Exorcising Hitler (39 page)

Reichsführer-SS Heinrich Himmler had likewise hoped to negotiate, perhaps until the last. He remained at liberty after VE-Day, in Flensburg until it became clear that the game was up for him there, and then for a few more days as a nomadic wanderer, dressed in the uniform of a sergeant major in the Secret Military Police and accompanied by a small group of last-ditch loyalists. They wandered around the Elbe district, until on 22 May 1945 he was arrested in a routine way at a British road checkpoint near Lüneburg and taken to the local intelligence headquarters for questioning. Realising that, despite his comprehensive set of false papers, he had been recognised by his interrogators, Himmler admitted his identity, then bit down hard on a glass cyanide capsule. Within seconds, the former head of the vast SS empire and engineer of the Holocaust was dead at the age of forty-four.
⁷

Albert Speer was arrested along with the other members of the ‘Flensburg government’ and its hangers-on, when the Anglo-Americans finally closed down that strange enterprise on 23 May. Joachim von Ribbentrop, Hitler’s Foreign Minister, was found living in British-occupied Hamburg with his wife and children, and taken from his bed into custody early on the morning of 14 June 1945. The architect of the Nazi–Soviet Pact had apparently spent the last few weeks ‘making the rounds of the city, dressed in a double-breasted suit and homburg hat, reviving old acquaintances’, presumably from his early days as a champagne salesman.
⁸

Other, more obviously criminal types, such as Ernst Kaltenbrunner, head of the SD and the Gestapo, may have taken a more realistic view of their fate once the Allies had triumphed. However, it seems that a surprising proportion of the Nazi elite, including Himmler, Goering and Ribbentrop – plus technocrats such as Backe and Speer – harboured notions that they would prove so indispensable to the Allies in the post-war period that they would not just be spared but somehow be granted an active role, even a new career. They simply did not understand that certain of the Third Reich’s crimes, for which they as senior officials were clearly collectively responsible, were so extreme as to preclude forgiveness, in fact to demand their incarceration and punishment. Accustomed to the cold, utilitarian exercise of absolute power, they did not, in other words, understand that what they viewed as realpolitik looked to others like mass murder.

Plans for mass shootings of German officers, and for the summary execution of the main leadership, from Hitler down, had given way in early 1945 – largely at the Americans’ behest – to agreement that captured Nazi leaders would be put on trial. The paperwork, mostly put together by officials in Stimson’s War Department, allowed for an ‘international tribunal’ composed of judges from each of the ‘Big Four’ victor nations.

This was not quite uncharted legal territory. After the First World War there had been calls for the punishment of the leadership of Imperial Germany – ‘Hang the Kaiser!’ as the slogan had it. Not all commentators on the Allied side agreed with this – not even jingoistic writers such as the journalist Lovat Fraser, who wrote in January 1919 in a patriotic paper,
The War Illustrated
:

Sir Herbert Stephen
*
points out that, because the Kaiser cannot be ‘tried,’ it does not in the least follow that it is impossible to punish him. Napoleon had no trial, yet we interned him until his death upon the island of St. Helena. The fact that he was declared an outlaw by the Congress of Vienna, presumably had no legal sanction. I take it that we based our action upon his surrender as a prisoner of war. Some similar course could probably be adopted with the Kaiser, though as to its legality I can express no opinion. What I am chiefly against is the illegal taking of life; and I cannot recall any case in history where the killing of a monarch under pseudo-legal forms has not in the end done far more harm than good.
⁹

Nevertheless, the Versailles Treaty of 1919 provided for an international tribunal to try German officers and officials, including Wilhelm II, mostly for offences deemed to have been committed against Allied troops and the population of the parts of France and Belgium occupied by the Kaiser’s armies.

The legal precedent was established – in fact, by international treaty – but things did not go as planned. The government of the Netherlands (neutral in the First World War) stoutly refused to extradite the Kaiser, who had taken refuge within its jurisdiction after being forced by revolution to flee Berlin in November 1918. For its part, the new, democratic German government eventually refused to deliver up the alleged ‘war criminals’, insisting that they could and should be tried before its own Supreme Court in Leipzig. The Allies agreed. However, the 1921 ‘Leipzig trials’ of a small number of minor military figures led to several acquittals and, even for those found guilty, sentences more appropriate for housebreaking than warmongering. To a man, the defendants were feted by the German public as patriotic martyrs. In general, the Leipzig proceedings combined farce and bathos in a measure that might not bode well for the new work of the new tribunals a quarter of a century later.

In the circumstances of 1945, the strength of these proposed post-war trials was, of course, that the German state no longer existed. Therefore the legal proceedings were completely in the hands of the Allies. No Germans need be involved, except as defendants and defence lawyers. No risk of repeating the Leipzig fiasco. This was, however, also the weakness of the legal process, especially in the eyes of the German population at large. The trials, however punctiliously conducted, were self-evidently ‘victors’ justice’. The fact that German judges would not be asked to try their nation’s most high-ranking criminals – who had committed many crimes against German citizens, too – implied, by this very absence of meaningful participation, that Germans in general shared their leaders’ culpability. This fact was not lost on the post-war public.

Nor was it only the aggrieved defeated who found the legal foundation of the trials at best doubtful. Lovat Fraser’s qualms in 1919 about the legitimacy of trying a ruler for his life found echoes in 1945. The Chief Justice of the United States, Harlan Fiske Stone, later referred to ‘[Chief US prosecutor Robert H.] Jackson’s high-grade lynching party in Nuremberg’.
¹⁰
Stone didn’t so much care what Justice Jackson did to the Nazis, but he disliked claims that this was a normal court, proceeding according to common law. So strongly did he feel that, when asked to swear in the American members of the International Military Tribunal, he said he ‘did not wish to appear even in that remote way, to give my blessing or that of the Court on the proposed Nurnberg [sic] trials’.
¹¹

Although Jackson believed strongly in the justice of the trials, he was aware of other weaknesses in the Allies’ claim to dispense impartial justice, which might be exploited by the accused. The Allies themselves had ‘done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war that our command is taking back prisoners sent to them. We are prosecuting plunder and our Allies are practising it. We say aggressive war is a crime and one of our allies
*
asserts sovereignty over the Baltic States based on no title except conquest.’
¹²

But how could there be no legal reckoning with the elite of the Third Reich? Clearly, massive and terrible crimes had been committed throughout Europe in the course of the war by German forces at their leaders’ behest; crimes that in many cases would be clearly considered as such in all the countries that had signed the Hague Convention forty years earlier, and even centuries before that. Mistreatment of prisoners, violence against and killing of innocent civilians, starvation and brutalisation of occupied populations – all these offences had been perpetrated on a grand scale between 1939 and 1945 by Germans acting on their government’s behalf. Surely there must be punishment for those ultimately responsible? Were not justice and revenge in this case the same thing?

The Allies agreed on the final legal basis of the trial of the Nazi leaders at a four-power conference in London on 8 August 1945 – two days after the atomic bomb was dropped on Nagasaki and coinciding exactly with the Soviet Union’s final declaration of war against Japan. The opening of the war crimes proceedings was set for 20 November. Less than six months would therefore elapse between the surrender of Germany and the trial, potentially for their lives, of the country’s surviving leadership, for multitudes of crimes committed in often obscure circumstances across thousands of square kilometres of Europe and almost six years of war.

By the time the trials began, the first post-war winter was closing in. They were to be held at the Palace of Justice in Nuremberg. With a pre-war population of 420,000 the largest conurbation in northern Bavaria, second city of that ancient kingdom, since the Middle Ages Nuremberg had been a flourishing centre for industry, craft and the arts. Consequently it had become one of the cradles of nineteenth-century German socialism – and in peacetime during Hitler’s regime the scene of the massive, overblown annual Nazi rallies known throughout the world as the
Reichsparteitage
.

Each Nuremberg
Parteitag
, held at the vast open space of the Luitpoldhain (‘Luitpold Grove’) to the south-east of the city, had been named after some supposed major theme of German life during the year concerned. So, in 1933 it was the ‘
Reichsparteitag
of Victory’ (because of Hitler’s successful seizure of power), in 1934 – although initially untitled – ‘
Reichsparteitag
of Will’ (associating it directly with Leni Riefenstahl’s famous documentary) and so on, through ‘Freedom’ (from the Treaty of Versailles, not the democratic kind), ‘Work’, to the ‘
Reichsparteitag
of Peace’. This had been scheduled to begin on 2 September 1939 and consciously intended to convince the world of Hitler’s pacific intentions despite all indications to the contrary. It was cancelled without explanation towards the end of August.

Hitler invaded Poland on 1 September. No
Parteitage
were staged during the war years.

On a practical level, Nuremberg’s large early-twentieth-century court building and its connected complex of holding cells had survived the devastating wartime bombing of the city surprisingly well. On a propaganda level, what better place to bring justice to bear on the Third Reich than in the city where it had celebrated its greatest propaganda triumphs, which had become indelibly associated with Nazi pageantry and oratory, and whose name had even been used to label the notorious set of racist decrees announced by the Führer at the 1935
Parteitag
and thereafter known as the ‘Nuremberg Laws’?

Nuremberg lay in Bavaria, which had been allocated to the American Zone. The Soviets had initially tried to keep the trials themselves in Berlin, but in the end were forced into a somewhat unwieldy compromise: the legal proceedings in the first instance would take part almost 500 kilometres to the south of the Reich capital, at Nuremberg, while the seat of the four-power tribunal authority would remain Berlin.
¹³

Three hundred and fifty representatives of the world’s press would be granted admission to court room 600 at the Nuremberg Palace of Justice, and four hundred members of the public would also be admitted. Since this was to be a ‘fair trial’, counsels for the defence of each accused as well as prosecutors would also be present in the spacious chamber, which had been specially renovated and adapted for the purpose. There was no question that the arraignment of twenty-four leaders of the Third Reich (including the missing Martin Bormann, who was tried in his absence, and German Labour Front leader Robert Ley, who committed suicide while awaiting trial) amounted to a ‘show trial’ in the literal sense. And it was a show on a grand scale. The aim was clearly to impress the world with the crimes of the Nazis – but also with the fairness of Allied justice.

The world might have been impressed, but whether the German public, now realising the full deprivation of post-war life, and with no end in sight, was also impressed, is doubtful. The proceedings, when they began, soon turned out to be long-winded, quite dull to outsiders, and with the evidence overwhelmingly skewed towards the ordering and interpretation of a vast mass of documentation rather than personal testimony. In fact, as one writer has seen it, the entire trial bore more than a passing resemblance to a classic (and classically tedious at times) anti-trust suit, an area of litigation that had become especially common in the United States under Roosevelt’s New Deal. This was the kind of case where many of the American lawyers involved had gained most of their experience back home, and it showed. What the trial was not, by and large, was a rousingly emotional moral exploration that might have forced the world (and especially Germany) to examine its conscience.
¹⁴

In one of the odder instances of the importance of translation, or more accurately mistranslation, one of the counts in the indictment – in English ‘crimes against humanity’ – was consistently rendered into German as ‘
Verbrechen gegen die Menschlichkeit
’, i.e. not ‘against humanity’ but ‘against
humaneness
’, thus softening or at least euphemising the accusation (an error that is still found in the German literature to this day).
¹⁵
After all, it could be said, was not the Allied bombing of German cities an infraction against ‘humaneness’? And was this not also true of the starvation diet which they seemed wilfully to have inflicted upon the conquered German population?