11

The Trials Begin

The Soviets placed captured Germans on trial for the first time in late 1943, less than a month after the U.S. Army Air Forces had determined that it would not try Nazis for war crimes as long as imprisoned U.S. airmen were still in German hands. This was actually the second known Soviet trial, but it was the first to prosecute Germans.

The USSR had opened the first recorded war crimes trial of the war the previous July in Krasnodar, near the Turkish border in the southern part of the country. There, they tried eleven Nazi collaborators accused of taking part in the murder of 7,000 Jewish civilians. The Krasnodar collaborators had executed the men by shooting them, the women and children by loading them on closed trucks that had been modified to channel exhaust fumes into the rear of the van. The vans—nicknamed Dushequbka (“Soul-killers”) by the collaborators and known as “black ravens” among the Jews—had been painted with false Red Cross insignia to encourage cooperation from the victims. (Interestingly, the inspiration for the design of these wagons has been attributed to SS Colonel Walter Rauff, who will return later in these pages during secret negotiations with Allen Dulles in the last weeks of the war.)

During the murder campaign, the SS had enthusiastically reported to Berlin that the Dushequbka saved German ammunition. But there were problems for the Nazis. The killing took a long time and sometimes failed. Einsatzgruppe D leader Otto Ohlendorf, who was in charge of mass-murder operations in the southern USSR, testified later that his troops experienced “spiritual shock” upon emptying the vans, because the dead had covered themselves with vomit and excrement during their death agony. The Nazis eventually developed more efficient death camp technologies to replace the vans.

The Soviet court in Krasnodar handed down prison sentences to three of the Nazi collaborators, then condemned the rest to death. The government encouraged a public celebration of the punishment and filmed the hangings in gruesome detail. Trucks brought the prisoners to the hanging ground, where executioners placed a noose around each convict’s neck. The trucks then slowly pulled away, leaving the men dangling and twitching until life was choked out of them. The camera caught every shudder.1

The war crimes trials that placed Germans in the dock for the first time were held in Kharkov, USSR, in December 1943. The Soviets prosecuted three captured German Einsatzkommando officers and a Soviet collaborator. All were convicted and hung.² The Soviet announcement of the verdicts made direct reference to the Moscow Declaration on Nazi crimes of a month earlier. This was clearly the type of quick justice that the Soviets had in mind when they had pledged with their allies to bring the Nazis back to be “judged on the spot by the peoples they have outraged.”³

Henry Morgenthau was at that moment struggling with the State Department to win approval for a U.S. program to aid European refugees, particularly Jews facing Nazi gas chambers. He issued a statement congratulating the Soviets on the trials, noting that by executing the Einsatzkommando officers at Kharkov, “the Russians are wiping from the face of the earth one of its most repulsive stains.… In so doing they are giving the freedom loving peoples firm confidence in the future.”⁴

But the State Department and the British Foreign Office were aghast at the Soviet trials and at Morgenthau’s response. Their concerns were amplified a week later when the Nazi party newspaper Völkischer Beobachter published on its front page photos of a captured U.S. pilot whose bomber jacket was emblazoned with a notorious gang’s name. “USA Air Gangsters Name Themselves ‘Murder Incorporated,’” the headline read. The prisoner was said to illustrate the “underworld character of the air terrorists.” Coverage in this and other German newspapers stressed the pilot’s destruction of civilians, including German women and children. The State Department interpreted the publication as an implicit threat that the Germans would place the airman and other American pilots on trial.5

Secretary of State Cordell Hull quickly announced that as far as the United States was concerned, the “direct handling of war criminals” did not fall within the terms of the recently signed Moscow Declaration—an ambiguous statement that raised obvious questions concerning just what it was that the declaration did cover. Green Hackworth’s office at the State Department dispatched a message to the Germans via a Swiss government intermediary, promising that the United States had no intention of trying captured German soldiers.⁶ Western press reports claimed that the U.S. and Britain appealed to the Soviets to postpone further trials of Nazis until after an armistice with Germany, though this was denied when it became public.⁷ Meanwhile, State’s political advisor James Clement Dunn huddled with colleagues at State and the War Department in an effort to line up critics of Morgenthau.⁸

The War Department distributed internal directives to U.S. forces stating that suspected Axis war criminals then in captivity were not to be separated from the general POW population, nor was there to be any indication that they were under suspicion.⁹ The practical effect of this order was to sharply restrict U.S. efforts to collect evidence concerning Nazi atrocities, including those that had been committed against American servicemen. There was no effective way to investigate Nazi crimes without systematically questioning prisoners on the subject—exactly the type of probe that the War Department ordered U.S. interrogators to avoid.

The Western concerns over POWs then in German hands carried little weight with the Soviets, however. The Nazis had systematically murdered about two million Soviet POWs through starvation, gassing, and torture since 1941. Holding off on trials of captured Nazis now would not improve the Germans’ treatment of surviving Soviet POWs.* To the Russians, their ongoing “demands for the immediate trial of Hitler and his savages fulfill the lawful rights of nations [and] are in accordance with international law,” a Moscow dispatch in the Communist party magazine War and the Working Class stated.¹⁰

Herbert Pell’s arrival in the United Kingdom was inauspicious. He disembarked in late 1943 with a serious case of influenza that hospitalized him for days. The weather was damp and chilly in England; the hotels usually unheated; and the food terrible. “The cold in London that winter was beyond anything I have ever suffered,” he remembered after the war, “and yet, it hardly ever got below freezing. It was the rarest thing. While you didn’t see any ice all that winter, as far as real suffering from cold was concerned, I have never been as badly off.” By all accounts the best kitchen in London was at the American officers’ club, where a dollar would fetch soup, some tough meat, and a nonsynthetic dessert. It was, Pell said, “about as good as a rather poor college commons in America, but immeasurably better than anything else in London.”11

Worst of all for Herbert Pell, there was little to do. The UN commission had remained dormant after its first organizational meetings. Pell had no offices, no telephone, and no fixed address for a number of weeks. “The result was that with no work to do and no particular place to go I walked and walked and walked over London, hour after hour. I lost a lot of weight and got to feeling more and more miserable,” Pell remembered. “When I say I had nothing to do, I mean exactly what I say. The commission existed, the members would meet once a week, and decide to put off the definite organization until later. Then we would go home.…”¹²

After two months of frustration, Pell turned his restless energy to the task of extracting substantive action from the bureaucracies he believed were stifling Allied initiatives on war crimes, not least of which was the UNWCC itself. His vision of the task ahead was more than a little bit bloody, as was reflected in an unpublished memoir he wrote shortly after the war.

The only book I read in preparation for the War Crimes Commission was a life of Antoine Fouquier-Tinville and the course of the Committee of Public Safety during the French Revolution. When the French Revolution was well under way a great many of the government officials were holdovers from the old administration.… Royalist and anti-government plots were going on all over the country. The Committee of Public Safety was organized. Fouquier-Tinville was put in charge of it, and the Terror began. A considerable number of people were executed. Many of them should have been perhaps only put in jail, a good many should have been let go completely; many of them were innocent.… However, the net result of Fouquier-Tinville’s activities was that royalism was suppressed.

I felt that we were facing much the same situation in Germany. It was far more important to prevent a third [world] war than anything else. We were not there to distribute divine justice. That is God’s business, not ours. It’s perfectly clear that the execution of a thousand people couldn’t revive one child, couldn’t console one widow, and could not remedy the hardships a single individual was suffering as a result of the treatment in the camps. Our business, however, was to see that those things did not occur again. I believed, and I still believe, that it would have been best to hang the entire Gestapo. It would have meant hanging a great many men, some of whom had not been mixed up in any of the atrocities. It would have meant that many … in the regular [German] army who had perpetrated crimes in the occupied countries would [also] be hung.13

Pell’s thinking was much in tune with public opinion of the day. Nine out of ten British men and women favored harsh punishment of Nazi leaders, the British Institute of Public Opinion reported in late 1943; some 40 percent of Britons favored summary execution of Nazis without trial, and 15 percent more called for torturing Nazis to death.¹⁴

In late January 1944, Pell wrote to Roosevelt and to Breckinridge Long (his nominal supervisor in the Foreign Service) seeking support for the first of several hard-line initiatives he wished to raise with the commission. In the letter to Roosevelt, Pell pushed for an international tribunal to try Nazis “who have committed crimes against the citizens of more than one country, or who have directed inhuman policies in Germany itself.” Pell was referring to actions that fell outside of previous definitions of war crimes, particularly atrocities against Jews and German civilians. “Delay and legalism will certainly make it impossible to execute the policies which you have outlined in many statements,” he continued. “I need your support.”¹⁵

The appeal to Long was similar, stressing the need for U.S. support for an “international authority” competent to try Nazis for crimes against “stateless people … [and] German citizens.” Pell knew Breckinridge Long well enough that it was pointless to appeal to him on behalf of German Jews. Instead, he argued that Allied radio propaganda had led “quite a number” of Germans to commit sabotage against the Reich; some of these rebels were said to have been caught and persecuted by the Nazis. “It does not seem to me proper to abandon these people merely because we cannot find any German statute which has been violated in their punishment,” Pell contended.16

FDR responded to Pell on February 12 in a personal but ambiguously worded letter that lent moral support to the diplomat without actually endorsing his proposals. “My dear Bertie,” FDR’s note began, then went on to support joint international action against those who had “directed inhuman policies in Germany.” But FDR’s letter favored military rather than civilian tribunals because “such people know or should know what the rules of warfare are and should be able readily to detect violations of those rules.”¹⁷ Pell chose to interpret Roosevelt’s comments as a strong endorsement of his own position, and he readily used this claim of presidential sponsorship in his political battles over the next few years. Many historians and journalists have accepted this correspondence as proof that FDR favored Pell’s strategy on war crimes over that of the State Department.¹⁸

In fact, however, the State Department’s archives show that FDR’s telegrams to Pell were actually written by Pell’s archrival, Green Hackworth, the man most active in State’s attempts to throttle Pell’s authority. The declassified memos and carbons show that the White House passed Pell’s letter back to State to draft a reply, where it ended up on Hackworth’s desk.¹⁹ All of the surviving FDR and Department of State letters to Pell during 1944 were actually drafted by Hackworth, regardless of whether the notes went out over the signature of the President, Secretary of State Cordell Hull, or Hackworth himself. The carbons of each note now in State’s archives carry Hackworth’s initials and those of his secretary in the lower-left-hand corner—a long-established custom used by the department for designating authorship.

A closer look at the “FDR” letters to Herbert Pell shows that while the language of these notes is sometimes ambiguous, it is nonetheless consistent with Hackworth’s restrictive interpretation of international law. This does not mean that FDR agreed with each of Hackworth and State’s attempts to obstruct the UNWCC. Clearly he did not, and in fact he complained to Secretary of State Hull about the delays in getting the UNWCC under way. It does suggest, however, that Roosevelt did not place a high priority on the discussions over war crimes, once the toughly worded condemnations of Nazi atrocities had been distributed. FDR was willing to leave the details to subordinates, and Hackworth understood how to make the most of that.²⁰

The ambiguities in Hackworth’s texts for FDR seem to have been intended to manipulate Roosevelt, or at least to avoid alarming him about the overall thrust of State’s policies. This is clearly indicated by the contrasts between the FDR notes and those that Hackworth wrote directly to Pell. In the latter, Hackworth explicitly ordered Pell to avoid UNWCC consideration of atrocities against Axis civilians. In the FDR letters, on the other hand, Hackworth sidestepped this explosive issue. If Hackworth actually had FDR’s full support, presumably he would have sought a clearer statement from the President on this issue as a means of more effectively controlling Pell. Hackworth’s resort to subterfuge in this case, as well as in his secret agreement with Pell’s assistant, Preuss, strongly suggest that Hackworth was pursuing his own agenda without clear backing from the White House.

Regardless of what Hackworth or Roosevelt may have intended, however, Pell interpreted the FDR note as support for his own hard-line policies. He succeeded in convincing most of the rest of the UNWCC that Roosevelt was behind him.

The work of the UNWCC gradually began to fall into place in the spring of 1944. Pell pushed hard for what he took to be FDR’s suggestion of military tribunals to quickly try many Nazis after the war, and he eventually got a UNWCC consensus on that point. The commission’s task of collecting evidence on specific atrocities was still not really under way, though, because British and American intelligence agencies refused to share information on events inside the Nazi-occupied territories. Pell eventually made some progress on this front when the UNWCC convinced Allied military authorities in late 1944 to adopt a standard form for use in questioning German POWs about war crimes. This approach permitted reasonably systematic collection of war crimes data from POWs for the first time, and it also succeeded in sidestepping the earlier War Department regulations against “singling out” war crimes suspects by asking all POWs the same battery of questions.21

Nevertheless, basic problems remained. In March 1944, Secretary of State Hull sent Pell explicit instructions to ignore crimes against Axis civilians, obviously including the systematic murder of Jews in Germany, Austria, Hungary, and Romania. (Again, this note was actually written by Hackworth.) “To assume to punish officials of enemy governments for actions taken against their own nationals pursuant to their own laws would constitute an assumption of jurisdiction probably unwarranted under international law,” the Hackworth/Hull message read. The Moscow Declaration, it continued, should be interpreted to apply only to Nazi actions inside the Allied countries they had overrun. A similar note signed by Under Secretary Edward R. Stettinius told Pell that Nazi crimes prior to the outbreak of war in September 1939 were to be regarded as outside the UNWCC’s purview, based on much the same reasoning.22

Hackworth’s position on these questions was strongly backed by Lawrence Preuss, Pell’s assistant. Preuss “evidently had secret orders from the State Department to undermine me in the Commission as much as he could,” Pell complained. “He told various members of the Commission that I was a personal friend of the President who had to be given some job … that I was of no importance in the country and that he, Preuss, really represented the State Department and its point of view. As a matter of fact,” Pell concluded, “he proved to be right.”²³

Pell confronted Preuss shortly after the arrival of Hull’s directive to suppress UNWCC inquiries into crimes within the Axis countries. Shouting and waving his arms, the giant Pell cornered Preuss and insisted that Hull’s narrow legalisms would have to be swept aside. “New laws will have to be created if necessary,” Pell insisted, “The failure to prosecute would be a mockery of justice.” Preuss claimed in secret reports to Hackworth that Pell also met with representatives of major Jewish organizations in Britain and the United States and urged them to organize a press campaign that would “build a fire” under their respective governments.²⁴

Preuss’s assignment in London was nearing its end. He leaked word of Pell’s actions to the British Foreign Office before he left, painting the U.S. representative and several other commission hard-liners as unstable eccentrics. Pell was making “dangerous mistakes,” Preuss confided, while the Czech representative, Dr. Bohuslav Ecer, was said to be “wild, unbalanced and indiscreet.” Pell sent a decidedly negative evaluation of his assistant’s work back to Washington, stating that Preuss had defied orders and violated UNWCC confidentiality rules. But Hackworth ignored Pell’s report and gave Preuss a promotion and a raise.²⁵

Foreign Minister Anthony Eden had appointed Sir Cecil Hurst as British representative to the UNWCC and as commission chairman. The Foreign Office regarded Hurst as a model of experience and probity. He had been legal advisor to the Foreign Office for many years, a member of the Permanent Court of International Justice at The Hague, and a regular representative of British interests in a variety of commissions and international conferences. Hurst was also into his seventies and unlikely to make waves—seemingly a perfect choice.

But Eden seriously underestimated his appointee, for Cecil Hurst joined Herbert Pell in engineering a basic shift in international law. In early April 1944, Hurst submitted an official report on the first four months of real work at the UNWCC. He stated bluntly that the stirring wartime pledges from Allied leaders that justice would be done to Nazi criminals would come to naught unless the Foreign Office changed its approach to Nazi atrocities. The Allies had submitted only a few cases to the commission, he reported, and those involved relatively minor incidents. The United States had not contributed any information concerning war crimes at all. Unless “drastic changes” took place, Hurst continued, “it will not be possible for the Commission to accomplish with satisfaction … the task which it was set up to perform.”26 The basic problem, he said, was the Foreign Office’s insistence on a narrow definition of “war crime” that excluded the bulk of Nazi atrocities from review and required that each registered complaint be accompanied by detailed evidence typical of conventional court cases.

Hurst also pointed to the magnitude of the task that confronted the tiny commission. By now, it was abundantly clear that Nazi atrocities had involved tens of thousands of perpetrators. As a strictly practical matter, how could criminality on this scale be documented, much less effectively prosecuted, by a dozen or so employees in London?

By starkly laying out the UNWCC’s failings, Hurst was attempting to gain for the group new authority and vigor. No longer would it be possible for the Foreign Office (or the State Department) to use the existence of the UNWCC to claim that the Western Allies were taking substantive action against Nazi crimes. Hurst pointed up the sharp contradiction between the sweeping promises made by Churchill and Roosevelt and the cramped legal instructions that had been given to the commission. Hurst’s report made it clear that the Foreign Office and the Department of State would carry the blame if efforts to bring Nazis to justice failed.

His demands gained new urgency on May 15, when the Nazis struck in Budapest, the largest surviving center of Jewish population in Europe. Hungary, a full Axis partner since the beginning of the war, had long since made preparations for killing Jews. Yet its government had generally held back from mass murder, much to the dismay of the Nazis. In March, the Germans deposed the existing regime and installed a more compliant government, whose principal task was to systematically destroy Hungarian Jewry prior to the arrival of the Red Army. Hungarian Nazis backed by the SS began roundups of Jews from the countryside and smaller cities immediately. In mid-May, they started the deportations to Auschwitz.

The Nazis and their Hungarian collaborators carried out this destruction with greater speed, efficiency, and thoroughness than any comparable extermination in the Reich. Within ten days they deported some 116,000 Jews to Auschwitz, many of them families with children. They shipped 250,000 more people to extermination camps before the end of June.27 The Nazis gassed as many people as they could directly on arrival, but even Auschwitz’s gas chambers could not keep up with the thousands of new victims who arrived each day. The German death machine became glutted on its own carnage.

The Allies knew of this slaughter, but they failed to stop it. Worse, they formally declared in secret decisions that the perpetrators of this crime were to remain immune from prosecution for what they were doing. Lord Simon of the British War Cabinet opposed even investigating the Hungarian deportations. It would only be “confusing” from a legal standpoint if those who had deported the Hungarian Jews were included in Allied war crimes lists, he contended on June 2. The Foreign Office representative, Sir Alexander Cadogan, strongly concurred.²⁸ Lord Simon secured an official rejection of most of Hurst’s proposals for the UNWCC and went so far as to argue that even the murders of Americans, Poles, and French civilians in Nazi concentration camps were legal under German law and were therefore probably impossible to prosecute. The British War Cabinet ruled in late June 1944, at the height of the gassings of Hungarian Jews at Auschwitz, that the UNWCC should be prohibited from even collecting information on the murder of Axis nationals.²⁹

Three weeks later, the Soviets seized Majdanek, the first true death camp to fall into Allied hands more or less intact.³⁰ The Nazis had gassed to death about one and a half million people at Majdanek in less than two years, murdering an average of well over 15,000 people per week, about half of whom were children. This made Majdanek one of the “smaller” extermination centers, at least compared to Auschwitz and Treblinka. The overwhelming majority of the dead were Polish Jews.

Pravda carried an extensive account of the Majdanek camp, complete with photographs of gas chambers, crematoria, and heaps of human bones. The tabloid London Illustrated News soon picked up the photos and ran them as well. But the “prestige” press, refusing to accept the Soviets’ evidence, provided only sketchy and skeptical accounts. War correspondent Alexander Werth prepared an extensive story for the BBC during early August, but his superiors suspected that Majdanek might be a “Russian propaganda stunt” (as Werth put it) and refused to air it. The New York Herald Tribune’s response was similar. “Maybe we should wait for further corroboration of [this] horror story,” the editors told Werth. “Even on top of all we have been taught of the maniacal Nazi ruthlessness, this example sounds inconceivable.…”31

* The issue touched Stalin personally as well. The Germans had captured his eldest son, Yakov Dzhugashvilli, in the opening days of the war and interned him in a special barracks at the Sachsenhausen concentration camp for prisoners they regarded as politically useful. The SS and German military intelligence pressured the young man to collaborate, but they had little success. This did not deter them from using Yakov’s photograph and (purported) comments in propaganda leaflets that they showered on Soviet troops in an effort to convince them to surrender.

Stalin refused to intervene with the Germans on behalf of his son. Yakov, he said, must be regarded as just a Soviet POW, one of more than three million Soviet prisoners in Nazi hands. Any concessions to the Germans would almost certainly have been exploited by the Nazis as “proof” of Stalin’s betrayal of his own troops on behalf of his family.

Yakov grew deeply depressed as he languished in the Sachsenhausen camp. In April 1943, there was a bitter fight among the prisoners in the privileged barracks, and some English POWs denounced Yakov’s fellow inmate, Vasily Kokosyn, as a Gestapo informer. (Kokosyn was the nephew of Soviet foreign minister Molotov.) The English smeared feces on Kokosyn and apparently on Yakov’s bunk as well. That evening Yakov committed suicide by deliberately trying to scale the camp fence in front of an SS guard, who shot him once in the head. Yakov died instantly.

The SS chose to keep their prisoner’s death a secret, in order to continue to exploit Yakov’s image in German propaganda. Nazi emissaries are reported to have even attempted to approach Stalin with a renewed deal to “free” Yakov in exchange for Soviet concessions more than a year after the young man had been shot. Stalin refused the offer.

According to Stalin’s daughter Svetlana, the Soviet leader was moved by his son’s condition, despite Stalin’s earlier psychological and physical cruelty toward the young man. “He spoke to me about Yakov again in the summer of 1945, when the war was already over,” Svetlana remembered in Twenty Letters to a Friend.” ‘The Germans shot Yasha,’ [Stalin said]. ‘I had a letter of condolence from a Belgian officer, Prince somebody or other. He was an eyewitness. The Americans,’” Stalin concluded, “‘set them all free.’” Svetlana indicates that her father “spoke with an effort and didn’t want to say any more”—one of the few displays of personal emotion by the Soviet leader recorded by his daughter.