Authors: Rebecca West
After some pages which portray Funk as a martyr in the hands of the heathen, and the men in the dock as his fellow martyrs who wondered how the heathen, heathen though they were, could be so excessively heathen, Fritzsche went on to describe the evidence given at the trial of a man named Puhl, who had been concerned with these SS deposits, by an official of the Frankfurt branch of the Reichsbank. This witness asserted that at the time of the city’s occupation by American troops the strong-room and all the safes of the bank had been completely empty, and that he had handed it over in that state to the occupation authorities.
The witness was then questioned about the film which, according to Mr. Dodd’s statement, had been made immediately after the occupation of Frankfurt. To this he answered that he knew all about it, because he had been personally present during its production. A few days after the occupation some U.S. lorries had pulled up at the door of the branch and the manager requested to hand over Reichsbank bags which were then filled with gold teeth, jewellery, etc., taken from the lorries and put in the empty safes. After these safes had been filled cameramen appeared and made a film of their contents.
There the chapter ended. The statement was so stark that it was hard not to believe the suggestion that the Americans faked the film in order to bring a false charge against Funk. If it were a lie, it was such a huge, naked, projecting lie that surely nobody would have the impudence to tell it.
But it was a lie. Or rather the story was true as far as it goes, but it did not go far enough. Simply it omitted to explain that the objects in the lorries had been found in the Merkers salt mines by American troops, with indications that they had been deposited by the Frankfurt branch of the Reichsbank; that they were returned to the vaults whence they had come, which was natural enough, as it was very necessary to put them somewhere under lock and key; and that they were then photographed as a matter of routine.
The whole story was based on a single slip made by Mr. Dodd. In alluding to this film he spoke of “materials that were found in your Reichsbank vaults a year ago.” He either meant to say “photographed” instead of “found,” or suffered a confusion which was purely momentary. For he did not dispute the statement given in evidence by Puhl, “I had the impression that the things of which we are talking had been put there expressly for the purpose of taking the film,” although he interrupted to correct various other statements made about the film. There was, of course, an initial improbability in the story which should have discredited its starkness; it is unlikely that the Americans would have allowed Germans to be present while they faked a film. It was also incomprehensible why they should have faked a film about these deposits when they had two directors of the Reichsbank and two of its officials to give lengthy and detailed testimony regarding them, and when there was a large amount of documentary evidence. This last was extremely voluminous, owing to the circumstances of the case. The SS account was lodged in the name of an imaginary depositor called Max Heiliger, and there were seventy-seven deliveries of the bloodstained loot. The jewellery was sent by the Reichsbank to the Berlin Pawn Shop, and the gold and dentures and spectacle frames went to the State Mint to be melted down. Later the Pawn Shop and the State Mint were glutted and could not handle any more stuff, so the goods were not unpacked when they arrived at the Reichsbank but were stored as they had been sent. All this involved a mass of correspondence, which was found by the Allies. There was therefore no need to bolster up the case against Funk by forging a film, particularly as it was not used as proof of any charge, but was simply shown to the witnesses in order that they should testify whether they recognised these goods as typical deposits made by the SS. From first to last Fritzsche’s story was simply a whiff of what Whitman called the stale cadaver, rising from the tomb of nazism.
It is disquieting to realize just how hard it is to ascertain that this story is a lie. The tiny proportion of the interested populations who were able to attend the trial are under no special advantage in detecting it. No memory would carry the minute details of which this lie is fabricated and which reveal it for what it is. It is impossible to consult the files of any newspaper for a full report, since there was none. Fritzsche complained self-righteously of the irresponsibility of the world press in giving so little space to the trial, “though it was of considerable political and international significance.” This was due to the shortage of newsprint. Anybody who now wants to learn the facts can, of course, obtain the transcript of the trial published by the Allied governments. This, as issued by Her Majesty’s Stationery Office, is in twenty-two parts and costs just under seven pounds. To follow any of the main issues of the trial, such as the case against the Service defendants, it is necessary to have all twenty-two parts under one’s hands; and even to check this Funk story three have to be consulted. The documents, which are about as bulky and costly, have been published in an incomplete and unsatisfactory form. Those put forward by the Soviet prosecution are not available; the documents put forward by the other Allied prosecutions have been left in their original language, though certainly the British and American prosecutors usually dealt with them in a translated form. Those who can afford to buy these publications will have to find eight feet of bookshelf for them.
It is indeed a pity that this material is not accessible to the general reader. Let us face it, these trials have set up a dozen itching abscesses of ignorance and hatred in the public mind. Some trials drew on the Allied tribunal’s suspicion of fascist sympathies which were sheer bunkum, by a process that was a threat to law itself. Certain German criminals were picked up by the invading armies, and the war correspondents sent home stories about them which were honest in intention but erred because they were written in haste. When those criminals were brought to trial there often turned out to be no legal proof that they were guilty of the graver among the charges first brought against them. There was usually good ground for suspecting that their guilt had been as black as that, but no evidence of the sort which our pernickety courts required; and we went to war to preserve just such pernicketiness. The criminals were then charged with the lesser offences which could be proved, and if their judges found them guilty they gave them appropriate sentences. Then the public, which had read the war correspondents’ stories but not the transcripts of the trials (because the newspapers had no space to print them), shrieked that the sentences were too lenient and the judges pro-Nazi. This did not further the ends of civilization. Other trials, again, were attacked by people belonging to some international caste, such as the bureaucracy, who thought they saw their interests threatened by an attempt to burden their German fellows with the guilt of an action for which their employer, the state, should have been held responsible. The trial of civil servants, known as the Ministries or the Wilhelmstrasse trial, at which a number of civil servants including Weizsäcker were charged, was much better than its critics pretend. Weizsäcker should not have initialled an order for the deportation of three hundred French Jews; and Puhl, the Reichsbank official who gave evidence in the Funk trial, put up a typical defence when he claimed that he was actually obliged to accept gold teeth wrenched from the jaws of corpses by their murderers by the Reichsbank law, which provided that the bank must effect all banking operations for the government “insofar as they are within its competence in accordance with the present law.” It was never part of the German law, even under the Nazis, that innocent persons should be murdered and their corpses mutilated.
Other trials were vaguely attacked by the inverted humanitarianism which pretends that everybody in a court of law is a foul criminal with the single exception of the man in the dock, who is so sinless that any evidence unfavourable to him must be perjured. As the lapse of time between the alleged crimes and the trial of the accused persons lengthened, more and more opportunities were offered to such humanitarians, for not the utmost judicial integrity can war against the staling of evidence. Two of the trials simply took off and left the earth, becoming phantasmagoric, chapters out of
The Mysteries of Udolpho,
not trials at all.
As for the great Nuremberg trial, the trial of Göring and the Nazi leaders, it is an ugly focus of infection. To discuss it with any knowledge of what actually happened during the case is as sure a way of earning unpopularity as to talk of American affairs in England with an understanding of the American Constitution; here the point at which the informed excite most irritability in the uninformed is the conviction of the Service defendants. The uninformed wished to believe that the Nazi generals and admirals were tried for obeying orders, such orders as might have been given by any Allied government to its generals and admirals, though this is not true in any single case. So fervently do the uninformed wish to believe this that the belief must serve a deep need; and in fact cynicism about the Nuremberg trial does for survivors of the Second World War just what cynicism about the Treaty of Versailles did for the survivors of the First World War. If in 1918 we were guilty of blockading Germany after the cessation of hostilities and giving it over to famine by greedy reparations, if in 1946 we were guilty of condemning the Nazi leaders on false charges, then we are no better than our enemies. If we are no better than our enemies, who, it is admitted, were vile, then it would be hypocrisy for us to go into war on a moral issue. This will not merely prevent us from waging an aggressive war, it makes it ridiculous for us to defend ourselves. What can it matter if the inhabitants of another country come over to rule over us, when they can be no worse than we are? This is a mechanism which will come into play whenever a victorious power engages in large international action after a war. It might be called a defence mechanism, but it can defend nobody against anything. Many English people resorted to it in the twenties and thirties, but Hitler declared war all the same.
But it would not matter what uses fatigue and timidity had made of the Nuremberg trial if the noble end contemplated by its promoters had been realized: if it had given a demonstration of the Rule of Law in all its beauty to a Germany which had seen its courts hopelessly degraded by the Nazi regime. But
The Sword in the Scales
shows that that hope was grievously disappointed. The procedure at Nuremberg did not impress Fritzsche and his fellow prisoners, it revolted them; and, indeed, it revolted many Germans who saw the trials or read the transcripts even when they were strongly anti-Nazi. This was due to a real national difference, not to be wiped out by an improvisation such as the Nuremberg trial. The procedure adopted by the tribunal was a compromise between the English and the American procedures, as the French and Russians claimed no concessions to their national practice. So the routine of examination-in-chief and cross-examination and re-examination was in force, and it might have been imagined that this machine, which we find works so well, would be recognized by everybody concerned as efficient and convenient and fair. But the chapter in which Fritzsche deals with the Nuremberg procedure, which is the most honest in the book, is entitled “A Duel with Handicap,” and he begins straight away with a protest against what he felt to be a shameful injustice.
It was only when a prisoner was in the witness box that he began to understand one of the strangest features of the trial—the evidence given on oath by the accused in his own defence. The tribunal had borrowed this curious practice from Anglo-Saxon law. In Germany it is customary for the judge to examine the accused, who is not admitted on oath and to whom the law imputes the right to, so to speak, lie in his own defence. Thus the accused is not bound to speak the truth save by the dictates of his conscience and the fear of appearing untrustworthy to the court. So far as the questioning of the prisoner is concerned, German advocates and public prosecutors can do no more than supplement the judge’s personal examination.
This may seem a naïve complaint against a beneficent provision of the English law, which seemed a victory for justice when it was put on the statute book fifty-five years ago. But in fact Fritzsche was expressing a resentment which would seem reasonable enough to his compatriots, all his compatriots, whatever their political complexion. Indeed, it would seem the more reasonable to them the less Nazi they were, for what the British-Americans took away are what are considered the basic rights of accused persons, and, as the Nazis took away these rights, anti-Nazi Germans felt hopeless confusion at seeing the Allies also disregard them. Though the German in the dock cannot give evidence on his own behalf, he is not asked to plead guilty or not guilty; and though he is questioned by the judge, who both examines him and cross-examines him, he is not put on oath. Moreover, he can refuse to answer all questions or any question, without needing to plead, as he would be obliged to do in a British court of law, that if he answered he would be forced to incriminate himself; and judges and lawyers and juries are very conscious that it is not the intention of the law that they should draw any conclusions from such refusals. They feel, it is said by those who should know, rather more strongly than English judges and lawyers and juries feel it, that they must not nourish suspicion concerning a witness who exercises his right to avoid self-incrimination. The German system can, in fact, put up quite a pretty argument that it is as fair to the accused person as the English and American system: it gives him a very good chance to get away with the ball if he can steal it. A German lawyer or journalist (however anti-Nazi) who went to Nuremberg and saw a fellow countryman under indictment being examined and cross-examined by counsel, under risk of prosecution for perjury if he lied, must have felt exactly the same sense of outrage that an English lawyer or journalist would feel if he attended an international tribunal and saw a fellow countryman prevented from giving evidence on his own behalf and being questioned, often with open hostility and incredulity, by the judge.