List of injustices and double standards from David Irving's Nuremberg The Last Battle (Part Three)
29) WHILE THE prosecution had hidden assets like secret sources of Intelligence,
the defence was denied even the right to call every witness it wanted. Although twenty-one lives were at stake, the Tribunal’s view was that the hearing of too many defence witnesses would consume too much time. The witness application lists were rigorously pruned. Jodl applied for nineteen, and was permitted four. In an international trial complicated by the involvement of a dozen European countries,
only one non-German witness, the Swede Birger Dahlerus, was permitted
to the defence. The Dahlerus memoirs, which had undergone the usual editorial treatment to make them suitable for publication in the climate of post-war Europe, were introduced as evidence. But for many years after the war the British government kept secret its entire contemporary file on the negotiations that Göring had conducted
through Dahlerus to preserve the peace – releasing the file only years
after the rest of its contemporary documents; the file revealed that in
1943 the British government had tried to blackmail Dahlerus into silence. [613]
Page 278
[613] See the FO dossier, ‘Translation of Report of Negotiations between
Great Britain and Germany,’ Nov 16, 1942–Apr 16, 1943 (PRO
file FO.371/34482).
30) Despite their overt show of impartiality, the members of the Tribunal were only human. They were the representatives of the conquering powers, come together to pass judgement on the defeated enemy; and all their black gowns, their gold braid, their impassive demeanour, and their legal prose could not alter that. They had arrived in the same planes as the prosecutors; they dined in the same hotels; they could not, as the German saying has it, jump over their own shadows. They were identified wholly with the prosecution – indeed, the president of the Tribunal, Lord Justice Lawrence, habitually and without aforethought used the letterhead of the British prosecuting team for his own correspondence.[622] As German naval judge advocate Otto Kranzbühler would later recall, ‘The attitude of the judges toward their duties ranged all the way from the utmost striving for objectivity down to a barely concealed servility toward the prosecution.’[623]
Page 279-280
[622] Ibid.
[623] E.g. on the letter which Lord Justice Lawrence wrote to R H
Jackson, Jul 26, 1946: the printed heading was ‘British War Crimes
Executive (ES)’, which was also used by Sir David Maxwell Fyfe and
Sir Hartley Shawcross (University of Chicago Law School, R H Jackson
collection).
31) After Andrei Vyshinsky, who had prosecuted at the infamous pre-war Soviet purge trials – Jackson called him merely ‘famous’ – had arrived in Nuremberg, he was wined and dined at the Grand Hotel, not only by Jackson and the American prosecution team that Monday, November 26, but by the Russians on the following Friday and by the British on the Sunday after that.[625] Lord Justice Lawrence and the other judges joined the guests at the Jackson junket. No properly constituted British (or German) court would have tolerated the display of such partiality.
Page 280-281
[625] The Americans held a dinner for Vyshinsky at the Grand Hotel
that Monday, the Russians on the following Friday, Nov 30, and the
British on Saturday after that, Dec 1, 1945; undated letter of R H
Jackson, ‘Thursday’ [Nov 22, 1945] (Library of Congress, Manuscript
Division, R H Jackson papers).
32) THESE AND similar exchanges show how unreliable, if not downright
deceitful, the published transcripts of the Nuremberg trials are. The
only true record is the original wire recording, which was subsequently
processed onto 2011 sound discs. The 17,077 -page mimeographed
transcript, which was of course the only record available to the judges
in reaching their conclusions, is erratic, erroneous, and incomplete; it
has moreover been doctored, in some cases quite blatantly, to the disadvantage of the defence. Thus the foregoing exchange, which is now
available in the National Archives on Nuremberg Trials disc 1440 B,
recorded from the original wire recording, was omitted from page 5661
of the mimeographed daily transcript. It was restored to the (bluebound)
printed volumes only after Milch, checking the transcripts,
protested. This happened more than once. When Robert Jackson asked Milch, ‘Did you know that Speer turned over to the United States all his
personal papers and lists including the minutes of the Central Planning Committee?’, Milch replied, ‘That is a matter of indifference to me.’ Jackson answered menacingly: ‘That will not be indifferent to you.’
This exchange vanished from the published transcript.[665] Asked by
Jackson whether he was an American prisoner, the field marshal retorted
that he was a British prisoner, who had subsequently been declared
an ‘internee’ by the Americans in violation of international law.[666]
Challenged about the lacunæ in his memory he explained to the court
that this had suffered from the severe manhandling he had received
from the British commandos after his capture ‘when I was beaten about
the head’ (by Brigadier Derek Mills-Roberts.)[667]
Page 308-309
[665] Ibid., pages 54–5; Milch diary, Jul 11, 1948.
[666] IMT, vol. ix, page 125 (NA disc 1430B).
[667] Ibid., page 88 (NA disc 1437B).
33) On this, the British lawyer agreed. ‘We must tell the Court that we
are dealing with an experienced politician. He will make the proceedings
ridiculous unless the Tribunal co-operates. The result will be that
the trial is a disaster.’ He recommended that they unofficially convey
this warning to ‘our own judges,’ adding: ‘The Allied Control Council,
for instance, is apprehensive lest Göring’s examination-in-chief do
a great deal of harm in restoring Nazi prestige.’ (Of course such passages from the secret stenographic record go a long way toward documenting how far the Tribunal was a political instrument, and how little store was to be set by its impartiality.) ‘This,’ Jackson agreed, ‘is a critical point of the trial as far as achieving its objective is concerned.’ ‘Göring,’ he stated in a further outburst to his colleagues, ‘is permitted to become a hero of the Nazis because he dares to talk back to the United States. This wins him admiration from all the Nazis who remain in Germany, and he will influence the other defendants to do likewise. I almost felt this afternoon that it would have been wiser to have shot these men out of hand.’[679]
Page 315-316
[679] Ibid.
33) THE JEWISH organisations in New York had suggested to Robert
Jackson in June 1945 that he adopt the figure of six million
victims of the Nazis. After months of reviewing the evidence he noted in April 1946: ‘The Nürnberg trial involves the murder of between four and five million people according to some estimates, and as high as six million according to others. These are apart from any persons killed in combat and apart from the persons who died as
the result of tortures in concentration camps, with the exception of
the extermination camps. For example, at Dachau 268000 were
killed.’[742] These figures were however still far short of being generally
proven.*
Page 340-341
* * This estimate was wrong. Around 75,000 prisoners were in the camp when liberated, including 43401 political prisoners and 22100 Jews. Most of these were innocent of any crime. Health and sanitation conditions in these camps were appalling. The German government now computes the overall total of deaths at Dachau 1933–45 at 31951, two-thirds of them during the uncontrollable typhus plague of the last seven months; of this total, 2226 died in one month after the Americans assumed control of the camp.
[742] Unsigned memo, Apr 20 1946 (Library of Congress, Manuscript
Division, R H Jackson papers, box 103, ‘misc.’).
34) THE JUDGES began deliberations on their final opinion behind
closed doors on June 27, 1946. Coupled with their
confidential discussions on the verdicts and appropriate penalties
for each defendant, these deliberations developed into a rather
longer task than they had anticipated. They were now settled in however
and rather enjoyed the life here after all. The intention was that these deliberations should remain for ever secret – that the outside world should never discover what reasons led to the acquittal of these men, and the hanging of those. Among the private papers of the American judge, Francis Biddle, are however his
daily notes taken during their deliberations. It is astonishing, even rather
horrifying, to see from them how far the judges were undecided; how
much they disagreed on the very simplest issues; how they wavered and vacillated up to the last moment; and how, despite the weeks and months of hearings, they continued to nurse misconceptions for which there was no evidence at all. Their discussions reveal an almost unreal atmosphere, an unworldly detachment from the harsh realities of war and peace: at one stage the British judge, of all people, felt that a defendant needed punishing for having called for the bombing of a town
in England. Politics often overrode the requirements of law. Sentences
had to be harsh. The Tribunal was too important, said one judge, to
award light sentences.
Page 357-358
35) Francis Biddle, the American judge, felt uneasy that the opinion followed too closely the prosecution’s evidence, and tended to ignore the evidence assembled by the defence. The French judge Donnedieu de Vabres also felt the opinion was too
long. Several of the judges were unhappy about the charge of conspiracy
to wage war, since it was not known to international law and would
arguably therefore be ex post facto.
Page 358-359
36) Since Donnedieu had moved to strike out the whole count of conspiracy,
the American, Biddle, asked him for his reasons in writing. De
Vabres explained that such a charge was unknown to both European
and international law – that under international law there was sometimes
every justification for waging an aggressive war. Quite apart from
that, said de Vabres, the prosecution had not provided any proof that
the ‘common plan and purpose’ essential in any conspiracy was present
in Hitler’s operations: even the Hossbach Protocol, of November 5,
1937, which came the closest to providing such proof, showed nothing
more than Hitler convening his commanders-in-chief and ministers
and informing them of his plans for the conquest of Europe. The rest
had just clicked their heels. To talk about a conspiracy, involving many
brains, on the one hand, was to negate the whole concept of the Führer
Principle.
Page 359
37) ‘It would of course eliminate many difficulties,’ he observed, commenting
on the French viewpoint in a secret letter to Herbert Wechsler
in New York asking for advice, ‘and get rid of all the trash and looseness
gathered in the indictment’ – for which he implicitly blamed
Jackson. [779]
Page 60
[779] Francis Biddle to Herbert Wechsler, Nuremberg, Jul 10, 1946
(ibid.).
38) As for Hitler’s
attack on Greece in 1941, John Parker felt that, even though Britain
had actually got her troops into Greece first, the Tribunal could still
claim that Hitler’s attack was a war of aggression. Biddle disagreed,
arguing: ‘This is dangerous and academic and bad international law.’[781]
Page 361
[781] [Biddle:] Third Conference on Opinion, Jul 17, 1946 (ibid.).
39) Arguing on a more philosophical level Donnedieu came to the same
conclusion. He pointed out that the London Charter listed only three
crimes – against peace, war crimes, and against humanity; the conspiracy
charge had popped up in the indictment, ‘one great conspiracy,’
as he described it, ‘to commit at the same time three crimes that are
not even defined.’ The Germans had always been warned that they
would eventually be punished for substantive crimes, ‘but not for mere
conspiracy.’
Page 365
40) Lawrence summed up, finding little common ground with
Donnedieu. They were, quite simply, bound by the London Charter.
True, as drawn, it might be regarded as retroactive. ‘If it says conspiracy
is a crime, we must follow it,’ he argued. ‘We can’t take a false
view of the facts to help the situation. Ex post facto is a view of justice.’
They were occupation powers, and they could enforce whatever Charter
they wanted. Thus Judge Biddle recorded Lawrence’s arguments, adding
his own terse though probably unspoken comment in parenthesis:
‘British at their worst.’[787]
Page 365
[787] [Biddle:] Session on Opinion – Conspiracy, Aug 14, 1946 (ibid.).
41) WHEN THEY reconvened the next day Nikitchenko took the argument
in favour of retaining a conspiracy charge further; he did so at great
length, speaking for two hours. He illustrated it with the example of
the radio journalist Hans Fritzsche, one of the defendants. ‘It is no
crime to speak over the radio,’ argued the Russian. ‘But as long as he’s
a member of the conspiracy he’s guilty of the other crimes.’ As for the
objections about introducing ex post facto legislation, the Russian asked:
‘Why do we object to this innovation? The Tribunal is not an institution
to protect old law and to shield old principles from violation.’
Page 366
42) The judges all wanted to hang Julius Streicher for something, but
disagreed strongly about what. Falco, Donnedieu, Parker, Biddle,
Birkett, Lawrence, and the Russians scattered their choice between
Counts One, Three, and Four seemingly at random. In a diary note
which reveals both the mood at these sentencing sessions and the
superficial reasoning which decided between life and death, Biddle
recorded,
The Russians, Falco, and even the British, are talking of holding defendants guilty on account of the positions they held. ‘Streicher,’ Volchkov says, ‘for instance, was personally connected with Hitler.’ I blurt out that I think it’s preposterous to hold a little Jew-baiter as a conspirator because he was a friend of Hitler, or a Gauleiter, or a Nazi. Lawrence bridles and says I have bad manners. Parker pours oil on the water, and says we must limit the theory of conspiracy, and that Streicher had nothing to do with planning or conspiring.
Page 371-372
41) ON THE following day, September 3, they considered their interim verdict
on the indicted organisations. The Americans argued that the
Charter gave the Tribunal wide powers of discretion; the Russians disagreed, stating that the Tribunal was bound to make a finding on each
organisation. ‘We can only say whether an organisation is criminal or
not.’ Lawrence was worried that any finding by the Tribunal would be
used to pass summary judgements on possibly totally innocent members
of the organisations it found to be criminal. Judge Biddle thought
the whole thing stank, and noted: ‘I suggest to throw them all out. A
shocking thing, this group crime.’[795]
Page 372
[795] [Biddle:] Meeting on Organisations, Sep 3, 1946(ibid.).
42) This, wrote Biddle, was intended to be an impartial trial, and yet
clearly it was not. Until Dönitz succeeded Raeder in January 1943, he
had taken no part in preparing any wars of aggression; from 1943 onward
Germany was however ‘fighting a purely defensive war,’ Biddle
pointed out. Therefore it was impossible, argued Biddle, to find Dönitz
guilty under Counts One and Two of the indictment. (The Tribunal
reached the opposite conclusion, stating in its verdict that Hitler ‘almost
always’ consulted with Dönitz in the earlier years;[804] a claim for
which even now, half a century later, there has not been found a tithe
of supporting evidence.)
Page 385
[804] IMT, vol. i, page 351
43) All of the appeals were rejected by the Allied Control Council in
Berlin. In effect, there was no appeal. The Russian and British governments had ordered their representatives, the military governors, not to reduce the sentences. The British military governor, Air Chief-Marshal Sir Sholto Douglas, later revealed that after the sentences were
announced Ernest Bevin, the British foreign secretary, had sent him a
top-secret cable instructing him to confirm the sentences and to ignore
any appeals. The archives broadly confirm this: Fearing that the
Control Council might actually reduce the sentences, the Labour cabinet,
meeting in London on October 7, decided to send a telegram
instructing Douglas that ‘from a political point of view it would be an
advantage if there were no alterations of the sentence.’[854] This was the
ultimate injustice of Nuremberg, the final interference of the legislature
with the judiciary.
The Control Council’s records show that the appeals came before it
on October 9 and 10: after a short discussion the four wise men decided
not to hear any of the German defence counsel, and to confirm
the execution date for the sixteenth. All the petitions, whether for clemency
or the firing squad, were denied, though not before there had
been some discussion on the petition of General Jodl in particular,
since there was a degree of consensus that he had been a brave and
upright soldier and as such was entitled to stand before a firing squad.
With his instructions from London firmly in mind, Sir Sholto Douglas
argued that since the general had neither protested against Hitler’s
criminal orders nor resigned, the gallows was more appropriate. ‘In
my examination of the evidence,’ he claimed in an early version of his
memoirs, ‘ I had discovered that Jodl had been instructed by Hitler to
sign the order for the execution of the 50 RAF prisoners after the mass
escape from Stalag Luft III. He had protested to Hitler that this was illegal, but he had then done as he was told and signed the order. In doing that, so far as I was concerned, he had signed his own death warrant.’[855] He later denied that he was motivated by a sense of personal revenge. There is in fact no evidence to substantiate Douglas’ claim that it was Jodl who had signed the warrant, nor was any introduced
before the Tribunal.
Page 410-411
[854] British Cabinet to Sir Sholto Douglas, Oct 7, 1946 (PRO file PREM.8/392).
[855] Sholto Douglas, memoirs as serialised in Sunday Express, Sep 19,
1965. This author challenged him in The Times to produce the ‘evidence’
of which he had written. He did not reply, but his subsequently
published volume of memoirs omitted the whole passage.
44) At denazification proceedings in Munich in 1953 a German court
effectively cleared the late General Jodl of the Nuremberg charges and
rehabilitated him posthumously, basing its decision in part on the fact
that four years earlier the eminent and universally respected French member of the Nuremberg Tribunal, Professor Donnedieu de Vabres, had stated that in his view the conviction of Jodl had been without merit and a miscarriage of justice.[853]
Page 412-413
[859] Prof. Dr Erich Schwinger, ‘Declaration,’ Marburg, Jun 15, 1951,
reporting what Donnedieu had told him (Luise Jodl papers; copy in
IfZ, Irving Collection).
THis end the list of the injustices and double standards of Nuremberg Trial, a so called tribunal to convict war criminal and to establish justice but in effect, it was no different with a NKVD show trial. Thanks to David Irving, most of the people were finally exposed to the hypocrisy of the Allies in WW2. It would have been much better that if the Allies take the defendants and executed them summarily than to try them under laws which were created specifically to condemn the defendants which perverted the name of the justice to make it a victors' law