Setting the Record Straight on the Soviets at Nuremberg

June 17, 2020
View_of_judges_panel_during_testimony_Nuremberg_Trials_1945

Francine Hirsch, Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II (Oxford University Press, 2020)

 

Even before the collapse of the Axis powers at the end World War II, the soon-to-be-victorious Allies began contemplating how to address the enormity of the atrocities committed by the Third Reich, including the Holocaust, following Germany’s launch of the second aggressive war to ravage Europe that century. Various powers contemplated a number of proposals, ranging from summary executions to the de-industrialization of the German state. Ultimately, but not without intense debate, the Allies made a collective decision to hold individual perpetrators criminally accountable before an international tribunal, on the theory that, in the words of the Nuremberg Judgment,

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

International law would never be the same.

The International Military Tribunal was the product of the London Agreement of 1945, a quadripartite accord between the United States, France, the United Kingdom, and the Soviet Union. The treaty envisioned that individuals “whose offenses [had] no particular geographic location” would be tried by a tribunal sitting in Nuremberg, Germany, for war crimes, crimes against the peace, and crimes against humanity. Although the Allied Control Council was headquartered in Berlin, in part to appease the Soviets, the city of Nuremberg was chosen for the trials because it had a courtroom equipped with adjacent prison facilities that survived Allied bombing. The city’s association with the odious Nuremberg Race Laws, which deprived Jewish citizens of many citizenship rights, and Nazi party rallies added a symbolic touch to this choice. It was anticipated that those in the dock would include key government ministers, members of the military, and industrialists who had helped Germany to rearm after World War I.

 

 

In the end, the only man of business indicted by the Nuremberg prosecutors was Gustav Krupp, whose firm — the Krupp Group — produced essential war materiel with slave labor. He was, however, deemed medically incapacitated and so was dropped from the indictment. An American proposal to substitute his son Alfried was rejected. Under the agreed-upon scheme, lesser war criminals were to be prosecuted in occupation courts nearer to where their alleged crimes were committed. This is how Alfried, alongside his managing board and other colleagues, was eventually convicted of war crimes and crimes against humanity. Indeed, the allies held hundreds of other trials around the European and Pacific theaters in the postwar period. But none was as consequential as the Nuremberg Tribunal.

The story of the Nuremberg trial — hailed as “the most significant tribute that power has ever paid to reason” — has already been well told. There are dozens of memoirs by key protagonists, exhaustively researched historical treatises, and even Hollywood films portraying these monumental events. One unique contribution comes from Sen. Christopher Dodd, whose father served on the American prosecutorial team. Dodd published his father’s correspondence, which offer behind-the-scenes anecdotes embedded within poignant love letters to his wife.

In all these accounts, the Soviet contingent often appears as little more than a caricature — “beasts and worse” in the words of Dodd père. Even as a professor of international law, I must admit that I have succumbed to this over-simplification. In my genesis story of international justice, I tell three anecdotes involving our erstwhile ally to my students. Firstly, I make mention of the fact that Joseph Stalin —  the dictator who, true to his nom de guerre, ruled the Soviet Union with a stal (“steel”) fist from 1929 to 1953 — wanted to execute all Nazi officers (not entirely accurate, as it turns out, and a position once favored by Winston Churchill, to be fair). Secondly, the Soviets make an appearance in connection with my discussion of how the American concept of conspiracy entered international law. That doctrine, considered the darling of the prosecutor’s nursery, allows all members of a criminal conspiracy to be prosecuted solely for entering into a criminal agreement as well as for any criminal acts committed in furtherance thereof. In this narrative, I quote from the essential Reaching Judgment at Nuremberg by Bradley F. Smith, who describes the reception of this expansive prosecutorial tool by our postwar allies as follows:

The French viewed [the U.S. conspiracy doctrine] entirely as a barbarous legal mechanism unworthy of modern law, while the Soviets seemed to have shaken their head in wonderment — a reaction, some cynics may believe, prompted by envy.

Finally, I discuss the pointed dissent of the Soviet judge to the acquittals of two indicted organizations — the Reich Cabinet and the General Staff/High Command — and three Nazi defendants, and the leniency accorded a fourth. Judge Iona Nikitchenko was particularly incensed at the acquittal of Hans Fritzsche, whom the Soviets had captured and who had worked under Joseph Goebbels (who committed suicide in the waning days of the war) as the director of radio propaganda. The other judges determined that Fritzsche was too junior to be a part of the conspiracy to wage war and did not himself incite genocide. In his dissent, Nikitchenko explained:

The dissemination of provocative lies and the systematic deception of public opinion were as necessary to the Hitlerites for the realisation of their plans as were the production of armaments and the drafting of military plans. Without propaganda, founded on the total eclipse of the freedom of press and of speech, it would not have been possible for German Fascism to realise its aggressive intentions, to lay the groundwork and then to put to practice the war crimes and the crimes against humanity.

Leave it to the Soviet judge to recognize the central role that propaganda plays in any military enterprise. (Fritzsche, incidentally, was later convicted by a German denazification court). Although not as famous as that penned by India’s Judge Radhabinod Pal, who served on the International Military Tribunal of the Far East in Tokyo, the Soviet dissent at Nuremberg tapped into popular sentiments of those watching the trial and reflected the prevailing media opinion of the press corps.

Beyond these three anecdotes, most standard Western accounts of the Nuremberg proceedings fixate on the brilliant Justice Robert H. Jackson, the U.S. chief prosecutor on loan from the Supreme Court, as well as the instrumental role of the United States in launching the field of international criminal law. While such accounts satisfy American national pride, they are both inaccurate and incomplete.

Professor and historian Francine Hirsch of the University of Wisconsin-Madison seeks to set the record straight in a wonderful new book, Soviet Judgment at Nuremberg: A New History of the International Military Tribunal After World War II. Drawing upon original research from newly available and under-studied Soviet archives, Hirsch offers a rich narrative account of the convening, proceedings, and aftermath of the Nuremberg Tribunal that challenges several of the central myths that many, myself included, have accepted. Most importantly, the book surfaces the foundational role played by Soviet jurists in the convocation of the first truly international war crimes tribunal and the inauguration of the international criminal law canon.

Although focused on the so-called “trial to end all wars,” the book also covers the inauguration of the Cold War through the vehicle of a courtroom drama. Hirsch reveals that the Nuremberg trial was, in many respects, “the last hurrah of wartime cooperation for the Allied powers” and “an early front of the Cold War.” This is not mere hindsight. Rather, these seismic geopolitical shifts were palpable to all involved in the trial. Indeed, they prompted Hermann Göring — arguably the highest-ranking defendant tried at Nuremberg — to quip that, “the only allies who are still allied are the four prosecutors, and they are only allied against the defendants.” In other words, it was apparent to all that by the time of the trial, the allies were no longer allied, except in their desire to convict the defendants.

Many of the western protagonists at Nuremberg are household names (at least within the households of scholars of international law): Jackson, of course, his fellow American Francis Biddle, France’s Henri Donnedieu de Vabres, and Britain’s Sir Hartley Shawcross and Sir David Maxwell-Fyfe. In her book, Hirsch introduces us to key, lesser-known Soviet characters, including the creative, brilliant, and largely unknown Aron Trainin. A Russian Jew and legal contemporary of Raphael Lemkin (who coined the term ’genocide’) and Hersch Lauterpacht, Trainin is credited with pushing for the establishment of an international court following the war in his academic writing and well before the allies were on board with the idea, introducing the concept of crimes against the peace (or ‘crime of aggression’ in today’s lexicon), and advocating for the creation of a permanent international criminal court to try future war criminals.

Trainin was compelled by a genuine belief that international law could be a force for peace and that the Soviet Union could play a progressive role in its development. He also championed the concept of complicity (having written a book on the topic), critiqued the defense of superior orders, and supported an expanded reach for the charge of crimes against humanity. Although the Soviets did not participate in the work of the U.N. War Crimes Commission, which hammered out the postwar justice agenda, many of Trainin’s ideas were presented thereby a Czech envoy, Bohuslav Ečer, who was familiar with Trainin’s academic work. As a result, many of Trainin’s ideas were eventually picked up by key justice architects among the allies — often without attribution.

Equally as influential was Andrey Vyshinsky who, in his youth, bonded with Stalin over revolutionary theory while they were both imprisoned in Baku and who was entrusted with prosecuting Stalin’s first major show trials, including the Moscow Trials of 1936 to 1938 following the Great Purge. Together, Trainin and Vyshinsky crafted the Soviet Union’s approach to postwar justice. Other Soviet figures included the Soviet chief prosecutor Roman Rudenko and the aforementioned Nikitchenko, who was originally pegged to lead the prosecution, but who ended up on the bench after a quick game of musical chairs. Rudenko and Nikitchenko were career Soviet bureaucrats who were clearly in over their heads in the company of the legal luminaries who had been dispatched to Nuremberg. Through meticulous research, Hirsch demonstrates that there were no firewalls between the Soviet negotiators, judges, or prosecutors (or with members of the Soviet press corps for that matter). All were operating according to common instructions (and under intense surveillance) while in Nuremberg. As Hirsch describes it, by the time they all got to Nuremberg as members of the Soviet delegation, “while Jackson was calling his own shots, Nikitchenko and Trainin had marching orders.”

It is well known that the Americans and the British originally leaned towards punishing Nazi leaders by ‘executive decree’ (i.e., without legal process). Although Stalin would have executed upwards of 50,000 German officers, he was keen on holding a didactic trial of the Nazi masterminds. He recognized the value of such a proceeding to expose the enormity of the Nazi enterprise, foster Soviet unity, highlight the immense sacrifices made by the Soviets to defeat the Nazis, vindicate the national suffering, establish a legal claim to “reparations in kind” from Germany (a troubling euphemism for forced labor), and position the Soviet Union as a postwar international power (even as it was still reeling from wartime devastation at home). While the allies were debating the various juridical and extra-juridical options, the Soviets had already put such ideas into action, having hosted the first national trials of Russian and Ukrainian members of the dreaded Einsatzgruppen death squads, who murdered more than 7,000 Soviet citizens, most of them Jewish, as well as the first domestic trials of German nationals held by any allied power (the “Kharkov Trial”). The other allies finally came around to the idea of a two-tiered penal process: international trials for the Nazi big fish as envisioned by Trainin and prosecutions of lower-level defendants in the allies’ respective occupation zones. However, Stalin’s vision of a propagandistic show trial with pre-determined outcomes was fundamentally at odds with the legalistic traditions of the other allies, who were operating under the deeply ingrained assumption that, if the captured Nazis were to be put on trial, the defendants were entitled to present a defense and enjoy strict due process. This marks just one of many legal and cultural clashes within the quadripartite alliance, both in and outside the courtroom.

As the book unfolds, it is fascinating to see the Soviet delegation gradually come to the realization that they are entirely unprepared for the daunting task that had been put to them. Stalin insisted on exercising centralized control of the proceedings from his perch in Moscow, which included ideological wordsmithing, masking Soviet abuses and other inconvenient truths, and highlighting “the capitalist underpinnings of fascism.” This, coupled with the Soviet team’s relative lack of experience in multilateral settings and a dearth of vetted translators and interpreters, left the delegation repeatedly outmaneuvered as events rapidly unfolded around them. Indeed, Hirsch demonstrates that the Soviet delegation frequently found themselves without instructions (or with instructions that were utterly unattainable), out of the loop, “living a logistical nightmare,” or otherwise incapable of effectively advancing the outsized Soviet agenda. Needless-to-say, the Soviet delegation recognized that there might be devastating consequences were they to freelance in the way Jackson and others from the west were relatively free to do.

Nonetheless, the Soviet participants eventually hit a certain stride. For one, they contributed a number of key documents outlining the Nazi plan for lebensraum (“greater living space”) and the mass slaughter of civilians. This was consistent with Jackson’s controversial strategy of relying heavily on captured documents rather than potentially unreliable witnesses in order to “prove incredible events by credible evidence.” This necessitated upwards of three tons of text to be read into the record. Midway through this process, Rebecca West, who covered the trials for the New Yorker, described the proceedings as “a citadel of boredom” whose inhabitants were in “the grip of extreme tedium.” These observations foreshadowed the famous turn of phrase coined by Hannah Arendt — “the banality of evil” — as she later observed the trial of Adolf Eichmann in Jerusalem. By contrast, Rudenko offered the moving testimony of percipient witnesses (including the poet Avraham Novershtern, the first Jewish witness) and also surprised all in attendance by calling to the stand several highly-placed German prisoners of war who had turned “state’s witness” while in custody. (Query what “incentives” might have been employed in this regard). Allowing these survivors and insiders to bear witness brought the Nazi enterprise alive for the judges, the press, and the public at large.

Notwithstanding the Soviets’ many legal and evidentiary contributions, there is no question that their involvement in the proceedings presented a “threat to the legitimacy of Nuremberg and to its legacy.” Although none of the allies arrived in Nuremberg with entirely clean hands (allied firebombing and the chilling parallels between colonialism and lebensraum come immediately to mind), the Soviets’ were particularly soiled. Germany and the Soviet Union had jointly invaded Poland with the intent of carving up Eastern Europe pursuant to secret protocols of the 1939 German-Soviet Nonaggression Pact (the so-called Molotov-Ribbentrop Pact). The Soviet Union was engaged in deportations in Poland, Hungary, and elsewhere even as the tribunal was hearing evidence of the Nazi deportation program. Soviet-occupied Berlin was being contemporaneously plundered following the city’s surrender. Prisoners of war in Soviet custody were mistreated and an untold number of German women (estimates range from 80,000 to 130,000) were raped by their supposed Soviet liberators.

In addition, the Soviets recklessly insisted on trying to pin the Katyn Forest Massacre—which left at least 11,000 Polish officers dead — on the Germans in the indictment. History has proven that the massacre was actually the work of Soviet operatives, who planted evidence and then falsified subsequent investigations in order to shift the blame to the Germans. It was only through targeted (some would say complicitous) interventions by the British and American participants that the evidence of Soviet responsibility did not come to light during the Nuremberg proceedings. In the end, the judgment was silent about the Katyn massacre, leaving it to another day for the truth to emerge. All told, opportunities abounded for the accused Germans to raise the defense of tu quoque (“you also”). Remarkably, evidence uncovered by Hirsch suggests that many members of the Soviet delegation were unaware of the truth of these matters and so were essentially flying blind in Nuremberg.

A lamentable casualty of the deteriorating four-powers alliance was the proposal for a second international military tribunal to bring to justice the German financiers and industrialists who had bankrolled and profited from the Nazi enterprise — another key Soviet aim. The Americans refused to participate in a second international tribunal in the European theater, largely scuttling the Soviets’ plan to expose the connections between American and German industrialist circles and indelibly link capitalism and fascism. Although the Americans eventually prosecuted a number of industrialists in their zone of occupation under Control Council Number 10 — including principals of the Flick Concern, IG Farben, and the Krupp Works — the West soon saw German industry as a critical bulwark against the spread of Soviet communism and later rehabilitated a number of defendants, including Alfried Krupp. The Soviet concept of corporate responsibility in some respects presaged the newest front of today’s human rights litigation: cases seeking to hold corporate actors liable for enabling, profiting from, and being complicit in human rights abuses around the world.

The book ends in the immediate post-trial period with the halting efforts to make permanent some of the principles expressed at Nuremberg, including the creation of a permanent international criminal court that would offer an antidote to the victors’ justice critique that dogged the postwar proceedings then and now. Notwithstanding steadfast efforts by Trainin, Stalin soured on his cosmopolitan ideas about multilateralism as ideology eclipsed law. By now, Trainin had fallen out of favor with Moscow, but managed to avoid a worse fate. In 1950, the Soviet representative walked out of deliberations before the U.N. International Law Commission, which ended up concretizing many of Trainin’s ideas, including when it came to rectifying some of the shortcomings of the Nuremberg Charter and judgment. Decades later, in 2000, Moscow signed the International Criminal Court Statute, but later “unsigned” it in 2016 when the court’s Office of the Prosecutor concluded that the situation in Ukraine constituted an international armed conflict. For its part, the United States — which came to the idea of international justice late in the postwar period — retained until very recently a leadership role in international justice efforts, supporting institutions established to hold accountable those who would commit the worst crimes known to humankind, whether it be in the former Yugoslavia, Sudan, or Myanmar.

Hirsch’s book is particularly thought-provoking and timely at this moment in history, given the evolving relationship between the United States and Russia and the unfortunate reality that many powerful members of the international community have retreated from the project of international justice first launched at Nuremberg. The International Criminal Court is now poised to investigate crimes by several of World War II’s victorious allies — alleged custodial abuses by British personnel in Iraq and American personnel in Afghanistan and elsewhere, and alleged war crimes and crimes against humanity committed by the Russians in Ukraine and Georgia — potentially signaling a new kind of victor’s justice. The focus on U.S. personnel has provoked an unprecedented backlash from the Trump administration, first launched by former National Security Advisor John Bolton — who suffers from a congenital antipathy toward the court — in a 2018 speech at the Federalist Society. After Bolton’s ouster, Secretary of State Mike Pompeo continued this assault, most recently supporting the imposition of sanctions on international civil servants working at the court. This illiberal approach puts America squarely in the camp of authoritarian states that would prefer impunity to accountability, and that would undermine the independence of prosecutors and judges — values that all Americans hold dear and that constitute essential democratic principles. It also soils the U.S. legacy at Nuremberg, of which we have heretofore been deservedly proud.

Hirsch’s book reveals that the Russians should likewise embrace, rather than forsake, their contributions — at once consequential and controversial — to the establishment of a global system of international justice. Indeed, Hirsch brilliantly accomplishes her central aim: “putting the Soviet Union back into the history of the Nuremberg trials.” In so doing, the book offers a valuable new addition to the Nuremberg canon, filling a gap in the literature with new research, an engaging narrative style, a dose of intrigue, and delightful details (such as the appearance of the bikini within the Nuremberg fashion scene). The book will be most appealing to experts, who will be fascinated by this fresh and distinctive perspective on well-known events, but the engrossing style will rivet more casual World War II enthusiasts. All told, Hirsch’s gift to the Nuremberg literature leaves us with the distinct impression that: “the full story [of Nuremberg] is far messier than the myth — but it is no less heroic.”

 

 

Beth Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School where she teaches human rights, international criminal law, and transitional justice. Prior to returning to academia, she was deputy to the ambassador-at-large for war crimes Issues in the Office of Global Criminal Justice in the U.S. State Department under Secretaries Hillary Clinton and John Kerry. She is a graduate of Stanford University (B.A.), Yale Law School (J.D.), and Leiden University (Ph.D.).

Image: Wikicommons (Photo by United States Army Signal Corps)