The defence case began on 8 March 1946 – in spite of an attempt by the defence lawyers to delay it for three weeks. On 4 February, Dr Stahmer had written to the Tribunal on behalf of his colleagues pleading for a recess at the end of the prosecution case to give defence counsel time to prepare. His request was repeated in court by Dr Kraus on 18 February. The judges decided to refuse a three week recess. (1) They pointed out that at the end of the prosecution three days would be devoted to hearing argument on the case against the organizations, with a further four days hearing applications for defence witnesses and documents. This should give ample time to prepare the cases for the defendants – even for Dr Stahmer whose client would appear first. (2)
The prosecutors, on the other hand, might well have been more ready to grant a delay. When they discussed the matter in meetings on 12 and 15 February, Maxwell-Fyfe and Dubost were quite willing to consider a recess of anything up to a week, and they talked the Russians round from total opposition to any delay to acceptance of two or three days for defence preparations. Jackson had argued most forcibly for allowing an adjournment of at least a week, maybe more. He had urged the need ‘to avoid any risk of marring the long-term effects of the trial’, and quoted the criticisms by the New York Supreme Court that the trial of Yamashita had been rushed. Jackson stressed that the prosecution was indebted to the defence for their conduct thus far; it would be wrong to be too hard on them over this matter. He even expressed the fear that to refuse the defence request might result in them ‘throwing up the case’. (3)
The Tribunal, however, did not consult the prosecutors, and it was unanimous in rejecting the defence request. Underlying the judges’ insistence that the defence case should start promptly was undoubtedly a concern that an already lengthy trial might be intolerably dragged out – either by an impractical desire for perfection or by deliberate obstructionism. The judges were not seeking to skimp on the defendants’ cases; on the contrary they were determined to examine them thoroughly. But they were anxious that public respect for the management of the trial should be maintained. Attention at this stage to the Charter’s call for a ‘prompt and expeditious’ trial would both satisfy public expectations and serve notice that the Tribunal intended to keep a firm control over the proceedings and to discipline its participants. Yet the Tribunal’s subsequent handling of the defence case would dearly demonstrate its readiness to grant a fair and full hearing and its view that saving time was not the sole priority.
Furthermore, the Tribunal had already shown some impatience with defence complaints about inadequate time for preparation. Their reprimand to Babel who had asked for a day’s notice before cross-examining a witness had been but one example of several. Too many of the complaints about lack of time had turned out to be unsubstantiated. Dr Seidl might believe, then and now, that the defence had been denied fair warning of the case they must answer because the Continental practice of presenting all prosecution documents with the indictment had not been followed; (4) Papen might write in his memoirs that it was difficult to work up a defence because he ‘did not know what documents the prosecution possessed’. (5) But, in fact, the defendants had known the charges they faced since they received the indictment on 19 October; thanks to the compromise reached at the London Conference, that indictment had been accompanied by a selection of documents indicating the nature of the evidence on which the charges were based. All the German lawyers had been appointed by 10 November. They could have started work immediately on a general defence – indeed some of them had had a clear enough idea of the lines they would pursue to start applying for witnesses and documents by the end of that month. (6) Though the bulk of prosecution evidence accumulated only gradually as documents were presented during its case, the defendants and their counsel had sat in court every day since mid-November and heard extracts read and received document books. Pace Papen, he had begun to know what documents the prosecution held from the day he read the indictment; by March the defendants knew only too well the evidence on which the prosecution case rested – and what a terrifying quantity of it there was. Even by Christmas, the American and British counts had been completed; it was possible to start work then on a defence against accusations of conspiracy and waging aggressive war. For anyone still needing clarification of these accusations, summaries of cases against individuals on the first two counts had been presented in court in January; the evidence against each had been collated, printed and circulated. There was plenty for the defendants and their lawyers to be getting on with before the French and Russian cases began. With such possibilities open to the defence, the Tribunal could well believe that lawyers who had been so dilatory did not deserve three weeks’ grace, though some undoubtedly needed it.
Defendants or their counsel, however, have seldom mentioned these opportunities in memoirs or interviews. Instead they have tended to concentrate on allegations of unfair practice hampering the possibility of an adequate defence. Many give the impression that they never had access to essential prosecution material. But in fact after the initial muddle and incompetence of the early weeks, a steady flow of documents had been established. Before long, defence lawyers had been able to get the transcript of a day’s court proceedings within forty-eight hours. Though only extracts from documents were read in court, each document was given an index number. It was easy to go to the Document Room and ask for a copy of the whole. Even when the demands on the copying equipment were heaviest the request would be met after a week. (7) Dr Seidl has gone so far as to register indignation that the defence was only allowed to see a mere photostat of an original document. (8) He seems unaware that that rule applied to the prosecutors too; originals were reserved for the Tribunal alone. No one has shown that copies were not genuine or complete. Ribbentrop complained in his memoirs, written in Nuremberg jail, that one of the diaries of the Italian Foreign Minister, Ciano, which was used against him was ‘certainly a forgery’ and that he could never find out whether the photocopies were based on the real or the faked version. (9) He might have noticed in all the months he sat in court that every document submitted had to be accompanied by a certificate of its source and authenticity. Where there was real doubt counsel could challenge authenticity in court. They frequently did so, sometimes successfully. The proper and effective time to complain was in court, not in memoirs.
Besides, the complaints do not always stand up to examination. A recent German author, Werner Maser, has suggested that several defence counsel were horrified that so many prosecution documents were ‘untranslated’. He does not point out that though extracts might be read in court in English, French or Russian, they were translated into German by the simultaneous translators; they were printed in every language in the transcripts and document books. In any case, nearly all the documents were in German in the first place. If anyone should complain about lack of translations – and then only at the stage of preparation – it is the prosecutors. Maser is also ready to retail an accusation from Doenitz that ‘thousands of documents which seemed likely possibly to incriminate the Allies and exonerate the defendants suddenly disappeared’. Even if one ignores the folly of presuming that the court would have accepted tu quoque evidence (whatever others might have done it did not legally cancel out or excuse criminal acts by defendants) it is significant that Maser does not name a single document allegedly suppressed in this way. Any confidence in the accusation is destroyed when he goes on to say that they could only be removed by officers who were under the command of Colonel Andrus. Agent of Sinister Powers does not seem type casting for Andrus; nor does Maser show any understanding of Andrus’s actual powers and limits of authority in the court house. The whole story collapses when Maser repeats Doenitz’s claim that his accusation was finally proved by what the author calls ‘a source in Tahiti whose name cannot be given for obvious reasons’. (10)
Too many of these complaints and allegations are either silly or actually dishonest. They do grave disservice to their cause because they detract from the sympathy which ought to be felt for the serious problems the defence experienced. Many of these stemmed from the handicap of working with such tiny staffs. Prosecution teams added up to hundreds. Defence lawyers, on the other hand, were lucky if they could summon an assistant and a secretary. Thanks to their large pools of manpower the prosecutors could both maintain a presence in court and find ample staffing for the work in their offices. The German counsel, by contrast, were obliged to sit in court all day, every day – the Tribunal insisted they be available to guard their clients’ interests and cross-examine relevant witnesses. Meanwhile, an assistant or secretary would be left to struggle with the hundred and one jobs occasioned by the prosecution charges and evidence and the practical needs of the defence. Court attendance prevented daytime consultations with clients, while in court the lawyers could only exchange brief scribbled notes with defendants on matters of immediate concern. At lunchtime counsel and defendants had to go their separate ways to their own canteens. This left only the hours after 5 o’clock, hours when everyone was tired and strained, for lawyers to consult their clients, to log the transcripts, plough through the stacks of documents used by the prosecution and to try to find their own evidence. Maxwell-Fyfe told them when they requested a three week recess that no one could work up a case without burning some midnight oil. (11) The German counsel undoubtedly had to burn very much more than their prosecution counterparts who could call on so many assistants, researchers and secretaries.
Their use of midnight oil would have been more economical, the time available for preparation would have seemed longer, however, if defendants and their counsel had anguished less and put more thought into a practical approach to the needs of their defence and had exploited the real advantages they possessed. The prosecution had clearly laid out the charges to be answered and the evidence on which they were based. The defence had been given lines to work along, limited areas which must be covered. They were not starting from scratch or thrashing around in the complete archive of the Third Reich, as the prosecutors had been, before they could determine what matters were relevant. More importantly, they were not shackled by the abysmal ignorance which had so impeded the prosecutors. They were Germans, working with their own history and on material in their own language. Their clients were the men who had shaped the policies and made the decisions against which prosecution allegations were directed; they were in the best position to give alternative explanations and analyses. Unlike the prosecutors, these men knew the chain of command, the machinery for decision, the distribution list for memos and orders. The prosecution had groped and blundered for months trying to understand the structure of Nazi government and the armed forces; they had stumbled in and out of blind alleys before they could assemble a picture of Nazi policies and the involvement of individuals in them. Often it had been sheer chance rather than understanding which had enabled them to discover the minutes of meetings or documents recording orders. Knowledge painfully and sometimes only partially acquired by the prosecutors was already possessed by the defendants.
Unfortunately the defence seems to have insufficiently appreciated such advantages, and they did not develop what resources they had. Rather than concentrate on rebutting the specific allegations which had been made, too many defence lawyers devoted their time and zeal to obtaining and trying to use documents which they must have known would be declared inadmissible. They wanted Nazi government White Books – official justifications for policies backed by carefully selected and edited Allied documents. They chased evidence of crimes by others such as the secret protocol to the Nazi-Soviet Pact, or British plans for an invasion of Norway. Such material was all too obviously intended for a plea of tu quoque and would never be accepted by the court. In spite of the prohibitions expressed in the Charter and repeated rulings by the Tribunal, they put it into their document books and tried to slip it into the proceedings – even when permission to use individual documents had been refused after application. They then expressed outrage when the Tribunal would not accept such evidence. Too many counsel relied on elaborate defences constructed on German grievances about the Versailles Treaty and claims that it had ceased to be binding in any respect since others had failed to comply with its requirements on disarmament. This was to imply tu quoque and to stretch a single debatable point which – even if conceded – could in no way excuse the wide variety of alleged subsequent crimes.
Papen recognized in his memoirs: ‘It is true that tu quoque is a bad defence,’ (12) but went on to say that it seemed necessary to show whether certain international laws were respected at the time of his alleged crimes. This suggests a belief that if everyone breaks the law it ceases to exist. Legal theory and practice have always shown otherwise. If, instead, Papen and others had argued that there was no law to guide their behaviour or that existing law was too vague and ambiguous to be effective, they might have established a much sounder defence against some of the charges they faced. After all, several of the participants at the London Conference had not been convinced that aggressive war was a crime in international law, even though they had succumbed to pressure to make it a charge. Those defendants who were to press this fundamental point of law in their cases were to make an effective showing.
The fruitfulness of questioning what international laws existed to govern the defendants’ policy and how their ambiguities had been open to different interpretations was demonstrated in the winning strategy devised by Kranzbuehler, counsel for Doenitz, who also worked on the legal bases of the naval case as a whole. He asked the Tribunal’s permission to send an interrogatory to the American Admiral, Nimitz, to ascertain what had been the actual practice of the American Navy in the Pacific. He got it. His request had been skilfully framed to avoid implications of tu quoque and to stress the need to establish current interpretations of uncertain naval law. (13) Similarly he convinced the Tribunal of his right to apply to the British Admiralty for both German captured documents and for British naval papers. Again, he had based his request on the argument that where the law was acknowledged to be vague or disputed it was necessary to examine actual practice. This application received backing from Maxwell-Fyfe who pointed out to the Admiralty that it would be helpful if Kranzbuehler’s assistant were allowed to look for the material he wanted in person. Otherwise, he suggested, no one would be convinced that Doenitz and Raeder had been given reasonable facilities to defend themselves. ‘Nothing short of this will really be fair to the defence or will completely satisfy them or the Tribunal that justice has been done.’ (14) The Foreign Office, often leery of revealing its own documents, seconded his request, though Mr Troutbeck querulously enquired whether, ‘if Ribbentrop’s defending counsel asks permission to come over and examine the whole of the diplomatic documents in our possession, will he be allowed to do so?’
The Tribunal’s answer to such a request from Ribbentrop would have been ‘no’. They were sympathetic to requests for evidence which could be shown to be relevant but they were not prepared to countenance what became known as ‘fishing expeditions’. They might well have permitted a trip to examine a limited number of documents in a few clearly specified areas, but it seems doubtful that Ribbentrop would ever have been capable of framing a sufficiently uncloudy and concrete request. Kranzbuehler had set an example of how to get what was wanted by approaching the Tribunal using the forms which they accepted. Other counsel were much too vague. They requested facilities provided by the General Secretary to copy mountains of documents on the off-chance they might discover the odd nugget in them. The Tribunal had to remind them that ‘in order that time should not be wasted and money should not be wasted it is necessary to show whether witnesses and documents have any shadow of relevance to the issues raised.’ (15) All they asked was to be shown ‘a shadow of relevance’. They interpreted the rules of evidence very broadly.
Not broadly enough for some people. Papen complained he was not allowed a complete set of Cabinet minutes. Perhaps if he had asked only for those meetings he himself attended and shown why they were necessary he would have got them. He also complained he was not given his private papers which had been left in Berlin and at Wallerfangen. (16) Schacht too denounced the fact that he was ‘not allowed access to the complete material which the Allies had confiscated’ from his personal archive. (17) Again, a specific request might well have elicited a different response. Yet neither man actually names in his memoirs a single document from these ample stores which would have significantly improved his case. Conceivably, to be padded round with one’s private papers at such a time might give a sense of security; some might jog the memory or ease the process of seeing the design of a lifetime’s work. It is however a sad possibility that those defendants and counsel who could never see the wood for the trees would have become even more confused if surrounded by a forest. All too many defendants registered grievance about lack of access to papers. But Fritzsche, for example, never thought to mention the help he received from the prosecution and the General Secretary when he was looking for letters he wrote to Himmler enquiring about rumours of extermination of the Jews. Nor did he record that every effort was made to obtain BBC recordings and transcripts of speeches he had made between 1933 and 1945. (Unfortunately the BBC could never afford to keep discs on which such recordings were made and only began to monitor Nazi broadcasts in 1939 and even then only kept brief summaries.) (18) This lack of evidence on the Fritzsche case was to prove as frustrating to the prosecution as to the defence. Not surprisingly no one since the trial has put into writing what one defence lawyer told Robert Kempner at the time: that he was afraid to look too thoroughly into his client’s papers in case he turned up yet more incriminating material. (19)
The defence has, however, very properly recorded a genuine impediment to their work – the need to apply openly to the Tribunal for documents and witnesses and to submit their requests to argument from the prosecution. This procedure undoubtedly saved time and trouble later in court, but it robbed the defence of the element of surprise. It forewarned the prosecution of the line the defendants would take and showed them the exact contribution which the evidence was intended to make. The prosecution thus had time to prepare their counter-attack, to study defence documents and find their own to challenge them, to research the backgrounds of witnesses and design effective cross-examination. Since so many potential defence witnesses were prisoners-of-war, they could be interrogated. The system of open application resulted in the defence having to reveal most of its cards before playing its hand.
Not all defence complaints about Tribunal processing of defence requests are justified, however. Maser expresses indignation that only four of Jodl’s nineteen applications for witnesses were granted – on ‘grounds of time’, he says. (20) Concern about time was not at the root of the Tribunal’s decisions. The rule which they stated again and again was that the evidence to be given by a witness should neither be cumulative nor irrelevant; exactly the same rule had been applied to the prosecution. Witnesses must also present evidence on matters germane to the issues of the trial. When Seyss-Inquart’s counsel applied for thirty-seven witnesses to show his client had averted atrocities and mitigated the severity of Nazi occupation of the Netherlands, the judges pointed out that the prosecution had not actually offered any evidence on crimes there. If he insisted on dealing with Seyss-Inquart’s governorship he ‘must select a reasonable number of witnesses who have general knowledge of the conditions he wishes to prove’. To request thirty-seven for this purpose was hardly reasonable. (21)
Nor were many of the requests made by Ribbentrop. They gave the impression he was arranging one of his smart cocktail parties in his London embassy rather than preparing a defence. He wanted to call the Duke of Windsor, the Duke of Buccleuch, Lord Derby. (22) Since he could think of no good reason for their summons he was not allowed to issue it. His application for Winston Churchill was turned down too. Ribbentrop was not the only defendant to want the former Prime Minister, and like the others he failed to counter the prosecution argument that he could not provide any relevant grounds for Churchill to appear. There was no argument over his requests for Lord Dawson of Penn or Geoffrey Dawson, once the editor of The Times - both were dead. But there was some debate about his wish to call Lords Vansittart, Londonderry, Beaverbrook and Kemsley. For once Ribbentrop’s interest was less in their titles than in what he hoped they might say about his ‘desire for Anglo-German co-operation’ and ‘hopes for peace’ which he claimed to have shown both as ambassador and Foreign Minister.
Maxwell-Fyfe warned the Foreign Office that these requests might well be granted by the Tribunal and asked for guidance. (23) The Foreign Office view was the same as the one they expressed when Goering applied for Lord Halifax, Sir Alexander Cadogan and Sir George Ogilvie-Forbes, once counsellor in Berlin. They saw no reason to prevent those in private life giving evidence for the defence. Although they felt there might be a chance to plead ‘public policy’ to prevent serving officials having to attend the trial, ‘when a man was on trial for his life it would be unreasonable’ to deny him such witnesses. (24) But appearances in court could be avoided if all the eminent gentlemen agreed to answer defence interrogatories. They did so. The questions were forwarded to them, often with ‘helpful suggestions’ from Professor Woodward as to their answers. (25) There was consternation when those of Lord Londonderry were returned together with a bill for £5 6s from a notary who had come to his home to witness his signature. After a frenzied exchange of minutes and memos, the Foreign Office reluctantly agreed to pay it on the grounds that his Lordship was too old and ill to go the notary’s office in person – but they warned that this should not establish a precedent. (26)
The real difficulty faced by the defendants was not in getting well-chosen witnesses accepted by the Tribunal but in finding any witnesses at all. Many of their former colleagues were dead, others had fled abroad or gone into hiding in Germany. Not surprisingly many old Nazis and former officials were trying to keep their heads down in 1946; they had no wish to draw attention to themselves in a highly publicized trial nor to risk damaging their chances of settling into anonymity or getting through their de-Nazification proceedings. A system resembling the use of the subpoena had to be introduced to coax the unwilling into court. This could only be applied if a possible witness could be traced – a formidable task for the occupation authorities in the chaos of post-war Germany. The complications were increased by the fact that so many requested witnesses were lost in the jumble of prisoner-of-war camps or internment centres and had to be sought in the records of four different Zones.
Even when documents could be found and witnesses traced, the defence were further troubled by various unfamiliar procedures for presenting their cases. German lawyers were accustomed to judges playing a much more active role in a trial, examining defendants and witnesses. The court insisted that witnesses answer questions, whereas in German law they had the right to refuse. In re-examining witnesses, defence lawyers could deal only with points already raised by the prosecution’s cross-examination rather than raise an endless series of new matters. Further, the German counsel had had no experience of the Anglo-American adversary process where the job of counsel is not to establish facts with the Tribunal, but to undermine the validity of their opponents’ evidence. Not until this trial had they practised the art of cross-examination which can so effectively lead witnesses into pitfalls and shake confidence in their testimony as a whole.
The defence counsel, however, seemed to have been unduly shaken by the unfamiliarity of the procedure they were asked to follow and to have allowed themselves to be hamstrung. They and their clients have since accused the system of being unfair because it was new to them; they sometimes imply it was rigged against them. But, after all, the procedure was new to all the participants in the trial. The Charter and the judges’ rules were hybrids of Continental and Anglo-American practice. The prosecution had to struggle with unwelcome novelty too. The defence had had nearly four months to observe the ways in which counsel can examine witnesses. Most of them had practised cross-examination on prosecution witnesses, and some of them had shown a natural aptitude for it – which is more than can be said for some of the prosecutors. The French and Russians were as untrained as the Germans, the Americans were out of practice if they had ever had any. The Germans could have taken comfort and learned a lot more from the examples and failures of their adversaries.
They could also have relished a right denied them under German law but secured for them by the International Military Tribunal. At Nuremberg each defendant might give evidence in his own defence – though if he chose to do so he must take the oath and submit to cross-examination by the prosecution. This was standard practice in British and American courts but not on the Continent. But awareness of the right seems to have come as a bombshell to the Russians in February. They behaved as if they had never read the Charter, or at least had failed to realize what it meant. They said they were appalled by the prospect of defendants testifying under oath. In a private session of the judges on 20 February they refused point blank to allow it. Biddle recorded that the session developed into a ‘terrific fight’. Nikitchenko maintained a vigorous objection to the procedure; Parker was so shocked at the thought that defendants might be robbed of a right that he threatened to resign. Biddle issued a stern rebuke to Parker for considering such extreme protest. Finally enough order was restored for a vote to be held – and the other judges voted the Russians down. (27)
But that was not the end of the matter. The Russians would not be pacified. They next refused to countenance the idea that defendants and their witnesses would sit in the very same box as that used by the prosecution witnesses. They reacted as if sacrilege was about to be committed on sanctified fabric. There was no reasoning with them. The meeting broke down with no decision and a deal of bad feeling on both sides. It was a rare example of the judges failing to settle arguments amicably and with common sense. Lawrence had to repair unity and broken tempers. He tried a private approach to Nikitchenko and the suggestion that the real issue to be settled was one of security: the witness box stood near the end of the Tribunal’s bench and a defendant might be able to aim a blow at a judge. (Presumably the handiest target would have been Volchkov.) Why not move the box to a safer position? Once moved would it really be occupying the prosecution’s ground? So might it not be seen as a rather different box? The security argument was thin, the symbolism of the move was threadbare, but they were enough for Nikitchenko. He must have recovered his temper and been pleased by any opportunity to display his usual practical and co-operative spirit. He seized the proffered olive branch and good relations between the judges were restored. (28) Anglo-American rights and obligations had been conferred on the defendants. Ribbentrop’s counsel was none too pleased. He protested that the procedure was unfair to his client. (29) (If he meant that his client would be incapable of standing up to cross-examination or even working through a prepared defence in court, he was right.) But others welcomed the chance for defendants to present their cases personally and with the guidance of their counsel.
Whatever the advantages or disadvantages of the procedure evolved for the Nuremberg trial, whatever the grounds for complaints about it, there is little doubt that the physical conditions in which the defence had to be prepared were far from comfortable. Defendants and their counsel met in Room 55 in the Palais de Justice – the Defendants’ Visitors’ Centre. It was a large room, originally simply furnished with rows of tables and chairs. Inevitably it was noisy; concentration was difficult against the background hubbub from twenty other discussions. It became even harder when those responsible for security exclaimed in horror at the sight of open tables and insisted on putting the defendants into separate booths and cutting them off from their counsel with mesh grilles. The partitions were flimsy and did not reach the ceiling, so did nothing for sound insulation. The fine wire mesh made people feel sick or giddy and eventually one central section had to be replaced with a glass panel. But everyone then had to raise their voices to penetrate to the other side, making the room even noisier and the strain of working there even greater. Rivalry broke out as defendants staked claims to booths thought to be quieter. Goering asserting his position as Number One Survivor of the Reich and Number One on the Indictment grabbed Booth Number One – it abutted on to the wall of the outer office so was only exposed to sound from one side. He did not keep his privileged position for long. Emma Schwabenland, who was in charge of the Defendants’ Visitors’ Centre, soon established a rota for the use of the booths; everyone was to have a chance of enjoying relative calm and quiet.
Emma Schwabenland was an outstanding example of how individuals could do something by small gestures to ease the unpleasant lot of the defence. It was possible to maintain the consideration and good manners which would be expected in the outside world, but which were too often forgotten in Nuremberg in relations with former enemies and potential security risks. Miss Schwabenland was an American schoolteacher who had learned German when she spent a year as an exchange teacher in a German school. She had come to Nuremberg as a translator of documents, but Colonel Dostert who always possessed a good eye must have soon recognized her as conscientious and sensible. He asked her to take over the Centre, originally just to help those German counsel who did not speak English – and insisted that they be treated with every courtesy. There was no need to insist. Miss Schwabenland would not have behaved in any other way. Her role and usefulness soon expanded. She imposed proper behaviour in the Centre as she would have imposed it in her classroom. She was firm but not a martinet. Defendants drilled to stand to attention when Allied officers appeared were allowed to remain seated as Miss Schwabenland popped in and out of their room. By small acts of concern and sensitivity she soothed the irritations of their counsel. For instance she kept matches for them. Lawyers were allocated a cigarette ration but matches were unobtainable. She got them shoe laces and saved light bulbs thrown away by profligate electricians. Where there seemed no sense in sticking to the rules she bent or broke them. Defence lawyers, like all Germans, were forbidden to write to relatives abroad. This was a source of anxiety and distress. Miss Schwabenland was prepared to accept a few letters from trusted counsel, vet them, and forward them through her own relatives to the States. She defied the prohibition on fraternization and invited favourite counsel to parties. Gradually her help was extended to the prison chaplains who were responsible for reading most of the prisoners’ incoming mail. Her knowledge of German and her tact were useful to them when large numbers of letters were arriving. There was no gossip about what had been read. When letters were vitriolic or threatening, which they often were, they were simply dropped in the wastepaper basket. (30)
Whatever problems and discomforts the defence faced, they could not overlook for long the fundamental inescapable worry – how could they counter the prosecution case? They had heard grave charges, backed by telling witnesses and damning documentary evidence often quoting the defendants themselves. It was a frightening challenge to find holes in such a case. What could the defence hope to find that might extenuate their clients, let alone disprove the charges? The defendants had met daily until the imposition of separate lunch rooms and solitary confinement. The record of their discussions during these months suggests that few of them had begun to entertain the possibility of a genuine defence. There was little doubt that the alleged crimes had taken place, merely assertion that others had born even greater responsibility for them. Such scraps of favourable evidence as they found challenged only details of the prosecution case and did not amount to a real counter attack against the whole. The best the defendants could do was to agree to pass on any useful documents which might turn up (though Fritzsche suggests that the military were reluctant to do this) and promise not to save their own skins by turning against each other. Blame could be hurled at the dead, at Himmler and Goebbels (though preferably not Hitler), but not at fellow defendants.
Some of the American staff had hoped to drive wedges between defendants by coaxing individuals to turn King’s, or State’s, evidence. The Russians had prepared denunciations for Fritzsche to sign when he was in the Lubianka. Several American counsel wanted to develop contacts with German lawyers to test the willingness of their clients to ‘co-operate’. Goering would have been the most desirable prey. It was argued that his vanity would make him vulnerable to an approach from the prosecution and that his desire to play the hero would lead him to give a full account of Nazi policies in the belief that he was defending and promulgating them. Robert Kempner was sent to make contact – a German native, even once Goering’s subordinate in the Prussian Ministry of the Interior, if only for a few days. Stahmer, Goering’s counsel, nosed the bait, nibbled briefly and suggested that Goering might lend assistance in return for a promise that he would be shot by a firing squad rather than hanged like a common criminal. The Americans would make no promises. They got no statement. Kempner himself says he had undertaken the negotiation reluctantly – he felt that no one should deal with such a man; no one should sup with such a devil however long their spoon. (31)
Jackson too, was resolutely set against the idea. He thought that any bargaining or backstage negotiation with the defendants was outrageous in a great trial involving profound moral and legal issues. If his hopes for a major and lasting development in international law were to be realized he felt that the Tribunal’s judgement must be based on law and on the evidence it had weighed, not on lawyers’ tricks and testimony extorted from the frightened hoping for leniency. (32) Furthermore, he had too much confidence in the strength of his case to need to resort to trading and enticement. Some of his colleagues were not convinced. Bill Donovan in particular wanted to pursue the line of getting defendants to denounce their regime or their colleagues. Paradoxically the possibility of splitting the defence resulted in an irreparable division in the prosecution team.
Donovan was taken by a subtle approach from Schacht in November 1945. Schacht’s lawyer wrote Donovan a flattering letter praising his ‘high standing’, ‘experience’ and ‘wisdom’. It suggested that his client might consider providing a ‘brief summary of the underlying reasons and conditions of the Nazi regime’. It was the most delicate of hints. If challenged, Schacht could easily assume righteous indignation (one of his great talents) and deny he had offered real co-operation. Donovan was excited by it, however, and urged Jackson to follow it up. He argued it was unnecessary to give any promises or make any bargains. Jackson was not to be persuaded. His refusal and Donovan’s continued enthusiasm for the attempt finally severed their already strained relations – the result of Donovan’s resentment of Jackson’s authority in the team and his failure to make witnesses rather than documents a major part of the case. Jackson was emphatic: ‘We do not see alike about the defendants such as Schacht. I do not think he will help us convict anyone we do not already have convicted on the documents.’ Riled by Donovan’s insistence he now refused to allow him to cross-examine any defence witness. This was the last straw. Donovan replied with a strongly-worded memo criticizing Jackson’s handling of the whole prosecution case and stating his intention to leave Nuremberg. He did so soon afterwards. (33)
Schacht had not been alone in sounding out the prosecution’s attitude. Keitel had pondered the possibility of salving his conscience. He had discussed the idea of making an offer to the prosecution in his early interrogations with Thomas Dodd. (34) Dr Nelte, Keitel’s lawyer, then told Robert Kempner of his client’s willingness to assume full responsibility for his orders so as to relieve his subordinates of blame. Kempner made no promises; he just sent the message to Keitel to go ahead and confess if he wished. Keitel, however, got cold feet. Never in his life had he acted willingly on his own initiative. His counsel might have suggested that a confession could produce some mitigation of sentence, make the task of defending the General Staff easier, but Keitel was used to acting not on suggestions but on orders from superior officers. He consulted Goering. Goering’s views were predictable: on no account were the defendants to break rank and weaken the united front. Keitel wrote to Kempner to explain that after a sleepless night he had changed his mind. There would be no confession. (35)
Denied co-operation from the defence, the prosecutors had to rely on their own wits and on carefully prepared cross-examinations to fend off counter attack during the defence case. As early as October they had tried to anticipate the approach the defendants might take. Jackson had warned that they must expect applications for such witnesses as Churchill and Molotov; he had been ready to urge the Tribunal to ask for proofs of relevance before such prestigious witnesses were obliged to appear in court. In the event, the Tribunal needed no urging to establish its rules for granting defence witnesses and documents. At the meeting of chief prosecutors on 30 October, Jackson and Maxwell-Fyfe reached the same conclusion from Jodl’s requests for records of war crimes committed by the Allies – namely that the defence was preparing a case based on tu quoque and the right of reprisal. They agreed to invoke the Charter to stymie the use of tu quoque and Maxwell-Fyfe suggested reminding the Tribunal that at the Leipzig trials after the First World War the German judges had ruled it out of order. Even so, all agreed to prepare lists of possible defence allegations and to draw up lists of answers to them. (36)
In particular, the British, Americans and Russians were continually worried that the French would be accused of mistreatment of German prisoners-of-war. There had been plenty of publicity about the conditions in which these prisoners were kept, and a highly critical Red Cross report on the matter which had given rise to a blazing row between the French authorities and General Eisenhower. The French prosecutors, however, seemed oblivious to the dangers of the topic. In December they blithely announced their intention of bringing witnesses in their case to the shackling of Allied prisoners. Maxwell-Fyfe was aghast. (37) Someone must have talked them out of their folly – though prosecution minutes do not record how it was done – because the matter was not raised in the French section of the prosecution.
By mid-November, the British were worried that they would be accused of condoning breaches of the naval clauses of the Versailles Treaty by signing the 193 5 Anglo-German Naval Agreement. Maxwell-Fyfe thought it would be possible to argue that the Treaty still stood vis-à-vis its other signatories and that British assent to the Agreement was only obtained because the Germans gave false information about the size and condition of their existing fleet. To be on the safe side, however, requests were sent to the Foreign Office for help in establishing the details. (38)
All the prosecutors feared the defence would argue that the foreign policy of others had encouraged that of Germany. The defendants might claim that other nations had condoned breaches of the Versailles Treaty from the occupation of the Rhineland to the takeover of Czechoslovakia; had indeed been ready to negotiate over such questions as the incorporation of the Sudetenland. Furthermore, the defence could trade on the fact that although the Allies now accused the Nazi government of crimes against its own citizens, every one of their own governments had recognized that regime in 1933 and had continued to maintain diplomatic relations with it up to the outbreak of War. The chief prosecutors appeared not to realize that the argument was fallacious – recognition never implies approval. At the chief prosecutors’ meeting on 30 October Pokrovsky dismissed their fears on other grounds, that ‘the judges did not assemble to hear their own governments criticized’. The others were less optimistic. Maxwell-Fyfe and de Menthon preferred the argument that their governments had acted in good faith but had been deceived by the lies and false assurances of the Nazis. (39)
A more acute and time-consuming cause for concern for the British prosecutors arose from their belief that the naval and military defendants were preparing to claim that Germany had invaded Norway only to preempt a planned British attack. Requests for documents by Goering and Raeder pointed to Norway as a topic they intended to stress; the questions prepared by Keitel for an interrogatory for Churchill’s nephew, captured at Narvik, indicated that he intended to examine British invasion plans. Defence counsel were known to have obtained the White Books on Norway containing documents said to have been captured during the German invasion, showing that the British carefully prepared plans which the Germans had only narrowly averted. Given this clear warning of defence targets, the British prosecutors wanted full information and all the help they could get on the matter. Instead they met point blank refusal from their own government. Attlee, now Prime Minister, snapped ‘we are not on trial’ and opposed sending any government documents to the prosecutors. (40) The Foreign Office began a campaign of prevarication. Officials there delayed response to any request for information, then, when pushed, forwarded wordy briefs which evaded all the questions put. British prosecution files preserve several of them. The kindest conclusion which can be drawn from the line they take is that officials who sent them did not really understand the Norwegian policy and were retailing their own confusion. Once confused they may have obfuscated the issues further, fearing that departmental interests and international diplomacy were involved. Whatever the reason for Foreign Office policy, the result was to involve the British prosecution for months in anxiety which could have been allayed in a week, and to create the fear that the British government really had something very nasty to hide. In fact, for the specific purposes of the case at Nuremberg and indeed in the long-term perspective of international law and diplomacy, they did not.
Foreign Office circumlocution for a long time muddied a history of policy towards Norway which in fact fell into two distinct phases. The background to both was British awareness of the advantages which the capture of Norway could secure for the Germans and the desire to deny them those advantages. Norway’s coast provides a complex series of channels stretching for 400 miles, known as the Leads. These channels, protected and concealed by innumerable islands, could offer the German Navy safe routes into the Atlantic and secure hiding places from which sorties could be launched on Allied shipping. Possession of Norwegian ports would facilitate any attack on the Soviet Union and would prevent the German Navy being bottled up in the ‘Wet Triangle’ as they had been during the First World War. In British eyes the most vital of these ports was Narvik; it was ice-free in winter and furthermore Sweden used it to export about one tenth of her shipments of high grade iron ore to Germany. The British and Nazi leaders tended to see these shipments as crucial, believing that they were Germany’s only source of material suitable for munitions and that without them Germany would be reduced to a mere year’s campaigning requirement. (Some recent research suggests its importance was exaggerated.) Seizure of Norway would have been a relatively simple matter. The Norwegians had been firm neutrals since 1918; they had been devoted adherents of the League of Nations and having put their trust in collective action had reduced their armed forces to the minimum – their navy still had two pre-Dreadnought ironclads.
In the first stage of their policy towards Norway, the British had indeed planned to seize strategic Norwegian areas. But that plan had been drawn up in response to the Russo-Finnish War which began on 30 November 1939. The Russian invasion of Finland had transgressed League rules; members could show their devotion to its principles by going to the aid of the Finns. The British intended to do so by crossing Norway (who was obliged by League regulations to permit transit), disingenuously leaving on the way enough troops to secure the Swedish routes to Narvik. Over 15,000 combat troops were at the ready, a further 42,000 were being prepared. The French were egging them on in the hopes of diverting Germany from France. All that was needed to launch the action was an official Finnish request for help. It never came. On 12 March, the date set for the British expedition, the Finns were obliged to make peace with Russia. Plans for the expedition were not immediately cancelled but troops were soon dispersed. This British scheme as regards Norway had been of doubtful morality and tenuous legality. Obviously in 1945 the Foreign Office would prefer it should not come to light. But the essential fact was that it had never been implemented. No actual crime had been committed. And an old, abandoned plan could not be effectively quoted to justify a much later German invasion.
Instead the defendants would have to prove that this invasion was prepared and launched to prevent a known attempt by the British, and here they were on much weaker ground. The British had certainly decided on 28 March to order the mining of the Leads – they might be territorial waters of a neutral country but they had already been violated by the German military as had been proved in February when the British rescued prisoners of war from the Altmark. Should the Germans retaliate for the mining by attacking Norway, then British troops were to be sent for her defence – but only if the Norwegian government requested aid. Warning of mine-laying was sent to Oslo on 8 April. The Norwegians robustly announced their intention to sweep them. But on that very day, the German Navy was already at sea, prepared for a synchronized landing and the seizure by force of several ports. This attack had been planned for many months and had received Hitler’s approval on 26 March. (41) British noses were clean on this matter; there had been no time to collect even the slight smuts which might have been noticeable in their intentions.
But the Foreign Office saw neither the distinction between the two policies nor the legality of the second. As late as March 1946 their minutes commenting on the increasingly desperate prosecutors’ pleas for enlightenment about British policy record their wish to avoid any discussion about Finland. One official candidly noted that in this stage of policy the British ‘had not been deterred by any moral grounds from commiting an act which we have denounced ... as a most criminal breach of international law’ in others. It was an attitude summed up more succinctly by a colleague who wrote that ‘there was a lot of funny business at the time’ which they would prefer to conceal from the Tribunal. The minutes also show the fear that any mention of Finland might ‘tend to stir up old rancours and suspicions in the Russians’. (42) They show that the Foreign Office could hardly work out the details of the Norwegian policy themselves, even if they had wished to explain it to the team at Nuremberg. There was no central file on Norway, documents were scattered among different departments and were difficult to track down since each department had given a different code name to each step of planning. Only in late March when an official was sent to Paris to confer with the Quai d’Orsay did anyone stumble on the vital discovery that most of the documents in the White Books on which the defence seemed likely to lean had not been captured in Norway but from General Weygand’s archives in France well after the invasion of Norway – no kind of justification for an attack. (43) Caught between well-earned embarrassment, bureaucratic confusion and intellectual muddle about the true issues involved, it was not surprising that the Foreign Office preferred to stall and leave the British team in Nuremberg in the dark.
Sir Hartley Shawcross, however, wanted the whole matter thrashed out openly. He had clearly been able to put two and two together from the skimpy information the Foreign Office had sent and could see that from the legal point of view they had nothing to hide. On 15 March he sent a strongly worded request for full, honest and accurate information at last. (44) Perhaps it began to dawn on the Foreign Office that highly skilled lawyers were well qualified to dodge around any distasteful subjects which were not really essential to the case in hand; that the Tribunal would not wish to hear old stories about Finland which had no real bearing on the question of the German invasion of Norway. Anyway, gradually, if all too slowly, the Foreign Office overcame its reluctance to allow the British prosecutors to understand its policies, and a steady trickle of useful government documents began to arrive at Nuremberg in April. With proper information the lawyers now found it relatively easy to prepare an adequate case against expected defence allegations.
Norway and similar embarrassments were chronic irritants rather than major problems. The main concern of the prosecutors before the defence began was to prepare their cross-examinations of defendants and witnesses. In December they had decided who would take major responsibility for dealing with the first thirteen defendants. (45) Patrick Dean had told the Foreign Office that the British wanted ‘a good share of the more prominent’ – certainly Ribbentrop and the admirals, and preferably the generals too since they felt they had assembled some damaging evidence for the military case. (46) It was taken for granted that the Americans would deal with Goering and assumed that the Russians would press for Hess since they saw him as the enemy who had tried to ease the attack on the Soviet Union by persuading the British to keep out. Dean noted that Jackson was broadly in agreement with British suggestions about dividing up the list but was worried about allocating defendants to the French and Russians; he feared they would ‘make a mess of it’. By May the prosecutors had distributed the remaining defendants. The Foreign Office was pleased with the final British clutch: ‘we have the pick of this bunch’, noted one official. (47)
Once responsibility for defendants had been distributed the prosecution teams could begin to assemble documentary evidence to use against them. There was plenty left from the prosecution cases and new material had continued to flow to Nuremberg. Requests were sent to governments and military authorities for information on potential witnesses, hoping for clues as to the areas they would cover and incriminating information to destroy the court’s confidence in them. Above all, the prosecutors had to prepare the actual cross-examination schemes. The approach to this work reveals the contrasting styles of the Americans and the British – and gives early warning of their failures.
Both teams set about their task using methods similar to those adopted for their prosecution cases. The Americans used the combined efforts of their huge team; everyone threw in ideas and evidence. There was consequently difficulty in evolving a clear line. The British, on the other hand, started with their small team and stripped it down even further: one lawyer was given full responsibility to prepare the cross-examination and to carry it out in court. He occasionally got an assistant, but only as a dogsbody. It was that lawyer’s job to chase up and sift evidence and to frame the shape of his cross-examination and the questions he would put. The format for his work was laid down by Maxwell-Fyfe. The major points he wished to establish had to be decided, then questions prepared to lead to them. Each main point had to be backed by a list of documents, which could be used to emphasize a question or counter a defendant’s denial. This projected cross-examination was presented to the whole team like a paper at a seminar. Others criticized, pointed out problems and weaknesses, suggested amendments or alternative material. This sort of meeting was an excellent testing ground. All the British members were experienced criminal lawyers and cross-examination was the honed tool of their trade.
Maxwell-Fyfe set a rigorous standard for his work and expected others to match up to it. He had not been one of the noted cross-examiners of the English bar; there were plenty more brilliant. But he compensated for lack of talent by sheer hard work. Even at this stage of his professional life he prepared his work with all the conscientiousness of a young barrister with a career to build up. His homework was thorough: plenty of background reading to provide context, so that he would not stumble on basic history. Where the reading raised problems he called in the historian, John Wheeler-Bennett, to answer them during lunch in his office. He well knew that any psychological advantage over a defendant would be lost if a lawyer could be tripped up over minor points. So he swotted up on tiny details: in court he would always use the exact German title for an official post, employ German terminology or toss in the number of a department or the prevalent abbreviation used in some technical jargon. He was even prepared on one occasion to refer, as if casually, to a film being shown in Vienna at the time under discussion and to name its star. Any defendant who had hoped to patronize Maxwell-Fyfe as an ignorant foreigner and sidetrack the cross-examination soon gave up.
Jackson, by contrast, lacked recent courtroom experience and failed to realize the need for sheer grind in building up an effective cross-examination. He relied heavily on ideas and information supplied by others. His work was never scrutinized by skilled eyes, its strengths and imperfections only became apparent in court. It is also possible to question whether his preparation was not hampered by too great a confidence in his own case. He seems to have been inadequately prepared for any denial or argument, let alone for the tricks which might be played by an intelligent witness.
Scattered among Jackson’s papers in the National Archive in Washington are some loose sheets of paper on which he had planned the cross-examination of Goering and Schacht. (48) They are probably early drafts; they certainly are not the scripts from which he worked in court. Even so the style is near enough to make them revealing as indications of Jackson’s weaknesses as a cross-examiner. Much of the success of a cross-examination depends on framing questions in such a way that the defendant is obliged to give the desired answer. Yet Jackson did not, in fact, prepare many actual questions. The notes contain statements: to Goering, for example, he considered saying: ‘Before march into Austria, when talked Czechoslovakian ambassador, you knew you were soon to make demands about Sudetenland.’ ‘Both this and Ribbentrop conversation intended to create assurance known to be false.’ ‘Did intend to use force if resisted.’ These are assertions. They hope to make the points which in a textbook cross-examination would only be deduced later from the answers of a defendant.
Occasionally Jackson had put in brackets the number of a document which could emphasize his point, but even so the very approach left his bald assertions wide open to challenge or outright denial. The same risk is shown in his sheets of preparation for Schacht. He says, for example: ‘You have also testified that you were never told about the type and speed of rearmament. This is directly contrary to the statement of General Blomberg.’ Maybe, but what was Jackson going to do if Schacht questioned the truth of Blomberg’s statement or suggested the General was in no position to judge his knowledge? Even where Jackson did actually draw up questions they are like those in Latin grammar books which assume a standard form of answer; in court there is no logical necessity to give it. He was thinking of asking Goering: ‘Just how long was your word of honour for? Good for that manoeuvre only?’ It implies that Jackson expects his witness to reel back defeated while he sweeps on in triumph to the next question. Instead it was much more likely that Goering would try to argue the toss – and Jackson had listed no documents to show how often the man gave his word then broke it. What is all too apparent in these notes is that Jackson is trying to establish opinions, not facts. This is dangerous ground – opinions are debatable and witnesses should never be given the opportunity to argue.
By contrast, notes for the cross-examination prepared for Doenitz (in the event not one of the most remarkable of achievements) shows the care and detail with which such work must be prepared – though unsigned, it is presumably the work of Maxwell-Fyfe who did the cross-examination. Points must be built up step by step and made secure against counterargument. (49) The first point Maxwell-Fyfe wished to establish was that Doenitz had taken part in and was fully aware of the criminal plans of the Nazi government. To do this he is prepared to use at least eighteen questions. They begin blandly, then creep slowly and logically towards more threatening areas, though their final intention is concealed. He was thinking of starting with the incontrovertible: ‘As Commander-in-Chief of the Navy you had the equivalent rank of Minister of the Reich and the right to attend meetings of the Reich Cabinet?’ It was hardly likely that Doenitz would deny this; should he try to, Maxwell-Fyfe had obtained the decree relating to the status of Supreme Commanders. He would then creep to the fact that Doenitz saw Hitler 119 times in just over two years – again, should this be denied the minutes of the meetings could be submitted and counted. There were then questions to show how many times Doenitz had met Speer, questions on how often he saw Jodl and Keitel – records of all these encounters were available. Only at this stage would something of the thrust become apparent – surely at these meetings general strategy must have been discussed. If Doenitz admitted the point, all well and good; if not, Maxwell-Fyfe was equipped with Doenitz’s own interrogation admitting that when at Hitler’s headquarters ‘I listened in to all those military conversations of the generals.’ Only after going through the same cautious, detailed procedure over meetings with other ministers and officials would Maxwell-Fyfe reach the point he was trying to establish: ‘Although you were present at all these meetings with all these ministers over two years, do you say you were ignorant of...’ then a list of charges against Doenitz: his involvement in the slave labour policy, the use of concentration camp labour, the planning and waging of aggressive war. With luck Doenitz would admit the point. If he did not, the rest of the cross-examination was constructed to deal with each of these charges in turn, showing the exact responsibility of Doenitz in each. Every section was as carefully drawn up and as thoroughly documented as the first.
The style, the method, the logic of this plan are typical of standard cross-examination. So too is the thoroughness with which evidence was provided at each stage, to be kept in reserve if not needed. Ideally the lawyer in a cross-examination should drive it through at the speed he dictates, not allowing the witness breathing space or a chance to draw red herrings across his line of questioning. If unforeseen denials or tricks are suddenly produced he must bring the witness back into line as quickly as possible. Some can manage this ex tempore. Maxwell-Fyfe made meticulous preparations for all eventualities. Wheeler-Bennett watched him preparing a cross-examination not just with questions which were virtually certain to elicit an inevitable response but with diagrams indicating questions which would tackle alternative replies and lead the witness back to the central issue by as short a route as possible. (50) The immense difference which care and effort could make to a case and to the morale of those presenting it was first seen in the cross-examination of the first defendant at Nuremberg – Goering.
1 Tribunal minutes, 18 February
2 IMT Vol. VII
3 Minutes of chief prosecutors’ meeting. BWCE N/9
4 Conversation with Dr Seidl
5 Papen Memoirs
6 Tribunal minutes
7 Conversation with Donald Spencer and Dr Merkel
8 Dr Seidl
9 Ribbentrop: Memoirs
10 Werner Maser Nuremberg: A Nation on Trial
11 IMT Vol. VII, 18 February
12 Papen
13 Tribunal minutes, 10 April
14 FO 371. 57537
15 IMT Vol. VIII, 23 February
16 Papen
17 Schacht My First 76 Years
18 FO 371. 57546
19 Conversation with Dr Kempner
20 Maser
21 Tribunal minutes, 15 December
22 BWCE N/30
23 FO 371. 57539
24 BWCE N/30
25 For example FO 371. 57541
26 FO 371. 57544
27 Biddle Notes on Evidence Vols. II and III. Box III
28 Conversation with John Phipps
29 Biddle op. cit.
30 Facts from a conversation with the former Emma Schwabenland
31 Conversation with Robert Kempner
32 Telford Taylor
33 Bradley Smith
34 Conversation with Dan Margolies
35 Conversation with Dr Kempner: also recorded by Gilbert
36 Minutes of chief prosecutors’ meeting, 30 October
37 British prosecutors’ meeting minutes, 18 December
38 British prosecutors’ meeting minutes, 16 November
39 Chief prosecutors’ meeting minutes, 30 October
40 FO 371. 57545
41 Background information taken from two books by T.K. Derry: A Short History of Norway and A History of Modern Norway –18 14–1972
42 FO 371. 57543
43 FO 371. 57544
44 FO 371. 57543
45 British prosecution minutes, 11 December
46 BWCEN/30
47 PO 371. 57547
48 Jackson Papers, Box 195
49 Kindly lent to the authors by Kenneth Duke
50 Wheeler-Bennett