The title of Francine Hirsch's remarkable study of the International Military Tribunal from the perspective of the Soviet Union is taken from the Abby Mann play, Judgment at Nuremberg, and the celebrated film adaptation by Stanley Kramer. It is understandable that the Soviets do not really figure in the play and in the film because the story is largely based upon one of the thematic subsequent proceedings held before American military tribunals in the Nuremberg courtroom. However, at the trial of the major war criminals, held in Nuremberg from November 1945 to October 1946, the Soviet Union was one of the four nations responsible for the proceedings, together with France, the United Kingdom, and the United States. Never before has its contribution to the proceedings been examined so thoroughly

The defense lawyer in Judgment at Nuremberg, played in the film by Maximilian Schell, makes an impassioned plea to the court on behalf of his client, who stoically endures the trial in silence. In a speech known as “The World's Guilt,” Schell points to the complicity of Winston Churchill, American industrialists, and the Vatican in the rise of Hitler. “Where's the responsibility of the Soviet Union, who signed in 1939 the pact with Hitler, enabled him to make war? Are we not to find Russia guilty?,” he says. As Hirsch points out in her study, the German Soviet agreement of August 1939 was a source of considerable angst for the Soviet legal team at Nuremberg. On more than one occasion, it provoked confrontation between the German defense counsel and the Soviet prosecutors as the former attempted to introduce the secret protocols whereby spheres of influence in Eastern Europe were identified. Hirsch explains that the existence of the protocols became “first an open secret and then not a secret at all” (p. 10).

In theory an equal partner in the trial, the role of the Soviet Union has not previously received the treatment it deserved in either the scholarly literature or in the more popular accounts. Francine Hirsch, an academic historian with a mastery of the Russian language at the University of Wisconsin, has opened this fascinating window on the trial and produced, as the subtitle of her book announces, a “New History of the International Military Tribunal.” The failure of many earlier studies to address the Soviet contribution adequately is to some extent explained by the unavailability of the archival materials and the inaccessibility of the main personalities. The linguistic limitations of many specialists in international criminal law also accounts for the neglect of the Soviet role. But Hirsch also suggests something more deliberate. “Minimizing the Soviet Union's role in the [International Military Tribunal] . . . was part of a larger effort to produce an uplifting and usable myth of the Nuremberg Moment” that “celebrated the power of American leadership,” she writes (p. 415).

Hirsch presents a “story about international law and politics” (p. 10). Indeed, the trial was a complex mix of these two elements, with the great themes of international relations hovering over the courtroom like a cloud, as well as in its corridors, and in the restaurants and bars of the devastated medieval city in which it was held. The Charter of the International Military Tribunal had been adopted only a few days after the first atom bomb was dropped and hours before the second. Its opening session was held in Berlin, occupied jointly by the four powers, with the Soviet judge presiding. The trial itself took place during the initial skirmishes of the Cold War. It was punctuated roughly halfway through by Churchill's iron curtain speech.

While its focus is on the Soviet dimension, the book provides as splendid an introduction as any to the history of the great trial. A broad array of archival sources has been consulted, as well as memoirs and secondary materials in the relevant languages, especially Russian. While the central characters are the legal professionals, Hirsch devotes considerable attention to those who had only come to Nuremberg to watch, including the novelists Boris Polevoi and Ilya Ehrenburg, the artist Boris Efimov, and the filmmaker Roman Karmen. These figures are often forgotten in in other accounts of the trial, where the cultural dimension is confined to the presence of the writers Rebecca West and Janet Flanner, the painter Laura Knight, and the Hollywood producer John Ford.

That the four great nations, “flushed with victory and stung with injury,” in the immortal words of Robert Jackson, were able to cooperate in such an unprecedented effort at international justice has always seemed quite incredible. More recent practice at the international criminal tribunals reveals the frequent quarrels and tensions when criminal lawyers schooled in very different legal traditions attempt to navigate a way forward. “Perhaps it would have been better for Germany and the rest of the world if other efforts to retain Soviet cooperation had been as successful as ours,” Jackson said in a speech to the Canadian Bar Association. This impressive feature of the trial is something that can only be fully appreciated when confidential materials of the participants are examined, as Hirsch has done so thoroughly.

Russia's contribution to the law concerning armed conflict will be forever indebted to the legacy of Fyodor Fyodorovich Martens, the great jurist of the late nineteenth century. A professor of law at the University of St. Petersburg, Martens gave his name to the humanitarian clause in the preamble of the Hague Conventions on the laws and customs of war. Less well known is Aron Trainin, who was as much a criminal law specialist as an internationalist. Trainin's seminal work during the 1930s and early 1940s advanced the view that aggressive war was not only a violation of the law of nations but also a criminal act capable of generating individual responsibility. Sidney Alderman, who was one of the American prosecutors at Nuremberg, recognized Trainin as “the author of a very excellent book on war crimes.”Footnote ¹ As Hirsch's book explains, Trainin described the “crimes of the Hitlerites against peace,” contrasting them with crimes “connected with the war.” In his book on the Soviet preparations for Nuremberg, Georg Ginsburgs thought Trainin's contribution on crimes against peace to be “no less than revolutionary.”Footnote ²

Today, it seems fitting to be reminded of the role that a Russian jurist played in recognizing and codifying the criminality of aggressive war. The two main Soviet personalities at the Nuremberg trial, chief prosecutor Roman Rudenko and judge Iona Nikitchenko, were actually Ukrainian, reminding us to be wary in conflating “Soviet” and “Russian.” Many of the worst Nazi atrocities were perpetrated in Ukraine. The indictment of the Tribunal referred to the murder of 100,000 men, women, and children at Babi Yar, and over 195,000 victims in Kiev itself. Some 200,000 were murdered in the Odessa region, and 195,000 in Kharkov, “either tortured to death, shot, or gassed in gas vans.”

That individual criminal responsibility might attach to responsibility for a war of aggression was debated by the Commission on Responsibilities in 1919. Concerns were then expressed that this would amount to retroactive prosecution. The report of the Commission recommended against prosecuting the German emperor for starting the war. The Council of Four may have rejected this recommendation when, on the proposal of President Wilson, it charged Wilhelm II with a “supreme offence against international morality and the sanctity of treaties.” The Dutch had provided the fallen monarch with asylum and said they would support a progressive development of international law so as to prohibit aggressive war but that punishing such an offense committed in the past went against general principles.

During World War II, the initial focus was on trials for war crimes in the strict sense, that is, violations of the laws and customs of war. In their declaration dated November 1, 1943, the United Kingdom, the United States, and the Soviet Union agreed on accountability for perpetrators of “atrocities, massacres and cold-blooded mass executions” in the countries overrun by the German forces, reserving the manner in which they would deal with the “major war criminals.” Over the course of 1944, thanks largely to the influence of Aron Trainin's ideas, the emphasis began to shift from violations of the jus in bello toward the crime of aggression. The American prosecutor, Robert Jackson, was apparently inspired by Trainin's vision. So, it seems, were the judges of the Nuremberg Tribunal, who in their final judgment described crimes against peace as “the supreme international crime.”

One consequence of the focus on crimes against peace was to make the political environment prior to the outbreak of war an important issue. The Soviets were not the only ones to have sore points in this respect. Notoriously, the British and French had reached agreement with Hitler at Munich in 1938, enabling him to seize parts of Czechoslovakia. The Soviets had their own narrative about the Non-aggression Pact of August 1939. Hirsch explains how the four prosecutors navigated this challenging political terrain. Each prepared a list of red lines, the issues that their governments wished to avoid. When they drafted the indictment, the prosecutors agreed on a rather summary reference to the Non-aggression Pact that was addressed to its treacherous denunciation and violation in June 1941 when the German armies invaded.

Attempts by the defense counsel to introduce evidence about the Munich agreement were blocked by the judges who said it was irrelevant. But Alfred Seidl, who was counsel for both Rudolf Hess and Hans Frank, continued to pry away at the Non-aggression Pact issue. The other prosecutors initially stood firm with the Soviets in insisting that evidence of the secret protocols to the German-Soviet Pact be excluded. At the same time, they signaled the fact that they each had responsibilities to the states they represented. Hirsch suggests they were taking their distance from the Soviets in anticipation of another sensitive point, the massacre of the Polish officers at Katyn, which had yet to be addressed in full. After several attempts by Seidl to introduce the secret protocols, one of the American prosecutors, Thomas Dodd, gave the German lawyer a boost by suggesting that instead of attempting to produce the document as an exhibit he simply ask one of his witnesses about the content of the “purported agreement.” The judges refused to allow this. But the following day, one of the American correspondents published a transcript of the protocols in the St. Louis Post Dispatch. Dodd was the source.

Because the prosecutors did not place great reliance on oral testimony, much of the trial was rather dull. At times, it was enlivened by some dramatic witness testimony. Here, the Soviets were particularly effective. Hirsch describes how a group of victims was selected in the Soviet Union, then flown to Nuremberg without any certainty that they would be heard. One of them was the poet, Abraham Sutzkever, who had hoped to deliver his testimony in Yiddish, his mother tongue. The Tribunal was quite remarkable in its ability to function in four working languages, but adding a fifth seemed a step too far, to Sutzkever's disappointment. Speaking in Russian, he described the appalling atrocities in the Vilno ghetto as the Einsatzgruppen proceeded to exterminate the Jewish population. Sutzkever witnessed the death of his newborn son, who was murdered by German soldiers following a decree forbidding Jewish women from bearing children. An English translation of Sutzkever's memoir that includes his own account of his participation in the trial was published in 2021.Footnote ³ This was too late for a reference in Hirsch's book where reliance is placed on a French-language version.

In February 1946, as Soviet prosecutor Nikolai Zorya was presenting evidence about the German invasion, he read from a photocopy of a statement by Field Marshall Friedrich von Paulus, the vanquished commander of the German Sixth Army at Stalingrad. Zorya had hoped this would provoke an objection from defense counsel and a request to provide the original. The German defense lawyers fell into his trap. The judges had already been forewarned, but the German lawyers could never have imagined Zorya's reply. He announced that instead of producing the original document he would present Paulus himself, in person. Paulus had defied Hitler's suicidal orders and surrendered to the Soviets rather than fight to the death. In great secrecy, this most celebrated prisoner of war was brought to Nuremberg where he awaited being called to the stand.

According to Telford Taylor, a member of the American prosecution team, everyone in the courtroom was thunderstruck, other than the Russians, of course.Footnote ⁴ Boris Polevoi, the Russian novelist who covered the trial, described the dramatic scene in his book, The Final Reckoning: Nuremberg Diaries. When Paulus's appearance was announced, he wrote, everyone “snapped into convulsive movement” (p. 221). Several of the defendants appeared agitated as their great war hero testified for the prosecution. Paulus described the purpose of the invasion of the Soviet Union as conquest and colonization of the agricultural areas, the oil, and the industrial potential. The testimony was the nail in the coffin of the case on crimes against peace.

Some weeks later, Nikolai Zorya was killed in his hotel room by a shot from his own pistol. Officially, it was described as an accident as he was cleaning the weapon. But Hirsch tells us that Konstantin Gorshenin, one of the Soviet prosecutors, telephoned Moscow to say it was suicide. No one believed the death was accidental, she writes, noting that members of the Soviet team reflected on the possibilities. Zorya had been in the course of preparing the Soviet case on the Katyn massacre. In a great irony, it was his son Yuri, a historian, who helped break open the Katyn case in the late 1980s and provoked the Russian president to finally acknowledge responsibility.Footnote ⁵

A village that today sits near the border of Russia and Belarus, Katyn was the scene of a mass grave uncovered by the Germans occupiers in early 1943. It became clear immediately that the victims were among the 10,000 to 20,000 Polish officers who had been taken prisoner by the Soviets in late 1939 and who had not been heard from since April 1940. When Polish diplomats questioned the Soviets about the whereabouts of the missing, they were met with a shrug. The disappearance was attributed to the fog of war. When the mass grave was uncovered, Josef Goebbels enthusiastically exploited it in a propaganda campaign. The Germans convened a commission of compliant forensic specialists who conducted a few superficial autopsies and then blamed the Soviets for the killings. A year later, after the gravesite had been retaken as the Red Army advanced, a Soviet commission of inquiry blamed the Nazis for the crime. There could only be two suspects and both of them, as the saying goes, had motive, means, and opportunity.

Consistent with their explanation for the atrocity, the Soviets insisted upon a reference to German responsibility for the Katyn massacre in the indictment. The other prosecutors were wary. Perhaps they suspected the truth. Robert Jackson urged that the reference be dropped because he thought it would provoke unnecessary controversy. Why insist upon including the murder of 10,000 Polish officers when the defendants could be blamed for crimes of much greater scale where the evidence was beyond dispute? The Soviets produced the report of their own investigation commission as an exhibit. Immediately, the German lawyers insisted on challenging the report and providing their own evidence. Two days of hearing were reserved for witnesses on the issue, three witnesses for the defense and three for the prosecution. The German witnesses, who were heard first, were unimpressive. Ultimately, their testimony consisted principally of general denials of any knowledge of the killing. The Soviet witnesses were more relevant, especially one of the experts who had participated in the original German investigation and who exposed its superficial and unscientific nature. Some modern historians have read the transcripts of the testimony and concluded that the Germans won the day.Footnote ⁶ Francine Hirsch is balanced and careful in this respect, acknowledging that the testimony of both sides was indecisive. There was not sufficient evidence to convict the Germans of the crime, but nor was the proof strong enough to suggest they were being framed.

The documentary materials examined by Francine Hirsch do not indicate at what level those involved in the prosecution knew the truth about Katyn. The most direct responsibility belonged to the secret police chief, Lavrenty Beria, and to Stalin himself. It seems probable that Vishinsky, who chaired the Commission that stage-managed the Soviet prosecutors and the Soviet judge, was also in on the plot. But beyond the highest levels, the secret appears to have been closely guarded. It seems unlikely that either Prosecutor Rudenko and the other members of the prosecution team or the Soviet judge, Nikitchenko as well as his alternate, Alexander Volchkov, knew the reality.

Hirsch recounts an extraordinary example of cooperation when Dubost, the French prosecutor, quietly passed a document that might have been helpful to the Soviets on the Katyn case. These were notes of the interrogation of a Dutch mechanic, Franz Josef Khervers, relating a conversation with an Austrian soldier who confirmed German guilt for the massacre. It was too late because Rudenko had already finished his closing submissions. Moreover, it was double hearsay. Hirsch says it would never have been admissible. But perhaps Rudenko might have found some creative way to introduce the evidence before a tribunal that was often rather flexible in this area. At the very least, it seems striking that the French were prepared to help the Soviets on Katyn.

Rudenko's closing speech was carefully vetted by Vishinsky and his Commission. In harmony with Robert Jackson, but not necessarily with Shawcross of the United Kingdom and Dubost of France, he treated the aggressive war as the heart of the case. Hirsch quite rightly points to the very ephemeral treatment of Katyn in Rudenko's speech, although without casting much light on debates that may have taken place in Moscow on the subject. The initial draft contained a lengthy discussion of Katyn that was deleted by the Vishinsky Commission. Surely this was the moment for the Soviets to review the evidence in the oral hearing, reminding the judges of the flimsy account put forward by the defendants and highlighting the strong points in the testimony of their own witnesses. Why the cold feet about insisting on the point? The documents examined by Hirsch do not really shed any light on this matter. Clearly, somebody in Moscow changed his mind.

The directions given to the Soviet prosecutors by the Vishinsky Commission makes fascinating reading. They were not alone. The other prosecutors were also in contact with officials within their own governments about the conduct of the trial, to varying degrees. None of the four prosecutors were properly independent, yet there was nothing in the communications with the other prosecutors that compared with the level of political supervision and micromanagement of the Soviet prosecution team. Stalin himself followed the trial closely and often issued instructions. He may well have been the source of the order to downplay and even abandon the Katyn charge.

Political intervention did not stop with the prosecution team. The Soviet judge, Iona Nikitchenko, was also reporting to the capital and receiving instructions about initiatives and decisions he was to take. The meddling became especially acute as the judgment was being prepared, in September 1946. Nikitchenko was sharing drafts of the judgment, a clear breach of the secrecy apparently observed by the other members of the bench. He would receive instructions to attempt to convince his colleagues on a range of issues, something that was obviously easier said than done. There is no evidence that any of the other judges was engaged in such unacceptable conduct.

The absence of any reference in the final judgment to the Katyn massacre has often been noted. That the defendants were not convicted of responsibility for the killings is clearly implied. However, underscoring this with an explicit statement would have been troublesome because of the rather obvious conclusion that if the Germans had not done the crime, then there could only be one other plausible explanation for it. Hirsch takes note of the silence of the judgment but the footnote states only that it is not clear when the decision to exclude a reference to Katyn was made.

Nikitchenko wrote a separate and dissenting opinion. Or, rather, he filed a separate and dissenting opinion that had been written for him, in whole or in part. The issues that so troubled the Vishinsky Commission were actually not that important. The Soviet judge argued for conviction of the three defendants whom the other judges had voted to acquit, Schacht, Von Papen, and Fritzche. He also contended that Hess deserved a death sentence. Nikitchenko's disagreement with the majority appeared to be essentially about the assessment of the facts. Nevertheless, there was also a legal dispute, although Nikitchenko did not directly call attention to it. Nikitchenko considered that Rudolf Hess and Hjalmar Schacht were responsible for various acts of persecution, including racial attacks directed against Jews, that had taken place during the 1930s prior to the outbreak of the war. Rudolf Hess, explained Nikitchenko, was an advocate of the Nazi “master race” theory who had signed the Nuremberg laws in 1935 and legislation extending them to Austria in 1938. The majority judgment adopted a restrictive reading of the definition of crimes against humanity and rejected any criminal liability for acts perpetrated prior to the outbreak of the war.

Hirsch dispenses with the traditional bibliography, replacing it with a bibliographic essay highlighting the most useful materials. It is positive in tone, dealing with less adequate sources by omission rather than dismissing them with criticism. She also helpfully discusses the primary sources, going out of her way to thank the generosity of Russian archivists. Archival research is by its very nature somewhat hit and miss. Scholars may know of relevant materials that remain inaccessible but there are also sources whose existence is unknown and whose discovery may depend on serendipity. The more open the sources, the greater the likelihood of discoveries that change our understanding of history. There is certainly more to be written and researched on the Nuremberg trial, with unexploited sources for all four of the participating states.

Documents in Russia probably exist that can help provide answers to some of the questions that remain. However, their availability to scholars may be dependent on political decisions. For example, several years ago the relatives of victims of the Katyn massacre were denied access to certain of Moscow's files on the ground of national security. Their challenge went as far as Strasbourg and the European Court of Human Rights, but they were unsuccessful. In any event, with the expulsion of Russia from the Council of Europe even that avenue is now blocked. Russian resistance to release of the materials confirms the fact that important information from that period remains hidden from view. For researchers like Francine Hirsch, further study of Russia's engagement with international criminal law, and with public international law more generally, may prove to be more difficult in the future in light of recent developments. The window that she has peered through with such skill and wisdom may soon be shuttered.