Justice Undone: A Review of Robert Hutchinson's "After Nuremberg"
Ten years after the Nuremberg Military Tribunals, nearly every Nazi war criminal not sentenced to death had been freed, including the mass murderer who starved to death millions of Soviet prisoners!
“Those scraps are good deeds past; which are devour’d
As fast as they are made, forgot as soon
As done”
Review of After Nuremberg: American Clemency for Nazi War Criminals, 2022, Yale University Press, New Haven, CT, pp. 340
Robert Hutchinson, who is Professor of Strategy and Security Studies at the U.S. Air Force School of Advanced Air and Space Studies at Maxwell Air Force Base, has written a powerful book. The subject matter itself is shattering, as it calls into question the entire enterprise of international law in the post-World War II era.
Hutchinson begins his study of the legal and political aftermath of the U.S. Nuremberg military tribunals with the story of Nazi General Hermann Reinecke. As much of this history is unknown by even educated Americans, I beg forbearance for providing a necessary preliminary introduction to the review proper. Consider it the shadow that renders in full depth the impact of what Hutchinson will reveal.
The War of Extermination: A Prologue
Hermann Reinecke is a particularly sinister figure, even by Nazi standards. He was head of the Armed Forces Office within the larger German Armed Forces High Command. As one 1960 newspaper article described him, he was mainly a bureaucrat, “not certainly one who drank blood from a skull — on the contrary, a dull major-general, a career soldier, not good enough to be given a field command.”
According to German scholar Alex J. Kay, Reinecke “was responsible for POW camps on the territory of the German Reich, the Government General, and the occupied areas under civil administration.”
Hutchinson begins his book with Reinecke because he is arguably the worst among the Nuremberg convicted who walked free. Yet his crimes remain mostly unknown, or at least rarely referenced in mainstream media narratives about Nazi war crimes. Why? Because his victims were Soviet prisoners of war, most of them deliberately starved to death. Reinecke’s rehabilitation after his conviction by a mixed parole board, which was in its majority American, made grotesque sense to U.S. leaders engulfed in what it titled a “Cold War” against the Soviet Union.
A nearly total silence about the Nazi crime of the deliberate killing of over three million Soviet POWs during World War II is yet another instance of how academia and the media have censored history about the Cold War, distorting the construction of history in a way that leaves us very much out of touch with the reality of the world we live in.
According to U.S. scholar Alex de Waal, Research Professor at The Fletcher School, Tufts University, the starvation policies aimed at Soviet POWs (as described further below) were part of a larger Hungerplan for the occupation of European Russia. As de Waal wrote in an article for the London Review of Books (39:12, 15 June 2017, pp. 9-12):
At the immediate post-Nuremberg ‘Ministries Trial’ of senior civil servants in 1947, the prosecution reproduced a document entitled ‘Memorandum on the Result of Today’s Conference with the State Secretaries concerning Barbarossa’, and dated 2 May 1941, just a few weeks before the invasion.[ii] It begins: ‘1. The war can only be continued if the entire Armed Forces are fed from Russia during the third year of the war. 2. As a result, there is no doubt that ‘x’ millions of people [zig Millionen Menschen] will starve to death if we take out from the country whatever we need.’ It was written by Herbert Backe, State Secretary of the Reich Ministry for Food and Agriculture. While the memo left the number of victims unstated, Backe’s alimentary arithmetic suggested that the entire urban population of the European Soviet Union — 30 million ‘surplus eaters’ — should be starved to death.
The Hungerplan began with the forcible starvation of Soviet prisoners of war.
Backe, by the way, “hanged himself in his cell on April 6, 1947,” as he awaited trial with the other International Nuremberg Tribunal defendants. His Hungerplan may not have fully succeeded, but the starvation blockade he helped impose on Leningrad killed at least 600,000 people.
The number of Soviet POWs captured fulfilled the optimistic projections of the Nazi war planners, who, however, had no intention of giving these prisoners Geneva Conventions protections. According to de Waal, Reinecke worked closely with the “chief of the Security Police and the SD, Reinhard Heydrich,” to fashion policies for the POW camps, which in autumn 1941 were filling rapidly with hundreds of thousands of Soviet POWs. The mass capture of Red Army soldiers came as the Nazi blitzkrieg of Operation Barbarossa rolled inexorably towards Moscow, before whose outskirts the German war machine would ultimately meet its first defeat.
Alex Kay described the horrific situation:
From October 1941, mass mortality in all Wehrmacht camps holding Soviet POWs assumed monstrous proportions: in October, November, and December, between 300,000 and 500,000 prisoners died each month…. The clearest and most direct instruction for the murder of a substantial share of the Soviet POWs was issued by Quartermaster General Wagner during a meeting of the chiefs of staff of all armies and army groups deployed on the Eastern Front with the chief of the Army General Staff, Franz Halder, on 13 November in Orsha. Wagner declared unequivocally: ‘Prisoners of war in the POW camps who are not working have to starve to death.’ This was a death sentence for 55 percent of the prisoners.
Kay described the policies worked out by Heydrich, Reinecke and other key Nazi staff: “Alongside death by starvation — facilitated not only by deliberate undernourishment but also a lack of shelter and extreme exhaustion — there was a second method of annihilating Soviet POWs: mass shootings…. The so-called Commissar Order issued by the OKW [Oberkommando der Wehrmacht, i.e., Wehrmacht High Command] on 6 June 1941 stipulated that political officers in the Red Army were to be shot on the spot should they fall into German hands….
“The guidelines granted commandos of the Security Police and the SD access to the regular POW camps to identify for selection and execution numerous groups among the Soviet prisoners, including ‘all Jews’. Significantly, this applied not only to Jewish soldiers but also, explicitly, to Jewish civilians interned in the POW camps” [bracketed material added].
The rounding up and selection of Soviet Jews was not the only crime attributable to Reinecke. Reinecke bore major responsibility for the policies he implemented that led to the death of over three million Soviet prisoners of war held in German captivity. (One source I saw stated four million Soviet POWs died in German custody.) After the genocide of European Jewry, this crime, though rarely discussed in the West, rendered Soviet POWs the “second largest group of Nazi victims.”
While the majority of Soviet prisoners who died perished in Wehrmacht POW camps, or at the hands of Einsatzgruppen, a small, but notable, portion of Soviet prisoners were sent to concentration camps. At least 50,000 or so died there. According to the website for the Memorial and Museum at Auschwitz-Birkenau, Soviet POWs sent to the concentration camp there became a major source of experimental subjects for the tests on the use of Zyklon-B, which would later be used in the mass extermination of Jews. In fact, Soviet POWs were the first major group of Nazi victims, symbolized by the fact that “Soviet POWs were the first prisoners in Auschwitz to be tattooed with numbers."
Kay’s summary on this forgotten mass murder is worth repeating, given the little that is known by most people about this slaughter:
Indeed, Soviet prisoners of war were the largest victim group of all National Socialist annihilation policies after the European Jews. Before the launch of Operation Barbarossa, it was clear to the Wehrmacht planning departments on exactly what scale they could expect to capture Soviet troops. Yet, they neglected to make the necessary preparations for feeding and sheltering the captured soldiers, who were viewed by the economic staffs and the military leadership alike as direct competitors of German troops and the German home front for precious food supplies. The number of extra mouths to feed was incompatible with German war aims. The obvious limitations on their freedom of movement and the relative ease with which large numbers could be segregated and their rations controlled were crucial factors in the death of over 3 million Soviet POWs, the vast majority directly or indirectly as a result of deliberate policies of neglect, undernourishment, and starvation while in the ‘care’ of the Wehrmacht. The most reliable figures for the mortality of Soviet POWs in German captivity reveal that up to 3.3 million died from a total of just over 5.7 million captured between June 1941 and February 1945 — a proportion of almost 58 percent. Of these, 2 million were already dead by the beginning of February 1942. In English, there is still neither a single monograph nor a single edited volume dedicated to the subject. [Bold italics added for emphasis]
On November 21, 1945, Justice Robert H. Jackson, Chief of Counsel for the United States at the International Military Tribunal, highlighted the genocidal core of the Nazis’ program in his opening statement.
“[T]he Nazi program from the first was recognized as a desperate program for a people still suffering the effects of an unsuccessful war….” Jackson told the courtroom at the Palace of Justice in Nuremberg. “The conspirators’ answer to Germany’s problems was nothing less than to plot the regaining of territories lost in the First World War and the acquisition of other fertile lands of Central Europe by dispossessing or exterminating those who inhabited them.”
Three years later, in Nuremberg Military Tribunal Case Number 12, United States of America v. Wilhelm von Lees et al., also known as the “High Command Trial,” which concluded on October 28, 1948, Reinecke, described as a “supine instrument of Hitler’s will” (Hutchinson, pg. 15), was sentenced to life in prison. Even when U.S. High Commissioner in Germany (HICOG), John J. McCloy, in a controversial review of the Nuremberg verdicts in January 1951, provided clemency and/or reduction of sentences to the majority of Nuremberg prisoners, Reinecke’s claim for reduction of sentence was denied.
Yet, Hutchinson reminds us, while the Nuremberg tribunal labeled Reinecke’s crimes as “colossal,” and High Commission McCloy denied him clemency upon official review, he would soon be let free. Reinecke “ultimately left Landsberg Prison in October 1954, six years after his conviction. How had this happened? What changed?” (pg. 15).
The Nuremberg Military Tribunals
Hutchinson’s book is an attempt to describe and analyze the causes that led the U.S. to abandon its sentencing of the Nazi criminals it tried at Nuremberg, which he rightly understands as a singular event (or process, if you will) that undermined the very premises of international law that the Nuremberg verdicts were meant to create.
I must add that his book doesn’t appear in a vacuum. Published in 2022, Hutchinson’s monograph on the unravelling of the Nuremberg verdicts comes twenty years after a series of torture memos were written by U.S. Justice Department attorneys allowing the use of torture by George W. Bush’s Pentagon and CIA. None of those responsible for the torture polices were ever even indicted.
The crime of invading Iraq in 2003 would certainly seem to meet the Nuremberg criteria of waging a war of aggression, one of the worst war crimes. Yet no one in the U.S. was ever charged for this. The same holds true for the U.S. wars in Southeast Asia and Korea.
Currently, we have the heart-rending and infuriating example of the U.S.-backed Israeli genocide in Gaza, which has been taken up by the UN’s International Court of Justice, whose progress in adjudicating the matter has been outrageously slow. It would be as if the police were to investigate a murder, but first had to spend months gathering expert testimony as to what constituted “death.”
Altogether, there were four different post-trial examinations of the U.S. military tribunals at Nuremberg. The American tribunals followed upon the political collapse of the four-power International Military Tribunal (IMT) project. After October 1946, when the IMT verdict was handed down against top leaders of the Nazi regime, each “great power” in charge of its region of German occupation held its own trials of war criminals within its own jurisdiction.
The National WWII Museum website describes the subsequent U.S. Nuremberg Military Tribunals (NMT):
From December 1946 to April 1949, a series of twelve additional military tribunals for war crimes against Nazi Germany leaders were held by the United States in the Palace of Justice. The defendants were 177 high-ranking physicians, judges, industrialists, SS commanders and police commanders, military personnel, civil servants, and diplomats. The trials uncovered the German leadership that supported the Nazi dictatorship. Of the 177 defendants, 24 were sentenced to death, 20 to lifelong imprisonment, and 98 other prison sentences. Twenty five defendants were found not guilty. Many of the prisoners were released early in the 1950s as a result of pardons. Thirteen of the 24 death sentences were executed.
The Museum is not exactly correct about the “pardon” process, as readers of Hutchinson’s book will readily see. Some of the prisoners were offered clemency, which is not the same as a pardon. A pardon implies forgiveness. The U.S. never did “forgive” any of the Nazis it released, nor, with one exception, did the Nazis convicted at Nuremberg ever express contrition for their crimes. Nor were the releases all via acts of judicial clemency. Some prisoners had their long sentences reduced, but were not released (at least not immediately). Others were released, upon review, for time served, while others won conditional release on medical grounds. After 1955, a new parole process was established, run by first an “Interim” Parole Board, and later a “Mixed” Parole Board, which included fifty percent West German participation.
One of the primary themes of Hutchinson’s book is how the U.S. diplomats in charge of the review process for the Nuremberg prisoners were at pains to defend and maintain the legitimacy of the Nuremberg verdicts for the various Nazi war crimes. However, once the process of reviewing the prisoner’s cases was undertaken, and the rudiments of an appellate process constructed to supposedly provide an example of American judicial “fairness,” the perceived legitimacy of the Nuremberg prosecutions and verdicts began to crumble.
While Hutchinson sees the backsliding and leniency as primarily (though not solely) a bi-product of a poorly thought-through, hastily constructed appellate process, in fact, as he documents, when the Cold War solidified in the early-to-mid 1950s, the incarceration of the remaining Nuremberg prisoners at Landsberg Prison was reduced to a political inexpediency.
The ease with which the Nazi war criminals achieved freedom, and even eluded oversight of their parole, was consistent with the fixation of the U.S. and its allies on combatting the Soviet Union, and not waging old battles over Nazi war crimes or international justice.
Clemency Decisions
Hutchinson examines the different stresses and pressures that helped undermine Nuremberg’s legacy, and led to the widely protested release of a number of the most famous and outrageous war criminals of World War II.
One pressure group consisted of the prisoners, along with their families and most immediate supporters, who flooded authorities with letters and petitions asking for relief of sentence, or stating opposition to the war trials’ verdicts as “victors’ justice,” or appeals for release on humanitarian grounds.
The Nazis were an unrepentant bunch, and only one, Einsatzgruppen commander Waldemar Klingelhöfer, commander of Vorkommando Moscow, part of Einsatzgruppe B, expressed Christian-inspired remorse over his crimes. Klingelhöfer — accused (pg. 15) at Nuremberg of having been “a principle in, accessory to, ordered, abetted, took a consenting part in, and was connected with plans and enterprises involving atrocities and offenses, including, but not limited to: murder, extermination, imprisonment, and other inhuman acts, carried out as part of the systematical program of genocide” — was sentenced to death at trial. HICOG John J. McCloy reduced his sentence to life in prison in 1950. In December 1956, he was paroled to freedom.
Klingelhöfer’s case was not that unusual. McCloy, whose storied career I’ve discussed elsewhere, and who is the subject of an excellent multipart podcast series by Fourth Reich Archaeology, was not the only person involved in the movement to free the Nazi war criminals. While his decision to reduce the sentence of many war criminals, and even free some for time served, was controversial, he also refused clemency for five Nuremberg prisoners, each of whom McCloy’s own Advisory Board had recommended sentence reduction to life in prison.
Oswald Pohl, Otto Ohlendorf, Erich Naumann, Werner Braune, and Paul Blobel, recommended for clemency, were hanged in the early morning hours of June 7, 1951, on McCloy’s authority. Two other Nazis war criminals, who were not tried at Nuremberg, Georg Schallermair and Hans Schmidt, sentenced to death at the Dachau Camp Trial and the Mauthausen Trial (held at Dachau), went to the gallows on the same day. They were not part of the HICOG clemency review, as they were U.S. Army prisoners.
But most other Nuremburg prisoners received a much less dire fate. Hutchinson reminds us:
Of the 142 Germans convicted of war crimes at the twelve Nuremberg Military Tribunals from December 1946 to April 1949, eighty-eight men and one woman remained incarcerated at Landsberg in January 1951. Of the eighty-nine, seventy-eight received clemency, which included commutations of ten out of fifteen death sentences. Thirty-two prisoners were eligible for immediate release, with most walking free together at nine-o’clock on the morning of Saturday, February 3 [1951]. [Hutchinson, pg. 1]
The clemency decisions were the product of a 1950 review of prisoner sentences. The initial chapters of Hutchinson’s book describe in detail the pressures to conduct such a review. The first chapters describe the plethora of clemency petitions, and pressures for clemency for key former Nazi officials from distinguished officials and members of the Establishment such as Reinhold Niebuhr and the director of the State Department’s Policy Planning Staff, George Kennan.
Hutchinson makes it clear that the decision to initiate a clemency process was McCloy’s alone, and in doing so, he ignored opposing views from officials at U.S. European Command, as well as a protest by the U.S. Office off General Counsel. A memo from the latter expressed the fear that “acceptance of Nazi clemency petitions would ‘cast doubt upon the validity of the [Nuremberg] findings, conclusions, judgments and sentences of these courts’” (Hutchinson, p. 33). In fact, that’s exactly what would happen.
By mid-July 1950, McCloy was putting the final touches on the construction of an Advisory Board on Clemency for German War Criminals. The Board came to be known as the “Peck Panel,” after its putative head, New York Supreme Court appellate judge, David W. Peck. The other two members were “Conrad E. Snow, former chairman of the wartime Loyalty Review Board and legal advisor to the State Department; and Frederick A. Moran, chairman of the New York State Board of Parole” (Hutchinson, p. 93).
Peck and Moran had been recommended to McCloy by New York Governor Thomas Dewey, who had himself come under attack for his “commutation of mobster Charles ‘Lucky’ Luciano’s prison term in 1946 as a reward for wartime cooperation with American naval intelligence” (Ibid.) According to Hutchinson, Snow was known for his belief “that the presence of orders from a superior officer was a mitigating factor, no matter the enormity of the crime,” a sentiment often “deployed by German defense attorneys at Nuremberg… rejected as illegitimate by the Nuremberg tribunals.”
On January 31, 1951 McCloy and the HICOG office released a report summarizing its conclusions, made upon McCloy’s consultations with the Peck Panel. Almost all the latter’s recommendations were accepted, and dozens of prisoners — the majority — received reduced sentences, some of whom were able to immediately walk free.
The Landsberg Report would become a lightning rod for both left and right. Few seemed satisfied by the judgments it described. Over 700,000 copies of the report were distributed in West Germany, including special copies allocated for labor unions, high schools, universities, clergy and veterans’ groups, among others, in an attempt to convince the German public of the fairness and rightness of U.S. justice. The attempt failed, with consequences that had a direct bearing on the fate of the war criminals held at Landsberg and other prisons.
McCloy’s seeming apostasy on the prisoner issue did not go unnoticed by the partisans of the Nuremberg process. Telford Taylor, involved in the initial International Military Tribunal, and chief prosecutor of the twelve successor military tribunal trials held in Nuremberg by the Americans, was withering in his criticism. In a February 24, 1951 article in The Nation, “The Nazis Go Free: Justice and Mercy or Misguided Expediency?”, Taylor wrote:
It appears to me that Mr. McCloy has been deluded into the belief that the Germans will regard his “clemency” as a demonstration of American fairness and good-will. We shall soon see how wide of the mark he has shot. True democrats in Germany will not applaud the release of the Krupp directors and S.S. concentration camp administrators. Nor will German nationalist sentiment be appeased. These commutations will be seized upon as tantamount to a confession that the trials were a product of Allied vengeance and hate rather than the embodiment of law. [Hutchinson, p. 181]
The Landsberg Report was also castigated by the “Institute of Jewish Affairs, a research organization affiliated with the World Jewish Congress,” which issued its own counter-report in reply, “The Burial of Nuremberg” (Hutchinson, p. 167). The Israeli government at the time also submitted an “official protest” over the clemency actions to the U.S. Ambassador in Tel Aviv. The irony of the Zionists’ opposition to clemency decisions related to Nazi war crimes amounting to genocide is only too well appreciated today.
The British and the French, as well as Communist newspapers, also condemned McCloy’s actions. According to Hutchinson, one “popular editorial cartoon depicted Hitler and Göring receiving the news of [Alfried] Krupp’s release in Valhalla, with Hitler wondering, ‘Should we have hung on a little longer?’” (p. 165, bracketed material added).
The Aftermath of McCloy’s Clemency Decisions
The NMT prisoners were not the only Nazi prisoners held by the Americans. Though Hutchinson does not go into much detail about them, there were 472 trials held at the former Dachau concentration camp. These military tribunals were held with even less procedural niceties than those at Nuremberg. The U.S. Army prosecuted at Dachau a total of “1,676 lower-ranking soldiers and concentration camp personnel from 1945 to 1947 for violations of the laws of war” (Hutchinson, p. 17).
Inside West Germany itself, there continued to be a good deal of pressure exerted on behalf of the remaining incarcerated Nazi prisoners. McCloy and his family received death threats over his failure to release them all. Groups like the League for the Defense of Former German Soldiers, the Association of Pension-Entitled Former Wehrmacht Officers and their Surviving Dependents, and the Association of Returnees, Prisoners of War, and Families of Missing Persons in Germany, assailed McCloy’s failure to release all the Landsberg prisoners.
Meanwhile, Konrad Adenauer, the Federal Republic of Germany’s first chancellor, leaned demagogically on the prisoners issue and also pressured for more releases. More than once he threatened, whether altogether seriously or not, to withhold West German support for a new West European military alliance to counter what many felt was a threat from the Soviet Union if there were not concessions on the prisoner issue. In late 1951, the Chancellor urged McCloy to transfer all the remaining prisoners into German custody.
Adenauer’s grandstanding evidently irked McCloy. The U.S. would not be blackmailed to release the prisoners under threat of a West German boycott of the growing anti-Soviet alliance, McCloy sniffed. “It is obvious that any military contribution of Germany in the play of the world’s military forces would scarcely be determinative,” McCloy wrote in a November 1951 draft speech (Hutchinson, p. 198).
Yet, as Hutchinson described it, the end of McCloy’s term as “High Commisioner” in August 1952 “marked a convenient turning point for HICOG officials to evaluate Allied policy on the war criminal issue as measured by West German polling data. The results were devastating” (p. 206).
Eighteen months after the release of the Landsberg Report, with American, British, and French prisons emptying by the day, only one in ten West Germans expressed approval of the Western powers’ handling of the war criminals question and nearly six in ten disapproved. [Hutchinson, p. 206]
The pressures for release of the war criminals continued in Germany, and even won some adherents among the U.S. military. Hutchinson’s book basically confirms a story I reported in an article in September 2024. At the time, I had just come across Hutchinson’s book but had not fully read it when I first described McCloy’s role in the clemency of Nuremberg war criminals.
The story Hutchinson seems to corroborate concerns the support for clemency from the man who succeeded Dwight Eisenhower as Supreme Allied Commander in Europe, General Matthew Ridgway. As I described the situation in the 2024 article, in 1951 Ridgway had been fingered by Marine Corps Colonel Frank Schwable, held as a POW by the Chinese during the Korean War, as having received a directive “by hand” from the Joint Chiefs of Staff “directing the initiation of bacteriological warfare in Korea on an initially small, experimental stage but in expanding proportions.”
I quoted David Clay Large’s book, Germans to the Front: West German Rearmament in the Adenauer Era (p. 117, endnote 1):
Not long after McCloy’s review decisions [in Jan. 1951], General Matthew Ridgway (SACEUR 1952–53) urged the high commissioners to pardon all German officers convicted of war crimes on the Eastern front. He himself, he noted, had recently given orders in Korea ‘of the kind for which the German generals are sitting in prison.’ His ‘honor as a soldier’ forced him to insist upon the release of these officers before he could ‘issue a single command to a German soldier of the European army.’
Hutchinson does not refer to this specific quote, or Ridgway’s claims about his “honor as a soldier.” If anything, Hutchinson seems ambivalent about whether Ridgway did or did not advocate for the amnesty of the German officers. Hutchinson relates the Ridgway episode as if it were sensationalized by the German press, or rather, reports that this was the conclusion of McCoy’s immediate successor, former U.S. High Commissioner to Austria, Walter J. Donnelly, who reported his observations to Secretary of State Dean Acheson.
Donnelly told Acheson about an article in the German Social Democratic press. The article said that “Ridgway had assured the chancellor that the United States ‘will take all steps to release so-called war criminals either prior to or directly after ratification of the {European Defense Community} treaties,’ since, as Ridgway’s experience in Korea had taught him, ‘many a [military] decision was an absolute necessity rather than a war crime.” Hutchinson further relates that Donnelly said this “and worse rumors… had spread rapidly in Bonn and gained wide credence in the Bundestag….” (Hutchinson, pgs. 210-211, square brackets in original, material in braces added).
The “Interim” Parole Board Is Formed
After McCloy resigned from his nearly three years as HICOG, his immediate successor, Donnelly, lasted only four months. He was followed by “interim” replacement, Samuel Reber, who served a mere three months. McCloy’s ultimate lasting replacement was former Harvard president James B. Conant, who served as HICOG for another two years, after which the position of High Commissioner was discontinued as the formal U.S. occupation of West Germany ended. Conant then was appointed the first U.S. ambassador to the new Federal Republic of Germany (FRG), remaining in that role until 1957, long enough that only four Nuremberg prisoners were left in jail by the time he left.
Indeed, as Hutchinson described it, with the foundation of the FRG, the final act was about to unfold.
On May 9, 1958, slightly more than ten years after they had received death sentences at the Einsatzgruppen Trial and seven years, three and a half months, after John McCloy had commuted their sentenced to life imprisonment, the last three defendants of the Nuremberg successor trials walked free. The news of the last Landsberg prisoners’ releases, routine at this point, garnered little coverage, positive or negative (p. 268).
The first two-thirds of After Nuremberg covers the history of the formation of McCloy’s Advisory Board on clemency, the drama surrounding McCloy’s clemency decisions, and the politics that engaged all the actors involved. The final third of the book, besides a short chapter in conclusion, concerns mostly the Conant years, especially his appointment of an “Interim Mixed Parole and Clemency Board,” which ultimately “freed all the remaining Nuremberg prisoners but six,” four of whom were “Einsatzgruppen murderers” (Hutchinson, pg. 254).
By October 1953, when Conant announced the members of the “Interim” Board, most of the concern about blackening or undoing the legitimacy of the Nuremberg trials had faded away. Conant chose a former colleague from Harvard, seventy-three year old Henry Shattuck, to chair the new board. In a 1964 article about the board written by Shattuck for the Proceedings of the Massachusetts Historical Society, Shattuck explained that the board was “interim” “because it was to operate only until Allied occupation Germany had ceased” (p. 69).
For years a Massachusetts politician, Shattuck had, Hutchinson wrote, “no documented experience in criminal law or parole matters.” His appointment seemed essentially political. The Cold War and McCarthyism was in its heyday. Shattcuk had spent the previous six years serving part-time on the U.S. Civil Services Commission Loyalty Review Board, “which adjudicated individual cases of ‘disloyalty’ uncovered by the Federal Bureau of Investigation’s search for evidence of communist subversion or sympathies among civil servants” (Hutchinson, p. 232).
In other words, the head of the new “Interim” Parole and Clemency board, had spent much of the previous years as a red-hunter. Things didn’t look too great either with the German members of the “mixed” board.
Along with the other two U.S. members of the board, the new board now had two West German representatives, one of whom, Dr. Emil Lersch, had served “on the Reichsgerichtrat (Reich Supreme Court) from 1933 to 1945, which required membership in the Nazi Party” (Hutchinson, p. 233). In other words, one of the parole and clemency board members had been a Nazi himself!
Not to give an overly one-sided view of the Board, the other German member was a former German-Jewish public prosecutor, Dr. Hans Meuschel. It’s not clear what Meuschel did during the war. He’d been forced to resign as prosecutor when the Nazis came to power in 1933. By the time of his assignment to the Interim Mixed Board, he was “serving as a senior state prosecutor… in Baden-Württemberg in trials of Gestapo officers that had organized or assisted in the deportation of the Jews, a duty for which he received public abuse from hostile locals (Hutchinson, p. 233).
Still, Meuschel’s experiences did not prevent him from criticizing, along with Lersch, “the unjust treatment of Wehrmacht officers by the Allied occupation” (Hutchinson, p. 240). Reading Hutchinson’s account of how both Lersch and Meuschel argued for accepting the clemency petitions of the Wehrmacht general Wilhelm List and Walter Kuntze is a dispiriting experience.
List and Kuntze had been sentenced to life in prison at Nuremberg’s “Hostages Trial” for implementing Hitler’s 100:1 reprisal shootings of partisans in the Balkans. McCloy had denied them clemency in 1951.
A small snippet from his Nuremberg trial describes Kuntze’s monstrous role. Kuntze wrote in a 1942 military directive:
By means of brutal police and secret police measures, the formation of insurgent bands is to be recognized in its inception and to be burnt out. Captured insurgents are to be hanged or to be shot to death as a matter of principle….
Villages with Communist Administration are to be destroyed and men are to be taken along as hostages. If it is not possible to produce the people who have participated in any way in the insurrection or to seize them, reprisal measures of a general kind may be deemed advisable, for instance the shooting to death of all male inhabitants from the nearest villages, according to a definite ratio (for instance 1 German dead — 100 Serbs, 1 German wounded — 50 Serbs).
The German Interim Board members bemoaned the generals’ “extremely complicated and critical military situation” during the war, and described them as victims of “a tragic chain of circumstances bringing about a genuine collision of duties.” Kuntze and List “were ‘gentlemen’ of ‘irreproachable character and true Christian faith,’” Lersch and Meuschel maintained (Hutchinson, p. 240).
In fact, List had already been released in 1952, for reason of supposed poor health. But his conviction and sentence still stood, and he continued to petition for clemency, as the release for health reasons did not guarantee total freedom from prison, particularly if his jailers decided his health had improved. Whatever the reason for List’s health problems, necessitating or allowing release, he lived on in freedom until 1971. Hutchinson relates a number of instances of such “health” release case loopholes. As for Kuntze, he followed List’s example with release on medical parole in 1954. He lived on to 1960.
Fascism, Political Expedience, & the Formation of the Modern World
The U.S. rapprochement with German fascism was unfolding before the world’s eyes via the work of HICOG’s parole and clemency board. The unraveling of the Nuremberg convictions under Conant was itself, as Hutchinson repeatedly explains, foreshadowed, if not almost guaranteed by McCloy’s earlier decision to reduce sentences and/or release a number of those convicted at Nuremberg. McCloy supposedly wished to provide an example of how American justice worked, but it was his decisions that drove the Shattuck-led Interim Board “towards releasing prisoners with such frequency as to render the supposedly unquestioned [Nuremberg] verdicts meaningless” (Hutchinson, p. 272).
As for the Interim Board, the Germans were a minority there. The real power over the disposition of the remaining Nuremberg cases still rested with HICOG. Hutchinson relates that Conant and his close associate Shattuck seemed “more concerned with the political aspects of the sentence reviews than McCloy ever had been” (p. 234).
Hutchinson quoted a 1964 interview Shattuck gave to the Massachusetts Historical Society, wherein Conant’s appointee explained, “we were urged to make some substantial progress” on the clemency and parole issues “before Christmas of 1953…. At that time we were trying to strengthen Germany as a bastion against Russian aggression and to heal the wounds of the war” (p. 235).
Shattuck doesn’t say (at least in the quote offered) who was “urging” them to move on the war criminal cases. I’d guess it was the U.S. State Department, if not also the military clique who followed Ridgway. But Shattuck did make clear that it was his own position at the time “that the continued maintenance of a U.S. prison in the heart of Germany would be a constant cause of irritation,” and that once a formal peace treaty was signed with West Germany, the U.S. “should get out of the prison business” (Ibid.).
Conant was certainly on-board with this, if he was not in fact the originator of Shattuck’s views. The result of all this was a speed up over the applications for clemency and parole. The fear of overturning the legitimacy of the original Nuremberg verdicts by allowing such widespread release of prisoners fell by the wayside. While the Interim Board did not have the right to find any particular sentence to have been “illegal, or beyond the power of a court to impose,” according to Hutchinson, the Board did have “broad discretionary powers to revise sentences in any way that it saw fit, even if its rationale for doing so challenged the factual basis of the verdicts” (p. 237).
Within a year of its first meeting on November 1, 1953, “the Interim Board had paroled seventeen of the twenty-seven HICOG prisoners still in Landsberg” (Hutchinson, p. 239). One of the men was former Nazi General Hermann Reinecke.
The Interim Parole Board also addressed not only the disposition of the Nuremberg prisoners, but also the issue of release for those convicted by the U.S. Army tribunals at Dachau. In its first year, the Interim Board released 176 of 282 U.S. Army prisoners sentenced at Dachau on “supervised parole.” In the end, the clemency process, which morphed into a parole procedure in 1955, ended a few years later with all of those convicted at Dachau also released from prison.
In the rules set up by the Interim Board, parole cases were prioritized for action over the clemency cases. Shattuck gamed the system by granting large-scale reductions in sentence, as an act of mass clemency, so that the clemency cases could be reassigned as parole applications, allowing for a quick disposition of the many outstanding prisoner cases. One such case was that of Nuremberg-convicted Landsberg prisoner, General Hermann Reinecke, “the officer who had exercised authority over the murderous Soviet POW system” (Hutchinson, p. 241).
Reinecke’s sentence was reduced just enough so that he could apply for parole. Via a light initial touch of clemency first (the sentence reduction), Reinecke’s case could then be considered for parole, which was subsequently approved “immediately and unanimously.” As Hutchinson put it, “ the unfair 'disparity’ in Reinecke’s sentence [as the “Interim” parole board saw it - JK] was reduced at a stroke without reference to whether Reinecke’s actions had warranted a life term in the first place” (p. 242).
Released in October 1954, Hermann Reinecke went on to live to a ripe old age. He died in Hamburg, Germany on October 10, 1973, approximately 19 years after he walked free from Landsburg Prison. He was 85 years old. From what I can tell, his death went unnoticed in the Western press.
This was political expedience, if not judicial idiocy, with a vengeance. The story of the Interim Mixed Board is one I had not read about before, and Hutchinson excels in his narrative. Still, I found myself wishing to know more about the corruption, the cases, Conant’s role, etc. I would have liked to have known more, as well, about how the clemency and parole process unfolded in the case of the Dachau Trials prisoners. Perhaps this is covered elsewhere in the literature, but I will have to search for that, as one glaring weakness of Hutchinson’s book is the lack of a bibliography. While his endnotes are copious and well-documented, and many an important source or secondary reference can be found there, it is not easy to track down ancillary material in this way. Come on, Yale University Press!
On the plus side, After Nuremberg has an excellent appendix, consisting of charts for each of the twelve Nuremberg Military Tribunal cases, listing those convicted, their sentence, the “Peck Panel” Advisory Board recommendations, McCloy’s decision in each case, and the year each prisoner was ultimately released. These charts alone also make sobering reading.
Hutchinson’s book is the only one I know that takes the undoing of the Nuremberg convictions as its central topic. It is an important resource for those seeking a history of the progress and setbacks in the establishment of international law and tribunals. But it is more than that. It documents a key moment in the development of international law, one that presents both its flaws and its inadequacies. Whether or not the reader will share Hutchinson’s emphasis on the impact of structural choices versus politically expedient decisions as affecting the ultimate fate of the Nuremberg clemency and parole cases, he presents plenty of evidence to allow the reader to form their own opinion.
Today, we are reminded every day, with the ongoing carnage of Israel’s genocide in Gaza, its ethnic cleansing in the West Bank, and its continued bombing of Lebanon, of the seeming impotency of the process of international law, or its timidity, and its seeming toothlessness. The undoing of the verdicts of the Nazi war criminals convicted at Nuremberg throws a ghastly light upon what began as a noble project, but which seems to have devolved over the years, so that now “international law” appears to be mainly concerned with Western “victors’ justice,” just as the World War II German and Japanese war criminals so self-servingly declared.
Tremble, thou wretch,
That hast within thee undivulged crimes
Unwhipped of justice.
Thank you for your courage and commitment to humanity
Dear Jeffery, I quote from this piece in my latest substack article. thx!
https://finnandreen.substack.com/p/us-foreign-policy-is-like-a-mafia