The Nuremberg Evidence Was Obtained by Torture

The claim has a small documented basis (the Malmedy Massacre Trial of 1946 to 1947 did involve some interrogation abuses, acknowledged at the time by US Army investigators) and is then enormously inflated to cover the entire Nuremberg corpus. The IMT main trial of 1945 to 1946 and the twelve subsequent Nuremberg trials of 1946 to 1949 were not built on coerced confessions. They were built on captured German documents (the largest single category of evidence), captured German film footage, the testimony of German civilians, German military personnel, German civil servants, Allied investigators, and survivors. Defendant testimony, where given, was given by men who had defence counsel of their own choosing, who could refuse to testify, and who in many cases did refuse. The claim that the entire trial corpus was tortured into existence requires the dismissal of the document-capture record, the witness-statement record, and the trial transcripts that show defendants speaking freely on their own behalf.

The composition of the Nuremberg evidence

The IMT prosecution evidence consisted of approximately 3,000 captured German documents (the largest category), approximately 2,000 affidavits from witnesses and former defendants in non-criminal status, the courtroom testimony of approximately 250 witnesses, and limited additional materials including captured film. The captured documents were the heart of the case. They were authenticated by chain-of-custody affidavits from Allied document officers, examined by defence counsel in advance, and admitted as exhibits with full provenance information. The documents do not require any defendant confession to support what they show; they are German bureaucratic correspondence, military orders, intelligence reports, statistical compilations, contracts and minutes that document the operation directly.

The witness affidavits were given by various categories of witness: Allied investigators (whose chain of custody for the documents was sworn to in this form), German civilians (recording what they had seen of camp conditions, deportations and so on in their localities), former German military and SS personnel in non-criminal status (testifying about specific operations they had observed), surviving prisoners of the camps (testifying about what they had experienced), and others. The affidavits were given in standard legal form, signed in the presence of an authorised officer, with the affiant’s identity and address recorded. Many of the affiants subsequently appeared as live witnesses in court for cross-examination. The standard scholarly treatments by Bradley Smith, Telford Taylor and Robert Conot all set out the witness-evidence base in detail.

The defendant testimony

Defendant testimony at the IMT was voluntary. Each defendant had defence counsel of his own choosing (Hermann Göring chose Otto Stahmer; Karl Dönitz chose Otto Kranzbühler; Albert Speer chose Hans Flächsner; and so on, with the defence bar a roll-call of senior German lawyers). Defendants could choose to testify in their own defence or to remain silent. Most chose to testify, because the defence strategies generally required the defendant’s own account. Speer testified for two days. Göring testified for over a week. Dönitz, Funk, Frank, Frick and the others all testified. The transcripts are public; the defendants spoke freely, made the cases they wished to make, and were cross-examined by the four prosecuting teams.

The conditions of pre-trial custody at Nuremberg are documented. The defendants were held in single cells in the cellblock of the Palace of Justice, under American military police custody, with regular access to defence counsel. They were subject to suicide-prevention measures (continuous lighting, watch through a peep-hole) but not to physical mistreatment. The American Army psychologist Gustave Gilbert and the American Army psychiatrist Douglas Kelley made detailed clinical notes on each defendant across the trial period; their notes record psychological pressure (depression, anxiety, family worries) but do not record any allegation of physical abuse. The defendants themselves, in their courtroom testimony, did not allege torture in custody.

The Malmedy episode

The exception is the Malmedy Massacre Trial. This was a separate post-war trial conducted in 1946 by the US Army at Dachau, dealing with the SS personnel responsible for the Malmedy Massacre of December 1944 (the killing of approximately 84 American POWs by Waffen-SS troops during the Ardennes offensive). The pre-trial interrogations at the US 7th Army’s holding facility at Schwäbisch Hall, conducted in 1945 by US Army Counter-Intelligence Corps personnel, included some methods that exceeded what was permissible. A subsequent US Senate subcommittee investigation in 1949, led by Joseph McCarthy and Senator Raymond Baldwin (later in collaboration with Senator Estes Kefauver), found that some interrogators had used physical coercion in the Malmedy investigation. The convicted defendants’ sentences were reviewed; some were commuted; the trial outcomes were partially adjusted on the basis of the interrogation problems.

The Malmedy episode is in the historical record. It is also separate from the IMT and the subsequent Nuremberg trials, conducted by different teams in different locations under different supervisory authority. The Malmedy interrogators were US Army CIC personnel at the 7th Army facility; the Nuremberg interrogators were the IMT prosecution teams under the supervision of Justice Robert Jackson and his successors. The deniers’ move is to use the documented Malmedy abuses to discredit the entirely separate Nuremberg corpus, with no evidence of any equivalent abuses at Nuremberg.

The Frankfurt re-test

The same documentary corpus was re-examined twenty years later in West German courts. The Frankfurt Auschwitz Trial of 1963 to 1965 used the captured Auschwitz documents, the Höss testimony, and the surviving witness statements that had been used at Nuremberg. The trial was conducted under West German law, with West German defence counsel, in a court whose judges and prosecutors had every reason to scrutinise the original Nuremberg evidence sceptically. The court found the evidence reliable. The verdict and the published trial findings have been the standing scholarly position since 1965.

Why the claim is harmful

The claim is harmful because it takes a documented but limited episode (the Malmedy interrogations) and inflates it into a wholesale claim about the IMT and the subsequent trials, with no evidence of equivalent abuses in the proceedings being claimed against. The IMT defendants did not allege torture; the documentary corpus is not defendant-confession-dependent; the witnesses include Allied investigators, German civilians and German non-defendants who had no obvious incentive to invent. To accept the denial is to accept that all of this evidence has been collectively coerced, with no evidence offered for the claim and the only documented case of interrogation abuse coming from a different trial in a different location under different authorities. The argument is the rhetorical move of taking a real but localised problem and presenting it as a systemic one.

What was the proportion of documentary versus testimonial evidence at the IMT? Did any of the IMT defendants allege physical torture in their own testimony? What did the West German Frankfurt court find when it re-examined the corpus?

See also

• The Nuremberg Trials
• Hermann Göring
• The Twelve Subsequent Nuremberg Trials
• Albert Speer
• Robert Jackson
• Telford Taylor

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Sources

• International Military Tribunal, Trial of the Major War Criminals, 22 volumes, Nuremberg, 1947 to 1949
• Bradley F. Smith, Reaching Judgment at Nuremberg, Basic Books, 1977
• Telford Taylor, The Anatomy of the Nuremberg Trials, Knopf, 1992
• Robert E. Conot, Justice at Nuremberg, Harper and Row, 1983
• Gustave M. Gilbert, Nuremberg Diary, Farrar, Straus, 1947
• Douglas M. Kelley, 22 Cells in Nuremberg, Greenberg, 1947
• Frankfurt Auschwitz Trial transcripts (1963 to 1965), Fritz Bauer Institut, Frankfurt; Hermann Langbein, Der Auschwitz-Prozess: Eine Dokumentation, two volumes, Europa Verlag, 1965
• Devin O. Pendas, The Frankfurt Auschwitz Trial 1963 to 1965: Genocide, History, and the Limits of the Law, Cambridge University Press, 2006
• James J. Weingartner, A Peculiar Crusade: Willis M. Everett and the Malmedy Massacre, New York University Press, 2000, on the Malmedy interrogation abuses
• US Senate Armed Services Subcommittee on the Investigation of the Malmedy Trial, hearings 1949, transcript published as Malmedy Massacre Investigation, 81st Congress, 1st Session
• Mr Justice Charles Gray, judgment in David Irving v. Penguin Books and Deborah Lipstadt, Royal Courts of Justice, 11 April 2000
• USHMM Holocaust Encyclopedia, “International Military Tribunal at Nuremberg” and “Subsequent Nuremberg Proceedings”, https://encyclopedia.ushmm.org