Ex Post Facto “Justice”: Rudolf Hess and the Nuremberg Trial of the Major War Criminals
Despite the clear-cut criminal liability of certain defendants, owing even to preexisting German standards of law, the means by which the Nuremberg prosecutors selected the men they would indict for prosecution in the Major War Crimes Trial remain both ethically and legally spurious. In the case of Naval officer Erich Raeder, for example, many of the prosecuting attorneys believed there to be no grounds upon which to base a criminal case. Nonetheless, because he was one of the only prominent personalities to be captured by the Soviet Union—whose leaders were driven by ego to demand that “their prisoners” be tried in the most significant trial—Raeder was reluctantly slated as a primary “War Criminal.” Likewise, Hans Fritzsche—a radio announcer who was also a Soviet detainee—was seemingly chosen merely as a stand-in for his superior at the Propaganda Ministry, Joseph Goebbels, already dead by his own hand. With little mind to whether he himself directly took part in any of the criminal enterprises outlined in the indictment, he too would be seated in the dock, alongside the likes of Gestapo Chief Ernst Kaltenbrunner. Fritzsche was later acquitted, and would go on to offer a scathing critique of the trial in his memoir of the events, The Sword in the Scales.
Considering Hess’s stature and public visibility in Nazi Germany, it was a foregone conclusion that he was to be tried, even before evidence establishing specific criminal liability on his own part had been secured. Unnerved by the Deputy Führer’s amnesiac charade and the political implications of Adolf Hitler’s Number Three possibly walking out of the courtroom a free man, Chief Prosecutor Robert Jackson sent two of his associates to the Hess residence to scour the proposed defendant’s personal and business files for incriminating documents. The results, however, must have surprised him: far from finding any evidence by which the court could hope to establish criminal culpability, the investigating officials reported that the materials had only painted Hess as an honest and decent man; they had even portrayed well-established connections to intellectual elements within Germany who themselves had opposed many of the most heinous actions that were to be laid out by the court. In the end, Jackson would have to focus on two rather tenuous arguments in prosecuting Hitler’s Deputy: 1) That he had signed the Nuremberg Laws in his capacity as a leading member of the government, despite his not having authored them and in spite of it being well-known that a similar initiative was in place in Jackson’s own country of origin in the form of the Jim Crow Laws; 2) That in his undertaking to seek peace with Britain, Hess had been attempting to align his government with England in order to pursue a war of aggression with the Soviet Union, despite there being no empirical evidence which proved that Hess had intended to do anything but end the war unequivocally.
In the end, even amidst the overwhelming public outrage concerning the events culminating in the Final Solution, Hess was exonerated on counts three and four of the indictment: War Crimes and Crimes Against Humanity, respectively. He was, however, convicted on the first two counts, which were also the most tenuous in terms of legal precedent: “participation in a common plan or conspiracy for the accomplishment of a crime against peace,” and “planning, initiating and waging wars of aggression and other crimes against peace”; this was, of course, in spite of the fact that he was the only prominent character in the unfolding saga of the Second World War to actively pursue a peaceful solution, and had risked his life and forfeited his very freedom in the process. For his “crimes against peace,” Rudolf Hess would be given what was in some ways the harshest sentence of all: a life behind bars. From Winston Churchill to John F. Kennedy, Richard Nixon to some of the prosecuting attorneys themselves, minds across the political spectrum registered dissent concerning the fate of Hess and moreover, of the trial process itself (particularly following the release of Spandau’s last other remaining inmates, Albert Speer and Baldur von Schirach). Many were vocal in opining that in exacting this particular punishment, the Allies had gone too far. In a 1977 interview, Sir Hartley Shawcross, Britain’s chief prosecutor at Nuremberg, asserted that Hess’s continued imprisonment was a “scandal”; he further mused on the ironies of Prisoner Number 7’s fate, in light of the brand of inhumanity which the Nuremberg court had purported to be admonishing through their very proceedings.
Rudolf Hess, nonetheless, would never know freedom. He died in 1987 under mysterious circumstances, the details of which paint a picture of murder rather than suicide, as was claimed. Amidst the growing pressure on the British government to release classified documents pertaining to the official record of events of that day— increasingly viewed with suspicion even by moderate political and historical analysts— Hess’s body was exhumed; his remains burned just as had been demolished the scene of the crime only two days following his demise. With this final act of degradation, the last of any forensic evidence of possible murder had been buried once and for all in his place. Future generations may never know that upon the grounds of a nondescript Bavarian cemetery once stood a gravestone bearing the epitaph: "Ich Hab’s Gewagt," or “I dared.” And, as the wheels of propaganda continue to inflect the telling of the events of the war Hess sought to end, they may never be given cause to suspect just how valiantly the purported War Criminal whose mortal remains once rested there did dare: to challenge his former thinking, to publicly break with his beloved friend and Führer, and to save humanity itself from impending disaster.
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