THE NUREMBERG TRIALS AND THE
OCCUPATION OF GERMANY
Donald Bloxham*
This paper was presented on the conference panel “Law and the
Construction of Memory: Trial as History.” Consequently it contains
nothing by way of reflection on the great significance of the Nuremberg
trials in the development of international law and the confrontation with
criminal regimes in the present day; it is concerned exclusively with the
impact of the courtroom proceedings and trial evidence on
consciousness and understanding of Nazism and its deeds. I have
written elsewhere on the role that the International Military Tribunal
(IMT) case and the subsequent Nuremberg proceedings played in
shaping and sometimes distorting historical understanding of Nazi
criminality in the long term, as well as their undoubted success in
establishing an invaluable base of documentary and oral evidence for
exploitation by later historians.1 Yet the “construction of memory” in
the short and medium terms was also a key aim of Robert Jackson’s
prosecution staff, the Office of the Chief of Counsel for the Prosecution
of Axis Criminality (OCCPAC), and Telford Taylor’s Office of the
Chief of Counsel for War Crimes (OCCWC) thereafter, and it is that
issue with which I am concerned here.
In the immediate post-war years, engineering a narrative of the
Nazi period was seen as essential in the process of re-making the
German body politic. Though trials were in part aimed at an
international audience, both in terms of the publics that had been
subjected to the demands of total war and of the many communities of
victims who wished for some redress, the chief immediate target was
the German populace. The Nuremberg and other trials, with their remit
to address crimes and the perpetrators of crimes, complemented the
occupation machinery put in place to confront—by “re-education”—the
influence of Nazi thought and to purge—by “de-nazification”—
* Donald Bloxham is a Professor of History at Edinburgh University. He is author of
GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE FORMATION OF HOLOCAUST HISTORY AND
MEMORY (2001) and THE GREAT GAME OF GENOCIDE: IMPERIALISM, NATIONALISM AND THE
DESTRUCTION OF THE OTTOMAN ARMENIANS (2005), and co-author of THE HOLOCAUST:
CRITICAL HISTORICAL APPROACHES (2005).
1 DONALD BLOXHAM, GENOCIDE ON TRIAL: WAR CRIMES TRIALS AND THE FORMATION OF
HOLOCAUST HISTORY AND MEMORY ch. 5 (2001).
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individuals particularly associated with the former regime. This essay
focuses upon the reactions of West Germans to the policies of the
western Allies.
Contrary to the assertions of a number of scholars,2 the picture that
emerges is of a society failing and refusing to confront the breadth and
depth of its culpability. However positively the German public as a
whole today views the Nuremberg trials, and however enthusiastic
many German lawyers today are for innovations such as the
International Criminal Court and genuinely universal jurisdiction for
war crimes and crimes against humanity, at the time it mattered most,
namely in the immediate aftermath of Nazi rule, both the medium and
the message of trial were decisively rejected by the west German
populace. The influence of generational change in the Federal Republic
of Germany—particularly the youth movements of the 1960’s which
brought with them a more open approach to “the crimes of the fathers,”
plus economic stability—are the key factors in understanding
Germany’s retrospective embracing of “Nuremberg,” not the beneficent
and re-educative impact of the trials themselves, as wishful advocates of
the integrative effects of trials at the Hague and Arusha would have us
believe. To understand why the Nuremberg trials failed in this key
sense, it is essential to understand the wider, changing socio-political
and geopolitical landscape of the early post-war years, particularly the
development of a revisionist German nationalism and the onset of the
Cold War, and also to address the psychological state of the German
people.
Even in their most intensive phase, at the time of the IMT
proceedings in 1945-46, Allied trial and occupation policies in western
Germany made no significant impact on German understanding of the
recent past, nor did they inculcate a sense of responsibility for it.
Scrutiny of German responses to the IMT trial and the wider
“Schuldfrage,” or “guilt question,” of the time suggest that such
attention as was given to those issues was shaped, on one hand, by the
desire for individual self-exculpation, and on the other, by the sense that
whatever Germany had inflicted was balanced if not exceeded by the
suffering inflicted on Germans by Allied area bombing campaigns, the
2 Michael R. Marrus, The Holocaust at Nuremberg, 26 YAD VASHEM STUD. 5, 6, 41 (1998);
JÜRGEN WILKE ET AL., HOLOCAUST UND NS-PROZESSE (1995); Jürgen Wilke, Ein früher Beginn
der “Vergangenheitsbewältigung”, FRANKFURTER ALLGEMEINE ZEITUNG, Nov. 15, 1995, at 14;
JEFFREY HERF, DIVIDED MEMORY: THE NAZI PAST IN THE TWO GERMANYS 206-08 (1997);
Wolfgang Benz, Nachkriegsgesellschaft und Nationalsozialismus, in 6 DACHAUER HEFTE:
ERINNERN ODER VERWEIGERN 12 (1990); see also ADALBERT RÜCKERL, NS-VERBRECHEN VOR
GERICHT: VERSUCH EINER VERGANGENHEITSBEWÄLTIGUNG 111-12 (1982); Peter Steinbach,
Zur Auseinandersetzung mit nationalsozialistischen Gewaltverbrechen in der Bundesrepublik
Deutschland, in 2 GESCHICHTE IN WISSENSCHAFT UND UNTERRICHT 65-66 (1984); GEOFFREY
ROBERTSON, CRIMES AGAINST HUMANITY: THE STRUGGLE FOR GLOBAL JUSTICE 202-03
(1999).
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OCCUPATION OF GERMANY
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mass rape of German women by Soviet forces in 1945, the legions of
German POW’s lost to Soviet prison camps, and the Ally-approved
forced expulsion into Germany of perhaps twelve million ethnic
Germans from eastern and central Europe beginning in 1944.3
Within the context of reaction to the occupation, one factor was
specific to the institution of trial: tedium. After the initial excitement at
the instance of legal proceedings in 1945, there was a significant ebbing
of interest,4 just as there was even among the judges on the International
Military Tribunal.5 The pattern of “boredom” and attention around the
IMT trial is in itself instructive, however, indicating more about the
perceived relevance of each component part of the proceedings as its
intrinsic interest value. Thus we only read of interest escalating again
when the twenty-two defendants made their own concluding addresses
to the court, the final act before judgment.6 The period of the attention
lapse encompassed much of the substance of the trials: the crossexaminations of the individual defendants, the “criminal organization”
hearings, and a good part of the presentation of the Soviet case, which
contained the most graphic and extensive evidence on crimes against
humanity. It is here that we encounter the interface between
“boredom,” as in a lack of interest, and a somewhat different quality,
namely a lack of concern. One group was certainly keen to monitor the
progress of the organization cases: the fate of most of the inmates of the
civilian internment camps hinged upon their outcome.7 The implication
is that most of the remainder of the population was divided, in whatever
ratio, between those who saw nothing of relevance in that part of the
trial and those who deafened themselves to it. The part of Jackson’s
opening speech in which he differentiated between Nazis and the mass
of Germans met with much enthusiasm, as did those closing statements
3 ROBERT G. MOELLER, WAR STORIES: THE SEARCH FOR A USABLE PAST IN THE FEDERAL
REPUBLIC OF GERMANY (2001); NORBERT FREI, VERGANGENHEITSPOLITIK: DIE ANFÄNGE DER
BUNDESREPUBLIK UND DIE NS-VERGANGENHEIT (1996); Neil Gregor, Is He Still Alive, or Long
Since Dead?: Loss, Absence and Remembrance in Nuremberg, 1945-1956, in 21 GERMAN
HISTORY 183 (2003); Michael L. Hughes, ‘Through No Fault of Our Own’: West Germans
Remember Their War Losses, in 18 GERMAN HISTORY 193 (2000).
4 PUBLIC OPINION IN OCCUPIED GERMANY: THE OMGUS SURVEYS, 1945-1949, at 121-22
(Anna J. Merritt & Richard L. Merritt eds., 1970) [hereinafter OMGUS SURVEYS]; Land
Nordrhein-Westphalia reaction report, July 1946, in Personal Papers of Sir Victor Gollancz (on
file with the Modern Records Centre, Warwick University, MSS.157/3/GE/1/17/6); File Report
2424A, Sept. 27, 1946 (on file with the Mass-Observation Archive, University of Sussex).
5 H. MONTGOMERY HYDE, NORMAN BIRKETT 518 (1964); CARL ROLLYSON, REBECCA
WEST: A SAGA OF THE CENTURY 212-15 (1995).
6 OMGUS SURVEYS, supra note 4, at 121-22. This revealed a particular decline from
February 1946 onward. OMGUS also recorded a diminution (within the general decline in
attention) in the numbers of people reading trial reports in their entirety. See id. at 34. For the
beginning of the decline, see Abroad: Penalties for War Crimes, N.Y. TIMES, Dec. 16, 1945, at
S2; War-Crimes Trial Dull to Germans, N.Y. TIMES, Jan. 2, 1946, at 6.
7 Control Council for Germany (British Element) Intelligence Division Review, Nov. 1946,
at 7 (on file with the Modern Records Centre, Warwick University, MSS.157/3/GE/1/4/1-21).
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of the individual defendants which defended the German people.
Indeed, there was a clamor for more substantial press coverage of the
latter.8 This interpretation of the evidence is corroborated by the
general absence of reaction to the verdicts on the organizations amidst a
hail of criticism about the IMT’s acquittals of high-ranking individuals.9
It was entirely understandable that many would think, as did a
columnist of the left-wing newspaper Telegraf in May 1946, that the
eyes of the world were on Germany’s reaction to the trial.10
“Appropriate” reactions were orchestrated in the Soviet zone at the
conclusion of the case, yet, consistent with Stalinist thinking, these
protests were specifically aimed at the acquitted former Minister of
Economics Hjalmar Schacht, former Vice-Chancellor Franz von Papen,
and former propagandist Hans Fritszche as aristocratic or bourgeois
enemies of the German people. That the same responses to the
acquittals should be demonstrated spontaneously in the west indicates
the extent to which Germans as a whole conceived of the prominent
Nazis as “other,” or at least wished to give this impression. Thus, no
matter how many criticized the IMT trial on grounds of legitimacy,11 at
the time, clear majorities always averred that their former leaders
deserved punishment.12 The same stimulus that provoked mass
demonstrations against the acquittals also induced an entire row of the
audience to abandon the most expensive seats in a Frankfurt cinema in
protest against the passage of Nürnberg und seine Lehren—a
documentary of the trial focusing on the individual convicts and
showing footage of the concentration camps.13 The events in the film
theater in turn bear a distinct resemblance to the response of Schacht
when the concentration camp film was actually shown to the IMT: he
“ostentatiously turned away” and sat “with his head held high in
defiance.”14 For all these actors, the registering of disgust was a public
expression of the perceived moral vacuum separating them from the
criminals.
The only real sympathy—and, arguably, the related sentiment of
8 War-Crimes Trial Dull to Germans, supra note 6, at 6; Land Nordrhein-Westphalia
Reaction Report, Sept. 1946, 6-7, 22-23, in Personal Papers of Sir Victor Gollancz (on file with
the Modern Records Centre, Warwick University, MSS.157/3/GE/1/17/6).
9 German Reactions to the Nuremberg sentences (on file with The National Archives,
London, FO 946/43) (discussing reactions in locations such as Hannover, Schleswig-Holstein,
Düsseldorf, the Ruhr, and Hamburg).
10 TELEGRAF, May 4, 1946.
11 Eugen Kogon & Walter Dirks, Nürnberg und die Geschichte, in 1 FRANKFURTER HEFTE 3,
3 (1946).
12 War-Crimes Trial Dull to Germans, supra note 6, at 6; Dana Adams Schmidt, German
Boards Face Test on Nazis, N.Y. TIMES, Nov. 10, 1946, at 103.
13 Wanda von Baeyer, Das Publikum im Film “Nürnberg und seine Lehren,” 4
FRANKFURTER HEFTE 360-61 (1949).
14 Raymond Daniel, War Crimes Court Sees Horror Films, N.Y. TIMES, Nov. 30, 1945, at 6.
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OCCUPATION OF GERMANY
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empathy—with any of the “major war criminals” concerned those
whom it was felt were not the highest initiators of Nazi policy. Hence
amidst the general satisfaction displayed by the contemporary German
public at the equity of the IMT proceedings and judgment, the most oftvoiced reservations concerned the fate of the service chiefs. Many did
not feel that a soldier or sailor, no matter how deeply complicit, should
share the sentence of the overtly political grouping that had
compromised him. Thus the frequently made contrast between the IMT
acquittals and the death sentences for General Alfred Jodl and Field
Marshal Wilhelm Keitel. On its most basic level, the principle of
differentiation suggested that a general should be executed by the bullet
rather than the rope.15 As we shall now see, in these early responses of
evasion of responsibility and identification with military servicemen lay
some of the seeds that would grow within a short while to full-blown
condemnation of the trials that so many Germans had recently accepted.
In the years following the IMT trial, western German attitudes
towards the ongoing Allied trial programs were increasingly shaped by
a revisionist German nationalism. German social and political elites,
resentful of the Allied occupation, sought to undermine its moral bases
and rehabilitate Germany’s name by, among other things, attacking war
crimes trials as morally and legally unjustified and playing ever more
heavily on the theme of German suffering. These groups were resentful
of the Allied occupation—particularly its attempts to re-educate the
masses and label many of the pillars of pre-war German society as
inherently flawed—and they sought to undermine its foundations. Thus
they tried to minimize the crimes that Germany had committed and to
compare these deeds with acts of the Allies. The occupation could then
be seen as the imposition of the victor’s will alone rather than a moral
necessity. Concomitantly in this worldview, the war crimes trials were
a vindictive, arbitrary act of the oppressors, and the fact that the Allies
had to stretch existing international law to cope with the unprecedented
brutality of the Third Reich was exploited to the full.16 Thus arose the
revisionist vocabulary, which was to gain popular currency in Germany,
of the “Kriegsschuldige” (“war-guilty”) and the “Kriegsverurteilten”
(“war-convicted”)
rather
than
of
the
“war
criminals”
15 A plea on the method of execution that was supported in the case of Jodl by the American
and French judges. Letter from the Control Council for Germany to the Control Office for
Germany and Austria, Oct. 10, 1946 (on file with The National Archives, London, FO 945/332);
see also German Reactions to the Nuremberg Sentences (on file with The National Archives,
London, FO 946/43) (discussing reactions in locations such as Hannover, Schleswig-Holstein,
Düsseldorf, the Ruhr, and Hamburg).
16 FRANK BUSCHER, THE U.S. WAR CRIMES TRIAL PROGRAM IN GERMANY, 1946-1955, at
92, 100-01, 109-10, 162-63 (1989); FREI, supra note 3; see also Alfred Streim, Saubere
Wehrmacht?, in VERNICHTUNGSKRIEG: VERBRECHEN DER WEHRMACHT 1941 BIS 1944, at 569,
575 (Hannes Heer & Klaus Naumann eds., 1995) (discussing some of the spurious tu quoque
arguments).
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(“Kriegsverbrecher”). And thus arose also the imperative finally to
discredit the trials by overturning the verdicts, or at the very least by
securing the freedom of the convicts by pressuring the Allies.
Effectively this was a move toward the “decriminalisation of the Nazi
perpetrators,”17 and it acquired the epithet the “Endlösung der
Kriegsverbrecherfrage”—the “final solution of the war criminals
question.”
The arguments and aims now were of a different nature to the early
popular excuses of ignorance and powerlessness, but they fed off their
precursors. The shrewdest move made by the elites was to link the two
strands in the identification of all war criminals—aside perhaps from
some of the “political” IMT convicts—with the ethic of service to the
state.18 Service, or “duty,” was equated at the time with obedience to
senior orders. As Lord Wright of the United Nations War Crimes
Commission observed, it was the unanimous rejection by the various
“war crimes” courts of this principle as a defense which underpinned
much of the objection to the trials.19 The best known and most emotive
instances of these rejections predictably occurred in the trials of highranking soldiers,20 and so it is not surprising to note that when in the
summer of 1946 a group of anti-Semitic students and faculty members
of the University of Erlangen launched an attack on the Nuremberg
trials, they threatened to form veterans associations to discourage “by
word and deed” slurs on officerhood.21 Six years later, the Institut für
Demoskopie enquired of Germans in the western zones which of the
following group they considered justly imprisoned, and which unjustly:
Field Marshal Albert Kesselring (who had been convicted by a British
court), Grand Admiral Karl Dönitz, Albert Speer, Rudolf Hess, and
Baldur von Schirach (all of whom had been convicted by the IMT).
The aggregate of respondents placed the men in that order, with the
greatest sympathy thus reserved for the two service chiefs.22 A
17 Heiner Lichtenstein, NS-Prozesse, in AUFBAU NACH DEM UNTERGANG: DEUTSCHJÜDISCHE GESCHICHTE NACH 1945, at 141, 144 (Andreas Nachama & Julius H. Schoeps eds.,
1992).
18 BUSCHER, supra note 16, at 126, 163.
19 Letter from Baron Robert Wright to Arthur Lehman Goodhart (Aug. 5, 1952), in Papers of
Arthur Lehman Goodhart (on file with the Bodleian Library, Oxford, MS. Eng. c. 2891, reel 21);
see also Peter Steinbach, Nationalsozialistische Gewaltverbrechen in der deutschen Öffentlichkeit
nach 1945, in VERGANGENHEITSBEWÄLTIGUNG DURCH STRAFVERFAHREN? NS-PROZESSE IN
DER BUNDESREPUBLIK DEUTSCHLAND 13, 17-18, 21 (Jürgen Weber & Peter Steinbach eds.,
1984).
20 For instance, for the reporting of the defense arguments of the soldiers and the High
Command and General Staff at Nuremberg, see CHRISTOF SCHNEIDER, NATIONALSOZIALISMUS
ALS THEMA IM PROGRAMM DES NORDWESTDEUTSCHEN RUNDFUNKS (1945-1958), at 165 (1999).
21 JAMES F. TENT, MISSION ON THE RHINE 92 (1982).
22 THE GERMANS: PUBLIC OPINION POLLS, 1947-1966, at 202 (Elisabeth Noelle, Erich Peter
Neumann, & Gerard Finan eds., 1981). Six percent of interviewees thought Kesselring was justly
imprisoned, sixty-five percent thought not. The corresponding figures for Hess were twenty-two
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reservoir of sympathy had been tapped into for Keitel and Jodl, and it
was exploited more and more heavily as the new rhetoric identified all
convicts with German soldiers, and increasingly regardless of their
crime or the organization to which they belonged.23
In combination, these contentions underpinned the policy towards
the Nazi past that was ultimately adopted by most West German
political parties. The revisionist line was much more palatable for the
majority of the population too,24 and as in the formation or re-formation
of all national communities, a mythologizing re-write of the past was
perhaps inevitable; Nazi genocide certainly could not fit any “optimistic
theory” about the present or future.25 Certainly by 1947 the general
impulse in West German society to “draw a final line” under the recent
past—or at least on the suffering that they had caused, if not that which
they felt as losers in the war—was in the ascendant.26 The flow of
published accounts of the concentration camps by victims also dried up
after 1947 and public discussion about that side of Nazi history was
silenced, paving the way for the new master narratives of silence or
obfuscation or emphasis on German victimhood, or indeed of continued
anti-Semitism.27 This was attributable to a number of factors including
growing assertiveness as the war distanced itself, mass discontent with
the ill-managed and inequitable “de-nazification” policies, and,
relatedly, disdain for the authorities as Allied infighting and difficulties
in the running of the country removed their “aura of moral
superiority.”28
By the second half of 1947, the second largest-selling newspaper in
the British zone, the Christian Democrat Westfalenpost, said of the
defendants in the Nuremberg “Doctor’s trial” that they were murderers
and “public torturers,” but that “doubtless the interest of the German
percent and forty-three percent. Id.
23 Bernd Boll, Wehrmacht vor Gericht: Kriegsverbrecherprozesse der Vier Mächte nach
1945, 24 GESCHICHTE UND GESELLSCHAFT 570, 592-93 (1998); FREI, supra note 3, at 268-96.
24 A survey of 1,000 letters sent to U.S. High Commissioner John McCloy in 1951 requesting
release of imprisoned war criminals was divided into three chief categories of argument: Christian
forgiveness/brotherhood; political contentions (including the influence of the war criminals issue
on German-American relations, the relevance of Soviet crimes against humanity, and the
justification of harsh German military measures in the face of “‘partisans”‘); and legal concerns.
See Ulrich Brochhagen, Vergangene Vergangenheitsbewältigung, 36 MITTELWEG 145, 149
(1992-93).
25 HERF, supra note 2, at 392.
26 FREI, supra note 3, at 14.
27 HELMUT PEITSCH, DEUTSCHLANDS GEDÄCHTNIS AN SEINE DUNKELSTE ZEIT (1990);
Frank Stern, The Historic Triangle, in WEST GERMANY UNDER CONSTRUCTION (Robert Moeller
ed., 1997); Constantin Goschler, The Attitude Towards Jews in Bavaria After the Second World
War, in WEST GERMANY UNDER CONSTRUCTION: POLITICS, SOCIETY AND CULTURE IN THE
ADENAUER ERA 231 (Robert G. Moeller ed., 1997).
28 Herbert Frey, The German Guilt Question After the Second World War: An Overview 229
(1979) (unpublished Ph.D. thesis, on file with the Cardozo Law Review); Benz, supra note 2, at
13.
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people in the trial would have been greater if an objective professional
German judge had sat on the bench.”29 By the end of 1949, on the
announcement of the eighteen-year prison term handed down by a
British court to the prominent Field Marshal Erich von Manstein,
August Haussleiter of the Bavarian section of the CDU reflected the
further development of popular understandings of “justice” and
victimhood. He suggested that such trials struck the public as
“witchcraft trials” (“Hexenprozesse”) if there was no possibility of
punishing under international jurisdiction crimes committed on the
invasion of Germany and during the expulsion of Germans from eastern
Europe.30 Manstein’s defense counsel, Paul Leverkühn, had earlier
asked rhetorically whether his client was to be “an offering on the altar
of the Soviet Union or Poland, reeking with the blood of millions of
Germans.”31 The discourse was shifted from the subject matter of the
war criminals cases to the legitimacy of the trials themselves: from the
actions of Germany to the actions of the Allies and, by extension, to
German victimhood. This explains why the later chancellor Konrad
Adenauer could come to campaign against the death sentences passed
against Einsatzgruppen leaders and members of the concentration camp
hierarchy, or why Martin Niemöller could petition on behalf of such
people as Erich Koch, the notorious Reichskommissar of the Ukraine:32
Koch and the Nazi executioners were fellow Germans to be saved rather
than criminals to be punished. This concerted assault on the very idea
of trial even succeeded in retrospectively influencing German opinion
on the IMT trial. In October 1950, the reactions analysis staff of the
U.S. High Commission encountered the greatest shift in German
societal attitudes ever recorded to that time. Only thirty-eight percent of
a sample of 2,000 people regarded the IMT trial as having been
conducted fairly, compared to the seventy-eight percent registered with
that view four years earlier.33
The German elites were gifted a potent lever against Allied trial
and re-education policy with the onset of the Cold War. The need to
placate these leading Germans, and with them broader national
29 German press review, Aug. 15-Sept. 15, 1947 (on file with The National Archives,
London, FO 1056/239).
30 See, e.g., FRANKFURTER ALLGEMEINE ZEITUNG, Dec. 21, 1949; FRANKFURTER
ALLGEMEINE ZEITUNG, Dec. 20, 1949.
31 Letter from Paul Leverkühn to Basil Liddell Hart (May 11, 1949), in Papers of George
Kennedy Allen Bell (on file with the Lambeth Palace library, London, 38/1, folios 246-48).
32 Letter from George Kennedy Allen Bell to Martin Niemöller (Jan. 2, 1950), in Papers of
George Kennedy Allen Bell, 49 (on file with the Lambeth Palace library, London, folio 273).
33 PUBLIC OPINION IN SEMISOVEREIGN GERMANY: THE HICOG SURVEYS, 1949-1955, at 101
(Anna J. Merritt & Richard L. Merritt eds., 1980). In August 1949, a cross-section of West
German university students—the potential leaders of that nation—refuted in the ratio of seven to
one the right of the Allies to judge war criminals. 2 GEORGE H. GALLUP, THE GALLUP POLL:
PUBLIC OPINION 1935-1971, at 842 (1972).
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sentiment, in the interests of German allegiance in the burgeoning
political conflict with the USSR, led first to a winding-down of the war
crimes trials programs in all western occupation zones in the context of
a general easing of occupation policy. Later it resulted in a series of
“sentence reviews” for convicted war criminals that by the early 1950’s
sought to “solve” the “war criminals question” by the simple expedient
of releasing them all. In this process, given the moves in the 1950’s to
re-arm western Germany, the Allies became particularly sensitive to
rhetoric about “wrongly” imprisoned soldiers.34
In the course of 1946-47, the Americans moderated their intentions
from “re-education” to “reorientation,” and substituted the more lenient
occupation statute “Joint Chiefs-of-Staff [JCS] 1779” for its
predecessor, JCS 1067. Whereas JCS 1067 stipulated that Germany
should be treated not as a liberated country but as an occupied territory,
JCS 1779 aspired to the re-establishment of a “stable and productive
Germany.” The U.S. military government was instructed to expedite
the swift completion of its war crimes trial program as the foreign
policy “realists” exerted their influence and the Truman doctrine was
enunciated.35 The titanic efforts of Telford Taylor and OCCWC in
continuing to the end of the 1940’s with what was in the eyes of
Congress and the British Parliament an increasingly controversial
attempt to give more substance to some of the principles established at
the IMT trial by the pursuit of “major war criminals of the second rank”
were substantially undermined by the collapse of American—and
British—legal machinery in the 1950’s, such that jails in the former
U.S. zone were emptied of war criminals by 1958—and in the erstwhile
British zone by 1957. (Those imprisoned in the IMT trial were held
under quadripartite authority in Spandau jail, and thus could not be
released because of the need for Soviet agreement.) Most telling of all
in the sorry tale of the failed re-education mission that was the
subsequent Nuremberg trial program is that the edited highlights of the
twelve trials, known after publication in Washington DC from 1949-53
as the fifteen “green volumes,” were never published in Germany.
In conclusion, in reaction to trials which were to become a
touchstone of the whole guilt question,36 the German public could either
identify themselves against war criminals or with them. In the first
34 BLOXHAM, supra note 1, at ch. 5; BUSCHER, supra note 16; Thomas Alan Schwartz, Die
Begnadigung deutscher Kriegsverbrecher: John J. McCloy und die Häftlinge von Landsberg, in
VIERTELJAHRESHEFTE FÜR ZEITGESCHICHTE 38, 375-414 (1990); PETER MAGUIRE, LAW AND
WAR: AN AMERICAN STORY (2000). On German rearmament, see DAVID CLAY LARGE,
GERMANS TO THE FRONT: WEST GERMAN REARMAMENT IN THE ADENAUER ERA (1996).
35 TENT, supra note 21, at 254-318; John H. Backer, From Morgenthau Plan to Marshall
Plan, in AMERICANS AS PROCONSULS: UNITED STATES MILITARY GOVERNMENT IN GERMANY
AND JAPAN, 1944-1952, at 155-58 (Robert Wolfe ed., 1984).
36 FREI, supra note 3, § 2.
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instance, the major war criminals could then be induced to bear the sins
of the whole. In the second, as with the growing rejection of Allied
authority, it was necessary to claim that there had been no sin, or at least
to “relativize” that sin. Over time, the latter trends became dominant in
western Germany. In an attempt to explain this process, Jeffrey Herf
has observed that in the early years of the Federal Republic of Germany
there was an inherent “tension between democracy on the one hand and
memory and justice on the other.”37 The accurate implication is that the
sensibilities of most Germans would not allow sustained judicial and
public investigation of the past. Yet the phrasing of Herf’s dichotomy is
not precise. While democracy and justice may have been opposed,
justice may not be directly equated with memory. Justice, as enacted
against the few at Nuremberg, did not correspond to disclosure to the
many in Germany as a whole, nor did criminal conviction transmute to
public consciousness.
37
HERF, supra note 2, at 202-03.