“There comes a point when a man must refuse to answer to his leader if he is also to answer to his own conscience.” The words of Sir Hartley Shawcross, the Attorney General who led the British prosecution team from November 1945 to October 1946 at the Nuremberg War Crimes tribunal. The leader to whom he was referring was Adolf Hitler.
Shawcross lived beyond the age of 100, eventually dying in 2003. I was fortunate to meet him briefly when his mind was still sharp: he had married his third wife, Susanne, at the age of 95. Although circumstances did not allow for an interview, I regret not being able to ask him about Nuremberg. Sir Norman Birkett, one of nine trial judges (three American, two British, two French and two Russian) had described them as “the greatest trial in history”.
But it nearly did not take place at all, as Shawcross told a tv interviewer in 1976: “There was quite a big school of thought in Britain and even more so in the Soviet Union in favour of what was called executive action: that these men should be caught, there should be a very short drumhead court-martial, and they be executed out of hand,” he said.
At the Yalta Conference in February 1945, Shawcross noted that Stalin had suggested that the proper course would be to arrest 50,000 members of the German General Staff and execute them. Roosevelt thought this was a joke and replied: “Well, perhaps 49,000.” But Churchill’s response was to say that he would rather be shot himself than countenance such an act of barbarity.
According to a contemporary account, declassified in 2012, Guy Liddell, then head of counter-espionage at MI5, confirmed that Churchill’s position had been to oppose the Nuremberg tribunals because he wanted selected Nazi leaders to be summarily executed and others to be imprisoned without trial.
Liddell’s contemporary note further reveals that Churchill made this proposal at Yalta. But he was overruled by Roosevelt, who believed the US public would demand proper trials, and also by Stalin, who had swiftly shifted his position, arguing that public trials possessed excellent propaganda value. FDR and “Uncle Joe” Stalin won the day.
Nuremberg was chosen for two reasons. First, its Palace of Justice housed both a large courtroom and a prison as part of the complex: these were capacious and undamaged, unlike most other such buildings in Germany which had been subject to extensive Allied bombing. Second, Nuremberg was the symbolic birthplace of the Nazi Party, having hosted its vast annual propaganda rallies and the Reichstag session that passed the infamous Nuremberg Laws.
The flagship Nuremberg trial involved surviving senior Nazis who were indicted under four separate headings: participation in a common plan or conspiracy for the accomplishment of a crime against peace; planning, initiating and waging wars of aggression and other crimes against peace; participating in War crimes; and crimes against humanity.
Hitler, like his propaganda chief Joseph Goebbels and head of the SS Heinrich Himmler, had escaped justice by committing suicide. Instead, 24 individuals who had played a key role in the highest echelons of the Nazi hierarchy were selected for the first trial. One was them – Robert Ley, head of the German Labour Front – committed suicide in October 1945, while another, the industrialist Gustav Krupp was deemed unfit for trial. A third man, Martin Borman, was tried in absentia: the identity of his body, which had been found in May 1945, was eventually confirmed by DNA testing in 1988.
That left 21 men in the dock at Nuremberg, the most prominent of whom was Hermann Goering. In September 1939, Hitler had designated him as his successor and deputy: effectively his wing man and partner in crime. By the end of the war, although less favoured by the Führer, Goering was still hugely powerful. “He was very much a dominating figure in the courtroom,” according to Shawcross.
Other defendants included: Karl Dönitz, the admiral who was briefly President of Germany following Hitler’s death; Rudolf Hess, one-time Deputy Führer who had flown to Scotland in 1941 to try and broker peace with Churchill; foreign minister, Joachim von Ribbentrop; armaments minster and architect Albert Speer; as well as German army top brass such as Alfred Jodl and Wilhelm Keitel.
Faced with overwhelming evidence which catalogued murder, torture, slave labour and the enormity of the crimes in relation to the Holocaust, “I was only obeying orders” became the most common defence run by the defendants in relation to Hitler’s diktats.
Evidence against them included: The Hossbach Memorandum in which Hitler explained his war plans; the film Nazi Concentration and Prison Camps which showed what Allied forces discovered immediately after the war; and numerous witnesses who confirmed that Keitel, von Ribbentrop and others had given orders for the murder of Poles, Jews, and Russian prisoners of war.
Goering, who held the greatest power of all of them during the Nazi regime, attempted to deny any responsibility, even though there was irrefutable evidence of his culpability in many of these events. The point when a man must refuse to answer to his leader if he is also to answer to his own conscience had far been exceeded. The same was undoubtedly true of his co-defendants, even if in some cases there was less direct evidence.
Liddell watched part of the trial in Nuremberg, writing at the time: “One cannot escape the feeling that most of the things the 21 are accused of having done over a period of 14 years, the Russians have done over a period of 28 years. This adds considerably to the somewhat phoney atmosphere of the whole proceedings and leads me to the point which in a way worries me most, namely, that the court is one of the victors who have framed their own charter, their own procedure and their own rules of evidence in order to deal with the vanquished.”
Thirty years later, Shawcross echoed the point stating that “All law is created by the victors for the vanquished.” But the verdicts were certainly not uniform. Of the 21 men tried, three were found not guilty: Hans Fritzsche, head of news at the Nazi Propaganda Ministry; Franz von Papen, former Chancellor who was later convicted of war crimes by another court and sentenced to 8 years’ hard labour; and Dr Hjalmar Schacht, president of the Reichsbank 1933–38 and Hitler’s Economics Minister 1934–37.
Of the 18 who were convicted at Nuremberg, 11 received a death sentence, including Jodl, Keitel, von Ribbentrop and Goering, although Hitler’s former deputy cheated the hangman’s noose thanks to a cyanide capsule. Meanwhile, Dönitz and Speer received custodial sentences – of ten and 20 years respectively – while Hess received a whole life sentence, only to kill himself in Spandau prison, Berlin, in 1987.
That any senior individual in the Nazi hierarchy was unaware of the enormity of crimes committed under the authority of, or at the direct instigation of Adolf Hitler, does not seem credible through modern eyes. Each of them bore responsibility.
“The individuals, as leaders of the state, had a personal and individual responsibility,” said Shawcross in 1976, adding that “The great mass of German citizens must accept a collective responsibility for that which governments do in the name of the state to which they belong. But the Russians also should have been in the dock as well as the Germans – they were guilty of a great many other crimes too, although we did not sufficiently appreciate it at the time.”
These events now belong to history. The men (and women) who were responsible are no longer alive to be held to account. The lesson of Shawcross’ words, however, lives on. Our consciences must remain ever vigilant to ensure that such events are never repeated.
Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com