In the case against the diplomats, four old-school examples (Weizsäcker, Woermann, Erdmannsdorff and Ritter) were flanked by the same number of Nazi outsiders (Steengracht, Keppler, Bohle and Veesenmayer). As Margret Boveri knew, it was not always possible to see them as wholly black or wholly white. Weizsäcker stuck his neck out for a few Jews here and there; Steengracht, his pure Nazi successor, managed (by adding a zero to the figure of 400 Hungarian Jews who had been given permission to travel to Sweden) to save a further 3,600.18
The case for the prosecution ran to 39,000 pages of which the British evidence alone amounted to 28,000 pages. The bundle was made up of 3,400 documents. The main arguments against the defendants dealt with crimes against humanity, the deportation of the Jews and their murder in concentration and annihilation camps.19 Ernst von Weizsäcker is now acknowledged to have been one of the first and most important opponents to the regime operating in the German Foreign Office, but as state secretary he had been singularly powerless to prevent or alleviate the tragedy of those years. His own son Richard is clear on this: ‘from documents and spoken report he knew more than enough to reach his own decisions’.20 The state secretary saw it as his role, to the extent of his powers, to prevent the outbreak of the war, and, once he had failed there, to limit its effect by averting the war against the Soviet Union. We now know much more about this than we knew then. We know, for example, that Weizsäcker was a party to the despatch of Adam von Trott first to Britain and later to the United States, to explain the position of the German opposition. Indeed Ribbentrop himself had said that the only reason that Weizsäcker was not arraigned before Roland Freisler and the People’s Court was that on 20 July 1944 he was already safe behind Allied lines, as ambassador to the Vatican.
Once in the Vatican, Weizsäcker had been free to protect Jews from the maniacal purge that was put into action after Italy went over to the Allies. The prioress of the nunnery of Our Lady in Sion attested to the fact that he had directed 185 Jews to her door and issued her with a letter that forbade the SS from searching the premises.21 The question arose whether Weizsäcker was actually a traitor, in that he had warned the British ambassador, Nevile Henderson, that Germany was about to sign a pact with Russia in August 1939. Was he thereby willing defeat on his own country and the death of his country’s own soldiers? Weizsäcker was categorical: ‘I wanted peace without Hitler, but not a defeat that would lead to Hitler’s ejection.’22
The indictment, however, accused Weizsäcker of supporting Hitler’s war policy and making it possible, which his son describes as the ‘absolute and grotesque opposite of the truth’. On the other hand the defence case was not easy, as the witnesses were foreign statesmen, who were not always easy to subpoena. The British did much to sabotage his case by putting pressure on diplomats and former ministers to stay clear and reveal nothing of Weizsäcker’s role in the various plots of 1938 and 1939. One exception, however, was Lord Halifax, who gave a ‘helpful and honest testimony’ for the state secretary.23 Among the more damning accusations brought to bear in the case was the contention that Weizsäcker had allowed himself to utter the Nazi slogan ‘Deutschland erwache!’ (Germany awake!) at the funeral in Paris of Ernst vom Rath, the German diplomat murdered in 1938 by the Jew Herschel Grynspann. Vom Rath’s death was used as a pretext to launch the Reichskristallnacht on 9 November that year. Eyewitnesses maintained he had done no such thing. As the coffin was despatched to Germany Weizsäcker had actually said ‘Deutschland erwartet Dich!’ (Germany is waiting for you!), which was nothing less than the truth.24
Richard von Weizsäcker managed to have himself attached to the defence team, despite the fact that he had yet to be called to the bar. The greatest difficulty he had with the Allied jurists in Nuremberg was that they were still infected with ‘Vansittartism’ and had yet to learn the real nature of the Third Reich. Americans also had a particular problem with diplomatic language, and the double meanings with which men such as Weizsäcker sought to conceal the real sense from the Party authorities, as their internal memoranda show.25
The American prosecutor was the former Prussian civil servant Robert Kempner. He had worked closely with Carl Schmitt, who was also held as a prisoner in Nuremberg. On Kempner’s authority Schmitt was released in May 1947. Others were also released from their more severe punishments once they had come to an understanding with Kempner.26 Such methods did not work with Weizsäcker. He shunned the quid pro quo and relapsed into an injured silence. The case lasted eight months. On 13 April 1949 Weizsäcker was sentenced to seven years’ imprisonment, which was later commuted to five as already noted. One of the three judges dissented and said he should be freed. John McCloy thought so too. In the autumn of the following year he released the former state secretary as his first response to the Nuremberg judgments
Even after three of the Einsatzgruppe commanders had been condemned to death at Nuremberg in 1947, they managed to stave off execution by giving evidence at the trials of their peers. Writing after his unsuccessful attempt to defend Field Marshal von Manstein, Reginald Paget wondered whether Otto Ohlendorf had actually been telling the truth to Himmler. How had he managed to kill so many Jews with such limited resources? Ohlendorf was credited (in a Nazi sense) with having wiped out up to 90,000 Jews during his four-and-a-half-month tenure of Einsatzgruppe D. The strength of his unit lay at around 500 men divided into five companies; of these, 200 men served as clerks. Each company had just ten vehicles.
Otto Ohlendorf is a puzzling case. He was a Nazi humanist who, while he was murdering Jews in huge numbers, was rebuilding schools and hospitals for the Volga Germans. Ohlendorf described his methods at his trial. Jews were required to register before ‘resettlement’. This was the pretext for taking them to their deaths. Then they were ferried to a ditch some ten kilometres outside the town and shot where as few people as possible would witness the killings. During this time the SD were also fighting partisans, who were active in their sectors. Paget found it incredible that single companies of SD were able to claim that they were killing between 10,000 and 12,000 Jews in two or three days. The maximum number of Jews that could have been accommodated in a lorry was twenty to thirty and each ten-kilometre journey would have taken near on two hours to load, unload, assemble, kill and return to the town or village to fill up again. It was claimed that the SD had killed 10,000 Jews in Simferopol, but by Paget’s calculations the number could not have exceeded 300.
Ohlendorf claimed that he had rid the whole Crimea of its Jewish population: ‘He was clearly a man who was prepared to say anything that would please his employers. The Americans had found him a perfect witness.’27 Paget thought he was lying to save his skin, telling Himmler what he wanted to hear. In which case why did he not try to save himself at Nuremberg? If mass slaughter was not a big element in Ohlendorf ’s curriculum vitae after all, if - as Paget suggests - the figure of 90,000 needs to be shortened by a nought or two, it hardly exonerates him from the charge of mass murder, nor did he ever try to deny it himself. Indeed, he was chillingly factual about the killing of children. Once again he took pains to point out that the Allies had not been particularly scrupulous about it either.28
The final trial of the Nuremberg twelve took place in 1948. This show was reserved for the General Staff and the OKW. One of those indicted was General Walther Warlimont, a mere pen-pusher who had been responsible for operations and whose sin was an unquestioning loyalty to the regime. He was accused of war crimes and crimes against humanity and sent down for life. The case hinged on the two orders that infringed the laws of war: the Commando and the Commissar Orders. Warlimont was punished harshly because he was perceived as one of the planners, whereas Gerd von Rundstedt (‘My Führer, whatever you order, I shall do to my last breath’)29 was able to settle in West Germany after four years in a POW camp. In 1951 Warlimont’s sentence was reduced to eighteen years. He was released six years later.
Elsewhere
The British made a first stab at administeri
ng justice by dealing with the culprits at Belsen. They were put on trial in the nearby town of Lüneburg. Josef Kramer, the camp commandant, stood in the dock with forty-four others on 17 September 1945 in a converted gymnasium at 30 Lindenstrasse. This was the first of the trials, a dress rehearsal for those that came later where international, rather than German law would be invoked. The defendants were accused of war crimes. It was hard to prove that they had done more than callously neglect their charges, as there were no gas chambers at Belsen and the prisoners had been given food, though not nearly enough. The cases against Kramer and Dr Fritz Klein were easier to prove, in that both had worked at Auschwitz, where they had been cogs in the killing machine. It is interesting to record now that the indictment said nothing about Nazi genocide nor about its specifically antisemitic character.
In the dock along with Kramer, Klein and the ‘Blonde Beastess’ Irma Grese were a number of Polish kapos, former prisoners whose improved status had allowed them to wallow in acts of brutality. Various lawyers in khaki were roped in to defend the SS men and women, and did it as diligently as they could, even describing Kramer as a scapegoat. The legal formula of nulla poena sine lege was of course ignored, prompting comparisons with the Nazis themselves: those indicted had not broken any German laws as they went about their business at Belsen. Reading an account of the trial now, it is striking how many inaccuracies were allowed to pass and how little the British knew about the workings of the camps.
As far as Irma Grese was concerned, there was an indecent amount of prurience expressed in the British press about her fate. She was blonde and good looking. She had also been involved in the selections at Auschwitz, where she had a reputation for brutality without parallel among the female guards. The court adjourned on 16 November and delivered its verdicts after six hours and eight minutes: eleven people, including Kramer, Klein and Irma Grese, were condemned to death. Kramer submitted an appeal to Montgomery, but it fell on deaf ears. Klein refused to appeal, saying that his part in the Final Solution ‘was such that he was not fit to live’. Britain flew in Albert Pierrepoint to carry out the executions. They died on 12 December.30
The concentration-camp trials were to continue for twenty years. The Belsen trial was a warm-up for Nuremberg. The staff at Stutthof camp near Danzig were also arraigned. Seventeen SS guards and five block supervisors were executed and fifty-eight others given sentences of up to fifteen years. The British hanged Sturmbannf ührer Max Pauly, second in command, but after the Allies ceased to be responsible for the nemesis the West German courts were often disgracefully lenient. Pauly’s successor, Paul Werner Hoppe, was given a nine-year sentence. One sadistic guard received two years from a Hamburg court, and Otto Knott, who fed the gas chamber, was set free by a court in Tübingen.31
One of the more controversial sentences was that meted out to Field Marshal Erich von Manstein, who had always received a good press, particularly in Britain. Manstein, however, was in his way every bit as blinkered as Warlimont, and would not have been described as a general with a ‘heart’. In one of his more ridiculous moments he had stood up before Hitler and exclaimed ‘Führer befehl! Wir folgen!’ (Führer command! We shall obey!). Hitler had thought he was mocking him, and Manstein later received a hefty reprimand behind closed doors, leaving Hitler’s bunker like an admonished schoolboy. The source for the story was the SS man Otto Günsche, who would not have been sympathetic to the stock-Prussian general, but Manstein’s unappetising coldness and stiffness is well attested, and his response to an overture to co-operate with the military opposition (‘Prussian generals do not mutiny’) was as telling as it was untrue.32
It was the British who subsequently tried Manstein. They awarded him a heavy sentence, but he was released after only four years and at the end of his life was an adviser to Adenauer’s government on military matters - an indication of how seriously the war crimes tribunals were taken by West German conservatives. The probable reason for the harshness of his punishment was the clamour from the Soviet Union. Manstein’s charm worked little on the Soviets, who would almost certainly have killed him. Reginald Paget, on the other hand, thought Manstein a perfect gentle knight, the ‘Hector’ of the Wehrmacht, and the longer he represented him, it seems, the more he grew to like him. Paget formed a team with Sam Silkin (who being Jewish was making a statement by taking on the case) and two German lawyers, Drs Laternser and Leverkühn. The former had already defended Field Marshal von Leeb before an American court and Kesselring before a British one; the latter had worked in Canaris’s Abwehr, and had come under suspicion himself when Canaris and his team were arrested by the Nazis.
Once again Paget learned that you would get nowhere by citing cases of similar atrocities carried out by Allied armies: the Allies were above reproach. But there was a great deal more readiness on the part of the British to socialise with the German defence team. The Americans had treated them as pariahs.33 Once the trial began Paget was to note more features that contributed to the miscarriage of justice. One of these was the right to bring in photographers to snap the defendant over an extended period at the beginning of the trial, which made it resemble Nazi justice, and the journalists present filed stories that would have been sub judice in an English court. As it was not a ‘real’ trial they were immune from accusations of contempt. Another rub was the simultaneous translation. The defendant could listen to a translation of the case as it proceeded, but the interpreters were often not up to the task.34
Manstein was not the only important general to be omitted from the line-up at Nuremberg. As we have seen, Field Marshal Albert Kesselring was tried by the British in Venice for atrocities carried out under his command there. These included the massacre of 335 Italians in the Ardeatine Caves and another 1,087 people killed in reprisals after attacks by partisans. Kesselring mounted an impressive defence, showing that the SD and not he had responsibility for security. He was nonetheless sentenced to death. The verdict was controversial enough for Churchill to intervene with his successor, and Kesselring’s sentence was commuted to life imprisonment. In 1952 he was released after a serious head injury.35
The IMT dry-run for the Americans was the Dachau trial in November 1945. In the dock were the commandant Martin Weiss, four SS doctors and the seventy-four-year-old Professor Klaus Schilling, the malaria expert who had been trying out his theories on the prisoners. There were forty people indicted in all and the court handed down thirty-six death sentences. General Lucien Truscott, presiding, later commuted four of these, but not Schilling’s.36 Sepp Dietrich was the most distinguished SS general of the war. Troops under his command were responsible for a vast number of atrocities, particularly in the Soviet Union. At the end of the war he surrendered his army to Patton at Krems, and was kept in a number of camps ending up with his trial at Dachau. It was one of sixty-seven trials held in the former flagship concentration camp which were to mete out death sentences. The main case against him was the slaughter of between 300 and 600 American troops and 111 Belgian civilians at Malmédy, which was carried out under orders from Jochen Peiper. The court dismissed claims that the SS men’s confessions were extracted under torture. Peiper behaved with dignity in the dock, and recounted some of the ways in which the interrogators had behaved - pretending that they already had signed confessions from the others, that his death sentence was assured, that he would be better off saving his comrades, and so on. Peiper’s plea that international law allowed a certain leeway with POWs in the heat of battle if that meant that victory could be ensured was not entertained by the court.37
On 16 July 1946 the defendants in the Malmédy trial learned of their fates. Forty-three men were sentenced to death by hanging, including Peiper; twenty-two more received life sentences, including Sepp Dietrich. The prisoners were then transferred to Landsberg Prison, the very place where their former master Adolf Hitler had penned Mein Kampf. Dietrich’s sentence was commuted to twenty-five years in 1951, and he was released four years later. Many of the men on death
row survived. There was a discomfort felt by many of the Americans who had been involved in the case. The presence of so many Jews in the court, the way that the confessions had been extracted and the fact that many of the Americans could recall their troops carrying out similar illegal acts contrived to raise doubts about the security of the convictions. A year later the sentences were reviewed, with a number of the death sentences being commuted. In the middle of 1948 there were still 150 men in Dachau on death row. Clay still wanted to execute them. Most of them wriggled off the hook in the end. A few months later there were ten cases on his desk from the condemned men of Dachau: six writs of habeas corpus and four who had been granted leave to appeal. Another ninety-five were still supposed to be hanged. On 4 March 1949 Clay was anxious to dispose of ten of the Malmédy murderers; twelve more were still on appeal.
He did not think much of their claims to have been tortured. On 12 March he examined the appeal of Sergeant Tank Commander Bersin of the 1st SS-Panzer Regiment: ‘He was forced to spend two months on a prison floor, beaten and kicked by the guards to the extent of losing several teeth, carried to the dental clinic and to interrogations with a hood over his head and grossly mistreated in an interrogation of March 20 1946 by Mr Kirschbaum in the presence of Mr Ellowitz.’ Clay had no doubts about Bersin’s guilt. The supposed torturers denied the charges against them.38 Whatever Clay felt, the methods used to extract confessions had discredited the trial.39
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