Mission at Nuremberg

by Tim Townsend

  McCloy said this option was met with “a revulsion” within the War Department. The “opposite view,” he said, was that “there should be a full trial of every accused by military commission.” The middle option, which McCloy favored, was “a brief trial of a day or two in length rather than several weeks.”

  The topic turned to how to define war crimes, and the jurisdiction of the courts that would try those who were accused of committing them. McCloy mentioned the difficulty of prosecuting German nationals who, while working for the German government, interred and killed German Jews.

  Bernays replied that as a Jew, he deeply sympathized with the German Jewish population, but that he didn’t believe their mistreatment constituted war crimes. For other governments to concern themselves with Germany’s atrocities against its Jews “would invite investigations and complaints by other nations of the treatment of Negroes in the United States, Indians by Great Britain, etc.”

  After someone briefly mentioned “international tribunals for the trial of the most important criminals whose offenses are international in character,” the three men ended the meeting with an acknowledgment that “there is at present in existence no detailed directive as to [the] investigation and trial of war crimes or the operation of military commissions.”

  It was a remarkable moment that would spark one of the most famous trials in history. Yet what was also remarkable was the reticence to try the Nazis for mass murder. The two men agreed that there was no set definition for war crimes, nor was there a working plan by the U.S. government or military yet to prosecute war criminals. Even the president was wavering, telling administration officials that he disliked “making detailed plans for a country which we do not yet occupy.”

  A week after his meeting with McCloy, Bernays wrote an influential memo that helped shape what became the International Military Tribunal. Bernays acknowledged that there were “many thousands of war criminals all over Europe,” and he suggested that the Allies lean on the legal idea of criminal conspiracy to better include those thousands of war criminals under the culpability of various Nazi organizations, such as the SS, SA, SD, and Gestapo. Once the organization was found guilty of conspiracy to commit war crimes, Bernays reasoned, anyone who could be proven to be a member of that organization was also guilty.

  McCloy liked Bernays’s proposal and invited Bernays to present it to Stimson, who also reacted favorably and showed the plan to Roosevelt. The president “gave his very frank approval,” Stimson wrote, when he recognized that “representatives of all classes of actors brought in from top to bottom, would be the best way to try it and would give us a record and also a trial which would certainly persuade any onlooker of the evil of the Nazi system.”

  In January 1945, Roosevelt wrote a memo to his secretary of state, requesting a report on the status of the work being done by the U.N. War Crimes Commission, “particularly . . . on offenses to be brought against Hitler and the chief Nazi war criminals.” Roosevelt wrote that “the charges should include an indictment for waging aggressive war, in violation of the Kellogg Pact. Perhaps these and other charges might be joined in a conspiracy indictment.”

  Less than three weeks later, Roosevelt received a position paper, approved by his secretaries of state and war and his attorney general, that foresaw an international court that would try both “the highest ranking German leaders” and the Nazi organizations they led. After this major trial, smaller trials would prosecute individual members of those organizations that had already been proven to be criminal. Once prosecutors established the membership of these lesser Nazis in the criminal organizations, their individual punishment would be gauged by the facts in each case. But Roosevelt still would not make up his mind and give the plan final approval.

  After Roosevelt’s death in April 1945, President Harry Truman assigned Justice Robert Jackson to lead the American prosecution team, and Allied troops began rounding up German war criminals from captured territory. Truman made it clear that he opposed summary executions for the Nazi elite and supported the establishment of a military tribunal. The Americans began cornering and capturing Nazi leaders in farmhouses and basements throughout the Reich. As various SS and Gestapo members were captured, they were interrogated, and the intelligence the Allies obtained led to virtual arrest warrants—most-wanted descriptions used by Allied Nazi hunters—for more Nazis, many of whom were hiding in the vicinity of Aachen:

  • MARKOW, Ernst

  Locksmith. Party and SA member since 1933. In 1934, became a member of the SS and NSKK [National Socialist Motor Corps]. Actively and brutally engaged in the Jewish pogrom in Nov. 38. Figure: Stocky. Hair: Blond.

  • KLOTTEN, Gerhard

  Influential member of the SA since 1935. Became famous during the war for his brutal treatment of PW. According to available information he intended to engage himself in agricultural work in the Bergheim area in case of an Allied victory. Figure: Thick set. Hair: Blond.

  • DREESEN, Hans

  SS officer. In July 1943 he . . . stoned an American pilot and beat him with a rubber truncheon. Residence: Jacobstrasse. Figure: Slender. Eyes: Blue.

  As the war came to a close, New York Times London bureau editor E. Clifton Daniel Jr. wrote a letter to the U.N. commission, offering an outline for a piece on war crimes that Daniel hoped someone on the commission would write for the Times magazine. “Assuming that there is to be no formal reprisal against the German people as a whole, the public would undoubtedly like to know exactly who will be punished, for what reasons, and by what methods,” he wrote.

  Around the same time, Gordon Dean, who would become Robert Jackson’s press aide at Nuremberg, wrote a memo to the Overseas section of the Office of War Information, outlining for the section’s Policy Directive the reasons why the U.S. opposed summary execution for the major war criminals. “We believe that whatever their guilt, it should be established in a fair and public trial,” Dean wrote, “and that not only should the major criminals be tried, but that they should be tried for their major crimes—crimes which are far more terrible, more far-reaching and more subtle than individual or even mass executions.” The reasons for the U.S. position, Dean said, included:

  a. Summary execution, without a documented account of their real guilt, would only result in the world’s forgetting their major sins, and these sins must never be forgotten. For current consumption the world must be able to see clearly what they did and how they did it.

  b. For benefit of future generations, their real crimes must be spread on the history books lest the same patterns be repeated when memories are dimmed.

  c. Such trials are perhaps the most promising medium for the development of precedents—now lacking because of our failure after the last war to develop an international criminal code—precedents which will be plain to all potential aggressors who might be tempted to repeat that pattern which these trials will expose and condemn. An effective international criminal law can and should result from these trials.

  d. The concept that guilt should be fairly ascertained is so embedded in the charters of the countries of the civilized that we cannot afford to abandon it here simply because the guilt is great. We fought a war because of what other powers stooped to. Now that victory is here we must not allow ourselves to stoop to their leve. [sic] In short, we want a just judgment.

  e. To try these war criminals only for individual cases of murder or theft of art treasures would be to miss completely—and the world might either never comprehend, or comprehending, forget—the bigger plan or conspiracy which was the real Nazi crime with its network of ramifications, conceived and directed by those in the higher echelons of the Nazi party.

  As Dean and others made clear, there was no legal precedent for framing charges against the captured Nazis. Thus, Allied leaders were still hashing out the best way to punish people whose criminal activities were so horrendous that laws barring those activities didn’t technically exist.

  Richard Overy wrote that the diff
iculty for Bernays, Stimson, Jackson, and the other architects of the Nuremberg framework came from defining the crimes in such a way that the laws could be applied to Hitler’s henchmen when these men’s direct participation in the atrocities at hand would be difficult to prove beyond a reasonable doubt:

  The radical solution proposed by Jackson and the American prosecution team was to include all the actions deemed to be criminal under the single heading of a conspiracy to wage aggressive and criminal war . . . [which] could rightfully include everything the regime had done since coming to power on 30 January 1933. It could include the deliberate repression of the German people, the plans for rearmament, the persecution of religious and racial minorities, as well as the numerous crimes committed as a consequence of the launching of aggressive war in 1939. . . . Conspiracy caught everyone in the net, regardless of their actual responsibility for specific acts.

  The Americans drew up a list of one hundred candidates for a major trial, but the British wanted around a dozen defendants. At one point, the British even suggested that in the absence of Hitler—who had killed himself in April—Goering should stand trial as Nazism’s lone representative.

  A compromise between the two allies put the final number of major war criminals to be tried at twenty-two, which was reduced after Robert Ley committed suicide. Some of the candidates would represent entire factions of the Nazi machinery, making for a dubious legal proposition since one man would stand for whole forces under the Hitler system. Hans Fritzsche, for instance, would represent the Third Reich’s propaganda ministry in the absence of its chief, Joseph Goebbels, who had killed his wife, his six children, and himself in Hitler’s Berlin bunker the day after the führer’s suicide. Walter Funk and Hjalmar Schacht would represent Hitler’s economic apparatus. Wilhelm Keitel and Alfred Jodl would represent the German army, the Wehrmacht.

  The United States, Britain, France, and the Soviet Union would each seat one judge and one alternate on a tribunal. Each state would also staff a prosecution team to argue the cases against the defendants and Nazi organizations.

  The tribunal arguably was considering “retrospective justice—creating crimes in order to punish them.” Some legal minds in the West regarded the concept suspiciously, and the defendants and their counsel accused the tribunal of imparting victor’s justice. In fact, the Soviet Union had already committed three of the four crimes listed in the formal indictment against Germany that came months later.

  In July 1945, Robert Jackson wrote to Lord Wright of Durley, the new chair of the U.N. War Crimes Commission, outlining the plan for a major trial. The defendants, he wrote:

  • Entered into a common criminal plan or enterprise aimed at establishment of German domination of Europe and eventually the world. A plan that went back “many years before the commencement of the war” and that would result in “atrocities and other crimes.”

  • Invaded other countries, in breach of treaties between nations, and planned and launched wars of aggression.

  • Violated the laws, rules and customs of war, part of a criminal enterprise that was calculated to result in mass murders and ill-treatment of prisoners of war and civilians.

  • Persecuted political, racial and religious populations as part of their criminal enterprise both inside and outside Germany.

  “Those offenses were committed by members of the SS, the Gestapo, Nazi party leaders, Third Reich government officials and groups within the military establishment,” Jackson wrote. “Accordingly, the defendants should be individuals who led those organizations, such as Goering, Hess, Ribbentrop and others.”

  Jackson went on, “The objective would be to try all the leading defendants in a single main case before an International Military Tribunal, where we shall prove the broad criminal plan and such specific acts as may be desired. Defense of sovereign unity and superior orders would not be entertained.”

  The four powers settled on the basic structure of the trial in August in a document known as the London Agreement and Charter, which created the International Military Tribunal. After the Allies’ conference, Jackson publicly stated that for the first time, “four of the most powerful nations have agreed not only on principles of liability for war crimes and crimes of persecution, but also upon the principle of individual responsibility for the crime of attacking the international peace. . . . If we can cultivate in the world the idea that aggressive war-making is the way to the prisoner’s dock rather than the way to honors, we will have accomplished something towards making the peace more secure.”

  The trial would be awkward, Jackson said, because the Allies would be knitting together Anglo-American criminal procedure with European continental criminal procedure. It would be slow, he said, because every word spoken in the tribunal would have to be translated into English, German, French, and Russian. “But I do not think the world would be poorer,” he said, “even if it takes a month or so, more or less, to try these men . . .”

  Ultimately, the Allies would have to summon all that they had “of dispassionate judgment to the task of patiently and fairly presenting the record of these evil deeds in these trials,” Jackson said. “We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it.”

  Jackson’s ability to summon dispassionate judgment took conviction, but organizing the prosecution’s case for the trial of the century within a few months took a lot of sweat and worry. As a start date approached, Jackson’s staff of attorneys and his assistant grew increasingly anxious about their readiness. On September 6, Telford Taylor wrote Jackson a memo that opened with the words: “We are all worried about.” Among his worries were: “The fact that the list of defendants is in many respects not representative of the accepted purpose of our mission,” “the fact there are more defendants within the scope of our mission than can be readily dealt with in one proceeding,” “the fact that the evidence in hand to date does not ‘mesh well’ with the published list of defendants,” “drafting an indictment against these defendants with only a little of the evidence at hand,” and, finally, “lots of other things.”

  On October 19, 1945, prosecutors filed an indictment that was broken into the four charges that Jackson had previously outlined for Lord Wright. One of those was that Germany had persecuted various populations of Europe based on politics, race, and religion.

  Religion was something the Allies were also going to have to contend with, specifically, whether to supply the architects of the Holocaust with a Christian minister to comfort their spirits as they explained to the world the murder of six million Jews. The decision for adding this provision had come late and was possibly more controversial even than putting the Nazis on trial.

  But those organizing the tribunal knew that if they were going to try some of the world’s most notorious criminals for war crimes, they also had to follow the Geneva Convention. Article 16 of the convention’s regulations regards the “Treatment of Prisoners of War” and states that prisoners of war are permitted “complete freedom in the performance of their religious duties, including attendance at the services of their faith. . . . Ministers of religion, who are prisoners of war, whatever may be their denomination, shall be allowed freely to minister to their co-religionists.”

  The Allies had been capturing war criminals for years. As victory, and with it the certainty of holding many more prisoners, loomed in February 1945, General Omar Bradley, leader of the Twelfth Army Group, wrote a letter to the commanding generals of several U.S. Army units. Bradley stated that all war criminals would be “granted the protection and privileges afforded by the Geneva Convention.”

  Several months later, the army’s European Theater of Operations headquarters under General Dwight Eisenhower issued “Standing Operating Procedure No. 49: Employment of Prisoners of War,” which outlined regulations for the religious rights of POWs, allowing for the freedom to attend religious services, for clergymen who were POWs to minister
to prisoners, for visiting ministers to privately administer to the spiritual welfare of prisoners, and for officers at POW camps to bring in ministers from other camps.

  Visiting clergy were to “discuss only matters which pertain to their religious duties” and were not to—among other things—“deliver to, or receive directly from, prisoners any letters, papers, documents or articles.”

  BEFORE THE NUREMBERG TRIALS, there are no records of American military chaplains being assigned to provide religious support to the enemies of their country. Throughout history, captured clerics typically ministered only to their own flocks in prisoner-of-war camps where they, too, were prisoners.

  But the strict security at Nuremberg made it impossible to assign German army chaplains to look after the spiritual needs of Hitler’s inner circle. Instead, with the world’s attention turned to postwar Germany, the Allies decided that despite the charges of war crimes and crimes against humanity leveled against the defendants, these men deserved spiritual succor. So the U.S. Army gave the men two of its own. This would be something new for the army chaplaincy. An experiment.

  The trial had not yet begun when Gerecke arrived in Nuremberg on November 15, 1945, to join the 6850th Internal Security Detachment—Andrus’s Nuremberg prison unit.

  “You’re going to find another chaplain downstairs,” Andrus told Gerecke as the commandant led him out of his office after that first meeting. “He’ll be your assistant.”