Under Nuremberg Law, the implication was that any officer who received what was later liable to be interpreted as a criminal command must refuse to carry it out, although - as Paget pointed out - both the British and American Manuals allowed superior orders to be used as a defence for ‘criminal’ actions.13 In reality that meant an officer had to resign his commission. In Nazi Germany the response would have been a court martial and a firing squad. Colonel General Beck did resign his command in 1938, and encouraged other generals to follow his example (none did), but that was not in wartime. He was one of the movers and shakers behind the various military and civil plots to remove or kill Hitler between 1938 and 20 July 1944, when finally he did indeed pay with his life.
Suggesting that generals had absolute authority within their areas of command was also to misunderstand the nature of Hitler’s regime. Like Stalin, the Führer was a great believer in impera et divida. He alone had enjoyed unrestricted power; the underlings had to jostle for position beneath him. On the battlefield this became a struggle for control between the SS and the Wehrmacht. The SS reported to Himmler, who answered to Hitler. The Waffen-SS had the advantage of better equipment, while the traditional army tended to lead the campaign under experienced generals, the majority of whom hailed from the traditional, Prussian officer corps. The SD was responsible for the dirty work behind the lines. It, too, answered to Himmler, but its actions within the Wehrmacht domains were agreed by the general commanding, which - as so often in Hitler’s state - involved making the traditional general complicit in the actions of the SD either by co-operating with it or by agreeing to take over its functions by rounding up commissars, partisans or Jews. It was not Hitler’s or Himmler’s intention that anyone should emerge from the conflict with clean hands. Even diplomats were obliged to sign memos that said they agreed with the policy of deporting the Jews.
Paget pointed out that ‘usages’ were not considered binding in the British Manuel of Military Law and ‘could be disregarded by belligerents’. There were other fishy aspects to the Royal Warrant that had been taken from Nuremberg Law: the accused was not allowed to know the charges nor what evidence was adduced against him; he could not challenge the authority or jurisdiction of the court; he could not insist on being tried by his peers - and was generally subjected to the judgments of those holding inferior rank and therefore diminished responsibility. The Royal Warrant disregarded the long-established rules of evidence and admitted hearsay. The statements of hearsay witnesses were not only given credence, the witnesses were not summoned and could not be cross-examined. There was no right of appeal.14
Paget also made it clear that the defendants remained prisoners of war, because Britain had not brought hostilities to an end. As POWs they could demand particular treatment. POWs had rights in international law: the captor had to treat them as well as he did his own troops and subject them to the same law as he would apply towards his own men.15
Interrogations
Before the German war criminals could be put on trial they needed to be apprehended and interrogated. The British, for example, possessed a remarkable collection of Nazi-hunters. They included men who later achieved fame in other spheres, such as Robert Maxwell16 and the historian Hugh Trevor-Roper. The interrogations and the accumulated details of Nazi crimes had another role - they could be used against the German population. Trevor-Roper was compiling his report for British intelligence at the time. It was published as The Last Days of Hitler and was considered to be excellent propaganda for the Allied cause. Trevor-Roper hardly needed to be encouraged to belittle the Nazi leadership and show the Germans how foolish they had been to follow them.dv
Maxwell was a Czech Jew and many of those employed to find the Nazis were Jews from Germany and Austria. They had the ability to interrogate Germans in their own language, and in many instances they felt a real sense of motivation in their work. These included Peter A. Alexander, a former bank clerk from Vienna. Major Frederick Warner (formerly Manfred Werner from Hamburg) and Lieutenant-Colonel Bryant (Breuer) formed part of an eighty-man team that arrested, among many others, the chief of Bremen’s Gestapo Dr Schweder. They left him in the hands of a group of RAF officers, who he thought would treat him relatively kindly. They did not, and staged a mock trial in the best Gestapo tradition, so that Schweder thought his last hour had come. When Warner returned Schweder was overjoyed to see him.17
Peter Jackson (formerly Jacobus) was responsible for arresting the Auschwitz commandant Rudolf Höss, having tracked him down to a farmhouse kitchen where he was hiding. His superior officers were aware that Jackson’s mother had been killed in Auschwitz, but they still believed he was the only man for the job of interrogating the prisoner. The revulsion Jackson felt towards Höss could be overcome only by drinking large quantities of whisky. He was allegedly drunk for a week. 18
Former Pioneer Anton Freud was the man who captured Dr Tesch, who had produced the gas for the ‘showers’ at Auschwitz. Freud’s team also apprehended Himmler’s deputy, Oswald Pohl, who was delivered to Nuremberg and condemned to death. Fred Pelican (born Friedrich Pelikan in Poland) was the man who caught Hans Esser, the Nazi leader in Neuss in Silesia. Flight Sergeant Wieselmann was involved in the search for the killers of the fifty British airmen who were shot after the Great Escape. A Sergeant Portman worked on the dossier concerning the deaths of 7,000 Jews who had died while being transferred from one concentration camp to another.
One Nazi who particularly interested the British was William Joyce, the American-born, half-Irish fascist who was known to all and sundry as Lord Haw Haw. He had fled from Hamburg and was living in an inn near the Danish border with his wife. On 28 May 1945 two British officers were searching for kindling in the local wood. Joyce, who was doing much the same, couldn’t resist giving them a hand, and shouted to them in French, telling them where they might find some pieces of wood. He then repeated himself in English: ‘There are a few more pieces here.’ His voice was instantly recognised. ‘You wouldn’t happen to be William Joyce, would you?’ Joyce put his hand in his pocket. The officer thought he was going to draw a gun and shot him in the leg. Joyce groaned that his name was Fritz Hansen (his forged German papers said his name was Wilhelm Hansen), but he was still carrying his military passport, which had him down as William Joyce. He was taken back to Britain, where with doubtful legality he was tried for treason and hanged in Wandsworth Prison.19
Despite the huge dragnet and the large forces at the Allies’ disposal, very few of the top Nazis were executed. Many of the most important ones like Hitler and Goebbels killed themselves before capture. Others managed to commit suicide in captivity. A surprisingly large number of leading Nazis were able to take poison behind bars, posing the question whether the Allies turned a blind eye to such things. In his memoirs, Franz von Papen claims that he was offered means to take his own life on two occasions, both times by American guards.20
Himmler, the most important war criminal after Adolf Hitler, never reached the courts. He had been spurned by Dönitz and issued instructions to the leading SS men around him to disappear while he lay low in Flensburg with his mistress and their children. The leading lights of the SS were provided with false papers and cyanide capsules. Himmler himself assumed the identity of Sergeant Heinrich Hitzinger of the Field Service Police, a man whom he had had executed for defeatism. He shaved off his moustache and, putting a patch over one eye, set out to join the Werewolves in Bavaria. Unfortunately for Himmler the Allies had outlawed the Field Service Police, and on 21 May the British picked him up halfway between Hamburg and Bremen.
The British failed to recognise him. Eventually Himmler revealed his identity himself. He still thought he had something to offer the Western Allies, and asked for a meeting with Montgomery or Churchill. At Second Army HQ at Barfeld he was strip-searched. A Captain Selvester found two brass tubes on him. It is not altogether clear why they did not search his mouth. Selvester alerted Montgomery’s intelligence chief Colonel Michael Mu
rphy. Murphy decreed that the formal interrogation should not begin before he arrived. Selvester ordered some thick cheese sandwiches for the prisoner and watched him as he ate. An intelligence officer could not resist taunting Himmler with some photographs of corpses taken at Buchenwald. Himmler shrugged him off: ‘Am I responsible for the excesses committed by my subordinates?’21 It was an extraordinary response: of course he was.
Himmler was brought a change of clothes, but he refused to don a British army uniform, preferring to wrap himself in a blanket. He was still insisting he wanted to see Montgomery or Churchill. Colonel Murphy arrived at eight and had Himmler bundled into his car. Murphy handled him roughly and called him a ‘bastard’. He was driven to a villa outside Lüneburg and ordered to strip again by a Sergeant-Major Austin. Himmler responded by saying, ‘He does not know who I am.’ Austin replied, ‘Oh yes I do: you’re Himmler. Ausziehen!’ Himmler was then examined by Dr C. J. L. Wells, who noticed the phial in his mouth. Himmler was too quick for them, however, and was able to flick the phial out with his tongue and crack it. There were attempts to save him, but the effect of the poison was immediate. Himmler died just after 11.00 p.m. on 23 May. He was buried in an unmarked grave on the Heath two days later.22
Göring took a long time to realise that the Allies were not going to treat him, or anyone else for that matter, according to the rules that had governed VIP prisoners in previous wars. On 7 May 1945 US forces commanded by Brigadier Robert Stack were searching for him around Mauterndorf dw in Austria, where he possessed one of many mansions. The Görings were still half convinced that they were going to be shot after Hermann had tried to wrest authority from the Führer in the bunker. There was a large SS guard with them. The Americans and Göring were converging on Fischhorn Castle near Zell-am-See, which had been requisitioned for the latter’s use.dx Here Göring was hoping to negotiate with Eisenhower. When the Americans arrived, Göring was still bogged down in traffic in a car laden with his monogrammed pigskin suitcases.
He had been out of touch with reality of late. He had badly overplayed his hand with Hitler, and persisted in believing that Eisenhower would deal with him directly. The Americans were generally courteous for the time being, and Göring posed for photographers in Kitzbühl the next day. Some said he had been seen talking to American officers on the balcony of the Grand Hotel with a champagne glass in his hand.23 He was encouraged to blab about other Nazi leaders at informal gatherings. This was part of the process of softening up the prisoner. He was still cross with Hitler for ordering his arrest and described him as narrow-minded and ignorant. Ribbentrop - never his favourite - was a scoundrel, and Hess an eccentric. It was not until the 10th that he came face to face with General Spaatz, the commander of the US air force. Then the Americans took him into the kitchen and stripped him of his medals and insignia, leaving him only his epaulettes. He was housed in a prison compound for high-ranking Nazis, with a tall black soldier posted outside his door.
He discovered Robert Kempner among the American officers. Kempner had been in Police Department 1a, the political police that had sired the Gestapo. He had been sacked by Rudolf Diels in January 1933, and as a Jew he then thought it prudent to leave. Göring must have realised that Kempner would be a powerful adversary. The Americans asked him about the concentration camps. The man who had nominally hosted the Wannsee Conference denied all knowledge. He pointed out that Hitler had been deranged at the end of his life. He later denied that he had ever signed a death warrant or sent anyone to a concentration camp.dy Shown pictures of Dachau he blamed Himmler.24
The robber-in-chief now had the disagreeable experience of being robbed himself. US army engineers discovered his picture collection in Berchtesgaden: works by Rembrandt, Rubens, Van Dyck, Boucher and Botticelli were all hauled out. One Rembrandt bought in Paris in 1940 turned out to be a fake. French Moroccan soldiers had already pilfered some of his jewellery; a GI stole his field marshal’s baton, which was intercepted at customs and eventually found its way into the collection at West Point; his 1935 wedding sword was stolen by a platoon sergeant who placed it in a bank vault in Indiana. Later his wife Emmy was defrauded of an emerald ring by a sergeant who came to tell her that Göring was about to be released.25
Prison Walls
On 20 May 1945 Göring was flown to Mondorf-les-Bains in Luxembourg to join fifty-two other Nazi big fish in ‘Ashcan’, Allied Supreme Headquarters Centre for Axis Nationals. The gloves were off: Göring was treated with scant respect when the aircraft landed. He was struck by the monotonous movements of the GIs’ jaws churning up their chewing gum.26 The prisoners were strip-searched for poison and weapons, and anything of value to them was taken away. The first to arrive had been Arthur Seyss-Inquart, who had succeeded Kurt von Schuschnigg as chancellor at the Anschluss, and had later been Reich commissioner of Holland. He had been responsible for throwing all the leading Austrian non-Nazis - including a sizeable number of government ministers - into Dachau and beginning the persecution of the Jews.dz In Holland he bore responsibility for the deportation of most of the Jews. Hans Frank was next, much the worse for wear after slashing his wrists. He had been the governor general of Poland who proclaimed his mission to be ridding ‘Poland of lice and Jews’.27 Göring was reunited with Frank, Bohle, Brandt, Daluege, Darré, Frick, Funk, Jodl, Keitel, Ley, Ribbentrop, Rosenberg and Streicher. The Americans dubbed him ‘fat stuff’. Three days later there was a fresh delivery: Admiral Dönitz arrived together with Speer. Speer did not stay long. He was flown to Eisenhower’s HQ at Versailles and then to the British-run interrogation centre named ‘Dustbin’ in the medieval castle of Burg Kransberg in the Taunus. Here he received a visit from Hugh Trevor-Roper, who was then researching his Last Days of Hitler. They seem to have got on: in the summer of 1947 Trevor-Roper sent a copy of the book to Speer for his comments.28
Franz von Papen was delivered to Mondorf in May 1945, but he was not considered important enough for the Grand Hotel, where the leading Nazis were lodged, and went to a smaller establishment next door instead. He had been pushed further and further out of the nest, as ambassador to Austria before the Anschluss and then as ambassador to Turkey. He was still claiming to be surprised that he had been arrested at all. He had been housed in some comfort in a château near Spa in Belgium where he had the Hungarian regent Admiral Horthy for a cellmate.ea Horthy also accompanied him to Mondorf.29 Papen and Horthy’s regime was Spartan, and the elderly regent’s health began to suffer. Papen claims in his autobiography that he tore the notorious American gaoler Colonel Andrus off a strip for maltreating a head of state. Papen’s prison was beginning to establish itself as the place for the B-stream Nazis. Soon they were joined by Schwerin von Krosigk and the Freiherr von Steengracht from the German Foreign Office. There were now six to a room. Papen tried to pin Andrus down on the subject of the Hague Convention governing prisoners of war. Andrus shook him off, but permission was swiftly granted to write letters. On 15 June Joachim von Ribbentrop was brought in. He had been tracked down in a bed and breakfast in Hamburg, having spent six weeks on the run, during which he had composed a letter to the British government. He was arrested after a tip-off on the 14th. A British lieutenant found him in bed, dressed in pink and white pyjamas.
The old rivalries and hatreds persisted. There was a ridiculous adherence to correct forms of address. Even after the sentences were pronounced, Speer would ask the former deputy Party leader, ‘What did you get, Herr Hess?’30 Göring could not abide Ribbentrop, Speer or Dönitz. With Dönitz the feeling was clearly mutual. Once when Göring was complaining that his lot was the worst, because he had more to lose, Dönitz acidly remarked, ‘Yes, and all of it stolen!’ Göring was interrogated by Major Hiram Gans and Lieutenant Herbert Dubois. Dubois asked him if he were ashamed of the milliard-mark fine imposed on the Jews in 1938. Göring expressed his muted regrets: ‘You have to take the times into account.’ He soon got the hang of how to deal with the interrogations. When a Russian team arrived to prepa
re their case he had them roaring with laughter.31
The Trials
The Allies were now finalising the procedure for the war-crimes trials that were to be held in Nuremberg. On 8 August the ‘London Statute’ was drawn up and signed by Justice Jackson from the United States, the future Lord Chancellor Sir David Maxwell Fyfe from Britain, Professor Gros from France and General Nikitchenko from the Soviet Union. (Nikitchenko started out as prosecutor and later served as a hanging judge.) It was hardly difficult to tear holes in the text: there were four different powers with four different ideas of law. One of the nations prosecuting was as totalitarian as Nazi Germany had been. There was little hope for the defendants: the prosecution had all the advantages, the defence all the disadvantages; and there was to be no questioning of the competence of the tribunal. Article 6 contained the meat - the court had the right to condemn persons, either as individuals or as members of organisations, for crimes against peace and conspiracy to wage war, war crimes and crimes against humanity. These had not, of course, been crimes when they were committed, nor were any of the prosecuting powers immune from accusations of this sort - particularly Soviet Russia. When the defendants brought this up the response of the court’s president Lord Justice Lawrence was to say, ‘We are not interested in what the Allies may have done.’32 Article 9 ruled that carrying out orders was not an excuse; evidence of atrocity by a member of an organisation would be taken as evidence of the criminal nature of the organisation. The defendants at Nuremberg were mostly intelligent men, and there was a fair smattering of jurists among them. Naturally they protested, but it was cogently impressed upon them that they might just as easily have been put up against a wall.
After the Reich Page 59
