[121]
The definition of the crime and the criminal, the point of departure and keystone of the Indictment, Article 6, was the master point in the Nuremberg Charter. In itself it involved the historian in the obligation to juxtapose all the parts of the definition with the facts on which they were lined up, in order to give as exactly as possible a picture, to place these facts both in their historical context and their judicial context. The master point of the Charter, it also became that of this study, which explains its preponderance here.
After investigation, the conclusion is that it is really not even a question of a definition, but at the most a petitio principii, a fallacy in which that which is to be proved is taken for granted, namely the sentencing of a single one of the criminals arbitrarily chosen from among all those who committed the crime. Since those who picked out this criminal and decided on his trial were those who, working with him, created in detail all the circumstances of the crime and his co-authors were therefore in league against him, it is clear that no other result could come from their cogitations. Since at the same time they set themselves up as his judges, condemnation became automatic, and the other Articles of the Charter add nothing but codification to this automation.
From these Articles, which amount to so many statements nullifying the customary principles and rules of Law, the most important have already been mentioned: the one which qualified the judges, who are at the same time party (Article 1), the one which decreed that they might not be challenged (Article 3); the one which called for expeditious hearing by imposing a rapid examination of questions raised by the charges, and of those only (Article 18); the one which freed the Tribunal from technical rules of evidence (Article 19); and the one which allowed them to accept as established fact what was common knowledge, without requiring proof (Article 21). We have seen how these last two Article, in particular, allowed the Tribunal to accept in the present affirmative tense, documents written in the hypothetical conditional mode (cp. Hossbach Doc.) -- that there were gas chambers at Dachau, that 6,000,000 were exterminated and, in general, all that has been said on concentration camps by all the deportees, although today it has been shown that they expressed their reaction much more as victims eager for compensation and vengeance than as objective witnesses.
Article 20 could be mentioned too: "The Tribunal may require to be informed of the nature of any evidence before it is offered, so that it may rule upon the relevance thereof."
All tricky debate in public was to be avoided; thus the defendants found themselves deprived of the last guarantee of [122] International Law, which is the public nature of justice. After citing Article 8, no more can be said; the rest is a morass of legal technicalities of no importance. "The fact that the defendant acted pursuant to order of his government, or of a superior, shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determine that justice so requires."
So the Germans learned in 1945 that since the accession of Hitler to power, they had not only had the right but the duty to act as conscientious objectors, and were so informed by jurists (sic) who did not grant this right to their own nationals, and which not one of them has recognised in those terms since then. It is enough to make one tremble to think that if the F.L.N. had been victorious in Algeria and taken all French soldiers who fought against them prisoner, they could have sentenced them all by applying this Article 8. The inconsistency -- not to say more -- is seen at once when one knows that the masters of these jurists went so far as to cover with honours certain of their nationals whose participation, under order, in crimes maintained as such by the Tribunal, was indisputable. For example, Professor Balachowsky, Russian-born naturalised French in 1932, head of the laboratory of the Pasteur Institute in Paris, deported to Buchenwald on January 16th, 1944, assigned to Block 50, told of criminal experiments. Cross examined at Nuremberg as a witness on January 29th, 1946, after having admitted that "each one of these experiments amounted to an assassination" (Volume VI, p. 322), this Balachowsky justified himself by saying, "one had to carry out to the letter the orders given, or disappear" (op. cit. p. 328). Not only did the Tribunal not apply Article 8 of the Charter to him for having "obeyed criminal orders", but, as has been remarked, he now lives very comfortably in Paris, covered with honours, spreading trepidation and fear amongst those Germans whose orders he did not disobey. It depends on who you are. In that, the judgements of the Nuremberg court were indistinguishable from those of the court of the fabulist. And Balachowsky is not the only one of this kind!
All the attorneys at Nuremberg put in a plea to the effect that this could shake the very foundations of the state if it were universally accepted. Dr. Robert Servatius, Eichmann's counsel revived this plea in similar terms at the hearing of December 13th: 1961 of the Jerusalem Tribunal:
"Confidence in the rulers is a fundamental principle in all countries. Action is dumb, obedience blind. Such are the qualities on which a country leans. Are these qualities rewarded? That depends on political success. If the policy collapses, the victor will consider the order a crime. He who obeyed it will be out of luck, and will have to answer for his loyalty. The gallows or honours, that is the question. When it ends in failure, the order is an infamous crime, if it ends in success, it is hallowed. " (Le Monde, [123] December 14th, 1961).
And in his 10 Years and 20 Days, Admiral Doenitz makes the following commentary on this Article 8:
"...to ask of a soldier anything but obedience is to shake the very basis of the military life and compromise the security of one's country... Moreover, the nations took good care not to apply it during the Korean War as well as in the Suez expedition, in November 1956. On the contrary, the British soldier who refused to take part in that expedition was brought before a war council and convicted for refusal to obey, in violation of the Nuremberg Charter." (op. cit. p. 41, of the French ed.)
What troubles me is not that the foundations of the state can be shaken, but that an individual can be put in the position of having to ask himself, before obeying, not whether the order conforms to justice, but whether the one giving the order is the strongest of all those who, wherever in the world, have received from Heaven or from chance the mission to command.
Once more this is justice installed in the house of the Might that makes Right.
There have been many other violations of the Nuremberg Charter since 1945: the action of Great Britain in Egypt (1952-54); of Russia in Hungary (1956); France in Indo-China (1945-54), then in Algeria (1954 on); Belgium, the United States and the United Nations in the Congo (1958 on); without counting Mao Tse-Tung in China and Castro in Cuba. They are just so many crimes with regard to Article 8 and yet there has never been any question of assembling a Tribunal at Nuremberg to which to submit the cases of the guilty.
Only the proceedings remain.
To give an accurate picture would require a detailed examination into the manner in which they were conducted, running to as many volumes and pages as are in the Report - 23 volumes, averaging 600 pages each, in quite a respectable format, for the first trial, another 77 volumes for all 13 trials. In spite of the pleasure the polemicist in me would derive from it, that is a work outside the frame of this study, relating as it would more to the jurist than to the historian.
Besides, I think I have given enough specific examples to give a sufficient idea of the circumstances in which these articles I have cited were used to impose silence on the defence (on matters, for example, as important and as abundantly used by the Prosecution as the Versailles Treaty); or to have accepted as bona fide such obviously false witnesses as Dr. Blaha or the Hauptsturmführer Hoettl, and Wizliceny, documents as evidently distorted as the Hossbach report or as obviously false as the Gerstein report, statistics as fantastic as those drawn from Auschwitz commandant [124] Hoess' memoirs and disavowed by the author himself. In this first trial of the major criminals alone, one finds hundreds of examples of this kind, and their number or the lack of scruple of the judges were further multiplied in the dozen trials that came after.
To conclude, I would nonetheless like to point out two more of the eleven rules of procedure annexed to the Charter, to mitigate its imperfections with regard to the aim pursued: Rule No. 2 and Rule No. 4.
Under the title "Notice to Defendants, and Right to Assistance of Counsel," the first is, in paragraph (a), Each individual defendant in custody shall receive not less than 30 days before trial, a copy, translated into a language which he understands, (1) of the Indictment; (2) of the Charter; (3) of any other documents lodged with the Indictment; (4) of a statement of his right to the assistance of counsel as set forth in subparagraph (d) of this Rule, together with a list of counsel.
Nothing to show what paragraph (d) is about. On the other hand, paragraph (c) of Rule 4 exercises a considerable restriction on the provisions of Rule 2, concerning the right to receive all the documents referred to in the Indictment, by specifying that they will receive them "only so far as they may be made available by the Prosecutors."
From this we can see that the writers of the Charter took every precaution. It is fair to say that this last provision played a greater role with regard to "witnesses" than with "documents". The number of "witnesses" who had drafted "documents" either before dying, or still living, but whom the Prosecutor-General was not able "to make available" is incalculable. As if on purpose, the "documents" drawn up by these people were the most devastating.
But it is especially to Rule 2 that I would like to draw attention. First, the 30 days allowed for the delivery of documents to the accused was only rarely respected. Not one of the accused, in the Trial of the Major War Criminals at least, did not have to face, in at least one or two sessions, documents brutally produced about which he knew nothing. The President then extricated himself by stating that the Rule was not pertinent. The proceedings ended, one perceived that these little breaches did not prevent the judge from being very much to the point. And since the judgement of the Tribunal was without appeal, the defence did not even have the possibility of objecting on grounds of faulty drafting. This might not be so serious except for the fact that the decisions of this first Nuremberg Tribunal established the jurisprudence of the twelve that came after. Much more than by the facts brought out against them at Struthof, the doctors of this camp were declared guilty simply because they had already been declared guilty at Nuremberg, and in just about that way.
In the Struthof trial, Captain Henriet, government commissioner, publicly acknowledged that he could not prove that the typhus experiments of Dr. Haagen had produced death. But he added that [125] the Tribunal could base its conviction on presumptions of guilt and these presumptions of guilt, he said, had sufficed for the reasons adduced at the Nuremberg Trial. At the time (1954) I observed, in the Introduction to the second edition of Mensonge d'Ulysse: "This cannot fail to strike the reader if he knows that the Nuremberg Trial, too, based its convictions only on testimonies of whose value we knew the worth; and on what is called the lies of Haagen, therefore on more presumptions, and consequently reasoned the same way. Thus the Nuremberg Trial inaugurated an era of condemnation, based not on facts judicially established, but on simple presumptions deduced from vague talk."
There is worse. However, to avoid being taxed with prejudice or exaggeration, I prefer to let someone speak here who is under no suspicion among the lovers of justice. This is what William L. Shirer says in the Preface to his Rise and Fall of the Third Reich:
"The swift collapse of the Third Reich... resulted in the surrender of documents etc., diaries, telephone talk, etc. e.g. Hitler's diary, a unique source of precise information, Goebbels' diary, OKW, Naval High Command etc. 60,000 files of the German Naval archives, which were captured at Schloss Tambach near Coburg, contain practically all the signals, ships' logs, diaries, memoranda, etc., of the German Navy. " (Am. ed. 1960, p. ix) 485 tons of papers... (This is a condensed translation.)
I ask the reader to think about these statistics. 60,000 files of the Naval Archives, records of the Foreign Office weighing 485 tons, hundreds and hundreds of thousands of documents in all. Who can believe that between August 8th, 1945 -- the meeting of the Committee at London -- and November 14th, 1945, the appointed prosecutors were able to examine this mountain of pieces of evidence seriously enough to make up an indictment historically and judicially grounded? Or that 30 days was enough time for the defendants and their counsel to extract everything from them that could be used in their defence?
Judicial truth, under the circumstances, of which historical truth is the only basis, includes all of that. And to seriously examine all of that would require, beyond any doubt, ten, perhaps hundreds of years, and thousands of historians.
For several years after the war, William L. Shirer tells us:
"(these) tons of Nazi documents lay sealed in a large U.S. Army warehouse" and nobody showed any interest. In 1955 thanks to the initiative of AWA etc., papers were opened and a "pitifully small group of scholars" with inadequate staff sifted through and photocopied them before the "government which was in a great hurry in the matter, returned them to Germany." (Condensed from p. ix, Shirer, Am.ed., 1960.)
These "tons of paper" are now in Germany and it is solely up to the German government as to who should have access to them, no longer just "a pitifully small group of historians," privileged because they support the official view, but all qualified historians.
[126]
Permit me to recall that in 1960, in the course of a series of
lectures in Germany and Austria, I asked the German historians
to form an independent committee for such a study.
My appeal fell on deaf ears. The point I want to make is that one cannot but be dumbfounded that after just a few months of studying this immense pile of papers, a handful of prosecutors and judges together felt they could say that they were sufficiently enlightened -- the former to draw up an indictment, and the latter to pronounce sentence.
Fifteen years later the blush of shame has still not crept up their faces.
I warn them, however, that even though he succeeded in having the Duke d'Enghien assassinated without ever blushing in shame for it, even Napoleon has not escaped the judgement of history.
Having chosen to expose the actual facts in terms of the appraisal given them by the Nuremberg judges, I had to depend on the classification which the Indictment made of them, and it is possible that at the same time the chronological order may have been a little upset and that some facts have escaped me -- those which were not involved in a "decision in law," to use the language of jurists. I hope that I have not overlooked any considered to be important and that any oversights have not seriously prejudiced the basic argument of this study, nor shaken the sequence of events too much.
If the medical experiments which played so great a role in the film of German horrors and atrocities, and which were carried on in a certain number of camps (probably Auschwitz, Dachau and Buchenwald), have not until now been considered, it is not an oversight, but simply that they have not figured naturally in the method I have adopted. I do not intend, moreover, to treat them in detail; a volume would be needed for that. Dr. François Bayle, doctor in the French Navy, devoted a masterly work of 1,519 pages to them, Croix gammée contre Caducée (1950) (without a bibliography because he did not have one, and also without an alphabetical index). Although this work is not without errors (far from it! -- because Dr. François Bayle, being a doctor and not a historian, obviously did not tend to weigh the validity of the documents with which he worked but accepted them all), it is a mine of information. At least it has the merit of presenting, without comment, the documents he used. That the medical conclusions he arrived at from the documents are without value (because they rest on imaginary actions, that is to say, on nothing) is another story, and it is surely a sensation for medical science. However, it is not the business of the historian to do more than point out the verification or lack of it to those responsible for the teaching of medicine. Just the same one may regret that such a [127] work, of great interest to the medical profession, was undertaken by someone with no historical qualifications, when the conclusions he came to should have been based on historical facts. That is the problem with culture in general; a problem which will have to be stated again, from the start, when we study The Destruction of the European Jews by the political scientist Raul Hilberg, which presents the problem in about the same way.
With these reservations, Croix gammée contre Caducée is unquestionably a work of good faith. If the author happened to work on documents that should have been approached very cautiously, at least he did not invent any, nor did he twist the meaning. It must also be acknowledged that every time he had the chance, he never failed to put the event in question in its medical context and very objectively, too. Thus, reproaching the Germans for the medical experiments they indulged in -- and this seems to me to be the normal reaction of a decent person -- he did not neglect, like some Poliakov, Olga Wormer or other, judging from their writings on other matters in the same line, to compare them with the same sort of experiments indulged in by the French, British, Americans, Dutch, Japanese... Among the experimenters cited were: Strong, who vaccinated 900 persons in a British colony with live plague bacteria, without concern for the consequences; Blanc, who similarly vaccinated "hundreds of thousands of Moroccan natives with a live virus producing high fever, but who took the risk because of danger of typhus"; Balthasar, in American prisons (p. 1,240) etc.
It is no secret to anyone that before, as during and after, the Second World War, medical experiments of the same nature have been a regular practice in all latitudes. Nor that all the hospitals -- and a few prisons, such as Sing Sing in America -- always have plenty of guinea pigs for the doctors who do not give them much choice in the matter, especially when it is a matter of colonials or prison inmates.
The mistake of Hitlerian Germany was to carry out these medical experiments on subjects who were not their nationals. But when it came to a study of vaccines, other nations of the world performed experiments on a large scale on their colonials. In actual fact, we note again that Himmler prohibited them in all camps in a circular dated May 15th, 1944. Consequently, unless it would have been possible after that date to continue to send their results to the Institut für Rassenbiologische und Anthropologische Forschungen, which had made a point of broadcasting Himmler's prohibition, as the Hungarian communist Dr. Miklos Niyszli claims they did in his Doctor at Auschwitz, the "evidence" which the "historians" of the Jewish Centre for Contemporary Documentation present, after that date, can only be fairy tales; and that is what it is.
I would like to give another example of exaggeration in medical experiments: those of the Struthof (Alsace) concentration camp.
[128]
Until 1954 we were deafened by the cries of the press: "tens
of thousands dead in the gas chambers of this camp." Even
in 1963 it is not unusual to hear or read the same publicity refrain
in the same words. In the first two weeks of January 1954, at
Colmar, sentence was passed on Professors Haagen and Hirt, who
were considered responsible for that dreadful crime. In the indictment,
reproduced by the newspaper Le Monde (Paris, January 7th,
1954), we find:
1) That one of them is charged with the death, at his order, of the 87 Israelites, men and women, who came from Auschwitz, put to death in the gas chamber, later to be sent to Strasbourg to add to the anatomical collection of the German professor:
2) That it is said of the second: "I willingly admit that the first series of experiments did not result in death";
3) This commentary: "It is now a question of whether the typhus experiments resulted in deaths. Captain Henriet (he is the government commissioner who is prosecuting) admits that he cannot perhaps bring proof, but he thinks that the Tribunal can base its conviction on circumstantial evidence when it is adequate, as in this case. This presumption he finds in the testimonies, and in the reasons adduced by the Nuremberg Court, in the lies of Haagen (the doctor on trial) and his dissimulation during the first examinations. He thinks that these facts should allow the Tribunal to answer affirmatively the question, "Was Haagen guilty of poisoning?"
That these experiments mentioned in the charge should result in 87 deaths is of course horrible, both in principle and in fact. But, the "tens of thousands of dead" of the horror and atrocity propagandists amounted, after all, to only 87, and the gas chamber in question was not a gas chamber at all, but a hall for medical experiments which, although nonetheless to be condemned, is still something quite different. I immediately asked the question, "If you continue to claim that tens of thousands of deportees died in this camp, you must now tell us how they died, since it was not in the gas chamber." Since no one answered I gave the answer myself, which was within the frame of my general thesis on the phenomenon of concentration camps. All the camps had been "Rafts of Medusa" (1) in which the Häftlingsführung (self government by the deportees themselves) selected -- without any hesitation to be absolutely sure of not lacking provisions -- not those to be eaten, but those to be thrown overboard.
I call attention again to the fact that in admitting that he could not prove that all the deaths attributed to the Struthof camp could be summarily attributed to Professor Haagen, Prosecutor Henriet asked the Tribunal to base its conviction not on the materiality of facts, but on "assumption." The Nuremberg Tribunal having already pronounced itself in this matter, it was enough to take up the adduced reasons, for the benefit of the res judicata. But the [129] Nuremberg Tribunal had reasoned in precisely the same way and, in order to condemn, had based its conviction on "assumption" (presumptive evidence) by referring to Article 19 of the Charter, concerning "common knowledge." All this was "common knowledge" because one could read it every day in every paper, so it was not necessary to go to the trouble to find witnesses to come before the bar and tell the Tribunal what they claimed to have seen, but what in reality they had only read in the papers.
That, for the time being at least, is all that I wish to say about the medical experiments.
Examples of this kind are legion, and I would need as many pages to refute them as Dr. Bayle needed to expose them.
If the need arises some day, there will always be time.
The Eichmann trial presented a delicate problem. From a work which appeared so soon after the judgement was rendered by the Jerusalem Tribunal, the reader surely expected that some special mention would be made of it. But "so soon after" is still "too litle time" for the historian to present an objective picture. And I do not think that it is possible yet to add much to the references that I have made in this book.
Moreover, it does not seem to have enriched the file with many new items. Of the documents produced by the prosecution, every one had already been produced at one or other of the 13 Nuremberg Trials. The witnesses who passed before the bar said nothing more than had already been said, and in the same words.
Many of them came only to recite not what they had seen, but, like all the witnesses for the prosecution at this sad time, what they had obviously read in one or another of the innumerable books published for 15 years on the matter. There were those who came to attest to the existence of gas chambers at Bergen-Belsen; there was the one who "saw" Eichmann listening with pleasure, on July 18th, 1942, to the report of the asphyxiations at Auschwitz, when at that date neither gas chamber nor crematory existed -- as proved in official documents, none of the apparatus was even ordered from Topf and Sons of Erfurt until August 8th, 1942. Even the judgement could have been prepared a long time in -advance.
In short -- the 14th Nuremberg Trial.
If it differed from the others it was only in this way: the conditions in which it could take place, the procedure of its development only added the abuses of Israeli law to the abuses of the Nuremberg Charter.
The following chapter will show most of what can now be said on that matter.
1./
Refers to a painting by Géricault.
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