The traditions of the fighting men are long and honorable. They are based on the noblest of human traits—sacrifice. This officer . . . has failed this irrevocable standard; has failed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldierly faith. The transgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain upon civilization and constitute a memory of shame and dishonor that can never be forgotten.20
In his grandiose way, MacArthur was voicing a common sentiment of his time: the trials against the German and Japanese war criminals, as well as their accomplices, were not just about restoring the rule of law, but about restoring “civilization.” This was the language of prosecutors in the Nuremberg and Tokyo trials as well. It was typical of MacArthur to equate civilization with “soldierly faith.” The idea of conducting trials to blot out the “memory of shame and dishonor,” on the other hand, was most important in countries humiliated by foreign occupation. Perhaps MacArthur was thinking of the Philippines. But that memory was like a shadow everywhere hanging over trials of national leaders who had collaborated with the occupiers, even when they had done so for what were in their own minds honorable reasons.
One thing Pierre Laval, the highest-ranking minister in two Vichy governments, and Anton Mussert, “the Leader” of the Dutch National Socialist Movement (NSB), had in common was that they saw themselves as honorable men, patriots who had done everything in their power to serve the interests of their countries. They faced their executioners, after being swiftly tried for treason in the fall and winter of 1945, convinced that they were dying as martyrs and would one day be not only vindicated but recognized as saviors. The other thing they had in common was that they died as the most hated men in their respective nations. There were worse, more brutal people. Neither Laval nor Mussert had a taste for violence. On the contrary, Laval had been a left-wing pacifist during World War I and never lost his personal loathing for military action, even, some would argue, in defense of his nation. He was a born appeaser, confident that he could outwit even the devil in negotiations. As he told his lawyer: “To collaborate to me meant to negotiate.”21 Both men, in fact, had stood up to the Germans on occasion to defend the interests of some of their compatriots, usually without much success. And yet they were almost universally loathed. Which is why the outcome of their trials had to be a foregone conclusion.
Laval and Mussert, like Yamashita Tomoyuki, were physically unprepossessing, which can’t have helped. Mussert was a pudgy, round-faced little man so utterly unsuited to the black uniforms and leather coats of his fascist party that he always managed to look ridiculous. Laval, never a booted and uniformed rabble-rouser, but a professional politician in striped trousers and a habitual white necktie, had the air of a disreputable merchant of questionable goods: short, dark, greasy-haired, with hooded eyes and a perpetual cigarette staining his crooked teeth and bushy moustache. Mussert started his professional life as an engineer (he designed autobahns, among other things), and Laval as a lawyer. Laval was by far the more successful politician. He led the French government twice before the war and in 1931 was Time magazine’s Man of the Year—“calm, magisterial and popular”—for shepherding France through the Great Depression.22 Mussert was already somewhat of a figure of fun to most Dutch people at the end of the 1930s; strutting around in black shirts was not the Dutch style.
Neither man wished for a German invasion of his country; they were nationalists, after all. In Laval’s Man of the Year profile, Time magazine actually praised him for being tough on Germany. He made a short-lived pact, in 1935, with Britain and Italy, to stop German rearmament. Anything to avoid another war. Yet, when it happened, both Mussert and Laval saw German occupation as an opportunity, as though their finest hour had finally come. Mussert had visions of a new Europe, dominated by “Germanic peoples,” led by Hitler, to be sure, but with an autonomous National Socialist Netherlands under the leadership of Mussert himself. Fascist idealism held no attraction for Laval. But after having spent the last years of the 1930s in the political wilderness, he saw a role for himself as France’s savior in difficult times. With the old Marshal Pétain as the patriarchal figurehead, Laval would negotiate the best terms he could for France. More than that: he, too, saw possibilities in the new Europe, with France as Germany’s chief ally in purging the continent of that twin modern scourge: Anglo-Jewish capital and Russian bolshevism. As he said in a radio speech in 1942, in words that would come back to haunt him three years later: “I desire the victory of Germany, for without it, bolshevism would tomorrow install itself everywhere.”23
Before the war, neither Mussert nor Laval had shown any evidence of a personal animosity towards Jews. Mussert had few close friends, but one of the few happened to be Jewish, and in the 1930s he encouraged Jews to become members of his movement. There were “good Jews,” in his thinking, and “bad Jews.” The bad ones were Jews who refused to join him, or criticized the Dutch National Socialist Movement (NSB), and were thus “un-Dutch.” Unfortunately, Mussert’s German comrades had more rigorous views on the matter, which was one of several issues of contention between him and the German SS. In 1940, he was obliged to expel the few remaining Jewish members from the NSB. For this, Mussert claimed deep regret. How deep is not clear, since he did develop a detailed plan in 1938 to move European Jews to Dutch, French, and British Guiana, a scheme that failed to interest either Himmler or Hitler. (What the British and French thought is unrecorded.) And Mussert had no scruples about enriching himself, as well as his friends and relatives, from robbed Jewish properties.24
Laval never shared the strong anti-Semitism of the French far right. He, too, had Jewish friends and worked closely with Jewish colleagues. Yet he was minister of state in 1940 when, unprompted by the Germans, the Vichy French statut des juifs (statute on Jews) deprived Jews of their civil rights. He later tried to save French-born Jews from deportation, but only at the price of delivering tens of thousands of foreign-born Jews into the maw of the Third Reich. This included naturalized French citizens who were deprived of their citizenship during the war.
By setting themselves up as saviors through collaboration, vainglorious figures like Mussert and Laval walked straight into a trap the Germans had laid for them, Mussert from a mixture of ideological delusion and vanity, and Laval from being morally obtuse and putting too much stock in his own cleverness. Neither of them realized that his nationalist illusions—France and the Netherlands as significant partners in the new Europe—hardly fit German plans for total domination. These patriotic quislings were useful to the Germans, as long as they took the heat for unpopular, indeed criminal, German enterprises. Bit by bit, they gave in, sometimes grudgingly, sometimes carelessly. Mussert incorporated his storm troopers into the German SS and swore an oath of loyalty to Hitler, who was, in Mussert’s cloudy imagination, the Führer not just of Germany but of all the “Germanic peoples.” Laval collaborated not only by handing over French workers to German industry in exchange for some French POWs, but also by establishing a militia against French partisans and sending large numbers of Jews to their deaths. It was Laval, not the Germans, who insisted that Jewish children should be deported to Poland with the adults in July 1942, ostensibly to keep families together.
As a result of their behavior, both men were despised and distrusted by the Germans as “bourgeois nationalists” and detested by their own countrymen as the embodiments of everything that was sordid and shameful about the occupation. They were hated even by the most ardently pro-German Nazis in their own countries, the kind of people who enthusiastically worked for Hitler’s Reich. Since Mussert and Laval had so few people on their side, after Liberation they were the perfect candidates for trials and punishment. Making examples of the two most conspicuous faces of collaboration made millions who had not shown conspicuous courage themselves feel better.
Pétain was tried and sentenced to death as well, but age and distinction saved him. His trial was never part of de Gaulle’s plans. The general would have much preferred for the old man to have stayed in Swiss exile. Pétain had requested the trial himself. If this proved to be an embarrassment, the French certainly could not bring themselves to shoot the hero of Verdun. So he was banished instead. Laval, in a sense, took his place as an object of blame. In the words of a popular French ditty of the time: “Pétain, to sleep / Laval to the stake / de Gaulle to work.” Time magazine, the very same journal that had praised Laval so effusively more than a decade before, wrote:
Last week Pierre Laval came to judgment. With him came none of the dreadful pity, the sense of terrible duty that had been in every Frenchman’s heart during the trial, sentence and commutation to life imprisonment of old Marshal Pétain. The elimination of Pierre Laval, a necessary chore, might have been a satisfying vengeance. He made it a shameful farce.25
This was a trifle unfair. The trial was a farce, to be sure, but Laval was not the main culprit. De Gaulle did not like the business of purges and trials, but had to get to work, as the ditty demanded, and wanted this one to be over with as quickly as possible. A referendum on the postwar constitution was scheduled for October 21, so Laval’s verdict had to be in by then. Laval sat in his prison cell, smoking five packets of American cigarettes a day, fuming because he was denied access to the documents he had carefully accumulated for his defense. A note retrieved from his suitcase when he was flown back to France from his temporary refuge in Germany revealed his bitter state of mind: “It is a strange paradox. Here I am, obliged to justify myself before a court for policies and conduct which should have earned me the recognition of my country. Both before the war, and during those unhappy years of occupation, I know I fulfilled my duty.”26
Mussert, always prone to delusions, had found a new fantasy in his prison cell on the Dutch North Sea coast: he had designed a giant submarine vessel. Since, in his view, the Americans would surely wish to make full use of his invention, he was expecting to be sent to the United States. The last weeks of his life were spent learning English, another venture that ended in failure.
One of the blemishes on Laval’s trial, which Laval himself was not slow to point out, was the fact that his judges and prosecutor had served the same Vichy regime that he did, and pledged their allegiance to Pétain as well. The attorney general, André Mornet, had even sat on a committee to denaturalize Jews. The jury was made up of members of parliament and of the resistance.
Jacques Charpentier, head of the Paris bar, sensing the ritual air of a fight to the death in a Spanish corrida, recalled: “Like Andalusian urchins who leap into the arena, members of the jury insulted the accused and intervened in the proceedings. The court judged [Laval] without giving him a hearing . . . Just as they revitalized Robespierre to drag him to the scaffold, Laval’s corpse was revived so they could throw a still living traitor to the lions of the people.”27
The dramatic high point of the trial was Laval’s protest against the bias of the judges: “You can condemn me!” he shouted, banging the table with his briefcase engraved with his presidential title: “You can do away with me; but you do not have the right to vilify me!” Whereupon one of the jurors shouted: “Shut up, traitor!” Laval screamed in fury that he was a Frenchman who loved his country. And the jurors shouted back that he was a “bastard” (salaud) who “deserved twelve bullets” from the firing squad.28 Laval concluded that he would prefer to remain silent rather than be an “accomplice” in a “judicial crime.” When a juror shouted, “He’ll never change!” Laval replied with as much truth and conviction: “No, and I never will.”29
The trial in the Royal Palace in The Hague against Mussert was more dignified, but the result there too was never in doubt. The prosecutor, J. Zaaijer, observed in his opening statement that “even without a trial, we already know what sentence Mussert deserves,” which was a rather odd way to begin a legal proceeding. Mussert’s able defender, Wijckerheld Bisdom, later recalled that in those early postwar days there was a consensus of opinion that the “worst National Socialists—and first of all Mussert, who was seen as the essence of the Dutch National Socialism—could not get away with anything less than a death sentence.”30 The trials were driven by public sentiment; the law was responding to the street.
Mussert defended himself in a rousing speech against the charge of treason. Waving his arms, as though still addressing a party rally, he claimed that his aim had never been to deliver his country to alien rule. On the contrary, his ideal had always been to form a Dutch government to secure Dutch interests when a victorious Germany would change the order in Europe. Aiding the German cause, he explained, had been essential “to keep Asia from Europe’s door.” Overcome with the fire of his own rhetoric, Mussert forgot himself and addressed the court as “my loyal followers,” a phrase that provoked a ripple of laughter in what were otherwise pretty grim proceedings.31
The former Dutch leader’s execution, too, was a more sober occasion than the end of Laval. He was taken into the dunes outside The Hague, where the Germans had shot many Dutch partisans before, and tied to a simple stake. When a Protestant minister bade him farewell, Mussert apologized for the fact that he was no longer able to shake his hand. Twelve men aimed their rifles and Mussert was dead.
Laval fretted for a long time that he would be disfigured by a shot in the face. His lawyers reassured him that executions were done quite neatly these days. He then botched a suicide attempt by swallowing an old cyanide capsule that was no longer strong enough to kill him quickly. Nursed back to life, but still limping, Laval was taken to a site near the prison walls, dressed in a dark suit with his customary white tie and a scarf in the French red, white, and blue. He insisted that his lawyers remain in eyesight, as he “would like to see you while I die.” His last words were “Vive la France!” The shots rang out and he slumped to the right. A sergeant then did what Laval had most dreaded and shot him again, just to make sure, making a mess of his face. A young journalist who was there described the scene: “People ran towards the stake and picked up fragments of the wood. The most valued splinters were soaked in blood.”32
To call Mussert or Laval scapegoats would not be quite right. There is no doubt that they were guilty of giving aid to the enemy. They had chosen to cooperate with the Nazi occupation. And their trials served the purpose for which they were mainly intended, in Mussert’s case to avoid the type of “wild” vengeance that had claimed so many lives in France. His swift—all too swift—trial also served as a justification for the Dutch authorities to let go of many lesser figures who were flooding already overcrowded jails and prison camps. The violent deaths of Mussert and Laval were shows of justice; they demonstrated that the postwar governments were doing their work. Laval’s fatal end, like Mussert’s, was a way to wind down retribution and start rebuilding his country.
But if these trials fulfilled one of Athena’s aims in the Eumenides, by slaking the thirst for revenge, the speed of the trials, their foregone conclusions, and especially in Laval’s case, the highly flawed procedures made the cause of due legal process rather dubious. In the perhaps overdramatic conclusion of one observer, “Laval’s trial is unpardonable because it made the French doubt the reality of French justice . . . Now the harm is done. French justice is discredited. Laval had won the last round and completed the demoralization of the country.”33
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SOME ARGUED IN 1945 that the cause of law would have been better served by dispensing with legal niceties altogether and simply shooting the main culprits out of hand. George F. Kennan, who was actively involved in European policy as a U.S. diplomat, noted his distaste for war crime trials in his memoirs. In the case of the Nazi leaders, he said, their crimes had been so awful that there was nothing to be gained in keeping them alive. He wrote: “I personally considered that it would have been best if the Allied commanders had had standing instructions that if any of these men fell into the hands of Allied forces they should, once their identity had been established beyond doubt, be executed forthwith.”34
These views were shared by others. U.S. Secretary of State Cordell Hull, for example, told his British and Soviet colleagues that he would ideally “take Hitler and Mussolini and Tojo and their arch accomplices and bring them before a drumhead court-martial. And at sunrise the following day there would occur a historic incident.”35 Hull, incidentally, was the winner of the Nobel Peace Prize in 1945. The British Foreign Office circulated a memorandum during the war voicing its opposition to postwar trials against such figures as Heinrich Himmler, leader of the SS, because their “guilt was so black” that it was “beyond the scope of any judicial process.”36 Churchill, too, took the view that it would be best “to line them up and shoot them.” This sounds a little harsh, but trying men, especially in the company of Soviet judges whose own hands were far from clean, knowing that there could be only one outcome, might do more harm than good to the rule of law. The Soviets, who insisted on trials even as Churchill was still resisting the idea, startled the Allied judges by proposing a toast to the execution of the German leaders before the trials in Nuremberg had even begun.
In a curious way, Germans in 1945 might have been more impressed by executions too. Visiting Hamburg, the English poet Stephen Spender was told that most Germans regarded the trial against the men and women responsible for the atrocities at Bergen-Belsen as mere propaganda: “These Germans said that if the accused were really guilty, and if we knew they were, why didn’t we dispose of the whole matter quickly and condemn them?”37
By speaking of the extreme nature of Himmler’s guilt, the Foreign Office memo was on to one serious problem: were the laws as they stood at the time really equipped to deal with crimes which went a long way beyond conventional war crimes? People may not yet have been aware of the full scale and nature of the Nazi attempt to exterminate an entire people on ideological grounds. The word “Holocaust” was not yet in use. But the Allies had seen enough to know that they were dealing with something previously unheard of. The legal implications were already clear before Nuremberg.
Only Soviet troops had actually seen what remained of the Nazi death camps in Poland. But Western Allies were profoundly shaken by what they found in concentration camps, such as Dachau, Buchenwald, and Bergen-Belsen. General Eisenhower visited a subsidiary camp to Buchenwald called Ohrdruf on April 12, 1945. The SS had only just vacated this camp near Weimar. They had not had enough time to burn all the corpses which lay around like smashed dolls amidst the prisoners who were too weak to get up. The reporter for Yank wrote: “The cold had preserved their bodies and deadened the stench so that you could walk around them and inspect them at fairly close range.” The same reporter, Sergeant Saul Levitt, noted that “Blood had caked the ground around the bodies into pancakes of red mud.”38
Eisenhower wrote to his wife, Mamie: “I never dreamed that such cruelty, bestiality, and savagery could really exist in this world.” He wanted American soldiers to see it, so they would be in no doubt why they were fighting this war. He wanted reporters to visit the camps so that no one could ever pretend that these horrendous crimes were figments of propaganda. American senators and congressmen, as well as British members of Parliament, were asked to tour the camps. The reason why Eisenhower wanted everything to be recorded—the piles of rotting corpses, the crematoria and torture rooms—is that this was something “beyond the American mind to comprehend.”39 Churchill received a message from Eisenhower saying that “the discoveries, particularly at Weimar, far surpassed anything previously exposed.”40
Not only were local German citizens forced to walk through the camps, pinching their noses behind handkerchiefs, averting their gaze, vomiting around the pits filled with blackened corpses, but people in Allied cities too were meant to see what the Germans had done. This was not always welcome. In London, moviegoers “unable to stomach atrocity newsreels” tried to walk out of the Leicester Square Theatre, only to be blocked at the door by British soldiers. The Daily Mirror reported that “people walked out of cinemas all over the country, and in many places there were soldiers to tell them to go back and face it.” One soldier was quoted as saying: “Many people don’t believe such things could be. These films are proof. It is everybody’s duty to know.”41
Or, as the Times of London put it: “That the civilized world should part with the last pretext for persisting in a skeptical and therefore indifferent response to such atrocities is of paramount importance for civilization itself.”42 This idea, very much espoused by Eisenhower, that knowledge of the human capacity for evil would make the rest of us behave better, that to learn about the worst would be a civilizing process, was one of the chief motives for the ensuing war crime trials.
That the horrors of Ohrdruf still paled in comparison to the death factories in Poland was not yet fully acknowledged, which is why some contemporary reports referred to the German concentration camps as “death camps.” That most of the victims in many of these camps were Jews was also a point that was rarely stressed in news reports of the time. But Eisenhower wanted the world to know, for the sake of civilization, and one of the ways to record what had happened, and to give the people of Germany, as well as everywhere else, a moral education, was to broaden the scope of war crime trials. On June 2, Eisenhower asked the Combined Chiefs of Staff to prosecute the people who had been responsible for these atrocities.
The first concentration camp trial actually took place in Bergen-Belsen under British, not American, jurisdiction. This dress rehearsal, as it were, of the Nuremberg Trials of 1945–46, showed how difficult it would be to apply existing laws and legal procedures to the Nazi crimes. Several of the defendants, including the vile Belsen commandant Josef Kramer and the camp doctor Fritz Klein, had worked at Auschwitz-Birkenau as well. It was decided that they should also be tried for what they had done there, so their active roles in mass extermination were yoked to their criminal neglect in an insanely overcrowded concentration camp where thousands of starving people were left to die of typhus and other diseases. Newspaper headlines, even in the august pages of the Times, shouted daily about “Scenes Worthy of Dante”; “Witness from Gas Chamber”; “Millions Done to Death”; “Girls Hanged”; “Story of Girl Beaten to Death.” Kramer (“the Monster of Belsen”) and the twenty-two-year-old blond female guard, Irma Grese (“the beautiful beast” or “the hyena from Auschwitz”), became household names from a Nazi chamber of horrors. Whether this really helped people understand the Nazi crimes is doubtful. Being shocked by the depravity of individual “beasts” and “monsters” was, in a way, to miss the point of the criminal system that made their deeds seem almost normal. The much criticized report by Hannah Arendt on the Eichmann trial in Jerusalem in 1961 was clearer on this matter. When mass murder on ideological grounds becomes government policy, everyone, all the way down from the Reichsführer SS to the petty bureaucrat in charge of railway schedules, is complicit. The beasts just got their hands dirtier than most.
The Belsen trial, like so many others, had to be completed as quickly as possible; the outraged public demanded no less. But the British took pride in staging a proper and fair trial, with none of the antics that discredited the proceedings against Laval. The problem was with the law itself. A British Military Court, such as the one operating in the showy nineteenth-century school building in Lüneburg, could prosecute only war crimes, defined as “violations of the law and usages of war.”43
After lengthy legalistic wrangling between the lawyers about the right of the court to try the defendants in the first place, several witnesses gave shocking accounts of what they had seen. Sophia Litwinska, from Lublin, had survived Auschwitz as well as Belsen. She described how on Christmas Eve, 1941, women were stripped of their rags, chased from their barracks, and made to stand naked in the freezing cold until 5 A.M. on Christmas Day, when they were dumped in front of the gas chamber from a tip-up truck.
Dr. Hadassah Bimko, from Sosnowiec, who later married Josef Rosensaft, the Zionist organizer, took the stand on September 21, under a bank of 3,000-watt lamps. She had lost her parents, brother, husband, and six-year-old son in Auschwitz. As a medical orderly she had had a close view of what went on there: the selections, in which both Kramer and Dr. Klein had taken part; the medical experiments; and the gas chambers, where Jewish prisoners in the Sonderkommando (the death camp work unit) were made to do the most terrible work: cutting the hair, removing the dead bodies, operating the crematorium. Those selected for the gas chambers, she told the court in words reported by the Times, “were taken away naked and waited several days without food or drink till trucks arrived to take them to the crematorium.” After choking to death in the gas chamber, she continued, “the dead were removed on trolleys which ran on rails out of a room at the opposite side from the changing room. Every so often members of the Sonderkommando were killed and their places taken by others. However, it was generally possible to preserve some sort of record.” From this, she related, friends of hers in the camp calculated that four million Jews had been destroyed.44
Dr. Bimko’s friends overestimated the numbers, but the bare facts of the Jewish genocide had been laid before the British Military Court. Counsel for the defense tried to probe the witnesses for inconsistencies and memory lapses. Kramer’s lawyer, Major Winwood, perhaps pandering to prejudices which were still far from rare, described the inmates of Belsen as “the dregs of the ghettoes of central Europe,” a remark for which he later apologized by claiming that he had “acted only as the mouthpiece of the accused.”45 But few people could have been left in any doubt that the atrocities described had taken place. This was, however, a military court, and some of the lawyers could think only in military terms. Major Winwood compared his client to a “Battalion Commander in whose area is a prison, the orders for which come from Battalion Headquarters.” SS Hauptsturmführer Kramer was a simple soldier who had followed orders. There was no evidence of any “deliberate attempt” to “ill-treat the internees.”46
Colonel Herbert A. Smith, professor of international law at London University, was brought in by the defense to argue that no war crimes had been committed. What happened in the camps had had “nothing to do with the war,” and were not considered to be crimes at all at the place and time they were committed. After all, he said, Himmler had been chief of police and was entitled to give orders which “as such had the force of law.”47
None of these arguments saved Kramer or Grese or Dr. Klein from the gallows. But two things, at least, could be concluded from the Belsen trial. People may not yet have fully grasped the difference between death camps and concentration camps, or known how much killing had already been done in eastern Europe before the gas chambers even got going. But that the Nazi murder machine was systematic should have been known to anyone who read a newspaper in 1945. This is what made remarks about deliberate “ill-treatment” so obtuse. In his pedantic way, Professor Smith had made another thing clear: existing laws and conventions on war crimes were no longer adequate to deal with the nature and scale of what the Nazis had done. This set the stage for the biggest war crimes trial of all, which began in Nuremberg on November 20, four days after the “beasts” of Belsen received their death sentences.
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ONE THING TO BE SAID about the twenty-one defendants at Nuremberg is that they did not look like beasts. Observers remarked how utterly ordinary they appeared, these pale, tired figures in their ragged suits: Joachim von Ribbentrop, chin raised and eyes shut in a show of wounded dignity; Hermann Goering slumped in his chair, using his handkerchief to wipe spittle from his smirking lips; Hans Frank hiding his eyes behind dark glasses; Fritz Sauckel, the slave labor chief, looking like a timid concierge; Hjalmar Schacht turning away from the others as though in fear of contamination; and Julius Streicher twitching and fidgeting. Rudolf Hess, rocking back and forth, his eyes staring madly under his thick eyebrows, did look rather strange, but he was quite possibly demented.
There was only one man in the Nuremberg Palace of Justice, apart from some of the witnesses, who had felt the full force of what these men had engineered. Few would have known his name, or even noticed his presence among the hundreds of lawyers, translators, court clerks, judges, military policemen, and journalists. Ernst Michel was a junior reporter for a German press agency. Next to his byline it said 104995, his number as a prisoner at Auschwitz. Michel was still a schoolboy when he was arrested in his hometown of Mannheim, Germany, in 1939 simply for being a Jew.
Just before the Soviet troops arrived at the Auschwitz camp, Michel was forced to go on a deadly march across the icy borderlands of Poland and Germany to Buchenwald. When the U.S. Army approached Buchenwald, he was marched off again, weighing eighty pounds. Somehow, he found the strength to make a dash for the woods, and survived for some time in the Soviet zone, covering his concentration camp garb for fear that people might find out that he was a Jew. Back in Mannheim at long last, he discovered that his parents had been murdered. All his relatives had disappeared as well. Since he had some high school English, he was given a job by American war crime investigators as an interpreter. He told me in New York City, “Germans always said they had helped the Jews. The hell they had! I even knew one of the people who said this, and he was a real Nazi.”
Michel’s next job was as a reporter at the Nuremberg trial. Anxious about his lack of professional qualifications, he was told just to write down what he saw. So there he was, six months after escaping a death march from Buchenwald, Auschwitz prisoner no. 104995, in the same room as Goering. He recalled in New York, more than six decades later: “I knew all their faces. And I was a free man, the only survivor to attend the trial. They were talking about me.”
This is what Ernst Michel wrote in his first dispatch for the German news agency, the Deutsche Allgemeine Nachrichtenagentur:
Often in those difficult hours in the camp I had been sustained by the faith that there would be a day when those responsible for this regime would be called before the bar. This faith gave me strength to keep going. Today this day is here. Today, only a few feet away from me, are the men who for all prisoners in the camps were symbols of destruction and who are now being tried for their deeds.48
No matter how flawed the Allied war crimes tribunals may have been—and flawed they certainly were, in Tokyo even more than in Nuremberg—Michel’s statement could serve as an argument why they were just nonetheless. The other thing to be said in Nuremberg’s favor is that the trial was, for the most part, extraordinarily boring. Rebecca West, who was there for the last few weeks before the verdicts, described the Palace of Justice as “a citadel of boredom.” Everybody, she wrote, “within its walk was in the grip of extreme tedium . . . this was boredom on a huge historic scale. A machine was running down, a great machine, by which mankind, in spite of its infirmity of purpose and its frequent desire for death, has defended its life.”49
At least, in Nuremberg, the law was taken seriously. This was not a quick trial driven by popular rage. Everything had to take its course, and so it went on, and on, and on, turning boredom into a sign of probity. Later trials, at the International Criminal Court in The Hague, would be molded in Nuremberg’s image, in this respect above all. Tedium spiked the guns of vengeance. That was the whole point. Already in 1942, the Inter-Allied Commission on the Punishment of War Crimes was established by nine governments-in-exile in London. The Declaration of St. James’s, named after the palace where they met, was written with the danger in mind of “acts of vengeance on the part of the general public.” Which was why “the sense of justice of the civilized world” demanded that the free governments “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes.”50
Awareness of the Nazi genocide of the Jews may still have been low at the time of the Nuremberg trials. But it was certainly not absent. In December 1942, just months after the gas chambers in the death camps began their operations, the German government was accused by the U.S. and European Allies of “a bestial policy of extermination of the Jewish people in Europe.” That this didn’t yet resonate fully with the public had the following reasons: what was happening was still unimaginable, and neither the U.S. nor British governments saw fit to give it much publicity; they did not want people to think that the war was fought to save the Jews.51
Although the Soviet Union had not joined the Western Allies in their condemnation of the Jewish genocide in 1942, and long after the war still chose to speak of victims of fascism without specific reference to the Jews, the Soviet prosecutors did mention it during the Nuremberg trials. General Roman A. Rudenko, one of five chief prosecutors at Nuremberg, had carried out bloody show trials himself, and was not above spreading mendacious propaganda at Nuremberg, such as blaming the Germans for murdering more than twenty thousand Polish officers in the woods of Katyn in 1940, knowing full well that the massacre had, in fact, been perpetrated by the Soviet secret police. But about the nature of the Jewish genocide, he left no doubt. Ernst Michel quoted Rudenko’s speech in one of his dispatches: “The fascist conspirators planned the extermination to the last man of the Jewish population of the world and carried out the extermination throughout the whole of their activity from 1933 onwards. The bestial destruction of the Jewish people took place in Ukraine, Belarus and the Baltic states.”52
This was in fact a slight exaggeration; the extermination began in 1941, not 1933. Rudenko probably used the earlier date to stress the notion of a Nazi conspiracy, not just to kill the Jews, but to wage an aggressive war against the Soviet Union.
Since existing war crime laws, as already noted in the Belsen trial, applied only to acts of war, new ones had to be devised to cover the Third Reich before 1939, and for the systematic extermination of a people. That laws against killing Jews, or other innocent civilians, had not existed in Nazi Germany could not be allowed as an excuse. Nor were superior orders accepted as a valid reason for taking part in mass murder. The new legal category, “crimes against humanity,” laid down in the London Charter of the International Military Tribunal of August 1945, broadened the concept of war crimes. Another legal novelty was “crimes against peace,” meaning the planning and execution of an aggressive war. The planning preceded the actual warfare. This is where the idea of conspiracy came in. In Anglo-American law, people can be found guilty of conspiring to commit crimes. This law was applied to the Nazis (and later, on far more dubious grounds, to the Japanese military and government as well).
Sentencing people for breaking laws that were made after the crimes were actually committed is legally questionable. Submitting defendants from a defeated nation to the judgment of the victors is also vulnerable to criticism. Conducting the Tokyo Trials in 1946, as though wartime Japan had been the Asian mirror image of Nazi Germany, led to great distortions as well. Ernst Jünger, the right-wing nationalist writer, saw a great moral danger in making scoundrels into the victims of injustice. He described the Nuremberg court as one “consisting of murderers and puritans, their butcher’s knives held by moral handles.”53
But then Jünger, as an unreconstructed German nationalist whose contempt for the Americans more than matched his hatred of Soviet bolshevism, would say that. On balance, it was better to have held the trials, even if presided over by bloodstained or puritanical judges, than to have done what Churchill, Hull, and Kennan had suggested. Summary executions would have put the Allied victors on the same moral plane as the vanquished Nazis. Even though most Germans recognized the merits of the Nuremberg trials only later, when the bitterness of defeat had subsided and life was more secure, the trials provided a model for Germans to try Nazi war criminals themselves. That the Japanese didn’t follow suit had many reasons: victors’ justice was more blatant in Tokyo, more mistakes were made, the war itself was not perceived in the same manner, and there was no Nazi regime, no Holocaust, no Hitler.
So was justice done? Were the purges and trials enough to ensure that justice was seen to be done? The answer has to be no; too many criminals walked free, some to have flourishing careers, while others with far less guilt were punished as scapegoats. But total justice, even in the most favorable circumstances, is a utopian ideal. It would have been impossible to carry out, for both practical and political reasons. You cannot try millions of people. Punishment of the guilty had to be balanced by other interests. Too much zeal would have made the rebuilding of societies impossible. Too little effort to call the worst criminals to account would undermine any sense of decency. It was a delicate calibration that would inevitably be flawed. To grow up in Germany after the war, with ex-Nazis as teachers, doctors, university professors, diplomats, industrialists, and politicians, must have been galling. And not just in Germany or Japan. In many countries that had suffered German occupation, the old elites who came to terms with the Third Reich rarely fell very far from their high perches after the Nazis had left.
But perhaps the opportunism of man is sometimes his most useful quality. In June 1945, the former resistance fighter in Berlin, Ruth Andreas-Friedrich, discussed this very matter with a close friend, another brave resister. Her friend, Frank, said:
The Führer is dead. If you want to live you must eat. If you want to eat, and eat well, you’d better not be a Nazi. So they aren’t Nazis. Therefore they weren’t Nazis and they swear by all that’s holy that they’ve never been . . . Denouncing and condemning don’t help in the perfection of men. Help them get up when they’ve fallen. Give them a chance to atone for their sins. And then no more reprisals. Once and for all.54
That these words came from a man who had risked his life to resist the Nazis gives them moral weight. The same opportunism that made the banker accommodate himself to a murderous regime, financing companies that exploited slaves and set up factories near the death camps, could make him a loyal citizen of the postwar German democracy and an agent of its reconstruction. This may be unjust, even morally repellent. And Germany, as well as Japan, and even Italy, eventually paid a price. All three nations were plagued in the 1970s by revolutionary extremists whose acts of violence were inspired by a zealous conviction that their countries had never changed, that fascism was still alive in a different guise, carried on by some of the same people who had waged war in the 1940s. They believed it was their duty to resist, precisely because their parents had once failed to do so.
Robert H. Jackson, another of the chief prosecutors at Nuremberg (and a justice of the Supreme Court of the United States), was far from a revolutionary extremist. But he was convinced that the trial was more than an exercise in establishing guilt and punishing the guilty. He believed that he was speaking for civilization. The world would be a better place after Nuremberg. In his opening statement, he proudly claimed: “That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to reason.” But it was of the future that he was thinking when he added: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”55
Jackson was an idealist. The trials were part of an effort to build a better world, where the horrors of the past would never be repeated. After the trial was finally over, Jackson, accompanied by the British barrister Peter Calvocoressi, took a trip to Salzburg to attend the first music festival held there since 1939. They heard Der Rosenkavalier, and were particularly impressed by a young German singer named Elisabeth Schwarzkopf, who sang beautifully.
The great soprano actually had a small cloud hovering over her head; she had been a member of the Nazi Party since 1940, had performed recitals for SS officers on the eastern front, and had been romantically linked to an SS general and Nazi governor of Lower Austria. Perhaps she had done all these things out of conviction. Perhaps she was an opportunist. But her reputation soon recovered after the war. The person who was most responsible for this revival was the man she married in 1953, the British music impresario Walter Legge, a Jew.