It is indeed a pity that this material is not accessible to the general reader. Let us face it, these trials have set up a dozen itching abscesses of ignorance and hatred in the public mind. Some trials drew on the Allied tribunal’s suspicion of fascist sympathies which were sheer bunkum, by a process that was a threat to law itself. Certain German criminals were picked up by the invading armies, and the war correspondents sent home stories about them which were honest in intention but erred because they were written in haste. When those criminals were brought to trial there often turned out to be no legal proof that they were guilty of the graver among the charges first brought against them. There was usually good ground for suspecting that their guilt had been as black as that, but no evidence of the sort which our pernickety courts required; and we went to war to preserve just such pernicketiness. The criminals were then charged with the lesser offences which could be proved, and if their judges found them guilty they gave them appropriate sentences. Then the public, which had read the war correspondents’ stories but not the transcripts of the trials (because the newspapers had no space to print them), shrieked that the sentences were too lenient and the judges pro-Nazi. This did not further the ends of civilization. Other trials, again, were attacked by people belonging to some international caste, such as the bureaucracy, who thought they saw their interests threatened by an attempt to burden their German fellows with the guilt of an action for which their employer, the state, should have been held responsible. The trial of civil servants, known as the Ministries or the Wilhelmstrasse trial, at which a number of civil servants including Weizsäcker were charged, was much better than its critics pretend. Weizsäcker should not have initialled an order for the deportation of three hundred French Jews; and Puhl, the Reichsbank official who gave evidence in the Funk trial, put up a typical defence when he claimed that he was actually obliged to accept gold teeth wrenched from the jaws of corpses by their murderers by the Reichsbank law, which provided that the bank must effect all banking operations for the government “insofar as they are within its competence in accordance with the present law.” It was never part of the German law, even under the Nazis, that innocent persons should be murdered and their corpses mutilated.
Other trials were vaguely attacked by the inverted humanitarianism which pretends that everybody in a court of law is a foul criminal with the single exception of the man in the dock, who is so sinless that any evidence unfavourable to him must be perjured. As the lapse of time between the alleged crimes and the trial of the accused persons lengthened, more and more opportunities were offered to such humanitarians, for not the utmost judicial integrity can war against the staling of evidence. Two of the trials simply took off and left the earth, becoming phantasmagoric, chapters out of The Mysteries of Udolpho, not trials at all.
As for the great Nuremberg trial, the trial of Göring and the Nazi leaders, it is an ugly focus of infection. To discuss it with any knowledge of what actually happened during the case is as sure a way of earning unpopularity as to talk of American affairs in England with an understanding of the American Constitution; here the point at which the informed excite most irritability in the uninformed is the conviction of the Service defendants. The uninformed wished to believe that the Nazi generals and admirals were tried for obeying orders, such orders as might have been given by any Allied government to its generals and admirals, though this is not true in any single case. So fervently do the uninformed wish to believe this that the belief must serve a deep need; and in fact cynicism about the Nuremberg trial does for survivors of the Second World War just what cynicism about the Treaty of Versailles did for the survivors of the First World War. If in 1918 we were guilty of blockading Germany after the cessation of hostilities and giving it over to famine by greedy reparations, if in 1946 we were guilty of condemning the Nazi leaders on false charges, then we are no better than our enemies. If we are no better than our enemies, who, it is admitted, were vile, then it would be hypocrisy for us to go into war on a moral issue. This will not merely prevent us from waging an aggressive war, it makes it ridiculous for us to defend ourselves. What can it matter if the inhabitants of another country come over to rule over us, when they can be no worse than we are? This is a mechanism which will come into play whenever a victorious power engages in large international action after a war. It might be called a defence mechanism, but it can defend nobody against anything. Many English people resorted to it in the twenties and thirties, but Hitler declared war all the same.
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But it would not matter what uses fatigue and timidity had made of the Nuremberg trial if the noble end contemplated by its promoters had been realized: if it had given a demonstration of the Rule of Law in all its beauty to a Germany which had seen its courts hopelessly degraded by the Nazi regime. But The Sword in the Scales shows that that hope was grievously disappointed. The procedure at Nuremberg did not impress Fritzsche and his fellow prisoners, it revolted them; and, indeed, it revolted many Germans who saw the trials or read the transcripts even when they were strongly anti-Nazi. This was due to a real national difference, not to be wiped out by an improvisation such as the Nuremberg trial. The procedure adopted by the tribunal was a compromise between the English and the American procedures, as the French and Russians claimed no concessions to their national practice. So the routine of examination-in-chief and cross-examination and re-examination was in force, and it might have been imagined that this machine, which we find works so well, would be recognized by everybody concerned as efficient and convenient and fair. But the chapter in which Fritzsche deals with the Nuremberg procedure, which is the most honest in the book, is entitled “A Duel with Handicap,” and he begins straight away with a protest against what he felt to be a shameful injustice.
It was only when a prisoner was in the witness box that he began to understand one of the strangest features of the trial—the evidence given on oath by the accused in his own defence. The tribunal had borrowed this curious practice from Anglo-Saxon law. In Germany it is customary for the judge to examine the accused, who is not admitted on oath and to whom the law imputes the right to, so to speak, lie in his own defence. Thus the accused is not bound to speak the truth save by the dictates of his conscience and the fear of appearing untrustworthy to the court. So far as the questioning of the prisoner is concerned, German advocates and public prosecutors can do no more than supplement the judge’s personal examination.
This may seem a naïve complaint against a beneficent provision of the English law, which seemed a victory for justice when it was put on the statute book fifty-five years ago. But in fact Fritzsche was expressing a resentment which would seem reasonable enough to his compatriots, all his compatriots, whatever their political complexion. Indeed, it would seem the more reasonable to them the less Nazi they were, for what the British-Americans took away are what are considered the basic rights of accused persons, and, as the Nazis took away these rights, anti-Nazi Germans felt hopeless confusion at seeing the Allies also disregard them. Though the German in the dock cannot give evidence on his own behalf, he is not asked to plead guilty or not guilty; and though he is questioned by the judge, who both examines him and cross-examines him, he is not put on oath. Moreover, he can refuse to answer all questions or any question, without needing to plead, as he would be obliged to do in a British court of law, that if he answered he would be forced to incriminate himself; and judges and lawyers and juries are very conscious that it is not the intention of the law that they should draw any conclusions from such refusals. They feel, it is said by those who should know, rather more strongly than English judges and lawyers and juries feel it, that they must not nourish suspicion concerning a witness who exercises his right to avoid self-incrimination. The German system can, in fact, put up quite a pretty argument that it is as fair to the accused person as the English and American system: it gives him a very good chance to get away with the ball if he can steal it. A German lawyer or journalist (however anti-Nazi) wh
o went to Nuremberg and saw a fellow countryman under indictment being examined and cross-examined by counsel, under risk of prosecution for perjury if he lied, must have felt exactly the same sense of outrage that an English lawyer or journalist would feel if he attended an international tribunal and saw a fellow countryman prevented from giving evidence on his own behalf and being questioned, often with open hostility and incredulity, by the judge.
But the Germans were shocked by another feature of the Nuremberg procedure. Fritzsche stated it in a ridiculous form; but the grievance was there. He was indignant because he was lodged in a prison cell during his trial instead of being allowed to live in a hostel and come to court daily; and it is plain that all the defendants thought it scandalous that they were detained in jail before they were convicted. It was, of course, sheer impudence of the Nazis to quarrel with the justice that overtook them on any ground, since they had done their best to murder justice; and it is probable that had the Nazis not been jailed some fanatics would have tried to rescue them. But there is some substance to this complaint. It is one of the injustices inherent that it is impossible to handle persons awaiting trial without inflicting on them hardships which are a reproach to the community if these persons are proved innocent. In Great Britain and America we deal with this problem by allowing accused persons out on bail; but if any man cannot find bail or seems likely to run away or threatens to commit new crimes, he has to endure imprisonment under conditions nearly as disagreeable as those which punish the convicted.
The German conscience has always, except during the Nazi regime, been much more tender on this point; and they avoided detention wherever possible and treated detained persons with greater consideration. There can be no doubt that many anti-Nazis were shocked because the defendants in Nuremberg were kept in jail, on jail diet and in jail clothes, and under the supervision of warders during their trial. Some might even have expected that at least the admirals and generals and diplomats would be allowed to live in some dignified form of house arrest; for most Germans, even when they are anti-Nazi, revere rank. Here, again, proceedings which the British and Americans took as normal and inevitable must have been regarded by German spectators as an abuse of the power given by conquest.
But there is a more disquieting suggestion in Fritzsche’s pages. It seems that not only the defendants but their counsel were slow in understanding the English and American theory of the function of the prosecutor. They did not understand how a lawyer could be a public prosecutor and yet not act under the instructions of the court. Fritzsche wrote:
Our German lawyers, too, were often under the impression that an attack on the prosecutor implied an attack on the bench; they failed to realize that such an attack was considered perfectly legitimate, since it was aimed only at their opponent in this species of legal duel.
Certain incidents in the early stages of the trial suggest that this was true; and it means that the German counsel, who in taking part in a trial conducted on British and American lines were as much at a disadvantage as a pianist who is suddenly called upon to give a violin recital, at times did not feel free to bring forward arguments in favour of their clients which they believed to be valid, because they thought that this would exasperate the judges, in whom they assumed a determination to convict. Thus, through no fault of the authorities, there were certain moments when the defendants did not receive a fair trial according to the standards we had hoped to impress on the Germans.
But truly the courtroom at Nuremberg was a tank filled to the brim with misapprehension. Fritzsche tells an illuminating anecdote regarding the appearance in the witness box of an SS leader named Bach, who gave evidence for the prosecution:
As the witness was conducted down the hall and out by the central door he had to pass the corner of the dock where Göring sat. As he went by the Field Marshal rose and said “Schweinehund.” He spoke quietly, without the least sign of emotion, but loud enough for the whole court to hear. The blood rushed to Bach’s face and he stopped short in his tracks; but he did not turn his head and left the court in silence. The insult was not translated over the microphone, but everyone who was not familiar with the expression inquired what it meant, even the judges leaning back to question the two interpreters who always sat behind them.
Alas, it is unfortunately true that there are a number of beautiful and subtle German words which we cannot adequately translate—who amongst our most gifted linguists could find a perfect English equivalent for Wesen or Gemüth or Sittlichkeit? But all of us know the meaning of Schweinehund, and what worried the judges at that moment was the problem of conducting the trial if these crazy barbarians in the dock started barracking the witnesses. Fritzsche’s anecdote is alarming because it shows not only that the defendants were so far off the mark as to think that the judges were awed by Göring’s panache, but that none of their lawyers understood the situation either, for if they had, they would certainly have explained it to their clients with a view to indicating what sort of conduct they had better avoid. Again, it must be asked whether the defendants would properly be defended by counsel who did not understand the court before which they were pleading. It is written that when the Lord saw men building the Tower of Babel, He said, “Now nothing will be restrained from them which they have imagined to do. Go to, let us go down, and there confound their language, that they may not understand one another’s speech.” But the confusion which circumscribes us goes deeper than language. All of us had our earphones, there was not a person in court who did not understand the literal meaning of every word that was said. Yet there was this welter of misunderstanding, this frustration, this incapacity to demonstrate the Rule of Law anything like as clearly as had been hoped.
But of course it would be absurd to take Fritzsche’s book as the last word on the Nuremberg trial. He could hardly be expected to acknowledge that the world was under a necessity to find some way of punishing the Nazi leaders; that a gaping hole would have appeared in our moral system had it been possible for villains to commit a vast number of vile crimes in their own and other countries, and to escape punishment because they had created ruin so general that it had consumed all courts of law. Civilization could no longer have been regarded as a viable idea if Dr. Frank, the governor of Poland, could not be punished for breaking Polish laws simply because he had murdered Poland and the corpse was incapable of prosecuting him. And it would have been too much to ask of Fritzsche that he should appreciate the service rendered to history by the Nuremberg trial.
This was immense. Many thousands of documents from enemy archives were submitted by the prosecution, and as they could be challenged by the defence their authenticity was guaranteed; and the witnesses annotated them and had to prove their annotations under cross-examination. Though they are not now easily accessible to the general reader, they are there for the student; and the lawyers had to act with a haste that was all to the good. The historians would have taken them to their studies, shut the doors, and dealt with them at the slow pace of scholarship, and scholarly prejudices and obsessions would have struck deep roots and grown a quickset hedge about the facts before the work was done. The glands of some don might have a second springtime, or even a first, while he weaved an erotic fantasy about Göring; and a don of the other sort, that shines on television, looking for a unique stance, might find it in a thesis that Goebbels was a man of elevated character who might have saved Europe had it not been for the machinations of the British Foreign Office. Indeed, as the Allies drew apart and each went back to its party strife, the Nuremberg documents might have suffered the fate which was later to overtake less important but still interesting material. It does no good to history when a ministry takes out of its files a batch of documents and, instead of issuing the texts as a government paper, gives it to a writer to use for his own personal profit as material for a book to be sold through the ordinary commercial channels. This might easily amount to bribing a writer to twist the evidence for a policy favoured by a government, or b
y a minister, or by a caucus of civil servants within a ministry. Hence, if the Nazi archives had not been aired at Nuremberg, enthusiasm for the European Defence Community might have produced some pleasing pastel portraits of the Service defendants that would be taken as accurate, and a contrary view might have taken us out of the field of Daumier to the terrible microcosm of Hieronymus Bosch when the policy veered towards appeasement of the Soviet Union. Though the printed record of the truth is hidden from the general reader, its existence preserves him from much mischievous special pleading.
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But for the rest the Nuremberg trial must be admitted as a betrayal of the hopes that it engendered. Its makers devised it as well as the times allowed. Conducted by officials sick with the weariness left by a great war, attended by only a handful of spectators, inadequately reported, constantly misinterpreted, it was an unshapely event, a defective composition, stamping no clear image on the mind of the people it had been designed to impress. It was one of the events which do not become an experience.
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