by Ian Buruma
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.