by Ian Buruma
Another witness, a man named Nussbaum, had come from Kansas City accompanied by his son and grandchildren. Nussbaum had been a plumber. He fixed up Schwammberger’s house in the ghetto. In a sense, Schwammberger had saved his life, by pulling him out of a crowd destined for Auschwitz; somebody had to bolt the doors of the cattle cars; that somebody was Nussbaum. He realized later that one of the cattle cars had contained his own family.
Nussbaum had been waiting for this day. He had always kept his memories to himself. Even his son knew nothing about them. “Your honor,” he said in a thick Polish accent, “there are so many stories I could tell you …” Like the one about the rabbi on Yom Kippur in 1942 who insisted on praying instead of doing hard labor; Schwammberger made everybody watch as he shot him in the head.
Nussbaum’s memory seemed clear and his manner was spirited. He told us outside the courtroom that Schwammberger was an animal. “No, he was worse than an animal. An animal kills to eat. He, he, he, I have no word for it, he is a cold killer. If I were able to, I would tear off his right arm, not kill him, mind you, just take off his right arm, the one he used to shoot with, and put it in his left hand.”
The judges and counsel had gone to Przemysl to see for themselves. They had measured the distance from the Kommandant’s former house to the site of one of his alleged murders. They needed to test the witness’s memory in the courtroom. So everybody huddled around the ghetto map, as Nussbaum pointed out the old landmarks. He still remembered everything. Even Schwammberger could not contain his curiosity and shuffled across to peer over his former plumber’s shoulder.
After he had shuffled back again, Schwammberger was asked by the judge whether he could remember the witness. Schwammberger’s mouth moved. The judge asked him to speak up. A soft “nein” was heard. The judge showed signs of impatience. He asked how it was possible that he had forgotten all the witnesses, even though they could remember him in detail. Schwammberger mumbled that 50,000 people might remember him, but he could not possibly remember 50,000 people. The judge said he was simply trying to establish some kind of contact with the defendant. “I’m trying to get you to say something. Some of the witnesses knew you well. Why, one of them even groomed your dog.” For the first time, Schwammberger came to life. In a rasping voice, which hinted at the man who had once, long ago, been accustomed to giving orders, he said: “It would be utterly illogical for me to hand over the care of my dog to some stranger!”
This unexpected little outburst caught Schwammberger’s counsel by surprise. He said that his client was too exhausted to carry on. His heart was weak. He needed a rest. The judge rolled his eyes but declared the court adjourned.
The setting of the mini-drama I had witnessed was undramatic. The courtroom was modern, functional, almost wholly without the trappings of traditional judicial authority, such as the wigs and other pomp one finds in British courts. There was no theater about the proceedings, no ceremony. Documents, measurements, maps were what mattered, not oratory. And the public at the proceedings consisted entirely of German high school students. They had come all the way from Bad Wimpfen, a small spa town near Heidelberg, with their history teacher, a bearded 68er named Bernd Wetzka.
Outside the courtroom, Mr. Nussbaum spoke to American reporters. The students crowded around the defense lawyer, a man of roughly the same age as their history teacher. They were puzzled by his plea for an acquittal. They asked him whether he really believed that Schwammberger was innocent. “Belief,” the lawyer answered, “belongs in church. My duty is to make sure my client gets a fair trial and that the witnesses are credible.” This, he explained, was complicated, since the alleged crimes took place such a long time ago. He said it would take more courage for the judge to deliver a not-guilty verdict, in the face of public opinion, than to declare his client guilty.
The teenagers looked grave and nodded. Wetzka snorted and said: “Yes, our judges have really showed such courage in the past, haven’t they? And what about the Nazi judges who were never purged after the war …?”
One of the students, a girl with a punk haircut, asked whether it was possible for a witness to have only heard what he now claims to have seen. The lawyer began to answer, but Wetzka snorted again and said the testimonies had been much too detailed to be able to believe that.
There were signs here of a generational difference. The teacher was angry, he felt personally involved, there was little room for skepticism. He later told me his own parents had been Nazis. He had often quarreled with them about the past. They still insisted that it had not been all bad, that they had been idealists, that the stories about the Jews were exaggerated. He had heard all the excuses and they still made him angry. His pupils were less emotionally involved. Their questions showed an intelligent interest in the proceedings. Schwammberger could not have been their father.
Wetzka told me that this visit to the trial had meant a lot to his pupils. They had already been to see two former concentration camps, Natzweiler-Struthof and Dachau, but the Schwammberger case had left a greater impression. The history of the Nazi period was already remote to them, something they read about in books, but this trial really brought those distant events to life, he said. Months later, one of the pupils wrote a report for the school magazine: “After hearing in detail from witnesses what cruelties he had committed, it was easier to understand the verdict.”
No doubt it was. Nor is there any doubt that the trial was good for Mr. Nussbaum. His memories were released. It was perhaps a personal catharsis. It was moving to see at least one survivor confronting his torturer in a German court. But not all witnesses were as tough as Nussbaum. The experience proved too much for one man, who died of a heart attack in court. Still, the demand for retribution, even if it was only a little splash in an ocean of evil, was satisfied. Perhaps, as Simon Wiesenthal hoped, it would serve as a warning. In any case, it was hard to feel sorry for Schwammberger, despite his pathetic state.
And yet, I felt uneasy sitting in that court in Stuttgart. I felt especially uneasy about those students, in their colorful anoraks, filling the public gallery. My first instinct was to applaud West German education. Things had come a long way since 1968. There had been no school classes at Nuremberg, or even at the
Auschwitz trial in Frankfurt from 1963 till 1965. Good for the teacher, I thought. Let them hear what was done. But I began to have doubts. Just as belief belongs in church, surely history education belongs in school. When the court of law is used for history lessons, then the risk of show trials cannot be far off. It may be that show trials can be good politics—though I have my doubts about this too. But good politics don’t necessarily serve the truth.
Forty-four years before Schwammberger’s trial, another German of far higher rank was tried in Nuremberg. Ernst von Weiszäcker was Under Secretary for Foreign Affairs when Germany conquered most of Europe. Since 1943, he had served as ambassador to the Vatican—a rather crucial posting, since the Germans wanted to make sure the pope kept silent about the Final Solution. Whether or not this was due to Weiszäcker’s diplomatic skills, the pope did not disappoint them. Ernst von Weiszäcker’s son Richard was the later President who spoke more than any other politician about the burdens of Germany’s guilt.
There is a story about the young Richard when he was in Nuremberg at the time of the war crimes trials. He is said to have turned to a friend and to have remarked, in his best Wehrmacht officer style, that they should storm the court and release the prisoners. The friend, rather astonished, asked why on earth they should do such a thing. “So that we can try them ourselves” was Weiszäcker’s alleged response. His wish came true only many years later, when German courts prosecuted much smaller fry. Meanwhile, he elected to be a junior member of his father’s defense team.
Ernst von Weiszäcker was accused of planning to wage an aggressive war and complicity in the deportation of Jews from various occupied countries. He was acquitted on the first count, but found guilty on the latter. He had signed a do
cument which stated that the Foreign Ministry had no objections to a planned deportation of Jews. His chief defense counsel, Hellmut Becker, argued that Weiszäcker was an old-fashioned patriot who had done what he could under very difficult circumstances to stop the Nazis from doing their worst. Since he had failed to do so, Weiszäcker admitted his guilt in the eyes of God, but not according to the laws drawn up by the Allied powers at Nuremberg.
In 1950, Becker wrote that “few things have done more to hinder true historical self-knowledge in Germany than the war crimes trials.” He stuck to this belief. Becker must be taken seriously, for he is not a right-wing apologist for the Nazi past, but an eminent liberal. I visited him at his office in Berlin. One wall was decorated with fine military prints. On the other was an Israeli calendar.
Becker was not against holding trials as such. But he believed that existing German laws should have been applied, instead of retroactive laws about crimes against peace (preparing, planning, or waging an aggressive war). He mentioned the fact that Stalin’s judge on the Nuremberg tribunal wished to have it clarified that what was to be condemned was not aggressive war in general, but Nazi aggression in particular. The Soviet occupation of the Baltic States or parts of Poland was not to be a crime against peace. The tu quoque principle was expressly forbidden in any discussion of war crimes: the bombing of Dresden, say, or the expulsion of German-speaking civilians from their homes in Eastern and Central Europe in 1945 was deemed to be irrelevant to the trial.
It was to avoid a travesty of the legal process that the British had been in favor of simply executing the Nazi leaders without a trial. The British were afraid that a long trial might change public opinion. The trial, in the words of one British diplomat, might be seen as a “put-up job.” There was also concern that international law might not apply to many of the alleged crimes. If revenge was the point, why drag the law into it? Why not take a political decision to punish? This was what Becker, in his office, called the Italian solution: “You kill as many people as you can in the first six weeks, and then you forget about it: not very legal, but for the purposes of purification, well …” The British only backed down from their position in May 1945, after Hitler and Goebbels had killed themselves. Only then did the British agree to a trial of the remaining Nazi leaders.
Due process or revenge. This problem had preoccupied the ancient Greek tragedians. To break the cycle of vendetta, Orestes had to be tried by the Athens court for the murder of his mother. Without a formal trial, the vengeful Furies would continue to haunt the living.
The aspect of revenge might have been avoided had the trial been held by German judges. There was a precedent for this, but it was not a happy one. German courts had been allowed to try alleged war criminals after World War I. Despite strong evidence against them, virtually all were acquitted, and the foreign delegates were abused by local mobs. Besides, Wetzka was right: German judges had collaborated with the Nazi regime; they could hardly be expected to be impartial. So it was left to the victors to see that justice was done.
The question is how to achieve justice without distorting the law, and how to stage a trial by victors over the vanquished without distorting history. A possibility would have been to make victors’ justice explicit, by letting military courts try the former enemies. This would have avoided much hypocrisy and done less damage to the due process of law in civilian life. But if the intention was to teach Germans a history lesson, a military court would have run into the same problems as a civilian one. And judging from statements made at the time, history teaching was undoubtedly one of the aims of the war crimes trials.
Robert M. Kempner, the German American prosecutor in the Weiszäcker trial, wrote that the “trials with their devastating collections of German documents were the greatest history seminar ever held in the history of the world.” When the American chief prosecutor in Nuremberg, Robert H. Jackson, was asked by the British judge, Lord Justice Lawrence, what he thought the purpose of the trials should be, Jackson answered that they were to prove to the world that the German conduct of the war had been unjustified and illegal, and to demonstrate to the German people that this conduct deserved severe punishment and to prepare them for it.
The Nuremberg trials were to be a history lesson, then, as well as a symbolic punishment of the German people—a moral history lesson cloaked in all the ceremonial trappings of due legal process. They were the closest that man, or at least the men belonging to the victorious powers, could come to dispensing divine justice. This was certainly the way some German writers felt about it. Some welcomed it with the enthusiasm of pious sinners on their way to confession. They were the forerunners of the betroffen generation of 1968. All were men of the left. Some were Communists.
Erik Reger, the novelist, for example: “The less the Nuremberg tribunal dresses itself up in the robes of formal law, the more honestly the political element will be expressed. Its judgment before history will be all the greater then, and all the more instructive. And the trial will not take place in an atmosphere of contrived symbolism, but in one of moral force, through which evil can be overcome.”
A reporter for the Süddeutschen Zeitung, W. E. Süskind, not, so far as I know, a Communist, described the trial as an “Ur-Prozess”—“a trial never seen before on this earth, and thus a truly historic moment.”
What becomes clear from this kind of language is that law, politics, and religion became confused: Nuremberg became a morality play, in which Göring, Kaltenbrunner, Keitel, and the others were cast in the leading roles. It was a play that claimed to deliver justice, truth, and the defeat of evil. The documents, the testimony, the high seriousness of the occasion were meant to vouchsafe the truth. This was used to great effect by playwrights, who re-created the trials on the stage.
Rolf Schneider, a leftist writer who lived in the German Democratic Republic, wrote a so-called documentary play entitled Trial in Nuremberg (Prozess in Nürnberg). He re-created the events by editing testimonies and cross-examinations. The documentary play, he wrote in the preface, was an invention of the German-language theater: “It arose from memories of history and dissatisfaction with the present, which includes the present descriptions of the past.” He also wrote: “One reason for recreating this trial on the stage is simple information: important because, among other things, this trial was the model for later trials of this kind, in Nuremberg, Jerusalem, Frankfurt …”
There is indeed much information there. The cross-examinations of Göring, Schacht, and Keitel are fascinating. But the intention was not to present the historical facts as objectively as possible. For the play was as political as the trial itself, though with a different twist. Schneider was clever enough to put most of his political points in the mouths of the British and American prosecutors. The British prosecutor, for example, is quoted as saying that the “German industrialists were guilty to exactly the same extent” as the political and military defendants. This was, of course, the classic GDR line: fascism as the last defense of capitalism.
Then he had the American prosecutor, in effect, defend the Nazi left wing, led by Ernst Röhm and Gregor Strasser. Göring said they had to be destroyed for their disloyalty to Hitler. The American prosecutor said in the play: “These people represented social goals. They brought you supporters because of that. And you did away with the social aims of all those supporters when you made common cause with German big industry.”
This, then, took care of the awkward problem of proletarian support for the Nazi movement. It is not an utterly false representation of the facts, but a biased one. The political purpose for presenting the trial in this way is clear. To lend legitimacy to the antifascist Communist state, capitalists and industrialists had to be seen as the puppeteers of fascist thugs. The play ends with a statement by the American prosecutor on crimes against peace (not crimes against humanity, which concerned racial persecution and genocide, which never fitted so snugly into official antifascist ideology). We now have this law on our books, the p
rosecutor said: “It will be used against the German aggressor this time. But the four powers, who are conducting this trial in the name of twenty-three nations, know this law and declare: Tomorrow we shall be judged before history by the same yardstick by which we judge these defendants today.”
Again, not unreasonable. That was indeed the way Robert Jackson saw things then. But what was the main reason for this ending? The play was written in 1968, at the height of the Vietnam War. It was the era in which German intellectuals, in the GDR and the Federal Republic, wrote such sentences as these (by Christian Geissler): “One of the four chief prosecutors at the international tribunal back then brought his case in the name of the United States of America. And for us naive people of that time, this meant that he was stating his case in the name of justice, freedom, and humanity.
“We had seen through the amorality of the Nazis, and wanted to rid ourselves of it. It was from the moral seriousness of the American prosecution that we wished to learn sensible political thinking.
“And we did learn.
“And we allowed ourselves to apply this thinking to the present time. For example, we will use it now to take quite literally the morality of those American prosecutors. Oradour and Lidice—today they are cities in South Vietnam” (Italics in the original text.)
The tables were neatly turned. The tu quoque argument—however inappropriate in this case—was finally put to use. We are all guilty. A playwright, or any writer for that matter, is of course perfectly entitled to do this. But to say that the documentary play offered simple information was disingenuous, as disingenuous, or indeed as foolish, as the idea that political trials are suitable vehicles for moral history lessons. For such trials do not pacify the Furies.
