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The Nuremberg Trials and the Holocaust
Do the 'war crimes' trials prove extermination?
by Mark Weber
A common response to expressions of skepticism about the Holocaust story is to say something like "What about Nuremberg? What about the trials and all the evidence?!" This reaction is understandable because the many postwar "war crimes" trials have given explicit, authoritative judicial legitimacy to the Holocaust extermination story.
By far the most important of these was the great Nuremberg trial of 1945-1946, officially known as the International Military Tribunal (IMT). The governments of the United States, the Soviet Union, Britain and France put on trial the most prominent surviving German leaders as "Major War Criminals" for various "war crimes," "crimes against peace," and "crimes against humanity." In the words of the Tribunal's Charter, these "Nazi conspirators" carried out their crimes as part of a great "Common Plan or Conspiracy."
In addition, twelve secondary Nuremberg trials (NMT) organized by the US government alone were conducted between 1946 to 1949. Similar trials were also conducted by the British at Luneburg and Hamburg, and by the United States at Dachau. Since then, many other Holocaust-related trials have been held in West Germany, Israel and the United States, including the highly-publicized trials in Jerusalem of Adolf Eichmann and John Demjanjuk.
Germany's wartime treatment of the Jews figured prominently in the Nuremberg trials. In their condemnation of the defendants, the Allies gave special emphasis to the alleged extermination of six million European Jews. Chief US prosecutor Robert H. Jackson, for example, declared in his opening address to the Tribunal: (note 1)
The most savage and numerous crimes planned and committed by the Nazis were those against the Jews ... It is my purpose to show a plan and design, to which all Nazis were fanatically committed, to annihilate all Jewish people.... The avowed purpose was the destruction of the Jewish people as a whole... The conspiracy or common plan to exterminate the Jews was ... methodically and thoroughly pursued... History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.
Echoing these words, chief British prosecutor Sir Hartley Shawcross declared in his final address to the Tribunal: (note 2)
There is one group to which the method of annihilation was applied on a scale so immense that it is my duty to refer separately to the evidence. I mean the extermination of the Jews. If there were no other crime against these men [the defendants], this one alone, in which all of them were implicated, would suffice. History holds no parallel to these horrors.
How compelling was the evidence presented at Nuremberg to substantiate such damning words? How did the defendants respond to the charges?
While much of the specific testimony and documentation presented in these trials has been dealt with in other Journal articles, here we take a closer look at the general trustworthiness of the evidence cited at Nuremberg and elsewhere for the Holocaust extermination story. This chapter also focuses on the basic character of these trials, which have played such an important role in "legitimizing" the Holocaust story.
The Nuremberg enterprise violated ancient and fundamental principles of justice. The victorious Allies acted as prosecutor, judge and executioner of the German leaders. The charges were created especially for the occasion, and were applied only to the vanquished. (note 3) Defeated, starving, prostrate Germany was, however, in no position to oppose whatever the Allied occupation powers demanded.
As even some leading Allied figures privately acknowledged at the time, the Nuremberg trials were organized not to dispense impartial justice, but for political purposes. Sir Norman Birkett, British alternate judge at the Nuremberg Tribunal, explained in a private letter in April 1946 that "the trial is only in form a judicial process and its main importance is political." (note 4)
Robert Jackson, the chief US prosecutor and a former US Attorney General, declared that the Nuremberg Tribunal "is a continuation of the war effort of the Allied nations" against Germany. He added that the Tribunal "is not bound by the procedural and substantive refinements of our respective judicial or constitutional system ..." (note 5)
Judge Iola T. Nikitchenko, who presided at the Tribunal's solemn opening session, was a vice-chairman of the supreme court of the USSR before and after his service at Nuremberg. In August 1936 he had been a judge at the infamous Moscow show trial of Zinoviev and Kamenev. (note 6) At a joint planning conference shortly before the Nuremberg Tribunal convened, Nikitchenko bluntly explained the Soviet view of the enterprise: (note 7)
We are dealing here with the chief war criminals who have already been convicted and whose conviction has been already announced by both the Moscow and Crimea [Yalta] declarations by the heads of the [Allied] governments... The whole idea is to secure quick and just punishment for the crime...
The fact that the Nazi leaders are criminals has already been established. The task of the Tribunal is only to determine the measure of guilt of each particular person and mete out the necessary punishment -- the sentences.
Indicative of the largely political nature of the Nuremberg process was the important Jewish role in organizing these trials. Nahum Goldmann, one-time president of both the World Jewish Congress and the World Zionist Organization, reported in his memoir that the Nuremberg Tribunal was the brain-child of World Jewish Congress officials. Only after persistent effort were WJC officials able to persuade Allied leaders to accept the idea, he added. (note 8)
The World Jewish Congress also played an important but less obvious role in the day to day proceedings. Above all, the powerful but secretive organization made sure that Germany's persecution of the Jews was a primary focus of the trials, and that the defendants were punished for their involvement in that process. (note 9)
Two Jewish officers in the US Army -- Lieutenant Colonel Murray Bernays and Colonel David "Mickey" Marcus -- played key roles in the Nuremberg enterprise. In the words of historian Robert Conot, Bernays was "the guiding spirit leading the way to Nuremberg." Bernays, a successful New York attorney, persuaded US War Secretary Henry Stimson and others to accept the idea of putting the defeated German leaders on trial. (note 10)
Marcus, a fervent Zionist, became the "number three man in making American policy" in occupied Germany. As chief of the US government's War Crimes Branch in 1946 and 1947, he selected almost all of the judges, prosecutors and lawyers for the Nuremberg NMT Trials. (He later became a commander of Zionist "Haganah" military forces in Palestine.) (note 11)
Some of the Americans who participated in the Nuremberg trials became disillusioned with the entire business. One of the few to make public his feelings was Charles F. Wennerstrum, an Iowa Supreme Court justice who served as presiding judge in the Nuremberg trial of German generals. "If I had known seven months ago what I know today, I would never have come here," he declared immediately after sentences were pronounced. "The high ideals announced as the motives for creating these tribunals have not been evident," he added. (note 12)
Wennerstrum cautiously referred to the extensive Jewish involvement in the Nuremberg process. "The entire atmosphere here is unwholesome ... Lawyers, clerks, interpreters and researchers were employed who became Americans only in recent years, whose backgrounds were imbedded in Europe's hatreds and prejudices." He criticized the one-sided handling of evidence. "Most of the evidence in the trials was documentary, selected from the large tonnage of captured records. The selection was made by the prosecution. The defense had access only to those documents which the prosecution considered material to the case." He concluded that "the trials were to have convinced the Germans of the guilt of their leaders. They convinced the Germans merely that their leaders lost the war to tough conquerors." Wennerstrum left Nuremberg "with a feeling that justice has been denied."
America's leading jurist was dismayed by the Nuremberg process. US Supreme Court Chief Justice Harlan Fiske Stone remarked with irritation: "[Chief US prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg. I don't mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas." In a private letter he wrote: "... I wonder how some of those who preside at the trials would justify some of the acts of their own governments if they were placed in the status of the accused." On another occasion Stone specifically wondered "whether, under this new [Nuremberg] doctrine of international law, if we had been defeated, the victors could plausibly assert that our supplying Britain with fifty destroyers [in 1940] was an act of aggression ..." (note 13)
In Congress, US Representative Lawrence H. Smith of Wisconsin declared: "The Nuremberg trials are so repugnant to the Anglo-Saxon principles of justice that we must forever be ashamed of that page in our history ... The Nuremberg farce represents a revenge policy at its worst." (note 14) Another Congressman, John Rankin of Mississippi, stated: "As a representative of the American people I desire to say that what is taking place in Nuremberg, Germany, is a disgrace to the United States... A racial minority, two and a half years after the war closed, are in Nuremberg not only hanging German soldiers but trying German businessmen in the name of the United States." (note 15)
Probably the most courageous condemnation was by US Senator Robert A. Taft, widely regarded as the "conscience of the Republican party." At considerable risk to his political career, he denounced the Nuremberg enterprise in an October 1946 speech. "The trial of the vanquished by the victors cannot be impartial no matter how it is hedged about with the forms of justice," he said. Taft went on: (note 16)
About this whole judgment there is the spirit of vengeance, and vengeance is seldom justice. The hanging of the eleven men convicted will be a blot on the American record which we will long regret. In these trials we have accepted the Russian idea of the purpose of trials -- government policy and not justice -- with little relation to Anglo-Saxon heritage. By clothing policy in the forms of legal procedure, we many discredit the whole idea of justice in Europe for years to come.
Milton R. Konvitz, a Jewish specialist of law and public administration who taught at New York University, warned at the time that the Nuremberg Tribunal "defies many of the most basic assumptions of the judicial process." He went on: "Our policy with respect to the Nazis is consistent with neither international law nor our own State Department's policy... The Nuremberg trial constitutes a real threat to the basic conceptions of justice which it has taken mankind thousands of years to establish." (note 17)
In the years since, distinguished figures in both the United States and other countries have expressed similar views. US Supreme Court Justice William O. Douglas wrote: "I thought at the time and still think that the Nuremberg trials were unprincipled. Law was created ex post facto to suit the passion and clamor of the time." (note 18)
US Rear Admiral H. Lamont Pugh, former Navy Surgeon General and Commanding Officer of the National Naval Medical Center, wrote: "I thought the trials in general bordered upon international lunacy. I thought it particularly unfortunate, inappropriate, ill-conceived and dupably injudicious that the United States should have been cast in the leading role as prosecutors and implementators of the trials of German participants or principals." (note 19)
Another indictment of the Nuremberg trial appeared more recently in the pages of the liberal New Republic: (note 20)
The whole majesty of the Western heritage of the law was used to subvert that heritage in the Nuremberg Tribunal. Weighty jurists in every Western country (but not Russia) protested against this travesty of the Western legal system. So did historians. So did merely cultured and moral men and women. If the victors were to "try" the vanquished for war crimes, then they should try themselves for often committing the same crimes. Who would try [British] Air Chief Marshal Sir Arthur Travers "Bomber" Harris, the architect of the policy of saturation bombing of German cities? But it was not only a matter of our own "war crimes." If it was right to use the apparatus of the law to punish those responsible for exceptional crimes like the Holocaust, it was wrong to use it to punish errors of judgment and statecraft such as every defeated regime seems to have committed. "We used the methods of the enemy" -- and used them in peace at Nuremberg.
While the Nuremberg trials were underway, and for some time afterwards, there was quite a lot of talk about the universal validity of the new legal code established there. A new age of international justice had begun, it was claimed. Many sincerely believed that the four Allied powers would themselves abide by the Tribunal's standards. (note 21)
As it happened, none of the four powers that participated in the Tribunal ever made the slightest effort to apply the principles so solemnly and self-righteously proclaimed at Nuremberg either to their own leaders or to those of any other country.
No Soviet leader was executed for the Soviet military interventions in Hungary in 1956 or Czechoslovakia in 1968. No British leader was put on trial for the British invasion of Egypt in October 1956. President Eisenhower was not tried for his invasion of Lebanon in 1958. President Kennedy was not hanged for his ill-fated 1962 "Bay of Pigs" invasion of Cuba. President Johnson was never called to judicial account for his conduct of the war in Vietnam or his invasion of the Dominican Republic. President Nixon was not brought before a tribunal for his armed "incursion" into Cambodia.
When (North) Vietnamese officials threatened to put captured US airmen on trial in 1966, US Senator Everett Dirksen was moved to remark that the Nuremberg trials "may have been a ghastly mistake." (note 22)
A double standard
In conducting the Nuremberg trials, the Allied governments themselves violated international law. For one thing, their treatment of the German defendants and the military prisoners who testified violated articles 56, 58 and others of the Geneva convention of July 1929. (note 23)
Justice -- as opposed to vengeance -- is a standard that is applied impartially. At Nuremberg, though, standards of "justice" applied only to the vanquished. The four powers that sat in judgment were themselves guilty of many of the very crimes they accused the German leaders of committing. (note 24) Chief US prosecutor Robert Jackson privately acknowledged in a letter to President Truman that the Allies (note 25)
have 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 [German] prisoners of war that our command is taking back prisoners sent to them [for forced labor in France]. We are prosecuting plunder and our Allies are practicing 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.
In violation of the first Nuremberg count of "planning, preparation, initiating or waging a war of aggression," the Soviet Union attacked Finland in December 1939 (and was expelled from the League of Nations as a result). A few months later the Red Army invaded Lithuania, Latvia and Estonia, and ruthlessly incorporated them into the Soviet Union. The postwar French government violated international law and the Nuremberg charge of "maltreatment of prisoners of war" by employing large numbers of German prisoners of war as forced laborers in France. In 1945 the United States, Britain and the Soviet Union jointly agreed to the brutal deportation of more than ten million Germans from their ancient homes in eastern and central Europe, a violation of the Nuremberg count of "deportation, and other inhumane acts committed against any civilian population." (note 26)
While Allied prosecutors charged the defendants with a "crime against peace" in planning the German invasion of Norway in 1940, the British government eventually had to admit that Britain and France were themselves guilty of the same "crime" in preparing a military invasion of Norway, code-named "Stratford," before the German move. And in August 1941, Britain and the Soviet Union jointly invaded and occupied Iran, a neutral nation. (note 27)
Given this record, it is hardly surprising that the four governments that organized the Nuremberg trial of 1945-1946 included no definition of "aggression" in the Tribunal's Charter. (note 28)
Mikhail Vozlenski, a Soviet historian who served as a translator at the Nuremberg Tribunal in 1946, later recalled that he and the other Soviet personnel felt out of place there because the alleged crimes of the German leaders were "the norm of our life" in the Soviet Union. (note 29) The Soviet role in the proceedings, which the United States fully supported, moved American diplomat and historian George F. Kennan to condemn the entire Nuremberg enterprise as a "horror" and a "mockery." (note 30)
Nuremberg's double standard was condemned at the time by the British weekly The Economist. It pointed out that whereas both Britain and France had supported the expulsion of the Soviet Union from the League of Nations in 1939 for its unprovoked attack against Finland, just six years later these same two governments were cooperating with the USSR as a respected equal at Nuremberg. "Nor should the Western world console itself that the Russians alone stand condemned at the bar of the Allies' own justice," the Economist editorial went on. It continued: (note 31)
... Among crimes against humanity stands the offence of the indiscriminate bombing of civilian populations. Can the Americans who dropped the atom bomb and the British who destroyed the cities of western Germany plead "not guilty" on this count? Crimes against humanity also include the mass expulsion of populations. Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold themselves completely innocent?... The nations sitting in judgment [at Nuremberg] have so clearly proclaimed themselves exempt from the law which they have administered.
An official with the postwar US military occupation administration in Germany commented: "What good are the high-flown morals enunciated at Nuremberg if the Americans have agreed to such things as deportation in documents which bear official signatures, and which, therefore, give the Allies the legal right to do the things which at Nuremberg they described as immoral?" (note 32)
If the Nuremberg Tribunal's standards had been applied to the victors of the Second World War, American General and supreme Allied commander in Europe Dwight Eisenhower would have been hanged. At the end of the war Eisenhower ordered that German prisoners in American military custody were no longer to be treated according to the Geneva Convention on the treatment of prisoners of war. This violation of international law removed masses of Germans from the protection of the International Red Cross (ICRC), and condemned hundreds of thousands of them to slow death by starvation and disease. (note 33)
Perhaps nothing better illustrates the essentially unfair character of the Nuremberg proceedings than the treatment of Rudolf Hess, Hitler's deputy. He was sentenced to life imprisonment even though he alone of leading figures of the countries involved in the Second World War risked his life in a dangerous but fruitless effort to conclude peace between two of the warring nations. British historian A.J.P. Taylor once succinctly summed up the injustice of the Hess case and, by implication, of the entire Nuremberg enterprise: (note 34)
Hess came to this country in 1941 as an ambassador of peace. He came with the ... intention of restoring peace between Great Britain and Germany. He acted in good faith. He fell into our hands and was quite unjustly treated as a prisoner of war. After the war, we should have released him. Instead, the British government of the time delivered him for sentencing to the International Tribunal at Nuremberg ... No crime has ever been proved against Hess ... As far as the records show, he was never at even one of the secret discussions at which Hitler explained his war plans.
The problem of evidence
The victorious Allies thoroughly scoured Germany for every scrap of paper that might be used to incriminate the defeated regime. Never before or since have a nation's records been so completely ransacked. In addition to official government papers, including countless secret documents tracing Germany's wartime Jewish policy, the Allies confiscated the records of the National Socialist Party and its affiliated organizations, as well as those of numerous private business firms, institutions and individuals. The sheer quantity of paper seized is staggering. For example, the records of the German Foreign Office confiscated by US officials amounted to some 485 tons of paper. (note 35)
From this mountain of paper, US military personnel alone selected some two thousand documents considered most incriminating for use in the main Nuremberg trial. The tons of confiscated records were later shipped to the United States. It is estimated that in the US National Archives alone, more than one million pages of documents on the Third Reich's Jewish policy are on file. Many hundreds of these Nuremberg documents have since been published, most notably by the U.S. government in the 42-volume "blue series" record of the main Nuremberg trial, the 15-volume "green series" record of the "second string" Nuremberg trials, and in the 11-volume "red series." (note 36)
It is as if governments hostile to the United States were to seize the top secret files of the Pentagon and CIA, and then selectively publish the most embarrassing and incriminating documents from the vast collection.
In the years since the Nuremberg trials, historians of many different countries have carefully sifted through the German records, including countless documents that were not available to the Nuremberg prosecutors. Historians have been able to compare and cross-check the records of different ministries and agencies, as well as numerous private diaries and papers. (note 37)
And yet, out of this great mass of paper, not a single document has ever been found that confirms or even refers to an extermination program. A number of historians have commented on this remarkable "gap" in the evidence. French-Jewish historian Leon Poliakov, for example, noted in his best-known Holocaust work:
The archives of the Third Reich and the depositions and accounts of its leaders make possible a reconstruction, down to the last detail, of the origin and development of the plans for aggression, the military campaigns, and the whole array of procedures by which the Nazis intended to reshape the world to their liking. Only the campaign to exterminate the Jews, as regards its conception as well as many other essential aspects, remains shrouded in darkness.
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