“I hope I would have defended the Nazis at Nuremberg”
That’s what renowned barrister, and bestselling historian, Philippe Sands told us, but could you? With the 80th anniversary of the famous war trials upon us – and a new movie to boot – Dave Musgrove reflects on the perils of staging a trial the likes of which the world had never seen before
To have defended someone like Hans Frank, the governor-general of Nazi-occupied Poland during WW2, charged with the murder of four million human beings, is a tough thing to imagine.
Nevertheless, when I asked Philippe Sands – lawyer and writer – whether he would have defended the Nazis in the dock at the Nuremberg Trials, he told me “I hope so! I'm a believer that everyone is entitled to have their lawyer to defend their rights and their interests, irrespective of who they are or what they've done.”
That was my final question to Sands after we’d recorded four episodes of an upcoming HistoryExtra podcast series on the Nuremberg Trials at the conclusion of the Second World War. I wanted to know where he’d stand on that question, because our conversation had reminded me how complicated some of the moral, as well as legal, questions were around the decision by the Allies to put a selection of leading Nazis on trial in November 1945.
As a UK barrister, Sands is subject to the ‘cab-rank rule’, which obliges members of his profession to “take on any case provided that it is within their competence and they are available and appropriately remunerated”, but the idea of having to defend a Nazi war criminal, quite understandably, gave him pause for thought.
The trial of the century
We shall all be given pause to reflect on the Nuremberg Trials as they hove back into public consciousness on their 80th anniversary. The trials ran from November 1945 through to October 1946. Twenty-four leading Nazis were indicted, though only 21 of them eventually stood trial in the courtroom proceedings. Neither Adolf Hitler nor the SS leader Heinrich Himmler were among them, as both had already taken their own lives. That left the biggest name in the dock as Hitler’s successor Hermann Göring, along with Hans Frank, Rudolf Hess, Admiral Karl Donitz and others.
As with many big anniversaries, there will be media depictions, and so we have Russell Crowe playing Göring in the film 2025 film Nuremberg.
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We don’t see any of the lawyers who defended Göring and the other Nazis in the film, but rather we follow the efforts of the American chief prosecutor Robert H Jackson (played by Michael Shannon) to ensure that the crimes of the Nazis were exposed to the world.
Plus, there is the fascinating side story of the US psychiatrist Douglas Kelley (Rami Malek) who was tasked with assessing the mental state of the defendants.
A trial unlike any other
After watching the film I was drawn to reflect on how it compared to what I gleaned from Sands. Where it matches up is in its depiction of the wrangling over who should be put on trial and for what crimes. This was an international court with no precedent.
The film also captures some of the urgency of the planning for the trial. Given that the Second World War only ended in Europe in May 1945, it was a very tight schedule to have the court up and running by November of the same year.
Obviously there was a lot of thought given to the idea of a trial before the end of the war, though it was not a certainty that it would happen. Soviet leader Josef Stalin and US President Franklin D Roosevelt wanted a trial, but British Prime Minister Winston Churchill initially preferred the idea of summary justice. He wanted the Nazi leaders lined up and shot. He came round though, and at the Yalta Conference in February 1945, Churchill, Roosevelt, and Stalin agreed there would be a trial for Nazi leaders. With the Allied commanders in accord, the lawyers could get to work.
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“It seems almost incredible that such an enterprise as the famous Nuremberg Trials were put together in so short period of time,” said Sands.
“There are two really big issues they had to decide on. The first one is, who do you go for? And an early decision was taken to go for leaders. They wanted people who had planned, who'd been in government positions or who were serious industrialists. In the end, they chose 24 top political and financial leaders in Germany.
“But the second issue, and this was even more complicated, was what were the crimes? As of February 1945, there was only one international crime, and that was war crime, which is the targeting of civilians in times of war.”
The answer was that the Allies invented new crimes.
“Crimes against humanity; crimes against peace, (which was waging illegal war), and then as a subhead of war crimes, [and] genocide, which makes its way in through the back door.”
What the film gets right
The film captures those deliberations well, along with the practicalities of actually running the trial, rebuilding the damaged courthouse, housing the prisoners, and gathering the international legal teams and global media in the shattered ruins of Nuremberg.
It also, I think, demonstrates another point that Sands stressed to me, which is that the trial had to be fair, and had to be seen to be fair, under the glaring bulb of the press cameras. Though it was a form of victors’ justice, in that the Allies made the rules and ran the trial, Sands notes that “The defendants basically felt they got a fair trial. No one complained about the quality of the proceedings. No one complained about the behaviour of the judges.”
A running theme of the film is the jeopardy that the Nazis might not be found guilty; that the Allies would be exposed to international ridicule. That was the risk of running a fair trial. Perhaps proof of that fairness is that some of the defendants were in fact acquitted.
The film concludes, reasonably enough, with the hanging of those who were found guilty, but it omits to mention that some of those in the dock were sentenced to imprisonment and some were acquitted and walked free.
The film also does well at showing the media interest in the trials, and particularly how the evidence presented by the prosecution of the crimes enacted in the concentration camps was brought to global attention via the court. The showing of film reel from the camps in the courtroom evinced global shock, as the true horror of the Nazi Final Solution was revealed to many observers around the world for the first time.
Göring and Kelley
One of the key themes of the film is the relationship between Göring and the psychiatrist Kelley. Russell Crowe’s portrayal of the Nazi leader is something to behold, and is pretty uncomfortable viewing in the first half of the film as the viewer is tempted to find some likeable elements to the character, through his dealings with Kelley. In the real trial, incidentally, the psychologist Dr Gustave Gilbert played a key role, as is depicted in Sands’ book East West Street.
This isn’t something I discussed with Sands, but we did talk about the cross-examination of Göring by Robert Jackson. This scene is the dramatic highlight of the film, and it shows Crowe’s Göring getting the better of Shannon’s Jackson, only for Richard E Grant, playing the British lawyer David Maxwell Fyfe, to step in and rescue the situation. Sands told me that a relevant must-read is the account written by the American journalist Janet Flanner.
“From Janet Flanner, we get the most extraordinary account of the cross-examination by Robert Jackson of Herman Göring. She observed that Göring runs rings around Jackson, and the reason was that Jackson was essentially an appellate lawyer. He didn’t know how to cross examine,” says Sands.
“Flanner writes an excoriating account of Jackson’s performance as a cross examiner. She describes how eventually he had to stop. And a British lawyer, David Maxwell Fyfe, who knows how to cross examine, comes on and destroys Göring in short order. These accounts, absolutely brilliantly written, give you the full flavour of what’s going on in the courtroom.”
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As courtroom drama scenes go, Nuremberg’s Goering cross-examination is not quite up there with Jack Nicholson barking ‘You can’t handle the truth’ at Tom Cruise in A Few Good Men, but Crowe’s moment in the dock is nevertheless a memorable one.
The film ends with a moralising message about how we need to take heed of the lessons of Nuremberg. I wasn’t convinced by the conclusion – it felt a bit forced to me. But the legacy of the International Military Tribunal at Nuremberg in 1945-46 is certainly something we should take note of.
"Nuremberg was a revolutionary moment” says Sands. “It was the first time in human history that countries came together and said the power of the state, the sovereign, the king, president or prime minister, is not absolute; you cannot anymore treat your own nationals or the nationals of other countries as you wish. You can’t kill and disappear individuals; you can’t kill and disappear groups. You are subject to constraints, not imposed by your own legal order, but by international law."
The rule of international law depends on lawyers prepared to defend those charged with having broken it. So it makes perfect sense that Sands, as a vocal defender of the international legal system that owes so much to Nuremberg, should hope that he would have been prepared to act for the Nazis in the dock there.
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Authors
David Musgrove is content director of the HistoryExtra.com website and podcast, plus its sister print magazines BBC History Magazine and BBC History Revealed. He has a PhD in medieval landscape archaeology and is a fellow of the Royal Historical Society.