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«Winchester, UK Washington, USA First published by Zero Books, 2012 Zero Books is an imprint of John Hunt Publishing Ltd., Laurel House, Station ...»

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British lawyers started to look for evidence to rebut the charges, until Prime Minister Attlee insisted ‘we are not on trial and we should not put ourselves on the defensive’, and withheld documents from the tribunal on British conduct. In March 1946 the Foreign Office’s Patrick Dean was glad to report that the judges had decided to reject all evidence of Allied atrocities: ‘an important decision’ that ‘may save much time and embarrassment’. Later he cabled London on another victory: ‘all documents on alleged Allied plans to invade Greece and Yugoslavia to block Danube and to bomb Caucasian oil wells were struck out’ by the judges.21 All through the trial the British prosecuting counsel Airey Neave winced as Russian lawyers mocked his attachment to ‘bourgeois legal norms’, but this was a case of locking the stable door after the horse had bolted; ‘bourgeois legal norms’ were abandoned when the Allies undertook a Moscow-style show trial. The Russian judge Iona Nikitchenko had earned his seat sentencing those old Bolsheviks who stood in Stalin’s way, Kamanev and Zinoviev, in the purges of 1935-8. Particularly galling for the young Tory war hero Neave was Count Three, War Crimes Section (C), ‘Murder and Ill-Treatment of Prisoners of War’, subsection 2, which read: ‘In September 1941, 11,000 Polish officers, who were prisoners of war, were murdered in the Katyn Forest, near Smolensk’. This charge had been put on the sheet by the Soviet lawyer Roman Rudenko – though everyone knew that the massacre had been carried out not by the defendant, Herman Goering, but by one of the prosecuting authorities, namely the Soviet Union. The Polish government in exile sent a great dossier of documents to the court, Facts and Documents Concerning the Polish Prisoners of War Captured in the 1939 Campaign, to show Soviet culpability. At one point Rudenko introduced a hurried amendment of the numbers killed changing 925 to 11,000. That way the Soviets hoped to enshrine German responsibility for all deaths at Katyn in the legal judgement at Nuremburg. When Goering’s lawyers tried to challenge the evidence Rudenko cited the Nuremberg Charter to say that discussion of Allied actions was outside the court’s remit. The judges avoided all mention of Katyn in their verdict.22 If the Soviet lawyers’ charges were a brazen attempt to pin guilt for their own actions onto the defendants, all of prosecuting authorities knew that the trial was a shocking doublestandard. Henry Stimson, War Secretary and architect of the trial said in private that he was worried about the use of the atomic bomb because ‘I did not want to have the United States get the reputation of outdoing Hitler in atrocities’. US Prosecutor Colonel Telford Taylor admitted that ‘it was difficult to contest the judgement that Dresden and Nagasaki were war crimes’. British war historian Basil Liddell Hart thought that a ‘weakness in our case’ was that the Government had tasked Bomber Command in 1942 with striking at ‘the German population’: ‘Because of its early date, this directive is in some ways more significant that the more discussed use of the atom-bomb to bring about the collapse of the Japanese people’s will to resist’.23 The point where the prosecuting authorities established the moral high ground over the Nazi accused in the dock was when a film of the terrible atrocities at Dachau and Buchenwald concentration camps was shown. Though the preparation of the charges against the German war leaders put the Crime against Peace to the fore (which is why it was prepared by the American and British prosecutors) historical memory puts more weight on the Crimes against Humanity (prepared by the Russian and French prosecutors). In the prosecution of the war the Allies did not want to use evidence of the slaughter of the Jews into the case against Nazi Germany.24 But afterwards the pictures of the death camps brought home to the public the full horror of Fascism.

By prosecuting the leading Nazis the Allies were fixing in the public imagination the war guilt of the German people as a whole. In 1946 the Allies denied occupied Germany selfgovernment on the basis of war guilt. Stasi leader Markus Wolf insisted that though ‘only a small minority of Germans were actually guilty’, ‘all Germans who lived willingly under the Nazis bear a responsibility for them’ – an attitude which no doubt made it easier for him to keep records on so many of his countrymen.

In the English language, one of the most popular histories of German atrocities was The Scourge of the Swastika, by Lord Russell of Liverpool, who had been Deputy Judge Advocate General to the British Army of the Rhine and chief legal advisor to the Nuremberg tribunal. It was a popular and clear setting out of the evidence he had helped to sift at the Nuremberg court. For all that, the Scourge of the Swastika was by the time of its publication in 1954, already out of step with the changing British policy towards Germany. When he showed his superiors the draft of the book he was called in to explain himself to the Lord High Chancellor Viscount Simonds. In a letter Simonds thought that the book was untimely because it would ‘give support to the opinions of those who are most strongly critical of the policy of giving Germany an opportunity, by rearmament or otherwise, of exerting an interest in world affairs’. British policy had changed. The Germans were no longer the enemy, but allies in the arms race with the Soviet Union. No longer just ‘these beasts’, the Germans, as Bob Dylan sang sarcastically, ‘now, too had God on their side’. Russell, who had helped lay the charges against the German leaders in the Nuremberg tribunal, was now told by the High Chancellor that he was helping to ‘stir up hatred of the German people as a whole’.

Russell was told that if he published the book, the High Chancellor would ‘be obliged to consider’ Russell’s position. Russell forestalled this threat by resigning. The lesson of the affair was that the Show Trials at Nuremberg were alright for stirring up hatred of the German people in 1945 (the better to rule over them). But those high principles of justice turned out to be nothing more than political expediency, tossed aside when they no longer met British interests.25 Much later the Nuremberg Trials would be lauded as a model for how the ‘United Nations’ should deal with dictators. At the time, though, the Nuremberg process was largely thought of as a failure, and it wound up early when a number of trials collapsed. The trials dragged on and barristers who did not have a jury to perform to read out typed contributions in a dull monotone. The public had lost interest after the executions of the leading Nazis.

The second batch of trials was scheduled to begin in 1949 with four German generals Gerd von Runstedt, Erich von Manstein, Field Marshal Walther von Brauschitch and ColonelGeneral Adolf Strauss in the frame. These generals won the sympathy of military men in the west, who identified more strongly with them, and were also seeking to build up the West German military. Conservative figures like Senator Joseph McCarthy of Wisconsin and Air Marshal Sholto Douglas, military governor of the British Zone, all counselled clemency in the case of the Generals. When three of the generals were judged not to be well enough to stand trial it was a very convenient decision for the Allied authorities who were retreating from prosecution for reasons of political expediency.


Between 1945 and 1949 six million Germans went through the ‘denazification’ process that ran alongside the more dramatic Nuremberg trials. Every adult had been required to complete a questionnaire outlining their past activities and allegiances. Of these one million were classified as followers, 25 000 offenders and just 2000 major offenders. Historian Mark Mazower judged that ‘these purges left intact the same structures of power through which the Germans ruled Europe: local civil servants, police, business organizations and the press’.26 Allied policy changed from punitive, to ameliorative in the space of a few years. H Stuart Hughes explained the injustice that implied: ‘frequently it proved simpler to try the lesser offenders first, since their cases were easier to untangle’. But over time more amnesties were granted before the denazification process ground to a halt in 1949. ‘Thus many insignificant people who had been tried earlier received heavy penalties, while some important offenders whose cases had been postponed escaped scot-free‘.27 Underneath the orderly and quasi-legal process of denazification there was outright police repression. Repression turned out to be a pretty blunt instrument. Britain’s Combined Services Detailed Interrogation Centre (CSDIC) ran a secret prison following the British occupation of north-west Germany in 1945 at Bad Nenndorf. Internal investigations revealed that torture was rife at Bad Nenndorf, and that many had died of injuries or of starvation.

Some of the prisoners were suspected of being Nazis, but others were identified because they were communists – men in fact who had been persecuted by the Nazis.28

German leftists tortured by the British at the Bad Nenndorf Detention Centre

At the end of the war Americans had seven hundred thousand Germans kept in camps, of whom 56,000 died there. 29 Nuremberg prosecutor Rudenko ran the NKVD Camp No 7, where 60,000 were held at the site of the former Nazi concentration camp at Sachsenhausen – and it is alleged thousands died there. In the summer of 1945 the French government announced that it was putting 220,000 German prisoners of war to work and by the summer of 1946 expected to be employing 1,700,000. 30 The US authorities had transferred 320,000 German prisoners to the French. After the International Red Cross found that these French-held prisoners of war were being ill-treated, the transfers stopped, but in September 1947 France still held 600,000 German prisoners. The British had many prisoners, too. ‘We have 40,000 to 50,000 Germans still in concentration camps … the only right and proper description there is for these institutions’, worried Wing Commander Norman Hulbert MP in 1946. In 1954 a review of eighty war-criminal cases under Sir Alexander Maxwell found there were only 25 in which a conviction would have been justified.31

Occupying Japan

Unlike the Nazi leadership in Germany, Japan’s authorities did surrender to the Allies on 10 August, as announced by Emperor Hirohito by radio broadcast on 15 August 1945.

President Harry Truman appointed General Douglas MacArthur as Supreme Commander of the Allied Powers – effectively the ruler of Japan. Six days after the formal surrender on 2 September MacArthur rode into the capital. ‘Never in history had a nation and its people been more completely crushed’ MacArthur wrote. General George Kenney thought that the Japanese were ‘suffering from shell-shock’. 32 To help them run this unfamiliar country, the occupiers had the assistance of the Office of War Information’s best anthropologists, sociologists and psychologists, most notably Ruth Benedict. The Japanese, Benedict wrote, are both aggressive and unaggressive, both militaristic and aesthetic, both insolent and polite, rigid and adaptable, submissive and resentful of being pushed around, loyal and treacherous, brave and timid, conservative and hospitable to new ways.33 …which covered most eventualities. The erudite Ms Benedict also noted of a country that had over fifty years made the transition from a backward feudal society to a modern capitalist superpower, ‘Japan has not changed fundamentally since the 1890s’.34 MacArthur’s power as Supreme Commander was absolute. He had the power to suspend Hirohito’s functions, dissolve the Diet, outlaw political parties, or disqualify any man from public office. When he decided to dismiss all legislators who had belonged to certain militaristic societies Prime Minister Kijūrō Shidehara’s cabinet threatened to resign en masse. In that case, said MacArthur, ‘Shidehara may be acceptable to the Emperor for reappointment as prime minister, but he will not be acceptable to me’. The resignations were withdrawn. MacArthur’s power was not only over the Japanese. US State Department advisor William Sebald suggested MacArthur consult with chiefs of the mission in Tokyo about Korean Developments. ‘Why, as a sovereign should I?’ he asked. ‘President Truman doesn’t do so, nor does the King of England or any other head of state’. In the depths of Japan’s misery, MacArthur was worshipped as a great hero and benign dictator, much as the Emperor had been adored before.35 On the model of Nuremberg, the Allies arranged an International Military Tribunal for the Far East that began sitting in April 1946 under the Australian Judge William Webb, with America’s Joe Keenan prosecuting. Twenty eight were charged with crimes against peace and humanity. The accused included the Prime Minister General Hideki Tōjō, Foreign Minister Shigenori Tōgō, the war and naval ministers, the commanders of the Kwantung Army, the Burma expeditionary force, the Shanghai expeditionary force and the Philippines expeditionary force – but not the Emperor Hirohito. In a nod to Asian suffering Judges from India and the Philippines were included. From the outset, Keenan had to face the Elephant

in the room:

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