Forgotten trials: the other side of Nuremberg
A landmark in the history of international criminal justice, the Nuremberg trials saw 24 major Nazi criminals tried as war criminals, with judges from the Allied powers presiding over the hearings. Eleven prominent Nazis were sentenced to death, while others received short prison sentences or no penalty at all. But, says AT Williams, the Nuremberg Tribunal was only a tiny fragment of a whole system of largely forgotten war crimes trials organised by the Allies across Europe...
Here, writing for History Extra, the author of A Passing Fury: Searching for Justice at the End of World War II, argues that it’s time they were remembered...
In April 1945, as the Second World War drew to a close in Europe, a British Army unit entered Bergen-Belsen concentration camp. A senior medical officer who led the relief effort told The Times it was “the most horrible, frightful place”. The bodies of unclothed women had been pushed into a pile “between 60 to 80 yards long, 30 yards wide, and four feet high”. He’d seen evidence of cannibalism as inmates had been driven to desperation by starvation. Typhus was rife. Thousands had perished and were continuing to die within a hell on earth. But, as The Times concluded, at least they’d caught the man responsible.
Josef Kramer, the SS commandant of Bergen-Belsen at its liberation, was immediately marked as a war criminal. He was one of countless German men and women then being rounded up by Allied forces and suspected of involvement in the vast concentration camp system, the regime of torture, abuse and slaughter, and the commission of war crimes on an unimaginable scale across the European continent. And as the terrible scenes of Bergen-Belsen and Buchenwald and Dachau were shown in newspaper photographs and Pathé newsreel footage, the public demand for justice became intense. Allied governments were called upon to implement their plans to punish those responsible.
For a time, and increasingly so over the decades since, the name “Nuremberg” came to symbolise the great enterprise of justice that followed. In that city, between November 1945 and October 1946, a military tribunal put on trial 24 leading Nazis and charged them with crimes against peace, war crimes and crimes against humanity.
But it wasn’t in Nuremberg that people like Josef Kramer and the thousands of others who carried out the slaughter, the persecutions, the killing and ill-treatment of millions, were dealt with. Hundreds of prosecutions largely overshadowed by the Nuremberg proceedings occurred in towns and cities across the continent.
The scheme for post-war justice
Even though accounts of massacre and systemic brutality in Occupied Europe were commonplace from 1939 onwards, and even though the violence of the Nazi regime in Germany, symbolised for many by the concentration camps, was well understood from the earliest days of Adolf Hitler’s regime, a strategy for bringing to book those individuals responsible was slow to develop during the war. Winning was the priority. Understandably, any reckoning had to be contingent on victory. Only when the tide of the war began to turn did Allied leaders turn their minds to retribution.
At a meeting between the main Allied powers in Moscow in 1943, Britain, the USSR and the USA declared that the Nazis would pay. The announcement was theatrical: “Let those who have hitherto not imbrued their hands with innocent blood beware lest they join the ranks of the guilty, for most assuredly the three Allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that justice may be done”.
This set the tone for the Allied plans. The intention was for everyone involved, not just the German political and military leaders, to be tracked down and held to account for their crimes. But there was to be a distinction. The key Nazi leaders were to be dealt with jointly by the main Allied powers, while the rest would be punished in those countries where they’d committed their atrocities.
Only during the final months of war was this scheme fleshed out. Arguments then arose among the main Allies: some, notably in the British establishment, advocated summary justice. The Soviets wanted some formal show-trial humiliation before execution. But President Roosevelt was persuaded that a system of measured criminal trials, conducted with due regard for notions of legal fairness, should be applied.
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It was the Americans who won out. Robert Jackson, US Supreme Court Justice, was appointed to make the scheme function. Jackson appreciated instantly the enormity of the task. The terrifying reports emerging from the liberated camps were a constant reminder that the number of those who could be accused of war crimes was immense. A network had been discovered of nearly 1,000 concentration camps of varying sizes across Europe employing many tens of thousands of SS-Totenkopfverbände guards and officers who directly imposed the system of mass murder and torture and ill-treatment. Thousands more – members of the Gestapo and secret service (SD) and army units that had perpetrated notorious atrocities against citizens and Allied personnel throughout the course of the Second World War – were culpable too. The intention was to track down, investigate and prosecute them all according to the rigours of a normal criminal trial.
In May 1945 the plan to split the prosecution of the Nazi leaders from all others was confirmed. Jackson took charge of “the case of major criminals”, men such as Herman Goering, Rudolf Hess and other notorious Nazi figures; they would appear before a tribunal at Nuremberg in the autumn of 1945. All the “minor war criminals”, as they were misleadingly termed, became the responsibility of the Allies depending on which territory they controlled. The British Army of the Rhine (BAOR) was to pursue all suspected war criminals in northwest Germany, which it then occupied as part of the post-war carve up of the country.
The impossible task
From the very beginning the British response to their task was confused. Senior government lawyers were deeply involved in Jackson’s Nuremberg plan. London became the base for preparations and British forces were crucial in coordinating the Allied trial. Huge efforts were made to gather evidence and put together a comprehensive legal case against the main Nazis now in custody.
By contrast, there was considerable hesitation in providing adequate support to the investigation and prosecution of all those suspected German “minor” war criminals. In April, the War Office sent out a tiny unit of lawyers and interpreters that was hopelessly insufficient for the job.
Lt Col Leo Genn (a famous actor who also happened to be a lawyer) was assigned to investigate the crimes uncovered at Bergen-Belsen. He was sent to Germany with a handful of investigators to obtain evidence from thousands of malnourished and typhus-suffering survivors of the camp. He was supposed to establish the individual culpability of Josef Kramer and dozens of arrested SS camp guards and prisoners who’d worked for the Germans. Genn soon reported that he would need 20 such units if he were to do the task justice.
When his unit discovered that Kramer (along with many of the guards and inmates) had also been at Auschwitz and in charge of the gassing of Jews in their hundreds of thousands, the nature of the case was transformed. They were not only unearthing the criminal behaviour of a few German individuals: they were also preparing a trial about a whole system of genocide.
No one in Whitehall seemed to fully understand. The pressure was acute on Genn and his team to complete his work quickly. A high-profile trial was required to reassure the public that the Nazis were getting their just deserts. With the Nuremberg proceedings taking longer to arrange than predicted, a trial of the Bergen-Belsen accused was politically necessary.
Genn obliged. Within four months of the camp’s liberation, the trial of Josef Kramer and 44 other defendants opened in the quaint (and largely undamaged) market town of Lüneburg in September 1945.
For the next six weeks an impatient press watched as the legalistic procedure operated at a snail’s pace. Quite at odds with the testimony of survivors, who recounted their experiences of concentration camps in graphic detail, the lawyers for defence and prosecution (all British officers) gave proceedings a strange academic air. They would argue about the minutiae of legal process for hours. Should they rely on written statements of witnesses who had disappeared or died? Did the court have jurisdiction? Were the charges lawful?
When the verdict was finally reached, 11 accused, including Kramer, were convicted and sentenced to death. But many, even long serving camp guards, were acquitted. It wasn’t enough for conviction that they’d been members of the SS.
The Soviets were disgusted at the result. They complained that the trial had failed to condemn the Nazi state and its barbarous nature. Instead, they said, only a few individuals, a tiny fraction of those who had voluntarily served in the camp, had been punished.
Others at home in Britain were equally unimpressed. The trial had been too long, too caught up with legal niceties. If all other cases were dealt with in the same way, they would take decades to complete.
In October 1945, as the Bergen-Belsen trial was nearing its conclusion, Sir Hartley Shawcross, the relatively new British Attorney General (appointed following the Labour Party’s success at the July General Election), attended a meeting of the British War Crimes Executive in Church House, Westminster. He laid down an ultimatum: the government wanted a minimum of 500 “minor” war crimes cases to be tried in Germany by 30 April 1946 at the latest.
It was a ridiculous demand, one founded on a political desire to be rid of the whole enterprise as quickly as possible. The War Crimes teams operating out of BAOR headquarters in Germany were already struggling to comply with the stringent procedural requirements of “fairness”. An ironic note was sent from the legal team to the War Office on 2 November: “Excluding Sundays, there are now 155 days in which to reach this figure [of 500 cases], which means that approximately three cases must be completed in every working day between 1 November and 30 April”.
Their biggest problem was the lack of resources – they simply did not have the manpower or technical support to rush through so many prosecutions. The large concentration camp cases, such as Neuengamme (the main camp outside Hamburg), Ravensbrück, Natzweiler and others, were taking the majority of their time. For each, building a case against hundreds of individuals that would stand up in court was highly demanding. And there were so many other examples of terrible crimes they were uncovering that they found themselves pulled in every direction.
Unsurprisingly, the target was never reached. But there were growing suspicions that the investigators had shifted their priorities from pursuing those responsible for the most awful atrocities, to solving lesser crimes and those involving the killing of British servicemen and women – which could be concluded quickly and easily. Some cases were indeed brought that hardly seemed to warrant prosecution.
The Klever trial, for instance, was a minor affair when matched against the Belsen and Auschwitz cases and the many camps known about within the British zone. It was still treated as a “minor war criminal” trial. Oberleutnant Gustav Klever, a 45-year-old German junior naval officer, had been stationed in the small port of Cuxhaven, on the northern coast of Lower Saxony, for most of the war. His job was to issue clothing as quartermaster to the garrison there. When the British came in 1945 he wasn’t interned but taken on to help with distributing food and clothing to the many refugees who’d ended up in the town. Then, a number of witnesses came forward to say he’d misdirected Red Cross parcels bound for Allied Prisoners of War (PoWs). Klever was arrested and, after an investigation lasting a few weeks, tried by a British court martial at Cuxhaven on 1 December 1945.
Klever gave a reasonable account of what had happened. On 29 April 1945, while at his garrison station, he was told about an arrival of Red Cross parcels at the local train station. Someone from the town had called him. The train was full of supplies but it had been placed in the sidings with nowhere to go. The authorities were worried that the parcels would be pilfered from the wagons. Klever said he was called to the station to look into the matter. He found about 1,400 parcels on the train. He phoned the nearby prison camp commandant at Basbech, who sent some of his men by train to collect them. They loaded all they could into the train trucks but had to leave about 100 boxes behind. Klever was told to distribute the remainder to German civilian refugees escaping the fighting in the east.
The British officer appointed as defence counsel asked, “Was this a war crime?” Yet the court convicted Klever anyway and sentenced him to a year in prison, placing him on the war criminal register too.
Other trials seemed, if not trivial then not of the highest war crimes priority. Much was made, for instance, of prosecuting the senior Luftwaffe officers in charge of Dulag Luft PoW camp, which served as a detention and interrogation centre for Allied aircrew throughout the war. But when the case was heard in Wuppertal in November 1945, little damning evidence was presented. Some occasions of excessive heat in the cells and threats of transfer to the Gestapo may have been against the Geneva Conventions, but set against the backdrop of the concentration camps the charges seemed insignificant.
Indeed, several RAF officers who had been through Dulag Luft appeared for the defence, giving testimony about their decent treatment and the honourable conduct of the German defendants. Air Vice-Marshal Ivelaw-Chapman had little but good to say of the German officers and medics he’d encountered. He’d been allowed outdoor exercise, he said, even being taken by one of the accused officers to the Taunus hills for some “winter-skiing”. Douglas Bader, the fêted flier, who was a prisoner at Dulag Luft for a month during 1941, said he’d been questioned “pleasantly and quietly and in every way correctly”. All the prisoners had been treated fairly, Bader said. And an American intelligence officer was so impressed by the accused that he hired one of them as a translator of “confidential information” during the summer of 1945.
But none of the testimonials made a difference. Though hardly any evidence was found to link the officers directly to ill treatment, they were found guilty and jailed. The New York Times reported the case as “Allies Jail 3 Torturers”; little was presented before the court that merited such a headline.
These cases were not typical of the overall British effort in the first year of their investigations. Certainly the determination to track down and prosecute the worst offenders was wholehearted. Men such as Group Captain Tony Somerhough (who led the War Crimes teams) and his deputy Lt Col Alan Nightingale fought long and hard to obtain the resources necessary to do their job.
They were assisted by dedicated investigators too. There were men like Anton Freud, grandson of Sigmund Freud, who escaped Austria before the war and who joined the war crimes investigation team as a translator. He devoted himself to tracking down the men and women responsible for the deaths of tens of thousands of inmates in the Neuengamme concentration camp. It was a mission he must have found difficult to bear. He uncovered the fate of 20 Jewish children used for medical experiments and executed by hanging at Bullenhauser Damm to hide the evidence. And he brought to book Willi Bahr, a lowly SS orderly whose job it was in the camp to kill prisoners deemed unfit to work by injecting them with phenol. Freud also led the successful prosecution of Bruno Tesch, the man held responsible for supplying Zyklon B poison gas to the camps.
The onset of indifference
Political support for the war crimes prosecutions quickly diminished – as early as April 1946 the government was calling for cuts to the army teams involved. Many investigating officers were demobbed without being replaced. Somerhaugh and Nightingale were forced to cut back their work and re-focus the team’s efforts on crimes committed against Allied personnel almost exclusively.
It was as though the rush to justice felt before the Bergen-Belsen trial and immediately before the Nuremberg Tribunal began had become a rush to indifference. When the horrors of Neuengamme were revealed at the trial of the commandant and several other SS officers and men in April 1946, the British press hardly noticed. The verdict condemning all accused merited nothing more than a couple of paragraphs in a few newspapers.
The reduction in resources and political enthusiasm left the war crimes teams to gradually wind down their work. By early 1948 only a tiny handful of cases were actively being pursued. By then they had brought nearly 300 cases involving more than 1,000 Nazi accused. Of these, 667 were convicted of war crimes and 230 sentenced to death. Even when set beside all the trials brought by the USA, the Soviet Union, France, Poland and many other countries, it was only a tiny fraction of the guilty.
By the time the Nuremberg tribunal gave its judgment in October 1946, the original Allied plan was unravelling. Politicians had already given up on bringing all those responsible for atrocities to account – it was now considered better to make friends with Germany than keep prosecuting its people.
Nevertheless, the hundreds of trials that the British and others brought still revealed the true depth and nature of the Nazi regime. Nuremberg may have exposed much of the strategy and planning of atrocity by a Nazi elite, but it was during the many cases heard in Lüneburg and Wuppertal and Hamburg and many other towns that the depth of crimes was most evident.
For this reason alone, the work of the war crimes investigators should be remembered. That they have been largely forgotten, or at best obscured by the proceedings at Nuremberg, is perhaps an enduring failure of history.
AT Williams is a professor of law at the University of Warwick and the author of A Passing Fury: Searching for Justice at the End of World War II (Jonathan Cape, 2016). He is also the author of A Very British Killing: the Death of Baha Mousa (Jonathan Cape, 2012), which won the George Orwell Prize for Political Writing in 2013.
This article was first published on History Extra in November 2016.