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 Lüneburg 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: [1]

Robert Jackson, chief US prosecutor at the Nuremberg Tribunal, listens to the proceedings. He privately acknowledged that the Allled governments conducting the trial were guilty of the same crimes they accused the defendants of committing. In a letter to President Truman, he confided that the Allies "have done or are doing some of the very things we are prosecuting the Germans for."

Echoing these words, chief British prosecutor Sir Hartley Shawcross declared in his final address to the Tribunal: [2]

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. [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." [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 … " [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. [6] At a joint planning conference shortly before the Nuremberg Tribunal convened, Nikitchenko bluntly explained the Soviet view of the enterprise: [7]

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. [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. [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. [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.) [11]

US Army Colonel Murray C. Bernays persuaded War Secretary Henry Stimson and others to accept the idea of putting the defeated German leaders on trial. American historian Robert Conot called Bernays "the guiding spirit leading the way to Nuremberg."

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. [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 … " [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." [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." [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: [16]

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." [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." [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." [19]

Another indictment of the Nuremberg trial appeared more recently in the pages of the liberal New Republic: [20]

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. [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." [22]

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. [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. [24] Chief US prosecutor Robert Jackson privately acknowledged in a letter to President Truman that the Allies [25]

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." [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. [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. [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. [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." [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: [31]

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?" [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. [33]

The Nuremberg Trials and the Holocaust - 2 - 3 - 4

See also: