Nuremberg: The Fall Of The Supermen

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When we came to consider it in chambers, General Nikitchenko threw all his weight behind the Soviet prosecutor. It was obvious that he attached great importance to our decision. I do not think that many things were expected of him by his superiors in Moscow, but there can be little doubt that they were eager to have the Tribunal brand the Germans as the perpetrators of those systematic and sordid killings.

We had permitted the Russians to introduce the hearsay evidence of their own self-serving report, and to support it with eyewitness testimony. The rest of us could not see why we should not allow the Germans direct evidence in their defense. The Soviet general’s argument —and he spoke with conviction for a solid hour—was based on a phrase in the Charter which provided that the Tribunal need not require proof of facts of common knowledge, and that it might take judicial notice of official government documents for the investigation of war crimes. Under this wording the Russian report was obviously admissible. But the phrasing of the Charter was in this case unfortunate; it coupled “facts of common knowledge” with “government documents,” and in the Russian translation the two phrases might have interlocked.

Since government documents had been given special treatment, the Russian member argued, and recognized for what they were—statements of the true facts—how could their contents and conclusions be denied? We had no right to disregard the Tribunal’s Charter, to flaunt its provisions.

For a time it seemed possible that Nikitchcnko would withdraw from the Tribunal. And yet I thought he would not; he was too far committed, and such an action would appear an admission of guilt. But whether he bolted or not, we must let the defense call its witnesses, who, on behalf of the International Medical Commission formed by the Germans, had examined the corpses on April 29 and 30, 1943, two weeks after the discovery of the bodies of four thousand Polish officers, in uniform, in some cases shackled, with pistol bullets in the back of the neck. (The rest of the victims were never accounted for.)

We announced our decision the next morning. The Russian prosecutor immediately filed a petition for a rehearing of the question. During the entire trial, it was the only petition for reargument we received. Its language was somewhat intemperate: the court, Rudenko claimed, had misconstrued the Charter, violating its duty, and was grossly in error. The petition followed Nikitchenko’s argument and indicated his co-operation.

The occasion warranted action. At our conference the next afternoon I asked my confreres to permit me to speak on a matter of the most vital importance to all of us, in that it concerned the integrity of the members of the Tribunal, their honor, and their competence.

The brethren were by now giving me their attention.

One of the prosecutors—I looked at General Nikitchenko—had filed a slanderous, arrogant, and unwarranted attack on the Tribunal, a body that would go down in history as the most important court in the world. I did not know what the practice would be in other countries. In mine the author of such an outrage would be cited for contempt. Perhaps in this very extreme case we should send him to prison immediately—there could be no defense.

“What do you think, General? Have you read General Rudenko’s petition? What do you propose should be done?”

General Nikitchenko was taken off base. Hc mumbled that he had read the petition, but rather hurriedly. He had nothing to propose. The French were amused—they guessed what I was up to. The British were surprised- they had not been consulted.

I produced an opinion, drafted with a good deal of care the night before. With permission of the members I would read it. It could be read in open court immediately before General Rudenko was arrested.

I read the opinion. It denied the contention that government reports should be accepted as “irrefutable evidence of the facts found"—a contention “unsupported by the Charter and intrinsically unreasonable in itself.” The Soviet prosecutor was in gross error in his construction of the Charter.

After a good deal of discussion, it was agreed—with the Soviet member’s dissent, which called the opinion “flagrantly” in violation of the Charter—that the opinion should be filed but not made public. The presiding judge would simply announce in court that the petition had been dismissed. Nikitchenko no longer argued that German witnesses should not be called. His whole energy was directed to keeping the opinion of his three fellow judges from the press. He took seriously my suggestion that Rudenko be held in contempt; and as part of the “compromise” it was understood that no such action should be taken. He was pleased with the result. Two hours after we had adjourned, I got a pleasant note from him indicating that we understood each other—would I visit his country after the trial? He evidently had grasped the purpose of my tactic after he had had time to think.