Reassessing the Nuremberg Military Tribunals

Transitional Justice, Trial Narratives, and Historiography

Kim C. Priemel, Alexa Stiller, Kim C. Priemel, Alexa Stiller

• Publisher: Berghahn Books
• Year: 2012
• ISBN:
  9780857455321
• Edition: 1
• Topic: History
• Subtopic: Holocaust History
• Index: History

For decades the history of the US Military Tribunals at Nuremberg (NMT) has been eclipsed by the first Nuremberg trial—the International Military Tribunal or IMT. The dominant interpretation—neatly summarized in the ubiquitous formula of "Subsequent Trials"—ignores the unique historical and legal character of the NMT trials, which differed significantly from that of their predecessor. The NMT trials marked a decisive shift both in terms of analysis of the Third Reich and conceptualization of international criminal law. This volume is the first comprehensive examination of the NMT and brings together diverse perspectives from the fields of law, history, and political science, exploring the genesis, impact, and legacy of the twelve Military Tribunals held at Nuremberg between 1946 and 1949.

CHAPTER 1

THE TRIALS OF ROBERT KEMPNER

FROM STATELESS IMMIGRANT TO PROSECUTOR OF THE FOREIGN OFFICE

Dirk Pöppmann

When Nuremberg trial No. 11—the so-called Ministries case or Wilhelmstraßenprozess against the former state secretary of the foreign office Ernst von Weizsäcker and twenty high representatives of the ministerial bureaucracy of the Third Reich—began on November 20, 1947, it soon became obvious that Robert Kempner played a key role in the prosecuting authority. At that point, he had already served as one of the most important staff members of the American Chief prosecutor Robert Jackson in the International Military Tribunal (IMT). But by November 1947 he had evolved from his role as assistant US chief counsel to that of main prosecutor in his function as the chairman of the Political Ministries Division of the Office of Chief of Counsel for War Crimes (OCCWC). In that position he was responsible for the important Case 11, in fact one of the key proceedings on whose success the American prosecution was particularly keen.¹ Although, as usual, the trial was opened by Telford Taylor, who was Chief Prosecutor in all Subsequent Proceedings, the leading part in these hearings was played by Robert Kempner, who as Taylor’s deputy directed the prosecution in all but name. This constellation added an additional, controversial twist to an already highly contested trial, for Kempner had been a high official (Oberregierungsrat) in the police department of the Prussian Ministry of Interior and had returned from American exile in order to accuse those responsible for Nazi crimes.²

Kempner was not the only former German in the American prosecuting authority. Many German emigrants had been employed because of both their language abilities and their intimate knowledge of the Third Reich, but Kempner was the only one who had risen to such a high position in the OCCWC, continuing a second life in emigration which he had built for himself: within a very short period of time he had made a fantastic career in his new homeland. In fact, upon his return to Germany, Kempner’s social and professional standing and his public influence had become much more significant than it had been before he had left the Third Reich. Likewise, the contrast to his position as a stateless emigrant in France who had hoped to get an entry visa into the United States could not be more striking.

This development in his professional career was extraordinary because, on the one hand, the Americans were very reluctant—perhaps with the exception of the Office of Strategic Services (OSS) under William J. Donovan’s leadership³—to assign German emigrants to higher echelons in the war and occupation administration.⁴ On the other hand, there were other highly qualified and famous academics, lawyers, and political scientists who, at least superficially, seemed even more capable than Kempner to take over prosecuting responsibilities.⁵ Finally, one has to keep in mind that for the overwhelming majority of émigrés, exile meant a social decline as job qualifications or certifications were usually not accepted in the United States.⁶

Therefore, Kempner’s professional rise in the United States requires explanation. Such an undertaking is necessarily complex: first, I am going to analyze Kempner’s professional abilities and the requirements of the American government in order to reveal how advantageous Kempner’s profile was to the Americans. Secondly, I will show the consequences of his success on his career and his specific brand of thinking. This will be done by exploring whether there was a straight line connecting Kempner’s journalistic engagement for liberty and democracy in the Weimar Republic and against the seizure of power by the Nazi Party with his activities during the years of exile and as an American citizen, or whether he had to make concessions in the course of his integration into the US bureaucracy. Thirdly, I am going to tackle the question of whether or not the German émigré Kempner influenced the prosecuting authority at Nuremberg and the trials, as well as how he himself was, in turn, affected by the tenets, principles, and daily workings of OCCWC.

Kempner’s Competences, or: Being the Right Man in the Right Place at the Right Time

Arrival and Research Associate

In the spring of 1939, Kempner and his wife were still staying in Nice. They had fled together with ten Jewish children from Florence to Nice in the summer of 1938. In Florence, Kempner had directed a boarding school after his emigration in 1936, together with his friend Werner Peiser. When the school had been closed down by the Mussolini government in support of the Nazi regime, both students and teachers had been threatened with imprisonment or deportation from Italy.⁷ The Kempners had originally planned to settle permanently in France to reopen the school. In 1938 a residence permit was within reach, but by spring of 1939 the international situation had become increasingly tense so that it was no longer possible for the couple to stay. In April 1939 their application for permission to stay was rejected and he and his wife were forced to leave France.⁸

These developments did not take Kempner by surprise. Shortly after his arrival in Nice, he had evaluated further alternatives. On the one hand, he had tried to apply directly for a job overseas while at the same time renewing his mother’s old contacts, who had used to be a lecturer at the Women’s Medical College in Philadelphia in the late 1890s. After returning to Germany and marrying the medical scientist Walter Kempner, Lydia Rabinowitsch-Kempner had been one of the most famous researchers in the field of tuberculosis and an assistant of Robert Koch in his institute, and had established a life-long, international social network.⁹ Kempner’s quest for support, though unsuccessful at first, was finally rewarded when he secured help by an old acquaintance of his mother’s and also by his own friend Hans Simons, the former head of the German Academy for Politics (Deutsche Hochschule für Politik) in Berlin and since 1934 a member of the famous University in Exile at the renowned New School for Social Research in New York.¹⁰ Kempner knew Simons quite well as he had taught police law at the Academy for several years. Beside his full-time job as consultant in the police department of the Prussian Ministry of the Interior, Kempner had always been linked with and committed to academic circles as well as journalistic work.

This second professional pillar paid off in June 1939 when the long-awaited message that it was possible for Kempner and his wife Ruth to immigrate to the United States reached Nice: the Institute of Local and State Government at the University of Pennsylvania offered him a job as a research associate for one year with a salary of $2,400.¹¹ More important than this job offer was the fact that the couple were able to immigrate to America precisely at a time when it was nigh on impossible for Jewish people to get a visa.¹² On August 25, 1939, they boarded a ship in Boulogne-sur-Mer. A week later, on September 1, 1939, their vessel reached New York. Fittingly, their arrival in the New World coincided with the beginning of the Second World War. Robert and Ruth Kempner had clearly escaped at the eleventh hour.¹³

Upon his arrival, the University of Pennsylvania asked the German émigré to do a survey on the different forms of municipality and city councils. In addition, he had to lecture students who wanted to specialize in local and superior administration.¹⁴ He worked on studies of local government and in this respect especially on the theme of “Local Government and Defense Problems.” Besides these activities, he published several essays, mainly on general problems of state administration.¹⁵ Furthermore, he lectured on topics concerning administration and police law, thus covering a wide range of topics. Although Kempner might be considered an expert in questions of local government and administration, the American system was still unfamiliar to him. As a result, he chose to deliver comparative studies more often than not at the beginning of his American university career.

Despite these obstacles Kempner was so convinced of the importance of his work that he sent his published (and also his unpublished) papers to different government offices in order to attract their attention to his skills and expertise. At the same time he started to give talks at other institutions, and actively promoted his being invited to lectures at military academies such as West Point. Thus, in a short time, Kempner managed to make himself a reputation. However, this promising starting ground remained fragile because his academic position as an assistant and lecturer was only on a one-year basis, hence rather insecure. If he wanted to advance to a well-paid, permanent job at an American university, Kempner had to qualify as a Ph.D., preferably in Political Science.¹⁶ But as an immigrant he faced great problems in getting accepted as a candidate, since his academic merits were mostly unknown in the United States. In the end, it was only the letter of recommendation by Harvard Professor Carl Joachim Friedrich, a pre-1933 German émigré and influential expert on public administration that paved the road to admission in November 1940. Three months later, on February 27, 1941, the “Committee on Admission to Candidacy of the University of Pennsylvania” accepted him as a Ph.D. candidate.¹⁷ He immediately started studying and planned on finishing his thesis in the same year. From July until mid-September 1941, Kempner was granted leave from his teaching obligations at the institute. In order to maintain his means of living he was given a grant by the Carnegie Corporation and a scholarship by the Overlaender Trust in Philadelphia. But things turned out differently since Kempner was soon occupied with many other things besides his thesis, and therefore would never finish it.

Still, by the time Kempner took on the Ph.D. project, he had clearly established a foothold in American professional and public life. To that end he had benefitted from his rather prominent position in Weimar Germany and the ensuing network to which he could turn to in the 1930s, first in Europe, then in the United States. The decisive factors which not only made it possible to immigrate to the United States but also enabled Kempner to become a lecturer at an American university were the social contacts he had inherited from his family and his close friendship with the well-connected Hans Simons. Furthermore, he benefitted from the cultural resources of his education and profession. As a lecturer he had enough time to occupy himself with further issues which exceeded his academic duties but which were of crucial interest for American government offices. This suited Kempner perfectly: to the German Oberregierungsrat, political science had never been a theoretical discipline but essentially an affair of practical and, above all, of political importance. To Kempner, political science first and foremost meant political and democratic education.

Working for the Dep...