Reaching Judgment at Nuremberg by Bradley F. Smith
(Deutsch, London, and Basic Books, New York)
No expert in either international jurisprudence or the formal study of modern history, I can perhaps represent the general reader in welcoming Professor Smith’s new book as a substantial contribution to the understanding of the age we live in. Reaching Judgment at Nuremberg could easily have been the sort of book that leaves you wondering whether this is an age worth living in at all. It might have brought the horrors to mind without making sense of them, which would have been depressing. Or it might have made sense of all the horrors without bringing them to mind, which would have been more depressing still. But the author has proved himself equal to this most formidable of tasks. He has uncovered new facts without being tempted into unbalanced opinions. The issues are raised and treated without the innocent dead being further dishonoured. Despite its terrible weight of subject, this is one contemporary historical work which leaves you with the encouraging feeling that the form and pressure of modern political tragedy might somehow be transmitted intact to the generations that will succeed us.
If it now seems evident that genocide was the central issue in the Nuremberg trials, we largely have the Nuremberg trials to thank. It was only during the trials themselves that the industrial scale of the Nazi onslaught on innocent people came to be revealed. During the preparation of their case, and indeed during much of their conduct of it, the prosecution lawyers were seldom able to grasp the significance of what they were faced with. Especially on the part of the Americans and the British, there was a striking inability to imagine what everyday life had been like in Nazi Europe.
Fortunately the tribunal itself was quicker on the uptake. Drawn from all four of the occupying powers, the judges were on the whole able to see the correct import of evidence so overwhelmingly awful that the prosecution scarcely knew how to present it. One of the many services performed by Professor Smith’s book is to show that Nuremberg was not a kangaroo court. Even the Russian and the French judges were able to act with some independence from their governments. It is true that some of the defendants were arbitrarily chosen, true that the indictment was questionably framed, and true again that some of the verdicts were anomalous. But by and large justice was done. The idea that at Nuremberg the victors tried the vanquished is a false one.
The vanquished were the millions of guiltless men, women and children already obliterated. Most of the men on trial were victors who would have remained victorious if something had not been done. Whether or not they deserved death in their turn, they certainly had something coming to them. The Nuremberg tribunal, in making sure that they got it, went some way towards a squaring of the accounts — and in making sure that they were tried by due process achieved something better than mere revenge. Revenge would have been a raindrop echoing an ocean.
The accused were indicted on four counts. Count One concerned a general conspiracy to wage aggressive war. Count Two concerned substantive crimes in furtherance of that end. Count Three concerned war crimes as defined by the Geneva Convention and similar agreements. Count Four concerned Crimes against Humanity. Although it might seem obvious to us that Count Four is the one that matters most, the prosecution focused most of its efforts on Count One. In retrospect this might seem hard to explain. Conspiracy theories have a bad reputation among lawyers and this particular conspiracy theory is no longer popular even among historians, who have done their best to convince us that Hitler’s plan for world conquest was really a sequence of brilliant improvisations. Yet at the time of the Nuremberg trials the climate of opinion dictated that the Nazis should be punished collectively, even if the punishment was only symbolic. As revealed in captured documents, the sheer cynicism with which Hitler had toppled governments shocked the world. Anybody could appreciate that here had been a pack of gangsters on the loose.
Count Four, on the other hand, although it seems of enduring importance to us, was difficult to cope with at the time. Since there were no statutes covering crimes against humanity, law had to be invented ex post facto — always a questionable procedure. But, as has since become clear, separating Count Four from Count Three was a crucial move. Even though the fact was not generally accepted at the time, in the matter of ordinary war crimes the Allies were fully as guilty as the Axis powers. It was the extraordinary crimes which made the Nazis special.
Convinced that Count One was the heart of the case, the prosecution presented its evidence on Count Four so unsystematically that Rudolf Hoess, the Auschwitz commandant, was put on the stand only as a defence witness, in an attempt to exculpate the party hierarchs by showing that the exterminations had been undertaken on local initiative. (The seed of the David Irving thesis was planted thirty years ago.) But the tribunal was wiser than the prosecution. Most of the evidence was in the form of documents, repetitively presented with a doggedness that bored the court stiff. The testimony of witnesses, which might have made the subject vivid both for the bench and for the watching world, was sparingly employed. Nevertheless the judges quickly educated themselves in Nazi realities. In this department as in most others they showed themselves independent of the prosecution. They might not have been the very top men in their profession but they had legal reputations it was in their interest to keep intact. Beyond that, they simply happened to be a group of reasonably decent men. With access to their papers, Professor Smith is able — and obviously glad — to show that their deliberations were rarely cynical, even when circumstances forced them into absurdity.
Most of the absurdity came from the choice of defendants. Each occupying country wanted to include some of its own captives, with the result that the dock held the obscure as well as the notorious. Alfried Krupp would probably have been there if the prosecution had not mixed him up with his mad father Gustav. On the other hand Fritzsche, who had never done much and whom nobody had ever heard of, was there. There was an element of farce. But for the most part the verdicts sorted the defendants out. The small fry were thrown back and the bigger fish were fairly sentenced. Most importantly, they were sentenced as individuals, for substantive crimes. There was not much resort to the conspiracy theory. With the exception of Streicher, men were punished for what they did, and not for what they said they might do.
Granted that hanging was an appropriate punishment, those who were sentenced to it deserved no less. Goering, Ribbentrop, Kaltenbrunner, Rosenberg, Frank, Frick, Sauckel, Jodl, Seyss-Inquart... apart from Rosenberg, a batty ideologist whose books not even the Nazis could get through, they all knew what they had been at. Among those executed, Streicher was the only really doubtful case. An awful man who edited an awful newspaper, Streicher was hanged for his bad character rather than substantive crimes. He was a victim of the conspiracy theory if anybody was. There is no reason to waste grief on him, but we can wish that the judges who hesitated might have hesitated harder. The Russian judges, as always, didn’t hesitate at all. They wanted the death penalty for everybody and saw no objections to ex post facto law. As we now know, Stalin’s post-war purge was already rolling at the time of the trials. But the Nuremberg trials can’t be written off just because the Russians participated in them. If we now have standards for measuring Soviet history, Nuremberg helped to establish them.
Streicher was hanged and Speer got twenty years. Professor Smith is now able to reveal that some of the judges wanted the rope for Speer. Whatever you think of capital punishment, it is difficult not to hope that Speer has been suffering a slight difficulty in breathing after hearing this news. Speer got away with it. When he sent his demands for forced labour down to Sauckel, he knew what the results would be. His air of civilisation saved him from death. If the Nuremberg trials had dealt out divine justice, Streicher would have been released into the care of an animal trainer and Speer would have been punished to the full extent. But as things were, the tribunal was only human. Speer got the benefit of the doubt. The court had the drawbacks of its virtues, the chief virtue being its moderation. In extending due process, humane treatment and mercy to men who would have liked to have driven those things from the face of the earth, the Nuremberg judges did us a favour we will be a long time repaying. This excellent book is part of their reward.
(New Statesman, 1977)