Professor harry elmer barnes a tireless exposer of historical myths

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.”¹

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 But, apart from one witness so unsatisfactory that his evidence was withdrawn by the prosecution with the consent of the court, not a single witness testified anything against Field Marshal von Manstein.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 Dachau 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 Jowitt, 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 by 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.”¹ 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.”²

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.”¹

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, 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 mine-fields; 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.² 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.³

Compared with the gravity of the original charges, as outlined in Comyns 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 Jowitt, 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.