Sins of the fathers

Interrogations: the Nazi elite in allied hands, 1945

Richard Overy <em>Allen Lane, The Penguin Pre

Wars result in war crimes, almost by definition, and in recent years they have led to an unseemly, if popular, enthusiasm for the pursuit and prosecution of war criminals. From the Balkans to Rwanda and Cambodia (with a sideswipe at doddery former concentration camp guards), a great legal panoply has been erected, describing itself as international justice but designed, essentially, to impress the world with the power and reach of the victor nations. The fundamental objection to this dubious form of latter-day Colosseum-style entertainment lies here: eager and well-rewarded lawyers are permitted to concentrate only on the crimes of the vanquished. Treason doth never prosper, what's the reason? For if it prosper, none dare call it treason. So it is with war crimes. The butcher of Belgrade is behind bars and on trial, the bombers of Belgrade remain honoured citizens.

The pursuit of war criminals is relatively new. It was rarely given official encouragement during the hot wars that occurred during the cold war, largely to avoid an own goal by the western powers, though it was sometimes taken up by private citizens. Bertrand Russell formed his own tribunal in the 1960s to judge and condemn the crimes of the Americans in Vietnam. Such circuses, now officially sponsored by the United Nations, are scheduled to become one of the growth activities of the 21st century, so it is useful to have a book that details the discussions and arguments that went into preparing the mother of all war crimes tribunals, the military court held at Nuremberg after the Second World War.

Professor Richard Overy of King's College London has had a wonderfully fruitful time in the archives, digging out the transcripts of the interrogations conducted by Allied officers with the surviving leaders of Nazi Germany. One-third of his eminently readable book is an account of how the Allies came to set up the tribunal, with a description of the behaviour of the principal witnesses as they confronted their interrogators. The other two-thirds consists of the interrogations themselves, well-presented dialogues that have the immediacy and drama of a particularly macabre radio play. Overy also reprints many documents of inestimable value that were submitted to the Nuremberg investigators. This is a rich treasure trove indeed.

In the course of his research, Overy made some interesting discoveries, in at least two cases reminding us of facts and insights that should have been obvious at the time, yet were glossed over during the subsequent half-century. He ruminates on the success of the German army commanders in preserving a favourable image of their institution over the years, when it was perfectly clear, already in 1945, that the German military had behaved just as badly "in the East" as had the SS (the usual culprit), and that their behaviour on the Western Front was equally reprehensible. "The German armed forces in both theatres," Overy notes succinctly, "brought habits of rough justice against enemy soldier and civilian, and was known to have done so at Nuremberg." The cold war, and the consequent need of the western Allies to draw the German army into their embrace, ensured that these insights revealed at Nuremberg were swiftly covered over.

Overy makes intriguing reference to the revelations of Goering on the subject of the Allied bombing of Germany. Unlike Albert Speer, who convinced the postwar American bombing survey team that the bombing had made little impact on the German economy, Goering argued that it was a central factor in the defeat of his air force. "Bombing forced the dispersal of aircraft production and contributed to a cumulation of small but significant interruptions in the production and distribution of finished planes, many of which in 1944 were left inoperable because they were short of vital components or spares." Overy believes that "by expressing the consequences of bombing in terms of German military strategy, Goering provided a historically plausible explanation of German defeat". This was known at the time, but it is Speer's version that has won the day.

Winston Churchill had no plans for postwar trials. He envisaged a procedure whereby, after identification, 50 or 100 of the leading Nazis would be "shot to death" within six hours of capture "without reference to higher authority". His Lord Chancellor, the oleaginous John Simon, supported this idea by analogy with the British grand jury of the Middle Ages, which could declare a criminal an outlaw and then make it legal for him to be put to death by anyone who caught him. The Archbishop of York agreed that, once formally identified, the major criminals should simply be "done to death". Clement Attlee, then the deputy prime minister, expanded the list of criminals, suggesting to the war cabinet that a selection of German businessmen should be executed "as an example to the others" not to pursue their "nefarious ends" through war (an interesting aspect of old Labour thinking not likely to appeal much to the pro-business Tony Blair). This socialist view echoed the line of the Soviet Union that Germany's industrial and financial "fuhrers" should be tried alongside its political and military leaders.

It took an American, John McCloy, the US assistant secretary of war, to remind Lord Simon that "summary execution without trial is contrary to the fundamental conception of justice". McCloy was reinforced in his view by listening to a soapbox exchange about war criminals when leaving his Park Lane hotel and passing by Speakers' Corner at Marble Arch. "When the speaker urged his listeners to hang them all, he was interrupted by shouts from the audience: 'That's not British justice' - 'Try them for the crimes they committed'. To McCloy's ear the consensus among the crowd appeared to favour a trial." When Simon continued to argue that "execution without trial is the preferable course", the American simply took no notice, suggesting to the new Truman administration in Washington that it should start making its own plans to try the Axis leaders. Not until the final week of the war, in May 1945, did the British finally capitulate. As a result of their early reluctance, the Nuremberg process was largely organised by the Americans, and founded entirely on American notions of justice. (The British lack of interest in the trial continued into peacetime, with Ivone Kirkpatrick, once of the British embassy in Berlin, expressing the hope that the captured Nazis might commit mass suicide - "it will save us a great deal of trouble," he wrote.)

Once the Allies had agreed in principle that a trial should be held, a host of questions arose. Who should be tried? The three principal criminals - Hitler, Goebbels and Himmler - were already dead. Churchill's "50 or 100" seemed rather a tall order, and eventually a figure of around two dozen was agreed. Where should the trial take place? The Russians, who liked show trials, favoured Berlin, the capital city. The western Allies demurred, because Berlin was in the Soviet zone. A compromise was arrived at: the court would sit in Nuremberg; its executive authority would be established in Berlin.

Finally, there was the most difficult question of all. What constituted a war crime? Everyone agreed that aerial bombing could not be mentioned lest the activities of RAF Bomber Command be swept into the indictment. The lawyers came up with ever more ingenious formulations, many of which had no foundation in existing international law. A crime of "genocide" was invented, as was a crime "against humanity". The American notion that the Nazis had embarked on "a conspiracy to subjugate Europe" as a prelude to world domination was historically absurd, yet this formed the centrepiece of the Nuremberg trial.

The principal surviving Nazis were assembled after capture (itself an extraordinary story in several cases) at two camps, charmingly known as "Ashcan" and "Dustbin". The first, run by the Americans on Spartan lines, was in Luxembourg; the second, overseen in a more relaxed mode by the British, was in a castle near Frankfurt. There, the Nazi leaders were subjected to a long series of interrogations. They were a richly diverse assortment of individuals and they all reacted in markedly different ways. Robert Ley was on the verge of madness and eventually committed suicide; Walther Funk wept unrestrainedly; Rudolf Hess suffered from complete loss of memory; Joachim von Ribbentrop, the former foreign minister, revealed that he never really knew what Hitler's foreign policy was; Albert Speer was endlessly plausible and convincing; Goering was always convivial, laughing and joking with his Soviet interrogators. He had never sought to evade capture, seeking out the American army "under the mistaken impression that he would be treated as an emissary of a defeated people".

The Nuremberg trial lasted for ten months. Of the 22 defendants, 12 were condemned to death and hanged on the morning of 16 October 1946 (with the exception of Goering, who committed suicide the night before), three were acquitted and the rest were given long prison sentences.

Even at the end, difficult questions remained. What should be done with the bodies of the hanged men? The British, ever pragmatic, suggested that they should be taken out into the North Sea in police launches and dropped over the side, a notion rejected at the time, but resurrected by the Israelis 16 years later in the case of Adolf Eichmann. To avoid trouble, the convicted criminals were executed at Nuremberg and their bodies were taken in American uniforms for cremation in Munich. Their ashes were scattered on the waters of the river Isar.

Richard Gott is working on a short history of Cuba for Yale University Press

This article first appeared in The end of the open society?