Nuremberg: The Last Battle PDF

N UREMBERG , THE L AST B ATTLE  David Irving NUREMBERG THE LAST BATTLE ‘David Irving is in the ﬁrst rank of Britain’s historical chroniclers’ – THE TIMES F FOCAL POINT  N UREMBERG , THE L AST B ATTLE David Irving is the son of a Royal Navy commander. Edu- cated at Imperial College of Science & Technology and at Uni- versity College London, he subsequently spent a year in Ger- many working in a steel mill and perfecting his ﬂuency in the language. Among his thirty books the best-known include Hit- ler’s War; The Trail of the Fox: The Life of Field-Marshal Rommel; Accident, the Death of General Sikorski; The Rise and Fall of the Luftwaffe, and Göring: a Biography. He has translated several works by other authors. He lives in Grosvenor Square, London, and is the father of ﬁve daughters. In  he published The Destruction of Dresden. This became a best-seller in many countries. In  he issued a revised edi- tion, Apocalypse , as well as his important biography, Goebbels. Mastermind of the Third Reich and the second volume of Church- ill’s War. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  For Jessica Copyright © , Parforce (UK) Ltd. Copyright Website edition © Focal Point Publications  All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. Copies may be downloaded from our website for research purposes only. No part of this publication may be commercially repro- duced, copied, or transmitted save with written permission in accordance with the provisions of the Copyright Act 1956 (as amended). Any person who does any un- authorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Parts of this book were ﬁrst published by Welt am Sonntag, Hamburg, and as a paperback edition by Wilhelm Heyne Taschenbuchverlag, Munich. It has been re- vised and expanded on the basis of materials available since then. This edition ﬁrst published  by FOCAL POINT PUBLICATIONS Duke Street, London WM DJ British Library Cataloguing-in-Publication Data A catalogue recod for this book is available fromthe British Library ISBN     Paper edition printed and bound in Great Britain by Butler & Tanner Ltd, Frome and London  N UREMBERG , THE L AST B ATTLE ‘There is more dynamite in this question than Krupp ever produced out of his plant!’ – JUSTICE ROBERT H. JACKSON at a secret meeting of the Nuremberg chief prosecutors, November ,  ‘The trials served both to illuminate and to falsify history. In the hand of the experienced historian, their documenta- tion is a good guide; in the hand of a demagogue it is a dangerous knobkerry.’ – Naval judge advocate Captain OTTO KRANZBÜHLER, lecturing at the University of Göttingen in September  For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  [Click on chapter titles] Contents Author’s Introduction................................................................ 6 1: In Which Stalin Says No to Murder........................................ 11 2: Lynch Law............................................................................ 31 3: Mr Morgenthau and the All-American Judge.......................... 57 4: If We Can’t Lynch Them, Flog Them..................................... 72 5: The Origin of ‘Six Million’..................................................... 95 6: Architect of a New International Law................................... 105 7: Meeting with Two Traitors................................................... 125 8: The London Agreement....................................................... 143 9: Those Boys Are Out for Blood............................................. 163 10: I’m Running the Show....................................................... 181 11: Hess Can’t Quite Remember the Reichsmarschall............... 198 12: An Honourable Criminal................................................... 218 13: Showtime.......................................................................... 242 14: Much Vodka and Fun........................................................ 263 15: The Cadavers Concerned................................................... 282 16: Cooking Göring’s Goose.................................................... 300 17: Schacht Saved on the Square............................................. 322 18: Final Solution................................................................... 340 19: Behind Closed Doors........................................................ 357 20: Deadly Alliances................................................................ 379 21: Prize Day.......................................................................... 399 22: The Lion Escapes.............................................................. 429 Notes.................................................................................. 455  N UREMBERG , THE L AST B ATTLE NUREMBERG THE LAST BATTLE Author’s Introduction THIS BOOK is an intimate look at the origins and conduct of the ﬁrst post-war trial of major war criminals held at Nuremberg from  to . It has as its nucleus a series of articles which I wrote for the German weekly Welt am Sonntag in the late s under the title Nürnberg, die letzte Schlacht. These articles were then published under one cover by Wilhelm Heyne Taschenbuchverlag in Munich under the same title, which has long been out of print. Much research has been carried out since then. In the course of preparing my biographies of Hitler and some of his principal lieuten- ants (Göring, Milch, Hess, Rommel), I had already met many of the participants in this ﬁnal drama of World War Two – those, that is, who had survived the hangman’s noose – and I had had perforce to talk things over with several of their legal counsel too, in whose hands were still concentrated important historical records. In the years since publishing that German newspaper series I col- lected additional signiﬁcant materials on the trial, including the dia- ries of several of the German defendants, as well as of the Allied pros- ecuting counsel and judges; and after the British archives opened, I was enabled to adjust the balance of what had until then been investi- gated primarily from the American archival angle. The richest quarry, and one to which I have returned several times in the intervening years, is the ﬁles of the American chief prosecutor, the late Justice Robert H. Jackson. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  If this story needs a hero, then he is Jackson. As will be seen from the footnotes, I ﬁrst used his private papers when they were held by Pro- fessor Philip Kurland of the University of Chicago Law School; a debt of thanks is owed to Professor Kurland for his patience and generosity in allowing me to delve into his ﬁles thirty years ago, and to review the contents of several ﬁling cabinets of Jackson’s private and legal papers which he was holding in his basement with the pious, but alas unfulﬁlled, intention of one day writing the deﬁnitive biography of the great jurist. The folder listed tantalisingly as ‘diary kept by Jackson from April  to November , ’ was at that time missing, but it turned up years later in box  of his conﬁdential papers, which had by then been transferred to the Manuscript Division of the Library of Congress in Washington, D.C., and William Eldred Jackson gave me the formal permission needed to make use of his late father’s diaries. Jackson’s no less voluminous ofﬁcial papers, designated his Main Ofﬁce ﬁles, now form part of Record Group  at the National Ar- chives in Washington. The fact that my source notes indicate ‘Chi- cago’ as the location does not however imply that those papers are still held there now, over a quarter of a century later. As indicated above, most of them have been relocated in the Library of Congress and the National Archives, both in Washington. Of scarcely less importance than Jackson’s are the private papers of his bête noire at Nuremberg, Judge Francis Biddle, the senior Ameri- can member of the Tribunal. The George Arents Research Library at the University of Syracuse, New York, allowed me to study his diaries, private letters, and trial notes, which often included caustic observa- tions about the prosecutors and about the evidence heard before him. After corresponding several years earlier with the former American commandant of Mondorf prisoner-of-war cage (‘Ashcan’) and Nu- remberg prison, I was permitted by his son, Lieutenant-Colonel Burton C Andrus Jr., to make use of his late father’s ﬁles of papers which were held at the family home in Colorado Springs, including his hand-writ- ten diaries dated from February  to November , . Similarly the son of the late Selkirk Panton, the journalist covering the trial for the Daily Express, gave me permission to use his father’s papers in the National Library of Australia in Canberra. Among oth- ers to whom I express gratitude are Ben Swearingen, one of those indefatigable amateur historians to whom the professional is so in- debted: he provided to me the ultimate clues on the suicide of Reichsmarschall Hermann Göring, about which he had already writ-  N UREMBERG , THE L AST B ATTLE ten a ﬁne book. Dr Daniel P. Simon, director of the Berlin Document Center controlled by the U.S. Mission in Berlin, opened up for me the hitherto closed safe-ﬁle containing Göring’s enigmatic last letters. John Taylor, of the Archives & Reference Branch of the Textual Reference Division at the U.S. National Archives, kindly provided me with mag- netic tape copies of the original wire-recordings of selected passages of the trial, to enable me to verify the mimeographed and published transcripts against the words actually spoken. As for the German records used, may I acknowledge here my thanks to Henrik Pastor of Berlin, for showing me Grand-Admiral Erich Raeder’s prison diary and other important papers salvaged from Spandau. Wolf Rüdiger Hess provided excerpts from his father’s prison diary, which I have already quoted in Hess, the MissingYears (Macmillan, London, ). The late Karl-Heinz Keitel allowed me to copy his personal notes on his prison conversations with his father. I was able to conduct lengthy interviews with Albert Speer, Erhard Milch, Karl Bodenschatz, and others about the trials, prison life, and interrogation methods. Among the German lawyers whom I interviewed were Dr Alfred Seidl (defence counsel for Hans Frank and Rudolf Hess, and subse- quently Bavarian minister of justice), a courageous ﬁghter and a friend of many years’ standing; Dr Dr Otto Nelte (counsel for Field-Marshal Keitel), Dr Friedrich Bergold (counsel for the absent Martin Bormann); Dr Rudolf Merkel (counsel for the Gestapo); Dr Robert Servatius (counsel for the Nazi Party’s political organisation); and Professor Dr Hermann Jahrreiss (counsel for Alfred Jodl); I also spoke with Konrad Morgen about aspects of S.S. Obergruppenführer Er nst Kaltenbrunner’s testimony. In Britain I corresponded, as will be seen, with Lord Justice Harry Phillimore, as well as with the former Sir Hartley Shawcross, now Lord Shawcross. In the United States I had discussions with Ralph Albrecht, the international-law expert on Jackson’s team, and with Ernst Engländer, the principal U.S. airforce interrogator. Somewhere in between these nationalities falls, or fell, the late Dr Robert M. W. Kempner, who after a brief debut as a legal ofﬁcer in Göring’s Prus- sian ministry of the interior, ﬂed from Nazi Germany in  and returned in  in the uniform of a U.S. army colonel, designated as an assistant to an unwilling Robert Jackson; Dr Kempner, who after  acted as chief American prosecutor in the ‘subsequent proceed- ings,’ answered my queries with as much patience as he could muster. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  As with my earlier works, I have catalogued and placed much of these source materials on microﬁlms which are available to research- ers.* For example the Oral History, in which Jackson had in  dictated his often very frank personal reminiscences of the Nurem- berg trials, is on my ﬁlm DI– (Professor Kurland having allowed me to borrow and take back to England the relevant bound volume of the History for this purpose). The interrogations of Göring will be found on my ﬁlm DI–. My transcripts of the diaries of Field-Marshal Erhard Milch are on ﬁlm DI–. The early interrogation reports on Jodl and other top-level prisoners are on ﬁlm DI–. The secret reports from Jackson’s papers on the chief prosecutors’ meetings at Nuremberg are ﬁlmed on DI– and . (These minutes were written by the late Elsie L. Douglas, who acted as Jackson’s private secretary during the trial, and also talked with me at length about her recollections). The origi- nal Schmundt File on Hitler’s  preparations to attack Czechoslo- vakia (‘Fall Grün’) is ﬁlmed on DI–. The papers left by Dr Robert Ley after his suicide are ﬁlmed on DJ–. Miss Susanna Scott-Gall performed some of the leg work involved in utilising the more remote document collections. Karl-Heinz Höffkes of Essen made available to me the diaries and other papers of Julius Streicher from his collection. Professor Ian Maclaine, of the Univer- sity of Wollongong in New South Wales, drew my attention to docu- ments in the Public Record Ofﬁce on the earlier British deliberations about how to dispose of the enemy leaders. This list of acknowledgements is necessarily incomplete, and some of my helpers may feel slighted by their omission, but this is the place to record once more my thanks to my friend Dr Ralf-Georg Reuth, chief of the Berlin bureau of Bild Zeitung, and to Walter Frentz, who generously provided many of the unique colour photographs used in this book. Let me ﬁnally express my thanks to the two editors, who necessarily remain nameless but whose pens of various hues have en- sured that this book is relatively free of error and not substantially more politically incorrect than it is. DAVID IRVING London, July  * From Microform Academic Publishers Ltd., Main Street, East Ardsley, Wakefield, West Yorkshire WF AT, England (tel. +   ; fax  ).  N UREMBERG , THE L AST B ATTLE For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  : In Which Stalin Says No to Mur- der S THE C– A cargo plane of the U.S. Army droned eastwards across the Atlantic, a smell of coffee roused the sixteen pas sengers from an uncomfortable sleep; but Justice Robert H. Jackson had not slept since leaving Washington at mid-day, when the Supreme Court had adjourned for the summer recess after a hectic week of last-minute appeals. Behind the round, gold-rimmed spectacles the broad forehead was creased by a worried frown; the usually humorous mouth was set in an expressionless line. It was June , . Two weeks earlier, the presi- dent of the United States had entrusted him with the prosecution of the principal war criminals in Allied hands, and he and his hand-picked staff of lawyers, intelligence ofﬁcers, and personal secretaries were ﬂying to London on the ﬁrst leg of the assignment. To Jackson this was an unique opportunity to push out the frontiers of international jurisprudence, to encompass new areas hitherto be- yond its pale. He was going to lay the foundations of a new kind of law, outlawing wars of aggression and making the very conspiracy to wage wars a crime against international law. He wanted to punish the entire organisations that had furnished to Adolf Hitler his temporary suc- cesses, such as the German General Staff and the S.S., and not just  N UREMBERG , THE L AST B ATTLE the individuals whose conventional criminality could be established under common law. Behind him, in the United States, the controversy over his ambitions was just beginning. How would he persuade the British to agree, let alone the French, or the Russians? Each nation had its own agenda. He entertained few doubts about the magnitude of the task he had set himself. The heavy transport plane descended through the clouds, passed over Ireland, and then droned on further eastwards into England. The pilot had obtained permission for them to circle London once, so that they could see the areas damaged by German bombing. As the plane rolled to a halt on the airﬁeld at Bovingdon, eighteen hours after its take-off from Labrador, Jackson turned to his son, En- sign William Jackson, a navy lawyer attached to his staff for this his- toric mission. ‘Bill,’ he warned him, ‘you’re going to be defending me long after I am gone.’ He took the cup of coffee offered to him. ‘That’s why I want you to be there,’ he said. ‘I want you to see what it was all like.’ PEOPLE JUST did not come any more American than Robert H. Jackson. It was once unkindly said of Clement Attlee – by Winston Churchill, the master of the poisoned parliamentary barb – that he was a humble man, with much to be humble about. Jackson too was humble, but with much that he could be proud of too. He was a plain man who had started his professional life as a coun- try lawyer in the Pennsylvania town where he had been born on Feb- ruary , . His great grandfather had settled the township of Spring Creek in Pennsylvania, and his grandfather and father had been born on the same farm as he. In  he had hung out his shingle as a lawyer at Jamestown in upstate New York, where his father ran a livery stable; he never did take his law degree, and he tried his ﬁrst case – For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  defending four trade unionists – and won it, before he was even ad- mitted to the Bar. He qualiﬁed as a lawyer by hands-on practice alone. Despite his youth, Jackson developed a large trial practice and be- came a familiar ﬁgure in the New York appellate courts. His politics were left-wing liberal. Very early on, he had become a supporter of Franklin Roosevelt; a model New Deal lawyer, Jackson had led the anti-trust assaults on the big business combines in the United States. In Washington, his career seemed to climb as inexorably as the morn- ing sun. In  Henry R. Morgenthau Jr, the urbane and civilised secretary of the treasury, invited him to become general counsel of the bureau of internal revenue. It was said of Jackson that he was a man of urgent idealism, and not without personal ambitions, but as a true Democrat he never wavered in his support for Roosevelt, whom he described in  as ‘the great- est natural resource we have.’ By , he was being openly tipped by newspapers as a possible future president himself. For the time being he was content to be a major legal ﬁgure. In July , Roosevelt appointed him to the Supreme Court. On that ex- alted bench Jackson was cherished and renowned for his forthright dissenting opinions: for example, he could opine at the height of World War Two that the Supreme Court was wrong to allow the military to set aside the Bill of Rights in evicting all people of Japanese ancestry from the West Coast after the Japanese attack on Pearl Harbor – it was ‘racial discrimination’ in his view; and as Roosevelt’s attorney-general he had forbidden all wiretapping operations by J. Edgar Hoover’s F.B.I. (They had carried on tapping, all the same.) Topping just ﬁve feet eight-and-a-half inches, with brown hair and blue eyes, Jackson was like many American country folk a man of limited horizons – a criticism that could be levelled at most of the Nazi leadership too. He had rarely travelled outside the United States;  N UREMBERG , THE L AST B ATTLE his last passport, issued ten years before, had been lost years earlier, and he had needed to get a new one for this trip. If there was one man on whom the Germans could count to give them a fair trial it seemed to be this man – convinced that the United States had a solemn, almost God-granted duty to educate the world, to reward the good, and to punish the evil with an element of right- eousness which his country could still afford in , if not in more recent times. Equally, if there was one man on whom President Harry S. Truman could count to set the trials in motion and see them through to their completion it was Jackson. EVEN BEFORE his appointment by Truman, Jackson had attacked the cynics who had expected war crimes tribunals to act merely as ex- tended weapons of war. He had initially come out against any such trial. ‘If we want to shoot Germans as a matter of policy,’ he had said in one speech as the ﬁghting in Europe sputtered to an end, ‘let it be done as such, but don’t hide the deed behind a court. If you are deter- mined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organised to con- vict.’ It would bring the law into contempt, he argued, if mock tribu- nals were held with the verdict already decided. ‘I … expressed the opinion,’ he recalled two weeks later in his diary, ‘that if these persons were to be executed, it should be as the result of military or political decisions.’ In this courageous view, that there must be due and proper process, Jackson stood virtually alone at ﬁrst, for this was the early summer of , and the world’s newspapers were full of photographs and vivid eye-witness stories of the horrors revealed in the former Nazi-occu- pied countries and extermination camps; the air was loud with the cry for immediate, summary, and violent revenge on the perpetrators of these crimes. Tens of millions had been sacriﬁced to the Termagant of For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  war. Stalin would claim to Churchill at Potsdam that the Soviet Union had suffered nearly ﬁve million losses in killed and missing. Of ,, Russians taken prisoner by the Wehrmacht, only some two millions had survived. This why Jackson felt that it was not enough to single out isolated conventional atrocities and punish the handfuls of low-ranking guilty men or even their leaders. The criminal organisations themselves had to be indicted. The other cases could be dealt with by existing army court-martial procedure. ‘These cases I regarded as the small change of crime,’ he privately recorded. ‘They were offenses that always occur when men are hot, frightened, and passionate.’ No, Jackson was after the men who had sat at the top, the enemy leaders who had planned that kind of warfare, who had brutalised it, and who had above all made war itself an instrument of policy. v v v By June  Jackson already had the toughest ﬁght for justice be- hind him. Firstly, there was President Roosevelt. While he talked eloquently in public of pursuing the Nazi criminals to the ends of the earth, pri- vately he too intended that they should be punished without trial. At a stag dinner held at the White House on June , , he had regaled Polish prime minister Stanislas Mikolajczyk with stories of Stalin’s plans to ‘liquidate , German ofﬁcers,’ and he had laughed out loud as he recalled how his joint chiefs had listened with round eyes to these words. Talking, later that evening, about which of the victorious powers should acquire the great north German ports, Henry L. Stimson, the U.S. secretary of war, urged Roosevelt to caution. ‘I felt,’ Stimson recorded in his diary, in an oblique hint at the ethnic cleans- ing that would occur after those regions were turned over to the Poles,  N UREMBERG , THE L AST B ATTLE ‘that repercussions would be sure to arise which would mar the page of our history if we, whether rightly or wrongly, seemed to be respon- sible for it.’ Still worried about the bloodbath in store for the defeated Germans, Stimson wrote two days later that occupying the southern sector of Germany would be more congenial as it ‘keeps us away from Russia during occupational period. Let her do the dirty work but don’t father it.’ Such was the climate of hatred that even Cordell Hull, Roosevelt’s secretary of state and a distinguished statesman, argued for nothing less than the summary liquidation of the Axis leaders as and when they fell into Allied hands. ‘Hull surprised me,’ admitted the British ambassador Lord Halifax in his secret diary after dining with him on March , , ‘by saying that he would like to shoot and physically kill all the Nazi leaders down to quite low levels!’ In this belief Hull was on a par with the ambassador’s barber in Washington, who per- petually told him: ‘Kill every one. Leave one – they will breed again and you have to do the job again. It is like leaving one rabbit in a young plantation.’ In the autumn of  Cordell Hull again graphi- cally proposed: ‘If I had my way, I would take Hitler and Mussolini and Tojo and their arch accomplices and bring them before a drum- head court-martial, and at sunrise on the following day there would occur an historic incident.’ General Dwight D. Eisenhower, who has a well-manicured image in the history books as a military commander blessed with both chivalry and decency, was little better. He told Lord Halifax on July ,  that in his view the enemy leaders should be ‘shot while trying to es- cape’ – the common euphemism for murder used in Hollywood’s cheaper ﬁlms about the Nazis. Eisenhower’s naval aide Harry Butcher heard his chief of staff, Lieutenant-General Walter Bedell Smith, an ofﬁcer who nursed a phenomenal hatred for the Germans, urge that imprisonment was not enough for the enemy’s General Staff, a body For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  of some , ofﬁcers. ‘There was agreement,’ noted the aide in his unpublished diary, ‘that extermination could be left to nature if the Russians had a free hand.’Why just the Russians? inquired Eisenhower: the victorious powers, he suggested, could temporarily assign zones in Germany to the smaller nations with scores to settle. He repeated these views to Henry Morgenthau when the latter vis- ited the Portsmouth command post of the Supreme Headquarters, Allied Expeditionary Force (S.H.A.E.F.) on August  – indeed, Morgenthau would, with some justiﬁcation, point to Eisenhower as the father of his famous Plan. According to Morgenthau’s version, General Eisenhower opposed any soft line: ‘The whole German popu- lation is a synthetic paranoid,’ he told the treasury secretary. ‘And there is no reason for treating a paranoid gently. The best cure is to let the Germans stew in their own juice.’ ‘General Eisenhower had stated,’ Morgenthau told his ofﬁcials ﬁve days later, ‘… that in his view we must take a tough line with Germany as we must see to it that Ger- many was never again in a position to unleash war upon the world.’ According to another witness, Eisenhower also said: ‘The ringleaders and the S.S. troops should be given the death penalty without ques- tion, but punishment should not end there.’ This discussion with the treasury secretary prompted the supreme commander to dilate on his own views about the basically ‘paranoid’ German character, which Eisenhower himself later summarised as follows: ‘The German people must not be allowed to escape a per- sonal sense of guilt for the terrible tragedy that had engulfed the world. Germany’s war-making power should be eliminated. Certain groups should be speciﬁcally punished by Allied tribunals: leading Nazis, Gestapo members, S.S. members.’ He added, ‘The German General Staff should be utterly eliminated. All records destroyed and individu- als scattered and rendered powerless to operate as body. In proper cases more speciﬁcally punished.’  N UREMBERG , THE L AST B ATTLE Morgenthau tackled the British prime minister Winston S. Church- ill about this three days later, over lunch on August , . The prime minister indicated his ‘general concurrence’ with Eisenhower’s viewpoint. Morgenthau then sketched the outlines of what later be- came his Plan – ‘In his opinion serious consideration should be given to the desirability and feasibility of reducing Germany to an agrarian economy wherein Germany would be a land of small farms, without large-scale industrial enterprises.’ Morgenthau reported all this to his Washington staff a few days later, one of whom recorded: ‘He said that in his conversation with Churchill the question of the program to be followed upon occupation of Germany had come up and that he had gathered from the Prime Minister’s comments that he was in agree- ment with the view expressed by Morgenthau to the effect that during the early months Germany’s economy ought to be let pretty much alone and permitted to seek its own level.’ The Germans were to stew in their own juice, in other words. Morgenthau advised the president on August , on his return from Europe to Washington, that some people in Europe were planning a soft future for Germany. Roosevelt conﬁdently assured him, ‘Give me thirty minutes with Churchill and I can correct this.’ He added, ‘We have got to be tough with Germany and I mean the German people, not just the Nazis. You either have to castrate the German people or you have got to treat them in such a manner so they can’t go on repro- ducing people who want to continue the way they have in the past.’ (The presidential interest in castration is worth bearing in mind.) Worried about the rumours that he was hearing, on August  the secretary of war Henry L. Stimson, a Republican in a broadly Demo- crat administration, talked with Roosevelt’s special adviser Harry L. Hopkins on the telephone. Hopkins however asked him to bear with Morgenthau over Germany. Stimson saw every reason to be concerned about treasury secretary’s involvement with Germany, and at noon on For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  the twenty-third he went to the president and put to him his own more measured views. Afterwards Stimson and his deputy John G. McCloy took lunch with Morgenthau at the war department, and lis- tened in disbelief as the latter revealed triumphantly that the dismem- berment of Germany had already been agreed upon between the Big Three eighteen months earlier at Teheran. This was news not only to Stimson. ‘Although the discovery of this thing,’ dictated Stimson shortly afterwards into his private diary, ‘has been a most tremendous sur- prise to all of us, I am not sure that the three chiefs regard it as a fait accompli.’ In the afternoon Stimson tried to collect his own thoughts about the future of Germany, drafting a document entitled ‘Brief for Confer- ence with the President on August ,’ in which he listed ‘a number of urgent matters of American policy’ including in particular their policy vis-à-vis the ‘liquidation of Hitler and his gang.’ Stimson’s wording was very explicit. ‘Present instructions seem inadequate beyond im- prisonment. Our ofﬁcers must have the protection of deﬁnite instruc- tions if shooting [is] required. If shooting required it must be immedi- ate; not post-war.’ He also asked the question, ‘How far do U.S. ofﬁcers go towards preventing lynching in advance of Law and Order?’ v v v Morgenthau got at Roosevelt ﬁrst, lunching with him at the White House on August . Here he ﬁlled in more details of his Plan for punishing and emasculating post-war Germany – regardless of the effect which this ‘running sore’ would have on the rest of the Eu- ropean economy. The treasury secretary visited Roosevelt early on August  to hand him his own memorandum on the German problem. Later that day he and Stimson both lunched with the president. Stimson again fo-  N UREMBERG , THE L AST B ATTLE cused attention on the allocation of British and American zones of occupation in Germany. He now urged Roosevelt to dump on the British the occupation of northern Germany. ‘By taking south-west- ern Germany,’ he recorded in his diary, ‘we were … further away from the dirty work that the Russians might be doing with the Prussians in Eastern Germany’ – another unsubtle reference to the mopping up or puriﬁcation operations which the Russians would conduct in their own occupation zone. Worried that Allied troops would shortly be entering Germany without policy directives, Stimson suggested that Roosevelt appoint a cabinet committee. The president took the point, and after lunch all three men went together into cabinet. At the very beginning of this cabinet meeting Roosevelt announced that he would appoint Secretaries Hull, Morgenthau, and Stimson as the members of that committee. In the ensuing discussion, Stimson felt that he was able to put across his view that any penalties should be inﬂicted on individuals and ‘not by destruction of the economic struc- ture of Germany which might have serious results in the future.’ ‘The President,’ he recorded discreetly, ‘showed some interest in radical treatment of the Gestapo.’ THERE HEleft it for a while. For the last days of August Stimson re- mained on his farm, maintaining scrambler telephone contact with McCloy in Washington. ‘In particular,’ wrote Stimson in his diary, I was working up and pressing for the point I had initiated, namely that we should intern the entire Gestapo and perhaps the S.S. leaders and then vigorously investigate and try them as the main instruments of Hit- ler’s system of terrorism in Europe. By so doing I thought we would begin at the right end, namely the Hitler machine, and punish the people who were directly responsible for that, carrying the line of investigation and punishment as far as possible. I found around me, particularly Morgenthau, For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  a very bitter atmosphere of personal resentment against the entire Ger- man people without regard to individual guilt and I am very much afraid that it will result in our taking mass vengeance on the part of our people in the shape of clumsy economic action. Getting wind of this rising controversy, the British ambassador in Washington, Lord Halifax, sent a telegram to the Foreign Ofﬁce on September  reporting that McCloy had told him of the Morgenthau committee, and its preoccupation with the question of the trial and punishment of Hitler, Himmler, and other leading Nazis ‘as distinct from their mere arrest by Allied military forces.’ The economic part of what was more properly called the Treasury Plan was drafted by Morgenthau’s principal assistant Harry Dexter White (who was later accused of being a Soviet agent); White com- pleted the ﬁrst draft on September  and sent it over the next day to Morgenthau, who had retired to his country home in upstate New York for the Labour Day weekend, an American public holiday. When President Roosevelt and his wife motored over to take tea with Morgenthau beneath the trees of his estate, the treasury secretary showed him the draft. Roosevelt’s current thinking on Germany was still rather simplistic: no aircraft, uniforms, or marching. Morgenthau said: ‘That’s very interesting, Mr President, but I don’t think it goes nearly far enough.’ He wanted to put eighteen or twenty million Germans out of work, and he wanted able-bodied Germans transported to Central Africa as slave labour on ‘some big TVA project.’ (The Tennessee Valley Authority hydroelectric project of Roosevelt’s New Deal had generated employment for half the continent.) How different was the staid, elderly Republican Stimson from the vengeful Democract Morgenthau. That Monday, September , the former ﬂew back to Washington and conferred with General George  N UREMBERG , THE L AST B ATTLE C. Marshall, Roosevelt’s chief of staff, about the treatment of Ger- many and ways of investigating and punishing the Gestapo. ‘It was very interesting,’ Stimson dictated afterwards in a note, ‘to ﬁnd that army ofﬁcers have a better respect for the law in those matters than civilians who … are anxious to go ahead and chop everybody’s head off without trial or hearing.’ Invited to dine with Morgenthau that evening, Stimson found McCloy and Harry Dexter White already there. ‘We were all aware of the feel- ing that a sharp issue is sure to arise over the question of the treatment of Germany. Morgenthau is, not unnaturally, very bitter, and as he is not thoroughly trained in history or even economics it became very apparent that he would plunge out for a treatment of Germany which I feel sure would be unwise.’ The next day the cabinet committee on Germany met for the ﬁrst time in Cordell Hull’s ofﬁce. Hull was reticent but it turned out that his ideas were no less extreme than Morgenthau’s. Stimson found him- self in a minority of one. ‘This proposal,’ he said of Morgenthau’s Plan, ‘will cause enormous evils. The Germans will be permanent pau- pers, and the hatreds and tensions that will develop will obscure the guilt of the Nazis and poison the springs of future peace.’ ‘My plan,’ retorted Morgenthau, unabashed, ‘will stop the Germans from ever trying to extend their domination by force again. Don’t worry. The rest of Europe can survive without them.’ Stimson was unconvinced. ‘This plan will breed war,’ he said, ‘not prevent it!’ TO GENERAL Marshall he wrote, ‘It’s very singular. I’m the man in charge of the Department which does the killing in this war, and yet I am the only one who seems to have any mercy for the other side.’ Stimson returned to his ofﬁce and dictated this note for his diary: For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  As soon as I got into the meeting it became very evident that Morgenthau had been rooting around behind the scenes and had greased the way for his own views by conference with the president and others.… I, to my tremendous surprise, found that Hull was as bitter as Morgenthau against the Germans and was ready to dump all the principles that he had been laboring for in regard to trade for the past twelve years. He and Mor- genthau wished to wreck completely the immense Ruhr–Saar area of Germany into a second rate agricultural land.… I found myself a minor- ity of one and I labored vigorously but entirely ineffectively against my colleagues. In all the four years that I have been here I have not had such a difﬁcult and unpleasant meeting. It was decided that each of the three men would submit to the presi- dent a memorandum on the treatment of Germany. Stimson utterly rejected Hull’s proposals, which closely tallied with Morgenthau’s. ‘I cannot treat as realistic the suggestion that such an area in the present economic condition of the world can be turned into a non-productive “ghost territory” when it has become the center of one of the most industrialized continents in the world, populated by peoples of en- ergy, vigor, and progressiveness.’ Lord Halifax sent a further telegram to London, brieﬁng the foreign ofﬁce at McCloy’s request on what Morgenthau was up to. Two awe- some questions were now being raised, on which the ambassador asked for formal instructions: ‘Whom do we imprison or intern? On what scale? Is it by tens of thousands or hundreds of thousands?’ And, more crucially, ‘Whom do we shoot or hang? The feeling is that we should not have great state trials, but proceed quickly and with despatch. The English idea, once preferred but then withdrawn, was to give the army lists to liquidate on mere identiﬁcation. What has happened to this idea? Besides individuals, what categories should be shot?’  N UREMBERG , THE L AST B ATTLE General Marshall was a wise, unhurried soldier–politician. On Sep- tember , Stimson secured him as an ally. After reading the memoran- dum which Stimson had received from Morgenthau ‘demanding,’ as Stimson summarised it, ‘that the leaders of the Nazi party be shot without trial and on the basis of the general world appreciation of their guilt,’ Marshall gave it the reception that his political master had expected – ‘absolute rejection of the notion that we should not give these men a fair trial.’ Morgenthau nonetheless stuck to his guns and went to the very top, demanding of the president a re-hearing. Learning of this, Stimson cast about for other allies. He dined with Justice Felix Frankfurter, one of the twelve members of the Supreme Court and one of Roosevelt’s less extreme advisers. ‘Although a Jew, like Morgenthau,’ dictated Stimson afterwards, ‘he approached this subject with perfect detachment and great helpfulness.’ He went over the whole matter with the judge from the beginning, reading out Morgenthau’s proposals on the future of the Ruhr and on the sum- mary liquidation without trial of the Nazis, at both of which Frank- furter ‘snorted with astonishment and disdain.’ He fully backed Stimson’s views and those of his army generals. The accused Ger- mans, said Frankfurter, were to be given a fair hearing: ‘They cannot be railroaded to their death without trial.’ The ﬁght nonetheless continued. By September  Morgenthau had his full Plan ready, ‘a new diatribe’ on the subject of how to deal with the Nazis. At a meeting that day with Roosevelt, Stimson waded into it. But the meeting was very unsatisfactory. Hull sat silent.  Morgenthau’s record shows that Roosevelt said he wanted Germany partitioned into three parts. He ﬂipped through the pages of Morgenthau’s Plan, and kept prodding Morgenthau: ‘Where is the ban on uniforms and marching?’ Morgenthau reassured him it was all there. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  The president was planning to meet in a few days’ time with the British war leadership at Quebec, in Canada, to decide on these and other matters. He now, as Stimson put it, ‘pranced up to the meeting at Quebec,’ leaving Hull and Stimson behind. Morgenthau seized the opportunity to share the train journey north with the president as far as Hyde Park. Roosevelt’s country home in upstate New York. He wanted to have the last word. v v v What views did Churchill bring with him to Quebec? His cabinet had displayed some differences of attitude on the pun- ishment of enemy war criminals. A number of German prisoners-of- war had been shot in Britain during the war, but the ﬁle on these episodes is closed to public scrutiny. The treatment of the principal enemy leaders was clearly a different matter altogether. The archives show that as early as  Churchill had decided that they should be executed without trial, and he repeatedly canvassed this proposal until long after the war was over, although there is no trace of it in his mem- oirs. For example, when the British ambassador in Moscow conveyed a Foreign Ofﬁce statement on the case of Rudolf Hess to Marshal Stalin on November , , the Soviet leader put his concerns to Sir Archibald Clark Kerr outright: ‘After the war it is customary to repat- riate prisoners-of-war: do you intend to send Hess home?’ and he added, ‘If Goebbels landed in the U.K. tomorrow, would you send him back as a P.o.W. too?’ He was perturbed about the plan to set up a United Nations commission to try these criminals. ‘I would not like to see Hitler, Mussolini, and the rest of them escaping like the Kaiser to some neutral country.’ (The German Kaiser had been given sanc- tuary by the Netherlands after World War One.)  N UREMBERG , THE L AST B ATTLE It was then that His Majesty’s ambassador reassured the dictator that Churchill proposed a ‘political decision,’ whereby the enemy lead- ers would be liquidated upon capture. Both on this occasion and subsequently when Churchill tried to force this solution on him Stalin voiced wise objections. ‘Whatever hap- pens,’ he lectured the ambassador in November , ‘there must be some kind of court decision. Otherwise people will say that Churchill, Roosevelt, and Stalin were wreaking vengeance on their political en- emies!’ ‘I am sure,’ persisted the ambassador laconically, ‘that the political decision that Mr Churchill has in mind will be accompanied by all the necessary formalities.’ This was not an isolated document, in which an ambassador had perhaps expressed an opinion without sufﬁcient warrant from his su- periors. From both the British and American archives it becomes clear that the British – from their autocratic prime minister Winston Churchill downwards – were set on executing against the Nazi leadership what can only be described as lynch justice without the palliative noun, or alternatively as judicial murder without the exculpatory adjective. It was a matter on which Anthony Eden, the foreign secretary, equivo- cated. Cabinet papers show that in July  he proposed that the United Nations warn all neutral countries that the harbouring of war criminals at any future time would be regarded as an unfriendly act. Responding to this, another cabinet minister, Duff Cooper, pointed out that the United Nations had yet to decide on the fate of Hitler and Mussolini if they should be taken prisoner. ‘By what code and before what tribunal can the head of a conquered State be tried by his victo- rious opponents?’ he perhaps naïvely asked. He predicted that such a trial would drag on interminably, bringing disrepute to the lawyers and sympathy to those in the dock. Hitler, he reminded his cabinet For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  colleagues, had ultimately decided not to put the deposed Austrian chancellor Kurt Schuschnigg on trial for precisely this reason. As for the alternative, ‘punishment without trial,’ Duff Cooper warned that this would shock the consciences of many people at the time and ‘many more in retrospect.’ Since Hitler and Mussolini would no doubt meet their deaths with dignity, the result would be that their ‘memo- ries would be enshrined for ever in the hearts of their people.’ He argued that it would be inﬁnitely preferable for the Axis leaders to creep into a despised and dishonoured exile than to have trials leading to a St Helena or, worse, to executions. Duff Cooper quoted historical parallels – showing that the exiles of James II, the Kaiser, and Charles X were fatal to their dynasty; while the harsher punishments meted out to Napoleon, Louis XVI, and Charles I built up legends on which restorations were later founded. In July , after Mussolini’s overthrow and arrest, the very real possibility arose that he and his fascist consorts, ‘the head devil to- gether with his partners in crime,’ as Roosevelt had called them, might fall into Allied hands. ‘We ought now to decide,’ Churchill cabled to Roosevelt, ‘in consultation with … the U.S.S.R. what treatment should be meted out to them. One,’ he continued, though still treading war- ily, ‘may prefer prompt execution without trial except for identiﬁcation purposes.’ Others might however prefer that Mussolini and the others be kept in conﬁnement until the end of the war in Europe and their fate then be decided along with the other war criminals. Not yet hav- ing discussed this delicate matter with the president, Churchill pro- fessed to be ‘fairly indifferent on this matter,’ provided that they sacriﬁced no solid military advantages for the sake of immediate venge- ance. Roosevelt responded on this occasion that in his opinion a prema- ture effort to seize the ‘head devil’ would prejudice the primary Allied objective which was, he reminded the prime minister, to get Italy out  N UREMBERG , THE L AST B ATTLE of the war. In due course they could set about capturing Mussolini and his assistants; only then could they determine the individual de- grees of guilt for which ‘the punishment should ﬁt the crime.’ Where did the Lord Chancellor, head of the British legal structure, stand on this? Parroting His Master’s Voice, Viscount Simon agreed with Churchill: the enemy leaders should be put to the sword. When he saw Lord Halifax on September ,  Simon said that, if action were ever to be taken against Hitler or Mussolini, it could be done only on the basis of a United Nations declaration as a ‘political act’ – that is, outright execution without trial. ‘Whether that would be wise or not,’ remarked Lord Halifax dubiously in his diary, ‘is another mat- ter. One other thing is certain: that it would be very difﬁcult to explain to the ordinary public why you shot the man who burnt Lidice, and did not shoot Hitler.’ Part of the decision-making process was easy: following Churchill’s lead, on October  the cabinet decided that any lesser war criminals whom the Allies captured should be turned over to be punished lo- cally, in the country where they had committed their crimes. Church- ill thoroughly approved this: it would shift the burden of ‘administer- ing retribution’ – he did not use the word justice – from the hands of the Allies to those of the countries which had suffered. Eden, however, as foreign secretary listened to the cabinet debate with misgivings. He was just off to confer with the other Allied foreign ministers in Moscow. ‘I am far from happy about all this War Crimi- nals business,’ he minuted the next day. ‘When I come back I want to have a Departmental discussion about it all. Broadly I am most anx- ious not to get into the position of breathing ﬁre and slaughter against War Criminals and promising condign punishment and a year or two hence have to ﬁnd a pretext for doing nothing.’ Nonetheless Churchill drafted a solemn declaration which he sub- mitted to both Roosevelt and Stalin on October , , undertaking For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  to cart back all the minor enemy war criminals to the location of their atrocities where they should be put on trial. He published the text of this draft in his memoirs: Great Britain, the United States, and the Soviet Union have received from many quarters evidence of the atrocities, massacres, and cold-blooded mass-executions which are being perpetrated by the Hitlerite forces in the many countries which they have overrun and from which they are now being steadily expelled. The brutalities of the Nazi domination are no new thing, and all peoples or territories in their grip have suffered from the worst forms of government by terror. What is new is that many of these territories are now being redeemed by the advancing armies of the liberating powers, and that in their desperation the recoiling Hitlerites and Huns are redoubling their ruthless cruelties. Accordingly, continued Churchill’s draft, the three powers, speaking in the interest of the thirty-two United Nations, declared that at the time of any armistice with Germany, those Germans who had been responsible for the atrocities ‘will be sent back to the countries in which their abominable deeds were done.’ Thus Germans taking part in the wholesale shooting of Italian ofﬁcers – a neat contemporary touch, that – or in the execution of French, Dutch, Belgian, or Norwegian hostages and so on ‘will know that they will be brought back, regard- less of expense’ – a less neat turn of phrase – ‘to the scene of their crimes and judged on the spot by the peoples whom they have out- raged.’ ‘The above declaration,’ he was careful to end, ‘is without prejudice to the case of the major criminals, whose offences have no particular geographical localisation.’ Eden carried Churchill’s draft to Moscow and, with minor amend- ments, it was adopted as the declaration issued there at the end of the  N UREMBERG , THE L AST B ATTLE foreign ministers’ meeting on October . This Moscow Declaration became the basis of the post-war disposition of many of the German war criminals – though not of the Italian and Japanese. Churchill ex- pressed relief at this, telling the cabinet, ‘I am certain that the British at any rate would be incapable of carrying out mass executions for any length of time, especially as we have not suffered like the subjugated countries.’ THIS LEFT unresolved the awkward problem of how to deal with the major war criminals, particularly those ‘whose offences however have no particular geographical localisation’ – the major criminals like Hit- ler. For these the prime minister reverted, in November , to his own ﬁnal solution. ‘A list,’ he suggested, ‘shall be compiled by the United Nations of all major criminals other than those provided for by local jurisdiction.’ This growing list, of ﬁfty or at the most one hundred names, would include ‘the Hitler and Mussolini gangs and the Japa- nese War Lords.’ From time to time at a conference of jurists the lists would be pruned, added to, and approved. ‘Thereafter, the persons named on the approved list will, by solemn decree of the  United Nations, be declared world outlaws.’ The beauty of this proposal was that the ‘outlaws’ could be liqui- dated at will: ‘No penalty will be inﬂicted on anyone who puts them to death in any circumstances.’ ‘As and when any of these persons falls into the hands of any of the troops or armed forces of the United Nations,’ suggested Churchill, ‘the nearest ofﬁcer of the rank or equiva- lent rank of Major-General will forthwith convene a Court of Inquiry, not for the purpose of determining the guilt or innocence of the ac- cused but merely to establish the fact of identiﬁcation. Once identiﬁed, the said ofﬁcer will have the outlaw or outlaws shot to death within six hours and without reference to higher authority.’ For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  : Lynch Law I T WAS perhaps infelicitous for the leader of a great democracy, the head of a nation ﬁghting a war to re-establish the rule of law, to have put his name to such a document. It was drafted in No- vember , even as Churchill was issuing orders for the severest ﬁre raids in history to be executed against the capital of Germany, with the speciﬁc aim of killing as many of its civilian inhabitants as possi- ble. There is no historian writing on the Third Reich who has not shuddered with uncomprehending disgust upon ﬁnding broadly iden- tical orders signed by Adolf Hitler for the summary execution or liqui- dation of commandos, commissars, and Allied ‘terror ﬂiers’ – and pre- cisely those were the documents which were to be used as prosecution exhibits in the Tribunal that forms the centrepiece of this narrative. There was, it must be said, also a party-political sub-plot to Church- ill’s deliberations. He was replacing Lord Woolton with Jay Llewellin as minister of food, a move which was seen as ‘a nasty blow for the Simonites’ – the followers of Viscount Simon, the lord chancellor. Ac- cording to his private secretary, Churchill had hoped thereby to get rid of Simon. ‘But,’ he told another minister, ‘since it is now desired to send back as many war criminals as possible to the scenes of their crimes, there is no longer much of a job, as was at one time expected, for Simon as president of some great International War Criminal Tri- bunal, and so, for the moment, he sticks on.’  N UREMBERG , THE L AST B ATTLE Churchill’s proposals to lynch the enemy leaders were put before the war cabinet on November , . Surprisingly given the prevailing mood and their broad subservience to their prime minister, the pro- posals were not at once adopted. Instead the cabinet agreed that in the light of their sometimes heated discussion the lord chancellor should, together with the attorney-general and the minister of aircraft produc- tion Sir Stafford Cripps, redraft the prime minister’s unfortunate word- ing. The formula which these three, much wiser, men eventually pro- posed was adopted by Churchill without comment: It is now announced that a list of the inner ring of political leaders who must take responsibility for the barbarous way in which the war has been conducted will be drawn up (in due course) by the United Nations. (These individuals will be solemnly declared World-Outlaws.) When any of these major criminals fall into the hands of any force of the United Nations, they will be kept in strict conﬁnement until such time as the United Na- tions decide on their fate. Meeting for dinner at the Soviet embassy in Teheran later in Novem- ber , Churchill, Roosevelt, and Stalin touched upon the issue of how to deal with the major war criminals, again without reaching any deﬁnite conclusion. The meeting did however produce one famous piece of gruesome banter. It was November , and one of the Americans present, diplomat Charles Bohlen, took detailed notes. He recalled Stalin’s peculiar atti- tude to the British prime minister: this was a mixture of jocularity and contempt, as Churchill still seemed to entertain misgivings about OVER- LORD, the planned invasion of northern France in . ‘Stalin,’ Bohlen recorded, ‘lost no opportunity to get in a dig at Mr Churchill.’ Soon the prime minister was on the defensive. ‘In the dis- cussion in regard to future treatment of Germans,’ Bohlen noted, For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  ‘Marshal Stalin strongly implied on several occasions that Mr Churchill nursed a secret affection for Germany and desired to see a soft peace.’ It was their duty to evolve ‘really effective measures’ to control Ger- many to prevent her resurgence in ﬁfteen or twenty years’ time. One of the conditions, said Stalin, that must be met was that ‘at least , and perhaps , of the German Commanding Staff must be physi- cally liquidated.’ Churchill, having been ﬁercely celebrating the eve of his seventieth birthday, with many toasts, was in poor condition to notice that Stalin was ragging him. He remarked pompously that it was not the British habit to slaughter prisoners-of-war, ‘especially ofﬁcers.’ There were glares at him from around the table. Charles Bohlen’s written record has it: ‘The Prime Minister took strong exception to what he termed the cold blooded execution of soldiers who had fought for their coun- try. He said that war criminals must pay for their crimes, and indi- viduals who had committed barbarous acts, and in accordance with the Moscow Declaration which he himself had written they must stand trial at the place where the crimes were committed. He objected vig- orously, however, to executions for political purposes.’ According to Churchill’s own colourful account, published after the war, he had announced: ‘I would rather be taken out into the garden here and now and be shot myself rather than sully my own and my country’s honour by such infamy.’ Those documents already quoted and those still to come provide sufﬁcient reason for doubting whether he really nursed such powerful objections to liquidating the enemy out of hand. Roosevelt could see that Stalin had been pulling Churchill’s leg. ‘The President,’ continued Bohlen’s note, ‘jokingly said that he would put the ﬁgure of the German commanding staff which should be executed at , or more.’ He dined out on Churchill’s humourless response for weeks afterwards.  N UREMBERG , THE L AST B ATTLE Was Stalin, the butcher of Katyn, joking, or was he not? Probably he was not serious, because when Churchill, with Roosevelt’s backing, later ventilated a similar plan (in October ) it was Stalin alone who vetoed it. WHEN GENERAL Eisenhower asked the British government in April  for a statement to issue to the Germans about how they would be treated in defeat, Churchill wrote to the Foreign Ofﬁce as follows: I have pointed out to the cabinet that the actual terms contemplated for Germany are not of a character to reassure them at all, if stated in detail. Both President Roosevelt and Marshal Stalin at Teheran wished to cut Germany into smaller pieces than I had in mind. Stalin spoke of very large executions of over , of the staffs and military experts. Whether he was joking or not could not be ascertained. The atmosphere was jovial, but also grim. He certainly said he would require ,, German males to work for an indeﬁnite period to rebuild Russia. We have prom- ised the Poles that they shall have compensation both in East Prussia and, if they like, up to the line of the Oder. There are a lot of other terms implying the German ruin and indeﬁnite prevention of their rising again as an armed Power. Unlike Churchill, Stalin seemed inclined to take the judicial path, albeit using the trial procedures for which the Russians were already well known. On December ,  they opened a war crimes tribu- nal against three German ofﬁcers taken prisoner in Stalingrad, ac- cused of murdering Russian civilians by means of gassing-trucks. The trial ended after only three days with death sentences.The three ofﬁcers were executed in a public square in Kharkov before forty thousand spectators. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  The Russians spliced together a gruesome documentary ﬁlm about the Kharkov trials, and its message – the Soviet trial procedures – was not lost on Justice Robert H. Jackson when it was shown to him and his entire newly assembled staff on the evening of May , . Lim- iting his own verdict on it, the judge diplomatically called it ‘a very interesting exposition of the Russian method of proving a case by the defendants themselves’ – that is, the tortured ‘self-confessions’ for which Soviet-style trials had long become renowned. As the British attor- ney-general Sir David Maxwell Fyfe wrote, these trials were efﬁciently stage-managed examples of summary action, in which the defendants abjectly confessed to their crimes and were convicted and executed without further ado. The show trial in Kharkov was not without consequences in Berlin during that winter of –. Goebbels’ senior colleagues Dr Hans Fritzsche, who would also be indicted at Nuremberg, would testify in June  to having particularly clear recollections of the moment when he learned that the Russians had staged a trial after recapturing the city of Kharkov. It was then that he heard for the ﬁrst time the allegations about people being killed with gas. I hurried in with this report to Dr Goebbels and asked him what was going on. He responded that he would look into the matter, talk it over with Himmler and Hitler. The next day he told me there would be an ofﬁcial denial. But the denial was in fact never issued, the explanation being that they wanted to clarify the whole thing in more detail in a Ger- man trial. Dr Goebbels had however told him explicitly, he said, that ‘The gas trucks that they mentioned in the Russian trial were a product of some- body’s fevered imagination, without any basis whatever in fact.’  N UREMBERG , THE L AST B ATTLE In England the War Cabinet formally decided on March ,  that a select list of German, Italian, and Japanese criminals should be drawn up, including not less than ﬁfty and certainly not more than one hundred names all told, of which the larger proportion would ‘of course’ be German. The intention was, the Foreign Ofﬁce informed those drawing up the list, to keep ‘these select few’ quite distinct from the general run of those guilty of war crimes in the strict sense. The criterion for selection would be ‘responsibility for bringing about the war.’ It is quite clear, though not explicitly stated, what was to hap- pen to these ﬁfty to one hundred who were to be selected and kept apart from the rest, because the lord chancellor continued throughout  to assume that the Axis leaders would be summarily liquidated upon their apprehension. Before his prime minister departed to meet Roosevelt at Quebec in September , Viscount Simon handed to him a memorandum setting out a suitable public formula as a basis for such summary liquidation of the enemy leaders. v v v The two Allied leaders met in Quebec from September ,  and thereafter in private at Hyde Park. Churchill seems to have indicated his intention of discussing the future of Germany straight away, be- cause from Quebec, Roosevelt cabled on the twelfth to Henry Morgenthau, ‘Please be in Quebec by Thursday September th noon.’ No such invitation went to Stimson. Morgenthau brought his Plan with him in a loose-leaf folder. Left in Washington, Stimson was disgusted on hearing of his presi- dent’s action. ‘I cannot believe that he will follow Morgenthau’s views,’ he wrote on the thirteenth. ‘If he does, it will certainly be a disaster.’ He continued to seeth, dictating on the next day: ‘It is an outrageous thing. Here the president appoints a Committee with Hull as its Chair- For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  man for the purpose of advising him in regard to these questions in order that it may be done with full deliberation and, when he goes off to Quebec, he takes the man who really represents the minority and is so biased by his Semitic grievances that he is really a very dangerous adviser to the President at this time.’ Even Cordell Hull had found himself left behind. In Roosevelt’s defence it can be said that he was already a sick man. Much thinner in body and face, he had lost around thirty pounds in weight, his eyes were drawn, his haggard face had a sunless pallor, and he looked distinctly older and worn. There was electioneering abuse of him as ‘a senile old man’ and it had etched deeply into him; the truth was that his great brain had already deteriorated so far that at one banquet in August he had proposed a toast to the same Icelandic prime minister twice in twenty minutes. As he now leaned forward in his wheelchair to see the models which Churchill had brought over – of D-day invasion paraphernalia – beads of perspiration stood out on his forehead. Morgenthau’s papers show that he brought the talk round to Ger- many immediately he arrived in Quebec, on the evening of September . Roosevelt invited him to outline his Plan. Unexpectedly, Churchill’s ﬁrst reaction was hostile. When Morgenthau talked of physically dis- mantling the Ruhr industries, Churchill interrupted him. He was ﬂatly opposed, he said – all that was necessary was to eliminate German arms production. He waspishly told Morgenthau that his proposal would be ‘unnatural, un-Christian, and unnecessary.’ ‘I regard the Morgenthau Plan,’ the prime minister said, ‘with as much enthusiasm as I would handcufﬁng myself to a dead German.’ He was truculent, even offensive, lisping at one point to Roosevelt , ‘Is this what you asked me to come all the way over here to discuss?’  N UREMBERG , THE L AST B ATTLE Lord Cherwell (the former Professor F. A. Lindemann) glowered at him: Churchill had evidently not grasped the salient point that this one man, Roosevelt’s treasury secretary, controlled America’s purse- strings and hence the bankrupt Britain’s ﬁnancial destinies. Before leaving Quebec, they had to get Roosevelt’s signature on the draft Lend–Lease Agreement for Phase II, the post-war years. Privately conferring with Morgenthau the next morning (Septem- ber ) the Prof. apologised profusely for Winston’s behaviour, and promised to dress up the Plan in a way more appetising to the Prime Minister. Churchill now got the message, writing later: ‘We had much to ask from Mr Morgenthau.’ When he discussed policy toward Germany with Roosevelt later that day he declared himself in favour of the Plan, as explained to him by Lord Cherwell (basically, that by smashing Germany’s industries the British Empire could grab the defeated en- emy’s export markets.) Cherwell was instructed to draft a memoran- dum for signature and give it to Churchill. Churchill was in no mood to display magnanimity. At one point their host, the Canadian prime minister William Mackenzie King, asked him how long the war was going to last. Churchill said he feared that it might drag on. ‘Hitler and his crowd know that their lives are at stake,’ he said, ‘so they will ﬁght to the bitter end.’ Lord Cherwell produced a one-page draft memorandum on the treat- ment of Germany. Out of earshot of Churchill, Morgenthau invited the Prof. and Harry Dexter White up to his room at eleven A.M. on September , read the Prof.’s draft – and expressed a profound dis- like for it. It represented ‘two steps backward,’ he suggested. Since the last discussion, he said, Churchill had seemed to accept the Plan, and had himself spoken promisingly of turning Germany into an agricul- tural state as she had been in the last quarter of the nineteenth cen- For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  tury. Morgenthau therefore urged them to scrap this milk-and-water draft and to return to the two leaders for fresh instructions. They all met at noon on September . Anthony Eden, who had been peremptorily summoned to Quebec from London, noted in his diary that he ‘felt somehow irritated by this German Jew’s bitter ha- tred of his own land & also wasn’t sure that [his] scheme was all that good from our point of view.’ The foreign secretary became ‘rather peevish’ with Morgenthau and afterwards felt that he must have hurt his feelings. Churchill however rejected the new draft made by the two men, Morgenthau and Cherwell, as ‘not drastic enough.’ In their presence he dictated the famous one-page memorandum on the de- struction of the Ruhr and Saar industries which Roosevelt and he him- self shortly initialed. It contained the words, ‘This programme for elimi- nating the war-making industries in the Ruhr and in the Saar is look- ing forward to converting Germany into a country primarily agricul- tural and pastoral in its character.’ It went in fact far beyond the Morgenthau Plan in its punitive economic provisions. HENRY STIMSON learned of Morgenthau’s triumph at Quebec in a phone call from his deputy John J. McCloy that weekend. It hung like a cloud over him for days. ‘I have yet to meet a man,’ he dictated, ‘who is not horriﬁed with the “Carthaginian” attitude of the Treasury. It is Semitism gone wild for vengeance and, if it is ultimately carried out (I can’t believe that it will be), it as sure as fate will lay the seeds for another war in the next generation. And yet these two men [Churchill and Roosevelt] in a brief conference at Quebec with nobody to advise them except “yes-men,” with no cabinet ofﬁcer with the president except Morgenthau, have taken this step and given directions for it to be carried out.’ Anthony Eden would later use similar language, ter ming Morgenthau’s interference, in a hand-written minute poisonous with  N UREMBERG , THE L AST B ATTLE barely concealed antisemitism, ‘a piece of gratuitous impertinence.’ ‘These ex-Germans,’ he wrote, ‘seem to wish to wash away their an- cestry in a bath of hate. A.E., Nov .’ The Morgenthau Plan included controversial provisions for the es- tablishment of slave-labour battalions comprised of all the members of the ‘S.S., the Gestapo and similar groups,’ and it proposed to pun- ish with death any person trying to leave Germany. As for the punish- ment of ‘arch-criminals’ the Morgenthau Plan seemed to convey more than just the spirit of Churchill’s original ‘outlaw’ proposals. A list of the arch-criminals of this war whose obvious guilt has generally been recognized by the United Nations shall be drawn up as soon as possible and transmitted to the appropriate military authorities. The mili- tary authorities shall be instructed with respect to all persons who are on such list as follows: (a) They shall be apprehended as soon as possible and identiﬁed as soon as possible after apprehension, the identiﬁcation to be approved by an ofﬁcer of the general rank. (b) When such identiﬁcation has been made the person identiﬁed shall be put to death forthwith by ﬁring squads made up of soldiers of the United Nations. Morgenthau’s friends in Washington acted rapidly upon learning that Roosevelt and Churchill had initialed the document. Only two days later, on September , the American joint chiefs of staff issued to Eisenhower a wide interim directive, instructing him to ensure that the Germans realised they would never again be allowed to threaten world peace. ‘Your occupation and administration,’ the document read, ‘will be just but ﬁrm and distant.You will strongly discourage fraterni- zation between Allied troops and the German ofﬁcials and popula- tion.’ A political directive issued on October  by the American joint chiefs of staff stressed the elimination of the German ofﬁcer corps: ‘General Staff ofﬁcers not taken into custody as prisoners are to be For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  arrested and held, pending receipt of further instructions as to their disposal.’ That sounded ominous. But it was no more than what Churchill had simultaneously persuaded President Roosevelt to approve at Hyde Park on September , a document which he intended to lay before Mar- shal Stalin for signature at the ﬁrst opportunity. This hitherto unpub- lished document – typed by one of Churchill’s private secretaries on a  Downing Street letterhead – reads in full: DRAFT OF A SUGGESTED TELEGRAM TO BE SENT BY THE PRESIDENT AND THE PRIME MINISTER TO MARSHAL STALIN . In the Moscow Conference of foreign ministers before Teheran, the Prime Minister of Great Britain submitted a draft proposing the local punishment of war criminals in the countries, and if possible, at the scenes where their atrocities had been committed. With some small amendments this document was approved and has been published to the world with general acceptance and approval. This document however did not attempt to deal with the cases of the major war criminals ‘whose offences have no particular geographical localisation.’ This matter was touched on in con- versation at Teheran without any deﬁnite conclusion being reached. It has now become important for us to reach agreement about the treat- ment of these major criminals. Would you [Stalin] consider whether a list could not be prepared of say  to  persons whose responsibilities for directing or impelling the whole process of crime and atrocity is [sic] es- tablished by the fact of their holding certain high ofﬁces. Such a list would not of course be exhaustive. New names could be added at any time. It is proposed that these persons should be declared, on the authority of the United Nations, to be world outlaws and that upon any of them falling into Allied hands the Allies will ‘decide how they are to be disposed of and the execution of this decision will be carried out  N UREMBERG , THE L AST B ATTLE immediately’. Or, alternatively, ‘the nearest General ofﬁcer will convene a court for the sole purpose of establishing their identity, and when this has been done will have them shot within six hours without reference to higher authority.’ . It would seem that the method of trial, conviction and judicial sen- tence is quite inappropriate for notorious ringleaders such as Hitler, Himmler, Goering, Goebbels, and Ribbentrop.* Apart from the formida- ble difﬁculties of constituting the court, formulating the charge and as- sembling the evidence, the question of their fate is a political and not a judicial one. It could not rest with judges however eminent or learned to decide ﬁnally a matter like this which is of the widest and most vital pub- lic policy. The decision must be ‘the joint decision of the Governments of the Allies.’ This in fact was expressed in the Moscow Declaration. . There would seem to be advantages in publishing a list of names. At the present time, Hitler and his leading associates know that their fate will be sealed when the German Army and people cease to resist. It there- fore costs them nothing to go on giving orders to ﬁght to the last man, die in the last ditch &c. As long as they can persuade the German people to do this, they continue to live on the fat of the land and have exalted employments. They represent themselves and the German people as shar- ing the same rights and fate. Once however their names are published and they are isolated, the mass of the German people will infer rightly that there is a difference between * On what grounds would the Nuremberg Tribunal have found it possible to in- dict Dr Goebbels? Dr Nelte, Keitel’s attorney, described the Propaganda Minister as a very shrewd man, the ideological dynamo , who actually believed everything he wrote. ‘Apart from the Jewish pogrom in [November]  there was nothing Goebbels could have been accused of in this trial,’ in Nelte’s opinion. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  these major criminals and themselves. A divergence of interests between the notorious leaders and their dupes will become apparent. This may lead to undermining the authority of the doomed leaders and to setting their own people against them, and thus may help the break up of Ger- many. CLUTCHING THESE horrendous documents in his briefcase, on Septem- ber  Churchill boarded the Queen Mary for the return journey to England. Lord Cherwell, his éminence grise, remained for further talks in Washington. On the twentieth, McCloy warned Stimson that he had now heard from both Lord Halifax and Sir Alexander Cadogan, permanent secretary at the foreign ofﬁce, that the president was ‘very ﬁrm for shooting the Nazi leaders without trial.’ Roosevelt was still under Morgenthau’s inﬂuence. Both Stimson and Hull continued to lobby him against the Morgenthau Plan. Remark- ably, almost overnight, he began to reconsider. It was of course an election year, and what ﬁnally helped change his mind was when the newspapers got wind of the Plan; details of it appeared on September  in the Wall Street Journal. There was a torrent of criticism directed at both the president and Morgenthau. The ﬁve biggest American en- gineering unions issued a declaration dismissing the Plan as economi- cally unsound and warning that it ‘contained the seeds of a new war.’ Pulling out all the stops, Morgenthau sent a copy of the full-length twenty-two-page ﬁnal version of the Plan round to Lord Cherwell, who was still in Washington, asking him to show it to Churchill. In London, Eden angrily rebuked Churchill for having initialed the agree- ment. On September  a Labour member of Parliament, Richard Stokes, challenged the foreign secretary to tell the truth about the Morgenthau Plan. Eden was however still completely caught up in Winston’s web. On October  he circulated to the cabinet a copy of the telegram which  N UREMBERG , THE L AST B ATTLE the prime minister had drafted on September  at Hyde Park, New York, and was proposing to address together with Roosevelt to Mar- shal Stalin, recommending the lynching of the enemy leaders. This telegram, quoted in full above, was a document of disturbing cynicism – even if one overlooks its literary licence, not least in the passage where Winston Churchill, of all people, describes the ascetic Adolf Hitler as living ‘on the fat of the land.’ CONFIDENT OF gaining Stalin’s support, Churchill now proposed to press the matter home. Regardless of Roosevelt’s feelings in the mat- ter, he sprang a surprise visit on Stalin in Moscow in October, secur- ing his ﬁrst meeting with the dictator in the Kremlin late on the ninth. By now uncomfortably aware of Britain’s slipping authority in the grand alliance, he intended to steal a march on the Americans with this visit. The series of meetings – code named TOLSTOY – was prima- rily to carve up post-war Europe, in precisely same way as the ‘war criminal’ Ribbentrop and Molotov had divided eastern Europe and the Baltic states between them under less auspicious circumstances in August . While things went swimmingly on the matter of the frontiers, on the issue of punishing the war criminals, as things turned out, Churchill did not get far with Stalin. It had ﬁnally dawned on him that all their public talk of Uncondi- tional Surrender and the Morgenthau Plan was just making the Ger- mans ﬁght even harder. He therefore suggested to Stalin that for a month or so they should shut up – not saying anything about their plans. He was all for setting hard surrender terms, but in the United States, he admitted, opinion was divided on just how hard. ‘The prob- lem was how to prevent Germany getting on her feet in the lifetime of our grandchildren,’ he said. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  Stalin disagreed with the whole concept. ‘Hard measures,’ he felt, ‘would stir a desire for revenge.’ Molotov then asked outright for Churchill’s view on the Morgenthau Plan. Churchill admitted that Roosevelt and Morgenthau had been taken aback by its public reception. The prime minister repeated, according to the British record, that, as he had declared at Teheran, Britain would not agree to the mass execution of Germans, since he feared that ‘one day’ British public opinion would cry out. ‘But it was necessary,’ the British minutes record Churchill as saying, ‘to kill as many as possible in the ﬁeld.’ Stalin made no comment on that. A few moments later Churchill suggested that the population of Silesia and East Prussia should be ‘moved’ to other provinces in western Germany, explaining with dis- arming cynicism: ‘If seven million had been killed in the war there would be plenty of room for them.’ After a week dominated by Polish affairs – of which Churchill de- clared both British and Russia to be ‘heartily sick’ – the two leaders renewed their discussion on the future in a macabre humour. British foreign secretary Anthony Eden had already secretly prom- ised the Russians on October  that Britain would repatriate to the Soviet Union eleven thousand Russian prisoners-of-war ‘without ex- ception,’ even if they did not wish to return. (The eleven thousand would be shot as soon as they arrived on Russian soil.) The next day Churchill regaled Stalin with an account of his bombing onslaught – boasting that three days earlier R.A.F. Bomber Command had put down ten thousand tons of bombs in twelve hours on one minor Ruhr town, Duisburg. ‘The war,’ boasted Churchill, ‘is the most cruel since the Stone Age.’ When Stalin allowed himself a witticism about canni- balism, Churchill chimed in, ‘Talking of eating – Britain has managed to arrange for the despatch of , tons of corned beef to the Soviet  N UREMBERG , THE L AST B ATTLE Union.’ With a guffaw he added, ‘We are also sending eleven thousand Soviet ex-prisoners-of-war to eat the beef.’ The reader can almost hear the unkind laughter crackling from the pages in the archives – but they merit quoting here as an indication of the kind of reprehensible remarks which are exchanged at high-level conferences between men of war, and which hardly bear reading out by public prosecutors in the cold light of a war-crimes tribunal years later. When Stalin asked point-blank what they were to do with Germany, Eden dutifully talked of dismemberment; and Churchill reverted to his old bugaboo, Prussia and her military caste as ‘the root of the evil.’ They should strip everything out of the Ruhr and the Saar, he said. ‘This was the policy which Mr Morgenthau had laid before the Presi- dent,’ Churchill explained, adding, ‘Mr Morgenthau’s hatred of the Germans was indescribable.’ ‘A second Vansittart,’ remarked Stalin approvingly, referring to the pathologically anti-German Lord Vansittart, a former adviser to the British foreign ofﬁce. Roosevelt, continued the prime minister, had liked what Morgenthau had said; so did he, and he quoted page after page from the Plan as they both pored over maps of Europe, Germany, and the Dardanelles Straits, pencils in hand. It was a pity, Churchill murmured, that when God created the world he had not consulted the two of them. ‘God’s ﬁrst mistake,’ agreed Stalin. IT WAS not until his last day in Moscow that Churchill cautiously raised the Allied proposal to kill off the major enemy leaders upon capture, which he and Roosevelt had both initialed at Hyde Park earlier that month. For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  He ran into a solid wall of Stalinite yet again. The Marshal refused to endorse the proposed declaration, and Churchill quietly tucked it away. He would sadly report to H. M. the King, as well as to Attlee and President Roosevelt on the failure of this part of his mission to ‘Uncle Joe’: ‘U.J. took an unexpectedly ultra-respectable line. There must be no executions without trial otherwise the world would say we were afraid to try them. I pointed out the difﬁculties in International Law but he replied [that] if there were no trials there must be no death-sentences, only life-long conﬁnements.’ About this remarkably legalistic approach by the Soviet dictator, the record leaves no room for doubt. v v v His own bloodlust aroused, Britain’s lord chancellor did not readily abandon his case for judicial murder, and as Churchill departed for the Crimea conference at Yalta on January , , Lord Simon again submitted to him a memorandum on the ‘Punishment of Hitler and his Chief Associates’. ‘I am still of opinion,’ he wrote in this docu- ment, ‘that the best course of the Allies would be to treat the punish- ment of Hitler, Mussolini and their principal colleagues and associ- ates as a political matter and not to have recourse to judicial forms.’ ‘I have gathered,’ he however continued, ‘that Marshal Stalin did not agree but preferred the method of trial – no doubt on the Soviet model,’ he added sardonically. In the United States, there had also been more discussion on what to do with the defeated enemy. Herbert Wechsler, the assistant attor- ney-general, had drawn up a secret memorandum at the end of  commenting on the war department’s latest proposal that the Nazi leaders be tried for ‘conspiracy to achieve domination of other coun-  N UREMBERG , THE L AST B ATTLE tries’ – a crime of which nobody, he evidently felt, could ever accuse the United States leadership. The Supreme Headquar ters, Allied Expeditionar y Force (S.H.A.E.F.), which was General Eisenhower’s headquarters, was con- sulted. Its views were formulated in a report by the Psychological Warfare Division and discussed in Washington on January , . This document proposed to differentiate between the German people and the members of the government, high command and Nazi party. Something unappetising was evidently planned for the latter along the lines of the Morgenthau Plan, because the secretary of the navy, James V. Forrestal, at once objected. ‘The American people,’ he wrote, ‘would not support mass murder of the Germans, their enslavement, or the industrial devastation of the country.’ Henry Stimson vigorously agreed with him. Morgenthau continued to canvass vigorously for his Plan. He se- cured permission from the new secretary of state, Edward Stettinius, to address the senior department’s senior ofﬁcers on January , ; he told them of his dismay at the namby-pamby provisions of the joint chiefs of staff directive  for the treatment of the Germans. After further discussion between Francis Biddle, Stimson, Forrestal, and Stettinius, respectively the heads of the departments of justice, war, navy, and state, they initialed a plan six days later for submission to Roosevelt outlining their very different concept, which envisaged the full-scale trial of the major enemy war criminals before military tribu- nals. They reminded the president that putting these men to death without trial would violate ‘the most fundamental principles of justice common to all the United Nations.’ They suggested that Roosevelt carry this document to Yalta for discussion with the British and Rus- sians. Arriving at Yalta without any of these men, and without even Morgenthau this time, President Roosevelt largely ignored their rec- For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  ommendations. Conferring with Marshal Stalin in private at the Livadia Palace on February , , he confessed, according to the transcript once more made by interpreter Charles Bohlen, that he was more bloodthirsty now than a year earlier, and that ‘he hoped Marshal Sta- lin would again propose a toast to the execution of , ofﬁcers of the German Army.’ Five days later, Churchill echoed similar thoughts at their plenary session, on February , , raising the issue of war criminals, and again proposing a form of legalised lynching. According to the Ameri- can Admiral William D. Leahy’s diary the prime minister ‘expressed an opinion that the “Great War Criminals” should be executed with- out formal individual trials.’ The transcript taken by James Byrnes shows, in rather more detail, that Churchill mentioned that the cur- rent proposal was to send the lesser criminals to ‘the place where their crime was committed,’ where they would be put on trial by the people living there. ‘I want to call attention,’ Churchill had then said how- ever, according to Byrnes’ note, ‘to the grand criminals whose crimes have no particular geographic location.’ He himself felt that the Big Three should draw up a list of these major criminals. ‘Personally,’ he added, still hankering after the plan that he had offered in October in Moscow, ‘I was inclined to think they should be shot as soon as they were caught and their identity established.’ For a moment Stalin prevaricated, asking about Rudolf Hess, who was still in British hands. Churchill offered the laconic response that Hess would eventually ‘catch up’ with the others being returned to Germany. He pressed his earlier point: was it still Marshal Stalin’s view that ‘grand criminals’ should be tried before being shot; in other words, did Stalin still believe the shooting should be ‘a judicial rather than a political act’? Stalin replied ‘that that was so.’  N UREMBERG , THE L AST B ATTLE According to the American transcript, he then asked, evidently mind- ful of the international conventions on the treatment of prisoners-of- war: ‘Would the prisoner-of-war come under the category of war crimi- nal? So far,’ he reminded Churchill, ‘there has been general opinion that a prisoner-of-war could not be shot without trial.’ THE PRIME MINISTER: A prisoner-of-war who has committed crimes against the laws of war can be shot.* Otherwise, they would only have to surren- der. I gather, however, that the Marshal thought that before they could be put to death they ought to have a trial. THE PRESIDENT: I do not want it too judicial. I want to keep the newspa- per men and the newspaper photographers out until it is ﬁnished. The American’s note on his president’s words was overly discreet. The British transcript of Roosevelt’s language at this point reads: ‘He wanted to keep out newspapers and photographers until the criminals were dead.’ v v v The position of Rudolf Hess was complicated by many factors. Ever since his dramatic arrival in Scotland on the night of May ,  as Hitler’s deputy and titular head of the Nazi party, parachuting out of a Messerschmitt  ﬁghter plane, wearing the uniform of a Luftwaffe lieutenant and demanding to see His Majesty the King, he had been held as Churchill’s personal prisoner, ﬁrst in the Tower of London and then in various secret service safe-houses. Twice members of Churchill’s Cabinet – Lords Simon and Beaverbrook – had been to see Hess. The verbatim transcripts of their talks in  reveal Hess as a dedicated, upright ex-aviator of World War One who was haunted by nightmare visions of the all-out bomb- ing war against civilians that seemed to be in prospect if the madness For source notes go to ( + N) page  et seq. N UREMBERG , THE L AST B ATTLE  could not be halted immediately. He had come on a peace mission, as he wrote in a letter addressed to the King, adding that Germany had no demands to make of Britain or her Empire. But, once he was being held in solitary conﬁnement, the Hess story took a tragic twist. Recognising that his mission had failed he had developed all the rag- ing symptoms of a latent paranoid schizophrenia. Under the terms of the Geneva Convention he should have been repatriated along with hundreds of other disabled prisoners-of-war. On Churchill’s instruc- tions however the foreign ofﬁce had fobbed off all the inquiries of the Swiss legation, as the protecting power, and Hess had been detained as a possibly useful pawn in the international power-game. He was held in a series of fortiﬁed mansions, where his rooms were bugged with hidden microphones that recorded every word. He tried suicide twice – by plunging headlong from a second-ﬂoor balcony, and by thrusting a knife into his chest. Each time he failed. He had been left to vegetate, a matter of interest only for the doctors a

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