presented to journalists in January 1944. The second witness was Dr. Marko Markov, a Bulgarian forensics expert who had been an author of the Nazi-sponsored International Katyn Commission. The crucial thing about both men, Hirsch underlines, is that they had been collaborators and were now in Soviet custody: they were alive solely because they could be useful to Stalin, and their hopes of remaining alive hinged on reinforcing the Soviet narrative about Katyn before the IMT.
Unfortunately for Bazilevsky, his “eyewitness” testimony was a bust: not only did Stahmer get Bazilevsky to admit his “knowledge” of the massacre was based on rumours, Stahmer flustered the entire Soviet team by accusing Bazilevsky of reading from a script that the Soviet interpreter also already had. Dodd, the deputy U.S. prosecutor, stood up to deny the interpreters had scrips and the British judge Geoffrey Lawrence rebuked Stahmer. There was a nagging sense in the room that Stahmer had been right. Markov as a technical expert did much better: he said he had signed the Katyn Commission under duress, that the investigation had been brief and superficial, possibly staged by the Nazis since the bodies examined were pre-prepared, as were the letters and receipts that all cut off in April 1940, and Bazilevsky did quite well in throwing doubt on some of the facts he had previously endorsed.
The final Soviet witness, Professor Viktor Prozorovsky, a forensic expert for the Burdenko Report, was a reliable Communist hack. It is unclear if Prozorovsky had a role in generating the falsified Soviet “evidence” about Katyn; assuming he did not, and that he was not briefed by the NKVD when he exhumed and examined the bodies at the site after the NKVD had tampered with it in January 1944, he was a genuinely skilled scientist so must have at least suspected the truth. At Nuremberg, Prozorovsky had a mastery of the technical language in maintaining he could be certain from a personal examination that the victims had been buried in July-August 1941. Prozorovsky displayed the same verbal fluency in claiming to have seen letters written by the Poles dated to the summer of 1941 and being sure that German bullets were recovered from the skulls, not least because he had attended other (actual) Nazi massacre sites where the same methods had been used.
In terms of the optics, Hirsch summarises:
The Politburo Commission’s fabrication of documentary evidence and careful preparation of witnesses had paid off. Furthermore, the Americans had ultimately come to the aid of the Soviets for the sake of the IMT, shutting down Stahmer’s effort to challenge the Soviet witness testimony as scripted.
For anyone hoping for a huge public scandal, the two days in court would have felt anticlimactic. But for many members of the Soviet delegation, the German witnesses’ testimony was eye-opening, making them question what they thought they knew about the war. The German witnesses had thrown reasonable doubt on the Soviet charges about Katyn, and the Soviet witnesses had not been able to fully undo the damage. In the eyes of most observers, the showdown had been a draw—which for all intents and purposes amounted to a Soviet loss.
Stupnikova, from within the Soviets’ own camp, was left deeply unsettled by the defence’s evidence, and Telford Taylor, the lead American prosecutor, was quite sure the evidence showed the massacre had not taken place when the Soviets claimed. The implication Taylor was left with was that the Soviets were responsible.
THE VERDICT
The arbitrary and political nature of Nuremberg extended to the technical aspects of the final judgment, as Hirsch explains. Count One of the indictment, conspiracy, was an American doctrine: if someone could be proven to have entered into a conspiracy, they could be held responsible for the activities that flowed from this “common plan”, whatever their personal role in furthering the plan. Retroactively raising this American innovation to the status of “international law” and then throwing the book at the Germans on that basis was many things; law and justice it was not. Count One remained in place, though, with strong Soviet support and over particularly France’s objections—the French disliked the concept of conspiracy wholesale—to try (unsuccessfully, as it turned out) to ensure that Fritzsche specifically was convicted. The only way Fritzsche’s radio speeches could be argued to be crimes was if they were part of a common plan for Nazi world domination.
It did not end there. The terms of the conspiracy indictment had to be trimmed because the prosecution claims—that this plan dated back to the formation of the Nazi Party—could not be sustained by the evidence. A decision was made to date the origins of this plan to the Hossbach Conference in November 1937, and to limit the application of the conspiracy charge to Count Two (crimes against peace), while Counts Three (war crimes) and Four (crimes against humanity) would be adjudicated independently.
Nikitchenko managed to get the Western judges to agree to remove the reference to the Pact as the moving instrument in the eradication of Poland. This was a gross falsification of history, but what choice was there? Describing how the Second World War actually began in Europe would have meant officially admitting one of the powers sat in judgment was a partner of the Nazis in committing the crimes that formed the primary counts of the indictment. The revelation of the Secret Protocols in court, and the IMT essentially ignoring them thereafter, continuing with its pre-arranged schedule rather than following the evidence to indict the Soviets, had been the surest demonstration that Nuremberg had nothing to do with justice; to have written the Secret Protocols into the verdict would have made any pretence to the contrary unsustainable.
The Soviets did not get everything their own way. Nikitchenko, while supposedly deliberating with the other judges in total isolation—Hirsch reports that the Americans even removed the telephones from the Palace of Justice—acted on direct, detailed instructions from Moscow, sent in encoded telegrams, about everything, down to the tactical “concessions” he could make on some prisoners’ sentences in exchange for trying to secure the death penalty for figures the Soviets particularly despised like the industrialist Hjalmar Schacht. Having pushed for the execution of all twenty-two defendants, the Soviets had to settle for twelve being put to death and had to swallow three acquittals, Fritzsche and Schacht among them. The dissenting opinion Nikitchenko issued was written in Moscow and cabled to Nuremberg hours before it was given on 1 October 1946. The Soviets then directed the wave of protest by Germans calling for “a people’s trial” of the three men acquitted.
The Soviets also suffered a setback with the wholesale exclusion of Katyn from the Nuremberg judgment. They Soviets would not get an “official” stamp for their lie that Katyn was a Nazi crime. Nonetheless, the exclusion itself only served to highlight the utter travesty that had been allowed to play out. The non-Soviet judges might not have known that “witnesses” had given scripted testimony under threat for their lives, that the prosecution was fully aware the evidence presented was fabricated, and that those who directed the prosecution had actually fabricated the evidence. But the Western judges knew enough was wrong to discount the Soviet version. In no trial worthy of the name would a major crime under investigation simply be omitted from the verdict when reasonable evidence surfaced that the prosecution was the guilty party. If Nuremberg had been a legal process, there would have at least been a consideration of bringing charges against these false accusers.
CONCLUSION
The very fact of the Soviet presence at Nuremberg robs the Tribunal of any claim it represented justice. The Soviets had jointly started the war, an action now described as the “supreme international crime” for which they would execute their former Nazi allies. The same theatres where the Nazis committed their worst atrocities—Poland, Ukraine, the Baltics—had been ravaged at least as cruelly in the same period by the Soviets. The Soviets had concluded the war by displacing Nazi totalitarianism with their own form over half the continent. The Soviets had raped their way into Berlin and outside the windows where the Soviet prosecutors legalistically condemned the Nazis for plundering the occupied areas, the Red Army was looting on a scale to make the Romans blush. That Nuremberg was then relentlessly manipulated by the Soviet secret police merely reinforces the conceptual absurdity of the process.
This is not to say Nuremberg was entirely useless. Though it was poisoned by the Soviet efforts to distort history, Nuremberg allowed the documentation of some parts of the Nazi regime and the Shoah. A Tribunal was probably the only mechanism politically acceptable to Western publics for finishing the Second World War by getting the senior Nazis in custody from their jail cells to their appointments with the hangman. And Nuremberg was politically useful in setting up the fiction that Germany’s guilt was concentrated on a few-dozen men, meaning West Germany could be revived. Had a consistent standard been applied, there would have been hundreds of thousands of executions and millions of people imprisoned, disproportionately targeting the German elite that was needed to staff a frontline state as a bulwark against the already-disastrous expansion of Soviet Communism. But this was not justice.
Indeed, by implicitly exculpating everyone not on trial at Nuremberg, the Tribunal’s primary practical impact was to thwart justice: a handful of people were punished, while legions of murderers remained in place as government officials, civil servants, intelligence officers, business leaders, teachers, and doctors for decades afterwards. A corollary of this was an interest, from both the Allied occupiers and the Germans themselves, in burying even the memory of the Holocaust. In some ways Israel was directly responding to Nuremberg’s failure to do justice when it decided to abduct Adolf Eichmann in 1960 and stage an elaborate public trial documenting his crimes, instead of striking him down on the streets of Buenos Aires. Such a dramatic act of moral theatre was needed to remind the world of something Nuremberg had induced them to nearly forget.
The possibility of establishing a permanent International Criminal Court (ICC) had been discussed at the first International Congress of Jurists in Paris a week after the Nazi criminals went to the gallows. This was in the context of the new United Nations and its call for the “progressive development of international law”. The Congress was, in microcosm, a demonstration of the ludicrous contradictions that have plagued the project of creating “international law” ever since. It created a new organisation, the International Association of Democratic Lawyers (IADL), then appointed Aron Trainin—he of the Moscow Trials and the Katyn cover-up—as one of its top officials. Trainin himself, despite leading the efforts to erase the Jewish identity of the Nazis’ victims and present them simply as “Soviet citizens”, soon fell from grace in Stalin’s antisemitic campaign and would have been executed as part of the “Doctor’s Plot” had Stalin not died suddenly in March 1953, but the IADL remained as an instrument of Soviet political warfare. One of the three key resolutions from the Congress was to instantiate genocide as an international crime, a process that ultimately led to the Genocide Convention, which was formulated to ensure it could not be applied to the Soviet terror-famine in Ukraine. The U.N. would soon adopt a definition of “colonialism” that did not apply to areas under Communist rule and “law, not war” in practice came to define threats to “peace” as any Western effort to inhibit the onward march of Soviet global domination. The ICC that came into existence in 2002 was properly the heir to these developments that had started at Nuremberg, the culmination of Ferencz’s life’s work for the Good Intentions Paving Company.
NOTES
Hirsch’s book is all the more devastating about Nuremberg for being entirely unpolemical in intent—she takes it as a given that the IMT and the development of “international law” that flowed from it are positive things. Hirsch concedes that the facts she meticulously details demonstrate “international justice is an inherently political process”, but she also contends that the facts show “an unexpected story about the Soviet contribution to the postwar development of international law” and the Soviets helping “usher in an international movement for human rights”. Though Hirsch cautions readers “not to idealize a mythical Nuremberg Moment”, she nonetheless maintains, “None of this undermines the revolutionary nature of the Nuremberg Trials”, and that the story of the IMT is one of “hope” because East and West “found enough common ground to move forward”, creating “a set of ideals toward which states and their citizens can aspire”.
Supreme Court Justice Robert Jackson made a similar point in his dissent from Korematsu v. United States (1944), the now infamous case that legitimated Japanese internment. Jackson argued that if the government deemed internment a necessary measure as part of a military campaign during a total war, it was better for it to be treated as what it was: an unconstitutional emergency action lasting only so long as the war, and perhaps not even that long since “a succeeding commander may revoke it”. By giving legal cover to anomalous actions taken as part of a most exceptional war effort—in this case “transplanting American citizens” and in Jackson’s view “racial discrimination” (the reality on this latter point is much more complicated)—it makes them into “the doctrine of the Constitution” and transforms them from a one-time exception into a dangerous precedent that can be invoked again.