Long before the second World War ended, the Allies decided that, in case they won, they would not again write a “war guilt” clause (which the Germans would again repudiate) into the peace treaty. They would this time, by a great legal proceeding, convict the Germans of their guilt under international law and convince them of it. And this time the guilt, in addition to breach of the peace, would include war crimes and crimes against humanity. The day the International Military Tribunal opened at Nuremberg, the American prosecutor, Justice Jackson of the United States Supreme Court, called the occasion “a rare moment in history,” and the day after the Nazi leaders were hanged the New York Times said: “Mankind has entered a new world of international morality.”
The Nazi leaders were hanged, but they were not impressed. They pleaded, during the legal proceeding against them, that they had all acted under orders (wasn’t Nazi Germany a dictatorship?); that, if anyone were guilty, their judges were as guilty as they themselves were (especially the Russians; why, they asked, wouldn’t the Tribunal press the charge it had made that it was the Germans, not the Russians, who had slaughtered the Polish officers in the Katyn Forest?); that international law was law only by analogy, that it wasn’t codified, that even if it were codified it would not supersede national law (which, obviously, they had not broken), and that even if it were codified and superseded national law it would not permit one party to a suit to try another or bring only one party, rather than both, to trial.
There were Americans who wondered whether the Nuremberg gallows trap was a wide enough entrance to a new world of international morality for mankind, but such wonderers were not numerous in 1946. Most Americans were satisfied with the operation, even if they did not share the premature ecstasy of Justice Jackson. But the succeeding “international” tribunals at Nuremberg, twelve in all, had to be conducted by the United States without the co-operation of its Allies. Nuremberg, after the “big show” of the IMT trial, lost its interest, not only for the other three European Allied governments, but also for most American citizens. It was water over the dam—spilled milk, at worst.
But it was gall, if not wormwood, for the Germans, and not just for the Nazis among them. As far as my ten friends were concerned, the Nuremberg method of convincing them of their guilt was a failure. It was not that it miscarried; it simply had no fundamental effect on them at all. It was taken as an incidental penalty of losing the war, another turn of the screw.
My friends were, they all said, little men; why should they repent those acts of State (and of a dictatorship State in which they had no controlling voice) which the highest surviving ministers of the State did not repent? Repentance is not of the essence, or even of the atmosphere, of a legal proceeding anyway, still less of a military proceeding. Repentance is effectively urged when the urger stipulates in the indictment that we are all sinners, and the Nuremberg indictments made no such stipulation.
If, after all the wars of history, the losers had not been roughly treated without a formal finding of guilt, the treatment of the Germans after the last war, upon a formal finding, might have impressed my friends. As it was, they were, in their own view, simply paying the usual price of losing. “Why so much money to hang us?” said Göring to his neighbor in the dock when the American prosecutor, complaining at the trial’s delays, said that the procedure was costing his government thousands of dollars a day. Five irreparable years later, the man we sent to Germany to re-educate the Germans found himself re-educated: “In looking backward,” said former High Commissioner McCloy, “I wish we had been able to erect tribunals not composed exclusively of the victors.” Why weren’t we able to?
In 1950, in October, United States General Douglas MacArthur approved a legal procedure, modeled after Nuremberg, for trying North Korean and Chinese war criminals after the war in Korea would be won. Legal teams scoured the Korean peninsula as far north as the Yalu River, accompanied by motion-picture photographers. A year later the United Nations commander in Korea, General Matthew Ridgway, said that there were 400 “active cases and 126 suspects” of war crimes in UN custody. But a year later North Korean and Chinese war criminals went home, untried and unhung; Secretary Dulles, an international lawyer, announced the good news, as he called it, that the North Korean–Chinese command had agreed to release enemy personnel charged with war crimes on the condition that the UN command release enemy personnel so charged. The “rare moment in history” had passed; the war in Korea had not been won; international law, like international conquest, required losers before it could operate.
Losers are hard to convince of their guilt. The suffering they have undergone in losing constitutes, as they see it, expiation and more for their own offenses, real or alleged. Boys fighting in alleys are that way. The battered and bloody vanquished is seldom magnanimous enough to admit that he got what was coming to him—about all he can be got to say is “uncle”—and more seldom still to admit that he ought to get more. Men should not be that way, but they sometimes are. My friends were.
It is a principle of animal training that, for the punishment to be effective, the offender must associate it with the crime. You must catch him in the act, on the scene, or he will have forgotten what he did and the punishment will appear abusive to him. Men, too, have a way of dating their guilt and innocence from the injuries they suffer, not from those they inflict. No matter how far back in history I went with my National Socialist friends, they would want to begin its writing with their own or their country’s agonies. When I spoke of 1939, they spoke of 1945; when I spoke of 1914, they spoke of 1918; when I spoke of 1871, they spoke of 1809. As a university-educated American, I knew that there had been a Dawes Plan for the payment of German reparations after the first World War, and a Young Plan which had liberalized the payments. But seven of my ten friends—five of whom had not gone beyond six years of folk school—knew that the Young Plan payments were to have been continued until 1988, “when,” said Policeman Hofmeister, “my son will be eighty years old.”
My fellow-Americans in Germany were sick of the Germans’ self-pity. “I’ll tell you about them,” said one of the Occupation officials, “in a nutshell. They’re like dogs. If you don’t kick them, they bite you; and, when you kick them, they whine.” An American Occupation judge was trying to get transferred. “It’s got so,” he said, “that the minute a German starts whining, I know I’m going to find him guilty. And they all whine. They all have a hard-luck story. Well, they have had hard luck. But they gave other people lots harder luck first. Of course, they’ve forgotten that.”
The judge was equating inequivalents. The hard luck the Germans have had they have had, while the hard luck they gave, somebody else had, somebody they don’t know; and they don’t even believe that it was they who gave it. Herr Damm, after losing his career and his home and possessions, was now earning $47 a month as a “black,” that is, unauthorized worker; he did not see the equivalence between his boycott of Jews in the past and his own children’s undernourishment now. He hadn’t seen the Jews who, as the ultimate consequence of his legal acts were slain; and, besides, like everyone else except Hitler, who had a mandate from the German people, Herr Damm had a mandate from Hitler, the head of the government, to boycott Jews.
I am sure that the tailor, Schwenke, had a hand, and a ready one, in burning the Kronenberg synagogue. See the way he may see the crime (which he denies): He was a man provoked to fury by extreme misfortune, in which “the Jews” played the central role; and he was one of many; and he was a follower, not a leader; and he was being a patriot in Nazi Germany; and the victim was a building; and so on. And the loss to him (which he admits) was three years’ imprisonment late in life, his job, his health, his home, his possessions, and a chance to earn a living to keep from starving. Justice has not overtaken the spirit which led to the Nazi enormities—how could it?—but it has overtaken Herr Schwenke, in his view, with a terrible vengeance.
As my ten friends, all ten of them, told me their troubles, whining, whining, whining, I sympathized with the American complaint. One of the shoemakers in Kronenberg, a man who bears the reputation, and justly so, of a philosopher, said, “I was listening to a German-Swiss soccer game at Zürich, just before you came in. The Swiss were being beaten, and it was near the end of the game. There seem to have been several fouls called on the German team in the course of the game, and here was another. The Swiss announcer said, without raising his voice, ‘Foul called on the visitors,’ and went on. Do you know what a German announcer would have done, if the situation were reversed and the game were in Germany?—He would have cried out,‘ Another foul on the Swiss!” and he would have made the word “Swiss,” Schweitzer, sound like “pig,” Schwein. He would have named the Swiss player who fouled, and he would have repeated the name, saying, This Baltz is the same Baltz who …’ and so on. You understand? That’s our trouble.”
War seems to be the German sport—if not exclusively theirs—and the Germans seem to be poor sports. Baker Wedekind, without having read the ancient Romans, who made the same point on the subject of the Germans, said, “Churchill promised the English ‘blood and tears,’ and at the very beginning of the war. That you would never hear in Germany. You might hear it at the very end, and even then you would hear that we were still winning. We won all the battles, you know; we only lost the war. We are not good losers. I don’t know about you. You have never lost, have you?”
Americans have not had the Germans’ troubles, perhaps by happy accident, perhaps because they have not made such troubles for others as the Germans have. Americans are not injured, and they don’t feel injured. And, if they do, they do not characteristically whine. There is an unbecoming childishness in all this whining, a childishness which is not mitigated by one’s looking on one’s self as “little.” An American may be helpless, but he doesn’t know it. The stiff upper lip of the Englishman may be a national affectation, but he keeps it. These Germans, hitting out because somebody tells them to (or doesn’t tell them not to), are offended when somebody hits them back. Sacrifice and endurance are more arduously cultivated among the Germans than among other peoples, with strangely mixed success.
My Nazi friends were sorry for themselves because they were wrongfully injured. And they were wrongfully injured, you know; everyone is, in this life. And there seems to be a much greater accumulation of wrongful injury—injury suffered, that is, which weighs heavier than injury inflicted—in Germany than in places off the path of the last twenty centuries’ wars. So Germans whine. But there was the woman who told me, “It was my own fault. I should have been more courageous”; and the man who said, “I should have been man enough to say ‘No’ at the very beginning”; and the priest who stood on the scaffold after the unsuccessful Putsch of 1944 and said to his confessor, “In a minute, Father, I shall know more than you”—these, too, were Germans.
Being a German may make whining easier, but not inevitable. In October, 1945, the Confessional church of Germany, the “church within the Church” which had defied Hitler’s “German Christians,” issued the “Stuttgart Confession”: “We know ourselves to be with our people in a great company of suffering, but also in a great solidarity of guilt. With great pain do we say that through us has endless suffering been brought to many peoples and countries. That to which we have often borne witness before our congregations, we declare in the name of the whole church. True, we have struggled for many years in the name of Jesus Christ against a spirit which has found its terrible expression in the National Socialist regime of violence, but we accuse ourselves for not witnessing more courageously….” Those, too, were German words.
The juridical effort at Nuremberg to punish the evil-doers without injuring the losers—when punishment and injury came to the same thing and the losers were identical with the evildoers—was unlikely enough to succeed. The effort to convince my ten friends that they were evildoers was even unlikelier. In retrospect, there was one extremely remote possibility of its having been done more successfully in Germany than it had ever been done anywhere else: It might have been possible to exploit the Germans’ attachment to “the German spirit” and to have convinced them that this spirit, instead of being good, is evil. How to have gone about doing this I do not know. Certainly not by treating them hard; the Nazis used this technique on the Jews without convincing them of anything.