From Advance to Barbarism
The Trial of Field Marshal von Manstein
|Civilized warfare: The Surrender of Breda by Valasquez|
This chapter dealing with the final development of the “advance to barbarism,” the introduction of war-crimes trials at which the victors tried their own charges against the vanquished, may be fittingly concluded by an examination of what was in many respects the most noteworthy of all the war-crimes trials which followed the Second World War.
This trial was noteworthy for three reasons. Firstly, because the accused, Field Marshal von Manstein, was without question one of the greatest of the military leaders who took part in that struggle; secondly, because the proceedings were not only fully reported in the newspapers at the time, but were afterwards described in detail in a book written by the leading English counsel for the defence, a book which is entitled to rank with Mr. Frank Reel’s The Trial of General Yamashita; and thirdly, because the fundamental points at issue were fought out by the prosecution and the defence on comparatively equal terms.
It will be remembered that by the time the Nuremberg Trials had at last reached the conclusion preordained at the Yalta Conference, the British public had become utterly weary of the subject of the disposal of enemy prisoners of war. An Iron Curtain of Discreet Silence was then drawn over the question. Interest was temporarily revived in 1947 by the sentencing of Field Marshal Kesselring to death, but once his reprieve had been arranged behind the scenes, the British public soon forgot that war-crimes trials were still going on all over Europe. Great care was taken to prevent the British public being reminded of this fact; discussion in print concerning the legality and ethics of these so-called trials was made the subject of a strict taboo. No one, and particularly those who had taken part in them, wanted to hear war-crimes trials mentioned again.
It appears that the British authorities innocently mistook the indifference of the British public to what was taking place for wholehearted approval. In the summer of 1948, it was casually announced that three famous generals, Field Marshal Gerd von Runstedt, Field Marshal Fritz Erich von Manstein, and Colonel-General Strauss, who had spent the previous three years in honourable captivity in England as prisoners of war, were to be sent back to Germany in order to stand their trial as war-criminals.
A storm of protests at once broke forth, far exceeding the outcry which had arisen over the condemnation of Field Marshal Kesselring. What was the reason, it was asked, for bringing these belated charges? “If these men were guilty of war-crimes,” wrote Professor Gilbert Murray to The Times, “they should have been promptly accused and punished. Nothing can justify keeping these men in prison for three years without a trial.”
The Government had no reply to make to this question and the controversy in the columns of the Press and the debates in Parliament were entirely one-sided. In vain the Lord Chancellor, Lord Jewett, reiterated that he was satisfied in the depths of his heart that the prisoners had a case to answer and that the trials really should take place. The storm continued. At last, on May 5, 1949, Lord Jewett announced that the charges against Field Marshal von Runstedt and Colonel-General Strauss were to be dropped. But the case against Field Marshal von Manstein must, he insisted, proceed. “The whole matter for the last six months has been a source of great worry to me,” Lord Jewett declared plaintively.
The solution decided on to put an end to Lord Jowitt’s six months of worry can only be regarded as most unfortunate from any point of view. Of the three distinguished soldiers threatened with prosecution as war-criminals, only Field Marshal von Runstedt, the hero of the famous winter-battle of the Ardennes, at the end of 1944, was generally known to the British public. The names of his two comrades, if known at all, were unassociated with any particular event. The reason officially given for the decision not to put him and Colonel-General Strauss on trial was their advanced years and declining health. An excellent reason in both cases, no doubt. But it was a reason that applied equally well in the case of Field Marshal von Manstein who was also elderly and in bad health; he had always been delicate and was now threatened by blindness. The age of all three men was in the neighbourhood of seventy.
So unconvincing an official explanation inevitably invited speculation as to the true reason. Inquiry showed that, although Manstein had spent the last four years of the war on the Eastern Front, he had taken a leading part in the Campaign of France, in 1940, and to his brilliant strategy was generally ascribed the great breakthrough near Sedan on May 13th, which led in a few weeks to the withdrawal of the B.E.F. from Dunkirk and the capitulation of France at Compiègne. In his book, The Other Side of the Hill, Captain Liddell Hart writes:
“The ablest of all the German Generals was probably Field Marshal von Manstein. That was the verdict of most of those with whom I discussed the war, from Runstedt downwards. He had a superb strategic sense and a great understanding of mechanized warfare.... From him came the brain-wave that produced the defeat of France – the idea of a tank-thrust through the Ardennes.”19
A triumph so swift, so complete and, above all, so unexpected must inevitably have produced widespread psychological reactions. When, on May 10th, 1940, two million German troops began the long-awaited attack on the Western Front defended by some three and a quarter million men, confidence reigned supreme that this attack would be victoriously repulsed. No other result indeed seemed possible. On the one side were hurriedly trained German conscripts, many of whom were believed to hope for defeat as the only means of bringing about the downfall of Hitler’s regime which they were supposed to hate. Their organisation had been hastily improvised; owing to shortage of raw material their equipment was of poor quality, and they were outnumbered by three to two. On the other side were the famous Maginot Line, constructed at such vast cost and considered by the experts as impregnable; the French Army the same instrument which Marshal Foch had led to victory twenty years before, re-equipped and reorganised in accordance with the lessons of the 1914-1918 War; and the B.E.F. made up of 350,000 long-service soldiers, the best trained and equipped army that Great Britain had ever despatched to fight in a European war. Under such circumstances, it is not surprising that few paid attention to the poet Rudyard Kipling’s warning against indulging in “frantic boast and foolish word.” Thus, on April 5th, 1940, in the apparent security of British G.H.Q., General Sir Edmund Ironside, Chief of the Imperial General Staff, “with the full consent of Mr. Oliver Stanley, the War Minister” gave the following “frank interview on the war,” proudly described as being “one of the most outspoken statements ever made by a British military leader in wartime.” As reported in the Daily Mail the following day, the gallant general said:
“Hitler has ‘missed the bus’ in not attacking us during the last seven months. We have turned the corner. Having seen the British Army over in France, what we have got in this country, and also the French army, I feel that everything is going on well. The spirit of the young men is something that has to be seen to be believed. As an actual fact there is no officer in the German Army opposed to us who served in the last war above the rank of captain. We have generals and colonels galore, and so have the French Army – men still in the pink of condition – who commanded in the last war and know what it means.
I know most of the German commanders personally. I should say that most of these men are now feeling very exercised about what they should do if the order was given to ‘go.’
In this country today there is no doubt about the reasons for which we are fighting. There is a great silence in Germany. German propaganda is full of lies and this must be bad for morale.
It seems to me that one reason why the German troops are kept in position at the front is that they can be much better controlled there.”20
Within less than two months of this speech – a verbose and authentic variation of Kaiser Wilhelm’s entirely fictional reference, in 1914, to Sir John French’s “contemptible little army” – the B.E.F. was embarking at Dunkirk in order to return to Britain. It was leaving behind it all its guns to the number of 2,300; 120,000 vehicles, including all its tanks, armoured cars and lorries; and all its equipment, ammunition and stores. That the bulk of the troops succeeded in escaping at all was due entirely to Hitler’s delusion that the dark menace of Asia overshadowing Europe would induce Great Britain to come to an understanding with Germany in joint self-protection. Few members of the B.E.F. returned to England with more than the clothes which they were wearing.
Anyone but a British Foreign Office official would have foreseen that the decision to single out as a war-criminal the general to whom, it is agreed, was due the credit for this amazing triumph was bound to give rise to regrettable misconstruction. In this speech, General Ironside was only expressing views universally held at the time in the highest military and political circles. We are assured he spoke “with the full consent of Mr. Oliver Stanley, the War Minister.” Sudden realisation of the truth must have come as a terrific shock. Resentment at the time must have been widespread in political circles. Inevitably, the trial at Hamburg, in 1949, of Field marshal von Manstein came to be widely regarded as retribution for his achievements in 1940 which have secured for him a sure place in world history.
It is quite certain that the true explanation of the persistence with which the demand for the trial of Field Marshal von Manstein was pressed is that, if he had been released, it might have been difficult to resist a demand by the Soviet Union for his surrender as a war criminal, in view of the Moscow Declaration of October 1943 and the reciprocal undertakings exchanged in 1945. In accordance with these undertakings, a number of prisoners of war had, in fact, been handed over to the tender mercies of the Poles, Greeks and Serbs. But, in default of a reasonable explanation or, better, of an explanation which could be frankly stated, it was inevitable that untrue and unjust explanations should have been suggested in foreign quarters critical of Great Britain.
Neither the danger of misrepresentation nor any other objection succeeded in shaking for an instant the iron determination of the British Government to proceed unflinchingly with this belated war-crimes trial, an iron determination all the more remarkable since determination of any kind had been conspicuously absent from British foreign policy in regard to every other matter since the War. Hope of appeasing Russian hostility having long since been abandoned; there was no object or advantage to be gained by the trial; public opinion in Great Britain was quite indifferent; a small but influential minority was extremely outspoken in opposition; and those who desired to hear that another German general had been hanged considered it the best policy to remain silent in the hope that the outcry would die down if left unopposed. As a result, the debates in Parliament on the matter were entirely one-sided, but the order to the army authorities to proceed with the trial remained unrevoked.
But, although the opposition aroused by the decision to put Field Marshal von Manstein on trial as a war-criminal failed utterly to shake the resolve of the British Government, it led to other important results. It was strongly urged that, if this war-crimes trial must take place, it should at least be conducted with fairness. The Field Marshal’s trial would take place before an English military court and, therefore, he ought to be represented by English counsel. Possibly, because the effects of such an innovation were not at first realised, this proposal was not openly opposed. Probably, reliance was placed on the fact that the Field Marshal was practically penniless, since all his property being situated in the eastern provinces of Germany annexed by Poland, had been summarily confiscated. In order to deprive him of legal assistance therefore, it only appeared necessary for the British authorities to refuse him adequate funds to pay for his defence. The Bar Council did not even trouble to repeat the ruling which it had given before the Nuremberg war-crimes trials began that it was “undesirable” that a member of the English Bar should appear for the defence. It remained, therefore, possible to contend that the accused was free to employ any lawyer, English or German, whom he pleased. The fact that he had been robbed of all his money by the allies of Great Britain and, consequently, could not pay for legal aid was plainly no concern of the British Government.
It had, however, been wrongly assumed that the Field Marshal’s sympathisers would be content with protesting. The necessary funds to pay for his defence, amounting to some £2,000, were quickly raised by public subscription. The British authorities would, no doubt, have foiled this move by prohibiting the export of British currency for such a purpose but for the fact that one of the subscribers to the fund was no other than Mr. Winston Churchill. After six months worry, Lord Jewett was in no mood to bring down on himself the formidable wrath of Mr. Churchill. The opposition ignominiously collapsed. Mr. R. T. Paget, K.C., M.P., generously offered his services without a fee.
Field Marshal von Manstein was formally charged on January 1st, 1949, the farce of confiscating his uniform having been solemnly enacted whereby he was deemed to have become a civilian. The trial commenced in Hamburg on August 22, 1949, and dragged on until December 19 following.
It would be outside the scope of this book to examine the details of the trial of Field Marshal von Manstein. The only real issue in the case is, however, so simple that it can be explained in a few words. The Field Marshal was in command of the army group on the southern wing of the Eastern Front. Facing him were the Russian armies with a numerical superiority of seldom less than four to one. Behind his lines raged a ceaseless and furious struggle between the German security forces and the communist commandos in which the unfortunate civilian population, willingly or unwillingly, joined. This struggle had commenced on the first day that the German armies crossed the Russian frontier when Stalin announced that the war “was not only a war between two armies but at the same time a war of the entire Soviet people against the Fascist German troops.” According to Russian official reports, in the Crimea alone, 18,910 German soldiers were killed by the partisan bands, 64 troop trains were blown up, and 1,621 lorries destroyed. Prisoners and wounded were murdered, generally after mutilation; horrifying deeds took place whenever a German hospital was seized by the guerillas.
As has been previously repeatedly stressed, the essential characteristic of civilized warfare is the drawing of a distinction between the enemy combatant forces and the enemy civilian population. But, in the fighting on the Eastern Front, no such distinction could be drawn; any Russian civilian who maintained his civilian status was liable to be executed by his own countrymen as a traitor. The task of combatting this campaign of terror behind the German lines fell mainly on units of the S.D., the intelligence branch of the Geheime Staatspolizei, otherwise known as the Gestapo. These units operated quite independently of the army. They were not subject to military discipline. Their orders came direct from Hitler via Heinrich Himmler, the chief of the Schutzstaffel, (the S.S.), the Gestapo and the S.D. There is no question that their orders were to combat terror by terror; there is no reason to think that they did not do their utmost to obey their orders.
In a nutshell, the charge against the Field Marshal was that he knew or should have known what was taking place. There is no question that horrible atrocities were committed by both sides in the struggle. Under the ruling laid down in the London Agreement the atrocities committed by the German security forces counted as “war-crimes,” since they were committed “in the interest of the Axis countries.” On the other hand, the atrocities committed by the partisans were not “war-crimes,” since the perpetrators ultimately found themselves on the winning side. The Communist atrocities, therefore, were not the concern of the Field Marshal since they were not technically “war-crimes,” but he should have been concerned with the atrocities of the German security forces, since these were “war-crimes” committed by the ultimately losing side in an area of which he was in military command although, admittedly, he had no authority or power to prevent them. It was contended, further, that the Field Marshal should have been able to foresee the retrospective law which, some three years later, the victors would become minded to lay down and he should, therefore, have complied strictly with its requirements.
Even since war-crimes trials began in 1945 the British legal Press had been publishing from time to time letters enquiring what exactly was the legal principle or doctrine under which British officers stationed in Germany had acquired the right to sit in judgment on German subjects for offences which they were alleged to have committed when they were subject to the law of their own country. It is a remarkable fact that none of the learned contributors to the legal Press ever wrote supplying the answer to the question, whence these military courts acquired their authority. Yet the answer, first brought clearly to light during the Manstein Trial in 1949, was in fact very simple. At this trial the general public learned that the British officers entrusted with the duty of adjudicating on the charges brought against the Field Marshal for acts committed by him during the War were empowered by a Royal Warrant dated June 18th, 1945, which directed that prisoners of war in British hands charged with war-crimes, defined as “violations of the laws and usages of war” should be tried by British military courts.
For four years, every war-crimes trial before a British military court had begun with a formal challenge of the jurisdiction of the court which the prosecution immediately brushed aside by a brief reference to the terms of the Royal Warrant. Rarely, it seems, was the point seriously argued. The lawyers for the defence were foreigners, themselves liable to be sent to a concentration camp if they displayed inconvenient zeal, and the challenge was made by them pro forma and generally argued through an interpreter or in halting English. Because, in every case, the trials proceeded, the British public assumed this challenge to the jurisdiction had been adequately refuted.
How baseless was this assumption only became apparent, at least to the British public, at the trial of Field Marshal von Manstein. On the first day of the trial, Mr. Paget challenged the jurisdiction of the court to sit in judgment on his client. The accused, he pointed out, was a prisoner of war. A state of war still existed between Great Britain and Germany. Prisoner of war status is the right of every prisoner taken in war; it does not depend in any way upon the discretion of the captor. The Geneva Convention, to which of course Great Britain and all civilized states were parties, reaffirmed and laid down the long-established principle that a state detaining prisoners of war must deal with them in accordance with its own laws and regulations in respect of its own armed forces. Among the rights of a prisoner of war was the right to a fair trial. A fair trial is what a captor himself considers a fair trial for his own personnel. The prosecution was relying on the terms of the Royal Warrant of June 18th, 1945. But this document deprived the accused of many important rights which he would have enjoyed under British military law. In particular, he was deprived of the right to be tried by officers of rank equal to his own; the right to demand a precise statement of the offences with which he was charged; and the right to claim the protection of the rules of evidence, that is to say, he was not to be convicted on hearsay evidence. Finally, Mr. Paget appealed to the court not to be overawed by the fact that the document of June 18th, 1945, was labelled a Royal Warrant. In 1916, the House of Lords, in the famous Zambia case, had held that the seizure of a ship under a Royal Warrant was illegal because the seizure in that case was contrary to international law. The Royal Warrant was nothing but a government order. Responsibility for its terms rested on the government; as a constitutional monarch the King signed Royal Warrants on the advice of his Ministers.
Exceptional interest attaches to the reply of Sir Arthur Comyns Carr, K.C., leading Counsel for the prosecution. He began by declaring that he had listened to Mr. Paget’s submission “with considerable astonishment.” It went, he declared, to the root of this trial, a circumstance which he seemed to think was in itself an objection against it. Rather naively, he pointed out that it had become the practice of war-crimes tribunals to reject this submission; it had, in fact, always been rejected. He paid a tribute to the majority judgment of the American Supreme Court in the Yamashita case which sent that gallant soldier to his death. He argued that the right to a fair trial given to a prisoner of war by the Geneva Convention only applied to offences committed by the accused after he became a prisoner of war. In any event, the Field Marshal was no longer a prisoner of war since the British Government had seen fit to discharge him from the German army. Perhaps it might seem that much time and trouble had been wasted at Geneva in defining the rights and privileges of a prisoner of war if a prisoner only remained a prisoner of war at the discretion of his captors. The fact remained that if his captors decided to make a prisoner of war a civilian, they could then do as they pleased with him. Sir Arthur said that he had listened with regret to a King’s Counsel speaking slightingly of a Royal Warrant. This document has not been designed to prevent the accused from having a fair trial. It was perfectly right and proper that hearsay evidence should be admissible before a war-crimes trial tribunal because war-crimes are “of such magnitude that it would be impossible to apply to the proof of them the rules by which we are bound in a small case.”
It would be interesting to know what impression, if any, the latter argument made on the members of the Court. Even to Sir Arthur himself it must have sounded weak. If sound, it would logically follow “that evidence that would justify a conviction for murder might be insufficient to support a conviction for riding a bicycle at night without a lamp. ”21
Mr. Paget admits, however, that he had little hope that the court would uphold his submission. It was, of course, rejected. To have decided otherwise would have been a reflection on every war-crimes tribunal which had adjudicated on the point during the previous four years. The court would have had no option but to dissolve itself; the prisoner would have left the dock and gone home; and the gallant officers assembled on the Bench would have returned to their military duties. Was it to reach so rapid and lame a conclusion that Lord Chancellor Jewett had endured six months’ worry? It would have needed the combined strength of will of a tribunal composed of supermen to have reached so startling a conclusion. And the Tribunal before which the Field Marshal had been brought was not composed of supermen. It was composed of one Lieutenant-General, one Major-General, two brigadiers and three Colonels.
The composition of the court which decided that it possessed jurisdiction to try him was one of the three main disabilities imposed on the Field Marshal by the terms of the Royal Warrant. Under international law, as confirmed and laid down by the Geneva Convention, he was entitled to be tried by court-martial in accordance with British military law by officers of his own rank. All the officers appointed to try him under the Royal Warrant were of very inferior rank. This was a serious disability, since not one of them had held an independent command of an army or group of armies and, therefore, had had no experience of the difficulties with which he had been compelled to cope.
The second disability deliberately inflicted on the accused was that, in accordance with the Royal Warrant, he was denied any precise statement of the charges he would face when the trial began. The result is described by Mr. Paget as follows:
“When it came to the trial, the charges against von Manstein were 17 in number. They were summarized by a reporter who said that the prosecution had collected everything that occurred in the Eastern war and thrown it at von Manstein’s head.
What the prosecution appeared to have done was to list every incident which might contravene any law or usage of war and which had occurred in any area in which von Manstein had served. As this covered huge areas over a period of 4½ years of particularly ruthless war, the prosecution were able to list some hundreds of incidents. These incidents, or particulars as they were called, were then divided into 17 groups, and before each group some order or orders generally issued by the high command were referred to, and the allegation made that the particulars were the result of the orders. Then in front of the orders appeared a statement in varied terms, but to the general effect that von Manstein was responsible for the results of the orders, and finally, at the commencement of each charge appeared the words ‘contrary to the laws and usages of war.’
What von Manstein was actually supposed to have done and what law or customs were alleged to have been contravened was left quite vague. The result was an enormous document which took well over two hours to read in court.
We asked for detailed explanations of what the charges meant, and submitted to the prosecution some 20 foolscap pages of questions. These questions the prosecution refused to answer. When we objected to the charges in court, the reply of the prosecution was that at Nuremberg and Tokyo the charges had been vaguer still! The real answer was that the Royal Warrant gave to the accused no right to know what charges were brought against him, and we had to be content with whatever the prosecution gave us.”22
The third disability was even more grave. By the express terms of the Royal Warrant, the accused was deprived of the protection of the rules of evidence. At a more famous and equally unsatisfactory trial, two thousand years ago, the high priest, Caiaphas, was in a position to exclaim, “Answerest thou nothing? What is it which these witnesses witness against thee?” But, apart from one witness so unsatisfactory that his evidence was withdrawn by the prosecution with the consent of the court, not a single witness testified anything against Field Marshal von Manstein. So far as the prosecution was concerned, the court house need not have been provided with a witness box. Reliance was placed entirely upon some 800 documents which took twenty days to read to the court. They were accepted en bloc by the court at their face value without proof of authenticity, authorship, or issue.
The defence strove vainly to insist that, when oral evidence was readily available to support a charge, an affidavit should not be accepted. In particular, Comyns Carr blandly produced three statements incriminating the Field Marshal, purporting to have been made by three S.S. officers who had been sentenced to death by the American authorities. These three men were still alive, but the American authorities refused to allow them on any account to go into the witness box to give sworn evidence in support of their alleged statements. Mr. Comyns Carr professed indignation at the suggestion that the refusal of the American authorities was due to fear that the condemned men might disclose what means had been employed to induce them to sign these statements, or that they might seize the opportunity to describe publicly the treatment which they, themselves, had received from their American captors.
There could be no dispute as to the methods commonly employed by the American authorities to obtain confessions, since a report of a special commission appointed by the Secretary of the U.S. Army, Mr. Kenneth C. Royall, had just been published, which described and denounced these methods. From this report, it appeared that, apart from unrestricted physical violence – most of the German victims of the Malmedy war-crimes trials at Dachas were found to be rendered impotent from blows or kicks – the commission found that confessions had frequently been obtained by staging mock-trials. This procedure was adopted in cases where there was no evidence at all against the prisoner, so that even a military tribunal might hesitate to convict. Such an unsatisfactory state of affairs was remedied by bringing the prisoner before a court composed of investigators dressed as judges, who pretended to sentence him to death. He was then informed that, if he would confess, he would be reprieved. If he then signed the confession placed before him, he was immediately brought before the real military tribunal authorised to try his case which, relying on his confession, would sentence him to death. The commission reported that this trick had been successful in many cases.
Nevertheless Comyns Carr argued that the court might safely accept the statements of the S.S. officers and their presence in the witness box was quite unnecessary. Readers of Charles Dickens will remember that at the trial of Bardell v. Pickwick, Sam Weller was told by the judge that what the soldier said was not evidence. At Hamburg, it was maintained that although what the soldier said might not be evidence, what the S.S. man said was evidence which could be accepted without hesitation. The fact was apparently overlooked that Lord Jewett, in his memorable speech on May 4th, 1949, had given the House of Lords a solemn assurance that the trial of the Field Marshal “would be conducted in accordance with our great traditions.” For hundreds of years it has been a tradition of English criminal law that hearsay evidence is inadmissible. It is unthinkable that, when he gave this assurance, the Lord Chancellor did not know what were “our great traditions.” We are bound to accept the alternative assumption that he was unfamiliar with the terms of the Royal Warrant under the provisions of which the Field Marshal’s trial would take place.
It is a relief to turn from such speculations in order to justify. the claim made above that the trial of Field Marshal von Manstein must be regarded as a model war-crimes trial. During the four years which had passed since the introduction of war-crimes trials, several noteworthy reforms had been effected. For example, the accused was no longer referred to in the Press as a war-criminal even before the charges were read, as had previously been the custom, and he was no longer subjected to flagrant bad manners by the court. Although, in the indictment, he was simply described as Erich von Manstein, this was treated throughout merely as a convenient legal fiction in pursuance of the principle laid down at Nuremberg that the rights of a prisoner of war are lost if, somehow, he is deprived of his rank by his captors. Throughout the trial, Field Marshal von Manstein was treated with the respect and consideration due to his rank and brilliant military achievements. When he entered the witness box, the members of the Court quickly forgot that they were supposed to be trying a war-criminal and settled down to hear, understand and profit by a five-hour lecture on strategy which they were privileged to receive from one of the greatest soldiers of his generation. No doubt, at the back of their minds was the thought that, one day, they themselves might be called upon to cope with similar difficulties in a campaign against the same foe with whom “this benign, white-haired, half-blind old man had fought.” To quote the correspondent of the Daily Mail, when Manstein entered the witness box, “the court room was immediately changed into a lecture hall of a staff college. Leaning forward to catch every word, the red-tabbed British officers heard him give a five-hour lecture on military strategy and full details of his Russian campaigns without reference to a note.23 If, as is to be hoped, these British staff officers benefited by the instruction given to them, this part of the trial, at any rate, was not an entire waste of time.
There is no interest whatever in the last phase of the average war-crimes trial. All accounts agree that, after weeks and perhaps months of indescribable tedium, the only emotion felt by anyone at the end, including probably the accused, is profound relief. Some have compared a war-crimes trial with a bull-fight. Others consider the comparison unfair, to which subject of the comparison there is a difference of opinion. But the Manstein trial was not a typical war-crimes trial. Mr. Paget’s final speech for the defence made a deep impression on the Court. It ended with the solemn warning, “It is not within your power to injure the reputation of Manstein, you can but injure your own.”
Mr. Paget admits that, at the conclusion of the case, he had become confident of an acquittal. One of the prosecuting team was heard offering odds of two to one on a clear acquittal but found no takers. In the usual war-crimes trial, the odds in favour of a conviction could only be expressed by some astronomical figure. The Manstein trial was a model war-crimes trial.
The reply of the prosecution was long but, compared with the opening, moderate and subdued. The most effective argument employed was the undeniable assertion that “acquittal of von Manstein would make nonsense of all other trials.”24
Every possible allowance should be made for the difficulties which faced the members of the tribunal. They were officers of very inferior rank to the accused, and not one of them had had any experience with primary warfare. They possessed no personal knowledge of the difficulties of a commander-in-chief engaged in a campaign against a powerful enemy, in numbers greatly superior to his own, who finds his long lines of communication attacked by the civilian population. They were in the position of a committee of the boxing board of control called upon to enquire whether an all-in wrestling champion had infringed certain of the Queensbury Rules. Their only desire was to do their duty. The charges were based on a haphazard collection of some 800 disconnected documents in a foreign language which it had taken twenty days to read. What facts could be deduced from this wild chaos? Mr. Paget’s arguments appeared conclusive and were supported by common sense. But Mr. Comyns Carr could point to the undoubted fact that every war-crimes trial tribunal, British and foreign, had, to date, accepted his contentions without hesitation. The complete lack of any admissible evidence such as would justify a conviction for petty larceny would appear to have made their task easy. But could it be believed that the Lord Chancellor would have worried for six months about a case which could only end in an outright acquittal? Concerning the law governing the subject, the only thing certain about it seemed to be that the authorities contradicted each other on every point at issue.
For guidance on the difficult points of international law which were bound to arise during the trial, the tribunal had been provided with the judge of the Surrey County Court acting as Judge Advocate General. The task of this functionary, Judge Collingwood, could hardly have been more onerous. With no staff to assist him, he had to marshal some 800 documents and to prepare a summing-up which would cover all the points at issue raised in the seventeen charges. It is agreed that he performed this task admirably; nothing could have been fairer than his handling of the facts.
But questions of international law rarely, if ever, arise in county courts, the jurisdiction of which is limited to claims in which the amount in dispute does not exceed £400. Judge Collingwood had made no special study of international law. Further, in the Surrey County Court, litigants dissatisfied with his rulings on breach of contract, running-down actions, the provisions of the Rent Restriction Acts, and other subjects on which he had wide experience, had a right of appeal to the High Court. But, at this war-crimes trial at Hamburg, the mantle of infallibility which the Nuremberg Tribunal had assumed had been draped round Judge Collingwood’s shoulders. From his rulings on international law the accused had no appeal.
Suffice it to say, Judge Collingwood rejected every important contention of the defence. He advised the tribunal that neither superior orders nor acts of state were any reply to the charges and that the accused was responsible for the full exercise of executive power within the area of his command, whether this power had been given solely to him or whether he had shared it with others. He laid down that the accused was bound to comply with the rules of civilized warfare whether his opponents complied with these rules or not. This latter ruling was particularly remarkable as the British Manual of Military Law declares just the opposite, as follows:
“The rules of international law apply only to warfare between civilized nations where both parties understand them and are prepared to carry them out.”
Most remarkable of all, however, was Judge Collingwood’s ruling that the execution of prisoners as a reprisal was illegal, under all circumstances. On this point the British Military Manual is most explicit. Article 453 lays down:
“Reprisals between belligerents are retaliation for illegitimate acts of warfare for the purpose of making the enemy comply in future with the recognized laws of war. They are not a means of punishment or arbitrary vengeance, but of coercion.”
To remove any possible doubts on the matter, Article 454 adds:
“Reprisals are an extreme measure because in most cases they inflict suffering upon innocent individuals. In this, however, their coercive force exists and they are indispensable as a last resource.”
It is not clear whether Judge Collingwood thought that the authors of the British Military Manual went astray in this exposition of international law or whether he considered that reprisals were permissible to British generals but illegal in all circumstances to foreign generals or, at any rate, to German generals. It is certain, at least, that a British general who acted strictly in accordance with the directions of the British Military Manual would have no reason to fear a British court-martial. It is, no doubt, equally certain that he would now find this little protection in the event of his discovering himself on the losing side and being subjected by his captors to a war-crimes trial. In a letter to The Times, written immediately after the trial, Captain Liddell Hart concludes:
“I have studied the records of warfare long enough to realise how few men who have commanded armies in a hard struggle could have come through such a searching examination, of their deeds and words, as well as Manstein did. His condemnation appears a glaring example of either gross ignorance or gross hypocrisy.”25
Some may think that this opinion makes insufficient allowance for the enormous difficulties of the task which the tribunal had had to face. They had nothing to do with the decision to charge the Field Marshal as a war-criminal: this decision was entirely the responsibility of the British Government. They had nothing to do with the framing of the seventeen charges: two of the charges had been brought by the Communist Polish Government, and fifteen by the Communist Russian Government. The purpose of the trial must have been as obscure to them as to everyone else. They were asked to find as proved facts which the prosecution admitted could not be proved in accordance with the recognised rules of evidence. On difficult points of international law, upon which even the experts disagreed, they were under the guidance of a county court judge. Thoroughly fuddled and confused, who can doubt that they did their best?
Everyone knows the story of how, during the Crimean War, an aide-de-camp galloped up to the Light Brigade with the order to charge the enemy’s guns. “What enemy, Sir, what guns?” enquired Lord Lucan testily. “There are the enemy, my Lord, there are the guns!” replied the aide-de-camp, slightly scandalised by the question, with an airy wave of his hand towards the enemy’s positions. Lord Lucan did not condescend to ask further questions: his duty was to command the British Cavalry Division in the Crimea and not to try to make sense of the commander-in-chief’s orders. Clearly, the commander-in-chief wanted the Light Brigade to charge the enemy’s guns. So, he communicated the order personally to the commander of the Brigade, Lord Cardigan. The latter was equally bewildered. Still, his duty as a soldier was to carry out orders, not to try to interpret them. He was bound to assume that his superiors knew what they were doing. Drawing his sabre, he led his squadron in a charge in what proved to be the wrong direction down a valley destined to become immortal as the Valley of Death.
Neither at Balaclava, in 1854, nor at Hamburg, in 1949, was it a soldier’s duty to ask questions about orders. “Theirs not to reason why! ” – particularly on subjects about which the experts contradicted each other. The gallant band composed of one Lt. General, a Major-General, two Brigadiers, and three Colonels figuratively straightened their shakos, drew their sabres, exclaimed “Hurrah!” in unison and led each other to the charge. That “someone had blundered” was obvious in both cases, but in neither did this affect the simple duty of a soldier. At Balaclava the result was dismissed as magnificent but not war; at Hamburg the result may be dismissed as far from magnificent and certainly not law.
The findings of the tribunal can be briefly summarised. There were seventeen charges in all, two from Polish sources and fifteen from Russian. Field Marshal von Manstein was acquitted outright on eight charges, including the two Polish charges which, as Mr. Paget says, “were so flagrantly bogus that one was left wondering why they had been presented at all.” He was held accountable on seven charges, after the prosecution had been permitted by the court to modify them after the close of the case for the defence – a very questionable procedure. So modified, the upshot may be regarded as equivalent to an acquittal. On two charges, only, was the Field Marshal held to be guilty.
The two charges upon which he was held guilty were, first, that he had permitted Russian prisoners to be used in clearing minefields; the Allies after the war made it a common practice to use German prisoners of war for mine-clearing. Secondly, that he permitted Russian civilians to be deported from his area for work in Germany; at the time the tribunal was deliberating on this charge, it was common knowledge that in Russia and Siberia there were tens of thousands of civilians deported for forced labour, not only from Eastern Germany but also from the Baltic countries overrun and annexed by Russia in 1939, and from Hungary, Finland and Roumania.
The Field Marshal’s conviction on the charge that he had permitted Russian civilians to be deported from his area for work in Germany is particularly remarkable because, at the time it was alleged he committed this offence, the Allied leaders were formulating and approving the Morgenthau Plan which specifically approved the use of “forced German labour outside Germany” as a form of reparations.26 It should also be observed that, at the time of von Manstein’s trial, it was very widely known that several millions of prisoners of war were being detained by the Soviet Government for forced labour in Russia. According to estimates prepared by the information section of NATO, these prisoners included 2,000,000 Germans, 370,000 Japanese, 180,000 Roumanians, 200,000 Hungarians, and 63,520 Italians. According to the NATO estimates, 40 per cent of these could in 1952 be reckoned as dead. The surviving 60 per cent were still working as forced labour.27
Compared with the gravity of the original charges, as outlined in Comyn Carr’s opening speech, the offences of which the Field Marshal was found guilty may be dismissed as trivial. Nevertheless, the “sixty-two year old, white-haired, half-blind soldier” was solemnly informed that he “must serve eighteen years in prison to start from today: the period of four years which you have already spent in custody has been taken into consideration.”
Having regard to the tributes paid by the defence to the courtesy and humanity of the tribunal, it is regrettable that the phrasing of the judgment gives so unpleasant an impression. Obviously, it could make no difference to an elderly invalid whether the four years he had spent as a prisoner of war were taken into account or not. Assuming that it was really intended that he should serve his sentence, his chances of emerging a free man amounted to nil, whether his sentence was eighteen years or eighty. Equally unpleasant is the impression made by the subsequent reduction of the sentence from eighteen to twelve years. This ostentatious display of anxiety that the length of the sentence should exactly fit the crime appears such transparent humbug that it is difficult to consider it with patience. It must be left for persons with a mathematical turn of mind to work out what would have been a suitable penalty to inflict, had the accused been found guilty on all seventeen charges, assuming that a sentence equivalent to a life sentence was a fitting penalty for two of the least serious of these charges – charges of which the accusers themselves were notoriously guilty. The court gave no indication of the grounds upon which they had accepted certain charges and rejected the others; whether they had accepted the principles of international law as laid down in the British Military Manual or whether they had preferred to be guided by the views on international law accepted in the Surrey County Court; or to which charge they attached particular gravity, or by what calculation they had arrived at the penalty of eighteen years. There was, in fact, no apparent connection between the findings and the sentence.
The most charitable view is that the tribunal was, at the conclusion of the case, so completely befuddled by the ordeal through which they had passed that they overlooked the fact that their verdict amounted to an acquittal, and proceeded to pass a sentence of life imprisonment as the obvious alternative to the death penalty. Having decided not to acquit, they probably imagined that they were being lenient. A complete disappearance of all sense of proportion is commonly a symptom of a general paralysis of the reasoning powers resulting from prolonged mental exertion along unfamiliar paths.
British foreign policy has often greatly puzzled foreigners. Frequently it has appeared an insane compromise designed to serve conflicting aims; not seldom, it has appeared to be directed to no apparent aim of any kind. But the gradual acquisition of an Empire which, by 1919, had come to include more than 11,500,000 square miles, that is to say, about a fifth of the land surface of the globe, with a population of over 400,000,000, about a fourth of the world’s inhabitants, appeared to establish that “Though this be madness, yet there is method in’t.” Hence rose the legend of perfidious Albion.
Mr. Paget expresses the opinion that the Manstein trial “was a political as opposed to a judicial process.” It was, in fact, an act of policy by the British Government, decided upon deliberately, according to Lord Jewett, after he had been given six months worry. The question, therefore, naturally arises as to what was the precise political object which this act of policy was intended to serve. In spite of ingenious and widespread speculation outside Great Britain, this question has remained unanswered to this day.
In order to solve this mystery two very material facts must be taken into consideration; first the obligations into which the British Government had entered to hand over any prisoner of war in British custody accused by an ally of Britain of a war-crime, and secondly the indignant opposition aroused in British military circles at the prospect of a distinguished European soldier being handed over to his communist enemies to be slaughtered in accordance with the ancient traditions of primary warfare. In the British Army, at least, the traditions of civilized warfare survived.
The real struggle concerning Manstein’s fate took place behind the scenes before his trial began. On the one side were his military opponents in the great campaign in France in 1940, all the more determined by their defeat in that year to vindicate the traditions of European civil warfare. On the other side were the politicians, fearful of giving the Communist tyrant Joseph Stalin technical ground for complaint. The struggle ended with a characteristically British compromise. It was decided that a British military tribunal should be assigned the fantastic task of deciding whether certain alleged acts committed in ferocious primary warfare were reprehensible if judged by the standards of civilized warfare.
Foreign critics should note that the outcome of this irrational compromise ultimately achieved the two-fold purpose intended: the British traditions of civilized warfare were outwardly maintained; Stalin was given no pretext for repudiating his treaty obligations with his allies; and Field Marshal von Manstein’s life was saved from his vindictive Russian and Polish enemies. (pp. 328-349)
19. Capt. Liddell Hart, The Other Side of the Hill, London, Cassell, 1948, pp.70-71.
20. The Daily Mail, April 6, 1940.
21. R. T. Paget, Manstein, p. 81.
22. R. T. Paget, Manstein, pp.72-73.
23. The Daily Mail, October 22, 1949.
24. Paget, op. cit., p. 192.
25. The Times, January 11, 1950.
26. See William Henry Chamberlain, America’s Second Crusade, Chicago. Regnery, 1950, pp. 210, 307.
27. See Time, July 7, 1952.
F. J. P. Veale, Advance to Barbarism: The Development of Total Warfare From Serajevo to Hiroshima. Mitre Press (London) 1968.