By Henry T. King, Jr.
Address presented 17 November 1995 during “Nuremberg and the Rule of Law: A Fifty-Year Verdict,” a conference co-sponsored by the Center for National Security Law, University of Virginia, The Center of Law, Ethics and National Security, Duke University School of Law, and The Center for Law and Military Operations, The Judge Advocate General’s School, United States Army. The Conference was held in the Decker Auditorium, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, November 17-18, 1995.
How Did I Get There?
It is indeed a pleasure to be here. There is a certain joy in reliving this
experience which was very important to me personally as well as to mankind
as a whole. You can rest assured that everything that is said here is an eyewitness
account based on my experience as a prosecutor – first, in the trial
of the major Nazi war criminals where I worked on the case against the German
General Staff and High Command, and then in the subsequent proceedings. This
account also is based on my interviews with Herman Goering, Albert Speer,
Fritz Sauckel, Wilhelm Keitel, and others in the Nazi hierarchy. In the past
few years I have spoken at length with Speer’s daughter, Hilde Schramm,
and Hitler’s secretary, Frau Traudl Junge.
To give you some background in this exercise, let me
take you back to my young manhood days when my father was a public official
and ran for elective office. In the community where we lived, Meriden, Connecticut,
father ran for almost every office there was. Mostly he was elected, but not
always. Each Sunday my family discussed the issues of the day around the dinner
table. One Sunday night in 1935 my father asked the question: “How do
you stop wars?” Neither I nor my sister nor my mother had the answer.
My father, having raised the question, proceeded to give us the answer: “The
people don’t want wars. It’s their leaders. To prevent wars you
have to punish their leaders.” That summer I had an appendectomy, and
returned late to school, and therefore, I still was at our summer home in
Branford, Connecticut, about noon one September Saturday when a news report
came over the air from Nuremberg, Germany, transmitting Adolf Hitler’s
speech at the Nazi Party rally at Nuremberg. The speech totally commanded
my attention. I did not understand the German, but as Hitler began to raise
his voice, it was apparent that the audience and Hitler became one. I have
never heard anything like that before or since.
I went through Yale Law School in two years instead of three. After graduation
I began my career with the major New York law firm of Milbank, Tweed &
Hope. It was a good experience and excellent training, but there seemed to
be something lacking. My wife encouraged me to seek out a human experience
that we could share together. I was not able to understand at just that moment
what she meant, but I was soon to find out. Meanwhile, after two years at
the large firm I decided to go with a smaller firm in an important capacity.
From small fish, big puddle I was going to be a big, big fish in a small puddle
and I wanted to share this victory with a very competitive classmate of mine
from Yale Law School. So I invited him over to the house for dinner. My wife,
Betty, cooked a delicious roast pork dinner, and I announced my surprise and
waited for the applause. “Henry,” my classmate said, “I
hate to upstage you, but I am joining the United States Prosecution staff
at Nuremberg.” I did not go to bed that night; my wife wouldn’t
let me. I hit the trail for Washington, D.C., very early the following morning,
and that afternoon I landed on the steps of the Pentagon and was interviewed
for a position at Nuremberg.
Emphatically supported by my wife, I left no stone unturned until I was en
route to Nuremberg. But Nuremberg involved considerable risk taking. There
were those who told me not to go because I would lose my place in line for
success in the traditional practice of law. I disregarded these naysayers
and stuck with my decision. This proved to be the best decision I made in
my whole life, because I became an individual at Nuremberg, and it gave my
life a sense of meaning and purpose.
What It Was Like When I Got There?
On my arrival at Bremerhaven in March 1946, I saw a Germany which had been
devastated by modern weaponry. The effects were so destructive that I resolved
to do my part to never let it happen again. Civilization as I had known it
had disappeared. People lived in cellars and in the ruins of bombed-out buildings.
Food was in short supply.
Many of the people were in rags. We took a train on a bitterly cold rainy March night from Bremerhaven to Nuremberg. We arrived at the Nuremberg Bahnhof (railroad station) at 4:30 AM in a blinding rainstorm. We were billeted at the Grant Hotel right across from the Bahnhof. This was where Adolf Hitler and his top subordinates had stayed and played a few years before. We arrived on a Friday and started work in the courthouse the following day, walking to the courthouse through a devastation wrought by the Allied bombing. As we did, we were faced with a continual reminder of the meaning of our mission.
At Nuremberg, I worked on the closing phase of the General Staff and High
Command case. We sought to convict them as a group, but the court found that
they were not a cohesive group, although what they did had the ring of criminality.
As a result, we took steps to try them individually.
I was given three cases: (1) against Walter von Brauchitsch, Commander in
Chief of the German Army; (2) against Heinz Guderian, the father of modern
tank warfare and the Chief of Staff of the German Army; and (3) against former
Field Marshall Erhard Milch, who actually led the German air armada in the
Battle of Britain.
I prepared the cases against all three, but von Brauchitsch was handed over to the British for trial and sentenced to a long prison term. Guderian was to be transferred to the Polish for trial. But after we were committed to the transfer, we got into a fight with the Poles; Guderian got as far as Berlin, and was stopped there and never turned over to the Poles – and he was subsequently released. He later participated in a Neo-Nazi movement in north central Germany.
The Milch case which I prepared started in December 1946 and was decided in
April 1947. Milch was tried for his participation in the Nazi slave labor
program and for his role in the human experiments program. He was found guilty
on the slave labor counts and sentenced on April 16, 1947, to life imprisonment
in Rebdorf Prison outside of Munich, but in early 1951 his life sentence was
reduced by John McCloy, High Commissioner for Germany, to fifteen years and
he was released on parole after serving two-thirds of this sentence in mid-1955.
As a matter of interest, Milch had appealed his sentence to the United States
Supreme Court, but the Supreme Court refused in October 1947 to take jurisdiction,
so his sentence remained intact until it was reduced.
I also worked on the Ministries case and the Justice case.
One of the
unique features of the Nuremberg proceedings was that much of the proof of
guilt came from the Nazis’ own files. The Germans were the greatest
record keepers in history. For example, in preparing the slave labor phase
of the case against Milch, we used the minutes of the Central Planning Board,
of which he was a member. The Board governed Germany’s war economy and
was up to its eyeballs in the exploitation of slave labor. Documentation for
the human experiments case was amply provided by the Luftwaffe files –
because the experiments were conducted for Luftwaffe use at Dachau concentration
camp. The problem in preparing these cases was proving the “chain of
knowledge.” It was very hard to establish that, for example, Milch,
as de facto head of the Luftwaffe, knew what was going on in the way of human
experiments at Dachau. As regards slave labor, we did have some very incriminating
documents, because the slave labor problem was frequently discussed at meetings
of the Central Planning Board of which Milch was an important member. We convicted
Milch to a considerable extent with the voluminous minutes from the Nazis’
own files.
What was the
law which governed in the handling of these cases? In the first case before
the International Military Tribunal, it was the London Charter of August 8,
1945. In the subsequent proceedings, it was the Control Council Law Number
10. These two documents were basically similar with two exceptions which I
shall mention.
Both defined
crimes against peace as planning or waging of aggressive war. But Control
Council Law Number 10 defined “crimes against peace” to include
invasions as well as wars – thus, providing a basis for charging the
Austrian and Czechoslovak conquests as crimes against peace.
The second
category of crimes was war crimes – violations of the laws and customs
of war.
The third
category of crimes was crimes against humanity – atrocities committed
against civilian populations on racial, political, or religious grounds. The
London Charter added the provision that “such crimes must be in execution
of or in connection of any crime within the jurisdiction of the tribunal.”
Thus, these crimes under the London Charter could not stand on their own bottom.
Control Council Law Number 10 removed this provision; therefore, we could
take cognizance of atrocities perpetrated prior to the outbreak of the war.
Back up for
the changes in the case of war crimes against humanity came from The Hague
and Geneva Conventions of 1907 and 1928, respectively, and in the case of
crimes against peace, from the Kellogg-Briand Peace Pact of 1928 which outlawed
war as an instrument of national policy and various treaties that Germany
had signed covering the peaceful resolution of disputes (i.e., the Locarno
Treaties).
Under the
London Charter and Control Council Law Number 10, superior orders was not
a defense, although it could be considered in mitigation if the moral choice
was not possible. The head of state of a country was not exempted from trial
by virtue of his position. The court dismissed the ex post facto defense,
which was directed at the novelty of the Nuremberg trial, on the ground that
ex post facto is a principle of justice and not a limitation on sovereignty,
and Albert Speer told me after he was released from prison that he felt that
the Nuremberg trial was just, and that to allow the ex post fact defense with
these defendants would create an injustice. The fact of the matter was in
several cases they had legal opinions telling them what they were doing was
wrong.
Witnesses – Who Were They? Some Examples.
Rudolph Hoess, Commandant of Auschwitz, testified that he was responsible
for the killing of 2,500,000 persons at Auschwitz and that an additional 500,000
people died from disease at Auschwitz.
Otto Ohlendorff,
head of Einsatz Gruppe D, admitted directing the killing of 90,000 men, women,
and children in Southern Russia. Ohlendorff was a lawyer.
Friedrich
von Paulus, who surrendered German armies at Stalingrad in February 1943,
testified against his former military colleagues saying that they planned
and initiated the aggressive war against the Soviet Union.
In the Milch
case, Roland Ferrier and Paul le Friec, who were French slave laborers, described
the horrendous conditions under which slave laborers lived and worked. They
were unbelievable, and their testimony could have been multiplied by others
by the thousands.
The foregoing
were just a few – plus the defendants themselves.
Who Were the Defendants – and What Were They Like?
I talked with several of the defendants in the first case – Speer –
Goering – Sauckel – Keitel. Speer impressed me deeply because
he said, “I did it and I bear my share of responsibility.” Milch
refused to accept any responsibility. Goering still revered Hitler when I
talked to him on September 28, 1946. Hess appeared to be “out of it,”
but in his closing statement said that he would support Hitler and Nazism
again if the opportunity ever arose. Sauckel and Keitel were weak sisters
– Sauckel was a whiner and Keitel an old toady to Hitler.
It may be of interest that four of the defendants were lawyers: Kaltenbrunner,
the head of the Gestapo; Frank, a former head of the Bavarian Bar Association
and governor General of Poland; Frick, the Minister of Interior; and Seyss
Inquart, the Governor General of the Netherlands and former Nazi Chief in
Austria. All four were found guilty and executed.
Who were the
major defendants at Nuremberg? Well, it soon became apparent that there were
two who were very, very important – super important. One was Herman
Goering- because of his standing. He was the Reichs Marshall. A World War
I hero, the successor to Baron von Richtoven, the Red Baron who had been head
of the Richtoven squadron in World War I. Goering was a national hero, charismatic
and sharp, razor sharp. Once he got off the dope and got rid of the painted
toe nails and toga that he wore at times during the war, he was extremely
acute, and the exchanges between Justice Robert Jackson, the Chief Prosecutor
at Nuremberg, and Goering were intense and fascinating. Jackson had been a
good appeals lawyer. His experience was not as a trial lawyer, and some felt
that he had met his match in Goering. But these sharp exchanges should in
no way diminish Jackson’s greatness. I last interviewed Goering on September
28, 1946. I had a detailed affidavit that I wanted him to sign, implicating
his Deputy, Erhard Milch, in certain war crimes. I had tried to play him off
his deputy by suggesting that Goering say some incriminating things about
Milch. But he went through the affidavit like greased lightning, crossed out
the punch lines and then said, “Here’s your affidavit. I give
it back to you now and also the paper clip – they think I might do something
to myself with this paper clip.” Well, he didn’t need the paper
clip because he killed himself just before his anticipated execution with
a cyanide capsule which some think an American soldier named Tex Wheelus helped
him to obtain.
The other
super important defendant was Albert Speer who was closer to Adolf Hitler
than anyone else. Hitler had everybody figured out in terms of their weaknesses
and instinctively played one person against another. Hitler encouraged the
rivalries: between Speer and Goering; between Bormann and Speer; Goebbels
against Himmler; and Goebbels against Ribbentrop. Nobody ever felt secure.
It became clear to me very soon after my arrival in Nuremberg that the window
into Hitler’s soul was Albert Speer, Hitler’s closest personal
associate. Together they devised architectural dreams to create a new and
greater Berlin as a world capital. Hitler was a frustrated architect himself
whose grandiose plans could now be realized through Speer’s expertise.
Speer was responsible to choreographing some of Hitler’s charismatic
performances at party rallies. Speer conceived of the cathedral of ice that
involved searchlights playing against the dark sky. During these rallies,
the legions of Nazism paraded for three or four hours to Nazi marching songs,
then the solitary figure of Adolf Hitler appeared at the outer end of the
vast Nuremberg stadium and the spotlights tracked him as he walked up to the
platform to begin his mesmerizing speeches to the Nazi audience. The panoply
was Speer’s creation.
The only person
that I could see who really understood and influenced Hitler was Albert Speer,
so I spent a lot of time with him, during which Speer told me that Hitler
was a mesmerizer, depriving people of their will. I didn’t need to be
told that. Remember, I had heard Hitler on the radio back in 1935. Speer said
Hitler took people’s wills away from them and twisted them to his own
purposes.
Speer also
told me that he frequently took the 7 PM Wednesday night flight from Tempelhoff
to Hitler’s retreat in the Obersalzburg. During the flight, Speer would
rehearse his exchanges with Hitler. One example from the late stages of the
war involved Bormann’s plan to destroy all industrial installations
in the occupied countries of Western Europe, including the Philipsglowlampwerks
at Einhoven in the Netherlands and the Renault works in Paris. Speer appealed
to Hitler’s ego by saying, “We’re coming back, mein Fuhrer.
You told us we would be. We are going to need those installations. You don’t
want to destroy them.” So Hitler reversed his decision. Thus, Speer
was a point of influence without parallel in Hitler’s circle. Speer
told me that Hitler had no friends, yet Hitler’s secretary, Frau Traudl
Junge, told me in December 1992 and November 1994 that Hitler regarded Speer
as his friend. This was a special relationship unlike any other within Hitler’s
entourage.
What Was the Court Like?
Chief Justice Geoffrey Lawrence, who also was Chief Justice of the United
Kingdom, had a sense of fairness in running the proceedings. He was even handed.
He kept the Russian prosecutors under control. Albert Speer expressed to me
tremendous respect for Lawrence as a judge.
The proceedings were simultaneously translated into French, English, German,
and Russian. Wolfe Frank was the chief translator from German to English.
His translations were delicious – he had a great command of the English
language. I used to go to the courtroom sometimes in the afternoon just to
listen to him.
Where Was the Press?
The press was everywhere. They live at Faber Schloss (castle). Every great
newspaper person of the day was there. Radio coverage was very complete.
Who Were the Defense Counsel?
German lawyers were defense counsel. They were the leaders of the German Bar.
Some, such as Friedrich Gergold, who represented Erhard Milch, were very good.
He also defended Martin Bormann in absentia in the first case. In Hitler’s
Germany, Bergold had defended Jehovah’s Witnesses who had been persecuted.
He was smart, hard working – very able as was Hans Flachsner, Speer’s
counsel. The star defense counsel was Otto Kranzbuhler who represented Grand
Admiral Karl Donitz, the head of the Germany Navy. He procured an affidavit
from United States Admiral Nimitz, which said that the United States had undertaken
actions paralleling some of the allegedly criminal activities with which we
were charging Donitz.
Overshadowing
all of these individuals was Robert Jackson, who had the vision to create
Nuremberg – he was the greatest appeals lawyer that the United States
has ever produced. There would have been no Nuremberg without Robert Jackson.
We on the staff worked on his closing statement and submitted drafts, but
I later found that Jackson re-did it all himself. It was a masterpiece.
What Was the Social Context?
Tension was high at the courthouse all day. At night we danced and relaxed
at the Grand Hotel to Koenig and his great orchestra – “Violetta
from la Traviatta” and Wien Wien nur du Alai” are pieces that
I shall never forget because of their effect on me and the atmosphere which
they created in my memory.
What Did It All Mean To Me?
I came home with a sense of mission to never let war on that scale happen
again. I became an individual at Nuremberg. I knew who I was and what I stood
for. I developed for myself a blueprint of the world as it should be, and
putting this into effect has been my goal for the rest of my life.
It has always been my sincere conviction that lawyers because of their training
can, and must, play a critical role in establishing a rule of law in the world.
I believe that we lawyers have to do what we can to create a better world
for future generations; we have been given a privilege by society to practice
law, and in return we need to tithe a bit for society.
What we need
to focus on is institution building. We need to develop new institutions to
fill conspicuous gaps in our international context. For example, an international
criminal court is long overdue, and we need to see that it becomes a fixture
on the world scene. It is vital to put in place an international criminal
court after which we can make improvements in it based on actual experience.
As an alternative to endless debate over a totally comprehensive set of crimes,
an international criminal court could be limited at the time of its establishment
to jurisdiction over a restricted number of crimes on which there was general
agreement. Then, as experience dictates, the court’s jurisdiction could
be expanded to other crimes. Or we could transform the current ad hoc war
crimes Tribunal sitting at The Hague into a permanent Tribunal which would
not be limited to jurisdiction over crimes in the former Yugoslavia and Rwanda.
We also must
continue to wrestle with the problem of sovereignty. We need to face up to
the fact that some limitations on sovereignty are necessary if we are to achieve
a better and more secure world. Pristine sovereignty is indeed an illusion
in our current world, bound together as it is so tightly today by trade and
communication. There is no talk of international wars today in Western Europe,
the site of most of the wars in the nineteenth and twentieth centuries. This
is because the European nations have under the European Community relinquished
some sovereignty in order to maintain economic equilibrium and peace in their
homelands.
And so we
should learn from the lesson of today’s Europe – that the price
of peace is the transfer of some elements of national sovereignty to international
institutions. These prerogatives can in turn provide the basis for international
institutions to function. We cannot have it both ways. To achieve an enduring
peace, we must give up sufficient sovereignty to enable international institutions
to function and work on our behalf. As the largest and most important nation
in the world, the United States must be willing to give international institutions
sufficient power to work for us. Today, in the absence of a structure for
an assured peace, we face – in a nutshell – international anarchy
and endless future surprises such as the attack on Kuwait, the death and destruction,
which is now a fact in the former Yugoslavia, and a replay in other countries
of the atrocities in Rwanda.
So we are
at the point of decision and the answer seems self-evident. Relinquish some
national sovereignty for international goals.
Nuremberg
was the start of an odyssey for me, and I am still seeking the golden fleece.
Perhaps my life and experience are analogous to the world at large as we all
seek to apply the lessons of Nuremberg. We are all still seeking to respond
to, and we have not yet answered, my father’s challenge that hot May
summer night in 1935 when he asked the question, “How do we stop wars?”
We aren’t
there yet, but fifty years after Nuremberg, trials have started at The Hague
to investigate war crimes in the former Yugoslavia. The Nuremberg principles
are the basis for these trials. Let us work to assure that an international
criminal court will become a fixture on the international landscape, in its
present form or in a changed form as future experience dictates.
Nuremberg
was a historical landmark in other respects as well. It marked the start of
the international human rights movement because it was the first international
adjudication of human rights. Its effect in this respect is felt throughout
the world in the United Nations Genocide Convention, the United Nations Universal
Bill of Rights, American Convention on Human Rights, and above all, the European
Convention on Human Rights and Fundamental Freedoms.
Nuremberg
principles governing the conduct of war are incorporated into all field manuals
of the major powers, and the Nuremberg principles have been supplemented as
needed by the 1949 Geneva Conventions Governing the Treatment of Prisoners
of War and the Protection of Civilians in Wartime.
Nuremberg
was the first postmortem analysis of a dictatorship. Through Nuremberg we
learned the intimate details of the levers of power in a functioning dictatorship,
and how to avoid a recurrence in the future.
Nuremberg
held individuals responsible for violations of international law and, correspondingly,
that individuals had international human rights not dependent on nation state
recognition. This was a giant leap forward in the evolution of a civilized
world.
I am an idealist
– I make no bones about it. I believe we can have a better world where
men and women of all nations and races can live in peace and security and
with dignity. I believe that we have to fight for this new world, and I am
willing to do my part. In truth, I have devoted my life to it.
As Edwin Dickinson,
that great internationalist, said some years ago: “History teaches that
without ideals there can be no progress, only change; you may never touch
with your own hands the stars that guide you, but by following them, you will
reach your destiny.”
We have to
keep our eyes on the stars. Let us all tithe a bit for future humanity in
an endeavor to create a more secure world in which the rule of law prevails.
This has been my life-long dream, and I have devoted most of my waking hours
to it.
There is an
old Andalusian song that is sung in flamenco taverns which runs as follows:
“They say that a day
Has twenty-four hours.
If it had twenty-seven,
I would love you three hours more.”
On a personal level, I would phrase it this way:
“They say that a day
Has twenty-four hours.
If it had twenty-seven,
I would work for a more secure world
Three hours more.”
Transcribed by Charlene J. Peterson, 2004