by Tim Townsend
Andrus asked Gerecke if he planned to hold services outside the prison, and they discussed an ancient, and badly damaged, church in nearby Mögeldorf that Gerecke could take over. “I’ll be out there sometime to surprise you,” Andrus said.
But then he issued a warning of sorts: “Chaplain, just remember, you are here to fulfill the requirements of the Geneva Convention.”
CHAPTER 6
Judas Window
Beloved, never avenge yourselves, but leave room for the wrath of God.
—ROMANS 12:19
THE NAZIS BARELY RECOGNIZED Nuremberg when they arrived. Albert Speer, an architect who had designed many of Nuremberg’s Nazi edifices, could only guess at where the streets had been. “As we moved farther into the center of the city, I grew increasingly confused, for I could no longer get my bearings in this gigantic rubble heap,” Speer wrote later. “There, in the midst of all this destruction, as though spared by a miracle, stood the Nuremberg Palace of Justice. How often I had driven past it in Hitler’s car. Trite though the idea may be, I cannot help thinking there was a deeper meaning to the fact that this building remained undamaged.”
When Andrus arrived, he had his hands full just trying to make sure the new prison was safe and manned with competent staff. The prison was in bad shape from Allied bombing, and German POWs were at work making hasty repairs. The work was being done under the watchful eyes of American GIs, but there weren’t enough of them. A trickle of occupation forces were making their way to Nuremberg, but not fast enough for Andrus, who was furious that the army had allotted only one guard for every fifty German POWs working on the repairs. At one point, Andrus’s force had gone from about three hundred men to fifty, and he wasn’t happy with the quality of soldier the army was providing him.
There was, at least, a show of force outside the Palace of Justice, with five M24 tanks armed with 75 mm guns surrounding the courthouse. Anyone coming into the court required documentation, and even the tribunal’s judges often needed to flash their papers multiple times as they moved around the grounds. Andrus was the only person in the building allowed to carry a weapon. His guards were allowed only billy clubs, which they made from mop handles and painted white.
The Palace of Justice contained 530 offices and 80 courtrooms, all mostly spared by the bombing. The U.S. Army spent $6 million—about $75 million today—renovating Courtroom 600, where the major Nazi defendants would be tried, in a building set back several hundred yards from Fürtherstrasse, the main street Speer and Hitler had once driven down.
Before the trial, GIs removed courtroom walls, creating an additional visitors’ gallery, as well as room for the world’s press. To accommodate filming, they removed chandeliers and substituted floodlights, blacked out windows, and cut holes in the wooden walls to get the best camera angles.
The prison that adjoined the courthouse was designed in a four-spoked, half-wagon-wheel structure. The army built a long, wooden covered walkway that led to an elevator that deposited the prisoners directly into the defendants’ dock in Courtroom 600.
The prison’s four wings were divided into three tiers that each held ninety-nine cells. The wings radiated out from a central rotunda where a guard, sitting in a wooden central protective nest high above the main floor of the prison, could control entry and exit in each wing. Two of the prison’s wings held civilian prisoners. The other two held Andrus’s charges—the defendants and the witnesses called to testify in the trial. Altogether, Andrus oversaw about 250 people housed in the prison cells at any one time, with a total of about 450 moving through during the year of the trial. The major Nazi defendants were held on the ground floor of Wing Four, the spoke closest to Courtroom 600.
When the prison opened in 1868, it was the most modern in Europe; it represented a new concept in resocialization that gave each prisoner his own cell, rather than placing prisoners together in community cells. The prison could be run by five guards, one in each of the four wings and one in the central hub. Its structure mimicked Philadelphia’s Cherry Hill Prison (now known as Eastern State Penitentiary), which was based on a correctional theory known as the Pennsylvania system. The theory held that criminals were products of their environments, and that solitude would make a prisoner regretful and penitent.
Each cell measured thirteen feet by six and a half feet. Opposite the wooden door, a window of unbreakable opaque glass opened only halfway to the outside world. The ceiling was slightly concave, giving it a vaulted look, and the floor was made of flagstone. The only thing in the cell not visible from the thick wooden door’s one-foot-square peephole—which Gerecke called a “Judas window”—was a seatless toilet and tin washbasin.
Opposite the guard’s large peephole in the cell door was a steel cot, fastened to the wall, with a thin straw mattress and two gray army blankets, as well as a table, and a chair. The chair was removed at night and the table was ordered specifically by Andrus to be so rickety that it would collapse under any strain. The commandant didn’t want any Nazi suicides under his watch. For the same reason, Andrus ordered ties, shoelaces, belts, and nail files to be taken away from the prisoners.
Yet despite Andrus’s careful efforts, two men managed to commit suicide before the trials even began. Leonardo Conti, Hitler’s health minister, who took part in the Nazis’ eugenics euthanasia program called Aktion T4, hanged himself with a towel fastened to the bars on his cell window on October 6, 1945. Three weeks later, Robert Ley, head of the German Labor Front, hid from his cell’s guard by sitting on the toilet. He then looped his jacket zipper to the water-tank lever and created a noose with his towel. With a pair of underwear stuffed into his own mouth to quiet the death rattle, Ley leaned forward until he strangled to death. In one of the notes he left, Ley wrote, “We have forsaken God and therefore we were forsaken by God.”
Until the suicides, there had been one guard for every four cells, which meant a check on each cell every thirty seconds. After Ley’s death, Andrus required a guard for every prisoner, meaning constant observation for each prisoner for the rest of their time at Nuremberg.
The flagstone corridor outside the Nazis’ cells stretched about 25 feet between the two walls of cells. Chicken wire, strung between the two iron catwalks on the second tier, was installed to prevent a prisoner from jumping to his death. At each end of the 175-foot-long corridor, an iron spiral staircase—also laced with chicken wire—led to the upper tiers.
The inmates on these upper tiers had more freedom and less supervision. Some were German POWs who also worked in the prison, preparing meals or doing laundry. Their cells, with larger bunks and thicker mattresses, were a major contrast to the barren cells of the major Nazi inmates’ downstairs. The second tier featured a dental clinic, a physiotherapy room, and a chapel with pews for seating fifty men.
But that chapel was off-limits for the twenty-one men on trial for war crimes. Hitler’s top lieutenants on the ground floor would have to make do with a smaller chapel, created by knocking down a wall in between two cells. Two candlesticks and some hymnbooks rested on an improvised altar covered by a white cloth. Above the altar, a small crucifix hung on the wall. A couple of wooden benches served as pews, and a U.S. Army chaplain’s kit organ sat in the corner. The little chapel was, Andrus wrote, “a sanctified place where, we are told, at least some of these men, accused of such enormous crimes against humanity, are asking forgiveness.”
Outside each cell door on the ground floor, Andrus had installed a flood lamp that the cell’s guard could shine in on the prisoner at any time. At night, each guard was instructed to point the bright light at his prisoner through the door’s peephole. A sympathetic guard might point it at the prisoner’s body. A less sympathetic guard trained it on the prisoner’s face throughout his watch.
The defendants were not allowed to turn and face the cell wall when they slept. Guards were ordered to yell at any prisoner who turned in his sleep, and even used long poles, stuck through the square hole, to prod the sleeping Nazis
awake.
Andrus housed the major defendants in the middle cells along the corridor, leaving the empty cells on each side for storage. One held the defendants’ own property. Another was stacked with freshly laundered underwear.
Guards woke up the prisoners shortly before breakfast each day as they changed shifts outside the cells. Twice a week the prisoners could take a hot shower or bath. Otherwise, each man was brought fresh water to wash with at 7:00 A.M. Then, a German POW would hand the prisoner a spoon and breakfast in a U.S. Army “meat can” through the square portal in the cell door. Breakfast usually consisted of “sweet soup,” “biscuit soup,” or “oats soup”—sometimes with noodles. Occasionally, the prisoners would get bread and sausage, oatmeal, bread with jam, or cereal. Coffee came in a standard army-issue canteen cup without a handle.
Each prisoner was responsible for keeping his own cell clean, and after breakfast, he was handed a broom to tidy up. The prisoners then received cold water to drink, or—in the winter—another cup of coffee. A POW barber, accompanied by an American guard, then visited the cells to shave each prisoner. No conversation was allowed during this process, and the barber was responsible for ensuring that every piece of equipment he brought into each cell also came out with him.
Andrus used a German POW doctor and an American doctor to check the prisoners’ health in the midmorning or in the afternoon each day. The prisoners also had frequent visits by the U.S. Army psychiatrist, Dr. Douglas Kelley (and later Dr. Leon Goldensohn) or the U.S. Army psychologist, Gerecke’s roommate, Dr. Gustave Gilbert. After a shave, the prisoners were allowed their twenty-minute walks in a small 140-by-100-foot exercise yard, where they were supposed to remain in a single file, but usually fell into groups to talk. A guard wielding a billy club followed eight paces behind while others with machine guns stood sentinel on the walls and in the towers.
Much of the prisoners’ time early on was taken up by U.S. Army interrogations, visits with their attorneys in room 57, where they prepared legal defenses, or in discussions with the chaplains. A typical dinner might have featured a simple soup followed by hash, bread or noodles, then scrambled eggs, fish, or sausage, with a dessert of chocolate or cheese and tea. Lights went out at 9:30, and the flood lamps came on.
TRYING INDIVIDUAL GERMAN LEADERS in an international court for their crimes during the war was not an obvious enterprise. In fact, the process of figuring out who to prosecute, and over what events, was arduous and took the Allies years. The creation of the Nuremberg Laws and the destruction of Jewish property and synagogues during Kristallnacht in 1938 were early examples of Germany’s wrongdoing. Then, Germany’s invasion of Poland in 1939 had violated provisions of the 1929 Hague and Geneva conventions.
Beyond that, there was the persecution, including mass killings, of Jews and others. Roosevelt and Churchill both publicly condemned the reports of Nazi atrocities in the concentration camps, promising “retribution,” but saying nothing about how justice would be administered. In 1942, soon after their pronouncement, representatives from nine governments-in-exile—Poland, Norway, Luxembourg, the Netherlands, Belgium, Czechoslovakia, France, Yugoslavia, and Greece—met in London. This body of representatives, known as the Inter-Allied Commission on the Punishment of War Crimes, rejected the idea of vengeance. Instead, they wrote the Declaration of St. James, which stated that “the sense of justice in the civilized world” required them to “place among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.”
By the end of the year, the United Kingdom, the United States, China, Australia, and India had joined the nine governments-in-exile to form the United Nations War Crimes Commission. The commission’s purpose was to investigate war crimes, identify suspected perpetrators, and collect and organize evidence against those perpetrators. In a statement, Roosevelt condemned “atrocities which have violated every tenet of the Christian faith.”
Despite the international commission’s early promise, its importance waned after Roosevelt, Churchill, Stalin, and their staffs became more involved in the war crimes issue in 1943. Eventually, the commission’s principal function became debating the legal aspects of prosecuting war crimes: How, exactly, would the Allies deal with the Nazis once the war was won?
A year before Germany’s surrender, Herbert Pell, the U.S. representative on the commission and a New York friend of Roosevelt’s, wrote to Sir Cecil Hurst, the British commissioner and chairman of the body and the former president of the Permanent Court of International Justice in The Hague. Pell was growing increasingly frustrated by the lack of legal precedent to support the commission’s mandate. “Every nation now at war with either Japan or Germany has expressed the intention of punishing those responsible for outrages. . . . A failure to provide what the people of the world consider to be justice will bring on us obloquy and mockery.” Yet, Pell, wrote, “there is no such thing as international criminal law; there is no penalty settled for the violations of the rules of war; the list of war crimes is not a sacred thing accepted since time immemorial.” He continued:
It seems to me silly to try and haul unsuitable precedents in by the ears to debate on how many murders make a massacre, or whether or not the law passed for the peace-time government or respectable nations can be applied in totally unforeseen conditions; kidnapping, for example, is against the law of France, but it seems rather absurd to invoke the provisions of French domestic law against German officers accused of deporting French civilians, as if they were ordinary kidnappers. . . .
Unless we are able to provide the machinery for swift, severe and general justice we will find our work done for us more roughly by the bayonets of invading troops. It is all very well to imagine that British soldiers will pat the heads of innocent yellow-headed children or give soap to German women; this will not be the case of the soldiers of the Continent; a man who has seen his own child starved will not appreciate the beauty of the rosy infants of Germany; a man whose sister has been sent to a German brothel will not fraternize. . . . If we want to avert general massacre, we must satisfy the popular demand for justice.
Those searching for a war crimes road map had to look back to the Hague Convention of 1899, which defined “The Laws and Customs of Wars on Land” and included a prohibition on the “no quarter” custom of attacking surrendered enemy troops. While the Hague conventions sought to regulate the customs of war, they did not restrict a sovereign state from engaging in war in the first place. Those designing the Allied response to Germany’s atrocities wanted to pin responsibility on the Third Reich simply for instigating an aggressive war. But the only directly relevant multinational precedent to support these charges was a 1927 agreement put together by the U.S. secretary of state, Frank B. Kellogg, and French foreign minister Aristide Briand.
The agreement, known as the Kellogg-Briand Pact and titled the “International Treaty for the Renunciation of War,” was written to celebrate a decade since the end of World War I. Forty-four countries, including Germany, had signed the pact to “condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.” The parties had also agreed to the settlement of all future disputes and conflicts only “by pacific means.”
The men charged with building a trial at the end of World War II debated whether the signatories of Kellogg-Briand had engaged in a crime by breaching the pact and going to war. Kellogg-Briand had not been intended to define self-defensive war as a crime. Legally, war had always been seen as neutral ground in which both sides had the same rights. Waging aggressive war had never been defined as a crime in international law.
Only when German forces began to retreat from France and Belgium in the late summer of 1944 did the Roosevelt administration begin to think seriously about postwar Germany. Nuremberg prosecutor Telford Taylor credited
“a group of New York lawyers,” working in late 1944 and early 1945, for “the ideas which led to the expanded principles of the Nuremberg trials.” The group included Franklin Roosevelt’s war secretary, Henry Stimson; Assistant Secretary of War John McCloy; and Lieutenant Colonel Murray Bernays of the Army General Staff.
At the Yalta Conference in February 1945, Winston Churchill proposed to Roosevelt and Joseph Stalin the easiest solution: summary executions. Churchill recommended that once each wanted man was caught and identified by a senior Allied military officer, he should be shot after six hours. Churchill’s proposition gained traction with Roosevelt and some in his administration who believed, as Churchill did, that putting Hitler on trial would give the dictator another global stage. In 1944, according to McCloy’s papers, American lawyers mounted a mock Hitler trial and discovered that he would have had “endless opportunity for making legal mischief, and, at worst, might [have argued] himself out of a conviction,” wrote historian Richard Overy. Stimson opposed the idea of summary executions and argued for a trial that would reflect democratic notions of justice, in contrast to the tyranny and mayhem the world had just witnessed.
In the early days of war crimes planning, while Roosevelt was leaning toward summary executions, Stimson was imagining a different course. He wrote to the president in September 1944 to state that he was “disposed to believe that at least as to the chief Nazi officials, [the U.S.] should participate in an international tribunal constituted to try them.” That same month, McCloy summoned Murray Bernays to his office for an update on where the Office of the Judge Advocate General’s staff stood on punishment of German war criminals. Bernays was a successful New York attorney before the war, and he would later become a chief intellectual architect of the Nuremberg idea.
McCloy started the meeting by telling Bernays and Colonel Archibald King, chief of the JAG’s War Plans division, that there was “considerable pressure, particularly from British sources, by persons of such importance that their advice cannot be brushed aside, to the effect that trials of war criminals, particularly prominent ones, should be extremely brief and amount to little more than indentification [sic] of the accused as the person charged, followed by a finding and the sentence.” That procedure, McCloy said, “would be especially applicable to persons of prominence whose misdeeds are well known, such as [Heinrich] Himmler. There might not be any opportunity for the accused to summon witnesses.”
