I just finished studying David Irving's excellent research on the Nuremberg Trial and i must said, it is a very excellent historical work despite his controversial reputation
List of double standards and injustice of NUremberg Trial which made it no difference with a Kangaroo Trial
a)When John J. McCloy, a later military governor of Germany, suggested
that the late president had surely been thinking of a proper trial
as the only basis for the supply of forced labour, Morgenthau angrily
rounded on him, protesting that this was the first time that he had
heard such a limitation suggested. One of his aides, Joseph Dubois,
chimed in that in view of the Yalta decision there did not appear to be
any need for trials at all. Besides, a Gallup poll had shown a large percentage of Americans in favour of using the Germans for slave labour.
Jackson thumped the desk with his fist. ‘Just watch the Gallup poll
ratings change when the first slave-labour horror stories start coming
out of Russia!’
Quietening, he prophesied, ‘The problem of sending labour to Russia
is that I don’t think it would ever come back.’ More pertinently he
pointed out that the Geneva Convention provided no basis for holding
prisoners-of-war as reparations once peace had been concluded.
Morgenthau’s man Dubois protested at such legalisms. ‘We already
know that the S.S. and Gestapo are guilty, a trial would be farcical!’
Page 78-79, If We Can't Lynch Them, Flog Them, David Irving's Nuremberg the Last Battle
b) Pandering to domestic public opinion, Jackson insisted however that
all the prospective defendants be denied the privileges due to their
rank as prisoners-of-war and that they be treated with the rigours due
to major criminals (in itself an infraction of international law).
Page 97, The Origin of 6 Million, David Irving's Nuremberg the Last Battle
c) HOW GREAT were those losses? inquired Jackson, seeking a figure to use
at the coming trial. ‘Six million,’ responded Dr Robinson, and indicated
that the figure included Jews in all Nazi-occupied lands ‘from
the Channel to Stalingrad.’
Jackson noted that day:
I was particularly interested in knowing the source and reliability of his
estimate as I know no authentic data on it.
Page 100, The Origin of 6 Million, David Irving's Nuremberg the Last Battle
d)In mid-June a committee of American psychiatrists and neurologists
contacted Jackson, asking permission to examine the prisoners and to
make sound recordings of the interviews. Their premise was almost
racist in its implications: ‘Aggressive leaders have been recurrently
produced by the German people, who then follow them blindly. Detailed
knowledge of the personalities of these leaders would add to our
information concerning the character and habitual desires of the German
people, and would be valuable as a guide to those concerned
with the reorganisation and re-education of Germany.’
Rather unfairly, the writer proposed that these examinations should
‘not be utilized to support pleas of insanity’ the results should remain
secret until after the sentences had been executed. And, as for that, the doctors urgently recommended that
‘the convicted be shot in the chest, not in the head,’ as it would be desirable to have a detailed
autopsy, especially of an undamaged brain....
Page 101-102 The Origin of 6 Million, David Irving's Nuremberg the Last Battle
e) General Nikitchenko
who was to figure both as the Soviet chief prosecutor and negotiator at
the London talks and as the Soviet judge at the Nuremberg trial-said
with refreshing candour: ‘We are dealing here with the chief war criminals
who have already been convicted and whose conviction has already
been announced by both the Moscow and the Yalta declarations
and by the heads of the governments.’ He objected, he said, to the
‘fiction’ that the Tribunal’s judges were disinterested parties-they
would have read the newspapers like the rest of the world, and the
guilt of these criminals was perfectly clear. The judges should merely
decide the just punishment of the criminals without time-wasting preliminaries;
as for the prosecutors, their job would be, in Nikitchenko’s
view, merely to assist the judges. That was the Russian way of doing
things....
Page 107-108, An architect of a new international law, David Irving's Nuremberg the Last Battle
f) THIS WAS of course a conference of the victors; their purpose was to
choose the defendants, and to draft the new laws they were to be accused
of having broken, and the rules of the court which was retroactively
to apply those laws.
The Germans were not represented at these sessions, so the trial
would start with the dice already loaded against the defendants.
Page 109, An architect of a new international law, David Irving's Nuremberg the Last Battle
g) The final indictments
resulting from these London conferences would narrowly state
the crime to have been ‘aggression or domination over other nations
carried out by the European Axis in violation of international laws
and treaties’ – a definition that saved the Russians particularly from
embarrassment (the Russian representative had insisted that the Tribunal
limit the charge even more narrowly to ‘aggressions started by
the Nazis in this war’.) The Soviet conscience was troubled by its own
actions against Poland and Finland in the first years of the war, while
British consciences were no less exercised by the knowledge of Churchill’s
.... plans for the invasion of neutral Norway and Sweden.
Page 109-110, An architect of a new international law, David Irving's Nuremberg the Last Battle
h) Returning now to Nuremberg in ...., Kempner swore revenge –
revenge at any price. In doing so he put behind him the strict ethics by
which he had been brought up in the law in Weimar, Germany. Preparing
the prosecution case, he frequently resorted to threats and coercion
to get witnesses to change or withdraw inconvenient evidence:
Dr Friedrich Gaus, Ribbentrop’s legal adviser, was one witness thus
intimidated: he would be suddenly stricken with ‘amnesia’ about the
Ribbentrop–Molotov Pact, the signing of which he had actually witnessed
in Moscow.... Gaus later testified that Kempner had threatened
to turn him over to the Russians. In the files there is also a memorandum
from Colonel Telford Taylor warning Kempner that he was
not to promise inmates early release as an inducement during interrogation.
...
Page 141, Meeting of two traitors, David Irving's Nuremberg the Last Battle
i) Two years after the trial, Allen Dulles would reveal to the
Jacksons that Kempner, by now working for some far-left group in
Germany, was trying to extort information from various Germans in
an attempt to blackmail both him and his brother John Foster Dulles,
the secretary of state; in exchange for such ‘testimony’ Kempner had
released a certain war criminal suspect, said Dulles. Allen Dulles was
by then chief of the new C.I.A....
Page 143, Meeting of two traitors, David Irving's Nuremberg the Last Battle
j) LATER THAT day the Russian prosecutor Nikitchenko stunned them all
by baldly announcing that Stalin had now appointed him as the Soviet
judge for the trial, and that he would be flying to Moscow immediately
to organise his staff. Lieutenant-General Roman A. Rudenko
would take his place as prosecutor at these consultations. Even Jackson
raised his eyebrows at this. ‘The Russians did a strange stunt,’ he observed
in a letter to his wife. ‘Replaced Nikitchenko as prosecutor
with one Rudenko, and made Nikitchenko a judge.’ In case Mrs Jackson
did not get the point he explained: ‘He picked out the men to be prosecuted,
so it is hard to see how he can be an impartial judge.’...
Page 145, The London Agreement, David Irving's Nuremberg the Last Battle
k) There is anecdotal evidence that in the forests outside Nuremberg the
prosecutors made a bonfire one day of all the mitigating documents
which would have aided the defence case. Volumes of private papers –
among them Hitler’s private correspondence with Eva Braun, her private
diaries, and the diaries of Hans Lammers, Heinrich Himmler,
and Hermann Göring – had however vanished into the hands of American
and French looters and plunderers who had descended on the
valleys around Berchtesgaden.... The British had seized General Alfred
Jodl’s diaries at Flensburg, but many of these too had vanished
into unknown hands. Robert Kempner illicitly came into possession
of the entire diaries of Alfred Rosenberg; these Kempner would retain
hidden until his death, making them unavailable to Rosenberg for his
defence; even now only the iceberg’s tip of them has ever been published.
...
Page 154, The London Agreement, David Irving's Nuremberg the Last Battle
l) On August .. Jackson was handed
a sober staff analysis on this personality, which concluded with the
statement that the British admiralty had determined that ‘there is
insufficient evidence to sustain a charge against Dönitz,’ and had abandoned
its efforts in this direction. The author of this analysis, a naval
officer, added with a trace of sarcasm: ‘Unless additional information
implicating Dönitz in political, as distinguished from military acts of
criminality has been uncovered in the Foreign Office or elsewhere, it
is believed that there is insufficient evidence to convict him or warrant
his being tried. If, as it has been somewhat facetiously said, we should
have some defendants whom we can acquit, then we should be wary
lest we afford other defendants the opportunity to profit by such defense
evidence as Dönitz undoubtedly can introduce on his own behalf.’
Thus this officer, writing on behalf of the U.S. navy department, clearly
endorsed the British admiralty’s view.... We shall see later with what
methods the prosecution sought to build up a false case against the
admiral.
Page 156-157, The London Agreement, David Irving's Nuremberg the Last Battle
m) Explaining later why the court was called a military tribunal, Jackson
wrote that the most compelling reason was to distinguish it from civil
courts everywhere – so that it would not be subject to any precedents,
and so that its proceedings could not in turn create a precedent for
civil courts elsewhere; moreover, the court was sitting in a country
under military occupation, with no civil government.... It was unfortunate,
as he himself admitted, that the Tribunal itself was purely a
four-power court, and that the victors must thus seem to be sitting in
judgement on the vanquished; but he argued, ‘The scale of their attack
leaves no neutrals in the world’ – a view with which many countries
other than the Big Four would emphatically have disagreed.
Page 164, THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
n) Not only were the Allies seeking to convict their enemies under laws
which had not existed at the time of the alleged offences, but under
the London Statute they were specifically ruling out a number of obvious
defences which would have immediately been raised: the German
defendants might not plead that as soldiers in a Führer state they
were bound to obey the orders that were issued to them; nor could
they point out that on more than one occasion each of the prosecuting
powers had committed precisely the same crimes as they were alleging
against the Germans (the defence of tu quoque.)
Page 166, THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
o) The Tribunal would hold that the London Statute was a valid exercise
of the legislative power of the only sovereign authority for Germany,
and Lord Justice Lawrence, the British president of the Tribunal,
would recall that it had been laid down long before by Lord
Mansfield in a famous case, Campbell v. Hall, that ‘conquest’ invested
the conquering power with the prerogative right to ‘make what law he
pleases.’ It was a case which Adolf Hitler might equally have invoked
in his defence, had he shown much inclination to be guided by case
law. In vain would the defence lawyers argue that this was ex post facto, or
retroactive, justice. ‘As far as crimes against the peace are concerned,’
they declared, ‘the current proceedings have no lawful basis in international
law, but are a trial based on new criminal law, a law drawn up
only after the actions complained of.’...
They argued further that the cast-iron principle of nullum crimen sine
lege, nulla poene sine lege (in the absence of a law there can be neither
crime nor punishment) was a general rule, which in normal circumstances
would militate against the punishment of people for acts which
were not against the law at the time committed. Nuremberg, said the
Tribunal simply, was an exception.
Page 168, THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
p) AS ALREADY mentioned the lawyers who had drafted the London Statute
had taken good care to exclude in advance the defence of ‘higher
orders.’ Article . of the Statute had laid down that the official position
of a defendant whether as a head of state or as a responsible official of
a government department would not be accepted either in exculpation
or in mitigation of punishment. Under Article . moreover it was
allowed that where a defendant could prove he had acted on the orders
of his government or a superior officer this would not be accepted
as exculpation, but could be used in mitigation of sentence if
this appeared proper in the opinion of the Tribunal.
This rule conflicted with the manuals of military law existing at the
outbreak of World War Two on both the German and the Anglo-American
side. Article .. of the German Militärstrafgesetzbuch provided: ‘If a
criminal law is violated in the execution of an order the superior issuing
that order is alone responsible. But the subordinate obeying that
order is liable to punishment as an accomplice, firstly if he exceeds the
terms of the order issued to him, or secondly if it was known to him
that his superior’s order meant committing an act which would be a
crime or misdemeanour under civil or military law.’
The Allied governments had however taken account of this problem
already, in a curious act of foresight, during ..... It had been pointed
out to the British authorities that Article ... of their Manual of Military
Law – under which, according to the Geneva Convention, all British
trials of enemy prisoners-of-war must take place – had specifically
stated since ....: ‘It is important to note that members of the armed
forces who commit violations of the recognised rules of warfare such
as are ordered by their Government, or by their commanders, are not
war criminals and cannot therefore be punished by the enemy.’
Article ... of the American Rules of Land Warfare was similarly
couched: ‘Members of the armed forces are not punished for these
crimes, provided they were committed on the orders or with the permission
of their government or commanders.’
Page 168, THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
q) AT NUREMBERG, the defence attorneys would also be prohibited from
referring in mitigation to illegal acts committed during the war by the
victors. Lord Justice Lawrence would interrupt the lawyer defending
the High Command to say, ‘We are not trying whether any other powers
have committed breaches of international law, or crimes against
humanity, or war crimes, but whether these defendants have.’
Thus lawyers were refused permission to introduce a captured British
official Handbook of Instruction on How to Conduct Irregular Warfare,
instructing commandos on how to treat German prisoners: ‘Adopt
some of the methods of gangsters.’ ‘Remember, you are not a wrestler
trying to render your enemy helpless, you have to kill.’ ‘Kick him or
knee him as hard as you can in the groin. While he is doubled up in
pain get him on the ground and stamp his head in.’ Following diagrams
in this booklet, German prisoners taken during the Dieppe raid
of August .... were trussed in such a way that every movement would
result in slow strangulation, the so-called ‘death slings.’
As for Allied saboteurs, the German High Command knew that these
men parachuted into occupied Europe with revolvers strapped under
their armpits designed to fire forwards when the arms were raised in
apparent surrender; German records contained at least one such proof,
where the saboteur’s parachute had failed to open and circumstances
allowed the internal device to be inspected at close quarters.
Any properly constituted British or American court would have considered
this to be information of material value in assessing the background
of Hitler’s orders for the ruthless execution of commandos
and saboteurs falling into German hands.
Page 168-169, THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
r) A paralysing regime of psycho-terror had been enforced on the defendants
even before the indictment was served on them. They were
held in solitary confinement in the Nuremberg jailhouse. Like the
millions of ordinary German prisoners in American hands, they were
kept on a near-starvation diet. Field-Marshal Keitel, sixty-three years
old, lost thirty-three pounds between May and October, eighteen of
them during the eight weeks after his arrival at Nuremberg. Hess was
an empty husk of his former robust self. Ribbentrop was gaunt, hollow-
cheeked and frail. It was self-evident that all of these factors were
not without effect on the prisoners’ health, morale, nerves, and powers
of resistance. ‘The conditions we are living under here,’ wrote Keitel
in his private papers, ‘are not enviable given the last five months of
uncertainty about the fate of our people, our family, and our own
person. Apart from the interrogations we hear nothing whatever about
what is going on in the world outside the prison and even then only by
chance. We have been allowed to write letters and postcards for two
months now; no replies have been received.’
Page 172 THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
s) Thus the International
Military Tribunal which had never been international in character,
but four power, or even more narrowly, a victors’ tribunal, was
no longer military either.
Page 173 THose Boys are out for Blood, David Irving's Nuremberg the Last Battle
t) As the expert on international law Dr Alfred-Maurice de Zayas has
pointed out, although the tribunal regarded itself as a court of international
law, in reality it was an inter-Allied occupation court as Germany
had not agreed to the establishment of such an extra-national
authority.... The make-up of the Tribunal flew in the face of the separation
of powers which democracies had preached ever since the French
revolution as the sole guarantee for the individual against the excesses
of the state. ‘If legislator, judge, and prosecutor are one and the same
person,’ naval judge advocate Otto Kranzbühler, Dönitz’s attorney,
later argued, ‘this fact alone will be enough to entertain powerful misgivings
as to the outcome of their activity.’...
Jackson, Maxwell Fyfe, Falco, and Nikitchenko had all participated
in the negotiations on the London Statute: together these jurists had
drafted the retroactive laws to be applied and had even compiled the
list of defendants. Jackson and Fyfe would now surface in Nuremberg
as chief prosecutors; Nikitchenko first as chief prosecutor and then as
the Soviet judge, and Falco as the French alternate judge. On top of
this was the fact that Francis Biddle, who would appear here as judge,
had drafted a memorandum in his capacity as U.S. attorney-general at
the time of the Yalta conference in which he had set out basic propositions
for the Statute and added the declaration that in his view certain
Nazi organisations were criminal. ‘It would be turning a blind eye on
harsh reality,’ said Kranzbühler, ‘if one were to argue that under these
circumstances the judges were independent and unprejudiced.’ In any
other legal system it would have been possible to reject such judges
because of their evident bias. At Nuremberg however this relief was,
said Kranzbühler, denied to the defence attorneys by the Statute itself.
...
