By Jack W. Robbins, Legal Aide to the Chief of Counsel for War Crimes
Robert H. Jackson
Center
June 7, 2004
I.
I was
recruited for the Nuremberg Trials in the spring of 1946. At the time, I was
a litigator in a big Wall Street law firm, Cravath, Swaine & Moore. I
was twenty-six years old at the time, and out of Columbia Law School all of
three years. My litigation experience in New York had been in civil, non-criminal
cases. I was recruited by Howard Peterson, Assistant Secretary of War (later
president of Fidelity Bank), for the position of Legal Aide to the Chief of
Counsel for War Crimes, Brigadier General Telford Taylor. I was given leave
of absence (and, in 1948, returned to the Cravath firm after completing my
two-year tour of duty of Germany).
I only had one pre-condition for going to Nuremberg, and that was that my
bride of three months had to go with me. Hilda and I had been married in February
1946 in the college chapel in Denton, Texas. Soon after we arrived in Nuremberg,
General Taylor (having learned that Hilda, a recent graduate of North Texas
State College, had majored in dietetics) placed my twenty-two year old bride
in charge of the cafeteria at the Palace of Justice and in the feeding at
lunch of more than a thousand people each day. It was a privilege to work
closely with General Taylor, a truly great lawyer, and to accompany him as
his legal aide on trips throughout Europe, preparing for the twelve war crimes
trials conducted in Nuremberg in the American Zone by U.S. personnel. Those
twelve cases have come to be known as the “Subsequent Proceedings”
because they were held subsequent to the first big trial – prosecuted
by Robert H. Jackson – of Goering, Hess, Speer, von Ribbentrop, Rosenberg,
Hans Frank, Julius Streicher, Kaltenbrunner and sixteen others by the International
Military Tribunal composed of American, English, French and Russian prosecutors
and judges.
In addition to the preparation and trial of the twelve cases, the Chief Counsel
and his staff also had to decide which individuals were to be tried. We selected
the defendants, gathered the evidence, prepared the indictments and conducted
the courtroom prosecutions.
As General Taylor’s legal aide, I was involved to some extent in all
of the twelve cases: I helped collect evidence and draft many of the indictments.
I was one of several prosecutors in the Nazi Doctors / Medical Experiments
case (Case No. 1) and did some early work on the Einsatzgruppen
case (Case No. 9). And I was the Chief Prosecutor in the Oswald Pohl case
(Case No. 4). Today I will give a brief overview of the twelve cases, and
talk in more detail about the Medical case, the Oswald Pohl
case and briefly about the Einsatzgruppen case.
In total we brought 177 individual defendants to trial in the twelve cases.
Most of the persons indicted in the “Subsequent Proceedings” were
already in American custody, but we did have some interchange of defendants
with the British and French, and with Holland, Denmark and Poland. The British
and French conducted war crimes trials in their respective zones of Germany,
and the Russians conducted war crimes trials in Moscow.
Since the end of the war, the Russians had been and continued to be relentless
in their pursuit of war crimes suspects. Indeed, twenty-two years after we
left Nuremberg, Hilda and I visited in Moscow with the chief Soviet prosecutor,
General Roman Rudenko. We had dinner (including vodka and sturgeon caviar)
with General Rudenko in the restaurant atop the Roussia Hotel. (This was in
1970.) Rudenko had returned from Nuremberg to his post as Attorney General
of Russia. And the main conversation at our two-hour dinner was about Rudenko’s
passionate, zealous pursuit of war crimes suspects, a quarter-century after
Nuremberg.
Each of the twelve cases in the “Subsequent Proceedings” centered
on a particular professional group of defendants. Thus, among the 177 defendants
there were 39 doctors and lawyers, 56 SS men and police, 26 military leaders,
22 government ministers and 42 industrialists and financiers. Among the industrialists
were the directors and officers of the I.G. Farben Chemical Trust (Case No.
6), the Krupp Munitions Trust (Case No. 10) and the Flick Combine that dominated
the coal, iron and steel industries (Case No. 5). At one time there were six
trials, involving more than one hundred defendants, all under way at the same
time.
About 100 American lawyers were employed by the office of Chief of Counsel
(not all at any one time.) And, of course, the defense bar far outnumbered
the prosecution bar: each of the 177 defendants was represented by at least
one, usually two and often three or even more, German lawyers. The Nuremberg
defendants were represented by the most able legal talent in Germany. Among
the rights that the German defendants had were:
1) The choice of an attorney;
2) The presumption of innocence;
3) The Prosecution having the burden of proving personal guilt beyond a shadow
of doubt;
4) The right for their attorney to cross-examine all witnesses;
5) Full access to the documentary evidence in the possession of the prosecution,
and
6) The full power of the U.S. Army to help them locate defense witnesses.
The twelve cases required more than 1,200 days of court proceedings, and the
transcript of these proceedings exceeds 330,000 pages, not counting thousands
of documents, briefs and other records.
In the twelve cases, 32 persons (mostly state court judges) served as judges.
Of the 177 defendants who stood trial in the twelve cases, 35 were acquitted,
and 142 were convicted. Of the 142 convicted, 26 were sentenced to death –
all 26 in the three cases that I am talking about today: seven in the Doctors
Case; four in the Oswald Pohl Case, and fourteen in the Einsatzgruppen Case.
Of the 118 defendants convicted but not condemned to death, 20 were sentenced
to imprisonment for life. And 98 defendants received prison terms of up to
25 years.
I never took particular pride in the 26 death sentences. The adjudications
– and the written opinions – of the Tribunals are much more important
than the death sentences in the cases.
II.
The
Doctors Case was the first of the twelve cases to be tried. The indictment
was filed October 25, 1946; the trial opened on December 9, 1946, and closed
seven months and ten days later, on July 19, 1947.
The case was heard by a bench composed of Walter Beals (Chief Judge of the
Supreme Court of the State of Washington) presiding; Harold Sebring (Judge
of the Supreme Court of Florida), and Johnson Crawford (Judge of the District
Court of Oklahoma).
The indictment named 23 defendants. Karl Brandt, the major defendant in the
Doctors Case, had been one of Hitler’s personal physicians. He was a
Major General in the SS and held the highest medical position in the Reich,
directly subordinate to Hitler, with supervisory authority over all military
and civilian medical services.
Other defendants, among the 23, included Lt. General Siegfried Handloser (Chief
of the Medical Services of the Army), Lt. General Oscar Schroeder (Chief of
the Medical Service of the Air Force), and Karl Gebhardt (Chief Surgeon of
the SS with the rank of major general and president of the German Red Cross).
These SS doctors, and their subordinates, performed cruel and barbarous “medical
experiments” on concentration camp inmates and prisoners of war. Experiments
that included high altitude, freezing, mustard gas, sulfanilamide, seawater,
sterilization, and experiments with incendiary bombs.
Inmates at Dachau and Buchenwald were deliberately infected by camp doctors,
with malaria, epidemic jaundice and typhus in order to test vaccines. Inmates
were forced by camp doctors, into tanks of ice water – or kept
naked outdoors at below-freezing temperatures – for up to three hours.
Indeed, the true object of many of these experiments was not how to rescue
nor how to cure, but how to destroy and how to kill. The sterilization experiments
were purely destructive in purpose. And the inmates at Dachau and Buchenwald
who were shot with poisoned bullets were not guinea pigs to test an antidote
for the poison. Their murderers – German doctors –
wanted to learn how quickly the poison would kill the victim.
Among thousands of other atrocities, the evidence established the murder
of 112 Jews who had been selected for the purpose of completing the skeleton
collection at the Reich University of Strasbourg. Photographs and measurements
were taken of the 112 Jews. Then, they were killed. Then, various pseudo-scientific
studies were made on their bodies: regarding race, pathological features,
form and size of the brain. Then, the bodies were sent to Strasbourg. There
the 112 bodies were defleshed for the skeleton collection at the University.
The so-called “medical experiments” – carried out by German
doctors in the concentration camps – resulted in thousands of deaths.
Indeed, the Nazi policy of mass extermination could not have been so effectively
carried out without the active participation of German doctors.
It must be said that the German medical profession played a crucial role in
the so-called “Final Solution of the Jewish problem.” German doctors
were essential to the operation of the concentration camps – deciding,
on the admission ramps, who were fit to be permitted to live temporarily
to perform forced labor and who should be promptly killed. German doctors
selected prisoners for death, supervised the killings in the gas chambers
and decided when the victims were dead.
German doctors joined the Nazi party in large numbers, and German medical
organizations actively supported Nazi policies. In 1929, four years before
Hitler’s rise to power, and ten years before the invasion of Poland
that marked the beginning of World War II, a number of German physicians organized
the Nazi Physician’s League to influence medical policy and to ride
the German medical community of so-called “Jewish Bolshevism.”
Nearly 300 doctors, some six percent of the German medical profession, had
already joined the Nazi league by January 1933; and by 1942 more than 38,000
doctors, forty five percent of all German doctors, had become members of the
Nazi Party (a higher percentage than for any other profession.)
The Nazi principle of killing as a therapeutic imperative is exemplified in
the words of SS Dr. Fritz Klein, a doctor at Auschwitz Concentration Camp.
Dr. Klein was asked how he could reconcile Auschwitz’s smoking chimneys
with his purported adherence to the Hippocratic oath. Klein’s answer
was simple and direct. He said:
“Of course I am a doctor and I want to preserve life. And out of respect
for human life, I would remove a gangrenous appendix from a diseased body.
The Jew is the gangrenous appendix in the body of mankind.”
The Germans justified medical killing on the basis of “life unworthy
of life.” In accordance with German virulent anti-Semitism, and anti-Semitism
that was violent, genocidal, eliminationist and exterminationist, Jews were
considered unworthy of life and had to be annihilated. For the Nazis, the
slaughter of Jews was simply a matter of “racial cleansing,” equivalent
to exterminating parasites and vermin.
In the Doctors case, 32 prosecution witnesses and 53 defense witnesses testified;
570 prosecution documents and 901 defense documents were introduced into the
record.
In its judgment, the Tribunal said:
Judged by any standard of proof the record clearly shows the commission
of war crimes and crimes against humanity substantially as alleged in counts
two and three of the indictment. Beginning with the outbreak of World War
II criminal medical experiments on non-German nationals, both prisoners of
war and civilians, including Jews and “asocial” persons, were
carried out on a large scale in Germany and the occupied countries.
Sixteen of the 23 defendants were found guilty (70%). Seven defendants were
sentenced to death by hanging (30%). Nine defendants received prison terms
ranging from 10 years to life. Seven of the 23 defendants were acquitted (30%).
The sentences imposed by the Tribunal were confirmed by the Military Governor,
and, after the United States Supreme Court (by a five to three vote, Justice
Jackson not participating) declined to review the case, the executions were
carried out at the Landsberg Prison.
III.
In the Oswald Pohl Case (United States v. Oswald Pohl et al, Case No. 4),
the defendants were SS Lt. General Oswald Pohl and seventeen other officials
of the Economic and Administrative Office of the SS (called the “WVHA”).
This department of the SS was in charge of constructing, maintaining and administering
the thousands of concentration camps in Germany and in the enslaved countries.
They also managed the economic enterprises that were owned and operated by
the SS, such as mines, quarries and brick factories located near the concentration
camps.
The eighteen defendants in the Pohl case were charged with war crimes in the
operation of concentration camps in which millions of Jews, Poles, Russians
and gypsies were systematically worked to death and murdered.
Through the infamous “Action Reinhardt,” they systematically looted
the personal property of Jews, including feather beds, baby carriages, blankets,
table silver, eyeglasses, furs, jewelry, and all other articles of personal
property having any value. When Jews were killed in the concentration camps,
additional loot became available – including clothing and hair and gold
teeth – which were removed from the corpses. The Nazi State acquired
one hundred million Reichmarks of loot through this program.
The Oswald Pohl case was tried before Military Tribunal II, composed of Robert
Toms (Judge of the Circuit Court of Michigan) presiding, Donald Phillips (Judge
of the Superior Court of North Carolina) and Michael Mussmano (Judge of the
Supreme Court of Pennsylvania.)
As Chief Prosecutor in the Oswald Pohl case, in preparing that case for trial,
I took the deposition of Hermann Goering, Field Marshall, Commander-in-Chief
German Air Force, successor to Hitler after Hess. I interrogated Goering just
a few days before he was sentenced to death by hanging. I recall that Goering
had lost a great deal of weight (down to 186 pounds from 262 when he was captured.)
His military suit, stripped of medals, hung on him like a sack. He saluted
and clicked his heels when he entered the room. Thereafter he assumed that
he was in complete charge of the interrogation chamber. Although Goering admitted
his complicity in the use of slave labor, he denied any knowledge of the atrocities
committed in the concentration camps. Goering committed suicide on October
15, 1946, on the eve of his scheduled execution.
Pohl and three other defendants were sentenced to death by hanging –
four of eighteen (22%). Eleven defendants received prison terms ranging from
ten years to life. Three defendants were acquitted (17%).
Judge Mussmano, in his concurring opinion in the Oswald Pohl case, described
the medical experiments in detail:
This mania for experimentation was carried to the point where legs at
the hip joint were removed from psychopathic patients to determine, it is
assumed, if the amputation of legs might affect the medical condition of the
patient.
***
One searches in vain for a document that proclaims as a result of all
this experimentation there came to light – not a startling scientific
discovery – but even a simple improvement in any normally prescribed
treatment for a peace time ailment or a war time injury.
In its unqualified condemnation of forced labor, the Tribunal in the Pohl
case said:
“Under the spell of National Socialism, these defendants today are
only mildly conscious of any guilt in the kidnapping and enslavement of millions
of civilians. The concept that slavery is criminal per se does not enter into
their thinking. Their attitude may be summarized thus:
‘We fed and clothed and housed those prisoners as best we could. If
they were hungry and cold, so were the Germans. If they had to work long hours
under trying conditions, so did the Germans. What is wrong with that?’
The electrically charged wire, the armed guards, the vicious dogs, the sentinel
towers – all those are blandly explained by saying, “Why, of course.
Otherwise the inmates would have run away.” They simply cannot realize
that the most precious word in any language is “liberty.”
Slavery may exist even without torture. Slaves may be well fed and well clothed
and comfortably housed, but they are still slaves if without lawful process
they are deprived of their freedom by forceful restraint. We might eliminate
all proof of ill treatment, overlook the starvation and beatings and other
barbarous acts, but the admitted fact of slavery – compulsory uncompensated
labor – would still remain. There is no such thing as benevolent slavery.
Involuntary servitude, even if tempered by human treatment, is still slavery.”
IV.
The most gruesome of the three cases was United States v. Otto Ohlendorf
et al (Case No. 9), commonly known as the “Einsatzgruppen”
case. The Einsatzgruppen were special units of the SS that followed the German
Army during the invasion of Russia. Their mission was the immediate slaughter
of all Jews, gypsies and Communist party members in the occupied areas. It
was established that one million Jews and others were “liquidated”
in Russia by the Einsatzgruppen.
The twenty-four defendants in the Einsatzgruppen case were commanders or other
officers of these units, and the Einsatzgruppen trial was widely described
as the “biggest murder trail in history.”
The direct case for the prosecution, based entirely on captured documents,
took only two days to present. The defense took 136 trial days (or five months).
The Tribunal in the Einsatzgruppen case declared that the facts –
" …are so beyond the experience of normal man and the range
of man-made phenomena that only the most complete judicial inquiry, and the
most exhaustive trial, could verify and confirm them. ***The charge of purposeful
homicide in this case reaches such fantastic proportions and surpasses such
credible limits that believability must be bolstered with assurance a hundred
times repeated. ***Each man at the bar has had the benefit of considerable
schooling. Eight are lawyers, one a university professor, another a dental
physician, still another an expert on art. One, as an opera singer, gave concerts
throughout Germany before he began his tour of Russia with the Einsatzkommandos.”
All “Jews” were to be “eliminated,” but no precise
definition of “Jew” was furnished. ”Thus, when one of the
Einsatzgruppen reached the Crimea, its leaders did not know what standards
to apply in determining whether the Krimtschaks they found there should be
killed or not. ***It was rumored that somewhere along the arterial line which
ran back into the dim past some Jewish blood had entered the strain of these
strange Krimtschaks. It this were so, should they be regarded as Jews and
should they be shot? An inquiry went off to Berlin. In due time the reply
came back that the Krimtschaks were Jews and should be shot. They were shot.”
The captured documents left no doubt that the incredible massacres charged
in the indictment had in fact occurred. The following is a typical passage
from an Einsatzgruppen report:
“A large scale anti-Jewish action was carried out in the village
of Lachoisk. In the course of this action, 920 Jews were executed with the
support of an Einsatzgruppen. The village may now be described as ‘free
of Jews.’”
Otto Ohlendorf, the principal defendant, was the commander of Einsatzgruppen
D and a Major General in the SS. General Ohlendorf admitted that his Einsatzgruppen
D had killed 90,000 Jews in the Ukraine and the Crimea. But he defended the
slaughter on the ground of “military necessity,” even to the killing
of Jewish children. This is from Ohlendorf’’s testimony:
“I believe that it is very simple to explain if one starts from
the fact this order did not only try to achieve security but also a permanent
security; for that reason the children were people who would grow up and surely,
being the children of parents who had been killed, they would constitute a
danger no smaller than that of the parents.”
Upon judgment, the Tribunal sentenced Ohlendorf and thirteen other defendants
to death by hanging. Two more received life sentences, and five prison terms
of ten to twenty years. None of the 24 defendants in the Einsatzgruppen case
were acquitted.
V.
It should be remembered that the fundamental reason for the Nuremberg trials
was that there was no preferable, or even acceptable, alternative for handling
the practical and pressing problem of what to do with the surviving Nazi leaders.
Nuremberg was based on the view that, as Justice Robert H. Jackson said, “We
cannot await a perfect international tribunal or legislature.” Nuremberg
was also based on the view, as Jackson said, that international law must develop,
as the common law has developed, through custom, agreement, and judicial precedents
such as the Nuremberg trials themselves were intended to provide.
The great goal of Nuremberg was the amplification and clarification of international
criminal law, to strengthen the foundations for world peace and order
for the future. I believe the major legal significance of the Nuremberg trials
lies in those portions of the opinions, which deal with the area of personal
responsibility for international law crimes. The Nuremberg Tribunals,
themselves international, applied international penal law
to international crimes.
I will close with the words of Telford Taylor, which he wrote in 1949 (in
his Final Report to the Secretary of the Army on the Nuremberg War Crimes
Trials Under Control Council Law No. 10, Appendix B, pp 234-235):
…Nuremberg cannot be forgotten by those who created it. The criminals
and their wretched deeds may pass from memory, but the trials we have no right
to forget. He who undertakes to render judgment under law assumes a responsibility
that he may not thereafter shed. Four nations signed the London Charter and
Control Council Law No. 10 (-- the two jurisdictional cornerstones of the
Nuremberg trials --) and nineteen other nations have formally proclaimed their
adherence to the principles embodied therein. Representatives of the United
States took the lead in formulating those principles and in establishing the
Nuremberg tribunals for their enforcement. Thousands of Germans and Japanese
have been tried under those principles; those found guilty have been punished…
We may not, in justice, apply to these defendants because they are German,
standards of duty and responsibility, which are not equally applicable to
the officials of the Allied Powers and to those of all nations.
The great question today is not whether the Nuremberg principles are valid,
but whether mankind can live up to them, and whether it can live at all if
it fails.
Jack W. Robbins
Of Counsel
Pitcairn Trust Company
Suite 3000
One Pitcairn Place
165 Township Line Road
Jenkintown, PA 19046
(215) 881-6011
FAX: (215) 881-6092
###
Transcribed by Charlene J. Peterson, 2004