A Train of Powder (3 page)

Those who loved the trial for the law’s sake also found the course of their love running not too smoothly. This was not because they were uncomfortably impressed by the arguments brought forward by the declared opponents of the Nuremberg prosecutions. None of these was really effective when set against the wholeness of the historical crisis which had provoked it. It was absurd to say that the defendants were being tried for
ex post facto
crimes when the Briand-Kellogg Pact of 1928 had made aggressive warfare a crime by renouncing the use of war as an instrument of policy; and it was notable that even those opponents who had a special insight into that pact because they had helped to frame it were unable to meet this point, save by pleading that it had not been designed to be used as a basis for the prosecution of war criminals. But that plea was invalid, for in 1928 the necessary conditions for such prosecutions did not exist. There was then no country that seemed likely to wage war which was not democratic in its government, since the only totalitarian powers in Europe, the Soviet Union and Italy, were still weak. It would not be logical to try the leaders of a democracy for their governmental crimes, since they had been elected by the people, who thereby took the responsibility for all their actions. If a democracy breaks the Briand-Kellogg Pact, it must pay by taxation and penalties that fall on the whole people. But the leaders of a totalitarian state seize political power and continually declare that they, and not the people, are responsible for all governmental acts, and if these be crimes according to international law, their claim to responsibility must make them subject to trial before what tribunal international law decrees. This argument is so much in accordance with reality that, in the courtroom itself, it was never doubted. All the defendants, with one exception, seemed to think that the Allies were right in indicting not the German people, but the officers and instruments of the Nazi Government, for conspiring together to commit crimes against peace and the rules of war and humanity; and in most cases their line of defence was that not they, but Hitler or some other members of the party, had taken the actual decisions which led to these crimes. This line of defence, by its references to Hitler alone, concedes the basis of the Nuremberg trials. The one dissenter who would not make this concession was Schacht, who behaved as if there had been a democratic state superimposed on the Nazi state, and that this had been the scene of his activities.

There was obviously more in the other argument used by the opponents of the trial: that even if it were right to persecute the Nazi leaders on charges of conspiracy to commit crimes against peace and the rules of war and humanity, it could not be right to have a Soviet judge on the bench, since the Soviet Union had convicted itself of these crimes by its public rape of Finland and Poland and the Baltic Provinces. Truly there was here often occasion for shame. The English judges sat without their wigs, in plain gowns like their American colleagues, as a sign that this was a tribunal above all local tribunals. The Russian judges sat in military uniform as a sign that this was no tribunal at all, and when Vishinsky visited Nuremberg in the early months of the trial, he attended a banquet at which the judges were present, and proposed a toast to the conviction of the accused, a cantrip which would have led to the quashing of the trial in any civilized country.

This incident appeared to recommend the obvious idealistic prescription of trying the Nazi leaders before a tribunal which should exclude all representatives of the belligerent powers and find all its judges in the neutral countries. But that prescription loses its appeal when it is considered with what a laggard step would, say, the Swedish judge have gone home from Nuremberg, after having concurred in a verdict displeasing to the Soviet Union. But that there had to be a trial cannot be doubted. It was not only that common sense could predict that if the Nazis were allowed to go free the Germans would not have believed in the genuineness of the Allies’ expressed disapproval of them, and that the good Germans would have been cast down in spirit, while the bad Germans would have wondered how long they need wait for the fun and jobbery to start again. It was that, there in Germany, there was a call for punishment. This is something that no one who was not there in 1946 will ever know, and perhaps one had to be at Nuremberg to learn it fully. It was written on the tired, temporizing faces and the bodies, nearly dead with the desire for life, of the defendants in the dock. It was written also on the crowds that waited for the streetcars and never looked at the Allied personnel as they drove past, and it was written on Nuremberg itself, in many places: on the spot just within the walls of the old town, outside the shattered Museum of Gothic Art, where a vast stone head of Jehovah lay on the pavement. Instead of scrutinizing the faces of men, He stared up at the clouds, as if to ask what He himself could be about; and the voices of the German children, bathing in the chlorinated river that wound through the faintly stinking rubble, seemed to reproach Him, because they sounded the same as if they had been bathing in a clear river running between meadows. There was a strange pattern printed on this terrain; and somehow its meaning was that the people responsible for the concentration camps and the deportations and the attendant evocation of evil must be tried for their offences.

It might seem possible that Britain and America might have limited their trials to the criminals they had found in the parts of Germany and Austria which they had conquered, and thus avoided the embarrassment of Soviet judges on the bench. But had they done so the Soviet Union would have represented them to its own people as dealing with the Nazi leaders too gently, to the Germans in the Eastern Zone as dealing with them too harshly. So there had to be an international tribunal at Nuremberg, and the Americans and the British and the French had to rub along with it as best they could. The Nuremberg judges realized the difficulty of the situation and believed that the imperfection could be remedied by strict adherence to a code of law, which they must force themselves to apply as if they were not victors but representatives of a neutral power. It was an idealistic effort, but the cost was immense. However much a man loved the law he could not love so much of it as wound its sluggish way through the Palace of Justice at Nuremberg. For all who were there, without exception, this was a place of sacrifice, of boredom, of headache, of homesickness.

Here was a paradox. In the courtroom these lawyers had to think day after day at the speed of whirling dervishes, yet were living slowly as snails, because of the boredom that pervaded all Nuremberg and was at its thickest in the Palace of Justice. They survived the strain. The effect on the defendants could be tested by their response to the cross-examinations of Göring. They were frightened when Sir David Maxwell Fyfe, the chief acting British prosecutor, cross-examined him and in a businesslike way got him against the wall and extorted from him admissions of vast crime; and they were amused when Mr. Justice Jackson, the chief American prosecutor, could not cross-examine Göring at all well, because he had a transatlantic prepossession that a rogue who had held high office would be a solemn and not a jolly rogue, and was disconcerted by his impudence. But to the Russian cross-examination of Göring neither they nor anyone else in the court could bend their attention, because it was childish; it might have been part of a mock trial organized by a civics teacher in a high school. This was perhaps a superficial impression. It might be that the Russians were pursuing a legal aim other than ours. “It seems to me, when I look back on the last few months,” said one of the journalists who sat through the whole trial, “that again and again I have seen the Russians do the most mysterious things. I don’t think I dreamed that one of the leading Russian lawyers, all togged up in his military uniform, stepped up to the rostrum and squared his shoulders as if he were going to do some weight-lifting and shouted at whatever defendant it was in the box, ‘Did you conspire to wage an aggressive war against the peace-loving democracies? Answer yes or no.’ When the defendant said ‘No,’ the Russian lawyer thought for a long time and said, ‘I accept your answer.’ I cannot work that one out.” The men in the dock did not try.

But they were inert before the French. These were veiled from us by a misleading familiarity, an old and false association of images. They wore the round caps and white jabots and black gowns we have seen all our lives in Daumier drawings, and we expected them to be the wolves and sharks and alligators that Daumier drew. But they were civilized and gentle people, who gave a token of strength in their refusal to let what had happened to them of late years leave marks on their French surface. The judge, Monsieur Donnedieu de Vabres, was like many men that are to be seen all over France, and in many old French pictures, and in the plays of Molière and Marivaux: small and stocky, with a white moustache, and a brow kept wrinkled by the constant offences against logic perpetrated by this chaotic universe; a man whom one might have suspected of being academic and limited and pedantic, though sensible and moderate; a man whom one would not have suspected of having been, only two years before, released from a term of imprisonment in a German jail, which would have left many of us incapable and fanatic. From the slightly too elegant speeches of all these French lawyers it could be divined that when they were little boys they were made to learn Lamartine’s
Le Lac
by heart. From the speeches of none of them could it be divined that France had lately been shamed and starved and tortured. But they could not press their case so that the men in the dock found themselves forced to listen to it. They were too familiar with that case; they had known all about it before the Nazis ever existed, from the lips of their fathers and their grandfathers; they had been aware that if the Germans practised habitually the brutalizing business of invasion they would strengthen the criminal element in their souls till they did such things as were now being proved against the men in the dock. Their apprehensions had been realized through their own agony. They had been so right that they had suffered wrongs for which no court could ever compensate them. The chief French prosecutor, Auguste Champetier de Ribes, had been the chief anti-Munich minister in Daladier’s cabinet, and had followed his conscience before the war in full knowledge of what might happen to him after the war. The fire of their resentment was now burned to ashes. It did not seem worth while to say over again what they had said so often and so vainly; and the naïve element in the Nazis noted the nervelessness of their attack and wrote them off as weaklings. It was here that the Americans and the British found themselves possessed of an undeserved advantage. Through the decades they had refused to listen to the French point of view. Now they were like the sailor who was found beating a Jew because the Jews had crucified Christ. When he was reminded that that had happened a long time ago, he answered that that might be, but he had just heard about it.

So the Germans listened to the closing speeches made by Mr. Justice Jackson and Sir Hartley Shawcross, and were openly shamed by their new-minted indignation. When Mr. Justice Jackson brought his speech to an end by pointing a forefinger at each of the defendants in turn and denouncing his specific share in the Nazi crime, all of them winced, except old Streicher, who munched and mumbled away in some private and probably extremely objectionable dream, and Schacht, who became stiffer than ever, stiff as an iron stag in the garden of an old house. It was not surprising that all the rest were abashed, for the speech showed the civilized good sense against which they had conspired, and it was patently admirable, patently a pattern of the material necessary to the salvation of peoples. It is to be regretted that one phrase in it may be read by posterity as falling beneath the level of its context; for it has a particular significance to all those who attended the Nuremberg trial. “Göring,” said Mr. Justice Jackson, “stuck a pudgy finger in every pie.” The courtroom was not small, but it was full of Göring’s fingers. His soft and white and spongy hands were for ever smoothing his curiously abundant brown hair, or covering his wide mouth while his plotting eyes looked facetiously around, or weaving impudent gestures of innocence in the air. The other men in the dock broke into sudden and relieved laughter at the phrase; Göring was plainly angered, though less by the phrase than by their laughter.

The next day, when Sir Hartley Shawcross closed the British case, there was no laughter at all. His speech was not so shapely and so decorative as Mr. Justice Jackson’s, for English rhetoric has crossed the Atlantic in this century and is now more at home in the United States than on its native ground, and he spoke at greater length and stopped more legal holes. But his words were full of a living pity, which gave the men in the box their worst hour. The feminine Shirach achieved a gesture that was touching. He listened attentively to what Sir Hartley had to say of his activities as a Youth Leader; and when he heard him go on to speak of his responsibility for the deportation of forty thousand Soviet children he put up his delicate hand and lifted off the circlet of his headphones, laying it down very quietly on the ledge before him. It seemed possible that he had indeed the soul of a governess, that he was indeed Jane Eyre and had been perverted by a Mr. Rochester, who, disappearing into self-kindled flames, had left him disenchanted and the prey of a prim but inextinguishable remorse. And when Sir Hartley quoted the deposition of a witness who had described a Jewish father who, standing with his little son in front of a firing squad, “pointed to the sky, stroked his head, and seemed to explain something to the boy,” all the defendants wriggled on their seats, like children rated by a schoolmaster, while their faces grew old.

There was a mystery there: that Mr. Prunes and Prisms should have committed such a huge, cold crime. But it was a mystery that girt all Nuremberg. It was most clearly defined in a sentence spoken by the custodian of the room in the Palace of Justice that housed all the exhibits relating to atrocities. Certain of these were unconvincing; some, though not all, of the photographs purporting to show people being shot and tortured had a posed and theatrical air. This need not have indicated conscious fraud. It might well have been that these photographs represented attempts to reconstruct incidents which had really occurred, made at the instigation of officials as explanatory glosses to evidence provided by eye-witnesses, and that they had found their way into the record by error. But there was much stuff that was authentic. Somebody had been collecting tattooed human skin, and it is hard to think where such a connoisseur could find his pieces unless he had power over a concentration camp. Some of these pelts were infinitely pathetic, because of their obscenity. Through the years came the memory of the inconveniently high-pitched voice of an English child among a crowd of tourists watching a tournament of water-jousting in a French port: “Mummy, come and look, there’s a sailor who’s got no shirt on, and he has the funniest picture on his back—there’s a lady with no clothes on upside down on a St. Andrew’s Cross, and there’s a snake crawling all over her and somebody with a whip.” There had been men who had thought they could make a pet of cruelty, and the grown beast had flayed them.