On 9 December 1946, two months after the executions of Göring’s co-defendants, the same courtroom in Nuremberg was used for a different kind of trial. The defendants were twenty-three men, twenty of them physicians. The senior figure, Karl Brandt, had been Hitler’s escorting doctor and the co-administrator of the regime’s medical-killing programme. Beside him in the dock sat Karl Gebhardt, who had run the bone and muscle transplant experiments at Ravensbrück; Joachim Mrugowsky, the SS chief hygienist who had supervised the typhus experiments at Buchenwald; Wolfram Sievers, who had built the skull collection of Jewish victims at the Reich University of Strasbourg; Viktor Brack, who had organised the gassing of disabled Germans under the cover name T4 and had then transferred his methods to Auschwitz. The court was no longer the four-power International Military Tribunal of the previous year. The European powers had fallen out by the autumn of 1946 over Germany’s reconstruction. The Soviet judges had gone home. The remaining trials, twelve of them, would be conducted by American military tribunals at Nuremberg under Control Council Law No. 10, with American judges, American prosecutors and a remit that would put on trial not the political leadership but the professional classes that had carried out the Holocaust.
The chief prosecutor was Telford Taylor, a thirty-eight-year-old former Wall Street lawyer who had served as Jackson’s deputy at the IMT and had now been promoted to brigadier general so that he could outrank the defendants in the army cases. Taylor inherited a small staff, a tight budget and a brief that was politically contested before he had filed his first indictment. American policy had begun to shift the moment the Cold War became visible. By 1947 the priority in Washington was not the punishment of Nazi war criminals but the construction of a West German state strong enough to anchor the western half of a divided Europe. Taylor’s prosecutions were going to make that work harder. He proceeded anyway. Between December 1946 and April 1949 his teams put 185 defendants in the dock, secured 142 convictions, sent twelve men to the gallows and produced a documentary record of the inner workings of the Third Reich that runs to over thirty thousand pages and that historians have been mining ever since.
The Doctors’ Trial
The first of the twelve trials, formally United States v. Karl Brandt et al., ran from December 1946 to August 1947. It was the largest and the most morally weighted. The defendants had not pulled triggers. They had stood at the head of operating theatres. They had ordered freezing tanks filled with chilled water and pushed naked prisoners into them to chart the body’s responses to hypothermia, in support of Luftwaffe research into the survival of pilots downed in the North Sea. They had ordered low-pressure chambers built into which prisoners were strapped while engineers studied the effect of altitude on the unprotected human body. They had shot and infected wounds with septic material to test new antibiotic compounds. They had injected typhus, malaria, hepatitis, mustard gas. They had operated on women at Ravensbrück, Polish political prisoners taken specifically for the work, removing strips of muscle and bone to graft onto German soldiers wounded in Russia. They had sterilised by X-ray and by chemical injection. They had murdered Jewish prisoners of war specifically to obtain their skeletons for an anatomical collection.
The court heard testimony from those who had survived the operating tables. Wladyslawa Karolewska, a Polish woman in her late twenties at the time of the experiments at Ravensbrück, gave evidence on 20 December 1946. She had been arrested at the age of twenty-one as a member of the Polish underground. The Germans had conducted three operations on her left leg in 1942 and 1943, removing portions of the tibia, infecting the wound, then operating again. She walked into the courtroom on a single crutch. The prosecution had her show the court the scars. She did, calmly, on the witness stand, in her early thirties, in front of the men who had ordered the work. The court adjourned for fifteen minutes after her testimony.
The defence argued that the experiments had been authorised by the state, that the subjects had been condemned to death anyway, that the work had military or scientific value, and that the Hippocratic oath made room for the duties of a doctor in time of war. The court rejected each argument. The judgment, delivered on 19 and 20 August 1947, set out ten principles on medical experimentation that have since been called the Nuremberg Code. The first principle is the only one that needs quoting. The voluntary consent of the human subject is absolutely essential. The Code became the foundation of every framework of research ethics in use in the world today, the Declaration of Helsinki, the institutional review boards, the consent forms a patient signs before any clinical trial. The seventeenth-floor laboratories of every modern medical school operate inside the moral fence the Code drew.
Seven of the defendants were sentenced to death. Brandt, Brack, Gebhardt, Mrugowsky, Sievers, Rudolf Brandt and Waldemar Hoven. They were hanged at Landsberg prison in Bavaria on 2 June 1948. Five drew life or long prison terms. Seven were acquitted; in some cases the prosecution had been unable to establish the level of personal involvement the standard required, in others the evidence had not survived the war.
The Justice case
If the Doctors’ Trial was the most morally weighted, the case formally known as United States v. Josef Altstötter et al., the Justice case, was the most surgical in its insight into how a regime corrupts the institutions a free society relies on. The sixteen defendants were lawyers. Some had been judges in the people’s courts and the special courts that handed down racial death sentences. Some had been senior officials in the Reich Ministry of Justice who had drafted the legal frameworks under which Polish forced labourers could be hanged for theft and Jewish defendants could be denied counsel. Some had supervised the implementation of the Night and Fog decree, under which prisoners were taken from their families in occupied countries and transported to camps in Germany without notification, without trial, without record, to be killed. They were not the men who had pulled the levers. They were the men who had drafted the wiring diagram of the regime.
The prosecution case rested on the proposition that judges and lawyers who knowingly used legal procedure as an instrument of murder bore criminal responsibility regardless of any plea that they had only applied the law as they found it. The defence ran that judges in any system must apply the law of their state; that a German judge in 1942 had no more right than a French or English judge to refuse a statute he disliked; that to convict the defendants was to demand the abandonment of legal positivism. The argument had professional sympathy from some of the American judges hearing the case. The judgment rejected it. The court found that some statutes are so plainly incompatible with any honest understanding of justice that to apply them is itself a crime; and that lawyers, of all professionals, cannot pretend not to know.
The judgment is best remembered for a single image. Telford Taylor’s closing statement quoted from a speech of Reichsminister of Justice Otto Thierack: The dagger of the assassin was concealed beneath the robe of the jurist. The phrase stuck. Four defendants were sentenced to life imprisonment. Six drew shorter terms. Four were acquitted. The man at the head of the dock, Josef Altstötter, was found guilty on a single count and given five years. The lesson the case left was that a country which corrupts its lawyers gets a corrupt country, and that the cost of that corruption is not paid only at the top of the system. It is paid in every courtroom that follows.
The Industrialists
The trial of the German industrial leadership was the case the State Department most wanted Taylor to drop and the case Taylor most insisted on bringing. Three trials went forward. The first was the Flick trial, against six executives of the Friedrich Flick group, which had used Jewish slave labour in coal and steel works across the Reich and the occupied territories. Flick himself, the company’s seventy-four-year-old founder and one of the wealthiest men in Europe, took the stand and denied that he had personally directed the use of slave labour. He was convicted on three counts and sentenced to seven years. The court ordered the confiscation of none of his property. He was released on parole in 1950, walked out of Landsberg and resumed running his companies. He died in 1972 a billionaire.
The second was the IG Farben case, the largest by some distance. Twenty-four directors of the chemical conglomerate that had built and operated the synthetic rubber and fuel plant at Auschwitz III were charged with slave labour, plunder and conspiracy. IG Farben had been the largest single user of slave labour from Auschwitz; its plant at Monowitz, a separate camp adjacent to the main complex, had worked tens of thousands of prisoners to death over four years. The Auschwitz survivor Norbert Wollheim gave evidence that has since been quoted in textbooks of business ethics: he had worked at the plant under conditions designed to extract from him whatever labour he could provide before he died, and he had watched the IG executives walk through the works on inspection visits stepping over the bodies. Carl Krauch, chairman of the Farben supervisory board, drew six years. Otto Ambros, who had personally directed the construction of the Monowitz plant and the production of the nerve gas Sarin, drew eight. Most of the convicted men were back in West German industry by 1952. Ambros, after his release in 1951, served as a senior consultant to the United States Army’s chemical warfare programme, to the United Nations Industrial Development Organisation, and to the boards of the German chemical company Hibernia and the American firm W.R. Grace. He died in 1990 in Mannheim, holding the Federal Cross of Merit.
The third was the Krupp case. Alfried Krupp von Bohlen und Halbach, the head of the steel and arms firm, had run war production on the labour of perhaps a hundred thousand prisoners and forced workers. Krupp factories had operated their own private concentration camps, including the Berthawerk facility named after Alfried’s mother. The judgment, delivered in July 1948, found Krupp and ten executives guilty. Krupp was sentenced to twelve years and the confiscation of his entire fortune. It was the harshest sentence handed down to any industrialist in the Subsequent Proceedings. Three years later, in January 1951, the American High Commissioner for Germany John J. McCloy commuted the sentence, restored the property and let Krupp go. The decision was political. McCloy was rebuilding West German industry as the engine of European recovery and as a Cold War asset. Krupp left Landsberg, met his guards in the courtyard, drove to his ancestral mansion at Villa Hügel and resumed running the firm. He lived to see the company become the largest industrial concern in Europe. He died at home in 1967.
The Einsatzgruppen Trial
The case the prosecution called the largest murder trial in history opened on 29 September 1947. Twenty-four officers of the mobile killing squads that had followed the Wehrmacht into the Soviet Union in June 1941 stood in the dock. They were not low-ranking executioners. Six held doctorates. Otto Ohlendorf, the senior figure, was an economist with a PhD from the University of Pavia. Erich Naumann had run a printing business. Werner Braune, a lawyer, had been the deputy commandant of one of the killing squads. The men had been chosen by Heydrich for their education, their political loyalty and their willingness to do work that the regular army would not do. They had killed, by the prosecution’s calculation, somewhere over a million people in pits across Ukraine, Belarus, Lithuania, Latvia, Estonia and Russia.
Ohlendorf testified in his own defence at length and described the operations in detail. His unit, Einsatzgruppe D, had killed 90,000 men, women and children in the year between June 1941 and June 1942, in the Ukrainian provinces and the Crimea. He described how transports of victims had been brought to selected sites; how shooters had been organised in firing details; how local Romanians and Ukrainians had been recruited as auxiliaries; how the bodies had been buried; how the killers had been provided with alcohol on the evenings after major operations. Asked whether the killing of children was a moral problem, he answered that it had been considered necessary because children of murdered Jews would otherwise grow up to seek revenge. The court transcript records the answer without comment.
The judgment of 8 and 9 April 1948 sentenced fourteen of the defendants to death, two more to life imprisonment, and the remaining eight to lesser terms. By 1951, after sustained pressure from West German churchmen, lawyers and politicians, McCloy commuted ten of the death sentences. Four were carried out, on 7 June 1951 at Landsberg: Ohlendorf, Naumann, Braune and Paul Blobel. Blobel had commanded the unit responsible for the killing at Babi Yar outside Kiev on 29 and 30 September 1941, in which 33,771 Jews had been shot in two days. He had subsequently run Aktion 1005, the operation that returned to mass-grave sites across the East from 1942 to 1944 and burned the bodies in attempts to destroy the evidence. He had failed in that work. The bodies survived him. He was buried in an unmarked grave at Landsberg.
The Hostages and High Command Trials
Two cases tried the Wehrmacht. The Hostages case, formally United States v. Wilhelm List et al., charged twelve senior officers with the killing of civilians and prisoners in occupied Yugoslavia, Greece, Albania and Norway. The German army had taken hostages from local populations in numbers that the court found were beyond any defence in international law. The standard ratio in occupied Greece had been a hundred Greek civilians shot for every German soldier killed; in Yugoslavia the ratio was sometimes higher. The court accepted that occupying forces could take limited reprisals under the laws of war as they then stood, but found that the German practice was murder. List, who had commanded Army Group F in the Balkans, drew life. Lothar Rendulic, who had ordered the burning of much of northern Norway in late 1944 in a scorched-earth withdrawal that drove tens of thousands of Norwegians into refugee camps, drew twenty years. Both men were released within ten years.
The High Command case, United States v. Wilhelm von Leeb et al., tried fourteen senior army officers including Field Marshal von Leeb, who had commanded Army Group North during the siege of Leningrad. The case put on trial the proposition that the German army had been a clean institution separate from SS crimes. The prosecution led the court through the Commissar Order of 6 June 1941, the Barbarossa Decree of 13 May 1941 and the supplementary directives that governed the army’s conduct in the East. These orders, signed and transmitted through the regular chain of military command, condemned captured Soviet commissars to summary execution and removed the protection of military law from civilians in occupied territory. The court found that the army had transmitted the orders, knowing what they were, and had supervised their implementation. The defence that the army had merely fought a war was rejected. Eleven of the fourteen were convicted. Sentences were short. Most defendants were free by 1953.
The men of the SS administration
Three further cases tried the SS organisations that had run the killing apparatus. The RuSHA case, against fourteen officials of the SS Race and Settlement Main Office, dealt with the policy of kidnapping racially suitable children from occupied Poland and the Czech lands for transfer to German foster families; the forced abortions ordered for foreign labourers in the Reich; the deportation of populations under Generalplan Ost. Ulrich Greifelt, the senior defendant, drew life.
The Pohl trial, against Oswald Pohl and seventeen of his deputies, tried the men who had run the SS Economic and Administrative Main Office and through it the entire system of concentration camps and slave labour. Pohl, by 1944, had been the senior administrator of the camp system. He testified that he had not personally ordered any killings and had merely managed the economic side of the SS operation. The court found that the slave labour, the looting, the management of the killing centres, the gold from the teeth of murdered Jews credited to SS accounts at the Reichsbank, were all his department. Pohl was sentenced to death. He was hanged at Landsberg on 7 June 1951, the same day as Ohlendorf.
The Ministries trial, the longest of the twelve, ran from January 1948 to April 1949. Twenty-one defendants from the Foreign Office, the Reich Chancellery, the ministries of finance and economics, and the Reichsbank stood in the dock. The case was the most ambitious attempt the Subsequent Proceedings made to put on trial the German civil service. The State Secretary at the Foreign Office, Ernst von Weizsäcker, had signed off on diplomatic notes that arranged the deportation of French Jews to Auschwitz. Hans Lammers, the head of the Reich Chancellery, had transmitted Hitler’s orders to the rest of government. Walther Funk, who had also been a defendant at the IMT, had run the Reichsbank’s gold operations. The judgment held the civil service responsible. Weizsäcker drew seven years; Lammers drew twenty. Both were released within four. The trial’s surviving political importance was its proof, in court, that the German state had not been hijacked by a small group of fanatics. Its ministries had drafted the documents, signed the orders and balanced the accounts of the killing.
The Milch case
The Milch case stood apart. Erhard Milch, field marshal and deputy to Göring at the Air Ministry, was tried alone over four months in early 1947. He had run the slave labour programme that fed the Luftwaffe’s factories and had personally negotiated the supply of prisoners from concentration camps to aircraft works. Milch had escaped trial at the IMT in 1945 only because the prosecution had not had room for him. He drew life. McCloy commuted the sentence to fifteen years in 1951. Milch was free by 1954, lived another eighteen years and died in Düsseldorf in 1972 at the age of seventy-nine.
The clemency that undid the work
The arithmetic of the Subsequent Proceedings is straightforward. Of the 185 defendants, 142 were convicted; 25 received the death penalty; 12 were carried out. By the end of 1958, every man who had been sent to Landsberg under a long sentence was free.
The undoing happened between 1949 and 1955. The trigger was the foundation of the Federal Republic of Germany in May 1949. The new state had no strong appetite for the punishment of its own elite, and the Allied High Commission, of which McCloy became the senior figure on the American side in 1949, was rebuilding West Germany as a democratic ally and a Cold War asset against the Soviet Union. A campaign of letters from German bishops, German parliamentarians, German lawyers and West German Chancellor Konrad Adenauer himself pressed for clemency on the grounds that continued imprisonment of the prisoners at Landsberg was an obstacle to the moral and political reconstruction of the country. McCloy, advised by an Advisory Board on Clemency that included the future Justice of the United States Supreme Court David Peck, granted the clemency in waves. The death sentences were almost all commuted. The long prison terms were reduced. By 1955 even the men convicted of the Einsatzgruppen killings had been released.
The clemency was a political decision. It was defended at the time as a humanitarian gesture and as a necessary step in the reintegration of West Germany. It is judged today by historians, including those most sympathetic to the wider American policy of supporting the Federal Republic, as a moral mistake. The men whose sentences were commuted had been convicted on full records of the killings they had personally ordered or carried out. The Cold War rebuilding of Germany did not require their release. McCloy’s biographer, Kai Bird, has documented the pressures that produced the decisions. The decisions were political, not legal. They have not been overturned, because the men in question are dead. They cannot be unmade.
What the trials produced
The Subsequent Proceedings produced the most detailed legal record of the Third Reich that exists. The fifteen volumes of Trials of War Criminals before the Nuernberg Military Tribunals, the green series, run to over thirty thousand pages of evidence, judgments and documents. They named the corporate boards, the medical faculties, the judicial benches, the diplomatic desks. They showed that the murder of six million Jews and millions of others had needed bankers, chemists, lawyers, generals, civil servants, professors and doctors. It had not been the work of a few uniformed criminals. It had been the work of a country.
The trials gave international law its first sustained engagement with crimes against humanity, with the criminal liability of corporate officers, with the doctrine of command responsibility and with the medical ethics of human experimentation. Every major war crimes proceeding since, from Eichmann in Jerusalem in 1961 to the tribunals for Yugoslavia and Rwanda to the International Criminal Court, has drawn on the Subsequent Proceedings for precedent. The Nuremberg Code on medical experimentation is the foundation of every research ethics framework in operation today. The doctrine that a corporation’s officers can be personally responsible for crimes committed by the corporation has shaped seventy years of human-rights litigation.
What the trials did not produce was sustained punishment. The clemency of 1951 was the political decision that closed the books on the Subsequent Proceedings as a system. The men who built the machinery of mass murder, with the exception of those tried in Communist countries who were generally hanged or imprisoned for full terms, almost all died in their beds. They returned to their professions, their seats in industry, their teaching positions, their consulting practices, their German social clubs and their West German pensions. The trials had named them. The clemency had let them go. The historical record had to be enough, because in the end it was all that was kept.
See also
Sources
- Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, U.S. Government Printing Office, 1949
- Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, the Green Series, 15 vols, U.S. Government Printing Office, 1949 to 1953
- Hilary Earl, The Nuremberg SS-Einsatzgruppen Trial, 1945 to 1958: Atrocity, Law and History, Cambridge University Press, 2009
- Diarmuid Jeffreys, Hell’s Cartel: IG Farben and the Making of Hitler’s War Machine, Bloomsbury, 2008
- Kim Christian Priemel and Alexa Stiller, eds, Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography, Berghahn, 2012
- Paul Weindling, Nazi Medicine and the Nuremberg Trials, Palgrave Macmillan, 2004
- Vivien Spitz, Doctors from Hell: The Horrific Account of Nazi Experiments on Humans, Sentient, 2005
- Frank M. Buscher, The U.S. War Crimes Trial Program in Germany, 1946 to 1955, Greenwood, 1989
- Kai Bird, The Chairman: John J. McCloy and the Making of the American Establishment, Simon and Schuster, 1992
- Norbert Wollheim, testimony in The IG Farben Trial, NMT case VI, 1947 to 1948