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- [00:00]
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- [00:43]
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- [01:11]
Holiday Movies Promoter
Tis the season to cozy up with all your favorite holiday movies and shows.
- [01:16]
Philippe Sands
You coming where to? The North Pole of course.
- [01:19]
Holiday Movies Promoter
Like a very Jonah's Christmas Movie and Home Alone on Disney.
- [01:22]
Philippe Sands
Did I burn down the joy? I don't think so.
- [01:25]
Holiday Movies Promoter
Then snuggle up with the Polar Express and National Lampoon's Christmas Vacation with Hulu on Disney plus.
- [01:31]
Philippe Sands
I think we're all in for a.
- [01:32]
Holiday Movies Promoter
Very big Christmas treat this season. There's something for everyone with Hulu on Disney plus bundle subscription required terms apply. Visit disneyplus.com hulu for details.
- [01:43]
Philippe Sands
Well I was down on my last dollar then I started saving cuz the bank said fiscal restraint is what you're craving. So I put my earnings in a high yield account, let the savings compound and the interest mount. I'm optimizing cash flow, putting debt in check now. Time is my friend and not a pain in the neck. And we've got a little cash to.
- [02:00]
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- [02:03]
Philippe Sands
Make kind of lame songs but they sound pretty sweet to your wallet.
- [02:08]
Disney Advertiser
Brilliantly boring since 1865.
- [02:16]
Philippe Sands
Welcome to the History Extra Podcast. Fascinating historical conversations from the makers of BBC History Magazine.
- [02:25]
Dave Musgrove
Hello and welcome to this four part History Extra Podcast series all about the Nuremberg Trials. 1945 1946. My name is Dave Musgrove and I am joined by Philippe Sands, writer and specialist in international law whose books include East west street and the Ratline and we are on episode two and in this second Episode, we're going to get into the trial itself and explore how shocking witness testimony changed public understanding of the Second World War. So, Philippe, what happened on the first day of the trial?
- [02:56]
Philippe Sands
Well, it was an extraordinary thing and in fact, if our listeners want to go it see for themselves, they can just go on YouTube and they can get a lot of the video. We could listen right now to one of the most significant and iconic opening moments when Robert Jackson speaks. Why don't we do that?
- [03:14]
Dave Musgrove
Let's do it.
- [03:15]
Robert Jackson (archival audio)
The chief prosecutor for the United States of America, the privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that power has ever paid to reason.
- [04:28]
Philippe Sands
Pretty powerful stuff, no?
- [04:30]
Dave Musgrove
Yeah. Wow.
- [04:31]
Philippe Sands
I mean, those are iconic words and they would have been drafted with great care in the knowledge that the prosecutor is not only addressing the judges and the defendants, but the whole world. And you can understand that that is what he's doing with those words. We are different from them. That's effectively what he's trying to say.
- [04:52]
Dave Musgrove
Stay the hand of vengeance, I think he says.
- [04:55]
Philippe Sands
Yeah, yeah, the hand of vengeance, which, as we discussed in the previous episode, Winston Churchill would have been more than delighted to give full reign and effect to.
- [05:04]
Dave Musgrove
Yeah. So those videos, you can, you know, anyone can watch them. They're like fascinating things to look at, but just in case people can't watch them, haven't watched them. Describe the scene. You talked a bit about it in the end of the first episode, about the logistics involved in setting it up. What was it like?
- [05:19]
Philippe Sands
So the courtroom itself is arranged in a way that I think people would find curious. If you're sitting in the press gallery on the ground floor or on the balcony, as you're looking straight ahead, the windows of the courtroom are on the right, and in front of the windows are the four principal judges. And then in front of the four principal judges, you've got the court reporters and the interpreters. And then between the public gallery, the press gallery and the judges, on the right are four long tables. And the four long tables have sitting at them the four different national prosecutors. I can't remember the exact one. I think the Soviets were on the Far left, the Brits were on the far right, the Americans and the French were in the middle. And then if you go to the left hand side of the room, you have the defendants seated in a wooden dock. The most prominent and the closest to everyone is Hermann Goering behind the dock. On the left hand side of the room is a sliding door which is the entrance to the elevator, the lift up and down which each defendant will come in and out one at a time. Sliding door that left, I think, a very big impression on a lot of the people who watched it. And so you've got the defendant on the left, looking straight ahead at the defendant, judges on the right. And then between them is essentially a large wall on which a screen will be dropped from time to time and on which films will be shown. And in front of the screen is a stand in which witnesses and defendants will be questioned. It's an old style courtroom. There's a lot of wood, a very tall ceiling. One of the things that I was very surprised about when I went for the first time. I'd seen a lot of images, photographs, videos is it's a very small and intimate room. I mean, you're talking maybe a couple of hundred people in there, max. It looks vast when you see it on screen. And I think that's amplified by the nature of the trial itself. But in fact it's a very intimate room.
- [07:48]
Dave Musgrove
Okay, fascinating. So can you tell me a bit about how the defendants were kind of treated during. So I told them that they have sort of appear through this sliding door. Were they sort of treated with any deference? Were they treated politely? Or was there just pure hostility towards them?
- [08:04]
Philippe Sands
No, there isn't pure. If you watch the video and you see the films, there isn't pure hostility. In fact, the day would begin each morning when the trial opened, or whatever it was, nine, 30 or 10, they would come in one by one. One of the things I noticed watching the videos is there's a sort of. They're quite jocular, they're joking, they're chatting to each other. Immediately in front of them are their lawyers. And the lawyers are robed and there's a lot of nattering going on. But you don't, at least for those openings and closings, have a sense of solemnity that comes in later. They're trying to give the impression that they're relaxed, that they're comfortable, that they don't have. This is the defendants. The lawyers look a lot more serious. There was a very interesting decision taken in relation to the lawyers. All the defence lawyers are German. This is the only time, apparently, in the history of the English Bar, of which I'm a member, that English barristers were not allowed to act for these defendants. I don't know the origins of that rule. I don't know how it was decided, but that would have significant consequences, because in the German tradition, you don't do cross examination of witnesses and of defendants. It's basically done on the documents and it's for the judges to ask questions, so on and so forth. So it put them at a sort of disadvantage. But one of the things that you'll strike is that every morning when they come in, they're looking pretty jovial, pretty jocular. By the end of the day, when the evidence has been read out or shown on the screen, on some days, they're looking pretty stunned.
- [09:44]
Dave Musgrove
Just going back to the defence lawyers for a second then. So they're all German, as you say, German or Austrian.
- [09:51]
Philippe Sands
There were three or four Austrians.
- [09:52]
Dave Musgrove
How were they chosen? Who were those people? Were they Nazis or were they just lawyers who were asked to do the job?
- [10:00]
Philippe Sands
The lawyers acting for the defendants were. I mean, they volunteered. They came from the German legal profession, I think, very often. I don't know about all of them. I know about some of them. Those that I do know of were not members of the Nazi Party. And just as with me and my rules of professional conduct, the fact that you're defending someone whose views you may not agree with or who may be accused of having done terrible things is not a reason for not acting for them. I think from some of the memoirs that some of them wrote, they developed a sort of empathy with some of the defendants that they were acting for. Some of them acted for two or three people, but they did it as a job in the name of justice. It's not that they necessarily liked or believed their clients were telling them, but it was a job to be done.
- [10:50]
Dave Musgrove
So they weren't subject to any sort of criticism or anything like that for taking these roles?
- [10:55]
Philippe Sands
No, I don't. I've never come across that. I mean, I think they develop their own roles and their own identities, but I've never seen anything much by way of critique. I mean, there will be isolated groups of people on all sides with different positions who are always ready, critique, criticize someone for what they've done. But as far as I'm aware, they got on with their job and they considered the trial essentially to be a very fair trial, as did the defendants. It's very interesting when you read the Gilbert Diaries, the psychologist who was attending to the psychological needs of the defendants. One of the things that comes out very strongly is the defendants all thought the judges were very decent and that it was basically a fair process in which they got a reasonable day in court. I mean, in terms of the way in which it was done. The prosecution started for the first few months and laid out their cases on the major crimes, war crimes, crimes against humanity, crime of aggression, as well as membership of banned organizations, the SS and various other things. And that took us for the first few months. And they laid out evidence with witnesses who would come and tell the stories of what had happened to them. And some of that witness testimony was. Is very striking. But then very early on in the proceedings, as part of the prosecution case, the prosecution sewed films. And of course, I think one of the most dramatic days was the first screening of concentration camp footage. It's really very, very shocking. And that had a particular effect because the propaganda value of the trial meant that although the room was darkened, the prosecution had installed large lights on the ceiling and switched these on whilst the defendants were watching the films of the concentration camps. And so you are able to see the defendants looking really rather shocked at vast mounds of corpses. I mean, terrible images that were. That were now familiar with. And that was all done in the first weeks. I mean, I spoke to a lady who was the daughter of the chief judge, Sir Geoffrey Lawrence. Her name is Robbie, Robbie Dundas, and she features in my book East West Street. She went to Nuremberg early on in the trial. She stayed with her mum and dad, who he was the presiding judge, and her mother, Marjorie. But she actually went because she worked at Bletchley park. And she was sent to go and interview two of the defendants, Yodel and Keitel, about aspects of what they had known about certain intelligence things. She told me she never disclosed to the defendants that she interviewed who she was, that she was the daughter of the chief judge. So they never knew that. And after she'd done her work, she sat through the part of the trial where they showed the films, and she described it as really one of the most shocking days of her life. She also described the days they brought in as evidence lampshades made out of human skin and soap made out of human bodies. And she said to me, you know, Philippe, I shouldn't say this, but ever since those terrible days, I've just hated those Germans. And it obviously left a very, very deep mark on her. So I think those first days of the prosecution, the first weeks of the prosecution were Very, very shocking. And then each of the defendants was examined and cross examined and gave their story. That was the second part of the trial. And then the third part of the trial. The defendants laid out their defences and explained why either they hadn't known or they weren't responsible, or this, that or the other. So it followed a process and the whole thing in the end, which started on November 20, 1945, finished on October 1, 1946, so it was done and dusted within less than a year.
- [15:10]
Dave Musgrove
So again, kind of the pace of it, as we talked about in the first episode, the pace of the preparations for the trial were. The trial itself was similarly pacey, but it sounds like it was operating on a very clear schedule.
- [15:23]
Philippe Sands
It was very tightly managed by the chief judge, working with the three other principal judges and they wanted to move things along. They hoped to get it all gun dusted in six months. And in the end, I think it took just a little over 10 months. But there were several hundred witnesses, hundreds of thousands of pages of evidence, all of which is available. All of that testimony, anyone who's interested in it, it's all available. The oral arguments and the testimonies were recorded on old. They look like records. And I remember once going to the Peace palace in the Hague where I do a lot of my cases before the International Court of Justice, and learning that the Peace palace was an official repository for the archives of the Nuremberg trial. And I went down into the basement, the registrar took me and I saw hundreds of boxes of old records that were recordings of every day, every hour, every minute of the trial. I've never forgotten that image. I think they've since been moved and put into proper storage elsewhere in the Netherlands. But everything was recorded. All the documentary material remains available.
- [16:39]
Dave Musgrove
Just going back to sort of the point you're making earlier about the fact that there was, you know, there was drama created when these films were shown. Am I right in thinking that that was also kind of the first time that lots of people outside of the court, like people in the general public, were aware, made aware of the sort of the horrors of what went on? That was kind of like actually quite a pivotal moment in, in showing the world what had happened?
- [17:03]
Philippe Sands
It was a huge moment and a lot of care was made in the making of the films. There were different films. The Americans made a film, the British made a film, the Soviets made a film. And very often very famous film directors were involved in the making of the films. And names like Alfred Hitchcock and John Huston and others were involved in making the films. And I think that reflected the desire of the prosecution teams, of the governments who were involved, to make films of the quality and effect that could touch a broader audience. This wasn't purely about touching the judges and a courtroom evidence. The German public and the global audience was incredibly significant.
- [17:47]
Dave Musgrove
One thing we should clarify, actually. So we had all these defendants, a group of them, but they were being tried individually rather than as a mass group.
- [17:55]
Philippe Sands
Yes. Each of the 21 who was present was tried individually. Each had his own indictment. Hans Frank was indicted for the crime of aggression, for crimes against humanity, for war crimes. He's the one that I know best. He'd been Adolf Hitler's lawyer and then Governor General of Nazi occupied Poland. So I know all of the details. I've followed his entire trial with absolute care. And each of them were indicted individually, subject to their own particular cases. Each had their own lawyer and each conducted their own defence. And then when it came to the judgment, each would be judged individually.
- [18:35]
Dave Musgrove
And did they all feel like they had adequate time to prepare their defences? Was that. You said that they thought it was a fair trial.
- [18:41]
Philippe Sands
It's really interesting when you read their memoirs, some of them wrote memoirs. Even some who were hanged wrote memoirs whilst they were on trial. Nobody complained about the conduct of the proceedings. There's no real gripes about that. One of the things that emerges is we did not know what had happened. One of the aspects that I think is very important for listeners to understand is that the very first thing that happens on the opening day or days of the trial is the indictments are read out and they're asked to say whether they're guilty or not guilty. No one pled guilty. The only one of the defendants who came close to acknowledging not guilt but responsibility was Hans Frank. In May, April, May 1946, when he took the stand for the first time, he acknowledged the gravity of the crimes that had been committed and acknowledged from his own diaries, which were in evidence in the trial, that he bore a responsibility for what had happened. Now, his acknowledgement of responsibility, a form of collective responsibility, as Germans caused mayhem with the other defendants, they were outraged that a German should have acknowledged his responsibility for crimes committed in this way. And so when he appears in the dock to make his closing statement a few months later, in August 1946, he changes his position and he clarifies that he did not intend to acknowledge guilt in any way at all. He did not know the full extent of the crimes and it was very clear. I got this in particular from Gustave Gilbert's diaries that the other defendants had got to him and had basically caused him to change his statements to not be understood to be expressing remorse and certainly not personal guilt.
- [20:53]
Dave Musgrove
Fascinating. You got all these details about it. I just wonder, though, whether things would have been different if any of them had said they were guilty. You know, would that have changed the course of the trial? Because, you know, you might surely, you know, some of them did know that what was going on, and they must have known that actually they were guilty. Whether they would have, you know, had a different outcome.
- [21:14]
Philippe Sands
Well, very, very interesting question. I'm just right now writing a piece for the observer newspaper profile of the author Olivera Simic of a new book that's coming out shortly called Madam War Criminal, which is the story of the first female to have been convicted for crimes against humanity by an international tribunal. She was a Bosnian Serb leader, and she negotiated a plea deal. She was indicted in 2000 or thereabouts for crimes against humanity and genocide. And she then negotiates a plea deal with the responsibility of the Yugoslav international tribunal, Carla Del Ponte, to plead guilty to crimes against humanity in return for the charge of genocide being dropped. And when it comes to her sentencing on the basis of her having pleaded guilty, the judges say explicitly that the fact that she pleaded guilty will cause her sentence to be discounted and to be shorter than it would otherwise have been. And so I've just been reading all of that material, and it occurred to me exactly the question you've asked. If any of the defendants at Nuremberg had pleaded guilty, would some of those who got the death penalty have instead received lengthy or life or other lengthy sentences? And for those who were sentenced to 20 or 25 years, would they have got shorter sentences? Of course we don't know. It's a hypothetical. It's a counterfactual. We don't know what would have happened. But none of the 21 pleaded guilty.
- [22:51]
Dave Musgrove
Interesting you should mention a female war criminal just there, because I was just. My next question was to talk about the sort of the masculine nature of the courtroom. When you look at the courtroom, it's mostly men. There are women in the room.
- [23:04]
Philippe Sands
Well, they're only doing two types of things to women. All the judges, all the lawyers, all the defendants, all the guards are male. And the women who are there essentially occupy two functions. They are interpreters and they are typists, fulfilling a secretarial function. That has completely changed in our times, in which there's much more of a gender balance on international criminal tribunals today. But it was A very male atmosphere. And the same thing went for the reporters who were there. Most, but not all male reporters. But here is an interesting thing. So I've read, I mean, hundreds of reports from the press people who sat in on the trial. The reports that are most exciting to read, most illuminating, the ones that open the imagination, the ones that really capture the atmosphere in the rooms are, are by women writers. And I'm thinking of three in particular. Rebecca west, famous British writer, Martha Gellhorn, very well known American writer. And then someone who's much less known, but whose letters from Nuremberg in the New Yorker magazine published in 1945 and 1946 are remarkable documents. Her name is Janet Flanner and some of her accounts are reproduced in her collections of essays in books. And she produced the most extraordinary accounts. So it is from her, for example, from Janet Flanner that we get the most extraordinary account of the cross examination by Robert Jackson of Hermann Goering. And what you pick up from the transcript, because that's also available, but even more from Janet Flanner's account. She was obviously in the room when she wrote it. She observed the whole thing is that Goering ran rings around Jackson. And the reason for that was Jackson was essentially an appellate lawyer. He wasn't a cross examiner. He didn't know how to cross examiner. And Janet Flanner writes an excoriating account of Jackson's performance as a cross examiner and describes how eventually he had to stop. And a British lawyer, the British number two, David Maxwell Fife, who knows how to cross examine, comes on and destroys Goering in short order. And it's these accounts, absolutely brilliantly written, that gives you the full flavor of what's going on in the courtroom.
- [25:49]
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- [26:25]
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- [26:27]
Philippe Sands
There's no Milo here.
- [26:28]
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Who picked up my son from school?
- [26:31]
Philippe Sands
Streaming only on pica. I'm gonna need the name of everyone that could have a connection. You don't understand. It was just the five of us.
- [26:40]
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- [26:41]
Philippe Sands
What are you gonna do? I will do whatever it takes to get my son back.
- [26:46]
Dave Musgrove
I honestly didn't see this coming.
- [26:47]
Philippe Sands
These nice people killing each other.
- [26:50]
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- [26:51]
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- [26:57]
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- [26:59]
Dave Musgrove
I don't even know my size.
- [27:01]
Philippe Sands
I buy my clothes the same place.
- [27:02]
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- [27:04]
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Philippe Sands
That was easy.
- [27:15]
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- [27:26]
Dave Musgrove
Was there any question that there might have been any female defendants?
- [27:31]
Philippe Sands
There were female defendants at the subsequent trials held before the US Military tribunal and held in German and Polish and French and Dutch proceedings, amongst others. But there was never, as far as I know, any suggestion that any of the top table Nazis who would be tried at Nuremberg were female. They were all men. All of them were men.
- [27:55]
Dave Musgrove
You just mentioned Goering there. Did any of the defendants put up a particularly good defence? Were any of them particularly skilled in standing up?
- [28:03]
Philippe Sands
From the size think the defendant that I find most interesting is Albert Speer, who was the works minister for Adolf Hitler, an architect who gave what I think was a pretty powerful account explaining what he did without knowledge. I think that he trod lightly over certain facts, but his plainly was the defense that seems to have been the most compelling for many of the judges. Some of the judges have written accounts of their experience and from that you get the sense that Albert's spear was the one they felt the most comfortable with. He, like Frank, acknowledged something, but not guilt. And I think he gave a rather compelling defence. He. He was, I think, expected to be sentenced to death. I mean, the American prosecutors made it very clear that they expected everyone to be convicted and everyone to be sentenced to death. And in fact, I think the Russians, the Soviet. The Soviet judge pretty much voted for the sentence of death for everybody. But in the circumstances, only about half the defendants were sentenced to death. Three were acquitted completely, which the prosecutor, the American prosecutor, considered to be a total disaster and a humiliation. But in fact, the fact that they were acquitted, I think has rather helped the legitimacy of the Nuremberg trial. But if you read the accounts of the judges and if you read the account of Gustav Gilbert, the psychologist who was attending to them, I think Speer is the only one who emerges. I mean, some of them, Hess, who had flown to Britain early on in the war to try to negotiate an agreement between the Germans and the British and then is arrested and will spend the rest of his life in Spandau Prison, had plainly gone mad and was not up to a trial. Others wept and were rather pitiful. I think the only one who stands out as interesting in that sense is Albert Speer. And there is an incredible book about Albert Speer written by the historian Gita Sereni. It's called Albert's His Struggle With Truth. Gives a pretty compelling account of his performance in court. And then after he was released from.
- [30:23]
Dave Musgrove
Prison, if you had to kind of summarise the main defence, they sort of went for, what was it?
- [30:29]
Philippe Sands
We didn't know. We didn't know what was going on. We were kept out of it. And then we were just following orders. We're, you know, of the ilk of people who we're told what to do. We follow orders. If we didn't follow orders, we would be locked up or executed. But the main thing was they claimed not to have known. And I think that was comprehensively demolished. They may have not known some of the details about what went on. I mean, Hans Frank says, I never went to Auschwitz, I couldn't have known what was going on. But that is wholly implausible. And the challenge, of course, for the prosecutors was that on some of the crimes. And I think it's important to say that the main thrust of the case most of the time was devoted to proving the crime of crimes against peace, what today we call the crime of aggression, waging an illegal war. That took up about 75% of the court time during the hearings. The rest was devoted to war crimes, crimes against humanity, a tiny bit for genocide, it sort of fell out of the trial and indeed in the final judgment, they don't address genocide at all. They don't even mention the word at the judges in their judgment. And so the vast amount of time during the courtroom is devoted to decisions about going to war, who knew what, when, what was to be done about it. And there they just said, look, if they were military men, we were just following order. The Fuhrer said, this is what's going to happen. Who were we to disagree? And then for others, Hans Frank, in relation to the mass murder of Jews, he claimed he didn't know about it. It's a wholly implausible defense.
- [32:12]
Dave Musgrove
How far were the large stretches of it kind of mundane and legalistic and how far was it like a. Sorry, that's a very. Speaking to. Initially, I take that back. Was it dramatic?
- [32:23]
Philippe Sands
No, no, very little of it was dramatic. And a lot of the press Complained Rebecca west in particular, how absolutely dreadful the hearing was, how dull it was. It just went on for day after day, day after day. No one could bear to sit through this whole thing interminably. Rebecca west was very interesting, actually, because it later emerged that she had been having an affair with one of the judges, the American judge, Frances Biddle, who was thinking of leaving his wife for Rebecca West. He never did, in the end. But it meant that Rebecca West's writing were curiously well informed, because it seemed that she had another voice that she may have been hearing from, from time to time. So her articles are well worth reading. I think she wrote for the Telegraph and for various other newspapers. But again, she writes so beautifully. But she describes the sheer boredom of the trial.
- [33:23]
Dave Musgrove
That leads me to a question which I hadn't thought about at all, and you may not know the answer, but outside of the trial, what was happening in Nuremberg? Like, you know, in the evening, presumably, everyone clocks off.
- [33:32]
Philippe Sands
We know bits and bobs. Rebecca west, in terms of the German population, she'd go on sort of walkabouts and meet people who would grumble about the Nuremberg trial and meet people who would distinguish themselves from the defendants in the Nuremberg trial and sort of, I think it's fair to say, picked up a general sort of lack of interest about the Nuremberg trial from ordinary Germans around Nuremberg with regards to the participants, the defendants, the prosecutors, the judges, obviously the defendants were kept wholly apart. The defendants lawyers did not mingle with the prosecutors socially or with the judges. But in Sir Geoffrey Lawrence's scrapbook, which I had mentioned in episode one, which was kept by Marjorie Lawrence, I found an absolutely fascinating document which was a menu from a dinner held to bid farewell to one of the lawyers in the prosecution team. And I was very surprised to see that the back of the menu was signed not only by lawyers in the prosecution, but also by judges. And so what that indicated to me was that the judges and the prosecutors were socializing together on occasion, something which absolutely could not happen today. I mean, the hub of social activity was the Grand Hotel, which still exists and which I always try to stay at when I'm in Nuremberg. The bar of the Grand Hotel is unchanged from Nuremberg days, as is the entrance hall and the lobby. And so you can imagine what it was like. And there would be a lot of hanging out, a lot of drinking, a lot of music, a lot of singing, and by all accounts, a lot of sex. It was post war, people were living their lives and people were getting up to what people get up to.
- [35:29]
Dave Musgrove
That's a very interesting alternative angle on what's clearly a very serious, serious thing.
- [35:35]
Philippe Sands
Well, they're ordinary folks. They're ordinary human beings, even if you're prosecutors and judges and. And lawyers and press people and whatever.
- [35:43]
Dave Musgrove
How much international tension was there between all the parties? Cause, I mean, obviously as the trial's going on, we're starting to see questions over the Cold War starting. We've got Churchill making speeches about iron curtains. There must have been a lot of tension developed, or maybe there wasn't.
- [36:00]
Philippe Sands
Well, I think it started off pretty harmoniously, but as the trial went on, by March, there was real tension. As you mentioned, Winston Churchill gave his famous speech, I think, in Zurich. I think I've once given a lecture in the room in which he gave the speech that an Iron curtain has descended across Europe. And with that a chill came across relations between the Soviets on the one hand, and the Americans and the British and the French on the other hand, although the French always were a little bit closer, I think, to the Soviets. And you see that reflected in a number of things that then happened. There'd been an effort to make a joint film, Soviets and the Americans. And that's cast aside. It's no longer possible in the context of the Cold War tensions. So by the end of the trial, the Allies have separated and they're no longer singing to the same tune. And there is a significance, intention of personal. That was described to me by Robbie Dundas, Geoffrey Lawrence's daughter, who had been, I think, early on in the trial and described a warmth and a coziness. She told me she had a lovely dance with one of the Russian Soviet judges and things were very warm. But she then described to me how, by the end of the trial, a coldness had come in in relations between the different sides.
- [37:29]
Dave Musgrove
I'm fascinated by the place of the judges here. You said, you know, these indications they might have been drinking with the prosecutors. You would have thought that they would be feeling quite a heavy burden of, you know, the serious decisions they're going to be making. Actually, it would be helpful if you could just explain what was the process of reaching a verdict. Was it solely down to these judges and how were they supposed to work?
- [37:53]
Philippe Sands
Well, the process is called a deliberation. And after the opening arguments by the prosecutors and then the examination of the witnesses and then the closing arguments of the defendants and the closing speeches of the defendants, there's a sort of summing up by the prosecution team. And then the hearings come to an end and then the judges disappear. Four principal Judges, and you needed a majority decision for the death sentence. And so a split of 2, 2 would not be enough for the death sentence if someone was convicted. We know a little bit about how that process went because Francis Biddle kept notes of the deliberation and the vote in relation to should the person be convicted, and if so, what should their sentence be? And those notes, I've seen them. They're available. I think it's in, as I recall, in the archives of Syracuse University in New York State. And they're absolutely fascinating. I learned, for example, tiny points of detail from these documents. Hans Frank is convicted and will be sentenced to death. But one of the judges of the four, the French judge Henri Donadieu de Vabre, according to Biddle in his notes of the deliberations, is these are Biddle's words, curiously tender towards Hans Frank. Those words interested me, and so I did a little bit of research, and what I discovered was that in 1936, Henri Doniger de Vabre, who was a professor of criminal law at the University of Paris, had accepted an invitation from Hans Frank to visit Berlin and give a speech at Frank's congress for the German Academy of Law, the Deutsches Academie Furecht. And in his speech, Donno de Waurbrecht calls for the creation of an international criminal tribunal. And in his response, Frank says, that's never going to happen. Don't even think about it. And then they go out for dinner in Berlin. And this was very striking for me because in the modern system, once you had socialized with the defendant even 10 years earlier, you really couldn't sit in judgment of that person to decide whether they were guilty or not guilty, and then whether they're going to be sentenced to a term of imprisonment or sentenced to death. But I found the speeches and I found a photograph of Danliu de Fabre at the congress. Now, when I wrote this into my book, East West Street, I also recounted how Danija de Vabre's nephew, who had accepted to be the French judge's assistant, was completely unaware of his uncle's relationship 10 years earlier with Hans Frank. But I came to understand the meaning of Biddle's words, that Donnie de Vabre, the French judge, was curiously tender towards Frank. They'd known each other, they'd socialized together, they'd been to a conference together. And of course, in the end, Donna de Vavre was outvoted by the three other judges, and Frank was sentenced to death. A few years later, after East west street came out, I went to a Conference in France in the Maison Dizieux, which was the house from which 40 or so young Jewish children had been living. And one day the SS man Klaus Barbie turns up and orders that they be deported to Auschwitz and killed. And I was due to meet at that event the descendants of Judge Denou de Fabre. But they, in the end, decided they didn't want to meet me because they were not comfortable with what I'd written in East west street about their grandfather's relationship with Hans Frank. But eventually we did meet, and we now have a perfectly cordial and civil relationship. So, again, something that I said in the last episode, the legacy of these trials, the legacy of who was guilty, who was innocent, who did what, continues to have consequences.
- [42:24]
Dave Musgrove
Yeah, that's very interesting. So, just in terms of the judges, just so I'm completely clear, so there's four judges, and it's on them to decide guilt and sentence. And so that's entirely on them. How long did they have to come up with these decisions?
- [42:41]
Philippe Sands
Well, I can't remember exactly when the hearings were concluded, but the month of September was devoted to deliberation. And then what happened was there was a judgment day. In fact, it was over two days. It was over September 30th and October 1st. And what would happen? Interestingly, this was the only part of the trial in which cameras were not allowed to be present to film or photograph any of the defendants to protect their dignity. Imagine you're going to get into the elevator, you're going to go up the first floor, you're going to come out of the elevator, you're going to go into the dock. This was done one by one. They weren't all there as a collective, and they are told whether they are guilty or innocent. And then they are told what their sentence is going to be. And the one that I follow the most closely is Hans Frank, who comes in to the room, up the elevator, sliding door opens, and he's obviously discombobulated because he stands not, I think, intentionally with his back to the judges. He's then turned around, faces the judges, and they tell him that his sentence is death by hanging. This is not film to protect the dignity of the defendants. So each of the 21 defendants comes in in this way. Three are acquitted, and of the rest, I think it's a majority are sentenced to death and the rest get sentences of imprisonment of 10, 20, or lifetime imprisonment. For the prosecutors, it's a disaster. They're not all convicted and they're not all sentenced to death. I think The Soviet judges convicted everyone, I think sentenced everyone, but they didn't have a majority to implement that.
- [44:34]
Dave Musgrove
I'm interested. That whole point you were just saying about sort of preserving the dignity of the defendants there, that does rather speak to what we started this second episode with this idea of staying the hand of vengeance and sort of allowing and giving them some sort of due legal process here. So that does feel like it's kind of in line with the initial opening comments from the prosecutor.
- [44:58]
Philippe Sands
I mean, I think if you look back on the way in which the trial was conducted, I mean, the rules of evidence were pretty limited, not very detailed. If the judges wanted it in, it was in. If they didn't want it in, it wasn't in. Often reasons were not given. It was pretty rudimentary by reference to our standards of today. But if you look at the proceedings in the round, how the hearings were conducted, one of my big takeaways is the defendants basically felt they got a fair trial. No one complained about the quality of the proceedings. No one complained about the behaviour of the judges. Several of the defendants would tell Gustav Gilbert, the psychologist, that they believed President Lawrence had presided over the proceedings fairly and decently. They felt they'd been hurt. So absolutely, in that sense, the trial delivered what it was intended to deliver.
- [45:58]
Dave Musgrove
We will return in episode three to think more deeply about the verdict and its immediate repercussions. But for now, if you've enjoyed today's episode and want to know more about this period of history, do go to History Extra. Download the app where you can get the podcast and you'll also find a collection of old master course podcasts and videos I've curated, including lots of material about the Nazi regime and the Nuremberg trials more generally. Find a link on the website to download the app. And once again, thank you for listening.
- [46:36]
Philippe Sands
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- [46:59]
Dave Musgrove
Liberty.
- [47:00]
Philippe Sands
Liberty Savings. Very underwritten by Liberty Mutual Insurance Company affiliates. Excludes Massachusetts.
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