Crowe, David M. (Hrsg.): Stalin's Soviet Justice. ‘Show’ Trials, War Crimes Trials, and Nuremberg. London  2019. ISBN 978-1-350-08334-9

: Le Moment Nuremberg. Le procès international, les lawyers et la question raciale. Paris  2019. ISBN 978-2-7246-2420-5

: Frankreich und der Nürnberger Prozess gegen die Hauptkriegsverbrecher 1945/46 Berlin  2019. ISBN 978-3-631-76190-8

: Soviet Judgment at Nuremberg. A New History of the International Military Tribunal after World War II. Oxford  2020. ISBN 978-0-19-937793-0

KZ-Gedenkstätte Neuengamme; Beßmann, Alyn; Möller, Reimer (Hrsg.): Alliierte Prozesse und NS-Verbrechen Bremen  2020. ISBN 978-3-8378-4059-9

Rezensiert für H-Soz-Kult von
Kim Christian Priemel, Department of Archaeology, Conservation and History, University of Oslo

Forty years have passed since Bradley Smith published his two path-breaking volumes on the first Nuremberg trial, the International Military Tribunal (IMT). The first, Reaching Judgment at Nuremberg (1979) was primarily devoted to the discussions among the members of the bench, their disputes, and their compromises. The follow-up, The Road to Nuremberg (1981) was a prequel, tracing the Allied decision-making process which led to the four-power tribunal. Both books portrayed prominent figures on the IMT stage while also introducing important protagonists behind the scenes; they explained key concepts and admirably combined legal historical insights with those of more traditionally understood political history.[1] That Smith was aware of the limitations of his own work was acknowledged by the title to his companion volume, a collection of archival documents: The American Road to Nuremberg.[2] Painstaking though his research was, it drew nearly entirely on US sources, with the odd document from the UK’s Public Record Office. French, Soviet, German, and other materials were entirely missing, resulting in the strongly American inflection his narratives showed. Even more problematic, perhaps, but often overlooked was the glaring gap between the books: while there were an overture and a final chapter, the main story, i.e. the trial, figured only marginally.

Yet the strength of Smith’s work meant that it would remain the benchmark for decades to come, reflecting a widespread, though unsubstantiated feeling that „Nuremberg“ had been exhaustively researched. That was to change only in the late 1990s when a small number of innovative books re-energized research on the IMT but also on the history of post-war trials and international criminal law more generally. Arieh Kochavi’s 1998 Prelude to Nuremberg highlighted the significance of actors outside Washington, especially in the United Nations War Crimes Commission. Donald Bloxham’s 2001 Genocide on Trial did not only give the British side a much higher profile, it also asked new questions about the trials’ relation to Holocaust historiography and memory politics, an interest it shared with Lawrence Douglas’s Memory of Judgment (2001). The trio’s work, helped by the general interest in international tribunals at the time, reconfigured “Nuremberg” as an academic field which has not only grown massively but has been branching out in all directions ever since.[3]

A spate of recent publications, though, suggests that some gaps may have been closed for good. On the one hand, this concerns the integration of “Nuremberg” into much longer legal-historical developments[4], on the other the multilateral quality of war crimes policies after 1945. It is the latter that the present review article focusses on, and the five reviewed publications go a long way towards supplementing our understanding of the IMT in particular and Allied trials in general. While Francine Hirsch’s monograph and David Crowe’s edited volume deal with the Soviet contribution to and perspective on the IMT, Mathias Gemaehlich’s PhD thesis does the same for the French. Guillaume Mouralis revisits the American case, and a collection edited by Alyn Beßmann und Reimer Möller explores trials in the British zone of occupation. That all of these share some ground and, indeed, often overlap with other recent publications underlines how much has happened since Smith’s books.[5]

The three monographs differ markedly in terms of scope, theoretical basis, and methodology. Mouralis draws extensively on Bourdieuan categories of field analysis and elite formation, particularly in the strong prosopographic section of his book. This is reflected in the three major aspects he is interested in: first, he identifies a strong contingent of Ivy League, Wall Street, and New Deal “elite lawyers” in the American prosecution. Often schooled in the tradition of Legal Realism, these brought a combination of idealism and pragmatism first to London, then to Nuremberg, and were crucial in establishing US dominance. Second, Mouralis points us to the key role played by outsider figures in innovating the tribunal’s charter and the indictment. Introducing new concepts and throwing overboard old ones if they stood in the way of effective justice, we re-encounter Smith’s original discoveries, Murray Bernays and William Chanler, as well as Raphael Lemkin. Mouralis shows that it was the ability to shift between “inventive” and “creative” tactics which made the former two so crucial whereas Lemkin’s influence suffered from his insistence on his own textbook definition. Bernays appreciated the implications the notion of crimes against humanity might have in the segregated United States and thus went for a “moyen astucieux de punir les responsables d’atrocités raciales sans créer une nouvelle catégorie universalisable” (p. 117). Third, Mouralis looks into the afterlife of Nuremberg, asking how its legacy was defined and to what uses it was put. His finding that activists in the streets were more likely to invoke Nuremberg than civil rights lawyers, points to the formal strictures of law: as an international trial explicitly linked to Nazi Germany’s crimes there was little to be gained by inferring the IMT precedent in domestic courts of law. In political debate, meanwhile, former Nuremberg exponents were now found arguing against the trial’s relevance when it came to their respective governments’ policies.

It is this tension between the legal – procedural and substantive – innovation and the demands of realpolitik that Mouralis’s book is after, and in the continuous trade-off, Bourdieu’s varieties of capital commanded by lawyers play a key role. Whether or not all his findings – Robert Jackson’s reticence in Brown v. Board of Education is explained with his socialisation as a small-town lawyer who “retrouvait dans le Sud, sans bien le connaitre, l’entre-soi social, ethnique et culturel des propriétaires terriens et des notables ruraux de Jamestown” (p. 151) – will be vindicated by ongoing biographical research remains to be seen. But his incisive analysis of the IMT’s hybrid organisation and institutionalized syncretism provides a helpful lens if we are to make sense of the four-power tribunal’s apparent contradictions.

Here, the studies by Gemaehlich and Hirsch come in, as they go a long way towards explaining the IMT’s ambiguities and fault lines by adding further complexity to the picture. Both are driven primarily by the motivation to supplement, at times to counter US-centric narratives. They set out to show not only that the other delegations’ contribution was not as marginal as the older literature might imply but that the IMT cannot be properly understood without appreciating their roles. Legal concepts such as conspiracy and crimes against peace were not tailored in the Pentagon or in Whitehall but in a dense exchange with and between European jurists (and indeed those beyond the North Atlantic highway, but these do not figure in the books under review). Decisions at the London conference and during the proceedings were diplomatic tightrope acts in which different legal traditions had to be reconciled just as much as varying political interests.

Accordingly, Gemaehlich and Hirsch aim at a degree of comprehensiveness that is rather unlike Mouralis’s more focused approach. Both tell the complete story from the road to Nuremberg to its epilogues, but they do so predominantly through the lenses of French and Soviet sources. Inevitably, many of the events are familiar (it is noteworthy that both authors confirm Smith’s account of the judges’ deliberations and indeed largely rely on the same sources), yet they are told with a different, intriguingly fresh and at times productively irritating twist. It is as if we were seeing the same film twice, or indeed three times, but in different cuts in which those who star in one version become supporting actors in another, and vice versa.

This is particularly true for Hirsch’s perceptive and highly entertaining narrative which, apart from filling gaps in the existing plot, provides a rewrite of the IMT story. Even if we correct for a certain methodological bias that may result from relying mostly on Soviet (and partly American) sources, there is hardly any doubt that the proceedings were decisively co-shaped by the Soviet delegation, though not always as planned. While avoiding embarrassments such as the Ribbentrop-Molotov Pact was fairly impossible, the “bold and potentially reckless move” (Hirsch, p. 86) of adding the Katyń massacre to the list of German atrocities made everyone’s job (except the defence’s) much more difficult. So did the fact that the Soviet delegation could make few meaningful decisions without first consulting Moscow where a shadow committee tried to script the proceedings as a Soviet-style show trial. At the end the reader is left wondering what was more striking: the structural inability of Stalinist rule to accommodate a fair trial in an international court of law while collaborating and competing with Allies who had greater resources and more leeway in their function as lawyers, but also as diplomats – or the willingness to compromise and go along in order to preserve the integrity of the trial and, by implication, the political legitimacy of the Soviet Union as one of its pillars.

Both books are empirical treasure troves: there is abundant information on the personnel – from prosecutors to interpreters and from judges to journalists –, illustrating intriguing differences to the US case. The French delegation, Gemaehlich shows, drew on a set of lawyers with a double background in state offices and the anti-Vichy forces. The Soviet team was made up of veterans from various show trials in the 1930s, but also included important academics such as Aron Trainin. The international face of Soviet law, Trainin features prominently in several contribution’s to Crowe’s volume too – in particular those by Valentyna Polunina and the chapter jointly authored by Crowe and Irina Schulmeister-André. His combination of academic respectability with direct access to and protection from the Kremlin, notably Andrei Vyshinsky, made him a key hinge between the western and the eastern allies. Trainin’s imprint on the IMT meant that the Soviet government could legitimately claim authorship while his reputation as well as his personal affability helped bridge political chasms. Crowe and Schulmeister-André find that this spilled over to the Soviet delegation which, though stubborn when Moscow did not allow more room for manoeuvre, was largely “consensus-oriented” (Crowe, p. 161).

The French and Soviet delegation also added something to the trial that neither the British nor the American team had to offer in the same way: the immediacy of pain, cruelty, and loss experienced under German occupation. Their presentations on deportations and forced labour, on mass murder and extermination were among the most harrowing during the year-long trial. And “the strength and humanity of [the] witnesses” (Hirsch, p. 417) which they called to the stand was decisive in making the enormity of atrocities and genocidal crimes understandable. Hirsch and Gemaehlich agree that, despite palpable efforts to merge Jewish victims into larger national communities of suffering, both delegations presented unequivocal evidence of the Holocaust.

With both in excess of 500 pages, the two monographs are not for those who want a quick overview of the IMT. Yet, while existing research might have been used more extensively in order to economise, it is precisely the massive amount of detail they offer and the staggering complexity in terms of structures, personnel, and dynamics which they portray that render a great service to future researchers. At times, though, the love of detail and the ambition of exhaustiveness get the better of the authors, as in Hirsch’s account of the murder of a Soviet driver which does not add much to her argument, or when Gemaehlich goes into the French prosecution’s breakfast routines. It is not entirely clear how this, but also several other sections, helps to solve the puzzle with which Gemaehlich starts: the curiously low profile the French contribution to the IMT long enjoyed in France.

The volume edited by Crowe covers much of the same ground as Hirsch’s book (and features a contribution from her pen), yet manages to add further information as well as integrate Nuremberg in broader contexts. The editor’s own chapter places Nuremberg in a longer tradition of show trials: from the highly publicized proceedings against the (would-be) assassins of Russia’s tsars to the 1922 case of the Socialist Revolutionaries, and eventually to the notorious Moscow trials of the 1930s. This raises important questions as to their comparability as well as to possible learning curves which future research will have to address. Two chapters by Thomas Earl Porter and the late Alexander Prusin stress the significance of the Great Patriotic War as the “second […] foundational myth” (Crowe, p. 92) of Soviet statehood and the role domestic and international trials played in affirming this narrative. Repression and reintegration went hand in hand, and the official reading fused “ideological objectives and popular desires to place the blame on selected individuals, partially exonerating the population from its compliant conduct under occupation” (Crowe, p. 88). A very similar conclusion is drawn by Sabina Ferhadbegović with an eye to transitional trials in Tito’s Yugoslavia. In her contribution to the Beßmann-Möller volume, she shows how judicial trials served a dual purpose of punishing Ustaše perpetrators while legitimizing the new regime precisely by offering the Croat population an acceptable narrative of excess perpetrators, yet at the cost of marginalizing the murders of Roma and Jews.

Several chapters in Crowe’s collection feature familiar Nuremberg protagonists, with regular appearances made by Vyshinsky and Trainin. Douglas Irvin-Erickson’s chapter argues that a long-standing academic feud between the two Soviet jurists and Lemkin helped undermine the Polish lawyer’s comprehensive concept of genocide. In Jeremy Hicks’s chapter, readers meet the journalists and caricaturists dispatched to Nuremberg, not only the (translated) stars such as Ilya Ehrenburg but also the less-known, yet influential figures of the cartoon-collective Kukryniksys or writers Vsevolod Vishnevsky and Nikolai Zhukov. Hicks shows that, while tightly regimented and (self-)censored, Soviet coverage was not entirely uniform with some observers sticking to “the established hyperbolic depictions” (Crowe, p. 201) of wartime propaganda while others sought to show “moral corruption in a subtler, realist manner” (ibid., p. 202).

Ironically, the above publications render our knowledge of the French and Soviet cases possibly more systematic and comprehensive than that of the American but certainly of the British case. That this is not for a lack of sources is aptly illustrated by the volume jointly edited by Beßmann and Möller. Despite a handful of studies of trials outside British jurisdiction, most of the chapters have a clear focus on the UK war crimes trial programme. This focus brings to light proceedings which even to experts will be mostly unknown, including the so-called Rühen Baby Case. Marcel Büntrup’s investigation of how newborn children were taken away from their Eastern European mothers who were forced to work at the Volkswagen plant, only to die of deliberate neglect, does not only make for devastating reading; it also puts historians on guard who considered such knowledge to be available only from the 1980s onward. If the intensely local dimension of these trials is one of the valuable insights to take away from the volume, another is the stress on victims’ own contribution to legal retribution, as illustrated by Susan Hogervorst’s article. Several chapters also tie in directly with Nuremberg: Alfons Adams elaborates how the Czech government-in-exile, a key player in the allied discussion circles, developed its policy for domestic post-war trials in this peculiar environment. And Reimer Möller’s two chapters point to the overlap between Nuremberg’s defence counsel and the attorneys (and indeed their arguments) who appeared in other post-1945 cases.

Thus, while there are still questions to be asked and gaps to be filled for those who want to mine the rich sources of Nuremberg and its adjoining spaces, the next step would seem to be to integrate the various findings with each other and make use of the rich data and astute observations recent publications so amply provide. There is now a much improved basis from which to start a comprehensive, perhaps even complete history at least of the first Nuremberg trial. For that historians are indebted to the authors.

Notes:
[1] Bradley F. Smith, Reaching Judgment at Nuremberg, London 1977; Bradley F. Smith, The Road to Nuremberg, New York 1981.
[2] Bradley F. Smith (ed.), The American Road to Nuremberg. The Documentary Record 1944–1945, Stanford 1982.
[3] Arieh J. Kochavi, Prelude to Nuremberg. Allied War Crimes Policy and the Question of Punishment, Chapel Hill 1998; Donald Bloxham, Genocide on Trial. War Crimes Trials and the Formation of Holocaust History and Memory, Oxford 2001; Lawrence Douglas, The Memory of Judgment. Making Law and History in the Trials of the Holocaust, New Haven 2001.
[4] E.g. Kerstin von Lingen, „Crimes against Humanity“. Eine Ideengeschichte der Zivilisierung von Kriegsgewalt 1864–1945, Paderborn 2018; Mark Lewis, The Birth of the New Justice. The Internationalization of Crime and Punishment, 1919–1950, Oxford 2014; Daniel M. Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen in der internationalen fachwissenschaftlichen Debatte 1872–1945, Paderborn 2010.
[5] On the Soviet dimension of the IMT see Irina Schulmeister-André, Internationale Strafgerichtsbarkeit unter sowjetischem Einfluss. Der Beitrag der UdSSR zum Nürnberger Hauptkriegsverbrecherprozess, Berlin 2016; for the French: Antonin Tisseron, La France et le procès de Nuremberg. Inventer le droit international, Paris 2014; on American goals and strategies: Kirsten Sellars, ‘Crimes against Peace’ and International Law, Cambridge 2013; for research on British trials see, e.g., John Cramer, Belsen Trial 1945. Der Lüneburger Prozess gegen Wachpersonal der Konzentrationslager Auschwitz und Bergen-Belsen, Göttingen 2011, and Margaretha F. Vordermayer, Justice for the Enemy? Die Verteidigung deutscher Kriegsverbrecher durch britische Offiziere in Militärgerichtsprozessen nach dem Zweiten Weltkrieg (1945–1949), Baden-Baden 2019. On the defence counsel at Nuremberg, there is now the thorough study by Hubert Seliger, Politische Anwälte? Die Verteidiger der Nürnberger Prozesse, Baden-Baden 2016.

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23.09.2020
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