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Clemency in a Nazi War Crimes Trial By: Allison Ernest

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Clemency in a Nazi War Crimes Trial By: Allison Ernest Evading the Hangman’s Noose: Clemency in a Nazi War Crimes Trial By: Allison Ernest Ernest 2 Contents Introduction: The Foundations for a War Crimes Trial Program 3 Background and Historiography 10 Chapter 1: Investigations into Other Trials Erode the United States’ Resolve 17 Chapter 2: The Onset of Trial Fatigue Due to Public Outcry 25 Chapter 3: High Commissioner McCloy Authorizes Sentence Reviews 38 Chapter 4: McCloy and the United States Set the War Criminals Free 45 Conclusion: A Lesson to be Learned 52 Chart: A Complicated Timeline Simplified 57 Bibliography 58 Ernest 3 Introduction: The Foundations for a War Crimes Trial Program “There is a supervening affirmative duty to prosecute the doers of serious offenses that falls on those who are empowered to do so on behalf of a civilized community. This duty corresponds to our fundamental rights as citizens and as persons to receive and give respect to each other in view of our possession of such rights.” Such duty, outlined by contemporary philosopher Alan S. Rosenbaum, was no better exemplified than in the case of Nazi war criminals in the aftermath of World War II. Even before the floundering Axis powers of Germany and Japan declared their respective official surrenders in 1945, the leaders of the Allies prepared possible courses of action for the surviving criminals in the inevitable collapse of the Nazi regime. Since the beginning of the war in 1939, the Nazi regime in Germany implemented a policy of waging a war so barbaric in its execution that the total numbers of casualties rivaled whole populations of countries. While possibilities for punishment of the captured perpetrators included summary executions by firing squad, the decision that prevailed was one of full trials by an international panel of four judges consisting of one representative from each of the Allied nations, the United States, France, Great Britain and the Soviet Union (USSR). The 1945 International Military Tribunal (IMT) in Nuremberg, Germany placed twenty- two of the highest-ranking, surviving members of the Nazi government on trial before the whole of the world. American Supreme Court Justice Robert Jackson acted as leading United States (US) prosecutor, accepting the position only after asserting that actual guilt must be proven for a guilty verdict, and the trial could not be a mere stage for the ultimate execution of all the defendants.1 With laws established by the London Charter on August 8, 1945 the IMT set out to prove the defendants guilty of three distinct charges. Former Nazis could be found guilty of crimes against peace if proven involvement in the planning or preparation of waging a war of 1 Alan S. Rosenbaum, Prosecuting Nazi War Criminals, (Boulder: Westview Press Inc., 1993), 21. Ernest 4 aggression was established. The tribunal found defendants guilty of the second charge, war crimes, if they engaged in actions including the “murder, ill treatment, or deportation to slave labor” or other mistreatment of a civilian in an occupied country “not justified by military necessity.”2 The final charge, newly developed due to the extent of inhumane acts committed by the Nazis, crimes against humanity, dealt with those involved in the “murder, extermination, enslavement, [and] deportation…or persecutions on political, racial and religious grounds” of a civilian population.3 In October 1946, almost a year after the initial reading of the indictment, the four judges found nineteen of the defendants guilty. The men received death or prison sentences of varying length, yet despite the conclusion of this trial, it was only the first in a long series of post-World War II trials. Although the defendants from the IMT all served the sentences received at Nuremberg, critics of the trials frequently disputed the inconsistencies of the new international laws. Since international trials of such a magnitude, where victorious nations sought to bring justice fairly to the leading officers of conquered nations, had never taken place, the stigma of victors’ justice and unjust treatment of the defeated persisted. Furthermore, a court of law had never before attempted to find defendants guilty of genocide of an entire ethnic group. Critics and defenders of the collapsed German war machine accused the trials of ignoring the concept of ex post facto law; this concerns the punishment of individuals for crimes that were not illegal when committed, but were ultimately made unlawful.4 Indeed, the crime of genocide had not been prohibited under international law before World War II; Raphael Lemkin coined the term “genocide” in 1944, when the Nazi extermination camps had already claimed the lives of 2 Charter of the International Military Tribunal. Nuremberg Trial Proceedings Volume 1. Yale Avalon Project. http://avalon.law.yale.edu/imt/imtconst.asp (Accessed 10 January 2011). 3 Rosenbaum, Prosecuting Nazi War Criminals, 23. 4 Ibid., 90-91. Ernest 5 millions of civilians.5 Yet trial officials easily dismissed these protests by considering the volume of victims, killed by either aggressive war or extermination. Even if the tribunal could not find the defendants guilty of perpetrating genocide, they were still found guilty of war crimes, crimes against peace and/or crimes against humanity. After the international trial, tensions among the Allied nations led each of the countries to begin holding separate trials. Remaining in Nuremberg, the United States began a series of twelve trials called the Nuremberg Military Tribunal (NMT). Those overseeing the development of the trials aimed to simulate the method of selection of defendants used for the IMT: each defendant in the dock represented a different branch of the Nazi machine, be it military or governmental. In the American series of trials, each case aimed to create a precedent with the sentence of high-ranking officials on trial, for use in further future trials dealing with lower- ranking former Nazis, such as doctors, judges and Gestapo (secret police) officials. The ninth trial in this series dealt with seeking proper justice upon former Einsatzgruppen officers. The Einsatzgruppe, translated to mean “task force,” was a paramilitary group developed by Reichsführer SS Heinrich Himmler in preparation for the 1941 invasion of the Soviet Union. This unit of some 3,000 nonmilitary men, transfers from other branches of Nazi security offices, entered Soviet villages in the wake of the invading German Wehrmacht and dealt with security measures deemed necessary by the Reichsführer. Himmler asserted to the leaders of the Einsatzgruppen that Jewish civilians were the greatest security risk for German soldiers in the Soviet Union: since Nazi belief classified every Jewish individual as a communist and a Bolshevik, they were the most likely to resist invasion and enter into guerrilla warfare. The Einsatzgruppen would routinely gather all Jewish civilians for registration in each village, 5 Hilary Earl. The Nuremberg SS-Einsatzgruppen Trial, 1945-1958: Atrocity, Law, and History. (New York: Cambridge University Press, 2009), 91. Ernest 6 leading them to believe they would be subsequently transferred to labor camps. The men, women and children would then be transported to areas outside the city (usually unpopulated field areas or forests) to previously dug open pits. The civilians would then be ordered to surrender any valuables and disrobe, and would subsequently be ‘liquidated’ by a firing squad of Einsatzgruppen forces. Although the Nazis eventually developed other methods of murder, the execution of Jewish civilians, along with Gypsies, the mentally ill and partisan fighters, in this manner lasted throughout the war, claiming an estimated 1.2 million citizens and signaling the start of the Nazi Final Solution.6 The concept of a trial for Einsatzgruppen officers occurred by accident, with the discovery of a series of reports in the former Gestapo headquarters by American officials. Benjamin Ferencz, eventually lead prosecutor of the trial, was a member of the group of researchers charged to sift through the piles of documents in the former police headquarters. These interpreters stumbled upon the records, a multitude of Operational Situation Reports, that identified the actions of the Einsatzgruppen from 1941 to 1944, including the exact numbers of civilians liquidated, as well as the precise location, date and officers in charge each of the operations.7 More evidence of the actions of the Einsatzgruppen stemmed from the testimony of former Einsatzgruppen leader Otto Ohlendorf at the IMT. When he stepped on the stand as a prosecution witness on January 3, 1946, he revealed intimate details about the hierarchy of Nazi organizations and the power and positions held by high-ranking Nazis in front of a court filled with representatives from the four Allied nations. Ohlendorf believed that his willingness to comply and reveal information to his captors would aid him in escaping retribution, yet he also described his actions as a leading Einsatzgruppen officer between 1941 and 1942. This Nazi, 6 Earl, The Nuremberg SS-Einsatzgruppen Trial, 6, 81. 7 Ibid., 78. Ernest 7 formerly an economic advisor in the Third Reich, acted as a key player in this elite task force, leading Einsatzgruppe group D (one quarter of the entire force) and admitted to the court that he had ordered his men to murder 90,000 men, women and children.8 The Einsatzgruppen records, along with the testimony of Otto Ohlendorf at the IMT, allowed for a trial dedicated to trying twenty-two Nazi war criminals for their participation in the genocide of all Jewish citizens. The Einsatzgruppen reports provided the prosecution with a core foundation of evidence against the Einsatzgruppen, and the subsequent presentation, led by lead prosecutor Benjamin Ferencz, lasted for only two days of the six-month trial. Using solely documentary evidence to demonstrate guilt, the prosecution team exhibited the involvement of the defendants in the murder of over one million citizens in little more than one year.
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